In R (on the application of Richards) v Chief Constable of Cleveland Police (UKSC 2017/0090) the Supreme Court has refused permission to appeal against the imposition of a tagging requirement in a Sexual Offences Prevention Order (“SOPO”).  The undisturbed judgment of the Court of Appeal in R (on the application of Richards) v Teesside Magistrates' Court [2015] EWCA Civ 7; [2015] 1 WLR 1695 endorses (and perhaps extends) the purpose and effect of imposing qualified restrictions on sex offenders. 

Can the police charge a football club for match day policing on public land immediately outside a stadium, where that land is largely under the control of the club? No, the Court of Appeal re-affirmed in Ipswich Town Football Club v Chief Constable of Suffolk [2017] EWCA Civ 1484.

The Supreme Court has held in P v Commissioner of Police of the Metropolis [2017] UKSC 65, that police misconduct hearings no longer benefit from judicial immunity in respect of discrimination claims. They also held that the Chief Constable is vicariously liable for the discriminatory acts of such panels. However, the decision related to an internal panel under the old regime when a misconduct hearing panel was chaired by an assistant chief constable. Three awkward issues arise: 

- Whether its reasoning applies to panels chaired by a Legally Qualified Chair (‘LQC’) under the new regime; 

- If so, whether the Chief Constable is legally responsible for the acts of an independent panel or whether the LQC and the other members of such panels would be liable as a panel;

- If the LQC and panel members are potentially liable in damages in their own names, regardless.

The explanation of dishonesty to a misconduct panel has always had the air of artificiality about it. That is not just my view - in its upending of the test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, the Supreme Court described the test at [57] as being one "which jurors and others often find puzzling and difficult to apply." In that decision, the Supreme Court upended the Ghosh test, which should no longer be used in misconduct proceedings. What might remain a live question, however, is whether the objective standard is those of ordinary, honest people or ordinary honest police officers.

The College of Policing has published a document, "Guidance on outcomes in police misconduct proceedings". As stated on their website:

The introduction of the guidance will mean there is increased fairness and proportionality in cases which is important for officers and public confidence in the hearings.

As part of assessing the seriousness in cases, misconduct panels will consider, amongst other things the officer's record, culpability for the misconduct, the harm caused, aggravating factors and mitigation.

Aggravating factors will include, for example, any misconduct against a vulnerable person, or where discrimination is evident.

While personal mitigation may also be relevant, the guidance reminds chairs that the case law confirms that the protection of the public and the interests of the profession are important.

This guidance is likely to become used in every police misconduct hearing and practitioners should become familiar with it. The relevant webpage of the College of Policing is here and the document can be downloaded here.

In Sheffield City Council v Fairhall [2017] EWHC 2121 (QB), the Court has been asked to consider the extent to which the decision in DPP v Jones [1999] UKHL 5; [1999] 2 AC 240 can be relied upon as a right to conduct peaceful but disruptive protest on the highway.

There has been a long battle in Sheffield to prevent the local authority’s tree-felling programme. In an effort to discharge its obligation under s.41 of the Highways Act 1980 more efficiently, Sheffield City Council contracted out its maintenance contract to Amey Hallam Highways Ltd. In operating the contract, Amey identified a large number of trees, many of them healthy, that it wished to cut down. Campaigners believed that the contract into which Sheffield City Council entered was unlawful as it put, the Defendant submitted, profiteering (by Amey) and cost-cutting (by the Council) ahead of its environmental obligations.

In February 2017, there was something of a falling out between the police and the IPCC regarding post-incident procedures when police firearms are deployed. Reasonable arguments were made on all sides, robustly and publicly.

Shortly before his retirement as Metropolitan Police Commissioner, Sir Bernard Hogan-Howe gave a speech calling for "less suspicion and more trust" in firearms officers. He raised a concern, also raised by the Police Federation, about officers being deterred from volunteering and training for firearms duty by the threat of being treated as a suspect when they discharge firearms on duty and then being the subject of lengthy investigations. He also said, "we can’t afford to have officers think twice because they fear the consequences of shooting someone. That’s how they get shot or the public gets hurt or a criminal gets away with a gun."

