Public Protection and Safety - PSNI Hate Crime Guide PDF

Version:.24  Public Protection and Safety Index PPS01 Hate Crime 2 PPS02 Assaults 13 PPS03 Child Protection 40 PPS04 Sexual Offences...

Version:.24  Public Protection and Safety Index PPS01 Hate Crime 2 PPS02 Assaults 13 PPS03 Child Protection 40 PPS04 Sexual Offences 82 PPS05 Public Order 111 PPS06 Domestic Abuse 138 PPS07 Missing Persons 173 PPS08 Sudden Death 206 PPS09 Adults at Risk and Mental Health 215 PPS10 Crime and Alcohol 226 PPS11 Harassment 244 PPS12 Stalking 252 PPS13 Offensive Weapons 266 PPS14 Public Protection Arrangements Northern Ireland 277 OFFICIAL [PUBLIC] Page 1 Public Protection and Safety PPS01 Hate Crime Introduction Hate crime has, in recent years, been the focus of many police services across the UK. It particularly hit the headlines in 1993 with the murder of Stephen Lawrence which subsequently resulted in the Macpherson Inquiry. In terms of how this impacts upon policing, the national policing lead for hate crime at the time, Deputy Chief Constable Drew Harris, said: “The Macpherson Inquiry into the murder of Stephen Lawrence in 1993 highlighted the deep damage caused by such targeted violence and its impact on the public’s fear of crime and community cohesion. While the police service has come a long way in our response to hate crime since then, there is still much work to increase confidence in the police service.” It is clearly a topical and emotive issue which results in a strong media presence when a hate incident or crime takes place. It sends a message to both the community involved and the wider society that certain members of our community are not welcome and are being targeted. As a police officer it is your responsibility and mission to keep people safe, all people, not simply those from a certain community. OFFICIAL [PUBLIC] Page 2  Legislation context Unlike the Crime and Disorder Act for England and Wales, Northern Ireland has no specific legislation detailing hate offences. The Criminal Justice (No2) (Northern Ireland) Order 2004 has however provided courts with the power to increase sentences where an offence is aggravated by hostility based on the victims actual or presumed religion, race, sexual orientation or disability. The Criminal Justice (No. 2) (Northern Ireland) Order 2004 Increase in sentence for offences aggravated by hostility. This Article applies where a court is considering the seriousness of an offence. If the offence was aggravated by hostility, the court - (a) Shall treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offence); and (b) Shall state in open court that the offence was so aggravated. 1. For the purposes of this Article an offence is aggravated by hostility if: (a) At the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; the victim’s membership (or presumed membership) of a religious group; the victim’s membership (or presumed membership) of a sexual orientation group; a disability or presumed disability of the victim; or (b) The offence is motivated (wholly or partly) by hostility towards - OFFICIAL [PUBLIC] Page 3   members of a racial group based on their membership of that group;  members of a religious group based on their membership of that group;  members of a sexual orientation group based on their membership of that group;  Persons who have a disability or a particular disability. It is therefore essential that the evidence associated with the perceived motivation or how the offender demonstrated hostility to the victim must be clearly outlined within the prosecution papers to provide sufficient evidence and information to enable the court to consider the use of this power. The impact of hate incidents can be long lasting and far reaching, not only for the victim but also their family, and community. Remember the core principles of policing with the community when dealing with suspected hate crime or incidents. It is important to note that victims often experience repeat incidents and it is recognised that low-level hate incidents can lead to more serious types of incidents occurring and therefore reporting of low-level incidents should be encouraged and treated as seriously as other incidents. What this essentially means is that your actions at a hate-related incident are of extreme importance to both the victim and the wider community. Your approach and subsequent investigation must explore all avenues of both investigations of the offence and support for those affected. Within the PSNI there exists a PSNI Hate Crime Governance Structure headed up by an Assistant Chief Constable and Superintendent. Each of the 11 policing districts have an appointed Chief Inspector Hate Crime district champion, and there exist hate and signal crime officers (HSCO’s) for each district. This highlights how serious hate crime has become in Northern Ireland but equally how serious the PSNI are treating such crimes and incidents. The present Service Instruction for hate crime/incidents is SI 2117 – this can be found on PoInt. It is a comprehensive guide for helping officers at every level to respond OFFICIAL [PUBLIC] Page 4 positively and reduce under-reporting of hate crime What is a Hate Incident? In its simplest form the above can be defined as the following: Key Learning Point A hate incident is defined as: “Any incident which may or may not constitute a criminal offence, which is perceived by the victim or any other person as being motivated by prejudice or hate.” What this essentially means is that all hate crimes are hate incidents also however not all hate incidents are hate crimes. Both definitions also include the phrase, “perceived by the victim or any other person as being motivated by prejudice or hate.” The key point to remember is that any incident or crime, not a particular category, can be determined as a hate crime/incident if it is perceived to have been motivated by hate.  How do we as police officers determine perception?  What is this perception test? The Perception Test It must be clearly understood, that to report a hate incident, evidence that it is indeed a hate incident/crime is NOT needed. Perception on the part of anyone is all that is required. The perceived motivation will be recorded and investigated in addition to any other criminal offences, which are being investigated. Evidence is not the test; the perception test relates to anyone’s perception. OFFICIAL [PUBLIC] Page 5 It would not be appropriate to record a crime or incident as a hate crime or hate incident if it was based on the perception of a person or group who had no knowledge of the victim, crime or the area, and who may be responding to media or internet stories or who are reporting for a political or similar motive. So whilst it is classed as “anyone’s perception” this must be used within reason based on the factors above. So, for example if it is not the victim who perceives it to be a hate motivated incident/ crime. The other person could, however, be one of a number of people. This may include police officers or staff, witnesses, family members, civil society organisations who know details of the victim, the crime or hate crimes in the locality, such as a third-party reporting charity, a carer or other professional who supports the victim, someone who has knowledge of hate crime in the area – this could include many professionals and experts such as the manager of an education centre used by people with learning disabilities who regularly receives reports of abuse from students, a person from within the group targeted with the hostility, e.g., a traveller who witnessed racist damage in a local park. The bottom line is that when an incident or crime has been reported to police by the victim or by any other person and they perceive it as being motivated by prejudice or hate; it will be recorded and investigated as a hate incident or crime PSNI will accept without challenge the view of a victim or any other person that the crime was motivated by hate on one of the defined grounds. What are these defined grounds? The Police Service of Northern Ireland will record hate incidents where there is a perception on the part of the victim or any other person that the motivation for the prejudice or hate towards the injured party is based upon the following 6 categories: RACIST HOMOPHOBIC RELIGIOUS/FAITH DISABILITY SECTARIAN TRANSPHOBIC OFFICIAL [PUBLIC] Page 6 However, it must be noted that although for recording purposes the PSNI has 6 categories of hate crime, the Criminal Justice (No2) (Northern Ireland) Order 2004 (enhanced sentencing) refers to 4 categories only, namely: racism; sexual orientation; religious/faith; disability. For investigative and operational purposes, an officer within the PSNI will stick to the 6 categories contained above, with the breakdown as below: Meaning of Terms Racist Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s race or perceived race. A racial group is any racial group or ethnic background or national origin, including countries within the UK, and gypsy and traveller groups. Religious Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s religion. This includes any religious group, including those who have no faith. Homophobia Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s sexual orientation or perceived sexual orientation. Disability Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s disability or perceived disability. This includes any disability including physical, sensory or learning disability and Transphobia. OFFICIAL [PUBLIC] Page 7 Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender. Sectarianism Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s religious denomination or political opinion. It is broadly accepted that within the N.I. context an individual or group must be perceived to be:  Catholic or Protestant;  National or Unionist;  Loyalist or Republican can also relate to other religious denominations for example Sunni and Shi’ite in Islam. When considering hate crimes marked as sectarian or transphobic, the PPS have to consider which of the categories it “best fits” before the case may be opened in court for the judiciary to consider applying an enhanced sentence created by the Criminal Justice (Northern Ireland) Order 2004. Investigating Hate Crimes/Hate Incidents Whilst it has already been alluded to that not all hate incidents will include crimes - the recording, monitoring and support to victims will apply equally to hate incidents whether it constitutes a criminal offence or not. Why are police focusing on something that has not been declared a crime? Recorded hate-related incident figures have increased in recent years however it is widely understood that there still remains a large amount of unreported incidents/ crimes. The reasons for this will be explored in class. OFFICIAL [PUBLIC] Page 8 A key component is how you conduct your investigation. Attending and recording details is simply not enough. You must ensure that you take the time to understand the victim and/or witnesses. This is a key first step in your investigation. You may be faced with some barriers to communication; such as language, cultural or learning needs based challenges. Regardless of these hurdles, it is imperative that you engage with the appropriate services e.g. translators, registered intermediaries and appropriate adults in order to ensure that you are handling of the incident is both professional and victim driven. Never forget that hate-related incidents have a far reaching impact and your actions, no matter how small, will have an equally rippled effect on the wider community and perception of policing in Northern Ireland. Role/Responsibilities of the PSNI in Dealing with Hate Crime/Incidents Report Greater confidence, co-operation and increased reporting will be achieved if the police service deals effectively and professionally with hate incidents and continues to proactively build positive relationships with representatives and support organisations for minority and vulnerable groups, particularly at the first point of contact. The Police Service will:  Record, respond and investigate all reported hate incidents in a consistent, robust,  Proactive and effective manner.  