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

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OFFICIALDigest October 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 5Case law 6 Crime 6 Manslaughter conviction following landmark joint enterprise ruling 6 Evidence and procedure 8 R v Dunn and Anor [2016] EWCA Crim 1392 8 General police duties 9 Ibrahim and others v. the United Kingdom (Applications nos. 50541/08, 50571/08, 50573/08 9 and 40351/09)

Policing practice 11 Crime 11 Report on FGM published 11 Diversity 13 Disabled children almost twice as likely to be the target of crime 13 Investigation into Met police reveals significant weaknesses in handling discrimination 14 Police 15 Improved best use of stop and search after HMIC revisits 15 Latest statistics on police powers under Terrorism Act 2000 15 College of Policing annual conference 16 West Midlands Police introduce new scheme to improve road safety 16Criminal justice system 18 Report on child exploitation and missing children published 18

Contents

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

There are case reports on the:

• right to a fair trial under Article 6 of the ECHR

• credibility of a prosecution witness

• change in the law on joint enterprise.

We look in detail at:

• the Home Affairs Committee report on FGM

• the EHRC report on crime and disabled people

• the joint inspection report on child exploitation and missing children

• HMIC re-inspection on use of stop and search.

We also look at:

• the EHRC report into handling of discrimination by the Met

• the latest statistics on police powers under the Terrorism Act 2000

• the College of Policing annual conference

• West Midlands police scheme to improve road safety.

The progress of proposed new legislation through parliament is examined.

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 during the first day of committee stage on 14 September 2016. Amendments discussed covered clauses 2-4, 6-8 and 11 of the Bill.

Committee stage is scheduled to continue on 26 October 2016 when further amendments will be discussed.

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

Line by line examination of the Bill concluded after the sixth day of committee stage on 12 September 2016. Amendments discussed covered clauses 232, 233, 235, 236, 242 and 243 of the Bill.

Report stage – further line by line examination of the Bill - is scheduled to begin on 11 October 2016.

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

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Case lawCrimeManslaughter conviction following landmark joint enterprise ruling

A man who successfully appealed his murder conviction has been convicted of manslaughter. It follows a landmark ruling by the Supreme Court in February 2016 on the law relating to joint enterprise. In the joint case of Jogee and Ruddock v The Queen (Jamaica) [2016] UKSC 8, the Supreme Court considered the mental element of intent which must be proved when a defendant is accused of being a secondary party to a crime. The question of law was whether the common law took a wrong turning in two cases, Chan Wing-Siu v The Queen [1985] and R v Powell and English [1999] 1 AC 1.

In the case of Jogee, the appellant’s co-defendant stabbed a man to death and was convicted of murder. The judge in the case of Jogee directed the jury that the appellant was also guilty of murder if he participated in the attack on the deceased and realised that it was possible his co-defendant would use the knife with intent to cause serious harm.

In the case of Ruddock, the appellant was convicted in Jamaica of murder, which was committed in the course of a robbery. The appellant’s co-defendant pleaded guilty to murder. The police evidence was that the appellant made a statement under caution which amounted to an admission that he was involved in committing the robbery and was present when the victim was killed. The judge directed the jury that the prosecution had to prove that each defendant shared a common intention to commit the offence and that common intention included a situation in which the defendant knew that there was a real possibility that the other defendant might have a particular intention and with that knowledge, nevertheless, went on to take part in it.

The Supreme Court stated that secondary liability does not require the existence of an agreement between the defendant committing the offence (D1) and the secondary party (D2). Where it does exist, such agreement is by its nature a form of encouragement and in most cases will also involve acts of assistance. The Court stated that secondary liability includes cases of agreement between principal and secondary party but is not limited to them. The Court did not consider that the principle set out in the case of Chan-Wing-Siu could be supported.

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The law on this area remains highly controversial and a continuing source of difficulty for trial judges. It has also led to large numbers of appeals. The Court stated that in the common law, foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. It may be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule, which results in over-extension of the law of murder and reduction of the law of manslaughter. Murder already has a relatively low mens rea threshold, because it includes an intention to cause serious injury, without intent to kill or to cause risk to life. The Chan Wing-Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal may commit murder but without there being any need for intention to assist him to do so. As a result, the rule brought the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal.

