PI News: ‘With No Comment’
29 April 2014
A New System For The Recovery Of Commercial Property Rent Arrears (CRAR) Is Now In Force
Background to Legislation:
When the Tribunals, Courts and Enforcement Act 2007 was fully enacted in April 2014, the ancient common law right of distress for rent has now been abolished and replaced by a new statutory procedure known as Commercial Rent Arrears Recovery or CRAR. Section 72 will allow a commercial landlord to use Schedule 12 (taking control of goods) of the TCE Act to recover rent payable under the lease from the tenant, without needing to go to court.
The old common law regime of distress was a self-help remedy previously available to landlords whose tenants had fallen behind in the payment of rent, allowing them to enter the leased premises and seize and sell goods up to the value of the monies owed, with no prior warning and no court order required. Although this was a quick, effective and inexpensive remedy for landlords, it was considered to be too draconian for tenants as a result of which the decision has now been made to abolish this right and implement a new regime.
Key Procedural Changes
CRAR only applies to commercial leases evidenced in writing where no part of the premises is lawfully used as a residential dwelling. Mixed use premises with a residential element are excluded.
CRAR can only be used for rent, VAT and interest. Unlike the old regime of distress, it cannot be used to recover any other amounts normally reserved as rent such as service charge or insurance.
CRAR is only available provided that the net amount of unpaid rent (excluding VAT and interest) amounts to not less than 7 days’ rent under the lease
The landlord must give the defaulting tenant not less than 7 clear days’ advance notice in writing (by the service of an enforcement notice) before CRAR may be exercised. This notice period may be shortened by the Court but only if the landlord is able to demonstrate that to delay would likely result in the tenant taking steps to avoid enforcement by removing or disposing of goods. This is a significant (and perhaps the most controversial) change for landlords because under the old remedy of distress, bailiffs could be instructed to seize goods within 24 hours of the rent falling into arrears. The requirement under CRAR to give notice now eliminates that element of surprise.
Seizure of goods must be carried out by certificated enforcement agents.
Enforcement may take place on any day of the week, between the hours of 6am and 9pm (or between the hours of business of the tenant’s company). This is in contrast to the old law which prohibited enforcement on a Sunday or after dark.
Items which are necessary for the defaulting tenant’s personal use in his employment, business, trade, profession, study or education up to a maximum value of £1,350 are exempt.
After goods have been seized, the defaulting tenant must be given at least 7 clear days’ notice before the goods may be sold, unless the goods have a shorter shelf life in which case one day’s notice may be given. Goods must be sold by public auction unless the Court orders otherwise.
Where premises are sub-let, the superior landlord may require the sub-tenant to pay its rent directly to the superior landlord, subject to the service of a notice and this right is preserved under CRAR. If a sub-tenant who has been served with notice then fails to pay the amount claimed, CRAR may be exercised against that sub-tenant.
Impact of Legislation
Commercial landlords will need to be aware of the significant changes in this area and how to exercise their rights under CRAR. Recovery of rent through this method is likely to be more time-consuming and potentially more expensive due to the statutory requirements which have now been introduced.
A concern, in particular, is the new requirement to give seven days’ notice before any enforcement action may be taken. This is likely to make CRAR a less fruitful method of rent arrears recovery with the risk being that there may not be anything of value to recover when the time for enforcement comes.
In view of this difficulty, commercial landlords may wish to give more thought to requesting further security from their tenants, in the form of guarantors or rent deposits, at the point when new leases are entered into. Alternatives to CRAR should also be considered. In circumstances where the rent arrears are undisputed, for example, the service of a statutory demand can be an effective way to encourage payment, particularly if the tenant is keen to avoid the risk of insolvency.
The content of this article is intended to only provide a general guide to the subject matter. Specialist legal advice should be sought about individual and specific circumstances.
4 June 2013
New Government Legislation
Disclosure and Barring Service confirms launch of new Update Service:
The Disclosure and Barring Service (DBS) formerly the Criminal Records Bureau has confirmed that it will finally launch its new ‘Update Service’ on 17 June 2013. The Update Service will reduce bureaucracy by allowing DBS (CRB) certificates to be re-used when people apply for similar positions.
Individuals can choose to subscribe to the Update Service (for an annual fee of £13) which will keep their DBS certificate up-to-date so that they can take it with them from role to role, within the same workforce, where the same type and level of check is required. As a result, millions of employees and volunteers will no longer have to apply for a new criminal record check each time they apply for a new position.
If an individual has subscribed to the Update Service their employer/organisation will be able to go online, with the individual’s consent, and carry out a free, instant check to find out if the information released on the DBS certificate is current and up-to-date.
5 April 2013
Secret Files Expose Offshore’s Global Impact: ‘Privacy For Sale’:
Article by Gerard Ryle, Marina Walker Guevara, Michael Hudson, Nicky Hager, Duncan Campbell and Stefan Candea (The International Consortium of Investigative Journalists).
Contributors to this story: Mar Cabra, Kimberley Porteous, Frederic Zalac, Alex Shprintsen, Prangtip Daorueng, Roel Landingin, Francois Pilet, Emilia Deaz-Struck, Roman Shleynov, Harry Karanikas, Sebastian Mondial and Emily MenkesKey.
Dozens of journalists sifted through millions of leaked records and thousands of names to produce ICIJ’s investigation into offshore secrecy.
A cache of 2.5 million files has cracked open the secrets of more than 120,000 offshore companies and trusts, exposing hidden dealings of politicians, con men and the mega-rich the world over.
The secret records obtained by the International Consortium of Investigative Journalists lay bare the names behind covert companies and private trusts in the British Virgin Islands, the Cook Islands and other offshore hideaways.
They include American doctors and dentists and middle-class Greek villagers as well as families and associates of long-time despots, Wall Street swindlers, Eastern European and Indonesian billionaires, Russian corporate executives, international arms dealers and a sham-director-fronted company that the European Union has labeled as a cog in Iran’s nuclear-development program.
The leaked files provide facts and figures relating to cash transfers, incorporation dates, links between companies and individuals that illustrate how offshore financial secrecy has spread aggressively around the globe, allowing the wealthy and the well-connected to dodge taxes and fueling corruption and economic woes in rich and poor nations alike.
The records detail the offshore holdings of people and companies in more than 170 countries and territories.
The hoard of documents represents the biggest stockpile of inside information about the offshore system ever obtained by a media organization. The total size of the files, measured in gigabytes, is more than 160 times larger than the leak of U.S. State Department documents by Wikileaks in 2010.
To analyze the documents, ICIJ collaborated with reporters from The Guardian and the BBC in the U.K., Le Monde in France, Seddeutsche Zeitung and Norddeutscher Rundfunk in Germany, The Washington Post, the Canadian Broadcasting Corporation (CBC) and 31 other media partners around the world.
Eighty-six journalists from 46 countries used high-tech data crunching and shoe-leather reporting to sift through emails, account ledgers and other files covering nearly 30 years.
