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.