Westlaw criminal cases update
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R. (Prior) v Police Federation of England and Wales; R. (Cooke) v Police Federation of England and Wales
King’s Bench Division (Administrative Court)
26 January 2026
[2026] EWHC 124 (Admin)
Summary: In a judicial review claim concerning two police federation chairs who were sanctioned for public comments on race and policing, the court found that the first claimant’s suspension was unlawful as the CEO lacked authority to suspend him, the process was procedurally unfair, and conditions restricting his speech violated ECHR art.10. The second claimant’s removal from office was also unlawful due to failure to conduct a proper art.10 analysis.
The claimants (P and C), elected chairs of their respective regional police federations, in joined claims, challenged the decisions of the defendant police federation (PFEW) made under PFEW’s Ethics, Standards and Performance Procedure (Appendix 9).
P had been elected the chair of the Metropolitan Police Federation in 2023. The following year, he gave a GB News interview discussing officer confidence, racism allegations, and two high profile incidents involving Black members of the public. Complaints were made alleging that his comments were discriminatory. The CEO, instead of the national secretary of PFEW, suspended P and initiated an investigation. His appeal against the suspension was dismissed and the suspension was maintained after a review. Following a hearing, P was found to have breached the standards in Appendix 8 of the PFEW Rules and was removed from office as chair, and permanently barred from standing for any PFEW position.
C had been elected chair of the West Midlands Police Federation in June 2018. In December 2024 he posted two comments on X (Twitter) in response to a Channel 4 News report alleging systemic racism in West Midlands Police. After two complaints were received, C was suspended. An Independent Investigating Officer (IIO) was appointed and produced a report finding, amongst other things, a repeated pattern of dismissing discrimination concerns. The Ethics Panel found that the posts had breached Appendix 8 and that C had failed to act in the interests of members who had experienced discrimination. He was removed from office and an eight-month prohibition on standing for re-election, subject to equality diversity and inclusion training, was imposed.
Held
P’s application granted, C’s application granted in part.
P’s grounds of review
Was initial suspension decision ultra vires? – On a proper construction of Appendix 9, para.11 vested the power to suspend exclusively in the national secretary. The CEO had exercised that power without lawful authority. Paragraph 6 permitted substitution only for “exceptional reasons which had to be contemporaneously recorded. Those conditions had not been satisfied. The initial suspension decision was ultra vires (see paras 100, 117 of judgment).
Was suspension appeal decision procedurally unfair? – Natural justice required three core elements: timely disclosure; a genuine and informal opportunity to respond; and impartial decision-making. None of those safeguards had been observed. At the time of the suspension appeal decision, P had not been provided with copies of the complaints, nor had he been informed of the remaining complainant’s identity. The appeal panel had received highly prejudicial material, including assertions that all complainants feared reprisals, P’s comments were “divisive and inflammatory” and that GB News was “dominated by right-wing views”, none of which had been disclosed to P for comment. The CEO, whose decision was under challenge, had reviewed and influenced the Appeal Panel’s responses, compromising independence and fairness (paras 119, 126-130).
Was there a misdirection and procedural unfairness in appeal and review? – The Appeal Panel had wrongly treated suspension as a “neutral act”, which was a clear error of law. Suspension was a coercive measure requiring rights-sensitive justification and consideration of less intrusive alternatives, such as undertakings. The Suspension Review decision was not a genuine de novo determination. No notice had been given, no representations had been invited, and no new right of appeal had been conferred. Materially changed circumstances were not reassessed (paras 137-141).
Was the decision to maintain suspension unreasonable? – Continued suspension was unjustified. P’s comments were fixed and public; no concrete interference risk was identified; undertakings were an obvious alternative. The speech-restrictive conditions (prohibiting media and social media engagement) exceeded PFEW’s powers under para.11, which only authorised restrictions on PFEW duties, not blanket speech restraints. That was incompatible with ECHR art.10 (paras 147-150).
