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DigestAugust 2015A digest of police law, operational policing practice and criminal justice
BetterEvidenceforBetterPolicing
OFFICIALDigest August 2015
© College of Policing (2015)
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© – College of Policing Limited 2015
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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 5Legislation 6 Bills before parliament 6 Psychoactive Substances Bill 6 Statutory Instruments 7 The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2015 7 The Civil and Criminal Legal Aid (Amendment) Regulations 2015 7 The Female Genital Mutilation Protection Order (Relevant Third Party) 8 Regulations 2015
The Serious Crime Act 2015 (Commencement No. 2) Regulations 2015 8 The Criminal Justice and Courts Act 2015 (Commencement No.2) Order 2015 9 The Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015 9 The Modern Slavery Act 2015 (Commencement No. 1, Saving and Transitional 9 Provisions) Regulations 2015
The Magistrates’ Courts (Modern Slavery Act 2015) Rules 2015 10 The Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) 10 (Prescription of Arrangement for Monitoring) (Amendment) Order 2015
Case law 11 General police duties 11 The Commissioner of Police of the Metropolis v DSD and NBV & Ors [2015] 11 EWCA Civ 646
Road traffic 16 The Director of Public Prosecutions v Whittaker [2015] EWHC 1850 (Admin) 16Policing practice 18 Crime 18 Home Office Circular 24/2015: Modern Slavery Act 2015 18 Changes to maximum fines for Licensing Act offences 19 Consultation on proceeds of crime codes of practice 20 Home Office Circular 23/2015: A Change to the Misuse of Drugs Act 1971 21
Contents
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Police 22 Consultation on police funding launched 22 Decision on water cannon use 22 Review into undisclosed undercover police activity published 23 Terms of reference for undercover policing inquiry announced 24 First anniversary of the Code of Ethics 24 HMIC reports on police response to child protection 25 IPCC report on deaths during or following police contact published 26Criminal justice system 28 Consultation on revising the Victims’ Code 28 Consultation on draft FGM guidance 28 New minimum sentence for repeat knife offenders 29 Prevent duty comes into force 29 Violence against women and girls crime report published 30 Data retention provision declared unlawful 30 Consultation on investigation powers under POCA 31
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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 reports of cases on:
• whether the failure of two police forces to conduct effective investigations was a violation of Article 3 of the ECHR
• the burden of proof where a prosecution was brought alleging use of a vehicle in a way not permitted by the insurance certificate.
We look in detail at:
• a review into the impact of undisclosed undercover police activity on the safety of convictions
• HMIC report on the police response to child protection
• Home Office circular 24/2015 on the provisions of the Modern Slavery Act 2015 which came into force on 31 July 2015
• the CPS analysis of violence against women and girls.
We also look at:
• the IPCC report on deaths during or following police contact
• the High Court declaration that Section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with EU law
• the terms of reference to the undercover policing inquiry
• consultations on POCA codes of practice, police funding, the revised Victims’ Code and draft FGM guidance.
The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised.
Overview
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Legislation
Bills before parliamentPsychoactive Substances Bill
This Bill creates a blanket ban on the production, distribution, sale and supply of psychoactive substances in the United Kingdom.
Clause 2 defines a ‘psychoactive substance’ for the purposes of the Bill. Schedule 1 lists substances, such as food, alcohol, tobacco, caffeine, medical products and controlled drugs, which are excluded from the definition.
Clauses 4 to 9 make it an offence to produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances. The maximum sentence is seven years’ imprisonment. Clause 10 enables regulations to be made to provide for exemptions to these offences.
Clauses 11 to 31 provide for four civil sanctions – prohibition notices, premises notices, prohibition orders and premises orders (breach of the two orders will be a criminal offence) – to enable the police and local authorities to adopt a graded response to the production, supply etc of psychoactive substances in appropriate cases.
Clauses 32 to 50 provide for powers to stop and search persons, vehicles and vessels, to enter and search premises (under warrant) and to forfeit seized psychoactive substances and other items.
The Bill had its first reading before the House of Lords on 28 May 2015. Second reading, the general debate on all aspects of the Bill, took place on 9 June. Line by line examination of the Bill took place during the first day of committee stage on 23 June 2015. Committee stage continued on 30 June 2015. Report stage took place on 14 July 2015. Third reading – the final chance for the Lords to change the Bill – took place on 20 July. Amendments discussed covered clause 58 of the Bill. The Bill now goes to the Commons for its consideration.
A more detailed summary of the Bill can be found in the July Digest.
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Statutory InstrumentsSI 2015/1396 The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2015
The substances and products listed in the Schedule to the Order, which came into force on 27 June 2015, are specified under section 2A(1) of the Misuse of Drugs Act 1971 as drugs subject to temporary control. The substances specified in paragraph 1 of the Schedule are Methylphenidate related materials which are being misused as new psychoactive substances. Paragraphs 2 to 4 of the Schedule specify derivatives of the substances specified in paragraph 1. The majority of these substances and products were made the subject of temporary control by the Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2015 (SI 2015/1027). This Order replaces that Order and lists two additional substances in paragraph 1 of the Schedule (4-Methylmethylphenidate and Ethylnaphthidate). Additionally, this Order makes provision for the control of the salt of a substance listed in the Schedule.
In accordance with subsection (6) of section 2A of the Misuse of Drugs Act 1971, the specified substances and products will cease to be subject to temporary control after the expiry of one year or, if earlier, upon the coming into force of an Order in Council under section 2(2) of that Act listing the specified substances and products in Part 1, 2 or 3 of Schedule 2 to that Act.
SI 2015/1416 The Civil and Criminal Legal Aid (Amendment) Regulations 2015
These Regulations, which were brought fully into force on 17 July 2015, make amendments to subordinate civil and criminal legal aid legislation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Regulation 2 amends the Civil Legal Aid (Procedure) Regulations 2012 in so far as they relate to the making of applications for civil legal aid in relation to Female Genital Mutilation Protection Orders; by victims of trafficking in human beings and victims of slavery, servitude or forced or compulsory labour; and in relation to certain proceedings in the youth court. The amendments also extend and clarify the evidential requirements in relation to applications regarding victims of human trafficking, victims of domestic violence and child abuse.
