insightPolice & Law

November / December 2016

Edition 23www.pnld.co.uk

Flight time for forces?

Policy and practice news Promotion exam Q&As Case law and legal queries Career opportunities Updates on latest legislation

A presentation at this year’s PNLD conference, focusing on a collaborative pilot project carried out by two forces, has highlighted the huge potential for the police use of drones

2 PNLD Police & Law Insight

ED

ITO

RIA

L In conferenceFirstly, our sincere thanks to all the delegates that attended our 10th annual PNLD Criminal Law Conference in Lichfield last month.

Squeezed budgets are making it harder for law enforcement officers to attend conferences. However, they remain a vital opportunity to update practitioners on changes to the legal landscape and to exchange experiences and ideas with colleagues across the service. As one delegate at this year’s conference commented: “I wish inputs like this were provided in my initial training.”

For those unable to make it this year, our conference coverage in this month’s issue will hopefully give you a flavour of what took place. This year’s conference saw the return of leading lawyer Anthony Edwards. Anthony has years of experience as a practising criminal lawyer, authoring many of the legal handbooks familiar to practitioners. He is a defence lawyer, but, for one day at least, he becomes the gamekeeper turned poacher (or the other way around?) offering a rare glimpse into those areas of criminal law that defence lawyers believe could give their clients a ‘way out’ [see p6]. His brilliant presentations are detailed and expansive and, as such, we’re unable to do them justice in the magazine, but his notes are available on request from marketing@pnld.co.uk

New Acts take time to bed in and the Psychoactive Substances Act 2016

is no exception. Overall, says Drug Expert Evidence Co-ordinator Adrian Parsons from Kent and Essex Police, the Act seems to be working in terms of closing headshops. However, his presentation also explored some interesting issues surrounding police powers to stop, search, seize and retain psychoactive substances [see p7].

We would be the first to admit that our conferences are information-heavy which reflects not only the scale of criminal legislation, but also our desire to ensure a worthwhile experience for our delegates. Consequently, the opportunity to watch a demonstration of West Mercia and Warwickshire Polices’ drone offered a welcome diversion at this year’s conference. The presentation by Inspector Damian Sowrey that followed was a valuable insight into the forces’ recent six-month trial of drone technology. As Insp Sowrey says drones are not a replacement for a police helicopter, but, listening to his presentation, they appear to come a very respectable and close second [see p12].

If you would like to attend next year’s PNLD Criminal Law Conference, please contact marketing@pnld.co.uk

Tina Orr Munro,Editor, PNLD Police & Law Insighttina@chestnutmedia.co.uk

Subscribe to our Police & Law Insight

mailing list

3PNLD Police & Law Insight

CO

NTE

NTS

Publisher:Chestnut Media, on behalf of the Police National Legal Database

PNLDPloughland House62 George StreetWakefield WF1 1DL

Publishing consultants: Nigel Hughesnigel.hughes@pnld.co.uk

Robin Greenrobin.green@pnld.co.uk

Marnie Ratcliffemarnie.ratcliffe@pnld.co.uk

Editor: Tina Orr Munrotina@chestnutmedia.co.uk

Designer:Keith Potterkdpotter@ntlworld.com

Marketing Manager:Caroline Lecombercaroline.lecomber@pnld.co.uk

Marketing Officer:Ashley Firthashley.firth@pnld.co.uk

insightPolice & Law

www.pnld.co.uk

November/December 2016 – in this edition:

NEWS• Unexplained Wealth Orders in new criminal finances bill p4• HMIC judges fewer forces as ‘outstanding’ p4• NCA too ‘passive’ in tackling modern slavery p5PNLD CONFERENCE NEWS• UK officers attend PNLD’s 10th annual conference p6• Law on coercive control could be difficult to enforce p6• Psychoactive Substances Act 2016 under scrutiny p7FEATURES• Privacy vs security in ‘cyberspace’ p8

PNLD Legal Adviser Helen Hanley explores the key elements of the new Investigatory Powers Bill

• Flight Time p12 PNLD Police & Law Insight Editor Tina Orr Munro reports on a pilot project between Warwickshire and West Mercia forces which has highlighted the potential of the police use of drones

POLICE POLICY & PRACTICE p14NPPF STEP 2 LEGAL EXAM (FORMERLY OSPRE PART 1) PROMOTION EXAMS – Q&A p16POLICE CAREER OPPORTUNITIES p18LEGISLATION & STATUTORY INSTRUMENTS p20CASE LAW & LEGAL QUERIES p23

Missed a previous version? Don’t worry, we have them saved for you!

Conference 2016 September/October 2016 July/August 2016

Read previous versions

4 PNLD Police & Law Insight

NE

WS Unexplained Wealth Orders in new Criminal Finances Bill

People suspected of money laundering or corruption could be compelled to explain where their wealth has come from as part of a new bill published last month.

The Criminal Finances Bill includes proposals to tackle money laundering and corruption, counter terrorist financing and recovering the proceeds of crime. One new measure is the use of Unexplained Wealth Orders, which will force those suspected of committing serious crimes to explain the source of their wealth or risk having it seized. Law enforcement agencies will apply to the High Court to put the civil order in place. The measure will also apply to foreign politicians or officials or those associated with them, known as ‘politically exposed persons’ (PEPs).Other proposals include

improved seizure and forfeiture powers where the property is either the proceeds of crime or is intended to be used unlawfully. Current legislation allows law enforcement agencies to seize cash, but it does not apply to money held in bank accounts or

other means, such as precious metals and jewels, which can be used to move value around the UK and internationally. The Bill aims to close this gap. The National Crime Agency

will have extra powers to extend the time for senior officers to investigate transactions reported

Unexplained Wealth Orders are among a range of measures to tackle criminal finances in the new bill

Pict

ure

© D

alia

Ruk

iene

/ F

otol

ia by financial institutions, as part of the Suspicious Activity Reports (SARS) regime, from the current 31 days to six months. This will allow investigators time to gather evidence and determine if further action is needed.Other provisions include sharing

information, such as data on financial transactions, between regulated bodies. A new criminal offence will also be introduced for companies who fail to prevent tax evasion. Disclosure Orders, already used in confiscation and fraud investigations by the Serious Fraud Office, will be extended to money laundering investigations.The Government has described

the bill as ‘a key element’ in one of the most significant changes in anti-money laundering and terrorist finance regime in over a decade. It follows a major review of the UK’s anti-money laundering strategy. The bill is currently with the Public Bill Committee.

HMIC judges fewer forces as ‘outstanding’The number of forces judged by Her Majesty’s Inspectorate of Constabulary (HMIC) to be outstanding has more than halved while those deemed to require improvement has almost tripled, according to the Peel: Police Efficiency 2016 report.

Following annual inspections, HMIC found West Midlands Police and Durham Constabulary to be outstanding, compared with five forces last year, whereas eight other forces need to do better compared with three forces in 2015. Those forces are: Bedfordshire, Cambridgeshire, City of London, Devon and Cornwall, Dyfed Powys, Humberside, Nottinghamshire and South Yorkshire. Thirty-three forces were assessed as ‘good’. Overall, HMIC said forces must

do more to understand what the future demand will be and ensure that their staff have the necessary skills to deal with that demand.

