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

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OFFICIALDigest November 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.

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Overview 4Legislation 5 Bills before parliament 5 Policing and Crime Bill 5 Investigatory Powers Bill 5 Recently announced Bills 6 Criminal finances Bill 6 Statutory Instruments 9 Crime and Courts Act 2013 (Commencement No. 15, Transitional and Savings Provisions) 9 Order 2016)

Case law 10 Crime 10 R v Qosja (Robert) [2016] EWCA Crim 1543 10 Evidence and procedure 11 R v Johnson and Ors [2016] EWCA Crim 1613 11Policing practice 12 Crime 12 Intellectual Property Crime Report 2015-2016 12 Diversity 13 CPS consultation on hate crime 13 Hate Crime statistics released 13 Police 15 Latest statistics on police powers and procedures published 15 Met Police Body Worn Video 16 National Crime Agency’s Missing Persons Report 16 College of Policing annual conference 17Criminal justice system 18 CPS publishes social media guidance 18 Report of the treatment of young adults in the criminal justice system published 18 Inquiry into police and security co-operation post Brexit 20 Fund to tackle modern slavery announced 20 Rape Monitoring Group digests published 21

Contents

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

There are case reports on:

• the degree of immediacy and/or specificity required for an offence of stalking involving fear of violence or serious alarm or distress

• appeals following the change of law on joint enterprise.

We look in detail at the:

• latest statistics on hate crime

• CPS social media guidelines

• Criminal Finances Bill

• report of the treatment of young adults in the criminal justice system.

We also look at the:

• Intellectual Property Crime Report 2015-16

• Rape Monitoring Group digests

• College of Policing annual conference

• latest statistics on police powers and procedures.

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

Line by line examination of the Bill took place on 2 November. Committee stage is scheduled to continue on 9 November.

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

Investigatory Powers Bill

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 House of Lords considered the Commons amendments to the Bill on 2 November. Outstanding issues were returned to the Commons for consideration.

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

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Recently announced BillsCriminal Finances Bill

The Criminal Finances Bill was introduced into the House of Commons on 15 September 2016. The Bill is in four parts.

Part 1 deals with the proceeds of crime, money laundering, civil recovery, enforcement powers and related offences and creates a range of new powers for law enforcement agencies to request information and seize, monies stored in bank accounts and mobile stores of value.

Part 2 will ensure that relevant money laundering and asset recovery powers will be extended to apply to investigations under the Terrorism Act 2000 (TACT), as well as the Proceeds of Crime Act 2002 (POCA).

Part 3 will create two new corporate offences of failure to prevent facilitation of tax evasion.

Part 4 includes minor and consequential amendments to POCA and other enactments.

Summary

Unexplained Wealth Orders

The Bill will enable a court to make an Unexplained Wealth Order to require an individual or organisation who is suspected of direct involvement in or association with serious criminality to explain the origin of assets, where their assets appear to be disproportionate to their known income. A failure to provide a response would give rise to a presumption that the property was recoverable, in order to assist any subsequent civil recovery action. The Bill would also allow for this power to be applied to foreign politicians or officials or those associated to them, known as Politically Exposed Persons (‘PEPs’), helping to tackle the issue of the proceeds of corruption overseas being laundered in the UK.

Improved seizure and forfeiture powers

Current legislation allows law enforcement agencies to take action against criminal cash, but they are unable to do so if criminals store the proceeds of crime in bank accounts or other means, such as precious metals and jewels. There is evidence that these moveable items are being used to move value, both domestically and across international borders. The Bill will create new civil powers, similar to the existing cash seizure and forfeiture schemes in current legislation, which would close this gap. The powers will be exercisable where there is reasonable suspicion that the property is the proceeds of crime, or that it will be used in unlawful conduct in a manner similar to cash.

