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N96E Management of Potentially Dangerous Persons (PDPs)

1. Security protective marking

 

1.1 Not protectively marked.

1.2 This policy has a Standard Operating Procedure that remains restricted to protect operational effectiveness.

2. Summary of changes

 

2.1 The following changes have been made to this policy in order to comply with the structure of the new Kent Policing Model (nKPM), including the new structures of the ViSOR Referral Unit (VRU) and ViSOR Tactical Delivery Units (VTDU) on 3 April 2012.

    2.2 This policy is scheduled for review in November 2014.

    3. Introduction

     

    3.1. The term Potentially Dangerous Person (PDP) was introduced to the service in October 2007 by the ACPO Guidance, Protecting the Public: Managing Sexual Offenders and Violent Offenders (ACPO Guidance).  For the purpose of this guidance, public protection was identified as ‘the policing function of reducing harm in the context of Multi-Agency Public Protection Arrangements (MAPPA) and through the identification, assessment and management of PDP’s who do not fall within MAPPA.’

    3.2. The revised ACPO guidance (2010) has amended the definition for a Potentially Dangerous Person which is now as follows: 

        • A person who is not eligible for management under MAPPA but whose behaviour gives reasonable grounds for believing that there is a present likelihood of them committing an offence or offences that will cause serious harm.
        • A present likelihood reflects imminence and that the potential event is more likely than not to happen. 

      3.3. Serious harm is defined in the Home Office (2002) Offender Assessment User Manual as ‘…a risk which is life-threatening and/or traumatic, and from which recovery, whether physical or psychological, can be expected to be difficult or impossible.’

       

      3.4. There is no legislation that recognises the existence of PDPs and unlike offenders who fall within MAPPA there is no statutory multi-agency framework which governs the management of PDPs.

       

      3.5. The ACPO lead for managing sexual and violent offenders ACC Michelle Skeer of Cumbria Police is leading a national review in order to develop a police approach to the identification and management of potentially dangerous people.

       

      3.6. Kent Police have decided on an interim solution for the continuing management of  PDP’S in Kent. PDP’S will be managed via a process that mirrors the MAPPA structure.  The Divisional VTDU will have responsibility for the management of the individual as they would with any category 1 or 3 MAPPA offenders. 

       

      3.7. The MAPPA framework identifies three levels at which cases are managed:

      • Level 1: Ordinary Agency Management;
      • Level 2: Multi-Agency Public Protection Panel (MAPP) Meeting; and
      • Level 3: Multi-Agency Public Protection Panel (MAPP) Meeting.

       

      3.8. Full description of levels 1 to 3 are in MAPPA Guidance 2009 Section 10

      3.8.1. The three different levels enable resources to be deployed to manage identified risk in the most efficient and effective manner. Whilst there is a correlation between level of risk and level of MAPPA management (the higher the risk, the higher the level), the levels of risk do not equate directly to the levels of MAPPA management.

      3.8.2. The central question in determining the correct MAPPA level is:

            • “What is the lowest level that a case can be managed at which provides a defensible risk management plan?”

      3.8.3.This means that not all high-risk cases will need to be managed at level 2 or 3. Similarly, the complexities of managing a low/medium risk case might, in exceptional circumstances, justify it being managed at level 2 or 3, especially where notoriety is an issue.

      3.8.4. This policy has been written in accordance with:

      • Multi-Agency Public Protection Arrangements (MAPPA) Guidance 2009
      • NPIA Guidance Protecting The Public: Managing Sexual Offenders and Violent Offenders.


      4. Identification Potentially Dangerous Persons

       

      4.1. Potentially dangerous persons who fall outside the MAPPA categories will come to police attention in various ways. This could be through information or intelligence acquired or received by the police following an arrest or investigation that has not led to a charge or prosecution, or as the result of an acquittal. Examples of this could be where:

      • An investigation (relating to child abuse, vulnerable adult abuse, sexual offences, domestic abuse, hate crime or other allegations of violence or abuse) is unable to prove the guilt of an individual despite evidence that suggests that the person poses a risk of serious harm in the future;
      • An individual is investigated for a relatively minor offence but other information (e.g., from other agencies such as the Probation Service, Prison Service, adult and children’s social care services or health sector) indicates that the person poses a risk of serious harm in the future. 

      4.2. The overarching principle is that there must be a present likelihood of them causing serious harm.

       

      5. Public Protection Professionals Meeting

       

      5.1. In many instances a PDP is a person without any convictions for a criminal offence. The Prison and Probation Services do not, therefore, have an automatic role in managing the risk posed by such persons. It may be appropriate for either agency, or both, to be involved in a multi-agency process for assessing the risk. 

