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

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OFFICIALDigest May 2016

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© College of Policing Limited 2016

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

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

The College of Policing is also responsible for Authorised Professional Practice (APP). APP is the official and most up-to-date source of policing practice and covers a range of policing activities such as: police use of firearms, treatment of people in custody, investigation of child abuse and management of intelligence. APP is available online at www.app.college.police.uk

Any enquiries regarding this publication or to request copies in accessible formats please contact us at digest@college.pnn.police.uk

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Overview 4Legislation 5 Bills before parliament 5 Policing and Crime Bill 5 Investigatory Powers Bill published 5 Statutory Instruments 6 Psychoactive Substances Act 2016 (Commencement) Regulations 2016 6 Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) 6

(Amendment) (No. 2) Order 2016

New legislation 7 Riot Compensation Act 2016 7Case law 8 Crime 8 R v Heddell [2016] EWCA Crim 443 8 General police duties 10 Haralambous v St Albans Crown Court and Anor [2016] EWHC 916 (Admin) 10Policing practice 12 Crime 12 New guidance on female genital mutilation 12 New offence of breach of pre-charge bail announced 12 Police 13 Report on review of NCA warrants published 13 Circular 2/2016: amendment to the definition of ‘arrested juvenile’ 13 Consultation on APP stop and search 14 Review on how the emergency services work together published 14 Latest police firearms statistics 15 Findings from Hillsborough Inquest published 16Criminal justice system 17 Joint inspectorate report on the digitisation of the criminal justice process 17 Consultation on anti-money laundering and counter-terrorist finance 18

Contents

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

There are case summaries on the:

• difference between a firearm and an imitation firearm

• right to information to judge the lawfulness of a search warrant.

We look in detail at the:

• HMIC review of how the police, fire and ambulance service work together

• joint inspectorate report on the digitisation of the criminal justice process

• review of NCA warrants.

We also look at the:

• findings from the Hillsborough inquiry

• latest police firearms statistics

• College of Policing consultation on APP stop and search

• HOC 2/2016: amendment to the definition of ‘arrested juvenile’.

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

Overview

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LegislationBills before parliamentPolicing and Crime Bill

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

Progress

The Bill was introduced to the House of Commons and given its first reading on 10 February 2016. MPs considered the Bill at report stage on Tuesday, 26 April. MPs will now debate the second day of the report stage followed by the Legislative Grand Committee and third reading on a date yet to be announced.

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

Investigatory Powers Bill published

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

Progress

The Bill was introduced and given its first reading on 1 March 2016. The Bill will next be considered by a Public Bill Committee where detailed examination of the Bill will take place.

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

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OFFICIAL 6 Statutory InstrumentsLegislation

Statutory InstrumentsSI 553/2016 Psychoactive Substances Act 2016 (Commencement) Regulations 2016

These regulations bring into force the Psychoactive Substances Act 2016, in so far that it is not already in force, on 26 May 2016. A summary of the Act can be found in the March Digest.

Please see legislation.gov.uk

SI 498/2016 Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) (Amendment) (No. 2) Order 2016

This Order, which comes into force on 10 May 2016, makes amendments to the Proceeds of Crime Act 2003 (Investigations in different parts of the United Kingdom) Order.

Please see legislation.gov.uk

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OFFICIAL 7 Legislation New legislation

New legislationRiot Compensation Act 2016

The Riot Compensation Act 2016 received Royal Assent on 23 March 2016. It repeals the Riot (Damages) Act 1886 and makes provision about the types of claims, procedures, decision-making and limits on the awards payable in relation to a new compensation scheme for property damaged, destroyed or stolen in the course of riots.

The majority of the Act has yet to be appointed.

The Act can be accessed in full at legislation.gov.uk

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Case lawCrimeR v Heddell [2016] EWCA Crim 443

The appellant was convicted of possessing a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968. He was subsequently sentenced to 5 years imprisonment. He appealed against conviction.

The appellant was a director of a company which specialised in the sale of decommissioned weapons and provided weapons to the film and television industry. A warrant was executed at both his home and business addresses. A replica of a WWII German MP40 sub-machine gun with a barrel of less than 30 centimetres was seized along with other weapons which did not contravene firearms legislation.