“I’ve never seen anything like this. This secret world has finally been revealed,” said Arthur Cockfield, a law professor and tax expert at Queen’s University in Canada, who reviewed some of the documents during an interview with the CBC. He said the documents remind him of the scene in the movie classic The Wizard of Oz in which “they pull back the curtain and you see the wizard operating this secret machine.”
♦ Government officials and their families and associates in Azerbaijan, Russia, Canada, Pakistan, the Philippines, Thailand, Mongolia and other countries have embraced the use of covert companies and bank accounts.
♦ The mega-rich use complex offshore structures to own mansions, yachts, art masterpieces and other assets, gaining tax advantages and anonymity not available to average people.
♦ Many of the world’s top’s banks, including UBS, Clariden and Deutsche Bank have aggressively worked to provide their customers with secrecy-cloaked companies in the British Virgin Islands and other offshore hideaways.
♦ A well-paid industry of accountants, middlemen and other operatives has helped offshore patrons shroud their identities and business interests, providing shelter in many cases to money laundering or other misconduct.
♦ Ponzi schemers and other large-scale fraudsters routinely use offshore havens to pull off their shell games and move their ill-gotten gains.
Mobsters and Oligarchs:
The vast flow of offshore money, legal and illegal, personal and corporate can roil economies and pit nations against each other. Europe’s continuing financial crisis has been fueled by a Greek fiscal disaster exacerbated by offshore tax cheating and by a banking meltdown in the tiny tax haven of Cyprus, where local banks’ assets have been inflated by waves of cash from Russia.
Anti-corruption campaigners argue that offshore secrecy undermines law and order and forces average citizens to pay higher taxes to make up for revenues that vanish offshore. Studies have estimated that cross-border flows of global proceeds of financial crimes total between $1 trillion and $1.6 trillion a year.
ICIJ’s 15-month investigation found that, alongside perfectly legal transactions, the secrecy and lax oversight offered by the offshore world allows fraud, tax dodging and political corruption to thrive.
Offshore patrons identified in the documents include:
♦ Individuals and companies linked to Russia’s Magnitsky Affair, a tax fraud scandal that has strained U.S.-Russia relations and led to a ban on Americans adopting Russian orphans.
♦ A Venezuelan deal maker accused of using offshore entities to bankroll a U.S.-based Ponzi scheme and funneling millions of dollars in bribes to a Venezuelan government official.
♦ A corporate mogul who won billions of dollars in contracts amid Azerbaijani President Ilham Aliyev’s massive construction boom even as he served as a director of secrecy-shrouded offshore companies owned by the president’s daughters.
♦ Indonesian billionaires with ties to the late dictator Suharto, who enriched a circle of elites during his decades in power.
The documents also provide possible new clues to crimes and money trails that have gone cold.
After learning ICIJ had identified the eldest daughter of the late dictator Ferdinand Marcos, Maria Imelda Marcos Manotoc, as a beneficiary of a British Virgin Islands (BVI) trust, Philippine officials said they were eager to find out whether any assets in the trust are part of the estimated $5 billion her father amassed through corruption.
Manotoc, a provincial governor in the Philippines, declined to answer a series of questions about the trust.
Politically connected wealth:
The files obtained by ICIJ shine a light on the day-to-day tactics that offshore services firms and their clients use to keep offshore companies, trusts and their owners under cover.
Tony Merchant, one of Canada’s top class-action lawyers, took extra steps to maintain the privacy of a Cook Islands trust that he’d stocked with more than $1 million in 1998, the documents show.
In a filing to Canadian tax authorities, Merchant checked “no” when asked if he had foreign assets of more than $100,000 in 1999, court records show.
Between 2002 and 2009, he often paid his fees to maintain the trust by sending thousands of dollars in cash and traveler’s checks stuffed into envelopes rather than using easier-to-trace bank checks or wire transfers, according to documents from the offshore services firm that oversaw the trust for him.
One file note warned the firm’s staffers that Merchant would “have a st[r]oke” if they tried to communicate with him by fax.
It is unclear whether his wife, Pana Merchant, a Canadian senator, declared her personal interest in the trust on annual financial disclosure forms.
Under legislative rules, she had to disclose every year to the Senate’s ethics commissioner that she was a beneficiary of the trust, but the information was confidential.
The Merchants declined requests for comment.
Other high profile names identified in the offshore data include the wife of Russia’s deputy prime minister, Igor Shuvalov, and two top executives with Gazprom, the Russian government-owned corporate behemoth that is the world’s largest extractor of natural gas.
Shuvalov’s wife and the Gazprom officials had stakes in BVI companies, documents show. All three declined comment.
In a neighboring land, the deputy speaker of Mongolia’s Parliament said he was considering resigning from office after ICIJ questioned him about records showing he has an offshore company and a secret Swiss bank account.
“I shouldn’t have opened that account,” Bayartsogt Sangajav, who has also served as his country’s finance minister, said. “I probably should consider resigning from my position.”
Bayartsogt said his Swiss account at one point contained more than $1 million, but most of the money belonged to what he described as “business friends” he had joined in investing in international stocks.
He acknowledged that he hasn’t officially declared his BVI company or the Swiss account in Mongolia, but he said he didn’t avoid taxes because the investments didn’t produce income. “I should have included the company in my declarations,” he said.
The documents also show how the mega-rich use complex offshore structures to own mansions, art and other assets, gaining tax advantages and anonymity not available to average people.
Spanish names include a baroness and famed art patron, Carmen Thyssen-Bornemisza, who is identified in the documents using a company in the Cook Islands to buy artwork through auction houses such as Sotheby’s and Christie’s, including Van Gogh’s Water Mill at Gennep.
Her attorney acknowledged that she gains tax benefits by holding ownership of her art offshore, but stressed that she uses tax havens primarily because they give her “maximum flexibility” when she moves art from country to country.
Among nearly 4,000 American names is Denise Rich, a Grammy-nominated songwriter whose ex-husband was at the center of an American pardon scandal that erupted as President Bill Clinton left office.
A Congressional investigation found that Rich, who raised millions of dollars for Democratic politicians, played a key role in the campaign that persuaded Clinton to pardon her ex-spouse, Marc Rich, an oil trader who had been wanted in the U.S. on tax evasion and racketeering charges.
Records obtained by ICIJ show she had $144 million in April 2006 in a trust in the Cook Islands, a chain of coral atolls and volcanic outcroppings nearly 7,000 miles from her home at the time in Manhattan.
The trust’s holdings included a yacht called the Lady Joy, where Rich often entertained celebrities and raised money for charity.
Rich, who gave up her U.S. citizenship in 2011 and now maintains citizenship in Austria, did not reply to questions about her offshore trust.
Another prominent American in the files who gave up his citizenship is a member of the Mellon dynasty, which started landmark companies such as Gulf Oil and Mellon Bank. James R. Mellon, an author of books about Abraham Lincoln and his family’s founding patriarch, Thomas Mellon used four companies in the BVI and Lichtenstein to trade securities and transfer tens of millions of dollars among offshore bank accounts he controlled.
