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POCA
Code of
Practice
Trolling
Review of
the law
Hate crime
Inquiry
resumes
Digest February 2018
A digest of police law, operational policing practice and criminal justice,
produced by the Legal Services Department at the College of Policing
POLFED Report Spotlight on officer welfare
Worboys’ victims Supreme court judgement
Tech trials Mobile fingerprint technology
Disclosure review Law Society call for examples
OFFICIAL © College of Policing (2018)
February 2018
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
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and police training.
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OFFICIAL © College of Policing (2018)
Digest February 2018
1
Contents College news
3 The future of the Digest
Legislation
4 Bills before Parliament
5 Statutory Instruments
Case law
8 Commissioner of Police of the Metropolis v DSD & Anor [2018] UKSC 11
10 Gohil, R [2018] EWCA Crim 140
13 Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70
14 Wilkinson & Anor v Cleveland Police [2018] UKIPTrib IPT_17_84-85_h (Ch)
Policing practice
Crime
15 Police appeal for retailers to stop selling knives to under-18s
15 EUROPOL publishes review
Diversity
15 Race disparity audit published
Police
16 POCA Code of Practice
16 Trials run on mobile fingerprint technology
17 HMICFRS raises concerns over policing skills gap
Welfare
17 POLFED releases report on officer welfare
Criminal justice system
17 Investigation into the Victim Contact Scheme in the Worboys case published
19 Law Society request examples of disclosure failures
19 New sentencing guideline on domestic abuse
19 Criminal justice system quarterly statistics published
20 Global threat assessment into online child sexual exploitation launched
20 New technology helps combat online terrorist content
21 Review of trolling laws
21 Hate crime inquiry to continue
22 Attorney General speaks at Modern Slavery Summit
22 Government action plan on making the UK the safest place to be online
22 Views sought on Sanctions and Anti-Money Laundering Bill
23 Judicial College publishes update to the Equal Treatment Bench Book
23 JUSTICE report on the ‘neither confirm nor deny’ response
23 Consultation opens on reporting motoring accidents online
24 Changes to referrals for people at risk of homelessness
OFFICIAL © College of Policing (2018)
Digest February 2018
2
Introduction
College Membership
If you’re not already a member, join the College of Policing community to access learning
resources, knowledge and expertise from College experts and collaborate and share your
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For further information, go here
For subscription requests, further information or to send us ideas on what you’d like to see
in upcoming editions, please contact us:
Thank you for accessing the February edition of the Digest produced by the Legal Services
team at the College of Policing.
This month’s edition features articles on the John Worboys case heard at the Supreme Court
and review of the Victim Contact Scheme by the Chief Inspector of Probation. There are a
number of articles regarding online crime and government proposals to tackle its challenges.
Some readers will be interested in the feature on reforms to the homelessness referral
system, changes which seem timely given this month’s inclement weather. The edition also
includes the usual updates on statutory instruments and features case law on reviews of
police powers under RIPA 2000 and the incompatibility of DRIPA 2014 with EU law.
Thanks for reading,
The Legal Services team
OFFICIAL © College of Policing (2018)
Digest February 2018
3
College news
The future of the Digest
Help us shape the Digest into something that works for you
The Legal Services team is committed to producing a Digest that is useful to its readership
and would like our publication to reflect your needs and preferences.
Are there any recommendations you would like to make about our style or format?
Are there any topics or issues you would like us to include in upcoming editions?
How often would you like to receive legal updates?
Please get involved! Email your ideas to [email protected]. We hope to send out
a reader survey with an upcoming edition: take part and have your say.
Thank you
The Legal Services team
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OFFICIAL © College of Policing (2018)
Digest February 2018
4
Legislation
Bills before Parliament
European Union (Withdrawal) Bill
The European Union (Withdrawal) Bill underwent a line-by-line examination on 28 February
2018. This was the third day of the committee stage and discussions covered clauses 2 to 4 of
the Bill. These clauses deal respectively with the ongoing effect of EU-derived domestic
legislation, the incorporation of direct EU legislation and the continuation of rights under
section 2 (1) of the European Communities Act 1972.
The Bill was introduced following the United Kingdom’s choice following a referendum to leave
the European Union on 23 June 2016. The Bill deals with repealing the European Communities
Act 1972 and facilitates the United Kingdom’s exit from the Union.
The committed stage was scheduled to continue on 5 March 2018.
Further information can be found here
Statutory Instruments
SI 173/2018 The Freedom of Information Act (Additional Public Authorities) Order
2018
The instrument relates to the Freedom of Information Act 2000. Section 3(1) provides that a
‘public authority’ includes a body or the holder of any office listed in Schedule 1 of the Act.
The Act’s intention is to promote transparency in public administration. Regular updates of
Schedule 1 are required to ensure that the Act’s obligations extend to those bodies which
meet the relevant criteria. The Adding Order adds fifteen bodies to the list of public authorities
listed in Schedule 1 to the Act. These bodies include those which were set up after the last
order under section 4(1) was made. The list also corresponds to bodies named in the Removing
Order (see instrument 185/2018), should it be relevant to a change in name. Bodies added
include the Advisory Panel on Substance Misuse, the Independent Chief Inspector of Borders
and Immigration and the Surveillance Camera Commissioner.
The order comes into force on 1 May 2018.
Further information can be found here
SI 185/2018 The Freedom of Information (Removal of References to Public
Authorities) Order 2018
Further to instrument 173/2018, for the Act to fulfil its aims to promote transparency, changes
are also required to remove bodies which are no longer operational, have changed their names
or no longer meet the criteria.
OFFICIAL © College of Policing (2018)
Digest February 2018
5
Article 2(1) of this order removes references to the bodies listed in Part 1 of the Schedule to
this order from Part 6 of Schedule 1 of the Act.