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Reform to the SARs regime

The SARs regime provides a critical intelligence resource direct to the NCA from regulated companies, allowing the NCA the opportunity to approve or refuse consent to transactions that may involve the proceeds of crime. Where the NCA refuses consent, the Bill will extend the current 31 day moratorium period granted by a court, for up to six months so as to allow investigators sufficient time to gather evidence to determine whether further action, such as restraint of the funds, should take place. It will also create a power for the NCA to request further information following receipt of a SAR; or where they have received a request from a Financial Investigation Unit in another country.

Information sharing

The Bill will provide for a legal gateway for the sharing of information between entities within the regulated sector. This has already been happening under the Joint Money Laundering Intelligence Taskforce (JMLIT) pilot, helping the banks to build the intelligence case for suspected money laundering before they submit a report to the NCA.

Corporate failure to prevent tax evasion

At present, if an individual evades tax and this is facilitated by the advice or actions of those in a corporation, although the individual will have committed a crime and those directly facilitating it could be prosecuted, the corporate entity does not hold any liability. The Bill creates two new offences so that a corporation in this situation could be prosecuted – one to catch companies facilitating the evasion of UK taxes; another to cover evasion of foreign taxes facilitated by an entity that has some nexus with the UK (such as a UK-based office), and where there is dual criminality with the UK.

Disclosure orders

The Bill authorises a law enforcement officer by way of a Disclosure Order, to require someone who has relevant information in a money laundering investigation to answer questions and provide information or documents. Disclosure Orders are already used in confiscation investigations and by the Serious Fraud Office (SFO) in fraud investigations, and the Bill would extend their use to money laundering investigations.

Combatting terrorist finance

The Bill makes changes to the law enforcement and intelligence agency response to the threat of terrorist finance, by mirroring many of the provisions in the Bill on Disclosure Orders, and Seizure and Confiscation powers, so that they also apply for investigations into offences under the Terrorism Act 2000 (TACT).

Recently announced Bills

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Progress

The Bill has now been sent to a Public Bill Committee where detailed examination of the Bill will take place. The Bill Committee is expected to hold oral evidence sessions on Tuesday, 15 November.

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

Recently announced Bills

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Statutory InstrumentsSI 962/2016 Crime and Courts Act 2013 (Commencement No. 15, Transitional and Savings Provisions) Order 2016)

This Order commences section 44 (dealing non-custodially with offenders) in so far as it relates to part 4 of Schedule 16 to the Crime and Courts Act 2013 and part 4 of Schedule 16 to the Act in the specified local justice areas set out in article 2. These provisions, which come into force on 17 October 2016 amend the framework for the electronic monitoring of offenders set out in the Criminal Justice Act 2003.

Please see legislation.gov.uk

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Case lawCrimeR v Qosja (Robert) [2016] EWCA Crim 1543

In this case the court considered what degree of immediacy and/or specificity was required in relation to the fear of violence for the purpose of the Protection from Harassment Act 1997 s.4A(1)(b). The appellant appealed against his convictions for stalking involving fear of violence and assault.

In the judgment of the Court, the complainant’s evidence fully entitled a jury to conclude that there was a second occasion when she feared violence from the appellant. The appellant had undertaken an escalating course of conduct over a very short period of time including violent conduct that engendered fear of further violence in the complainant’s mind.

It was found that there was no requirement for the fear to be of violence on a particular date or time in the future, or at a particular place or in a particular manner, or for there to be a specific threat of violence. Whether fear of violence was sufficient to satisfy the requirements of s.4A(1)(b)(i) was a question of fact and degree on the evidence. The key was that the complainant had to fear on at least two occasions that there would, rather than might, be violence directed at them

The full case can be found here bailii.org

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Evidence and procedureR v Johnson & Ors [2016] EWCA Crim 1613

This case involved a group of cases, unconnected save for the need to consider the impact on the individual convictions (mainly, but not entirely, for murder) of the decision of the Supreme Court in R v Jogee, Ruddock v The Queen (Jogee) in relation to the issue of joint enterprise as a consequence of the reversal of the pre-existing law.