Like many offshore players, Mellon appears to have taken steps to distance himself from his offshore interests, the documents show. He often used third parties’ names as directors and shareholders of his companies rather than his own, a legal tool that owners of offshore entities often use to preserve anonymity.
Reached in Italy where lives part of the year, Mellon told ICIJ that, in fact, he used to own “a whole bunch” of offshore companies but has disposed of all of them. He said he set up the firms for “tax advantage” and liability reasons, as advised by his lawyer. “But I have never broken the tax law.”
Of the use of nominees, Mellon said that “that’s the way these firms are set up,” and added that it’s useful for people like him who travel a lot to have somebody else in charge of his businesses. “I just heard of a presidential candidate who had a lot of money in the Cayman Islands,” Mellon, now a British national, said, alluding to former U.S. presidential candidate Mitt Romney. “Not everyone who owns offshores is a crook.”
The anonymity of the offshore world makes it difficult to track the flow of money. A study by James S. Henry, former chief economist at McKinsey & Company, estimates that wealthy individuals have $21 trillion to $32 trillion in private financial wealth tucked away in offshore havens are roughly equivalent to the size of the U.S. and Japanese economies combined.
Even as the world economy has stumbled, the offshore world has continued to grow, said Henry, who is a board member of the Tax Justice Network, an international research and advocacy group that is critical of offshore havens. His research shows, for example, that assets managed by the world’s 50 largest “private banks” which often use offshore havens to serve their “high net worth” customers, grew from $5.4 trillion in 2005 to more than $12 trillion in 2010.
Henry and other critics argue that offshore secrecy has a corrosive effect on governments and legal systems, allowing crooked officials to loot national treasuries and providing cover to human smugglers, mobsters, animal poachers and other exploiters.
Offshore’s defenders counter that most offshore patrons are engaged in legitimate transactions. Offshore centers, they say, allow companies and individuals to diversify their investments, forge commercial alliances across national borders and do business in entrepreneur-friendly zones that eschew the heavy rules and red tape of the onshore world.
“Everything is much more geared toward business,” David Marchant, publisher of OffshoreAlert, an online news journal, said. “If you’re dishonest you can take advantage of that in a bad way. But if you’re honest you can take advantage of that in a good way.”
Much of ICIJ’s reporting focused on the work of two offshore firms, Singapore-based Portcullis TrustNet and BVI-based Commonwealth Trust Limited (CTL), which have helped tens of thousands of people set up offshore companies and trusts and hard-to-trace bank accounts.
Regulators in the BVI found that CTL repeatedly violated the islands’ anti-money-laundering laws between 2003 and 2008 by failing to verify and record its clients’ identities and backgrounds. “This particular firm had systemic money laundering issues within their organization,” an official with the BVI’s Financial Services Commission said last year.
The documents show, for example, that CTL set up 31 companies in 2006 and 2007 for an individual later identified in U.K. court claims as a front man for Mukhtar Ablyazov, a Kazakh banking tycoon who has been accused of stealing $5 billion from one of the former Russian republic’s largest banks. Ablyazov denies wrongdoing.
Thomas Ward, a Canadian who co-founded CTL in 1994 and continues to work as a consultant to the firm, said CTL’s client-vetting procedures have been consistent with industry standards in the BVI, but that no amount of screening can ensure that firms such as CTL won’t be “duped by dishonest clients” or sign on “someone who appears, to all historical examination, to be honest” but “later turns to something dishonest.”
“It is wrong, though perhaps convenient, to demonize CTL as by far the major problem area,” Ward said in a written response to questions. “Rather I believe that CTL’s problems were, by and large, directly proportional to its market share.”
ICIJ’s review of TrustNet documents identified 30 American clients accused in lawsuits or criminal cases of fraud, money laundering or other serious financial misconduct. They include ex-Wall Street titans Paul Bilzerian, a corporate raider who was convicted of tax fraud and securities violations in 1989, and Raj Rajaratnam, a billionaire hedge fund manager who was sent to prison in 2011 in one of the biggest insider trading scandals in U.S. history.
TrustNet declined to answer a series of questions for this article.
The records obtained by ICIJ expose how offshore operatives help their customers weave elaborate financial structures that span countries, continents and hemispheres.
A Thai government official with links to an infamous African dictator used Singapore-based TrustNet to set up a secret company for herself in the BVI, the records show.
Nalinee Taveesin.The Thai official, Nalinee “Joy” Taveesin, is currently Thailand’s international trade representative. She served as a cabinet minister for Prime Minister Yingluck Shinawatra before stepping down last year.
Taveesin acquired her BVI company in August 2008. That was seven months after she’d been appointed an advisor to Thailand’s commerce minister and three months before the U.S. Department of Treasury blacklisted her as a “crony” of Zimbabwean dictator Robert Mugabe.
The Treasury Department froze her U.S. assets, accusing her of “secretly supporting the kleptocratic practices of one of Africa’s most corrupt regimes” through gem trafficking and other deals made on behalf of Mugabe’s wife, Grace, and other powerful Zimbabweans.
Taveesin has said her relationship with the Mugabes is “strictly social” and that the U.S. blacklisting is a case of guilt by association. Through her secretary, Taveesin flatly denied that she owns the BVI company. ICIJ verified her ownership using TrustNet records that listed her and her brother as shareholders of the company and included the main address in Bangkok for her onshore business ventures.
Records obtained by ICIJ also reveal a secret company belonging to Muller Conrad “Billy” Rautenbach, a Zimbabwean businessman who was blacklisted by the U.S. for his ties to the Mugabe regime at the same time as Taveesin. The Treasury Department said Rautenbach has helped organize huge mining projects in Zimbabwe that “benefit a small number of corrupt senior officials.”
When CTL set Rautenbach up with a BVI company in 2006 he was a fugitive, fleeing fraud allegations in South Africa. The charges lodged personally against him were dismissed, but a South African company he controlled pleaded guilty to criminal charges and paid a fine of roughly $4 million.
Rautenbach denies U.S. authorities’ allegations, contending that they made “significant factual and legal errors” in their blacklisting decision, his attorney, Ian Small Smith, said. Smith said Rautenbach’s BVI company was set up as “special purpose vehicle for investment in Moscow” and that it complied with all disclosure regulations. The company is no longer active.
‘One Stop Shop’:
Offshore’s customers are served by a well-paid industry of middlemen, accountants, lawyers and banks that provide cover, set up financial structures and shuffle assets on their clients’ behalf.
Documents obtained by ICIJ show how two top Swiss banks, UBS and Clariden, worked with TrustNet to provide their customers with secrecy-shielded companies in the BVI and other offshore centers.
