RIPA – Intercept Evidence and Intelligence Services

The Regulation of Investigatory Powers Act 2000 (RIPA) perhaps one of the most confusing and complex statutes on the books, has recently been under review by the government. The act which provides a framework of authorisation for covert surveillance, the use of bugging and intercepting communications, in order to not violate Art 8 of the European Convention on Human Rights, is regarded as being “overused” by many local authorities for such petty things as to see who has been fly tipping. Discussion of the trivial uses of RIPA will be subject to another post, especially after the recent review by the Home Office.

The current criticism is focused on S 17  RIPA , which provides that no evidence shall be adduced that suggests anything about that an offence has been committed under s 1 of the Act or anything that suggests interception has taken place, or a warrant was issued to authorise such interception.

The issue resolves around the disclosure of evidence to the defendant, prosecutors who have gained an advantage by having intercepted evidence of communications passed on them, but cannot by virtue of s 17 disclose that information to the defence, nor would they want to.

Although I am not an expert on disclosure the deciding factors as shown on the BBC article above, says that to log every piece of information, transcribe and store it would amount to hideous costs, that would outweigh the benefit of the security services tapping into our phone calls.  The obvious benefit to the defence would be to know how the interception came about, and could in effect challenge its lawfulness, or ask to have it excluded.

The decision not to repeal s 17 or modify it in any way, is surely a blow to most defence practitioners. The relationship between bugging and telephone tapping which Shami Chakrabrati points out is more than slightly absurd, allowing real evidence of bugging someone’s home, but not allowing evidence from actual telephone taps, to most laymen the distinction wouldn’t appear to exist.

The more fundamental question that should be addressed is whether this puts the defendant to such a disadvantage as to make a trial unfair under Art 6? It would be unlikely that any trial judge would hold so and that the prosecution will be able to continue to use the “fruit of the poisoned tree” allowing themselves to use information gained from the intercepts which may lead them to find more real evidence, without actually having to disclose the intercepts themselves to the defence.

Stuart

The Law of Self Defence – Enters into the Political Arena

The conservatives in their bid to please voters who think the Labour government is not tough enough on crime (even after they have introduced 3,000 or so more criminal offences since they came into power in 1997) will be seeking to change the law of self-defence if they come into power.

This comes after the sentencing of Munir Hussain who was found guilty of causing grevious bodily harm with intent, this week. Mr Hussain with his family were tied up in their home and threatened by knife point. Mr Hussain managed to escape, and chased down one intruder, and attacked him leaving him with permanent brain damage.

The conservatives in an avid bid to win votes, have promised to introduce a new set of rules regarding the law of self-defence. Seeing the current law of using “reasonable force” as ineffective to those home-owners who do suffer such a tragedy as Mr Hussain,  Chris Gralying puts forth the idea that a homeowner can use any force that is not “grossly disproportionate”.

The case as reported by the press is none-the less similar to that of Tony Martin, who shot a burglar in the back whilst fleeing the scene. It is submitted however that by changing the law to grossly disproportionate, that both defendants would still be very likely to be convicted.

The defence of self-defence, although it is viewed as unsatisfactory is in essence, reactionary, using “reasonable force” at the time of the incident in question, it is doubtful that by adopting a new stance on it, that the conduct of either defendant could be seen to exonerate themselves from what is a separate incident, whether they shoot their attacker or beat them so hard they suffer brain damage.

The law however unsatisfactory cannot be made to tailor for the needs of those that want instant justice. It appears that a change in the law would be of limited use in such a situation.

Stuart

Ho ho ho!

It might well be the festive season, but it’s snow joke for Stuart Hunt, who has been charged with laughing in public. In 2008, Hunt had an ASBO imposed on him, the conditions of which included that he should not stare at people, engage in slow hand claps, wave any ‘objects’ at other people (the mind boggles), or laugh at any person within the jurisdiction of the Highlands Council.

The ASBO was imposed on Mr Hunt following altercations with his neighbours, with whom he’d had a long running dispute. At one point during the dispute with his neighbours, Hunt installed his own speed bumps on a private lane that he shared with his neighbours, in an attempt to prevent them from speeding past his house; unfortunately his actions landed him in court, at a cost to the taxpayer of £50k. At a later date, Hunt was fined £200 for assaulting his neighbour and in this latest escapade Hunt is accused of laughing at his neighbour’s daughter as he drove past her. Hunt says that he did not laugh, but merely smiled when the neighbour’s daughter made a ‘manual’ gesture towards him.

