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DigestJuly 2016A digest of police law, operational policing practice and criminal justice

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OFFICIALDigest July 2016

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The Digest is a primarily legal environmental scanning publication intended to capture and consolidate topical and key issues, both current and future, impacting on all areas of policing.

During the production of the Digest, information is included from governmental bodies, criminal justice organisations and research bodies. As such, the Digest should prove an invaluable guide to those responsible for strategic decision making, operational planning and police training.

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Overview 4Legislation 5 Bills before parliament 5 Policing and Crime Bill 5 Investigatory Powers Bill 5 Statutory Instruments 6 Immigration Act 2016 (Consequential Amendments) Regulations 2016 6 Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) 6 (England) Regulations 2016

Case law 7 Evidence and procedure 7 Awoyemi and Ors v R [2016] EWCA Crim 668 7 General police duties 9 Mouncher and Ors v The Chief Constable of South Wales Police [2016] EWHC 1367 9 Human rights 11 R (on the application of R) v Greater Manchester Police and Anor [2016] EWCA Civ 490 11Policing practice 13 Police 13 Consultation on undercover policing guidance 13 Latest statistics on the operation of police powers under the Terrorism Act 2000 for year 14 ending 31 March 2016

Figures on Disapproved Register published 15 Police officers 2016 pay award 16 New guidance on preventing and responding to suicide 16Criminal justice system 18 Report on prostitution published 18Parliamentary issues 19 Report on confiscation orders published 19

Contents

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This month’s edition of the Digest contains a summary of issues relating to police law, operational policing practice and criminal justice.

There are case reports on:

• the admission of evidence relating to gang affiliation

• a claim for damages against the police following interviews that were claimed to be oppressive

• the legality of the contents of an enhanced criminal record certificate.

We look in detail at the:

• College of Policing consultations on guidance relating to undercover policing and preventing and responding to suicide

• Home Affairs Select Committee report on prostitution

• Public Accounts Committee report on confiscation orders.

We also look at:

• the latest statistics on the operation of police powers under the Terrorism Act 2000

• figures from the Disapproved Register

• the 2016 pay award for police officers.

The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised.

Overview

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LegislationBills before parliamentPolicing and Crime Bill

The Home Office has introduced a Policing and Crime Bill to enhance the democratic accountability of police forces and fire and rescue services, improve the efficiency and effectiveness of emergency services through closer collaboration and build public confidence in policing. A summary of the bill can be found in the March Digest.

Progress

First reading in the House of Lords took place on 14 June 2016. Second reading is scheduled for 18 July 2016.

The Bill can be accessed in full at services.parliament.uk

Investigatory Powers Bill

The Investigatory Powers Bill, which was introduced on 1 March 2016, provides an updated framework for the use (by the security and intelligence agencies, law enforcement and other public authorities) of investigatory powers to obtain communications and communications data. These powers cover the interception of communications, the retention and acquisition of communications data, equipment interference for obtaining communications and other data. The Bill also makes provision relating to the security and intelligence agencies’ retention and examination of bulk personal datasets. A full summary of the bill can be found in the April Digest.

Progress

Second reading in the House of Lords took place on 27 June 2016. Committee stage is scheduled to begin on 11 July 2016.

The Bill can be accessed in full at services.parliament.uk/bills

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Statutory InstrumentsSI 655/2016 Immigration Act 2016 (Consequential Amendments) Regulations 2016

These Regulations, which come into force on 12 July 2016, make amendments to secondary legislation which are consequential to changes made by Part 1 of the Immigration Act 2016.

Please see legislation.gov.uk

SI 683/2016 Counter-Terrorism and Security Act 2015 (Monitoring of Further Education Bodies) (England) Regulations 2016

The Counter-Terrorism and Security Act 2015 (‘the Act’) places a duty on specified authorities to have due regard to the need to prevent people from being drawn into terrorism. These Regulations, which come into force on 1 August 2016, prescribe persons to whom the secretary of state has delegated the function of acting as a monitoring authority in respect of a relevant further education body under section 32 of the Act.

