Recently an officer thanked me for an input I had provided a few years ago on a public order course, when I shared the best kept secret in Scottish policing;
it shall be the duty of the constables of the police force to guard, patrol and watch so as …. to preserve order
The officer has used this regularly carrying out their duties. I became aware of the utility of this piece of legislation a few years ago during a public order commanders course at Tulliallan Castle, the Scottish Police College. The senior legal advisor from Strathclyde Police gave a presentation that stirred my interest in Human Rights law and practice and reminded us about this piece of legislation and it’s relevance in human rights law.
Preserving order is one of the duties of the police and has been since the first modern police force was established (City of Glasgow Police in 1800, sorry Sir Robert Peel). It is perhaps wrong to describe it as a secret as every officer going through basic training at the Scottish Police College is provided with an input on it. However, since I and many colleagues undertook basic training prior to Human Rights legislation, the practical application of it has not been acknowledged by us.
The following scenarios provide examples using this piece of legislation.
A police officer intervenes in an altercation outside a nightclub, giving some friendly advice to the persons involved and sending them away in different directions. This is practical, common sense policing and occurs on a daily basis. Since we police by consent and the police are held in respect by the community, most people will comply with this instruction.
However, this interferes with the human rights of the persons involved, especially their right to privacy and to freedom of expression. I have blogged previously about human rights law and explained that police can restrict rights if the restriction is Proportionate, Lawful, Accountable and Necessary (PLAN). In this situation Section 17 provides the basis in law, it is our legal duty to preserve order.
In addition to the human rights aspect, since the officer is carrying out their lawful duty to preserve order a failure to comply would be obstructing a constable in the execution of his duty, in contravention of Section 41(1)(a) Police (Scotland) Act 1967.
During a contentious football match, sections of both supporters continually goad each other and intelligence is received that there will be disorder outside the ground following the fixture. Based on the crowd dynamics and the intelligence, the match commander decides to keep one section of the crowd in the stadium after the match until the other section has been dispersed, before escorting them to their buses or trains. The detention of fans within the stadium is a restriction of their human rights, the legal basis of which is Section 17.
I could provide a number of similar scenarios which use this legislation to provide the legal basis for police action.
I would be interested in feedback from English/Welsh officers on similar powers/duties that they have and the use or implementation of them.
Following the creation of the single Scottish Police Force, the Police (Scotland) Act 1967 has been replaced by the Police and Fire Reform (Scotland) Act 2012. I’m pleased that this legislation still defines the duty of a Constable to maintain order, Sec 20(1)(a)