You’ve Got Mail (And We’ve Read It)

Written by: George Thomas, Aaron Rathmell
Published: 1 February 2016

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?

Determining the scope of an Art 2 Inquest: the need for an arguable contribution

Written by: Bridget Dolan KC
Published: 28 January 2016

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 misconduct hearings

Written by: Elliot Gold
Published: 18 January 2016

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.

When warrants go wrong

Written by: Stephen Morley
Published: 22 December 2015

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.

Low threshold for an inquest jury

Written by: Jamie Mathieson
Published: 10 December 2015

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’.