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DigestJune 2015A digest of police law, operational policing practice and criminal justice

OFFICIALDigest June 2015

© College of Policing (2015)

OFFICIAL

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Overview 5Legislation 6 Statutory Instruments 6 The Road Safety Act 2006 (Consequential Amendments) Order 2015 6 The Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: 6 Code of Practice) (England and Wales) Order 2015

The Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) 7 (England and Wales and Scotland) Order 2015

The Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: 8 Code of Practice) (England and Wales) Order 2015

The Proceeds of Crime Act 2002 (Investigations: Code of Practice) 9 (England and Wales) Order 2015

The Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence 10 Act 1984) Order 2015

The Crime and Courts Act 2013 (Commencement No. 12) Order 2015 10 The Serious Crime Act 2015 (Commencement No. 1) Regulations 2015 11 The Proceeds of Crime Act 2002 (Investigations in different parts of the 11 United Kingdom) (Amendment) Order 2015

The Crime and Courts Act 2013 (Commencement No. 13 and Savings) Order 2015 12 The Policing and Crime Act 2009 (Commencement No. 10, Transitional Provision 13 and Savings) Order 2015

New legislation 15 Modern Slavery Act 2015 15Case law 17 Evidence and procedure 17 R (on the application of Chatwani and others) v The National Crime Agency 17 and Anor [2015] EWHC 1283 (Admin)

Human rights 27 R (on the application of Catt) (AP) (Respondent) v Commissioner of Police 27 of the Metropolis and another [2015] UKSC 9

Financial investigations 35 R v GH [2015] UKSC 24 35

Contents



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Policing practice 46 Crime 46 Crime in England and Wales, year ending December 2014 46 New offence of illegal working proposed 46 Diversity 47 Follow up to Joint review of disability hate crime 47 Police 48 Code of Practice Issued Under Section 377A of the Proceeds of Crime Act 2002 48 (England and Wales)

Guidance on the amendments to the Proceeds of Crime Act 2002 50 Home Office Circular 012/2015: Police and Criminal Evidence Act 1984 (PACE) 51 Code of Practice A (stop and search)

RIPA Codes updated 51 ONS publish statistical release on police powers and procedures in England 52 and Wales for year ending 31 March 2014

Training and development 55 Equality and Human Rights Commission to support the police with new stop 55 and search training

Criminal justice system 56 National Security Council discuss new Counter-Extremism Bill 56 Home Office Circular 008/2015: Serious Crime Act 2015 – Clarification 57 Dangerous Dog Offences Consultation Closing 57 Home Office publish revised framework document for the National Crime Agency 59 Safety in Custody Statistics England and Wales: Deaths in prison custody to 62 March 2015. Assaults and Self-harm to December 2014

Home Office Circular 018/2015: Consolidation of the Misuse of Drugs 63 (Designation) (England, Wales and Scotland) Order 2001



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

There are reports of cases concerning:

• the retention of material seized as a result of an unlawful search warrant

• whether police practice governing retention is lawful or contrary to article 8 of the ECHR

• whether an arrangement to receive and retain money rendered the property criminal property for the purposes of the Proceeds of Crime Act 2002.

We look in detail at the:

• Criminal Justice Joint Inspection follow up review into disability hate crime

• new Code of Practice on the Proceeds of Crime Act 2002 and associated Home Office guidance

• most recent Ministry of Justice Safety in Custody statistics

• new stop and search training programme for police officers.

We also look at:

• the revised framework document for the National Crime Agency

• Home Office circular 012/2015: Police and Criminal Evidence Act 1984 (PACE) Code of Practice A (stop and search)

• the latest statistical releases from Office for National Statistics on crime in England and Wales and on police powers and procedures

• the proposed new offence of illegal working.

The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised.

Overview



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Legislation

Statutory InstrumentsSI 2015/583 The Road Safety Act 2006 (Consequential Amendments) Order 2015

This Order comes in to force on 8 June 2015.

It provides for consequential amendments of enactments in connection with the commencement of section 10 of and Schedule 3 to the Road Safety Act 2006 (‘the Act’).

Article 2 gives effect to Schedule 1 to this Order. Schedule 1 Part 1 provides for the primary legislation specified in column 1 of the table to be repealed to the extent indicated in the second column of the table. Schedule 1 Part 2 provides for the subordinate legislation specified in column 1 of the table to be revoked to the extent indicated in the second column of the table.

Article 3 gives effect to Schedule 2 to this Order. Schedule 2 Part 1 amends primary legislation in consequence of the Act and Schedule 2 Part 2 amends subordinate legislation in consequence of the Act.

SI 2015/612 The Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) (England and Wales) Order 2015

This Order, which extends to England and Wales only, came into force on 1 June 2015.

It brings into operation the revised code of practice made pursuant to section 377A of the Proceeds of Crime Act 2002 (‘the Act’) in connection with the exercise by—

• the Director of Public Prosecutions and the Director of the Serious Fraud Office of functions under Chapter 2 of Part 8 of the Act (‘the relevant Directors’); and

• any other person, who is the relevant authority by virtue of section 357(9) of the Act in relation to a confiscation investigation, of functions the person has under Chapter 2 of Part 8 of the Act in relation to England and Wales as the relevant authority (‘a specified person’).



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Chapter 2 of Part 8 relates to England and Wales and Northern Ireland, however the revised code of practice does not apply in relation to Northern Ireland. In Northern Ireland, the previous version of the code continues to apply.

Part 8 of the Act concerns the investigations permitted under the Act, of which there are five kinds (confiscation investigations, civil recovery investigations, detained cash investigations, money laundering investigations and exploitation proceeds investigations: see section 341 of the Act).

The relevant Directors have various functions under Chapter 2, connected with their roles as:

• appropriate officers who can carry out civil recovery investigations

• prosecutors who can apply to court for disclosure orders under section 357 of the Act in relation to civil recovery investigations and certain confiscation investigations and

• persons who may request assistance under section 375A of the Act if they think that there is relevant evidence pertaining to a civil recovery investigation, a detained cash investigation or an exploitation proceeds investigation, in a country or territory outside the United Kingdom.

Under section 357(9) of the Act, the Secretary of State can by order specify a person as a prosecutor. A specified person is a relevant authority under section 357 of the Act and is able to apply to court for a disclosure order under that section in relation to a confiscation investigation.

Article 3 of the Order provides that the revised code of practice applies to the exercise of functions on and after 1 June 2015, even if the exercise of a function began before that date.

SI 2015/705 The Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) (England and Wales and Scotland) Order 2015

This Order, which does not extend to Northern Ireland, came into force on 1 June 2015.

It brings into operation the revised code of practice made pursuant to section 292 of the Proceeds of Crime Act 2002 (the 2002 Act) in connection with the exercise by officers of Revenue and Customs and, in relation to England and Wales only, constables and accredited financial investigators, of the powers conferred by virtue of section 289 of the 2002 Act. The revised code of practice does not apply in relation to Northern Ireland, where the previous version of the code continues to apply.

Section 289 of the 2002 Act permits officers of Revenue and Customs, constables and accredited financial investigators to search persons, vehicles and premises for cash which is derived from, or intended for use in, unlawful conduct.

Statutory InstrumentsLegislation



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By virtue of section 24 of the UK Borders Act 2007, Chapter 3 of Part 5 of the 2002 Act (which includes both sections 289 and 292 of the 2002 Act) applies to an immigration officer as it applies in relation to a constable subject to modifications made by that section. Immigration officers may exercise the powers in England and Wales and Scotland.

Article 3 of the Order makes provision in relation to persons who begin exercising any power conferred by virtue of section 289 of the 2002 Act before the revised code of practice comes into operation and continue to do so after it has come into operation.

SI 2015/730 The Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) (England and Wales) Order 2015

This Order, which came into force on 1 June 2015, brings into operation the code of practice made pursuant to section 47S of the Proceeds of Crime Act 2002 (the Act) in connection with the carrying out by appropriate officers in England and Wales of the functions conferred by virtue of sections 47C to 47H of the Act, the carrying out by senior officers of their functions under section 47G of the Act and the detention of property under or by virtue of sections 41A, 44A and 47J to 47P of the Act.

These provisions are in Part 2 of the Act, which is concerned with the confiscation of the proceeds of crime. That Part permits the making of a confiscation order under section 6 of the Act after a defendant is convicted. A confiscation order can be made ancillary to conviction and sentence to deprive a criminal of the benefit of their criminal conduct. Part 2 also contains powers to search, seize and detain property before conviction.

Appropriate officers who may carry out the functions in sections 47C to 47H and 47J to 47P are specified in section 47A(1) of the Act, and are an officer of Revenue and Customs, an immigration officer, a constable or an accredited financial investigator.

The power in section 47C is for an appropriate officer to seize certain property if it may otherwise be made unavailable for satisfying any confiscation order made under section 6 of the Act, or the value of the property may otherwise be diminished.

Sections 47D to 47F contain search powers, which allow an appropriate officer to conduct searches of premises, people and vehicles for property which the officer has reasonable grounds for suspecting may be found and which may be seized under section 47C.




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The functions under sections 47C to 47F may only be carried out with the appropriate approval under section 47G, unless in the circumstances it is not practicable to obtain it. Appropriate approval under section 47G is approval of a justice of the peace or (if that is not practicable) of a senior officer, and section 47G specifies who is a senior officer. Section 47H requires that an appropriate officer must give a written report to a person appointed by the Secretary of State in any case where either the officer seizes property under section 47C without the approval of a justice of the peace and any of the property seized is not detained for more than 48 hours, or where the search powers under sections 47D to 47F are exercised without the approval of a justice of the peace but no property is seized.

Sections 41A, 44A and 47J to 47P concern the detention of property which has been seized by an appropriate officer. Appropriate officer has a wider definition in relation to sections 41A and 44A than section 47A: see section 41A(3) of the Act. It includes additionally a National Crime Agency officer, and a member of staff of the relevant director (within the meaning of section 352(5A), being, in relation to England and Wales, the Director of Public Prosecutions or the Director of the Serious Fraud Office).

SI 2015/729 The Proceeds of Crime Act 2002 (Investigations: Code of Practice) (England and Wales) Order 2015

This Order brings into operation in relation to England and Wales on 1 June 2015 the revised code of practice made pursuant to section 377 of the Proceeds of Crime Act 2002 (the Act) in connection with the exercise by the Director General of the National Crime Agency, other National Crime Agency officers, officers of Revenue and Customs, immigration officers, accredited financial investigators and constables of the functions conferred by virtue of Chapter 2 of Part 8 of the Act.

The functions in Chapter 2 of Part 8 of the Act concern the conduct by appropriate officers (defined in section 378 of the Act) of certain types of investigations which are authorised by the Act, concerned with the recovery of the proceeds of criminal conduct.

Article 3 of the Order makes provision in relation to officers who begin exercising any function conferred by virtue of Chapter 2 of Part 8 of the Act before the revised code of practice comes into operation and continue to do so after it has come into operation.




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SI 2015/759 The Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015

This Order, which came into force on 1 June 2015, applies, with modifications, certain provisions of the Police and Criminal Evidence Act 1984 to search and seizure warrants obtained in England and Wales under section 352 of the Proceeds of Crime Act 2002 for the purposes of a confiscation investigation, a money laundering investigation or a detained cash investigation, and to the powers of seizure under those warrants.

The Order also revokes, for England and Wales only, the Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984 and Police and Criminal Evidence (Northern Ireland) Order 1989) Order 2003 (SI 2003/174) (the 2003 Order). Article 6 contains a saving, preserving the 2003 Order in relation to undetermined applications for warrants made before 1 June 2015, and warrants which are in existence on the coming into force of this Order; to powers of seizure under such warrants; and to any proceedings arising in relation to such applications, warrants or powers of seizure (including appeals).

SI 2015/813 The Crime and Courts Act 2013 (Commencement No. 12) Order 2015

The following provisions of the Crime and Courts Act 2013 came into force on 1 June 2015—

(a) section 18 (youth courts to have jurisdiction to grant gang-related injunctions)

(b) section 46, so far as it is not already in force

(c) Schedule 12 (gang-related injunctions: further amendments).

Section 18 amends Part 4 of the Policing and Crime Act 2009 (the 2009 Act) to provide for applications for gang-related injunctions for 14 to 17 year olds to be heard in the youth court, sitting in a civil capacity, rather than in the county court (or High Court). Schedule 12 makes consequential and related amendments to the 2009 Act.

Sections 46 and 47 make provision to enable property that is subject to a restraint order in accordance with Part 2 of the Proceeds of Crime Act 2002 to be used to make a legal aid payment. A legal aid payment is a payment that a person is obliged to make under the relevant legal aid legislation in relation to legal services provided to that person.

Article 2 commences the regulation-making powers in sections 46 and 47 on the day after the day this order is made, to enable regulations under those sections to be made. In accordance with article 3, the other provisions commenced by this Order came into force on 1 June 2015.




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SI 2015/820 The Serious Crime Act 2015 (Commencement No. 1) Regulations 2015

Regulation 3 brings into force on 1 June 2015 provisions of the 2015 Act relating to confiscation and civil recovery under the Proceeds of Crime Act 2002, injunctions to prevent gang-related violence and drug-dealing activity and the new offence of unauthorised possession of a knife or other offensive weapon in prison, as well as the consequential amendments in Schedule 4 to the 2015 Act that relate to these provisions.

SI 2015/925 The Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) (Amendment) Order 2015

This Order, which came into force on 1 June 2015, amends the Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) Order 2003 (SI 2003/425) (the 2003 Order), which contains the enforcement procedures within the United Kingdom for orders made and search and seizure warrants issued relating to certain investigations under Part 8 of the Proceeds of Crime Act 2002 (POCA). The 2003 Order provides the appropriate enforcement procedures where section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of UK judgments in other parts of UK) does not apply.