In the case of Jogee, the Court stated that the jury’s verdict meant that it was sure, at the very least, that the appellant knew Hirsi had the knife and appreciated that he might use it to cause really serious harm. The appellant’s actions were enough for the Court to consider that there was a case fit to go to the jury that he had the mens rea for murder. At a minimum, he was party to a violent adventure carrying the plain objective risk of some harm to a person which resulted in death; he was therefore guilty of manslaughter at least. The choice of disposal was either to quash the appellant’s conviction for murder and order a re-trial or to substitute a conviction for manslaughter. The appellant was subsequently convicted of manslaughter and received a sentence of 12 years imprisonment.

In the case of Ruddock, it was accepted on behalf of the prosecution that if it was concluded that the Chan Wing-Siu principle was wrong, the appeal should be allowed on that ground.

The effect of putting the law right was not, the Court stated, to render invalid all convictions that were arrived at over the years by applying the law as set out in Chan Wing-Siu and Powell and English. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, was important as a matter of legal principle. It did not however follow that it would have been important on the facts to the outcome of the trial or the safety of the conviction.

The report can be accessed in full at bailii.org/uk

CrimeCase law

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Evidence and procedureR v Dunn and Anor [2016] EWCA Crim 1392

Two appellants, Dunn and Higgins, appealed against their 2006 convictions for murder. The victim had been shot outside a pub. Three co-defendants were convicted of murder on the basis that they had carried out the shooting. The prosecution case was that Higgins had lured the victim to the pub, and then outside, to enable the shooting. Dunn was alleged to have helped coordinate and organise that situation.

The prosecution case relied strongly on the evidence of a witness (Vervoort), who stated that Dunn and Higgins had referred to the shooting during a car journey prior to the incident. She also gave incriminating evidence regarding Higgins’ involvement at the pub before and after the shooting. Both Dunn and Higgins strongly disputed Vervoort’s account and attacked her credibility at trial. In this appeal, they submitted further evidence, including discredited key evidence given by Vervoort in a separate trial involving another person implicated in the shooting and material from the Criminal Justice Protection Unit proving that Vervoort had made no mention in her initial interviews to hearing a reference to the shooting during the car journey.

The appeal was allowed. The convictions relied largely on the credibility of a prosecution witness subsequently shown to be unreliable, and involved a failure by the prosecution to disclose evidence supporting defence attacks on that reliability. Without her evidence, it was difficult to see any case against Dunn for murder and it was realistically possible that the jury might have viewed the case against him differently had this further information been available. In relation to Higgins, despite the fact he had been with the victim at the pub and had gone outside with him just before the other defendants arrived, on balance, the court could not be satisfied that Higgins’ conviction was safe. Vervoort’s evidence implicated Higgins as well as Dunn in the plan to shoot. The convictions were held to be unsafe and were quashed.

The full judgment can be found here bailii.org

Evidence and procedureCase law

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General police dutiesIbrahim and others v. the United Kingdom (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09)

This was a case in the European Court of Human Rights against the United Kingdom. The applicants alleged a violation of Article 6 in that they had been interviewed by the police without access to a lawyer and that statements made in those interviews had been used at their trials. The case concerned the temporary delay in providing access to a lawyer during the police questioning of four men believed to be responsible for the 21 July 2005 London bombings and the alleged prejudice to their resulting trials.

On 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene. The first three applicants were later arrested on suspicion of having detonated three of the bombs. They were questioned by the police in urgent ‘safety interviews’ before having had access to legal advice. During the interviews, the applicants denied any knowledge of the events of 21 July. At trial, they acknowledged their involvement in the events but claimed the bombs had been a hoax and were never intended to explode. The statements made in their safety interviews were admitted at trial. They were subsequently convicted of conspiracy to murder. They complained before the court about the temporary delay in providing them with access to a lawyer and the admission at their subsequent trials of statements made in the absence of lawyers.