       

      5.2. As the management of PDPs within Kent Police will mirror the MAPPA process it may be appropriate in some cases for a multi-agency meeting to be held.  This would comprise of representatives from agencies who have involvement with the PDP. It could also include agency representatives who may be suitable for future involvement in managing the risk presented by the individual eg. Mental health, Social services.  This meeting will be called a Public Protection Professionals Meeting (PPPM) and will follow the same format as a MAPPA meeting.  A PPPM will always have a police chair or co-chair.

       

      5.3. As with MAPPA offenders, the response to identified PDPs should include where appropriate, the following multi-agency structures:

      • Community Safety Partnerships Crime and Disorder Reduction Partnerships.
      • Local Criminal Justice Boards.
      • Local Safeguarding Children Board.
      • Domestic Violence Partnerships; including Domestic Violence Forums and DV Multi-Agency Risk Assessment Conferences.
      • Drug Action Teams & Drug and Alcohol Teams

       

      5.4. The principles within section 11 of the MAPPA guidance 2009 which describe the process to follow when holding a MAPPA meeting can be used as guidance for the Public Protection Professionals Meeting. There is no legislative background at present to support this process, should advice be required contact VRU HQ.

       

      6. Supporting legislation

       

      6.1. As there is no statutory framework for the management of PDPs, the options available to reduce the risk of serious harm are limited.

       

      6.2. Some of the risk management options for MAPPA offenders described in the NPIA Protecting the Public: Managing Sexual Offenders and Violent Offenders 2010 guidance may, however, be useful in the management of PDPs.

       

      6.3. Anti-Social Behaviour Order

       6.3.1. An Anti-Social Behaviour Order (ASBO) is a community-based civil order available under the Crime and Disorder Act 1998. It can be applied for by a relevant authority, including the police or local authority, against a person who acts in an anti-social manner that causes, or is likely to cause, alarm, distress or harassment to one or more people not in the same household as that person. The order must also be necessary to protect relevant persons from further anti-social acts. ASBOs are preventive orders. They are intended to be used to stop persistent and serious anti-social behaviour which can affect the quality of life of a community. Although these are civil orders, a breach of them is a criminal offence that carries the risk of imprisonment. For further information see Home Office (2006) A Guide to Anti-Social Behaviour Orders.

       6.4. Risk of Sexual Harm Order

      6.4.1. Under sections 123 to 129 of the Sexual Offences Act 2003, the police can apply for a Risk of Sexual Harm Order (RSHO). This is a civil order which can be applied for in respect of a person over the age of 18 years where it appears to the chief officer of police that a person has on at least two occasions participated in one or more of the following acts:

          • Engaged in sexual activity involving a child or in the presence of a child;
          • Caused or incited a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual;
          • Given a child anything that relates to sexual activity or contains a reference to such activity;
          • Communicated with a child where any part of the communication is sexual. According to section 127 of the Magistrates’ Court Act 1980 at least part of that behaviour must have taken place in the six months prior to the application being made.

      6.4.2. It must appear to the chief officer of police that ‘as a result of those acts, there is reasonable cause to believe that it is necessary for such an order to be made’ (section 123(1)(b)) of the Sexual Offences Act 2003. Under section 123(4) the court will grant an order if it is satisfied that the defendant has on at least two occasions committed a relevant act and it is necessary to make such an order, for the purpose of protecting children generally or any child from harm from the defendant.

       

      6.4.3. An RSHO may prohibit the offender from doing anything specified in it and has effect for a fixed period of not less than two years. An RSHO should not be used as a substitute for a criminal prosecution, but is appropriate where the behaviour of the individual suggests that intervention at this earlier stage is necessary to protect a child.

       

      6.4.4. It is a criminal offence to breach an RSHO or an interim RSHO unless the defendant has a reasonable excuse for doing so. If an offender breaches an RSHO they will be subject to the notification requirements in Part 2 of the Sexual Offences Act 2003.


      6.4.5. In all cases where a PDP presents a risk of sexual harm a Risk of Sexual Harm Order must be considered.

       

      7. Information sharing and disclosure

       

      7.1. In their public protection role, the police can decide that the risk posed by a PDP, for example, requires them to retain and share information, but they cannot rely on the Criminal Justice Act 2003 as the legal basis for so doing. The authority to retain and share such information lies in the positive obligations within the ECHR, Article 2 (right to life) and Article 3 (right to freedom from inhuman and degrading treatment). As in all cases where information is retained and shared, account must be taken of whether actions are necessary and proportionate, and whether any infringement of Article 8 of the ECHR (right to respect for private and family life) is necessary for one of the reasons in Article 8(2). These reasons include public safety, the prevention of disorder or crime or for the protection of the rights and freedoms of others.