This Order makes amendments to the 2003 Order which are consequential on the commencement of section 66 of the Policing and Crime Act 2009 (PCA 2009) in England and Wales on 1 June 2015. That provision transfers the jurisdiction for making production orders and issuing search and seizure warrants in relation to detained cash investigations in England and Wales from a judge of the High Court to a judge entitled to exercise the jurisdiction of the Crown Court. Orders made and warrants issued by a judge entitled to exercise the jurisdiction of the Crown Court cannot be enforced by way of section 18 of the Civil Jurisdiction and Judgments Act 1982, and the 2003 Order is therefore amended to provide for enforcement of such orders and warrants in Northern Ireland and Scotland. See in particular the amendments made by article 2 to the definitions of ‘an English or Welsh appropriate officer’, ‘an English or Welsh production order’ and ‘an English or Welsh search and seizure warrant’. Article 3 contains savings so that the changes do not have effect in relation to orders made and warrants issued by a judge of the High Court (there are savings in relation to the commencement of section 66 of PCA 2009 for applications for orders and warrants which are undetermined by 1 June 2015, or orders and warrants which are already in existence on that date, to remain subject to the jurisdiction of the High Court).

This Order also makes amendments to the 2003 Order which are consequential on the making of the Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (SI 2015/759) (the PACE Order), which revokes and replaces (in relation to England and Wales only) the Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984 and Police and Criminal Evidence (Northern Ireland) Order 1989) Order 2003 (SI 2003/174) (that Order continues to apply in relation to Northern Ireland). The PACE Order was made in consequence of the commencement of section 66 of PCA 2009. See in particular article 2(2)(e), and the corresponding textual amendments made by article 2.




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This Order also makes amendments to the 2003 Order which are consequential on the commencement of section 55(5) of, and paragraph 144 of Schedule 8, to the Crime and Courts Act 2013. Section 55(5) (powers of immigration officers) makes immigration officers appropriate officers for the investigations dealt with by the 2003 Order (see section 378 of POCA). Paragraph 144 of Schedule 8 (abolition of Serious Organised Crime Agency) substitutes references to National Crime Agency officers for references to members of staff of the Serious Organised Crime Agency in the definition of appropriate officer. This Order makes appropriate amendments to the definitions of appropriate officer in the 2003 Order.

SI 2015/964 The Crime and Courts Act 2013 (Commencement No. 13 and Savings) Order 2015

The following provisions of the 2013 Act came into force on 1 June 2015, so far as not already in force—

(a) section 48(6)(a) (civil recovery of the proceeds etc of unlawful conduct)

(b) Part 1 of Schedule 18 (enforcement of interim orders in the United Kingdom)

(c) section 49 (investigations)

(d) Part 1 of Schedule 19 (civil recovery investigations), except for the words ‘and Northern Ireland’ in the headings before paragraphs 4, 6, 8, 10 and 12

(e) Part 2 of Schedule 19 (evidence overseas) and

(f) Part 3 of Schedule 19 (consequential amendments: immigration officers and National Crime Agency).

Section 48(6)(a) introduces Part 1 of Schedule 18, which enables the enforcement in the United Kingdom of interim orders made in connection with the civil recovery of proceeds of unlawful conduct under the Proceeds of Crime Act 2002 (the 2002 Act).

Section 49 introduces Schedule 19. Part 1 of Schedule 19 concerns civil recovery investigations under Part 8 of the 2002 Act, and clarifies that the focus of an investigation can be a person or property and that there can be an investigation into property that has not yet been clearly identified. This Order is not bringing Part 1 into force in relation to Northern Ireland.

Part 2 of Schedule 19 inserts sections 375A, 375B, 408A and 408B into Part 8 of the 2002 Act (investigations). Sections 375A and 375B relate to investigations in England and Wales and Northern Ireland, and sections 408A and 408B relate to investigations in Scotland. The provisions allow evidence to be obtained from a court, tribunal, government or authority outside the United Kingdom if a person or property is subject to a civil recovery investigation, a detained cash investigation or an exploitation proceeds investigation (as defined in section 341 of the 2002 Act). Evidence obtained must not be used, without consent, for any other purpose other than for the purpose of the investigation for which it was obtained or for the purposes of certain proceedings. This Order is not bringing sections 375A and 375B into force in relation to Northern Ireland.




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Part 3 of Schedule 19 makes consequential amendments to the 2002 Act, as amended by Parts 1 and 2 of Schedule 19, to insert references to immigration officers and officers of the National Crime Agency. This Order is not bringing Part 3 into force in relation to Northern Ireland.

Article 3 makes savings in relation to the commencement of section 49 and Schedule 19, so that commencement has no effect in relation to:

A. undetermined applications for orders and search and seizure warrants relating to civil recovery investigations

B. orders and search and seizure warrants relating to civil recovery investigations orders which are in existence on the coming into force of this Order

C. powers of seizure arising under a warrant mentioned in (a) or (b)D. proceedings arising in relation to any of the above (including appeal proceedings).

SI 2015/983 The Policing and Crime Act 2009 (Commencement No. 10, Transitional Provision and Savings) Order 2015

The provisions of the 2009 Act set out below, so far as not already in force, came into force on 1 June 2015 to the extent specified paragraph 2 of the Order.

(2) The provisions are—

(a) sections 52, 53, 55, 56, 58, 59 and 66(b) section 63 except in section 289(5)(c) of the 2002 Act (searches), as substituted by

subsection (4), the words ‘or Northern Ireland’ on the three occasions they appear(c) section 65 except—

(i) in section 297A(1) of the 2002 Act (forfeiture notice), as inserted by subsection (1), the words ‘or Northern Ireland’

(ii) in section 297E(2) of the 2002 Act (application to set aside forfeiture), as inserted by subsection (1), the words ‘or Northern Ireland’

(d) section 112 in so far as it relates to the provisions in paragraphs (e) to (g) of this article(e) the paragraphs in Parts 6 to 8 of Schedule 7 mentioned in article 3, to the extent

specified in that article(f) Part 4 of Schedule 8 except in so far as it relates to—

(i) sections 194 and 235 of the 2002 Act(ii) the Access to Justice (Northern Ireland) Order 2003 and(iii) section 78(3) and (4) of the Serious Crime Act 2007 and

(g) Part 5 of Schedule 8.

Article 2 brings into force on 1 June 2015 certain provisions of the 2009 Act which make amendments to POCA and related consequential amendments.




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Section 52 of the 2009 Act inserts sections 41A and 44A into Part 2 of POCA (confiscation: England and Wales), and section 53 of the 2009 Act inserts sections 120A and 122A into Part 3 of POCA (confiscation: Scotland). Sections 41A and 120A concern the ability for restraint orders made by the courts in England and Wales and in Scotland, respectively, to make provision authorising the detention of property seized under a relevant seizure power, or produced in compliance with a production order. Sections 44A and 120A permit the detention of property pending appeal against the discharge or variation of such a restraint order in England and Wales and in Scotland, respectively.

Section 55 of the 2009 Act inserts sections 47A to 47S into Part 2 of POCA. Section 56 of the 2009 Act inserts sections 127A to 127R into Part 3 of POCA. The effect of these new provisions is to provide new powers in relation to search, seizure and detention of property in England and Wales and Scotland to prevent the dissipation of realisable property that may be used to satisfy a confiscation order made under either Part 2 or Part 3 of POCA.

Article 4 contains savings and transitional provision in relation to the commencement of sections 52, 53, 55 and 56 of the 2009 Act. The provisions of POCA which previously authorised seizure of property subject to a restraint order in England and Wales (section 45 in Part 2) and in Scotland (section 126 in Part 3), are repealed. Article 4 makes savings in relation to property which, at the time of the commencement of the Order, is subject to the directions of a court under sections 45 or 126. Transitional provision is made so that sections 45 and 126 constitute ‘relevant seizure powers’ for the purposes of sections 41A and 120A respectively. This will enable applications to be made to vary the restraint orders to permit the detention of property seized under sections 45 or 126.

Section 58 of the 2009 Act inserts sections 67A to 67D into Part 2 of POCA. Section 59 of the 2009 Act inserts sections 131A to 131D into Part 3 of POCA. These provisions provide new powers, where property has been seized by an appropriate officer under a relevant seizure power, or which has been produced to such an officer in compliance with a production order, for that property to be sold to meet a confiscation order in certain circumstances.

Section 63 of the 2009 Act amends section 289 of POCA in Chapter 3 of Part 5 of POCA (which is concerned with the recovery of cash in summary proceedings), to provide new powers to search vehicles for cash. The powers are not being commenced in relation to Northern Ireland.

Section 65 of the 2009 Act inserts sections 297A to 297G into POCA to make provision in England and Wales and Northern Ireland for administrative forfeiture of cash which is being detained subject to a detention order made by the magistrates’ court under section 295 of POCA. The provisions are only being commenced in relation to England and Wales.

Section 66 of the 2009 Act transfers the jurisdiction for applications for orders and warrants under Part 8 of POCA from the High Court to the Crown Court for England and Wales and Northern Ireland. The transfer is only being commenced in relation to England and Wales, subject to the savings in article 5 in relation to undetermined applications for orders and warrants, and for orders and warrants which are in existence on the coming into force of this Order.

Articles 2(2)(e) and 3 concern commencement of related consequential amendments made by Parts 6 to 8 of Schedule 7 to the 2009 Act. Consequential repeals are made by Parts 4 and 5 of Schedule 8 to the 2009 Act, and are commenced by article 2(2)(f) and (g).




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New LegislationModern Slavery Act 2015

The Modern Slavery Act 2015 (‘the Act’) received Royal Assent on 26 March 2015, having undergone intense Parliamentary and public scrutiny. The Act strengthens the response of law enforcement and the courts by increasing the maximum sentence available for the most serious offenders, from 14 years to life imprisonment. It creates an offence of slavery, servitude and forced or compulsory labour; replacing the existing offence in section 71 of the Coroners and Justice Act 2009, which will be repealed once the relevant section of the Act is appointed.

A single offence of human trafficking, which covers sexual and non-sexual exploitation, is introduced by section 2 of the Act. It replaces the two existing offences in sections 59A of the Sexual Offences Act 2003 (human trafficking for the purposes of sexual exploitation) and section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (which relates to human trafficking for the purposes of labour or other exploitation). Introducing a single offence for all types of trafficking will make it administratively simpler for investigators and prosecutors to bring forward human trafficking prosecutions.

These new offences will be added to the list of offences set out in Schedule 2 to the Proceeds of Crime Act 2002, ensuring that convicted defendants will be deemed to have a criminal lifestyle and therefore subjecting them to the toughest regime in respect of calculating confiscation orders under the 2002 Act. There is also an extension of certain legislative provisions relating to special measures to the victims of these offences. Trafficking victims are already covered by the relevant provisions and the Act extends that coverage to victims of slavery.

The Act introduces a power to make slavery and trafficking reparation orders where a person is convicted of a slavery or trafficking offence. The Powers of Criminal Courts (Sentencing) Act 2000 already makes provision for compensation orders to be made against convicted persons, however the number made in human trafficking and slavery cases is low. A specific reparation order for victims of slavery and trafficking will enable the courts to order a convicted person to pay reparation to their victim or victims in respect of the exploitation and degradation they have suffered. Such orders will only be made where the court is satisfied that the defendant has means to pay.

Part 2 of the Act makes provision for the introduction of new civil orders to be imposed by the courts on individuals convicted of a slavery or trafficking offence, or those involved in slavery or trafficking but who have not been convicted of such an offence. Slavery and trafficking prevention orders (STPOs) will complement existing civil orders, enabling the courts to impose necessary prohibitions on individuals where there is evidence of that individual posing a risk of causing another person to be the victim of slavery or trafficking for exploitation. The Act provides for the orders to be made on conviction or on application by either a chief officer of police, an immigration officer or the Director General of the National Crime Agency.

New legislationLegislation



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A STPO may prohibit the person in respect of whom it is made from doing anything described in it. This may include preventing a person from participating in a particular type of business, operating as a gangmaster, visiting a particular place, working with children or travelling to a specified country. In addition to prevention orders, the act enables a magistrates’ court to make a slavery and trafficking risk order (STRO) on application by a chief officer of police, an immigration officer or the Director General of the NCA. In making a STRO, the court must be satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STRO for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence. The possible prohibitions are the same as those for STPOs.

Victims in many cases are trafficked illegally on vessels and may also be the subject of slavery, servitude and forced or compulsory labour on board vessels. The Act provides additional powers for law enforcement in England and Wales to tackle suspected human trafficking or slavery at sea. The details of these additional powers are set out in Schedule 2. The Act also provides for the establishment of an Independent Anti-slavery Commissioner to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences and the identification of victims of those offences.

The Act provides a defence for slavery or trafficking victims, intending to further encourage victims to come forward and give evidence without fear of being convicted for offences connected to their slavery or trafficking situation. The defence will not apply in the case of certain serious offences. The defence also differs depending on the age of the person. A person aged 18 or over at the time of the act which constitutes an offence is not guilty of that offence if they commit the offence because they are compelled to do so or they were compelled as a result of slavery or relevant exploitation, and a reasonable person with relevant characteristics in the same position as the person would have no realistic alternative to committing the offence. In recognition of the unique vulnerabilities of children, the defence in respect of those under 18 lacks the test of compulsion and has a lower threshold for meeting the reasonable person test.

The majority of the Modern Slavery Act 2015 has yet to be appointed. It can be accessed in full at http://www.legislation.gov.uk/ukpga/2015/30/pdfs/ukpga_20150030_en.pdf

New legislationLegislation

http://www.legislation.gov.uk/ukpga/2015/30/pdfs/ukpga_20150030_en.pdf



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Case law

Evidence and procedureR (on the application of Chatwani and others) v The National Crime Agency and Anor [2015] EWHC 1283 (Admin)

A hearing in the High Court of Justice (Queens Bench Division) before Lord Justice Davis and Mr Justice Hickinbottom. The full judgement is available at http://www.bailii.org/ew/cases/EWHC/Admin/2015/1283.html

Facts

In January 2015, the First Defendant (the NCA) arrested and detained the First to Fifth Claimants and executed search warrants issued by the Second Defendant (the Magistrates’ Court) at six premises, at which those Claimants lived or worked. In this judicial review, the Claimants challenged both the arrests and search warrants. There were two issues for the court, namely the:

• lawfulness or the arrests

• NCA conceded that the search warrants were unlawful, and accepted that the warrants should be quashed and the entries, searches and seizures made under them be declared unlawful. The issued remained as to whether, despite the unlawfulness, the court should in its discretion allow the NCA to retain the seized material, pending a proposed application for an order under section 59 of the Criminal Justice and Police Act 2001.

