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DigestApril 2017A digest of police law, operational policing practice and criminal justice

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OFFICIALDigest April 2017

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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.

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OFFICIALDigest April 2017

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Overview 4Legislation 5 Bills before Parliament 5 Prison and Courts Bill 5 Statutory Instruments 6 Sexual Offences Act 2003 (Prescribed Police Stations) Regulations 2017 6 New Legislation 7 Criminal Finances Bill receives royal assent 7Case law 8 Crime 8 R (on the application of Pitts) v Commissioner of Police of the Metropolis [2017] EWHC 646 (Admin) 8 Evidence and procedure 9 R v Turk (Deceased) [2017] EWCA Crim 391 9Policing practice 10 Police 10 2016 PEEL assessments published 10 HMIC report on State of Policing published 10 HOC 3/2017: amendment to eyesight standards, police recruitment 11 HOC 5/2017: The testing of substances suspected to be drugs controlled under the Misuse 11 of Drugs Act 1971

HOC 6/2017 firearms controls 12 Statistics on TASER use published 12Criminal justice system 14 Report on sentencing guideline on breach offences published 14

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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:

• a complaint being recorded as a crime despite a retraction

• whether the death of the defendant must bring an end to a criminal prosecution.

We also look at:

• the HMIC report on the State of Policing

• statistics on the use of TASER ® X26

• the 2016 PEEL assessments

• the report on the draft sentencing guidelines for breach offences

• recently published Home Office circulars on eyesight standards for police officers, testing for controlled drugs and new provisions relating to firearms.

Finally, we examine the progress of proposed new legislation through Parliament and summarise relevant Statutory Instruments.

Overview

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LegislationBills before ParliamentPrison and Courts Bill

The Prison and Courts Bill was introduced into the House of Commons on 23 February 2017. The purpose of the Bill is to reform prisons and courts by setting a new framework and clear system of accountability in the prison system, strengthening safety and security, improving efficiency and services for users in courts and tribunals and reforming the claims process for minor whiplash injuries resulting from road traffic accidents. A summary of the Bill can be found in the March edition of the Digest.

Progress

A special report from the Prisons and Courts Public Bill Committee as to their opinion that they could not with advantage proceed further with the Bill. This is in view of time available to allow the Bill to be considered by the House following the House’s decision on Wednesday 19 April that, in accordance with section 2(2) of the Fixed-term Parliaments Act 2011, there should be an early parliamentary general election and the dissolution of Parliament expected on Wednesday 3 May.

Please see services.parliament.uk

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Statutory InstrumentsSI 2017/573 Sexual Offences Act 2003 (Prescribed Police Stations) Regulations 2017

These Regulations, which apply to England and Wales only, revoke and replace the Sexual Offences Act 2003 (Prescribed Police Stations) (No. 2) Regulations 2015 (S.I. 2015/1523).

Please see legislation.gov.uk

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New legislationCriminal Finances Bill receives royal assent

The Criminal Finances Bill, which was introduced in September, received royal assent on 27 April and is now the Criminal Finances Act 2017. The Act amends the Proceeds of Crime Act 2002, makes provisions in connection with terrorist property and creates corporate offences relating to tax evasion. A summary of the Bill can be found in the September edition of the Digest and a full overview of the Act will be included in next month’s Digest.

Please see services.parliament.uk

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Case lawCrimeR (on the application of Pitts) v Commissioner of Police of the Metropolis [2017] EWHC 646 (Admin)

In this case, the claimant’s adopted sister (T) made rape allegations against him. After he had been arrested and questioned by the defendant, it was decided that no further action would be taken, but the defendant was not prepared to conclude that a crime had not been committed.

T, who had mental health issues, sent a letter to the claimant via her support worker, apologising for making a false complaint against him. The defendant reviewed its earlier decision and concluded it was unable to be certain beyond reasonable doubt that the incident as described by T had not occurred, that T’s retraction added no weight and that the complaint should remain recorded as a crime.

The decision to continue to categorise T’s allegations as an offence was based on the Home Office guidance entitled ‘Crime Recording General Rules’. This guidance states that an incident should be so recorded for victim-related offences if, on the balance of probabilities, the circumstances of the victim’s report amounted to a crime and there was no credible evidence to the contrary immediately available. The guidance also provided that the crime might be removed from the records where ‘additional verifiable information’ was available that determined that no notifiable offence had occurred.

