Criminal Law Legislation Update: As at 10 January 2019

Use of Force Policy

Under s. 2, all mental health units (as defined by s. 1(3) of the Act) must appoint a ‘responsible person’ for the unit for the purposes of the Act. The responsible person must be employed by the relevant health organisation and be of an appropriate level of seniority. One responsible person can be appointed for a number of mental health units operated by a single organisation.

The responsible person for each mental health unit must, after consultation with any appropriate person(s), publish a policy regarding the use of force by staff who work in the unit. The responsible person must keep the policy under review and can revise the policy from time to time, providing that any substantial revisions have first be consulted on by any appropriate person(s). The policy must set out what steps will be taken to reduce the use of force in the mental health unit by staff who work in that unit—s. 3.

The responsible person must publish information for patients about their rights in relation to the use of force by staff working in the unit, after consultation with those persons deemed appropriate to consult with. The published information must be provided to each patient (unless the patient refuses it) and any other person considered appropriate to provide it to. The responsible person must take all reasonably practicable steps to ensure that the patient is aware of the information and understands it, he/she must keep the information under review, and may revise the information from time to time, after consultation with appropriate person(s)—s. 4.

Section 5 provides that the responsible person must provide training for relevant staff who work in the unit. The training must include: how to involve patients in the planning, development and delivery of care and treatment in the mental health unit; showing respect for patients’ past and present wishes and feelings; showing respect for diversity generally; avoiding unlawful discrimination, harassment and victimisation; the use of techniques for avoiding or reducing the use of force; the risks associated with the use of force; the impact of trauma (whether historic or otherwise) on a patient’s mental and physical health; the impact of any use of force on a patient’s mental and physical health; the impact of any use of force on a patient’s development; how to ensure the safety of patients and the public; and the principal legal or ethical issues associated with the use of force. The training must be provided for existing staff members as soon as reasonably practicable after the Act comes into force, and for new members of staff, as soon as reasonably practicable after they commence work at the unit. Refresher training, that is, updates or supplements to the original training, must be provided at regular intervals.

Under s. 6, the responsible person must keep a record of any use of force by staff who work in that unit. This does not apply if the use of force is ‘negligible’ (s. 6(2)) and this is determined according to guidance published by the Secretary of State. The records must include: the reason for the use of force; the place, date and duration of the use of force; the type or types of force used on the patient; whether the type or types of force used on the patient formed part of the patient’s care plan; name of the patient on whom force was used; a description of how force was used; the patient’s consistent identifier; the name and job title of any member of staff who used force on the patient; the reason any person who was not a member of staff in the mental health unit was involved in the use of force on the patient; the patient’s mental disorder (if known); the relevant characteristics of the patient (if known); whether the patient has a learning disability or autistic spectrum disorders; a description of the outcome of the use of force; whether the patient died or suffered any serious injury as a result of the use of force; any efforts made to avoid the need to use force on the patient; and whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan (s. 6(5)). The record must be kept for three years from the date on which it was made (s. 6(6)).

In accordance with s. 7 of the Act, at the end of each year, statistics must be published by the Secretary of State regarding the use of force by staff who work in mental health units. This must include an analysis of the relevant information recorded by the responsible person under s. 6 of the Act. Under s. 8, as soon as reasonably practicable after the end of each calendar year, the Secretary of State must also conduct a review of any reports under Sched. 5, para. 7 of the Coroners and Justice Act 2009, relating to the death of a patient as a result of the use of force by staff in a mental health unit, and may conduct a review of any other findings relating to the death of a patient as a result of the use of force.

Police Body Cameras

Under s. 12, if a police officer is going to a mental health unit on duty that involves assisting staff who work in that unit, the officer must take a body camera, if reasonably practicable to do so (s. 12(1)). While there, he/she must wear the camera and keep it operating at all times when reasonably practicable (s. 12(2)), except if there are special circumstances where it is justified not to wear and/or operate it (s. 12(3)). There is no criminal or civil liability for failing to comply with this section but if the requirements appear to the court or tribunal to be relevant to any question arising in criminal or civil proceedings, they must be taken into account when determining that question (ss 12(4) and (5)).

Emergency Workers

Section 3 of the Act states that an ‘emergency worker’ means: a constable; a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes; a National Crime Agency officer; a prison officer; a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution (see s. 3(3)) of a corresponding kind to those carried out by a prison officer; a prisoner custody officer, so far as relating to the exercise of escort functions; a custody officer, so far as relating to the exercise of escort functions; a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services; a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both); a person employed for the purposes of providing, or engaged to provide—(i) NHS health services, or (ii) services in the support of the provision of NHS health services, and whose general activities in doing so involve face-to-face interaction with individuals receiving the services or with other members of the public. It does not matter, for the purposes of the Act, whether the employment or engagement is paid or unpaid (s. 3(2)).

