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

Transcription

1 Digest August 2014 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 The Modern Slavery Bill 6 Social Action, Responsibility and Heroism Bill 7 Serious Crime Bill 8 Criminal Justice and Courts Bill 9 Statutory Instruments 10 Anti-social Behaviour, Crime and Policing Act 2014 (Commencement 10 No 4 and Transitional Provisions) Order 2014 Terrorism Act 2000 (Code of Practice for Examining Officers and Review 11 Officers) Order 2014 Presumption of Death Act 2013 (Commencement and Transitional 12 and Saving Provision) Order 2014 Immigration Act 2014 (Specified Anti-fraud Organisation) Order Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring 13 Requirement) (Prescription of Arrangement for Monitoring) Order 2014 Legal Aid, Sentencing and Punishment of Offenders Act (Alcohol Abstinence and Monitoring Requirements) Piloting Order 2014 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) 13 (England and Wales) Order 2014 Crime and Courts Act 2013 (Application and Modification of Certain 14 Enactments) Order 2014 Case law 15 Crime 15 Walker v Commissioner of the Police of the Metropolis [2014] EWCA Civ Human rights 18 R (on the application of Whiston) v Secretary of State for Justice [2014] UKSC Financial investigations 23 R v Ahmad and another; R v Fields and others [2014] UKSC OFFICIAL 3

4 Policing practice 29 Crime 29 Home Office Circular 008/2014: Changes to the Misuse of Drugs Act Circular 009/2014: provisions 108 to 111 of the Anti-social Behaviour, Crime 29 and Policing Act 2014 Circular 010/2014: New Forced Marriage Offences 30 UK-wide operation by the National Crime Agency leads to arrest of suspected paedophiles Guidance on the Surveillance Road Map Published 32 Circular 011/2014: Changes to Misuse of Drugs Act 1971 and Criminal Justice 33 and Police Act 2001 khat Police 35 Circular 007/2014: PACE Codes of Practice revision to Codes C and H 35 Police Recorded Crime by Local Area 2013/14 36 Latest Crime Survey Figures Published 36 Crime Outcomes in England and Wales 2013/14 Statistical Bulletin Published 37 Police workforce statistics England and Wales: 31 March Training and development 40 Justice launch open consultation on proposal to introduce a civil 40 protection order for Female Genital Mutilation Criminal justice system 41 Welsh Government and Youth Justice Board Joint Strategy Published 41 Department of Health launches care, protect, prevent programme to stop 42 Female Genital Mutilation (FGM) Environmental Offences Guideline comes into force 43 Parliamentary issues 45 Home Affairs Committee Report: Female Genital Mutilation 45 Home Secretary s oral statement to Parliament about the use of 46 communications data and interception 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 considering: false imprisonment, assault and malicious prosecution whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the Criminal Justice Act 2003, has rights pursuant to article 5(4)(rights to liberty) of the European Convention of Human Rights. We look in detail at the: We also look at the: Home Office Circular on new Forced Marriage Offences Home Office statistical bulletin on crime outcomes in England and Wales latest police workforce statistics. new Data Retention and Investigatory Powers Act 2014 Information commissioner s guidance on the Surveillance Road Map Home Affairs Committee report on Female Genital Mutilation. The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised. OFFICIAL 5

6 Legislation Bills before parliament The Modern Slavery Bill This Government Bill was presented to Parliament on 10 June 2014 and had its second reading debate on 8 July This Bill has now been committed to a Public Bill Committee who will scrutinise the Bill line by line. The Public Bill Committee is expected to report to the House by 14 October 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. OFFICIAL 6

7 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. 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. Existing legislation on special measures includes some specific provisions for trafficking cases, the Bill will extend these provisions 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; and 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. Social Action, Responsibility and Heroism Bill This Government Bill was presented to Parliament on 12 June The Bill had its second reading debate on 21 July This Bill has now been committed to a Public Bill Committee who will scrutinise the Bill line by line. The Public Bill Committee shall meet on a date yet to be announced. The Public Bill Committee is expected to report to the House of Commons by 14 October 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 the defendant had demonstrated a generally responsible approach towards protecting the safety or other interests of others and the 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. OFFICIAL 7 Legislation Bills before parliament