The fourth applicant was not suspected of having detonated a bomb and was initially interviewed by the police as a witness. He started to incriminate himself by explaining his encounter with a fourth suspected bomber shortly after the attacks and the assistance he had provided to that suspect. According to the applicable code of practice, he should have been cautioned and offered legal advice at that point. However, after taking instructions from a senior officer, the police continued to question him as a witness and took a written statement from him. He was subsequently arrested and offered legal advice. In his ensuing interviews, he adopted and referred to his written statement. His witness statement was admitted as evidence at his trial. He was convicted of assisting the fourth bomber and of failing to disclose information about the bombings.

General police dutiesCase law

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In respect of the first three applicants, the Court was convinced that, at the time of their initial police questioning, there had been an urgent need to avert serious adverse consequences for the life and physical integrity of the public, namely further suicide attacks. It was significant that in the case of the first three applicants there was a clear framework in place, set out in legislation, regulating the circumstances in which access to legal advice for suspects could be restricted and offering important guidance for operational decision-making. The restrictions were also temporary in nature, the legislation providing that they had to end as soon as the circumstances justifying them ceased to exist and that they were subject to a strict upper time-limit of 48 hours. Lastly, the decision to limit the right to legal advice had been taken by a police officer based on the specific facts of each three applicants’ cases and the decisions had been recorded. The Court was therefore satisfied that there were compelling reasons for the temporary restrictions of the first three applicants’ right to legal advice. The court was also satisfied that the proceedings as a whole in respect of each of the first three applicants had been fair.

In the case of the fourth applicant, the court was not convinced that there had been compelling reasons for restricting his access to legal advice and for failing to inform him of his right to remain silent. It was significant that there was no basis in domestic law for the police to choose not to caution him at the point at which he had started to incriminate himself. Indeed, the Court stated, that decision had been contrary to the applicable code of practice. As a result, the applicant had been misled as to his procedural rights. Further, the police decision could not subsequently be reviewed as it had not been recorded and no evidence had been heard as to the reasons behind it. As there were no compelling reasons, it fell to the Government to show that the proceedings were nonetheless fair.

In the court’s view they were unable to do this and it accordingly concluded that the overall fairness of the fourth applicant’s trial had been prejudiced by the decision not to caution him and to restrict his access to legal advice. The Court however concluded that it did not follow from their finding that the fourth applicant had been wrongly convicted, it being impossible to speculate as to the outcome of the proceedings, had there been no breach of the Convention. The Court dismissed his claims for pecuniary and non-pecuniary damages. An award was made in respect of his legal fees.

The report can be accessed in full at bailii.org

General police dutiesCase law

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Policing practiceCrimeReport on FGM published

The Home Affairs Committee has published a report on female genital mutilation (FGM). It provides a follow up to the two reports published by the predecessor Committee and assesses whether further positive developments had taken place.

The report states that everyone involved in protecting children needs to be aware of, and prevent, this specific form of abuse. This responsibility extends to the wider community and to all professionals whose roles bring them into contact with children. It stated that it was beyond belief that there has not been a successful prosecution for an FGM offence. The failure to identify cases, to prosecute and to achieve convictions can only have negative consequences for those who are brave enough to come forward to highlight this crime. In the absence of successful prosecutions, FGM remains a national scandal that is continuing to result in the preventable mutilation of thousands of girls. The Committee welcomed the measures that the Government has introduced in recent years to deter parents and others from attempting to inflict FGM on girls and to bring those to justice who succeed in this.

Key findings

• The Committee was alarmed by reports that some clinicians are ignoring the duty on frontline healthcare professionals, social care workers and teachers to record data on FGM incidence and repeats its call for Government to introduce stronger sanctions for failing to meet the mandatory reporting responsibility.

• Cross-departmental efforts to tackle FGM are disjointed. The Home Office’s FGM Unit should be made a joint enterprise between the Home Office, the Department of Health and the Department for Education, with the remit, powers and budget to become the sole source of Government policy for safeguarding girls at risk and meeting the Government’s ambition to eradicate FGM ‘within a generation’.

• The Government’s efforts to safeguard girls at risk of being taken abroad to undergo the practice, particularly during school holidays, a time known as the ‘cutting season’ are welcome, but it must provide better intelligence to airside Border Force officers on the regional prevalence of FGM within practicing countries. That would enable a more sophisticated targeting of individuals likely to be abetting the crime. To achieve that, the FGM Unit must immediately form operational links with police and Border Force airside operations, to provide intelligence and guidance on high-risk countries.