Let’s hope that no-one cracks a joke when Mr Hunt appears before the court, or he could find himself in very hot water indeed.

Jackie

Taser, Taser, Taser

Taser, Taser, Taser.

The case against Nottingham man, Warren Armstrong has been dropped due to lack of evidence. Armstrong was arrested in June of this year for allegedly assaulting a police officer. His arrest was captured on a taxi driver’s mobile phone camera, which showed the somewhat unorthodox methods that Nottinghamshire Police employed to carry out the arrest. Armstrong was ‘allegedly’ tasered several times whilst lying on the ground and the camera footage also shows what looks to be, a police officer punching Armstrong.

Armstrong is intending to take legal action against the Police.

So, if you plan to get a little tipsy this Christmas, I’d give Nottingham a miss, 50’000 volts does tend to spoil the party atmosphere.

The camera footage can be viewed here: BBC News – Taser arrest man plans legal move

Jackie

Too long a wait?

Case Commentary on R v Bryan [2009] EWCA Crim 2291

Following 3 years and 2 months detention at a young offenders institute, Omar Bryan’s conviction for rape was quashed by the Court of Appeal on 13^th October 2009.

At the original trial, the complainant ‘L’ alleged that she had been raped by a stranger, whom, with the assistance of another youth had dragged her into a block of flats, pulled down her trousers and forced her to have sexual intercourse with him.

DNA taken from semen on L’s underwear revealed that the DNA belonged to Omar Bryan. He was subsequently invited to Brixton Police Station, where without the benefit of attendance by an appropriate adult, or a solicitor he was interviewed. Bryan initially denied having sex with the schoolgirl L, but at a later date admitted having sex with her, but said that it was consensual.

Bryan was subsequently tried for rape and his defence case centred around the fact that he was mentally vulnerable and his right to a fair trial had been denied due to the absence of an appropriate adult or legal advice during his interviews with the police. It appears that the Court’s attention was focused on this matter and subsequently the important matter of conflicting evidence was not scrutinised as vigorously as it should have been, particularly in light of the gravity of the charge against the defendant.

Bryan had maintained throughout the case that he had previously met the complainant and during that meeting, he had given her his friend’s telephone number, so that she might contact him at a later date. During the trial, L variously denied having Bryan’s telephone number or arranging to meet up with him.

Prosecution counsel adduced that L did have a number stored on her mobile phone under the name of ‘Omar’, but L had somewhat evasively denied that the number was connected to the defendant. It later transpired, that at some point, L’s father had searched through his daughter’s mobile phone, discovered the name Omar and had called the number and spoken to Omar’s mother. This evidence was not adduced at trial.

Throughout the trial Bryan maintained that he had given his friend’s number to L, but this assertion was never checked out. Of course, had the evidence of the defendant been checked, L’s assertion that she was raped by a stranger would have been found to be untruthful. During summing up at the original trial, the judge failed to draw the jury’s attention to the contradictions in L’s evidence and Bryan was subsequently found guilty.

Bryan’s initial application for leave to appeal was refused, but a second application to the Criminal Cases Review Commission, in April 2007, eventually succeeded.

So, 3 years and 2 months after being wrongfully convicted for rape, Omar Bryan’s conviction was quashed. 3 years and 2 months is a long time for a young person to wait for justice.

Jackie

(Only) Four MPs may face prosecution over expenses

The Times have reported here that Scotland Yard has delievered four files to the CPS concerning information gathered from their investigation into MP’s expenses.

Kier Starmer, the Director of Public Prosecutions, is expected to decide whether to prosecute the politicians within a month.

One wonders, if a certain chambers down King’s Bench Walk, may be particulary busy over the next month, much like they were over the other Cash for Honours fiasco.

Sexting by Teenagers – the offence explained.

