KLS Criminal Justice Notes January 1, 2019

Criminal Justice Notes

In this month’s edition of KLS Criminal Justice Notes:

• The (Interference with Wireless Telegraphy) Act 2018 has come into force. It empowers the Home Secretary to authorise service or network providers to block phone/internet signals in prisons. The aim is to help combat the carrying on of criminal activities from within , but the Act’s provisions raise deeper issues of privatisation in criminal law enforcement and surveillance.

• In a recent decision in R (Stott) v Secretary of State for Justice [2018] UKSC 59, the UK Supreme Court decided by a three to two majority that the harsher treatment on parole eligibility for a single category of does not amount to unlawful discrimination contrary to Article 14 of the European Convention on Human Rights. However, the majority’s reasoning is not entirely convincing.

• On the 18th December 2018, the Irish government published an Implementation Plan for the recommendations contained in the report of the Commission on the Future of Policing in Ireland. The style and substance of the Plan do not inspire confidence that the Commission recommendations will be implemented in full or wholly to the effect envisaged by the Commission.

______Mobile Phones in Prison sections and a schedule. One of the sections inserts four new subsections in the 2012 The Prisons (Interference with Wireless Act, while the other is a technical section. Telegraphy) Act 2018 was one of three The schedule effects consequential Acts to receive the Royal Assent on the 20th amendments to three sections of the 2012 December 2018, although it will only come Act. However, there may be more to the into force when the Home Secretary makes Act than meets the eye. the relevant regulations. It began life as Problems caused by the use of illicit mobile part of the Prisons and Courts Bill which fell phones in prison are increasing rapidly as at the last election. Subsequently, its mobile phone technology and design are provisions were carved out of that Bill and advancing. Devices no larger than a finger re-presented as a Private Members Bill can be easily smuggled into prisons and which was supported by the government have the capacity to provide the full range and the opposition. of electronic (including internet) Superficially, the Act appears quite communications. They are being used by innocuous. Essentially, it amends the Prisons some prisoners to carry on criminal (Interference with Wireless Telegraphy) Act activities outside prison, including: terrorism 2012 to permit mobile phone service or and organised operations, contract network providers to interfere with phone murders, the importation of large quantities signals in prisons. It consists of a mere two of drugs and firearms into the UK, the intimidation of witnesses and the continued

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KLS Criminal Justice Notes January 1, 2019 harassment of victims of abusive behaviour authorised governor can deploy equipment as well as the importation of drugs and to detect and block mobile phone signals contraband into prison. They also, of and to investigate the use of illicit phones in course, present a potent threat to the the prison. internal safety and security of prisons, especially by facilitating the importation of The Prisons (Interference with Wireless drugs and contraband, and generally Telegraphy) Act 2018 amends the 2012 helping to drive the illicit economy within Act essentially to harness the “unrivalled prison. technical knowledge, specialised expertise and ingenuity” of the phone companies and Attempts to combat the use of illicit mobile network operators to block the use of phones (and related devices) in prison unauthorised mobile phones (including any through the conventional criminal law have device capable of transmitting or receiving proved unsuccessful. It is an offence to images, sounds or information by electronic possess or use a mobile phone in prison communication) in prison. Accordingly, it without authorisation, but prosecutions are empowers the Home Secretary to authorise rare due largely to the inherent difficulties a Public Communications Provider (PCP) to in finding such easily concealed devices interfere with wireless telegraphy to and in identifying the user. In recent years prevent the use of a mobile phone (or the focus of control has switched to similar device), or to detect or investigate disconnecting phones and blocking mobile the use of such an item, in a prison in phone signals in prisons. England and Wales. The authorisation can relate to a single prison or type of prison Regulations issued under the Serious Crime or to prisons/institutions generally. Act 2015, for example, empower a County Court in England and Wales, or Sheriff’s A PCP so authorised will be in the same Court in Scotland to issue an order position as an authorised governor of the compelling a mobile network operator to prison or prisons concerned. It will have the disconnect mobile phone handsets and SIM power to deploy and activate equipment cards that are found to be operative to block phone signals to the prison, detect without authorisation in a prison. Blocking a mobile phone usage within the prison and to the prison is not so record traffic data information on such straightforward, as it is generally a phone usage. Pursuant to directions from criminal offence to interfere deliberately the Home Secretary, information obtained with wireless telegraphy. However, the from the interference must be provided to Prisons (Interference with Wireless the governor of the prison concerned or to Telegraphy) Act 2012 stipulates that such the Home Secretary. These directions will action is lawful for the purpose of also specify the frequency or occasions on detecting or preventing the use of illegal which the information must be provided. mobile phones in prison when it is carried Separate direction issued to the governor out by someone “authorised” under that concerned will specify information that must Act. Moreover, the Home Secretary is be provided to the independent empowered to authorise the governor of a communications regulator OFCOM. The prison to interfere deliberately with information supplied to a governor wireless telegraphy in his or her prison to pursuant to these provisions must be prevent the use of illicit phones or to detect destroyed after three months, unless the or investigate their use. In other words, an governor orders its further retention on