The First, Second and Fifth Claimants were brothers and directors of the relevant companies, the largest and most relevant to this claim being Fairview Hotels & Healthcare Limited (‘Fairview’) and Davis & Dann Limited (‘DDL’), both of which had been owned by the brothers for over 20 years. The Fourth Claimant worked for DDL, the third Claimant acted as company secretary for many of the companies and the Sixth to Tenth Claimants were the wives of the First to Fifth Claimants.

The factual background

The claim arose out of Operation Heteredon, an NCA investigation into money laundering. Brian Hickman was the lead officer of the operation and Kevin Gilligan was the senior financial investigator. Mr Hickman suspected that various employees of DDL, including the claimants, were providing a money laundering service which included the placement, layering and integration of the proceeds of crime running into millions of pounds. The offences of which they were suspected

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fell within Part 7 of the Proceeds of Crime Act 2002 (POCA). Section 327 makes it an offence to conceal, disguise, convert, transfer or remove from the jurisdiction criminal property. Section 328 makes it an offence to enter into or become concerned in an arrangement which he knows or suspects facilitates the acquisition, retention, use or control of criminal property. Section 329 makes it an offence to acquire, use or have possession of criminal property.

The plan

It was proposed to arrest the seven suspects (which included the first five Claimants) in a deliberately boisterous way, and, during the time they were being held after arrest, to place covert surveillance devices in their homes and business premises. During the course of questioning, the suspects would be given enough information to enable them to understand what the investigation was about, without disclosing the full facts or details. They would then be released, in the hope that their arrest and questioning would ‘provoke a behavioural reaction on their release from custody which would ultimately allow for the capturing of unequivocal evidence which would enhance any prosecution against these individuals’. In other words, on release, they would have conversations with each other or third parties that would evidence, if not conclusively confirm, their part in the suspected money laundering activities which would be captured by the covert devices.

The relevant statutory powers of the NCA

First, it was proposed to arrest the seven suspects without an arrest warrant, in accordance with section 24 of the Police and Criminal Evidence Act 1984 (PACE). For an arrest under these provisions to be lawful, the arresting constable must have reasonable grounds for

(i) suspecting that an offence has been committed and that the target of the arrest committed it; and

(ii) believing that it is necessary to arrest the person to allow the prompt and effective investigation of the offence.

Section 28(3) of PACE requires a constable to inform a person of the grounds for arrest, at the time of arrest or as soon as practicable after the arrest. In support of his powers of arrest, a constable has powers of search under section 32 of PACE.

Second, it was essential to the plan that the arrested men were detained for sufficient time to enable the surveillance devices to be planted. The relevant statutory provision is section 37(2) of PACE, under which a custody officer who does not have sufficient evidence upon which to charge an arrested person is required to release him:

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… unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.

Third, the NCA had to apply to the Surveillance Commissioners for authorisation approval to install the proposed surveillance devices. Under Part II of the Regulation of Investigatory Powers Act 2000 and section 93 of the Police Act 1997, an authorising officer (who may be an NCA officer) may, if he believes it is necessary for the purpose of detecting serious crime and that the action is proportionate to what the action seeks to achieve, authorise the use of surveillance equipment. Section 97(2) of the 1997 Act provides that, where any property specified in the authorisation is a dwelling or office premises, then the authorisation must be approved by a Surveillance Commissioner appointed under section 91(1)(b) of that Act. In this case, authorisation was obtained on 26 January 2015, i.e. after the search warrants had been obtained on 19 January 2015, but prior to the raid.

Fourth, the NCA had to apply to Birmingham Crown Court for production orders in respect of relevant material held by DDL’s bank and auditors. One of the production orders in this case was subject to separate proceedings (http://www.bailii.org/ew/cases/EWHC/Admin/2015/1284.html)

Fifth, it had to obtain search warrants in respect of the premises. The relevant statutory power to enter, search and seize property is found in Part 2 of PACE. The power is only exercisable pursuant to a warrant obtained by a constable (including an authorised NCA officer), generally under section 8 of PACE. Where access is required to material subject to legal privilege, excluded material or special procedure material, applications should be made in accordance with a special procedure set out in Schedule 1 to PACE, which has further safeguards and which has to be brought before a Crown Court judge rather than a magistrate.

The procedure, whether under section 8 or Schedule 1, is subject to general safeguards set out in sections 15 and 16 of PACE. A warrant is unlawful unless it complies with the safeguards set out in these sections. Under section 15(2), where a constable applies for a warrant to enter and search premises, it shall be his duty—

(a) to state—

(i) the ground on which he makes the application

(ii) the enactment under which the warrant would be issued …

(b) to specify the matters set out in subsection (2A) … and

(c) to identify, so far as is practicable, the articles or persons to be sought.





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Section 15(6) states that a warrant

(a) shall specify—

(i) the name of the person who applies for it

(ii) the date on which it is issued

(iii) the enactment under which it is issued and

(iv) each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control which can be specified and which are to be searched; and

(b) shall identify, so far as is practicable, the articles or persons to be sought …

Sections 21 and 22 of PACE deal with access to, copying of and retention of any seized material. Under section 21(5), the constable has a power to copy any seized material; and, by section 22(4), is not permitted to retain an original item if a copy would suffice for evidential purposes.

The plan as executed

The decision to arrest the seven suspects was made by Mr Hickman on 22 December 2014. Other officers proceeded to apply for production orders in respect of the banks and auditors, and for covert surveillance authorisation. In the meantime, Mr Hickman asked another NCA officer, Andrew Gozzer, to prepare section 8 applications to the Magistrates’ Court, namely informations and warrants in respect of the businesses and home addresses of the suspects. On 19 January 2015, Mr Gozzer attended the Magistrates’ Court and presented the applications on oath. The applications were made solely on the basis of the applications themselves and the informations: no other documents were presented to the justices. After a process which appears to have lasted no more than 45 minutes in total, the magistrates issued the warrants, saying: ‘We are satisfied that the criteria under section 8 PACE is made out.’ Mr Gozzer did not make any note of the hearing. It is well-established, the Court stated, that if information over and above that contained in the application is required in order to satisfy the court that a warrant is justified, a note should be made of the additional information so that there is a record of the basis upon which the warrant was issued.

All but one of the Claimants were arrested on 28 January 2015 and were advised that they were under arrest for money laundering. In line with an operation order, but outside the scope of the warrant, jewellery and diamonds were taken from the Claimant’s homes and documents etc. were taken from the business premises without any specific consideration as to whether they amounted to evidence of money laundering.




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On 4 February 2015 the NCA wrote to the Claimants’ solicitors, notifying them that they proposed to make an application to Birmingham Crown Court under section 59(6) of the Criminal Justice and Police Act 2001 for the retention and use of the material held as a result of the warrants executed on 28 January 2015. As such an application can only be made when the search and seizure were unlawful, it is clear that, by 4 February, the NCA had appreciated that the warrants under which they had operated were unlawful.

The Proceedings

This claim was issued 6 February 2015. The Claimants applied for urgent interim relief in the form of an order forbidding any further copying or use of the documents seized under the warrants or any copies already made. That application was refused and the NCA continued to copy the material seized. On 13 February, Lang J ordered the application for permission and interim relief to be set down for an oral hearing, which Lang J herself heard on 17 February 2015 when she granted permission to proceed and interim relief in the form requested. She ordered that all copying cease, and originals and copies be moved to third party storage.

The Challenge to the Arrests

The Claimants submitted that the arresting officers did not explain the factual and legal basis of the arrests, as they were required to do. This reflected the fact that they had not been given the full factual background, or the true purpose for the arrests and subsequent detention, which was not to enable the Claimants to be questioned but to keep them away long enough for the covert surveillance devices to be installed. Therefore, while it was accepted that the limited information that had been given to the arresting officers would have provided reasonable grounds to suspect each of the first five Claimants of money laundering offences, and for believing that an arrest was necessary to allow the prompt and effective investigation of that offence, that was only because they had been deliberately isolated from the true facts and position by their superiors. The arresting officers had thus been manipulated into making what were essentially sham arrests, or at least arrests with a dominant purpose other than to allow the prompt and effective investigation of an offence.

The Defendant’s submitted that the arrests of the first five Claimants were lawful, as the evidence that the NCA had acquired gave them reasonable grounds for suspecting that the businesses were being used to launder money, with the active participation (or, at least, knowledge) of each Claimant. It was conceded that, although one purpose of arresting and detaining the Claimants was to secure evidence by questioning, it was not the dominant purpose – which was to enable the surveillance devices to be installed and to provoke a reaction from the Claimants that would then be captured on those devices. However, in the terms of section 24(5)(e), it was necessary to arrest the person to allow the prompt and effective investigation of the offence because, without the arrest, it was impossible to conduct the investigation as the NCA wished to conduct it. This was justified because there was strong evidence that DDL had been used for money laundering purposes, and the plan was designed to obtain evidence as to knowledge of each of the five Claimants.




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In any event, whether the arrest was lawful depends upon what was in the mind of the arresting officer. They were unaware of any ulterior motives for the arrests. On what they had been told, each arresting officer did have reasonable grounds for (i) suspecting that an offence has been committed and that the individual he was arresting committed it; and (ii) believing that it was necessary to arrest the person to allow the prompt and effective investigation of the offence by questioning the suspect.

The Court stated that by section 24 of PACE, Parliament had determined that an arrest is justified where the arresting constable has, in his own mind, reasonable grounds for suspicion that an offence has occurred etc. Therefore, the objective test that is inherent in the concept of reasonableness has to be applied to the facts known to or the information given to the arresting constable. This was established in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, in which the Court stated

[T]he reasonable suspicion has to be in the mind of the arresting officer. So it is the facts known by or information given to the officer who effects the arrest or detention to which the mind of the objective observer must be applied.

Therefore, simply because the information upon which the arresting constable relies is thin or incorrect, that does not in itself render the arrest unlawful if, on the basis of the information he has, the arresting constable has reasonable grounds for suspicion. The principle was recently considered in R (Rawlinson & Hunter Trustees) v Central Criminal Court; R (Tchenguiz and R20 Limited) v Director of the Serious Fraud Office [2012] EWHC 2254 (Admin) (‘Tchenguiz’), in which it was stated:

The position therefore is that if apparently reliable information is given to a police officer, who then relies on it without more to make an arrest, then that can give rise to reasonable grounds on his part so as to defeat a claim for wrongful arrest, notwithstanding that the apparently reliable information is incorrect.

The evidence of connections with known money launderers and of money laundering transactions was, in the Court’s view, sufficient to give rise to a reasonable suspicion of money laundering on the part of each of the first five. It was conceded that on the information given to the arresting constables in this case, each constable could have reasonably suspected that the Claimant he was to arrest had committed an indictable offence. In addition, the Court stated that, in its opinion, the arresting officers did sufficiently notify the Claimants of the suspected offences. It was clear that they were money laundering offences under section 327 and 328 of POCA, that laundering being in the context of the businesses in which each was involved. Given the constable was not bound to disclose details that might undermine or otherwise adversely affect any continuing investigation, in the Court’s view the Claimants were given sufficient legal and factual reasons for their arrest.

The challenge made to the arrests failed.




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The challenge to the search warrants

It was submitted that the search warrants issued by the Magistrates’ Court were unlawful, on two broad grounds. Firstly, there was a failure to disclose all relevant matters to the justices; as a result of the whole approach to the application for, and execution of, the warrants being fundamentally flawed as a matter of law. This, the Court stated, was not just true of Mr Gozzer: the approach of the NCA to warrants appeared to be systemically flawed, in that none of the officers involved in the case appreciated the vital role of the court in the warrant process. That role was to ensure that the requirements of the statutory scheme were met, so that the rights and interests of the object of the proposed warrant were not unlawfully interfered with. The NCA had, in effect, abrogated that role to itself. That appeared to explain why Mr Gozzer (with the approval of his superiors) thought it appropriate to deny the magistrates information that they would have needed if the magistrates were required to satisfy themselves that the statutory criteria had been met. In the applications, he merely asserted that the statutory criteria were met, and persuaded the lay magistrates to rubber-stamp the applications on that basis.

Second, it was submitted that various particular statutory requirements had not been met:

i) The preconditions of section 8(1)(a), (d) and (e) were not satisfied, i.e. at the relevant time, there were no reasonable grounds for suspecting that an indictable offence had been committed, or for believing that the material sought was likely to be relevant evidence and did not include legally privileged and special procedure material.

ii) Contrary to section 15(6)(b), the warrants failed to specify, so far as practicable, the articles to be sought.

iii) Furthermore, contrary to section 16(8), the searches of the premises then exceeded the extent required for the purpose for which the warrants were issued.

The Court in this case stated that on an application for a search warrant, the court is not simply reviewing the reasonableness of the decision of the constable that the statutory criteria are met: before a warrant is issued, the court itself must be satisfied that the statutory requirements have been established. The court itself must therefore be satisfied that there are reasonable grounds for believing that (a) an offence has been committed, (b) there is material on the relevant premises which is likely to be of substantial value to the investigation of the offence, and (c) the material is likely to be relevant evidence etc. The applicant, therefore, has a duty to put before the court the necessary material to enable the court to satisfy itself that the statutory conditions are met. When applications are made without notice, the court stated that there is a duty of candour. There must be full and accurate disclosure to the court, including disclosure of anything that might militate against the grant of the warrant.




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The Claimant’s submitted that the NCA must have acted in bad faith, because it was sensibly inconceivable that no one in an agency such as the NCA appreciated the basic requirements of search warrants. The Defendant’s, whilst accepting that the NCA’s approach was indefensible and resulted in the NCA entirely displacing the function of the justices, submitted that it adopted the approach it did, not because of bad faith, but out of ignorance of the appropriate procedures and a complete failure to appreciate the fundamental role of the court in the without notice issue of search warrants.

While the court stated that Claimants’ submissions had considerable superficial force, it was not satisfied on the evidence that there was bad faith on the NCA’s part. It stated that the case smacked of incompetence, not bad faith. With regard to the application and execution of the search warrants, it was the Court’s view that the failings of the NCA resulted from ignorance on the part of the officers involved, coupled with a systemic failing which resulted in the fundamentally misconceived approach to these warrants being pursued and not being stopped.

