draft Policing (Miscellaneous Provisions) (NI) Order 2007 – the small print

One of the two NIO ministers named as part of Peter Hain’s campaign team, Security Minister Paul Goggins announces a 7 week consultation period on yet another Order in Council. This time it’s on policing – the “draft Policing (Miscellaneous Provisions) (NI) Order 2007”[pdf file]. Ostensibly on the introduction of Police Community Support Officers (PCSOs) throughout Northern Ireland, a move I’m not entirely sold on, the Order also contains some other admissions and amendments to legislation – contained in explanatory notes[pdf file]. there’s “an acute shortage of detective constables”.. and the police want what could be described as a fishing licence.From the NIO statement [added emphasis throughout]

Notes for Editors

1.The proposed Policing (Miscellaneous Provisions) (Northern Ireland) Order 2007 includes provisions for:

a) providing further opportunities for PSNI to civilianise posts, by way of: extending, in line with GB, the range of powers and duties otherwise available to police officers by way of designation to Investigating Officers, Detention Officers and Escort Officers; and introducing two new categories of designated civilian, namely Staff Custody Officers and Police Community Support Officers;

b) streamlining the police trainee recruitment process to allow PSNI to make provisional police trainee appointments, subject to the satisfactory completion of medical tests and security vetting;

c) changing the recruitment procedures for police support staff in line with those proposed for police trainees; and including a power to allow us to bring forward regulations providing for the requirement that designated civilians should be vetted to the same standard as police trainees;

d) the reintroduction of legislative provisions to enable PSNI to address an acute shortage of detective constables by way of the recruitment of experienced constables with the required skills from other forces;

e) the Police Ombudsman to make application to the DPP to allow for the re-investigation of police officers previously acquitted of a qualifying offence where new evidence has been obtained. The Criminal Justice Act 2003 provides for application to be made to the DPP by the Chief Constable to allow him to re-investigate persons acquitted of a qualifying offence where new evidence has been obtained i.e. the Double Jeopardy rule. However, where that person is a police officer the proper investigative authority is the Police Ombudsman. Equivalent provision for the Police Ombudsman was unfortunately overlooked whenever the Criminal Justice Act was being drafted, therefore these provisions will rectify that position by introducing a new Section 86A to the Criminal Justice Act 2003;

f) the police to wholly or partly close or divert roads or prohibit or restrict the use of a road or waterway, if considered necessary for the preservation of the peace or the maintenance of public order; and

g) the police to examine documents and electronic records in order to establish whether or not they contain evidence that someone has committed or is preparing to commit serious crime.

2.In order to meet the legislative timeframe it has been necessary to shorten the consultation period to 7 weeks. We have also taken on board that some of the provisions within the Order are being consulted on separately, for instance, the Policing Board has commenced its own consultation process with local District Policing Partnerships, local council representatives and police commanders regarding our proposed introduction of Police Community Support Officers.

3.The Explanatory Notes to the Order will provide Editors with specific details of the legislative proposals.

4.The consultation will run for 7 weeks from Monday 4 December. A wide range of interested parties will be consulted between now and Monday 22 January 2007.

And from the Explanatory Memorandum[pdf file]

Appointment of Constables with Special Skills

These provisions reintroduce legislative provisions to enable PSNI to address an acute shortage of detective constables by way of the recruitment of experienced constables with the required skills from other police forces.

25. These provisions will specifically reintroduce Section 23 of the Police (NI) Act 2003 allowing for the appointment of constables who have a specified policing skill, namely the recruitment of experienced detective constables from other police forces. In this regard the provisions will also allow derogation for these appointments from the normal police recruitment process.

26. There are currently 97 vacancies at Detective Constable level which the PSNI is keen to fill. Both the Policing Board and Chief Constable are pressing for these provisions to be brought forward as a matter of urgency.[added emphasis]

and on the other matter

We are also proposing provisions for the police to examine documents and electronic records in order to establish whether or not they contain evidence that someone has commited or is preparing to commit serious crime.

35. These provisions will provide police with the power to examine documents and electronic records in order to establish whether or not they contain evidence that someone has committed or is preparing to commit serious crime. Police will be able to take documents and records away for further examination for up to 48 hours (extendable to 96 hours) if that is necessary. This power is needed because of the increasingly sophisticated nature of serious crime.

36. The evidential value of a document or electronic record may not be immediately apparent and an item cannot be seized as evidence under the Police and Criminal Evidence (Northern Ireland) Order 1989 unless the police officer has reasonable suspicion that it is evidence and its retention is necessary. For example, a document or record may require translation from a foreign language before a police officer can make a judgement about its evidential value. These provisions will enable this work to be carried out.

37. These provisions will also create appropriate safeguards to protect the rights of the public. As well as the time limit on the retention of documents, items believed to be subject to legal privilege are exempted from examination and a record must be made of any examination.

38. The PSNI is also keen to have these provisions in place, and this draft order provides a suitable opportunity for bringing them forward.