Affecting capabilityIt said: “Most forces still do

not understand their current capability (what skills their workforce has) and how to develop those to meet future demand. Too many forces have been reducing their workforce to meet budget reductions without understanding how that will affect

capability, now and in the future.”HMIC also found “a significant

gap” in digital skills and IT remained an issue for many forces.HMIC’s Efficiency programme

assesses how a force maximises outcomes from its available resources. It reviews the financial and workforce planning of police forces while examining wider questions of cost, capacity and capability. The inspection focuses on the overall question, ‘How efficient is the force at keeping people safe and reducing crime?’

5PNLD Police & Law Insight

NE

WSNCA too ‘passive’ in tackling modern slavery

The Independent Anti-Slavery Commissioner has criticised the National Crime Agency (NCA) for failing to be proactive enough in tackling modern slavery.

Kevin Hyland said the Agency – the only agency to hold referrals from both the police and non-police responders – “must play its role” in combatting the problem.Both the police and non-

police first responders can refer suspected trafficking victims. In some areas, non-police first responders account for more referrals than the police. Figures for Bedfordshire police show non-police first responders referred 79 potential victims compared with nine people referred by police officers in 2015/16. In the Metropolitan Police Service (MPS) the figure was 1,157 compared with 85.According to statistics, in 2015/16

884 modern slavery crimes were recorded, even though there were 3,146 referrals to the National Referral Mechanism (NRM) during the same period.

Somewhat passiveMr Hyland said: “To date the

NCA has remained somewhat passive in partnering with police to ensure all NRM referrals made by non-police first responders are considered by the appropriate force, and that victims’ unique reference numbers are shared for inclusion in crime records.”He added that opportunities to

mine NRM data for the benefit of intelligence and investigative opportunities had also been lost.In his first annual report since

his appointment, Mr Hyland expressed disappointment that crime recording was “substandard” in some forces, although other forces have set up specialist units, introduced quality assurance and trained officers.

Mr Hyland urged law enforcement and the criminal justice system to improve their response, as high financial profits and a historically low risk of successful prosecutions make modern slavery an attractive enterprise for criminals. The number of modern slavery prosecutions and convictions in the UK is on the rise. In 2015, 117 offenders were

prosecuted in the UK, 19 per cent higher than the 98

prosecuted in 2014. While this is encouraging, Mr Hyland added that the total number of individuals being brought to justice is still relatively low given the estimated scale of offending. Home Secretary Amber Rudd

has pledged £11 million for a dedicated Modern Slavery Innovation Fund, set up to tackle the crime in high-risk countries from which victims are trafficked to the UK.

Anti-Slavery Commissioner Kevin Hyland called for the NCA to be less “passive” in tackling slavery, and for a better response from police and the criminal justice system

Pict

ure

© N

amni

ng /

Shu

tter

stoc

k

A redesigned NRM data collection system to include information for victim care, but also the development of evidence-led policing.

An analytical hub to record NRM referrals (including their Unique Reference Number), linked crime records and intelligence. This will include a knowledge management system for the collation and extraction of NRM crime and intelligence data. In turn, the hub will facilitate the development of high-quality research to support evidence-based modern slavery policing and policy.

A review of the National Crime Recording Standards and Home Office Counting Rules in relation to modern slavery crime, with a view to ensuring that the rules are clear, fit for purpose and delivered to forces with detailed guidance.

Planned actions for 2017

6

PNLD

AN

NU

AL

CO

NFE

RE

NC

E S

PEC

IAL

PNLD Police & Law Insight

Law on coercive control could be difficult to enforceLeading criminal lawyer, Anthony Edwards has highlighted a potential issue with the Serious Crime Act 2015 which came into force on 29 December 2015.

The Act created the offence of controlling or coercive behaviour in an intimate or family relationship.Mr Edwards said that, while the

legislation filled a “very important gap” in the law surrounding domestic abuse, it would be difficult to prove a person has been controlled or coerced.Speaking to conference

delegates, he said: “Who is going to know? All the evidence is personal, without something coming from outside it’s going

to be very difficult to prove. The whole point of this is that it stops them [victims] talking to other people and makes them feel very small about themselves.”However, Mr Edwards said he

was more worried about the specific defence where the person believes they were acting in the complainant’s best interests and their behaviour is reasonable.“It will give them a way out and

prosecutors will have to look for grounds,” said Mr Edwards, who added that the defence does not

UK officers attend PNLD’s 10th annual conferenceLaw enforcement officers from across the UK have attended this year’s annual PNLD Criminal Law Conference in Lichfield.

This year’s line-up featured top lawyer Anthony Edwards, who delivered his unique presentation on the impact of new legislation. His talk included updates on the Serious Crime Act 2015, the Psychoactive Substances Act 2016 and provisions contained within the Policing and Crime Bill which is currently going through Parliament.Mr Edwards was joined by

Inspector Damian Sowrey from West Mercia Police who shared the results of a recent trial of unmanned aerial vehicles (UAVs) or drones carried out jointly by his force and neighbouring Warwickshire Police [see P12]. Adrian Parsons, Drug Expert

Evidence Co-ordinator for Kent and Essex Police, also delivered a presentation on the legal and procedural implications of the Psychoactive Substances Act 2016.The response to the conference

was very positive and included

one attendee who expressed a wish that they had had this level of legal input during their initial training. Caroline Lecomber, PNLD’s

head of marketing, welcomed the positive comments. “I was delighted to welcome all delegates to PNLD’s 10th Criminal Law Conference at Police Mutual’s headquarters in Lichfield. The speakers were highly engaging and spoke with knowledge and

confidence on subjects that are extremely topical and relevant for our customers. “Once again the conference

provided a vital learning environment for our delegates to absorb new and amended legislation that is pivotal to their role.”To book your place at next

year’s PNLD’s Criminal Law Conference, please email marketing@pnld.co.uk.

The speakers’ presentations are available on request. Please email marketing@pnld.co.uk

apply if there is violence.He said a considerable amount

of guidance had been issued alongside the legislation and was effectively a ‘crib sheet’ for defence lawyers, but he added that the law was challenging for prosecutors. “It’s quite demanding as you have to build the case on one person and then go and find something to corroborate and strengthen their position.”

Conference speakers (l-r) Insp Damian Sowrey, PC Mark Bullingham (Roads Policing and UAV Operations Manager), Anthony Edwards and Adrian Parsons

The offence of controlling or coercive behaviour can be found on PNLD at documents D35581-2

7

PNLD

AN

NU

AL

CO

NFE

RE

NC

E S

PEC

IAL

PNLD Police & Law Insight

Speaking at this year’s conference, Mr Parsons said that if the psychoactive substance was on the psychoactivity database, forces could expect a response in around 14 days. Test results are returned in the form of an evidential package which shows the substance is not on the exempted list and that it causes psychoactive effects. There are currently 17 evidential packages, but a further 14 packages should be available shortly.However, if the substance

is not on the database or an independent expert has yet to identify it as having psychoactive effects, forces could be kept waiting for at least three months. Mr Parsons said this was the

“tip of the iceberg”: “This is a real issue. At a recent two-day festival, there were 21 unknown psychoactive substances alone.” Media reports suggest there

could be as many as 400 different psychoactive substances.Mr Parsons also examined

the powers contained in the Psychoactive Substances Act 2016, highlighting issues around the search, seizure and disposal of a psychoactive substance.