Article 2(2) of this order removes references to the bodies in Part 2 of the Schedule to this
order from Part 7 of Schedule 1 of the Act.
Entries omitted from Part 6 of Schedule 1 of the Act include the British Educational
Communications and Technology Agency and the Commission for Integrated Transport.
The order comes into force on 1 May 2018.
Further information can be found here
SI 196/2018 The Proceeds of Crime Act 2002 (References to Welsh Revenue Authority
Financial Investigators) Order 2018
This makes provision for any reference to an accredited financial investigator in a provision of
the Proceeds of Crime Act 2002 (POCA). Specified in Parts 1 and 2 of the Schedule is a reference
to an accredited financial investigator who are members of staff of the Welsh Revenue
Authority.
The order comes into force on 1 April 2018.
Further information can be found here
SI 197/2018 The Regulation of Investigatory Powers (Directed Surveillance and
Covert Human Intelligence Sources) (Amendment) (Wales) Order 2018
The Order is made by Welsh Ministers and amends the Principal Order of the named Act by
inserting into Part 1 of the Schedule which prescribes the rank of those in the Welsh Revenue
Authority who can authorise activity under sections 28 and 29 of the Act.
The order comes into force on 1 April 2018.
Further information can be found here
SI 198/2018 The Prosecution of Offences Act 1985 (Specified Proceedings)
(Amendment) Order 2018
This order amends the Prosecution of Offences Act 1985 (Specified Proceedings) Order 1999
(the 1999 Order) to clarify that the Director of Public Prosecutions (DPP) is under no duty to
take over conduct of any criminal proceedings tried in accordance with the Single Justice
Procedure (SJP) (when a defendant aged 18 or over can be tried for a summary only, non-
imprisonable offence by a single justice on the papers without a hearing). The DPP has a duty
to take conduct of criminal proceedings that are instituted by or on behalf of the police.
Exceptions are provided for ‘specified proceedings’ as given by the Attorney General in an
order. If an exception applies, the police retain responsibility for the conduct of proceedings.
OFFICIAL © College of Policing (2018)
Digest February 2018
6
As the 1999 Order predates the SJP, it makes no provision for these types of proceedings,
which the 2018 order will now clarify. It will state how existing provision on specified
proceedings should be understood given the circumstances of cases brought by the police
and dealt with under SJP and those cases brought by the police and heard in open court. It
will confirm when proceedings cease to be specified in SJP cases, should they do so, and
therefore clarify when the DPP has a duty to take over proceedings.
The order comes into force on 13 March 2018.
Further information can be found here
SI 210/2018 The Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring
Requirement) (Prescription of Arrangement for Monitoring) Order 2018
An alcohol abstinence and monitoring requirement can be imposed as part of a community
or suspended sentence order under section 76 of the Legal Aid, Sentencing and Punishment
of Offenders Act 2012. Section 212A(6) rules that monitoring must be consistent with
arrangements prescribed by the Secretary of State. Further to that section, this order ensures
that the arrangement for monitoring is via a transdermal electronic tag fitted to measure the
level of alcohol contained in the offender’s sweat.
Section 77 of the Act allowed section 212A to be run as a pilot scheme. Article 2 of this order
relates to revoking orders whereby a transdermal electronic tag has been used as an
arrangement for monitoring alcohol abstinence. Revoked orders were tied to the piloting
orders made under section 77 for the duration and areas of each pilot. This required a further
order prescribing the monitoring arrangement for extension of a pilot or any new pilots. This
instrument confirms that arrangement and negates the need for further negative orders,
should further piloting be required.
The order comes into force on 31 March 2018.
Further information can be found here
SI 220/2018 The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018
The instrument amends the Advocates’ Graduated Fee Scheme (AGFS) with the intention of:
rewarding the work of defence advocates in Crown Court cases more accurately
making it simpler and clearer
supporting other reforms to the criminal justice system.
It will do this by reducing the reliance on pages served by the prosecution as a means of
calculating the work done by an advocate (one of the ‘proxies’ used to calculate a fee from a
formula derived from ‘graduated’ and ‘fixed’ fees). The increasing using of electronic evidence
(eg, video footage, hard drive data) means that page counts are no longer an accurate method
of calculating work done. Payment will now be based on a more detailed categorisation of the
offence and will increase the existing 11 offence categories to 48. Certain tasks such as part-
heard trials will be paid for individually.
OFFICIAL © College of Policing (2018)
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The order comes into force on 1 April 2018.
Further information can be found here
SI 226/2018 The Policing and Crime Act 2017 (Consequential Amendments)
Regulations 2018
These regulations make further consequential amendments to the named Act. The Act
included provisions on:
disciplinary proceedings for former members of the police forces and former special
constables
powers of civilian staff and volunteers
pre-charge bail
cross border enforcement.
To support commencement of the above provisions, the regulations include further
consequential amendments to the following acts:
Contempt of Court Act 1981: to accommodate charges to pre-charge bail and to
ensure that affected individuals receive the same protection under the strict liability
rule against publishing material which may risk the course of justice, as those who
would previously have been released on bail prior to the reforms of the 2017 Act.
Police and Criminal Evidence Act 1984 (PACE): relating to designating civilian police
staff to either community support officers or policing support officers and associated
powers under the Police Reform Act 2002 (PRA). The 2017 Act repealed parts of PRA
which related to powers held by the former categorisation of civilian officers. In
repealing section 22 of PRA, the 2017 Act failed to make a consequential amendment
to section 188(2A) of PACE, which provides that, where a person is in another’s lawful
custody by virtue of paragraph 22 of Schedule 4 of PRA, that person shall be treated
as being in police detention. These regulations repeal the redundant reference to
paragraph 22, Schedule 4 of the PRA.