8 Serious Crime Bill This Bill was presented to Parliament on 5 June Line by line examination of the Bill took place during the third day of committee stage on 15 July Amendments discussed covered clauses 62, 63, 65, 67, 69 and 70 of the Bill. Report stage further line by line examination of the Bill is yet to be scheduled. 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 will: 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 the Bill will 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 Criminal Justice and Courts Bill This Government Bill was presented to Parliament on 5 February 2014 and completed its passage through the House of Commons on 12 May The Bill was carried over to the parliamentary session and had its first reading in the House of Lords on 18 June Line by line examination of the Bill took place during committee stage on 23 July. Amendments discussed covered clauses 29, 36, 38, 39 and 42 to 48 of the Bill. Committee stage continued on 28 July when further amendments were discussed. 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 non-consensual 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 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. OFFICIAL 9 Legislation Bills before parliament

10 Statutory Instruments SI 2014/1916 Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No 4 and Transitional Provisions) Order 2014 This Order brings into force various provisions of the Anti-social Behaviour, Crime and Policing Act 2014 ( the Act ). Article 2 brings into force on 21 July 2014 section 140 of the Act, which relates to the appointment of chief police officers. It also brings into force on that date various provisions in Part 12 and Part 4 of Schedule 11 to the Act, which relate to extradition. These include provisions introducing bars to extradition under Part 1 of the Extradition Act 2003 ( the 2003 Act ) (which deals with European Arrest Warrant cases) where the issuing State is not ready to charge and try the person (section 156) and where extradition would be disproportionate (section 157). Also included are provisions ensuring that persons who consent to extradition do not thereby lose the right not be proceeded against for offences other than those listed in the extradition request (speciality protection) (section 163), amending the definitions of extradition offence in Parts 1 and 2 of the 2003 Act (section 164) and dealing with the crediting of time spent in custody awaiting extradition to the United Kingdom (sections 171, 172 and 173). Articles 3 and 4 bring into force on 31 July 2014 and 1 April 2015 respectively various provisions in Schedule 9 to the Act. These relate to Schedule 7 (port and border controls) and Schedule 8 (detention) to the Terrorism Act The provisions commenced by Article 3 (i) reduce the maximum period of examination under Schedule 7 to the Terrorism Act 2000 from nine to six hours, (ii) extend to individuals detained at a port the statutory rights to have a person informed of their detention and to consult a solicitor privately, (iii) clarify that the right to consult a solicitor includes consultation in person, (iv) ensure access to legal advice for all individuals examined under Schedule 7 for more than one hour, (v) establish a statutory basis for undertaking strip searches of persons detained under Schedule 7 powers, which requires reasonable grounds to suspect that the person is concealing something which may be evidence that the person is involved in terrorism and requires a supervising officer s authority, (vi) repeal the power to seek intimate samples during the course of a Schedule 7 examination, and (vii) provide that an examining officer may make and retain a copy of information obtained or found in the course of an examination. The provisions commenced by Article 4 introduce a requirement to keep under periodic review the need for continued detention of a person who is being detained under Schedule 7 powers, and make provision concerning the rights of those detained under such powers. Article 5 contains transitional provision in relation to the commencement of section 163 of the Act. Its effect is that in a case where a person consented to his or her extradition before the coming into force of section 163, that section does not apply, and the person is to be taken to have waived any speciality protection which he or she would otherwise have enjoyed. OFFICIAL 10 Legislation Statutory Instruments

11 Article 6 contains transitional provision in relation to the commencement of section 164 of the Act. Its effect is that the modified definitions of extradition offence do not apply in cases where the certificate (under either section 2 or section 70 of the 2003 Act) or the provisional arrest warrant was issued before the commencement of section 164. SI 2014/1838 Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2014 In force on 31 July 2014 this Order brings into operation the revised and consolidated code of practice ( the Code ) issued under paragraph 6(1) and (4) of Schedule 14 to the Terrorism Act 2000 ( the Act ) in connection with the exercise by examining officers and review officers of functions conferred on them by the Act. The Code revises the preceding code of practice to take account of amendments made to Schedules 7, 8 and 14 to the Act by the Anti-Social Behaviour, Crime and Policing Act 2014 which restrict the scope for exercise of powers and provide for further safeguards on their exercise. The Code consolidates the revised code issued under paragraph 6(4) of Schedule 14 to the Act with further codes of practice issued under paragraph 6(1) of Schedule 14 to the Act. The further codes were issued to fulfil the duties contained in paragraph 1A of Schedule 7 to the Act and paragraph 20K(7) to (8) of Schedule 8 to the Act (as inserted by the Anti-Social Behaviour, Crime and Policing Act 2014) to issue codes of practice relating to the training and designation procedure applicable to examining officers and review officers. Schedule 7 to the Act permits examining officers covered by the Code to stop, question and detain persons for the purpose of determining whether they are a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. Schedule 8 to the Act permits examining officers covered by the Code to take detained persons to places of detention for examination under Schedule 7 and to take steps that are reasonably necessary to identify a detained person. Schedule 8 to the Act provides safeguards on the exercise of Schedule 7 powers including the provision of access to legal advice at public expense and the periodic review of detention by a review officer senior to the examining officer. Article 3 of the Order provides that where a person begins exercising any power conferred by virtue of Schedule 7 or 8 to the Terrorism Act 2000 before the Code comes into operation and continues to exercise the power after the Code has come into operation, then the Code is applicable to the exercise of that power from the time it comes into force. OFFICIAL 11 Legislation Statutory Instruments

