THE PROFESSIONAL BODY FOR POLICING Digest September 2014 A digest of police law, operational policing practice and criminal justice
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 www.app.college.police.uk 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 email digest@college.pnn.police.uk or telephone +44 (0)1480 334566. 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)1256 602650 Digest editor: +44 (0)1480 334566
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 11 The Proscribed Organisations (Name Changes) (No. 2) Order 2014 11 The Prison and Young Offender Institution (Amendment) Rules 2014 11 Anti-social Behaviour, Crime and Policing Act 2014 12 (Commencement No. 5) Order 2014 Police Act 1997 (Criminal Records) (Amendment) (No. 3) Regulations 2014 13 Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2014 13 Video Recordings Act 1984 (Exempted Video Works) Regulations 2014 14 Misuse of Drugs (Amendment No. 2) (England, Wales and Scotland) 14 Regulations 2014 Police and Crime Commissioner Elections (Amendment) (No. 2) Order 2014 15 The Data Retention Regulations 2014 15 New legislation 17 Data Retention and Investigatory Powers Act 2014 17 Case law 21 Crime 21 Tre Palmer, Christopher Gyamfi, Kirk Cooke v Regina [2014] EWCA Crim 168 21 Human rights 29 PNM v Times Newspapers and Others [2014] EWCA Civ 1132 29 3
Policing practice 36 Crime 36 Home Office Consultation: Strengthening the law on domestic abuse 36 College of Policing Consultation on new guidance to help police officers 37 and investigators tackle female genital mutilation HMRC Consultation: Tackling offshore tax evasion a new criminal offence 37 Diversity 39 Equality and Human Rights Commission call for evidence on religion or 39 belief issues Police 40 IPCC Learning the Lessons Bulletin Published 40 Training and development 41 Home Office Rewards Police Innovation with 50 million 41 Criminal justice system 42 Remand Statistics Published by Howard League for Penal Reform 42 Parliamentary issues 44 House of Lords Communications Committee First Report 44 Published: Social media and Criminal Offences 4
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 the: legality of an undercover operation using entrapment to tackle crimes of burglary balancing of individual rights to private and family life (article 8) against a newspapers rights to freedom of expression and those of the public (article 10) on an application to prevent publication of information suggesting an individual was suspected of a serious sexual offence. We look in detail at the: We also look at the: Home Office consultation on strengthening the law on domestic abuse College of Policing consultation on new guidance to help police officers to tackle female genital mutilation remand statistics published by the Howard League for Penal Reform. new Data Retention and Investigatory Powers Act 2014 latest IPCC learning the lessons bulletin focussed on the use of taser House of Lords Committee report on social media and criminal offences. The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised. 5
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 2014. This Bill has now been committed to a Public Bill Committee. The Public Bill Committee is expected to meet on Tuesday 2 and Thursday 4 September. The Public Bill Committee will scrutinise the Bill line by line and is expected to report to the House by 14 October 2014. 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 2014. 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. 6
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. 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 2014. The Bill had its second reading debate on 21 July 2014. 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 2014. 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. 7 Legislation Bills before parliament
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 and 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. Serious Crime Bill This Bill was presented to Parliament on 5 June 2014. Line by line examination of the Bill took place during the third day of committee stage on 15 July 2014. Amendments discussed covered clauses 62, 63, 65, 67, 69 and 70 of the Bill. Report stage further line by line examination of the Bill will begin on 14 October 2014. 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 8 Legislation Bills before parliament
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. Criminal Justice and Courts Bill This Government Bill completed its passage through the House of Commons on 12 May 2014. The Bill was carried over to the 2014-2015 parliamentary session and had its first reading in the House of Lords on 18 June 2014. 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. Report stage further line by line examination of the Bill is scheduled for 20 October 2014. 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 9 Legislation Bills before parliament
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. 10 Legislation Bills before parliament