Criminal Justice and Public Order Act 1994: this relates to cross-border arrests.
Regulation 7 makes further changes to section 137(9).
Police Act 1996 (PA): this is relevant to the Secretary of State specifying the cases in
which a former officer may appeal to a police appeals tribunal. Regulation 8 makes
further changes to the PA, amending Schedule 6 and confirming that the scheme set
out in respect of the composition of police appeals tribunals applies to tribunals for
determining appeals by former officers, as they would apply to appeals by serving
officers.
Criminal Justice Act 2003 (CJA): regulation 9 updates the cross reference from section
24B to 24A(2)(c) in relation to release on bail.
Please see the grid in the explanatory memorandum for an illustration of territorial application.
The regulations will come into effect between 1 March 2018 and 1 April 2018.
Further information can be found here
OFFICIAL © College of Policing (2018)
Digest February 2018
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SI 227/2018 The Policing and Crime Act 2017 (Commencement No. 7) Regulations
2018
These are the seventh commencement regulations under the named Act. They will
commence provisions relating to the London Fire Commissioner, maritime enforcement
powers (England, Wales and Scotland), cross border enforcement powers and removal of
certain political restrictions held against the Deputy Mayor for Policing and Crime.
The regulations will come into effect between 1 March 2018 and 1 April 2018.
Further information can be found here
SI 229/2018 The Policing and Crime Act 2017 (Maritime Enforcement Powers: Code
of Practice) Regulations 2018
These regulations bring into force a code of practice issued under section 94(1) of the
named Act in relation to ships that are available to a law enforcement officer. Section 90
provides a power to English and Welsh officers to arrest without warrant any person whom
the officer has reasonable grounds to believe guilty of an offence under the law of England
and Wales that has been or is being committed on a relevant ship.
The regulations came into force on 1 March 2018.
Further information can be found here
Case law
Commissioner of Police of the Metropolis v DSD & Anor [2018]
UKSC 11
The Supreme Court has confirmed that Article 3 of the European Convention on Human Rights
(ECHR) imposes an operational duty on the police to carry out an effective investigation into
allegations of ill-treatment.
Background
DSD and NBV were two of the victims of John Worboys, the taxi driver who committed a large
number of sexual offences on women between 2003 and 2008. DSD was attacked in 2003 and
NBV was attacked in 2007. They brought proceedings against the Metropolitan Police Service
(MPS) for their alleged failure to conduct effective investigations into Worboys’ crimes. They
claimed that the these failures constituted a violation of their rights under Article 3 of the
ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading
punishment or treatment.
The main issue was to what extent Article 3 imposes a positive obligation on states to
effectively investigate reported crimes perpetrated by private individuals. The High Court and
the Court of Appeal (CA) held that a positive obligation to investigate did exist and that, in this
OFFICIAL © College of Policing (2018)
Digest February 2018
9
case, this obligation had been breached. Compensation was awarded. The MPS appealed to
the Supreme Court, although recoupment of any of the compensation was not sought.
Supreme Court judgment
The Supreme Court unanimously dismissed the appeal, although differing reasons for the
decision were given. There was a difference in opinion as to whether the serious defects in the
investigation were attributable to systematic, and not purely operational, failures.
The Court stated that in order to be an effective deterrent, laws prohibiting conduct
constituting a breach of Article 3 must be rigorously enforced and complaints of such conduct
must be properly investigated. European Court of Human Rights case law supports the
existence of the positive obligation under Article 3 and has consistently held that it is not
required that there be state involvement in the acts alleged, to amount to a breach of Article
3. Lord Kerr concluded that there is an operational duty to conduct a proper inquiry into
behaviour amounting to a breach of Article 3.
The main area of dispute was the nature of the positive obligation imposed by Article 3 and
particularly whether the obligation relates only to systemic failures or whether it also includes
operational failures. Lord Kerr and Lord Neuberger agreed that serious failures which are
purely operational will suffice to establish a claim. Lord Kerry confirmed that there were
structural errors but did not agree that the various detailed failings in the conduct of the
inquiry were ‘largely attributable to the flawed structural approach’. He set out operational
failings, including a failure to collect CCTV evidence or to conduct searches, none of which he
stated could be described as a failure in training or in the structures that were in place for
investigating serious crime at the material time.
Lord Kerr confirmed that deficiencies in an investigation do not have to be part and parcel of
a flawed approach of the system generally for a breach to arise. He accepted, however, that
simple errors or isolated omissions will not give rise to a violation and only conspicuous or
substantial errors in investigation would qualify.
Lord Hughes differed in his approach and considered that there is a positive obligation to
ensure that there are appropriate legal structures in place but there is no operational
obligation. In his view the proper test for the positive obligation under Article 3 to investigate
reports of past violence is whether the state has a proper structure of legal and policing
provision designed to punish it when it occurs and has administered that structure in good
faith and with proper regard for the gravity of the behaviour under consideration. The test is
not whether the investigation was careless or involved mistakes which ought not to have been
made. In his view, there was a breach of the positive obligation in this case as there were plain
structural errors.
Public policy considerations were discussed in the judgment. Lord Kerr considered that the
fact that the police do not have a common law duty of care in negligence does not extend to
claims advanced under the Human Rights Act 1998 (HRA). The bases of liability are different
and no assumption should be made that the policy reasons which underlie the exemption of
police from common law liability apply in the same way to liability for breach of HRA
OFFICIAL © College of Policing (2018)
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obligations. The existence of a duty to investigate effectively does not depend on whether it
is fair, just or reasonable to impose one.
Lord Hughes took a different view, stating that law enforcement and investigating alleged
crime involve a complex series of judgments and discretionary decisions – to revisit such
matters step-by-step by way of litigation with a view to private compensation would inhibit
the robust operation of police work. English law could not control the operation of the ECHR,
but there is a delicate balance to be struck and it is undesirable to permit detailed review of a
particular criminal investigation by way of the ECHR, which is why the positive obligation
should be confined to structural failings.