The crown’s case was that the replica had been converted to be capable of firing live ammunition and that it was a firearm pursuant to section 57 of the Firearms Act 1968. The removal of a steel bolt from the front of the chamber to enable the replica to fire live rounds had been a simple task achievable in 20 to 30 seconds. The defence case was that the replica was, as seized, incapable of discharging a shot, bullet or other missile so that it was not a firearm. The replica was an imitation firearm that was readily convertible into a firearm. The appellant did not give evidence, but in interview he had stated that he was unaware of the ease with which the replica could be converted to fire live ammunition. He had not undertaken or commissioned the modifications to the replica. The defence contention was that the item fell within the provisions of the Firearms Act 1982 which apply to imitation firearms, and that, by reason of section 1(5) of that Act, the appellant had a defence by showing that he did not know, and had no reason to suspect, that the imitation firearm was so constructed or adapted as to be readily convertible in to a firearm to which section 1 of the 1968 Act applied.

The issue as left to the jury was whether they could be sure that, since so little needed to be done to enable the replica to fire missiles, it was a firearm within the definition of section 57(1) of the 1968 Act. In other words the question was whether it was ‘a lethal barrelled weapon from which any shot, bullet or other missile can be discharged’.

The judge in ruling noted that the crown alleged that the item was a firearm and not an imitation firearm. The crown’s expert had demonstrated that the item could be fired. What the item had originally been manufactured as was irrelevant; what was relevant was what it was capable of when seized. It appeared to the judge that the item did not require adaptation but merely the removal of a temporary disablement.

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Appeal

The grounds of appeal were that:

(a) the judge incorrectly ruled that the 1982 Act did not apply to this case

(b) the judge improperly withdrew the issue of fact from the jury as to whether the item in question might be an imitation firearm within the 1982 Act and thus potentially deprived the appellant of the defence available under section 1(5) of that Act

(c) the directions to the jury as to whether the item was an imitation firearm, or in fact a firearm, were unbalanced. The judge had made clear his views that it had already been converted into a firearm

(d) in answer to a question from the jury the judge may have caused confusion.

The 1982 Act does not of itself create any offence. It widens the scope of the 1968 Act so as to cover imitation firearms which are readily convertible into firearms. Section 1(6) defines the circumstances in which an imitation firearm shall be regarded as being readily convertible.

The court considered that the judge was right to leave the contrasting cases of crown and defence for the jury’s consideration. The jury was left in no doubt that before they could convict they had to be sure that the item was a firearm in the sense that the weapon had already been converted so as to be capable of being fired in its present condition, as opposed to something which had started off life as an imitation firearm and which, notwithstanding the work which had been carried out, had not been converted into a firearm and which required further work to turn it into one by unscrewing the bolt. It was left open to the jury to conclude that although the item could readily be converted, it was or might be an imitation firearm. Only if the jury was sure that the crown’s position was correct could they find the appellant guilty.

The court stated that ground (b) could not succeed since the issue of fact was properly left to the jury. Moreover the appellant was not deprived of the defence available under section 1(5) of the 1982 Act. The judge’s direction was couched in terms that if they thought that the item might be an imitation firearm, the jury should return a verdict of not guilty since the crown had not proved that the item was a firearm. The court was not persuaded that the way in which the judge left the matter to the jury was in any way unbalanced.

It was always accepted on behalf of the appellant that the issue as to whether this was a firearm or an imitation firearm was a matter of fact and degree which had to be resolved by the jury on the evidence put before it. The court concluded that the complaints were not justified. Accordingly the appeal was dismissed.

The judgement can be accessed in full at bailii.org

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General police dutiesHaralambous v St Albans Crown Court and Anor [2016] EWHC 916 (Admin)

This judicial review considered whether a person whose premises had been searched and whose property had been seized under a search warrant must be provided with enough information to judge the lawfulness of the warrant and the retention of the material seized under it. In this case the information before the justice of the peace granting the warrant was later redacted to such an extent that what was available to the claimant was not a sufficient legal basis for it or the retention of property seized.

