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DigestJuly 2017A digest of police law, operational policing practice and criminal justice

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OFFICIALDigest July 2017

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OFFICIAL

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OFFICIALDigest July 2017

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Overview 4Legislation 5 Recently announced bills 5 The European Union (Withdrawal Bill) 5 New Legislation 6 Criminal Justice (European Investigation Order) Regulations 2017 6Case law 7 Crime 7 R v Ajayi & Anor [2017] EWCA Crim 1011 7Policing practice 9 Crime 9 Drug strategy to safeguard vulnerable victims and stop substance misuse 9 Plans on further action to tackle knife crime announced 9 Action plan to tackle acid attacks announced 10 British Transport Police release annual crime statistics 11 Consultation on Codes of Practice to the Proceeds of Crime Act 2000 and the Anti-Terrorism, 11 Crime and Security Act 2001

Police 12 Major expansion of HMIC to take on inspection of fire and rescue in England 12 £7.5 million awarded for a National Police Welfare Service 12Criminal justice system 13 Inspection of disclosure practices across the CJS 13 Conflict, Stability and Security Fund 14 Proposed new Data Protection Bill 14

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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.

This month we cover the following:

• a case report on cuckooing

• the inspection of disclosure practices across the CJS

• British Transport Police (BTP) annual crime statistics

• regulations implementing the directive on the European Investigation Order (EIO)

• the new drug strategy

• plans to amend the law relating to knife crime

• an action plan to tackle acid attacks

• the expansion of HMIC

• funding for a national police welfare service

• the Conflict, Stability and Security Fund

• the proposed new Data Protection Bill.

We also examine the progress of proposed new legislation through Parliament.

Overview

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LegislationRecently announced billsThe European Union (Withdrawal Bill)

Also known as the Repeal Bill, the European Union (Withdrawal) Bill was introduced in the House of Commons on 13 July 2017. The Bill will end the supremacy of EU law over UK law but will ensure that existing provisions are maintained in UK law when the country exits the EU. Its purpose is to ensure legal continuity, minimising disruption for citizens and businesses and keeping the internal market stable.

The Bill’s four core functions include:

• repealing the European Communities Act 1972, which gave EU law primacy over domestic law

• converting EU law into domestic law

• creating temporary powers to make secondary legislation to correct laws that would no longer operate appropriately once the UK has left the EU

• maintaining the current scope of devolved decision-making powers.

Provision has also been included for all pre-exit case law of the Court of Justice of the European Union to remain binding as decisions of the Supreme Court or the High Court of Justiciary in Scotland.

The House of Commons has referred to the Bill as ‘one of the largest legislative projects ever undertaken in the UK’.

Progress

The Bill will have its second reading after summer recess on 7 and 11 September 2017, which will allow MPs their first opportunity to debate its principles and themes.

Access the Bill in full at services.parliament.uk/bills

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OFFICIAL 6 Legislation New Legislation

New legislationCriminal Justice (European Investigation Order) Regulations 2017

The regulations bringing into effect Directive 2014/41/EU of the European Parliament and of the Council regarding the EIO came into force on 31 July 2017. The date for the Directive to be implemented into UK law was 22 May 2017, however, this was delayed by the general election.

The regulations give judicial authorities the power to make an EIO on the application of a prosecutor, a defendant or accused in criminal proceedings or a constable acting with the authority of a prosecutor. Prosecuting authorities listed in Schedule 1 (designated public prosecutors) can also make an order.

An EIO is an order made under regulation 6 or 7, specifying one or more investigative measures to be carried out in a participating state for the purpose of obtaining evidence for use in a domestic (UK) criminal investigation or proceedings. An order can be made where the authority is satisfied that:

• a domestic criminal investigation or prosecution exists

• it is necessary and proportionate to make the order

• the investigative measures to be specified in the order could lawfully have been ordered or undertaken under the same conditions in a similar domestic case.

Part 3 of the regulations deals with EIOs received from a participating state, including the time limits that apply.

Access the regulations in full at legislation.gov.uk.

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Case lawCrimeR v Ajayi & Anor [2017] EWCA Crim 1011

The cases against the two defendants were unrelated but were listed together so that the Court of Appeal (CA) could consider a common feature between the two, known as ‘cuckooing’. Otherwise known as ‘running county lines’, cuckooing involves drug dealers from large metropolitan areas travelling to smaller provincial communities to sell drugs and set themselves up in local premises from which they operate.