Please see legislation.gov.uk

Statutory InstrumentsLegislation

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Evidence and procedureAwoyemi and Ors v R [2016] EWCA Crim 668

Facts

The appellants in this case, D1, D2 and D3 appealed against their convictions for various offences in relation to the shooting of the victim, V. In this case two cars, one associated with D3’s father and one with D2, were driven in convoy to the territory of a gang known as the ‘beckton boys’. After arriving two shots were fired through the door, which V was behind, and V was subsequently shot twice. However the real target of the shooting was said to be a member of the beckton boys, who lived next door.

The prosecution alleged that at a later date D1 and D3 returned to the area to finish the job and it was found that the car they were travelling in contained a loaded shotgun. The prosecution were unable to identify with any certainty who the intended victim of the initial shooting was and so they wished to open up the fact that the shooting was gang related. As such they requested that the trial judge allow them to adduce bad character evidence in the form of the appellants’ association with the ‘DAG’ gang and with firearms.

The trial judge allowed the evidence of gang affiliation to be adduced and it is this that formed the basis of the appeal in this case.

The appellant’s argument

The appellant’s appealed their convictions on the following grounds:

1. That the trial judge had been wrong to admit evidence of their affiliation to the DAG gang.

2. The judge’s directions to the jury in relation to that evidence were inadequate.

Case law

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The decision

The court held that the evidence of gang affiliation was both relevant and admissible. When considering the specific facts of the case they held that the shooting and the fact that there was a return visit to finish the job, bore the hallmarks of gang-related violence. The court also held that the evidence of gang affiliation provided a link between the appellants and a gang that glorified in violence and the use of firearms and threatened violence against those that crossed them. As a result the prosecution could establish a possible motive for the shooting and an association with lethal violence. The court also held that in their experience judges were conscious of the dangers of gang affiliated evidence and took great care to ensure that bad character evidence was admitted through the appropriate channels.

The court held that the judge’s directions to the jury in relation to the bad character evidence were adequate. They stated that ample assistance was given on what use they could make of the evidence and also that warnings were given about the limitations of the evidence and the fact that not too much weight should be attached to it.

The court dismissed the appeals of all three appellants.

The full judgment can be found at bailii.org

Evidence and procedureCase law

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General police dutiesMouncher and Ors v The Chief Constable of South Wales Police [2016] EWHC 1367

This case involved former police officers who had participated in a murder investigation in 1988 in which three men were wrongly convicted. A judge found that the police interviews had been oppressive, and consequent confessions unreliable.

In 2003, after another man had pleaded guilty to the offence, the defendant investigated the claimants to identify whether they had committed criminal or disciplinary offences during the original investigation. In 2005, all were arrested without warning in dawn raids upon their homes on suspicion of conspiracy to pervert the course of justice, misconduct in public office and false imprisonment. Three were ultimately not prosecuted, four had their prosecutions withdrawn, and the remainder were found not guilty at trial.

The claimants claimed damages against the defendant chief constable for misfeasance in public office, false imprisonment, and malicious prosecution. They also made claims under section 7 of the Human Rights Act 1998.

The judgment

Judgment was granted for the defendant.

(1) Misfeasance in public office

The claimants had to prove that an investigating officer deliberately acted or omitted to act in a particular way, knowing that he had no power so to act, or was reckless as to whether he had such power. In the case, the arresting officers were different from the investigating officers, and it was the former’s knowledge and state of mind which was relevant. An order by a superior to a junior officer was insufficient to afford the arresting officer a reasonable suspicion that an offence had been committed. Where the briefing to the arresting officer provided sufficient material to justify the arrest, but omitted material which would have caused the arresting officer to doubt that there were reasonable grounds, it was for the chief constable to prove that the arrest was lawful. He could not simply rely on the state of mind of the briefing officer.