12 SI 2014/1810 Presumption of Death Act 2013 (Commencement and Transitional and Saving Provision) Order 2014 This Order brings into force on 1 October 2014 those provisions of the Presumption of Death Act 2013 not already in force. By virtue of section 22(1) of the Act, the following provisions of the Act came into force on the day (26 March 2013) on which the Act was passed: sections 17 to 24; section 9 to the extent that it confers power to make rules; and section 15(4) and Schedule 1 to the extent that they confer power to make regulations. The Act makes provision to introduce into the law of England and Wales a procedure to enable those left behind to obtain a declaration from the High Court that a missing person is to be presumed to have died. Such a declaration is conclusive as to the presumed death and effective for all purposes and against all persons; but the Act also makes provision enabling the making of a variation order should facts subsequently emerge which require the declaration to be revoked or varied. The new procedure replaces, and repeals the legislation governing, more limited procedures enabling dissolution of a marriage or civil partnership on the grounds that one of the parties is presumed to have died, but transitional and saving provision is made so that proceedings under the repealed legislation which have been commenced before 1 October 2014 can continue to a conclusion, and any resulting declaration be valid, after that date. SI 2014/1798 Immigration Act 2014 (Specified Anti-fraud Organisation) Order 2014 This Order comes into force on 2 August Section 40 of the Immigration Act 2014 provides that a bank or building society must not open a current account for a person who is present in the United Kingdom and who requires leave to enter or remain in the United Kingdom but does not have it, unless it has first carried out a status check which indicates that the individual is not a disqualified person. A disqualified person is a person within this group for whom the Secretary of State considers that a current account should not be opened by a bank or building society. By section 40(3)(a), in order to undertake a status check, a bank or building society must check data about the applicant for the account with a specified anti-fraud organisation, or specified data matching authority to identify whether they are a disqualified person. Section 40(4) of the Immigration Act 2014 provides that an anti-fraud organisation has the same meaning as in section 68 of the Serious Crime Act That is any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of those functions as its purpose or one of its purposes. The Order specifies CIFAS as an anti-fraud organisation for the purposes of section 40(3)(a). OFFICIAL 12 Legislation Statutory Instruments

13 SI 2014/1787 Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangement for Monitoring) Order 2014 Section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserts section 212A in the Criminal Justice Act This provides that an alcohol abstinence and monitoring requirement can be imposed as part of a requirement of a community order or suspended sentence order. However, section 76 cannot be brought into force for the whole of England and Wales unless it has first been piloted. Section 76 is therefore being brought into force for the purposes of a pilot in the South London local justice area beginning 31 July 2014 for a period of 12 months by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting Order 2014 (SI 2014/1777). This Order prescribes that the monitoring of compliance with the obligations of an alcohol abstinence monitoring requirement that has been imposed as part of the pilot scheme provided for by that Order will be through a transdermal electronic tag. This is a tag fitted to an offender to measure the level of alcohol contained in their sweat. SI 2014/1777 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting Order 2014 This Order brings into force section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for a period of 12 months commencing on 31 July 2014, but only in relation to the South London local justice area. Among other things, section 76 inserts section 212A of the Criminal Justice Act 2003, which gives a court a power to impose an alcohol abstinence and monitoring requirement as part of a community order or suspended sentence order. Article 4(2) provides that any requirement imposed before section 76 ceases to be in force may continue to have effect after that time. SI 2014/1707 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014 This Order amends the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ( the 1975 Order ). The 1975 Order disapplies specified provisions of the Rehabilitation of Offenders Act 1974 ( the 1974 Act ) so as to permit questions to be asked about spent convictions and cautions (except where they are protected convictions and cautions as described in article 2A of the 1975 Order) in order to assess a person s suitability for admission to certain occupations or to hold certain types of employment, licences or permits. It also permits spent convictions and cautions, or a failure to disclose them, to be a ground for excluding a person from those occupations or for making decisions in relation to those types of employment, licences and permits. OFFICIAL 13 Legislation Statutory Instruments

