POLICE

The issue by a police force of an enhanced criminal record certificate for a man wishing to work with children, which disclosed disputed allegations that he had made sexual comments in the presence of students aged 17 to 24 when he was supervising them on a college trip, had been disproportionate. Fairness required the disclosure to have referred also to the Independent Safeguarding Authority’s decision not to place him on either of the barred lists.

[2017] EWCA Civ 1838

A 16-year-old animal rights campaigner who had encouraged members of the public to put money in a collection box marked “Stop Huntingdon Animal Cruelty” was not entitled to damages for wrongful arrest. The arresting officer had reasonable grounds for suspecting that he was collecting money by falsely representing himself as a charity and was thereby committing an offence under the Fraud Act 2006 s.2.

[2017] EWCA Civ 1531

Where police officers made approaches to recruit as an informant an individual who had been involved in criminal activity and whose personal circumstances made it likely that he had access to information capable of assisting in the prevention of terrorism, those approaches came within the Regulation of Investigatory Powers Act 2000 s.65. However, the proper forum for a complaint against the Chief Constable was the Investigatory Powers Tribunal, not the court. Where such approaches were made publicly, they might be contrary to the public interest and in breach of Convention obligations regarding the individual’s safety.

[2017] NICA 54

A police officer had had reasonable grounds to suspect that a person who had sought to have printed 50 copies of a booklet entitled 44 Ways to Support Jihad was guilty of an offence under the Terrorism Act 2006 s.2. He had not been assaulted when officers were obtaining fingerprints, footprints and DNA samples, and a search of the home that he shared with his parents had not resulted in false imprisonment or damage to property.

[2017] EWHC 2185 (QB)

The Court of Appeal approved the decision in Secretary of State for the Home Department v Tuncel [2012] EWHC 402 (Admin). In deciding whether to make a forfeiture order under the Proceeds of Crime Act 2002 s.298, the only question for consideration by the court was whether the conditions in s.298(2) were satisfied. It was irrelevant to consider the lawfulness of the seizure and detention of cash under s.294 and s.295.

[2017] EWCA Civ 1161

The Chief Constable of the Police Service of Northern Ireland was granted an extension of time to comply with an order requiring the discovery of documents in connection with a damages claim brought against the force. However, the extension was not for as long as the Chief Constable had sought, given previous failures to comply with court orders to produce the documents.

[2017] NIQB 72

In the absence of any clear or definitive precedent or rule, the court was required to decide how the costs of a special advocate engaged in family proceedings should be funded. In the instant case, the police were ordered to fund the costs, because they had exclusive ownership of the sensitive material and wished to ensure that the court was in possession of it and understood why disclosure would be contrary to the public interest.

[2017] EWHC 1793 (Fam)

A mother failed to establish that a police detective had made a slanderous statement about her while investigating her allegations that her child had been sexually abused by a family member. Although the detective had told the child’s social worker that the mother had lied during a conversation with him, the transfer of that statement onto the child’s medical notes was not likely to cause the mother any reputational harm of the serious nature required by the Defamation Act 2013 s.1. In any event, the statement was protected by qualified privilege.

[2017] EWHC 1650 (QB)

Although a tribunal had been entitled to conclude that an employer had acted fairly in its conduct of an investigation into information-sharing practices with the police, it was unclear whether it had had proper regard to the employee’s particular concerns as to how those practices might prejudice his participation in an internal disciplinary procedure while facing ongoing criminal proceedings. The tribunal’s failure to engage with that point rendered its conclusion unsafe.

A police officer who genuinely and reasonably believed that she was authorised by court order to arrest an individual for breaching an injunction, and who genuinely and reasonably believed that the individual was in breach of the injunction, was acting in the execution of her duty. Therefore, although the injunction and power of arrest had erroneously cited repealed statutory provisions, when the individual assaulted her he could be convicted of assaulting an officer in the execution of her duty.

There was no rule that the police or security service could not interview a child who was a ward of court without first obtaining the court’s permission. To the extent that it confirmed that there was such a rule, the Family Procedure Rules 2010Practice Direction 12D para.5 was wrong and had urgently to be considered by the Family Procedure Rules Committee. In the meantime, the court gave guidance on the procedure to be adopted by public authorities wishing to interview wards.

