Fair Cop Court of Appeal 8-10 March

How do you square this circule. On the one hand race crime, which can be extremely serious and can build over time measured against Mrs B on the internet being offended. Both have the same 'sanctions' initially

JC but guidance does make efforts to constrain police actions in difficult areas. The guidance directs them to consider the matters complainant raises. Judge didn't look at new guidance.

Judge - you said this case raised issues but give the impression its rare. Don't we have to consider the matter in a broader context. For e.g. a student who posted on facebook about homosexuality, saying it was sin and was reported and disciplined. That is another eg of stilfling

Discussing whether the guidelines sufficiently limit the policies actions:

JC - Quoting from the guidelines: "An incident should not be recorded... [from a person] who is reporting for a political or similar motive"

Lady judge - Hmmm... Not an easy task for the police to have to take

JC - Well...

Lady judge - Looking at the reality - we don't have windows into people's souls. Not an easy issue to resolve.

I am really struggling to hear it, well done those who are sharing the notes!

*JC - court must exercise caution in terms of undermining the guidance across the board, given the range of circumstances it applies to.

[THEN AMEND YOUR BLOODY GUIDANCE]

This might cause concern because of the race hate crime

Judge 'In a world without this guidance, would this have been recorded and what would it have been recorded as?'

Answer:
An incident. There would be no 'hate incident' flag.

Judge: A member of the public says 'I have seen a tweet on twitter and it has made me feel upset' For what purpose would this have been recorded?

Answer: (doesn't quite answer the question)...'hate qualifier does not proscribe a partlicular course of action'

JC - erm er, the context of hate incidents in the guidance. May require police to take further action. A record without hate qualifier serves exactly the same, er similar purposes as with hate qualifer. Gives police particular intelligence. I find this very vague

"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant..."

They can be disclosed under an enhanced DBS check.

I think the QC is really missing a trick in not pointing out how all kinds of non-crime information can be recorded about people and potentially revealed in a DBS check. Some political activists have files inches thick and have never been convicted of anything. I think there's strong grounds for looking at how and why police retain information across the board, but this isn't where I would start.

Yes, I agree. Is this info actually shown in a DBS check, though? Is it not held in a sort of special 'intelligence' file?

Fairly limp argument - "this can't have a chilling effect, because it's merely a police record kept purely for intelligence purposes".

Except it clearly isn't kept purely for intelligence purposes - it's not confidential, and it can be revealed to others.

And remember the previous judge - "we've never had a Stasi", etc. I'm sure all their files were "purely for intelligence purposes" and didn't have a chilling effect.

John Stuart Mill: He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion

The comments made this morning by the judge and counsel about perception based recording versus stigmatisation are very interesting.

I have seen this in the wild and how it directly affects the language used in police records. Of course there are times when perception based recording is right and valuable but I saw it in circumstances when it was completely inappropriate and actually counter-productive. I did some volunteering which involved liaising with the police and being trained on a new case management system which both the volunteers and police had access to. The very purpose of bringing in the voluntary group and the work for which the system was set up was to resolve issues between individuals which the police had found intractable ie resolutions without blame, judgment or criminal outcomes for anyone. Yet the CMS did not use neutral labels like Party A or Party B . From the outset one person was entered into the system as 'Victim', where they remained and their details were recorded in a box with that title. Not even 'Complainant'.

Categorisation does lead to stigmatisation even if the 'offender' is not labelled as such.

I'd have thought investigating and arguing both sides of an argument would be pretty interesting for a barrister. Also you need to understand the other side to argue back, so taking both cases would mean less work than it being done by 2 separate people.

High powered legal professionals are usually happy to take cases they're unlikely to win. Where they get annoyed is if it's a hopeless case and they have to stand up in court (or elsewhere) and put forward arguments they know are laughable and they know that everyone else looking on knows are laughable.

JC: First is principle of relativity, identified by CoA in Bridges. The more intrusive the act complained of, the more precise and specific must be the law to justify it.

Wouldn't that be a Fair Cop argument? that the act was intrusive and the law was not specific?

They can still cherry pick in chambers though, can't they? Perhaps JC wants the experience???? He's a very prominent QC

If the police are contacting/going to people's place of work, then it has huge repercussions. Also if 'it' (not a crime) comes up on a police check when applying for a job.

Iirc, I think they had experienced DA and were saying that the police had recorded a series of incidents against them that didn't result in the police being able to take action against the abusive partner after the individual incidents, but were able to be used at a later date to show a pattern of abuse.

That to me seems to be a more proportionate and sensible use of this non-crime recording, not for hurty feelz on social media.

I'd summarise the CoP case as being "we collect this data, nothing is done with it, and therefore there can be no adverse effects, but if there were, it was because of the big boy who did it and ran away".

To me it seems (from reading the tweets rather than watching) that the CoP are trying to use the “if you’ve done nothing wrong you’ve got nothing to fear” argument as a defence here. Which, as Professor Slocombe said has a wider cone t within justice/policing policy.

And yes, the attempts by the same poster to once again tie anyone who disagrees with their ideology to the alt right, 4chan etc is really tiresome.

They're back - Twitter thread starts twitter.com/WeAreFairCop/status/1369649852477562892?s=19

...and ... we're back in the room.

Is that it?

Yes, it seemed "unreal" that such a situation was in danger of escalating to an actual crime, which was the justification for keeping the records.