Last October Gilbart J gave judgment in Mohidin & Ors v Commissioner of Police of the Metropolis & Ors [2015] EWHC 2740 (QB), a case involving allegations of racially aggravated assault, unlawful arrest and false imprisonment against four officers within the Metropolitan Police Service. The litigation was unusual in that the Commissioner had opted to bring Part 20 claims against the individual officers, who were separately represented at the trial. In the recent, supplementary judgment ([2016] EWHC 105 (QB)), Gilbart J has allowed the Commissioner’s claims for indemnity in respect of damages and costs against the officers who acted unlawfully.

The recent case of Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin) relating to restrictions on members of the public taking notes in criminal hearings in the Crown Court will have application in relation to similar restrictions in police misconduct hearings. The starting position is that note taking will be permitted - and a chair should not require observers to ask for permission before making any.

Last week the European Court of Human Rights (ECtHR) decided in the case of Barbulescu v Romania [2016] ECHR 61 that it was not a breach of an employee’s Article 8 rights for his employer to access a private, web-based email and messenger account. The case was widely reported in the press as a major development in the relationships between employers and employees. It has obvious ramifications for many aspects of policing, including officer’s conduct at work and the investigation of it by supervising officers or the Professional Standards Department.

So what does the decision actually change? 

In a case which serves as a reminder that an inquest should not be seen as a substitute for a public inquiry, the Admin. Court in R (Speck) v HM Coroner for York & (1) NHS England (2) MEDACS (Interested Parties) [2016] EWHC 6 has held that, where a coroner conducting an Art 2 inquest decides that a factor could not even arguably be said to have made any real contribution to the death, then there is no discretion, or indeed power, to investigate that issue. Coroners’ investigatory powers arise from their statutory duty under the Coroners and Justice Act 2009 s.5 and their discretion is limited to investigating only those factors that might arguably have contributed to a death. It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.

Public hearings in police misconduct hearings are new. As a result, panel chairs are just working their way around what is required and when to exclude the public. The bar for excluding members of the public and not naming officers is very high – as made clear by Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin). It concerns solicitors but the principles are transferable (with some key caveats, which I have not gone into here). The result is that there will be a strong presumption that police misconduct hearings be heard in public, including permitting all members of the public and the naming of all persons involved. A panel chair does have a power to restrict the public elements of a hearing but only in exceptional circumstances. 

  • Section 59 of the Criminal Justice and Police Act 2001 empowers the Crown Court to authorise continued detention of property seized pursuant to a warrant that is, or might be, unlawful.

  • The High Court has recently confirmed that an application pursuant to section 59 may be made notwithstanding that there may be outstanding judicial review proceedings challenging the legality of the warrant.

  • An inquest jury should have been called where a vulnerable witness fell ill and died in a police station.

  • The requirement for a jury where death results from the act or omission of a police officer is a ‘low threshold’.

  • The threshold can be cleared by suspicion that the police could or should have done more to prevent the death of someone who ‘needed looking after’.

  • Injunctions to prevent gang-related violence, pursuant to Policing and Crime Act 2009 section 34.

  • Orders are not confined to restraining particular conduct relating to the individual.

  • The court is entitled to consider the conduct attributed to the gang as a whole.

  • A football banning order must apply to all regulated matches.

  • A magistrates' court may not permit a person to attend some matches but not others.

  • Attendance at a football match does not engage article 8.

  • The High Court assessed damages for three Claimants at £2,500, £11,950 and £7,000.
  • Police officers’ denying the allegations against them during disciplinary investigations and a criminal trial could not sound in aggravated damages;
  • No damages for being cross-examined robustly by the officers’ counsel in criminal proceedings.

  • It is not an essential condition of a lawful arrest that a constable should verbally formulate a charge.
  • What is required is that the arrested person be told the act for which they are being arrested.

  • It is a legitimate aim for police forces “to achieve efficiency by reducing officer numbers with certainty”.
  • Police Forces had no other means of achieving certainty in their staff reductions other than by the use of A19, due to the limited ways in which officers can be dismissed. 
  • This finding demonstrates that the crucial question of whether a PCP is justified may depend on how the “legitimate aim” is phrased. 

In the recent decision in Zenati v (1) Commissioner of Police of the Metropolis (2) Crown Prosecution Service [2015] EWCA Civ 80; [2015] QB 758, the Court of Appeal held, for the first time, that the police may be liable to a suspect remanded in custody for a breach of article 5 where they fail to provide the court with all relevant, material information when the court makes a decision to remand the suspect in custody; to act with expedition when conducting ongoing investigations or when responding to requests from the CPS whilst the suspect remains remanded in custody.

  • When ought an officer be treated as being disabled for the purposes of making adjustments under the Equality Act 2010?
  • The relevance of restricted duties, substantive adverse affect, whether the condition is long term and the impact of adjustments and treatments.

  • The taking of witness statements by the police and the making of applications for witness summons’ falls within the core immunity in Hill;

  • Such actions do not demonstrate a voluntary assumption by the police of a particular duty of care to the maker of the statement;

  • Article 8 provides no greater protection than article 2 and it will be difficult for a Claimant to succeed only on the former. 

  • From 1st May 2015, most of the provisions of the Police (Conduct) (Amendment) Regulations 2015 come into effect.  
  • The 2015 Amendment Regulations make changes to the Police (Conduct) Regulations 2012 (“the 2012 Regulations”).  
  • The major change is that misconduct hearings will now be held wholly or partly in public. Previously this was only exceptionally the case.  This is a very significant legal and practical change. 
  • An additional significant change is that the 2012 Regulations now specify that a police officer who makes a protected disclosure (as defined in the Employment Rights Act 1996) is not to be regarded as breaching the Standards of Professional Behaviour. 