On the basis of the conceded breaches of sections 15 and 16, the NCA concede that the search warrants were unlawful. However, the Claimant’s relied on grounds wider than the concessions made by the NCA. It was submitted that not only did Mr Gozzer fail to put before the magistrates the material they needed to enable them to exercise their function under section 8, but that, in fact, there were no reasonable grounds for suspecting an offence had been committed, or for believing that the items sought were likely to be relevant evidence or that the items sought did not include legally privileged or special procedure material.

The Court in this case was unpersuaded that, on the evidence available to the NCA, there were no reasonable grounds for suspecting that an indictable offence had been committed. In the Court’s view, there were such grounds. Where the warrant process failed was not that there were no reasonable grounds for suspicion, but that the basis of those grounds was not set out in the application to enable the magistrates to judge whether those suspicions were reasonable. The Court did not consider the identification of offences in the applications/warrants flawed: offences under Part 7 of POCA, it stated, notoriously overlap, It also considered that the NCA did have reasonable grounds for believing that material at the various premises was likely to be relevant evidence in respect of those crimes. Both the business premises and the Claimants’ homes were likely to have evidence in relation to the identified offences.

However, again, the Court stated, the procedure went very wrong. It was accepted that the wording of the warrants was too wide in identifying the material sought as ‘evidence of money laundering’. Section 15(6) of PACE provides that a warrant must ‘identify, so far as practicable, the articles… sought…’ That, the Court stated, requires the warrant to set out the articles with sufficient particularity so that anyone interested in the execution of the warrant may ascertain whether a particular article fell within, or outside, the scope of the warrant. The Court accepted that ‘evidence of money laundering’ failed this test. It also accepted that Mr Hickman ought to have expected to come across privileged material and therefore applied to the Crown Court under section 9 and Schedule 1 of PACE.




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The Court was unpersuaded by the Claimant’s argument that the search warrants were improperly used to search for places to install the surveillance devices and then install the equipment. The installation of the devices was authorised not by the search warrants, but by the Surveillance Commissioner. It did not, however, agree with the contention that the NCA was under no obligation to disclose to the magistrates the proposal to use the opportunity of the execution of the search warrant to plant the devices. Even if the NCA contended that their dominant purpose in obtaining and executing the warrants was to obtain relevant evidence from the search, in the Court’s view it was required to disclose that to the magistrates. An applicant is bound to disclose any material information that might affect the exercise of the magistrates’ power to issue a warrant, and information that the opportunity was going to be used in that way may have led the magistrates to question the dominant purpose of the warrants.

Relief

Any breach of section 15 or 16 renders the issue and/or execution of the relevant warrant unlawful; and, on the principle that a person should not profit from his own wrong, that imposes an obligation on the agency that has obtained documents to return all of the material seized and not use any work product derived from that material, such as copies.

Where material has been obtained as a result of an unlawful search and the agency seizing it wishes to retain it, the appropriate procedure is for the agency to make an application to the Crown Court under section 59 of the Criminal Justice and Police Act 2001. On a section 59 application, the court will be astute to examine the circumstances surrounding the illegal seizure. Any suggestion of bad faith, or even that the agency adopted a less than rigorous and scrupulous approach to drawing up and executing the initial warrant, will weigh heavily against the exercise of the court’s discretion in favour of authorising retention (R (El-Kurd) v Winchester Crown Court [2011] EWHC 1853 (Admin) at [65] per Stadlen J).

The question, therefore, for the Court was, was the conduct of the NCA in this case such that it should be relieved of any benefit of the unlawful searches? The Court concluded that it was. While the Court was unpersuaded that NCA officers acted in bad faith, they acted, it stated, with patent and egregious disregard for, or indifference to, the constitutional safeguards within the statutory scheme within which they were operating. The individual officers, the Court accepted were acting out of ignorance: but that ignorance was deep, it ran to inspector-level, it related to the fundamentals of the scheme being operated and there were no systemic checks to ensure warrants were not issued without even consideration of the requirements of sections 15 and 16 of PACE. It was the judgment of the Court that while the conduct of the NCA fell short of bad faith it has been such that it should not be allowed any actual or potential benefit from the unlawful search and seizure that directly flowed from such conduct.




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Conclusion

The Court refused the judicial review insofar as it challenged the arrests, and allowed it insofar as it challenged the search warrants. The relevant warrants were declared unlawful, the NCA was ordered to delivery up the seized material and to deliver up and destroy all copies, schedules and other work produce derived from the seized material. Subject to further order, the NCA was also prohibited from using the material or anything derived from it for the purposes of the investigation or for any other purpose.




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Human rightsR (on the application of Catt) (AP) (Respondent) v Commissioner of Police of the Metropolis and another [2015] UKSC 9

A case in the United Kingdom Supreme Court on the 4 March 2015 before Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, and Lord Toulson. The full judgment can be found at http://www.bailii.org/uk/cases/UKSC/2015/9.html

Facts

This case follows two appeals that were held at the Court of Appeal. In both appeals the issue was whether the practice of the police governing retention is lawful or if it is contrary to article 8 of the European Convention on Human Rights. The first appeal concerned Mr John Catt, who objected to the retention of records about his participation in political demonstrations going back to 2005. The second appeal concerned Ms T, who objected to the retention on a police database of a record of a minor altercation with a neighbour.

Both Mr John Catt and Ms T accepted that it was lawful for the police to make a record of the events in question as they occurred however they contended that the police interfered with their rights under Article 8 (Right to respect for private and family life) of the European Convention on Human Rights by retaining the information on a searchable database.

The Court of Appeal found in favour of Mr Catt and Ms T and this case was an appeal against that decision.

The issues

Is article 8 engaged?

Article 8 of the ECHR confers on everyone a qualified right to ‘respect for his private and family life, his home and his correspondence’. In terms of the scope of article 8 this was clarified by the European Court of Human Rights in the case of Pretty v United Kingdom (2002) 35 EHRR 1, which stated:

As the court has had previous occasion to remark, the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person … It can sometimes embrace aspects of an individual’s physical and social identity … Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8 … Article 8 also protects a right to personal development, and the right to

Human rightsCase law

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establish and develop relationships with other human beings and the outside world … Though no previous case has established as such any right to self-determination as being contained in article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

The United Kingdom courts have also adopted a test for what constitutes ‘private life’. This test is whether there was a reasonable expectation of privacy in the relevant respect. This test is not limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It also extends to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do.

It was held in the case of Rotaru v Romania (2000) 8 BHRC 449 that ‘public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities.’ It was also held in the case of Bouchacourt v France (2009) ECHR 2276 that ‘mere storing by a public authority of data relating to the private life of an individual’ engaged article 8 of the Convention so as to require to be justified.’

The cases above and others like them make it clear that the state’s systematic collection and storage in retrievable form, even of public information about an individual, is an interference with their private life. The court in the present case therefore agreed with the Court of Appeal that article 8(1) was engaged in these cases.

The appeals then turned on article 8(2) of the Convention, in particular on whether the retention of the data was:

(i) in accordance with law

(ii) proportionate to its objective of securing public safety or preventing disorder or crime.

(i) In accordance with the law

The requirement of article 8(2) that any interference with a person’s right to respect for private life should be ‘in accordance with the law’ is a precondition of any attempt to justify it. In the case of R (Gillian) v Commissioner of Police of the Metropolis (2006) 2 AC 307 the court stated that:




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The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.

In addition, in the case of S v United Kingdom (2009) 48 EHRR 50 the court observed that there must be in the context of retention by the police of cellular samples and DNA profiles:

Clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness.

Data Protection Act 1998

This Act is not specifically directed to data obtained or stored by the police, but it does lay down principles which are directly applicable to police information, and contains a framework for their enforcement on the police among others through the Information Commissioner and the courts.

The first data protection principle, read in conjunction with the requirements of Schedule 2 of the Act means that data cannot be obtained, recorded, held or used by the police unless it is necessary for them to do so for the purpose of the administration of justice or the performance of their other functions. In addition the fifth principle prevents the retention of data for any longer than is necessary for this purpose and the relevant functions of the police are limited to policing functions which are clearly and narrowly defined in a statutory Code of Practice governing police information.

It should be noted that the Code of Practice governing police information is an administrative document whose contents are determined by police organisations subject to the approval of the Home Secretary. It therefore leaves room for discretionary judgment by the police within specified limits, notably in the area of the duration of retention. Also the Code and the guidance issued are subject to the data protection principles, neither the Information Commissioner nor the courts are bound or entitled to apply them in a manner inconsistent with those principles.




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MM v United Kingdom(2012) ECHR 1906 and R (T) v Chief Constable of Greater Manchester Police (2015) AC 49

Both respondents in the present case relied on the above two cases as part of their arguments. Both cases concerned the disclosure of information from police records under the Police Act 1997 to potential employers and regulatory bodies, as a result of which the complainants were unable to obtain employment involving contact with children or vulnerable adults. Section 113A of the Police Act 1997 required the disclosure of convictions (including cautions), and section 113B required the disclosure of other information on police records which the relevant chief officer of police reasonably believed to be relevant and which in his opinion ought to be disclosed. Since these disclosures were required by statute, the provisions of the Data Protection Act 1998 restricting their disclosure had no application. In MM, the European Court of Human Rights held that disclosure in accordance with sections 113A and 113B was not ‘in accordance with law’ because it was mandatory. The relevant provisions involved no rational assessment of risk and contained no safeguards against abuse or arbitrary treatment of individuals. In T, the Supreme Court, on materially indistinguishable facts, applied the same principle.

The present appeals, however, came before the court on a very different basis. There had been no disclosure to third parties, and the prospect of future disclosure was limited by comprehensive restrictions. It is limited to policing purposes, and is subject to an internal proportionality review and the review by the Information Commissioner and the Courts.

In MM the Strasbourg Court criticised the ‘generous approach’ of the law in the UK to the exercise of police power to retain personal data, even before disclosure. However the court in the present case stated that this does not mean that retention of personal data in the UK is not in accordance with the law. The court stated that it was:

not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law.

The court in the present case however stated that despite this the retention of data in police information systems in the UK is in accordance with law. The court stated that the real question on these appeals is whether the interference with the respondents’ article 8 rights was proportionate to the objective of maintaining public order and preventing or detecting crime.




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(ii)Proportionate to its objective of securing public safety or preventing disorder or crime.

When addressing this issue the court considered both cases separately as the details of each case were different.

Mr Catt

This complaint related to the recording and retention of information relating to his participation in political protests. The right to political protest is a basic right which is recognised by the common law within broad limits directed to keeping the peace and protecting the rights and property of others. It is also a right protected by articles 10 and 11 of the European Convention on Human Rights.

In relation to the case of Mr Catt the group in question was Smash EDO, a group whose object is to close down activities in the UK of EDO MBM Technology Ltd, which manufactures weapons. There is evidence that some of those that attend demonstrations organised by Smash EDO are intent on violence. Recorded crimes include assault on police officers, criminal damage, harassment and intimidation of staff and others.

Mr Catt is a 91-year old man living in Brighton who had been a regular attender at public demonstrations since 1948. Since 2005 he frequently participated in demonstrations organised by Smash EDO. He has been arrested twice at Smash EDO demonstrations for obstructing the public highway, but he has never been convicted of any offence.

From March 2005 Mr Catt began to appear in police information reports relating to Smash EDO protests in Brighton. As a result of his being identified on these occasions, he occasionally appeared in Information Reports relating to other protests in which he participated, some of them away from Brighton. In March 2010 Mr Catt made an access request under section 7 of the Data Protection Act 1998 for information relating to him. Nominal records for other persons and Information Reports concerning demonstrations, which incidentally mentioned Mr Catt had been retained. Some entries from these documents relating to incidents between March 2005 and October 2009 were retrieved which referred to Mr Catt, and these were disclosed to him in response to his access request, in addition to a photograph of him taken at a demonstration in September 2007. In January 2012, information was supplied about three further reports mentioning Mr Catt, which were received in July 2011. In the great majority of cases, all that was recorded about Mr Catt was his presence, date of birth and address. In some cases his appearance was also described.

Mr Catt believed that he was specifically targeted by the police. The court in the present case stated that there was no evidence of this as his name appears along with the names of other participants about whom the same sort of information is recorded, together with the names of witnesses and victims. The court stated that the considerations of the police justified the retention of information including some which relate to persons such as Mr Catt against whom no criminality is alleged. They came to this conclusion based on the following reasons:




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1. The court stated that although the information held in respect of Mr Catt was personal information it was not intimate or sensitive information. They stated it was information about the overt activities in public places of individuals whose main object in attending the events in question was to draw public attention to their support for a cause and that the primary facts recorded are and always have been in the public domain. No intrusive procedures had been used to discover and record them; a marked contrast with DNA material for example which would be considered sensitive.

2. The retention in a nominal record about a particular person or in an Information Report about a demonstration of information about other persons such as Mr Catt who were participating in the same event does not carry any stigma of suspicion or guilt. Mr Catt took exception to what he regarded as the inference that all those mentioned as participating in events such as Smash EDO protests are ‘extremists’. The court stated that this was not a fair inference, stating that the relevant police units are concerned with ‘extremism’, in the sense of the pursuit of a political cause by criminal means, but it does not follow that all those who are recorded as attending these events are being characterised as extremists in that or any other sense. They also stated that unlike the records of criminal convictions or cautions, the information would not be regarded as discreditable to those who were merely recorded as attending an event at which they were not alleged to have committed offences.

3. Mr Catt characterised the practice of retaining such information on a database as ‘secret’, but the court’s view was that this is somewhat extravagant. They stated that the retention by the police of personal data about persons and events of interest to them is the subject of a statutory Code of Practice and administrative guidance. These are public documents. With limited exceptions relating mainly to current investigations or operations, any personal data in the possession of the police can be accessed by the subject by a request under the Data Protection Act. They also stated that given the high profile of some protest groups and their association with criminality, these are the kind of matters which, even in the absence of specific information, most people would expect the police to record and retain.

