Digest. March A digest of police law, operational policing practice and criminal justice

Transcription

1 Digest March 2015 A digest of police law, operational policing practice and criminal justice

2 The Digest is a primarily legal environmental scanning publication intended to capture and consolidate topical and key issues, both current and future, impacting on all areas of policing. During the production of the Digest, information is included from governmental bodies, criminal justice organisations and research bodies. As such, the Digest should prove an invaluable guide to those responsible for strategic decision making, operational planning and police training. The College of Policing is also responsible for Authorised Professional Practice (APP). APP is the official and most up-to-date source of policing practice and covers a range of policing activities such as: police use of firearms, treatment of people in custody, investigation of child abuse and management of intelligence. APP is available online at The College of Policing aims to provide fair access to learning and development for all. To support this commitment, the Digest is available in alternative formats on request. Please digest@college.pnn.police.uk or telephone +44 (0) Disclaimer and copyright details This document is intended as a guide to inform organisations and individuals of current and forthcoming issues in the policing environment and the College of Policing cannot guarantee its suitability for any other purpose. While every effort has been made to ensure that the information is accurate, the College of Policing cannot accept responsibility for the complete accuracy of the material. As such, organisations and individuals should not base strategic and operational decisions solely on the basis of the information supplied. All rights reserved. No part of this publication may be reproduced, modified, amended, stored in any retrieval system or transmitted, in any form or by any means, without the prior written permission of the College or its representative. The above restrictions do not apply to police forces, which are authorised to use this material for official, non-profit-making purposes only. Copyright enquiries: +44 (0) Digest editor: +44 (0) OFFICIAL

3 Contents Overview 5 Legislation 6 Bills before parliament 6 Modern Slavery Bill 6 Social Action, Responsibility and Heroism Bill 7 Serious Crime Bill 8 Criminal Justice and Courts Bill 9 Statutory Instruments 11 Crime and Courts Act 2013 (Commencement No 1) (England and Wales) 11 Order 2014 The Sexual Offences Act 2003 (Prescribed Police Stations) Regulations The Road Vehicles (Construction and Use) (Amendment) Regulations The Dangerous Dogs Exemption Schemes (England and Wales) Order The Football Spectators (Corresponding Offences) (Revocation) Order The Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order The Misuse of Drugs (Designation) (Amendment) (England, Wales 18 and Scotland) Order 2015 The Misuse of Drugs (Amendment) (England, Wales and Scotland) 18 Regulations 2015 The Crime and Courts Act 2013 (Consequential Amendments) Order The Regulation of Investigatory Powers (Communications Data) 19 (Amendment) Order 2015 The Counter-Terrorism and Security Act 2015 (Code of Practice for 20 Officers exercising functions under Schedule 1) Regulations 2015 The Misuse of Drugs Act 1971 (Amendment) Order The Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations The Protection of Freedoms Act 2012 (Code of Practice for Powers of Entry 21 and Description of Relevant Persons) Order 2015 New legislation 22 Counter-Terrorism and Security Bill receives Royal Assent 22 Case law 23 General police duties 23 OFFICIAL 3

4 AB v Chief Constable of X Constabulary [2015] EWHC 13 (QB) 23 Michael and others (FC) (Appellants) v The Chief Constable of 27 South Wales Police and another (Respondents) [2015] UKSC 2 Human rights 43 R (on the application of Paul Richards) v Teesside Magistrates Court 43 and the Chief Constable of Cleveland Police [2015] EWCA Civ 7 Hutchinson v The United Kingdom, [2015] ECHR 111 Application no /08 49 Policing practice 55 Crime 55 Home Secretary announces 10m Police Knowledge Fund 55 The Ministry of Justice publish Youth Justice Statistics for England 55 and Wales for 2013/14 UKVI publish guidance on criminal investigation and court proceedings 59 Police 60 Draft code of practice for police and border officials on seizing travel documents 60 National police guidance on modern slavery developed 62 Home Office Circular 002/2015: Guidance to examining officers on the 63 examination of goods under Schedule 7 to the Terrorism Act 2000 Office for National Statistics publish updated statistical release on police 66 workforce for England and Wales Policing Minister urges police forces to take up new mobile drug testing device 67 Criminal justice system 68 CPS and police host first joint National Rape Conference 68 Consultation on Draft CPS Guidance on Speaking to Witnesses at Court 69 CPS publish joint CPS/Police Rape Protocol 71 Government launches revenge porn helpline 72 Open consultation on draft guidance for the control and avoidance of 72 contamination in crime scene examination involving DNA evidence recovery Parliamentary issues 73 Consultation on modern slavery and supply chains 73 OFFICIAL 4

