One Rule For Them And Another For Us

So here I am sat in a hotel on the outskirts of Derby, what better than write something for my reader, good evening.

I was minding my own business today when I came across a post from Police Oracle regarding Nick Gargan’s impending discipline hearing, that should have kicked off about a week ago.

It seems like Disclosure Issues can be sorted if you’re a Chief Constable

The original hearing was meant to take place in April but was delayed to address ‘disclosure issues’
A chief constable facing allegations of inappropriate behaviour towards female members of staff will face misconduct proceedings in June.

The original hearing for suspended Avon and Somerset Chief Constable Nick Gargan was set to take place on April 20, but was delayed when it became apparent that disclosure issues needed to be addressed.

At a preliminary hearing held on April 24, the chair of the misconduct panel Dorian Lovell-Pank QC listened to representations about whether some documents could be disclosed and made the necessary directions to the legal teams.

The date for the full hearing has now been set for June 29, with the chair stating 10 days should be set aside for the full case to be heard.

HMI Wendy Williams and independent member John Rickard will hear the case and provide their findings in a report to Police and Crime Commissioner Sue Mountstevens to help inform her decision on the outcome of the proceedings.

Ms Mountstevens said earlier this year that she had hoped to hold the hearing in January or February but had faced delays including finding a convenient date for all of the panel to meet and CC Gargan requesting an extenstion to the deadline by which he had to provide a response to the allegations he faced. 

A consultation was held over whether to hold the hearing in public, but this was ultimately decided against.
CC Gargan was suspended in May 2014. 

Courtesy Police Oracle

My first thought was around the Disclosure issues. I’m pretty certain that we can all quote a few cases where abuse of the Disclosure rules has been an issue, not resolved, and ultimately led to resentment, and allegedly, sometimes a perverse verdict.

Secondly it was pointed out that it had been decided to hold the hearing in private, despite new rules which came into place on 1st May stating that Discipline HeRings would now be held in public unless “it was inappropriate to do so”.  A second example of Double Standards? Or maybe it truly was inappropriate, although I can think of thousands of Criminal cases of a similar nature that are most definitely held in public.

Finally, an absolute lulu came to me.

HMI Wendy Williams and independent member John Rickard will hear the case and provide their findings in a report to Police and Crime Commissioner Sue Mountstevens to help inform her decision on the outcome of the proceedings.”  Why is Sue Mounstevens having anything to do with this enquiry, let alone be involved in the decision-making after this;

Sue Mountstevens apologises after telling Chief Constable Nick Gargan the name of a whistle-blower who complained about him 

Ms Mounstevens was investigated and found to have committed a “Serious Error of Judgement” for which she later apologised to the alleged victim.

So how can she now still be involved in the discipline process?  I’m obviously getting too old for this malarkey, I just don’t get it.

So there you have it, Double Standards or not, this does NOTHING for Public Confidence and Transparency, in short supply in Avon and Somerset it seems.

I’m certainly no fan of Mr Gargan but I am a fan of Fair Play, so Sue, if you can tell me how this constitutes Fair Play I promise to post your reply unedited.

What On Earth Has Happened To Professional Standards?

It’s a question I’ve posed before, but I’ve just read a book, The Crocodile Court, which is basically about a West Midlands Police Sergeant who falls foul of the discipline system and what happens after that.  I’ll not spoil it too much in case you want to read it.

Let’s be honest, Professional Standards, or whatever you want to call them, have never been popular in any of their incarnations, but they are a necessary evil.

My point is this, (and once again my experience is restricted to the Met so if any of you ‘Crunchers’ want to tell me how it is in your Force I’d be pleased to hear it), in the good old days, at least up to the beginning of the 2000s, in my opinion and experience, Professional Standards were at least reasonably fair and I’ve known several Complaints Officers who would look hard for an informal resolution rather than go the whole hog.

In Complaints and Discipline, as in Policing in general, it is important to be able prove or disprove any allegation.  No Man’s Land is a result that doesn’t really satisfy anybody.

There are those out there who won’t like this but it is a fact that spurious and vexatious allegations ARE made for a variety of reasons.