4. The court stated that the interference with Mr Catt’s right to respect for private life however minor called for justification. The court referred to Chief Superintendent Tudway’s witness statement which stated the reasons for retention, namely to enable the police to make a more informed assessment of the risks and the threats to public order associated with demonstrations forming part of an identifiable campaign, to investigate criminal offences where there have been any, to identify potential witnesses and victims and to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence, and other protest groups associated with them. The court stated that these were all proper policing purposes and that the evidence was supported by illustrative examples. The court had no evidential basis or personal experience on which to challenge that assessment.




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The court then went on to state that the most that could be done was to assess whether the value of the material was proportionate to the gravity of the threat to the public. They stated that the fact that some of the information recorded in the database related to people like Mr Catt who have not committed and are not likely to commit offences does not make it irrelevant for legitimate policing purposes. The composition, organisation and leadership of protest groups who are persistently associated with violence and criminality at public demonstrations is a matter of proper interest to the police even if some of the individuals in question are not themselves involved in any criminality. Also the longer-term consequences of restricting the availability of this resource to the police would potentially be very serious. It would adversely affect police operations directed against far less benign spirits than Mr Catt. Organised crime, terrorism, drug distribution and football hooliganism are all examples.

The court then went on to state that even if it were consistent with the purpose and proper use of the database to exclude people like Mr Catt from it, the labour involved would be disproportionate to the value of the exercise to them. In addition the court stated that the European Court of Human Rights treats the systematic storage of personal data as engaging article 8 and requiring justification, the justification must be, subject to proportionality, in the interests of public safety and the prevention and detection of crime. The court in the present case stated that both of these requirements were satisfied.

The court also stated that the retained material was relevant not primarily for the purpose of establishing criminality against Mr Catt but for the purpose of studying the methods and organisation of a violent organised group whose demonstrations he attends.

The court therefore allowed the appeal in Mr Catt’s case and dismissed his claim.

Ms T

On the 20 July 2010 a minor incident occurred. Ms T had complained previously about the noise coming from the flat of her neighbour, Mr B. On leaving her flat she saw a friend of Mr B, Mr S, and it was later reported to the police that Ms T allegedly called Mr S a faggot. He said that he associated this with insulting remarks, which she had made to him on earlier occasions and he interpreted these comments as homophobic.

Following the incident a Crime Reporting Information System record (CRIS) was completed, recording the facts of the alleged incident and a decision was then made to serve on Ms T a ‘Prevention of Harassment Letter’, which they delivered through her letter box as she wasn’t at home. The practice of the Metropolitan Police was to retain an electronic copy of the letter for at least 7 years and the CRIS for 12 years.




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Ms T’s complaint was that she regarded the letter as an accusation which treated Mr S’s allegation as true, when her side of the story had not been heard. In addition she claimed that the retention of the information was a violation of her article 8 rights. However in the present case the only issue the court considered was the issue around the retention of the information on police records. It should be noted that in January 2013 the Metropolitan Police wrote to her solicitors and notified them that they had deleted the material as there had been no ongoing concerns regarding risk and there were no reports of any further incidents.

The court considered the issues and stated:

It arises, if the allegation is true, from a relatively trivial act of rudeness between neighbours who did not get on. The real problem is that the period of retention seems to be a standard period which applies regardless of the nature of the incident and regardless of any continuing value that the material may have for policing purposes. It was only because of these proceedings that the retention of the material was reviewed and the decision made in January 2013 to delete it. This is in my view difficult to reconcile with the Data Protection Principles in the Act. Nonetheless, I do not think that Ms T’s article 8 rights have been violated, because although the Metropolitan Police’s policy envisages the retention of the material for seven or 12 years, it was in fact retained for only two and a half years before the decision to delete it was made. The latter period can be justified by reference to the need to relate the incident of 20 July 2010 to future incidents, bearing in mind that some time may elapse after a repetition before a complaint is made to the police.

The court also stated that the form of Prevention of Harassment Letter used by the Metropolitan Police was unnecessarily menacing and accusatorial, given that no crime has been committed and that the facts have not always been fully investigated. However they stated that the issue in hand was a straightforward dispute about retention which could have been more appropriately resolved by applying to the Information Commissioner.

Based on the above the court also allowed the appeal in Ms T’s case.




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Financial investigationsR v GH [2015] UKSC 24

A case in the Supreme Court before Lord Neuberger sitting as President, Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson. The full judgment can be found at http://www.bailii.org/uk/cases/UKSC/2015/24.html

The background

This case was an appeal from the Court of Appeal upholding a finding that the respondent (H) had no case to answer on a charge of entering into or becoming concerned in a money laundering arrangement contrary to section 328(1) of the Proceeds of Crime Act 2002. The particulars of the offence were that he and another

between the first day of August 2011 and the 13th day of January 2012 entered into or became concerned in an arrangement which they knew or suspected would facilitate the retention, use or control of criminal property, namely money received into a Lloyds Bank account … and a Barclays bank account … from the sale of motor insurance through the [AM Insurance] website, by or on behalf of [B].

At the close of the evidence, the respondent submitted that there was no case to answer because at the time that the respondent entered into the arrangement no criminal property was yet in existence.

The trial judge upheld the submission and the prosecution appealed against the ruling pursuant to section 58 of the Criminal Justice Act 2003. The appeal was dismissed and the Court of Appeal (Lloyd Jones LJ and Irwin and Green JJ) held in summary that under section 328, it was not necessary for criminal property to exist at the moment when parties come to a prohibited arrangement, but that the arrangement must relate to property which is criminal property at the time when the arrangement begins to operate on it. On the facts of the case, the property had not become criminal property at the time when the arrangement began to operate on it.

The court certified that the case involved the following point of law of general public importance:

Where, by deception, A induces the payment of money to a bank account opened for that purpose by B pursuant to an arrangement with A to receive and retain that money, then may B commit an offence contrary to section 328 of the Proceeds of Crime Act 2002, on the basis that the arrangement to receive and retain the money in that bank account can be treated as both rendering the property ‘criminal property’ and facilitating its retention, use or control?

Financial investigationsCase law





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The facts

The case concerned a fraudster, B, who pleaded guilty to a number of offences. He established four ‘ghost’ websites falsely pretending to offer cut-price motor insurance and recruited associates to open bank accounts for channelling the proceeds.

One of the websites was established in the name of AM Insurance. It operated from 1 September 2011 to January 2012. Shortly before the website went live, H opened two bank accounts, one with Lloyds Bank and the other with Barclays. B took control of the documentation and bank cards relating to them. During the short active lifetime of the website, unsuspecting members of the public were duped into paying a total of £417,709 into the Lloyds Bank account and £176,434 into the Barclays account for non-existent insurance cover. The prosecution opened the case to the jury on the basis that H may not have known the details of B’s fraud, but that the circumstances in which the accounts were opened were such that H must have known or at least suspected that B had some criminal purpose.

POCA money laundering offences

The court set out the main sections of the Proceeds of Crime Act (‘POCA’) which deal with the offences of money laundering. This expression includes any act which constitutes an offence under sections 327, 328 or 329. Those sections criminalise various forms of dealing with ‘criminal property’, as defined in section 340.

Section 340(3) provides that property is criminal property if

(a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and

(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.

Section 340(5) provides that a person benefits from conduct ‘if he obtains property as a result of or in connection with the conduct’.

‘Criminal conduct’ is defined in section 340(2) as conduct which

(a) constitutes an offence in any part of the United Kingdom, or

(b) would constitute an offence in any part of the United Kingdom if it occurred there.’

Section 340(4) provides that ‘It is immaterial

(a) who carried out the conduct

(b) who benefited from it

(c) whether the conduct occurred before or after the passing of the Act.’




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Section 340(9) provides that property includes money; all forms of property, real or personal, heritable or moveable; and things in action and other intangible or incorporeal property.

Section 329 deals with acquisition, use and possession of criminal property. Section 327 deals with concealing or transferring criminal property and the like. Section 328, with which the court were directly concerned with, deals with arrangements facilitating the acquisition, retention, use or control of criminal property by or on behalf of another person.

Together, sections 327, 328 and 329 form the principal money-laundering offences and cover a wide range of conduct.

The material words of section 328 for present purposes are in subsection (1). This states:

A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.

The court stated that although on a literal interpretation these words could be read as creating criminal liability if the defendant suspects that the effect of the arrangement is to facilitate the acquisition, etc, of criminal property, even where his suspicions are misplaced and the property concerned is not criminal, that is not its accepted or correct interpretation.

The court held that the actus reus of the offence is entering or being concerned in an arrangement which in fact facilitates the acquisition etc of criminal property, and the mens rea required is knowledge or suspicion. The present case arose under section 328 but the arguments advanced on either side effect also sections 327 and 329. Subject to immaterial exceptions, a person commits an offence under section 327 if he:

(a) conceals criminal property

(b) disguises criminal property

(c) converts criminal property

(d) transfers criminal property

(e) removes criminal property from England and Wales or from Scotland or from Northern Ireland.

Subject to similar exceptions, a person commits an offence under section 329 if he:

(a) acquires criminal property

(b) uses criminal property

(c) has possession of criminal property.




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The court stated that criminal property for the purposes of sections 327, 328 and 329 means property obtained as a result of, or in connection with, criminal activity separate from that which is the subject of the charge itself. In everyday language, the sections are aimed at various forms of dealing with dirty money (or other property). They are not aimed at the use of clean money for the purposes of a criminal offence, which is a matter for the substantive law relating to that offence.

Case law on criminal property

The court stated that there was an unbroken line of Court of Appeal authority that it was a prerequisite of the offences created by sections 327, 328 and 329 that the property alleged to be criminal property should have that quality or status at the time of the alleged offence. They held it is that pre-existing quality which makes it an offence for a person to deal with the property, or to arrange for it to be dealt with, in any of the prohibited ways. In other words, criminal property for the purposes of sections 327, 328 and 329 means property obtained as a result of or in connection with criminal activity separate from that which is the subject of the charge itself.

The first authority discussed was the decision of the Court of Appeal Criminal Division in R v Loizou [2005] Cr App R 37. In this case, the defendants were charged under section 327 with transferring a large quantity of cash, knowing or suspecting that it constituted a person’s benefit from criminal conduct. The defendants were under police surveillance and the transfer took place in the car park of a hotel. The prosecution put its case in alternative ways. The first was that the money represented the proceeds of earlier criminal conduct. That approach was legally uncontroversial. The prosecution’s alternative case was that the money became criminal property at the moment of the transfer because it was paid for a criminal purpose, namely the purchase of smuggled cigarettes.

At a preliminary hearing the judge ruled that so long as the prosecution could prove that the money was transferred for a criminal purpose, the actus reus of the offence was established by the act of transfer, at which moment the money became criminal property. His ruling was reversed by the Court of Appeal. The court held that criminal property within section 327 meant property which was already criminal at the time of the transfer, by reason of constituting or representing a benefit from earlier criminal conduct and not the conduct which was the subject of the indictment.

In R v Geary [2010] EWCA Crim 1925, another case under section 328, a further argument was raised which was relevant to the present case. The defendant agreed to help a friend named Harrington to hide some money for a period. Under the arrangement Harrington transferred around £123,000 into the defendant’s bank account. The defendant used some of it to make some purchases for Harrington and, after an interval, he repaid the balance to Harrington less about £5,000. The prosecution’s case was that the money represented proceeds of a fraud carried out by a bank official, who stole it from dormant accounts. The stolen money was laundered through a network of recipients, each of whom retained a small sum as payment for his services.




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The recipients included Harrington and the defendant. The defendant’s case was that he was approached by Harrington with a story that he was about to become involved in divorce proceedings, and that the defendant was asked to help Harrington to hide the money from Mrs Harrington (and the court), which he agreed to do. He denied any knowledge that the money had a criminal source.

In the course of the trial, the judge was invited to indicate how he proposed to direct the jury. He said that in his view the defendant’s account of the facts did not provide him with a defence to the charge under section 328. The defendant then pleaded guilty on the basis of the facts alleged by him, which the prosecution perhaps surprisingly were content to accept, and he appealed against his conviction on the ground that the judge’s ruling was wrong. The Court of Appeal allowed his appeal and quashed the conviction.

It was argued by the prosecution that the arrangement on the accepted version of the facts involved a conspiracy to pervert the course of justice. The money transferred was therefore criminal property at the moment of being paid into the defendant’s account. Alternatively, the arrangement involved not merely the receipt of the money but also its retention, use or control, and so constituted the offence. Both parts of the argument were rejected. Moore-Bick LJ said at para 19:

In our view the natural and ordinary meaning of section 328(1) is that the arrangement to which it refers must be one which relates to property which is criminal property at the time when the arrangement begins to operate on it. To say that it extends to property which was originally legitimate but became criminal only as a result of carrying out the arrangement is to stretch the language of the section beyond its proper limits. An arrangement relating to property which has an independent criminal object may, when carried out, render the subject matter criminal property, but it cannot properly be said that the arrangement applied to property that was already criminal property at the time it began to operate on it. Moreover, we do not accept that an arrangement of the kind under consideration in the present case can be separated into its component parts, each of which is then to be viewed as a separate arrangement. In this case there was but one arrangement, namely, that the appellant would receive money, hold it for a period and return it. To treat the holding and return as separate arrangements relating to property that had previously been received is artificial.

Moore-Bick LJ added, obiter, at para 39 that, on the assumption that the purpose for which the money was transferred to the defendant involved perverting the course of justice, it became criminal property in his hands on its receipt, and he could therefore have been charged with an offence of converting or transferring criminal property contrary to section 327 by returning most of it to Harrington, together with the goods which he had purchased with part of it.




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In R v Amir and Akhtar [2011] EWCA Crim 146, Akhtar entered into an arrangement with a mortgage broker to obtain money from mortgage companies by submitting false mortgage applications on behalf of third parties. He was prosecuted under section 328. The particulars of the offence in the indictment do not appear from the report, but the prosecution argued that Akhtar was guilty because he entered into an arrangement which he knew would facilitate the acquisition of property for third parties by deception, and, as an alternative submission, that the funds had the character of criminal property at the time when the arrangement began to operate on them. The Court of Appeal quashed Akhtar’s conviction. As to the first part of the argument advanced by counsel for the prosecution, Elias LJ said at para 21:

On his analysis an offence is committed where a defendant becomes concerned in an arrangement which facilitates the criminal acquisition of property. The statute requires an arrangement facilitating the acquisition of criminal property. There is a material distinction.