Ensure that every reported hate investigation is appropriately supervised.  Ensure that every victim of a hate incident is offered the assistance of an officer carrying out the hate and signal crime role and provided with information relating to local statutory and voluntary support agencies. OFFICIAL [PUBLIC] Page 9   Take reasonable/appropriate steps to identify and protect repeat victims.  Work in partnership with other statutory and non-statutory partner agencies.  Organisations to address areas of hate incident prevention, reporting and response. Police officers have statutory duty (section 32 of the Police (Northern Ireland) Act 2000) to:  Protect life and property.  Preserve order.  Prevent the commission of offences; and  Where an offence has been committed, take measures to bring offenders to justice. When carrying out these duties police officers shall protect human dignity and uphold the Human Rights of all persons. Human Rights The following Human Rights are potentially engaged when dealing with hate incidents:  Right to Life (Article 2 ECHR)  Prohibition on inhuman and degrading treatment (Article 3 ECHR)  Right to respect for family and private life (Article 8 ECHR)  Right to freedom of thought, conscience and religion (Article 9 ECHR)  Freedom of expression (Article 10 ECHR)  Prohibition of discrimination (Article 14 ECHR) LPT (Local Policing Team) Officers Role: LPT Officers will be tasked to attend the scene of the hate incident/Crime and investigate the report unless otherwise directed. Background checks regarding the individual/address involved etc. will be made to ensure the appropriate action is taken OFFICIAL [PUBLIC] Page 10 and to identify repeat victims. Consideration will be given to cultural issues, language and literacy requirements of each hate incident to ensure awareness of sensitivities. If in doubt simply ask the victim sensitively/carefully about their needs, worries, or concerns. The investigating officer will liaise with LPT officer(s) carrying out the hate and signal crime role as well as CID to formulate the investigative strategy in relation to the hate incidents. Consideration should be sought from other specialist departments, for example crime prevention officer and the use of the hate incident practical action (HIPA) scheme. Referral to victim support including the advocacy services should be encouraged. Information on the roles attributed to those involved in investigating a Hate Incident/ Crime can be found in Service Instruction SI 2117. These will be discussed within the lesson when considering the assessment of risk. OFFICIAL [PUBLIC] Page 11 0 Hate Crime OFFICIAL [PUBLIC] Page 12 Public Protection and Safety PPS02 Assaults Introduction In this module we will be looking at a number of offences that fall within the wide spectrum of non-fatal offences against the person, they include: Common assault. Assault occasioning actual bodily harm (AOABH). Grievous bodily harm (GBH). Grievous bodily harm with intent. Threats to kill. Assault on police. Assault to prevent arrest. You probably already have an idea of what constitutes an assault. Consider the following examples: A punch on the nose. A kick on the shin. You will discover as you work through these notes that in law, the word ‘assault’ has a wide definition. For example, is a punch on the nose during a boxing match an assault? Or a kick received during a football tackle? As a police officer, you will be called to deal with allegations of assault. You will need to know: Whether an assault has actually occurred. What type of assault it is. What action you can take. OFFICIAL [PUBLIC] Page 13 The notes which follow will give you a working knowledge of the various types of assault, together with your various powers associated with each. Offences of assault are generally in contravention of the Offences against the Person Act 1861. Assault The term assault is: Definition: Any act, and not a mere omission to act, by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. Points to Prove The mental elements involved, i.e. the intention or recklessness on the part of the defendant and the apprehension on the part of the victim, means that no physical contact between the offender and victim is required. It can be threatening words used, although if violence is threatened, there must be the ability to carry out the threat at the time. A mere omission to act cannot be an assault. Example If Johnston shouts at Brown “I’m going to kick your head in!” intending Brown to believe the threat and Brown does believe it, an assault has been committed by Johnston against Brown. On the part of the victim, the state of mind is an apprehension of immediate unlawful violence. The state of mind of the victim in an assault is relevant. The victim MUST apprehend the immediate use of unlawful violence – in other words the victim MUST believe that he/she is going to be subjected to that immediate unlawful violence. OFFICIAL [PUBLIC] Page 14 Example If Johnston threatened to shoot Brown with an imitation firearm then Johnston could be charged with assault, provided Brown believed that the firearm was real and that he/she was going to be shot (apprehending unlawful violence) – the fact that the firearm was an imitation and could never actually physically harm Brown is not important as Johnston had caused Brown to apprehend immediate force being used. (Stated Cases – Logdon v DPP, 1976; R v Lamb, 1967; R v Constanza, 1997) Battery The term battery is: Battery requires physical contact with the victim so the offence could not be carried out via the phone. However it is sufficient to constitute battery that the defendant attacks the clothing which the victim is wearing, without the victim feeling the pressure of the contact. (R v Day 1845) Battery need not be preceded by an assault. A blow may, for example, be struck from behind, without warning. A very small degree of physical contact will be enough, not, as many think, an act involving serious violence. Explanations of Terms Any Act This can include shaking a fist at another or using some other threatening gesture. It is the act rather than the injury which must be intended. OFFICIAL [PUBLIC] Page 15 Intentionally Means that the suspect deliberately acted in a way that was calculated, to leave the victim in no doubt that he/she would be subjected to personal violence. Example X approaches Y and punches them on the shoulder. X has intentionally applied force to Y. Recklessly Recklessness involves foresight of the possibility that the complainant would apprehend immediate and unlawful violence and taking that risk; in battery, it involves foresight of the possibility that the complainant will be subjected to force, however slight, and taking that risk. (R v Cunningham 1957) Example Howell throws a brick into a crowd; he knows that someone is likely to be injured, even though he doesn’t know who that person may be. Immediate A threat to assault a person in the future is not an assault. The apprehension of being hurt must be there and then. It does not have to be instantaneous but within a minute or two. Example English is standing on the opposite side of a wide river from Black who is shaking his fist and yelling ‘wait till I see you later’ (this does not constitute an assault). Unlawful In both assault and in battery the violence must be unlawful; it would therefore not be an assault/battery if you, faced with a person wielding a stick, drew your baton and used it with reasonable force to disarm the individual. OFFICIAL [PUBLIC] Page 16 Force Force can be applied in many ways. This includes the simple punch or kick, a blow with a stick or the throwing of a stone at someone. Force can be applied directly and indirectly. Example A defendant punched a woman causing her to drop and injure a child she was holding, he was convicted of the offence against that child and the woman. (Haystead v CC of Derbyshire, 2000) Scenario Battery Assault Neither Johnston drives his car directly at Peters. Peters dives out of the way and is unhurt. Peters, in the case above, has her back to Johnston and is unaware of what is happening behind her. Johnston turns away before being seen. In the above case Scott see that Johnston is heading towards Peters and fears Peter’s safety, so yells a warning, but Peters does not hear it. Patterson walks up to Hanson and tells him ‘I’m going to knock your head in’. Hanson is much larger than Patterson and dismisses that threat as a joke. Later Patterson comes up behind Hanson and strikes him on the back of the head. Patterson was seen at the last second by Hanson who ducked but the bat hit a passer-by no injury was caused. OFFICIAL [PUBLIC] Page 17  Assault – (explained) Any act It is not sufficient to omit to do or say something. The act could be words in a letter, or telephone call including threatening silences. which The suspect deliberately acts in a way that is calculated to leave intentionally the victim in doubt that he/ she will be subjected to violence. or recklessly The suspect foresees the possible consequences of his/her conduct, but still continues. causes The action of the suspect leaves the victim in no doubt of what another to he/she is about to face. apprehend To apprehend is to fear