5 Overview 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 on: a claim for damages by a former undercover police officer made on the basis that the Chief Constable had breached his duty of care in failing to provide the officer concerned with appropriate support during the period he was undercover an appeal concerning whether the powers conferred under the Sexual Offences Act 2003 enable a person who is subject to a Sexual Offences Prevention Order to be required to wear a Location Monitoring Device, when away from the premises at which he is residing or staying overnight a claim for damages bought against two police forces for negligence and for damages under the Human Rights Act 1998 for breach of the defendants duties as public authorities to protect the claimant s right to life under article 2 of the ECHR whether whole life orders violate Article 3 of the ECHR. We look in detail at the: We also look at the: publication of the joint Crown Prosecution Service/Police Rape Protocol recently published statistics on the police workforce for England and Wales consultation on draft CPS Guidance on speaking to witnesses at court Home Secretary s announcement of an 10m Police Knowledge Fund as part of a scheme aimed to enhance working between police and academia to promote evidence-based policing and more effective responses to crime. Home Office Circular 002/2015 providing guidance to examining officers on the examination of goods under Schedule 7 to the Terrorism Act 2000 recently launched open consultation on the transparency of supply chains clause in the Modern Slavery Bill draft code of practice for police and border officials on seizing travel documents Counter Terrorism and Security Act The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised. OFFICIAL 5

6 Legislation Bills before parliament Modern Slavery Bill The Modern Slavery Bill will strengthen the response of law enforcement and the courts by: consolidating and simplifying existing modern slavery offences into one Act. Currently modern slavery and trafficking offences are spread across a number of different Acts increasing the maximum sentence available for the most serious offenders from 14 years to life imprisonment, with those who have a previous conviction for a serious sexual or violent offence facing an automatic life sentence introducing slavery and trafficking prevention orders and slavery and trafficking risk orders to restrict the activity of individuals where they pose a risk of causing harm creating a new Anti-Slavery Commissioner, a vital post that will drive an improved and more coordinated law enforcement response at all levels, working in the interests of victims ensuring that perpetrators convicted of slavery or trafficking face the toughest asset confiscation regime strengthening law enforcement powers at sea to close loopholes which prevent the police and Border Force being able to act where it is suspected that human trafficking or forced labour is taking place on board vessels at sea. The Modern Slavery Bill will ensure victims receive the protection and support they deserve by: creating a statutory defence for victims of modern slavery so that those who are compelled to commit an offence are not treated as criminals by the criminal justice system. The defence will not apply to a number of serious offences mostly sexual and violent offences. It is particularly important that victims of modern slavery have the confidence to come forward and give evidence against their enslavers. giving the courts new powers to order perpetrators of slavery and trafficking to pay reparation orders to their victims. Where the perpetrator has assets available, the court would have to consider making an order to provide reparation to the victim for the harm that they have suffered and give reasons if it does not. OFFICIAL 6

7 extending special measures so that all victims of modern slavery can be supported through the criminal justice process. This covers screening of witnesses, giving evidence by live link, in private or video recorded. extending existing specific legislative provisions for trafficking cases to also cover slavery, servitude and forced labour. providing statutory guidance on victim identification and victim services. providing an enabling power for child advocates to support child victims of trafficking. creating a statutory duty for public bodies including the police, local authorities and immigration personnel to notify the National Crime Agency about potential victims of modern slavery. This Government Bill was presented to Parliament on 10 June 2014 and had its second reading debate on 8 July The Bill had its second reading in the House of Lords on 17 November Committee stage in the House of Lords started on 1 December 2014 and concluded on 10 December Report stage further line by line examination of the Bill took place on 23 and 25 February. Amendments discussed covered clauses and 55 of the Bill. Third reading a final chance to amend the Bill is scheduled for 4 March Social Action, Responsibility and Heroism Bill The aim of this Bill is to create protection from legal liability for those who act for the benefit of society, demonstrating a generally responsible approach towards protecting the safety of others or intervening in an emergency. The Bill does not prevent a person from being found negligent if the circumstances of the case warrant it, but means that the courts would have to consider the wider context of the defendant s actions before reaching a conclusion on liability. In any negligence/breach of statutory duty claim, the court must consider whether the: alleged negligence/breach of duty occurred when the defendant was acting for the benefit of society or any of its members defendant had demonstrated a generally responsible approach towards protecting the safety or other interests of others alleged negligence/breach of duty occurred when the defendant took heroic action by intervening in an emergency to assist an individual in danger and without regard to his own safety or other interests. Following agreement by both Houses on the text of the Bill it received Royal Assent on 12 February Only section 5 of the Act is currently in force. OFFICIAL 7 Legislation Bills before parliament

