The Weekly Roundup: Police powers and freedom of information

12 August 2019 by Rosalind English

In the news

On Friday, Prime Minister Boris Johnson set down his stance on law and order in three major announcements, fulfilling his promise to ‘come down hard on crime’. This follows the announcement of 20,000 ‘extra’ police officers a few weeks ago.

Firstly, Home Secretary Priti Patel announced enhanced stop-and-search powers for police officers under s.60 Criminal Justice and Public Order Act, on the basis of a ‘knife-crime epidemic’. Under the new rules, an officer need only believe that a violent incident ‘may occur’, not that it ‘will’, and a lower level of authorisation will be required to exercise the power.

Secondly and thirdly, Mr Johnson has promised penal reforms. The Ministry of Justice has allocated £2.5bn to create ‘modern, efficient prisons’, including 10,000 new prison places. Alongside this, Mr Johnson has announced a sentencing review, by which he hopes to increase sentences for violent and sexual offenders, and reduce the use of ‘early release’ on licence – currently available to most offenders after they served half of their sentence, under the Criminal Justice Act 2003.

The resources of this crackdown are welcome, especially with an extra £85m for the chronically underfunded CPS. However, the approach is controversial. Stop-and-search in particular has been heavily criticised in the past. Some say that it is ineffective – a study released by the Home Office in 2016 found that enhanced stop-and-search had not decreased crime when used in key London boroughs. Others say that the policy is discriminatory in its application, and worsens the relationship between the public and the police, drawing links to the 2011 London riots.

The review of the Prevent counter-terrorism initiative is expected to begin today, following the appointment of the independent reviewer. However, the process of appointing the reviewer has been criticised for its opacity – Ed Davey MP has spoken of a ‘whitewash’, while Liberty director Martha Spurrier has suggested that the government are ‘[shielding] Prevent from the scrutiny it desperately needs’.

In further unwelcome news, a report found that a chartered deportation flight lacked ‘common decency’ towards passengers. Passengers were subjected to excessive restraint (up to 14 hours at a time); not allowed appropriate privacy when using the toilet; not appropriately supervised; and subject to long delays. This was followed by revelations that the Home Office used restraint against deportees in 447 cases between April 2018 and March 2019, as reported by Guardian.

In the courts

The High Court has given judgement in a major citizenship appeal, which raises some parallels to the Shamima Begum case that dominated headlines earlier this year. The case was brought by Abdullah Islamm, the father of a British citizen, Ashraf Islam, born and studying in Bangladesh, who joined ISIS. In 2017, Ashraf Islam was therefore deprived of his British citizenship by then Home Secretary Amber Rudd, under s.40 of the British Nationality Act 1981 in 2017.

• Islam, R (On the Application Of) v Secretary of State for the Home Department: Ashraf’s father sought judicial review on three grounds: (i) failure to implement a proper policy for deprivation of citizenship; (ii) failure to take reasonable steps to bring the deprivation decision to Ashraf’s attention so that he might challenge it before the Special Immigrations Appeal Commission; and (iii) failure to take proper steps to return Ashraf to the UK. Pepperall J dismissed the claim. In commenting on the alleged duty to bring Ashraf home, he said: “However repugnant his possible fate might be to British values, any British citizen who commits serious crimes abroad is subject to local justice and cannot simply demand that the British government extricates him from a situation of his own making in order that he can face the more palatable prospect of justice in a British court.” Article 6 could not apply while Ashraf is in Syria and therefore not in the UK’s jurisdiction; there was no arguable case under Article 3 or 8, following Maha El-Gizouli [2019] EWHC 60 (Admin).  

Meanwhile, the First-tier Tribunal have released judgements in a number of cases relating to the Freedom of Information Act 2000.

• Burley v The Information Commissioner: James Burley made a FOI request against the Inspectorate for the CPS (HMCPSI) regarding a 2017 report on the disclosure of unused material in Crown court cases, which identified critical failures in disclosure by both police and CPS. Mr Burley sought to acquire (i) transcripts of police focus group meetings and (ii) earlier drafts of the report, to establish whether mis-scheduling was a matter of officer training, and whether more radical recommendations than those proposed in the final draft had been considered. HMCSPI relied on the ‘public audit functions’ exemption under s.33 FOIA, as compliance with these FOI requests would prejudice the exercise of its public audit functions, in that (i) their relationship of trust and confidentiality with the police would be damaged, and (ii) false and damaging statements from earlier drafts would enter the public domain, undermining the credibility of the final draft. The FTT dismissed Mr Burley’s appeal.  

• Shephard v Information Commissioner: Mr Shephard made a FOI request against the BBC regarding their technology for automatic podcast uploading, following up on his concerns that some science podcasts were not being automatically uploaded to the BBC podcast feed. The BBC relied on the specific derogation for their journalism, under s.7 and Schedule 1 – as explained by the Supreme Court in Sugar v BBC, the exemption applies to all material except that held for ‘exclusively non-journalistic purposes’. Mr Shephard sought to argue that ‘journalism’ only referred to producing the BBC’s output, not to disseminating it in this way. The FTT dismissed his appeal.

• Transport for London v The Information Commissioner: Mr Neil Hood had made a FOI request against TfL for the release of data about ‘person under train’ (PUT) incidents by TfL. TfL had provided the requested information, but sought to withhold a breakdown by station, relying on the ‘health and safety’ exemption under s.38 FOIA. The ICO decided that s.38 was not engaged, on the basis that there was an insufficient causal link between the disclosure of this information and a ‘significant and weighty risk of endangerment’. The FTT reversed the Commissioner’s decision: she should have paid attention to the suicide prevention guidelines of the WHO and Samaritans, especially regarding the ‘copycat effect’ and the problem of suicide ‘hotspots’. It was well-established that 95% of PUT incidents were suicides; disclosure of the information presented a serious risk of endangerment to the individual, the train driver, bystanders, and TfL staff, which outweighed the public interest in disclosing.

On the UKHRB

Adam Smith reviews the implications of a recent case for confidentiality in family proceedings

Robert Kellar QC considers the implications of Kuzmin v GMC and Sanusi v GMC for the ‘right to silence’ in professional disciplinary proceedings