      7.2. In many instances a PDP is a person without any convictions for a criminal offence. The Prison and Probation Services do not, therefore, have an automatic role in managing the risk posed by such persons. In exceptional circumstances, however, it may be appropriate for either agency, or both, to be involved in a multi-agency process for assessing the risk.

       

      7.3. Given the statutory role of the Probation and Prison Services to work with offenders, the involvement of these agencies in the management of unconvicted people should be exceptional and decided on a case-by-case basis with the authority of the relevant senior manager.

       

      7.4. The legislation which is applicable to information sharing and the overall management of such cases is:

      • The common law duty of the police (to prevent and detect crime);
      • Crime and Disorder Act 1998;
      • Data Protection Act 1998;
      • Human Rights Act 1998;
      • Equality Act 2010.

      7.5. Kent Police have an information sharing protocol with the mental health authorities.

       

      7.6. Common Law

       

      7.6.1. When an application is made to the Assistant Chief Constable (ACC) for disclosure it is generally the common law power to disclose that is being applied, recent cases on disclosure have acknowledged a longstanding acceptance of the absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury.

       

      7.6.2. Section 115 Crime and Disorder Act 1998

      Section 115 of the Crime and Disorder Act 1998 specifies the exceptions allowing the disclosure of information to certain authorities in order to fulfil the purposes of the Act.
      Any person who, apart from this subsection, would not have power to disclose information -
      (a) to a relevant authority; or
      (b) to a person acting on behalf of such an authority,
      shall have power to do so in any case where the disclosure is necessary or expedient for the purposes of any provision of this Act.
      Definition of “relevant Authority” is under Section 115(2)

       

      7.6.3. Section 29 Data Protection Act 1998

      Which provides the exemptions in respect of personal data in connection with crime and taxation from the first data principle and section 7 (rights of data subjects and others) of the Act.

      29(1) Personal data processed for any of the following purposes:-

      (a) the prevention or detection of crime,         
      (b) the apprehension or prosecution of offenders, or
      (c) the assessment or collection of any tax or duty or of any imposition of a similar
           nature.

       

      7.6.4. Human Rights Act

       

      The Appeal Court also gave guidance about the relevance of the Human Rights Act.  Article 8 of the European Convention for the protection of Human Rights

      “Everyone has the right to respect for his private and family life, his home and his correspondence.”

      There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”


      7.6.5. R V Osman

      The protection of the public has always been core police business. This is reinforced by the Human Rights Act 1998 and, particularly, European Convention on Human Rights (ECHR) Articles 2 and 3. The public have a right to expect that the police and other agencies will exercise their powers to protect life (Article 2, ECHR), to protect individuals against inhuman and degrading treatment and punishment (Article 3, ECHR), and to protect their private and family life from interference (Article 8, ECHR).
      These rights have been reinforced by cases such as Osman v UK [2000] 29 EHRR 245 and Z v UK [2002] 34 EHRR 3.

      Both cases emphasise the duty of care of the police and other public authorities to protect life and to protect individuals from inhuman and degrading treatment. These rights provide powerful justification for police action, although such action must be based on the circumstances of each case which will indicate whether action is proportionate and necessary.

      Some offender management techniques (including covert techniques) will reveal particular individuals who are subject to serious harm or are facing a high risk of imminent harm. Examples include cases where an offender is grooming a child or sexually abusing them. In such cases the primary consideration should be the protection of the child and the positive obligation to protect the lives of individuals (Osman v UK [2000] 29 EHRR 245), and to protect individuals from degrading and inhuman treatment (Z v UK [2002] 34 EHRR 3).

       

      It must be remembered that PDPs are not MAPPA offenders for further guidance on disclosure in relation to PDPs see policy N96a Disclosure In Relation To The Management Of Potentially Dangerous Persons, Violent And Sexual offenders.

      8. Equality impact assessment

      8.1. This policy has been assessed with regard to its relevance to race and diversity equality. As a result of this assessment the policy has been graded as having a low potential impact.

       

      8.2. Attached is the latest equality impact assessment that forms part of the policy review process.

       

      Policy reference: N96E Management of Potentially Dangerous Persons (PDPs)
      Policy owner: Chief Superintendent. Head of Central Investigation Command
      Contact point: Policy Unit 01622 653070
      Date last reviewed: 23 December 2008
      Document last saved: 04 April 2012