8 Serious Crime Bill The aim of the Bill is to strengthen current criminal and civil law to ensure that criminals can be effectively brought to justice, and to protect victims. The main benefits of the Bill would be to: provide the National Crime Agency (NCA) and other law enforcement agencies with the tools they need to effectively tackle serious and organised crime, including cyber-crime and the illegal drugs trade enhance the ability to prosecute those responsible for serious and organised crime and deny them the proceeds of their illegal activity strengthen and update laws to protect vulnerable individuals at risk of child cruelty, sexual exploitation and female genital mutilation introduce new powers to reduce the potential threat posed by UK citizens and residents returning home after taking part in the Syria conflict. Key elements of the Bill: amend the Proceeds of Crime Act 2002 by improving the ability of law enforcement agencies to recover criminal assets extend the scope of Serious Crime Prevention Orders and gang injunctions create a new offence that targets people who knowingly participate in an organised crime group create a new offence of possessing paedophilic manuals amend the Computer Misuse Act 1990 to ensure sentences for attacks on computer systems fully reflect the damage caused establish new powers to seize, detain and destroy chemical substances suspected of being used as cutting agents of illegal drugs clarify the Children and Young Persons Act 1933 to make it explicit that cruelty likely to cause psychological harm to a child is an offence extend the extra-territorial reach of the offences in the Female Genital Mutilation Act 2003 to apply to habitual as well as permanent UK residents allow people suspected of committing an offence overseas under section 5 (acts preparatory to terrorism) or section 6 (training for terrorism) of the Terrorism Act 2006 to be prosecuted in the UK. OFFICIAL 8 Legislation Bills before parliament

9 This Bill was presented to Parliament on 5 June The Bill completed its House of Lords stages on 5 November 2014 and was presented to the House of Commons on 6 November This Bill has now completed all its stages in the House of Commons and will now go to the House of Lords for consideration. Criminal Justice and Courts Bill This is a Bill to make provision about how offenders are dealt with before and after conviction; to amend the offence of possession of extreme pornographic images; to make provision about the proceedings and powers of courts and tribunals; to make provision about judicial review; and for connected purposes. In particular, the Bill provides for: sentencing and the release and recall of offenders, the electronic monitoring of offenders released on licence, and the giving of cautions adding certain offences, including those of weapons training for terrorist purposes and causing gunpowder or other explosive substances to explode with intent, to the enhanced dangerous offenders sentencing scheme the offence in section 63 of the Criminal Justice and Immigration Act 2008 to be extended to cover the possession of extreme images that depict rape and nonconsensual sexual penetration the detention of young offenders, giving cautions and conditional cautions to youths, and referral orders a new criminal offence of being unlawfully at large after recall from licence or after recall from home detention curfew restrictions on the use of simple cautions for indictable only offences and certain specified either way offences, as well as restricting the repeated use of cautions for persistent offenders a new procedure for use in criminal proceedings in the magistrates courts in certain circumstances, provision about the recovery of the costs of the criminal courts from offenders, appeals and costs in civil proceedings, and contempt of court and juries the introduction of 4 offences (research by jurors, sharing research with other jurors, jurors engaging in other prohibited conduct and disclosing jury s deliberations), a power for a court to order temporary removal of electronic communications devices from jurors and changes to strict liability contempt by publication including a notice procedure for temporary removal of potentially contemptuous information from public access OFFICIAL 9 Legislation Bills before parliament

10 the circumstances in which the High Court and the Upper Tribunal may refuse relief in judicial review proceedings and about funding and costs in relation to such proceedings. Following agreement by both Houses on the text of the Bill it received Royal Assent on 12 February Section 62 came into force on 12 February Paragraphs 23 to 25 of Schedule 7 and section 31(6)(b) so far as it relates to those paragraphs came into force on 12 February Section 52 is scheduled to come into force on 12 April OFFICIAL 10 Legislation Bills before parliament

11 Statutory Instruments SI 2014/3285 Crime and Courts Act 2013 (Commencement No 1) (England and Wales) Order 2014 In force 2 March 2015, this Order is the first commencement order relating only to England and Wales made under the Crime and Courts Act It brings into force in England and Wales, section 56 of that Act together with Schedule 22 to that Act, which deal with drugs and driving. SI 2015/82 The Sexual Offences Act 2003 (Prescribed Police Stations) Regulations 2015 These Regulations, which came into force on 25 February 2015 and extend to England and Wales only, revoke and replace the Sexual Offences Act 2003 (Prescribed Police Stations) Regulations 2013 (SI 2013/300). The Sexual Offences Act 2003 (the 2003 Act) imposes notification requirements on offenders convicted of certain sex offences. These offenders are called relevant offenders. The 2003 Act requires relevant offenders to notify certain personal information to the police, both at the outset and periodically thereafter. Section 87(1) of the 2003 Act provides that relevant offenders give such notifications by attending at any police station in the relevant offender s local police area which is prescribed in regulations. These Regulations prescribe those police stations in England and Wales. For the purposes of section 87 of the 2003 Act, local police area is defined in section 88(3) of the 2003 Act. SI 2015/142 The Road Vehicles (Construction and Use) (Amendment) Regulations 2015 These Regulations, which come into force on 9 March 2015, amend the Road Vehicles (Construction and Use) Regulations 1986 (the 1986 Regulations). Category T tractors are vehicles in category T, which is defined in Article 4(1) of Regulation (EU) No 167/2013 and includes wheeled agricultural and forestry vehicles (regulation 3(2)). The speed threshold at which category T tractors are required to comply with higher standards of vehicle construction and use under the 1986 Regulations is increased from 20 mph to 40 km/h in respect of the following components and characteristics: OFFICIAL 11 Legislation Statutory Instruments

