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British Transport Police "ignorance" of covert surveillance law leaves court "astonished"
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The British Transport Police (BTP) has been condemned by the Investigatory Powers Tribunal (IPT) for a covert surveillance operation directed at a former police superintendent whose subsequent arrest was then the subject of a "gratutitous" press release. He was charged with five counts of sexual assault and found innocent. The judgment highlights the "disturbing lack of familiarity with the relevant requirements of [the Regulation of Investigatory Powers Act] by almost every officer who was involved."
See: Davies v British Transport Police (IPT/17/93/H, 30 April 2018, pdf)
The judgment was issued at the end of April this year and concerns one Mr Gary Davies:
"a retired chief superintendent of another police force with an exemplary record who now works for a local authority. In short, Mr Davies was arrested following a train journey and eventually charged with five offences of sexual assault. He was acquitted on all counts by a jury in the Crown Court."
According to the judgment:
"Mr Davies was subject to surveillance by a BTP officer on 10th May 2016 while travelling on a train. The officer decided on this course of action the previous day if Mr Davies were to appear at the railway station, which he did. The officer had arranged for a colleague to travel on the same train to assist if necessary. Mr Davies was observed throughout the journey and photographs were taken. He was publicly arrested at the close of the journey, removed from the train and interviewed."
Following complaints to the BTP by Davies, a Detective Inspector concluded that "a RIPA authorisation should have been sought" for the surveillance, and a Detective Superintendent agreed - however, in the proceedings before the IPT, the British Transport Police maintained that:
"there was merely a technical breach of RIPA with no bad faith and that none of the consequences detailed by Mr Davies - which are not challenged - flow directly from the unlawful surveillance itself but rather from the entirely proper decision to charge him with several counts of sexual assault resulting in a Crown Court trial."
The judgment goes on to tear the BTP's arguments to shreds (emphasis added in all quotes):
"16. In support of this contention [that there was a technical breach of RIPA], they have provided a witness statement by Detective Superintendent Nick Sedgemore, the BTP officer who is empowered to grant authorisations for surveillance under RIPA and who would have considered DC Day's application [to undertake surveillance of Davies, had such an application been submitted]. He has no doubt that he would have granted an authorisation on DC Day's application.
17. Superintendent Sedgemore points to the prevalence of offences of sexual assault on trains and the high importance of investigating them thoroughly and rigorously. He sets out the background facts to DC Day's decision to follow Mr Davies on the train, but omits almost everything of significance that bears on the legal justification for granting an authorisation under RIPA.
(...) 19. ...the Tribunal is astonished that Superintendent Sedgemore would have been prepared to grant an authorisation for surveillance. The legal requirements for an authorisation do not come close to being met and it is disturbing that the senior officer entrusted with decision-making in this area has so imperfect a grasp of the relevant law.
20. The Tribunal's conclusion is that no authorisation could properly have been granted and, if one had been, it would have been unlawful."
The judgment continues:
"21. As for any want of malice or bad faith on DC Day's part, we observe that, while malice or bad faith would have measurably aggravated the breach, a failure based on ignorance offers no mitigation. A detective of any standing, let alone one with several years' experience, should have knowledge of the legal requirements relating to the investigation of crime, including RIPA, and ignorance is neither excuse nor mitigation.
22. Indeed, a number of other BTP officers of various ranks were involved in this matter and not one of them had an adequate knowledge of the relevant requirements of RIPA."
Following Davies' complaints a Detective Superintendent concluded an internal report with the following:
"DC Day's performance through this investigation was such a serious display of inability to perform to the required standards that the only outcome available to me is that of Gross Incompetence."
Day was to face disciplinary proceedings, but these had not been initiated at the time of the hearing in the IPT.
Events that folllowed this covert surveillance were also highlighted by the Tribunal:
" 30. Mr Davies's treatment and suffering were then exacerbated by the release of a wholly gratuitous press release by BTP, well before the trial, trumpeting his arrest and revealing his name and the street in which he lived.
31. We understand that the BTP do not routinely issue a press release when a suspect is charged. Mr Davies argues that it served no practical purpose: there was no call for witnesses or solicitation of other possible victims. BTP claim that it was designed to protect the public against a possible sex offender in their midst. They claim that they gave careful thought to the physical risks this posed to Mr Davies and his family, but apparently none to the reputation of a man at this stage still innocent in the eyes of the law. We are unpersuaded that, given the nature of these charges, the protection of the public or the public interest called for such a press release, but in any event, it aroused considerable press interest (much of it of a lurid kind) and gave rise to considerable distress to Mr Davies and his family and damage to his reputation and standing in the community."
The IPT rewarded a substantial monetary sum of almost £47,000 to Davies, despite the BTP's arguments that all that was required for just satisfaction was a declaration that there had been unlawful surveillance based on a technical breach.
As the judgment states:
" 37. The Tribunal concludes that this was very far from being a mere technical breach of RIPA. It was a breach founded on ignorance that led to extremely severe and damaging consequences to the Claimant. The invasion of the Claimant's right to privacy on the train by the BTP was exacerbated by his arrest in full view of fellow commuters; the prosecution and trial that in our judgment would in all probability not have taken place; the issue of a wholly unnecessary press release; the inexcusable ignorance of all the investigating officers of the requirements of RIPA; the attempt to make light of the breach by Superintendent Sedgemore; the absence of any evidence that efforts are being made to make good the widespread ignorance of BTP officers of the relevant law; and the absence of any apology or offer of amends (...)
42. This case has revealed a disturbing lack of familiarity with the relevant requirements of RIPA by almost every officer who was involved...
43. The Respondent has told us nothing further about this in their submissions on remedies and we have no reason to suppose that additional training is being or has been provided. Moreover, we cannot but question whether this lack of legal understanding is confined to this one area of the BTP. We shall be sending this judgment, too, to the Investigatory Powers Commissioner, and we urge the Chief Constable of the BTP to ensure that urgent consideration is given to the need for intensive training on the relevant aspects of RIPA throughout the force. This is doubtless something the Commissioner will be monitoring."
See: Davies v British Transport Police (IPT/17/93/H, 30 April 2018, pdf) and: Former police boss unlawfully followed on train (BBC News, link)
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