12 April 2016
A six month review of the warrants and orders used by the NCA to seize and retain evidence in its investigations is published today.
The review began in August 2015 after two NCA cases failed, one because 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 was monitored by an Independent Advisory Panel whose separate report is also published in full today. Members of both panels were independent of the cases under review.
The Review Panel set a deliberately high bar to capture every potential issue including ones which were unlikely to be open to challenge at court.
Issues were classified as ‘minor’ if they were unlikely to result in 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 has 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 and in all three cases the defendant has consented. The review did not find any bad faith or misconduct on the part of officers.
NCA Director of Intelligence and Operations Mark Webster said:
“In conducting an investigation or bringing a prosecution, the NCA wants to ensure that material it regards as important evidence can form part of proceedings. We are proud of our conviction record and don’t want any prosecution to fail, especially as a result of something we could do better ourselves.
“This was a robust review, with equally robust independent oversight. I am reassured that the Review Panel and the Independent Advisory Panel have produced an accurate and thorough picture of risk, and that the measures we have put in place as a result are proportionate and fit for purpose. Any deficiencies identified are being dealt with transparently, by way of disclosure. These are live cases which continue to progress. 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 is essential that the NCA retains the confidence of the public and 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, rigorous and exacting.
“We believe this is the first time such a review has been carried out, and we are 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 NCA Non-Executive Director Jane Furniss, and included representatives from the Attorney General’s office, HM Chief Inspector of the HM 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 Panel did not 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 in the Independent Advisory Panel report, has been or is being addressed. Full details of the actions taken are set out in the report.