Regulation 3 amends the Criminal Legal Aid (General) Regulations 2013 to prescribe certain proceedings under the Female Genital Mutilation Act 2003 and certain proceedings under the Modern Slavery Act 2015 as ‘criminal proceedings’ for the purposes of Part 1 of the Act.
Regulation 4 amends the Civil Legal Aid (Remuneration) Regulations 2013 to provide that the Family Advocacy Scheme in Schedule 3 does not apply to the remuneration of advocacy services in civil proceedings concerning Female Genital Mutilation Protection Orders.
Statutory InstrumentsLegislation
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Regulation 5 amends the Criminal Legal Aid (Remuneration) Regulations 2013 to provide for the remuneration of providers conducting criminal proceedings in the family court.
Regulation 6 amends the Civil Legal Aid (Financial Resources and Payment for Services) Regulations to provide a discretion to waive the financial eligibility requirements for civil legal aid for Female Genital Mutilation Protection Orders and makes provision concerning the calculation of a child applicant’s resources. It also sets down financial eligibility requirements for immigration matters for victims of slavery, servitude or forced or compulsory labour.
SI 2015/1422 The Female Genital Mutilation Protection Order (Relevant Third Party) Regulations 2015
These Regulations, which came into force on 17 July 2015, specify a local authority, as a relevant third party for the purposes of applying for an FGM protection order under paragraph 2 of Part 1 of Schedule 2 to the Female Genital Mutilation Act 2003. A relevant third party can apply to the court for an FGM protection order without the leave of the court.
SI 2015/1428 The Serious Crime Act 2015 (Commencement No. 2 Regulations 2015
These Regulations are the second commencement regulations made under the Serious Crime Act 2015 (‘the 2015 Act’). Regulation 2 brought into force on 17 July 2015 section 73 of the 2015 Act, which inserts new section 5A of and Schedule 2 to the Female Genital Mutilation Act 2003 to make provision for female genital mutilation protection orders in England and Wales and in Northern Ireland. Regulation 2 also brings into force on the same day consequential amendments in Schedule 4 to the 2015 Act that relate to these provisions.
The following provisions of the Serious Crime Act 2015 came into force on 17 July 2015—
(a) section 73 (female genital mutilation protection orders)
(b) section 85(1) (minor and consequential amendments), for the purposes of the provisions listed in sub-paragraph (c) of this regulation and
(c) in Schedule 4 (minor and consequential amendments)—
(i) paragraph 5 (ii) paragraph 13(iii) paragraph 17 (iv) paragraph 87(2) and (v) paragraph 88.
Statutory InstrumentsLegislation
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SI 2015/1463 The Criminal Justice and Courts Act 2015 (Commencement No.2) Order 2015
This Order commences section 28 of, and Schedule 5 to, the Criminal Justice and Courts Act 2015. Section 28 creates a minimum custodial sentence for a second (or further) conviction for possession of a knife or offensive weapon. The minimum custodial sentence which the court must impose is 6 months imprisonment for those aged 18 or over when convicted and a four month detention and training order for those aged 16 or 17 when convicted, unless there are particular circumstances relating to the offence, previous offence(s) or offender which would make it unjust to impose such a sentence. The second or further offence must be committed after the commencement of these provisions. Schedule 5 sets out the consequential amendments necessary in respect of section 28.
SI 2015/1472 The Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015
These Regulations, which came into force on 31 July 2015, make amendments to secondary legislation in consequence of the offences of slavery, servitude and forced or compulsory labour and human trafficking in sections 1 and 2 of the Modern Slavery Act 2015.
SI 2015/1476 The Modern Slavery Act 2015 (Commencement No. 1, Saving and Transitional Provisions) Regulations 2015
These Regulations are the first commencement regulations made under the Modern Slavery Act 2015 (‘the 2015 Act’). Regulation 2 brings into force on 31 July 2015 provisions of the 2015 Act relating to offences of slavery, servitude, forced or compulsory labour and human trafficking, prevention orders, the Independent Anti-Slavery Commissioner, a defence for slavery and trafficking victims who commit certain offences and special measures for witnesses in criminal proceedings.
Regulations 3 to 8 make saving and transitional provision in connection with the coming into force of the provisions of the 2015 Act relating to offences of slavery, servitude, forced or compulsory labour and human trafficking.
A full summary of the Modern Slavery Act 2015 can be found in the June Digest.
Statutory InstrumentsLegislation
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SI 2015/1478 The Magistrates’ Courts (Modern Slavery Act 2015) Rules 2015
These Rules, which came into force on 31 July 2015, make provision for proceedings in youth courts in relation to applications for slavery and trafficking prevention orders and slavery and trafficking risk orders under Part 2 of the Modern Slavery Act 2015, other than where such orders are made following conviction. Under Part 2 of the 2015 Act, such proceedings are allocated to adult magistrates’ courts where the defendant is aged 18 or over and to youth courts where the defendant is aged under 18, but with the possibility, for which these Rules provide, for a youth court to hear an application (or applications) involving a defendant aged 18 or over together with an application (or applications) involving a defendant aged under 18 if it is in the interests of justice for the applications to be heard together, or for proceedings to remain in a youth court where the defendant reaches the age of 18 after the proceedings were begun, if the court considers this appropriate having regard to a range of factors.
These Rules also make provision for the time by which a notice under section 16(6)(a) of the 2015 Act (arguing that the condition of the defendant having been convicted of an ‘equivalent offence’ is not satisfied and putting the applicant to proof) must be served on the applicant; and for ensuring that information about the equivalent offence in such a case is provided to the defendant in the summons.
SI 2015/1482 The Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangement for Monitoring) (Amendment) Order 2015
This Order, which came into force on 30 July 2015, amends the Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangement for Monitoring) Order 2014 (S.I. 2014/1787) (the ‘2014 Order’). Section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘the 2012 Act’) has been in force for a period of 12 months beginning with 31 July 2014. That period has been extended for a further 6 months by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting (Amendment) Order 2015 (S.I. 2015/1480).
Section 76 of the 2012 Act had the effect of inserting section 212A into the Criminal Justice Act 2003. This provides that an alcohol abstinence and monitoring requirement can be imposed as part of a requirement of a community order or suspended sentence order.
This Order keeps in place for that extended period the specification that monitoring of compliance with the obligations of an alcohol abstinence monitoring requirement that has been imposed as part of the pilot scheme provided for by the 2014 Order will be through a transdermal electronic tag. This is a tag fitted to an offender to measure the level of alcohol contained in their sweat.