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• Overall, the Committee is calling for a more sophisticated, data-driven approach to eradication that would see the Government engage directly with affected and at-risk women and girls. The Government must conduct research to ascertain attitudes towards FGM, the motivations for continuing to inflict the procedure, and to measure awareness the law prohibiting it amongst practicing communities.

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

CrimePolicing practice

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DiversityDisabled children almost twice as likely to be the target of crime

The Equality and Human Rights Commission (EHRC) led an inquiry into disability-related harassment in 2010/11. A report followed which found many people who experienced such harassment felt it was a commonplace part of everyday life, rather than a ‘hate crime’. EHRC went on to undertake a series of further inquiries to identify a set of measures for improvement in order to gauge progress over time.

The total incidence of hate crime in England and Wales has declined at a time when crime incidence has fallen overall. Despite the decrease in the incidence of crime overall, in most cases experience of crime remained higher for disabled people compared with non-disabled people of the same age. Findings in England and Wales for younger disabled people aged 10 to 15 are particularly concerning. For example, 22 per cent of disabled young people in England and Wales aged 10 to 15 have been the victim of crime in the previous 12 months, compared to 12 per cent of non-disabled young people of the same age. For people aged 16 and over with social or behavioural impairments, such as autism, attention deficit disorder or Asperger’s syndrome, 35 per cent have been the victim of a crime in the previous year, as have 30 per cent of people with mental health conditions, such as depression.

Overall, the analysis reported paints a picture of general improvements in the incidence of crime and hate crime. There are some positive trends in the experience of crime and satisfaction with how crime is handled by the police. However, improvements for disabled people are generally being experienced at a slower rate than for non-disabled people. Furthermore, certain groups of disabled people are at particular risk of being a victim of crime. These include children and young people and those with particular impairments such as mental health conditions and social or behavioural impairments.

The full report can be found here equalityhumanrights.com

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Investigation into Met police reveals significant weaknesses in handling discrimination

The judgment in the case of Carol Howard v Metropolitan Police Service highlighted significant concerns about how the Metropolitan Police Service (MPS) treated their staff and officers when they make a complaint about discrimination, including under the MPS internal grievance procedure known as the Fairness at Work (FAW) procedure. The judgment recommended that there should be an independent review of the MPS’s FAW procedures and as such the Equality and Human Rights Commission (EHRC) began a formal investigation. MPS also engaged the services of the Advisory, Conciliation and Arbitration Service (Acas) to conduct an independent review.

The EHRC investigation focussed on the processes and structures the MPS had in place in order to examine whether there were any systemic problems affecting the outcomes of discrimination complaints. It revealed significant weaknesses in the handling of discrimination complaints from its own officers and staff. Based on the evidence available, it was not possible to establish a breach of equality legislation but the report identified several areas of poor practice, including: poor record keeping, reluctance to admit mistakes, misplaced loyalty, lack of clarity around police regulations and a weak internal complaint systems. The report also examined the impact of Home Office regulations which focus predominantly on placing blame which along with the expectation of victimisation could deter some victims from coming forward.

The report made a number of recommendations for both the MPS and the Home office such as amending the legislation covering internal complaints to ensure that emphasis is placed on reconciliation and resolution. The MPS has committed to a substantial action plan to implement the Commission’s recommendations and have agreed an Outcome Achievement Plan with the Commission to report back on progress every six months.

Full EHRC report here equalityhumanrights.com

Full Acas report here news.met.police.uk

DiversityPolicing practice

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PoliceImproved best use of stop and search after HMIC revisits

HM Inspectorate of Constabulary (HMIC) has revealed the findings of a re-inspection of the 13 police forces that were not complying with three or more of features of the Best Use of Stop and Search (BUSS) scheme in 2015.

The BUSS scheme was introduced in 2014 by the Home Office in an attempt to improve transparency and community involvement, in order to help improve public confidence and trust in the powers. It was reported that 13 forces were not complying with three or more of the scheme, subsequently, the Home Office suspended those from the scheme. A revisit inspection took place between June and August 2016, where it was found only seven of the 13 were compliant, however, it has since been announced that all 13 have now met the expected criteria.