Issues on appeal

A number of issues were raised on appeal:

(1) Does the commission of an offence under section 328 require the property to constitute criminal property prior to the arrangement coming into operation?

(2) Does the property have to exist at the time when the defendant enters into or becomes concerned in the arrangement?

(3) Did the sums received into the respondent’s accounts constitute criminal property before being paid into those accounts?

(4) Was the actus reus of the offence committed by reason of the arrangement facilitating the retention, use or control of the money paid into the respondent’s accounts?

Does the commission of an offence under section 328 require the property to constitute criminal property prior to the arrangement coming into operation?

Counsel for the appellant submitted that the Court of Appeal authorities referred were wrong, and that the same conduct could both cause property to become criminal and simultaneously constitute the offence charged under section 328. The same submission was also made in relation to sections 327 and 329 and it was submitted that a thief who steals ‘legitimate’ property is necessarily at the same time guilty of ‘acquiring criminal property’ contrary to section 329.

The court discussed the Court of Appeal’s interpretation of ‘criminal property’ in the various money laundering sections as meaning property which already has the quality of being criminal property, as defined in section 340, by reason of criminal conduct distinct from the conduct alleged to constitute the actus reus of the money laundering offence itself, accords not only with the natural meaning of the sections but also with the purpose underlying them.




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The court found that the Court of Appeal’s interpretation was also consistent with the definition of money laundering in the Council Directive. The version of the Directive which was in force at the date of enactment of POCA defined money laundering as meaning the following conduct, when committed intentionally:

• the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action

• the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity

• the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity or from an act of participation in such activity

• participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the foregoing indents.

The court stated that a wider interpretation would have serious potential consequences for third parties including banks and other financial institutions, who already have an onerous reporting obligation if they know or suspect, or have reasonable grounds for knowing or suspecting, that another person is engaged in money laundering. That obligation would be considerably enlarged and its limits potentially difficult to gauge if they are required, on pain of criminal sanctions, to report any suspicion, or reasonable grounds for suspicion, of a customer’s intended use of property either in connection with an offence within the UK or in connection with conduct elsewhere in the world which would be an offence if committed within the UK.

Does the property have to exist at the time when the defendant enters into or becomes concerned in the arrangement?

The Court of Appeal held in the present case that there was no basis on the plain meaning of the words used in section 328 for restricting the offence to a case where the criminal property is already in existence at the time at which a defendant enters into or becomes concerned in the arrangement.

Counsel for the respondent argued that the court was wrong and relied on the use of the present tense in sections 327, 328 and 329, which was contrasted with the use of the past tense in the definition of criminal property in section 340(4). Counsel for the respondent observed that sections 327 and 329 presuppose the existence of the relevant criminal property at the time of the actus reus. Similarly, it was submitted that under section 328 the court must take a snapshot view of the position at the moment when the defendant entered into the arrangement.




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The court held that as a matter of strict English, the way in which the section has been drafted may be criticised for condensing the separate ingredients of actus reus and mens rea into one, stating that places no undue strain on the language to read the section as providing that a person commits an offence if a) he enters into or becomes concerned in an arrangement which facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person, and b) he knows or suspects that it does so. The court held that it has sensibly to be read in that way or else a party might be guilty by reason of having the necessary mens rea even if it transpired that the property was not criminal. The offence is complete when the arrangement becomes one which facilitates the acquisition, etc, of criminal property and the defendant knows or suspects that this is so. At that point, he becomes a participant in an arrangement which is made criminal by section 328.

The court held that the Court of Appeal was therefore right in the present case to hold that it does not matter whether criminal property existed when the arrangement was first hatched. What mattered was that the property should be criminal at a time when the arrangement operates on it.

Did the sums received into the respondent’s account constitute criminal property before being paid into those accounts?

Counsel for the appellant submitted that the money paid by the victims into the respondent’s accounts was criminal property at the time of payment because it represented a chose in action, namely the obligation of the purchasers of insurance to pay the price. It was submitted that the fact that the contracts were procured by fraud and therefore voidable made no difference because the contracts were valid until avoided.

This argument was first advanced in the Court of Appeal and was rejected. It appears from the judgment of the Court of Appeal that the argument presented to it was put in a slightly different form. The prosecution is recorded as having argued that B had acquired a proprietary interest in a chose in action, but the argument does not appear to have been developed as to how this fed through into the charge made against the respondent.

Lloyd Jones LJ, delivering the judgment of the Court of Appeal, said that the argument did not assist the prosecution in this case because the particulars in the indictment identified the criminal property as money received into the accounts opened by the respondent. He added that the court did not consider it necessary to express a view on whether the fraud transactions may have given rise to property of another character, which he said was only touched upon and not fully argued before the court.

In the present case, counsel for the appellant took the point that property will amount to criminal property if it constitutes ‘or represents’ a benefit from criminal conduct; and so, if there was an underlying chose in action which the money paid into the account represented, the money paid would satisfy the definition of being criminal property.




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The court stated that this argument was sound as far as it goes, but the appellant faced a more fundamental problem in seeking to identify the alleged chose in action. The POCA defines property as including a thing in action, but, if the prosecution is going to advance a case on that basis, it has to identify and prove the nature of the proprietorial right.

Counsel for the appellant suggested initially that B had some sort of contractual right against the victims of his fraud, but any supposed contract would presumably have been between AM Insurance and the victims, and there was no evidence before the court to show what form any such putative contract may have taken.

The court stated that the prosecution would have to establish the existence of a prior bilateral contract (ie a contract which bound the purchaser in advance of paying the supposed premium), rather than a unilateral contract (i.e. an offer by AM Insurance which was available for acceptance by the would-be insured paying the premium quoted). The court also stated that other questions might arise as to whether there was any legal chose in action prior to the payments made by the victims, but found there was a stark absence of material before the court to substantiate a case of the nature suggested.

The court stated that there may be cases properly founded on the laundering of property in the form of a chose in action, but it was not a subject with which jurors or, for that matter, judges of the Crown Court are likely to be readily familiar. They went on to say that if the prosecution is going to advance a case on that basis, it has not only to consider whether the case is capable of being presented in a readily comprehensible way (or whether there might be a different and simpler method of approach) but also to ensure that its tackle is properly in order. The court concluded that abstract references to a chose in action, without the basis being clearly and properly identified and articulated, were a recipe for confusion.

Was the actus reus of the offence committed by reason of the arrangement facilitating the retention, use or control of the money paid into the accounts?

The particulars in the indictment made no reference to the acquisition of criminal property but alleged that the respondent and another entered into or became concerned in ‘an arrangement which they knew or suspected would facilitate the retention, use or control of criminal property’. As a matter of pleading, the Court of Appeal rightly criticised the form of the particulars for including the words ‘would facilitate’.

The court in the present case found that looking at the substance of the matter, the money paid by the victims into the accounts was lawful money at the moment at which it was paid into those accounts and as such it was not a case of the account holder acquiring criminal property from the victims.




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It was submitted on behalf of the prosecution before the Court of Appeal and in the court in the present case that in that respect the arrangement fell squarely within the ambit of section 328. The Court of Appeal treated the case as indistinguishable from Geary and rejected the argument. Lloyd Jones LJ said at para 39:

Although the arrangement particularised in count two is limited to facilitation of the retention, use and control of criminal property, facilitation of the acquisition of the money via those accounts is, on the Crown’s factual case, an integral part of that arrangement. It seems to us that in these circumstances it is both artificial and illegitimate to seek to sever one element of an integral arrangement (facilitation of acquisition) in order to leave other elements (facilitation of retention, use and control) which, if considered in isolation to constitute the arrangement, would relate to criminal property. Moreover, the position cannot be improved by artificially limiting the particulars of offence alleged in count two to certain elements of the wider arrangement which the Crown maintains was in fact entered into.

The court held that there was an important distinction between the facts of Geary and the present case. In Geary it would indeed have been artificial to regard the property as changing its character between the defendant receiving it and repaying it. The property belonged to Harrington at all times and, more importantly, his interest in it was lawful on the facts known to the defendant. It was not a case of the defendant holding proceeds originating from a crime independent of the arrangement made between them. It was Harrington’s lawfully owned property when it was paid to the defendant, and it remained his lawfully owned property throughout the time that the defendant had possession of it. It bore no criminal taint apart from the arrangement made between them. The fact that the arrangement involved a conspiracy to pervert the cause of justice did not mean that the money had a criminal quality independent of the arrangement.

It was held that in the present case, this was different. The character of the money did change on being paid into the respondent’s accounts. It was lawful property in the hands of the victims at the moment when they paid it into the respondent’s accounts. It became criminal property in the hands of B, not by reason of the arrangement made between B and the respondent but by reason of the fact that it was obtained through fraud perpetrated on the victims.

The court held that there is no artificiality in recognising that fact, and did not see it as illegitimate to regard the respondent as participating in (or, in the language of section 328, entering into or becoming concerned in) an arrangement to retain criminal property for the benefit of another. For that reason, the ruling that the respondent had no case to answer was erroneous and this appeal was allowed.




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This same reasoning was applied to sections 327 and 329. A thief is not guilty of acquiring criminal property by his act of stealing it from its lawful owner, but that does not prevent him from being guilty thereafter of an offence under one or other, or both, of those sections by possessing, using, concealing, transferring it and so on.

The court held the ambit of those sections is wide, but that it would be bad practice for the prosecution to add additional counts of that kind unless there is a proper public purpose in doing so, for example, because there may be doubt whether the prosecution can prove that the defendant was the thief but it can prove that he concealed what he must have known or suspected was stolen property, or because the thief’s conduct involved some added criminality not just as a matter of legal definition but sufficiently distinct from the offence that the public interest would merit it being charged separately.

The court went on to say that ‘…courts should be willing to use their powers to discourage inappropriate use of the provisions of POCA to prosecute conduct which is sufficiently covered by substantive offences, as they have done in relation to handling stolen property.’

They stated that a person who commits the offence of handling stolen property contrary to section 22 of the Theft Act 1968 is also necessarily guilty of an offence under section 329 of POCA, but the Court of Appeal has discouraged any practice of prosecuting such cases under POCA instead of charging the specific statutory offence under the Theft Act.

The court had some doubt about the correctness of Moore-Bick LJ’s obiter dictum in Geary that on the facts of that case the defendant could have been charged with an offence of converting or transferring criminal property contrary to section 327. However, the object of Moore-Bick LJ’s observation was to make the broader point that it is undesirable to give a strained and unduly broad interpretation to section 328, particularly where the conduct would fall within another section of the Act. The court was in agreement of this.

The court concluded by stating that the phrasing of the certified question was not entirely apt because it asked whether the arrangement to receive and retain money in a bank account can be treated as both rendering the property ‘criminal property’ and facilitating its retention, use or control. What rendered the property which the respondent received from the victims ‘criminal property’ was not the arrangement made between B and the respondent, but the fact that it was obtained from the victims by deception. For the reasons explained, the arrangement between B and the respondent for its retention was capable of constituting an offence under section 328.




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Policing practice

CrimeCrime in England and Wales, year ending December 2014

The Office for National Statistics has published a statistical bulletin providing the latest statistics on crime from two principal sources; the Crime Survey for England (CSEW) and Wales and police recorded crime. The latest figures from the CSEW show an estimated 6.9 million incidents against households and resident adults in England and Wales. This is a decrease of 7% compared to the previous year, and the lowest since the CSEW began in 1981. In contrast, there was a 2% increase in police recorded crime compared with the previous year. The renewed focus on the quality of crime recording is thought to have led to improved compliance with national recording standards, which has in turn led to the recording of more of the crimes reported to the police.

This improvement in compliance is thought to have had a particular effect on the categories of violence against the person and public order offences, which have increased by 21% and 14% respectively. Total sexual offences rose by 32%, with the numbers of rapes and other sexual offences being at the highest level recorded since the introduction of the National Crime Recording Standard (NCRS) in 2002/03. In addition to the improvements in recordings, this is also thought to be a reflection of a greater willingness of victims of such crimes to come forward. Crime in England and Wales, year ending December 2014 can be accessed in full at http://www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/year-ending-december-2014/crime-in-england-and-wales--year-ending-december-2014.html#tab-Overview

New offence of illegal working proposed

A new bill on immigration has been proposed, introducing a series of measures to control immigration and do more to target illegal migration. As part of the new legislation, an offence of illegal working will be introduced to close the loophole which means people who are in the country illegally can’t benefit from working and to allow police to seize wages as proceeds of crime.

The offence will apply to those who have entered the country legally, but are in breach of their conditions or have overstayed. Currently, those with leave to remain who are working illegally in breach of their conditions may be prosecuted under section 24 of the Immigration Act 1971 and be liable on summary conviction to a 6 month custodial sentence and/or an unlimited fine. Those that entered illegally or have overstayed their leave however are not subject to the current conditions of stay. The new offence will address the gap and will close the loophole whereby the wages of some illegal migrants fall outside the scope of the confiscation provisions in the Proceeds of Crime Act 2002. Further information can be accessed at https://www.gov.uk/government/news/prime-minister-pledges-to-control-and-reduce-immigration

http://www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/year-ending-december-2014/crime-in-england-and-wales--year-ending-december-2014.html#tab-Overview



https://www.gov.uk/government/news/prime-minister-pledges-to-control-and-reduce-immigration

https://www.gov.uk/government/news/prime-minister-pledges-to-control-and-reduce-immigration



OFFICIAL 47

DiversityFollow up to Joint review of disability hate crime

A follow up review into how the police, the Crown Prosecution Service and the probation service deal with disability hate crime has been published by the four criminal justice inspectorates. It found that all three organisations have failed to comply and act on the recommendations made in a previous report. That report, entitled ‘Living in a different world: A joint review of Disability Hate Crime’ was published in March 2013 and made seven recommendations for police, CPS and probation trusts to implement within a specific timescale. These included the need for a single and clear definition of disability hate crime and the requirement for police to ensure every opportunity is taken to identify victims. Police, prosecutors and probation officers were also recommended to undertake training around disability hate crime to improve their investigative, tribunal and rehabilitation skills. The recommendations were designed to improve performance and embed good working practices, acknowledging that disability hate crime should be treated the same as other hate crimes such as race, religion, sexual orientation or transgender.