Supply offenceHe reminded delegates that

a psychoactive substance can only be seized and retained if the person is searched under section 36 of the Psychoactive Substances Act 2016, and the substance can only be disposed of if it has been seized under section 43 of the Act. He warned of the situation where a person is searched under section 23 of the Misuse of Drugs Act 1971 and the officer finds a psychoactive substance, which is not covered by the Misuse of Drugs Act 1971, so they have no power to retain

it but if they return it, they risk committing the offence of supply.It is down to individual forces

to issue guidance, but Mr Parsons added: “Never return a psychoactive substance without instruction from your own legal services or a court.”Civil and criminal powers

available under the Act were also under the spotlight. Criminal offences are covered by sections 4 to 9 and civil sanctions are covered by sections 13 to 20. Mr Parsons said that the civil route was “a light touch alternative” to criminal offences, and useful due to the lower burden of proof needed. It is down to forces whether they take a civil or criminal approach. For an in-depth look at the

Psychoactive Substances Act 2016, please see Police & Law Insight, Issue 20, July-August 2016, and PNLD document S2482

Psychoactive Substances Act 2016 under scrutinyForces may have to wait months for psychoactive substances to be tested as forensic services have barely scratched the surface in identifying new substances, according to Adrian Parsons, Drug Expert Evidence Co-ordinator with Kent and Essex Police.

Pamela’s Channel Tunnel knowledge provides a boost for charityCongratulations to Pamela Thomas, formerly of Staffordshire Police and now at Birmingham City University, who won £50 for correctly naming the year the Channel Tunnel Act was introduced at this year’s PNLD Criminal Law Conference. The money was donated to Pamela’s chosen charity, Macmillan. PNLD Head Nigel Hughes is pictured presenting Pamela with a certificate. The answer is 1987.

The speakers’ presentations are available on request. Please email marketing@pnld.co.uk

8 PNLD Police & Law Insight

FEA

TUR

ES Privacy vs security in ‘cyberspace’

PNLD Legal Adviser Helen Hanley explores the key elements of the new Investigatory Powers Bill

The way that we communicate is dramatically changing. Having a mobile phone and access to the internet is necessary for everyday living. Almost every activity may be done this way, whether it is managing our bank accounts, doing our shopping, keeping in touch with relatives and friends, or taking part in online education. But with technological advancement brings new types of crime.In the UK today, the biggest

threats come from cybercrime, terrorism and serious crime. The police, intelligence services and security services are tasked with ensuring that these threats are quashed. They are afforded powers in the Regulation of Investigatory Powers Act 2000 (RIPA), Data Retention and Investigatory Powers Act 2014 (DRIPA), the Intelligence Services Act 1994, the Police Act 1997, and the Telecommunications Act 1984. These acts include powers of interception of communications; acquisition of communications data; intrusive surveillance; covert surveillance; use of covert human intelligence sources; access to encrypted data; and the retention of certain communications data.The Government and security

services believe that as cybercrime and terrorism are becoming more prevalent, they should be afforded with greater powers to keep the public safe. They feel hindered by the current legislative framework. Privacy campaigners however argue that these powers are intrusive; they campaign for enhanced safeguards and fear the world is becoming a surveillance state. The Investigatory Powers Bill

has been introduced to address these concerns, but how far does it do this?

Background to the Investigatory Powers BillFollowing a Court of Justice of

the European Union judgement calling into question the legal basis upon which authorities require service providers to retain data, DRIPA was passed by Parliament to permit security services to continue to have access to telephone and internet data. DRIPA has an end date of 31 December 2016, and section 7 within the Act makes a provision that the Independent Reviewer of Terrorism reviews the operation and regulation of investigatory powers. This has been carried out by David Anderson QC and others, and as a consequence the

Investigatory Powers Bill has been introduced.

An overview of the Investigatory Powers BillThe Government aims to have

the Investigatory Powers Bill – labelled by privacy campaigners as ‘the Snoopers’ Charter’ – in force by 31 December 2016. It is now with the House of Commons for their agreement of amendments by the House of Lords.The Bill consists of nine parts

with 10 schedules and six draft Codes of Practice to accompany it. In summary the new provisions within the Bill relate to warrants, the introduction of combined warrants, judicial oversight, added protections for legally privileged communications involving sensitive professions, the retention of internet connection records by

The Investigatory Powers Bill takes considerable steps forward in addressing the criticisms made by both sides of the current legislative framework.

Pict

ure

© L

ittle

Per

fect

Sto

ck /

Shu

tter

stoc

k

9PNLD Police & Law Insight

FEA

TUR

ES

communication service providers (CSPs), and new safeguards and offences.

Part 1 – General privacy protectionsThis part puts safeguards in

place. It prohibits unlawful interception and the unlawful obtaining of communications data, abolishes or restricts powers to obtain communications data, and places restrictions on interference with equipment.

Part 2 – Lawful interception of communications Communications data is currently

defined as information about communications – the ‘who, where, when, how and with whom’ of a communication, but not the content (what was said or written). The Bill has reviewed and updated this definition to reflect the changes in the way in which people communicate.Interception of communications

is the obtaining of the content of a communication – such as a telephone call, email or social media message – in the course of its transmission or while stored on a telecommunications system. The content is the message that is being conveyed. The Bill provides for warranted interception and will bring together all the powers currently within existing legislation. It will, however, limit the use of warranted interception to the existing nine authorities only.

Part 3 of the Bill – Authorisations for obtaining communications dataThere will be a ‘double lock’

authorisation procedure applied to applications. Those seeking an interception warrant will first

require authorisation from the Secretary of State; additional authorisation will then be required from the Judicial Commissioner (senior judges).Interception warrants will only

be authorised in very limited circumstances, being:

(a) in the interests ofnational security

(b) for the prevention ordetection of serious crime; or

(c) in the interests of theeconomic well-being of theUK where it is connected tonational security.

Applications for targeted interception warrants will need to specify a particular person or operation. Urgent warrants for interception will need to be reviewed by the Judicial Commissioner within three working days (as opposed to five currently). In a case where the Judicial Commissioner does not approve the grant of a warrant, any interception activity must cease and a direction given that collected material must be destroyed.

Part 4 of the Bill – Retention of communications dataAt present, when necessary

and proportionate, CSPs can be required to keep certain types of communications data for up to 12 months under DRIPA. The Bill will create a new statutory basis for the retention and acquisition of communications data. The Bill will also make provision for the retention of internet connection records (ICRs) by CSPs. ICRs list all internet activity, and access to them will be limited, targeted and strictly controlled.