The claimant applied for judicial review of the defendant’s decision that the rape allegations should continue to be categorised as an offence. The court granted the applications and determined that, in the circumstances of the case, a reasonable decision-maker taking account of all the relevant factors would have concluded, beyond reasonable doubt, that an individual had not committed a crime.

The judgment can be accessed in full at: bailii.org

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Evidence and procedureR v Turk (Deceased) [2017] EWCA Crim 391

In May 2016, Darren Turk stood trial in the Crown Court for offences including rape and indecency with a child. The jury, in a note to the judge, indicated it had reached unanimous verdicts on some counts. The judge decided not to take those verdicts at that stage, but sent the jury home to resume their deliberations the following day. The following morning the judge was informed that Mr Turk had taken his own life.

The judge invited the jury to return such unanimous verdicts as they had already reached. The jury returned guilty verdicts on six offences of indecent assault on a male person (under 16) and four offences of possessing indecent images of a child. Verdicts of not guilty were returned in relation to six offences of indecent assault on a male person. The jury was discharged from giving verdicts on t he three remaining counts. The judge then ordered that the indictment be of no legal effect. Mr Turk’s mother appealed on his behalf on the basis that the judge was not entitled to proceed as he did and that the verdicts which were returned are a nullity or of no effect.

Conclusion

The Court of Appeal stated that firstly, as more verdicts were returned than the jury had indicated were agreed when they said they were deadlocked, it was more than a possibility that they continued to deliberate while waiting during the morning as legal argument took place. The judge himself observed that continued deliberations after death would not be appropriate. Secondly, it was wrong to say that Mr Turk was genuinely not prejudiced by the verdicts, referring to the effect of a conviction in civil proceedings.

The court stated that is important that there is a ‘bright line’ rule which can be applied whatever the circumstances. Quite apart from the fact that there is no statutory or common law authority which justifies the way in which the judge proceeded in this case, the questions all lead to the conclusion that, in order to preserve the bright line that criminal prosecutions are not pursued against those who have died, there is no discretion as to the course of action then to be taken. As soon as a judge learns that a defendant has died, it is his duty to take no further steps in the case against that defendant apart from receiving proof of death. At that point, the indictment must be declared of no effect.

The court agreed that there was nothing to suggest that any of the verdicts returned were unsafe, however, they were irregular. In the court’s judgment, there was no discretion as to the course which the judge should follow in these circumstances. He was not entitled to continue simply because he thought that obtaining verdicts from the jury justified that course. In the light of the conclusions, the court found that the verdicts were wrongfully returned and must be set aside as a nullity, with the convictions annulled. The court concluded by repeating that it is critical to maintain an approach to criminal justice that is consistent and even-handed, maintaining a definitive position that the death of a defendant brings any criminal prosecution of that defendant to an end.

The judgment can be accessed in full at: bailii.org

Evidence and procedureCase law

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Police2016 PEEL assessments published

HMIC has published its annual PEEL assessment of police forces in England and Wales for 2016. Forces are assessed throughout the year on their effectiveness, efficiency and legitimacy. At the end of the year, all inspection findings, graded judgments and analysis, along with Her Majesty’s inspectors’ professional judgment, are brought together to produce a rounded assessment of each force’s performance.

Individual force assessments are available, as well as an overview of the performance of all forces in 2016, at the following link: justiceinspectorates.gov.uk

HMIC report on State of Policing published

Her Majesty’s Chief Inspector of Constabulary, Sir Thomas Winsor, has published his annual assessment of policing in England and Wales. The State of Policing report highlights that the inspections carried out by HMIC during the reporting period reveal two principal themes:

• the vast majority of frontline police officers and staff continue to do a very difficult job well, under demanding and often harsh circumstances

• while there are examples of excellence, police leaders need to focus on what matters most, plan properly for the future, ensure that their officers and staff are properly trained, supported and equipped and improve the pace of change significantly.

The report highlights that, while the police service is not the only public service charged with meeting the needs of vulnerable people, it is increasingly being used as a first resort. This is particularly true in respect of people suffering from mental ill-health. The report states that, until mental health is given the same priority as physical health in resources including funding, the police will continue to play too large a role. By the time the police become involved, many opportunities to intervene and prevent mental ill-health deteriorating to the point at which people are in danger will already have been missed. This, the report states, is ineffective and expensive and there should not be a reliance on law enforcement officers to support people who need medical care.

