Tuesday, 20 September 2016

Notts Police hail misogyny crackdown a “success”

Notts police encourage women to report non-crimes for investigation

You may recall that a couple of months ago the new Chief Constable of Nottinghamshire Police announced that she would be encouragingwomen to report acts of misogyny to the police for investigation, regardless of whether the actions being reported were actual crimes or not.

The force, which is dealing with a £54M budget cut, has axed its city division and is expected to cut 400 police officers from its ranks over the next three-years, has trained some police officers to deal with investigations into allegations of misogyny. I’m not a detective but I’m unclear exactly how you investigate a misogynistic assault differently from a regular assault – maybe you can enlighten me on the differences in evidence likely to be found in the two situations?

This successful policy has seen twenty investigations launched, which resulted in two arrests – both for offences that would have been investigated (or should have been investigated) regardless of the new misogyny classification. I make that a strike rate of 10% albeit from a very small sample. It seems neither man has been charged with anything and there have been no convictions, which in my book is a 0% clear up rate. Though, I admit it is still early days.

These remarkable detection rates have so impressed other forces that they are sending police officers to Nottingham to see how they too can implement this exciting policy, which I’m sure has everything to do with the awe-inspiring performance and nothing to do with looking, good, modern or PC.

I have a mother, two sisters, an assortment of female aunts and cousins as well as a girlfriend and a daughter; I want to see criminals arrested, charged, convicted and punished. What I’m not interested in seeing is an obvious publicity stunt aimed at grabbing some headlines, a few column inches and making a new chief constable look good in the few months before she retires from the force.

So far, all this initiative seems to have done is lead to the arrest of two men who should have been arrested anyway. The overwhelming majority of allegations, 90%, have not resulted in even an arrest. If that’s your idea of doing something useful to combat crime against women, then I dread to think what a bad idea looks like.

Police complain a lot about direct entry superintendents but when chief constables who have worked their way through the ranks seem more intent on building a public image than doing something actually useful I have to wonder whether DE is such a bad thing.

Monday, 19 September 2016

Forcing the innocent to disclose untrue accusations

Acquittals don't necessarily mean the shadow of a rape allegation disappears

The Court of Appeal, led by the Master of the Rolls, published its judgment in the case of Regina (R) v Chief Constable of Greater Manchester Police & Another a few days ago.

While the title of the case may have non-lawyers reaching for the back button to escape a boring legal discussion, I beg you to hold fire just a moment because this is one of those cases that just might impact on your life one day.

In Greater Manchester Police (sorry I’m not typing the whole case name out every time – maybe I should call it Peter’s case, since that’s the name of the Chief in question… on second thoughts that’s probably too silly even for me), the court considered an appeal from the High Court against the dismissal of R’s claim for judicial review. The Greater Manchester Police case began when R was accused of rape – he was put on trial and acquitted. For the moment, we know no more about him or his case than that. We don’t know whether R was the victim of a false allegation, mistaken identity or something else. What we do know is that he was acquitted and so is innocent of the crime. We also know that he applied for a job as a driver, which he appears not to have got purely because his prospective employer required an enhanced criminal record certificate, which showed that he had been charged, tried and acquitted of rape. According to the case reports, we do know that the allegation of rape was made in connexion with past employment as a driver.

You may be aware that in England and Wales (indeed in all civilised nations I know of – even the Americas and France) a person is innocent until proven guilty. This means that when he is found not guilty he can properly be described as innocent. This has been the situation in E&Ws for a thousand years or more and, as a gift to Europe, following their numerous experiments with tyranny, we enshrined that presumption into the European Convention on Human Rights, in article 6.2.

In 2013, the European Court of Human Rights held that public officials are not to treat a person as if they are guilty of a crime for which they have been acquitted (Allen v United Kingdom). This should be no surprise to any English lawyer where the plea at Bar of autrefois convict long pre-dates the ECHR, albeit that the convention rights are far broader.

Given that somebody is innocent unless proven guilty and that government officials should not treat a person as guilty when they have been acquitted you might think that telling prospective employers about past allegations that turned out not to be true might breach article 6.2 and the Allen case. But, not so said the court of appeal. By the way, while I say it shouldn’t be a surprise, I’m of course excluding magistrates’ courts where law doesn’t apply and where I once saw a District Judge refuse to allow a recently acquitted defendant to recover his costs because “he might still be guilty”!

Their Lordships found that article 6.2 applies only to public statements by organs of the state and not to private documents such as a criminal record check. Personally, I find that an odd demarcation line; are the court seriously suggesting that the police cannot make a public statement about an individual but can send a private letter to every prospective employer, e.g. every cab firm or every school, etc in the area, thus preventing him ever getting a job?

