1. Security protective marking

1.1. Not protectively marked.

2. Summary of changes

2.1. The following changes have been made to this policy on 08 March 2010:

• amendment to paragraph 4.1. due to the Policing and Crime Act 2009 amending the Violent Crime Reduction Act 2006. 

2.2. This policy is scheduled for review in January 2012.

3. Application

3.1. This policy applies to police officers in a position to enforce the legislation.

4. Purpose 

4.1.  The Violent Crime Reduction Act 2006 has been amended by the Policing and Crime Act 2009. Constables may now give direction to an individual aged 10 years or over (previously 16 years or over) to leave a locality if they represent a risk of disorder. This came into force on the 29 January 2010. The direction will prohibit their return to that locality for a specified period not exceeding 48 hours.

3.2.  The power should be used proportionately, reasonably and with discretion in circumstances where it is considered necessary to prevent the likelihood of alcohol related crime or disorder. The aim of the power is to prevent alcohol related crime or disorder arising taking place.

3.3.  This is an effective early intervention tactic; however, consideration should be given to the local community and risk of displacement.

3.4.  These powers support other powers and tools for the police and other partners to use to help address the problems of alcohol misuse. Like many tools aimed at tackling this problem, they are less effective when used in isolation and are likely to be most effective when used as part of an integrated partnership response to reducing the likelihood of alcohol-related crime or disorder taking place.

5. Power of direction

 
5.1.  Section 27 of the Act specifies when and how a direction may be given. It states: 27(1) If the test in subsection (2) is satisfied in the case of an individual aged 16 or over who is in a public place, a constable in uniform may give a direction to that individual:

(a) requiring him/her to leave the locality of that place; and
(b) prohibiting the individual from returning to that locality for such period (not exceeding 48 hours) from the giving of the direction as the constable may specify.

5.2. Section 27(3) A direction under this section:
(a) must be given in writing;
(b) may require the individual to whom it is given to leave the locality in question either immediately or by such time as the constable giving the direction may specify;
(c) must clearly identify the locality to which it relates;
(d) must specify the period for which the individual is prohibited from returning to that locality;
(e) may impose requirements as to the manner in which that individual leaves the locality, including his/her route; and
(f) may be withdrawn or varied (but not extended so as to apply for a period of more than 48 hours) by a constable.

5.3. Section 27 (5) A constable who gives a direction under this section must make a record of:
(a) the terms of the direction and the locality to which it relates;
(b) the individual to whom it is given;
(c) the time at which it is given;
(d) the period during which that individual is required not to return to the locality.

5.4. Section 27(6) A person who fails to comply with a direction under this section is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

6. Definitions 

6.1.  Public place (Section 27(8) “public place” means

(a) a highway; or

(b) any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; and for this purpose “place” includes a place on a means of transport.

6.2.  Constable in uniform - any person holding the office of constable (whilst in uniform) and therefore means a police officer of any rank.

7. The test to be applied 

7.1.  Section 27(2) of the Violent Crime Reduction Act 2006 provides for an explicit test that applies when a constable in uniform decides to give a direction to leave. The test is:

(a) that the presence of the individual in that locality is likely, in all the circumstances, to cause or to contribute to the occurrence of alcohol-related crime or disorder in that locality, or to cause or to contribute to a repetition or continuance there of such crime or disorder; and

(b) that the giving of a direction to that individual is necessary for the purpose of removing or reducing the likelihood of there being such crime or disorder in that locality during the period for which the direction has effect or of there being a repetition or continuance in that locality during that period of such crime or disorder.

7.2.  The test is designed to ensure that a direction to leave can only be given if the presence of an individual in the relevant locality is likely, in all the circumstances, to cause or contribute to the occurrence of alcohol-related crime or disorder in that locality, or to a repetition or continuance there of such crime or disorder. The constable in uniform also has to be satisfied that such a direction is therefore necessary for the purpose of removing or reducing the likelihood of there being such crime or disorder in that locality during the period for which the direction has effect, or of there being a repetition or continuance in that locality during that period of such crime or disorder.

7.3.  The two elements of the test therefore jointly seek to ensure that a direction to leave should not be imposed by a constable in uniform unless it is absolutely necessary. This test requires the constable to exercise appropriate discretion and judgement in respect of any situation on a case-by-case basis. 

7.4.  The direction prohibits the individual from returning to that locality for a specified period not exceeding 48 hours. So it would not only be the immediate likelihood of alcohol-related crime or disorder that would have to be considered by the constable but the likelihood within a 48-hour period. However, the maximum 48-hour period should not be imposed as a matter of course or where a shorter ban would achieve the aim of preventing alcohol-related crime or disorder. A constable should therefore always consider the shortest period that would achieve the desired aims.