If, for example, an allegation of assault or incivility is made against an officer or group of officers and that/those officer(s) vehemently deny the allegation, it is possible that it’s a false allegation.  If it is possible to prove or demonstrate that the allegation is, or is likely to be, false, then why should we not do it?

In the early 90s I was asked by our Complaints Unit to do a Timeline for an allegation of assault made by a group of people against a DC and a DI.  So I read all of the ‘witness’ statements and produced a Timeline that completely covered a very large table, and when I presented my Timeline to the Complaints Unit they had no alternative but to concede that whether these officers had or hadn’t assaulted anybody, the evidence of the ‘witnesses’ could not be relied upon because they clearly weren’t all where they claimed to be in their statements, and could not possibly have seen what they claimed to have seen.  Result – Complaint Discontinued due to lack of evidence.

Fast Forward to 2015 and what do we have now?

Professional Standards Departments who seem to be hell-bent on prosecuting or disciplining officers at the drop of a hat.  It seems to me (my opinion only) that they’re not too interested in finding any evidence which would assist the accused or undermine their own case, or maybe even, just establishing the TRUTH.

When it comes to Crime (and allegations of assault etc against Police Officers are exactly that) the Criminal Procedure and Investigations Act 1996 tells us exactly what our roles and responsibilities re Disclosure are,

The Code of Practice requires the police to record and retain material obtained in a criminal investigation which may be relevant to the investigation. In particular:

all police officers have a responsibility to record and retain relevant material obtained or generated by them during the course of the investigation. Material may be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original, if the original is perishable, or the retention of a copy rather than the original is reasonable in all the circumstances

  • the officer in charge of the investigation has special responsibility to ensure that the duties under the Code of Practice are carried out by all those involved in the investigation, and for ensuring that all reasonable lines of enquiry are pursued, irrespective of whether the resultant evidence is more likely to assist the prosecution or the accused
  • the Code of Practice creates the roles of disclosure officer and deputy disclosure officer, with specific responsibilities for examining material, revealing it to the prosecutor, disclosing it to the accused where appropriate, and certifying to the prosecutor that action has been taken in accordance with the Code of Practice.
  • the disclosure officer is required to create schedules of relevant unused material retained during an investigation and submit them to the prosecutor together with certain categories of material
  • non-sensitive material should be described on form MG6C and sensitive material should be described on form MG6D.

Most of the ‘Time Bombs’ sit within the Unused Material, i.e. material that the Police possess that they do not seek to use during their proceedings.  The most obvious, and recent example might be tha case of the TSG 6 where hours of CCTV were not disclosed to the Defence, CCTV evidence which ultimately helped clear those officers of any wrongdoing.

Their Judgeships feel so strongly about it they have issued a Judicial protocol explicitly for Unused Material.

“Disclosure remains one of the most important – as well as one of the most misunderstood and abused – of the procedures relating to criminal trials. Lord Justice Gross’ review has re-emphasised the need for all those involved to understand the statutory requirements and to undertake their roles with rigour, in a timely manner.”

Even the Attorney General’s Guidelines bangs on about it “The amendments in the Criminal Justice Act 2003 abolished the concept of “primary” and “secondary” disclosure, and introduced an amalgamated test for disclosure of material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for accused“.”.

You can’t just ignore evidence you don’t like.

So what the hell is going on?  I have heard way too many instances in the past year or so where Professional Standards Officers stand accused of playing fast and loose with the requirements of Disclosure and Unused Material.  Why?

I have, occasionally, been described as an Organisational Terrorist (thank you for that SIB), god knows why, maybe it’s to do with the number of times I challenge the establishment and try to tease the truth out.  Now, I’m more in danger of being described as a Conspiracy Theorist.

It can be no coincidence surely that in the last decade or so, the number of occasions where we have heard about alleged abuse of process by Professional Standards offices has increased alarmingly?

Is this mass incompetence?

Is this a positive act to try and reduce the number of serving police officers cheaply?

Is this a vendetta against certain officers.

Is it lack of appropriate training (although I’d be horrified if it was)?

Have ACPO (or whatever they’re called today) had a National Meeting and decided upon a protocol to keep the plebs in their place?

Whatever the answer is, I find it absolutely frightening that this is not just one Force doing things somewhat differently to the others.  This is a Method.