14 SI 2014/1704 Crime and Courts Act 2013 (Application and Modification of Certain Enactments) Order 2014 Under sections 9(2) and 10(1) of the Crime and Courts Act 2013 a NCA officer can be designated as a person having the powers and privileges of a constable, the customs powers of an officer of Revenue and Customs and the powers of an immigration officer. In force on 4 August 2014, this Order modifies the application of certain enactments which confer powers on the police (as well as constables) and immigration officers to enable such powers to be exercised by designated NCA officers. Part 2 of this Order modifies the application of the Police and Criminal Evidence Act 1984, the Anti-social Behaviour Act 2003 and the Protection of Freedoms Act 2012 (Destruction, Retention and Use of Biometric Data) (Transitional, Transitory and Saving Provisions) Order 2013 in relation to NCA officers designated as persons with the powers and privileges of a constable. Part 3 of this Order modifies the application of the Immigration Act 1971 and the Immigration and Asylum Act 1999 in relation to NCA officers designated as persons with the powers of an immigration officer. Part 4 of this Order revokes the Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order OFFICIAL 14 Legislation Statutory Instruments

15 Case law Crime Walker v Commissioner of the Police of the Metropolis [2014] EWCA Civ 897 This case was heard in the Court of Appeal by Lord Justice Rimer, Lord Justice Tomlinson and Sir Bernard Rix. The Facts A complaint had been made by the appellant s girlfriend that he had hit her. The police had attended and, after a violent incident, the appellant was arrested and taken into custody. He was later released on bail. The appellant was charged with assault of a police officer in the execution of his duty. The district judge found that the police officer concerned, PC A, had restricted the appellant s movements in a doorway, without having intended or purported to arrest him, and as such had detained him unlawfully and that the appellant s actions had been reasonable. He was acquitted on the ground that his initial detention had been unlawful and, consequently, the charge had failed on an essential ingredient of the offence. Two years later, the appellant issued a claim for damages for false imprisonment, assault and malicious prosecution. The circumstances of the incident, including the initial detention and arrest, were disputed. The judge preferred the evidence given on behalf of the respondent police force and the corroborating evidence of an eye witness. PC A s evidence had been that on his arrival at the scene, the appellant s girlfriend said that the appellant had punched her. PC A had considered that he had had reasonable grounds to suspect the appellant of an arrestable offence, but that he had decided to make enquiries first in the hope of avoiding making an arrest. The appellant had been standing in a doorway and PC A had positioned himself so that the appellant could not get past. PC A did not touch the appellant while he shouted and swore in an aggressive manner and threatened PC A. PC A s first words, which he repeated, were calm down mate or you will end up getting arrested. The appellant firmly pushed PCA in the chest, at which point PC A told him that he was under arrest for public order. He had not had time to add section 5 of the Public Order Act 1986 or words to that effect because the appellant began a fight. Another police officer came to assist. PC A was bitten on his arm and finger by the appellant before being arrested. OFFICIAL 15

16 Defence counsel accepted that the appellant s initial detention in the doorway had not been for the purpose of arrest, but for the purpose of pursuing enquiries and that that had amounted to a detention. The appellant contended that that initial detention had been unlawful and had justified his use of reasonable force to extricate himself from what had been an unlawful, if brief, imprisonment. That initial unlawfulness was, it was submitted, compounded by PCA s failure to effect a lawful arrest at the time when, on PC A s evidence, he had purported to arrest the appellant, namely immediately before the fight broke out. The judge dismissed the claim. He found that PC A had positioned himself in such a way as to prevent the appellant from escaping and that he had honestly and reasonably feared that the appellant would try to escape. Further, the appellant had threatened PC A and pushed him violently. That had been a wholly disproportionate, unnecessary and unreasonable response and reaction to PC A s request to calm down. Furthermore, very shortly after, PC A had arrested the appellant for a public order offence and he had had section 5 of the 1986 Act in mind. Matters had escalated quickly because of the appellant s violence and temper, but he had heard that he was under arrest and had been given full and adequate reasons for that action. The judge concluded that the detention, which had lasted for a matter of seconds, had been a trivial and fully justified interference with the appellant s freedom of movement which had not constituted a deprivation of liberty. In the circumstances and on the facts as found, PC A had been fully entitled to detain the appellant. The appellant appealed. The Judgment The appeal was allowed in part. (i) whether the appellant s initial detention in the doorway had been unlawful, thus having amounted to false imprisonment The appeal would be allowed on the first ground. The appellant had been unlawfully imprisoned in the doorway by PC A for a brief period, even if such detention might, in the circumstances, have been called technical. The judge s reasons for having held that the detention and confinement had been within generally acceptable standards of the conduct of ordinary citizens and thus lawful had not been good reasons. It was not acceptable for an ordinary citizen to interfere with a person s liberty by confining him in a doorway. OFFICIAL 16 Case law Crime