Lord Mance held that, in place of a distinction between casual errors of judgments or acts of
negligence, consisting of operational as opposed to systemic failures by state servants or
agents, there was not a distinction to be drawn between simple errors or isolated omissions in
the investigation and more serious failings.
The Court also confirmed that an award of compensation for breach of a Convention Right is
entirely different to an award of damages in a civil action, as a Convention claim and a civil
claim have different purposes. A civil claim is to compensate the claimant for their loss and
put them back in a position as if the wrong had not occurred. A Convention claim is to award
damages to acknowledge an individual's fundamental right(s) has been breached and are
intended to uphold minimum human rights standards.
The full judgment can be accessed here
Gohil, R v [2018] EWCA Crim 140
The case concerns reopening final decisions of the CA by two applicants, the importance of
getting disclosure right first time and the need for coordination between investigators,
prosecutors and counsel. This summary will focus on the application of one applicant, Gohil.
Gohil was a solicitor representing Ibori, the Governor of the Delta State of the Federal Republic
of Nigeria from 1999-2007. In 2012, Ibori pleaded guilty to 10 counts of fraud and money
laundering, having defrauded some $89 million. The Crown believed that Gohil had provided
a client account for Ibori, which he used for money laundering. In 2010, Gohil was subsequently
convicted of four offences of money laundering and one of prejudicing a money laundering
investigation. Gohil pleaded guilty to eight further offences, including conspiracy with Ibori
and others to defraud two states in Nigeria regarding the sale of shares in a mobile phone
company, a fraud involving approximately £37 million.
In 2007, the MPS Directorate of Professional Standards (DPS) initiated Operation Limonium, a
covert investigation into allegations of a corrupt relationship between officers and Risc
Management (Risc), an investigation firm hired by Ibori. Risc employees included former MPS
officers, one of whom was known to one of the MPS investigating officers in the Gohil case.
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Following his convictions, Gohil alleged that the MPS officers investigating the case were
corrupt, having received payments from Risc for passing on confidential information. An
investigation by the DPS (Operation Tarbes) found insufficient evidence to charge but did give
the CPS cause to charge Gohil with attempting to pervert the course of justice. The day after
the trial had been due to start, the Crown offered no evidence and could not provide a reason
to the Court as to why this action was taken. The withdrawal prompted a Crown review of a
number of aspects of disclosure in the Ibori series of cases (Project Phoenix). The project led
to the disclosure of nearly 10,000 pages of new material. The Crown had to concede that there
had been a disclosure failure. A ‘Note of Voluntary Information provided by the Crown to the
Applicant for Leave to Appeal’ given to the claimant and the Court prior to the renewed
application for leave to appeal was ‘inaccurate, incomplete and misleading’. The Crown
admitted the errors but insisted that ‘there was no intention to deliberately mislead the Court’.
Gohil contended that the Crown’s conduct in the initial investigations against him and the
subsequent investigation into potential corruption amounted to a bad faith abuse of the court
process and that the convictions offended the integrity of the justice system. The grounds of
appeal premised on the CA being misled as to the disclosure which existed to support the
corruption ground, hence denying Gohil effective consideration. It was also submitted that the
attempt to prosecute Gohil for perverting was made on a knowingly false basis to protect the
MPS.
The Court’s review of actions under operations Limonium and Tarbes exposed significant
issues:
failure to recognise the significance of certain evidence.
failure to recognise links in evidence (which, on discovery, prompted the offer of no
evidence against Gohil for perverting)
anonymous complaints about corruption made to the prosecution team were not
regarded as giving rise to an obligation to give disclosure
failure in communication and organising briefings, contributing to intelligence from
Limonium as being viewed as non-attributable
failure of the Crown to insist on knowing the original source intelligence.
The Court recognised the ‘split’ institutional structure between the police, CPS and counsel in
such proceedings. Given the structure and as per the Review of Disclosure in Criminal
Proceedings, cooperation between parties in respect of disclosure needs to start early. The
Crown had involved counsel early on this occasion and no criticism was drawn from the Court.
However, it was apparent to the Court that there had been a breakdown in communication
between the MPS, the Crown and counsel. For communication to be effective, it needs to be
robustly pursued or pressed. As an example, the Court raised the difficulties arising from
documentation generated from this investigation potentially being avoided if counsel had
been shown the original source of intelligence. The case illustrated the seriousness of
communication failures in the prosecution team and the importance of the Crown ‘Getting
[Disclosure] Right First Time’. The court referenced the Review of Efficiency in Criminal
Proceedings.
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Reference to the Crown’s obligation in respect of disclosure and counsel’s application of the
‘context’ test had been raised by counsel, the result of which was to not disclose, though if
considered in isolation, the documents were disclosable. As the full picture supported the
Crown’s case, it was given in context that the material did not pass the test for disclosure. The
Crown admitted that this context test was erroneous. The Court stressed that care was required
and that the consideration of ‘documents in isolation or in context, poses a false and
distracting choice’.
It was recognised that the flaw was not that counsel had sought to consider material in context,
as this would remove the means of sensibly considering its relevance. The failure was to only
see the material from the Crown’s vantage point (coupled with the failure to determine the
true source of the material). If, from the material, Gohil could make inferences undermining
the Crown’s case, supporting his or the safety of his convictions, counsel’s confident belief that
these could be rebutted does not mean that the test for disclosure has been passed. The Court
stated that ‘[C]ounsel’s view on disclosure…hinged upon the Crown ultimately prevailing and
assumed that it would; but the ultimate outcome of the issue, trial or appeal under
consideration is not and cannot be the touchstone for disclosure and is not a tenable approach
to either the CPIA or the common law fairness duties’.