I’m not going to rake them all up again, but in the last year or so we have heard several instances whereby Professional Standards appear to be operating to a different set of rules to everybody else, and if you read The Crocodile Court you’ll be familiar with one more, and the terrible consequences of incompetence.

I’m absolutely certain that if asked we could all name one, if not two or more, cases of DPS/PSD abusing the system and bullying the officer into submission, whatever the reason for that behaviour might be.

So what exactly HAS happened to Professional Standards?

Why has it happened?

Is it just in London or does it happen elsewhere (I know the answer to that one).

Any examples gratefully received.

Professional Standards – But My Way

If a certain well known Danish Brewery did Professional Standards Departments they MIGHT align with my version.

I would base it more or less on the model that existed in the Met in the late 90s under Sir Ian Blair.  Heaven only knows what the current model looks like.

I’m not going to go into Resources and Budgets as I don’t understand Resource Allocation Formulae and I’m crap with Budgets, I’d just find a reason to spend it all. So I will leave it for others to establish Budgets and Staffing Levels etc.  However many there are, INTEGRITY is key.

At the lower end of the spectrum I would have a series of Complaints Units covering one or more Boroughs,  equipped and capable of recording all Complaints made in their Area and Investigating simple (as in not complex) Complaints.  They would be empowered to investigate through to completion and issue a formal Result at the end, these results would include Not Proven and Not Guilty.

In the second tier, a centrally based unit capable of receiving Complaints referred upwards from the Area Units if they proved to be more complex than originally assessed. They would be RESPONSIBLE for Investigating all complex Complaints and allegations of Minor Crime. Once again they would be competent to pursue the allegation to the end and issue a Formal Result.

At the top end would be a centrally based, smaller unit, investigating Major Crimes and Corruption. Once again, investigating to the ultimate end and issuing a Formal Result.

Three things would be absolutely VITAL to maintain the confidence of Police and Public alike

  1. No numerical Targets
  2. Definitely no inappropriate use of Professional Standards to silence Whistleblowers or Witnesses.
  3. A corporate willingness to accept that some of the officers subject to an investigation might actually be innocent, and they should not be afraid to find accordingly.  To prove and demonstrate that an officer is Not Guilty should be a matter of pride and is equally important as proving guilt, possibly more so.  In tandem with this would be the innovative practice of pursuing offenders found to have made malicious/vexatious complaints against officers, often in order to aid their defence in a Criminal trial. The Police Service has been absolutely rubbish at doing this for an eternity, and it would do wonders for morale if the practice were to be adopted.

The Public need reassurance that appropriate action is being taken at all levels, but I do believe that don’t, generally speaking, support unfounded witch hunts just for the sake of numbers.

Police Officers, and Public alike, need reassurance that appropriate action is being taken against Corrupt Cops.

To use the full weight of Professional Standards to crush Whistleblowers and the like does no one any credit, and I don’t believe that the Public expect or want that sort of behaviour.

Several examples of seemingly criminal conduct by professional Standards Departments have made their way into the public domain, courtesy of t’internet, in the last couple of years, and cases such as these do immense damage to Public Confidence. Investigations by Professional Standards should be exactly that – PROFESSIONAL. A good, quality investigation, fully complying with the legal requirements of Disclosure (We haven’t forgotten the TSG6 and others) and a balanced, properly compiled file at the end of it, a transparent result that is clear to follow.

I don’t believe that having the IPCC investigate everything is the way forward, as we need the Public and the Police to have confidence in the system, and not convinced that EITHER sector has confidence in the IPCC.  However, there is no reason why Complaints etc can’t be investigated  by another Force, the important factor must surely be that all investigations are proportionate, fair, and ultimately justifiable.  I’m sure we can all quote examples of disproportionate disciplinary investigations, or nvestigations that appeared to have no justification. Take away the mystery, and the practice of using Professional Standards for inappropriate reasons, and I’m sure we’re beginning to arrive at something better.

Finally, the Management Information bit, publish comprehensive data which includes Allegation Withdrawn Not Proven and Not Guilty. Discontinued is not a result we can have faith in.

Possibly a website showing a League Table, OCU by OCU of the various category of investigations to help restore Public Confidence that the Force are taking it seriously.