17 Although the confinement had been for only a few seconds, the principle in question was framed in terms of for however short a time. It was understandable that where liberty was in question, as in the case of assault, there was no room for complaisance. Moreover, the confinement would have been longer if the situation had not developed into an arrest and fight. The judge had remarked that the appellant had not been, in the true sense, deprived of his liberty. That concept was not identical with the tort of false imprisonment, and, it was established law that there might be a deprivation of liberty without false imprisonment and vice versa. The appellant was entitled to damages of 5 for the brief and technical imprisonment immediately before his own unlawful violence and initial arrest# (ii) had the appellant s reaction to that detention been a reasonable and proportionate exercise in self-defence? The appeal would be dismissed on the second ground. The appellant had opportunity to make it clear that he had not wanted to speak to PC A; but the appellant had resorted directly to threats and actual violence for the very reason that he had been already angry and aggressive. The court would not revisit the judge s findings on the issue of whether the appellant s reaction had been a reasonable and proportionate exercise in self-defence. (iii) whether the purported arrest for public order had been a valid arrest within section 28(3) of the Police and Criminal Evidence Act The appeal would be dismissed on the third ground. The court would not go behind the judge s finding that PC A had arrested the appellant for public order and had had section 5 of the 1986 Act in mind. In the particular circumstances of the relevant incident, the appellant had to have been fully aware that he was being arrested for his conduct in the face of PC A and that that had been regarded as a public order offence. That had been a legally and factually adequate explanation of the reason for the arrest. This summary of the judgment is produced with permission and thanks to the Law Society Gazette and can be found at OFFICIAL 17 Case law Crime

18 Human rights R (on the application of Whiston) v Secretary of State for Justice [2014] UKSC 39 The background On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery. He was entitled to automatic release on licence after serving half his sentence on 5 July However, on 21 February 2011, he was released on licence under a so-called home detention curfew pursuant to section 246 of the 2003 Act. On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellant s whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review. The appellant contended that, as a result of the licence granted on 21 February 2011, he regained his liberty, and the subsequent revocation of his licence and his consequent recall to prison on 7 April 2011 therefore constituted a deprivation of his liberty which infringed article 5(4) of the European Convention on Human Rights. The Secretary of State counter argued that, where the sentence in question is determinate, in any case where a prisoner who has been released on licence is recalled to prison during the currency of his requisite custodial period, the requirements of article 5(4) are satisfied by the original sentence lawfully passed by the court by which he was originally imprisoned. The relevant domestic law All the statutory provisions relevant to the appeal are contained in the Criminal Justice Act 2003 ( the Act ). Where a person has been convicted and given a determinate prison sentence of twelve months or more (a sentence period ), section 244(1) of the Act provides that, subject to certain specified exceptions, once he has served half his sentence, it is the duty of the Secretary of State to release him on licence. Section 244(3) of the Act defines the first half of the sentence period as the requisite custodial period, at the end of which he is entitled to be released on licence. A prisoner may also be released on licence during the requisite custodial period under section 246(1), which, so far as is relevant, is in the following terms: Subject to subsections (2) to (4), the Secretary of State may release on licence under this section a fixed-term prisoner at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period OFFICIAL 18 Case law Human rights