Statutory InstrumentsLegislation
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Case law
General police dutiesThe Commissioner of Police of the Metropolis v DSD and NBV & Ors [2015] EWCA Civ 646
This case involved two appeals arising out of alleged failures by two police forces, the Metropolitan Police Service (MPS) and the Greater Manchester Police (GMP), to conduct effective investigations into allegations of crimes committed against the claimants. The claims were brought under ss 7 and 8 of the Human Rights Act 1998; their essence being that the failures the police were accused of constituted violations of a duty to investigate said to be inherent in the right guaranteed by Article 3 of the European Convention on Human Rights.
DSD and NBV
The respondents in the first case were two of the 105 women who had been the victims of rape committed by a taxi driver, Worboys, over a six year period. In the initial case, the judge found systemic failings on the part of the MPS when investigating the offences. These included a failure to properly provide training, to properly supervise and manage and to have in place proper systems to ensure victim confidence. The judge also found operational failures in both cases. In DSD’s case, these included a failure of front desk reception staff to record relevant facts, a failure to collect relevant CCTV evidence and a failure to believe DSD or take her complaint seriously. Four ‘particularly serious’ operational errors were found in the case of NBV: failure to conduct proper searches, to conduct proper interviews of Worboys, to follow up CCTV evidence, and to record the NBV incident as a serious sexual offence. The judge found in favour of the claimants, and the MPS appealed against on four grounds:
(1) ECHR Article 3 does not of itself impose any obligation to investigate. To the extent that the Strasbourg court has found there to be a duty to investigate allegations of inhuman or degrading treatment, the duty springs from the positive obligation imposed by Article 1; but Article 1 forms no part of our domestic law, not being a Convention right within the meaning of the HRA. Accordingly there is no duty, cognizable in English law, to investigate alleged substantive breaches of Article 3.
(2) If Ground 1 is wrong and Article 3 indeed creates a duty to investigate enforceable in our domestic law, the duty only arises where the State (or, to use the language of the HRA, a public authority) is complicit in an alleged substantive breach of the Article.
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(3) If Grounds 1 and 2 are both wrong and there is a duty to investigate allegations of inhuman or degrading treatment by non-State actors, then given the proper scope of the duty, there was no breach on the facts of DSD/NBV.
(4) If all of Grounds 1 – 3 are wrong, the judge nevertheless erred in holding that the MPS owed a duty to NBV to investigate the perpetrator Worboys even before he attacked NBV.
ECHR Article 2 of itself imposes no duty of investigation
The court found that the argument advanced on behalf of the MPS suggests a substantial mismatch between the scope of Article 3 guaranteed by the Convention and the scope of Article 3 enforceable, by means of the HRA, in the UK courts. The first includes an investigative duty but the second does not. The effect of such a mismatch would, the court stated, be bizarre. It would mean that a complaint of violation of Article 3 in the UK constituted by actual ill-treatment could be litigated here; but a complaint that the self-same Article was violated by an investigative failure would have to go to Strasbourg.
The Court found that the omission of Article 1 from the catalogue of Convention rights in the HRA is readily explained. Article 1 is the provision by which the States Parties are obliged to secure the rights stipulated in the ECHR. Section 6(1) of the HRA was, in the courts judgment, analogous. It obliges public authorities in the United Kingdom to respect the Convention rights. The scheme of the Act is clear: those ECHR measures which state substantive rights are named as the Convention rights; other measures in the ECHR, which give the Convention effect but do not state its substance, are not. The argument on behalf of the MPS ignored that distinction. Nothing in the cases, here or in Strasbourg, supported such an approach; the repeated references to Article 1 do no more than identify the medium through which Article 3 has effect on the international plane.
Ground 1 was rejected.
Ground 2: State complicity
The submission on Ground 2 was that a duty to investigate under Article 3 only arises where the State is complicit in an alleged substantive breach of the Article.
The court stated that the rights which the Convention guarantees are enjoyed against the State, and only the State. But it is surely inherent in the Convention’s purpose that the State is to protect persons within its jurisdiction against such brutalities, whoever inflicts them. It is therefore no surprise that the Strasbourg court has interpreted Article 3 so as to provide safeguards that are broader than the bare prohibition of acts of torture or gross ill-treatment by servants of the State. It is important to keep in mind the Article’s overall, strategic, safeguarding purpose. The idea at the core of the Article is that of safeguarding or protection in all the myriad situations where individuals may be exposed to ill-treatment of the gravity which the Article contemplates.
General police dutiesCase law
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The court stated that there is, perhaps, a sliding scale: from deliberate torture by State officials to the consequences of negligence by non-State agents. At what may, without belittling the victim, be called the lower end of the scale where injury happens through the negligence of non-State agents, the State’s provision of a judicial system of civil remedies will often suffice: the individual State’s legal traditions will govern the means of compliance in the particular case. Serious violent crime by non-State agents is of a different order: higher up the scale. In these cases, which certainly included DSD/NBV, a proper criminal investigation by the State is required. This application of a single principle with varying degrees of rigour represents the true sense of Article 3.
The submissions in ground 2 were rejected.
Ground 3: Breach by the MPS?
It was argued on behalf of the MPS that in the circumstances the judge placed the degree of rigour required of the police investigation by Article 3 too high on the scale. He should have been guided by six principles which taken together tend to show that the MPS did not fall short of the standard of investigation which was required in the circumstances. The principles, said to be derived from cases, were as follows:
1. The obligation to investigate is less extensive in an Article 3 case than in an Article 2 case.
2. Regard must be had to the steps which a complainant may take for him or herself, such as the institution of civil proceedings. (That was in fact done in DSD/NBV.)
3. The obligation is less extensive than in a State agent case.
4. Investigative errors which undermine the possibility of detection create only a risk of liability.
5. Isolated errors or omissions will not suffice to found liability.
6. Where the offender is in the end apprehended, prosecuted and convicted (as here), an effective investigation is demonstrated notwithstanding errors made in the course of it.