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KLS Criminal Justice Notes January 1, 2019 specified grounds. The Home Secretary blocking phone signals and in detecting must also give directions to an authorised and collecting data on the use of illicit PCP on the circumstances in which the use of phones. In other words, it will be functioning interference equipment must be modified effectively as a police or criminal law or stopped. A PCP must comply with any enforcement authority in combating the use such directions. of illicit phones in prison. Authorising and depending on a private commercial Although an authorised PCP will be acting operator to discharge such functions, which independently in interfering with wireless are not its core business, raise serious telegraphy in a prison, it would appear questions about oversight, accountability that the governor of the prison concerned and transparency in respect of these public will retain ultimate responsibility for the law enforcement powers and interference in his or her institution. responsibilities. Accordingly, it is the governor in question who will be responsible for providing the The Act is strangely silent on key matters information on interference activities to the such as when the Home Secretary can independent regulatory body OFCOM. authorise a PCP to conduct interference in respect of a prison. Equally, it is not clear It is easy to appreciate the importance of what, if any, criteria will inform a decision effective measures to prevent the use of by an authorised PCP to initiate (and illicit mobile phones in prison. That, cease) an interference. It is stated that the however, should not divert attention from Home Secretary must specify descriptions some of the less obvious implications of the of information that should be provided deceptively innocuous provisions of the from an interference, as well as the 2018 Act. One of the most striking features frequency and occasions on which the is the extent to which it facilitates the information is to be provided. However, delegation of criminal law enforcement those directions relate to the gathering of power and responsibility to private traffic data in the course of an commercial operators. A PCP is in the interference, rather than to the act of business of providing phone and internet interference itself. It is possible, of course, connectivity and services for profit. Policing that further guidance will be provided in how, and the extent to which, phones are communications between the Home being used in prisons is not part of its core Secretary and PCPs. Nevertheless, the fact business. Nevertheless, when authorised that they are not addressed more fully in under the Act by the Home Secretary, a the Act leaves much scope for the exercise PCP acquires that broad responsibility in of these sensitive powers to be shaped respect of the prison or prisons in question. behind the scenes by the executive and the Significantly, this responsibility is different private commercial operators. in kind from recording and retaining the Also notable is the silence on the financial traffic data of mainstream customers’ costs associated with the conduct of an phone usage; data which the operator may interference and how they will be be required to make available to the defrayed. It would be surprising if the police etc on request on a case by case PCPs are left to pick up the tab, which basis for the investigation of crime. A PCP could be substantial. Nevertheless, the Act authorised under the 2018 Act will be does not address this matter. expected to act on its own initiative in

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KLS Criminal Justice Notes January 1, 2019

