http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1
BLOG
On the beat
7 February 2011
23 January 2011 - But officer!
The police are getting a bit of a rough time in the press at the moment. Not that I really care as it’s most likely that they deserve it, especially if the stories are true.
Unless you’ve been on the moon this month, you will have heard about the collapsed trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station and the subsequent allegations that have been made of an undercover officer, who had infiltrated their group as an agent provocateur. This case, along with the revelations that undercover officers are often promiscuous when carrying out their job, raises serious questions over covert policing and whether it is now time to shine a bright light on this area of law and order.
ACPO, the supervisory body, has now been stripped of its role and there are possibilities that common law actions for negligence and misfeasance in public office may follow suit. The former director of public prosecutions made damning comments about the accountability of covert operations and I would agree that at present accountability is scarce in this undercover world and that the Regulation of Investigatory Powers Act 2000 (RIPA) needs to be more tightly drafted so that activities that are carried out in the name of covert surveillance are proportionate.
It has only been a couple of months since the discovery of West Midlands Police’s misguided Project Champion, which installed CCTV and ANPR cameras in east Birmingham, a predominately Muslim community. The chief constable made the best heart-felt apology he could in the circumstances and it has since been reported that the cameras will be removed – but at the estimated cost of £630,000. Was it worth it? I don’t think so, and examples of these types of surveillance projects worry me as I don’t think they are isolated cases.
Surveillance is out of control and with the enormous costs attached to running these projects there needs to be a greater degree of proportionately in the decision-making process before they are put in action. When they go wrong, they don’t just damage the reputation of the police they damage the fabric of a free society and that takes a long time to heal.
The murky world of undercover policing has now left police officers exposed and the sacred veil that they used to hide behind is no longer there. Proportionate covert policing is the only way forward and this needs to be implemented sooner rather than later for the benefit of all.
Saturday, 12 February 2011
Tuesday, 7 December 2010
Guardian- Comment is Free
Student sit-ins are not acts of trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
Solicitors Journal - Occupied Minds
Occupied minds
6 December 2010
Main Page Content:By Sophie Khan
Judges must not allow possession orders to trespass on the legality of student sit-ins, argues Sophie Khan
As the wave of student protests rips across the country, it seems the police are not the only ones raising their game against the students. On 24 November, the School of Oriental and African Studies (SOAS) made a claim for possession of property against ‘persons unknown’, including students of the SOAS. The order sought possession of the Brunei Suite, a facility room which had been occupied by the students since 22 November.
The students had organised a sit-in to protest against the coalition government’s proposals to cut university budgets and raise tuition fees, forming part of a larger, on-going protest by students across the country. The demonstration was peaceful and those involved were careful not to interfere with the proper functioning or activities of the university.
Although the students were exercising their article 10 and 11 rights during the sit-in, the claim for possession was granted to the university on 25 November by Henderson J who was presiding over the case. He relied heavily on the case of Appleby and Others v United Kingdom [2003] 37 EHRR 783 in support of his judgment for possession.
Striking a fair balance
In that case the applicants who lived in Washington, Tyne and Wear had been campaigning against a plan to build on the only public playing field near Washington town centre. The applicants in March and April 1998 tried to set up a small stall in The Galleries, a shopping mall that had become the effective town centre.
The private company that had recently bought up most of the shopping area from the government had refused them permission to collect signatures for their petition. They relied on the rights of article 10 and 11 of the ECHR on the bases that the shopping mall was a quasi-public space in which individuals could claim the right to exercise freedom of expression and assembly in a reasonable manner.
Although the majority judgment in that case recognised the importance of their rights, it stated that they were not unlimited and that the property rights of the owner of the shopping centre had to be taken into consideration. However, the dissenting opinion of Judge Maruste recognised the importance of wider considerations when striking a fair balance between the competing rights.
Maruste J said: “The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society.” If wider considerations were to be taken into account, then the contemporaneous student protests would add weight to a defence against a claim for possession against an occupied room which otherwise would not be viable.
Grass roots
The use of possession claims by the SOAS is unprecedented and at worst could be an abuse of process because of the draconian nature of the order, which does not allow for proportionality to feature in the argument against. And, although the SOAS was the first university to claim possession against occupying students, it will not be the last – at the time of writing Cambridge University had obtained an interim injunction against a student occupying the Old Schools building.
