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Justice Department
Police Division Identity No: Police Circular No: 23/2004 Title: (A) Charges for the Services of Police Officers
(B) Guidance on Police Custody & Security Officers - Non-Court Elements Addressed to: Chief Constables
Chief Executives,
Dumfries & Galloway Council
And Fife Council
Clerks to the Joint Police Boards | St. Andrew's House
Regent Road
Edinburgh EH1 3DG Telephone: 0131 244-2149
Fax: 0131-244 2666 Ian.Fleming@Scotland.gsi.gov.uk
http://www.scotland.gov.uk Our ref: (A) DCD/7/1
(B) 2PPM 002/006 November 2004 |
Dates
Issued: November 2004 Topic: Police Powers
Implementation: Immediate
Impact: To revoke Section I of Police Circular 3/1983, on Charges for the Services of Police Officers and to provide guidance on Police Custody and Security Officers - Non Court Elements
Contact(s) for more information: Ian Fleming (Tel: 0131 244 2149)
Andy Watson (Tel: 0131 244 3222)
Dear Colleague
(A) CHARGES FOR THE SERVICES OF POLICE OFFICERS
Following agreement with ACPOS, Section I of Police Circular 3/1983, which provided guidance to police authorities and chief constables, on charges for the services of police officers, has been revoked.
(B) GUIDANCE ON POLICE CUSTODY AND SECURITY OFFICERS - NON-COURT ELEMENTS
Introduction
1. Some tasks currently performed by police officers do not require the full training and powers of a constable. If the police are to be as effective as possible in combating crime and protecting the public, chief constables need to make full use of support staff that can provide direct support and take on a wider range of tasks to free police officers for other front line duties. Extending certain police powers and duties to Police Custody and Security Officers (PCSO) in the areas of police custody, detention and escorting will be an important part of that process. Reducing unnecessary burdens on police officers is a major part of the Executive's reform agenda.
2. This guidance sets out and explains some of the powers which PCSOs will be able to exercise to support police officers in the largely non-court elements of police custody, detention and escorting. It has been developed with ACPOS to underpin the non-court elements of PCSO services, and is generally regarded as being non-contentious in the sense that PCSOs are already being deployed successfully in some police stations. Separate guidance to underpin the court security elements of PCSO duties is being prepared and will be the subject of further detailed consultation with ACPOS, the Sheriffs Association and Sheriffs Principal before it is finalised.
Legal context
3. Section 76 of the Criminal Justice (Scotland) Act 2003 (the "2003 Act") amends the Police (Scotland) Act 1967 (the "1967 Act") to give statutory powers to certain civilian support staff employed or appointed by police authorities. The section also enables suitably skilled and trained PCSOs, under the direction and control of chief constables, to exercise powers and undertake duties in carrying out specified functions. PCSOs can perform functions in three broad categories: police custody; court security; and prisoner escorting. A police authority can also contract out the employment of PCSOs. However, by virtue of the new subsection 9(1B) of the 1967 Act a police authority cannot use the services of contracted out PCSOs in the premises of any court or in land connected with such premises. Only non-court elements of PCSO functions can be contracted out.4. The specific powers of a PCSO are set out in section 9(1C) of the 1967 Act (as inserted by section 76(2) (b) of the 2003 Act). Section 9(1E) of the 1967 Act lists the duties of PCSOs. All these provisions were commenced on 27 June 2003 and can be accessed through the following link:
http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2003/30007--m.htm
Contracted out PCSO services
5. The chief constable of a police force must issue a certificate confirming his approval for the individual in question to perform PCSO functions. The certificate is required irrespective of whether the PCSO is employed directly by the police authority, or whether they are appointed under a contract for services.
6. PCSOs employed directly by the police authority and PCSOs appointed under a contract for services exercise the same powers (section 9(1C) of the 1967 Act) and are under the same duties (section 9(1E)) as each other, but the functions that may be carried out by those appointed through a contractor are more limited. As mentioned above, no PCSO appointed under a contract for services may exercise powers and duties in any court, or in land connected with court premises (section 9(1B)).
Use of reasonable force
7. A PCSO has power to use reasonable force, but may do so only where necessary, and to the extent necessary, whilst exercising his other powers. For example, a PCSO will be able to use reasonable force if necessary to conduct a non-intimate search of a person in legal custody. The force used should, however, be the least necessary in the circumstances. In no case must a person held in legal custody be harshly treated or have greater force used towards them than is absolutely necessary to restrain them. Unwarranted or unreasonable force may constitute assault.