12 braking systems (regulations 4 to 6) maintenance and efficiency of brakes (regulation 7) springs and resilient material (regulation 8) tyres (regulation 9) tyre loads and speed rating (regulation 10) condition and maintenance of tyres (regulation 11) glass (regulation 12) mirrors (regulation 13) windscreen wipers and washers (regulation 14) speedometers (regulation 15) audible warning instruments (regulation 16) noise limits (regulations 17 and 18) emissions (regulation 19) wings (regulation 20) wheel and axle weights (regulation 22). The speed threshold at which most agricultural trailers are required to comply with higher braking standards is increased from 20 mph to 40 km/h (regulation 4). These Regulations amend the 1986 Regulations to increase the maximum authorised laden weight of a combination comprising a category T tractor and a single agricultural trailer (other than an agricultural trailed appliance conveyor or a wheeled unbalanced agricultural trailer where the distance between the rearmost axle of the unbalanced trailer and the rearmost axle of the drawing vehicle does not exceed 2.9 metres) from 24,390 kg to 31,000 kg (regulation 21). An impact assessment of the effect that this instrument will have on the costs of business, the public sector and voluntary sector is available from the Freight, Operator Licensing and Roadworthiness Division of the Department for Transport, Great Minster House, 33 Horseferry Road, London, SW1P 4DR. A copy may be obtained from the Department for Transport website ( OFFICIAL 12 Legislation Statutory Instruments

13 SI 2015/138 The Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 This Order, which came into force on 3 March 2015, extends to England and Wales. Section 1(3) of the Dangerous Dogs Act 1991 (the Act) provides that possession or custody of certain types of dogs specified in section 1 (dogs bred for fighting) or specified in an order made under it is prohibited. The court must order the destruction of such a prohibited dog on conviction of an offence under section 1 of the Act, where such a dog is seized and no person is to be prosecuted, or on conviction of an offence under section 3 (having a dog dangerously out of control). However if the court is satisfied that the prohibited dog is not a danger to public safety under section 4(1A) or 4B of the Act, rather than make an immediate destruction order, it must order the contingent destruction of the dog. A contingent destruction order enables the dog to be exempted from the prohibition in section 1(3). Section 1(5) of the Act provides for the creation of schemes under which the dog may be exempted. This Order revokes and replaces the Dangerous Dogs Compensation and Exemption Schemes Order 1991 (the 1991 Order) in relation to England and Wales. It creates two schemes of exemption for the purposes of section 1(5) of the Act. This Order does not affect the operation of the 1991 Order in Scotland. Part 2 of the Order applies when a court makes a contingent destruction order enabling the dog to be exempted. It sets out the conditions that are to be met for a dog to be exempted and the enduring requirements to be complied with if the dog is to remain exempt. Part 3 provides that a person, other than the person determined by a court under section 4(1B) or 4B(2A) of the Act or under this Part, as being a fit and proper person to be in charge of a dog, may apply to be in charge of an exempted dog. This Part only applies when the person who has been in charge of the dog dies or is seriously ill. Articles 13 to 15 set out the procedure to be followed in relation to an application. Article 16 states the effect of making an application and article 17 sets out the requirements on the court on a successful application. Article 18 provides for the issue of a new certificate of exemption to a successful applicant. Article 19 states that where there is a failure to comply with the requirements attached to a certificate of exemption issued under article 18 the dog is not exempt. Part 4 creates an interim exemption scheme when a dog suspected to be a prohibited type has been seized by the police. It permits a chief officer of police to exempt the dog on an interim basis if satisfied the dog is not a danger to public safety and to release the seized dog before a court makes a final determination. Article 21 sets out the test the chief officer of police must apply when determining whether the seized dog is a danger to public safety. Article 22 sets out the conditions and requirements that have to be met for a suspected prohibited dog to become and remain exempt on an interim basis. Article 23 sets out the timescales for the OFFICIAL 13 Legislation Statutory Instruments

14 release of the dog under the interim exemption scheme. Article 24 provides for the recovery of expenses by the police from the person to whom the dog is released, if the police arrange for the microchipping or neutering of the dog. Article 25 sets out the further requirements that must be met by a person in interim charge of a dog. Article 26 provides the interim exemption ceases on final determination by the court or if a decision is taken not to commence or continue proceedings in respect of the dog. Articles 27 and Article 28 contain revocations and a saving. SI 2015/212 The Football Spectators (Corresponding Offences) (Revocation) Order 2015 This Order, which comes into force on 11 March 2015, revokes the Orders in Council listed in the Schedule to the Order. Those Orders specified offences under the laws of various countries which corresponded to certain offences specified in Schedule 1 to the Football Spectators Act Under section 22 of that Act, proceedings may be commenced before a magistrates court against a person who has been convicted of such an offence, with the result that a football banning order may be made against such a person. The Orders are being revoked because section 22 has fallen out of use, given that there are alternative routes to securing a banning order under the 1989 Act; in particular via section 14B, which allows for a banning order to be made where an individual has caused or contributed to violence or disorder abroad. SI 2015/206 The Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015 This Order, which comes into force on 16 March 2015, extends to Scotland only. This Order makes provision to assist an external investigation, within the meaning of section 447(3) of the Proceeds of Crime Act 2002 (the 2002 Act), by obtaining orders and warrants from the court. The provisions correspond (subject to specified modifications) to confiscation investigation provisions in Part 8 of the 2002 Act. Article 3 provides that the powers in this Order are only excisable where the Lord Advocate believes that the external investigation relates to a criminal investigation or criminal proceedings in the country or territory carrying out the investigation. Article 4 provides that the Secretary of State may refer a request in relation to an external investigation to the Lord Advocate to provide assistance. OFFICIAL 14 Legislation Statutory Instruments