Part 5 of the Bill – Equipment interferenceEquipment interference permits

the security and intelligence services to interfere with electronic equipment such as computers and smartphones in order to obtain data, such as communications, from a device. It encompasses a wide range of activity, from remote access to computers to downloading covertly the contents of a mobile during a search. It is needed to gain valuable intelligence in national security and serious crime investigations to help gather evidence for use in criminal prosecutions. The Bill provides a new, more explicit equipment interference regime that will govern the use of these techniques.Use of the power will be limited

to the same statutory purposes as interception warrants and will be subject to the ‘double-lock’ authorisation safeguard. The Bill will permit use of equipment interference powers by all police forces, with a Code of Practice outlining the limitations and regulating the use of more sensitive interference warrants. There will be a new provision for urgent modifications to warrants, for example adding names of new targets. ‘Systems data’ and ‘identifying data’ have been defined so that when data is referred to in different contexts, there will be consistency of meaning.

Part 6 of the Bill – Bulk warrantsThis is the most controversial part

of the Act as it makes provision for bulk powers in relation to interception, communications

PNLD Police & Law Insight10

FEA

TUR

ES

data and equipment interference. However, these powers already exist currently in separate pieces of legislation – for example, bulk interception in RIPA, bulk communications data acquisition in section 94 of the Telecommunications Act 1994, and bulk equipment interference in the Intelligence Services Act 1994. The provisions within this Bill aim to introduce robust, consistent safeguards to the use of all bulk warrants.

Part 7 of the Bill – Bulk Personal Datasets (BPDs)BPDs are sets of personal

information about a large number of individuals, held on electronic systems; examples include the electoral roll, telephone directories and travel-related data. Again this part of the Bill has been met with some opposition, but the powers are not new.Currently the security and

intelligence agencies have powers under the Security Services Act 1989 and the Intelligence Services Act 1994 to acquire and use BPDs to help them fulfil their statutory functions. The aim within this part of the Bill is to place these powers in one place, and provide robust new safeguards on the retention and examination of BPDs. It introduces the requirement for BPD warrants and specific BPD warrants to be applied for and authorised accordingly.

Part 8 of the Bill – Oversight arrangementsPart 8 provides a new

oversight framework for the use of investigatory powers. The Investigatory Powers Commission (IPC) will replace the existing Intelligence Services Commissioner, Surveillance Commissioner and the Interception of Communications Commissioner. There will be a process whereby individuals can be informed of serious errors in the use of investigatory powers, and in instances where an oversight has caused significant prejudice to the person concerned, this person will be informed of their right to bring a case to the Investigatory Powers Tribunal.The IPC is to be supported by

Judicial Commissioners (senior judges) who will be responsible for approving the use of interception

Studying for police exams?PNLD – the criminal law resource of choice for police

As part of the police force subscription, ALL Police Officers and staff can have unlimited access to the legal database on their own personal devices – no longer having to pay for a subscription! Available to access on any mobile or desktop device, PNLD’s responsive website makes it even easier for you to study away from work, while travelling, or at any time to suit you. Tap into a wealth of legal information that will help you to achieve your full potential. Our team of Legal Advisers can answer all your criminal law questions. With our extensive number of Acts, Regulations, Case Summaries and our easy to understand legal guidance notes – studying has never been easier.

Register for Police Access

The debate regarding ‘privacy’ and ‘security’ on the use of investigatory powers will continue for many years, partly because it is such a difficult problem to resolve.

PNLD Police & Law Insight 11

FEA

TUR

ES

and equipment interference warrants and bulk warrants. They will oversee the use of all powers and be required to publish their findings in an annual report, and have the power to inform individuals who have been the subject of serious errors by law enforcement, the security and intelligence agencies and the public authorities. Anyone with concern regarding the misuse of powers under the Bill will be able to share information with the IPC without being at risk of prosecution for breaching the Official Secrets Act.

Part 9 of the Bill – Miscellaneous and general provisionsA key provision to note in

this part is the introduction of combination warrants. These allow the authorities to apply for authorisations for the use of two or more powers in one warrant.

Offences under the Bill The existing offence of unlawful

interception is replicated in the Bill so that interception in the absence of a warrant may constitute a criminal offence.A new offence for a person

knowingly or recklessly to obtain communications data from a telecommunications operator or postal operator without lawful authority is created.The offence in the Computer

Misuse Act 1990 so that equipment interference in the absence of a warrant may constitute an offence is preserved.The Bill makes it an offence

if a CSP or the employee of a CSP who is served with a bulk acquisition warrant discloses content or existence of a warrant to another.

ConclusionThe Bill makes considerable

steps forward in addressing the criticisms made by both sides of the current legislative framework. For privacy campaigners, the Bill does put in place safeguards – it offers transparency, the need for authorisation for use of the powers, a structure of oversight, and places limits on powers. For police and security services, the Bill offers a firmer statutory footing for the powers that are available to them and offers some additional powers that may be of assistance.However, the debate regarding

‘privacy’ and ‘security’ on the use of investigatory powers will continue for many years, partly because it is such a difficult problem to resolve. As with all new legislation, only when the Bill comes into force will the true advantages and disadvantages of the provisions be seen.

Fantastic news!

1. Visit www.pnld.co.uk and select ‘Police Access’2. Register using your police.uk email address3. Activate your access via verification email within 24 hours

How do I sign up?It’s as easy as 1-2-3

PNLD are giving free access to police officers, staff and police volunteers from any work or personal device

Benefits include easy access to a wealth of current, up-to-date criminal legislation, including acts and regulations, statutory instruments, case law summaries, legal news, notable legal queries, and points to prove, with helpful guidance notes that explain and interpret the law.

PNLD’s legal team is always available to answer customer emails to help clarify legislation.

12

FEA

TUR

ES Flight Time

Tina Orr-Munro reports on a pilot project between Warwickshire and West Mercia forces which has highlighted the potential of the police use of drones

Just seven days into a six-month trial, Warwickshire and West Mercia Polices’ new drone had already been deployed to five separate incidents. By the end of the trial the drone, or unmanned aerial vehicle, had been launched 120 times. The two forces are among

several in the UK trialling drone technology, and the decision to take part was driven by changes at the National Police Air Service (NPAS). Austerity has impacted across the police service, including police aerial support, and while NPAS will still offer higher levels of support, other areas such as aerial photography, fatal collisions and thermal imaging are under threat.The forces bought two off-the-

shelf drones at a cost of £13,000, similar in quality to those used in film and television circles. Allowed to fly to a height of 500ft, the drones are liveried and operated by officers in uniform. They are currently the only police drones permitted to fly at night. In a special presentation at this

year’s PNLD annual Criminal Law Conference in Lichfield, Inspector Damian Sowrey of West Mercia Police explained why the forces had decided to take part in the trial and their experience to date. “We felt we were probably not

going to get the same level of service from NPAS in the future, so we began to think about how we were going to bridge that gap,” said Insp Sowrey. “We’re not going to replace NPAS, but we wanted to augment the service we get. Having said that we’ve identified things during the trial that a helicopter can’t do.”

