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

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OFFICIALDigest September 2017

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© College of Policing Limited 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.

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 6 Bills before parliament 6 The Data Protection Bill 6

The European Union (Withdrawal) Bill 7

Statutory Instruments 8

SI 929/2017 Immigration Act 2016 (Commencement No. 5) Regulations 2017 8 SI 930/2017 Immigration Act 2014 (Current Accounts) (Freezing Orders: Code of Practice) 8

Regulations 2017

SI 931/2017 Immigration Act 2016 (Consequential Amendments) Regulations 2017 8 SI 944/2017 Proscribed Organisations (Name Change) (No. 2) Order 2017 8 Case law 9 Crime 9 R v Ray [2017] EWCA Crim 1391 9 Policing practice 10 Police 10 Projects granted funding in third round of Police Transformation Fund 10 Paper on security, law enforcement and criminal justice post-Brexit published 10 Review of protections for police pursuit drivers 11 IPCC produces national recommendations regarding police response to people with 11 mental health issues

Training and development 12 Duke of Cambridge speaks at COP/NPCC Mental Health conference 12 Inspection of Border Force customs custody suites 12Criminal justice system 14 Video enabled justice system to be piloted 14 Home Office releases Terrorism Act 2000 statistics 14 Additional funding for counter-terrorism policing 15 Multi-agency response to children living with domestic abuse 15 Asset Recovery Bulletin released by Home Office 16 The Lammy Review 16 CPS announces commitment to male victims of sexual and domestic abuse 16 Attorney General to undertake review of impact of social media on criminal trials 17

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Contents

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September sees the return of Parliament from its summer recess. Already on the agenda are two crucial bills likely to have a significant impact on the criminal justice landscape: the Data Protection Bill and the European Union (Withdrawal) Bill. Articles on both of these bills are included in this month’s edition.

The College of Policing were pleased to have collaborated with the National Police Chiefs’ Council to organise the National Mental Health and Policing Conference. His Royal Highness the Duke of Cambridge attended and shared his views on the key topics, pledging future assistance towards raising awareness of mental wellbeing issues in policing. A full article can be found in this edition.

This month’s Digest also includes articles on:

• Self-defence against an intruder in householder cases,

• A government assurance to review protections for police pursuit drivers,

• The Home Office quarterly Terrorism Act figures,

• The Lammy Review.

Book your place on the College of Policing Annual ConferenceOur annual conference is a key opportunity for policing professionals and other College members to meet, learn and innovate. This year’s theme is ‘Everyday Innovation: from ideas to action’ and will centre on how cutting edge ideas can be applied to improve everyday policing practice. Our approach will be evidence based and will highlight technological and social changes and problem solving methods as well as other topics. We hope it will be an invaluable learning experience for all of our attendees.

Book your place now, on what promises to be one of the most engaging policing conferences you’ll attend this year.

Everyday innovation: from ideas to action Thursday 23 November 2017, Ryton, near Coventry www.college.police.uk/conference2017 #copconf

Overview

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Have your sayWe would like to make sure that this Digest is useful to its readership and will be sending out a survey to collect your views in an upcoming edition. We’d be pleased to have your input and hope you can get involved.

In the interim, if you have any ideas or suggestions (format, style, topics – all feedback happily received), please email digest@college.pnn.police.uk

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LegislationBills before parliamentThe Data Protection Bill

The first reading of the Data Protection Bill took place on 13 September. The Bill aims to strengthen existing data protection law so that it can meet the challenges of an increasingly digital society, with an emphasis on privacy and accountability. It will function as a complete data protection system and its reach will extend beyond the existing protections provided under the General Data Protection Regulation to include data relating to law enforcement and national security. The bill will start to build the foundations of a legal landscape in relation to data protection after Brexit.

The Bill can be divided into four key areas:

General data processing

• Facilitate application of GDPR standards across all data processing and contextualise the GDPR within UK law.

• Ensure continued confidentiality of health, social care and education data.

• Provide restrictions to rights to access and delete data so that processing where there might be a valid public policy justification may continue.

• Set the age from which parental consent is not required to process online data at 13.

Law Enforcement Processing

• Provide a system which is bespoke and fit for purpose for personal data processing by police, prosecutors and other criminal justice agencies for the purposes of law enforcement.