Was the investigation decision unreasonable? – Appendix 9 distinguished informal resolution from formal investigation and reserved the latter for written complaints alleging a “serious breach” that placed PFEWs reputation at risk, while requiring investigations and hearings to be conducted having regard to the rules of natural justice. Although the decision-maker enjoyed a wide evaluative margin, it had to be exercised in accordance with the text and purpose of the Rules and with heightened scrutiny where ECHR rights and elected office were engaged. The contemporaneous record disclosed no structured application of the serious breach threshold to the actual words spoken and no explanation of why informal resolution was inadequate. The investigation decision was unreasonable (paras 156-158).
Were the terms of reference unlawful? – Appendix 9 was a closed, complaint-led process. The investigation had to be confined to the written complaint received. PFEW had unlawfully expanded the terms of reference beyond the complaint (paras 163-166).
C’s grounds of review
Failure to address art.10 – Neither the Ethics Panel nor the Appeal Panel had engaged with art.10, despite it being repeatedly flagged as “arguably pivotal”. That omission was a material legal defect. A structured proportionality analysis was required, covering (i) legal basis, (ii) legitimate aim, (iii) pressing social need, and (iv) less intrusive alternatives. None were provided. C’s posts on race and policing were squarely within protected public-interest expression. The Senior Courts Act 1981 Pt II s.31(2A) did not bar relief. Given the absence of any lawful art.10 reasoning, it was not highly likely that the outcome would have been the same. If art.10 had been properly addressed, several materially different outcomes such as no sanction, guidance only, or targeted training short of removal from office, were realistically available. C’s remaining claims failed (paras 214, 217-220).
Smith v Great Yarmouth Magistrates’ Court
Divisional Court
24 June 2025
[2025] EWHC 1640 (Admin), CLW/26/15/6
Summary: On an appeal by way of case stated, the court upheld convictions for wilful obstruction of the highway contrary to the Highways Act 1980 s.137.
On an appeal by way of case stated, the court considered whether land owned by the appellant (S), which was adjacent to a bridge and which covered much of the approach to the bridge on that side, was a highway for the purposes of the Highways Act 1980 s.137.
S had purchased the land in 1989 and now leased it to a business which stored and sold motor vehicles. A portacabin on site served as the business office. A fence enclosed the cars and portacabin. The approach to the bridge was effectively blocked off, save for a small pedestrian pathway.
S was charged with six offences of wilful obstruction of the highway, contrary to s.137. Three offences were allegedly committed on 25 August 2023 and then again on 8 September, namely by: (a) maintaining the fence; (b) maintaining the cabin building; and (c) placing cars for sale on the land with such permanence. The magistrates accepted that S was not responsible for the fence as it was on the land when he purchased it, and he was found not guilty of the (a) offences. However, taking into account photographic evidence from the local authority, they held that there was sufficient evidence to find that the public had enjoyed the land as of right and without interruption for a full 20-year period for the purposes of s.31, and so S was found guilty of the (b) and (c) offences.
Held
Appeal dismissed.
Relevant law – For there to be a highway, the law required either an express or presumed dedication of the land as a highway and an acceptance of the right of way by the public. An express dedication was a document, such as a deed of grant. A presumed dedication was where the highway had been used by the public as of right and without interruption. That could be a common law presumption or a presumption based on s.31. Section 31(1) provided that “where a way over any land… has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it”. Section 31(2) provided that “the period of 20 years… is to be calculated retrospectively from the date when the right of the public to use the way is brought into question”. The phrase “as of right” meant without force, secrecy or permission, 1999 UKHL 28. The phrase “without interruption” meant there should be no entire prevention of the enjoyment of the right of passage during the 20 years, although temporary interference was permissible (see paras 7-10 of judgment).
Whether magistrates had been entitled to rely on finding that the public’s right to use the land had been brought into question on an unspecified date between the beginning of 1988 and March 1989 – It was accepted that, given a 1988 photograph and S’s evidence that the fence had been erected before he bought the land, it had not been irrational for the magistrates to find that the fence had been erected between the beginning of 1988 and March 1989 and that its erection brought into question the public’s right to use the land. However, S contended that this finding was insufficiently precise to be used in determining whether the requirements of s.31 had been met. That point might have had some purchase if something significant had happened during the 1968 or early in 1969, but if the magistrates were satisfied, as they were, that the land had been actually enjoyed by the public as of right and without interruption since before 1968 until the date of erection of the fence, then the requirements of s.31 were plainly satisfied whether the fence was erected in January 1988 or March 1989 or on any date in between (paras 18-20).