The Court of Appeal stated that had the change of law identified in Jogee been set out in statute (as opposed to judicial decision of the Supreme Court), there would be no question of re-visiting any such convictions: the new law would only apply to future cases. However, as the Supreme Court identifies the law retrospectively, the review of the law requires consideration of the concept of safe conviction as well as the impact of out of time appeals in circumstances where the directions of the trial judge, as a consequence of Jogee, no longer complies with what the present law dictates.

In approaching appeals the Court stated that consideration had to be given to the extent to which the verdict could only properly be interpreted in accordance with the common law principles of joint enterprise. This will arise where, in the course of a joint enterprise to commit crime A, one of the co-adventurers D1, commits another offence, crime B: the others involved in the original joint enterprise were guilty as an accessory to crime B if they or any of them had foreseen the possibility that D1 might act as he did.

In relation to murder, the law also required consideration of whether a weapon used to cause death was ‘fundamentally different’ from any weapon of which D2 had knowledge. The effect of Jogee is that save when death is caused by some overwhelming supervening act, relegating what had gone before to history, there would ‘normally’ be no occasion to consider the concept of ‘fundamental departure’. By focussing on intention, the knowledge of a weapon remains highly material in relation to the inference of intention. After Jogee, however, even if the facts of any individual case raise concern as to the safety of a conviction for murder, a conviction for manslaughter does not depend on knowledge of the weapon. The test was set out in Jogee as follows:

If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter.

In relation to these appeals before the Court, none were successful and the convictions were upheld in all cases.

The judgment can be accessed in full at bailii.org

Evidence and procedureCase law

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CrimeIntellectual Property Crime Report 2015-2016

The latest Intellectual Property (IP) crime report 2015-2016 has been published, which highlights current and emerging threats that surround counterfeiting and piracy, including those conducted via the internet. The report contains statistical data and enforcement activities from UK law enforcement agencies such as trading standards, police, border force and a number of industry bodies. The report highlights the Federation Against Copyright Theft (FACT), Trading Standards and the Police work with the proliferation of internet protocol TV services, Anti-Counterfeiting Group members removing dangerous counterfeit electrical consumer goods and social media sellers of counterfeits being targeted by Operation Jasper.

The UK has one of the most highly regarded IP enforcement systems in the world but challenges still remain to tackle the extensive and evolving challenges presented by IP infringement and counterfeiting. The Government published a new IP Enforcement Strategy 2020 this year which focuses on continuing the effective partnership work with domestic and international partners from industry, law enforcement and governments. This year also saw the formation of the Illicit Trade National Policing Portfolio which will enable increased collaboration across a broad range of sectors. This will enable increased collaboration across a broad range of sectors like tobacco, alcohol, medicines and health care products, which can fall outside the scope of IP Crime but also fuel the shadow economy, undermine legitimate business and harm communities.

This report focuses heavily on interconnectivity and the increasing importance of online trade in organising, promoting and effecting illicit activity connects previously unrelated sectors. Piracy and counterfeiting do not occur through exclusively illegal sites on the dark web. The use of widely available and trusted platforms like Facebook, eBay, Amazon and trusted brands like Google, in association with the promotion and distribution of pirate/counterfeit products, means that collaboration between brand owners and enforcement groups is crucial. Following the success of interventions like Operation Jasper last year, cooperation between high profile, trusted brand owners and enforcement specialists characterises many of the online and offline enforcement projects described in this report.

The full IP Crime Report can be found here gov.uk

Policing practice

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DiversityCPS consultation on hate crime

The Crown Prosecution Service (CPS) has published revised public policy statements on offences involving hostility on the grounds of sexual orientation and gender identity and racial and religiously aggravated hate crime. The CPS has also published the first public policy statement on crimes against disabled people. There are three separate policy statements and therefore three separate consultations.