Although the Act presents the appearance disproportionate interference outside a of prison governors remaining central to prison is avoided. Clearly, this accepts a the interference regime, there can be little degree of outside interference so long as it doubt that the centre of gravity will move is not disproportionate; a concept that is decisively to the PCPs as it is they who will not further defined. Other potential, but have the expertise and technology to block indirect, protections are a requirement to signals and detect illicit usage. Indeed, in satisfy the Home Secretary that any one respect, the attempt to retain the equipment to be used is fit for purpose, centrality of prison governors may prove and the limited oversight and monitoring counterproductive to effective oversight role provided by OFCOM. and accountability. Although a PCP conducts interference on its own initiative An issue that should not be forgotten is that and independently of the prison governor illicit mobile phones in prison will not concerned, it must provide information necessarily be used for criminal or about the interference to the prison disruptive purposes. Many studies have governor rather than directly to OFCOM. shown that retaining strong ties with family This weakens the efficacy of the and loved ones on the outside can have a independent check as OFCOM will be major beneficial effect on a ’s dealing with a third party, rather than the mental health and recidivism risk. For some body conducting the interference and prisoners, illicit mobile phones are the only gathering the information. practicable means of maintaining that vital contact. Typically, the landline phones Another key issue concerns management of notionally available to them for this the threat to phone and internet users purpose in the prison are prohibitively outside the prison walls. Some prisons are expensive and frequently inaccessible due adjacent to occupied residential, retail etc to prison conditions. It is critically important, premises. Cardiff prison, for example, is therefore, that interference with mobile adjacent to university student phone signals in a prison are accommodation. Where the phone/internet complemented with measures to ensure that signal in a prison is blocked pursuant to prisoners have effective means to maintain telegraphy interference by the PCP phone contact with family on the outside. concerned, there is a risk of collateral Commendably, the government is currently interference for customers in the vicinity of investing in the installation of phones in the prison. This can also entail the prisoners’ cells. If implemented fully and phone/internet traffic data of people quickly, that should prove a valuable outside the prison being recorded and safeguard, especially for vulnerable retained, with a consequent risk of prisoners. disclosure to third parties. Quite separately, it is worth noting that Once again, the Act is not very forthcoming while the Act extends to England, Wales on how this issue will be addressed. It and Scotland, it does not actually apply in merely states that the Home Secretary must Scotland even though the 2012 Act applies give directions to the PCP specifying the in Scotland. It is not entirely clear why this circumstances in which the use of the is so. In the course of the parliamentary interference equipment must be modified debates, it was indicated that the matter or discontinued. In particular, these must had been discussed with the Scottish include directions aimed at ensuring that a government which declined to expand the

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KLS Criminal Justice Notes January 1, 2019

2012 Act along the lines of the 2018 Act. to them on conviction. One such difference Unfortunately, the debates do not shed any concerns eligibility for parole. In R (Stott) v further light on the reasons why the Scottish Secretary of State for Justice [2018] UKSC government was not in favour of the 59, the Supreme Court had to address measures. whether more stringent conditions on parole eligibility for EDS prisoners, relative Finally, it remains to be seen whether the to other categories of prisoners, constituted Home Secretary will deploy the 2018 Act discrimination in contravention of Art.14 of as the primary means for combating illicit the European Convention on Human Rights mobile phone usage in prisons. An (ECHR). It handed down its decision a few argument can be made for confining it to weeks ago. local situations in which resort to the expertise of PCPs is unavoidable to deal The appellant in Stott was sentenced to an with a temporary and severe threat where EDS in respect of 10 rape offences. An EDS action by the prison governor has proved can only be imposed on an offender inadequate. The reality is that the latter is where, among other things, he has been producing dividends. In 2016, for convicted of a specified violent or sexual example, almost 20,000 mobile phone and offence, and the court considers that there SIM cards were confiscated in prisons in is a serious risk of harm to members of the England and Wales (an average of 54 per public from his further offending. The day). In the course of the parliamentary sentence consists of a determinate custodial debates on the 2018 Bill (as it then was), term plus an “extension period” during these figures were presented as a crisis which the prisoner is released under which necessitated resort to the unusual use licence. The extended period is fixed in of PCPs in frontline law enforcement accordance with what the court considers activity. They could just as readily have necessary for protecting members of the been presented as proof that the public from serious harm occasioned by the established measures were already risk of thr offender committing further working effectively. offences.