I’m fully aware that not all of this is doable, but it’s My Model. My idea of how it could operate. The Model can be tweaked for individual Forces with regard to their size, or enlarged if Regions become the order of the day.

I have been retired 13 years now and I’m certain that the Disciplinary process has probably changed in that time, so if I’ve made any horrendous gaffs please let me know and I’ll go hide under the stairs, but nothing will ever improve if nobody ever demands change or suggests ‘improvements’. So these are my suggestions, a Starter For 10.

I can accept that my model may not be perfect. Hopefully it would be an improvement on what we have. Let it be a beginning and provoke discussion and suggestion. At the end of the day, both sides of the fence want the same thing don’t they?  System that is open, fair, consistent, proportionate and accountable.

There’s my Model suggestion, anyone else want to suggest one?

A Rather Unprofessional Professional Standards

Gobsmacked, disbelieving, dismayed, betrayed, saddened, incredulous.

These are all feelings that I have felt over the past few weeks

I’m not going to identify the cases, you’ll either know them or you won’t, so don’t bother asking me as a refusal often offends.

The first is a relatively simple disciplinary matter in the Metropolis that has grown into something much bigger and more complicated than it needs to be. I don’t pretend to know ALL of the details because I most certainly don’t, but the behaviour of some of the officers from Professional Standards appears to fall short of the accepted norm. A document circulated on Twitter this week makes me question the validity of this particular disciplinary process completely.

My personal opinion, and it is exactly that, is that the Met are rather hoping that the officer in question will simply resign. Not sure that’s going to happen.

One word that has been used by others to describe the actions of the DPS officers is ‘bullying’.

The second case I have been made aware of recently will have to remain under wraps. It’s a disciplinary case from a force outside of London and the officers concerned have been treated appallingly. As they haven’t given me the appropriate permission to ‘go public’ I’m afraid I shall have to ask you to take my word for it that this, again, has all the hallmarks of a Force hoping that it can ‘persuade’ its officers to quietly resign and go away.

Finally, on 19th March, a Parliamentary debate took place concerning the behaviour of the Metropolitan Police, specifically, officers from the Directorate of Professional Standards.

In this debate Tessa Munt MP outlines the treatment that 6 Met Territorial Support Officers have allegedly received at the hands of the Met DPS.

Unfortunately the video is approximately an hour and a half long, but a transcript also exists. As Tessa Munt is protected by Parliamentary Privilege, and the video and transcript are both in the public domain I would invite you to view/read them and form your own conclusions.

I have provided links to both below.

 

 

Here is the video

 

Here is the transcript.

Once you have viewed or read them, maybe you will understand the emotions at the beginning of this blog post. If what you have read today concerns you in any way please feel free to share this blog with your friends and followers.

What on earth is the problem with Professional Standards at the moment? I know they have a job to do, but why have they seemingly departed from the Professional’?

If there has been wrongdoing, by ANY Police Officer, then the officer(s) responsible should be dealt with appropriately, but Police and Public alike rely on Professional Standards to do their job properly. Neither Police nor Public can have confidence in the system if SOME DPS officers are going to dig up the goalposts and start running off the pitch with them, for that is what is rumoured to be happening.

I am getting quite sick of saying it but all I want to see and hear is the TRUTH. Is that really too much to expect from a supposedly professional organisation?

Social Media, the Police and RIPA – #TheRestIsSilence

This subject is currently a hot potato, a VERY hot potato.

There has been much conjecture, anecdotal evidence, fact and fiction spread around Twitter in recent months about Police use of Social Media and the real or potential repercussions of it.  Now we have one of own, Constable James Patrick of the Metropolitan Police Service who seems to have upset the Service management and has been served discipline papers for alleged Gross Misconduct.

Let me say now that I have absolutely no idea whether RIPA, or the Regulation of Investigatory Powers Act 2000, has played any part in this process, and the purpose of this blog is not to concentrate on individual, ongoing disciplinary proceedings.  My curiosity is roused by the bigger picture and whether the Police Forces of England and Wales are utilising powers vested by RIPA in conducting their disciplinary investigations against serving Police Officers in relation to their use of Social Media.

For the benefit of non-Police readers I will attempt to make some kind of sense out of RIPA for you.