The consultations close on 9 January 2017 and can be accessed as follows:

• Consultation on the Public Policy Statement on prosecuting crimes against disabled people

• Consultation on the Public Policy Statement on the prosecution of offences involving hostility on the grounds of sexual orientation and gender identity

• Consultation on the Public Policy Statement on racially and religiously aggravated hate crime

Hate Crime statistics released

The Home Office has published the latest statistics on hate crime, covering the number of hate crimes from police recorded data in England and Wales from April 2015 to March 2016. The bulletin covers the crimes that were motivated by one or more of the following five monitored strands: race, religion, sexual orientation, disability or transgender identity. It also contains analysis of how hate crime offences recorded in 2015/16 were dealt with by the police and provisional information on the number of racially or religiously aggravated crime recorded by the police around the time of the EU referendum.

Key findings:

• in 2015/16 there were 62,518 offences recorded by the police in which one or more hate crime strands were deemed to be a motivating factor; an increase of 19% in 2014/2015

• the number of hate crime offences in 2015/16 for the five centrally monitored strands were as follows:

– 49,419 (79%) were race hate crimes – 7,194 (12%) were sexual orientation hate crimes; – 4,400 (7%) were religion hate crimes; – 3,629 (6%) were disability hate crimes; and – 858 (1%) were transgender hate crimes.

DiversityPolicing practice

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It is possible for one hate crime offence to have more than one motivating factor, which is why the above numbers add up to more than 100%.

• there were increases in offences recorded for all five of the monitored hate crime strands between 2014/15 and 2015/16.

Due to the widespread reporting of, and interest in, hate crime around the time of the EU referendum, information has been included in the bulletin on the levels of hate crime recorded around the referendum. There was an increase in the number of racially or religiously aggravated offences recorded in June 2016, followed by a further increase in July 2016. The number of offences declined in August, but remained at a level higher than prior to the referendum.

The statistics can be accessed in full at gov.uk

DiversityPolicing practice

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PoliceLatest statistics on police powers and procedures published

The latest statistical release on the use of various police powers in England and Wales up to the year ending 31 March 2016 has been published. The release contains figures on arrests, detentions, road checks, intimate searches, stop and searches, breath tests, fixed penalty notices and detention under the Mental Health Act 1983.

Key findings

Stop and search

• 387,448 stop and searches were conducted by police in England and Wales, a fall of 28% compared with the previous year.

• The number of arrests resulting from stop and searches fell by 19% to 60,571

• Since the year ending 31 March 2011, stops on White individuals, BME individuals and Black individuals have fallen by the same amount (72%).

Best use of stop and search (experimental statistics)

Provisional data, based on data provided by 17 forces for 2015/16, showed:

• In around one in five stop and searches, the outcome of the search was linked to the initial reason for the search

• An outcome other than ‘No further action’ was given in 24% of stop and searches.

Arrests

• There were 896,209 arrests carried out by police in England and Wales, a fall of 5% on the previous year.

Fixed penalty notices

• Just over one million FPNs were issued for motoring offences by police in England and Wales in 2015, a fall of 1%. However the number issued for speed limit offences increased by 6%.

Breath tests

• Police carried out 520,219 breath tests in 2015, a fall of 14%. 12% of these were positive or refused.

PolicePolicing practice

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Detentions under the Mental Health Act (Experimental Statistics)

Provisional data, provided by 15 forces for 2015/16, showed:

• In half of all detentions under section 136 MHA, the person detained was escorted to a place of safety in a police vehicle. In 40% of these cases it was because an ambulance was not available in reasonable time.

• In around one in ten cases, the person detained was taken to a police station. In 2% of these cases, this was because there was no capacity at the health based place of safety.

Police Powers and Procedures England and Wales, year ending 31 March 2016, can be accessed in full at gov.uk

Met Police Body Worn Video

The Metropolitan Police Service (MPS) has announced the largest rollout of body-worn cameras by police anywhere in the world. This follows on from a successful trial, wide-ranging public consultation and academic evaluation. The scheme will see over 22,000 MPS officers issued with the cameras in all 32 boroughs and a number of frontline specialist roles, including overt firearms officers. The deployment will be managed in a phased approach and will be completed by summer 2017.

