Saturday, 3 February 2018

A topic of interest - "Private Policing"

The Daily Mail – Saturday 3rd February 2018 – drew attention to TM Eye Ltd – a registered company based in Essex which is in the business of “Public Order and Safety Activities - ”Britain’s first ‘private police force’ has caught 400 criminals with a 100 per cent conviction rate after taking on cases regular officers are too busy to look at”

TM Eye has an interesting website – here – where the company gives details of various cases which have concluded with convictions.  For instance, there is Basit Khan who was convicted at Manchester and Salford Magistrates’ Court of 5 offences of selling counterfeit goods contrary to the Trade Marks Act 1994 s. 92.  TM Eye comments that “TM Eye has convicted over 450 persons with a 100% conviction rate.”  No doubt a good advertisement for a company which is clearly in the business of investigating certain types of crime and bringing prosecutions on behalf of its clients.  Strictly speaking, as a "nit picky" point, the company cannot convict anyone.  In the UK that is the sole business of the criminal courts. 

The Daily Mail article notes - "All of its convictions and suspects’ DNA and fingerprints are recorded on the Police National Computer."  It is not clear from the article how this data is input to the PNC.  In 2016, HM Inspectorate of Constabulary Fire and Rescue Services (HMICFRS) issued a number if reports concerning access to the PNC and the reports are available here.   

These reports note that - "The PNC is a national database of information available to all police forces throughout the UK.  In addition, certain other organisations, referred to as "non-police organisations" have access to information held on the PNC in order to help them fulfil their statutory functions.  In such instances, access is granted by a body called the Police Information Access Panel.  In order to obtain aceess, each organisation must submit a detailed business case that satisfies the Panel that a valid and lawful requirement for access exists."

Private prosecutions -

The right to bring a private prosecution is an interesting one and the Crown Prosecution Service (CPS) website helpfully gives more information.   A private prosecution is described as “a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority.”  The Prosecution of Offences Act 1985 s.6 states:

6. Prosecutions instituted and conducted otherwise than by the Service.

(1)Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.

(2)Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.

It will be noted that the right to bring a private prosecution is not limited to a victim of the offence in question.  See the TM Eye website page on Private Prosecutions.  

The “What We Offer” page on the company’s website is also interesting.  The investigative activities of the company are described and include carrying out covert intelligence visits to markets, shops and other suppliers of counterfeit goods; undertaking surveillance on suspects to identify storage facilities, associates and criminal proceeds; preparing intelligence and evidential cases for law enforcement , carrying out evidential test purchases; assisting Customs in identifying counterfeit goods, recovering all costs for clients etc.  

According to the Daily Mail report, the company has gone beyond activities linked to trading standards.  The Mail article states – “A firm led by former Scotland Yard senior officers has successfully prosecuted more than 400 criminals and is now carrying out murder inquiries” and “The company, staffed by retired detectives and cyber-crime experts from Scotland Yard, the National Crime Agency and GCHQ, is now expanding its services beyond predominantly financial investigations.”

The Chairman of the Police Federation is quoted as saying – “‘Eventually there will be a two-tier system with the haves and the have-nots, and if you have money and live in a £20million house in Chelsea you can pay for private security.’

Crime Statistics - Police numbers -

In recent times we have got used to headlines about rising crime such as the report in the Express and Star 20th July 2017 claiming that the crime rate in the Midlands has soared by up to 14%.  We have also got used to headlines about cuts in Police numbers and facilities (e.g. Police Station closures) – e.g. The Guardian 5th June 2017 “Simple numbers tell story of police cuts under Theresa May

There is no doubt that Police funding has come under pressure from government – e.g. BBC News 7th March 2015 – but it by no means certain that there is a simple correlation between the cuts and reported increases in crime although, intuitively, people think that there must be. 

As at 30th September 2017 there were 121,929 police officers in the 43 police forces in England and Wales – see Home Office Statistical Bulletin 01/18 (25th January 2018).  This is a drop from 122,859 on 30th September 2016 and from 125,185 on 30th September 2015 – Home Office Statistics January 2016.  

Crime Statistics present a picture which is difficult to interpret – see Office for National Statistics – Crime In England and Wales – Report 2017.  The ONS Chief Statistician comments – “Today's figures suggest that the police are dealing with a growing volume of crime. While improvements made by police forces in recording crime are still a factor in the increase, we judge that there have been genuine increases in crime – particularly in some of the low incidence but more harmful categories."  The ONS Report offers a national overview and there are undoubtedly areas within the country with particularly high crime rates.

Legal Status of the Police -

Against this background, it is probably no surprise that private security-style firms are appearing but it is remarkable that some are taking on what has traditionally been the mantle of either the Police or other bodies with formal investigatory powers (e.g. Trading Standards Officers – see here).

Police Forces have a basis in Acts of Parliament and the authorities and duties of “constables” are set out either at common law or in various Acts – for example, the Police and Criminal Evidence Act 1984.   Police Forces are, in effect, the machinery by which the State investigates offending and they receive public funding and have considerable resources available to them.  Forces have a degree of democratic accountability via elected Police and Crime Commissioners.  Furthermore, Forces operate a command / rank structure and officers are subject to a Disciplinary regime – e.g. this webpage from the Avon and Somerset Constabulary.   Although individual citizens have some powers (e.g. to arrest under the conditions in PACE 1984 s.24A) – their powers are nowhere near as extensive as those of a constable.   Importantly, Police Forces are Public Authorities for the purposes of the Human Rights Act 1998 and it is unlawful for them to act in a way that is incompatible with a Convention right (section 6) and proceedings can be brought against them under section 7.

All of this is an interesting development in “law enforcement” which seems to raise more questions than answers.  For instance, surveillance has come to be an activity which, for public bodies such as the Police, is regulated by the Regulation of Investigatory Powers Act 2000.   

Perhaps the time will come when these private activities are subjected to a more formal analysis by Parliament.  In Scotland, the right to bring a private prosecution exists but it requires the High Court of Justiciary to issue "criminal letters" and these are very rare  – see this 2016 judgment.  The judgment states:

"To bring a private prosecution an individual must show a wrong personal to themselves, from which they have suffered injury of a substantial nature beyond all others, giving them a special and peculiar interest in bringing proceedings" - para.17 In our view these are charges of a general and public nature, lacking that interest, personal and peculiar to a complainer, which is necessary before a Bill of criminal letters may be passed" - para. 81

"Scotland has for many centuries had a system of public prosecution in which the Lord Advocate is recognised as prosecutor in the public interest.  By 1961 this system of public prosecution had become so well-acknowledged and respected that the court was able to say that “private prosecutions have almost gone into disuse” (McBain v Crichton 1961 JC 25, Lord Justice General at p29).  Although it remains open to a private citizen to apply to the court for permission to bring a private prosecution where the Lord Advocate has declined to prosecute or grant his concurrence to a private prosecution, the circumstances in which such permission may be granted have repeatedly been described as exceptional" - para. 85 et seq. 

The Office of Constable -  Police Federation publication.

Association of Police and Crime Commissioners

Police National Computer 

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