Whether magistrates correctly determined that the evidence showed public enjoyment as of right and without interruption for 20 years to the criminal standard of proof – It was sufficient for the court to have relied on a series of photographs which appeared to show that the bridge had been used occasionally as a through route before and during the relevant 20-year period, coupled with the sub-committee minute. That provided strong evidence that the bridge was used by vehicles from before 1975 to 1982, when the only decision which the sub-committee was being asked to consider was whether the council should spend money to enable the bridge to be used again by heavy, as well as light, traffic. The magistrates’ finding on that evidence was not irrational and was not an error of law (paras 25-26).
R. v Moore
Court of Appeal (Criminal Division)
11 February 2026
[2026] EWCA Crim 209, CLW/26/13/1
Summary: The fact that the City of London Police’s Insurance Fraud Enforcement Department was entirely funded by money from the Association of British Insurers under a sponsored services agreement (SSA) did not render its operation unlawful. That funding arguably fell within the Police Act 1996 s.93 ‘gift’ provision. In any event, there was nothing about the SSA or the way it operated which rendered the department’s prosecution of the appellants an affront to justice such that the judge should have stayed their indictments for fraud and intending to pervert the course of justice as an abuse of process.
The appellants appealed against their convictions for fraud and intending to pervert the course of justice.
The appellants had been found guilty of committing insurance fraud following an alleged road traffic collision.
Before the trial, the appellants applied for the indictment to be stayed on the basis that trying the case would amount to an abuse of process because the Insurance Fraud Enforcement Department (the police unit) of the City of London Police which had investigated the allegations was funded by a sponsored services agreement (SSA) between the police unit and the Association of British Insurers (ABI). The trial judge refused, and the appellants appealed.
The appellants submitted that the fact that the police unit was entirely funded by money from ABI, a representative body for British insurance companies, was unlawful. They further argued that, whether unlawful or not, it risked an improper shift of resources away from other police investigations, compromised police independence and created an appearance of bias.
Held
Appeals dismissed.
Abuse of process – There were two separate limbs of abuse justifying a stay. The first was when a fair trial was not possible. The second was where it offended the court’s sense of justice and propriety, or public confidence in the criminal justice system would be undermined by allowing a prosecution to proceed in those circumstances, such that a stay was necessary to safeguard the integrity of the criminal justice system, R. v Ng (Katie) [2024] EWCA Crim 493, [2024] 1 W.L.R. 3221, [2024] 5 WLUK 113 followed.
Funding arrangement in the SSA – The funding arrangement purported to be made pursuant to the Police Act 1996 s.93, which provided that a local policing body could, in connection with the discharge of any of its functions, accept ‘gifts’ of money or other property, on such terms as appeared to be appropriate. The terms on which gifts were accepted could include providing for the commercial sponsorship of any activity of the local policing body. The SSA had been entered into by the Mayor and Commonality and Citizens of the City of London in October 2018. The issue of independence was addressed in the SSA which stated that “nothing in this agreement shall fetter… the operational independence of the commissioner”.
Analysis – It was not necessary to determine outright the question of the lawfulness of the SSA under s.93. However, it was far from clear that the SSA had been made ultra vires the police authority’s powers. Although the term ‘gift’ was often used to mean the provision of money without any condition attached to it, that was not the meaning given to it by s.93. There was considerable force in considering that the natural meaning to be attached to the word ‘gift’ in s.93 was wide enough to cover the instant situation. There was no guidance which prohibited the provision of cash for investigative purposes.