• Allow data to move internationally unhindered but with sufficient safeguards.

National Security Processing

• Modernise the laws around intelligence service processing of personal data so that it aligns with international standards.

Regulation and Enforcement

• Empower the Information Commissioner in his regulatory and enforcement functions.

• Increase the penalty fines for data breaches to up to £17 million or 4% of global turnover.

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• Empower the Commissioner to initiate criminal proceedings for any organisation which attempts to alter records with intent to prevent disclosure in answer to a subject access request.

Progress

Second reading will take place on 10 October. The Bill can be accessed in full at parliament.uk. An overview of the Bill can be accessed here.

The European Union (Withdrawal) Bill

Second reading of the European Union (Withdrawal) Bill took place in the House of Commons on Thursday 7 September and Monday 11 September. The Bill, which is designed to repeal the European Communities Act 1972 on the day the United Kingdom leaves the European Union, passed the second reading with a vote of 326 to 290.

The Bill will end the supremacy of European Union law in UK law, converting EU law as it stands at the moment of exit into domestic law. It makes temporary allowances to adjust laws where necessary and appropriate to fit with UK law. These allowances were the focus of much of the debate that took place during the second reading, causing controversy and raising questions around parliamentary sovereignty for some MPs.

Progress

The date for committee stage, when each line of the Bill will be examined in detail, is yet to be announced.

Further information can be found at parliament.uk

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Statutory InstrumentsSI 929/2017 Immigration Act 2016 (Commencement No. 5) Regulations 2017

The instrument will bring into force section 45 of, and schedule 7 to, the Immigration Act 2016 as of 30 October 2017. This law relates to a requirement to carry out immigration checks in relation to current accounts.

For more information, please go to here

SI 930/2017 Immigration Act 2014 (Current Accounts) (Freezing Orders: Code of Practice) Regulations 2017

The instrument will put in force a Code of Practice for the factors the Secretary of State will take into consideration when applying a freezing order under section 40D of the Immigration Act 2014 including applications for the varying or discharging of existing orders. The Code will also include provisions for the review of orders and will ensure that all actions are appropriate. This will come into effect as of 30 October 2017.

For more information, please go to legislation.gov.uk

SI 931/2017 Immigration Act 2016 (Consequential Amendments) Regulations 2017

This instrument will amend regulation 26(2) of the Payment Accounts Regulations 2015 to make clear that a designated credit institution may close a payment account with basic features in instances where action is necessary under section 40G of the Immigration Act 2014. This will help ensure that disqualified persons are not able to keep bank accounts open. The instrument will come into force as of 30 October 2017.

For more information, please go to legislation.gov.uk

SI 944/2017 Proscribed Organisations (Name Change) (No. 2) Order 2017

The instrument is drawn under the powers held in section 3(6)(a) of the Terrorism Act 2000 (TA) which allows the Secretary of State to specify other names for an organisation that is already a proscribed organisation listed in Schedule 2. It is a criminal offence to support a proscribed organisation or to wear or carry articles in public which may lead to the reasonable suspicion that that person is a member or is supporting a proscribed organisation. The organisation relevant here is National Action and the alternative names are identified as ‘Scottish Dawn’ and ‘NS131’ (National Socialist Anti-Capitalist Action). The instrument is effective as of 28 September 2017.

For more information, please go to legislation.gov.uk

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Case lawCrimeR v Ray [2017] EWCA Crim 1391

This case concerns the use of proportionate force used in defence by a householder against an intruder. The relevant law is section 76(5A) of the Criminal Justice and Immigration Act 2008 and section 43 of the Crime and Courts Act 2013.

In this instance the victim, Hemmings, and the appellant, Ray, were known to each other; the victim was the ex-partner of the appellant’s girlfriend, Allen. Hemmings and Allen had a history of domestic violence. One morning, Hemmings, in a heightened state of anger, made his way into Ray and Allen’s home and there was an altercation between the three. Ray made attempts to diffuse the situation and have Hemmings leave the property. The altercation escalated into a fight which culminated in Ray stabbing Hemmings with an 11cm long blade, the subsequent wound inflicted with only mild force. Ray performed CPR and an ambulance was called immediately but Hemmings died as a result of the single stab wound. Ray claimed he acted in self-defence, that the knife had been within reach of both of them and that he feared Hemmings would use it. He claimed that he did not mean to stab him but did so out of a fear for his own personal safety.

