Wednesday, 13 November 2013

Newspapers, spooks, a naked man, a PCSO, undercover cops, sex in prisons.

Here is a roundup from my surveillance of legal stories.

The Daily Mail on the naughty step:

Back in October some law bloggers took issue with the Daily Mail's article - 'Human Right to make a killing'.  Please see my post of 8th October - Human Rights attacked again - the thorny issue of just satisfaction.  No less a body than the Council of Europe considered it necessary to also take issue - Court concern at seriously misleading UK news articles.  The Daily Mail has now admitted that the article was misleading.  Not a front page admission of course but an admission nevertheless though the damage to human rights and respect for the European Court of Human Rights has been done as was, I suspect, intended.  Adam Wagner (UK Human Rights blog) comments on the Daily Mail's correction.    The Mail's pathetic correction is here.   It is so brief that I may as well quote it in full:



'An article on 8 October said that the UK has paid £4.4million in compensation to criminals under rulings by the European Court of Human Rights.  In fact, the money went to a range of claimants and only £1.7million was compensation; legal costs accounted for the rest.'

Spooks and surveillance:

Parliamentary select committees seem to come into the news reasonably often these days and there is little doubt that some members of Parliament use them as an opportunity for a little bit of political grandstanding.  The Brian Barder blog has an interesting post -  Parliamentary inquisitions: either too soft or too harsh.  The author is a former diplomat and he is critical of the Intelligence and Security Committee (ISC) hearing on 7 November at which the heads of MI5, MI6 and GCHQ were questioned.  The post touches on the extensive surveillance over citizens now taking place and about which the ISC did not ask searching questions.  Sir Brian is also critical of what he sees as a lack of safeguards for witnesses appearing before such committees.  The Justice and Security Act 2013 placed the nine member ISC on a statutory footing.

A Guide for Witnesses in Parliament has been published.  See also the documents which may be accessed via Select Committees, resources and powers.

The Naked Rambler:
Intelligence and Security Committee (ISC) hearing on 7 November - See more at: http://www.barder.com/4082#sthash.70uAupWo.dpuf

Gough v DPP [2013] EWHC Admin 3267 - is an interesting application of section 5 of the Public Order Act 1989.  As Sir Brian Leveson P stated: For some ten years, Stephen Gough (the Appellant) has walked naked through the highways and byways of the United Kingdom, from John o' Groats to Land's End. He has made it clear that arrests, prosecutions and convictions will not deter him from nude walking in the future. On 11 March 2013, he was convicted at the Calderdale Magistrates Court in Halifax, before District Judge (Magistrates' Courts) Lower, of a breach of s. 5(1) of the Public Order Act 1986 ('the 1986 Act') which is a summary only offence, the maximum penalty for which is a fine up to level 3 on the standard scale. He now appeals against that conviction by way of case stated.   The High Court held that Mr Gough's conviction was right in law.

Earlier this year, Mr Gough received a sentence of 48 weeks imprisonment for breach of an Antisocial Behaviour Order (ASBO) and this sentence was upheld by the High Court - see [2013] EWHC Admin 1418.

Misconduct by a PCSO:

The Court of Appeal, in R v Bunyan [2013] EWCA Crim 1885, concerned a Police Community Support Officer (PCSO)'s who used his position to engage in consensual sex with vulnerable women.  He was convicted of 8 counts of misconduct in public officer.  The Court considered the sentences imposed in the Crown Court and decided to revise them so that Bunyan must serve a total sentence of 3 years imprisonment.

Undercover Police Officers and sex:
The applicant, who was a Police Community Support Officer with the Devon and Cornwall Constabulary, was convicted on 18 March 2013 in the Crown Court at Taunton of eight counts of misconduct in a public office. He was acquitted of two further counts of the same offence.
3 In summary, between 3 February 2007 and 31 January 2011 he used his position as a Community Support Officer to engage in consensual sexual relationships with vulnerable women with whom he came into contact as a result of his position. He also accessed police records without any legitimate reason, sent sexualized text messages, neglected his legitimate police work in furtherance of these relationships, and disclosed unauthorised information he had obtained from police records regarding a third party.
- See more at: http://www.crimeline.info/case/r-v-bunyan-2013-ewca-crim-1885#sthash.6SlYCw4g.dpuf
The applicant, who was a Police Community Support Officer with the Devon and Cornwall Constabulary, was convicted on 18 March 2013 in the Crown Court at Taunton of eight counts of misconduct in a public office. He was acquitted of two further counts of the same offence.
3 In summary, between 3 February 2007 and 31 January 2011 he used his position as a Community Support Officer to engage in consensual sexual relationships with vulnerable women with whom he came into contact as a result of his position. He also accessed police records without any legitimate reason, sent sexualized text messages, neglected his legitimate police work in furtherance of these relationships, and disclosed unauthorised information he had obtained from police records regarding a third party.
- See more at: http://www.crimeline.info/case/r-v-bunyan-2013-ewca-crim-1885#sthash.mGWued16.dpuf

AJA and others v The Commissioner of Police of the Metropolis and others [2013] EWCA Civ 1742 explored whether sexual contact between undercover police officers and those under investigation is lawful.  Lord Dyson (the Master of the Rolls) stated the issues before the court as:

The first issue that arises is whether the IPT has jurisdiction to determine the claims brought under section 7(1) of the HRA. This turns on whether the establishing or maintaining of an intimate sexual relationship by a covert human intelligence source ("CHIS") was "conduct to which Part II [of RIPA] applies". If it was not conduct to which Part II applies, the claims are not subject to the jurisdiction of the IPT. The judge held that the alleged conduct was conduct to which Part II applies and that the IPT therefore has jurisdiction to decide the human rights claims.

The second issue arises from the fact that, for reasons that we shall describe in detail later in this judgment, the judge stayed these proceedings pending the determination of the HRA claims by the IPT. The appellants submit that he was wrong to do so. The respondents submit that this was a case management decision which was not plainly wrong and with which this court should not interfere.

The court held that Parliament clearly intended that human rights proceedings about the establishing or maintaining of relationships by undercover police officers should only be determined by the IPT [para 42] and the actions in the High Court may proceed [66]. 

See also the earlier post of 17th January 2013.

Howard League Report - Sex in prisons:

The Howard League for Penal reform has a Press release relating to Sex in Prisons - Here

'The need to promote safer sex in prisons is widely recognised but measures to prevent the risk to public health are poorly delivered, the Commission on Sex in Prison has found.

In its first briefing paper, Consensual sex among men in prison, the Commission warns that the prison population is a high-risk group for sexually transmitted infections and risk-taking sexual behaviour.
Most prisoners will eventually return to the community, meaning that sexual health policies in jails are important not just for inmates, but for the public as well.

The independent Commission, which comprises eminent academics, former prison governors and health experts, was established by the Howard League for Penal Reform.,

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