The courts had authorised the redactions on public interest grounds, but the claimant contended that this constituted a closed material procedure which is without statutory foundation. The second defendant, the Chief Constable of the Hertfordshire Constabulary (‘the police’) accepted that a person whose property has been searched and seized is entitled to see the information on which a search warrant is based, and that maximum disclosure consistent with the public interest should be given. However, in this case the police argued that the courts had authorised substantial redactions on public interest grounds and the nature of the statutory scheme is such that the material seized can be retained despite the redactions or the way the courts undertook the task.

The claimant’s case

The claimant’s grounds were two-fold. First, that just as with the previous judicial review of the warrants themselves, there was no way that the police could justify their retention of the property seized from him in the section 59 proceedings when it did so on the basis of evidence which was not disclosed to him. In effect, the redaction of the information behind the warrants constituted a closed evidence procedure for which there is no parliamentary approval.

The second ground was that even if search warrant cases fall within that special category of cases where closed evidence procedures are permitted, it is still not possible to adopt completely closed procedures. Enough information must be available to enable the subject to know the nature of the allegations against him and have the opportunity to lead evidence and participate in the court proceedings to refute them.

Conclusion

Section 8 of the Police and Criminal Evidence Act 1984 (PACE) confers the power on a justice of the peace to authorise the entry and search of premises on application by a police constable. Section 15(3) provides that the application shall be made ex parte but supported by an information in writing. After a consideration of all the information without being concerned with issues of public interest immunity or non-disclosure, the lay justice can exercise his or her discretion to authorise a search warrant. Within the scheme for the issue of search warrants are a number of the significant statutory safeguards.

General police dutiesCase law

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In addition, challenges can be made in the courts to the issue and execution of search warrants as well as to applications by the authorities under section 59 of the Criminal Justice and Police Act 2001. This section provides that the crown court may authorise the retention of unlawfully seized materials under a search warrant if it would immediately become appropriate to issue a fresh search warrant.

The issue which arose in this case was whether the common law right to information after the issue of a search warrant required sufficient information to be provided to the subject of the warrant to assess its legality against the statutory conditions. The court was of the view that parliament had contemplated that in some cases information grounding the warrant may not be disclosed if that is in the public interest. A magistrate or judge needs to consider both whether the search warrant or the retention of property seized is justified and what information can be disclosed to the party affected by the warrant. It may be that as a result of the information withheld the person cannot see how the warrant can be lawful.

The claimant’s submissions, the court stated, would frustrate parliament’s intention in establishing a relatively simple system for the issue of search warrants. Moreover, the claimant’s case was at odds with the public interest in the investigation and prosecution of crime. The court concluded that the claimant’s argument did not succeed in the context of a warrant issued under section 8 of PACE.

The question arose as to whether the approach should be different under section 59 of the 2001 Act. The main purpose of section 59 is, the court stated, to enable material to be retained which would inevitably be seized if a fresh warrant was issued by a magistrate and to avoid the risk to the criminal investigation of relevant evidence being lost.

The court considered that the same conclusion applied to an application to retain material pursuant to section 59 of the 2001 Act as applies to an application pursuant to section 8 of PACE. It followed that the judge may consider material which cannot be disclosed to the subject of the impugned warrant and may restrict what may be disclosed, even if what falls to be disclosed cannot, without more, support the various conclusions necessary for a warrant to be issued.

The judicial review was refused.

The judgment can be accessed in full at bailii.org

General police dutiesCase law

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Policing practice

CrimeNew guidance on female genital mutilation

The Home Office has published multi-agency statutory guidance on female genital mutilation (FGM), aimed at those with statutory duties to safeguard children and vulnerable adults. It replaces female genital mutilation: guidelines to protect children and women (2014). The new guidance should be considered together with other relevant safeguarding guidance such as Working Together to Safeguard Children (2015) and Safeguarding Children: Working together under the Children Act 2004 (2007).

The guidance can be accessed in full at gov.uk

New offence of breach of pre-charge bail announced

The Home Secretary has announced that a new offence of pre-charge bail will be introduced as part of the Policing and Crime Bill.