In the court’s judgment, there was a strong indication that the nature, scope and rigour of the investigative exercise do not in principle shift as between Articles 2 and 3. The investigation of ill-treatment does not necessarily require more effort or commitment where the victim is dead. In relation to the third point, the Court found that of course the investigative requirements of transparency and independence will be especially pressing where there is a serious case that State agents have killed or injured in violation of Article 2 or 3. But in the end these factors are driven by the exigencies of the particular case. The court did not accept the sixth proposition. The cases referred to did not support a rule that a timeous and successful prosecution necessarily demonstrates that there has been an effective investigation.
General police dutiesCase law
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The court again suggested the application of a single principle with varying degrees of rigour, represents the true sense of Article 3’s investigative duty. It is consistent with the proposition that serious violent crime by non-State agents generally requires a proper criminal investigation by the State. The judge set out a number of systemic and operational failures on the part of the MPS and found violations of the Article 3 investigative duty in the case of both claimants. The court stated that given the applicable legal principles, his conclusion on liability was inevitable.
Ground 4: Duty owed to NBV to investigate before she was attacked?
It was submitted on behalf of the MPS that it was not part of NBV’s case that the offender should have been detected before she was assaulted, and that the judge’s finding went well beyond her pleaded case. The judge had held that the period before the assault on NBV was part of the relevant timeframe in her case. The first reason was that but for the failures during this period it was probable that NBV would not have been raped at all. The court in the current case found that the judge’s conclusion was properly open to him. He had found multiple systemic failures, and serious operational failures in DSD’s case, occurring before the attack on NBV. The court agreed with the judge that ‘nothing in the Strasbourg case law indicates that the timeframe must always start with the assault on the applicant or complainant and common sense indicates that in the case of serial rapists the timeframe for a duty to investigate should be longer and should attach to the conduct of the criminal not the ordeal of the victim.’
The enquiry into compliance with the Article 3 duty is first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State. The argument on Ground 4 was rejected
The MPS’ appeal was dismissed.
KORAOU
The second claim was brought by a man, who alleged that he was the victim of an assault at a bar during which part of his ear was bitten off. The claim was dismissed and found in favour of the GMP.
There were four grounds of appeal:
1. The judge incorrectly applied the ‘capability’ test.
2. The judge wrongly surmised that the outcome would have been the same had the proper lines of investigation been carried out.
3. The judge wrongly concluded that certain deliberate or knowing failures by DC Walters were not wholly unreasonable (and therefore, presumably, not to be forgiven by reference to the margin of discretion available to the GMS).
4. The judge should have held that a failure by the police to ‘clarify matters’ with the appellant (concerning the identity of his assailant) amounted, alone or in combination with other failures, to a breach of the investigatory obligation.
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The court held that none of the individual submissions carried substantial weight. There was no trace of any misapplication or misunderstanding by the judge on ‘capability’ nor, indeed, of the approach in Strasbourg to the standard required for the investigative duty. The claimant’s written argument rested heavily on the proposition that ‘[t]he test of whether steps are capable of apprehending a suspect has nothing all to do with evidential difficulties in the investigation and the prospects of convicting the offender’. The court found that, so stated this was unrealistic. Obviously the police may not simply give up in the face of difficulties, unless it is truly and strictly apparent that nothing can be done; equally obviously, the nature (and difficulty) of the task they face will inform the steps they should take. The judge was plainly entitled to doubt whether the additional investigations that could have been carried out would have overcome the evidential difficulties so as to lead to the conviction and punishment of the offenders.
The judge considered whether in all the circumstances the police investigation was ‘reasonable’. While the court stated that this was perhaps a loose approach, in its judgment his overall treatment of the case was in line with the scope and nature of the Article 3 duty. The duty is first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State; and the State enjoys a margin of discretion as to the means of compliance with the duty – a margin which widens at the bottom of the scale (negligence by non-State agents) but narrows at the top (deliberate torture by State officials). The judge had weighed the proved deficiencies of the investigation, its difficulties as he found them to be, and the gravity of the case. In the court’s judgement his conclusion could not sensibly be faulted. The appeal in Koraou was dismissed.
The judgement can be accessed in full at http://www.bailii.org/ew/cases/EWCA/Civ/2015/646.html
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Road trafficThe Director of Public Prosecutions v Whittaker [2015] EWHC 1850 (Admin)
Facts
On 8 July 2014 the respondent John Whittaker had been driving a van when he was stopped by PC Dixon. PC Dixon inspected the van and it was found to have a large quantity of DVDs. The way the DVDs were arranged indicated that it looked like a mobile library. PC Dixon photographed the inside of the van, but he did not ask Mr Whittaker where he was going, what he had been doing that day since getting into the van or whether he was in the business of selling DVDs while using the van on a road.
Mr Whittaker had a valid certificate of insurance for the vehicle, however it was restricted to social, domestic, pleasure, and motor trade use.
On 26 August 2014 Mr Whittaker was charged with using a motor vehicle on the road when there was not in force in relation to that use a policy or insurance that complied with section 143 of the Road Traffic Act 1988. The reason for the charge was that the prosecution thought that the van was being used for the business of selling DVDs on the day in question and the certificate of insurance did not cover such a use.
In response to this charge Mr Whittaker put forward a submission of no case to answer, stating that the burden of proof was on the prosecution to prove beyond reasonable doubt that he was using the vehicle for business use and it had failed to discharge that burden. The magistrates accepted this submission and held that Mr Whittaker had no case to answer.
The prosecution appealed this decision.
Grounds for appeal
The prosecution appealed on the following grounds:
1. The magistrates had erred in their conclusion on the burden of proof.
2. Irrespective of where the burden lay, the evidence as to the state of the van was such that, on the application of the test in R v Galbraith [1981] 1 WLR 1039, the magistrates were wrong to find that no reasonable tribunal could have been satisfied so that it was sure on the evidence that had been adduced that the van was being used to sell DVDs on the day in question.
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The Decision
Issue 1
The prosecution had been brought due to the police suspecting that Mr Whittaker had been using his van for the business of selling DVDs, which if true would mean he was acting outside the scope of his insurance certificate, which did not cover the vehicle being used for these purposes. The court considered the cases of DPP v Kavaz [1999] R.T.R 40, John v Humphreys [1955] 1 W.L.R 325 and R v Oliver (Frank Ephraim) [1944] and stated that where criminal liability depended on the suspicion being well founded, as a matter of first principle, it was for the prosecution to substantiate what it asserted to be the case. The issue of whether the driver had a valid certificate of insurance was something that it was reasonable and proportionate to expect him to substantiate but this did not apply to the issue of whether the driver was using the vehicle for a business purpose on the day in question while using the road.