19 Subsection (2) limits this power in relation to short sentences, and subsection (4) excludes the operation of subsection (1) in certain other cases, including cases where (aa) the sentence is for four years or more and (g) the prisoner has been released on licence under this section at any time and has been recalled to prison under section 255(1)(a). Section 250(4) of the Act states that any licence (a) must include the standard conditions, which are stated to be such conditions as may be prescribed, and (b) may include (i) any condition authorised by certain other statutes, and (ii) such other conditions of a kind prescribed by the Secretary of State as [she] may for the time being specify in the licence. Section 250(5) of the Act provides that a licence granted under section 246 must be subject to a curfew condition in accordance with section 253, which is in the following terms: (1) [A] curfew condition is a condition which (a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified and (b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified. (2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than 9 hours in any one day (3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244. Therefore, a curfew condition cannot operate beyond the end of the requisite custodial period, the point at which the prisoner would in any event be entitled to be released. The place specified in a person s licence is normally his home, and for that reason a licence under section 246 is often known as home detention curfew. Section 249 of the Act provides that a licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the licensee ) is recalled. The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions. First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. Where the power of revocation is exercised under section 254(1), the licensee is entitled pursuant to section 254(2) to be told the reasons for his recall and to make representations to the Secretary of State, who can cancel the revocation of the licence under section 254(2A). OFFICIAL 19 Case law Human rights

20 Sections 255A-255C contain provisions which apply when a licence is revoked under section 254(1) and the revocation is not cancelled. In general terms, in such an event, the Secretary of State may release the former licensee, if satisfied that he will not present a risk of serious harm to the public, and, if she is not so satisfied, she must refer the case to the Parole Board for a binding ruling within that period if the prisoner makes representations. The provisions under sections 255B(4) and 255C(4) of the Act state that if there is no such release, the Secretary of State must refer the question of the former licensee s release to the Parole Board within 28 days of his return to custody. Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence or home detention curfew, and it provides as follows: (1) if it appears to the Secretary of State, as regards a person released on licence under section 246 (a) that he has failed to comply with any condition included in his licence, or (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence, the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section. This means that the power of recall under section 255 can only be exercised whilst the curfew condition is in force, ie, until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. (Thereafter, the licence can only be revoked under section 254). Furthermore, section 255(2) provides for a licensee to be given the reasons for his recall and the opportunity to make representations to the Secretary of State, who can cancel the revocation pursuant to section 255(3). However, unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of State s section 255 power of recall. Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence. The procedural safeguards are that the recalled prisoner must be given reasons for the recall and be able to make representations about them. OFFICIAL 20 Case law Human rights

21 In summary, the statutory position in relation to determinate sentences is, as follows: a) all prisoners are entitled to release on licence after serving half their sentence b) if recalled, a prisoner is either entitled to re-release after 28 days or to referral to the Parole Board, whose decision on re-release is binding c) there may be discretionary release, sanctioned by the Secretary of State, for the limited period of up to 135 days before the prisoner becomes entitled to release at the half way mark in his sentence d) this discretionary release is also on licence but the licence must additionally incorporate Home Detention Curfew terms e) during the period of the discretionary release, the prisoner may be recalled not only for breach of licence or demonstrated risk to the public but also because the Home Detention Curfew system cannot be made to work in his case. He must be given the reasons and is permitted to make representations to the Secretary of State. f) such recall within the limited period of up to 135 days is not subject to Parole Board or court review, but g) so soon as the half way stage in his sentence is reached, the automatic Home Detention Curfew terms fall away and the rules set out at (a) and (b) apply. The Appellant s grounds for appeal The question raised on this appeal was whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the Criminal Justice Act 2003, has rights pursuant to article 5(4) of the European Convention of Human Rights. Article 5 protects the right to liberty, and article 5(4) confers on an individual who has been deprived of their liberty an associated right to challenge that deprivation before a judicial body. The Judgment The Supreme Court unanimously dismissed the appeal. Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agreed, gave the main judgment. Lady Hale gave a concurring judgment. Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, he is not, at least in the absence of unusual circumstances, able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). This was because the lawfulness of the prisoner s detention had been determined by the original sentence. OFFICIAL 21 Case law Human rights

22 Discretionary release subject to a home detention curfew might or might not be a continued deprivation of liberty, but it was very close to it. The prisoner could be recalled for the purely practical reason that it was not possible to monitor him at his address, which was nothing to do with whether he still constituted a risk. It was the original sentence which meant that he was still a prisoner and where the Secretary of State exercises her discretion to release a prisoner before the end of the requisite custodial period of their sentence, article 5(4) is not infringed if that licence is subsequently revoked. The full judgment can be found at OFFICIAL 22 Case law Human rights