Statutory Instruments SI 2014/2210 The Proscribed Organisations (Name Changes) (No. 2) Order 2014 This Order came into force on 20 August 2014. Part 2 of the Terrorism Act 2000 makes provision about proscribed organisations (including setting out offences in relation to such organisations in sections 11 to 13). An organisation is proscribed if it is listed in Schedule 2 to that Act or operates under the same name as an organisation so listed (section 3(1)). Section 3(6) of the Terrorism Act 2000 (as inserted by section 22(2) of the Terrorism Act 2006) enables the Secretary of State, by order, to provide that a name that is not specified in Schedule 2 to that Act is to be treated as another name for an organisation that is listed in that Schedule. Article 2 of this Order specifies Islamic State (Dawlat al Islamiya), being a name that is not specified in Schedule 2 to the Terrorism Act 2000, is to be treated as another name for the organisation listed in that Schedule as Islamic State of Iraq and the Levant (Islamic State of Iraq and al-sham) (Dawat al Islamiya fi Iraq wa al Sham (DAISh). SI 2014/2169 The Prison and Young Offender Institution (Amendment) Rules 2014 These Rules amend the Prison Rules 1999 and the Young Offender Institution Rules 2000 and came into force at 5pm on 13 August 2014. The purpose of the rules is to provide that prisoners against whom a deportation order has been made, and who have no further appeal rights within the UK in relation to that order, cannot be: classified as suitable for open prison conditions; and granted release on temporary licence. The Amendment Rules also make minor amendments to remove references to terminology which has been repealed in other legislation. 11 Legislation Statutory Instruments
SI 2014/2125 Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 5) Order 2014 The following provisions of the 2014 Act come into force on 1 September 2014: sections 116 to 118 (child sexual exploitation at hotels) section 132 (establishment of police remuneration review body) section 133(1), (2) and (4) (consultation about regulations: England and Wales) section 134 (consultation about regulations: Northern Ireland) section 181(1) (amendments), insofar as it relates to the provisions of Schedule 11 specified in sub-paragraph (f) Schedule 11 (minor and consequential amendments). The following provisions of the 2014 Act come into force on 1 September 2014 in relation to England and Wales: section 133(3) (consultation about regulations: England and Wales) section 181(1) (amendments), insofar as it relates to the provisions of Schedule 11 specified in sub-paragraph (c) Schedule 11 (minor and consequential amendments), paragraph 102, in relation to the repeal relating to the Police Act 1996. The following provisions of the 2014 Act come into force on 1 September 2014 in relation to England and Wales and Northern Ireland: section 131 (abolition of Police Negotiating Board for the United Kingdom); section 133(5) (consultation about regulations: England and Wales); section 181(1) (amendments), insofar as it relates to the provisions of Schedule 11 specified in sub-paragraph (d); in Schedule 11 (minor and consequential amendments), paragraph 102, in relation to the repeals relating to: (i) the Freedom of Information Act 2000 (ii) paragraph 38 of Schedule 16 to the Police Reform and Social Responsibility Act 2011. 12 Legislation Statutory Instruments
SI 2014/2122 Police Act 1997 (Criminal Records) (Amendment) (No. 3) Regulations 2014 These Regulations come into force on 1 September 2014. These Regulations amend the Police Act 1997 (Criminal Records) Regulations 2002 to add to the list of prescribed purposes for which an enhanced criminal record certificate may be required by a registered person under section 113B(2)(b) of the Police Act 1997. Regulation 2(3) of these Regulations amends the 2002 Regulations to provide for applicants to apply for an enhanced criminal record certificate in relation to registration as a childminder agency. The amendments also provide for applicants to apply for an enhanced criminal record certificate in relation to considering their suitability to manage a childminder agency and also to consider their suitability to work for a childminder agency in circumstances where the applicant is required to enter childcare premises and, in the normal course of his or her duties, to have contact with children for whom childcare is provided or access to sensitive or personal information about children for whom childcare is provided. 2014/2120 Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2014 This Order amends the Criminal Justice Act 2003 (Surcharge) Order 2012 and comes into force on 1 September 2014. Section 161A(1) of the Criminal Justice Act 2003 requires a court when dealing with a person for one or more offences to order the person to pay a surcharge. The 2012 Order prescribes those cases where a court is not required to order a surcharge. It also prescribes the amount of the surcharge in those cases where a surcharge is payable. The Schedule to the 2012 Order provides that, in certain cases involving custody, a surcharge is only payable in relation to sentences imposed by the Crown Court. Article 2 of this Order omits these references to the Crown Court so that a surcharge is now also payable on imposition of an immediate custodial sentence by a magistrates court. Article 3 provides that the amendments this Order makes to the 2012 Order will not apply where a magistrates court deals with a person for a single offence committed before 1 September 2014 or, where a magistrates court deals with a person for more than one offence, if at least one of those offences was committed before 1 September 2014. 13 Legislation Statutory Instruments