Publication of misconduct investigation reports can give rise to difficult and important questions, particularly in cases where there has been no misconduct hearing because there has been a determination of "no case to answer", or because the accused officer has resigned or retired.

To my knowledge there is no provision in the Police Reform Act 2002, Police (Conduct) Regulations 2012 or related regulations which compels police forces to publish misconduct investigation reports; nor is there an express power to do so, voluntarily. But the question of publication may well arise as a result of a request for information under the Freedom of Information Act 2000 (“FOIA”). The FOIA of course establishes the general right of access to information held by public authorities, including Police and Crime Commissioners and police forces, upon written request, subject to exemptions.

Readers of this blog will recall that the Barbulescu case concerned Article 8 of the European Convention on Human Rights, in respect of private life and correspondence at work. The employee had been dismissed for allegedly breaching company regulations in relation to personal messaging at work.

A chamber of the Strasbourg Court held there had been no violation of Article 8, for the reasons explored in the blog below. However, the Grand Chamber of the Court has now reversed that decision and decided, by eleven votes to six, that there had been a violation of Article 8.

The Grand Chamber focused on the question of whether the employee had proper notice that his communications at work would be monitored, whether the employer could have used less invasive monitoring methods, and the court re-struck the balance between the employer and the employee’s rights and interests in the case.

https://www.juridice.ro/wp-content/uploads/2017/09/CASE-OF-BARBULESCU-v.-ROMANIA.pdf

Each year, the Home Office published police use of firearms statistics for England and Wales. This year’s publication on 27 July 2017, relates to the period from 1 April 2016 to 31 March 2017.

The headline figures show that, in the year to March 2017:

- there were 15,705 police firearms operations;

- 84% of those operations involved Armed Response Vehicles (ARVs);

- there were 10 incidents in which police discharged firearms;

- London accounted for the largest proportion (27%) of all police firearms operations; the North East accounted for the smallest proportion (3%);

- there were 6,278 Authorised Firearms Officer (AFOs), representing 5% of the total number of 125,851 police officers – the highest proportion in last 9 years.

The recent case of Vining & Ors v London Borough of Wandsworth [2017] EWCA Civ 1092 represents an attempt to circumvent restrictions on certain types of officers from enjoying employment law rights - in a claim of unfair dismissal and for a protective award in respect of an alleged failure in collective consultation relating to their redundancies.

Wandsworth reorganised their parks police force and dismissed Mr Vining (V) and Mr Francis (F) from that force on the ground of redundancy. As a result, V and F brought proceedings for unfair dismissal for W’s failure to consult them during the redundancy process.

In Campbell v Bromley Magistrates’ Court [2017] EWCA Civ 1161, the Court of Appeal has confirmed that that there are no "fruits of the forbidden tree" consequences when it comes to the forfeiture of cash seized in accordance with Chapter 3 of the Proceeds of Crime Act 2002 (“POCA”).

A search warrant executed at the Appellant’s home had resulted in the seizure of a quantity of cash and the Appellant’s arrest on suspicion of money laundering. The cash was detained and subsequently forfeited under section 298 POCA on application by the police. The Appellant sought to challenge the decision of the Magistrates Court to proceed to a forfeiture hearing without its first determining, at a preliminary hearing, the lawfulness of the search and the subsequent detention of the seized cash.

Who pays the costs of Special Advocates where closed material procedures are required to consider sensitive police documents in family proceedings? The police, according to Cobb J in Re R (Closed Material Procedure: Special Advocates: Funding) [2017] EWHC 1793 (Fam).