a certain act or consequence. Another refers to another person. Not necessarily instantaneous but within a minute or two; for immediate example, if a threat is made from just outside a house to a victim inside it would take a moment or so before it could be carried out. Unlawful – it might be lawful if it took place during a contact sport, or was related to self- defence in the face of an imminent attack, unlawful or was to help prevent an unfolding crime. violence Violence – The person should fear a violent act being committed against him/her it cannot be done/feared through a 3rd party. Battery – (explained) intentionally The suspect purposely takes part in some kind of conduct which applies unlawful force on another person. The suspect foresaw that the consequence of their conduct might be or recklessly the application of unlawful force against another person, but continued, for example a group of persons throwing stones in a busy street are reckless as to whether pedestrians may suffer violence. applies Apply means make contact with the victim or make them suffer unlawful force. unlawful Only the slightest degree of force is required. It can be applied by the violence human body itself (e.g. a slap) or by an extension of the human body with an implement or weapon. The application of force can be carried indirectly; for example, a suspect to another punches a man carrying a baby (directly), causing him to drop the baby. The force is applied to the baby (indirectly). OFFICIAL [PUBLIC] Page 18 Common Assault Section 42 Offences against the Person Act 1861 Common assault is a summary offence and can have two elements, assault and battery. In law, assault and battery theoretically mean different things. In Fagan v MPC the court said that an assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence. Battery is the intentional or reckless application of unlawful force to the body of another person. However, there has been a modern trend to use the term ‘assault’ in a broad sense to include both assault and battery. Common Assault is the combination of both of these elements, but both elements do not have to be present for the offence to be complete. Common assault therefore covers the instances where violence is apprehended and/ or where violence is inflicted. The violence inflicted in such a case would have to be minor. Typical injuries  Grazes/scratches.  Abrasions.  Minor bruising.  Swelling.  Reddening of the skin.  Superficial cuts.  Black eye (minor bruising around the eye, ONLY. If substantial bruising is present, consider AOABH). OFFICIAL [PUBLIC] Page 19 Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant -subject to necessity criteria. Power of Entry Yes, this offence is specified under Article 19 PACE (NI) Order 1989. Points to Prove Unlawfully. Assaulted. Another person. Application of Force (battery). Sentencing Guidelines Tried summarily only - Maximum 6 months imprisonment and/or level 3 fine (£1000) (for offences committed on or after 04.07.11). Assault Occasioning Actual Bodily Harm (AOABH) ‘To assault any person thereby occasioning them actual bodily harm’. Section 47 of the Offences against the Persons Act 1861 Actual bodily harm: means any harm which interferes with the health or comfort of the victim; not to a considerable degree, but must be more than transient or trifling. Even an injury to a person’s state of mind may be sufficient to constitute this offence. (R v Ireland 1997) OFFICIAL [PUBLIC] Page 20 There is no difference in the way the offence may be committed only in the consequences of those actions. The injury need not be permanent or even dangerous. It is enough for the injury to interfere with the person’s health or comfort. Typical Injuries  Loss or breaking of a tooth.  Extensive or multiple bruising (could include ‘black eye’ if substantial bruising).  Displaced or broken nose.  Minor fractures.  Minor cuts (not just superficial) - may require stitches.  Temporary loss of sensory functions (includes loss of consciousness).  Psychiatric injury (must be proved by appropriate expert evidence) which is more than fear, distress or panic. Should the injuries sustained, amount to more than the above then the offences may be that of Grievous Bodily Harm. Power of arrest Article 26 PACE (NI) Order 1989 Arrest without warrant - subject to necessity criteria. Power of Entry Yes – Article 19 PACE (NI) Order 1989 tri-able either way (held as indictable). Points to Prove Unlawfully. Assaulted. Another person. Occasioning him/her. Actual bodily harm. Sentencing Guidelines Summarily – 12 months imprisonment or a fine not exceeding £5000, or both. Indictment – 7 years imprisonment or an unlimited fine or both. OFFICIAL [PUBLIC] Page 21 Grievous Bodily Harm (GBH) Wounding or Inflicting GBH ‘Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument...’ Section 20 of the Offences against the Persons Act 1861 Explanations of Terms Unlawfully (without excuse or legal justification) The use of this phrase within both sections allows the defence counsel to enter a plea of: Self-defence. Defence of others. Defence of property. Force used for the purpose of prevention of crime. In all these cases it is the responsibility of the prosecution, through your evidence, to prove otherwise. Maliciously Malice, (ill-will or an evil motive) must be present. This means an actual intention to do the kind of harm that was in fact done, or reckless as to whether such harm should occur. Note, that although malice must be present, it is not limited to (nor does it require) any ill- will towards the victim personally. Reckless The defendant was aware of the existence of the risk but nonetheless had gone on and taken it. (R v Cunningham, 1957) OFFICIAL [PUBLIC] Page 22 Example In the reckless passing-on of a sexually transmitted infection, the suspect would foresee that the victim might contract the infection through sexual activity but would still go on to take that risk. The suspect must know that the actions would result in some kind of injury, but does not necessarily have to foresee the degree of injury. The injuries can be caused with or without a weapon. Wound/Inflict Wound - The human body has seven layers of skin and all layers (dermis and epidermis) must be broken to constitute a wounding. A cut which breaks all the layers of a person’s skin whether caused externally (with a knife) or internally (a punch causing a tooth to puncture the inner cheek), will amount to a wound. Inflict – GBH can be inflicted without there being an assault. Inflict does not have as wide a meaning as cause’ GBH can be caused without there being an assault. GBH can be ‘inflicted’ either by: directly and violently assaulting the victim; or something done which although in itself is not a direct application of force to the body of the victim, does directly result in force being applied to the body of the victim so that they suffer GBH. (R v Wilson & Jenkins, 1983) It was, until recently, a belief of the courts that ‘inflict’ implied some kind of physical contact between the parties involved. This has however been overruled by the House of Lords where persistent harassment by means of the telephone, causing psychiatric injury, was deemed to be inflicted. (R v Ireland, 1997) OFFICIAL [PUBLIC] Page 23 Typical Injuries Grievous bodily harm – Means, ‘serious bodily harm’. Injuries – (Section 20 offence) Break in the continuity of whole of outer skin (7 layers). Permanent disability or disfigurement. Permanent loss of sensory functions. Broken or displaced limbs/bones. Fractured skull. Broken cheekbone/jaw or ribs. Injuries resulting in substantial blood loss. Psychiatric injuries (proven by a medical expert). Serious harm/wounding. Puncture wound to inner cheek. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. Power of Entry Yes – Article 19 PACE (NI) Order 1989 hybrid offence. Points to Prove Unlawfully. Maliciously. Wounded or inflicted GBH. Upon another person. Sentencing guidelines Tri-able either way – Hybrid offence. Summarily – 12 months imprisonment or a fine not exceeding £5000, or both. Indictment – 7 years imprisonment or an unlimited fine or both. OFFICIAL [PUBLIC] Page 24 Wounding or Causing GBH with Intent “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detention of any person…” Sec 18 of the Offences against the Persons Act 1861 Explanations of Terms Unlawfully Without excuse or legal justification. The use of this phrase within both sections allows the defence counsel to enter a plea of: Self-defence. Defence of others. Defence of property. Force used for the purpose of prevention of crime. In all these cases it is the responsibility of the prosecution, through your evidence, to prove otherwise. Maliciously This means an actual intention to do the kind of harm that was in fact done, or reckless as to whether such harm should occur. Note, that although malice (ill will or a malevolent motive) must be present, it is not limited to (nor does it require) any ill-will towards the victim personally. It is suffice that the defendant was aware that some harm would occur, even of a minor nature, as a result of the action taken. They do not necessarily have to have foreseen the degree if injury. OFFICIAL [PUBLIC] Page 25 Any Means Whatsoever This is given its literal meaning. A connection between the means used and the harm caused must be proved. Wound The human body has seven layers of skin and all layers (dermis and epidermis) must be broken to constitute a wounding. A cut which breaks all the layers of a person’s skin whether caused externally (with a knife) or internally (a punch causing a tooth to puncture the inner cheek), will amount to a wound. Cause Defined as ‘anything that produces a result or ‘effect’. Cause has a wider meaning than ‘inflict’. All that needs to be proved is some connection between the action (the means used) and the injury (sometimes called the chain of causation). There does not need to be a direct application of force. Example The defendant intends to assault a person and kicks down a door, making the victim jump out of the window to escape thereby suffering harm/injuries. There is clearly a causal link between the actions of the defendant and the victim’s injuries and the chain of causation is unbroken. (R v Marjoram, 1999) This offence should be given its ordinary meaning of ‘really serious bodily harm’. It is not necessary that the harm was either permanent or dangerous. It also includes psychiatric injury caused by harassment. Intent You can only determine the intention of the accused by considering all the relevant evidence and circumstances surrounding the incident. However if the intent is to cause GBH it does not matter if the person injured was the