Policing practice

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This year, HMIC has been able to compare year-on-year performance of each police force and assess the direction of each force and the police service as a whole. Forces are assessed against three broad categories: effectiveness, efficiency and legitimacy. The report highlights that 18 forces require improvement in at least one of HMIC’s principal inspection themes overall, in comparison with 2015:

• in relation to effectiveness, 10 police forces improved, 26 stayed the same and seven forces declined

• in relation to efficiency, six forces improved, 30 stayed the same and seven forces declined

• in relation to legitimacy, four forces improved, 36 stayed the same and three forces declined.

The report noted that, increasingly, police leaders understand the importance of workforce wellbeing and are taking steps to improve it. The level of support that forces provide varies considerably, however, as does the capability of supervisors to identify and meet individuals’ needs. The report also states that forces need to do more to manage individuals’ performance and highlights that the police are particularly far behind many other organisations in the way they use technology.

The report can be accessed in full at: justiceinspectorates.gov.uk

HOC 3/2017: amendment to eyesight standards, police recruitment

The Home Office has published a circular on amendments to the police’s uncorrected eyesight standard. The circular can be accessed in full at: gov.uk

HOC 5/2017: The testing of substances suspected to be drugs controlled under the Misuse of Drugs Act 1971

This circular provides advice to law enforcement personnel on the drug testing kits that have been approved by the Home Office for testing substances suspected to be controlled drugs. It also sets out the requirements for training officers in using drug testing devices.

The circular can be accessed in full at: gov.uk

PolicePolicing practice

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HOC 6/2017 firearms controls

The Home Office has published a circular on the provisions relating to firearms contained in the Policing and Crime Act 2017. These provisions, the Home Office states, will strengthen existing firearms legislation by introducing new legal definitions and new offences to close legal loopholes which are open to abuse by criminals and pose a risk to public safety. The provisions will also support efficient law enforcement in relation to firearm and shotgun certificate holders.

The circular contains details on section 133 (guidance to police officers in respect of firearms), which came into force on 3 April 2017, and the following sections, which come into force on 2 May 2017:

• s.125 ‘Firearms Act 1968: meaning of “firearm” etc.’

• s.127 ‘Possession of articles for conversion of imitation firearms’

• s.128 ‘Controls on defectively deactivated weapons’

• s.129 ‘Controls on ammunition which expands on impact’

• s.130 ‘Authorised lending and possession of firearms for hunting etc.’

As well as providing details of the amendments, the circular provides new offence codes and sanctions, additional resources and links to further guidance.

The circular can be accessed in full at: gov.uk

Statistics on TASER use published

The Home Office has published statistics on the use of TASER® X26 conducted energy devices from the 43 Home Office police forces in England and Wales for 2016. The release covers the number of TASER® X26 uses rather than incidents to ensure full transparency on deployment.

Key facts

In 2016 there were 11,294 uses of TASER® X26 by police, representing a 9% (904) increase on the previous year. Of these, five uses were due to accidental discharges and are reported by the police as ‘not stated’ in the release.

PolicePolicing practice

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Discharge

• Of the known 11,289 TASER® X26 uses, 17% (1,910) were discharges, a decrease of 1% from the previous year.

• Of the 1,910 discharges, 92% (1,755) were fired, an increase of 2%.

• Drive stun and angled drive stun accounted for 8% of discharges, a decrease of 19% from the previous year.

• The proportion of discharges decreased by one percentage point to 17% when compared with the previous year.

Non-discharge

• Of the known 11,289 TASER® X26 uses, 83% (9,379) were non-discharges, an increase of 11% on the previous year.

• Red-dot was the most common use and accounted for 51% (5,744) of the total use in 2016, the same proportion as in the previous year.

• The proportion of non-discharges increased by one percentage point to 83% when compared with the previous year.

The statistics can be accessed in full at gov.uk

PolicePolicing practice

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Criminal justice systemReport on sentencing guideline on breach offences published

The Justice Committee has published a report on the draft sentencing guideline for breach offences, which was published for consultation by the Sentencing Council in October last year. At present, guidelines are only available for certain breach offences and these vary in their format and scope. The Council has now decided to issue a single definitive guideline document covering the majority of breach offences, including breaches of:

• community orders

• suspended sentence orders

• post-sentence supervision

• protective orders.

The Justice Committee’s report can be accessed in full at: publications.parliament.uk

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