In order to have a ‘good old fashioned look’ at what someone may be up to it may be necessary to undertake some form of Directed Surveillance.  This could comprise anything from taking sneaky photographs of them in a street, to following them around for days on end with a full-blown surveillance team.  It would also include interception of their telephones, email, internet etc (more on this later).

All of these things are routinely undertaken by specially trained police officers in the course of certain investigations, in order to obtain intelligence or evidence, but they have to be authorised.  Dependant upon the level of surveillance and where it is most things are authorised at Inspector or Superintendent level, but some activities require the express authority of the Home Secretary.

Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

  • for the purposes of a specific investigation or a specific operation;
  • in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
  • otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

Authorisation of directed surveillance.(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

  • that the authorisation is necessary on grounds falling within subsection (3); and
  • that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.  (my italics)

An authorisation is necessary on grounds falling within this subsection if it is necessary—

  • in the interests of national security;
  • for the purpose of preventing or detecting crime or of preventing disorder;
  • in the interests of the economic well-being of the United Kingdom;
  • in the interests of public safety;
  • for the purpose of protecting public health;
  • for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
  • for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

  • consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
    is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.

By now you’re probably thinking “what on earth has this got to do with Constable Goody tweeting things on his personal Twitter account that his bosses don’t like?” , and it may be reasonable to think that;

BUT

All Directed Surveillance has to comply with the rules and satisfy the Surveillance Commissioner, whose job it is to protect the wee folk from an overbearing Big Brother.

And the Surveillance Commissioner got a right Royal strop on earlier this year, positively unhappy with the way some Police Forces were conducting their business.

Way back in the middle of July the Grauniad published an article Surveillance watchdog warns of new threat to privacy

This article refers to the Annual Report of the Surveillance Commissioner, Sir Christopher Rose, whose job it is to oversee the antics of the Police Forces of England and Wales and protect the wee folk from an over-zealous Big Brother.

Its contents, which went largely unreported, are highly significant.
Rose notes that there has been a decline in covert “directed surveillance” of individuals by law enforcement agencies and public authorities.  It is his job to monitor such activities which are covered by the Regulation of Investigatory Powers Act 2000 (RIPA). But the police and other authorities are abandoning the practice of such covert “directed surveillance” of individuals, Rose suggests, because they can gather more and more personal information differently. They can do so through “overt” investigations simply by trawling through material readily available on the internet, through social media for example, and not be subjected to any RIPA controls.  (my italics)

How do you effectively monitor the activities of such data miners, especially those determined to evade statutory controls? Rose raises issues which should be addressed, not just tossed away in a report rushed out by Downing Street.  (my italics)

This raises serious questions. Rose says that his staff are concerned that research using the internet “may meet the criteria of directed surveillance“. In other words, trawling an individual’s social media available on the internet should be subjected to RIPA’s statutory controls. These state that the information should be gathered only to protect national security or prevent crime.  (my italics)

If I may quote a chunk of Sir Christopher’s report;

“My Commissioners have expressed concern that some research using the Internet may meet the criteria of directed surveillance. This is particularly true if a profile is built by processing data about a specific individual or group of individuals without their knowledge.
It is inappropriate to define surveillance solely by reference to the device used; the act of surveillance is the primary consideration and this is defined by RIPA (Regulation of Investigatory Powers Act 2000 section 48(2-4) (monitoring, observing listening and recording by or with the assistance of a surveillance device). The Internet is a surveillance device as defined by RIPA section 48(1). Surveillance is covert “if, and only if, it is conducted in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is, or may be taking place.” Knowing that something is capable of happening is not the same as an awareness that it is or may be taking place.”  (my underlining)

This got me to to wonder, so I asked 4 Police Forces the following questions;

1) Can you please tell me for the year 2011, how many RIPA
applications were made by members of your Force in relation to
Police Officers’ use of Social Media or e-mail?

2) Can you please tell me for the year 2011 what were the relevant
offences or Discipline Regulations for these applications?

3) For the year 2011 what was the result of these applications? How
many officers were either prosecuted or disciplined?

4) For the year 2011, how many such applications (as above) were
refused and on what grounds?

Four relatively focused questions, not one of which requires the disclosure of anyone’s private, personal information.  All is well then, let’s sit back and wait for the replies.

