A police chief would rather face the prospect of jail than obey a court order requiring his force to return computer hard drives to their owner. At issue is the big question of who ultimately makes the law in the UK: the police or the courts. The story began in June last year when former computer forensics expert Jim Bates …
What, no democracy?
"At issue is the big question of who ultimately makes the law in the UK: the police or the courts."
In a democracy, The Law is made by the people either directly or through their elected representatives.
Apparently Britain is not a democracy.
The police have long been deciding for themselves what is legal and what is in the public interest. This attitude is unfortunately encouraged by blanket laws with woolly and poorly drafted scope which give lots of room for abuse. The obvious example is the use of ill-drated terrorism law to prevent protestors photographing police officers, or indeed taking photos at all in some cases.
Our politicians might fool themselves that "common sense" will be applied, but of course thats horsefeathers. Did common sense prevent the same politicans making stupid expenses claims? Why should police be any different ?
If I were the judge, I'd send the silly sod to jail for contempt - which means he stays there till he agrees to abide by the ruling. The police are our SERVANTS, not a law unto themselves.
Black helicopter for obvious reasons.
They don't even know what's on the disk?
Avon Police then
are, I'd assume, campaigning to get the IWF shut down? Not only are they using underhand methods to prevent ISPs meeting their contractual obligations to allow access to the whole internet (that common-carrier thing), but they're also in posession of a vast list of kiddie porn images and related URLs.
And it is a list which they've encrypted, potentially stopping the police from being able to investigate these sites and punish those responsible and so perverting the course of justice.
I am the law!
"we shouldn't be returning indecent images to anyone" Does that include himself? Of course not, for he is Colin Port, Chief of Police!
Which is why we have courts. I hope he gets fired very quickly.
According to Avon and Somerset Police, throughout this matter, their officers "believed that they were acting with good intent and in the interests of public safety and protection".
And so did the officers who murdered Jean Charles de Menezes...
AC, since I don't want to end up on one of Wacqui's databases.
Here we go again...
Plod is subject to the same laws & court orders as the rest of us. It is NOT Plod's place to interpret the laws.
Plod enforces the laws as they are written - M'learned friends & beaks do any necessary interpretation (and often unnecessary re-interpretation).
Whatever the moral aspects of these hard drives, permitting Plod to ignore court rulings and allowing them to enforce the law-as-they-think-it-should-be rather than the law-as-it-is is a fearful step further down the police-state road upon which NuLab seems hell-bent.
The police constable is an idiot and should be fired
It is NOT HIS JOB to determine whether or not to return the items. The court says he must, and therefore he must.
If a police constable refuses to obey any court order, regardless of whether they personally agree with it, then they must be instantly relieved of duty and their position considered by the relevant employment dispute board.
It's quite possible that the police constable should be arrested for theft.
Surely the status of the material is what's at issue?
I may be missing some important issues here, but the answer seems quite obvious to me: If the data is privileged in terms if past cases then it should be returned to the counsel in those cases or destroyed if it's not the only copy. Since drives are cloned for this sort of thing it could probably be done at a physical unit level, very convenient.
This addresses the difference that's glossed over in the judgment. Neither the police nor the courts can decide to destroy the confidentiality of privileged material. The courts should be able to declare who can and cannot claim to be legitimately in possession of such material though.
Completely agree with the 'experts' being able to access the content to help with the investigation, but in regards to images like these, I'm with the cops. I don't see any reason why they should be allowed 'off-site' into the personal residence of someone who could just as easily upload them somewhere else.
Any materials of this nature should not be allowed out of Police sight.
Possession of indecent images
I don't know the full facts of this tortuous saga though I have read the judgements - and heard the gossip. . The immediate issue now is that possession of indecent images is a strict liability offence. In other words, the offence is made out once the fact of possession is proved, irrespective of intent. (s160 Criminal Justice Act, 1988). There are a limited number of defences, but these have to be proved by the accused on the balance of probabilities. s 46 Sexual Offences Act 2003 gives protection to, among others, defence experts, but only for the duration of their specific instruction, not for all time. After that the material should be securely deleted.