The change to the Bill will make it a criminal offence for an individual released on pre-charge bail following an arrest for a relevant terrorism offence to breach any conditions of that bail, that prohibit them from leaving the country. This would apply to cases where an individual is arrested on suspicion of a terrorism offence listed in section 41 of the Counter-Terrorism Act 2008.

It will be an offence to breach the following bail conditions:

• requirement not to leave the UK

• requirement to surrender travel documents

• requirement not to be in possession of any travel documents.

If convicted of this offence the maximum penalty is 12 months imprisonment and/or a fine.

The full article can be accessed at gov.uk

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PoliceReport on review of NCA warrants published

A review has been published of the warrants and orders used by the National Crime Agency (NCA) to seize and retain evidence in its investigations. The review followed the failure of two NCA cases, one because the warrants were challenged successfully and the other because the NCA determined itself that there were deficiencies with the warrants. The review looked for potential deficiencies in the warrants and orders in every live pre-conviction criminal NCA case; covering 326 cases and around 3,000 documents.

Issues were classified as ‘minor’ if they were unlikely to result in challenge to the lawfulness of retaining seized material. Minor issues were identified in 242 (74%) of the operations reviewed. Issues were classified as ‘potentially significant’ if there was a significant risk they could result in challenges to the lawfulness of retention of the material seized. Potentially significant issues were identified in 51 (15%) of the operations reviewed.

None of the issues identified resulted in any further investigations or prosecutions being discontinued to date, or in any seized material being returned. In three of the cases the NCA invited defendants to consent to the continued retention of seized material and in all three cases the defendant consented. The review did not find any bad faith or misconduct on the part of officers.

The review can be accessed in full at nationalcrimeagency.gov.uk

Circular 2/2016: amendment to the definition of ‘arrested juvenile’

The Home Office has published a circular on the change to the definition of ‘arrested juvenile’ under section 37(15) of the Police and Criminal Evidence Act 1984 (PACE). On 26 October 2015, the upper age limit in the definition of arrested juvenile was raised from 16 to 17. The statutory amendment supersedes the current provisions of PACE Code C. Until a revised code is issued, references which indicate that the maximum age for transfer to local authority accommodation is 16 no longer apply.

The circular can be accessed in full at gov.uk

Policing practice

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Consultation on APP stop and search

The College of Policing is in the process of developing authorised professional practice (APP) on stop and search and has launched a consultation to obtain feedback on the proposed content. The consultation aims to:

• ensure the content is appropriate and useful to practitioners

• invite feedback on tools to make APP more accessible to frontline officers

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

The College has identified a number of specific questions which aim to achieve the above and welcomes comments on the individual sections of the draft APP.

The consultation is open from 31 March 2016 to 15 May 2016 and can be accessed in full at app.college.police.uk

Review on how the emergency services work together published

A review led by HM Inspectorate of Constabulary (HMIC) has found that coherent and routine working is yet to be embedded across the police, fire and ambulance services. In January 2015, the Joint Emergency Services Interoperability Principles (DESIP) Ministerial Board commissioned an HMIC led tri-service of JESIP across the emergency services. The review examined the extent to which the three services have incorporated the principles of joint working into their preparation for responding to major incidents. The findings are published in this report and include the following observations.

• All three services recognised the importance of interoperability and consider that JESIP provides a welcome focus and structure to develop the associated skills.

• JESIP was drive top-down whereas if it is to become fully embedded, it needs to be part of the initial and continuation training and shared across the wider responder community, such as the Maritime and Coast Guard Agency and Border Agency.

• Central guidance and direction remains necessary to provide the focus and drive to ensure JESIP remains a high priority.

• All three services have different historical backgrounds, ethos and cultures. Improving interoperability has been and will remain a challenge. The introduction of METHANE, an agreed and standard format to pass and assimilate information, as a method of sharing situational awareness is a step forward but it needs to be used more frequently so that it becomes part of normal day to day business.

PolicePolicing practice

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The review makes recommendations for the emergency services to improve interoperability, including:

• JESIP needs to be part of the initial and continuation training and shared across the wider responder community such as the Maritime and Coast Guard Agency and Border Agency

• central guidance and direction should be implemented to provide the focus and drive to ensure JESIP remains a high priority

• there needs to be a greater knowledge and understanding of the capabilities of ‘Airwave’ and the use of the interoperable channels at incidents.