8. The provisions in the 1967 Act by which chief constables are held liable for unlawful acts by constables have been extended to cover PCSOs. In consequence, to give another example, if a PCSO apprehends a person who was in legal custody but is unlawfully at large, and acts towards them with unnecessary force or harshness, the relevant chief constable may be held liable in damages to such a person (section 76(4) of the 2003 Act, amending section 39 of the 1967 Act).
The Certification Process
9. Section 9(1A) (b) of the 1967 Act, obliges the chief constable to certify individuals under their operational control and employed or appointed by the relevant police authority, as PCSOs. Section 9A governs the issue of such a certificate. A chief constable shall not issue a certificate to any PCSO unless they are satisfied that that person - (a) is a fit and proper person to carry out the relevant functions; and (b) has received adequate training in the carrying out of those functions. The same criteria apply to persons whether they are employed directly by the police authority or under a contract for services.
10. Assessing a person's suitability will involve checking the person's background. As well as applying existing force security and vetting policies which currently apply to police officers, special constables, existing police support staff, contractors etc, the principles of the Rehabilitation of Offenders Act 1974 are relevant. In this connection the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 No. 231 (which came into force on 29 March 2003) is of particular relevance given that it makes specific provision for PCSOs as an occupation where an employer or authorised body is generally entitled to ask and know about all previous convictions, both spent and unspent and to take them into account in assessing an individual's suitability for the work. The questioning must take place, however, in accordance with the terms of that Order.11. Assessing whether a person is capable of carrying out functions effectively is linked to the provision of training and ensuring that the person has received adequate training in the functions they are required to perform. Training is dealt with in a little more detail in paragraphs 33-38 of this guidance.12. No certificate can authorise or require conduct beyond the specified statutory powers and duties. However, a certificate may contain restrictions and conditions such as limitations on the use of powers and duties to a particular area or for a particular period.13. In relation to contracted out staff, we would advise that the certificate must cease if the certified person stops being an employee of the contractor or if the contract between the police authority and the contractor is terminated or expires. We consider that a chief constable can determine a fixed period for the certificate, which should be specified in the certificate, and which can be renewed at any time subject to the certificate ceasing as above or being withdrawn. This is not set out in the statute, but will represent best practice.14. Section 9A of the 1967 Act contains further provisions relating to the certification of PCSOs. Chief constables have the power to modify or revoke a certificate at any time. If a chief constable modifies, suspends or revokes the certificate of a contracted-out individual we would strongly advise them to notify the relevant contractor or employer immediately. This matter may in fact be covered in the contract for services.15. Where a certified PCSO relies on any power or duty in dealings with a member of the public, they should demonstrate best practice and endeavour to show that person any support staff identification card, if asked to do so. This is not, however, a statutory requirement.16. PCSOs certified by a chief constable can only exercise powers lawfully if they are readily identifiable as a PCSO. This requirement may be met by the PCSO visibly wearing a uniform endorsed by the chief constable (this might include a visible uniform number or other unique identifying number which proves their status as a PCSO but not their name).
Offences against PCSOs
17. Sections 76 (5) and (6) of the 2003 Act amend the 1967 Act and set out various offences relating to assaulting, obstructing or impersonating PCSOs. They parallel the provisions for offences relating to assaulting, obstructing or impersonating police officers contained in sections 41 and 43 of the 1967 Act respectively. In particular:
• it is an offence to assault a PCSO in the execution of their duty or to assault a person assisting a PCSO in the execution of their duty. It is also an offence to rescue or attempt to rescue, or assist or attempt to assist the escape of, any person in custody.
• it is an offence to resist or obstruct a PCSO in the execution of their duty or to resist or obstruct a person assisting a PCSO in the execution of their duty.
• it is an offence to impersonate or pose as a PCSO.
For completeness, PCSOs themselves will also clearly be acting unlawfully if they act outwith their powers.
Search
18. The right to respect for private life and home - and the right to peaceful enjoyment of possessions - are both safeguarded by the Human Rights Act 1998. Interference with these rights is only acceptable in certain circumstances. Powers of search may involve significant interference with the privacy of those persons who are searched and therefore need to be fully and clearly justified before they are used. In particular, PCSOs should consider at every stage whether the necessary objectives can be achieved by less intrusive means. In all cases PCSOs should exercise their powers courteously and with respect for the persons concerned. The possibility of using reasonable force to give effect to the power of search should only be considered where this is necessary and proportionate in all the circumstances.