Clariden, owned by Credit Suisse, sought such high levels of confidentiality for some clients, the records show, that a TrustNet official described the bank’s request as “the Holy Grail” of offshore entities, a company so anonymous that police and regulators would be “met with a blank wall” if they tried to discover the owners’ identities.
Clariden declined to answer questions about its relationship with TrustNet.
“Because of Swiss banking secrecy laws, we are not allowed to provide any information about existing or supposed accountholders,” the bank said. “As a general rule, Credit Suisse and its related companies respect all the laws and regulations in the countries in which they are involved.”
A spokesperson for UBS said the bank applies “the highest international standards” to fight money laundering, and that TrustNet “is one of over 800 service providers globally which UBS clients choose to work with to provide for their wealth and succession planning needs. These service providers are also used by clients of other banks.”
TrustNet describes itself as a “one-stop shop”, its staff includes lawyers, accountants and other experts who can shape secrecy packages to fit the needs and net worths of its clients. These packages can be simple and cheap, such as a company chartered in the BVI. Or they can be sophisticated structures that weave together multiple layers of trusts, companies, foundations, insurance products and so-called “nominee” directors and shareholders.
When they create companies for their clients, offshore services firms often appoint faux directors and shareholders, proxies who serve as stand-ins when the real owners of companies don’t want their identities known. Thanks to the proliferation of proxy directors and shareholders, investigators tracking money laundering and other crimes often hit dead ends when they try to uncover who is really behind offshore companies.
An analysis by ICIJ, the BBC and The Guardian identified a cluster of 28 “sham directors” who served as the on-paper representatives of more than 21,000 companies between them, with individual directors representing as many 4,000 companies each.
Among the front men identified in the documents obtained by ICIJ is a U.K.-based operative who served as a director for a BVI company, Tamalaris Consolidated Limited, which the European Union has labeled as a front company for the Islamic Republic of Iran Shipping Line. The E.U., the U.N. and the U.S. have accused IRISL of aiding Iran’s nuclear-development program.
Thousands of offshore entities are headquartered on this building’s third floor, which houses TrustNet’s Cook Islands office. Photo: Alex Shprintsen
‘Zone of Impunity’:
International groups have been working for decades to limit tax cheating and corruption in the offshore world.
In the 1990s, the Organization for Economic Cooperation and Development began pushing offshore centers to reduce secrecy and get tougher on money laundering, but the effort ebbed in the 2000s. Another push against tax havens began when U.S. authorities took on UBS, forcing the Swiss bank to pay $780 million in 2009 to settle allegations that it had helped Americans dodge taxes. U.S. and German authorities have pressured banks and governments to share information about offshore clients and accounts and UK Prime Minister David Cameron has vowed to use his leadership of the G8, a forum of the world’s richest nations, to help crack down on tax evasion and money laundering.
Promises like those have been met with skepticism, given the role played by key G8 members, the U.S., the U.K. and Russia, as sources and destinations of dirty money. Despite the new efforts, offshore remains a “zone of impunity” for anyone determined to commit financial crimes, said Jack Blum, a former U.S. Senate investigator who is now a lawyer specializing in money laundering and tax fraud cases.
“Periodically, the stench gets so bad somebody has to get out there and clap the lid on the garbage can and sit on it for a while,” Blum said. “There’s been some progress, but there’s a bloody long way to go.”
3 April 2013
‘How To Hide Emails From Government Snooping’
Article by Jack Schofield (The Guardian Newspaper):
Despite coalition proposals to monitor public email, there remain numerous free or low-cost methods to keep messages private…
You already know how to keep messages private: you just encrypt the contents using a password. But although this kind of technology has been freely available to PC users since Phil Zimmermann launched PGP (Pretty Good Privacy) in 1991, hardly anyone uses it. The benefits of email and online messaging are that they are fast and relatively frictionless, you don’t need to address an envelope, find a stamp, walk to a post box and so on, and encryption becomes an annoyance.
The problem with the latest government attempts at snooping is that they are not concerned with the content of messages, but their existence. If you have found some suspected criminals or terrorists, then you will want to know who their friends are: the people they email or message most frequently. Each of these people can probably be identified by their internet protocol (IP) address: the number assigned by their ISP (internet service provider). Even an encrypted email will usually include the addresses of the sender and the recipient in its headers.
The general solution to privacy concerns is to use a non-UK “proxy server” to relay web pages, messages, anonymous email accounts and other content anonymously. Hackers who really want to hide their origins will use several proxy servers, including ones that are acting as proxies without their owner’s knowledge. Many websites publish lists of free proxy servers, which are updated continuously.
Of course, these servers may offer less privacy than your ISP, and some may be traps or “honeypots”. However, there are some trusted anonymous servers available either free or for modest payments.
Examples include hidemyass.com, anonymouse.org, Guardster, Proxify, IDzap and Megaproxy. Such servers usually have terms of service to prevent abusive or criminal behaviour. They will probably record your IP address and may report you if you breach them, so they’re not completely beyond government reach. However, they’re probably beyond government fishing expeditions.
There are also some really anonymous remailer services, which use networks such as Cypherpunk and Mixmaster to ensure privacy. The drawback is that if you send an email anonymously, the recipient cannot simply hit Reply. QuickSilver software for 32-bit Microsoft Windows makes it relatively simple to route an email through 45 or more remailers using Mixmaster. But like the Tor anonymous network, this kind of thing is mostly used by programmers and geeks.
There are simpler ways to send private and/or anonymous emails. For example, anonymouse.org offers a simple form for AnonEmail, as does the sendanonymousemail.net website. There’s also Mailinator, which provides free disposable email addresses, and Hushmail, which works like an ordinary email service but encrypts all your email.
For encrypted instant messaging, you could try BitWiseIM or ProjectSCIM (for Secure Cryptographic Instant Messenger). Facebook’s internal messaging is reasonably private because it’s not visible on the net, though it could be vulnerable to a court order.
In the end, the simplest way to increase your privacy and security is to restrict your internet use to sites and services that have SSL connections. These are already standard for banks and shopping sites, and are increasingly used for email and other purposes. You can recognise them by the s for secure in their https: addresses, and a padlock visible in the browser. The next step is to use the InPrivate, Incognito or Private Browsing feature of your web browser to use anonymous online services.
However, it’s worth trying proxy servers and services, if only to provide a nice illustration of the law of unintended consequences. In other words, government attempts to snoop can help to create an internet culture where snooping becomes impossible.
2 April 2013
Article by Ellen Nakashima, The Washington Post
A little-known surveillance tool raises concerns by judges, privacy activists over Federal investigators in Northern California routinely using a sophisticated surveillance system to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects – but failing to detail the practice to judges authorizing the probes:
The practice was disclosed recently in documents obtained under the Freedom of Information Act by the American Civil Liberties Union of Northern California (see PDF Document): It gives a glimpse into a technology that federal agents rarely discuss publicly.