If PC Dixon had asked Mr Whittaker what he was doing and what comment he had to make on the state of the van then inferences might have been drawn from any failure to explain or if any explanation was shown later to be false. However these questions were not asked and once the valid certificate of insurance had been produced, the proof of the use in question reverted to the prosecution. The court stated that he who asserted the existence of the relevant conduct should prove it unless parliament had clearly placed the burden on the defendant.
Issue 2
The evidence in this case regarding the state of the van, namely the photograph taken by PC Dixon gave rise to an inference that the van was organised so that it could be used for selling DVDs, however the issue was whether it was being used at the material time.
The court stated that although there was suspicion as to the activity the defendant was engaged in on that day, in the absence of any inquiry by the police or any evidence of the use of the van on that day, they could not accept the prosecution’s submission that the state of the van alone was enough to enable a reasonable tribunal to be sure of this issue.
The court also stated that the justices in the original case were advised properly on the Galbraith test and were entitled to reach their conclusion on this issue of fact. The information before the justices was limited and the effect of the evidence against Mr Whittaker was just as consistent with personal use of the van on the day in question, and without further incriminatory details any other conclusion would have been based on speculation rather than rational conclusion from inferences.
Conclusion
Having considered the issues the court dismissed the appeal on both grounds.
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The full judgment can be found at http://www.bailii.org/ew/cases/EWHC/Admin/2015/1850.html
Policing practice
CrimeHome Office Circular 24/2015: Modern Slavery Act 2015
The Home Office has published a circular, providing guidance on the Modern Slavery Act 2015 (‘the Act’) which received Royal Assent on 26 March 2015. It provides details on the following provisions of the Act that came into force on 31 July 2015:
• the consolidation of slavery and human trafficking offences into one Act with a maximum life sentence (sections 1-6)
• ensuring the main offences are criminal lifestyle offences for the purposes of the Proceeds of Crime Act 2002 (section 7)
• Slavery and Trafficking Reparation Orders, which provide powers for the courts to use seized assets to compensate victims (sections 8-10)
• provisions for law enforcement and the courts to detain and forfeit vehicles, ships etc involved in human trafficking (sections 11-12)
• Slavery and Trafficking Prevention Orders and Slavery and Trafficking Risk Orders (sections 14-34), which provide new tools to prevent the harm caused by slavery and trafficking offences
• placing the Independent Anti-Slavery Commissioner on a statutory footing (sections 40-44)
• the statutory defence for victims (section 45), which strengthens protections against inappropriate prosecution of victims of slavery and trafficking for crimes committed as part of their exploitation
• special measures for witnesses (section 46), which ensure that victims in slavery cases have the benefit of special measures in court in the same way as already applies in human trafficking cases
• access to civil legal aid for slavery victims (section 47). Victims of human trafficking who have received a positive Reasonable Grounds decision as part of the National Referral Mechanism already have access to civil legal aid. In line with the change to the National Referral Mechanism to identify victims of slavery and trafficking; this provision extends civil legal aid access to victims of slavery.
The circular can be accessed in full at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/443797/Circular_242015Final_1_.pdf
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Changes to maximum fines for Licensing Act offences
The Home Office has published information on recent changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the effect they have on fines applicable to offences under the Licensing Act 2003 (‘the 2003 Act’). The changes affect all offences committed from 12 March 2015. As a result of the changes, courts which could previously award maximum fines of £5000, or up to £20,000 for certain offences, can now impose unlimited fines. This change applies to the following offences under the 2003 Act, which previously had a maximum limit of £5,000:
• s146 – sale of alcohol to children
• s147 – allowing the sale or supply of alcohol to children
• s149 (3) – purchase on behalf of a person under the age of 18
• s149 (4) – purchase on behalf of a person under the age of 18 for consumption on premises
• s150 – knowingly allowing the consumption of alcohol on relevant premises by children
• s151 – delivering alcohol to children
• s152 – sending a child to obtain alcohol.
Schedule 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 removes the cap on fines for offences which previously had a maximum limit of £20,000. This applies to the following offences under the 2003 Act:
• s136 (4) – unauthorised licensable activities
• s137 (3) – exposing alcohol for unauthorised sale
• s147A (8) – persistently selling alcohol to children
• s156 (2) – prohibition on sale of alcohol on moving vehicles
• s157 (6) – power to prohibit sale of alcohol on trains
• s161 (7) – closure orders for identified premises
• s165 (8) – consideration of closure order by magistrates’ court in
• s168 (9) – provision about decisions under section 167 allowing a premises to be open in contravention to a closure order while the premises licence is awaiting a review.
The Home Office guidance note can be accessed in full at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/441359/30_06_15_LASPO_Act_Gov_UK_doc.pdf
CrimePolicing practice
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Consultation on proceeds of crime codes of practice
A consultation on changes to the codes of practice to the Proceeds of Crime Act 2002 (POCA) has been published by the Home Office. They provide guidance on the new and extended powers introduced by the Policing and Crime Act 2009, the Crime and Courts Act 2013 and the Serious Crime Act 2015
There are four separate codes of practice:
• Two codes providing guidance about exercising the powers to search and seize and detain property in order for it to be sold to meet the value of a confiscation order in certain circumstances. One code relates to England and Wales, replacing one introduced on 1 June 2015, and a new code relates to the exercise of certain functions in Northern Ireland.
• A code providing guidance on the operation of the powers to search for cash where there are reasonable grounds for suspecting that it is recoverable property (property obtained through unlawful conduct) or it is intended for use in unlawful conduct. This code will replace an earlier one relating to Northern Ireland introduced on 6 April 2008 to include the new power to search vehicles. The code also replaces one relating to England and Wales and Scotland introduced on 1 June 2015. The new code relates to the whole of the UK, but only in relation to the exercise of certain functions in Scotland and Northern Ireland.
• A code providing guidance on the exercise of the investigation powers in POCA. This code will replace an earlier one introduced in Northern Ireland on 1 April 2008 to include extended powers relating to civil recovery and confiscation investigations and transfer of jurisdiction from the High Court to the Crown Court in detained cash investigations. The code also replaces one introduced on 1 June 2015 in England and Wales so as to include guidance relating to the extended confiscation investigation powers. The code relates to England and Wales and Northern Ireland, but only in relation to the exercise of certain functions in Northern Ireland.