19. The power to search a person must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination.
Scope of the search powers
20. Section 9(1C) (f) and (g) of the 1967 Act provides the power for PCSOs to search persons in legal custody, persons unlawfully at large, and - in certain premises - a PCSO can also search property, any person seeking access to a person in the PCSO's custody or to the premises in question, and anyone for whom he has reasonable grounds to believe is committing, or has committed, an offence.21. Where the power to search a person is exercised, the PCSO may - so far as the PCSO thinks necessary or expedient - carry out:
(a) a search of any article the person has with them; or
(b) a search of their person.
These powers must obviously be exercised having regard to the duties incumbent on PCSOs, which include attending to the well-being of persons in their custody.22. In order to exercise their search powers and duties PCSOs must take cognisance of and act in accordance with local force procedures as laid down by the relevant chief constable.23. If a PCSO is not readily identifiable as a PCSO, they cannot lawfully exercise their powers and they will not be regarded as acting in accordance with their duties (section 9(1F) of the 1967 Act). The 1967 Act does not prescribe the manner in which PCSOs are to be readily identified, but suggests that they may be regarded as such by the wearing of a uniform or a badge. Such a uniform should, we would suggest, include a visible uniform number or other unique identifying number which proves their status as a PCSO but not necessarily their name. The statute does not dictate this, but we would propose it as best practice.
Custody officers
24. The powers available to PCSOs engaged in detention duties, both police authority employed and contracted out personnel concern the handling of persons held in legal custody. While this is an area in which police support staff are increasingly involved, these powers will broaden the scope for PCSOs within custody suites and give their work a clearer basis in law.
25. A suitably certificated PCSO will be able to perform some or all the following functions:
Taking relevant physical data
26. Section 9(1C) (j) enables PCSOs, at a constable's direction, to photograph or take certain physical data from persons held in legal custody.
27. The detailed arrangements for taking relevant physical data should accord with local police policies and practice, as well as sections 18 (as amended by section 55 of the Criminal Justice (Scotland) Act 2003) and section 19 of the Criminal Procedure (Scotland) Act 1995.
Escort / Transfer of persons in legal custody
28. The powers available to PCSOs engaged in escort duties, both police authority employed and contracted out personnel, allow them to transport persons held in legal custody between certain premises. These premises are police stations, prisons and certain hospitals.
29. Where the PCSO escorts an individual under these provisions, the PCSO becomes responsible for ensuring that the person is treated in accordance with the common law duty of care and the relevant provisions of the Criminal Procedure (Scotland) Act 1995.30. In the exercise of these powers a PCSO is treated as having that person in their legal custody. The PCSO will be under a duty both to attend to their well-being whilst also preventing their escape. They will be entitled to use only force that is reasonable to keep that person in their charge.
Police Custody Suites
31. A PCSO might be involved in specialist prisoner handling. In this connection the Criminal Procedure (Scotland) Act 1995, which outlines the practices and procedures relating to the detention and arrest of people by the police and the care of individuals whilst in police custody, will be relevant.
"Officer of law"
32. Section 307(1) of the Criminal Procedure (Scotland) Act 1995 has been amended to include PCSOs in the definition of an "officer of the law". Accordingly PCSOs can serve documents and citations, or notices or intimations, subject to specific statutory provisions to the contrary, and in accordance with local force procedures.
Training
33. The form and content of PCSO training should be decided upon by the relevant chief constable in each area. Training courses should be developed to help PCSOs learn about the skills necessary to undertake the duties of a PCSO. This should be done on an inter-agency basis, where possible involving service users, possibly including the Scottish Prison Service, Primary Care Trusts, the State Hospital and the Scottish Police Service. Anyone undertaking roles set out in this guidance should be able to perform to the required level of competence, as defined by the chief constable. Training and development to enable a PCSO to achieve the required standards of competence will be similar to that provided to enable police staff to reach the same standards. Training needs should be identified through ongoing assessment in a personal development review. For example, the training needs of new PCSOs will be different to staff well established in the police service.34. It is suggested that training should be organised on 2 levels:-
· Basic awareness training;
· On-going operational and procedural training
35. Successful PCSOs should receive induction training in local operational and procedural matters before being used. On-going operational and procedural training might usefully take place at quarterly or 6 monthly intervals, and it should be a condition of employment or appointment as a PCSO that they must attend. The training programme provided should reflect the background and experience of the particular PCSO involved, and should be tailored to meet local needs and circumstances.36. Basic awareness training for PCSOs might cover the following points:-
§ This guidance
§ Legal context in which PCSOs can be used
§ Description of the role of the PCSO
§ Do's and Don'ts for PCSOs
§ PCSO safety training equivalent to the level of equipment they are furnished with
§ Description of role of a PCSO at police station, and other relevant settings
§ PCSOs and conflicts of interest
§ Police procedures for dealing with persons held in legal custody, including vulnerable adults
§ Police powers in relation to prints and samples
§ Non-intimate searches
§ Role of the police surgeon
§ Report writing and observation techniques
§ Recognition of terms i.e. suspect, accused, witness, and victim
§ Complaints procedure
37. Joint on-going training might include sessions on:-
§ Criminal Procedure (Scotland) Act 1995
§ Police procedures for dealing with persons held in legal custody
§ Understanding the needs and responses of people held in legal custody
38. The checklists set out above are illustrative only. The following background material might also be useful:-
§ Scottish Police College training material
§ Scottish Prison Service College training material
Handling of complaints/allegations of misconduct
39. Complaints against both police authority employed support staff and contracted out support staff should continue to be handled in the normal fashion.40. Consideration should be given to reflecting this in contractual arrangements with third parties. Furthermore, disciplinary processes must be agreed between the contractor and the chief constable.