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

Latest police firearms statistics

The latest official statistics on the police use of firearms in England and Wales have been published by the Home Office. The release contains statistics on the total number of police firearms operations, including operations involving Armed Response Vehicles (ARVs); incidents in which police firearms were discharged; and authorised firearms officers in the year ending March 2015.

The statistics show that in the 43 Home Office funded police forces in England and Wales:

• there were 14,666 police firearms operations in the year ending March 2015, a decrease of 2% when compared with the previous year

• operations involving ARVs accounted for 84% of all operations in the year ending March 2015; a 2% increase when compared with the previous year

• there were six incidents in which the police discharged firearms in the year ending March 2015; up from two incidents in the previous year

• there were 5,647 authorised firearms officers (AFOs) on 31 March 2015; a decrease of 4% when compared with the previous year.

The statistics can be accessed in full at gov.uk

PolicePolicing practice

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Findings from Hillsborough Inquest published

The findings of the inquest into the Hillsborough stadium disaster have been published. Following an application by the Attorney-General in December 2012, the High Court quashed the verdicts in the original inquests and ordered fresh inquests to be held. The jury in the inquest gave determinations on the key general issues in the case, addressing the central question ‘by what means and in what circumstances did the 96 people come by their deaths?’

The jury’s determinations included the following:

Question 2: Was there any error or omission in police planning and preparation for the semi-final match on 15 April 1989 which caused or contributed to the dangerous situation that developed on the day of the match?

Yes.

Question 3: Was there any error or omission in policing on the day of the match which caused or contributed to a dangerous situation developing at the Leppings Lane turnstiles?

Yes.

Question 4: Was there any error or omission by commanding officers which caused or contributed to the crush on the terrace?

Yes.

The Home Secretary, in a statement to parliament, stated that while the inquests have concluded, the process is not at an end. The decision about whether any criminal prosecutions can be brought forward will be made by the Crown Prosecution Service. She also stated that those responsible for the police and Independent Police Complaint Commission (IPCC) investigations anticipate that any criminal investigations should be concluded by the end of the year.

The determinations can be accessed in full at hillsboroughinquests.independent.gov.uk

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Criminal justice systemJoint inspectorate report on the digitisation of the criminal justice process.

HM Crown Prosecution Service inspectorate and HM Inspectorate of Constabulary have published a report highlighting the progress that has been made towards a fully digital system, but also stating that more needs to be done. The report was based on the Inspectors visiting six police force areas and the aligned CPS areas. Inspectors also observed court cases in the magistrates and crown courts, as well as interviewing representatives from the police, HM Courts and Tribunal Service, Ministry of Justice and the Home Office.

The inspection found:

• there had been substantial progress in achieving the aim of fully digital working

• the vision of a digital end to end system is still some way from being achieved

• there have been a number of positive benefits as a result of digitalisation, including:

– wi-fi installed in magistrates’ courts – online charging facility allowing the prioritisation of workloads – prosecutor app enabling cases to be updated online from the court

in real-time – use of body worn video cameras by the police to capture evidence

• there are a number of issues that need resolving including:

– the use of multiple IT systems by the police to enable more varied information transferring

– CCTV, interview and 999 recordings, photos and body-worn video footage are still having to be shared via a disc rather than online, leading to the risk of them being misplaced presenting a significant security risk.

– agencies are still having to input some paper documents manually, creating duplication of effort.

The full report can be accessed here: delivering justice in a digital age.

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Consultation on anti-money laundering and counter-terrorist finance

The Home Office has launched a consultation, seeking views on the change in focus of the suspicious activity reports (SARs) regime to entities responsible for money laundering and terrorist financing.

The action plan for anti-money laundering and counter-terrorist finance contains a number of proposals, including:

• new ways to improve data sharing between private sector organisations

• the creation of new powers to allow money to be seized

• the requirement for individuals to declare their sources of wealth.

The consultation closes on 2 June 2016 and can be accessed in full at gov.uk

Criminal justice system

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