In family proceedings where the police are ordered to disclose relevant documents, occasionally the police object to disclosure or inspection of particularly sensitive documents. Where the court deems it necessary, it can invite the Attorney General to appoint Special Advocates to represent the interests of the parties in closed material procedures to consider that sensitive evidence. Special Advocates are appointed by through the Special Advocates' Support Office (“SASO”), which is part of the Government Legal Department.

A very long judgment in Marsh v MoJ [2017] EWHC 1040 (QB) deals with a employee's personal injury claim arising from his employer's misconduct investigation into him. The final part, however, addressed (very briefly) an abuse of process application, where it was contended that the Defendant's solicitor acted with an excess of zeal when dealing with witnesses and/or that she was too close to the case.

This is the second of two posts on the case from the European Court of Human Rights, Shalyavski v Bulgaria (App no. 67608/11) 15.6.17, concerning breaches of article 3 and 8. This second one concerns a finding that the police’s visiting of a person’s home whist they were under house arrest, sometimes up to five times a day, was not a breach of articles 3 or 8.

This is the first of two posts on the case from the European Court of Human Rights, Shalyavski v Bulgaria (App no. 67608/11) 15.6.17, concerning breaches of articles 3 and 8. This first one concerns damages for (arguably) detention contrary to article 3. Where a disabled person, unable to mobilise himself, was kept by the police in a car for between eleven and twelve hours as a result of the arrest of his carer, this amounted to a breach of article 3. Monetary damages were awarded but were typically modest.

The courts have given another judgment, Ahmed v Crown Prosecution Service [2017] EWHC 1272 (Admin), which helps the police in considering what actions fall within the execution of their duty. In short, where a police officer genuinely and reasonably believes that they are authorised by a court order to arrest a person for breach of an injunction and that the person is in breach of it, they will be acting in the course of their duty if they arrest that person. Even where there is no valid injunction. Sort of. The case is not available on Bailii - possibly because it was given ex tempore. It is on Lawtel and Westlaw. 

The David Hare screenplay for the recent film Denial contains the following advice to the client: ‘stay seated, button your lip, and win.’ This article seeks to plot a path for advocates to winning in large scale discrimination claims in the employment tribunal, based on the writer’s long experience of the ET and, more recently, briefs to act for the respondents in two high stakes cases, AB -v- A Chief Constable[i] and Aubrey -v- The Chief Constable of Northumbria Police[ii]. The suggested lessons apply to all types of large-scale claim in the ET.

The debate on whether there is a difference between honesty and integrity continues apace in Rhys Williams v Solicitors Regulatory Authority [2017] EWHC 1478 (Admin). I expressed my opinion here that there was a material difference between the two and that the decision of Mostyn J in Malins v Solicitors Regulatory Authority [2017] EWHC 835 (Admin), that the two were synonymous, was not correct - at least for the purposes of the Police (Conduct) Regulations 2012. The Divisional Court (the President of the QBD presiding) has now similarly deprecated it.

The court has also restated the principles concerning the requirement that misconduct allegations be properly pleaded and put to witnesses - with a steer that panels should look to the substance rather than technicalities. 

One of the biggest and most controversial senior employee discrimination claims in recent years, Aubrey v. Chief Constable of Northumbria Police, has come to a close, at least in relation to liability. The Employment Tribunal gave judgment for the Respondent in November 2016, which was confirmed in the Employment Appeal Tribunal in May 2017.

The case is exceptional because of its complexity, the value of damages had Ms Aubrey been successful, and the high reputational stakes for all involved. The successful respondent was represented by Angus Moon QC and Aaron Rathmell of the Serjeants’ Inn employment law team. 

Lavender J in MLIA & CLEL v Chief Constable of Hampshire [2017] EWHC 292 (QB) has offered helpful guidance on the application of the limitation defence for human rights claims, in a case which failed to meet the threshold for engaging the investigative duty under Articles 3 and 8 of the Convention.