The lack of case law on this specific type of possession claim also creates problems for the occupying students. The sit-in could be classed as a quasi-trespass, as the students have the right to enter and remain but not to occupy. However, it is a peaceful protest carried out by students of the university, for the future of their university.
The uniqueness of the occupation therefore distinguishes it from other forms of trespass and could not be classed in the same league as the recent example in Mayor of London v Rebecca Hall [2010] EWHC 1613 Admin, the democracy village case, in which a group of protesters had set up camp in Parliament Square Gardens. In this judgment, Griffin J considered the following questions:
Can the claimant establish a right to possession?
Are the defendants in occupation of and trespassers on PSG?
Does the article 10 and/or article 11 right provide a defence and disentitle the claimant to possession?
Have the defendants breached the criminal law in the course of their occupation, and, if so, is this an exceptional case in which to grant an injunction in support of the criminal law and if so are injunctions a proportionate response to the aims of the mayor to regain control of the gardens for the benefit of others?
Should the court grant an injunction in the exercise of its discretion against any of the defendants?
Filling the gap
Many of these questions would not be applicable in sit-in cases, thereby creating a gap in the law where both the law of possession and the right of assembly do not reign.
The dissenting opinion of Maruste J in the case of Appleby could therefore be used as a starting point to fill that gap, but much work needs to be done on this area before definitive tests are established and applied against student occupiers.
Postscript:
Sophie Khan is a solicitor at Imran Khan & Partners and represented the SOAS sit-in students. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=17388&encCode=2079109861BC8633923JTBS737226611
Solicitors Journal -Poor Quality
OPINION
Poor quality
29 November 2010
- Main Page Content:By Sophie Khan
The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan
On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held
a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.
The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.
The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.
The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.
Driving force
It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.
The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.
No evidence
The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.
Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.
Hampering needs
The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.
It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.
So the jury is out for the future of advocacy, at least until next year.
Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates
Poor quality
29 November 2010
- Main Page Content:By Sophie Khan
The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan
On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held
a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.
The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.
The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.
The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.
Driving force
It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.
The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.
No evidence
The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.
Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.
Hampering needs
The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.
It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.
So the jury is out for the future of advocacy, at least until next year.
Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates
Friday, 22 October 2010
Solicitors Journal - Thin Blue Line
Thin blue line
19 October 2010
By Sophie Khan
The commissioner's outdated attitudes to police accountability are part of the problem, not the solution, argues Sophie Khan
It was a surprise to read that Sir Paul Stephenson had written to the home secretary with his concerns over legal costs. He has failed to take on board the arguments that have been made time and time again by civil action against the police practitioners and civil liberties groups which link accountability to costs. Instead he has proposed in his confidential letter to Theresa May that he wishes to “make it harder for people to sue the police for damages in civil actions”.
This is a clear signal by the commissioner that he attaches no significance in redressing civil wrongs committed by police officers and that ‘accountability’ is a word that does not apply to the police. This outdated approach in dealing with an ongoing problem is one of the reasons why the police have lost the respect of their communities and are likened to a ‘gang in uniform’ rather than officers of the law.
The only solution
The proposals the commissioner should have put forward would be to recognise that accountability is the only solution to his desire to reduce costs and propose steps to bring about the level of accountability that will address the numerous allegations of police misconduct. At present it is only through civil actions that there is real accountability against these abuses and is the only platform where the evidence can be comprehensively tested and the wrong redressed.
In the absence of civil actions there would be no delivery of justice to those who have genuinely been wronged and as a society we would be allowing a two-tier system to operate for the police, which would be unfair and has no place in due process and the rule of law that we as British citizens value and cherish.
The commissioner could of course argue that public bodies such as the IPCC and the CPS are there to ensure such breaches, civil wrongs and criminal acts are addressed. However, it has only been a recent development by the CPS to prosecute more police officers and the looming cuts on the CPS which have already seen a freeze on recruitment could lead to a lack of resources rather than the will to prosecute more cases in the future.
One of the difficulties I have experienced with the IPCC is its reluctance to take a more direct approach against the police officers working in the Directorate Professional Standards and Professional Standards Board and face them head-on on complaints that have not been dealt with sufficiently and ones that should have been upheld.