15 Article 5 provides for offences of prejudicing an external investigation. This broadly corresponds to section 342 of the 2002 Act. The article makes it an offence to prejudice an external investigation by making a disclosure about it or by tampering with evidence relevant to the external investigation. Articles 6 and 7 provide for production orders. These broadly correspond to sections 380 and 381 of the 2002 Act. Article 8 provides for an order to grant entry. This broadly corresponds to section 382 of the 2002 Act. This power might be used, for example, to enable a constable to be granted entry to a building in circumstances where a production order had been made in respect of material in a particular office in that building. Article 9 sets out further provisions regarding production orders. This broadly corresponds to section 383 of the 2002 Act. Article 10 provides for material contained in a computer to be produced to a constable. This broadly corresponds to section 384 of the 2002 Act. Article 11 extends the scope of a production order to cover material held by an authorised government department. This broadly corresponds to section 385 of the 2002 Act. Article 12 provides that an application for a production order or an order to grant entry may be made without notice to the other party. This broadly corresponds to section 386 of the 2002 Act. Article 13 provides for search warrants. This broadly corresponds to section 387 of the 2002 Act. As in articles 6 and 7, an application for a warrant may be made by the procurator fiscal. A warrant may be issued if a production order has been made and not complied with and there are reasonable grounds for believing that the material specified in the warrant is on the premises, or the requirements of article 14 are satisfied. Article 14 refers to two sets of conditions for issuing a warrant in the absence of a production order. This broadly corresponds to section 388 of the 2002 Act. The first set of conditions might be satisfied, for example, where the person who owns the material is abroad and therefore it is not possible to communicate with that person. In such circumstances, it is clear that a production order in respect of that person would have no effect. The second set of conditions might be satisfied where it is impossible to describe the material for the purposes of a production order and access will not be gained without a warrant. Article 15 sets out provisions regarding how and when a warrant issued by a sheriff may be exercised. This broadly corresponds to sections 389 and 390 of the 2002 Act. A sheriff may make the warrant subject to such conditions as the sheriff sees fit. OFFICIAL 15 Legislation Statutory Instruments

16 Article 16 provides for disclosure orders. This broadly corresponds to section 391 of the 2002 Act. Unlike the other orders covered by this Order, which have to be applied for separately on each occasion, once a disclosure order has been made there is a continuing power of investigation. A person may require that evidence of the authority to exercise disclosure powers is provided. Where this happens, it is envisaged that a copy of the disclosure order will be given to the person. Article 17 provides for the requirements for the making of a disclosure order. This broadly corresponds to section 392 of the 2002 Act. Owing to the necessarily invasive nature of the disclosure order, it is not anticipated that disclosure orders will be sought unless other powers, such as production orders, have already been sought or would demonstrably not suffice to enable the required information to be obtained. Article 18 provides for offences in relation to disclosure orders. This broadly corresponds to section 393 of the 2002 Act. As the disclosure order obliges a person to comply with certain requirements, sanctions to compel such compliance are required. Article 19 provides for statements in response to a disclosure order. This broadly corresponds to section 394 of the 2002 Act. The article prevents a statement obtained under compulsion from a person from being used to incriminate them in this jurisdiction (subject to exceptions). Articles 20 and 21 set out further provisions regarding disclosure orders. These broadly correspond to sections 395 and 396 of the 2002 Act. Article 22 provides for customer information orders. This broadly corresponds to section 397 of the 2002 Act. A customer information order requires all (or a targeted sample of) banks and other financial institutions to provide details of any accounts held by a person who appears to hold property that is subject to an external investigation. As with disclosure orders, a person may require the person serving a notice given under the order to demonstrate that they have the authority they claim. Again, it is envisaged that a copy of the original customer information order will be provided. Articles 23 and 24 set out the definition of customer information for individuals and for companies and partnerships and the requirements for the making of such an order. These broadly correspond to sections 398 and 399 of the 2002 Act. Article 25 provides for offences in relation to customer information orders. This broadly corresponds to section 400 of the 2002 Act. As with the disclosure order, there are two offences connected with customer information orders. As the sanctions are directed at non-complaint institutions rather than an individual they are solely financial. OFFICIAL 16 Legislation Statutory Instruments