intended victim. OFFICIAL [PUBLIC] Page 26 Example Talbot threatens Ritchie with a broken bottle for making a pass at his girlfriend Judith. Judith steps in front of Talbot to calm him down just as he lunges forward the bottle slices her face, Ritchie runs off uninjured. GBH with Intent, Section 18 offence? Yes. Intent on Ritchie but not the actual victim. Clearly for an offence of Section 18 the offender must have intent to commit GBH. This intent makes Section 18 a more serious assault carrying a greater custodial penalty than Section 20. It is not necessary for the injuries to be more serious than the Section 20 offence. With a Section 20 assault the offence merely requires an unlawful and malicious act resulting in either a wounding or grievous bodily harm. With Intent to Resist or Prevent the Lawful Apprehension or Detention of any Person Example If a suspect pushes a store detective who is trying to arrest his/her partner in a shoplifting incident and the store detective is seriously injured (as a result of the push), the offence has been committed Example A police officer is assaulted (resulting in serious injuries) during the course of an arrest of a disorderly male. The male assaults the officer to try to resist his arrest. The offence is complete. (The offence is more serious than an ‘assault on police’, (Section 66(1) Police (NI) Act 1998) as this offence only covers injuries consistent with common assault. The arrest/detention in these circumstances must be lawful. OFFICIAL [PUBLIC] Page 27 Typical Injuries (Section 18 offence) Break in the continuity of whole of outer skin (7 layers). Permanent disability or disfigurement. Permanent loss of sensory functions. Broken or displaced limbs/bones. Fractured skull. Broken cheekbone/jaw or ribs. Injuries resulting in substantial blood loss. Psychiatric injuries (proven by a medical expert). Serious harm/wounding. Puncture wound to inner cheek. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant -subject to necessity criteria. Power of Entry Yes – Article 19 PACE (NI) Order 1989 - Indictable offence. Points to Prove Unlawful and maliciously. Caused GBH or wounded a person. With intent to. Do GBH or resist/prevent lawful apprehension /detention of self or others. Sentencing Guidelines Tried on Indictment ONLY - Life imprisonment. OFFICIAL [PUBLIC] Page 28 In Summary Common Assault - no injury to minor injury. AOABH - minor injury. GBH - major injury Defences to Assaults There are a number of defences to the charge of assault. Accident As long as malice is not present. Consent  Consent can be given for some acts: Tattooing, piercings or being operated on for a medical condition.  Consent can be a defence provided.  It does not involve any illegal purpose (i.e. bare knuckle fight), and  No excessive violence or injury is caused, and  It is a true consent (i.e. not obtained by fear, fraud or ignorance). Consent Cannot Include Being reckless as to whether consent was or was not actually given. Submitting to an assault, actual or grievous bodily harm, by giving in. For example, while our friends would strongly object to us beating and kicking them, a slight application of force such as a tap on the shoulder, a nudge or a (not too hard) slap on the back could be accepted as everyday bodily contact. Much depends on who people are, where they go and what they do. That consent is only implied for reasonable bodily contact. Even in the examples given it is not difficult to imagine how easy it would be to overstep the mark, and there we are back to battery again. OFFICIAL [PUBLIC] Page 29 Even when consent is specifically given, there might still be ‘battery’. When persons know to what they are consenting, and freely give consent (for example, a sado- masochistic sexual act) then if the act concerned requires that society be protected against a cult of violence, that consent cannot be a defence. Legal Justification (R v Brown, 1993) Lawful correction: A parent correcting a child is legally justified provided it is reasonable as regards the manner of the correction. It depends upon what is reasonable and moderate, taking into account the age and health of the child, it is deemed that an assault that amounts to more than common assault is unlawful. Self-Defence (Common Law) People may tell you that they acted only in self-defence, but what does that phrase mean? A person may defend themselves, close relatives, husband, wife, child, parent etc. ‘Master’ and ‘servant’ may defend each other’s property in some cases, although it is harder to justify self- defence where property is concerned. So if someone sees their child being attacked, the law recognises that the parent may defend them, but may only turn the attacker away. If the attacker is then chased and an assault and battery is committed, you can see that this goes beyond self-defence. Legal Right or Duty As a Constable you will have legal rights and duties. When taking hold of someone during an arrest, although there is technically a ‘battery’ on that person, it is not unlawful provided that the arrest you are making is lawful. You are then protected from civil action being taken against you, because you have done nothing wrong. However, you may use only such force as is reasonable in the circumstances, otherwise you commit a criminal offence, i.e. common assault, or, depending upon the force used, a more serious form of OFFICIAL [PUBLIC] Page 30 assault. For example, if you were to arrest an elderly shoplifter, you may need to, only take hold of the person’s arm, but you may have to use more force if you were trying to arrest a drunk who was struggling. You are not above the law and the protection given extends only to what is reasonable in the circumstances. If you have to use force to arrest someone, do not try to hide this fact. Tell the custody officer and document your actions and rationale in your digital police notebook. You should remember that any person may use as much force as is reasonable for the purpose of preventing a crime. Section 3 Criminal Law (NI) Act 1967 Assault on Police ‘Any person, who assaults, resists, obstructs or impedes a constable in the execution of his duty, or a person assisting a constable in the executing of his duty, shall be guilty of an offence.’ Section 66(1) Police (NI) Act 1998 Explanations of Terms Assaults Similar to common assault, the results of which are minor or no injuries. If the injuries amount to actual or grievous bodily harm, then these offences would be more appropriate. OFFICIAL [PUBLIC] Page 31 Resists This implies a degree of physical confrontation or struggle. Obstructs Obstruction does not have to be of a bodily form, such as standing in the way. It can be caused by omitting to do something, but only where a person was already obliged to undertake some duty for a police officer. Impedes Delay, hinder or prevent a police officer by obstructing them. Due Execution of his Duty It is not enough just to be simply on duty. An officer must be in the lawful execution of his/her duties and exercising his/her powers with authorization. For example; if a police officer makes an unlawful arrest, then neither he/she nor anyone else assisting would be protected by this offence. The duty of the officer must be a lawful one, if you are trying to make an unlawful arrest, or otherwise acting in circumstances where you have no special police powers, for example assisting a private person to eject a trespasser, you are not ‘executing your duty’ as a police officer. It is not necessary to prove that the person knew the officer was a constable nor that they were aware the constable was in the execution of their duty. If however, you were in plain clothes it would be advisable to inform the person who you are. Police officers are sometimes assaulted while carrying out their duties. This is not just in connection with serious public disorder, but in everyday situations when people get excited by drink, drugs or unusual events. Person Assisting a Constable A person assisting a Constable could mean anyone, including colleagues, police support employees, and members of the public. Example As her boyfriend is being arrested for shoplifting Peterson slaps the officer in the face. OFFICIAL [PUBLIC] Page 32 Assault under Section 66. Example Whilst an officer is arresting her boyfriend for shoplifting the store detective, who is assisting the police, is slapped in the face by Peterson. Assault under Section 66. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. Power of Entry Article 19 PACE (NI) Order 1989 – Hybrid offence. Assault to Prevent Arrest ‘‘Any person, who assaults any person with intent to resist or prevent the lawful apprehension of himself or of any other person for any offence, shall be guilty of an offence’ Section 7(1) Criminal Justice (Miscellaneous Provisions) Act (NI) 1968 This offence covers the circumstances when a civilian is making or attempting to make an arrest and is assaulted. OFFICIAL [PUBLIC] Page 33 Explanations of Terms Intent The intention of the assault must be to prevent the arrest of the individual or another. Lawful Apprehension If the arrest is not lawful then there is no offence under this Section. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. Power of Entry Article 19 PACE (NI) Order 1989 – Hybrid offence. Threats to Kill ‘“A person who without lawful excuse makes to another a threat, intending that the other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence”. Section 16 of the Offences against the person Act 1861 Explanations of terms Threat The threat can take any form and may be expressed or implied. The threat does not have to be carried out at that moment but may relate to sometime in the future. It does OFFICIAL [PUBLIC] Page 34 however have to be carried out by the individual making the threat or at least under their instruction. Intending It is immaterial that the person receiving the threat actually believes that it will be carried out. The offence is in the intention of the person making the threat. One way this offence can be committed is straightforward: A threatens to kill B and intends that B will believe the threat. Example Annie says to Bob, “You’ve had it, you’re dead, I will see to it you are dead”. Annie wants Bob to believe that her threat to kill is real. The other way this offence can be committed is slightly more complicated: A communicates a threat to kill, and intends that B should believe the threat. But the threat is not about killing B, it is about killing another person, C (it is irrelevant whether C knows about the threats) Example Adam says to Bill, “that Colin – he’s finished now, Ill sort it – final like, stone cold, dead”. Adam intends that Bill should believe that this threat to kill Colin is real. To prove this offence, it is not necessary for A to actually intend to kill anyone, but it must be proved that A intends that B should believe and fear that this would be carried out. The threats made by A can be premeditated, or spoken during the heat of an argument. They can be communicated via various means (e.g. Social media, email etc.), and do not need to be such that the threat can be carried out immediately. Threats to kill are relatively common and it’s often very difficult to prove an offence has occurred because it is often one person’s word against another. There are also defences such as; A only made the threats against B in self-defence. OFFICIAL [PUBLIC] Page 35 The onus is on the Prosecution to prove that there was no lawful excuse for making the threat. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. Power of Entry Article 19 PACE (NI) Order 1989 (Hybrid offence). Sentencing Guidelines Indictment – 10 years imprisonment – Unlimited fine OR both. Summarily – 12 months imprisonment – Fine not exceeding £5000 or BOTH. Case Law Logdon v DPP, 1976 R v Lamb 1967 R v Constanza 1997 R v Day 1845 R v Cunningham 1957 Haystead v CC of Derbyshire 2000 R v Ireland 1997 R v Cunningham 1957 R v Marjoram 1999 R v Brown 1993 Crimes Aggravated by Hostility Unlike the Crime and Disorder Act for England and Wales, Northern Ireland has no specific legislation detailing hate offences. The Criminal Justice (No2) (NI) Order 2004 has however provided a court with the power to increase sentences when an offence is aggravated by hostility based on the victims actual or presumed religion, race, sexual orientation or disability. OFFICIAL [PUBLIC] Page 36 Hostility An offence is aggravated by hostility if: At the time or immediately before or after doing so, the offender demonstrates towards the victim hostility based on: membership of a racial group, membership of a religious group, membership of a sexual orientation group, a disability of the victim, or The offence is motivated (wholly or partly) by hostility towards: members of a racial group based on their membership of that group, members of a religious group based on their membership of that group, members of a sexual orientation group based on their membership of that group, persons who have a disability or a particular disability. Membership Includes if the offender presumes the victim is a member or has an association with members of that particular group. Racial group as defined by the Race Relations (NI) Order 1997 ‘racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls. Includes the Irish traveller community but does not include a group of persons defined by reference to religious belief or political opinion. OFFICIAL [PUBLIC] Page 37 Religious Group Means a group of persons defined by reference to religious belief or lack of religious belief. Sexual Orientation Means a group of persons defined by reference to sexual orientation. Disability Means any physical or mental impairment. It is therefore important that any comments made by the defendant is recorded for the courts. Remember this is for any offence and not just assaults. OFFICIAL [PUBLIC] Page 38 Assaults OFFICIAL [PUBLIC] Page 39 Public Protection and Safety PPS03 Child protection Introduction Child abuse is an emotive topic and frequently features in the media. Safeguarding and protecting children and young people is one of the most important roles for the Police Service of Northern Ireland. It is important that child protection is not seen solely as the role of the Public Protection Branch and its respective specialist units, but that it is a fundamental part of the duties of all police officers and police staff. Police have a duty and responsibility to investigate criminal offences committed against children. The child’s welfare is the overriding priority and investigations should be carried out sensitively, thoroughly and professionally. Safeguarding Children C7 sits within Crime Operations Department and is the Public Protection Branch (PPB). C7 has a number of functions, some of which you will learn about during the SOTP but these notes will cover your role in child protection and how this links in with referrals to the Central Referral Unit (CRU) of C7 and respective Child Abuse Investigation Units (CAIU). CRU is the gateway into C7 and they deal with the initial discussion with Social Services and decide on which department/unit is best placed to conduct the investigation. Child protection is everyone’s business. As police officers, we have a statutory responsibility for child protection as do social workers. As an operational police officer you may receive a report of child abuse from a member of the public, a parent, directly from a child, or by your own observations. How you deal with this will make all the difference in protecting children and enhancing public confidence. Your primary function is to keep the child safe. OFFICIAL [PUBLIC] Page 40 It is your responsibility to take action and the welfare of the child is paramount. You must never leave the child unsupervised with the alleged offender and you must take immediate safeguarding action. Your professional curiosity to remain vigilant and make relevant enquiries to assess risk, will be crucial to your ability to keep children safe. There are also two strategies Operation Encompass – sharing information with schools, and Violence against Women and Girls (VAWG) STRATEGY (Non-examinable) Operation Encompass The scheme is a partnership between the Police Service of Northern Ireland, the Education Authority, the Safeguarding Board of Northern Ireland and schools. If officers attend a domestic abuse call, and children are present, Operation Encompass allows the officer to pass on relevant information to the safeguarding team at the child’s school before 9am the following morning, so the right support can be put in place. “The scheme allows us to share information with schools in quick time so that we can best protect and support children through times that are incredibly difficult for them. School is often seen as a ‘safe place’ for a child in these circumstances and the support and understanding that teachers can provide should never be underestimated. We are delighted that this scheme is now fully operational across all schools in Northern Ireland. We are working in partnership to break the cycle of abuse.” Violence against Women and Girls This is a key issue for policing both in Northern Ireland and across the UK. As a police service we will be working to better recognise, understand, address and reduce the harm and fear experienced by women and girls.” In Northern Ireland over the last five years, 28 women and girls were murdered by men. Many others faced other forms of male violence, abuse and intimidation both within their own homes and the wider community and our statistics show that we receive a call of domestic abuse once every 16 minutes. Chief Superintendent McNally commented; “Whilst recognising much has already been done to prevent violence against women and girls, more can and should be done, and we are committed to creating an environment where women and girls can feel safe and be safe. “The Violence Against Women and Girls Action Plan is set out to be delivered over 7 years and sets OFFICIAL [PUBLIC] Page 41 out, for the first time in Northern Ireland, a clear roadmap for how we will play our part to tackle this societal issue focusing on prevention, early intervention and enhanced support for victims in years one and two, with the primary objective to build trust and confidence in policing. It follow the National Police Chief’s Council’s national strategy on how police can support women and girls who are victims of violence and harassment focusing on three pillars of building trust and confidence in policing, relentless perpetrator pursuit and supporting victims, and creating safer spaces for women and girls. Child Abuse Child abuse is a generic term encompassing all situations involving ill-treatment of children. Child abuse can be divided into 5 categories: 1. Neglect. 2. Physical abuse. 3. Emotional abuse. 4. Sexual abuse. 5. Exploitation. 1. Neglect Neglect can be described as the persistent failure to meet a child’s physical, psychological and emotional needs and it is likely to cause significant harm. ‘Neglect’ is not the actual offence but a component of the offence of ‘cruelty’ under Section 20 Children and Young Persons Act (Northern Ireland) 1968 (Cruelty to persons under sixteen) which states; “If any person who has attained the age of sixteen and has responsibility for any child or young person under that age, wilfully, assaults, ill-treats, neglects, abandons or exposes him, or causes or procures him to be assaulted, ill- treated, neglected, abandoned or exposed in a manner likely to cause him unnecessary suffering or injury to health (including to or loss of sight, or OFFICIAL [PUBLIC] Page 42  hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence.” Section 20 – Explanation To commit this offence the offender must be over 16 years of age and the child they are responsible for must be under 16 years of age. The offender must wilfully assault, ill- treat, neglect, abandon or expose the child, or cause or procure him to be treated as such, in a manner likely to cause unnecessary suffering, or injury to health. Example Claire, a single mum, spends the family credit money on her Saturday nights out on alcohol for herself. The result of this is that her children have not been properly fed for some time and are now without some of their basic needs such as food, clothing and warmth. Claire has wilfully made the decision to direct her resources in the wrong direction and “shall be deemed to have neglected her children in a manner likely to cause injury to health”. Key Learning Point Offender = over 16 Child = under 16 ‘Wilfully’ means it is a deliberate act or omission. It is not accidental. The harm does not actually have to have happened. The risk is enough. OFFICIAL [PUBLIC] Page 43 2. Physical Abuse Is deliberately physically hurting a child. It might take a variety of different forms, including hitting, biting, pinching, shaking, throwing, poisoning, burning or scalding, drowning or suffocating a child. This is not an offence definition as there isn’t a specific offence of ‘physical abuse’, but physical abuse against children is primarily covered by assault offences within the Offences against the Person Act 1861. This will be covered in your assault lesson as part of the Public Protection and Safety Module. To dispel any myths - It is a criminal offence to assault a child. Prior to 2006 there was a presumption that parents were entitled to discipline