Outcome
Application to reopen concluded proceedings denied:
Gohil had knowledge of the alleged relationship between Risc and the MPS officer in
question here and took a tactical decision not to introduce the materials to support
this at his trials. While the Court must acknowledge the Crown’s disclosure failures,
Gohil had ample information to deploy at trial. The disclosure errors surrounding
relevant exhibits DL3 and DL6 were no more potent in establishing corrupt behaviour
than the material already available to Gohil. Any Crown failure in disclosure therefore
did not in this event occasion real injustice.
There was no basis for Gohil to vacate the guilty pleas he had entered.
The Crown’s disclosure failures have no arguable bearing on the safety of Gohil’s
convictions – there had been no injustice and no exceptional circumstances.
There is an alternative route to remedy via the Criminal Cases Review Commission and
any considerations of expediency via the CA tell against the application.
The Court took a grave view of the Crown’s errors in disclosure and stressed that recent
events had yet again emphasised how such failures can cause great injustice. The fact
that the errors in this case had not undermined Gohil’s conviction was a matter of
‘good fortune’. They had, however, subjected Gohil to charges of attempting to pervert
the course of justice for longer than was necessary and had given rise to a large and
costly exercise which could have been avoided if disclosure had been completed
correctly in the first instance.
The full judgement can be accessed here
OFFICIAL © College of Policing (2018)
Digest February 2018
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Secretary of State for the Home Department v Watson MP &
Ors [2018] EWCA Civ 70
In November 2015, the CA gave judgment in the case of Secretary of State for the Home
Department v Davis MP & Ors [2015] EWCA Civ 1185, an appeal concerning whether section
1 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) was incompatible with EU
law. The Court referred preliminary issues to the Court of Justice to the European Union (CJEU).
The CJEU gave judgment on 21 December 2016 and, since then, there have been several
developments. These include:
repeal of sections 1 and 2 of DRIPA
Part 4 of the Investigatory Powers Act 2016, which replaced the data retention
arrangements under DRIPA, is the subject of a judicial review claim brought by Liberty
the Investigatory Powers Tribunal (IPT) has made a further reference to the CJEU,
seeking to clarify the extent to which the requirements set out in the CJEU judgment
in this case apply in a national security context.
The CA applied the decision of the CJEU to the challenge brought against DRIPA. It was
common ground that the judgment of the CJEU establishes, at the very least, that where the
purpose is preventing, investigating, detecting and prosecuting criminal offences:
access to and use of retained communications data should be restricted to the
objective of fighting serious crime
access to retained data should be dependent on a prior review by a court or an
independent administrative body.
Given the reference by the IPT, it was agreed that any declaratory relief granted in these
proceedings should be limited to the application of DRIPA to cases concerned with fighting
crime.
Declaratory relief was granted in that section 1 of DRIPA was inconsistent with EU law to the
extent that, for the purposes of preventing, investigating, detecting and prosecuting criminal
offences, it permitted access to retained data:
where the object pursued by that access was not restricted solely to fighting serious
crime
where access was not subject to prior review by a court or an independent administrative
authority.
In relation to the retention of data, the Court stated that there remains considerable
uncertainty, which it hoped would be clarified by the CJEU when it considers the reference
made by the IPT. Given this, the Court did not consider it should make a definitive statement
on this issue in the form of a declaration.
The full judgement can be accessed here
OFFICIAL © College of Policing (2018)
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14
Wilkinson & Anor v Cleveland Police [2018] UKIPTrib IPT_17_84-
85_H (Ch)
This judgement is further to the decision made in Dias and Mathews v The Chief Constable of
Cleveland Police [2017] UKIPTrib 15 856-CH. Cleveland Police conducted a review of its powers
under the Regulation of Investigatory Powers Act 2000. The claimants were employees of the
Press Association of the North East. As a result of the review, the respondent wrote to the
claimants to report that Applications for Communications Data (CDA) had been obtained by
Cleveland Police which included subscribers’ details and call records over a day period in July
2013. Content had not been included. The CDAs were accepted as unlawful as they were
neither necessary nor proportionate.
The respondents were asked to explain why the authorisations were sought following
complaint by the claimants to the Tribunal referencing Articles 8 (respect for private and family
life) and 10 (freedom of expression) of the ECHR. The following was provided: On 12 July 2013,
the assistant chief officer, who had been suspended and was due to face a disciplinary hearing,
resigned. An instruction was given mandating informing the media no sooner than 1pm of
that day. At 12.43pm, a local reporter (claimant 1) rang the force communications unit to ask
for confirmation of the resignation. As a consequence, the respondent suspected that the news
had been leaked by a member of staff. Records indicate that only one call had been received
on the reporter’s mobile number between 11.01am and 11.43am. Authorisation to obtain a
CDA in respect of the reporter’s mobile number and the number of the one call that had been
received from (claimant 2) was sought.
In the argument for necessity, it was given that it was not known if the number was registered
to a user and, if it was an unsubscribed number, the call data could be examined to attribute
its use to a particular person. For proportionality, if the user was identified, then the source of
the leak would be identified and, if an employee of the respondent, identification could assist
any investigation into a crime of misconduct in public office. No charges were raised against
each claimant. Further to this and in light of the judgement given in Dias, the tribunal
considered it unlikely that commission of such an offence was probable.
The Court deemed that neither CDA was either necessary or proportionate. The remedies
sought of declaration of the respondent’s actions having been unlawful, the authorisations
quashed and all personal data relating to each claimant obtained as a result of the
authorisations destroyed, were granted.
The full judgement can be accessed here.