No acknowledgement
This has been an ongoing issue for several years and to date has not been addressed and is unlikely to be addressed in the near future. The existing framework of accountability in my opinion is not working and is the cause of many of the civil actions that are subsequently brought by those same complainants as they are dissatisfied with the complaints procedure and feel that their grievances have not been acknowledged by the police.
The commissioner needs to take on board that police officers, like everyone else, have to be held accountable when procedure is not followed or when there is evidence that a civil wrong or criminal act has been committed. His attempt to circumvent the rule of law for his officers through the back door is not welcomed and will be strongly opposed. It also raises serious questions over his commitment and motivation to the new era of policing and whether the lessons of the last 30 years of police misconduct have had any impact on the police.
Postscript:
Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=17120&encCode=902488516BC2173923JTBS737226611
Monday, 27 September 2010
Solicitors Journal - Fighting the force
Fighting the force27 September 2010 | |
It has been a bumper month for successful challenges against the police. What would Lord Bingham make of it all, wonders Sophie Khan
This year has seen a sea change in the way prosecutors have approached allegations of assault against the police. There has been a clear recognition on the part of the Crown Prosecution Service (CPS) that the public will no longer accept that officers can be treated as if they are above the rule of law.
This month alone has seen the successful convictions of sergeant Mark Andrews, sentenced to six months for actual bodily harm, along with special police constable Peter Lightfoot, sentenced to two years for assault and one year for lying in court on 1 September. Last week, territorial support group officers PC Nigel Cowley, Roderick James-Bowen, Mark Jones and DC John Donohue appeared at the City of Westminster Magistrates’ Court to face charges of causing actual bodily harm contrary to the Offences Against the Person Act 1861 on Babar Ahmed during his arrest in December 2003.
Meanwhile, September has also brought the death of one of the greatest judges of our time, Lord Bingham of Cornhill. Tributes to his exclaimed judgments on civil liberties and his deep commitment to due process and the rule of law is a fitting example of how fundamentally important it is for there to be accountability of those who are trusted to uphold the law.
His recent publication The Rule of Law was inspired by his fear that Britain was losing a basic respect for the idea of liberty and the excessive use of powers by state officials, including the police, on the public at large were eroding the foundations of our democratic society. His recent speech at the Convention on Modern Liberty in 2009 again delivered a clear message that state officers “should prompt a principled determination to ensure that the permissible exercise of such powers is strictly defined, regulated and monitored” – an idea that should be taken on board by public bodies.
Look twice
The CPS has in the past been accused of double standards when it came to prosecuting police officers for allegations of assaults resulting from arrests and detention of individuals. But the recent change in approach has demonstrated that they are prepared to deal with allegations of criminal offences against the police.
The emphasis in their charging decisions against the police shows a determination to abide by their Code of Crown Prosecutors: “It is important for the maintenance of public and police confidence that a different standard is not allowed to develop in cases involving persons serving with the police.”
While there will still be many cases where there are no prosecutions following allegations of assaults against police officers, redress for serious assaults do fall within the code. Other public bodies such as the Independent Police Complaints Commission (IPCC) have adopted a similar approach when faced with evidence of criminal acts by the police.
In a recent IPCC report I received following my client’s appeal against the Directorate of Professional Standards investigation into my client’s complaints of unlawful arrest, detention and excessive use of force, there was an acknowledgment by the IPCC that “it was possible that a criminal act had been committed” against my client. However, they did not refer the matter to the CPS as they could not decide whether the injuries my client sustained were common assault, with a statutory time bar of six months from the date of the incident, or actual bodily harm. I believe the evidence would satisfy a referral to the CPS for actual bodily harm and I am now pursing this on behalf of my client, especially in light of the Barber Ahmed case in which four out of the five Territorial Support Group officers had their criminal case file looked at again following a successful civil action against the police for damages in March last year.
So the concept that there must be due process in maintaining the rule of law is holding firm against police officers and hopefully this new trend by the CPS to prosecute when there is sufficient evidence will continue. But these changes will not come over night and the recent Freedom of Information request by the BBC indicates a majority of complaints were still being made in respect of allegations of assaults.