 

8. Defining the locality 

8.1.  A constable of any rank can decide on the locality in respect of which a direction to leave can be given and there is no requirement to formally designate a locality. The locality must be clearly identified in writing when the direction is given.

8.2.  In response to a spontaneous outbreak or threatened outbreak of alcohol-related crime or disorder the locality where the power may be used could, for example, be the area in or around particular licensed premises, a geographical area including one or more licensed premises, or any other area defined by the constable.

8.3.  In cases where the directions to leave may be given in anticipation of the likelihood of alcohol-related crime or disorder, it is recommended that a police officer with operational responsibility for the area decides on the defined parameters of the locality. In Kent, this will be decided by an officer of the rank of Inspector or above.

8.4.  The locality from which a person may be directed to leave could constitute the centre of a town or city or a particular area with a high density of licensed premises. It could equally be an area that is already the subject of a Designated Public Places Order (refer to sections 12–16 of the Criminal Justice and Police Act 2001 as amended by section 26 of the Violent Crime Reduction Act 2006). The direction power could also be used as part of the overall plan for policing temporary events.

8.5.  In deciding on the size of the area from which directions to leave are to be given, it is important to consider practical issues such as ease of enforcement. Whatever the area decided on, it is important that the individual in receipt of the direction to leave is fully aware of the area that they are excluded from entering. 

8.6.  The locality should not normally exceed 2 or 3 streets or a specified geographic area (for example a park, fairground or festival site) unless authorised by an officer of the rank of Inspector or above. A rationale to justify the decision to extend the specified area will be recorded by the authorising officer.

8.7.  There is nothing in section 27 of the Violent Crime Reduction Act 2006 that prevents directions to leave being given to more than one individual. If a group’s behaviour represents a likelihood of causing or contributing to the occurrence, repetition or continuance of alcohol-related crime or disorder, directions to leave can be given to the group. However, a constable would need to give each member of the group a separate written direction to leave, recognizing the need to avoid displacing potential problems arising from the group.

8.8.  If there are areas where members of the public have suffered intimidation, harassment, alarm or distress due to the presence of groups, and where anti-social behaviour is a significant and persistent problem, then consideration should be given to the use of powers under Part 4 of the Anti-Social Behaviour Act 2003 rather than a direction to leave.

9. Direction to leave from licensed premises 

 
9.1.  A police constable may give an individual a direction to leave from relevant premises (as defined in section 159 of the Licensing Act 2003) or once an individual has been expelled from relevant premises. Such relevant premises include:

• licensed premises (any premises in respect of which a premises licence has effect, which includes not just premises selling alcohol but, for example, a concert hall, theatre or cinema or take away);
• premises in respect of which there is in force a club premises certificate (for example a working men’s or sports club); and
• premises which may be used for a permitted temporary activity by virtue of Part 5 of the Licensing Act 2003 (a place in respect of which a temporary event notice has been given authorising any licensable activities, for example a warehouse or open space used for a rave for less than 500 people.

9.2.  In using the direction to leave in this way the constable will liaise with the staff of the premises and ensure that any action taken is consistent with the powers under section 143 of the Licensing Act 2003 on failure to leave licensed premises. Section 143 provides that a person who is drunk or disorderly commits an offence if he fails to leave relevant premises at the request either of a police constable or of certain other persons set out in section 143(2) of the Licensing Act 2003 (for example authorised members of staff or the licence holder).

9.3.  Section 143 also provides that a person who is drunk and disorderly commits an offence if he/she enters (or tries to enter) premises when asked not to do so by a police constable or other person set out in section 143(2) of the Licensing Act 2003. Section 143 provides that a police constable must help to expel drunk or disorderly individuals from relevant premises, or help to prevent them entering as the case may be, if requested to do so. It may therefore be appropriate for the individual to be expelled from the relevant premises and then be given a direction to leave the locality.

9.4.  Under section 89(2) of the Police Act 1996, any person who resists or wilfully obstructs a constable in the execution of his/her duty shall be guilty of an offence and liable on summary conviction to imprisonment or a fine or both.

10. When a direction should not be given 

10.1.  Section 27(4) A constable may not give a direction under this section that prevents the individual to whom it is given:

(a) from having access to a place where he/she resides;
(b) from attending at any place which he/her is required to attend for the purposes of any employment of his or of any contract of services to which he/she is a party;
(c) from attending at any place which he/she is expected to attend during the period to which the direction applies for the purposes of education or training or for the purpose of receiving medical treatment; or
(d) from attending at any place which he/she is required to attend by any obligation imposed on him/her by or under an enactment or by the order of a court or tribunal.

 

11. Enforcement 

11.1.  Enforcing a direction is essential if this power is going to be effective at minimising the likelihood of alcohol-related crime or disorder. The ease of enforcing directions to leave should be a factor to consider before deciding on the size of the locality from which the powers are to be used.