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Policing practice
Crime
Police appeal for retailers to stop selling knives to under-18s
Every force in England and Wales joined Operation Sceptre in February 2018. Operations in
2016 and 2017 carried out 612 test purchases exposing 20 per cent of retailers of selling knives
to under-18s. The National Police Chiefs’ Council Deputy Assistant Commissioner has
produced a statement on the importance of retailers recognising their responsibility in this
area, with responsible retailers already having signed up to a voluntary code to request
identification from those who look to be under 21 and who wish to purchase a knife.
The full article can be found here
EUROPOL publishes review
The recently published EUROPOL review covers activity in 2016 and the first four months of
2017. The report confirmed that 2016 was a difficult year for integration with issues such as
people smuggling, terrorism and an influx of migrants being at the forefront of concerns.
Cross-border law enforcement was affected by the EU referendum creating new challenges.
2016/17 saw greater enhancement of initiatives such as the European Migrant Smuggling
Centre and the European Counter Terrorism Centre. 46,000 new cases were initiated,
representing a 16 per cent increase from the previous year. Cooperation between law
enforcement authorities is evidenced by the exchange of 870,000 operational messages, some
72,000 per month. 1.5 million searches were performed in the EUROPOL database in 2016 from
28 member states.
The full report can be accessed here
Diversity
Race disparity audit published
The Cabinet Office has produced summary findings from the Ethnicity Facts and Figures
website. The purpose of the audit is to examine how people are treated across areas such as
health, education and the criminal justice system. The audit covers crime and policing in
chapter 7 and the criminal justice system in chapter 8. Key findings include:
The risk of being a victim of crime was highest for people from Mixed background,
Black and Asian adult populations.
Almost four out of five adults felt confidence in their local police force in 2015/16 but
confidence levels were low amongst those from Black and Mixed background
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populations. three out of five Black people aged 16 to 24 had confidence in the police.
‘Confidence’ was assessed from a number of considerations, including whether the
police could be relied on when needed, whether the individual would be treated fairly
and with respect and the force’s ability to deal with local concerns.
The majority of stop and search incidents in 2015/16 were of White people but the
likelihood of a person from an ethnic minority group being stopped and searched was
three times higher. This likelihood rises to over six times more probable for Black
people.
Black males were more likely to be remanded in custody at the Crown Court.
The ethnicity proportion of defendants prosecuted for an indictable offence in 2016 is
as follows: White defendants 70 per cent, Black defendants 11 per cent, Asian
defendants 6 per cent and Mixed background defendants 3 per cent.
White prisoners accounted for over five times the number of self-inflicted deaths than
all other ethnic groups combined.
A full copy of the audit can be found here
Police
POCA Code of practice
An amended code on the use of investigation powers under POCA has been published. It
provides guidance on the use of the powers by prosecutors in England and Wales and
Northern Ireland and has been updated following amendments to POCA by the Criminal
Finances Act 2017.
The amended code, which came into force on 31 January 2018, can be accessed here
Trials run on mobile fingerprint technology
A handheld scanner used in conjunction with an app on an officer’s phone will allow immediate
checks of fingerprints against IDENT1 and IABS via the new Biometric Services Gateway. The
system was trialled in West Yorkshire, and the scheme will continue with an initial roll out of
250 scanners. The system will be introduced to an additional 20 forces by the end of the year.
It is believed that the new system will lead to cost savings with a 10 per cent reduction in the
cost of existing mobile fingerprint systems.
To ensure data protection and security, fingerprints taken are not stored and are automatically
deleted once checking is complete. Examples of successful use include identifying a
disqualified driver after pursuit in spite of the offender giving false details. The system
facilitated return to patrol within 10 minutes.
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The system may also assist in cases of medical emergency, identifying an affected individual
and perhaps a next of kin.
Further information and statements from West Yorkshire Police can be found here
HMICFRS raise concerns over policing skills gap
The Police Leadership 2017 report published by Her Majesty’s Inspectorate of Constabulary
and Fire and Rescue Services highlights how few forces have succession plans in place and
that too many are adopting a short-term, reactive approach to addressing future needs. A lack
of understanding of the skills and capabilities in the workforce makes forces vulnerable to
adapting to future demands. The report was positive in its recognition of examples showed by
police leaders in proactive commitment to improvement. There was also a marked increase in
promoting wellbeing in the workforce. The report concludes that forces need to:
improve their use of performance management
develop their understanding of leadership skills and capabilities in the work force
continue to look for new skills externally.
The full article and a copy of the report can be found here
Welfare
POLFED release report on officer welfare
Research starting in 2015 has been used in drafting a report by the Police Federation of
England and Wales (POLFED) which identifies the links between officer welfare, service demand
and capacity. This has been an ongoing project for POLFED, with findings producing an initial
nine reports highlighting high volumes of work, a struggle to meet service demands and the
consequent impact on welfare, with officers reporting fatigue, high levels of stress and poor
mental wellbeing. POLFED’s new report draws on the relationships between these factors more
closely to facilitate a stronger understanding of causal links. Findings are also drawn from a
2016 survey which canvassed views from approximately 17,000 officers. From the survey:
84 per cent reported unpaid overtime
57 per cent reported single crewing
67 per cent reported inability to meet conflicting demands on time at work
58 per cent reported insufficient time available to do a job to a standard to be proud
of.
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The report also includes action points such as raising awareness of the welfare challenges
facing the police and engaging stakeholder to engage with the research.
Further information can be found here. The full report can be found here
Criminal justice system
Investigation into the Victim Contact Scheme in the Worboys case published
Dame Glenys Stacey, the Chief Inspector of Probation, has published a report following her
review of the way the Victim Contact Scheme engaged with victims in the Worboys case. The
focus of the review was the contact made by the National Probation Service (NPS) with women
who were victims of John Worboys and who fall within the scope of the Victim Contact Scheme.