The codes will cover the operation of the various powers under POCA. For existing investigators, training on the new codes will form part of their Continuous Professional Development activity. For new financial investigators, the training will be incorporated in pre-course study and the pre-course online exam. This will be followed with a practical based case study worked through in the classroom phase of the initial training.
Where any ‘appropriate officer’ or ‘officer’ fails to comply with any provision of the codes, they would not, by reason of that failure alone be liable to any criminal or civil proceedings, but the code is admissible as evidence in such proceedings. Because a court may take account of any failure to comply with the provisions in the codes in determining any question in the proceedings, it is essential that the training is provided.
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The consultation is open to other government departments, interested organisations using these powers and the public. In particular, it invites comments on the following:
• The draft codes will affect organisational responsibilities in relation to the seizing and retention of property. Do you have any comments to make in relation to the advice contained within the codes?
• Will the draft codes have an adverse impact on your organisation?
• The cash seizure code and the investigations code have been in existence for some time. Do you have any comments to make in relation to how those codes have operated?
The closing date for comments is Friday 2 October 2015.
The consultation and the draft codes of practice can be accessed in full at https://www.gov.uk/government/consultations/codes-of-practice-issued-under-the-proceeds-of-crime-act-2002-poca
Home Office Circular 23/2015: A Change to the Misuse of Drugs Act 1971
The Home Office has published a circular which draws attention to the contents of statutory instrument SI 2015/1396 which came into force on 27 June 2015.
Following advice from the Advisory Council on the Misuse of Drugs (ACMD) earlier this year, the Government made a Temporary Class Drug Order (TCDO) on five compounds related to methylphenidate, a Class B drug, due to concerns about their misuse as new psychoactive substances. The ACMD has recommended that two additional compounds, 4-Methylmethulpehnidate and Ethylnaphthidate, should be added to a new TCDO, alongside the original five substances, while it continues to gather evidence for permanent control advice.
Ethylphenidate, one of the drugs banned under the TCDO, is being used as an alternative to cocaine and is sold using the street names ‘Gogaine’ and ‘Burst’. Users have been known to inject the drug, putting themselves at risk of blood-borne disease and infection.
A TCDO controls the supply, production and importation/exportation, excluding simple possession, of a drug while the ACMD makes a full assessment of its harm for consideration for permanent control as a Class A, B or C drug under the Misuse of Drugs Act 1971. While the order is in force, making, supplying or importing the drugs are punishable with up to 14 years in prison and an unlimited fine under the 1971 Act. The TCDO will expire at the end of twelve months unless the substances are brought under the permanent control of the 1971 Act, or if the order is varied or revoked.
The circular can be accessed in full at https://www.gov.uk/government/publications/circular-0232015-a-change-to-the-misuse-of-drugs-act-1971
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PoliceConsultation on police funding launched
The government has announced a consultation on reforming the current arrangements for allocating central government funding to police forces in England and Wales. It follows a comprehensive review of the current police funding model, the Police Allocation Formula (PAF), which is almost 10 years old and which the Home Office believes should be replaced by a simplified model as soon as it is appropriate to do so.
The proposed new model would use population levels, the underlying characteristics of that population and environmental characteristics to determine how money is allocated. The intention is to create a fairer and more transparent method of allocating financial resources.
The consultation seeks views on the principles underpinning the proposed new model, including the transitional arrangements that would be needed if the new formula was implemented for the 2016/17 financial year.
The consultation closes on 15 September 2015 and can be accessed in full at https://www.gov.uk/government/consultations/reforming-police-funding-arrangements-in-england-and-wales
Decision on water cannon use
The Home Secretary has announced that the use of water cannon as a policing tactic for operational use in England and Wales will not be authorised. The decision follows a full independent review of the medical implications of water cannon and a further review of the latest police guidance, training and maintenance documents.
The rationale for the decision was given as:
• The medical and technical assessment poses a series of direct and indirect medical risks from the use of water cannon. The machines under consideration have also required serious alterations and repairs to meet the necessary standards. The final assessment by the Scientific Advisory Committee on the Medical Implications of Less-Lethal Weapons (SACMILL) found 67 separate outstanding issues which would need to be addressed before they could be deployed.
• Water cannon have limitations, especially in response to fast, agile disorder. Chief Constables also raised the possibility that they could attract crowds to a vulnerable location.
• The deployment of water cannon in areas with a history of mistrust of the police has the potential to be entirely counterproductive and could negatively impact on public perceptions of police legitimacy.
Further information on the decision and the documents supporting it can be accessed at https://www.gov.uk/government/collections/home-secretarys-decision-on-water-cannon-use
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Review into undisclosed undercover police activity published
A review has been published which looks at the impact of undisclosed undercover police activity on the safety of convictions. The review was conducted by Mark Ellison QC and came as a result of the Stephen Lawrence Independent Review, which identified the possibility that SDS (Special Demonstration Squad) secrecy may have caused miscarriages of justice. As a result, a further review was recommended to identify the specific cases affected. The purpose of the review was to assess the possible impact upon the safety of convictions in England and Wales where relevant undercover police activity was not properly revealed to the prosecutor and considered at the time of trial.
The interim report on the review found:
• a number of convictions causing concern. These are currently under active consideration by the Crown Prosecution Service (CPS) and Criminal Case Review Commission
• there are a large number of convictions where the lack of surviving records prevents a detailed analysis of the nature of the deployments, making it extremely difficult to identify if there was, or was not, any relevant activity or observation by the undercover officer in those cases
• undercover officers may well have ended up being arrested. The SDS records show that sometimes that was dealt with by the officer going through the investigation and court process in their undercover name. This inevitably entailed deception of the arresting officers and courts, and also the legal advisers who represented a number of activists arrested at the same time, all of which had to be dealt with in a manner consistent with their undercover role
• that sometimes an undercover officer who had been present at a riot or other disorder where arrests had been made and criminal proceedings had been brought knew that aspects of the prosecution case being advanced through police witnesses was false; and
• the nature of undercover deployments was such that on occasions they must have generated material which was disclosable in criminal proceedings but which was not revealed by the undercover unit to the responsible investigators and prosecutors.