Defence for Ray argued that there had been a misinterpretation of the law and that if a jury decides that the use of force was not or may have not been grossly disproportionate then it must have been reasonable and that self-defence is established. The Court rejected this. It deemed that the 2013 Act refined the common law interpretation of self-defence in householder cases and provides that the use of a disproportionate degree of force may be a reasonable use of force. This is not the case for non-householder cases where disproportionate force would be unreasonable.

There is no specific direction in law as to the distinction between a disproportionate and an unreasonable use of force. In householder cases, the jury needs to determine what is reasonable or unreasonable given the circumstances of each case. Via summing up, a jury can be directed to assess the defendant’s actions in the context of the circumstances or what they thought the circumstances to be and that a grossly disproportionate use of force can never be reasonable.

From an assessment of the circumstances and the factors above, the appeal in this instance was dismissed.

The full judgement can be accessed here

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PoliceProjects granted funding in third round of Police Transformation Fund

Successful bids to the third round of the Police Transformation Fund were announced on 4 September 2017. This included a successful bid from the College of Policing and a number of forces nationwide.

The Police Transformation Fund aims to revolutionise policing by providing investment across key areas including digitalisation, creating a diverse and flexible workforce and considering new capabilities which will aid forces in responding to the changing nature of crime and threats faced.

The Home Office has published data on the successful bids which includes the forces and policing partners who have been awarded funding, the amount awarded and details of the projects supported. The successful bids covered a wide range of topics including; using a mobile live links van in hard to reach areas, enhancing diversity within policing, collaboration with other blue light services and supporting police volunteering initiatives.

Full details of the successful bids are published on the Home Office website and can be accessed here

Paper on security, law enforcement and criminal justice post-Brexit published

The Department for Exiting the European Union and the Home Office have published a future partnership report on security, law enforcement and justice. The paper highlights that the UK and the EU face a range of shared threats to the security of their citizens and their way of life. It states that it is vital that the UK and the EU maintain and strengthen their close collaboration after the UK’s withdrawal from the EU.

The paper forms part of a series being published setting out the key issues that form part of the Government’s vision for the UK’s future partnership with the EU. This paper builds on the previous paper which focused on foreign policy, defence and security and development.

The paper can be accessed in full at here

Policing practice

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Review of protections for police pursuit drivers

Policing Minister Nick Hurd has agreed to work collaboratively to review the law and guidance surrounding police pursuits and response driving following a Police Federation campaign. The response comes after concerted efforts via the ‘Protect the Protectors’ campaign and will address the current exemptions in place to facilitate modern policing which are perceived to be outdated and offer no protection to officers facing charges of careless or dangerous driving. The Federation hopes that new measures may enable police to effectively counter new crime waves such as the increase in moped related offences.

The full press release can be accessed here

IPCC produces national recommendations regarding police response to people with mental health issues

Following an investigation into the death in custody of an individual suffering from mental health problems, the IPCC has produced a report entitled ‘Six Missed Chances’ outlining the alternative approaches which may have prevented the fatality. The report wishes to promote the paramount importance to officers, of the welfare and safety of those involved in incidents where mental illness may be a factor. Key recommendations in any incident which may involve an individual with a mental health problem include:

• The welfare and safety of all those involved including the patient should be prioritised.

• The default response should be verbal de-escalation and officers should be trained to do this effectively.

• Containment rather than restraint should be used.

• Each local force should have its own robust and effective protocol to support officers and work collaboratively with partner agencies to ensure best practice.

• Processes should be put in place for the recording and sharing of information on individuals who are known or are suspected of suffering from mental health problems.

The full article can be accessed here. The ‘Six Missed Chances’ report can be accessed here

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Training and developmentDuke of Cambridge speaks at COP/NPCC Mental Health conference

The College of Policing were pleased to welcome HRH Duke of Cambridge at the National Mental Health and Policing Conference on 5 September 2017, hosted by the College of Policing and the National Police Chiefs’ Council in Oxford. His speech, to some 230 delegates from the policing and health services, recognised the pressures that first responders face not just in major crisis incidents but also on a daily basis, in responding and collaborating with vulnerable people. Pledging his assistance in ensuring police officers are receiving the right support, he promoted the incorporation of a mental health dialogue and awareness in 21st-century policing.