17 Article 26 provides for statements in response to a customer information order. This broadly corresponds to section 401 of the 2002 Act. Like the disclosure order, a customer information order requires an institution to divulge information. This article sets out the standard conditions on the use of such information to prevent information obtained under compulsion from being used in this jurisdiction against the financial institution in criminal proceedings against it (subject to certain exceptions). Articles 27 and 28 set out further provisions in relation to customer information orders. These broadly correspond to sections 402 and 403 of the 2002 Act. Article 29 provides for account monitoring orders. This broadly corresponds to section 404 of the 2002 Act. An account monitoring order requires a financial institution to provide specified information in relation to an account (for example, details of all transactions passing through the account) during a specified period up to a maximum of 90 days. The information would normally be provided in the form of a bank statement. Article 30 sets out the requirements for the making of an account monitoring order. This broadly corresponds to section 405 of the 2002 Act. It is anticipated that it will need to be shown that an account monitoring order lasting over a period of time (rather than a one-off production order) is necessary. Article 31 provides for statements in response to an account monitoring order. This broadly corresponds to section 406 of the 2002 Act. As with the disclosure order and customer information order, an account monitoring order compels an institution to divulge information. Similar to the provisions for disclosure orders and customer information orders, this article sets out the standard conditions on the use of such information to prevent self-incriminatory information being used as evidence in criminal proceedings in this jurisdiction against the financial institution (subject to certain exceptions). Articles 32 to 34 set out further provisions relating to account monitoring orders. These broadly correspond to sections 407 and 408 of the 2002 Act. Article 35 provides that the Codes of Practice established under the Proceeds of Crime Act 2002 (Investigations: Code of Practice) (Scotland) Order 2009 (SI 2009/245) applies in relation to confiscation proceedings. OFFICIAL 17 Legislation Statutory Instruments

18 SI 2015/232 The Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2015 This Order, which comes into force on 11 March 2015, extends to England and Wales and Scotland. Section 7(3) of the Misuse of Drugs Act 1971 requires regulations to be made to allow the use for medical purposes of the drugs which are subject to control under that Act. Section 7(3) does not apply to any drug designated by order under section 7(4) as a drug to which section 7(4) is to apply. This Order amends the Misuse of Drugs (Designation) Order 2001 by inserting a potent opoid known as MT-45 and a synthetic stimulant known as 4,4 -DMAR into Part 1 of the Schedule to that Order. SI 2015/ 231 The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2015 These Regulations, which come into force on 11 March 2015, extend to England and Wales and Scotland. These Regulations amend the Misuse of Drugs Regulations 2001 (the Regulations). The schedule of the Regulations in which a controlled drug is placed primarily affects the extent to which the drug can be lawfully imported, exported, produced, supplied or possessed and dictates the record keeping, labelling and destruction requirements in relation to that drug. The controlled drugs placed in Schedule 1 to the Regulations are those subject to the tightest controls. Regulation 3 adds a potent opoid known as MT-45 and a synthetic stimulant known as 4,4 - DMAR to Schedule 1 to the Regulations. SI 2015/230 The Crime and Courts Act 2013 (Consequential Amendments) Order 2015 This Order, which came into force on 13 February 2015, extends to Northern Ireland only. This Order amends section 195S of the Proceeds of Crime Act 2002 (the 2002 Act). Section 195S requires the Secretary of State to make a code of practice in connection with the exercise by appropriate officers and senior officers, in Northern Ireland, of certain functions concerning powers of search, seizure and detention of property contained in Part 4 of the 2002 Act. Who is an appropriate officer is set out in sections 190A (in relation to authorisation by restraint order of the detention of property seized by appropriate officers) and 195A (in relation to appropriate officers who may exercise the search and seizure powers under Part 4) of the 2002 OFFICIAL 18 Legislation Statutory Instruments

19 Act. These provisions were amended by section 55 of, and Schedules 8 and 21 to, the Crime and Courts Act 2013 (the 2013 Act) to add an immigration officer. The list of who is a senior officer is in section 195G of the 2002 Act, which was amended by section 55 of and Schedule 21 to, the 2013 Act to define who is a senior officer in relation to an immigration officer. There are two separate codes of practice applying to appropriate and senior officers exercising powers in Northern Ireland under Part 4 of the 2002 Act, one made by the Secretary of State under section 195S for the officers for which the Secretary of State has policy responsibility, and one made by the Department of Justice in Northern Ireland under section 195T for the officers for which the Department has policy responsibility. Section 195S should also have been amended by the 2013 Act to add immigration officers as officers to whom the Secretary of State s code of practice would apply, and to define who is a senior immigration officer. However, this change was not made, with the result that the exercise of functions of immigration officers would not be covered by a code of practice. This Order amends section 195S to add immigration officers to the list of those officers in Northern Ireland to whom the code applies, and to define senior officers in relation to immigration officers. SI 2015/228 The Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2015 This Order, which came into force on 12 February 2015, amends the Regulation of Investigatory Powers (Communications Data) Order 2010 (the 2010 Order). The 2010 Order designates additional public authorities who may grant an authorisation or give a notice in respect of the acquisition and disclosure of communications data, for the purposes of Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act The 2010 Order also specifies the persons within those organisations ( designated persons ) who may grant an authorisation or give a notice for particular purposes, and specifies additional purposes for which communications data may be acquired. This Order adds an additional purpose, so that the Financial Conduct Authority and Prudential Regulation Authority may obtain communications data for the purpose of exercising functions relating to the regulation of financial services and markets or to financial stability. The Order also removes thirteen public authorities from the lists of those in the 2010 Order. These thirteen authorities will no longer have powers to acquire communications data under the Regulation of Investigatory Powers Act OFFICIAL 19 Legislation Statutory Instruments