In response to the review, the Home Secretary has included, as part of the Terms of Reference for the undercover policing inquiry, a review of the scope for miscarriage of justice in the absence of proper disclosure of an undercover police operation during criminal prosecutions. A panel will be established, consisting of senior members of the CPS and the police, which will review cases where the inquiry believes miscarriages of justice may have taken place as the result of an undercover police operation or its non-disclosure.
‘Possible miscarriages of justice: impact of undisclosed undercover police activity on the safety of convictions’ can be accessed in full at https://www.gov.uk/government/publications/review-of-possible-miscarriages-of-justice
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Terms of reference for undercover policing inquiry announced
The Home Secretary has announced the terms of reference to the undercover policing inquiry, which was set up in March. The purpose of the inquiry chaired by Lord Justice Pitchford is to inquire into and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968 and, in particular, to:
• investigate the role and the contribution made by undercover policing towards the prevention and detection of crime
• examine the motivation for, and the scope of, undercover police operations in practice and their effect upon individuals in particular and the public in general
• ascertain the state of awareness of undercover police operations of Her Majesty’s Government
• identify and assess the adequacy of the: – justification, authorisation, operational governance and oversight of
undercover policing – selection, training, management and care of undercover police officers
• identify and assess the adequacy of the statutory, policy and judicial regulation of undercover policing.
The inquiry is expected to run for up to three years and will report to the Home Secretary.
The Home Secretary’s statement can be accessed in full at http://www.parliament.uk/documents/commons-vote-office/July%202015/16%20July/23-Home-Undercover.pdf
First anniversary of the Code of Ethics
The College of Policing’s Code of Ethics, has now been in place for a year. The code was launched on 15 July 2014 and was laid as a code of practice before Parliament as part of the Anti-Social Behaviour, Crime and Policing Act 2014.
The code sets out nine policing principles and ten standards of professional behaviour. The principles in the code are designed to guide decision making for everyone in policing. Combined with the standards of professional behaviour, the code will encourage officers and staff to challenge those who fall short of the standards expected.
The principles originate from the ‘Principles of Public Life’ developed by the Committee on Standards in Public Life in 1995, as these continue to reflect public expectations. The College has included the principles of ‘fairness’ and ‘respect’ as these have proved crucial to maintaining and enhancing public confidence in policing.
Further information about the Code of Ethics can be found on the College website at http://www.college.police.uk/Pages/Home.aspx
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HMIC reports on police response to child protection
Her Majesty’s Inspectorate of Constabulary (HMIC) has published a series of reports related to child protection and how the police have responded to child protection issues over the last 18 months.
The HMIC investigations found that although all police forces have strategies and policies in place that are designed to ensure children are effectively protected and safeguarded, the plans articulated by senior officers have failed as yet to result in consistently good services for children. The reasons behind this were due to the following:
• on too many occasions investigations into child abuse or neglect were poor and plagued by delay and the response to reports of offences against children were inadequate
• some excellent practice observed by HMIC were as a result of dedicated individuals and teams rather than a united and applied focus on protecting children at force level
• there is not enough done in forces to find out the effects on children of police intervention and as a result forces don’t know what works in protecting children.
In terms of addressing these issues based on the findings the HMIC summarised that:
• The dedicated individuals and teams observed need and deserve better support. This means that senior officers must ensure that these individuals and teams are working in an environment where they are valued and supported.
• The police service must focus on how it ensures it has the skills, capabilities and application it needs to improve and that the police service acts with conviction and urgency to bring these changes about.
• Forces need to recognise and protect children at risk and treat cases of child exploitation as a strong indicator of a serious and prevalent problem, rather than isolated incidents to be investigated.
Overall the HMIC findings demonstrated that there was an under-recognition and under-estimation of risk. The reports also warn that if the child protection system is in some cases struggling to manage the current demands then it will not cope in the future with a greater number of cases. They also found that the current child protection arrangements which deal with incidents on a case-by-case basis are inadequate for the task due to their focus on procedures and different approaches may need to be considered.
The full report can be found at http://www.justiceinspectorates.gov.uk/hmic/news/news-feed/the-police-service-must-reassess-their-approach-to-child-protection/
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IPCC report on deaths during or following police contact published
The Independent Police Complaints Commission (IPCC) has published its annual report on deaths during or following police contact in 2014/15. It shows:
• There were 17 deaths in or following police custody. This is an increase from 11 last year but is broadly in line with the average number of such deaths over the last six years. This has remained at less than half the number recorded when the IPCC was first set up.
• There was one fatal police shooting, the first in three years.
• There were 14 road traffic fatalities, continuing a downward trend, particularly in relation to pursuit-related deaths, of which there were 7.
• There were 69 apparent suicides following custody, continuing the rise in recent years, which may be related to improved identification and reporting.
• The IPCC also investigated 41 other deaths following contact with the police in a wide range of circumstances, including 26 people who died after concerns were raised with the police about their safety or well-being.
As in previous years, the report shows that mental health and links to drugs or alcohol were common factors among many of those who died. Eight of the 17 people who died in or after police custody and half of those apparently committing suicide after custody had mental health concerns. The report also shows that nearly all of those who died in or following police custody (16 of 17), and over a third of those who apparently committed suicide following custody, had links to drugs or alcohol.
The IPCC has raised a number of issues concerning the treatment of those detained by police, including:
• An assessment of vulnerability should inform the initial response and all further actions of the police, including decisions on whether a person needs to be taken to custody, a healthcare setting or a place of safety.
• Every person who enters custody should be risk assessed. If someone is unable to interact with the risk assessment process then this is a sign that custody may not be the most appropriate place for them.
• It is essential that checks and rousing are carried out at the frequency and standard expected. During a rousing check a grunt or a snore is not an adequate response to determine any change in an individual’s consciousness level. Rousing is only adequate once a comprehensive verbal response has been heard.
• Those who are drunk and incapable should be treated medically, and those who are under the influence of alcohol or drugs should be placed on rousing checks and their condition assessed.
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• Taser should only be used in custody in exceptional circumstances as it is a confined space, and drive stun mode should not be used purely as a means of pain compliance.
• Use of force should be proportionate, lawful and only carried out for as long as is necessary. Alternatives to restraint should be used as far as possible, but where used this should be recorded to determine whether it is being used disproportionately. Appropriate equipment must be used and vital signs monitored throughout any restraint.