  • The impact of the High Court decision in James-Bowen v The Commissioner of Police of the Metropolis on the relationship between a Chief Officer and those accused of wrongdoing in civil proceedings.
  • The High Court confirmed that, where a Chief Officer is defending civil proceedings brought solely against him/her, there is no duty owed to individual officers whose conduct is the subject matter of the claim.  
  • While this decision is perhaps unsurprising, the action highlights the uncomfortable position a constabulary will often find itself in where it is uncertain about the truth of an allegation made against an officer.  

  • What documents ought the Appropriate Authority to be disclosing to the officer, the panel and now the public?
  • One option is to supply the officer with the IO’s report “warts and all” with all statements and documents relating to the officer, together with an invitation to the officer either to agree duplication of service on the panel, or service of redacted material.
  • Adopting such an approach may avoid unnecessary arguments about bias and recusal on the grounds of prejudice.
  • However, it is attended by the risk that a complainant, or the IPCC, could complain that the AA is in breach of its Reg. 27(1) obligation. 

  • The majority of the Supreme Court have once again concluded that the police owe no duty of care in negligence to members of the public who suffer harm at the hands of criminals.  
  • However, the case of Michael v Chief Constable of South Wales [2015] UKSC 2 has confirmed that, although there may be no claim in negligence, the police may still be liable for a breach of Article 2 of the European Convention on Human Rights (ECHR).  
  • Such claims can be brought in the domestic courts under the Human Rights Act (HRA) 1998.  
  • The police may be held liable to victims (or their families) for clear failures to prevent a potentially fatal incident of domestic violence of which they have received specific warning.

A review of the reported legal decisions 2014 relating to policing demonstrates that many of the old risk areas for litigation continued to trouble chief police officers, and increasingly Police and Crime Commissioners (PCCs).   While it is difficult for a force to protect itself from litigation following unpredictable major events, such as the London riots, there are particular aspects of policing where forces continue to face repeated litigation, or trends suggest that claims are likely to increase in the future.  

The public scrutiny of police activity, and the rights of individual members of the public to bring action when their rights are infringed, are truly fundamental features of open democracy.   A certain amount of civil litigation is probably an inevitable feature of modern policing.  However, Chief Officers and PCCs ought to be examining carefully whether there are aspects of their police operations that are generating excessive civil claims.  Reducing the incidence of such claims ought to improve the standards of policing as well as reducing the annual drain on policing budgets caused by legal claims and their associated costs. 

A recent High Court case has recognised the heightened ethical and public law duty on Chief Officers when a Force provides references to outside bodies regarding officers who are leaving the police.  The duty is particularly pertinent to situations where officers leave under the cloud of potential or pending disciplinary proceedings. 

Following the death of Ian Tomlinson, the spotlight has been on internal police vetting procedures and how to ensure that information about an officer’s misconduct history is shared at the relevant points, such as when an officer seeks to transfer or re-join a force.  The decision in AB v A Chief Constable [2014] EWHC 1965 (QB) recognises a need to be just as alert, and where necessary to share information about, officers who are leaving the police force altogether.  

The obtaining and execution of search warrants remains an area of operational risk for the police. The margin for error is often narrow. In two cases in the last year the courts have provided useful and important clarification of issues concerning search warrants that had not previously been definitively determined. Further guidance has also been given on how search warrant applications should be drafted, and the impact that disclosure obligations have on the process. Judicial guidance can sometimes (understandably) be overlooked by officers, but will be relied upon in any subsequent challenge. This article highlights the guidance given in recent cases which has important practical implications.

On 7 August 2014 judgment was given in the Administrative Court in the  case of Woods and Gorton v Chief Constable of Merseyside Police [2014] EWHC 2784 (Admin).  The decision  has important implications for all forces in the operation of service confidence policies (SCP).  The Court held that:

  • decisions under the SCP were amenable to judicial review;
  • where reasons for the policy’s use in a particular case cannot be disclosed as a result of public interest immunity, then the threshold for judicial interference in the decision is very high;
  • the test is whether there is clear evidence of dishonesty, bias or caprice.

Central to the decision that the court should not intervene in this case was the finding at a separate hearing, by a different judge, that the reasons for the decisions under the SCP were subject to Public Interest Immunity (PII) and could not be disclosed.  

In Van Ek & Jukes v Director of Public Prosecutions (16th January 2013) the Divisional Court dismissed the appeal of two protestors who were convicted of breaching conditions imposed on the route of a procession under s.12 of the Public Order Act 1986 (the POA).

Van Ek and Jukes were participating in a march against education cuts in central London. A specific route had been determined, and the Metropolitan Police had imposed a condition on the procession that it follow this specific route. The route did not take the protestors into Trafalgar Square, where an anti-capitalist protest camp had been set up, and was still present at the time of the march. A police cordon had been placed across the junction between a street and Trafalgar Square to prevent marchers entering the Square.

US journalist, James Foley, was seized by armed men in Syria in November 2012 and was killed by a man with an apparently British accent. David Cameron condemned the barbaric and brutal murder and confirmed that: “it looks increasingly likely that [the perpetrator] is a British citizen.” He explained that intentions of the British government were “…to arrest and prosecute those who take part in this extremism and violence.” So what are the powers of the English authorities to prosecute a murder committed abroad by a British citizen, and do any such powers extend to foreign accomplices in that murder? 

Aaron Rathmell has prepared a useful summary of changes to the Police (Performance) Regulations 2012, Police (Conduct) Regulations 2012 and Police Appeals Tribunals Rules 2012.

You can find a copy of his 2012 Regulations Update here.

The changes are due to come into effect on 22nd November 2012, following the election of the Police and Crime Commissioners.