Insp Sowrey admitted that, before becoming involved in the pilot, he was sceptical about the value of using drones in the police service. “I thought it was gimmicky with big risks attached, but I’ve become a bit of a convert. They’re very versatile and relatively low cost. There’s some wide-ranging operational benefits from using drones and it will get cheaper and cheaper as we move forwards.”Costs of unmanned aerial

vehicles have tumbled. In the initial phase, one force paid £70,000 for a drone. Today, a drone with similar capabilities would cost around £5,000. The total cost for the trial project between the West Mercia and Warwickshire forces has come to less than £25,000, which includes insurance and pilot training.In terms of operational benefits,

the drones have already proved effective in areas of policing that

are traditionally resource intensive, such as searching for missing people. During the trial, a drone helped rescue three dementia sufferers who had gone missing. Insp Sowrey said this capability is particularly useful for forces covering large rural areas. The drones have also been

used in incidents involving hunt saboteurs, but their primary use has been in collision investigations. The size and manoeuvrability of the drone means it can fly at the car driver’s height, replicating the course the person has taken and building up a picture for the coroner or a criminal case.Insp Sowrey said his team found

the drones were often more flexible than a helicopter. “The battery lasts around 20 minutes, although this can be extended to two hours with spare batteries, but a helicopter has to refuel and

The pilot project team found that drones were often more flexible than helicopters, and could be used in a wide range of situations

Pict

ure

© ri

stes

ki g

oce

/ Sh

utte

rsto

ck

13

FEA

TUR

ES

we don’t necessarily have it for as long as we would like.”During the trial, the team came

across situations where it was unlikely that helicopters would have been used, including low-level anti-social behaviour such as the problem of ‘boy racers’. “Usually, by the time the police

turn up, they’re all sitting there, as nice as pie and we don’t have any evidence to prosecute, so having the ability to record the evidence before you intervene is very useful,” added Insp Sowrey.But it hasn’t all been plane-flying,

so to speak, as the team has had to consider the ethical concerns around the police use of drones; they are not alone. In 2012, the then chief constable of Hampshire and ACPO lead on the NPAS, Alex Marshall, also questioned whether police drones would ever be acceptable to UK citizens concerned with civil liberties.Insp Sowrey said: “Our feeling

was always that it’s not the drones themselves that might create the issue, but the police use of them. We were very concerned that they would be seen as an aggressive police tactic and there are those who would see it that way.“We can fly these drones

without regulations, insurance or an operations manual, but we thought that was a risky decision to take. We decided that as we were using them for professional purposes we should be subjected to the same regulations as commercial users so we submitted our policies and operations manual for approval to the Civil Aviation Authority (CAA). We wanted to be able to demonstrate that we

had done everything possible to ensure they were safe.”The team worked closely with

independent advisory groups to demonstrate their transparency regarding the forces’ use of the drones. They also approached Amnesty International who were “broadly positive” and more concerned that the legislation on data management is the same as it is for CCTV, which operates a limited viewpoint, unlike drones that can film wide areas. “Data management was a

concern, but the drones are deployed for either pre-planned operations or to respond to an incident. We don’t use them speculatively. All the data generated is held within the

rules of the Data Protection Act 1998 and subject to Freedom of Information requests. It’s no different to CCTV and body-worn video. We don’t always film incidents, such as a missing person,” said Insp Sowrey.The next step to ensuring

the success of the project was selecting the right pilots. This was an area the team spent “a considerable amount of time on”, said Insp Sowrey, who advised caution. “You need to choose sensible, mature people who are not going to put the reputation of the organisation in jeopardy.”Once chosen, the pilots were

trained to CAA standards and are now nationally qualified to fly drones. Each pilot cost £1,200 to train, prompting the force to explore the idea of gaining accreditation so they can offer training to other forces.Paperwork does accompany

the drones. A maintenance flight record for each flight takes about an hour to complete and includes details such as film footage recorded. “It’s not just about taking it out of the car and flying it,” added Insp Sowrey. There is also a monthly meeting on governance to address any issues, including complaints, although to date there haven’t been any.The six-month trial came to an

end in August. The report on its operation has now been written and the team are waiting to hear if the forces will adopt drones as part of their policing strategy. For an update on the law relating

to flying unmanned aerial units, please see Police & Law Insight, Issue 15, February 2016, p8

Some of the images taken by the drone over the PNLD conference site

14 PNLD Police & Law Insight

POLI

CE

PO

LIC

Y &

PR

AC

TIC

E

Policy & Practice: Stop and search the lowest for 14 years

The number of stop and searches is the lowest level since recording began, according to latest figures from the Home Office.Police carried out 387,448 stop

and searches in the year ending March 2016, which represents a fall of 28 per cent on the previous year and the lowest number since data collection began in 2002. The number of arrests following a stop and search fell by 19 per cent in 2015/16. Sixteen per cent of stops led to an arrest, up two per cent on the previous period and the highest since collection began. Partial and provisional data

from 17 forces revealed that the outcome of the search was linked to the initial reason for the

Policy & Practice: Firearms officer recruitment could be jeopardised

The success of a campaign to recruit hundreds of extra firearms officers is being threatened by the way the service deals with the aftermath of incidents involving death and serious injury, the service’s national lead on armed policing has said.

Plans for an extra 1,500 firearms officers were announced earlier this year, but Deputy Chief Constable Simon Chesterman, the National Police Chiefs’ Council lead on armed policing, called the target a major challenge and added that one of the “greatest threats” to recruiting these officers is the service’s current post-incident procedures. The PFEW said the current Independent Police Complaints Commission (IPCC) guidelines require a detailed statement from officers immediately after an incident.

Mr Chesterman said: “If we get this wrong not only will we fail to recruit the people we need,

but we’ll also fail to keep hold of the ones we’ve got, with officers questioning if it’s worth it in terms of the impact on their career.

“If an officer puts a foot wrong when making their account they could go to prison, and that’s at the forefront of their mind when they are made to make a full statement.

“Firearms officers are very well-trained and very restrained. They don’t want to shoot people. It’s not a macho environment, as often perceived; it’s often a traumatic and highly emotional time with someone having potentially lost their life.”

Mr Chesterman added that advances in body-worn video are making the process more transparent and helping address concerns around collusion.

He said: “If an officer is wearing body-worn video, you not only capture the incident and immediate aftermath but also the journey back to the station, so any links to collusion between officers are removed.”

Discussing the issue of separating officers following an incident, Mr Chesterman supported the idea that IPCC investigators should be invited to sit in and watch officers giving their accounts, adding to openness and transparency.

The fallout from firearms incidents is threatening the recruitment of more police firearms officers

Pict

ure

© S

tuar

t Bol

ton

/ Sh

utte

rsto

ck

search in 20 per cent of stop and searches. Around three quarters of stops and search resulted in ‘no further action’.

Six times more likelyThe number of searches fell

across all ethnic groups. Searches on white individuals fell by 38 per cent, those on black and minority ethnic (BME) individuals fell by 13 per cent. Those from BME groups were three times more likely to be stopped and searched than those who were white. Those who are black or black British were over six times more likely to be stopped. The figures also reveal the overall

number of arrests fell by five per cent to 896,209 in the year ending

March 31, 2016, continuing a downward trend since a peak of 1.5 million arrests in 2008. There was also an 11 per cent increase in the number of people detained for more than 24 hours by police in England and Wales, bringing the total to 3,338.The College of Policing

has published an Authorised Professional Practice (APP) on stop and search powers following the first ever randomised trial with 1,300 officers across six forces. Available now on its website, it is the first national evidence-based standards for stop and search and aims to remove the potential for unconscious bias by officers.