The Claimants were a mother and daughter who had been victims of abusive, aggressive, violent and threatening behaviour perpetrated by the First Claimant’s former partner prior to November 2005. Following an order by Master McCloud that there should be a trial of liability, the issues before Lavender J were:

1. Whether the claim had been commenced within “such … period as the court … considers equitable having regard to all the circumstances” pursuant to section 7(5)(b) of the Human Rights Act 1998;

2. Whether Article 3 and/or Article 8 were engaged and, if so, whether the Defendant had acted in a manner which was incompatible with the duty imposed by those Articles, in particular by failing to investigate the Claimants’ allegations.

It sometimes vexes police lawyers – how the police can be a prosecutor for the purpose of malicious prosecution when it is the Crown Prosecution Service that makes the decision to prosecute. Further, it has not always been easy to identify what acts of officers can result in liability for misfeasance in a public office. In Rees v Commissioner of Police for the Metropolis [2017] EWHC 273 (QB), Mitting J explained both of these - disagreeing with some previous cases and explaining others.

The judgment in Re Ward of Court [2017] EWHC 1022 (Fam) answers with a resounding “no”, the question of whether the court’s consent is required before the police can interview a ward of court. A simple point, one might think, but there was, according to Sir James Munby, President of the Family Division, a “startling lack of clarity in the law” on this issue [5].

The recent decision of the High Court upon an application for judicial review of a Police Medical Appeals Board (‘PMAB’) decision in the case of R (Fisher) v (1) Chief Constable of Northumbria (2) PMAB [2017] EWHC 455 (Admin) highlights the pitfalls in the assessment of a former officer’s uninjured earning capacity when reviewing the level of an injury pension under regulation 37 of the Police (Injury Benefit) Regulations 2006.

A recent decision from the High Court in Chief Constable of Thames Valley v Police Misconduct Panel [2017] EWHC 923 (Admin) says that misconduct panels can now be judicially reviewed by Chief Constables - but gives rise to a number of new and potentially awkward questions.

Whether a Chief Constable had standing to apply for judicial review against a decision of a misconduct hearing panel had not, until now, been a question that anyone wanted to ask.  Before the recent advent of legally qualified chairs, hearing were presided-over by either an Assistant Chief Constable (ACC) or a Deputy Chief Constable. Plainly, it would have been (almost) unthinkable for a Chief Constable to seek to bring a judicial review against a decision that one of their own chief officers had made. 

Another month, another decision on the meaning of honesty and integrity. Given that the Standard of ‘Honesty and Integrity’ is considered primus inter pares in relation to the other Standards, in that a breach of it puts an officer at serious risk of dismissal, what amounts to this is important – for officers and presenting authorities.

There has been a number of cases addressing this over the past couple of years. They have focused on the meaning of integrity as opposed to honesty – whether integrity is something different to honesty and, if so, whether it is measured subjectively or objectively. This post will suggest that integrity is something different to dishonesty and is measured objectively rather than subjectively.

Not a long post - just a short note about damages awarded in a recent police civil action of (1) Stewart (2) Chergui v The Commissioner of Police of the Metropolis [2017] EWHC 921 (QB). Now updated to include the costs decision.

R (Duggan) v Asst Coroner North London and (1) Metropolitan Police Commissioner (2) Serious Organised Crime Agency (3) IPCC (4) DS Belfield (5) DC Faulkner (Interested Parties)  [2017] EWCA Civ 142 (judgment here

Mark Duggan’s fatal shooting by Metropolitan Police officers gave rise to widespread public disorder across the country. The inquest jury’s finding that the cause of death was “lawful killing” has, unsurprisingly, remained matter of public debate and given rise to several legal challenges.

Police officers who bring employment tribunal claims often seek disclosure of documentation prior to, or shortly after, the issuing their claim, by making a subject access request pursuant to Section 8 of the Data Protection Act 1998 in the hope that they may uncover information which assists their case. Responding to such requests can be difficult and time-consuming. The legislation is complex and, in the digital age, the sheer number of documents, which of course includes electronically held data, can be overwhelming. The question is often asked 'on what basis can the information be withheld?