[2017] EWHC 1022 (Fam)

The revised statutory scheme for the disclosure of convictions, introduced under the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 following a finding that the original scheme violated ECHR art.8, remained deficient and in need of further amendment. The concept of the revised scheme did not necessarily offend art.8, but its operation in individual cases might. The provisions relating to disclosure of serious offences and multiple offences were not “in accordance with the law”.

[2017] EWCA Civ 321

Although the police were under a duty of care in respect of the safety and well-being of an informer who was authorised as a covert human intelligence source, the duty of care had not been breached in the circumstances.

The court construed the provisions of the Proceeds of Crime Act 2002 which related to the making of a production order.

[2017] EWHC 747 (Admin)

The court interpreted Home office guidance entitled “Crime Recording General Rules” on determining whether and when a reported incident should be recorded as a crime. It determined that in the circumstances of the case, a reasonable decision-maker taking account of all the relevant factors would have concluded, beyond reasonable doubt, that an individual had not committed a crime.

[2017] EWHC 646 (Admin)

An order for discovery against the Chief Constable of Northern Ireland had been justified in a case where the plaintiff had alleged that attempts had been made on his life by a police informant.

[2017] NICA 13

The court refused to extend the one-year limitation period for a human rights claim brought against a police force in relation to its alleged failure to adequately investigate complaints of abusive behaviour and harassment. There had been a seven-and-a-half year delay in bringing the claim and the claimants could have sought advice on a potential claim earlier. In any event, it was not a case in which ECHR art.3 or art.8 applied so as to impose a duty to investigate for the purposes of the Convention.

[2017] EWHC 292 (QB)

A judge had been entitled to conclude that an individual had not been enticed or lured by an undercover police officer to conspire to commit aggravated trespass and/or criminal damage, and that his arrest had been lawful.

[2017] EWCA Civ 86

Although a police officer had prompted evidence in a murder investigation from an unreliable witness, the CPS had taken an independent decision to charge four individuals and their claims for malicious prosecution failed. For the same reason a claim for misfeasance in public office against the officer failed with respect to three of the four; he had not caused them any loss because the CPS would have prosecuted them anyway.

[2017] EWHC 273 (QB)

The claimant did not satisfy the criteria for eligibility for compensation under the Proceeds of Crime Act 2002 s.72 in relation to a restraint order which had been sought against him.

[2017] EWHC 301 (QB)

The arrest and detention of four people at a public event in order to prevent a breach of the peace had been lawful for the purposes of ECHR art.5(1)(c). The court declined to apply the decision in Ostendorf v Germany (15598/08) 34 B.H.R.C. 738. The derogation in art.5(1)(c) was capable of applying to detention for preventative purposes with early release before the person could practicably be brought before a court.

[2017] UKSC 9

There was no domestic law duty on the Government to refrain from recognising the Turkish Republic of Northern Cyprus. Informal mutual legal assistance between UK police and North Cypriot police, for the purpose of assisting in the prosecution in Northern Cyprus of a suspected offender who had fled there, did not amount to implied recognition of Northern Cyprus.

[2017] EWHC 159 (Admin)

A conditional caution imposed on the claimant for an offence contrary to the Public Order Act 1986 s.4A rather than the lesser s.5 offence for which he had been arrested was quashed, as the Criminal Justice Act 2003 s.23(2) had not been satisfied and the Ministry of Justice’s Code of Practice for Adult Conditional Cautions 2013 had been breached.

[2017] EWHC 576 (Admin)

By choosing to manage the public disorder caused by a series of illegal parades rather than seeking to prevent the parades themselves, the Police Service of Northern Ireland had misconstrued the extent of its powers. Although it had no specific power under the Public Processions (Northern Ireland) Act 1998 to ban parades in respect of which the required notification had not been given, it had ample other powers to stop them.

[2017] UKSC 7

If there were reasonable grounds for believing that bail conditions were necessary to protect a witness from intimidation which might render an investigation substantially less effective, it could be lawful to arrest a suspect under the Police and Criminal Evidence Act 1984 s.24(5)(e) solely in order to impose bail conditions.