15PNLD Police & Law Insight

POLI

CE

PO

LIC

Y &

PR

AC

TIC

EPolicy & Practice: MPs debate tougher sentencing for those who assault police

The Police Federation of England and Wales (PFEW) has welcomed a debate in Parliament on officer safety.The organisation, which

represents ranks up to inspector level, is campaigning to change the law to increase sentences for those who assault police officers.During the debate, MPs

resolved that assaults on officers are unacceptable and welcomed the work of the Independent Sentencing Council in drawing up guidelines.Federation research has revealed

that an officer is assaulted every 22 minutes, equating to 23,394 incidents in England and Wales last year. The PFEW said officer assaults are “vastly under-reported” and is calling for more accurate recording. Vice-Chair of the PFEW, Calum

Macleod called the debate

The Police Federation is campaigning for a change in the law to increase sentences for those who assault police officers

Pict

ure

© 1

000

Wor

ds /

Shu

tter

stoc

k

NEWAide Memoire: Counter Terrorism Powers

now available to download for police employees!

Terrorist is defined in section 40(1) of TACT:

A person who

has committed a specific offence, including

weapons training, possession of article for

terrorist purposes, collection of information,

terrorist finance and money laundering, directing

a terrorist organisation and membership or

support of proscribed organisations s 40(1)(a), or

is or has been concerned in the commission,

preparation or instigation of acts of terrorism

(CPI) s 40(1)(b).

Power of search - vehicle - section 43A of TACT

Powers of search - person - section 43 of TACT

Power of arrest - section 41 of TACT

Cordons - sections 33-36 of TACT

Contains:

“an important step in raising awareness among MPs and the public of the risks that police officers face on a daily basis”. “It was also about putting

in place measures to ensure

that those who assault police officers are held to account by the courts, and that sentences reflect those crimes – progress is, and will continue to be made,” added Mr Macleod.

16 PNLD Police & Law Insight

NPP

F ST

EP

2 LE

GA

L E

XA

M The following questions are taken from Blackstone’s Police Q&As 2015, the essential revision tool for all police officers sitting the NPPF Step 2 Legal Exam (formerly OSPRE Part 1).

Crime: Misuse of Drugs

Question 1

Question 2

Question 3

Constable YOUNG arrests SCOTT for drug-related offences and seizes several cannabis plants from SCOTT’s home address as evidence. Constable YOUNG places the plants in a detained property store and waters and feeds them to keep them alive for production at SCOTT’s trial. Before the trial, Constable YOUNG goes on holiday for two weeks and asks STRONG (a cleaner at the station) to water and feed the plants while he is away. STRONG does as he is asked but does not know that the plants are cannabis plants.

McCOURT and DAVIES are business partners. DAVIES uses her factory for the production of Ecstasy. McCOURT ensures that the premises are not disturbed by providing 24-hour security in the factory, and also provides transportation to the factory of the raw goods required for the production of Ecstasy. McCOURT neither visits the factory, nor has any direct contact with the security or transportation, but is aware of what happens at the factory. DAVIES never visits the factory either.

Constable HUDSON is searching BEACHAM when she finds two small plastic bags containing what she believes to be amphetamine (a Class B drug). She is in fact mistaken and the bags both contain cocaine (a Class A drug). Constable HUDSON arrests BEACHAM but decides to keep one of the bags to sell to a drug user she knows as Constable HUDSON, as well as being a police officer, is also a drug dealer. Constable HUDSON returns to her home address with the drug and is examining it when the police raid her home. The officers recover the small bag of cocaine, several items of drug paraphernalia and £20,000 in £20 and £10 notes.

With regard to the offence of possession with intent to supply (contrary to s. 5(3) of the Misuse of Drugs Act 1971), which of the following statements is true?

Who, if anyone, has committed the offence of cultivation of cannabis (contrary to s. 6 of the Misuse of Drugs Act 1971)?

A: Constable YOUNG only.

B: STRONG only.

C: Constable YOUNG and STRONG.

D: Neither Constable YOUNG nor STRONG commits the offence.

Who, if anyone, is guilty of unlawful production of a controlled drug under s. 4 of the Misuse of Drugs Act 1971?

A: McCOURT only.

B: DAVIES only.

C: Both of them.

D: Neither of them.

A: The offence of possession with intent to supply cannot be committed by Constable HUDSON as she was in lawful possession of the drug.

B: Constable HUDSON does not commit the offence because she believed the drug was amphetamine not cocaine.

C: The recovery of the drugs paraphernalia from Constable HUDSON’s home will be relevant evidence to show that she was an active drugs dealer but does not prove an intention to supply.

D: If Constable HUDSON were found guilty of this offence, the maximum term of imprisonment that she could be sentenced to would be 14 years.

Questions and answers reproduced with permission from Blackstone’s – www.blackstonespolice.com

17PNLD Police & Law Insight

NPP

F ST

EP

2 LE

GA

L E

XA

MAnswer 1 – C

Answer 2 – C

All that is required is that some element of attention to the plant has been carried out. It does not matter who you are or even if you have no idea that the plant is cannabis. Only those persons licensed by

the Secretary of State to cultivate cannabis may do so. Both the officer and the cleaner commit the offence; answers A, B and D are therefore incorrect.

Crime, para 1.6.8

The meaning of ‘produce’ and ‘concerned in production’ is defined by s. 37 of the Misuse of Drugs Act 1971, which states:

…‘produce’, where the reference is to producing a controlled drug, means producing it by manufacture, cultivation or any other method, and ‘production’ has a corresponding meaning;

Being concerned in production requires the

accused to take an identifiable role in the production. Both McCOURT and DAVIES take an identifiable role in the production in that, although they never visit the premises, they have guilty knowledge of its function and, but for their actions, the production may not take place. This makes option C the only possible correct answer.

Crime, para. 1.6.7

Answer 3 – CThe lawfulness or otherwise of possession is irrelevant; what matters is the lawfulness of the intended supply and Constable HUDSON’s intended supply is certainly not lawful, making answer A incorrect. All that is necessary in proving an offence under s. 5(3) is to show that the defendant had a controlled drug in his/her possession and intended to supply it to another (making answer B incorrect).If the substance in the defendant’s possession is

a Class A drug and he/she intended to supply it to another person, the fact that he/she thought the drug was some other type of drug does not matter (R v Leeson [2000] 1 Cr App R 233). Therefore, Constable HUDSON could face a life sentence (for Class A) rather than a maximum of 14 years imprisonment (Class B).

Crime, para. 1.6.5

18 PNLD Police & Law Insight

JOB

S in

ass

oci

atio

n w

ith A

llPo

liceJ

ob

s.co

.uk The latest police and police staff vacancies across the UK

For a complete list of current police and staff vacancies in England and Wales, visit www.allpolicejobs.co.uk

Contracts (Commercial and Procurement) SolicitorDerbyshire Police£41,502 to £48,369

Partnership Development Manager Hampshire Constabulary£40,506 to £44,548

Transferees: Police Constables and Detective Constables Avon and Somerset ConstabularyNational Pay Scales

Police Pension Scheme AdviserHertfordshire Constabulary£46,422 to £48,495

Contracts (Property) SolicitorDerbyshire Constabulary£41,502 to £48,369

Infrastructure ManagerSouth Yorkshire Police£55,080 to £56,151

Based at Ripley, Derbyshire, you will be required to travel throughout the counties of Derbyshire, Nottinghamshire, Leicestershire, Northamptonshire and Lincolnshire. Essential skills and experience required include professional legal qualification as a solicitor or barrister. It is also desirable that you have previous experience in commercial law, including drafting agreements and providing advice in connection with a wide range of contractual issues arising from the procurement of goods and services.