Contrary to the claimant’s assertions, the manner or circumstances of the arrest were not relevant to a consideration of its lawfulness and the ‘necessity’ test in the Police and Criminal Evidence Act 1984 s 24(4) and the principles in Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911, [2012] 1 W.L.R. 517 were binding. On the evidence, the tort was not proved.

General police dutiesCase law

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Whether to prosecute the claimants had been a very difficult decision. The investigating officers’ belief that those originally convicted had been induced to lie by unlawful conduct by the claimants was amply justified. Only if they had deliberately turned a blind eye to evidence which substantially undermined that belief would the court have been persuaded to find misfeasance. There was no evidence of that and neither the arrest strategy nor the circumstances of arrest constituted misfeasance in public office. It had been unnecessary to make co-ordinated arrests early in the morning given that none of the suspects were seeking to evade arrest, but that alone could not constitute misfeasance. Inadvertence or negligence was not a basis upon which the tort of misfeasance could be founded.

(2) False imprisonment

The arresting officers had had reasonable grounds to suspect that the claimants had committed the crimes for which they were arrested. The fact that the manner of the arrests had not been reasonable could not render otherwise lawful arrests unlawful. There had been unreasonable assumptions made about the involvement of the 12th and 15th claimants, which had led to important errors in the grounds for arrest and their claims of false imprisonment would succeed unless defeated by limitation.

The other claimants had failed to establish that their arrests were unlawful. The defendant conceded that some had been unlawfully detained because statutory provisions governing custody reviews had not been adhered to. False imprisonment was established for those periods, but there was entitlement only to nominal damages because, had the reviews taken place, detention would have been authorised. In any event, the claims were defeated by limitation.

(3) Malicious prosecution

The tort involved being ‘prosecuted’ on a criminal charge where the prosecution was without reasonable and probable cause and was malicious. On the evidence, there was no question of that.

(4) Human rights claims

Two claimants alleged breaches of ECHR article 8 in respect of the searches of their homes and being kept on bail for an inordinate period. They sought to prove those claims for the purposes of bringing proceedings under section 7 of the 1998 Act. No civil action could lie in respect of the searches because the search warrants issued by the magistrates had never been quashed, which was a pre-requisite to the bringing of a civil action by virtue of the Constables Protection Act 1750 section 6. The court had grave reservations as to whether a remand on unconditional bail, even for a very significant time, could be sufficiently serious to infringe article 8, but did not decide the point.

The full judgment can be found at bailii.org

General police dutiesCase law

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Human rightsR (on the application of R) v Greater Manchester Police and Anor [2016] EWCA Civ 490

The facts

The appellant appealed against a decision refusing his application for judicial review challenging the lawfulness of the contents of an enhanced criminal record certificate issue by the first respondent chief constable.

The appellant had applied for the certificate when applying for work as a private hire taxi driver. The certificate stated that the appellant had been tried and acquitted of raping a 17-year-old woman who had been a passenger in his taxi. On appeal, a reviewing officer concluded that the disputed information was relevant and ought to be included because the Crown Prosecution Service had believed there to be a realistic prospect of a conviction, which indicated that the allegation was more likely to be true than false.

The appellant sought judicial review on the grounds that it breached his right to the presumption of innocence in ECHR article 6(2) and that it would adversely affect his family life in breach of article 8. The judge held that it did not breach article 6(2) to imply that notwithstanding an acquittal a person might have committed the act complained of in the criminal charge. He found that despite proceeding on the false basis that the allegation was likely to be true, the reviewing officer’s comments overall had been fair.

The judgment

It was held that once it was accepted that article 6(2) was engaged on the facts of a particular case, there was nothing materially inconsistent in the approaches of the Supreme Court and the European Court of Human Rights.