The investigations used a device known as a ‘StingRay’, which simulates a cellphone tower and enables agents to collect the serial numbers of individual cellphones and then locate them. Although law enforcement officials can employ StingRays and similar devices to locate suspects, privacy groups and some judges have raised concerns that the technology is so invasive – in some cases effectively penetrating the walls of homes – that its use should require a warrant.
The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of (innocent) bystanders in the vicinity.
In Northern California, according to the newly disclosed documents, judges expressed concerns about the invasive nature of the technology.
“It has recently come to my attention that many agents are still using [StingRay] technology in the field although the [surveillance] application does not make that explicit,” Miranda Kane, then chief of the criminal division of the Northern California U.S. attorney’s office, said in a May 2011 e-mail obtained by the ACLU.
As a result of that, she wrote, “effective immediately, all … applications and proposed orders must be reviewed by your line supervisor before they are submitted to a magistrate judge.”
The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant. “It’s unsettled territory,” said one U.S. law enforcement official, who spoke on the condition of anonymity because he was not authorized to speak for the record.
In a statement, Christopher Allen, a spokesman for the FBI, said the bureau advises field offices to “work closely with the relevant U.S. Attorney’s Office to adhere to the legal requirements” of their respective districts.
One of the problems is there is “scant law” addressing the issue of cell-site simulators, said Brian L. Owsley, a federal magistrate judge in the Southern District of Texas, who in June wrote a rare public ruling on the issue. He denied an application to use a StingRay, in large part because he felt the investigating agent failed to explain the technology or how it would be used to gather the target’s cellphone number
Moreover, the government did not explain what it would do with the numbers and other data “concerning seemingly innocent cell phone users” that were also picked up.
“Neither the special agent nor the assistant United States attorney appeared to understand the technology very well,” Owsley wrote. “At a minimum, they seemed to have some discomfort in trying to explain it.”
At a recent conference on cellphone tracking issues at Yale University, Owsley said he thought that “there are magistrate judges around the country that are getting these requests and not realizing what these requests are,” in some cases perhaps because the agents are not clear about their intent to use the technology. “By withholding information about this technology from courts in applications for electronic surveillance orders, the federal government is essentially seeking to write its own search warrants,”
said Linda Lye, a staff attorney for the ACLU of Northern California.
Judges “need the opportunity to require privacy safeguards, such as rules on how to handle the data of innocent people that may be captured by the devices as well,” she said.Lye will be arguing the issue in a federal case in Arizona, in support of a defendant charged with tax fraud and identity theft. Daniel Rigmaiden, known as “the Hacker” to acquaintances and federal agents, was tracked in part with the use of a StingRay. He has alleged that investigators did not seek a court’s approval to use the technology.
“The main concern we have in Rigmaiden is the government was not being forthright with the magistrate when it was seeking to use this device,” said Lye, whose organization is one of several that have filed an amicus brief in the case.
The newly disclosed documents suggest that “Rigmaiden was not an isolated case,” she said.
The government said it obtained a warrant to track Rigmaiden, but the ACLU is arguing that the government did not present key information about the surveillance device to the magistrate, rendering the warrant invalid.
Chris Soghoian, the ACLU’s principal technologist, said cell-site simulators are being used by local, state and federal authorities.
“No matter how the StingRay is used – to identify, locate or intercept – they always send signals through the walls of homes,” which should trigger a warrant requirement, Soghoian said. “The signals always penetrate a space protected by the Fourth Amendment.”
27 March 2013
An Individual’s Private Life: Can It Be Justified?
An Article by Siobhan Mullins, Sadie Seabrook and Laurie Swain:
In the recent case of The Queen (on the application of John Oldroyd Catt) v The Association of Chief Police Officers and the Commissioner of Police of the Metropolis, the Court of Appeal held that a protestor’s right to privacy under Article 8 of the European Convention on Human Rights had been breached by the respondents.
Mr Catt, an 88 year old male, had been a frequent protestor against what he considered a variety of forms of injustice. He had attended a number of public demonstrations, which included those organised by “Smash EDO”, a protest group campaigning for the closure of EDO; a US owned arms company with a factory in Brighton. Some of the core supporters of Smash EDO are prone to violence and criminal behaviour, which led to a substantial police presence at EDO protests and numerous arrests having been made. It was accepted, however, that Mr Catt had not been convicted of any criminal conduct of any kind in connection with any of the demonstrations that he had attended.
Police officers in attendance at Smash EDO protests recorded what they observed and sometimes supplemented this with photographs and video recordings. This information was duly stored on the National Domestic Extremism Database (a database maintained by the National Public Order Intelligence Unit, for whom the first respondent was originally responsible and the second respondent is currently responsible). Mr Catt became aware that his details were included on the database and made a subject access request. The respondents disclosed 66 entries in respect of Mr Catt spanning March 2005 to October 2009. Mr Catt was never the specific target of any observations, but was referred to incidentally. One typical example is: “The following protestors were identified as attending: John CATT (frame 63: Elderly male with grey hair and glasses)”. Mr Catt alleged that the information held on the database was of a personal and private nature and that its retention was an unlawful breach of his right to privacy. He sought judicial review of the respondents’ retention of the data.
Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for their private life and that: – “There shall be no interference by a public body authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security [or] public safety…for the prevention of disorder or crime…or for the protection of the rights and freedoms of others”
In this case, it was not in dispute that in order to justify an interference with Article 8 rights, the state was required to demonstrate that the conduct in question satisfied three requirements:
i. it is in accordance with the law;
ii. it is carried out in pursuit of a legitimate aim; and
iii. the interference is proportionate to the aim sought to be achieved.
The Divisional Court held that the information was of a public rather than private nature as it was obtained at public demonstrations. Accordingly, there could be no infringement of his Article 8 rights. In any event, the court held the view (obiter) that, even if the data had of been of a private nature, it was justified under Article 8(2). Mr Catt appealed against the decision.
The Court of Appeal Decision:
The Court of Appeal allowed Mr Catt’s appeal and held that the retention of this information was in breach of his Article 8 rights.
In reaching this decision the court considered that “private life” is a broad term and not capable of exhaustive definition. The processing and retention of even publicly available information may involve an interference with the subject’s rights. As the information held on Mr Catt included his name, age, appearance and history of attending political demonstrations, the court was satisfied that the information was of a private nature and so interfered with Mr Catt’s Article 8 rights.
In considering whether this infringement was justified, the court considered the following:
* It was clear that the respondent’s actions were in pursuit of a legitimate aim; namely the prevention of disorder or crime and the protection of the rights and freedoms of others.
*It was accepted that the demonstrations would attract significant police presence and that the police could be expected to watch what takes place at demonstrations and to compile reports, photographic and written, for retention in intelligence-gathering activities.
*Proportionality must be judged by reference to the facts of a particular case. In this instance:
*The information held on Mr Catt was of a very limited nature. There was nothing to suggest that he encouraged criminality or public disorder, much less that he engaged in it.
*It was clear that police recorded the name of anyone they could identify at such demonstrations, regardless of the nature of their participation.