The purpose of this job is to drive and develop the partnership between Hampshire Constabulary and the University of Portsmouth. You will implement a development programme which derives significant academic, operational and service benefits

Avon and Somerset Constabulary are looking for police constables and detective constables, who have completed the National Level 1 Surveillance Course, to join our South West Regional Surveillance Team in order to provide support to the South West Region and the National CT Network in the investigation of terrorism and allied matters.

The postholder will be required to manage all aspects of the IT infrastructure supporting two key emergency services within Yorkshire and the Humber. You will need experience of working and delivering at a senior management level. You will be required to plan, develop and oversee a full range of specialist IS services and infrastructure that will deliver high-quality and cost-effective support to enable police operations.

Closing date: 25/11/2016 Closing date: 25/11/2016

Closing date: 8/12/2016

Closing date: 18/11/2016 Closing date: 22/11/2016

Closing date: 23/11/2016

Following recent pension changes and an increase in demands on forces and chief constables indischarging their pension scheme manager role, this position responds to an identified need for an experienced technical adviser to advise on scheme-wide pension issues.

Based at Ripley, Derbyshire, you will be required to travel throughout the counties of Derbyshire, Nottinghamshire, Leicestershire, Northamptonshire and Lincolnshire. Essential skills and experience required include professional legal qualification as a solicitor or barrister. It is also desirable that you have previous experience in the conveyancing and associated legal work concerning the sale, acquisition and leasing of police premises.

Working together

Empow

ering the publicw

ww

.askthe.police.ukC

ho

ose

yo

ur

ow

n S

olic

ito

rw

ww

.ask

aso

licit

or.

org

20 PNLD Police & Law Insight

LEG

ISLA

TIO

N &

STA

TUTO

RY

INST

RU

ME

NTS The Immigration Act 2016

(Commencement No. 2 and Transitional Provisions) Regulations 2016, No.1031

The Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016, No. 1037

Either in force or coming into force soon (see below)

Coming into force 17 December

These Regulations bring into force specified provisions of the Immigration Act 2016 (‘the 2016 Act’) and make transitional provision in connection with the coming into force of those provisions. Regulation 2 sets out the

provisions which came into force on 1 November 2016. Sections 39, 40 and 45 of, and Schedule 7 to, the 2016 Act came into force on that date for the limited purpose of making subordinate legislation. The provisions of the 2016 Act relating to language requirements for public sector workers will come into force on 21 November 2016, in accordance with regulation 3, and the remaining provisions of the 2016 Act relating to labour market enforcement undertakings and orders which are not already in force will come into force on 25 November 2016, in accordance with regulation 4. Regulation 5 sets out the provisions which will come into force on 1 December 2016, including sections 39 and 40, which are brought into force for all remaining purposes on that date. Regulation 6 makes transitional

provision in connection with the coming into force of the provisions relating to private hire vehicles in section 37 of, and Schedule 5 to, the 2016 Act, and pending the introduction of immigration bail by virtue of section 61 of the 2016 Act, which is yet to

This Order makes provision in consequence of the Human Trafficking and Exploitation (Scotland) Act 2015 (‘the 2015 Act’). Article 2 confers on immigration

officers not below the rank of chief immigration officer a power to detain vehicles, ships

The relevant documents on PNLD have been or will be updated.

The relevant documents on PNLD will be updated.

be commenced. In particular, regulation 6 ensures that those who may be on temporary admission or release from detention are not disqualified from driving a hackney carriage or carrying on a licensable activity, provided that they comply with any restrictions as to their employment, which are treated for these purposes as conditions of leave. Regulation 7 makes similar provision in connection with the coming into force of the provisions relating to illegal working closure notices in section 38 of, and Schedule 6 to, the 2016 Act, to ensure that those who are on temporary admission or release from detention do not constitute ‘illegal workers’, provided that they comply with any restrictions as to employment which may be imposed as a condition of their temporary admission or release.

or aircraft where a person has been arrested for the offence of human trafficking under section 1 of the 2015 Act. The power will be available if that officer has reasonable grounds to believe that the property in question may be subject to forfeiture under section 14 of that Act if the arrested person were convicted. This mirrors a power already conferred on constables in Scotland by section 13 of that Act. Property detained under this article may be held until solemn proceedings against the arrested person are concluded or a decision is taken not to begin solemn proceedings against that person. Any person who owns or possesses under a hire-purchase agreement a detained vehicle ship or aircraft, or who is charterer of a detained ship or aircraft, may apply for release of the relevant property. Article 3 and the Schedule make

consequential modifications to primary legislation in consequence of the creation of two new Scottish statutory offences of human trafficking (section 1 of the 2015 Act) and slavery, servitude and forced or compulsory labour (section 4 of the 2015 Act) and the repeal of existing offences in section 22 of the Criminal Justice (Scotland) Act 2003, section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and the Criminal Justice and Licensing (Scotland) Act 2010.Article 4 makes saving and

transitional provisions in relation to certain consequential modifications in the Schedule.

Essential Blackstone’s titles by PNLDGet an exclusive 20% discount when ordering titles via PNLD through the

Oxford University Press website. Use code ALFLY5FSubstantial discounts are available online when purchasing a PNLD handbook with a 12 month subscription to the database

£27.99£22.39

£29.99£23.99

£34.99£27.99

£34.99£27.99

£34.99£27.99

Essential titles from Blackstone’s, endorsed by the PNLD

Save money when you buy both Operational Handbooks

Blackstone’s... Your Partner in Professional Policing

1

Get an exclusive 20% discount at the stand, or when ordering titles through the Oxford University Press website. Use code EXBPNLD15*.

*Offer valid until 30/11/15

£27.99£22.39

£29.99£23.99

£29.99£23.99

£34.99£27.99

£34.99£27.99

£34.99£27.99

Substantial discounts are available online when purchasing a PNLD handbook with a 12 month subscription to the database

Essential Blackstone’s titles by PNLDGet an exclusive 20% discount when ordering titles via PNLD through the

Oxford University Press website. Use code EXBPNLD15

£29.99£23.99

23PNLD Police & Law Insight

CA

SE L

AW

& L

EG

AL

QU

ER

IESPNLD REF: C3411 R (on the application of Robson) v CPS 2016

Guidance which stated that a conditional caution could not be offered for hate crime or domestic violence offences, had to be interpreted to permit exceptions.Citation: [2016] EWHC 2191 (Admin) Court: Queen’s Bench Division

Summary Held

R had damaged two vehicles belonging to her former partner by scratching a term of abuse on them. In interview R made full admissions, had no previous convictions and offered to pay for the damage done. She was charged with criminal damage all the same. At court, her solicitors asked for this decision to be reviewed contending that there was no public interest in prosecuting her and a conditional caution would have sufficed. Her former partner (the victim) also agreed and had written to the police to this effect. CPS were however of the view that the offence was one of domestic violence and therefore a caution could not be offered. They relied upon the DPP’s Guidance on Adult Conditional Cautions, which stated that a conditional caution could not be offered for any offence classified as a hate crime or domestic violence.R applied for judicial review of

this decision stating that to apply the guidance to the letter without taking individual circumstances into account amounted to an unlawful restriction on a prosecutor’s discretion to issue a caution under the Criminal Justice Act 2003.

