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.