The cameras will be worn on the officer’s uniform but will not be permanently recording. Members of the public will be told as soon as practical that they are being recorded and when the camera is recording, it is highly visible – notable by a flashing red circle in the centre of the camera and a frequent beeping noise when the camera is activated.

More information can be found here news.met.police.uk

National Crime Agency’s Missing Persons Report

New figures released by the National Crime Agency’s UK Missing Persons Bureau (UKMPB) show an almost 20% increase in calls to report people going missing in the UK. The rise is linked to improvements in police recording practices and the decision to combine missing and ‘absent’ data in the figures. Whilst the number of missing people reports has increased the report found that the number of cases resolved within 24 hours had risen to 79% and the proportion of individuals missing for more than a week fell to 2%. Police forces are also more able to indicate how many incidents relate to those missing from care than in previous years.

PolicePolicing practice

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There are limitations to generating comparable data using the current police systems and in order tocomplete further analyses, UKMPB has issued a new revised data requirement to allow for a new datacollection for the 2016/17 report. UKMPB is also supporting work by NPCC and the Home Office todesign and build a National Register for missing persons which will automatically receive informationfrom all police forces regarding missing persons.

The full report can be found here nationalcrimeagency.gov.uk

College of Policing annual conference

The College of Policing will host its annual conference on 30 November 2016. The theme of this year’s conference is ‘vulnerability’. The conference will give attendees the opportunity to:

• hear from expert practitioners

• discuss examples of emerging practice

• contribute to developing an evidence-based approach

• help shape the debate with their own experience.

The College is able to offer free places to practitioners who deal with vulnerable people in their daily roles. Two places are on offer per force, and those who wish to be considered for a free place should make a request via their Chief Constable. Officers and staff who have joined College membership or have signed up to the College’s Members’ Hub on the Police OnLine Knowledge Area (POLKA) are being offered half-price tickets at £30.

To find out how to join the College’s Member Hub for free please see college.police.uk/Membership

For information about the College conference please see http://www.college.police.uk/News/College-events/Pages/conference-2016.aspx

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Criminal justice systemCPS publishes social media guidance

The Crown Prosecution Service (CPS) has published guidelines setting out the approach that prosecutors should take in relation to cases involving offences committed by communicating via social media. The guidelines cover the offences that are likely to be most commonly committed by the sending of communications via social media. For the purposes of the guidelines, social media includes emails and texts and other forms of electronic communications.

The guidelines are primarily concerned with offences that may be committed by reason of the nature or content of a communication sent via social media. Where the social media is simply used to facilitate some other substantive offences, the guidelines state that prosecutors should proceed under the substantive offence in question. They replace the previous interim guidelines and have immediate effect.

The guidelines include new sections on Violence against Women and Girls (VaWG), Hate Crime and vulnerable victims and alerts prosecutors to cyber-enabled VaWG and hate crime offences. These include ‘baiting’, the practice of humiliating a person online by labelling them as sexually promiscuous or posting ‘photoshopped’ images of people on social media platforms. The guidance provides information for prosecutors considering cases of ‘sexting’ that involve images taken of under 18-year olds. It advises that it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship. A prosecution may however be appropriate in other circumstances such as those involving exploitation, grooming or bullying.

The guidelines can be accessed in full at cps.gov.uk

Report of the treatment of young adults in the criminal justice system published

The Justice Committee has published a report, following an inquiry into the treatment of young adults in the criminal justice system. The report considers evidence on the needs and characteristics of young adults in the criminal justice system, including propensity to criminal behaviour arising from factors such as their social background, and research into young people’s psychological and neurological maturation and issues such as brain development, learning disability and acquired and traumatic brain injury. It concluded from the evidence that there is a strong case for a distinct approach to the treatment of young adults in the criminal justice system and that dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood.

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The report looks at the current approaches of the Ministry of Justice, the National Offender Management Service (NOMS) and other criminal justice agencies towards young adults, examining questions of governance, policy and practice. On the issue of governance, the Committee concluded that existing arrangements are unsatisfactory and that the various age definitions applied by the MoJ are confusing and do not inspire a coherent approach.