Contact Points
41. For further copies of this Circular please contact:
Ian Fleming
Police Division
Scottish Executive
St Andrew's House
Regent Road
EDINBURGH
EH1 2DG
Tel: 0131 244 2149
Ian.Fleming@scotland.gsi.gov.uk
Yours faithfully
Annex
SECTION 76 OF THE CRIMINAL JUSTICE ( SCOTLAND ) ACT 2003
76 Police custody and security officers
(1) The Police (Scotland) Act 1967 (c.77) is amended as follows.
(2) In section 9 (civilian employees)-
(a) in subsection (1), the existing words from "employ" to the end become paragraph (a) and after that paragraph there is inserted the word "; or" and the following paragraph-
"(b) appoint for such purposes as such officers persons provided under a contract for services entered into by the authority with some other person";
(b) after that subsection there is inserted-
"(1A) The category of persons-
(a) so employed or appointed; and
(b) in respect of each of whom there is for the time being a certificate in force, certifying that he has been approved by the chief constable for the purposes of performing functions in relation to custody and security and is accordingly authorised to perform them for the police force,
shall be known as the police authority's "police custody and security officers".
(1B) Without prejudice to powers or duties which a police custody and security officer may have under or by virtue of any other enactment, for the purposes of the functions which he is authorised to perform by virtue of subsection (1A)(b) above, any such officer shall have the powers mentioned in subsection (1C) below and the duties mentioned in subsection (1E) below; except that no officer provided as is mentioned in subsection (1)(b) above shall have those powers and duties in the premises of any court or in land connected with such premises.
(1C) The powers are-
(a) to transfer persons in legal custody from one set of relevant premises to another;
(b) to have custody of persons held in legal custody on court premises (whether or not such persons would otherwise be in the custody of the court) and to produce them before the court;
(c) to have custody of persons temporarily held in legal custody in relevant premises while in the course of transfer from one set of such premises to another;
(d) to apprehend a person who was in the custody of the officer in relevant premises or in such course of transfer but who is unlawfully at large;
(e) to remove from relevant premises any person-
(i) who he has reasonable grounds to believe has committed or is committing an offence; or
(ii) who is causing a disturbance or nuisance;
(f) in any place to search any person who is in legal custody or is unlawfully at large;
(g) in relevant premises, or in any other place in which a person in his custody who is being transferred from one set of relevant premises to another is present, to search (any or all)-
(i) property;
(ii) any person who he has reasonable grounds to believe has committed or is committing an offence;
(iii) any person who is seeking access to a person in the officer's custody or to relevant premises;
(h) in relevant premises, or in any other place in which a person in legal custody is or may be, to require any person who he has reasonable grounds for suspecting has committed or is committing an offence to give his name and address and either-
(i) to remain there with the officer until the arrival of a constable; or
(ii) where reasonable in all the circumstances, to go with the officer to the nearest police station,
but only if before imposing any such requirement on a person the officer informs him of the nature of the suspected offence and of the reason for the requirement;
(i) in fulfilment of his duties under subsection (1E)(d) below, to apprehend any person and to detain that person in custody in the premises of the court in question;
(j) at a constable's direction, to photograph, or take relevant physical data from, any person held in legal custody; and
(k) to use reasonable force (which may include the use of handcuffs and other means of restraint) where and in so far as it is requisite to do so in exercising any of the other powers.
(1D) In subsection (1C) above-
"legal custody" has the meaning given by section 295 of the Criminal Procedure (Scotland) Act 1995 (c.46);
"relevant physical data" has the meaning given by section 18(7A) of that Act; and
"relevant premises" means-
(a) the premises of any court, prison, police station or hospital (within the meaning of the Mental Health (Scotland) Act 1984 (c.36)); or
(b) the premises of any other place from or to which a person may be required to be taken under that Act of 1984 or that Act of 1995,
and either (but not both) of the sets of premises mentioned in any of paragraphs (a), (c) and (g) of that subsection may be situated in a part of the British Islands outwith Scotland.