20 Working Days are normally allowed for a Public Authority to respond to a request under the Freedom of Information Act.

On Day 20 I received the following response from 2 of the 4 Police Forces;

The xxxxxxxxxxxx Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:

Section 23(5) Information supplied by, or concerning, certain Security bodies

Section 30(3) Investigations and Proceedings conducted by Public Authorities

Section 31(3) Law Enforcement

Section 40(5) Personal Information

Section 44(2) Information covered by Prohibitions on Disclosure

Sections 44(2), 23(5) and 40(5) are absolute exemptions, which means that the legislators have identified that harm would be caused by release and there is no requirement to consider the public interest test, (except for Section 40(5)).

Sections 30(3) and 31(3) are qualified exemptions and require us to carry out a public interest balancing test before they can be relied upon.

Overall Harm for the Neither Confirm nor Deny (NCND)

The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex piece of legislation to interpret. The RIPA Act is a regulatory framework around a range of investigatory powers to ensure the powers are used lawfully and in a way that is compatible with the European Conviction on Human Rights. It also requires, in particular, those authorising the use of covert techniques to give proper consideration to whether their use is necessary and proportionate. A legislative scrutiny framework already exists for RIPA activity: Police surveillance activity is subject to annual inspection by the Interception of Communications Commissioners Office (IOCCO) and Office of Surveillance Commissioners (OSC). These inspections assess each constabulary’s compliance with the legislation and
a full report is submitted to the Prime Minister containing statistical information.

In order to counter criminal activity it is vital that the police and other agencies have the ability to work together, where necessary covertly, in order to obtain intelligence within current legislative
frameworks to ensure the successful arrest and prosecution of those who commit criminal acts.

The prevention and detection of crime is the foundation upon which policing is built and the police have a clear responsibility to prevent crime and arrest those responsible for committing crime. To do this the police require evidence and that evidence can come from a number of sources, some of which is obtained through covert means.

To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.

Revealing information that specific tactics are used in certain circumstances would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the
identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published and presents a real risk of identifying the
resources available to individual departments to covertly monitor individuals likely to be committing offences under their remit. Disclosure would undermine the partnership approach to law enforcement but also, due to the legal constraints under Chapter 1 of Part 1 of the RIPA legislation, it may actually be a criminal offence to do so (Section 19).

To confirm or deny how many RIPA applications have been made relating to police officer’s use of social media or email would compromise on-going investigations or identify individuals. If a force applied an exemption to the information this would reveal that these policing techniques and investigative activity had taken place. Conversely, by stating ‘no information held’ would highlight to an officer that his conduct is not being investigated and that he is free to continue.

It is important the Police Service discloses information regarding surveillance activity under RIPA where it is appropriate to do so, but an officer’s conduct may be investigated covertly by the force Professional Standards Department (PSD) without the member of staff knowing of its existence. By confirming or denying that RIPA applications have been made would alert an officer that may or may not be involved in the misuse of social media or email, not only that PSD have the ability to ask for RIPA applications in these circumstances, but that they are aware of his misconduct. The officer would then cease his activity and perhaps make attempts to hide or delete the evidence.

Information compiled for the purposes of an investigation, be it a criminal investigation or internal misconduct hearing, may contain information obtained from individuals to assist with an investigation,
which would be in confidence. To disclose investigative information could dissuade people from providing information to the police in future. The public, be they general members of the public or internal police officers or staff, must have confidence that their information is treated sensitively and appropriately. Confirming or denying the information is held could lead to ‘trial by media’ as it is likely to identify any officers that may or may not be involved.

Public Interest Test

Factors favouring confirmation or denial for Section 30

By confirming or denying that any information relevant to the request exists would enable the public to obtain satisfaction that all investigations are conducted appropriately and that their public money is
well spent. Confirming or denying that RIPA is applied to police that misuse social media would increase public scrutiny of police actions and in turn hold the police service to account.

Factors against confirmation or denial for Section 30

By confirming or denying that RIPA applications have been made in instances of police use of social media or email would hinder the prevention or detection of crime and undermine the partnership approach to law enforcement.