Cuckooing almost always exploits children and/or vulnerable adults, coerced to assist with accommodation and supply. It was stressed that the judgment should not be read to undermine the seriousness of traditional forms of street dealing. It sought, however, to identify the sophistication of cuckooing operations which reflect a further degree of criminality and which judges should be able to recognise.

While neither Ajayi nor Limbi occupied a central organising role, the court attended to factors consistent with a leading role in the drug supply line, such as expectation of financial gain, influence on others in the chain and directing buying and selling on a commercial scale. Therefore, someone performing the role of local manager or enforcer may be considered by the court to be in a leading role. Those not in a leading role but still involved in cuckooing will ordinarily be recognised as having occupied a significant role.

The court will assess the culpability of those involved by factors such as coercion, influence or reward and make an upward move from the sentencing starting point, if appropriate. In the same guideline, those recognised by the court as a ‘vulnerable recruit’ would have their positions mitigated. The CA stressed that there would be no departure from the Sentencing Council’s Drug Offences Guideline but that careful assessment of the evidence, the role and consideration of cuckooing as an aggravating feature is required.

Ajayi had been convicted of multiple counts of offering to supply and possession with intent and had subsequently submitted an appeal to the CA arguing that his sentence was too long (six and half years concurrent on each count). Though living in London, he was arrested in Suffolk at the home of a vulnerable heroin addict (Prior) whom he’d persuaded to allow the property to be used as a base for dealing in return for drugs. The evidence in the case pointed towards a cuckooing operation.

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OFFICIAL 8 CrimeCase Law

The court recognised this in their decision making and deduced that, in terms of culpability, the case fell towards the upper end of a significant role by virtue of Ajayi’s operational role and his involving Prior by pressure, intimidation or reward. His application was refused.

Limbi was sentenced on two counts of possession with intent (concurrent two year Detention and Training orders). The Crown argued that Limbi had travelled to Portsmouth from London in order to sell drugs. Limbi had been involved in gang activity and attributed his being in Portsmouth as acting under instruction from a senior gang member to whom he owed money. The offence was purportedly a means of repaying this debt. Limbi had 18 previous convictions for a number of different offences, including robbery and battery. In 2015, he lost sight in one eye from an acid attack and consequently suffered post-traumatic stress disorder.

He appealed, submitting that his sentence was excessive and that the sentencing judge had not taken due account of the post-traumatic stress disorder or his mental health difficulties. Recognising this as a cuckooing operation, the CA queried the trial judge’s assessment of Limbi having occupied a significant role. In spite of this, however, in recognition of the hallmarks of coercion and mitigation for youth and mental health difficulties, the sentence was justified given the defendant’s previous convictions and that his involvement in this matter was a result of previous criminal associations. His sentence was upheld.

Read the case in full at http://www.bailii.org/ew/cases/EWCA/Crim/2017/1011.html

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Crime

Drug strategy to safeguard vulnerable victims and stop substance misuse

On 14 July 2017, the home secretary launched the government’s new drug strategy. The strategy confronts the evolving threat of new drugs such as psychoactive substances, image and performance-enhancing drugs, chemsex drugs and the misuse of prescribed medicines.

The approach recognises the need to combine the efforts of all stakeholders. The strategy will bring together the police, health partners, local partners and communities to support and protect those most vulnerable. These include the homeless, victims of domestic abuse and those with mental ill health. More specifically, the measures will focus on reducing demand, restricting supply, supporting recovery and driving global action.

The home secretary will chair a new cross-government Drug Strategy Board to drive action and ensure the strategy is delivered by all partners.

Access more information about the strategy at gov.uk

Plans on further action to tackle knife crime announced

The home secretary has announced her intention to amend the law to restrict the online sale of knives and ban possession of dangerous or offensive weapons on private property. The new legislation will attempt to eliminate undetected underage sales by banning delivery of knives to a private property, making collection in store compulsory and obliging the retailer to check the buyer’s age.

In answer to a police appeal for more powers in relation to seizing outlawed weapons (throwing stars, zombie knives etc.) in a private residence, the proposed measures will ban possession on private property. Existing law on possessing a knife in a public place and school premises may be extended to include the grounds of other educational establishments such as universities.

The initiative supports Operation Sceptre, a coordinated police strategy on tackling knife crime which began on 17 July 2017 involving 32 forces and which included:

• weapon sweeps

• test purchases

• targeted use of stop and search

• surrender bins.

