PCSOs: Have they been granted powers of arrest?

pcsos

by Rob Warner

 

If you don’t already know (as most people don’t), it is a criminal offence to walk away from a PCSO (Police Community Support Officer) when they have lawfully detained you. This offence is known as ‘making off’ and is provided by the Police Reform Act 2002. The act further provides PCSOs with the powers to detain members of the public (under clearly defined circumstances) for up to 30 minutes. Any longer than that and you can just walk away.

 

In most instances they will be detaining you to issue a fixed penalty notice or – in the case of teenagers – to have them surrender booze and fags. I won’t go into depth about the various circumstances in which a PCSO can ‘compel you to remain on the spot’ as they are long and varied as well as being subject to further provisions which confuses the issue greatly. Most PCSOs themselves don’t know what powers they have, so how can they ever expect the public to know? As a result most people wrongly assume PCSOs have more powers than they do.

 

What everyone seems to agree upon however is that PCSOs aren’t police officers (even though the words ‘police’ and ‘officer’ appear in their title) and they can’t make arrests (even though the Police Reform Act tells us differently). Therefore it seems odd that poorly trained and ill-equipped supplementary police staff have been given special powers of quasi-arrest – to detain you on the spot for up to 30 minutes – that not even uniformed, fully warranted police constables enjoy.

 

So the question remains: can a PCSO arrest you or can’t they? To answer that you would have to determine if there is a clear distinction between ‘detention’ and ‘arrest’…

 

According to well established case law, there isn’t one. There are plenty of legal definitions of arrest but none that I can find – outside of breach of the peace – that successfully defines a statutory detention as being unique to an arrest. For instance:

 

“A detention short of arrest for the purpose of dealing with an actual or reasonably apprehended breach of the peace is lawful”

Albert v. Lavin [1982]

 

“If a police officer, not exercising the power of arrest, detains a person in a way that goes beyond the acceptable conduct of an ordinary member of the public, that will be false imprisonment, as where he uses the threat, actual or implied, to use force if the other person does not comply.”

Walker v. Commissioner of the Police of the Metropolis [2014] EWCA Civ 897

 

“An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.”

Hussien v Chong Fook Kam; PC 7 OCT 1969

 

“‘Arrest’ is an ordinary English word. … Whether or not a person has been arrested is dependent not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases”

Spicer v. Holt [1977] AC 987

 

These are fairly well trodden authorities that mostly predate the Police Reform Act of 2002. But most tellingly of all is this judgement from 2011 that doesn’t even so much as hint at the statutory detention provided for by the Police Reform Act; if anything it goes completely against it:

 

“Parliament has no fixed language in relation to arrest; instead of using the expression “arrest” it may allow a constable to “apprehend,” “detain,” “seize and detain,” or “take into custody.” Pretty evidently, all these are synonyms for “arrest.” Even a statute using the word “detain” would not authorise an indefinite detention without bringing the prisoner before a magistrate. Nor would it authorise a detention without stating the reason for the arrest. Exceptionally, there is a group of statutes authorising the police to search for goods unlawfully possessed. Apart from these statutes, and a few other statutes of limited scope, every detention for questioning is a false imprisonment, unless it satisfies the rules for a valid arrest…”

Hayes V Merseyside Police CA 29 JUL 2011

 

 

So…have PCSOs been deceptively granted powers of arrest?

 

A few years ago, I got into a heated discussion about this with a group of solicitors. I pointed out that in the eyes of the law detention and arrest are one and the same thing (with the exception of breach of the peace). And yet we are assured that PCSOs do not have any powers of arrest. Therefore, the Police Reform Act attempts to confer upon PCSOs a power that they have no entitlement to.

 

I was willing to bet that any barrister, worth his or her salt, would be able to make mincemeat of this provision, and a conviction for ‘making off’ could be easily overturned on appeal. Furthermore, knowing that the CPS is staffed with barristers – whose job it is to decide whether or not to prosecute – they should be mindful of this and hesitant to prosecute. After all, they don’t want to go and set themselves an awkward precedent, that could result in one of two things, both of which would be undesirable:

 

Either:

 

A) They admit that we have all been misled, and that, yes, PCSOs do have the powers of arrest, but only for 30 minutes. Which makes them in effect, countdown cops. However they carry no warrant cards, have no police training, have no understanding of the law, carry no handcuffs or any of the necessary restraint tools or have any self-defence training.

Or

B) They government give them all the proper powers, training, warrant card and kit they need to make these 30 minute arrests.

 

Naturally my argument was dismissed by the solicitors as ‘over-stating my case’. I was then condescended with a patronising account of how parliament’s intentions to keep us stood in the cold for 30 minutes while a toy-town cop summonses the cavalry, should not be questioned by a mere pleb such as myself.

 

Flash forward to recent events.

 

While researching for a book I’m currently writing, I decided to make a Freedom of Information request to every police force in England and Wales to find out what powers they had conferred upon their respective PCSOs. While I was at it, I thought I would throw in the question of how many people they had arrested or charged for the offence of ‘making off’.

 

The results I got back were totally unexpected…

 

Not only did the vast majority of the forces have no such arrests on record, some of them didn’t even know the offence existed! One of the forces asked me if I happened to know what the Home Office code was that defined the offence so they could look it up. I didn’t, and further research discovered that no such code exists.

 

So I turned to the CPS (Crown Prosecution Service). I asked them to provide me with details of how many people had been prosecuted in the courts for the offence of making off. Their answer?…

 

In the whole period of 2015 – 2016 only 3 people were prosecuted. Among a population of over 64 million people.

 

Strangely, the CPS held no data on whether or not those unlucky three had subsequently been found guilty. Which leads me to believe that it wasn’t the CPS themselves that brought the prosecutions. It was the police.

 

Knowing how vindictive and gung-ho the police are when it comes to dragging people through the courts for paltry offences, it wouldn’t surprise me if they sought no prior advice whatsoever from the CPS before charging (who would surely have advised them against it) and went ahead with the prosecutions anyway.

 

Either way, these incredibly low prosecution figures for what must surely be a common occurrence – whereby people in the street refuse to accept that PCSOs have any authority to detain them and simply walk off – again led me to one of two conclusions…

 

Either:

 

A) Contrary to what the police would have us believe, Britain and it’s people are in fact incredibly law abiding, and will happily stand for as long as is required to be ticketed or berated by anyone in uniform.

Or

B) When you walk away from a PCSO there’s bugger all they can do (or are prepared to do) about it.

 

Quite frankly, if I was on a PCSOs wage and tossed into a high street full of trouble without a single piece of armour, I know which one I’d stake my chances on.

 

Other than that, I’ll let you decide.

 

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