*The rules governing the database required information to be retained for a minimum of six years, after which there should be a review. There is then a presumption in favour of retention. Records relating to the lowest level of offending may be automatically disposed of after a defined period rather than reviewed (Mr Catt fell into this category).
*It was not easy to understand how the information held on Mr Catt could provide any useful assistance to the police. The respondents had not identified an instance where the information had, in fact, been of any assistance at all.
*The burden of proving that the interference was justified rests on the respondent. On these particular facts, the respondents had not shown that the value of the information was sufficient to justify its continued retention.
*As the interference was not justified, there was no need to consider whether it was in accordance with the law.
It is evident that when determining whether the retention of information relating to an individual’s private life is justified, it is essential to consider proportionality in all the circumstances. This necessarily requires consideration of the nature of the information held and the assistance it offers to the police (or other body using it).
Whilst the information held on Mr Catt provided very little, if any, assistance to the police, this decision is fact specific and cannot be easily applied to all databases or information that police forces manage.
Indeed, the Court of Appeal acknowledged the value of the database itself and the legitimate aim that it was trying to achieve.
In many cases, the retention of information on that database would be proportionate. There was no indication by the court that retention of information on the database was in any way unlawful.
The implications of this judgment have been further limited by the Court of Appeal who acknowledged the importance to modern policing of detailed intelligence gathering and accepted the need for caution before overriding the judgment of the police about what information is likely to assist them in their task.
This decision will, without question, give rise to further claims. Police forces would be well advised to review all relevant databases for information being retained, the value of which could be viewed, on balance, as being disproportionate to the perceived risk of criminality/public disorder and as such being of no assistance.
26 February 2013
An Individual’s Private Life: Can It Be Justified?
Article by Chris Priestly:
The judgment dealt with combined cases in which three individuals had been respectively warned, cautioned and convicted by the Police. In two of the cases, the individuals had been under 18 at the time (11 and 16 respectively). In the third, the offence was minor (theft of some false nails). In the first two cases, a full criminal records check was necessary, because the individuals were applying to undertake jobs or study that would bring them into contact with children or vulnerable adults. In the third case, the individual wished to join the Army and was similarly obliged to undergo a full check. However, in her case, there was a conviction, at age 16, for manslaughter and robbery.
The Home Office, in defending the claims, did not dispute that the requirement to give full disclosure of past criminal conduct amounted to an interference with Article 8. However, it argued that the interference was proportionate in order to provide protection to children and vulnerable adults. It also argued that a clear standard was easier to administer and understand and that the consequences of disclosure were limited and not automatic.
The Court disagreed. It said that the whilst the Home Office’s aim was a legitimate one, the means chosen to achieve it, namely a regime which requires indiscriminate disclosure of all convictions regardless of seriousness and relevance to the job to be undertaken, was disproportionate. The regime went further than was necessary to achieve the aim of protecting children and vulnerable adults. That said, it was proportionate to provide that some offences were so serious that they would never become spent – conviction of manslaughter and robbery fell into this category.
The Court observed that the regime can effectively lead to a ‘person’s exclusion from employment’. It recommended, instead, the introduction of a system which took into account the relevance of information about a person’s criminal record to the job for which they were applying, the seriousness of
the offence, the age of the individual at the time and whether there is any history of reoffending. While the Court recognised that this was properly something for Parliament to consider, it expressed some doubt that Parliament would do so quickly. Recognising the potential ramifications of its decision for the current regime, the Court of Appeal directed that its decision should not take effect until the Supreme Court had decided an application from the Home Office to appeal. However, the decision will take
effect after that step has been taken.
The consequences of this case are far reaching. In practice, the current regime will be unworkable if the Supreme Court either rejects the Home Office application to appeal or goes on to hear the appeal but rejects it, as the lack of an effective filter makes the system, as a whole, fundamentally flawed. Thus, unless it is successful in the appeal to the Supreme Court, the Government will need to enact legislation as a matter of urgency to introduce a filtering system.
How charities should respond:
Charities in the meantime may be concerned about how to respond. For the next few weeks, the existing regime will continue, but thereafter the position is uncertain. The Articles of the European Convention on Human Rights do not have direct effect against private employers (as opposed to those in the public sector) and most charities ought not therefore to face claims that they themselves are in breach of Article 8 in making recruitment decisions. However, pending legislation and the introduction of a new system
that includes an effective ‘filter’, charities may wish to protect themselves by giving some thought to the relevance of conviction information before turning down applications for employment or volunteering on the basis of it.
In due course, the Charity Commission will have to revise its guidance, which recommends CRB checking for a wide range of positions, but without reference to the relevance of the information disclosed.
15 November 2012
Artical By Christopher Elser – Bloomberg:
Three men were arrested by U.K. police as part of an investigation into
allegations that private detectives hired by Tottenham soccer club spied on
the organizers of the 2012 Olympics and West Ham United…
Richard Forrest, 30, of Crawley outside London, and Lee Stewart, 39, of the
London suburb of Esher, were each charged with one count of conspiracy to commit fraud and will appear in court on Nov. 28, according to an e-mailed statement from the Met Police.
Howard Hill, 58, of Stockport, was charged with two counts of conspiracy to commit fraud by false representation, one with Forrest and one with Stewart.
Last November, Margaret Ford, chairwoman of the OPLC, told the London Assembly that Tottenham monitored all members of the committee. Spurs were trying to win rights to use the Olympic stadium after this year’s Games, while the OPLC awarded the site to West Ham and Newham borough. Tottenham has denied that it spied on the board.
The U.K. government had agreed to sell the facility to the east London team and Newham after the Games. An anonymous complaint to the European
Commission and north London rival soccer club Tottenham’s challenge in U.K. courts delayed the process.
The government in September 2011 said it will retain ownership of the facility after legal challenges. The OPLC is looking for tenants for the 537 million-pound ($863 million) facility, and West Ham has said it may try to rent the stadium.
6 November 2012:
Artical by Jamie Doward – The Observer:
A new law to stop councils using counter-terrorism powers to snoop on people is thwarting efforts to tackle noisy neighbours, according to environmental health experts…
The Protection of Freedoms Act, which became law last Thursday, was introduced in response to concerns that local authorities were misusing the Regulation of Investigatory Powers Act (RIPA) to mount surveillance and investigation operations.
Revelations that councils had spied on homeowners putting out their bins and parents flouting school catchment area regulations prompted widespread concerns that RIPA, which was primarily intended as an anti-terrorism measure, was being exploited.
The new act means councils must now apply to a magistrate before they can launch surveillance operations. According to the Chartered Institute of Environmental Health (CIEH), that means that monitoring sound levels without the consent of the householder concerned will have to be approved by a magistrate after a fee has been paid. It claims that Home Office officials have admitted that “some” noise pollution investigations will be subject to the new law.