The problem for Avon & Somerset Police is that if they pass disks (or copies thereof) on in the belief that they are likely contain sexual images of children they themselves run the risk of the offence of "distribution" under s 1 Protection of Children Act, 1978 - there is a clear conflict here with the Court Order to return the material to Bates. They also run a risk of a further charge of aiding and abetting Bates in the possession offence. Bates, as soon as he receives the disks, commits the possession offence - so he may be unwise to want them back.
All this is irrespective of the Court's earlier conclusion that the extended search of Bates' premises was beyond the scope of the warrant the police had actually asked for.
"the big question of who ultimately makes the law in the UK: the police or the courts"
I hope Colin Port does end up in jail, because perhaps then it will stop the so-called Association of Chief Police Officers from acting as a self-serving group whose only job is to ensure that *they* decide what the law should be
We have Parliament to make the laws, the CPS to prosecute them and the Courts to Judge them. The Police need to keep to their own mandate of "Maintaining the Queen's Peace", not interfere in the actions of the others simply because they don't like what someone may have done.
Which could easily be rewritten as:
"I don't see any reason why they should be allowed into the police's hands, of someone who could just as easily upload them somewhere else.
Any materials of this nature should not be allowed out of an expert's sight."
and makes just as much sense.
I'll give you a reason: The Law. If the law is to be ignored, let's disband the police force.
@Rob - Easy
No Rob, it's even easier. Do what the bloody courts say or go to jail. End of chat.
The filth don't make the laws, they enforce them. A good lot of them need reminding of this fact, clearly even very senior ones.
Wipe the drives?
The physical drives are Mr Bates' property.
The data on them was seized by the courts.
Why not just wipe the drives? The police don't even need to see what's on there. Just boot a PC with http://www.ultimatebootcd.com/ or similar and run disk shredders on the drives. Then return them.
Hey presto! Bates gets his property back, no one has to see any data.
Or am I missing something?
"Common sense dictates to me that we shouldn't be returning indecent images to anyone"
The law and courts dictated to him that they shouldn't have taken them in the first place.
If there isn't *anyone* fit to possess indecent images then what makes him think he and his officers are?
The *data* on these discs is evidence and the defense and their expert computer witness (who fibbed about his qualifications making him about as honest as your average MP) have a right to examine them.
The raid and seizure of this data was a cynical and illegal attempt to disrupt the defense of the associated prosecutions. If Port doesn't return the evidence he should be prosecuted and he should be sacked either way.
Wipe the drives
Um not a Good Idea the cops said that they dont know whats on the drives. Plus what happens if some the people he helped convicted appeal ??
@ Terence Eden
Plod can't wipe the drives - it would be destruction of Mr Bates' property, as the court specifically said they couldn't access the drives.
Furthermore, they do not know which drives contain the 'legally privileged' information in question and which do not, because they took many more HDD than their warrant permitted. Some of those drives could contain Mr Bates' personal data, or data pertaining to other cases.
The only legal courses of action available to the police are to appeal the result of the judicial review and obey the result or to return the drives immediately.
- I'm not sure if you can appeal against judicial reviews. Think it depends on which body did it, but it's definitely very expensive and thus simply not worth it.
I CAN'T BELIEVE THE NO ONE HAS MENTIONED THE CHILDREN!!!!! ZOMG!!!! LOTS OF EXCLAMATION POINTS!!!!!
The Police Are Not Above The Law
What you're missing is the hard drives contain information that is being used in the defence of people accused of serious crimes (and possibly in building a case against the police over certain improprities during Operation Ore if Bates is right). If the police wipe them then they've just denied those people a possible defence.
The same laws only give a defence to possession for people with a legitimate reason. This includes the police, so if they hold onto indecent images when a court has told them not to then they're committing a sex offence.
wipe the hard drives???