their children as long as it was reasonable. Article 2 of The Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006 brought into legislation that any assault of a child is a criminal offence. Therefore, any assault resulting in AOABH level injury or worse, is an offence with no defence available. However, a common assault (S.42 Offences Against the Person Act 1861) is still an offence, but there is a defence available which is one of reasonable punishment (for common assault only). This does not mean that the police will be deciding on what is reasonable punishment or not. It is a defence that the suspect can raise and it is for the PPS to decide whether or not a prosecution is brought and, if so, it is for a court/jury to decide whether the defendant’s punishment of the child was reasonable or not. 3. Emotional Abuse There is no criminal offence of emotional abuse, but it will prevalent with all other forms of abuse. It can be described as the persistent emotional ill- treatment of a child, such as to cause severe and persistent adverse effects on the child’s emotional development. Conveying to a child that they are worthless, inadequate or unloved. It can also include exploitation, corruption, causing children to feel frightened, or in danger. Smothering a child’s development through over-protection, can also be emotional abuse. OFFICIAL [PUBLIC] Page 44 Whilst Police are not clinically trained practitioners in identifying emotional disorders, it is important to question the reasons behind children’s behaviour. If you’ve concerns about a child’s emotional well-being, and no criminal offences are suspected then you should refer the matter to social services. Example Police attend a domestic dispute reported by neighbours. On arrival police observe that the parents are intoxicated, crockery has been smashed and music is blaring. Police check on the two children upstairs and see that they are asleep and appear to be unaware of the domestic dispute between their parents. It would be questionable as to why the children are able to sleep through such a dispute and it is reasonable for the police officer to suspect that this is possibly a regular occurrence which has become the norm and that the children are being subjected to emotional abuse by the behaviour of their parents. The officer’s concerns regarding the situation the children were subjected to would need to, be referred to social services. 4. Sexual Abuse Sexual abuse occurs regardless of whether the child is aware of what is happening or not. It may involve direct sexual contact, or inciting sexual activity, as well as non- contact offences such as the viewing of indecent images of children. The majority of offences for sexual abuse are legislated for in the Sexual Offences (Northern Ireland) Order 2008. If you suspect child abuse you must take immediate action to safeguard their welfare. This may involve taking the child into police protection or arresting the offender for example. It may be as straight forward as arranging for a suitable adult (relative) to care for the child pending slower time action from Central Referral Unit (RCU) and Social Services. This is a judgement call, based on the facts as they are presented. The most important thing is to ensure that the child is protected and not placed at further risk. You must not think that ‘someone else’ will see to things. You must act! OFFICIAL [PUBLIC] Page 45 5. Exploitation Exploitation is the intentional ill-treatment, manipulation or abuse of power and control over a child or young person. Selfish or unfair advantage of a child or young person or situation, for personal gain. It may manifest itself in many forms, such as child labour, slavery, servitude, and engagement in criminal activity, begging, benefit or other financial fraud, or child trafficking. Exploitation can also be sexual in nature. Whilst exploitation is not a specific offence in its own right the primary offence may well be contained within other legislation covering sexual offences, assault or trafficking for example. Removal and accommodation of children by police in cases of emergency This piece of legislation enables police officers to take a child into police protection, in order to safeguard the child deemed at risk of significant harm. Article 65 states: (1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may— (a) Remove the child to suitable accommodation and keep him there; or (b) Take such steps as are reasonable to ensure that the child's removal from any hospital, or other place, in which he is then being accommodated is prevented. (2) A child with respect to whom a constable has exercised his powers under this Article is referred to as having been taken into police protection. (3) As soon as is reasonably practicable after taking a child into police protection, the constable shall secure that the case is inquired into by a designated officer. (Inspector) Article 65(1) Children (Northern Ireland) Order 1995 OFFICIAL [PUBLIC] Page 46 ‘Constable’ Means any rank of police officer and they do not have to be in uniform. ‘Child’ A person under 18 years of age. ‘Reasonable Cause to Believe’ This condition is harder to satisfy than ‘reasonable grounds to suspect’. The basis for an actual belief as opposed to suspicion needs to be set out. This gives an indication of the importance of the assessment of risk and the ability to rationalise why this action was followed. Police Protection is not to be taken lightly. ‘Otherwise be Likely’ This is the ‘necessity’ aspect – your reasonable belief is that if police protection is not exercised then the child would suffer significant harm. ‘Significant Harm’ There is no absolute definition for the term significant harm. The significant harm will be a matter for assessment or judgement. In relation to each individual child in the circumstances, their health or development will be compared with that which could reasonably be expected of a similar child in the circumstances. ‘Suitable Accommodation’ A police station is not suitable accommodation. Taking a child to a police station while you do other important things means you are looking after your interests not the child’s. Preferably Social Services or a family member will provide suitable accommodation whilst enquires are made. Social Services have a statutory duty to provide suitable accommodation for a child, which often means they are placed with a suitable adult (usually family) to limit distress and disruption for the child. In the rare case that a police establishment is the only option then Garnerville or Mahon Road (or similar police establishment) should be used, but never a police station. OFFICIAL [PUBLIC] Page 47 ‘Keep’ ‘Police protection’ lasts for a maximum of 72 hours. Power of Entry There is no power of entry under Article 65 of the Children (NI) Order 1995, but the powers of entry under the following may be applicable:- Article 19 PACE (NI) Order 1989 – saving life or limb. Common Law – to prevent a Breach of the Peace. Example You are called to a hospital where the doctor explains that because of the head injuries the child has to be detained overnight. The parents have consumed alcohol and they will not let the child stay. The head injuries are required to be monitored; are the parents in a fit state to do this and is there reasonable cause to believe the child is likely to suffer significant harm? If you do invoke the powers of part (b) then again the child is in ‘police protection’ and will be for up to 72 hours. If you take a child into police protection you must do the following: Inform the designated officer (Inspector). Inform Public Protection Branch. OFFICIAL [PUBLIC] Page 48  Key learning point You do not need authority from an Inspector to use Article 65. It is your decision. A child for this legislation means anyone under 18. You must inform the designated officer ASAP (Inspector). Inform Public Protection Branch. Child Abduction The Children (Northern Ireland) Order 1995 refers to under 18’s in care and the Child Abduction (Northern Ireland) Order 1985 refers to under 16’s abducted by parents or others. Both offences are covered below. Offence – Abduction - Article 68 the Children (NI) Order 1995 Abduction of children in care. A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he:-  Takes a child to whom this Article applies away from the responsible person;  Keeps such a child away from the responsible person; or  Induces, assists or incites such a child to run away or stay away from the responsible person. This Article applies in relation to a child who is:-  in care;  the subject of an emergency protection order; or  in police protection, OFFICIAL [PUBLIC] Page 49 “The responsible person” means any person who for the time being has care of him, by virtue of the care order, the emergency protection order, or Article 65, as the case may be. This can mean the police officer who has taken the child into police protection (Article 65). This legislation provides an added layer of protection to those children (under 18) in care, subject of an emergency protection order, or police protection. Remember, Article 65(1) (2) Children (Northern Ireland) Order 1995 allows you to take reasonable steps to prevent a child being removed. Section 3 of The Criminal Law Act 1967 also permits you to use reasonable force to prevent crime. If someone manages to remove the child then they would have committed an offence under Article 68 Children (NI) Order 1995 (which is covered below) and your Article 26 power of arrest would apply. Your priority is to safeguard the child at all times. Key learning point For Article 68 to apply the child must meet one of the following three criteria: In care Subject to an emergency protection order In police protection (Art 65 has been used) Offence – Abduction – The Child Abduction (Northern Ireland) Order 1985 Article 3(1) of this Order covers situations where a ‘person connected’ with a child under the age of 16 takes or sends the child out of the United Kingdom, without the ‘appropriate consent’. A ‘person connected’ with a child is generally a parent, guardian or person with custody of the child and the ‘appropriate consent’ is that of the other parent, the guardian, person with custody of the child or of a court. This offence is normally committed where parents (or family members acting as guardians) take or send the child out of the UK. OFFICIAL [PUBLIC] Page 50 Article 4(1) of this order this legislation relates to where any person, without lawful authority or reasonable excuse, takes or detains a child under the age of 16 either:  To remove the child from the lawful control of any person having lawful control of the child, or  To keep the child out of