SI 2014/2097 Video Recordings Act 1984 (Exempted Video Works) Regulations 2014 These Regulations come into force on 1 October 2014. These Regulations amend the Video Recordings Act 1984. The Act provides for labelling and certification requirements in respect of the supply of video works. By section 2(1) of the Act, a video work (other than a video game) is exempt from these requirements if, taken as a whole, it is designed to inform, educate or instruct, or is concerned with sport, religion or music. This exemption is subject to sections 2(2) and (3) of the Act, which set out certain cases in which such a video work is not an exempted work even if it otherwise falls within section 2(1) of the Act. Regulation 2(3) inserts new subsections (1ZA)-(1ZC) into section 2 of the Act. These provide for new cases in which a video work (other than a video game) is not an exempted work. The cases relate to violence (other than mild violence); dangerous activities; drugs, alcohol and tobacco; suicide, scarification/mutilation and self-harm; criminal offences; sexual messages and sexual activity (other than mild sexual activity, but including acts of force or restraint); genitalia and urinary or excretory functions; swearing (other than mild bad language) and offensive and offensive discriminatory behaviour. Regulations 2(2) and (4) make consequential amendments to section 2. Regulation 3 amends section 3(5) of the Act. This section specifies a circumstance in which supplies of video works are exempted supplies, and currently operates by way of cross-reference to section 2(2). The effect of the amendment is to maintain the current scope of this exemption. Regulation 4 makes a saving in respect of video works first placed on the market before the entry into force of the Regulations. SI 2014/2081 Misuse of Drugs (Amendment No. 2) (England, Wales and Scotland) Regulations 2014 These Regulations come into force on 5 September 2014. These Regulations amend the Misuse of Drugs Regulations 2001 to allow for the provision of aluminium foil by persons employed or engaged in the lawful provision of drug treatment services. Such provision is permitted as part of structured steps to bring individuals into treatment or as part of such treatment. Without this amendment, the provision of foil to drug users would be an offence under section 9A Misuse of Drugs Act 1971. 14 Legislation Statutory Instruments
SI 2014/1963 Police and Crime Commissioner Elections (Amendment) (No. 2) Order 2014 This Order came into force on 24 July 2014 and makes additional provision for the publication of details of candidates, and their election addresses for election to the office of police and crime commissioner. Articles 3 and 4 of this Order apply to all elections for police and crime commissioners and extend the provisions in the Police and Crime Commissioner Elections Order 2012 (the 2012 Order) relating to the publication of the candidates election addresses on a website in ordinary elections, to all elections. This will have the effect of putting by-elections on the same footing as ordinary elections in respect of the publicity available to candidates. Articles 7 to 9 of this Order apply only in respect of the first by-election for a police and crime commissioner where the date of the poll occurs after the coming into force of this Order. These articles amend article 52 of the 2012 Order to the effect that candidates in that election to the office of police and crime commissioner shall be entitled to have their election addresses included in a booklet of election addresses which will be delivered to each household in the police area. Article 10 of this Order applies in the same circumstances as Articles 7 to 9, and amends Schedule 8 to the 2012 Order to provide further details about how the election booklets will be compiled and delivered. It removes the obligation on the Secretary of State to send out copies of the election addresses (following a request from a person entitled to vote in that election) where an election booklet has been delivered. It imposes a requirement on candidates to pay a contribution to the police area returning officer towards the costs of printing the election booklets. SI 2014/2042 The Data Retention Regulations 2014 These Regulations are made under the Data Retention and Investigatory Powers Act 2014 and came into force on 31 July 2014. Section 1 of the Act contains a power for the Secretary of State to give a notice to a telecommunications operator requiring the retention of communications data of the types specified in the Schedule to these Regulations (which replicates the Schedule to the Data Retention (EC Directive) Regulations 2009). These Regulations make further provision in respect of that retention, and revoke the 2009 Regulations. Regulation 3 introduces the Schedule of communications data types. Regulation 4 gives further detail in respect of a retention notice. Regulation 5 sets out the matters the Secretary of State must take into account before giving a notice, and regulation 6 requires that a notice must be kept under review. 15 Legislation Statutory Instruments
Regulations 7 and 8 contain requirements on telecommunications operators in respect of the security and integrity of retained data, and the permanent deletion of data where there is no longer a requirement to retain. Regulation 9 provides for oversight by the Information Commissioner of the requirements relating to integrity, security and destruction of retained data. Regulation 10 makes provision for a statutory code of practice on the retention of data. Regulation 11 provides for the variation or revocation of retention notices. Regulation 12 imposes a duty to comply with certain requirements of the Regulations, section 1(6) of the Act (which restricts disclosure of retained data), and a retention notice. The duty is enforceable by civil proceedings by the Secretary of State. Regulation 13 makes provision for the reimbursement by the Secretary of State of expenses incurred by telecommunications providers in complying with section 1 of the Act and Part 2 of the Regulations. Regulation 14 revokes the 2009 Regulations and provides for transitional arrangements for data retained under those regulations. Regulation 15 makes equivalent provision on security, access, expenses and enforcement in respect of data retained under the voluntary code of practice provided for in section 102 of the Anti-terrorism, Crime and Security Act 2001. 16 Legislation Statutory Instruments