23 Financial investigations R v Ahmad and another; R v Fields and others [2014] UKSC 36 These appeals were heard in the Supreme Court by Lord Neuberger (President), Lord Sumption, Lord Reed, Lord Hughes and Lord Toulson. Background to the Appeals They concerned the proper approach for the court to adopt, and the proper orders for the court to make in confiscation proceedings, where a number of criminals, some of whom may not be before the court, have between them acquired property or money as a result of committing an offence for which all or some of them have been convicted in the trial which led to the proceedings. The first Appeal The appellants, Shakeel Ahmad and Syed Ahmed ( the Ahmad defendants ) were convicted by a jury of fraud and sentenced by His Honour Judge Alexander QC to seven years in prison. The offence was a carousel fraud (which involves criminally misusing the collection system of VAT to extract money from the revenue authorities). The Ahmad defendants had been the sole directors and shareholders of a company, MST, which was registered for VAT. MST participated in 32 circular transactions by which goods were purportedly sold, and later bought back by companies in Ireland in circumstances which resulted in 12.6 million being fraudulently reclaimed from HMRC. The Ahmad defendants contended that they had obtained no benefit at all and that MST had merely acted as an intermediary for others. The judge rejected that evidence and, after a confiscation hearing, concluded that for the purposes of the Criminal Justice Act 1988 ( the 1988 Act ), the benefit obtained by MST was the benefit obtained by the Ahmad defendants jointly. (While the 1988 Act has been repealed and replaced by the Proceeds of Crime Act 2002 ( the 2002 Act ), the 1988 Act still applies to crimes committed before the 2002 Act came into force). The Court of Appeal determined that the benefit jointly obtained by the Ahmad defendants was the loss suffered by HMRC, uplifted to 16.1m to adjust for inflation, and that each of the Ahmad defendants was liable for the whole of this amount. OFFICIAL 23 Case law Financial investigations

24 The second Appeal The three appellants, Michael Fields, Mitesh Sanghani and Karamjit Sagoo ( the Fields defendants ), and a fourth man, Wasim Rajput, were found guilty by a jury of conspiracy to defraud. The Fields defendants were each sentenced to five years in prison. The fraudulent conspiracy involved the use of a company, MDL, whose published accounts falsely recorded that it had over 1m in fixed assets in order to secure credit agreements to buy goods or obtain services. MDL made no payments under these agreements, and the majority of the goods disappeared. The Fields defendants were each instrumental in this fraudulent activity. Mr Rajput was much less closely involved. In the subsequent confiscation proceedings Judge Carr found that the total benefit arising from the conspiracy was about 1.4m, which had been acquired jointly by the Fields defendants. This figure was adjusted upwards to about 1.6m to allow for inflation and the judge made confiscation orders under the 2002 Act against each of the Fields defendants for the whole of this amount. The subsequent appeal to the Court of Appeal was unsuccessful. The Ahmad defendants and the Fields defendants appealed to the court. They did not challenge the quantification of the aggregate recoverable amount, or the finding that they obtained that amount jointly. What they did challenge was the decision of the Court of Appeal that each of the appellants should be held separately liable for the whole of that amount. They contended that such an outcome was arbitrary and oppressive. However, the preferred approach of the two groups of appellants was different. For the Ahmad defendants, Mr Mitchell QC accepted that it was appropriate for each of the two appellants to be liable for 16.1m, but contended that their liability should be treated as joint and several in accordance with normal common law principles, so that they should be required to pay that sum between them. In other words, if, for instance, Mr Ahmad paid 12.6m, then both he and Mr Ahmed would then continue to be liable, but only for 3.5m, and if one or both (between them) then paid the 3.5m, there would be no further liability on either of them. Mr Owen QC, for the Fields defendants, raised a more fundamental challenge to the approach adopted by the Court of Appeal, and said that it was wrong for each of the Fields defendants to be liable for 1.6m. He argued that the courts below ought to have apportioned the benefit between the three Fields defendants, and therefore assessed their individual liability accordingly. Thus, subject to any liability being attributed to other persons, and subject to any reason to think that they should not be equally liable, the Fields defendants should each be liable for 533,333. The issue raised by these appeals can be encapsulated in the question: when a number of people (all or only some of whom are before the court) have been involved in the commission of a crime which resulted in property being acquired by them together, what is the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation hearings? OFFICIAL 24 Case law Financial investigations