A six-month review of the warrants and orders used by the National Crime Agency (NCA) to seize and retain evidence in its investigations has now been published.
The review began in August 2015 after two NCA cases failed: one due to the fact that warrants were challenged successfully by defendants at trial, and one because the NCA determined itself that there were deficiencies with the warrants.
The review looked for potential deficiencies in the warrants and orders in every live pre-conviction criminal NCA case. This covered 326 cases and around 3,000 documents.
The review was carried out by a Review Panel made up of experts in the legal requirements for warrants and orders, and monitored by an Independent Advisory Panel whose separate report has also been published in full. Members of both panels were independent of the cases under review.
The Review Panel set a deliberately high bar so as to capture every potential issue including ones which were unlikely to be open to any challenge at court.
Issues were classified as ‘minor’ if they were unlikely to result in a challenge to the lawfulness of retaining seized material. This included things like saying ‘phone’ instead of ‘Apple iPhone’ on an application. Minor issues were identified in 242 (74%) of the operations reviewed.
Issues were classified as ‘potentially significant’ if there was a significant risk they could result in challenges to the lawfulness of retention of the material seized. This included things like failing to specify the items sought on the face of the warrant. Potentially significant issues were identified in 51 (15%) of the operations reviewed.
None of the issues identified as a result of this review have resulted in any further investigations or prosecutions being discontinued to date, or in any seized material being returned. In three of the cases, the NCA has invited defendants to consent to the continued retention of seized material. In all three cases, the defendant has consented.
The review did not find any bad faith or misconduct on the part of officers.
Proud of conviction record
Mark Webster, the NCA’s director of intelligence and operations, observed: “In conducting an investigation or bringing a prosecution, the NCA wants to ensure that material it regards as important evidence can form part of any proceedings. We’re proud of our conviction record and don’t want any prosecution to fail, particularly as a result of something we could do better ourselves.”
He continued: “This was a robust review underpinned by equally robust and independent oversight. I’m reassured that the Review Panel and the Independent Advisory Panel have produced an accurate and thorough picture of risk, and that the measures we’ve put in place as a result are both proportionate and fit for purpose. Any deficiencies identified are being dealt with transparently by way of disclosure.”
Webster went on to state: “No prosecutions have been discontinued as a result of the findings of this review, and there were no issues of bad faith or misconduct. However, we will never be complacent. It’s essential that the NCA retains the confidence of the public. To do that, we must hold ourselves to the highest professional standards and be transparent in how we address failings when they occur. Our enforcement of the new warrants regime is, and will continue to be, both rigorous and exacting.”
In conclusion, Webster said: “We believe this is the first time such a review has been carried out, and we’re sharing the learning widely with our partners in the policing and justice sectors.”
The Review Panel was made up of a senior NCA lawyer, senior lawyers in the CPS’ Organised Crime Division, external counsel and senior operational managers.
The Independent Advisory Panel was chaired by the NCA’s non-executive director Jane Furniss and included representatives from the Attorney General’s Office, Her Majesty’s Chief Inspector of Her Majesty’s Crown Prosecution Service Inspectorate and a senior policing representative.
The review considered throughout whether historic cases should be included in its scope and sought counsel’s advice on this issue. As the Review Panel didn’t note any deficiencies which could render a conviction unsafe had a prosecution already been concluded, it remained satisfied with the scope of the review. The Independent Advisory Panel agreed with that finding.
Every issue identified in the review, and indeed in the Independent Advisory Panel’s report, has been (or is being) addressed.
Full details of the actions taken are set out in the report.