New legislation Data Retention and Investigatory Powers Act 2014 Summary The Government decided to legislate in order to clarify the legislative framework for certain important investigatory powers. This Act received Royal Assent on 17 July 2014. Firstly, this Act provides the power to introduce secondary legislation to replace the Data Retention (EC Directive) Regulations 2009 while providing additional safeguards. This is in response to the European Court of Justice judgment of 8 April 2014 in joined cases C-293/12 Digital Rights Ireland and C-594/12 Seitlinger which declared the Data Retention Directive (2006/24/EC) invalid. The 2009 Regulations implemented the Directive in domestic law. Secondly, the legislation clarifies the nature and extent of obligations that can be imposed on telecommunications service providers based outside the United Kingdom under Part 1 of the Regulation of Investigatory Powers Act 2000 (RIPA). This Act ensures that, as the original legislation intended, any company providing communication services to customers in the United Kingdom is obliged to comply with requests for communications data and interception warrants issued by the Secretary of State, irrespective of the location of the company providing the service. Both these components of the Act strengthen and clarify, rather than extend, the current legislative framework. Neither of these components provide for additional investigatory powers. The Act also provides for a review of the operation and regulation of investigatory powers in relation to communications data and interception and increased reporting from the Interception of Communications Commissioner. Data Retention The first component of the Act relates to Government requirements for retention of communications data. Mandatory data retention is necessary because without it data protection law requires service providers to delete data that they no longer need for business purposes. Mandated data retention is crucial for law enforcement to investigate, detect and prevent crimes. Ensuring certain types of communications data are retained provides the confidence that the data required will be available when needed by public bodies that have been approved by Parliament to acquire it. Its acquisition is strictly controlled by RIPA. 17 Legislation New legislation
Telecommunications companies retain communications data for a number of reasons: for business purposes; through voluntary agreement with the Government or through mandatory requirements. Mandatory retention is covered by the 2009 Regulations, which provide for telecommunications companies that have been issued a notice by the Secretary of State to retain the data types specified in the Schedule to the Regulations for a period of 12 months. Part 11 of the Anti-terrorism, Crime and Security Act 2001 provides for data retention through a voluntary code. Under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426), companies are permitted to retain data they need for business purposes. However, once the data is no longer needed for those purposes it must be deleted or made anonymous, unless otherwise required by law. This Act provides powers to replace the 2009 Regulations. The judgment of the European Court of Justice raised a number of issues concerning the Data Retention Directive. Many of these were already met by the safeguards within the United Kingdom s comprehensive data retention and access regime. Nevertheless, where appropriate, the Act adds safeguards while providing for the replacement regulations to add further safeguards in line with the judgment. Specifically, the Act provides a power for the Secretary of State to issue a data retention notice on a telecommunications services provider, requiring them to retain certain data types. The data types are those set out in the Schedule to the 2009 Regulations. The Schedule includes data falling into the categories of fixed network telephony (part 1), mobile telephony (part 2), and internet access, internet email or internet telephony (part 3). No additional categories of data can be retained. The Act provides that the period for which data can be retained can be set at a maximum period not to exceed 12 months, rather than the fixed 12 months in the 2009 Regulations, allowing for retention for shorter periods when appropriate. It provides a power to make regulations setting out further provision on the giving of and contents of notices, safeguards for retained data, enforcement of requirements relating to retained data and the creation of a code of practice in order to provide detailed guidelines for data retention and information about the application of safeguards. The regulations may also provide for the revocation of the 2009 Regulations, and transitional provisions. Extra-Territorial effect of RIPA The second element of the Act puts beyond doubt that the interception and communications data provisions in RIPA have extra-territorial effect. Interception provides, under strict conditions and for a limited number of public authorities, access to the content of a communication. This Act does not alter the existing safeguards which regulate interception. 18 Legislation New legislation