11.2.  To help in enforcement a constable can ask a police closed circuit television (CCTV) operator (or police mobile CCTV system, or video team) to photograph an individual who is being given a direction to leave. This may particularly be the case where photographic evidence is needed of a direction to leave being given for evidence for a prosecution. In addition to police operated mobile CCTV, ‘ICEFLO’ (immediate capture of evidence, for front-line officers), digital or Polaroid camera equipment may be useful. The individual must be informed that the photograph is being taken.

11.3.  Section 27(7) of the Violent Crime Reduction Act 2006 amends the Police and Criminal Evidence Act 1984 (PACE) to enable photographs to be taken by the police without the consent of the individual who will be subject to the direction. Taking photos is strongly recommended as good practice as it may help in enforcing the direction. It may also be used as evidence that a direction was given.

11.4.  The general rules governing the retention and use of photographs are governed by section 64A(4) of PACE and set out in PACE Code D.

11.5.  To assist in enforcing directions to leave, reference to the directions that have been given will be a standing agenda item for shift handover briefings, notice boards or intelligence bulletins.

12. Young people 

12.1.  When giving a direction to leave to an individual aged 16 or 17 the police should be mindful of their duties under the Children Act 2004 to safeguard and promote the welfare of children which may include:

• making referrals to the relevant service for a common assessment (Common Assessment Framework) of need where a child or young person is seen as vulnerable and potentially in need;
• using police powers to take children into protective custody when appropriate;
• working with partner agencies in the criminal justice system dealing with youth offenders to divert children away from crime and/or away from custodial sentences where it is felt that community-based sentencing is most appropriate; and
• working with partner agencies to educate children and young persons on issues such as substance misuse and the prevention of crime.

13. Issuing and recording 

13.1.  A direction to leave must be given to an individual in writing (refer to section 27(3) of the Violent Crime Reduction Act 2006) by a constable in uniform. It is good practice to explain the terms orally as well.

13.2.  The written notice of a direction to leave must:

• identify to the individual the area or locality the individual must leave and set out clearly the relevant area or locality to which the individual is prohibited from returning. This may be by reference to place names such as streets or licensed premises, the use of a map showing an area, or any other means that clearly identifies the relevant locality; and
• specify the period for which the individual is prohibited from returning. This period should not exceed 48 hours. A 48-hour ban should not be imposed where a shorter ban would achieve the aim of preventing the likelihood of alcohol-related crime or disorder arising.

13.3.  In Kent, the length of a direction to leave will not exceed 12 hours, unless authorised by an officer of the rank of Inspector or above. A rationale to justify any increase beyond 12 hours (but not exceeding 48 hours) will be recorded by the authorising officer).

13.4.  Written information should also be provided that includes the following points:

• what a direction to leave is and why it has been issued;
• what the effect is of being given a direction to leave;
• how the direction to leave can be challenged, how a direction to leave can be varied or withdrawn, and where you can do this;
• the implications of failing to comply with a direction to leave; and
• An explanation that a direction should not prevent the individual from having access to where they live, from attending work, from attending their place of education or training or from seeking medical treatment, or from having access to a place that they have been ordered to attend, for example by a court or tribunal.

13.5. If appropriate, a constable may also provide information about the risks of excessive alcohol consumption.

13.6. This information will be supplied by issuing the Directions to leave notice (self carbonating) form no 1890.

14. Appeals and varying or withdrawing a direction 

14.1.  There is no route of appeal for an individual against the giving of a direction to leave. However, an individual can challenge whether the direction was properly made in the course of their defence if they are prosecuted for breach of a direction.

14.2.  A direction to leave can be withdrawn or varied – but not varied to extend it for a period of more than 48 hours. Varying or withdrawing the direction can be undertaken at a police station or another suitable place as proposed by a constable.

14.3.  In Kent, requests to withdraw or vary a direction to leave in order can be made at the nearest designated police station and will be authorised by an officer of the rank of Inspector or above. A rationale to justify the withdrawal or variation of a direction to leave will be recorded by the authorising officer and the form amended and signed accordingly. A copy of the amended form must be made and forwarded to the Area Intelligence Unit (or equivalent) for recording purposes.

15. Making a record of the direction 

15.1.  The constable who gives the direction to leave must make a record of:

• the terms of the direction and the locality to which it relates;
• the individual to whom it is given;
• the time at which the direction is given; and
• the period during which that individual is required not to return to the locality.

Refer to section 27(5) of the Violent Crime Reduction Act 2006 for further details.

15.2.  Details of the individuals dealt with under this power must be recorded for the following reasons:

• evidential – in order to prove offences of failure to comply with the direction;
• intelligence – use of this power could be useful to inform local intelligence systems; and
• monitoring – the Race Relations Act 1976 requires that any activity that may result in direct or indirect discrimination, or indirect discrimination by way of victimisation on racial grounds, be monitored.