“The new law is going to go one of two ways,” said Howard Price, principal policy officer with the CIEH. “Either local authorities will stop investigating complaints or they will ignore RIPA, which is not satisfactory. We don’t like to ignore the law. It’s not a good position for public bodies to be in.”
The institute claims the act was introduced in a hurry and will protect the freedoms of noise-makers at the expense of householders who want a peaceful night’s sleep. It said the “additional controls are neither justified nor in the public interest”, and pointed out that last year the Home Office minister James Brokenshire admitted to parliament that there was no evidence that noise investigations were being carried out inappropriately. Noise is the largest cause of complaints to local authorities. As many as 450,000 complaints are investigated each year by councils. Neighbour noise complaints comprise around two thirds of the total.
The Home Office insists the new laws apply only when public authorities obtain private information covertly, when it is necessary, proportionate and in line with people’s right to privacy. As a result it believes noise pollution investigations will usually fall outside the scope of the act.
2 November 2012:
Article from Private Eye Magazine ‘In The Back’ (Issue 1326):
“Tough times for the private parking enforcement racket, as the Driver and Vehicle Licensing Agency (DVLA) has suspended access to its databases for a number of firms caught out misleading drivers and registered keepers of vehicles, including the Eye’s old friends Excel Parking…
Companies that use automated number plate recognition cameras at their car parks need the DVLA’s information in order to serve parking charge notices requesting payment (they have no legal power to “fine” motorists) by post. A number of the companies claim on both the signs at car parks and in the letters they send out that the vehicle’s registered keeper is liable to pay if a car is caught on camera without paying at the car park. This misrepresents the legal situation.
‘Could face a permanent ban’:
“We have to strike a balance – allowing fair enforcement but protecting motorists,” a DVLA spokesman told the Eye. “That is why information is only provided under strict controls to parking firms who meet the standards set by an appropriate accredited trade association and are compliant with its code of practice.” Companies that breach the rules again after their suspension is lifted could face a permanent ban, he added.
Eye readers may recall that the parking world’s trade association, the British Parking Association (BPA), continued to insist that serial offender Excel Parking met its code of practice ï¿½ even after a judge ruled that its signs were too tiny and it sparked fury by fining many disabled badge holders in Ebbw Vale (Eyes passim). All five of the suspended operators are members of the BPA. So will the BPA, which runs the industry’s self-regulatory Approved Operators Scheme (AOS), finally pull its finger out and clamp down on companies that flagrantly break the rules?
It seems unlikely. The BPA has written to members, warning them to check that their signs and correspondence are legally correct, since the DVLA is on the warpath. But the latest appointment to the AOS board is Mike Perkins, operations and strategy manager at, er, Combined Parking Solutions. Combined Parking Solutions is one of the companies serving a three-month ban from accessing the DVLA database!
MP Nick Smith, who battled Excel for the disabled parkers in his Welsh constituency and recently introduced a 10-Minute Rule bill calling for clearer signs in car parks, said: “I’ve repeatedly pressed ministers for proper regulation of the private car parking industry. But they’ve put their faith in the BPA. This faith is yet again misplaced.”
25 October 2012:
Article by Mark Anthony Rayner of DMH Stallard Solicitors:
Police targeting drivers using handheld mobile devices…
There are now three offences:
1. Using the hand-held device while driving
2. Causing or permitting another to drive while using a hand-held device
3. Supervising a provisional licence holder while the supervisor is using a hand held device
The device is one, other than a two way radio, which performs an interactive communication function by transmitting and receiving data.
Is it lawful to use a mobile phone with a hands free kit and still have a conversation while driving?
The Regulations define a hand held device as follows:
“a mobile phone or other device is to be treated as hand-held if it is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function.”
An offence would be committed by:
Using the phone and holding it in the hand when driving.
At some point during the course of receiving or making a call or sending a text etc, the driver holds the phone in his hand, even if momentarily.
Holding the phone to answer an incoming call even if immediately after holding the phone to answer it, he puts it down and uses the hands-free kit.
An offence would not be committed by:
A call being made or answered by pressing a button on an earpiece or the phone keypad, when the phone is mounted on a dashboard holder, because the phone is not being held at any time even momentarily.
If the phone is being used for an emergency to call the emergency services on 112 or 999 in response to a genuine emergency and it is unsafe or impracticable to stop driving to make that call.
The penalty will be £2,500 fine, discretionary disqualification and three points obligatory endorsement and so not to be treated lightly.
It is essential for the Crown to have evidence that the phone is being or has been held by the driver.
31 September 2012:
Article by Barry Smith of UKPIN:
The National Crime Agency…
The Crime and Courts Bill 2012/2013 is currently going through Parliament and will establish the new National Crime Agency which will be divided into four operational commands dealing with organised crime, economic crime, border policing and child exploitation. It will also house an ‘intelligence hub’ that will gather, store, process and analyse operational intelligence.
The NCA is expected to be fully operational by December next year.
According to the Home Office, organised crime is estimated to cost the UK economy in region of £20 billion to £40 billion a year. It is estimated that about 30,000 criminals across over 7,000 groups are involved in organised crime that impacts on the UK.
There have been complaints that the current response to economic crime including fraud and corruption has not been good enough. Fraud alone costs the UK £73 billion a year and the Home Office estimates that at least £10 billion of this amount has a link to organised crime.
The responsibility to tackle organised crime currently rests with SOCA (Serious Organised Crime Agency) however SOCA will be abolished by the Crime and Courts Bill when it is enacted.
31 September 2012:
Article by Kabir Sondhi; 6 King’s Bench Walk:
This article aims to explore the practical utility of the Court of Appeal’s decision in the recent case of R v. King  EWCA Crim 805 (Pitchford LJ, Cox J & Burnett J, dated 27th April 2012), in which the Court was asked to decide a novel point relating to the admissibility of evidence obtained in breach of the provisions of the Police and Criminal Evidence Act 1984 (PACE)…
The appellant appealed on the ground, inter alia, that a covert recording of an incriminating conversation between himself and a co-accused – made after arrest but before conveyance to a police station – should have been excluded on the basis that it had been obtained in breach of the police’s duty under section 30 PACE to convey the appellant to a police station as soon as practicable after arrest.
The Court, whilst denying the appeal, acknowledged that a deliberate breach of the duty under section 30 is capable of rendering inadmissible evidence obtained as a result of that breach. The Court held that, although the policy behind section 30 is to bring a suspect within the protection of PACE Code C as soon as practicable, the mere fact of a breach of section 30 does not place evidence obtained during that breach into a separate category where unfairness is presumed – the fairness of its admissibility depends on the factual circumstances in which it was obtained.
Section 30 PACE sets out the following:
“(1) Subsection (1A) applies where a person is, at any place other than a police station –
(a) arrested by a constable for an offence, or
(b) taken into custody by a constable after being arrested for an offence by a person other than a constable.
(1A) The person must be taken by a constable to a police station as soon as practicable after the arrest.[…]
(10) Nothing in subsection (1A) or in section 30A prevents a constable delaying taking a person to a police or releasing him on bail if the condition in subsection (10A) is satisfied.