Aggravated Offence

Section 1 applies to the offences of common assault and battery committed against an emergency worker acting in the exercise of their functions as such a worker (s. 1(1)). This includes circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker (s. 1(3)). In such circumstances, the offence is ‘aggravated’ and a person guilty of such an offence is liable to imprisonment not exceeding 12 months, or to a fine or both on conviction summarily or on indictment. The section applies to offences committed on or after the day the Act comes into force (s. 1(6)).

Aggravating Factor

Section 2 applies where the court is considering the seriousness of a listed offence committed against an emergency worker acting in the exercise of functions as such as worker (s. 2(1)). Again, this includes circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker (s. 2(4)). The offences listed in the section are:

an offence under any of the following provisions of the Offences against the Person Act 1861—(i) section 16 (threats to kill); (ii) section 18 (wounding with intent to cause grievous bodily harm); (iii) section 20 (malicious wounding); (iv) section 23 (administering poison etc); (v) section 28 (causing bodily injury by gunpowder etc); (vi) section 29 (using explosive substances etc with intent to cause grievous bodily harm); (vii) section 47 (assault occasioning actual bodily harm);

Where the section applies, the court must treat the fact that the offence was committed against an emergency worker acting in the exercise of his/her functions as an aggravating factor, that is, one that increases the sections, and must state in open court that the offence is so aggravated (s. 2(2)).

The Prohibition

Section 1(1) of the Act prohibits ‘dealing’ in ivory, that is, (a) buying, selling or hiring it; (b) offering or arranging to buy, sell or hire it; (c) keeping it for sale or hire; (d) exporting it from the UK for sale or hire; importing it into the United Kingdom for sale or hire (s. 1(2)). Ivory includes an item made of ivory and an item that has ivory in it (s. 1(5)).

Exceptions

Sections 2 and 6–9 provide exceptions to the prohibition. Section 2 covers pre-1918 items made or containing ivory which are of outstanding artistic value and importance and for which the Secretary of State has issued an exemption certificate. Section 3 provides the process for applying for an exemption certificate and the information to be provided, and s. 4 explains what must be contained within the exemption certificate, if granted.

Section 6 exempts pre-1918 ivory portrait miniatures with a surface care of no more than 320 cm² which have been registered under the provisions of s. 10 of the Act. Section 7 exempts pre-1947 items where all the ivory contained in it is integral to the piece, the volume of ivory is less than 10% of the total volume of material making the item, and the item is registered under s. 10. Section 8 exempts a pre-1957 ivory musical instrument whether the volume of ivory in the instrument is less than 20% of the total volume of material making the instrument, and the instrument is registered under s. 10. Section 9 exempts the dealing in ivory if it is a sale, purchase or hire by or for a qualifying museum. Again, the item must be registered under s. 10.

The Offence

Under section 12(1) of the Act, it is an offence to breach the prohibition, to cause the prohibition to be breached or to facilitate a breach of the prohibition. The offence is only committed if the person knows or suspects, or ought to know or suspect, that the item is ivory, is made of ivory or has ivory in it (s. 12(2)). It is a defence for a person charged with an offence under this section, to prove that they took all reasonable precautions and exercised all due diligence to avoid committing the offence (s. 12(3)). Anyone found guilty of an offence under this section is liable on summary conviction, to imprisonment not exceeding 12 months or a fine or both, and or conviction on indictment, to imprisonment not exceeding five years, or a fine or both (s. 12(4)).

Police Powers

Where police officers or customs officers have reasonable grounds to suspect that a person has committed or is committing a relevant offence, the officer may search the person for relevant evidence, and may stop and detain the person for the purposes of the search (s. 14). Where a police or customs officer has reasonable grounds to believe that there is relevant evidence in a vehicle and the vehicle is not a dwelling, the office may enter the vehicle and search it for relevant evidence, and may stop and detain the vehicle for the purpose of entering and searching it (s. 15). Section 16 creates powers for police and customs officers to board and search vessels and aircraft for relevant evidence, and s. 17 allows justices to issue search warrants for similar purposes, where specified conditions are met. Section 19 permits police or customs officers to examine any item found as a result of a search power. Section 20 provides that a police or customs officer may require any person on the premises being searched to produce any document or record in the person’s possession or control which is likely to be relevant. Section 21 provides officers, among other things, with the power to seize and detain anything found during a search.