In the instant case, there had been no violation of article 6(2). There was no aspersion cast on the correctness of the acquittal, nor was it suggested that the appellant was guilty. It went too far to suggest that the fact of an acquittal could never feature in an enhanced criminal record certificate. There was some unfortunate language in the reviewing officer’s reasoning, but article 6(2) had only been applied by the ECtHR to public statements of state organs and not documents such as the reviewing officer’s reasons which were not in the general public domain. The ECtHR had not previously found a violation of article 6(2) in a situation such as the instant case, and the instant court should not go beyond the limits of the previous cases decided in the ECtHR.

Human rightsCase law

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A failure to consult the appellant before issuing the certificate had not breached the procedural requirements of article 8. In relation to the alleged substantive breaches of article 8, the role of the first-instance judge was to conduct a high intensity review of the original decision, and decide whether the decision reached a proportionate result. The appellate court would only consider proportionality itself if the judge had made a significant error of principle. In the instant case the judge had made no such error.

The appeal was dismissed.

The judgment can be found in full at bailii.org

Human rightsCase law

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Policing practicePoliceConsultation on undercover policing guidance

The College of Policing has launched a consultation on revised Authorised Professional Practice (APP) on undercover policing. In addition to welcoming individual chapter feedback, the College has identified the following nine consultation questions:

1. Do you find the APP easy to follow and understand? Please give reasons for your answer.

2. Does the publication of APP on undercover policing increase your knowledge about the range of police and external scrutiny of this tactic?

3. Is the range of police and external scrutiny of undercover policing sufficient? If not, what extra scrutiny do you think should be added?

4. APP cannot include guidance to cover all eventualities – the nature of policing makes this impossible. This APP is intended to set out the legal and other guidance that everyone involved in undercover policing should consider when carrying out undercover-related duties. Do you think this APP achieves these intentions?

5. Is the guidance on the roles and responsibilities of individuals in chapters 2 and 3 clear? If not, how could it be improved?

6. Is chapter 4 sufficiently clear about psychological support for undercover operatives? If not, how could it be improved?

7. Is the guidance in chapter 7 on collateral intrusion and the authorisation process sufficiently clear? If not, how could it be improved?

8. Is the guidance on sexual activity at paragraph 7.12 sufficiently clear? If not, how could it be improved?

9. Is there any content in the APP that you consider may have a negative impact on any community or group of people? If yes, please explain.

The consultation closes on 10 August 2016 and can be accessed in full at app.college.police.uk

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Latest statistics on the operation of police powers under the Terrorism Act 2000 for year ending 31 March 2016

The Home Office has published the latest statistics on the operation of police powers under the Terrorism Act 2000. The update covers the use of police powers under terrorism and terrorism-related legislation in Great Britain on an annual basis up to the year ending 31 March 2016. The release is broken down into 4 sections:

• Arrests and outcomes.

• Court proceedings.

• Terrorist and extremist/separatist prisoners.

• Other police powers under the Terrorism Act 2000.

Key findings:

Arrests and outcomes

• There were 255 terrorism-related arrests in the year ending 31 March 2016, a decrease of 15 per cent (46 arrests) compared with the previous year, which saw the highest number of arrests in any financial year on record.

• The majority of the fall was driven by reductions in arrests for domestic terrorism and those that could not be classified under a specific terrorist category.

• Although a fall on the previous year, the number of arrests in the year ending 31 March 2016 was still higher than most other recent years.

• The only age group to see a rise in the number of terrorism-related arrests was under 18-year-olds, which saw a small increase from 8 arrests in the year ending 31 March 2015, to 14 in the year ending 31 March 2016.

• The number of females arrested continued to rise, with 36 females arrested in the year ending 31 March 2016.

Court proceedings

• In the year ending 31 March 2016, there were 51 persons proceeded against for terrorism offences in England and Wales.

• Ninety two per cent (47) of these were convicted, continuing a general upward trend in the proportion convicted seen in recent years.

PolicePolicing practice

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Terrorist and extremist/separatist prisoners

• As at 31 March 2016, there were 162 persons in custody in Great Britain for terrorism-related offences and domestic extremism/separatism, representing a decrease on the previous year.