Sexting – is when people send explicit texts and or picture messages. With the rise of teens now having ready access to the latest mobile phones that offer picture and video messaging at the touch of a button it is not surprising that this has lead to a rise in so called “sexting”. It is however submitted that  sexting is probably not in the slightest new, before phones could send pictures there was the internet. Since the big increase in teenagers using the internet from the late 1990’s to early 2000’s with webcams, digital cameras and chat sites that were closed down because they were being misused, it can hardly be said that this is a new phenomenon worthy of a ‘moral panic’ status, that some journalists would have you believe.

The morality of the subject matter could be an entire post by itself.  What I am trying to assess is what if any are the legal issues involved, are any offences being committed and how is the offence punished?

The Offences

It is quite clear that there is an offence to take, make or have in one’s possession an indecent image of a child

First of all there are a variety of offences contrary to S 1 Protection of Children Act 1978

S 1 Indecent photographs of children

(1)     [Subject to sections 1A and 1B,] it is an offence for a person—

(a)     to take, or permit to be taken [or to make], any indecent photograph

[or pseudo-photograph] of a child . . . ; or

(b)     to distribute or show such indecent photographs [or pseudo-photographs]; or

(c)     to have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or

(d)     to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so.

A child subject to s 7 (6) POCA means a person under the age of [18] (as amended by s 45 sexual offences act 2003).

If we are look closer at “s 1 (a) to take, or permit to be taken [or to make], any indecent photograph” we can see that this is a broad offence. One can obviously take a photograph, or permit to take, but what about make?  Making subject to s 1(a) of the Act is perhaps the broadest. Making a photo now subject to case law from R v Bowden and R v Smith, R v Jaysonincludes downloading it, opening an attachment of an email which contains an indecent photograph, or downloading is to that it is displayed an internet browser. Although these cases primarily deal with the use of the internet, it would not take a huge stretch of the imagination to stretch these authorities to apply to phones, (1) because of the data being sent (2) because most phones will have internet.

Secondly subject to s160 Criminal Justice Act 1988

s160  it  is an offence for a person to have any indecent photograph [ or pseudo-photograph] of a child in his possession.

Mere possession will therefore constitute an offence, and remember under s 1 POCA, if one were to unwittingly download a photo or receive a graphic picture message would there be a defence?

Defences?

There appear to be a few defences in relation to the two charges above. Firstly under  s 1 A Protection of Children Act 1978  (of which there is a similar provision in S160A CJA 1988)

S 1 (A)(1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he–

(a) were married [ or civil partners of each other]² , or

(b) lived together as partners in an enduring family relationship

And S4

(4)Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—

(a)that he had a legitimate reason for distributing or showing the photographs [F5or pseudo-photographs]or (as the case may be) having them in his possession; or

(b)that he had not himself seen the photographs [F5or pseudo-photographs]and did not know, nor had any cause to suspect, them to be indecent.

Analysis?

So if for example David were to have taken topless photos of his girlfriend Rebecca, whom were both 17 at the time, this would mean that David would have committed an offence contrary to S1 (1)(a) Protection of Children Act (by taking the photo) and secondly by being in possession of the indecent photo would be an offence contrary to S 160(a).

The defences given are perhaps not very suitable. S160(A) and s (1)(a) both inserted by the Sexual Offences Act 2003, give a very limited defence against conviction. In the age of sexual flirting, which can include the sending of some raunchy photos by teenagers, are the defences relevant? How can a teenager prove that they were in a lasting family relationship? The defences seem to irrelevant to modern-day society, there seems to be no defence of consent when the defendant and the other party being photographed are both 16. It seems trivial and pointless to criminalise teenage sexual activity (so long as they are of the age of consent) for sending explicit sexual pictures to each other.

Mode of trial and sentencing

Both offences are triable either way. An offence contrary to s 160 CJA 1988, in the magistrates could lead to imprisonment of six months or a fine or both. On indictment a custodial sentence not exceeding five years. An offence contrary to s1 Protection of Children Act 1978 on summary jurisdiction, is six months and a fine, and if indictable a term of imprisonment not exceeding ten years. So the maximum term if tried on indictment under both offences would be 15 years, all for one indecent image of a child? The courts are unlikely to impose such a sentence however it shows how bizarre this offence is.

Conclusion

This author does not know the statistics of how many prosecutions occur in England and Wales, in the article in the Daily Hate Mail, referred to above someone appears to have been cautioned for such an offence. It appears that there is an odd occurrence in the Law where a teenager can have consensual sex with another at the age of 16, however cannot send graphic photographs of themselves to others.