Law enforcement and intelligence agencies will continue to require an interception warrant signed by the Secretary of State. The Act also clarifies the economic well-being purpose for obtaining communications data or issuing an interception warrant under RIPA, and the definition of a telecommunications service. This is to ensure interception warrants can only be issued and communications data can only be obtained on the grounds of economic wellbeing when specifically related to national security. Clarifying the definition of telecommunications service ensures internet-based services, such as webmail, are included in the definition. Chapter 2 of Part 1 of RIPA provides a regulatory framework for the acquisition of communications data. For example, necessity and proportionality tests are carried out by a designated senior officer, at a rank stipulated by Parliament, within a public authority before a request for data can be made. Section 25(1) of RIPA defines what constitutes a relevant public authority. Section 22(2) of RIPA provides the purposes for which communications data may be accessed. The Secretary of State has powers to add or remove public authorities and add purposes through secondary legislation. Regarding interception, Chapter 1 of Part 1 of RIPA allows for law enforcement and security and intelligence agencies to gain access to the content of communications made by post or telecommunications. There are a number of safeguards, for example, access is only permitted under warrant from the Secretary of State. The Secretary of State must be satisfied that the interception is necessary for the purposes of national security, the prevention or detection of serious crime, or the economic well-being of the United Kingdom (where this specifically relates to national security), and proportionate to what is sought to be achieved. The information must not be able to be reasonably obtained by other means. In part, this Act was required in order to clarify the intent of RIPA. While RIPA has always had implicit extraterritorial effect, some companies based outside the United Kingdom, including some of the largest communications providers in the market, had questioned whether RIPA applied to them. These companies argued that they would only comply with requests where there is a clear obligation in law. When RIPA was drafted it was intended to apply to telecommunications companies offering services to United Kingdom customers, wherever those companies were based. The Act therefore clarifies the extra-territorial reach of RIPA in relation to both interception and communications data by adding specific provisions. This confirms that requests for interception and communications data to overseas companies that are providing communications services within the United Kingdom are subject to the legislation. 19 Legislation New legislation
The Interception of Communications and the Acquisition and Disclosure of Communications Data codes of practice, made under section 71 of RIPA, specify that interception warrants can only be issued and communications data can only be obtained on the grounds of economic well-being when specifically related to national security. This Act makes this clear in primary legislation. The Act also amends the definition of telecommunications service in RIPA. This is for the purposes of communications data and interception requests. It confirms that the full range of services provided by domestic and overseas companies to customers in the United Kingdom is covered by the definition. The third element of the Act provides for a review of investigatory powers to report by 1 May 2015. It also provides for more frequent reporting from the Interception of Communications Commissioner. There are already oversight and review arrangements for investigatory powers in existing legislation. Nevertheless, this Act goes further. Section 36(1) of the Terrorism Act 2006 provides for the appointment of an independent reviewer of terrorism legislation (the independent reviewer). This Act requires the Secretary of State to commission from the independent reviewer a review of the investigatory powers available in the United Kingdom and how they are regulated. The review will therefore include the contents of this Act and any regulations made under it. The independent reviewer should report before 1 May 2015. Sections 57 and 58 of RIPA provide for the appointment of an Interception of Communications Commissioner to carry out a yearly report. Their remit includes reviewing the Secretary of State s role in issuing interception warrants and the operation of the regime for the acquisition of communications data. This Act ensures that the Commissioner will be required to report twice a year on these issues. The Act came into force on 17 July 2014 save for the provisions in section 1(6) which will come into force on the making of an Order by the Secretary of State. The Act will be repealed on 31 December 2016. 20 Legislation New legislation