While the follow up report identified some examples of good practice relating to awareness-raising at a national level, it also found that neither the police nor the CPS has succeeded in significantly improving performance at an operational level. The National Offender Management Service (NOMS) has provided direction by issuing guidance to probation trusts, in July 2013, in the form of a framework to frontline staff. However the report has found that disability hate crime is not dealt with effectively overall by the probation service.

The Criminal Justice Joint Inspection Joint review of disability hate crime follow up can be accessed in full at http://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/joint-review-of-disability-hate-crime-review.pdf

DiversityPolicing practice

http://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/joint-review-of-disability-hate-crime-review.pdf

http://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/joint-review-of-disability-hate-crime-review.pdf



OFFICIAL 48

PoliceCode of Practice Issued Under Section 377A of the Proceeds of Crime Act 2002 (England and Wales)

The Attorney General’s Office has published a Code of Practice under section 377A of the Proceeds of Crime Act 2002. The Code provides guidance as to how in England and Wales:

• the Director of Public Prosecutions and the Director of the Serious Fraud Office (the relevant Directors) are to use the Part 8 investigatory powers in their role as appropriate officers in civil recovery investigations

• the relevant Directors are to use their powers to obtain a disclosure order in a civil recovery or a confiscation investigation

• a person specified by the Secretary of State as a prosecutor under section 357(9) is to use the power to obtain a disclosure order in a confiscation investigation, and

• the relevant Directors use their powers to request assistance in connection with a civil recovery investigation, a detained cash investigation or an exploitation proceeds investigation, in relation to evidence which is overseas.

The powers of investigation are not available for a civil recovery investigation, if an interim receiving order or administration order is extant against the relevant property, if proceedings for a civil recovery order have been started against the relevant property or if cash is detained under section 295 of POCA. They do, however, remain available if a property freezing order has been obtained, but proceedings for a civil recovery order have not started.

This Code is a revised version of the Code of Practice entitled ‘Code of Practice issued under section 377A of the Proceeds of Crime Act 2002’ laid before Parliament on 18 June 2008. This revised Code replaced the original version in relation to England and Wales from 1 June 2015. However the original version of the Code continues to apply in relation to investigations carried out in Northern Ireland.

This Code includes a section on general provisions relating to all orders and warrants (paragraphs 18 to 52) followed by detailed sections on each of the following topics:

• production orders (paragraphs 53 to 71)

• search and seizure warrants (paragraphs 72 to 121)

• customer information orders (paragraphs 122 to 131)

• account monitoring orders (paragraphs 132 to 142)

• disclosure orders (paragraphs 143 to 218)

• obtaining evidence from abroad (paragraphs 219 to 226).

PolicePolicing practice



OFFICIAL 49

There is a separate code of practice in respect of the Part 8 investigation powers when they are exercised by law enforcement officers, namely the Director General of the NCA and members of his staff, constables, officers of HMRC, immigration officers and AFIs (these are civilian investigators accredited by the NCA).

This Code provides guidance to:

• the relevant Directors in their role as appropriate officers in civil recovery investigations in England and Wales

• the relevant Directors in their role as relevant authority in relation to an application for a disclosure order in England and Wales

• a specified person in their role as relevant authority in relation to an application for a disclosure order in England and Wales

• the relevant Directors when making requests for assistance under section 375A in relation to evidence which the Director thinks overseas in connection with a civil recovery investigation, a detained cash investigation or an exploitation proceeds investigation.

This Code also applies to the exercise of functions by a member of a relevant Director’s staff, or to a person providing services under arrangements made by a relevant Director, if the member of staff or the person providing services is authorised as described to perform those functions.

Appropriate officers (as set out in section 378) conduct investigations under Part 8, and there are 5 kinds of investigation permitted:

• confiscation investigations

• civil recovery investigations

• detained cash investigations

• money laundering investigations and

• exploitation proceeds investigations.

The five powers of investigation in England and Wales which may be used for investigations are:

• production orders

• search and seizure warrants

• disclosure orders

• customer information orders

• account monitoring orders.




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Where a person fails to comply with any provision of the code, he is not by reason only of that failure liable to any criminal or civil proceedings, but the code is admissible as evidence in such proceedings.

The Code of Practice can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424777/49416_Un-Act_Code_of_Practice_Accessible_v0.1.pdf

Guidance on the amendments to the Proceeds of Crime Act 2002

Significant amendments to the Proceeds of Crime Act 2002 (POCA) were brought fully into force on 1 June 2015. To support stakeholders, the Home Office has published guidance on these changes. The guidance is aimed at those with a practical interest in the amendments to POCA and is intended to provide the reader with a concise summary of the changes.

POCA has been amended by the Policing and Crime Act 2009 and the Crime and Courts Act 2013, with the following provisions being brought fully into force on 1 June 2015:

• Section 289 (Amendment of search powers)

• New sections 47A-47S and 41A and 44A (Search, seizure and detention of property)

• Sections 343 and 344 (Transfer of jurisdiction in detained cash investigations)

• Section 341 (2) (Definition of civil recovery investigation)

• New sections 297A-297G (Administrative forfeiture of cash)

• Section 41 (Legal Aid payments from restraint orders).

In addition to the two Acts above, the majority of Part 1 of the Serious Crime Act 2015 also came into force on 1 June 2015. It makes a number of amendments to POCA, including the following

• a requirement to set out any known details of third party interests in confiscation proceedings

• strengthening prison sentences for failing for pay confiscation orders

• enabling assets to be frozen more quickly and earlier in investigations

• significantly reducing the time that the courts can give offenders to pay confiscation orders and

• extending the investigative powers in POCA so that they are available to trace assets once a confiscation order is made.

Again, the guidance is aimed at those with a practical interest in the amendments to POCA and is intended to provide a concise summary of the provisions set out in Part 1 of the Act. It should be read in conjunction with the Act itself and the accompanying explanatory notes.

The guidance can be accessed in full at http://www.college.police.uk/What-we-do/Standards/Documents/Serious_Crime_Act_-_Part_1_Guidance_for_Stakeholders.pdf


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424777/49416_Un-Act_Code_of_Practice_Accessible_v0.1.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424777/49416_Un-Act_Code_of_Practice_Accessible_v0.1.pdf

http://www.college.police.uk/What-we-do/Standards/Documents/Serious_Crime_Act_-_Part_1_Guidance_for_Stakeholders.pdf

http://www.college.police.uk/What-we-do/Standards/Documents/Serious_Crime_Act_-_Part_1_Guidance_for_Stakeholders.pdf



OFFICIAL 51

Home Office Circular 012/2015: Police and Criminal Evidence Act 1984 (PACE) Code of Practice A (stop and search)

This circular has been issued by the Home Office to highlight that the revised Code of Practice A to the Police and Criminal Evidence Act (PACE) 1984, which deals with stop and search powers, came into force on 19 March 2015.

On 2 July 2013 the government opened a consultation on the police powers of stop and search, namely those under section 1 of PACE, section 23 of the Misuse of Drugs Act 1971 and section 60 of the Criminal Justice and Public Order Act 1994. Part of this consultation involved revising PACE Code of Practice A to make it clearer as to what constitutes ‘reasonable grounds for suspicion’, which is the legal basis for officers carrying out most stops.

In addition this circular highlights the fact that the revised code emphasises that where officers are not using their stop and search powers properly they will face formal performance or disciplinary proceedings. Supporting notes have been produced which highlight the changes to Code A (see link below).

The supporting notes attached to the circular can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/427346/2015_PACE_Code_A_Revised_19-03-15.pdf

The revised Code A can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/414195/2015_Code_A_web-19-03-15.pdf

The Circular can be found at https://www.gov.uk/government/publications/circular-0122015-police-and-criminal-evidence-act-1984-pace-code-of-practice-a-stop-and-search-coming-into-operation-on-19-march-2015/police-and-criminal-evidence-act-1984-pace-code-of-practice-a-stop-and-search-coming-into-operation-on-19-march-2015

RIPA Codes updated

Two of the codes of practice to the Regulation of Investigatory Powers Act 2000 (RIPA) have been updated by the Home Office. Revised versions of the code of practice for the acquisition and disclosure of communications data and the code of practice for the retention of communications data have been published on the Home Office website.

The codes provide guidance on the procedures that should be followed when communications data is accessed or disclosed under RIPA, or retained under the Data Retention and Investigatory Powers Act 2014 or the Anti-terrorism, Crime and Security Act 2001.

The updated codes can be accessed in full at https://www.gov.uk/government/publications/code-of-practice-for-the-acquisition-and-disclosure-of-communications-data


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/427346/2015_PACE_Code_A_Revised_19-03-15.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/427346/2015_PACE_Code_A_Revised_19-03-15.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/414195/2015_Code_A_web-19-03-15.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/414195/2015_Code_A_web-19-03-15.pdf

https://www.gov.uk/government/publications/circular-0122015-police-and-criminal-evidence-act-1984-pace-code-of-practice-a-stop-and-search-coming-into-operation-on-19-march-2015/police-and-criminal-evidence-act-1984-pace-code-of-practice-a-stop-and-search-coming-into-operation-on-19-march-2015




https://www.gov.uk/government/publications/code-of-practice-for-the-acquisition-and-disclosure-of-communications-data

https://www.gov.uk/government/publications/code-of-practice-for-the-acquisition-and-disclosure-of-communications-data



OFFICIAL 52

ONS publish statistical release on police powers and procedures in England and Wales for year ending 31 March 2014

The Office for National Statistics (ONS) have published the latest statistical release which includes details on the number of arrests, detentions, road checks, intimate searches, stops and searches and breath tests carried out in England and Wales up to year ending 31 March 2014.

Key findings

Arrests

• there were 1,041,221 arrests carried out by the police in England and Wales, representing a fall of 3% on the previous year

• 84% of arrests were of men. This is consistent with sex breakdowns for previous years

• a third of arrests were for offences related to violence against the person and just over one in five were for theft and handling stolen goods. Arrests for sexual offences increased by 7%

• excluding those who were under 10 (i.e. under the legal age of arrest) and those whose age was unknown, each age group saw a fall in the number of arrests, compared with the previous year

• 79% of persons arrested considered themselves to be White

• the number of persons arrested fell for each ethnic group compared with the year ending 31 March 2013.

Detentions

• 3,684 persons were detained under the Police and Criminal Evidence Act 1984 (PACE) for more than 24 hours, by police in England and Wales. This represents a fall of 7% compared with the previous year

• 95% per cent (3,487) of those detained were held for between 24 and 36 hours. 60 persons were held for more than 36 hours, before being released without charge. The remaining 137 were detained under warrant for further arrest

• police in England and Wales applied to magistrates for 531 warrants of further detention with 95% of applications being successful

• when a warrant of further detention was granted, this led to a charge in 68% of cases, representing a decrease of 3 percent on the previous year.




OFFICIAL 53

Stop and Search

• 899,919 persons and/or vehicles, were stopped and searched by police in England and Wales, representing a decrease of 12% on the previous year

• the total number of all stops and searches was at its lowest since the year ending 31 March 2004

• 895,975 stops and searches were under section 1 of PACE, representing a decrease of 11% compared with the previous year

• 3,944 stops and searches were made under section 60 of the Criminal Justice and Public Order Act 1994, representing a decrease of 26% compared with the previous year

• there were no stops and searches under section 47A of the Terrorism Act 2000 (TACT 2000) since the year ending 31 March 2011

• 32% of all stops and searches carried out in England and Wales were conducted by the Metropolitan Police Service (MPS)

• 12% of all stops and searches carried out by police in England and Wales led to an arrest.

Road checks

• there were 17 road checks carried out by a total of 9 forces in England and Wales, resulting in 2,021 vehicles being stopped. This was 39% lower than the year ending 31 March 2013

• the average number of vehicles stopped per road check fell from 127 to 119

• of the 17 road checks that were authorised, 13 were to ascertain whether the vehicle was carrying an individual who had witnessed an indictable offence and 4 were to ascertain whether an individual had committed an indictable offence.

Intimate searches

• intimate searches were carried out by 23 police forces in England and Wales. South Wales conducted the most intimate searches with 15, followed by Surrey who conducted 12

• there were a total of 73 intimate searches carried out by police in England and Wales with 92% carried out by a suitably qualified person

• over 80% of all searches were made in an attempt to find Class A drugs. The remaining searches were conducted to find harmful articles. None of the searches for harmful articles resulted in anything being found.




OFFICIAL 54

Breath tests

• there were 683,631 breath tests carried out in 2013, similar to the 686,346 carried out in 2012

• in Wales, there were 29 breath tests per 1,000 population in 2013. In England this was 11 per 1,000 population

• the number of breath tests per 1,000 population that were positive or refused averaged around 1 throughout England and Wales, though were not as varied as the total number of breath tests at police force level

• the month with the highest number of breath tests conducted in 2013 was December when 162,943 breath tests were carried out; this equates to 24% of all breath tests in 2013 and coincides with the annual national Christmas drink and drug driving campaign

• the number of tests carried out in June 2013 (108,592) was more than double, and in December 2013 (162,943) was almost quadruple, the average of the other months.

Police Powers and Procedures England and Wales, year ending 31 March 2014 can be found at https://www.gov.uk/government/statistics/police-powers-and-procedures-england-and-wales-year-ending-31-march-2014


https://www.gov.uk/government/statistics/police-powers-and-procedures-england-and-wales-year-ending-31-march-2014

https://www.gov.uk/government/statistics/police-powers-and-procedures-england-and-wales-year-ending-31-march-2014



OFFICIAL 55

Training and developmentEquality and Human Rights Commission to support the police with new stop and search training

The Equality and Human Rights Commission (EHRC) is working with the College of Policing to develop a new stop and search training programme for officers. The training will assist police officers in their statutory duties to promote and respect human rights and equality laws ‘with a particular focus on reducing unconscious bias and discrimination, particularly against young black and Asian men.’

The EHRC’s 2010 ‘Stop and Think’ report highlighted concerns about excessive and disproportionate use against ethnic minorities. Following the report, the Commission focused on ten forces and engaged more formally with five of them. Two forces – Leicestershire and Thames Valley entered into formal agreements with the Commission, which stopped short of taking formal legal action. A second report two years later expressed similar concerns in other force areas.