The police would love the hard drives to be wiped, they may contain details / evidence of appeals yet to be heard in the operation ore cases still to be heard !!! of which Jim Bates worked upon.
Of course these may contain images, they may be part of the evidence still to be presented.
wake up people, the highups in the police are likley to be very very !!! nervous of the details on those disks being made available to the courts in the coming actions.
If Colin Port really is "looking after the public interest" Then he ought to obey the courts and allow the possible evidence on those disks to come out in open court at a later date or does he have a hidden agenda !!!
I so think me.
What's new ?
"They continued to remove items despite protests by Bates that they were taking away "privileged material" – specifically, material that could not be seized under warrant by virtue of its privileged status in respect of past and ongoing court cases"
Probably they will wipe the 'drives. Thereby destroying evidence of current and past cases.
This is just the police doing what they do rather well: Intimidating people, present and future.
Who is going to arrest the Chief Constable?
Remember the Chief Constable is the law. No one has more seniority than him in his area, if the Police Authority still recognise him as CC then he can countermand any lawful order in his jurisdiction. Then it would be a constables personal decison, the same as any citizen, to arrest the CC, if there was a reasonable belief etc etc.(not going to happen..)
The Judge can order it, but there is nothing to compel an officer to comply. Look at the Babar Ahmad case, officers refused to attend, the Judge could do nothing if the CC did not order it.
Like it or not the Police have the power now, with the ACPO corporation (TM) and the Police Federation making a new power structure unaccountable to the People.
The only thing between us and a proper Police state is the armed forces.
Mines the one with the "where do we go now?" badge
Maybe he's stalling
The CC's actions are very odd. It makes me wonder if the police have in fact done anything to the drives already. There was a notorious case (in the 70's, I think) where the plods prosecuted someone for owning what they considered porn. They were so certain, they'd win, they destroyed it all before the court case. Unfortunately the court and jury decided there was nothing wrong with it...
"We have Parliament to make the laws"
You mean the oligarchy known as the govt? The same govt who passed over 3000 new laws in 10 years - one of the worst ones is the reason for this discussion? The same govt that are right up shit creek for "snoutgate"? Shall we mention Iraq and 1.5 million people protesting? The biggest protest in UK history and what happened? Nothing.
In short the political system in the Uk works like this - get a big enough majority (even if only 22% of people voted for you) and then do whatever the hell you like for 5 years.
"the CPS to prosecute them"
Its worth bearing in mind what CPS stands for - CROWN Prosecution Service. ie the CPS act in the CROWN'S interest and ONLY in the Crown's interest. The Crown = the govt/state to all intents and purposes. That's why people like Bendy Wendy Alexander didn't get prosecuted after ADMITTING they broke the law and that's why none of the "snouties" will get jailed either.
"and the Courts to Judge them"
The boss of whom is appointed by? Yep you guessed it, the govt.
The police are just one part of a very very broken political system....
And *no one* has looked at the hard drives for this kiddie porn the Chief Constable is *convinced* is on there.
This has nothing to do weather they *should* be returned but has everything to do with proving his idea valid. It has not been done.
Now I know getting people to do this work is expensive and difficult but, let me just repeat, he *is* the Chief Constable. The highest ranking law officer in the county. That may not mean much to our Merkin friends but in the UK that is about as high up the food chain as it goes (you don't get elected to it). I imagine he might have a discretionary fund he could dip into for things like this.
Yes there are a lot of drives. So the sooner they got started, the sooner they might find something. Or not.
And as in the UK judges judgements (like that of our Merkin friends) interpret laws and form case law it is the Legislature (both Houses of Parliament) and the Judiciary which make law. The Policy have *no* part in this. A fact some of them seem to be having trouble remembering.
Thumbs up for the judge.
I hope he ends up in jail where he belongs. The police are far too quick to point out they don't care why you've done something, you've broken the law and you've been arrested for it.
It's long overdue for them to face the same attitude in return.