A prisoner subject to an EDS is eligible to apply for release on licence (parole) Eligibility for Parole during the course of his custodial term, but only after he has served two-thirds of that The law in England and Wales recognises term. Critically, prisoners subject to other several different categories of custodial forms of determinate custodial sentences sentence. These include: a determinate (including the special custodial sentence sentence; an extended determinate which is also expressly associated with sentence (EDS); a special custodial sentence offenders who present a risk of danger to (passed in relation to certain offenders of the public) can apply for parole when they particular concern); and a discretionary life have served half of their custodial term. sentence. Each has its own particular Even prisoners serving a discretionary life specifications. The net effect is that sentence can apply for parole after they offenders convicted of similar offences have served half of their specified minimum could find themselves subject to quite term (which is usually understood to be the different custodial regimes depending on term that would have been imposed had a which particular sentence type was applied determinate sentence been imposed on

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KLS Criminal Justice Notes January 1, 2019 them). It is also significant that some of In its previous decision in R (Clift) v these other prisoners are entitled to be Secretary of State for the Home Department released on parole automatically when [2007] 1 AC 484, the House of Lords (as it they have served the relevant portion of then was) had taken the narrower their custodial term, while an EDS prisoner approach and held that a prisoner’s can only be so released where the Parole classification as “a long-term prisoner Board is satisfied that his confinement is no serving a sentence of fifteen years or longer necessary for the protection of the more” did not come within the scope of public. “other status” for the purpose of Art.14. In reaching that decision, the Court was The appellant argued that these (and influenced by its view that the “other other) differences in treatment constituted status” had to exist independently of the unlawful discrimination in the enjoyment of treatment being complained about. In other this right to liberty contrary to Article 14 words, it had to be a pre-existing condition ECHR (taken together with the Article 5 personal to the applicant. guarantee of the right to liberty). The appellant had failed in his application to The European Court of Human Rights, the Divisional Court, and the Supreme however, was not persuaded by that Court dismissed his appeal against that argument. When the same case reached it, decision by a 3 to 2 majority. In doing so, the European Court emphasised that “other the Supreme Court provided some status” must be given a wide meaning. It important clarification on the application of was not limited to characteristics which are Art.14 ECHR to the differential treatment innate or inherent to the person. It also of categories of sentenced offenders. stressed that any exception to the protection offered by Art.14 should be Article 14 ECHR stipulates that the rights narrowly construed. The Court went on to and freedoms governed by the Convention hold that the applicant’s classification as a shall be secured without discrimination on long-term prisoner did qualify as a status any grounds such as: sex, race, colour, for the purpose of Art.14. It must be said, language, religion, political or other however, that the European jurisprudence opinion, national or social origin, on Art.14 is not entirely coherent in its association with a national minority, application to the differential treatment of property, birth or other status (emphasis offenders on the basis of classifications added). A key question for the Court in imposed by domestic law. It would not be Stott was whether “other status” should be surprising if the Grand Chamber of the interpreted narrowly to link it closely, European Court of Human Rights revisits this although not exclusively, to inherent or area in the foreseeable future. acquired personal characteristics (such as sex, nationality, religion or political Clearly, the Supreme Court in Stott had to opinion) or more broadly so that it could decide whether to depart from its own encompass a status associated with his own decision in Clift in favour of the broader actions (such as acquisition of property) or interpretation adopted by the European a treatment applied by a third party (such Court of Human Rights. By a four to one as treatment as a particular category of majority on this issue, it followed the latter prisoner). approach and held that categorisation as an EDS prisoner is a recognisable status for the purpose of Art.14. The fact that the