The review considered whether the requirements of the scheme were met in all respects,
specifically whether relevant and timely information was provided to the victims following
sentence, and whether they were given the opportunity to contribute their views in
anticipation of the Parole Board’s consideration of John Worboys’ application for release.
The review found that the NPS appeared, by and large, to have complied with relevant
Probation Instructions. The victims who fell under the statutory scheme were contacted at the
right time after sentence and were given the opportunity to opt in to the scheme. For most of
the period of John Worboys’ detention, the women who had opted in were sent letters
annually, in accordance with the scheme, to inform them of developments. This contact lapsed
in 2010 for no clear reason, before being resumed in 2012.
The report states, however, that the quality of this correspondence was poor. Some letters
contained errors in victims’ names and addresses and the messages were not conveyed clearly.
Prior to the hearing, the NPS took the unusual but well-intentioned step of attempting to
contact the women to alert them to the parole hearing and the possibility of release. This was
not well-timed, however, and the style and content of the letters lacked clarity and urgency.
By the time of the parole hearing, five women were in contact with the Victim Contact Scheme.
The NPS notified action of the decision to release Worboys by the victim’s preferred method
of contact. Inevitably, they received the news at different times and the news broke in the press
before some had received and read the notification. The women not in contact with the
scheme learnt of the decision through the media.
The report will feed into work to review parole transparency and victim contact and can be
accessed in full here
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Law Society request examples of disclosure failures
Criminal law solicitors have been asked to contact the Law Society in efforts to gather case
studies and examples where failures in disclosure may have led to miscarriages of justice. The
Justice Committee has also launched an inquiry into the disclosure of evidence. Both pieces
of research intend to attempt to provide a more comprehensive understanding of the issues,
the extent of the problem and the impact on justice.
The full article can be accessed here
New sentencing guideline on domestic abuse
The Sentencing Council has published a new domestic abuse sentencing guideline, giving
courts up-to-date guidance emphasising the seriousness of this kind of offending. The
guideline identifies the relevant principles, outlines how the seriousness of offences should be
assessed and highlights other factors that should be taken into account. It replaces domestic
violence guidelines published in 2006 and brings a distinct change in emphasis in relation to
seriousness. It highlights that the fact that an offence took place in a domestic contest makes
it more serious than an offence committed in a non-domestic context. It also, for the first time,
includes a reference to abuse perpetrated through the use of technology.
The guideline, which is to be used from 24 May 2018, can be accessed in full here
Criminal justice system quarterly statistics published
The Ministry of Justice published statistics in February reflect trends between September 2016
and 2017. Key findings include:
1.65 million people were ‘dealt with’ by the criminal justice system, a seven per cent
drop from the previous year and representing a record low
1.40 million defendants were prosecuted
the conviction ratio was 86 per cent, the highest figure in a decade
custody rate for indictable offences increased from 24 per cent in 2010 to 32 per cent
average custodial sentence sits at 16.7 months
out-of-court disposals decreased by 15 per cent
39 per cent of adult offenders convicted for an indictable offence had previous criminal
careers (on average 34 previous sanctions), an increase of 30 per cent
45 per cent of juvenile offenders cautioned or convicted were first-time offenders
a 3 per cent decrease in the number of individuals sentenced to custody for sexual
offences
the most common sentence for all offence groups was a fine, accounting for 75 per
cent of offenders sentenced in the relevant period
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28,200 penalty notices for disorder were issued, a 27 per cent fall from the previous
year, the most common offences being drunk and disorderly, theft (under £100),
possession of cannabis and causing harassment, alarm or distress.
The report indicated that trends are provisional and may be subject to change for the 2017
Criminal Justice Statistics annual bulletin due to be published in May 2018, which will provide
a more detailed summary.
Further information can be found here
Global threat assessment into online child sexual exploitation launched
The global threat assessment is commissioned by the WePROTECT Global Alliance against
child sexual exploitation. The assessment has found that technology such as the dark net is
allowing offenders to organise at an unprecedented rate. Individual dark net sites are hosting
up to one million paedophiles, allowing them opportunities to plan and encourage online
abuse. Research for the assessment is an international collaborative effort, with data also
drawn from the US Department of Justice and INTERPOL.
Further information can be found here
New technology helps combat online terrorist content
The Home Office has announced the development of an online tool that can automatically
detect 94 per cent of Daesh video propaganda with 99.995 per cent accuracy.
The tool has been developed in collaboration with ASI Data Science to detect terrorist
propaganda in real time across a variety of different streaming and download websites. The
tool has been designed in such a way that it has the ability to stop the majority of video
propaganda before it reaches the internet. Its accuracy means that, if analysing a million
randomly selected videos, only 50 would need additional human review if initially reviewed
using the tool.
The methodology used to develop the tool is to be shared with small companies who
otherwise might struggle to find the resources necessary to detect the abuse of their platforms.
The Home Secretary Amber Rudd visited Silicon Valley in February to meet with main
communication providers, the Secretary of Homeland Security and the Global Internet Forum
to Counter Terrorism. The meetings come as part of the Home Office’s effort to tackle terrorism
content online.
Further information can be found here
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Review of trolling laws
The Law Commission is set to begin a review of the laws surrounding offensive
communications or what is also known as trolling, harassment or cyberbullying in April in order
to understand whether the law is rigorous enough to protect victims online. Depending on the
outcome of the review, a scheme of law reform may be necessary. The work comes under the
government’s wider Digital Charter initiative, which tackles the opportunities and challenges
arising from the fast-paced digital world.
The Commission will analyse:
the effectiveness of the Malicious Communications Act 1988 at dealing with offensive
online communications
the effectiveness of the Communications Act 2003 at dealing with online
communications
the implications of the term ‘grossly offensive’ for legal certainty
whether there is a requirement of fault or intention for prosecuting offensive online
communications
necessity to modernise termination which is no longer relevant
how the law surrounding offensive communications interacts with other criminal law.