One thing my father always told me, and it's advice I passed onto my kids, never trust a police officer that wants to be your friend. He's after something and whatever that is certainly won't be a good thing for you or someone you know.
I figured out what he meant when I saw a local pig by a round of drinks for the team he played Sunday league football with. He left to go on duty and returned to wait for each of them with a breathalyzer. I don't know how many ended up over the limit, that was still their own fault, but it gave a clear, concise example of why you should never trust the police.
That sort of example is also precisely why not a single one of us will have an ounce of sympathy when this guy gets his due for thinking he's above the law.
This is an extract of the below report (link)
"The Bates Judicial Review (of his second arrest) produced an order, which we have on file, instructing the police to return his property. Firstly this was a 'consent order' - meaning that the Avon and Somerset police legal department agreed to it and signed their acceptance on the Chief Constable's behalf. Secondly it included a clause stipulating that 2,500 alleged hardcopy indecent images (yes - printed pictures) should be separated, resealed and retained pending agreement on further investigation. The Sun and other stories referred to these as 2,500 hard drives. The Sun and other sources quoting Chief Constable Colin Port’s reasons for not wanting to return this material in ‘the public interest’ ignore the fact that the clause stipulating this condition was included at Jim Bates’ suggestion. "
This link for a more truthful and uptodate evaluation of "What does Colin Port do now"
....for all those times that Bates successfully defended people who the police and CPS just *knew* were guilty.
As usual, going against the establishment view does not ingratiate you with those who wield the real power so one of these days you'll get a metaphorical punch in the kidneys and whack across the back of the legs and end up unable to use your skills (whether backed up by officially recognised qualifications or not) for the betterment of justice.
Don't forget, where CP is concerned most people seem to think that there is no such thing as innocence....
As usual they think they are above the law.
How would that useless Chief Constable feel if Joe Public decided not to obey the law.
Wow they police can seize all your equpiment, then keep it?
The message is being delivered loud and clear.
If you are an expert witness in a child porn case and your testimony failed to please the police they will bend and even break the law to punish you.
Expect all your computers to be rendered useless as their hard drives are seized. Say good by to all your servers, work documents, business records, family photo's, music collection ... and all the backups as well.
You will be branded a child mollester. Accused of collecting child porn. They won't even look to see if any exists that isn't related to court cases because that way they can keep implying its there to be found.
In the future there will be two type of experts .. those very very friendly to the police and those afraid to show up in court.
But that's ok, is you are accused you much be guilty anyway, and why should guilty people be allowed the luxury of a fair trial.
Keep your heads down and your criticism anonymous
Just imagine how much money was spent investigating Bates in order to give them grounds to 'remove' his expert status and then raid his home on the basis that he was no longer an expert and hence had data that only an expert can legally have.
Keep your heads down and your criticism anonymous
So if the head pig tells you not to do some thing the court tells you to do its ok? Whats next a note from the head pig not to pay child support ?
"We don't know what's on these hard drives, but it is highly likely they contain indecent material going back to the 1990s. They were found with over 2,500 hard copies of child abuse images and they must have come from somewhere.
You dont know. You have a hunch there is that data on those drivers........
What are we paying tax for again?
Jim Bates showed that the evidence for Op Ore was flawed, even the americans prosecuted their officers for falsifying the evidence, yet in the UK many were comvicted / co-erced / commited suicide while being completely innocent, due to police "pressure" and the threat of "making it public", Jim stood up for the innocent and showed the flaws, so he's not exactly on Avon and Somerset's xmas card list, like with Alan Turing, the more they discredit the truth, the better it makes them look rather than admit they were wrong. Notice how quiet CEOP are on this? it was their officers, in the days of the Paedophile Unit, who "left out" large chunks of evidence that showed the flaws...you know who you are but still accepted the MBE's .
Isn't everyone who requests an appeal "defying" the courts?
just a sec... what?