[2017] EWHC 129 (Admin)

A mobile phone could properly be the subject of a warrant under the Police and Criminal Evidence Act 1984 s.9 and Sch.1 even where material subject to legal professional privilege might be found on it, provided that the wording of the warrant clearly excluded any such material from that which could be sought or seized. Specifying the phone as the item sought, rather than the material found on it, was capable of satisfying s.15(6)(b).

[2017] EWHC 70 (Admin)

A judge had been entitled to dismiss the appellant’s claim for false imprisonment following his arrest by a police officer pursuant to the Police and Criminal Evidence Act 1984 s.24(5). There was ample evidence for the judge to conclude that a police officer had reasonable grounds for believing that it was necessary to arrest him, and had acted quickly to allow a prompt and effective investigation of an offence pursuant to s.24(5)(e).

Reasonable and proportionate damages were awarded for the significant damage caused by a local authority and a police authority that had breached the ECHR art.6 and art.8 rights of a mother and her two children in the context of public law proceedings under the Children Act 1989 Pt IV. The children were separated from their mother against whom allegations of the most serious form of abuse were levelled, when all the while evidence was available to exonerate her.

[2016] EWHC 3312 (Fam)

A police officer’s failure to release the trigger of his Taser after the recommended five seconds, resulting in a discharge of 11 seconds, was not unlawful and did not amount to trespass to the person by battery where he had been trying to subdue a violent, noisy, fast-moving and highly charged situation, and where he had not intended such a long discharge, but had become distracted by a threat of imminent attack. The doctrine of trespass ab initio had no application.

[2016] EWCA Civ 1257

The Justice (Northern Ireland) Act 2002 s.35(3) only placed a requirement on a coroner to make a report to the Director of Public Prosecutions where “the circumstances of the death being investigated” disclosed that an offence might have been committed. There was no requirement to report wrongdoing unrelated to the circumstances of death.

[2016] NIQB 94

A report of the Independent Police Complaints Commission, concluding that it was not appropriate to refer to the DPP allegations that two police officers had caused actual bodily harm when arresting a man, had been rational and lawful.

A coroner continued anonymity orders granted in respect of two police officers following an inquest into the death of a suspected member of a proscribed organisation. Anonymity had been granted as it represented a necessary and proportionate response to the objectively verified risk to life, and the inquest result and findings had not reduced that risk or removed the officers’ entitlement to protection under ECHR art.2.

[2016] NIQB 95

An individual could, in principle, bring a private prosecution against someone who had been given a prior police caution for the same incident, and where that caution was still extant. However, that was only so as long as there had been no assurance at the time of administering the caution that there would be no future prosecution. It would be bad practice on the part of the police not to use the recommended form of caution in paras 72 and 88 of the Ministry of Justice guidance about simple cautions, issued in November 2013.

[2016] EWHC 3536 (Admin)

An employment tribunal had been entitled to strike out a claim for indirect sex discrimination relating to the recruitment of police staff where the facts of the case were not disputed and there was no suggestion of further evidence to come. On the material before it, it had been entitled to find that the chief constable’s policy of rejecting job applicants with sufficiently serious criminal records was objectively justified, notwithstanding that it indirectly discriminated against men as they committed significantly more crime than women.

A judge had properly considered the relevant principles, legislation and authorities when deciding to admit an individual’s previous convictions into evidence where it was in dispute whether a police officer had assaulted him or whether he had assaulted the police officer. The judge had also been entitled to deal with the question of whether the officer’s use of CS gas on the individual amounted to reasonable force as a matter of law rather than a factual matter for the jury.

Where a minor was in custody for police questioning, the law in many countries was that police interviews were to take place in the presence of an “appropriate adult”. The police should inform that person that he was not expected to act simply as an observer. The purpose of an “appropriate adult” was to advise the person being questioned, to assess whether the interview was being conducted properly and fairly, and to facilitate communication. In the instant case, a 17-year-old’s confession to murder was rendered unreliable by the fact that informal and unrecorded interviews had taken place whilst the police had been trying to locate an appropriate adult, who had then not been told his full function.