If I’m not entirely convinced on the PCSOs, I’m certainly not convinced of the need for police having the power to seize and remove documents and electronic records on the off-chance they might find evidence there.

As the Explanatory Memo says, “an item cannot be seized as evidence under the Police and Criminal Evidence (Northern Ireland) Order 1989 unless the police officer has reasonable suspicion that it is evidence and its retention is necessary”. This Order wants to grant police the power to seize documents and electronic records in a situation where that condition of reasonable suspicion does not apply.

The draft Order reads

8 Police powers to examine documents or records
13.(1) A constable who performs a lawful search of any premises or person—
(a) may examine any document or record found in order to ascertain whether it contains information relating to the commission or proposed commission of serious crime; and
(b) if necessary or expedient for the purpose of sub-paragraph (a), may remove the document or record to another place and retain it there until the examination is completed.
(2) Paragraph (1) shall not permit a person to examine a document or record if he has reasonable cause to believe that it is an item subject to legal privilege.
(3) Where the document or record examined under paragraph (1)(a) is stored in any electronic form, the constable may require it to be produced in a form in which it can be removed under paragraph (1)(b) and in which it is visible and legible or from which it can readily be produced in a visible and legible form.
(4) Subject to paragraphs (5) and (6), a document or record may not be retained by virtue of paragraph (1)(b) for more than 48 hours.
(5) A police officer who is of at least the rank of chief inspector may authorise a constable to retain a document or record for a further period or periods.
(6) Paragraph (5) does not permit the retention of a document or record after the end of the period of 96 hours beginning with the time when it was removed for examination under paragraph (1)(b).
(7) Where a document or record is examined under this Article
(a) it shall not be photographed or copied, and
(b) the person who examines it shall make a written record of the examination as soon as is reasonably practicable.
(8) The record shall—
(a) describe the document or record,
(b) specify the object of the examination,
(c) state the address of the premises where the document or record was found,
(d) where the document or record was found in the course of a search of a person, state the person’s name,
(e) where the document or record was found in the course of a search of any premises, state the name of a person appearing to the person making the record to be the occupier of the premises or to have had custody or control of the document or record when it was found,
(f) where the document or record is removed for examination from the place where it was found, state the date and time when it was removed; and
(g) where the document or record was examined at the place where it was found, state the date and time of examination;
(h) identify the constable by whom the examination was carried out by reference to his police number, and
(9) Where a person makes a record of a search in accordance with this Article, he shall as soon as is reasonably practicable supply a copy—
(a) in a case where the document or record was found in the course of a search of a person, to that person, and
(b) in a case where the document or record was found in the course of a search of any premises, to a person appearing to the person making the record to be the occupier of the premises or to have had custody or control of the document or record when it was found.
(10) In this Article
“item subject to legal privilege” and “premises” have the same meanings as in the Police and Criminal Evidence (Northern Ireland) Order 1989(NI 12)).
“serious crime” has the meaning given by section 85(2) and (3) of the Regulation of Investigatory Powers Act 2000 (c.23);
“document or record” includes a document or record stored in any electronic form.

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  • Nevin

    Pete, elsewhere in the UK they appear to use the term Police Community Support Officer whereas, in this Order, the term ‘police’ has been dropped.

    “… only when he is wearing such uniform as may be—
    (a) determined or approved for the purposes of this section by the Chief Constable; and
    (b) identified or described in the designation.”

    Does this mean the CSOs will neither look like nor be called police officers?

  • Pete Baker

    Nevin

    I think you might be in danger of seeing something that isn’t actually there – from the Order

    Community support officers
    7.(1) The 2003 Act is amended as set out in subsections (2) to (8).

    (2) After section 30 insert

    “Community support officers

    30A. (1) The Chief Constable may designate a member of the police support staff as a community support officer..”

    And in Interpretation 2. “(2) In this Order “the 2003 Act” means the Police (Northern Ireland) Act 2003″

    I suspect there may be other more pressing issues arising from the Order.

  • Nevin

    Pete, why do you suppose Hain might have dropped the police tag?

  • Pete Baker

    Nevin

    I don’t think the Order does drop the police tag in the manner you suggest – see previous post.

  • Nevin

    Pete, you can do a PCSO and a CSO search of the pdf file.

  • Pete Baker

    Nevin

    The PDF file is the Order – which refers to amendments to the Police (Northern Ireland) Act 2003 – the actual NIO statement clearly refers to PCOSs.

    And, as the title of this post indicates, my focus is more on the small print included in the Order.

  • Darren

    I have to agree with SF that policing powers should be devolved to Stormont and that MI5 should have no role.

  • Pete Baker

    Well, thanks for sharing that, Darren… and on the actual topic?

  • joeCanuck

    The fishing expedition bit does worry me somewhat Pete.
    There is some protection in that they have to be carrying out a legal search.
    But to carry away the original documents is wide open to tampering (the police wouldn’t tamper with evidence, would they?)
    They should be required to bring in a photocopier and just make copies.
    If the originals then disappear they’ll just have to convince a judge that the copies are true copies.