@ Ted Treen: Nope that's 100% wrong. The law as its written depends on the police to interpret and apply it, obvious if you took a second to think about it. Unlawful violence? behaviour that is not orderly? "Dishonest" appropriation? All offences that cannot be enforced without interpretation.
@ Richard: As someone has already implied - If a court orders you to do something unlawful should you comply even though it is YOU not the court that is committing an offence by complying?
@ Graham Marsden ... The cops are there to ENFORCE the laws as well. If, as this case may be, a judge orders you to break a law how does that work?
@ John Murgatroyd: When they come for your warez just tell them its priviledged and they should take your word for it?
The interesting thing here is the protection of expert witnesses from prosecution when they have images the posession of which is an offence of strict liability. I'll try and explain the salient point of this story, some people seem to have missed it.
If you have kiddie porn in your possession you commit an offence. End of
You MAY have a defence IF you have the porn because you are either the police/cps/court and it is evidence in a court case.
Or you are an expert acting on behalf of the court as part of a court case.
What's happened here is that the "expert" is no longer an expert. So can/should he still be able to avail of that defence?
Distributing kiddie porn is an offence as well. The only defence being you were giving it to the police/cps/court/expert working for the court.
And if this guy no longer fits that catagory....
No one tell the porn mongers - all you have to do is lie about your credentials and give evidence and then you get to keep the kiddie porn risk free!
Peter Sommer.. why does that ring a bell?
Peter, you've stated that "s 46 Sexual Offences Act 2003 gives protection to, among others, defence experts, but only for the duration of their specific instruction", but the Act doesn't make any mention of specific instructions.
The actual text reads that a defence exists if... "it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world".
It seems reasonable that an expert witness (working on several cases at any time, and keeping records where potentially needed for appeal proceedings, or for research etc) would have many diskloads of dodgy material around at any moment. To take those records away from an expert witness would substantially damage their ability to follow their trade, or to defend their reputation if accusations were subsequently made against them.
I was surprised you didn't recognise that, until I realised that you and Jim Bates have been feuding for many years ( www.theregister.co.uk/2001/12/11/death_of_an_expert ). I'm not qualified to express a view on who is the better expert, but your credibility would stand better if you declared your potential interest in seeing a bitter rival brought down.
Re: What, no democracy?
AC wrote: "In a democracy, The Law is made by the people either directly or through their elected representatives."
Not so. Most law is common law, not statute. Common law is, pure and simple, judge-made law, the bete noire of the American right wing.
So who's betting that in the end the police decides to return the disks but they suddenly cannot be found anywhere. Lost? Destroyed? Reused by the BOFH because they erroneously appeared on his inventory list? Oh well...
We need a "proud eagle" icon, because .... Fatherland!
Colin Port is........
an arsehole anyway. Arrogant and deserves jail for contempt.
@ Peter Sommer
"I don't know the full facts of this tortuous saga though I have read the judgements - and heard the gossip. . "
In this case, of course, what is not being said is most interesting. No one in authority does this sort of thing unless they have a lot to hide. And the pathetic justification for not returning the disks suggests that the police are running out of excuses. If the police are really worried that they might be charged for distributing porn, will they also refuse to search a shoplifter in case they end up handling stolen property?
I hope the press, with the Register to the fore, are keeping a close eye on this one. There are the makings of a really big scandal brewing....
> The police are just one part of a very very broken political system....
Yes, I agree entirely, and when you have the Police deciding what the law is, let alone "advising" the Government what the law should be or being asked as part of a flawed consultation process, it doesn't make the system any better.
The point is that each group, Police, CPS, Judiciary, Parliament should stick to their own areas of experience and not try to interfere with the others.
To Colin Port
You are giving us all an impressive example of the arrogance of the Police Service.
Are you too stupid to understand that, once you have been served a court order, you have three options. 1) Appeal against the order. If you have been given leave to appeal, or there is an appeal process. 2) Comply with the order. 3) Go to Gaol for contempt of court.