The Duke also touched on what the forces can do to prevent people from reaching a crisis point, and ensuring that early intervention happens where it can. He highlighted the positive effects of collaborative working and urged attendees to think creatively about how early intervention could be approached.

College of Policing guidance regarding mental health can be found on APP.

Further information can be found here

Inspection of Border Force customs custody suites

A report has been published following a joint inspection of police custody at ports and airports in England and Scotland. The report is the third in a programme of inspections of Border Force customs custody suites covering detention at a number of airports and at Dover and Harwich ports. The inspections look at strategy, treatment and conditions, individual rights and healthcare. They also contribute to the UK’s response to its international obligation to ensure regulations and independent inspection of all places of detention.

The inspection, carried out jointly by HM Inspectorate of Prisons, HM Inspectorate of Constabulary and Fire and Rescue Services, found that detainees continue to be well cared for. However, some weaknesses and inconsistencies were highlighted, arising from the ‘loose’ national structure of the Border Force, in which regions tend to function as independent entities.

The report highlights the following areas of concern along with recommendations:

The strategic approach to custody services was limited and delivery was driven operationally by the regions rather than through a strong national approach to ensure effective and consistent outcomes for detainees.

Training and development

Policing practice

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Recommendation: Border Force should strengthen its strategic approach to the delivery of custody services to provide a strong overall framework that supports the regions, ensures consistent service delivery and outcomes for detainees, and drives service improvement.

Border Force has stated it follows the APP guidance for detention and custody as set by the College of Policing. Its practices did not reflect this in a number of areas and some staff demonstrated little knowledge of the content of the guidance.

Recommendation: Border Force should take immediate action to ensure all custody staff follow APP policy and guidance, and have arrangements in place to demonstrate compliance.

Performance management was limited and little proactive monitoring of the service and action took place as a result.

Recommendation: Border Force should ensure its data is accurate and performance is monitored effectively. The information should be used to inform its work with the regions and to identify and act on areas requiring improvement.

Border Force had procured a single health provider for the seven English suites and had clear and appropriate performance monitoring mechanisms. However, at the time of the inspection the health provider did have not have adequate staffing or governance structures in place to ensure detainees received a consistent, safe and timely service.

Recommendation: The health provider in the English suites should ensure they have adequate staffing levels and governance systems.

The report can be accessed in full at gov.uk

Training and development

Policing practice

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Criminal justice systemVideo enabled justice system to be piloted

The Video Enabled Justice (VEJ) pilot scheme will run across London and the southeast and will use a network of video links in police stations and other venues so that police officers and witnesses can give evidence for court hearings remotely. The Home Office hopes that this initiative will help increase efficiency and maximise resources for the police. The system may also improve the witness experience allowing vulnerable victims to give evidence away from court and will assist witnesses who are unable to travel.

Video links have been installed and upgraded across court venues in England and Wales since 2015. The VEJ scheme will cost £11 million with funding drawn from the Police Transformation Fund.

The full article can be found here

Home Office releases Terrorism Act 2000 statistics

The Home Office produces a quarterly report publishing statistics regarding the Terrorism Act 2000 (the Act) and has just released figures for the year ending June 2017. Key findings include:

• A 68% increase in the number of arrests made under the Act.

• A total of 379 arrests, the highest on record. Of those, 105 individuals were charged with terrorism related offences, 33 have been prosecuted and only 1 found not guilty.

• A 1% increase in the number of females arrested to 54.

• Most arrests were of those of the 30 and over age group.

• Arrests of individuals with white ethnic appearance increased by 92% accounting for 34% of the total number of arrests.

• 70% of those arrested considered themselves to be of British or British dual nationality.

• A total of 204 people in custody for terrorism related offences, an increase of 53 from the previous year.

• Of the HO defined ‘terrorist categories’ (international, domestic, not classified and Northern Ireland related), 60% of arrests fell under the international category.

• 646 people were stopped and searched under Section 43 of the Act, a 17% increase. Section 47 of the Act was not used at all.

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• A decline in the use of Schedule 7 of the Act, with 17,501 individuals examined, a fall of 26%.

• The most common sentence length was between 4 and 10 years.