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KLS Criminal Justice Notes January 1, 2019 status of EDS prisoner did not exist other regimes. It follows that differential independently of the discriminatory treatment in respect of early release alone treatment alleged by the appellant did not does not necessarily constitute preclude that result. discrimination within the scope of Art.14. Much will depend on whether there is It does not follow, however, that the objective justification for the difference in difference in parole treatment between an treatment, and whether the means adopted EDS prisoner and other categories of to achieve that objective are proportionate prisoner would necessarily amount to and appropriate. unlawful discrimination in the enjoyment of his right to liberty in contravention of The EDS regime was considered to have a Art.14. The appellant would also have to legitimate aim of enhancing public show that he was in an analogous situation protection and confidence in sentencing. to prisoners in other categories who Given that it was concerned with offenders benefited from the more favourable who posed a danger to the public, it was parole treatment. Moreover, he would appropriate to require them to serve a have to establish that there was no longer portion of their sentence before objective justification for the difference in they became eligible for release on treatment between them. parole. The problem, however, was that even discretionary ‘lifers’ became eligible By the slimmest of majorities (3 to 2), the for parole earlier, although they typically Court held that the appellant had failed to would be guilty of similar offending and establish unlawful discrimination within the would present an even greater danger to meaning of Art.14. Although there was the public. some difference of emphasis among them, the broad thrust of the majority judgments The majority’s reasoning in overcoming that was that the status of an EDS prisoner is not problem is not entirely convincing. They sufficiently analogous to the other considered that the EDS prisoner benefited categories of prisoner, and that there is from advantages denied to the ‘lifers’; objective justification for their difference in most particularly, the fact that the EDS treatment. prisoner would eventually serve his full sentence and be free of the licence Giving the leading judgment for the requirement, while the ‘lifer’ would be majority, Lady Black explained that the subject to the licence requirement for the variations between each of the sentencing rest of his life. It is not entirely clear how regimes are such that each must be viewed that justifies the EDS prisoner having to as a distinct regime, rather than as a serve a longer portion of his sentence in discrete variation within a single sentencing prison than the ‘lifer’ in order to address a regime. It is not appropriate, therefore, to danger to the public which is also treat the early release status of a prisoner presented by the ‘lifer’. Noting that the sentenced under one regime as wholly European Court of Human Rights allows a comparable or analogous to that of a wide margin of discretion in matters of prisoner sentenced under another regime. prisoner and penal policy, Lady Black said The early release provisions in one regime that the Supreme Court must afford a must be viewed holistically in the context of similar respect for the policy choices of the other aspects of that regime which, of parliament in sentencing. Looking at the course, differ from the components of the EDS sentencing package as a whole, she

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KLS Criminal Justice Notes January 1, 2019 concluded that the parole differential was the public) applied for the full period of justified as a proportionate means of the determinate sentence. Eligibility for achieving the government’s legitimate aim. parole, therefore, did not signal the end of a period in a determinate The two minority judges, Lady Hale and sentence. That was another reason why the Lord Mance, acknowledged that the majority did not consider the EDS prisoner different sentence categories reflect distinct analogous to a life sentence prisoner for packages in which, for example, an EDS the purpose of Art.14 ECHR. prisoner enjoys certain advantages over a life sentence prisoner. Nevertheless, they The fact that the decision in Stott was by a were not persuaded that that was sufficient 3 to 2 majority, coupled with the fact that to distinguish them from other categories of the majority were not entirely unanimous or prisoner in respect of the core issue, persuasive in their reasoning, suggests that namely eligibility for release on parole. the issue may be revisited in another case, More fundamentally, they could find no or even in an application to the European objective justification for the EDS prisoner Court of Human Rights. being treated more severely than the life sentence prisoner in respect of the timing of eligibility for parole. They considered that the other burdens suffered by life sentence Implementing Police prisoners cannot be viewed as some sort of Reform in Ireland counter-balance to their more lenient treatment on the timing of their parole The report of the Commission on the Future eligibility. Such burdens are inherent in the of Policing in Ireland was published in nature of a life sentence. September 2018 (see Criminal Justice One other point worth adverting to Notes 2018). It is the first comprehensive concerns the division of a custodial sentence review of policing structures, processes and into a punishment component and a risk values since the Garda Siochana was management (or preventative) component. established over 90 years ago, and it This division seems firmly established in offers extensive recommendations for respect of life sentences in England and significant change in policing, spanning: Wales. The specified portion that must be function, recruitment, training, discipline, served before the prisoner is eligible for governance, accountability, performance parole is the punishment component, while management, communications, technology, any period spent in custody beyond that civilianisation, inter-agency partnerships, point is deemed preventative. As part of community policing, human rights, his argument that the EDS prisoner was transparency and external oversight, penalised more severely relative to other among others. categories of prisoner serving a similar Observers of Irish policing will know that custodial sentence, the appellant in Stott there is a long history of proposed reforms argued that the division also applied in being frustrated by inaction and respect of a determinate sentence (such as obfuscation at the levels of government the EDS). This argument was rejected by and senior Garda management. Adapting the majority who explained that the the successful precedent of the Patten objectives of punishment (as well as Commission on police reform in Northern deterrence, rehabilitation and protection of