For more information on the legal issues concerning this case, please go to the PNLD website and search on the following:PNLD document D12506 – Criminal Justice Act 2003 – conditional cautionsPNLD document S1314 – CPS – Director’s Guidance on Adult Conditional Cautions

good reasons why cautions would be inappropriate in the majority of domestic violence cases. However, the type of case eligible for conditional cautions had not been restricted in either the 2003 Act or the code of conduct issued pursuant to section 25 of that Act.There was however, no reason

to declare the guidance unlawful. Its drafting had been thought about very carefully to deal with an important societal problem. However, there might be exceptional cases where a different outcome would be required. The decision-maker in the instant case had interpreted the guidance as permitting no exceptions to the policy, and that was wrong.

Application granted. Decision to prosecute quashed and case remitted back to court.Prosecutorial judgement was

clearly a matter for the DPP, not the courts. It was an established principle of public law that a policy could not restrain the decision-maker. A defendant would have to persuade the court that there was an abuse of process for there to be judicial review of the decision to prosecute. However, in the instant case, the application for judicial review was permissible only because both sides accepted that the DPP’s guidance was in question.The DPP’s Guidance on Adult

Conditional Cautions clearly excluded any offence classified as a hate crime or domestic violence and there were plainly

24 PNLD Police & Law Insight

CA

SE L

AW

& L

EG

AL

QU

ER

IES PNLD REF: C3410 R (Manser) v Metropolitan Police

Commissioner 2015

Police mistaken disclosure of as to seriousness of injuries of victim did not render a caution for ABH invalid.Citation: [2015] EWHC 3642 Admin Court: Queen’s Bench Division

Summary

M accepted a simple caution by the Metropolitan Police Commissioner for an alleged offence of assault occasioning actual bodily harm. Paragraph 76 of the Ministry of Justice guidance ‘Simple Cautions for Adult Offenders’ required a police officer to inform a person of the evidence against them and the decision to offer the caution. M had accepted the caution on the basis that she had been informed that she had caused the alleged victim, D, to lose her front tooth, a split lip and a broken nose. However, the details of investigation record provided that a doctor had stated that D had a suspected broken nose.M sought judicial review. The

Held

For more information on the legal issues concerning this case, please go to the PNLD website and search on the following:PNLD document D413 – PACE – consultation with Director of Public ProsecutionsPNLD document D12506 – Criminal Justice Act 2003 – conditional cautionsPNLD document S1314 – CPS – Director’s Guidance on Adult Conditional Cautions

Log onto the PNLD website to view other recent cases:R (on the application of AR) v Chief Constable of Greater Manchester and another 2016 (PNLD REF: C3409 – Case considering intent to injure where a person introduces an article into a public place prior to using it offensively there

Re E (a child) 2016 (PNLD REF: C3408) – Where there was an interruption to the interview of a child which resulted in the child leaving the room for an hour, the fact that the child changed their approach entirely after the interruption, without any record of what was said in between, undermined the evidence.

RSPCA v McCormick and others 2016 (PNLD REF: C3399) – For an offence of animal fighting to be committed the animal had to be the subject of

some control or restraint so that its ability to escape was prevented.

Laporte v Commissioner of Police for the Metropolis 2014 (PNLD REF: C3400) – Police had lawfully removed protesters from a council meeting as they had become trespassers when the protest got out of hand.

R v Hayes 2015 (PNLD REF: C3398) – The extent of a banker’s dishonesty was to be judged by the ordinary standards of honest people, not by the standards of his colleagues or the industry.

R v Valujevs and another 2014 (PNLD REF: C3394) – An unlicensed gangmaster could be in a position trust for the purposes of section 4 of the Fraud Act 2006.

The application would be dismissed.M had not established that the

statements that she had caused D to lose a front tooth and a split lip were inaccurate. However, the statement that M had caused D

a broken nose was inaccurate. If the statement had been that M had caused a suspected broken nose, that would not have been inaccurate on the evidence. However, when the evidence of the injuries caused to D by M were considered as a whole, there had been no clear breach of the guidelines. Unless the police had appreciated that the evidence had only justified a statement that D had sustained a suspected broken nose and not a broken nose, and there was no evidence that they had been aware of that inaccuracy, they would legitimately have considered that they had fulfilled their obligations under para 76 of the guidance.

essence of her case was that the Commissioner’s failure to make adequate and accurate disclosure, in accordance with para 76 of the guidance, of the medical evidence in relation to the seriousness of D’s injuries made the caution unlawful and one that, in all the circumstances, should be quashed.

25PNLD Police & Law Insight

CA

SE L

AW

& L

EG

AL

QU

ER

IES

First description of suspect by witness, to be given to a suspect or solicitor

Question: PACE, Code D, paragraph 3.1 states that “a record shall be made of the suspect’s description as first given by a potential witness” and that a copy shall, where practicable, be given to the suspect or their solicitor. Can you provide some guidance on what the first description actually is? Is it the description in the police log recorded by a call operator taking the 999 call, which may only be brief, or is it the first full description given to an officer and recorded in a pocket notebook or formal statement?

Answer: If several records have been created showing the eyewitness’ original description of the suspect (eg the 999 call record, notes in a pocket notebook, a formal witness statement etc), then as long as they don’t contradict each other (eg the witness initially describes dark hair, but later states blonde hair), we can see no reason why you cannot use any (or all) of those records, as long as they portray the original description given by the witness, and comply with

Code D, paragraph 3.1(a) (PNLD doc D10515), (ie they are in a visible and legible form, allowing details of the description (as first provided by the witness) to be produced from them).CPS guidance appears to agree

with this view, stating:“Police should forward copies of all first descriptions given by potential witnesses and recorded in accordance with Code D. This may also include photos of the suspect. Almost invariably, the evidence available to the prosecutor will be the statements

of the witnesses. However, care should be taken to consider other source material, such as crime reports that may reveal the first descriptions, police pocketbook entries, tapes of or drafts of preliminary interviews with witnesses, draft statements and interviews with persons who are now witnesses but who may have been interviewed initially as suspects and crime reports.”(see www.cps.gov.uk/legal/h_to_k /identification_of_suspects/ at paragraph 2.6)

Your legal queries answeredOur highly accredited team of legal advisers offer a wealth of legal knowledge and professional

expertise. We receive, research and respond to many legal queries from our customers, often complex in nature. Below is our response to a recent query.

insightPolice & Law

is published by Chestnut Media, on behalf of PNLDwww.pnld.co.uk

For more information, and to subscribe, please contactmarketing@pnld.co.uk

#PoliceLawInsight

Missed a previous version? Don’t worry, we have them saved for you!

Conference 2016 September/October 2016 July/August 2016

Read previous versions