The work with the College of Policing will ensure that the knowledge and expertise gathered through the Commission’s work is transferred to the College to enable them to meet the Home Secretary’s recommendations. The new training programme, which will eventually cover all 43 police forces in England and Wales, will initially be trialled with five forces before being rolled out across all areas. Officers will be assessed before and after training to measure changes in their understanding. Members of the public who have been stopped and searched to measure their experience will also be surveyed to measure their experience.

Further information can be found at http://www.equalityhumanrights.com/commission-support-police-new-stop-and-search-training

Training and developmentPolicing practice

http://www.equalityhumanrights.com/commission-support-police-new-stop-and-search-training

http://www.equalityhumanrights.com/commission-support-police-new-stop-and-search-training



OFFICIAL 56

National Security Council discuss new Counter-Extremism Bill

On the 13 May 2015 the first meeting of the new National Security Council (NSC), chaired by the Prime Minister, was held. The main area of discussion regarded a new Counter-Extremism Bill. This is in response to the report published by the Prime Minister’s Extremism Taskforce in December 2013. During the meeting the Prime Minister set out his intention to prioritise new legislation to make it harder for people to promote dangerous extremist views in communities.

The new Counter-Extremism legislation is expected to include the following:

• introducing Banning Orders for extremist organisations who seek to undermine democracy or use hate speech in public places, but fall short of proscription

• new Extremism Disruption Orders to restrict people who seek to radicalise young people

• powers to close premises where extremists seek to influence others

• strengthening the powers of the Charity Commission to root out charities who misappropriate funds towards extremism and terrorism

• further immigration restrictions on extremists

• a strengthened role for Ofcom to take action against channels which broadcast extremist content.

The report of the Prime Minister’s Extremism Taskforce can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263181/ETF_FINAL.pdf

Full details can be found at https://www.gov.uk/government/news/counter-extremism-bill-national-security-council-meeting

Criminal justice system

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263181/ETF_FINAL.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263181/ETF_FINAL.pdf

https://www.gov.uk/government/news/counter-extremism-bill-national-security-council-meeting

https://www.gov.uk/government/news/counter-extremism-bill-national-security-council-meeting



OFFICIAL 57

Home Office Circular 008/2015: Serious Crime Act 2015 – Clarification

Further to the article on Home Office Circular 008/2015 which appeared in the May edition of the Digest, clarification is provided below with regard to Section 50 of the Serious Crime Act 2015.

Section 50: Consolidation of the Financial Reporting Order into the SCPO

As a result of the changes made by section 50 of the SCA 2015, the SCPO will become the means of imposing financial reporting requirements on a person following a conviction instead of the Financial Reporting Order (FRO). The aim of this change is to improve the use of financial reporting requirements as a means of preventing further.

Section 50 of the SCA 2015 repeals the FRO legislation and from 3 May 2015 financial reporting requirements will be imposed through an SCPO. Section 50 also replicates the information sharing provisions in the Serious Organised Crime and Police Act 2005 so that law enforcement officers can verify the reports of individuals subject to a SCPO (for example, by seeking information from banks and other financial institutions).

Prosecutors other than the CPS (for example, the Financial Conduct Authority) previously had the power to make applications for the FRO but do not have the power to make applications for SCPOs. The CPS has agreed to make the applications on their behalf.

By way of clarification, section 8 of the Serious Crime Act 2007 continues to have effect, under which it is provided that a SCPO may be made only on an application by the Director of Public Prosecutions or the Director of the Serious Fraud Office in the case of an order in England and Wales and the Director of Public Prosecutions for Northern Ireland in the case of an order in Northern Ireland.

Under transitional provisions in section 86 of the 2015 Act, existing FROs will remain active until they expire, and the existing offence of breaching an FRO will remain available.

Dangerous Dog Offences Consultation Closing

In light of recent legislative changes to the offences and maximum penalties relating to dangerous dog offences, the Sentencing Council is consulting on a revision to their dangerous dog guideline. The principal changes are:

• extending the Dangerous Dogs Act 1991 to private property

• increasing the maximum penalties

• extending the law to cover attacks on assistance dogs

• dangerousness test.




OFFICIAL 58

The Council is seeking views on:

• the principal factors that make any of the offences included within the draft guideline more or less serious

• the additional factors that should influence the sentence

• the approach taken to structuring the draft guidelines

• the sentences that should be passed for dangerous dog offences; and

• anything else that you think should be considered.

The consultation applies to the following offences:

• dog dangerously out of control in any place causing the death of a person

• dog dangerously out of control in any place where a person is injured

• dog dangerously out of control in any place where an assistance dog is injured

• dog dangerously out of control in any place

• possession of a prohibited dog, breeding, selling, exchanging or advertising a prohibited dog.

The consultation closes on 9 June 2015. The full consultation document can be accessed at http://www.sentencingcouncil.org.uk/consultations/dangerous-dog-offences-consultation/

Responses can be made online at the above link or to:

Mandy Banks Office of the Sentencing Council Room EB20 Royal Courts of Justice London WC2A 2LL DX: 44450 RCJ/Strand Tel: 020 7071 5793 Email: [email protected]


http://www.sentencingcouncil.org.uk/consultations/dangerous-dog-offences-consultation/

mailto:consultation%40sentencingcouncil.gsi.gov.uk?subject=



OFFICIAL 59

Home Office publish revised framework document for the National Crime Agency

The revised framework document replaces the first framework document which was signed by the Home Secretary and the Director General of the National Crime Agency (NCA) on 15 October 2013.

The framework document is issued under the Crime and Courts Act 2013 (‘the Act’) and sets out the respective roles and responsibilities of the Home Secretary and the Director General of the NCA (‘the Director General’). It also sets out the principles which will govern the relationship between the Home Office and NCA and the ways in which the NCA operates. This includes the NCA’s internal governance, accountability, management, operational and financial arrangements.

The framework document outlines out how the NCA will work collaboratively with other government departments, UK police forces and law enforcement agencies and Island police forces and law enforcement agencies. It confirms that the NCA may develop agreements with partner organisations to set out the key principles of collaboration, supported by more detailed operational protocols as necessary.

The specific role roles and responsibilities in relation to the NCA are set out in the framework document and are highlighted below.

The Home Secretary will:

• be charged with safeguarding the public, preventing crime and protecting the UK’s borders and national security

• have a legal duty to determine the ‘strategic priorities’ for the NCA, in consultation with the Director General and with the NCA’s strategic partners

• hold the Director General to account for the discharge of the ‘NCA functions’ while also respecting the Director General’s operational independence

• where appropriate, account to Parliament

• select and appoint the Director General and will designate the Director General with operational powers as required.

The Director General will:

• determine ‘operational priorities’ for the NCA, in line with the ‘strategic priorities’ set by the Home Secretary

• be responsible (including through a senior NCA officer acting on his or her behalf) for all decisions about which operations to conduct and how they should be conducted




OFFICIAL 60

• have direction and control over all NCA officers (including NCA specials and secondees)

• ensure that NCA officers operate within the legislative framework set out in the Act and other relevant enactments

• account to the Home Secretary for the discharge of the NCA’s functions in accordance with the strategic priorities

• provide information to the Home Secretary, if requested, about any aspect of the NCA’s undertakings including resources

• be responsible for issuing an annual plan at the start of the financial year setting out how the NCA will deliver the strategic and operational priorities, and an annual report at the end of the year on progress made

• be responsible for the appointment of all NCA officers other than the Director General, and for designating NCA officers with operational powers

• Act as the NCA Accounting Officer and ensure the proper financial management of the NCA and its effective corporate governance in accordance with other good practice

• ensure that an NCA officer has obtained the agreement of the Lord Advocate before an NCA officer carries out activities in Scotland in relation to an offence which the NCA officer suspects has been (or is being) committed

• will seek the agreement of the Chief Constable of the Police Service of Northern Ireland (‘PSNI’) for a designated NCA officer to exercise the powers and privileges of a Northern Ireland Constable and for an NCA officer to use covert techniques in Northern Ireland

Home Office officials will support the relationship between the Home Secretary and the Director General. Their responsibilities in relation to the NCA will include:

• advising the Home Secretary (and where necessary, other government departments or ministers) about how the NCA’s functions are being discharged and other NCA matters

• advising the Home Secretary about his or her powers, duties and responsibilities in relation to the NCA and its officers

• advising the Director General about the policy, strategic and legislative framework relevant to the NCA

• advising the Home Secretary and Director General about the arrangements described in the framework document

• ensuring that arrangements are in place to keep NCA information secure, in accordance with the Government Security Classifications.




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Financial management

• in general, the NCA will have the ability to determine its own approach on corporate and financial matters without recourse to the Home Office or other departments, subject to the points below

• the NCA will have its own estimate, but in order to support the financial resilience of the organisation, this will be funded by a reduction in the overall Home Office Departmental Expenditure Limit (DEL)

• the Home Office will negotiate the NCA’s budget with HM Treasury, in consultation with the NCA Director General, as part of the annual Main and Supplementary Estimates processes, and at Spending Reviews

• there will be joint NCA – Home Office Mid-Year Reviews of in-year NCA spend

• the Director General will be responsible for ensuring that NCA capital investments represent value for money and are affordable, in discussion with the Home Office

• the Director General will seek approval from the Home Secretary for capital investment above an agreed threshold unless specific exemptions are provided

• the NCA is required to remain within the limits as set out in the Delegated Authority Letter.

The framework document also deals with other matters relating to the NCA which include:

• pay and pensions

• fees and charges

• sponsorship and donations

• payment for HMIC inspections

• transition arrangements

• public Information handling and complaints.

The framework document and its operation will be reviewed by the Home Office in consultation with the Director General and the devolved administrations at intervals of not more than three years. The document will also be reviewed following the appointment of a new Director General or Home Secretary.

The full framework document can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/426101/6_610_HO_NCA_Framework_070515__2_.pdf


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/426101/6_610_HO_NCA_Framework_070515__2_.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/426101/6_610_HO_NCA_Framework_070515__2_.pdf



OFFICIAL 62

Safety in Custody Statistics England and Wales: Deaths in prison custody to March 2015. Assaults and Self-harm to December 2014

The Ministry of Justice has published Safety in Custody statistics which cover deaths, self-harm and assaults in prison custody in England and Wales. This publication updates statistics on assaults and self-harm up to December 2014 and statistics on deaths in prison custody up to March 2015.

Key findings

Deaths in prison custody

In the 12 months to March 2015 there were 239 deaths in prison custody – an increase of 14 compared to the 12 months ending March 2014. These deaths comprise of:

• 76 apparent self-inflicted deaths, down from 88 on the same period in 2014• 144 deaths due to natural causes, up from 130 on the same period in 2014• 4 apparent homicides, up from 3 on the same period in 2014• 15 other deaths, 11 of which are yet to be classified – awaiting further information.

Self-harm

In 2014 there were:

• 25,775 reported incidents of self-harm, up by 2,545 incidents (11%) from 2013 • 302 self-harm incidents per 1,000 prisoners, compared with 276 incidents per 1,000

prisoners in 2013 (up 9%) • 7,722 prisoners reported to have self-harmed, up 780 (11%) from 2013 • 91 individuals self-harming per 1,000 prisoners, up by 9 per 1,000 prisoners (11%)

from 2013.

Assaults

Changes to quality assurance processes in 2013 led to improved reporting of assaults.

In 2014 there were:

• 16,196 assault incidents, up 10% from 14,664 incidents in 2013 • 190 assault incidents per 1,000 prisoners, up from 174 in 2013• 3,637 assaults on staff, up 11% from 3,266 incidents in 2013 • 43 assault on staff incidents per 1,000 prisoners, up from 39 in 2013• 2,145 serious assaults up 35% from 1,588 in 2013 • 477 serious assaults on staff up 33% from 359 in 2013.

The full bulletin can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/425028/safety-in-custody-dec-2014.pdf


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/425028/safety-in-custody-dec-2014.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/425028/safety-in-custody-dec-2014.pdf



OFFICIAL 63

Home Office Circular 018/2015: Consolidation of the Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2001

The Home Office has published a circular highlighting changes to the legislation relating to the misuse of drugs. Circular 018/2015 draws attention to SI 2015/704 which came into force on 31 May 2015.

The Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2015 consolidates the Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2001 (‘the 2001 Order’) and the 13 statutory instruments that have amended the 2001 Order since 2001, with the effect that from 31 May 2015 the 2001 Order ceases to have effect. The consolidation of these does not introduce new legislation.

The Misuse of Drugs Act 1971 controls drugs that are ‘dangerous or otherwise harmful’ primarily under a 3-tier system of classification (A, B and C). The control and classification of drugs is predicated on an assessment of their respective harms and is made in accordance with recommendations of the Advisory Council on the Misuse of Drugs.

The Misuse of Drugs Regulations 2001 regulates the availability of controlled drugs by placing them in 1 of 5 schedules to the Regulations according to their recognised uses as medicines or research compounds. The Schedule into which a drug is placed primarily dictates the extent to which it is lawful to import, export, produce, supply and administer and possess the drug and also imposes requirements around prescription writing, record keeping, labeling and safe custody.

Section 7(3) of the 1971 Act requires the Secretary of State to make regulations to allow drugs controlled under the Act to be used for medicinal purposes. This does not however apply to any drug designated by order under section 7(4) of the Act as a drug that has no legitimate medicinal use beyond limited use in scientific research. Drugs under Section 7(4) are placed in Part 1 of the 2001 Order and listed in Schedule 1 to the 2001 Regulations, which means they are subject to the strictest levels of control. These drugs can only be made available for use under a Home Office licence for ‘research or other special purpose.

The 2001 Order is being consolidated to bring the various statutory instruments into one concise document with the purpose of making the law easier to follow.

The Circular can be found at https://www.gov.uk/government/publications/circular-0182015-consolidation-of-the-misuse-of-drugs-designation-england-wales-and-scotland-order-2001


https://www.gov.uk/government/publications/circular-0182015-consolidation-of-the-misuse-of-drugs-designation-england-wales-and-scotland-order-2001

https://www.gov.uk/government/publications/circular-0182015-consolidation-of-the-misuse-of-drugs-designation-england-wales-and-scotland-order-2001

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