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KLS Criminal Justice Notes January 1, 2019

Ireland, the Commission astutely The substance of the Plan itself is set out recommended the establishment of an across four phases dubbed: Building Blocks Implementation Group to drive forward (first six months); Launching (6-12 months); and secure the full implementation of its Scaling (12-30 months); and Consolidation recommendations over a four-year period. (30-48 months). The Building Blocks signify The Irish government accepted the the commencement of those elements in Commission’s recommendations in full; each of the work streams that are including, for the most part, its considered key to the overall reform recommendations on implementation. process. Launching involves the Commendably, the government has moved implementation of those essential elements quickly on implementation planning. In with a view to laying concrete foundations December, and signalling a break with for reform. Scaling refers broadly to tradition, it published some detail on the continuation of reforms in the first two implementation structures, together with a phases and commencement of most of the four-year plan for the roll-out of the other elements in each of the work streams. Commission’s recommendations. Consolidation refers to the completion of ongoing reforms and the remaining Unfortunately, the Implementation Plan is a elements in each of the workstreams. Such dense document. It is not written in a style phasing is, of course, entirely sensible that will be easily accessible to the insofar as it essentially reflects a scale of interested reader. There is also a concern implementation priorities. It is a pity, that the implementation structures are more however, that it is obscured by terminology complex and government-dominated than such as “Launching” and “Scaling” that can they need to be. The combination of these only serve to confuse the non-specialist two aspects may yet serve to obscure and reader. dilute the substantive implementation of the Commission’s recommendations. A more substantial challenge lies in the manner in which the individual actions are Helpfully, the Implementation Plan bundles presented in each of the Phases. The Plan the recommendations into five distinct does not provide a text which engages the workstreams, consisting of: leadership and reader with the substance of pertinent accountability; people; structures and Commission recommendations and the operations; independent oversight; and implementation actions that will be taken partnerships. Rather confusingly, however, on them in each Phase. Instead, it presents they are complemented by three complex tables that merely state the “enablers”, namely: change capacity; actions that will be taken in each Phase, communications and engagement; and grouped together under the separate legislation. These are presented as workstreams. The individual actions are “enablers for the overall success of the cross-referenced to the relevant programme”. However, apart from listing paragraph numbers in the Commission’s the legislative measures required to report. It follows that the user has to read implement some recommendations, there is the Implementation Plan alongside the no further explanation of what these Commission’s report and, typically, engage enablers will embrace beyond what is in tedious and disruptive reading of stated in the individual workstreams. several discrete parts of that report for each implementation action. To complicate