Policing practice

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The Home Office will launch a new anti-knife campaign in the autumn. Future plans will broaden existing youth violence intervention projects in hospital emergency departments. £500,000 will be pledged towards other anti-knife community projects.

Access further information at gov.uk

Action plan to tackle acid attacks announced

The Home Office has announced plans to collaborate with the Ministry of Justice to undertake a comprehensive review of the criminal justice response to acid attacks in light of the recent rapid rise in incidents. The National Police Chief’s Council (NPCC) reported more than 400 acid or corrosive substance attacks between November 2016 and April 2017. The Action Plan’s intention is to assess whether existing legislation, victim support and current sentencing powers are sufficient, given the gravity of the offence. This includes guidance to the police on prevention, searching potential perpetrators and victim support.

The plan will direct prosecutors to recognise acid and other corrosive substances as dangerous weapons and will clarify directions on proving intent. The review may extend to amend the Poisons Act 1972 to include other harmful substances and re-categorise sulphuric acid as a reportable substance and therefore only purchasable via licence. NPCC findings indicate that bleach, ammonia and acid were the most frequently used substances in attacks. Collaboration with retailers will also take place to restrict the sale of acids and other corrosives. Members of the British Retail Consortium have voluntarily agreed to stop selling sulphuric acid products.

The plan will include measures to:

• improve police recording and reporting

• commission research into motivation

• ‘end to end’ victim support throughout the criminal justice process

• ensure victim impact statements are completed in every case so that there is a true understanding of the full impact of the attack.

The police will be encouraged to draft community impact statements to show the effect of attacks on the broader community.

Access further information at gov.uk

CrimePolicing practice

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British Transport Police release annual crime statistics

Statistics released by the BTP marked a 7 per cent increase in recorded crime on passenger railway journeys in England, Scotland and Wales, indicating 16 crimes per one million journeys. The figure stands against a background of 17.5 million extra journeys in 2016/17 compared to the previous year.

Some statistics reflect a positive trend compared to figures collected ten years ago: recorded crimes are now more than a third lower than they were in spite of journeys taken increasing by 44 per cent. Since 2006/7, robbery has fallen by 82 per cent, theft of passenger property by 47 per cent and criminal damage by 55 per cent. In 2016/17, effective collaborative action between BTP, local forces, railway staff and the public led to 1,837 life-saving interventions on the railway, a 45 per cent rise on the previous year.

There was, however, a 12.5 per cent increase from the 2015/16 reporting period in violence against the person, with the majority of offences being common assault. The BTP initiative ‘We Stand Together’ aims to raise awareness of hate crime, with a 23 per cent increase in reported incidents compared to last year (2,756 offences). A 9 per cent increase in sexual offences was reported, a problem tackled by BTP via their ‘Report It to Stop It’ campaign.

Chief Constable Paul Crowther attributes the increase in recorded crime to the rail infrastructure expanding and becoming increasingly busier. He also recognised that the culture of crime reporting had changed, with increased confidence from victims and witnesses as a result of targeted campaigns and BTP’s 61016 text reporting service.

For further information, access the full article at btp.police.uk

Consultation on Codes of Practice to the Proceeds of Crime Act 2000 and the Anti-Terrorism, Crime and Security Act 2001

The Proceeds of Crime Act 2000 (POCA) and the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) have been amended by the Criminal Finances Act 2017. As a result, the Home Office has launched a consultation on the codes of practice that govern the use of some of the powers under those Acts. The codes will then be subject to parliamentary approval before coming into force.

There are six separate codes on which the Home Office is seeking views. They cover:

• powers to search seize and detain property

• exercising investigation powers under POCA

• using search powers for recovering criminal cash

• powers to seize certain listed assets

• guidance for prosecutors on the operation of POCA investigation powers

• exercising various new seizure, detention and forfeiture powers created by the Criminal Finances Act 2017.

The consultation closes at 11:45pm on 25 August 2017. Access it in full at https://www.gov.uk/government/consultations/proceeds-of-crime-act-2002-and-anti-terrorism-crime-and-security-act-2001-codes-of-practice

CrimePolicing practice

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Police

Major expansion of HMIC to take on inspection of fire and rescue in England

In July, the Home Office agreed that HMIC would undergo a major expansion to take on the role of inspectorate of fire and rescue authorities in England. The inspectorate will help support the continuous improvement of this critical public service and support fire and rescue authorities in becoming even more effective. It will also support continuing collaboration between policing and fire and rescue services, offering the opportunity for future inspections of joint areas of work or where support functions have been combined.