The case of McCarthy v Chief Constable of Merseyside Police [2016] EWCA Civ 1257 provides an interesting analysis of the tort of battery, trespass ab initio and use of reasonable force relating to use of a taser in a policing context. The Court of Appeal judgments provide clear recognition of the difficulties and realities faced by police officers in the context of fast moving, violent incidents in which fine judgments are difficult and provide important guidance as to the correct factual and legal approach in such cases.

On some legal databases, it appears that paragraphs 19B-D of the Police Reform Act 2002 (PRA) have been repealed and that paragraph 19A has been replaced. The problem with this is (i) that the replacement provides for no severity assessment to be reformed and (ii) contrary to what appears on some legal databases, the paragraphs have not, actually, been repealed or replaced (yet). 

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2017 came into effect on 27 February 2017. The Order brought into force three revised codes of practice under the Police and Criminal Evidence Act 1984 (“PACE”), which supersede the pre-existing Codes of Practice. The revisions to Code C and Code H implement amendments to PACE made by the Criminal Justice and Courts Act 2015 (“CJCA”), which defines a “juvenile” for the purpose of detention as a person who is under the age of 18, rather than under the age of 17. This now requires a 17 year-old to be treated as would be a 16 year-old rather than an adult of 18 years or over.

The Policing and Crime Act 2017 heralds significant change to the powers of police staff and volunteers, going beyond those of Police Community Support Officers. 

When the Act comes fully into force, the categories of employees with delegated powers will be streamlined from four to two: “community support officer” and “policing support officer”. The latter will cover the old categories of investigating, detention and escort officers. There are also two categories of volunteers: “community support volunteer” and “policing support volunteer”.

In relation to policing support officers and policing support volunteers, chief officers will be able to confer upon them any policing power, except for defined core powers. In other words, the position under the PRA of designation from a limited menu of powers will largely be reversed and staff could be designated with a wider variety of powers, duties and functions.

Mark Ley Morgan successfully acted for the Chief Constable of Nottinghamshire Police at first instance and on appeal in Frugal v Nottinghamshire Police [2017] EWCA Civ 86 - a civil action concerning arrest and detention.

Many police practitioners will pause on learning that they are instructed in a case involving an arrest for breach of the peace. The reason being - that the law on when an arrest can be made is not always well understood by arresting officers. That is not to be discourteous to the police. Rather, it is a recognition of how complicated this issue can be. The Supreme Court in the case of R (Hicks) v Comr Metropolitan Police [2017] UKSC 9 gives some assistance to the police where they seek to arrest persons in light of an imminent breach of the peace and provides a simpler statement of the law than did the Court of Appeal.

It is not uncommon for police officers to justify the necessity of an arrest by reference to PACE s24(5)(e) - to allow the prompt and effective investigation of an offence or the conduct of the person in question. The case of R (TL) v Chief Constable of Surrey [2017] EWHC 129 (Admin) considers the extent to which this permits arrest for the purpose of imposing bail conditions and conducting a search.

The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC in R (IPCC) v IPCC [2016] EWHC 2993 (Admin) who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.

The Police Appeals Tribunal should take care not to go behind clearly expressed statements made by police hearings tribunals. It should also take care as to the order of witnesses where hearsay evidence is being admitted: Squire v (1) The Queen (CC Thames Valley Police) (2) PAT [2016] EWCA Civ 1315.

Senior Coroners still smarting from being described as holding "a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear in Secretary of State for the Home Dept v Senior Coroner for Surrey [2016] EWHC 3001 (Admin) that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.

In R (Darren Williams) v Police Appeals Tribunal [2016] EWHC 2708 (QB), Mr Justice Holroyde was asked to consider whether ‘the Salter principle’ – that personal mitigation carries diminished weight in cases of police or professional misconduct – applies to all breaches of professional standards, not just honesty and integrity. He found that it did – but that all mitigation must properly be weighed and considered.