Of course, it’s worth remembering that one of the reasons criminal record checks exist is because of the Soham murders, in which two 10-year-old girls, Holly Wells and Jessica Chapman were murdered by the caretaker of a nearby secondary school who would not have got his job had past allegations against him been disclosed to the school. It’s also worth remembering that his job was not how he gained access to the girls – that was because they came past his house and he invited them inside to visit his girlfriend who was their teaching assistant.

There is a serious discussion to be had about this type of case. Just where do we strike the balance between liberty and rights of the wrongly accused and the safety of society. There are some people who say we should do everything possible to prevent crimes occurring in the first place, but that way leads to imprisonment for everyone until such time as they can prove they’re innocent of everything. On the other hand, there are those who favour everyone taking their own chances in life – my experience of such people is that they’re the ones most likely to be eaten alive in such a society so I’ve never really understood where they’re coming from.

Where do we strike the balance? Should a person who is innocent have the right to have his past trial forgotten or should the local community be alerted to past accusations, just in case the jury got it wrong, as my legally challenged District Judge thought? The answer for many people is, “what if it were your wife or daughter who was raped and could have been saved had disclosure like this taken place?” That is a lazy argument and easily contradicted with, “what if it were your father or son whose life were ruined by a false allegation that followed him around because the police keep telling everyone about it?”

The Soham Murders present another factor – should we check the criminal records not only of school staff but of their family who might come into contact with children (or children’s details) as a result of their relationship with the staff member?

So, where is the balance to be struck? Buggered if I know – do you?

What I would hope happens in every case is that somebody sits down with the application for disclosure, reads it and looks at past incidents then make a decision as to what is disclosed. What I expect happens is that an application comes in and they just print off whatever is on the record and pop it in the post.

Friday, 9 September 2016

Televised searches

Dominic Littlewood, a presenter on Fake Britain

I'm taking a break from my usual diet of drink driving law to talk about search warrants and the presence of TV cameras when they are executed.

Last night I watched Fake Britain, a TV show on the BBC that follows trading standards officers as they investigate various fake products – all sorts of things seem to be caught up in this definition from “fake” houses (where the house is supposed to have a Passivhaus rating but doesn’t) to substandard fairy lights, knock-off DVDs and fake designer jewellery.

On this episode the film crew attended a family home looking for a woman who they suspected was selling fake Pandora jewellery. The trading standards officer had a warrant to search and was accompanied by police officers. Nobody was home but a window had been left open so the police officers entered through the window then unlocked the front door allowing the trading standards officers and, it seemed the camera crew to enter. This sort of thing isn’t unique to Fake Britain, there are a whole array of fly on the wall documentary style shows that follow officers from police, immigration and trading standards. You often see footage filmed inside the home of the person being searched. Occasionally, you’ll see the dramatic scenes of police knocking a door down then storming the building swiftly followed by the camera crew who are on hand to capture everything.

Is this legal is a question I find myself asking quite a lot. These things interest me (because I’m very dull, don’t worry I know it).

Obviously, if the home owner gives permission for the camera crew to be there then all is well and good but, in this episode of Fake Britain, the cameras seem to have entered before the suspect came home – in fact they were in her living room when she walked through the front door to be confronted by a house full of police and trading standards officers. She clearly cannot have given permission for the cameras to enter before she was aware they were there – so what right do they have to enter her home?

In the show I watched, the police and trading standards clearly had the right to enter. Trading standards had a warrant, presumably issued by a magistrates’ court under reg. 22 of The Consumer Protection from Unfair Trading Regulations 2008, to enter, search and seize evidence. The police were there to assist trading standards - reg. 22(8) permits trading standards to take anybody necessary to assist with the search. But, what was the purpose of the film crew? They are not there to assist with the search, nor to gather evidence and they are not involved in the investigation in anyway – they are merely observers there to produce a commercial product (although Fake Britain is shown on the BBC it is made by a private, for profit, production company called ScreenChannel Television).

Back in 1972, the then Lord Chief Justice, Lord Widgery described search warrants as “a very serious interference with the liberty of the subject” in the case of Williams v Summerfield. Lord Bingham repeated this observation in 1991 when giving judgment in R v Crown Court at Lewis, ex parte Hill.

Since those cases were considered, Parliament has enacted the Human Rights Act 1998, which gives affect in English and Welsh law to the European Convention on Human Rights. Article 8 grants a right to respect for private and family life. It directs that there must be no interference by a public authority with the exercise of a person’s right to a private life, except by law and when it is necessary to interfere with the right to prevent crime, among other things that aren’t relevant here.