The defences themselves seem to be limited, however the author is unaware of how they would be applied by the Courts, and how far a familiar relationship could be stretched to cover those who are charged or indicted.

Stuart

Social networking websites used as evidence in Canada.

Two women from Ontario charged with robbery would have gotten away with it, if they hadn’t posted photos of the stolen items on their Facebook profiles, according to  the Law Times, a Canadian legal magazine. The defendants pleaded guilty to theft, but claimed that they just got carried away with a prank.

That allegedly spur-of-the-moment act seems to have finally caught up with the women when they indulged their thirst for what Toronto lawyer Ravi Shukla calls a cultural phenomenon: young people’s insatiable need to be seen online.

Shukla, an information technology and Internet lawyer with Lang Michener LLP, says the Kitchener incident is consistent with the trends he has seen.

“There does seem to be this peculiar idea afoot, particularly among young people, that everything they do should be posted somewhere,” he says. “That’s why they exist. If it happens but it’s not posted anywhere, it didn’t really happen.”

Shukla suggests insurance companies have hired individuals to scour social media tools, such as Facebook, blogs, and Twitter accounts, to find photos of people engaging in activities that suggest their claims are unwarranted.

He predicts the trend will increase in tough economic times due to a spike in disability claims.

“It’s just a godsend for them,” says Shukla. “Before, they had to hire some guy to hide in your bushes to watch you tangoing in your living room. Now, guys are posting it all.” Read the full article >>>

We have seen people being fired for inappropriate comments about work on Facebook (allegedly). Are we going to see the same evidence used in our courts in the future?

Ekaterina.

Six month jail sentences reduced by governor in wake of prison overcrowding

It was recently revealed that prison governors are reducing sentences through early release schemes, and waiving some light sentences altogether. This has seen 6 month sentences reduced to 12 weeks, and some shorter 28 day sentences meaning the prisoner goes free before having served any time at all(Source)

However, can the governors really be criticised for exercising their discretion in the face of uncontrollably rising prison numbers without corresponding increase in space? The government’s position on the rising prison population seems to have fluctuated wildly; first they set a cap on inmate numbers, to then promptly remove the cap just before it was breached, and then putting in place plans to build more prisons to cope with the burgeoning population before scrapping them.

Whilst sentencing discretion has been placed squarely on the shoulders of the judiciary, this is only done through the limitation of policy, guidelines and statutory obligations. Given the statutory footing of the Sentencing Guidelines Council in the CJA 2003, coupled with the enshrinement of the principles of sentencing and a wider range of non-custodial alternatives, there is more pressure than ever for the SGC and the judiciary to be steering penal policy away from incarceration. This should be extended to the CPS, who should not be seeking custodial sentences for offenders except in tightly controlled circumstances, as well as greater onus on the defence to be suggesting non-custodial options.

If governors are taking such drastic measures, it is only one symptom of the ongoing penal crisis, and is certainly not a cause.

Jon

Watching the Eyewitness

It is estimated that mistaken identification by eyewitnesses accounts for around 60% of wrongful convictions. On the back of this worrying statistic comes a new television series, ‘Eyewitness’, which gives an insight into how the human mind works in relation to recollection of visual memories.

The series looks at the role of the eyewitness through the eyes of a psychologist and attempts to demonstrate how the memory works, the power of prejudice and how the eyewitnesses own personality can determine how that person recollects identification evidence. Using full scale, mock crimes, the series uses members of the public as identification witnesses in order to how the gathering of identification evidence requires an understanding of how the human mind works.

Police investigation procedures are scrutinised and the series looks at real life crimes and how identification evidence played an important role in the detection of those crimes. In particular, the procedures used in gathering identification evidence are scrutinised in order to show how important it is that eyewitnesses are interviewed correctly by police officers utilising the most effective skills in witness handling.

The series claims to use cutting edge research techniques to show how the memory of an eyewitness can be unlocked to reveal the required identification evidence. In essence, the series illustrates which techniques make for a good or bad witness interview and analyses the subsequent psychology of witness performance.

Eyewitness is due to be televised by the BBC this Autumn.

Jackie