the lawful control of any person entitled to have lawful control. Key learning point Articles 3 and 4 of The Child Abduction (NI) Order 1985 applies to under 16’s. Article 3 applies to parents or guardians taking or sending the child out of the UK. Article 4 applies to ‘other persons’ (those other than mentioned in Art 3) taking or detaining a child. Article 68 of The Children (NI) Order 1995 applies to under 18’s. 3 and Article 26 PACE power of arrest applies. Child Abduction Warning Notice (CAWN) In some instances individuals may allow children to be in their company, for example, to stay in their home or to associate with them in other places, even arranging for transport without informing the child’s parent/guardian/carer of their intentions. They either directly or indirectly encourage them to go missing or to stay away from their parents/guardians/carers. This can lead to an increase in the number of people reported missing and children being subject to potential abuse. OFFICIAL [PUBLIC] Page 51 Some of these individuals actually target young people for the purpose of exploiting their vulnerabilities and as a result serious offences may be committed against these children. CAWN may result in the severance or disruption of contact between the child/young person and the person of concern. Whilst used as a way of disrupting exploitative behaviour, the issuing of a CAWN can also assist evidentially in the future prosecution pursuant to Article 4 Child Abduction (NI) Order 1985 or Article 68 Children (NI) Order 1995. CAWN may be used to prevent a person successfully raising defences (age of child and permission from parent/carer) should they be charged with either of the above offences. As a first responding officer you are the eyes and ears on the ground and it is important to submit CI1’s/sightings of those children who are potentially at risk and of the person who is of concern. The decision to issue a CAWN on a person is made by the Sergeant in the relevant PPB. It is important to liaise with the PPB and make them aware of your concerns. Public Protection Branch (PPB) Child Sexual Exploitation (CSE) CSE is the intentional ill-treatment, manipulation or abuse of power and control over a child or young person and includes taking selfish or unfair advantage of a child or young person or situation, for personal gain. It may manifest itself in many forms such as child labour, slavery, servitude, and engagement in criminal activity, begging, benefit or other financial fraud or child trafficking. It extends to the recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation. Exploitation can be sexual in nature. CSE is not an offence but is an aspect of exploitation (a form of child abuse). It is a context where offending can occur. Offences will mainly come under the Sexual Offences (NI) Order 2008. The key factor that identifies cases as CSE is the concept of ‘exchange’. The fact that OFFICIAL [PUBLIC] Page 52 someone coerces, or manipulates a child into engaging in sexual activity in return for something they need, desire and / or for the gain of those perpetrating or facilitating the abuse. The something received by the child or young person can include both tangible items and / or more intangible “rewards” or “benefits”, such as perceived affection, protection or sense of value or belonging. Just because a young person receives something they need or desire, does not mean they are not being abused. Taking advantage of this need or desire, and making the young person think they are in control because they are getting something in return, is part of the abusive process. CSE should not be viewed in isolation from the more inclusive concepts of sexual abuse and sexual violence and other relevant concepts such as domestic violence, trafficking or going missing from home or care, in order to ensure that young people suffering these forms of violence are not overlooked. Identifying CSE Many children and young people misinterpret such experiences as consensual and fail to recognise the exploitation involved. This can lead to misplaced feelings of loyalty or shame on the part of victims, who will consequently not disclose this information. Just because a young person does not see themselves as a victim, doesn’t mean that they aren’t. Our statutory responsibility to protect children and young people from abuse extends to all under 18s, irrespective of whether or not they view themselves as victims of abuse. Research shows that young people rarely report abuse through CSE. Most concerns are identified by professionals, family or friends or by proactive investigation on the part of the authorities rather than self-disclosure on the part of the victim. In recognition of this good practice guidance on CSE states that all areas should assume that CSE is occurring within their area unless they have evidence to indicate otherwise. Be alert to the likelihood of this and plan to protect children and young people accordingly. OFFICIAL [PUBLIC] Page 53 A key element is the having the awareness of potential indicators of CSE as outlined below (this list is not exhaustive): Acquisition of money, clothes, mobile phone etc. without explanation Leaving home/care without permission Persistently going missing or returning home late Receiving lots of texts/phone calls prior to leaving Agitated/distressed prior to leaving home/care Returning distraught/dishevelled or under the influence of substances Truanting from school Inappropriate sexualised behaviour for age Physical symptoms or infections e.g. bruising, bite marks, STIs Concerning use of the internet Entering or leaving cars driven by unknown adults or by taxis New peer groups Significantly older “boyfriend” or “girlfriend” Increasing secrecy around behaviour Low self esteem Self-harm and other expressions of despair Evidence or suspicion of substance misuse It is key to note that the presence of these indicators does not necessarily mean that CSE is occurring, more importantly, nor does their absence mean that it is not. Just because a young person does not recognise the abusive nature of their situation does not mean that they are not being abused. Many young people may not see the exploitative nature of their experience until months or years later when they are extricated from the situation and able to reflect on the manipulation and power imbalance at play. OFFICIAL [PUBLIC] Page 54 The Sexual Offences (Northern Ireland) Order 2008 This section of the notes deals with sexual offences against children. This legislation covers offences committed against children under 18, 16 and 13. Consent A person must be over 16 years of age to consent to sexual activity (16 and above). This means anyone aged 15 years of age and below cannot legally consent. Therefore, in the following offences it is irrelevant whether the child might have consented and this legislation is gender neutral. The legislation also has specific offences for under 13s. The distinction between offences whereby the victim is under 13 and those where the victim is over 13, but under 16, is that there is no reference to any reasonable belief of age by the offender when applied to under 13s. An understanding of certain terms within the Sexual Offences (NI) Order 2008 is essential. ‘Consent’: A child under 16 years of age can never legally consent to sexual activity. Meaning of ‘Sexual’ For the purposes of this Order, except Article 22A (sexual communication with a child) or Article 75 (sexual activity in a public lavatory), penetration, touching or any other activity is sexual if a reasonable person would consider that:- a Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or OFFICIAL [PUBLIC] Page 55  b Because of its nature, it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both), it is sexual. Key learning point If the activity would not appear to a reasonable person to be sexual then it will not meet the criterion and, irrespective of any sexual gratification the person may derive from it, the activity will not be sexual. Therefore, any weird or exotic fetishes that no ordinary person would regard as being sexual or potentially sexual will not be covered. Meaning of ‘Touching’ ‘Touching’ includes: With any part of the body. With anything else. Through anything. The following offences are all contained with the Sexual Offences (NI) Order 2008. Rape of a Child under 13 Article 12 (1) A person commits an offence if – a he intentionally penetrates the vagina, anus or mouth of another person with his penis, and b the other person is under 13. OFFICIAL [PUBLIC] Page 56  (2) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life. Key learning point For this offence to apply, the act of rape must have occurred and the victim must be under 13. The meaning of rape is the same as the adult offence under Article 5. Remember, consent does not apply to under 16s. A child under 16 can never consent to any form of sexual activity. It is the law. Rape can only be committed by a male but other sexual offences can be committed across genders. Assault of a Child under 13 by Penetration Article 13 (1) A person commits an offence if – a he intentionally penetrates the vagina or anus of another person with a part of his body or anything else, b the penetration is sexual, and c the other person is under 13. (2) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life. Key learning point It is important to know that this offence only includes penetration of the vagina or anus and not the mouth. OFFICIAL [PUBLIC] Page 57 Sexual Assault of a Child under 13 Article 14 (1) A person commits an offence if – a. he intentionally touches another person, b. the touching is sexual, and c. the other person is under 13. (2) A person is guilty of an offence under this Article is liable – a on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b on conviction on indictment, to imprisonment for a term not exceeding 14 years. Causing or Inciting a Child under 13 to Engage in Sexual Activity Key Learning Point The elements of this offence are the same as the adult offence save that consent is not a defence. Article 15 (1) A person commits an offence if – a. he intentionally causes or incites another person (B) to engage in an activity, b. the activity is sexual, and c. B is under 13. (2) A person guilty of an offence under this Article, if the activity caused or incited involved OFFICIAL [PUBLIC] Page 58  a. penetration of B’s anus or vagina, b. penetration of B’s mouth with a person’s penis, c. penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or d. penetration of a person’s mouth with B’s penis, is liable, on conviction on indictment, to imprisonment for life. (3) Unless paragraph (2) applies, a person guilty of an