So, we have a situation where two of the nation’s most senior judges have described searches as a serious interference with liberty and law invoked by Parliament that prevents a public authority interfering with citizen’s private and family life sans good cause.
I don’t think anybody will seriously disagree that entering another person’s home while they are not there and proceeding to go through all their property is anything other than an interference with the right to a private and family life, especially when some of the things could belong to other members of the family.

So, next we need to ask ourselves whether the various actions are a) lawful; b) necessary for the prevention of crime.

Is it lawful? In applying for the warrant the officer making the application must inform the magistrates about the nature of the investigation, why they think an offence has occurred and what, or who, they expect to find on the premises. They must also disclose anything capable of undermining the grounds of the application. So we can say that a warrant is issued for a particular, defined purpose, namely to search for and discover people or items in connexion with an investigation. We cannot, I would submit, conclude that the warrant allows entry to premises for any purpose the police or trading standards like. In other words, the warrant does not appear to authorise the entry onto the premises of a film crew there to make a documentary about the investigation.

Let’s take a look at whether admitting the film crew is necessary within either the meaning of regulation 22(8) or Article 8.

First, reg. 22(8) permits the trading standards officer to take any person or equipment he deems necessary to conduct the search. I would submit that this means directly necessary to enable the search to take place, e.g. a police officer to force entry, a locksmith to deal with difficult locks, etc. The question to ask is, could the search be conducted properly without that person present? In the case of a documentary making film crew the answer must be “yes”, because the search can and would go ahead whether they were present or not. So, regulation 22(8) does not appear to legitimise the TV company’s presence at the scene.

Looking at Article 8, the first thing to say is that the film crew is not a public authority; however, their presence is only possible because agents of the state allow them to be there, so I would argue that Article 8 is applicable. We must therefore ask whether allowing the TV crew to attend is done for the prevention of crime. You could make an argument that filming searches sends a message to criminals that law enforcement will take action against them, but I would submit that is a weak argument. Whether the search is filmed or not makes no difference to the investigation, the same evidence and people will be found whether the cameras are inside the property or not. Therefore, I cannot see how having a TV crew present meets the requirements of Article 8.

In conclusion, having looked at various points we must conclude that search warrants are issued for a particular purpose, which does not include the production of television programmes. Enforcement officers are permitted to take anybody they believe is necessary to the search, but that cannot provide carte blanche to treat the warrant as if it allowed anybody to attend – contrast for example an enforcement officer who brings his kids to the search, they are no more nor less necessary to the search than the film crew. Finally, by permitting TV crews access to private dwellings without the permission of the owner the police, trading standards or whoever is conducting the search are in breach of Article 8 of the Human Rights Act.

One day, I expect the police (or whoever) and a TV production company will face legal action in tort for trespass and breach of Article 8 – they may well lose, especially if the search reveals no wrongdoing. I also suspect, the day cannot be far off when a determined defendant seeks to exclude evidence because of the presence of people not connected to the investigation, who knows they might succeed.

Tuesday, 30 August 2016

Over use of special measures

Image result for witness giving evidence
Do we make it too easy for dishonest witnesses to lie?
When a matter comes for trial the procedure is for the prosecution to call their evidence and prove that the defendant is guilty of the offence(s) against him. In ye olden days, the prosecution would call witnesses who could say, “I saw X do Y” and would then use this to build the case against the defendant. The accuser would give evidence before the judge, jury and defendant – the defendant would face his accuser and the accuser would face the accused.

I’ve always thought that this is a good idea – in my opinion it’s much harder to lie to the face of somebody who knows you to be a liar than it is to lie to somebody with no knowledge of the facts. Don’t believe me? Go have an affair, send your wife the photos of your liaison and then deny it to her face and see if she can see through your lies – go on, I double dare you and we all know you can’t get out of a double dare!

Also, assessing a witness’s credibility requires the magistrates or jury to observe the witness so they can look out for any signs that person may not be being honest - this is why the case of a Muslim woman giving evidence while wearing a full face veil caused the courts so much consternation last year. If a witness is being dishonest, I’d suggest they may be more likely to show such signs when being observed by the person about whom they are lying.

In the Crown Court, you also have the additional consideration that members of the jury will see the witness being given special protection and think that the defendant must be quite a serious criminal if witnesses need to be hidden from him. This is clearly a real concern since I note that the Judicial College has set out a warning that judges should give to jurors about not allowing these special protections to reflect badly on the defendant:

“W gave evidence [insert as appropriate … from behind a screen/by video link/in a

recorded interview]. At the start of the case I explained that evidence can be given in

various ways and I now remind you that you must treat all evidence in exactly the

same way, regardless of how it is given. The fact that W gave evidence in this

way/these ways has no reflection on D, and you must not let it affect your judgment

of him or of W’s evidence.”

