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Human Rights Act ‘constraining’ police powers

By Monidipa Fouzder >>

(1 July 2021)

Court rulings on human rights breaches are putting further pressure on overstretched police that could jeopardise how quickly serious crimes are investigated, the government-commissioned team tasked with reviewing the Human Rights Act has been told.

Minutes of a roundtable discussion between the review team, led by Sir Peter Gross, and UK police services states that the Human Rights Act has changed policing for the better. ‘While no chilling effect on policing has yet been demonstrated, it has in some situations constrained the police’s discretion in terms of decision-making,’ the document says.

The minutes for April’s meeting were published on the government’s website last month, alongside a follow-up briefing note from the Metropolitan Police entitled ‘ECHR considerations in police investigations’.

The briefing note says: ‘The 2018 Supreme Court judgement in the case of Commissioner of Police of the Metropolis v DSD and Another… and other similar cases now gives the precedent that not fully investigating serious crime can be classed as a breach of article 3. As a result there are a number of cases being brought against the police in similar circumstances, challenging police action or inaction. This inhibits the police’s ability to prioritise investigation, which is exacerbated by concern about potential challenge or criticism from external parties or courts. This leads to police continuing to investigate, regardless of the level of evidence or risk, and even where cursory investigation suggests a matter will never reach the threshold for prosecution.

‘The lack of discretion around prioritising investigations has a direct impact on volume. Officers in some rape investigation units are carrying workloads in excess of 30 investigations at a time. In considering the level of impact on supervision rates, a detective inspector in one force is overseeing and managing 490 active cases. The concern surrounding potential challenge or external criticism can, unless addressed, jeopardise the proactive and expeditious investigation of crimes.’

Strasbourg’s recent ruling in VCL and AN v the United Kingdom mandates a separate modern slavery crime and investigation if there is suspicion that a suspect is being exploited, the briefing note adds. ‘Apart from making it more difficult to prosecute criminals involved in serious violence, sexual exploitation and drugs supply, this results in forces having to crime and investigate many more thousands of modern slavery investigations every year to prove that suspects are not being exploited.’

The review was told that investigators in serious crime units worked with the ‘ingrained concern’ for how an external body, such as the inspectorate, media or public, would view any resulting negative outcome. ‘This pressure is increased by the human rights based decisions made by the courts that result in the requirement that every avenue of investigation is exhausted prior to closure,’ the note said.

(Courtesy: The Law Society Gazette)