20 SI 2015/217 The Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015 These Regulations came into force on 13 February These Regulations bring into operation the code of practice ( the Code ) issued under paragraph 18(1) of Schedule 1 to the Counter-Terrorism and Security Act 2015 ( Schedule 1 ). Schedule 1 provides police officers, immigration officers and customs officials with powers to both seize and retain travel documents of persons at ports. Paragraph 18(1) of Schedule 1 requires the Secretary of State to issue a Code of Practice with regard to the exercise of functions under Schedule 1 and in particular in relation to: the procedure for making designations in respect of officers; the training to be undertaken by officers; the exercise by officers of functions under Schedule 1; the information to be given to a person subject to the exercise of powers under Schedule 1 and the process for disclosure of that information; and reviews of the exercise of the power to retain documents. The Code, which these Regulations bring into operation, satisfies these requirements. SI 2015/215 The Misuse of Drugs Act 1971 (Amendment) Order 2015 This Order which comes into force on 11 March 2015, brings certain drugs under the control of the Misuse of Drugs Act 1971 ( the Act ). Article 3 of this Order brings a potent opioid known as MT-45 and a synthetic stimulant known as 4,4 -DMAR under permanent control as Class A drugs under the Act. SI 2015/242 The Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2015 These Regulations came into force on 3 March Regulation 5 of the Motor Vehicles (Wearing of Seat Belts) Regulations 1993 (SI 1993/176) ( the 1993 Regulations ) requires a person driving or riding in a motor vehicle who is aged 14 years and over to wear an adult seat belt. This requirement is subject to a number of exceptions. These Regulations amend regulation 6(1) of the 1993 Regulations by inserting an exemption from the requirement to wear a seat belt for persons riding in a motor ambulance while the person is providing medical attention or treatment to a patient which due to its nature or the medical situation of the patient cannot be delayed. Patient is defined as having the same meaning as in the National Health Service Act In the 2006 Act patient is defined as including a woman who is pregnant or breast-feeding or who has recently given birth. OFFICIAL 20 Legislation Statutory Instruments

21 These Regulations adopt the definition of motor ambulance as set out in regulation 3(2) of the Road Vehicles (Construction and Use) Regulations 1986 (SI 1986/1078). For the purpose of these Regulations a motor ambulance is a purpose built motor vehicle which is specially constructed and equipped for medical purposes. Council Directive 91/671/EEC of 16 December 1991 on the approximation of the laws of Member States relating to compulsory use of safety belts in vehicles of less than 3.5 tonnes (OJ No L 373, , p 26), as amended by Directive 2003/20/EC (OJ No L 115, , p 63), provides under article 6 that Member States may, with the agreement of the European Commission, exempt emergency services from the requirement to wear a safety belt to ensure that they can perform their duties properly. The agreement of the European Commission was obtained in respect of the proposed amendment on 17 June SI 2015/240 The Protection of Freedoms Act 2012 (Code of Practice for Powers of Entry and Description of Relevant Persons) Order 2015 This Order, which came into force on 18 February 2015, brings into force a Code of Practice for powers of entry, which the Secretary of State is required to prepare, pursuant to section 47(1) of the Protection of Freedoms Act The purpose of this Code is to set out guidance about the exercise of powers of entry in order to ensure greater consistency in the exercise of such powers, and greater clarity for those affected by them. Relevant persons, as described in article 3 of this Order, will be under a statutory duty to have regard to this Code when exercising any functions to which the Code relates. Pursuant to section 50(1) of the Protection of Freedoms Act 2012, the Secretary of State will arrange for this Code to be published. The Code of Practice will also be available on the Home Office website. OFFICIAL 21 Legislation Statutory Instruments