Case law Crime Tre Palmer, Christopher Gyamfi, Kirk Cooke v Regina [2014] EWCA Crim 168 These three appeals from Wood Green Crown Court were heard by Lady Justice Hallett, Mr Justice Andrew Smith and His Honour Judge Zeidman QC. The appeals were heard together because they each stemmed from the same police operation and because the same three issues arose: disclosure, entrapment and what was said to be fresh evidence from a former undercover police officer. The Facts All three appellants were young unemployed men who lived in North West London. They each sold stolen property to a shop set up and run by undercover police officers. When their attempts to stay proceedings against them failed, they each pleaded guilty to a variety of offences of dishonesty. On 23 April 2013 they were sentenced in the Crown Court as follows: for two offences of possession of identity documents with improper intent and one offence of supplying an article for use in fraud, Palmer received a total sentence of 32 months imprisonment. For one offence of possession of identity documents with improper intent, supplying an article used in fraud, two offences of handling stolen property and an offence of burglary, Cooke received a total sentence of 27 months imprisonment ordered to run consecutively to an existing sentence. For two offences of possession of identity documents with improper intent and one of supplying articles for fraud, Gyamfi was imprisoned for 9 months ordered to run consecutively to an existing sentence. Palmer, Cooke and Gyamfi applied to the Court of Appeal for leave to appeal against conviction. Operation Gemini The offences stemmed from a police operation known as Operation Gemini. Parts of the London Borough of Barnet had suffered for many years from a high level of residential burglaries. The number of offences rose year by year so that by 2011-2012, one in every 40 homes had been burgled. 21
Conventional methods of tackling the crime had not worked so senior metropolitan police officers decided to tackle the problem differently. The less conventional, but not unknown, method chosen was to establish a shop (TJ s Trading Post) operated by undercover officers in which those in possession of stolen property could sell their stolen property. The operational objectives were said to be four fold: one, to provide a sustainable reduction in all acquisitive crime, but in particular residential burglary in the target area; two, to arrest and prosecute those responsible for the criminality; three, to gather detailed intelligence for future policing of the area; four, to re-assure the local community. The surveillance and use of the covert human intelligence sources (the undercover officers or CHIS) were authorised under the Regulation of Investigatory Powers Act 2000 (RIPA) by various senior officers. Detective Superintendent Strugnall and Superintendent Bennett authorised the directed surveillance and the operation was managed by Detective Inspector Wood and Detective Chief Inspector Raphael. Commander Spindler, then Commander Streeter authorised the use of undercover officers with DI Wood and DCI Raphael again the managers. The original directed surveillance authorisation was granted on 4 January 2011, cancelled a month later and a new authorisation issued. Thereafter it was renewed and reviewed on a monthly basis until 2 October 2012 when it was cancelled. The original CHIS authorisation for the use of undercover officers was granted on 12 November 2010. It was cancelled a year later and re-granted the same day. It too was regularly reviewed and renewed and eventually cancelled on 4 July 2012. The Crown Prosecution Service (CPS) maintained an operational oversight throughout. It was the prosecution case that the undercover officers (UCOs) acted within their authorised parameters and as directed at all times. DI Wood gave evidence that he instructed his officers on each occasion they were deployed not to act as agent provocateurs. This instruction was recorded in their individual note books and they were de-briefed at the end of each session. On 24 January 2011 the shop opened in Cricklewood Lane, NW2. It had a front counter and a back room. It was staffed by the officers of whom only two, Terry and Jason, were involved in the applicants cases. None of the three applicants were specifically targeted and the identities of those individuals who had been specifically targeted were not disclosed. The shop had a number of separate cameras providing a constant record of both the front counter and the back room. Only certain customers were given access to the back room and it was there that conversations were very open about criminal behaviour. The UCOs offered cheap designer clothing, alcohol and cigarettes to selected customers. Everything was video and audio recorded including the UCOs interactions with the three applicants. At another location, other officers, including DS Eaton and DS Goodwin, monitored in real time everything that the UCOs were doing. It was the job of DI Wood to ensure that the UCOs stayed within the parameters of the authorisations granted for the operation. 22 Case law Crime
The shop eventually closed in May 2012. In July and August of that year a number of arrests were made. In total 118 persons were charged with offences arising out of the operation and, at the time of the abuse hearing in the present matter, about 80 people had appeared before the Courts and pleaded guilty. In total some 2,360 items of stolen property were recovered including jewellery, electrical equipment, 541 passports, 334 driving licences, and 357 bank cards. However, as well as stolen items, 19 people attending the shop also sold their own identity documents. Of a total of 807 documents bought, 491 were not linked to any crime. Grounds of Appeal Abuse of Process The main ground of appeal in this case was abuse of process. The applicants claimed that the initial authorisation for the undercover operation was unlawful because it was neither necessary nor proportionate and or that it became unlawful because it extended beyond its authorised limits. Counsel argued that the operation was not necessary because burglary was not particularly prevalent in the area. Burglary was a serious offence but not so serious as to justify an intrusive operation (in the general rather than the statutory sense) whereby visitors