Should you not appeal or comply then you deserve to go to Gaol for contempt. And as a consequence of this contempt fo the court to lose your position as Chief Constable and be permanantly barred from holding any position within the Police Service.
As the Police Service is quite happy to tell the public, you do not have to like the law. You have to obey it. You too have to obey the law, and you have to be seen to obey.
Your actions are bringing the Police Service into disrepute and should resign.
By the way, it's not Master Bates who is the problem here. It's w@nkers like you.
A response to both AC, Peter Sommer...and Mr Squelprom...as I remain very interested in this issue of "expert" status. First off, it is very clear in the UK system that experts are NOT merely court experts, but may be appointed for the defence as well.
However, I guess it is fair to say that both prosecution and defence experts act "for the courts" in the same way that all legal representatives are regarded as having duties as offices of the court.
The point at issue in the Judicial Review was who decides on an individual's expert status and whether or not it can be abrogated either by courts or the police. My reading of the judgment was that the Judges said very clearly that not even courts can remove that status - and police certainly cannot: that issues of the expert's reputation may go toward credibility of evidence; but nonetheless, cannot revoke expert status.
The second point is in respect of "privileged" status of documents: again, my understanding is that this status resides in the documents rather than in their keeper. Of course the Police should not abandon a search just because someone claims privileged status for documents.
However, there is reference to such status in the PACE code of conduct and as I remember, the leaflet that police are meant to hand out when conducting a search also makes reference to such material. What would be reasonable would be for officers, on being informed of the presence of such material, to refer the matter up the command chain and take legal advice.
Posting here, because ther is a lot of froth flying around right now...very open to anyone legal dropping me an e-mail to discuss further (and maybe get some additional expert legal views on this matter).
The Chief Constable's historical precedent
Would be Lenin's exhortation to the NKVD of the time to "Use your revolutionary sense of justice."
He is *convinced* there are indecent images of children on one (or more) of those 87 hard drives. Clearly the fact he he believes that is all that matters.
Note. Chief Constables have opinions. Judges have opinions. The *difference* is when a Judge expresses his opinion on a matter of law in his court his word is *law*. The CC's is merely his opinion. That the CC appears to believe he is breaking the law by complying with the court is irrelevant. He would be obeying the court. If he believes the court is wrong he should take it up with, IIRC the Lord Chancellors office (who AFAIK regulate the judiciary), the CPS (who presented his case) or the House of Lords. For someone so bent on following the law as he interprets it he seems to have vigorously avoided all obvious *legal* routes to getting his way.
Mine will be the one with a copy of the Gulag Archipeligo in the pocket.
@AC Monday 18th May 2009 20:11 GMT
In a word, Sir - Piffle!
Plod (theoretically) exercises his judgement as to whether certain behaviour is contrary to the law; which is NOT the same thing as re-interpreting/stretching the law. The difference is subtle, but important nonetheless.
If their judgement is palpably wrong they may face civil and indeed, criminal penalties.
To blatantly abnegate the authority of the court is certainly contempt - unacceptable from a Chief Constable.
He desrves the full force of the courts to descend upon him - pour encourager les autres - and perhaps being a timely reminder to Plod that they are public servants - NOT public masters.
As such, they must be seen to completely comply with the laws which they uphold/enforce. Any other course of action should be grounds for dismissal, or at least immediate suspension.
Illegal retention of property
Retention of property by the police is a long-running issue. All too often they take something on very spurious grounds, and then your chances of getting it back are slim at best. Take the situation of police going through facebook pages to find pictures of people with swords/knives etc... They descend on the person's house and confiscate said item, even though it is perfectly legal for them to own them.
Unfortunately the police seem to just make up the rules as they go along nowadays.
breaking the law?
I have a cunning plan,
Mr Port, If you carry out your threat to defy the the JR, then why not just have a look at all the discs
anyway (If you havent already).
After all if you do go to prison (as is likely) then you won't always be wondering -- whats on the those damn discs---
I fully support you sticking your neck out.
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