• The number of persons in custody for offences under terrorism legislation or for terrorism-related offences, continued to increase from 122 as at 31 March 2015 to 147 as at 31 March 2016.

Other police powers under the Terrorism Act 2000

In the year ending 31 March 2016:

• the Metropolitan Police Service (MPS) carried out 541 stops and searches under section 43 of the Terrorism Act (TACT) 2000, an increase of nearly a third on the previous year

• over the same period, the number of resultant arrests more than doubled, bringing the arrest rate up to 12 per cent (compared with 7 per cent the previous year)

• the number of examinations under Schedule 7 to TACT 2000 in Great Britain fell by 18 per cent to 26,200 examinations.

The full statistical release can be accessed at gov.uk

Figures on Disapproved Register published

The College of Policing has published figures from its Disapproved Register which show that more than 80 per cent of gross misconduct cases came from internal reporting. The register prevents officers from re-entering the police service if they have been dismissed, or resigned or retired while subject to a gross misconduct investigation where there would have been a case to answer. A total of 833 officers appear on the register, ranging in rank from constable to chief superintendent. The figures covered the period from 1 December 2013 to 30 November 2015 and show 417 officers were dismissed, 366 resigned and 50 retired while subject to gross misconduct investigation.

The Disapproved Register became effective from 1 December 2013. All 43 forces across England and Wales, as well as British Transport Police, Ministry of Defence Police, States of Jersey Police and Civil Nuclear Constabulary provided names to include on the register.

The figures can be accessed in full at college.police.uk

PolicePolicing practice

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Police officers 2016 pay award

Recommendations of both the Police Remuneration Review Body (PRRB) and the Senior Salaries Review Body (SSRB) have been accepted in full. From 1 September 2016 police officers will receive:

• a 1% increase to base pay for all ranks

• a 1% increase to the London weighting payment

• a 1% increase to the dog handlers’ allowance

• increased flexibility for south east forces to vary location-based allowances

• alignment of mileage expenses to standard HMRC rates.

Further information can be found at gov.uk

New guidance on preventing and responding to suicide

The College of Policing has launched a consultation on new guidance on the police response to suicide and bereavement. APP on suicide and bereavement response is a new piece of guidance that will be added to the College’s forthcoming mental health APP module. The guidance is designed to build awareness and understanding of the important role that the police play in preventing suicide. It also provides police officers with the tools to respond appropriately to people who are considering suicide and to incidents in which somebody has already taken their own life.

The APP sets out the role and strategic responsibilities of each police force at an organisational level. It encourages forces to:

• take a proactive approach to identifying locations and places that are being repeatedly used for suicide

• recognise and act on suicide clusters and contagion patterns as they emerge

• train and prepare their officers to recognise and help people who are vulnerable, self-harming or considering suicide.

The APP also helps officers at an individual level to:

• recognise suicide risks and respond to people who are considering suicide

• investigate and report on apparent acts of suicide

• give messages to those bereaved by suicide

• know how they can offer support in a professional way.

PolicePolicing practice

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The APP emphasises the welfare needs of officers and staff who handle such situations and encourages forces to provide access to emotional support via occupational health, staff associations and outside organisations. It has been developed with input from the National Police Chiefs’ Council Suicide Prevention Working Group, British Transport Police, the Samaritans and Papyrus, which works in preventing young suicide.

The College welcomes comments on any individual section of the APP and would like to use the consultation to:

• ensure the content is appropriate and useful to police officers

• invite feedback from individuals and organisations who have an interest in suicide prevention work

• draw on the knowledge, skills and experience of others to enrich the product and ensure that we identify good practice based on the best available evidence.