 
15.3.  The Violent Crime Reduction Act 2006 does not provide a constable with a power to require the name and address of a person being given a direction to leave. However, under section 50 of the Police Reform Act 2002, if a constable has reason to believe that a person has been acting, or is acting, in an anti-social manner (within the meaning of section 1 of the Crime and Disorder Act 1998), they may require that person to give their name and address.

15.4.  Any person who fails to give their name and address when required to do so, or gives a false or inaccurate name or address, is guilty of an offence. [Note: section 50 excludes ‘is likely to cause or contribute to’.]

15.5.  Where relevant, this power may be used to seek the name and address of an individual being given a direction to leave. Where a constable is not satisfied that the person has provided satisfactory information concerning their name and address details, it is open to the constable to consider arresting the person in accordance with section 24 of PACE rather than issuing a direction to leave. Where no power to request the name and address of the person being given a direction to leave exists, the constable must inform the person of this when completing the direction to leave.

15.6.  In Kent, this information will be gathered and recorded on the Direction to leave notice, which is self-carbonating. The white (personal) copy and explanation of the power will be given to the individual and the yellow (police) copy retained for monitoring and enforcement purposes. A full pocket notebook entry will also be made.

15.7.  In response to a spontaneous outbreak or threatened outbreak of alcohol-related crime or disorder, a constable issuing such a notice will inform the Force Communications Centre (FCC) and ensure that a storm record is created as a running log to record details of the location(s), duration of direction and individuals given a notice. This will ensure that appropriate enforcement is taken in the event of breach of directions to leave.

15.8.  In cases where the directions to leave may be given in anticipation of the likelihood of alcohol-related crime or disorder for a locality decided by an inspector or above, that officer must ensure that a storm record running log is created in preparation for any policing activity which will result in directions to leave being given. Constables issuing directions to leave must ensure that the running log is updated.

15.9.  The yellow (police) copy and photograph (if taken) will be submitted through the officer’s Supervisor then collated and retained within the Area Intelligence Unit or Area equivalent.

15.10.  In Kent, District Chief Inspectors will monitor the use of these powers – both decisions as to the locality in which the direction to leave power should be used and decisions at ground level to issue directions to leave to individuals. In the case of the latter, Community Liaison Officers will monitor the use of the power to consider whether there is any evidence that it is being exercised on the basis of stereotyped images or inappropriate generalisations. Appropriate analysis must examine whether records of the directions reveal any trends or patterns that give cause for concern and, if so, take appropriate action to address this.

15.11.  To assist with monitoring the use of this power, monthly returns will be maintained and submitted to the District Chief Inspector detailing the following:

i) gender
ii) age
iii) ethnicity
iv) beat code
v) day of week
vi) duration (total time) of direction to leave
vii) issuing officer

15.12.  Individuals who have been issued 3 directions to leave within a rolling 12-month period may be indicative of longer-term issues. Consideration will therefore be given to the implementation of a longer-term solution through:
i) Acceptable Behaviour Contracts
ii) Anti Social Behaviour Order (S 1 Crime and Disorder Act 1998)
iii) Drinking Banning Order (S1 Violent Crime Reduction Act 2006 - when implemented).

16. Offences 

16.1.  Refusing to comply with a direction

An individual is guilty of an offence if they fail to comply with the direction to leave (refer to section 27(6) of the Violent Crime Reduction Act 2006).

Section 24 of PACE provides constables with the power of arrest for all criminal offences. This therefore enables a constable to arrest an individual who knowingly fails to comply with a direction to leave, subject to compliance with the necessity criteria set out in section 24(5) of PACE and PACE Code G.

16.2.  Breach of a direction - any individual who knowingly fails to comply with a direction to leave when it is given or breaches the direction during the period it applies for is liable, upon summary conviction, to a fine not exceeding level 4 on the standard scale (refer to section 27(6) of the Violent Crime Reduction Act 2006). However, there could be situations where someone has failed to comply with a direction, for example, because of an emergency situation or another similar justifiable reason. The constable would therefore need to take such factors into account before deciding what action should be taken.

17. Human Rights Act consideration 

17.1.  Any action taken must be in compliance with relevant legislation. The Human Rights Act 1998 decision considerations JAPAN should be taken into account when making decisions whether or not to take action.

• Justification
• Authorisation
• Proportionality
• Auditable
• Necessary  

18. Retention and disposal of records

18.1. Documents mentioned in the above policy will be retained for the period specified in the Retention & Disposal of Force Documents Policy (Ref No B18) and the supporting Disposal Schedule.

19. Equality impact assessment

19.1. This policy has been assessed with regards to its impact on equality. As a result it has been assessed as having a medium potential impact.