The Association of Police Authorities will be proposing that the independence of the complaints process is strengthened so that it is more transparent and accountable. The budget cuts in policing, which may see the loss of 40,000 frontline jobs, could also result in the proposed process being fast tracked and push accountability to the top of the police’s agenda, especially if the police authorities are conscious of the costs of claims made against the police and prosecutions for criminal offences.
We will need to wait until next month to discover whether the police will be subject to the cuts before we can discuss whether a new style of accountability will emerge.
Postscript:
Sophie Khan is a solicitor specialising in actions against the police at Imran Khan and Partners. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=16980&c=3Saturday, 25 September 2010
Solicitors Journal
Update: police6 September 2010 | |
The decision to suspend stop-and-search powers is just the tip of the iceberg in a year full of significant developments in police law, writes Sophie Khan
On 8 July 2010, the home secretary announced that she would change the test for authorisation for the use of section 44 powers from requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it being ‘necessary’ for that purpose. This should now draw a line under the excessive and disproportionate use of the powers and bring about a more balanced approach to policing on our streets.
DNA retention – leapfrog appeal
Another recent area of development is the retention of DNA. R (GC) v Commissioner of Police of the Metropolis (defendant) & Secretary of State for the Home Department (interested party) and R (C) v Commissioner of Police of the Metropolis (defendant) & Secretary of State for the Home Department (interested party) QBD [Admin] 16 July 2010 were applications for judicial review of the policy to retain biometric samples for an indefinite period, save in exceptional circumstances.
It was held that the Administrative Court was bound to follow the decision of the House of Lords in R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 that the retention did not infringe an individual’s right under the ECHR article 8 rather than the decision of the ECtHR in S v United Kingdom [2009] 48 EHRR 50 that the blanket and indiscriminate nature of the powers of retention of the fingerprint and DNA material of any person suspected but not convicted of a criminal offence was contrary to article 8. The court, however, did grant leave for a leapfrog appeal to the Supreme Court to determine the issue of precedent.
Right to resist
In the cases of Cumberbatch v Crown Prosecution Service and Ali v Department of Public Prosecutions [2009] EWHC 3353 (Admin) it was held that where the arrest of an individual by a police officer was unlawful, other police officers who come to the assistance of their fellow colleagues were not acting in the execution of their duty, so that an individual who used reasonable force to resist those police officers was not guilty of an offence contrary to the Police Act 1996 section 89(2).
This case reinstates the common law set down by Christie v Leachinsky [1947] AC 573, that any person has the right to use reasonable force to resist an unlawful arrest, or to assist another to resist an unlawful arrest. The judgment of Lord Simonds at page 591 is a useful reminder of the fundamental right to liberty and freedom: “I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of that right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful.”
False imprisonment
It was held that the circumstances of AN v Secretary of State for the Home Department and Secretary of State for the Home Department v (1) AE (2) AF [2010] EWCA Civ 869 were not conceptually different from, or materially less serious than, that of a case involving deprivation of liberty, and the same principles applied as in R v Governor of Brockhill Ex p Evans (No 2) [2001] 2 AC 19 HL.
The appellant (AN) appealed against a decision revoking prospectively the control order in force against him, and the appellant secretary of state appealed against a decision ordering that the control orders in force against the two controlees in that case were to be quashed. The court was required to consider whether the non-derogatory control orders in place were to be quashed with effect from the date on which they were made or whether they should be revoked. It was held that the making of a non-derogating control order was an administrative act of the secretary and if an order was legally flawed it attracted the usual consequence of a legally flawed administrative act, which was quashing. It then follows that if false imprisonment is established the secretary of state cannot escape liability in damages because of the strict liability of the tort and compensation will be payable to the former controlees.
The Court of Appeal in the case of R (MK) v Secretary of State for the Home Department [2010] EWCA Civ 980 has recently applied the approach in R v Governor and it was held that there was an unlawful detention for more than three weeks. It also held that damages should be assessed applying a global approach, having regard to the particular facts of the case, and should not be assessed mechanistically. An increased award of damages from £8,500 to a total of £17,500 which included £5,000 for aggravated damages was made.