The full report can be accessed here

Additional funding for counter-terrorism policing

The Home Secretary has announced an additional £24 million for counter-terrorism policing. This comes in addition to the government’s commitment to increase spending on counter-terrorism by 30%. The funding will be used to bolster protective security measures in crowded places.

Further information can be found at gov.uk

Multi-agency response to children living with domestic abuse

A multi-agency report has been published, following the second joint targeted area inspection programme examining ‘the multi-agency response to children living with domestic abuse’. The report considers the extent to which, in the six local authorities inspected, children’s social care, health professionals, the police and probation officers were effective in safeguarding children who live with domestic abuse.

The report highlights that:

• Professionals have made progress in responding to the large volume of cases of domestic abuse. However, domestic abuse is a widespread public health issue that needs a long-term strategy to reduce its prevalence.

• While much good work is being done to protect children and victims, far too little is being done to prevent domestic abuse and repair the damage that it causes.

• Work with families was often in reaction to individual crises. Keeping children safe over time takes long-term resolutions.

• The focus on the immediate crisis leads agencies to consider only those people and children at immediate risk. Agencies are not always looking at the right things and, in particular, not focusing enough on the perpetrator.

• There is still a lack of clarity about how to navigate the complexities of information sharing.

• There needs to be greater consistency in the definition of harm, and in the understanding of whose rights to prioritise.

The report can be accessed in full at gov.uk

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Asset Recovery Bulletin released by Home Office

The Home Office has released its annual report on asset recovery statistics which includes data on collection rates, priority confiscation orders, the Asset Recovery Incentivisation Scheme (ARIS) and compensation to victims over a collection period of 5 years. Key findings include:

• £201 million (m) of criminal proceeds were confiscated, a 19% increase from the previous year.

• Cash forfeiture has averaged at around £40m a year for the last 5 years.

• Collection of Priority confiscation orders gave a total of £94m out of a possible £491m.

• Since 2011/12 £174m has been paid in compensation to victims.

• From ARIS, £73m was reinvested into future asset recovery work, £3m to crime reduction projects, £1.5m to community projects and £6m for miscellaneous payments.

The full bulletin can be found here

The Lammy Review

The Lammy Review is an independent review of the treatment of, and outcomes for, black, Asian and minority ethnic (BAME) individuals in the criminal justice system (CJS). The review looks extensively at the statistics of BAME individuals throughout the CJS and includes recommendations for improvement to reduce the proportion of BAME offenders. Datasets are wide-ranging across adults, children, men and women within the Crown Prosecution Service (CPS), the courts system, our prisons and young offender institutions, the Parole Board, the Probation Service and Youth Offending Teams. Whilst the review focuses on BAME it also addresses the position of other minorities such as Gypsies, Roma and Travellers who are often missing from published statistics.

There are 35 recommendations (pages 7-9) which centre on delivering fairness, building trust and sharing responsibility as well as a call for strong leadership to drive change.

The full report can be accessed here

CPS announces commitment to male victims of sexual and domestic abuse

CPS prosecutors will be given more information on the needs and experiences of male victims of sexual and domestic abuse. The plans are a result of a recognition of a common reluctance for male victims to report an incident and pursue prosecution because of a variety of factors. These factors include a belief that a victim’s masculinity may be undermined or that assumptions may be drawn of their sexuality in cases of rape by another man. The Director of Public Prosecutions in her public statement acknowledged that societal stereotypes of masculinity can make it difficult for males to

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come forward. The CPS will work with third sector, campaign and national men’s groups to continue to strengthen their understanding.

Further information can be found here

Attorney General to undertake review of impact of social media on criminal trials

A call for evidence will open on 8 December 2017 to enable a review of the risks social media may impose on securing a fair and effective trial. This follows concerns of the effectiveness of the Contempt of Court Act 1981, which outlines what can be published in relation to legal proceedings, in light of the ease and popularity of social media use. The Attorney General will ask for judges, solicitors and victims’ groups to submit evidence in relation to any trials affected by social media either by commentary or breach of anonymity orders and reporting restrictions. The evidence will be used to draft a report which may inform changes in the law. Any review will need to consider the risks imposed on securing justice against freedom of expression.

For more information, the press release can be accessed here

Criminal justice system

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