This consultation closes on 17 August 2016 and can be accessed in full at app.college.police.uk

PolicePolicing practice

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Criminal justice systemReport on prostitution published

The Home Affairs Select Committee has published an interim report on prostitution, stating that the Home Office should change existing legislation so that soliciting is no longer an offence and to allow sex workers to share premises. This, it states, should be done without losing the ability to prosecute those who use brothels to control or exploit sex workers. The Committee also recommended that the Home Office legislate to delete previous convictions and cautions for prostitution.

The report represents the Committee’s interim views on the different legislative approaches in other countries, the changes needed to be made in England and Wales, and the options for legislative change which need further, closer and more thorough examination. The report will be followed by a final report at a later date.

The report highlights key facts which were submitted to the Committee in evidence, including the following:

• around 11 per cent of British men aged 16–74 have paid for sex on at least one occasion, which equates to 2.3 million individuals

• the number of sex workers in the UK is estimated to be around 72,800 with about 32,000 working in London

• sex workers have an average of 25 clients per week paying an average of £78 per visit

• in 2014–15, there were 456 prosecutions of sex workers for loitering and soliciting

• an estimated 152 sex workers were murdered between 1990 and 2015. 49 per cent of sex workers (in one survey) said that they were worried about their safety

• there were 1,139 victims of trafficking for sexual exploitation in 2014 and 248 in April to June 2015 (following implementation of the Modern Slavery Act 2015).

The Committee makes a number of recommendations in the report and supports the Children’s Society recommendation that guidance is developed for the police and local authorities on how young people who are identified as being victims of, or at risk of, child sexual exploitation should be dealt with after they turn 18. The Committee also stated its dismay at the poor quality of information available about the extent and nature of prostitution in England and Wales and recommended that the Home Office commissions an in-depth research study to develop a better understanding and to draw together and put into content any recent, relevant research.

The report can be accessed in full at publications.parliament.uk

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Report on confiscation orders published

The Public Accounts Committee has published a progress report on confiscation orders. In 2014, the previous Committee concluded that poor implementation of the confiscation order system had severely hampered its effectiveness. Six recommendations were made and accepted by the Home Office who committed to implement them by the end of 2015.

In its review, the Committee found that many of the specific actions proposed in those recommendations had not been taken. While the amount confiscated had increased from £133 million in 2012-13 to £175 million in 2015-16, the number of confiscation orders imposed had fallen and debt had soared to £1.9 billion. In addition, weaknesses that had previously been identified, such as unclear objectives and ineffective incentives for the body involved in the system still remain.

The Committee made a number of recommendations:

• The Home Office should work with the law enforcement and prosecution agencies involved to develop a plan to improve knowledge and awareness of relevant legislation amongst their staff, and ensure they agree and apply a common set of selection criteria for considering cases for confiscation orders, by the end of 2016.

• The Home Office needs to do more to explain why so much of the accumulated debt is unlikely to be collected, highlight what is collected against recent confiscation orders and set out how it is tackling uncollected debt to show that crime does not pay. This should include publicly reporting collection rates and progress on the priority cases. The Home Office should implement this as part of its communication plan by the end of 2016.

• The Criminal Finances Board, supported by the College of Policing, should review the cost effectiveness of employing financial investigators across law enforcement agencies and report back to the Committee by the end of March 2017 on what action will be taken to ensure sufficient numbers are recruited and retained.

• The Home Office should set out clearly, by the end of September 2016, how the objectives for confiscation orders should be prioritised and what constitutes success.

Parliamentary issues

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• The Home Office, supported by the College of Policing, should develop an evidence base on the effectiveness of confiscation orders, particularly their effect in disrupting crime, by the end of March 2017 to help law enforcement and prosecution agencies to determine when and how best to use them.

• The Home Office should reform the incentive scheme in accordance with the Committee’s previous recommendation, by better aligning it to objectives and linking effort and reward. It should also explore with HM Treasury how incentive funding can be used for longer term investment. Reform should be completed by the 2017–18 financial year.

The report can be accessed in full at publications.parliament.uk

Parliamentary issues

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