There are several offences which are aimed at protecting vulnerable adults.
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Section 108 Domestic Violence Crime and Victims Act 2004, ‘causing or allowing the death of a child or vulnerable adult’,
• Section 127 MHA How will SOCPA 2005 impact on the criminal offences aimed specifically at the protection of vulnerable adults?1983, ‘ill-treatment or neglect by hospital staff of a person receiving treatment for a mental disorder’,
• The 10 new sexual offences committed against persons with a mental disorders, and offences that may be committed by care workers, contained in the Sexual Offences Act 2003.
• A new offence at s.44 Mental Capacity Act 2005, ‘the ill-treatment or wilful neglect of a person lacking mental capacity’, which may be committed by a carer, donee of an LPA or a court appointed deputy.
In practice, there will be little change to the exercise of police powers in relation to these and other similar offences, although now a constable will need to have a reasonable ‘belief’ rather than merely a suspicion that a person has committed the relevant offence, and be able to justify making an arrest on one of the requisite grounds under s24 PACE 1984. The circumstances leading up to the arrest as well as the reasons why the arrest was necessary, will need to be given to the suspect upon arrest and repeated again to the custody sergeant in order for a suspect to be detained. The custody sergeant may only justify detention if he has reasonable grounds for believing that detention is necessary to secure and preserve evidence or to obtain evidence by questioning
Powers of entry
In relation to search warrants and powers to enter private premises there are also changes to s.17 PACE relating to powers of entry to premises without a warrant. Formerly, a constable had the power to enter premises in order to arrest a person for an arrestable offence. Now, a constable will only have the power to enter premises in order to arrest for an indictable offence, with only a few exceptions.
Indictable offences consist of those offences triable at either a magistrate’s court or the crown court, or only at the crown court, but exclude those offences triable only at the magistrate’s court. However, the Act preserves at s17 (1), the power of a constable to enter premises for the purpose of recapturing any person deemed to be unlawfully at large while liable to be detained.
The new Act does not affect the existing powers of a constable or an approved social worker under s.135 Mental Health Act 1983.
Other changes to a constable’s power to enter premises to arrest a person, have been made to sections 18 and 32 of PACE. A constable will now only have the power to enter premises where an arrested person was, either when arrested or immediately before arrest, to search for evidence only in relation to the indictable offence for which he or she was arrested. Under s.18 PACE, a constable will have the power of entry and search of premises occupied or controlled by a person under arrest for an indictable offence, if he has reasonable grounds for believing that there is on the premises evidence relating to that or some other indictable offence similar to or connected with that offence.
The power of a constable to search an arrested person for evidence relating to an offence, or because he or she may present a danger to him or herself or others, or for items which may assist him or her to escape, remains unchanged.
Comment
Although SOCPA 2005 has been criticised as abandoning “the principle of proportionality” and increasing the likelihood of “unjustified, arbitrary detention”, it is suggested that this is an over-reaction by its critics. What the Act has done, is to simplify the arrest and search powers and inserted a safeguard in s.24 PACE, which now requires a constable to provide a high level of justification before he or she may deprive a person of their liberty. It encourages the police to consider alternatives to arrest but also removes the anomalies and practical difficulties of effectively enforcing the law in circumstances where an arrest is believed to be necessary. Whilst the price for this change may be more offences coming into scope for arrest, it could be argued that the trade off is more than worth it in civil liberties terms. The new powers are unlikely to lead to a flood of arrests for parking violations or littering, but should prevent children or vulnerable adults being detained whilst awaiting social services, appropriate adults, or simply the gathering of evidence. Alternatives such as street bail and summons will come into their own and will be more widely used. Those who have criticised the new powers will find that rather than “unjustified and arbitrary” detention, there will be a far higher degree of accountability than before.