The report can be accessed in full at https://www.ipcc.gov.uk/page/deaths-during-or-following-police-contact
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Criminal justice system
Consultation on revising the Victims’ Code
The Ministry of Justice has announced a consultation on revising the statutory Code of Practice for Victims of Crime (‘the code’), which places obligations on criminal justice agencies to provide victims of crime with support and information. The revision of the Code aims to improve the experience of victims of crime in the criminal justice system. It also aims to ensure compliance with the EU Victims’ Directive, which establishes minimum standards on the rights, support and protection of victims of crime, and which comes into force on 16 November 2015.
The main proposed changes are to:
• extend the services offered under the Code to victims of any criminal offence, not just victims of the more serious criminal offences that are notifiable under the National Crime Recording Standards (NCRS)
• make sure that victims are entitled to receive support and information from relevant public sector investigative and prosecutorial organisations, not just the police and Crown Prosecution Service
• make sure that a victim who reports a crime receives a written acknowledgment which states the basic elements of the criminal offence concerned.
Responses on the draft revised Code are invited from the public, victims of crime, criminal justice agencies, the judiciary, the Commissioner for Victims and Witnesses, organisations that work with and represent victims of crime, and all with an interest in the criminal justice system in England and Wales.
The consultation closes on 16 August 2015. It can be accessed in full at https://consult.justice.gov.uk/digital-communications/victims-code
Consultation on draft FGM guidance
The government has launched a public consultation to ensure that new statutory guidance on Female Genital Mutilation (FGM) captures the full range of evidence, responsibilities, duties and good practice to support professionals in safeguarding women and girls from FGM. It seeks views of the content and detail of new statutory guidance, which will be commenced towards the end of the year.
The consultation closes on 30 September 2015. The consultation document and the draft statutory guidance can be accessed in full at https://www.gov.uk/government/consultations/consultation-on-the-draft-statutory-multi-agency-practice-guidance-on-female-genital-mutilation-fgm
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New minimum sentence for repeat knife offenders
Minimum prison sentences for offenders who repeatedly carry knives came into effect on 17 July 2015, following the commencement of section 28 of the Criminal Justice and Courts Act 2015. The section amends the Prevention of Crime Act 1953 and applies where the person was aged 16 or over when the offence was committed and had at least one relevant conviction. It requires the court to impose a sentence of at least 6 months imprisonment on offenders aged 18 or over. In the case of a person aged between 16 and 17 when convicted, the court must impose a detention and training order of at least 4 months.
Judges will retain discretion not to impose the sentence where there are particular circumstances relating to the offender or the offence (s) which would make the imposition of the sentence unjust.
Further information can be accessed at https://www.gov.uk/government/news/repeat-knife-offenders-face-new-minimum-prison-term
Prevent duty comes into force
The Prevent duty, which was introduced as part of the Counter-Terrorism and Security Act 2015 (‘the Act’), came into force in the most part on 1 July 2015. It requires a range of organisations including schools, local authorities, prisons, police and health bodies to have ‘due regard to the need to prevent people from being drawn into terrorism’. The duty is contained in section 26 of the Act and came into effect on 1 July, apart from in respect of any specified authority to which section 31 (freedom of expression in universities etc) is expressed to apply.
Statutory guidance on the duty, to which specified authorities must have regard when complying with the duty, was approved by Parliament and published in March, following a public consultation. The duty will also cover universities and colleges and will be commenced for these institutions once further guidance on extremist speakers has been published.
The statutory guidance on the duty can be accessed at https://www.gov.uk/government/publications/prevent-duty-guidance
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Violence against women and girls crime report published
The Crown Prosecution Service (CPS) has published an analysis of the key prosecution issues in each Violence against Women and Girls (VAWG) strand; domestic abuse, rape, sexual offences, stalking, harassment, forced marriage, honour based violence, female genital mutilation, child abuse, human trafficking, prostitution and pornography. The report found:
• there was the highest volume ever of all VAWG police referrals, charged defendants, prosecutions and convictions in 2014/15
• that over 11,000 more defendants were convicted – a 16.9% increase since 2013-14 to 78,773
• the highest conviction volumes ever of domestic abuse (68,601), rape (2,581), sexual offences (7,591), honour-based violence (129) and child abuse (7,469)
• that over 10,000 more defendants were convicted for domestic abuse, a rise just under 18% from the previous year
• the highest ever level of defendants convicted for child sexual abuse – a 19% rise
• that there was a rise of 15% in stalking and harassment prosecutions to over 12,000, of which 1,103 prosecutions were commenced under the new stalking offences
• that the rape conviction rate fell to 56.9% although there was a rise in conviction volumes for rape of 9.9%.
The report can be accessed in full at http://www.cps.gov.uk/publications/docs/cps_vawg_report_2015.pdf
Data retention provision declared unlawful
The High Court has declared section 1 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) inconsistent with EU law. In the judgement in the case of R (on the application of) Davis & Ors, v Secretary of State for the Home Department & Ors [2015] EWHC 2092 (Admin) (17 July 2015) it was declared inconsistent in so far as:
• it does not lay down clear and precise rules providing for access to and use of communications data retained pursuant to a retention notice to be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating to such offences; and
• access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective pursued.
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As a result, the court made an order that section 1 is disapplied:
• in so far as access to and use of communications data retained pursuant to a retention notice is permitted for purposes other than the prevention and detection of serious offences or the conduct of criminal prosecutions relating to such offences; and
• in so far as access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective pursued.
The order has been suspended under 31 March 2016, to give time for compliance.
The judgement can be accessed in full at https://www.judiciary.gov.uk/wp-content/uploads/2015/07/davis_judgment.pdf
Consultation on investigation powers under POCA
The government has launched a consultation on which bodies should be granted access to the investigation powers under the Proceeds of Crime Act 2002.
The consultation covers the following issues:
• the extension of powers to bodies with some existing investigation powers
• provision of powers to new public bodies
• allocation of new powers provided by the Policing and Crime Act 2009
• changes to the level of seniority for Senior Appropriate Officers for the authorisation of the exercise of certain powers
• removal of existing powers from two bodies.
The consultation closes on 4 September 2015 and can be accessed in full at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444003/AFI_Consultation_Document_Final2.pdf
Criminal justice system
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