22 New Legislation Counter-Terrorism and Security Bill receives Royal Assent The Bill, which received Royal Assent on 12 February 2015, brought into force a number of new powers that are aimed at protecting society from terrorism and extremism. The Act will place a duty on specified bodies, including the police, prisons, local authorities, schools and universities, to have due regard to preventing people being drawn into terrorism and provides for a number of key powers. The Act will: introduce new temporary exclusion orders, which will disrupt the return to the UK of a British citizen suspected of involvement in terrorist activity abroad improve the ability of law enforcement agencies to identify which device is responsible for sending a communication on the internet or accessing an internet communications service make Channel the voluntary programme for people at risk of radicalisation a legal requirement for public bodies so that it is delivered consistently across the country amend the Terrorism Act 2000 to put beyond doubt the legal basis of measures relating to the reimbursement of payments made to terrorist organisations widen the remit of the Independent Reviewer of Terrorism Legislation and allow for the creation of a Privacy and Civil Liberties Board to support them. The Act also provides the Home Secretary with the power to relocate those subject to Terrorism Prevention and Investigation Measures (TPIMs) and require them to attend meetings with probation staff and others as part of their ongoing case management. Provision to enhance border security for aviation, maritime and rail travel are set to come into force in the first part of the year, subject to Parliamentary approval of secondary legislation before the end of March. Use of the powers in the Act will be subject to stringent safeguards, including suitable legal thresholds and judicial oversight of certain measures. The government has also made amendments that will ensure they balance their obligations under the new Prevent duty with the principles of freedom of speech and academic freedom. The Prime Minister had also announced an additional 130 million which will be made available over the next two years to strengthen counter-terrorism capabilities and this will include funding to enhance the UK s ability to monitor and disrupt terrorists and to allocate additional resources for programmes that are aimed at preventing radicalisation. Further details can be found at OFFICIAL 22 Legislation New legislation

23 Case law General police duties AB v Chief Constable of X Constabulary [2015] EWHC 13 (QB) A case in the High Court of Justice (Queen s Bench Division) before his Honourable Mr Justice Males. The full judgment can be found at Background The case concerned the claimant, a former undercover police officer who was tasked with the obtaining of intelligence in relation to a serious organised criminal group. The operation itself was validly constituted and operated in accordance with the requirements of the Regulation of Investigatory Powers Act 2000 and this was not disputed. During the period of his deployment undercover the claimant misused cocaine on more than one occasion. He did not make any report at the time that he had done so and it was common ground that this failure made it inappropriate for the claimant to continue as an undercover officer. When the claimant s misuse of cocaine came to light, he was offered alternative employment outside of the undercover unit. The claimant then applied for ill-health retirement from the force which was refused, although it was granted by the medical appeal board. The claimant submitted a claim for damages for psychiatric injury and consequential financial loss which he claimed flowed from his having retired. The basis of his claim was that the Chief Constable had breached his duty of care in failing to provide the claimant with appropriate support during the period he was undercover. The defendant denied any breach of duty of care and denied that the matters complained of had any causative relevance. It was contended by the defendant any psychiatric injury the claimant experienced was attributable to his own misconduct in abusing cocaine and his sudden fall from grace when this was discovered. It was also argued that the claimant was barred by public policy from recovering damages, because the effect of success in this claim would be that the claimant would be recovering damages for the consequences of his own illegal acts and serious misconduct in abusing cocaine. OFFICIAL 23

24 The witnesses Witnesses gave evidence that the claimant was admired and respected as an outstandingly effective and successful undercover officer. Within the fairly small world of undercover policing he was described as having a national reputation which was lost when his misconduct came to light. The claimant gave evidence that he greatly enjoyed his work, despite its dangers and it was a job he loved and which he was also extremely good at it. He would not, however, accept that he was responsible for his misuse of cocaine while on the operation. He insisted that a situation had been allowed to develop whereby his invented criminal persona had effectively taken over his life. He claimed that it was this invented person and not his true self who had taken the cocaine. The claimant s wife also gave evidence which tended to blame the police for what had happened to her husband. Evidence was given from a large number of present and former police officers and others involved to some degree in undercover operations or in supporting those who were. Some of these were called by the claimant and some by the defendant. There were in addition contemporary records such as a log of the intelligence which the claimant was providing (which was high quality intelligence about serious criminals) and notes of various meetings once the claimant s use of cocaine came to light. These provided a reliable contemporary account. The psychiatric evidence It was common ground between the psychiatric experts called by the parties that the claimant was experiencing what is described as a chronic adjustment disorder. An adjustment disorder (F43.2 in the International Classification of Diseases Version 10, ICD-10) is a state of subjective distress and emotional disturbance, usually interfering with social functioning and performance, arising in the period of adaption to a significant life change or a stressful life event. Paragraph F43.2 goes on to give example of the stressors which can cause such a condition and the kind of symptoms which will be manifested (emphasis added): The stressor may have affected the integrity of an individual s social network (bereavement, separation, experiences) or the wider system of social supports and values (migration, refugee status), or represented a major developmental transition or crisis (going to school, becoming a parent, failure to attain a cherished personal goal, retirement). Individual predisposition or vulnerability plays an important role in the risk of occurrence and the shaping of the manifestations of adjustment disorders, but it is nevertheless assumed that the condition would not have arisen without the stressor. The manifestations vary and include depressed mood, anxiety or worry (or a mixture of these), a feeling of inability to cope, plan ahead or continue in the present situation, as well as some degree of disability in the performance of daily routine. Conduct disorders may be an associated feature, particularly in adolescents. The predominant feature may be a brief or prolonged depressive reaction, or a disturbance of other emotions and conduct. OFFICIAL 24 Case law General police duties