  • Pete Baker

    They’re also referencing electronic records, joe – which might be a overly-wide defintion.

    My point was, though, that if there was reasonable suspicion they already have the power to seize those items.

  • Pete Baker

    And there’s the admission that there is an acute shortage of detective constables.

  • joeCanuck

    Indeed pete.
    I’m not sure how it works over there.
    Here you have to be specific before you can get a search warrant – your honour, we’re looking for a gun. Your honour, we have evidence that this person has been looking at child pornography on the internet and we want to seize his computer.
    Not sure exactly how it works in Canada (most of out TV police shows come from the USA), but in the USA even though the evidence you are looking for is specified, other illegal substances can also be seized, but only if they are in plain sight.

  • Pete Baker

    From what I can see in the legislation, joe, there’s no connection between the original search warrant, which still must be obtained legally, and any resultant charges.. which would seem to leave third parties open to inclusion in those charges through electronic records..

  • Nevin

    Pete, my focus is the probable official role to be given to paramilitaries in community policing. Dropping the police tag looks like another side-deal between the governments and Sinner movement. It’s one that will probably be welcomed by paramilitary godfathers of all hues.

  • sevenmagpies

    Nevin,

    The UK legislation has exactly the same wording as used in the NI amendment; a civilian who supports the police in this particular role is designated as a “community support officer” (Police Reform Act 2002, part 4, 38.2 (a)).

    Hopefully that clears up your concern.

  • Nevin

    7m, can you provide examples from this reference for the use of the CSO or PCSO acronyms?

  • sevenmagpies

    “can you provide examples from this reference for the use of the CSO or PCSO acronyms”

    The legislation in both the UK and NI calls them “community support officers”. No secret sinner side deals for you to panic about at all.

    They are more popularly known as “police community support officers” because they are people from the “community” who “support” the “police”.

    And what?

  • Nevin

    So you were unable to supply examples of the use of these acronyms, 7m.

    CSO is the term used in the NI legislation whereas PCSO is the term used by, amongst others, the Home Office and the Metropolitan Police.

    Panic?????

  • sevenmagpies

    “So you were unable to supply examples of the use of these acronyms, 7m”

    Why would I bother?

    I have explained – twice – that the legislation is exactly the same in northern ireland as it is the uk. I have explained the difference between legislative terminology and popular nomenclature.

    The fact you are still banging on about it is clear evidence that you are panicked about something. If you really think it’s that desperately important (more important even than greatly increased powers of search and seizure), why not write to the nio and demand that they use the acronym pcso in all their literature, lest the heavens fall …

  • Nevin

    Chill, 7m. CSO is used in the NI legislation but not in the other legislation so they’re not exactly the same.

    The two governments have a history of appeasing the paramilitary godfathers so that’s why it’s important to pay a little attention to the small print.

  • sevenmagpies

    “CSO is used in the NI legislation but not in the other legislation so they’re not exactly the same.”

    That small print, one more time, from the ‘other legislation’:

    Police Reform Act 2002

    Part 4, 38.2:

    (a) community support officer.

    Exactly the same as the NI version. Do you see?

  • sevenmagpies

    “the police to examine documents and electronic records in order to establish whether or not they contain evidence that someone has committed or is preparing to commit serious crime.”

    This seems to be geared towards fighting ‘islamic terrorism’ – all about finding documents they can’t read and panicking about whether or not they are secret plans to assassinate the secretary of state.

    Because of course people leave secret plans lying around all the time.

  • Nevin

    And funnily enough no mention of CSO, 7m. I suppose time will tell whether or not our CSOs are the equivalent of the PCSOs across the water.

    Let’s hope our politicians and commentators can deter the two governments from issuing baseball bats with blue flashing lights.

  • sevenmagpies

    “And funnily enough no mention of CSO, 7m.”

    Perhaps they felt everyone would understand who they were talking about in a section headed:

    POWERS EXERCISABLE BY POLICE CIVILIANS
    PART 1
    COMMUNITY SUPPORT OFFICERS

    But feel free to tell them you don’t quite follow the wording.

    “I suppose time will tell whether or not our CSOs are the equivalent of the PCSOs across the water.”

    You mean like on the Home Office “community support officers” page?

  • Nevin

    You’re getting there ever, ever so slowly, 7m. But maybe government appeasement of paramilitarism isn’t one of your priorities

    “Police Community Support Officer (PCSO)” [cf CSO in NI legislation]

  • sevenmagpies

    “But maybe government appeasement of paramilitarism isn’t one of your priorities”

    You have yet to demonstrate that this is what happened in relation to this legislation, given that the term “community support officer” is used in the legislation of both jurisdictions.

    Have you even looked at the home office community policing page yet?

  • Nevin

    “You have yet to demonstrate”

    Oh, dear. There are none so blind … And yes the link comes from the Home Office site.