offence under this article is liable - a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 14 years. Key learning point The essence of the offence of incitement is the encouragement of a person under 13 to engage in sexual activity. It is that encouragement which must be intentional or deliberate. If the sexual activity occurs, then this would meet the ‘causing’ element of this offence but for incitement the act does not have to happen. It is the incitement (encouragement) which is the important element. Sexual Offences against Children under 16 The following offences refer to sexual offences against children under 16: Sexual Activity with a Child Article 16 (1) A person aged 18 or over (A) commits an offence if – OFFICIAL [PUBLIC] Page 59  a. he intentionally touches another person (B), b. the touching is sexual, and c. either - i. B is under 16 and A does not reasonably believe that B is 16 or over, or ii. B is under 13. (2) A person guilty of an offence under this article, if the touching involved – a. penetration of B’s anus or vagina with a part of A’s body or anything else, b. penetration of B’s mouth with A’s penis, c. penetration of A’s anus or vagina with a part of B’s body, or d. penetration of A’s mouth with B’s penis, is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years. (3) Unless paragraph (2) applies, a person guilty of an offence under this Article is liable— a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 14 years. Key learning point This offence is the same as Article 14 but you will note that there is now a reference to the belief of the victim’s age. This means that the defendant can raise a defence that he reasonably believed that the child was 16 years of age or over. This is the same for offences under Articles 16 to 19. OFFICIAL [PUBLIC] Page 60 Causing or inciting a child to engage in sexual activity. Article 17 (1) A person aged 18 or over (A) commits an offence if – a. he intentionally causes or incites another person (B) to engage in an activity, b. the activity is sexual, and c. either – i. B is under 16 and A does not reasonably believe that B is 16 or over, or ii. B is under 13. (2) A person guilty of an offence under this Article, if the activity caused or incited involved a. penetration of B’s anus or vagina, b. penetration of B’s mouth with a person’s penis, c. penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or d. penetration of a person’s mouth with B’s penis, i. is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years. (3) Unless paragraph (2) applies, a person guilty of an offence under this Article is liable – a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 14 years. OFFICIAL [PUBLIC] Page 61 Engaging in sexual activity in the presence of a child Article 18 (1) A person aged 18 or over (A) commits an offence if – a. he intentionally engages in an activity, b. the activity is sexual, c. for the purpose of obtaining sexual gratification, he engages in it – i. when another person (B) is present or is in a place from which A can be observed, and ii. knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and d. either - i. B is under 16 and A does not reasonably believe that B is 16 or over, or ii. B is under 13. (2) A person guilty of an offence under this Article is liable – a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 10 years. Key learning point The activity must be sexual and intentional and must be in order to obtain sexual gratification (for the defendant). The gratification does not have to be immediate i.e. a defendant may cause a child to watch a sexual act to put the child in a frame of mind for future sexual abuse. OFFICIAL [PUBLIC] Page 62 Causing a Child to Watch a Sexual Act Article 19 (1) A person aged 18 or over (A) commits an offence if – a. for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity, b. the activity is sexual, and c. either – (i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13. (2) A person guilty of an offence under this Article is liable – a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 10 years. Key Learning Point This offence is concerned with intentionally causing a child to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. OFFICIAL [PUBLIC] Page 63  Sexual Offences against Children committed by Children or Young Persons Article 20 (1) A person under 18 commits an offence if he does anything which would be an offence under any of articles 16 to 19 if he were aged 18. (2) A person guilty of an offence under this article is liable a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory minimum, or both; b. on conviction on indictment, to imprisonment for a term not exceeding 5 years. Key learning point The offences under Articles 16 to 19 refer to the offender being aged 18 and over. However, Article 20 means that these same offences also apply to offenders under 18, with the difference being reduced sentencing. Arranging or Facilitating Commission of a Sex Offence against a Child Article 21 (1) A person commits an offence if— (a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and OFFICIAL [PUBLIC] Page 64  (b) doing it will involve the commission of an offence under any of Articles 16 to 20. (2) A person does not commit an offence under this Article if— (a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another to do, and (b) any offence within paragraph (1)(b) would be an offence against a child for whose protection he acts. (3) For the purposes of paragraph (2), a person acts for the protection of a child if he acts for the purpose of— (a) Protecting the child from sexually transmitted infection, (b) Protecting the physical safety of the child, (c) Preventing the child from becoming pregnant, or (d) Promoting the child's emotional well-being by the giving of advice, and not for the purpose of obtaining sexual gratification or for the purpose of causing or encouraging the activity constituting the offence within paragraph (1)(b) or the child's participation in it. Key learning point This offence applies to activities by which the defendant intends to commit (or believes another person will commit) one of the relevant offences (Articles 16 – 20) anywhere in the world. This offence is complete whether or not the sexual activity actually takes place. OFFICIAL [PUBLIC] Page 65  (4) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years. Key learning point An example of the exception is a health worker supplying condoms to under 16’s who are intent on having sex in any event and need protection from infection. Meeting a Child Following Sexual Grooming etc. Article 22 22 (1) A person aged 18 or over (A) commits an offence if – A has met or communicated with another person (B) on one or more occasions, and subsequently – i. A intentionally meets B, or ii. A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or iii. B travels with the intention of meeting A in any part of the world, a. A intends to do anything to or in respect of B, during or after the meeting mentioned in sub-paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence, b. B is under 16, and c. A does not reasonably believe that B is 16 or over. OFFICIAL [PUBLIC] Page 66  (2) In paragraph (1) – a. the reference to A having met or communicated with B is a reference to A having met B in any part of the world or having communicated with B by any means from, to or in any part of the world; b. “relevant offence” means - (i) an offence under this Order or [F1 (ii) an offence under section 2 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation), or] (iii) anything done outside Northern Ireland which is not an offence under paragraph (i) or (ii) but would be an offence within paragraph (i) or (ii) if done in Northern Ireland. (3) A person guilty of an offence under this Article is liable - a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 10 years. OFFICIAL [PUBLIC] Page 67  Key learning point This Article also applies to the offence of Human Trafficking. Human trafficking is where someone arranges or facilitates the travel of another person with a view to them being exploited. Exploitation covers a number of criteria such as slavery, servitude and forced or compulsory labour. This section of the notes is concerned with sexual offences and those sexual offences are any offence within The Sexual Offences (NI) Order 2008 or Article 3(1) (a) of the Protection of Children (NI) Order 1978 (indecent photographs of children) Sexual Communication with a Child Article 22 22A (1) A person aged 18 or over (A) commits an offence if – a. for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B), b. the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and c. B is under 16 and A does not reasonably believe that B is 16 or over. (2) For the purposes of this Article, a communication is sexual if – a. any part of it relates to sexual activity, or b. a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual; c. and in sub-paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual. OFFICIAL [PUBLIC] Page 68 (3) A person guilty of an offence under this Article is liable - a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 2 years.” Sexual Grooming: Pretending to be a child. (4) (1) After Article 22A of the Sexual Offences (Northern Ireland) Order 2008 insert— “Communicating with a person with a view to grooming a particular child 22B.—(1) A person aged 18 or over (A) commits an offence if— (a) A communicates with another person (B), (b) at the time of the communication, A intentionally presents himself or herself to B, to a group of persons that includes B or to the public at large as being under 18, (c) A’s intention in communicating with B is to establish or participate in an exchange of communications with a particular person whom A has in mind (C) with a view to subsequently committing a relevant offence against C, and (d) C is under 16 and A does not reasonably believe that C is 16 or over. (2) B and C may be the same person. (3) If— (a) A communicates with a group of persons, and (b) the group contains a person to whom A intentionally presents himself or herself as being under 18, A is to be regarded as communicating with that person. Communicating with a group with a view to grooming a particular child 22C. A person aged 18 or over (A) commits an offence if— (a) A communicates with a group of persons, OFFICIAL [PUBLIC] Page 69 (b) at the time of the communication, A intentionally presents himself or herself to the group or to the public at large as being under 18, (c) A’s intention in communicating with the group is to establish or participate in an exchange of communications with a particular person whom A has in mind (B) with a view to subsequently committing a relevant offence again