Factors favouring confirmation or denial for Section 31

By confirming or denying that RIPA applications have been made in respect of police officers use of social media would enable the public to see where public funds are being spent. Better public awareness may reduce crime or lead to more information from the public.

Factors against confirmation or denial for Section 31

By confirming or denying that any information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime and more crime could be committed.

Section 40(5) Personal Information

The duty to neither confirm or deny under this section of the Act arises where the disclosure of the information into the public domain would contravene any of the data protection principles or Section 10 of the Data Protection Act 1998 or would do so if the exemptions in Section 33A(1) of that Act were disregarded.

Disclosure under Freedom of Information is a release of information to the world in general and not an individual applicant. Therefore, simply confirming or not that such information were held would disclose personal information about individuals.

As such any disclosure that identifies an individual or identifies that an individual has had contact with Dyfed Powys Police or not is exempt and would be a clear breach of principle 1 of the Data Protection Act.
Personal data is defined under Section 1(1)(e) of the Data Protection Act
(1998) as:

“… Data which relate to a living individual who can be identified-

(a)   from those data, or

(b)   from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.”

In this case, the confirmation or denial of the existence of information (if any) would breach Principle One of the Data Protection Act (details of which are provided below).

Principle One:

“Personal data shall be processed fairly and lawfully and in particular shall not be processed unless

(a)   at least one of the conditions in Schedule 2 is met, and

(b)   in the case of sensitive personal data at least one of the conditions in Schedule  3 is also met.”

Balance Test

The Police Service will not divulge whether information is or is not held if to do so would undermine on-going investigations or compromise law enforcement. Whilst there is a public interest in the transparency of policing operations and in this case providing assurance that the police service is appropriately and effectively managing the conduct of police officers, there is a very strong public interest in safeguarding the integrity of police investigations and operations.

There is also no requirement to satisfy any public concern over the legality of police operations and the tactics we may or may not use. The force is already held to account by independent bodies such as The Office of the Surveillance Commissioner and The Interception of Communications Commissioners Office. These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister containing statistical information. Our accountability is therefore not enhanced by confirming or denying that any other information is held.

As much as there is public interest in knowing that policing activity is appropriate and balanced in matters of police officer conduct, this will only be overridden in exceptional circumstances. The points above highlight the merits of neither confirming nor denying the requested data exists. It is appreciated that members of the public will naturally be interested in techniques employed for surveillance. Likewise, we also understand some people believe surveillance (in any form) is used too widely, and therefore an unnecessary intrusion into their privacy. However, taking into account the fact that the Police Service are already scrutinised as detailed above and effective operational law enforcement would be compromised by any disclosure, it is our opinion that for these issues the balance test for confirmation or denial is not made out.

None of the above can be viewed as an inference that any information does or does not exist.

To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.  Really?  I don’t remember asking for anything that wasn’t a number.  If supplying me with a number will compromise ongoing Police investigations then I’m very sorry that I asked.

By confirming or denying that RIPA applications have been made in instances of police use of social media or email would hinder the prevention or detection of crime and undermine the partnership approach to law enforcement.  Really?  I’m speechless at that one.

By confirming or denying that any information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime and more crime could be committed.  Oh they just get better and better.

Revealing information that specific tactics are used in certain circumstances would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published and presents a real risk of identifying the resources available to individual departments to covertly monitor individuals likely to be committing offences under their remit.  I’m pretty sure that they do employ such tactics or they wouldn’t be so keen to neither confirm nor deny that they do.

Moving on,

A large metropolitan Police Force has granted itself a 10 day extension of the 20 day time limit whilst its Senior Management consider its response.

The 4th, a small (ish) rural Force has yet to make any kind of response.

I will, of course, update you when these responses are forthcoming.

I apologise whole-heartedly for the length of this blog, but I hope that you can understand why it is so long, plus it is an important and current topic.  However, the big question remains unanswered, is it lawful and/or proportionate to trawl through an officer’s personal Twitter/Facebook account, taking note of the posts and information gleaned within?  Or is it unlawful (as authority would never be granted) and completely disproportionate?

I remember my kids watching Trevor and Simon on Saturday morning TV and hearing the immortal line “We don’t do duvets”.  Well the Police Service are not supposed to do “Fishing Expeditions”  Focused and Targeted, not a Trawl.