The project will not specifically cover online terrorist offences; child sexual exploitation or
platform liability, as these areas are being looked at in other pieces of work commissioned by
the government.
The results of the review are expected to be published within six months of the work starting
this spring.
Further information can be found here
Hate crime inquiry to continue
Representations have been made to the Home Affairs Committee in relation to their inquiry
into ‘Hate crime and its violence consequences’. The inquiry had been cut short by the June
General Election but resumed on 20 February, with evidence given by a number of speakers,
including the chair of the Ethics Council and the chairman of the Independent Press Standard
Organisation. The session was also attended by social media companies, which assessed
progress against previous report recommendations and responsibility for content on
platforms.
Further information can be found here
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Attorney general speaks at Modern Slavery summit
The Attorney General delivered a speech on current initiatives against modern slavery at the
Modern Slavery Summit organised by the CPS. His speech acknowledged the consolidation of
all modern slavery legislation into one Act, providing law enforcement agencies with the
valuable tool needed to achieve successful prosecutions. There was recognition of the use of
the Immigration Act 2016 to extend the remit of the Gangmasters Labour Abuse Authority,
strengthening its powers to detect, investigate and prevent worker exploitation in the British
economy. International collaboration was also mentioned, with British involvement at a
modern slavery event held as part of the UN General Assembly in September 2017. 42
countries have now endorsed the Call to Action to End Forced Labour, Modern Slavery and
Human Trafficking which formulated an action plan to tackle modern slavery and set out
international commitments. A reminder was given of the UKs pledge to double aid budget
spent on combating modern slavery to £150 million.
The full speech can be accessed here
Government action plan on making the UK the safest place to be online
In addition to the consultation with the Law Commission (see article above), the government
has also announced:
a new social media code of practice which will set out the minimum expectations of
the responsibilities of social media companies
an annual internet safety transparency report which will provide data on offensive
online content and the actions taken for removal
a new online safety guide to assist those working with children to guide them through
safe use of digital media.
The full article can be found here
Views sought on Sanctions and Anti-Money Laundering Bill
The House of Commons Public Bill Committee is inviting those with relevant expertise and
experience, or a special interest in the Sanctions and Anti-Money Laundering [Lords] Bill to
submit their views. The Bill is currently passing through Parliament and aims:
to make provision enabling sanctions to be imposed where appropriate for the
purposes of compliance with United Nations obligations or other international
obligations, or for the purposes of furthering the prevention of terrorism, or for the
purposes of national security or international peace and security or for the purposes
of furthering foreign policy objectives
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to make provision for the purposes of the detecting, investigating and preventing of
money laundering and terrorist financing and for the purposes of implementing
standards published by the Financial Action Task Force relating to combating threats
to the integrity of the international financial system
to make provision for connected purposes.
Further information can be found here
Judicial College publishes update to Equal Treatment Bench Book
The Bench Book serves as a guide for the judiciary to ensure fair treatment of all those before
the court. Guidance includes the provision of reasonable adjustments, special measures and
safeguarding duties. There is also a chapter on ‘litigants in person’, addressing some the
challenges to the court as a consequence of the increase in self-representation following cuts
in legal aid and other financial impacts.
A copy of the Bench Book can be found here
JUSTICE report on the ‘neither confirm nor deny’ response
JUSTICE has hosted a roundtable event with practitioners, experts and academics on the public
authority use of the ‘neither confirm nor deny’ (NCND) approach to responding to public
enquiries. Examples used are responses to allegations of undercover police officers involved
in long-term relationships with environmental activists and surveillance programmes revealed
by whistleblower Edward Snowden. The key NCND case which may be familiar to most readers
is Scappaticci (re Application for Judicial Review [2003] NIQB 56) whereby the applicant argued
for an infringement of Article 2 rights by virtue of the Minister of State for Security Matters in
Northern Ireland’s issue of a NCND statement in respect of his identity as an agent further to
press allegations to that effect.
The JUSTICE report analyses the access to justice impact and procedural fairness. It concludes
that ambiguity on the response has ‘fostered a culture of secrecy’ which prevents public
authorities from being fully accountable for alleged unlawful activity. The report urges against
blanket use of the policy and argues for a coherent NCND policy.
The full article including a link to the report can be found here
Consultation opens on reporting motoring accidents online
A twelve-week consultation has been opened by the Department for Transport, the results of
which may lead to allowing drivers to report accidents online or by telephone. This is in a bid
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to make the process of reporting (currently provided for under section 170 of the Road Traffic
Act 1988) quicker and easier and free up police resources. 20 per cent of personal injury
accidents are reported to the police with most of the approximately 140,000 accidents each
year recorded by an officer at scene. 55,000 property damage-only crashes were reported over
the counter in 2015. The consultation guidance acknowledges the burdens the current process
imposes on drivers, police forces and businesses.
An updated system for recording crashes will also be rolled out. The new Collision Reporting
and Sharing System will be free for all forces and will allow officers to make reports on an app
at scene.
Further information including a link to the consultation can be found here
Changes to referrals for people at risk of homelessness
New guidance published on 22 February 2018 outlines how, for the first time, prisons,
probation services, Jobcentres and NHS trusts are amongst the bodies now with a duty to help
those at risk of becoming homeless by referring them to a housing authority.
Councils under the Homelessness Reduction Act 2017 are required to ensure advice is given
to risk groups, including care leavers, people leaving prison, those who have left the armed
forces, survivors of domestic abuse and those suffering from mental ill health. For those who
are already homeless, a duty is imposed on local authorities to work with them for 56 days to
secure accommodation.
Further information can be found here
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