[2016] UKPC 29

Interim relief was granted in judicial review proceedings suspending a police officer, who had been facing criminal proceedings for allegedly assaulting the claimant and perverting the course of justice, preventing the officer from retiring and to enable disciplinary proceedings to be brought against him for gross misconduct.

The statutory provisions concerning the disclosure in an enhanced disclosure certificate of conviction information (and the parallel requirement for self-disclosure to an employer) where there was more than one conviction, irrespective of the age or subject-matter of the convictions in question, were in breach of ECHR art.8.

[2016] NICA 42

A police officer was not prevented from retiring even though he faced potential misconduct proceedings following the death of an individual shot by another officer. Preventing a person from conducting his financial affairs lawfully was a very serious interference in his right to conduct his life, the prospect of disciplinary proceedings was speculative, and the benefit to the public where it was only ordinary misconduct proceedings was not great.

[2016] EWHC 2714 (Admin)

It was almost inconceivable that statements made to the Air Accidents Investigation Branch in the course of an investigation could properly be the subject of an order for disclosure under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 reg.18 when the appropriate balancing exercise was carried out by the court. To hold otherwise would have a serious and obvious “chilling effect” which would deter people from answering the AAIB’s questions with the necessary candour.

[2016] EWHC 2280 (QB)

The Court of Appeal (Northern Ireland) set out the public policy grounds on which an application made under the Police (Northern Ireland) Act 1998 s.31 for the return of property lawfully seized by police could be refused.

[2016] NICA 36

The court refused a mother’s application for a Norwich Pharmacal order against the police to obtain material arising from a fraud investigation involving a personal development coach who had provided counselling to her daughter. Although the mother alleged that the coach had poisoned her daughter’s mind against her, she had no cause of action against the coach. The application also failed because the police had been investigating potential criminal conduct against women counselled by the coach, not against the mother.

[2016] EWHC 2214 (QB)

It had not been irrational or unlawful for a police service to conclude that the investigation into a complaint made against its officers did not satisfy the test for applying “special requirements” under the Police Reform Act 2002 Sch.3 para.19B(1). It was lawful for the initial procedures to be taken by a reviewing officer rather than the investigating officer, and the investigating officer had been in possession of material that undermined the complainant’s account.

[2016] EWHC 2054 (Admin)
[2016] EWHC 1239 (Admin)

A person attending a police station in order to answer police bail was in police detention. Upon being sentenced for an offence, such a person was entitled to a reduction in the length of their sentence of imprisonment by any period during which they were in such police detention in connection with the offence for which the sentence was passed.

[2016] NIQB 67

Declarations were granted under the Justice and Security Act 2013 s.6 allowing the Chief Constable of the Police Service of Northern Ireland to make a closed material application in proceedings involving information relating to an alleged police informant.

[2016] NIQB 81

The Independent Monitor’s decision to approve the disclosure by the police on an enhanced criminal records certificate of information about an individual’s acquittal for sexual offences was unreasonable as the decision had been unsupported by the evidence at the trial for the alleged offences and the judge’s summing up.

Former police officers who had participated in a murder investigation in which three men were wrongly convicted failed to establish that they had been victims of misfeasance in public office, false imprisonment, and malicious prosecution when they were, themselves, arrested on suspicion of having committed criminal or disciplinary offences. Although none had ultimately been convicted, there was ample evidence at the time of their arrest that they might have been guilty, so that all the arrests, except two, had been reasonable.

[2016] EWHC 1367 (QB)

There was nothing materially inconsistent in the approaches of the Supreme Court and the European Court of Human Rights when determining whether the right to the presumption of innocence in ECHR art.6(2) had been breached by the reference to an acquittal in later proceedings. The inclusion in an enhanced criminal record certificate of details of a taxi driver’s acquittal on a rape charge had not undermined the correctness of the acquittal

[2016] EWCA Civ 490

The police had been entitled not to refer an individual’s historic rape allegations to the CPS where the relevant evidential test within the Director’s Guidance on Charging 2013 had not been met.