(1E) The duties are-
(a) to attend to the well-being of persons in their custody;
(b) to prevent the escape of such persons from their custody;
(c) to prevent, or detect and report on, the commission or attempted commission by such persons of other unlawful acts;
(d) to act with a view to preserving good order in the premises of any court and in land connected with such premises;
(e) to ensure good order and discipline on the part of such persons (whether or not in the premises of any court or in land connected with such premises); and
(f) to give effect to any order of a court.
(1F) A police custody and security officer is not to be regarded as acting in accordance with those powers and duties at any time when not readily identifiable as such an officer (whether or not by means of a uniform or badge worn).";
(c) in subsection (2), after the word "employed" there is inserted ", or appointed,"; and
(d) in subsection (3)-
(i) after the word "employed" there is inserted ", or appointed,"; and
(ii) after the words "by the authority" there is inserted "(not being police custody and security officers)".
(3) After section 9 there is inserted-
" 9A Certification of police custody and security officers
(1) A chief constable may, on the application of any person employed or appointed by his police authority, issue in respect of that person a certificate such as is mentioned in section 9(1A)(b) of this Act.
(2) The chief constable shall not do so unless satisfied that the applicant-
(a) is a fit and proper person to perform for the police force the functions of a police custody and security officer; and
(b) has received training to such standard as the chief constable considers appropriate for the performance of those functions.
(3) A certificate so issued shall, subject to any suspension under paragraph (a) of subsection (4) below or revocation under paragraph (b) of that subsection, continue in force until such date or occurrence as may be specified in the certificate.
(4) If at any time it appears to the chief constable that the person in respect of whom the certificate has been issued-
(a) may not be a fit and proper person to perform the functions of a police custody and security officer he may suspend (pending his consideration of whether to proceed under paragraph (b) of this subsection);
(b) is not a fit and proper person to perform those functions he may revoke, the certificate and such authorisation as it confers.
9B False statements in relation to certification
A person who, for the purpose of obtaining a certificate such as is mentioned in section 9(1A)(b) of this Act for himself or any other person-
(a) makes a statement which he knows to be; or
(b) recklessly makes a statement which is,
false in a material particular, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.".
(4) In section 39 (liability for wrongful acts of constables)-
(a) in subsection (1), after the words "any constable" there is inserted "or police custody and security officer";
(b) in subsection (4), after the words "Police Act 1997" there is inserted "or any police custody and security officer employed or appointed by them"; and
(c) at the end there is added-
"(8)[ a] This section is without prejudice to any obligation or indemnity arising by virtue of a contract entered into under section 9(1)(b) of this Act.".
(5) In section 41 (assaults on constables etc.)-
(a) in subsection (1)(a), after the word "constable" where it occurs for-
(i) the first time there is inserted "or police custody and security officer"; and
(ii) the second time there is inserted "or any such officer"; and
(b) in subsection (2), after the words-
(i) "custody of a constable" there is inserted "or police custody and security officer"; and
(ii) "assisting a constable" there is inserted "or any such officer".
(6) In section 43 (impersonation etc.)-
(a) in subsection (1)(a), after the word "constable" there is inserted "or police custody and security officer"; and
(b) in subsection (3), after the word "constables" there is inserted "or police custody and security officers".
(7) In section 44 (offences by constables)-
(a) in subsection (2), after the words "Any constable" there is inserted "or police custody and security officer";
(b) in subsection (3), after the words "Any constable" there is inserted "or any such officer"; and
(c) in subsection (4), after the words "a constable", in each of the two places they occur, there is inserted "or such an officer".
(8) In section 45 (warrant to search for police accoutrements and clothing), after the words "a constable" there is inserted "or a police custody and security officer".
(9) In section 51(1) (interpretation), at the appropriate place there is inserted-
""police custody and security officer" shall be construed in accordance with section 9(1A) of this Act;".
(10) In section 102(5) of the Criminal Justice and Public Order Act 1994 (c33) (compliance with warrants or orders), at the end there is added "or by a police custody and security officer in the performance of functions prescribed under section 9(1A)(b) of the Police (Scotland) Act 1967 (c.77)".
(11) In section 307(1) of the 1995 Act (interpretation), in paragraph (c) of the definition of "officer of law"-
(a) after the word "employed" there is inserted "or appointed";
(b) after the words "and who" there is inserted "either"; and
(c) at the end there is added "or is a police custody and security officer".