to the shop were fully recorded. Conventional methods of prevention and detection should have sufficed. The Court was urged to scrutinise with care the use of secret police shops to infiltrate communities. The operation was said to be disproportionate because it involved targeting an entire community and putting temptation in their way. It was alleged that vulnerable young unemployed people were enticed into the shop by the prospect of buying cheap goods and/ or being supplied with free alcohol, cigarettes and clothing. Two older male undercover officers there impressed young people with the relatively large sums of money that could be made by trading in the shop and with the glamorous lifestyle associated with crime. Further, counsel complained that the operation may have begun as an operation to combat burglary and other acquisitive crime but it mutated into an operation to trade in identity documents, many of which were not stolen. Even after the police realised people were coming in and selling their own and their friends /acquaintances documents, the officers continued to buy them. This was said to be ill conceived as a policing tactic to target burglary/ acquisitive crime. In respect of Palmer, for example, first the officers built up their legend in what was described as an unsavoury and unsupervised way. Then when Palmer was lured into the shop, CCTV footage recorded Terry bragging to Palmer about his earnings, his car, and his sexual conquests as he gave Palmer access to alcohol, cigarettes or clothes, sometimes free, sometimes at very reduced prices. Peppered throughout the conversation were references to the types of identity 23 Case law Crime
documents Terry wished to buy. Palmer was given the clear impression he could make good money from selling them. The officers were accused by counsel of acclimatising young men like Palmer to criminal conduct by virtue of the special treatment in the backroom and thereby inciting and entrapping them into committing offences. When Palmer began to supply identity documents, the officers tested him further. On two occasions, the officers mentioned the possible purchase of a gun. The applicants submitted that this was the epitome of entrapment and indicative of a policing operation that had lost its way. Counsel also criticised the length of the operation and claimed it began to generate crime, not reduce it. Accordingly, the judges were invited to conclude that prosecutions arising from police conduct such as this brought the administration of justice into disrepute. The Law The Regulation of Investigatory Powers Act 2000 The right to respect for private and family life in Article 8 of the European Convention of Human Rights makes it unlawful for a public authority to act in a way that is incompatible with these convention rights. RIPA allows public bodies to interfere with the right to privacy in certain strictly defined circumstances. The Act provides a legal framework for the interception of communications, the acquisition and use of data, the use of surveillance and covert intelligence sources. Part II of the Act covers Surveillance and Covert Intelligence Sources. It applies to directed surveillance, intrusive surveillance and the conduct and use of covert human intelligence sources. Section 26 provides a definition of directed and intrusive surveillance and covert human intelligence sources: (2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken (a) for the purposes of a specific investigation or a specific operation (b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation) and (c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance. 24 Case law Crime
(3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that (a) is carried out in relation to anything taking place on any residential premises or in any private vehicle and (b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device. (8) For the purposes of this Part a person is a covert human intelligence source if (a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c); (b) he covertly uses such a relationship to obtain information or to provide access to any information to another person or (c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship. Section 27 provides that conduct to which Part II of the Act applies shall be lawful for all purposes if an authorisation is in place and the conduct is in accordance with the authorisation. A designated person may grant an authorisation for directed surveillance of the kind in Operation Gemini provided he/she believes it is necessary and proportionate for the purpose of preventing or detecting crime (section 28). Similarly a designated person may grant an authorisation for the use of a covert human intelligence source provided he/she believes it is necessary and proportionate for the purpose of preventing or detecting crime (section 29). The entire statutory scheme is subject to Codes of Practice (section 71) which a court must take into account (section 72). At all times there must be a person holding an office, rank or position with the relevant investigating authority who has day-to-day responsibility for dealing with the source, and for the source s security and welfare, general oversight of the use made of the source and responsibility for maintaining a record of the use made of the source. The court, in considering the approach to the issue of entrapment, considered the case of R v Looseley A.G. Ref (No. 3 of 2000) [2002] 1 Cr.App.R.29. In particular the court considered the speech by Lord Nicholls of Birkenhead (paragraph 1): Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. 25 Case law Crime