The inspectorate will consider how efficient and effective fire and rescue authorities are. The aim is to highlight good practice and identify areas where they need to improve, so that action can be taken. This will include:

• how services prevent and respond to incidents

• whether the service provides value for money

• reviewing the service’s leadership, training, diversity, values and culture.

It replaces the current system of peer review, where fire and rescue services inspect one another.

Find the full article at gov.uk

£7.5 million awarded for a National Police Welfare Service

The home secretary has awarded £7.5 million to pilot a new national police welfare service to provide enhanced welfare support for officers. The funding will come from the Police Transformation Fund and will be spread over three years. The initiative is in response to recognition of the challenges imposed on officers’ physical and mental wellbeing as a consequence of their duties.

The service will complement existing provisions for promoting staff welfare given by the College of Policing and at force level. The College will collaborate with the Police Federation to develop plans for the pilot which, if successful, will lead to the service starting across the country between 2018 and 2020.

Access the Government press release at gov.uk

Find the College of Policing response at college.police.uk

PolicePolicing practice

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Criminal justice systemInspection of disclosure practices across the CJS

A joint inspection by HM Crown Prosecution Inspectorate (HMCPSI) and HMIC has found widespread failures across the Criminal Justice System when it comes to disclosing evidence. The inspection was carried out between January and March 2017 and examined 146 Crown Court case files. The cases originated from seven specialist and non-specialist police forces.

Inspectors found extensive issues in the way unused non-sensitive disclosure material is recorded by the police, with 22 per cent of schedules found to be wholly inadequate. It found that officers often compiled lists, rather than explaining their contents to assist the prosecutor. Prosecutors, in turn, were not requesting a description of the items, preventing them from making any meaningful review. The lack of proper case supervision by the police was a significant cause for concern and 78 per cent of the files examined were marked either poor or fair.

As a result of the inspection, the following recommendations have been made:

Immediately:

• all disclosure issues relating to unused material must be identified at the charging stage.

Within six months:

• the CPS are should comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police

• police forces should improve their supervision of case files with regard to handling unused material

• the CPS Compliance and Assurance Team are to begin dip sampling

• all police forces are to establish the role of dedicated disclosure champion of senior rank

• a system of sharing information should be provided between CPS areas and headquarters to monitor performance

• CPS and police should develop effective communications processes.

Within 12 months:

• the College of Policing should introduce a disclosure training package

• the CPS and police should review their respective digital case management systems.

Access the report in full at justiceinspectorates.gov.uk

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Conflict, Stability and Security Fund

The Conflict, Stability and Security Fund (CSSF) provides development and security support to countries at risk of instability or conflict. The work of the CSSF is directly relevant to UK policing because the security of the UK and its wider international interests are directly affected where other countries are at risk of conflict or instability.

The aim of the CSSF is to provide support to help reduce this risk in the countries where the UK has key interests. The CSSF, the UK and international partners work together to ensure that we are more secure from threats such as terrorism, corruption and illegal migration or trafficking.

The CSSF’s strategic direction is set by the National Security Council (NSC). It is chaired by the prime minister and is steered by the aims set down in the 2015 Strategic Defence and Security Review and the UK Aid Strategy. The CSSF works to implement these aims by combining defence, diplomacy, and development assistance in each country. Parliament scrutinises the CSSF through the Joint Committee on the National Security Strategy (JCNSS).

To learn more about the CSSF, please visit gov.uk

Proposed new Data Protection Bill

The government intends to strengthen existing data protection laws via a new Data Protection Bill. The Bill will secure greater control over personal data with an emphasis on privacy and accountability. Its provisions will include:

• erasing of data on request

• expanding the definition of ‘personal data’ to include IP addresses and cookies

• easier withdrawal of consent for personal data use

• requiring explicit consent for processing sensitive personal data and greater control of data on children.

New regulations will extend to business data management to ensure greater security. The Information Commissioner’s Office will be given the power to promote consumer interests by imposing fines of up to £17 million for serious data breaches. Organisations processing high risk data will be obliged to perform impact assessments to ensure understanding of security and risk. Protection will be given under criminal law to penalise organisations which, through reckless data management, have allowed individuals to be identified from anonymised data.

The Bill will integrate the EU’s General Data Protection Regulation. The planned introduction of the new rules in May 2018 is intended to ensure stability of the digital economy after Brexit.

The Bill is still at drafting stage but a government press release on the issue can be found at gov.uk

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