Since the revisits, HMIC have made recommendations to both the College of Policing and Home Office to consider reviewing the scheme for clarification. In particular, HMIC has recommended that it is revised to allow officers of inspector to chief superintendent rank to authorise the use of no-suspicion stop and search powers under section 60 of the Criminal Justice and Public Order Act 1994, but only in exceptional circumstances when a senior officer is not available.

Further information can be found at justiceinspectorates.gov.uk

Latest statistics on police powers under Terrorism Act 2000

The latest statistical release from the Home Office has been published, bringing together information on terrorism arrests, prison populations, stop and search, and port examinations.

Terrorism arrests

Arrests related to terrorism fell by a third in the year ending June 2016, compared with the previous year, which was 330 to 222 arrests. This brought figures back to similar levels of previous years, following a high increase in the year ending June 2015.

Court proceedings

There were 62 trials completed by the CPS counter terrorism department, in the year ending June 2016. Of these, 54 led to a conviction. The number of persons receiving longer sentences increased with the previous year.

PolicePolicing practice

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Terrorist and extremist/separatist prisoners

As of 30 June 2016, there were 165 persons in custody for terrorism-related offences and domestic extremism/separatism. This was a decrease from the previous year, which was 184. The number of persons in custody for offences under terrorism legislation or for terrorism-related offences continued to increase.

For further statistics please visit 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 and college.police.uk/News/College-events/Pages/conference-2016

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West Midlands Police introduce new scheme to improve road safety

West Midlands Police have launched a new scheme aimed at improving road safety for cyclists. It follows on from analysis of road traffic collisions (RTCs) which suggested that prosecution was the most effective method of encouraging drivers to be more aware of vulnerable road users.

The scheme involves a traffic officer riding a bike in some of the most vulnerable locations identified for cyclists with a view to instantly enforce the law upon close passes and distracted driving, for example driving without due care and attention. When a car passes the cycling traffic officer too close, they alert a colleague further up the road who will then stop the motorist. At this stage, the offender will be given a choice of either prosecution or completing a 15 minute educational session on the correct way to pass a cyclist.

In addition, West Midlands Police teamed up with The Royal Society for the Prevention of Accidents (RoSPA) to produce a free interactive presentation which gives drivers examples of how to overtake cyclists, examples of what cyclists may do in certain situations to ensure their safety, and highlights blind spot awareness plus much more. The presentation can be found here rospa.com

To read more about this scheme please see the West Midland’s Police blog here trafficwmp.wordpress.com

PolicePolicing practice

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Criminal justice systemReport on child exploitation and missing children published

A report has been published, following five joint targeted area inspections (JTAI) of child exploitation and missing children. ‘Time to listen’ is a joined up response to child sexual exploitation and missing children found evidence of progress being made in many local areas, which is resulting in better support for children at risk of, or subject to, child sexual exploitation. However, it stated that more can be done to ensure that all children and young people receive consistently good support from all agencies and in all areas.

Key findings

• Vulnerable children greatly benefit from building a relationship with one trusted individual, such as a social worker, and being actively involved in decisions about their lives.

• There needs to be a better understanding of why children go missing. The current requirements around return home interviews are not working well enough.

• The response to children going missing should be based on a proper assessment of all known risks. Current risk assessments by the police are inconsistent and their effectiveness is limited for some children.

• In too many areas the health community has insufficient resources and, in a minority of cases, an inadequate understanding of the signs of child sexual exploitation.

• There is variation in police practice between and within areas, which means some children have to wait too long to get the help and support they need.

• In most cases observed, professionals were highly committed to engaging with children, listening to their views and understanding their experiences. However, in some cases, this engagement is hampered by poor quality assessments, inappropriate language and ill-informed statements.

• Oversight of front line practice by leaders and managers is critical. While there was much evidence of good management in the inspected areas, inspectors still found examples of significant failures.

Each of the inspectorates will continue to maintain a focus on exploitation and children who go missing. Future joint targeted area inspections are already planned to focus on issues such as children living with domestic abuse, those suffering neglect and those children sexually abused within the family.

Please see justiceinspectorates.gov.uk

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