(10A) The condition is that the presence of the person at a place (other than a police station) is necessary in order to carry out such investigations as it is reasonable to carry out immediately.
(11) Where there is any such delay the reasons for the delay must be recorded when the person first arrives at the police station or (as the case may be) is released on bail.”
Facts: The appellant was convicted of various offences involving conspiracy to supply Class A and B drugs (as well as related firearms and proceeds of crime offences) after a trial at Canterbury Crown Court. He was sentenced to a total of 18 years imprisonment.
Undercover police had begun to purchase drugs from a supplier (MN) but did not know the identity of the overall source, although they suspected it to be the appellant. A senior officer had issued a written policy decision stating that, should MN visit the travellers’ site where the appellant was the senior resident, a tactical team should enter and arrest persons at the scene. It went on to say that, should MN meet with an occupant of the site, “both arrested persons will be placed for a period of time together in
a police vehicle with recording facilities… They will be left unsupervised and their presence and any conversation will be recorded.” This policy decision was justified by reference to the decision in R v. Bailey and Smith 97 Cr App R 365 (in which covert surveillance of incriminating conversations between prisoners in a cell after arrest and interview was held to be admissible). However, the policy was silent as to the police’s duties under section 30 PACE.
When MN visited the appellant, around 150 officers attended the site in convoy. The appellant and MN were arrested at 10:20am. Police detained both men on site for over an hour before placing them in the back of a patrol car fitted with recording equipment. During the six minutes they were together in the car, the appellant and MN were recorded making incriminating comments. They were then separated and the appellant was eventually conveyed to a police station.
At trial, counsel for the appellant applied to have the recorded
conversation excluded under section 78 PACE on the basis that it was obtained under a breach of section 30. The trial judge ruled after a voir dire that there was no delay and added that, even if there had been a delay, it was minimal and there was no unfairness in the admission of the evidence.
The Court of Appeal was asked to consider the admissibility of evidence obtained under a breach of section 30 – an issue on which it had not previously been invited to rule.
Counsel for the appellant argued that a deliberate flouting of the duty under section 30 deprived the appellant of the protection of Code C during a period of particular vulnerability and, therefore, the evidence was inadmissible.
The Court held that: “the deliberate flouting of a statutory duty for the purpose only of creating an opportunity for a covert recording may, depending on the circumstances, result in the exclusion of
evidence” (paragraph 26). It concluded, however, that in the instant case there was no unfairness in the proceedings occasioned by the admission of the evidence, pointing to the following material considerations:
i) During the period of an hour when the appellant and MN were under arrest and awaiting developments they remained under the supervision of police officers who did not engage them in conversation;
ii) The placement of the appellant and MN in the same police car provided no more than an opportunity for them to speak together in the belief that they were not being overheard;
iii) No trick or subterfuge was practised upon the accused so as to lead them to believe that they must make some response to their arrests; and
iv) The covert recording took place before interview under caution but that fact placed them at no greater disadvantage than if they had been covertly recorded in police custody after interview under caution.
Analysis & Practical Application:
R v. King defines a novel category of impropriety in obtaining evidence that may render that evidence inadmissible – namely evidence obtained through a deliberate breach of section 30. However, as with other categories, exclusion on this basis is restricted to circumstances where the admission of the evidence would be unfair considering the circumstances in which it was obtained.
The decision will be of use to practitioners defending in analogous cases where investigating authorities exploit the circumstances of an arrest in order to obtain incriminating evidence. If an investigating authority has purposefully breached section 30 in order to obtain evidence, R v. King can now be used as good authority to persuade a court to exclude it. On the other side, the case sets boundaries for investigating authorities seeking to obtain such evidence whilst maintaining its admissibility. This will be of significance to authorities dealing with serious and organised crime, where opportunities to obtain incriminating evidence against professionally savvy criminal operators may have to be manufactured. Beyond that narrow class of cases, the decision in R v. King may have broader utility for practitioners in more everyday cases where evidence is obtained under a deliberate breach of section 30, albeit not a breach set up in order to obtain such evidence. Although, as mentioned above, the Court of
Appeal held that a breach of section 30 does not necessarily render evidence unfair, it is submitted that an argument for exclusion under section 78 based on a breach of section 30 is stronger than an equivalent argument that simply cites breaches of individual PACE Code requirements.
The statutory discretion under section 78 to exclude evidence obtained in breach of lawful powers does not rely on the breach having been committed either in bad faith or wilfully (see DPP v. McGladrigan  Crim LR 851; R v. Samuel (1988) 87 Cr App R 232; and R v. Foster Crim LR 821).
Where the evidence is obtained in breach of PACE Code requirements, it can be excluded under section 78 where those breaches are “significant and substantial” as a question of fact and degree (see R v. Quinn  Crim LR 581; R v. Walsh (1989) 91 Cr App R 161; and R v. Keenan (1990) 90 Cr App R 1).
It is submitted that there is a strong presumption that a breach of section 30 will “significant and substantial” as it is a “gateway” provision ensuring access to the protections afforded by PACE Code C, including the suspect’s right to receive legal advice before making any statement; the suspect’s right to be further cautioned; and the suspect’s right to be detained in a cell on his own. Arguments for exclusion based on a breach of section 30 can be made more forceful if no record was made under section 30(11) of the reason for the delay in conveyance or if the detained person was not given the opportunity to comment on the covert recording during interview, compounding the original breach. It is worth considering the practical application of the argument. Consider the following example:
The police receive an emergency call reporting an incident of domestic violence. A unit driving a specialist high-performance vehicle arrives first. Officers enter the address, and talk to the parties involved. They arrest a male suspect and lead him outside, where they lawfully arrest and caution him and place him in the back of their car. The suspect makes no reply to caution, although he is highly agitated and obviously angry that the police have been called. The officers, mindful that they are driving
their station’s only high-performance vehicle are keen to secure the attendance of a van to convey the suspect to the police station, in order to keep their specialist car out and operational. They therefore decide to wait for the van to arrive, which takes well over an hour. Meanwhile, an officer
on foot patrol arrives to assist. He brings the complainant out of the house in order to take a statement. When he does so, the suspect, sitting in the police car with the arresting officers, shouts out of the open window: “Don’t you fucking tell them what I done or I’ll fuck you up proper next time you fucking bitch.” The officers hear this and make a note, on which the prosecution intend to rely at a subsequent trial for common assault by beating.
The officers’ notes are incriminating evidence and are of probative value, albeit that they are also prejudicial. It is submitted that this is the type of situation in which a slightly modified R v. King argument may be effective. The police have deliberately breached their duty under section 30 – they chose not to convey the suspect when they could reasonably have been expected to do so. Although the deliberate breach was not effected for the purpose of obtaining the incriminating evidence, the evidence has nonetheless been obtained as a direct result of the breach and should arguably be excluded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.
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