Crown Court Bench Book, volume 1, page 3-20

Let’s taken a moment to look at the exceptions, which were introduced by the Blair government in 1999. The exceptions allow witnesses to give evidence from behind a screen so the defendant cannot see them, on a TV link from another room or building or in a pre-recorded format. The exceptions are known in practice as “special measures” and are available for two groups. First there are those who are vulnerable due to age or incapacity, such as those with a mental disorder. The second group are witnesses whose grounds for special measures rely on fear or distress. To allow special measures, the court must find that the quality of the witness’s evidence is likely to be diminished by reason of fear or distress on the part of the witness in connexion with testifying in the proceedings.

On the face of it these are sensible exceptions that address particular needs but in practice I have found that they are now interpreted far more widely than was ever intended when they were introduced.

I have no problem with exceptions being made for witnesses who are young or otherwise vulnerable – that seems eminently sensible and I am not going to address those any further in this post beyond mentioning the fact that no special measures are allowed to the defendant no matter how mentally ill or young her or she may be.

Turning to the question of exceptions in cases of fear or distress; these I think are far too widely drafted and too loosely handled for my liking. Here’s an example, I attended a trial a few months ago in which the Crown sought special reasons for a woman who had witnessed the aftermath of a car crash. She was not present for the crash. She did not know any of the people involved in the crash and none of them knew her. Aside from exchanging a few words about a mobile telephone the witness had no contact with the defendant (although it’s worth mentioning that the defendant denies being the person she spoke to). There is no violence in either the incident or the defendant’s past. In short, there was no reason for any person of reasonable firmness (I admit that’s not the test) to be in fear of the defendant or distressed about giving evidence against him.

The magistrates rightly refused the application for special measures when I represented the defendant at the first trial listing. For unrelated reasons that trial could not proceed so was put off to another day when the defendant was represented by Counsel. On that occasion, the Crown raised special measures again but this time the trial court allowed them – same facts, same application from the Crown but a different result.

My experience is that special measures are taken for granted. The Crown often seem surprised and aggrieved if anybody challenges an application for special measures. Courts often seem equally put out by such challenges. More often than not I see these applications go through on the nod with no challenge at all. I really think that this risks the fairness of the trial, after all special measures are designed to make life easier for the witness, but they cannot be applied to the defendant. So you have one side able to take advantage of something that is designed to make their evidence better but which is deliberately withheld from the defendant.

The test for finding a witness eligible for special measures if set out in section 17(1) of the Youth Justice and Criminal Evidence Act 1999, which states:

“For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this subsection if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.”

Subsection 2 sets out various points the court should take into account:

In determining whether a witness falls within subsection (1) the court must take into account, in particular—

(a) the nature and alleged circumstances of the offence to which the proceedings relate;

(b) the age of the witness;

(c) such of the following matters as appear to the court to be relevant, namely—

(i) the social and cultural background and ethnic origins of the witness,

(ii) the domestic and employment circumstances of the witness, and

(iii) any religious beliefs or political opinions of the witness;

(d) any behaviour towards the witness on the part of—

(i) the accused,

(ii) members of the family or associates of the accused, or

(iii) any other person who is likely to be an accused or a witness in the proceedings.”

Subsection 3 tells us that the views of the witness should be considered. In my experience the views of the witness are often the only thing considered. Subsection 4 tells us that in respect of complainants in sexual offences special measures are automatic unless the witness opts out.

So, in effect we have a test that is “will special measures improve the quality of the evidence given by the witness?” We also have a list of factors the court should consider when answering that question. What we rarely have is real consideration of those factors in court.

In the case I described above, the magistrates refused the application initially because none of the reasons set out in subsection 2 were made out aside from the witness being “young” but nonetheless an adult. I am left wondering then how the trial court could possibly have reached a different conclusion except by deciding that the witness’s views trump all else. Equally, that can only be the reasoning of the Crown Court judge today.

Special measures play an important role in ensuring that vulnerable members of the community are able to get justice and give the best possible evidence. Frequently, they are used in cases where I cannot believe anybody in Parliament intended them to be used when they passed the Act. I have no doubt that they have given dishonest witnesses an easier ride in court and led to them being believed when they should not have been.

The justice system should be about achieving justice through the fair application of the law. It is not a fair application of the law for the courts to nod through applications by the Crown without any serious consideration of the issues. Nor is it right that defence solicitors fail to strongly challenge improperly made and ill-conceived applications when they are made.