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KLS Criminal Justice Notes January 1, 2019 matters further, the user will have to move literally do no more than state a backwards and forwards across each of commitment to: identify requirements for the Phases in order to get a coherent grasp Garda security and intelligence capability; of the actions on any single element within conduct a legislative review for national a work stream, or even of the workstream security; implement national security review as a whole. The implementation actions for findings; and draft/enact a Bill for an the 2019 Phases (Building Blocks and “independent examiner”. The lack of detail Launching) alone are further broken down on what is envisaged on each of these into separate quarterly phases. While the actions leaves substantial scope for the greater detail is welcome from one government to pursue its own political and perspective, the overall effect is to render security interests under cover of the material more complex and inhibiting. implementing the Commission’s reform recommendations. The check-box style of the Implementation Plan may serve management needs of The difference in treatment of the government and the implementation independent examiner, relative to the other bodies, but they will do little for the wider components of the national security plans is interests of transparency, community also revealing in this context. The engagement and public awareness of the independent examiner is intended as a changes that will be rolled out under cover form of oversight in respect of national of implementation. Arguably, they render it security (a vital substitute for mainstream more difficult for interested observers to oversight mechanisms). However, the assess whether the Implementation Plan enactment of the necessary Bill to establish delivers fully on the substance and spirit of the office is scheduled for the last Phase the Commission’s recommendations. The (Consolidation) of the Implementation Plan. heavy focus on the chronological phase in By contrast, the establishment of the which a topic will be addressed, at the Strategic Threat Analysis Centre and the expense of substantive detail on the appointment of a national security substance of what is planned, leaves much coordinator are scheduled for the first scope for implementation by box-ticking. Phase (Building Blocks). The lack of detail on the substance of the boxes also leaves scope for more The Commission strongly emphasised the controversial reforms to be progressed importance of human rights for all aspects without generating the public attention and of policing, including oversight. scrutiny that they deserve. The treatment of Commendably the Implementation Plan national security and human rights also foregrounds human rights. respectively is illustrative of these concerns. Nevertheless, it is lacking in the detail necessary to convince that the thrust of the The Commission’s recommendations on Commission’s recommendations will be national security are significant and realised. The Commission, for example, controversial, especially for the Garda recommended the adoption of statutory function, organisation and oversight. The codes of practice to inform the exercise of only real hint of the roll out of these police powers in the interests of fairness recommendations in the Implementation and transparency. In the Implementation Plan is two lines on the establishment of a Plan, however, this has inexplicably Strategic Threat Analysis Centre, coupled become the codification of legislation on with a few scattered statements that arrest, search and . This suggests

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KLS Criminal Justice Notes January 1, 2019 that the codes would merely define the basis of its capacity to act as “a clearing existing police powers in question, rather house for issues that cannot be resolved” than provide detail on how those powers by the Group, and to overcome blockages should be exercised. experienced in the implementation of the Plan. An alternative interpretation is that it Among its human rights recommendations, is there to protect vested political and the Commission also called for the institutional interests in the sensitive police establishment of a human rights adviser to reform process. assist its proposed oversight body (currently the Policing Authority) in It is important to recall that there has been assessing policing compliance with human no shortage of enlightened reform rights obligations. In the Implementation proposals on vital aspects of policing in Plan this is diluted to the Policing Authority Ireland from at least as far back as the merely considering the recruitment of a 1970s. These have included the extensive human rights adviser. There is no reference and acclaimed recommendations of the at all to the Authority (or its replacement Morris Tribunal of Inquiry and the copious body) actually appointing such an adviser. recommendations of the Garda It is not until the final Consolidation Phase Inspectorate. However, vested interests that there is a reference to the proposed within the Garda and government have replacement for the Policing Authority managed quietly to ensure that too many assessing Garda compliance with human of them have either not been implemented rights obligations. at all, or have been implemented in a manner that has defeated the motivation It is also worth drawing attention to the behind them. For all their weaknesses, implementation machinery. As noted therefore, the very fact that the above, it appears more complex and implementation machinery has been government-dominated than it needs to be. established and the Implementation Plan The Commission recommended an published is a significant plus. Nevertheless, Implementation Group composed of key there remains the risk that the Commission’s stakeholders from the Garda and the recommendations will meet a similar fate to government. It should be independently many of the recommendations that have chaired by an “individual of high standing, preceded them. At the very least, they are well respected in Irish public life”, and at risk of being cherrypicked in a manner supported by an Office with the that will further tighten the control of appropriate expertise and resources. vested interests at the expense of The government has established the core transparency and human rights in policing. Implementation Group and the supporting The content and style of the Implementation Office as recommended, but it has Plan do not inspire confidence that these appointed one of the Commission members risks will not materialise. as the Chair. Moreover, it has also established “a High Level Steering Board” chaired by the Secretary General of the Department of the Taoiseach (Prime Minister) “to support and guide the work of” the Implementation Group. Ostensibly, this additional Board is justified on the

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