Closed material procedure
In Bisher Al Rawi & 5 others (Appellants) [2010] EWCA Civ 48, the issue was whether it was open to the court to order a closed material procedure of a civil claim for damages in tort. Lord Neuberger MR held that it was not open to a court to order a closed material procedure and the principle that a litigant should be able to see and hear all the evidence determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. Although the court had inherent jurisdiction to develop common law, the course proposed by the respondents would involve not merely altering the rules of evidence as they applied to any proceedings, under the Civil Procedure Act 1997 schedule 1, but altering the fundamental principles of law; Scott v Scott [1913] AC 417 HL and R v Davis (Iain) [2008] UKHL 36 followed.
Although the extent of any disclosure by the court was a matter of discretion, the overriding objective required the court to deal with cases fairly and to ensure as far as possible that the parties were on equal footing.
This case clarifies the use of secret and sensitive evidence by public bodies and is a precedent that can be relied upon in police actions in respect to evidence contained in ‘police intelligence’ reports.
Malicious prosecution
Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 is a recent case that follows on from the trend seen in the cases of Ministry of Justice v Scott [2009] EWCA Civ 1215 and AH v AB [2009] EWCA Civ 1092 in relation to complainants providing a false account to the police.
In this case the appellant (M) appealed against the dismissal of his claim for damages against the chief constable for malicious prosecution. The Court of Appeal held that the judge at first instance had been right to hold there had been reasonable and proper cause to commence the prosecution, which required a finding as to the subjective state of mind of the officer responsible and an objective consideration of the adequacy of the evidence, Hicks v Faulkner [1881-82] LR 8 QBD 167 QBD considered.
Although the police might have been wrong, they appeared honestly to have believed that the allegations were true and it therefore could not be said that the police were continuing the prosecution for an improper motive. It was unfortunate that the CPS did not make its decision more quickly; however, it could not be said that the police continued with the prosecution no longer having reasonable and proper cause. The case reinstates the difference between a malicious prosecution and one which is badly directly or incompetently conducted.
Information privacy
The case of C v (1) Chief Constable of Greater Manchester (2) Secretary of State for the Home Department [2010] EWHC 1601 has followed the Supreme Court decision of R (L) v Commissioner of the Metropolis [2009] UKSC 3.
C applied for judicial review of a decision of the chief constable to disclose information about him to a prospective employer in an enhanced criminal record certificate which contained details of an allegation made by his stepdaughter that C had sexually abused her between the ages of five and 15. C had sought a job as a welding lecturer at a further education college teaching children over the age of 16.
Langstaff J held that there was no presumption against disclosure, but nor was there a presumption in favour of disclosure. The question of proportionality necessitated close attention to detail by the decision maker and care had to be taken in weighing the risks of non-disclosure against those of disclosure. There had been no detailed consideration of the extent to which C would come into contact with children and there had been no detailed consideration of proportionality. The chief constable had taken into account the guidance in R (X) v Chief Constable of West Midlands [2004] EWCA Civ 1068 which was flawed and the decision to disclose could not stand. A decision that would inevitably have the consequence of C being unable to obtain work in his chosen profession was not proportionate to the risk from non-disclosure, which, though existing, was low. The case helpfully establishes that the correct approach is R (L) and clarifies the importance of proportionality.
In Chief Constable of Humberside and others (Appellants) v Information Commissioner (Respondent) & Secretary of State for the Home Department (Intervener) [2009] EWCA Civ 1079, the appellant chief constables appealed against decisions of the Information Tribunal that certain old convictions should be deleted from the Police National Computer. The police took the view that no convictions should be deleted except in exceptional circumstances, which should be narrowly construed as limited to such matters as convictions being established as wrongly obtained.
It was held that the tribunal had been wrong to find that the correct approach was that the police processed data for their ‘core’ purposes. Even if the narrower approach to purposes was correct, the tribunal was wrong to hold that retention of the information was a breach of the third and fifth principles of Data Protection Act 1998 schedule 1.
It was also held that the change in policy of ‘weeding’ in force at the time one of the individuals (S) was ensured that the reprimand would be removed from the Police National Computer after her 18th birthday had not become unfair. In the dissenting judgment of Carnwarth LJ on this point it was held that the court should evaluate the issue by reference only to the circumstances of the particular case.
The decision in these cases raises the issue of whether the police policy in the retention of minor convictions is proportionate in light of the case of C and whether the rights of the individual are being infringed.
Postscript:
Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=16870&encCode=715179954BC0610033JTBS737226611
Subscribe to:
Posts (Atom)