The inquiry found overwhelming evidence that the criminal justice system does not adequately address the distinct needs of young adults. The Committee presented its recommendations to the Government in the form of a blueprint for a strategic framework which it expects to be adopted as part of the forthcoming reform plan. The blueprint has the following main components:

• Overarching principles to inform a step-change in policy and practice in relation to young adults and to underpin a strategic approach ‘founded on the clear philosophy that the system should seek to acknowledge explicitly [young adults’] developmental status, focus on [their] strengths, build their resilience and recognise unapologetically the degree of overlap of their status as victims and offenders’

• Understanding risks and needs including ‘through a policy of universal screening by prisons and probation services for mental health needs, neuro-developmental disorders, maturity and neuro-psychological impairment’

• A distinct approach with specialist staff in prison and probation services and other criminal justice professionals dealing with young adults underpinned by more in-depth training

• Building the evidence base for the treatment of young adult offenders, in part through expanding the availability of promising programmes and robustly evaluating them, and examination by MoJ of whether the case can be made for investment to facilitate interventions aimed at young adults, including by the creation of an equivalent to the pupil premium for prisons and Community Rehabilitation Companies

• Cross-departmental reform to extend statutory support provided to under-18s by a range of agencies to people up to the age of 25, and consideration of legislative change to recognise the developmental status of young adults.

• Courts and sentencing: further work to evaluate the impact of maturity as a mitigating factor in sentencing and the inclusion of age and maturity in the Code for Crown Prosecutors, and the testing of young adult courts

• Prisons: use of the forthcoming prison reform bill to extend for those up to the age of 25 the sentence of detention in a young offender institution for 18 to 20 year olds, together with testing various models of ways of holding young adults in custodial institutions, revision of the Incentives and Earned Privileges Scheme, and other measures to reduce violence in prisons.

The report can be accessed in full at publications.parliament.uk

Criminal justice system

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Inquiry into police and security co-operation post Brexit

The EU Home Affairs Sub-Committee has launched an inquiry into police and security co-operation between the UK and EU following a UK exit from the EU. The Committee will look specifically at the current forms of co-operation that the UK may wish to maintain after it leaves the EU and the practicalities of doing so.

Further information, including evidence that has been heard by the Committee so far, can be accessed at parliament.uk

Fund to tackle modern slavery announced

The Home Secretary has announced a dedicated Modern Slavery Innovation Fund to tackle modern slavery in high-risk countries from which victims are trafficked to the UK. The fund encourages organisations to come forward with innovative projects, which trial new approaches to tackling modern slavery in countries from which victims are trafficked. To qualify, bidders must provide evidence that their scheme would drive at least one of the six objectives, set out by the Home Office:

• improve law enforcement

• legislation and policy

• reduce vulnerability to exploitation

• aid victim support and recover

• improve global co-ordination

• encourage responsible business and slavery-free supply chains; and

• enhance the evidence base.

An additional £3 million will also be available to bidders in a dedicated Child Trafficking Protection Fund, to be used to protect vulnerable children overseas and within the UK who have the potential to be trafficked; and to prevent those who have been exploited from going missing and becoming victims again in the future.

Further information can be accessed in full at gov.uk

Criminal justice system

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Rape Monitoring Group digests published

The Rape Monitoring Group has published 42 local area digests which show how cases of rape are dealt with at all stages of the criminal justice process. The digests pull together data from the Home Office, Office for National Statistics, Crown Prosecution Service (CPS) and the Ministry of Justice (MoJ). They include police recorded data on rape, broken down by adult or child, comprising the number of recorded rapes, how many were initially recorded as such and the outcomes for police investigations. They also include data from the CPS and MoJ on the number of prosecutions and convictions and the average custodial sentence lengths for convicted offenders. The digests now include data on transferred or cancelled records, allowing the reader to distinguish between recorded crime reports.

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

Criminal justice system

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