As for the question of abuse, nothing about the SSA offended the court’s sense of justice and propriety. In particular:
- the money was being provided by the ABI to the City of London Police and not directly to the police unit. It was an arm’s length agreement entered into by the police authority with a duty to consider overall policing needs;
- it was not the only agreement of its type. Similar agreements were being used as an attempt to enhance the amount of money available to investigate categories of crime which otherwise funding might be limited. There was a strong public interest in the police investigating insurance fraud;
- the SSA was transparent: it was in writing and open to inspection;
- the money was being provided to the policing unit by a trade body and not by individual insurance companies. The body had no financial interest in the outcome of an investigation;
- none of the money payable under the SSA had been advanced to further a particular investigation;
- the funding was a fresh revenue stream and did not divert funding from other police investigations;
- the police had clear independence of action guaranteed by the SSA itself;
- responsibility for policing rested firmly with the Commissioner;
- there was no duty placed on the police to investigate only those crimes where the alleged victim was a member of the ABI;
- the amount of money due under the SSA was fixed in advance for the entirety of the contract. There was no reasonable suspicion that there was any incentive element to the money due and paid (paras 24-25).
There was nothing about the SSA or the way it operated which rendered the prosecution of the appellants an affront to justice such that the judge should have stayed the indictment as an abuse of process.
National Crime Agency v GKC (No. 1)
King’s Bench Division (Fordham J)
13 March 2026
[2026] EWHC 573 (Admin), CLW/26/18/7
Summary: The court upheld the making of an unexplained wealth order against the respondent.
There were reasonable grounds for suspicion in relation to the purchase by the respondent, who was in the UK on a student visa and had no declared income in the UK, of two flats without a loan for millions of pounds and in relation to her, or her father’s, involvement in the laundering of profits from scams and illegal online gambling investigated in Singapore, such that the income requirement in section 362B(3)(a) of the Proceeds of Crime Act 2002 (CLW/02/32/5) and the serious crime requirement in section 362B(4)(b) were met and the unexplained wealth order and interim freezing order made against the respondent would be maintained. Both money laundering and the predicate offence of online fraud satisfied the dual criminality requirement. The evidence of the National Crime Agency (NCA) was not flawed by inadequate investigation into obvious lines of enquiry. National Crime Agency v Baker, CLW/20/16/6, [2020] EWHC 822 (Admin), [2020] Crim.L.R. 976, QBD (Lang J), is not authority for the proposition that the NCA had to be able to show that it was genuinely impeded from investigating the provenance of property without resorting to compulsory disclosure. The NCA has a toolkit of informal and formal avenues and powers and must enjoy some latitude as to the enquiries that are considered appropriate. It had made requests for disclosure from the sellers of the flats. It was not obliged to also make information requests, or more formal and coercive applications to the court (e.g. for production orders), in relation to firms of solicitors, prior to making the application. Nor was there any principled basis for saying that the NCA was disentitled from acting on open source information that included references to criminal proceedings and court hearings, and specific details of names, convictions, dates, acts of forfeiture or surrender, and asset valuations. On the face of it, that was reporting information emanating from legal process in Singapore. There was no legal requirement for the NCA to pursue primary, independent or corroborating information from the enforcement authorities. The NCA was also not required to establish ongoing further enquiries since the original application for the orders so as to maintain the orders. Evidence clearly indicating action having been taken to transfer to a third party the entirety of one of the flats, for zero value, that had justified the urgency of the NCA’s application, should not now be airbrushed out of the sequence of events. The respondent had not put forward a single piece of evidence or information to bring into doubt a single piece of information or evidence on which reliance had been placed by the NCA.
R. v McNair
Court of Appeal (Criminal Division)
3 October 2025
[2025] EWCA Crim 1376, CLW/26/12/1
Summary: The judge in a rape trial had not erred in admitting the complainant’s evidence as hearsay under the Criminal Justice Act 2003 s.116 where she had died before trial, the jury had been properly directed, and the complainant’s hearsay evidence was supported by other evidence, much of which was uncontested.
The appellant was convicted of the rape of a woman who lived in the same multi-occupancy hostel as him. The complainant, who was an alcoholic, died before trial, so body-worn camera footage of her complaint when police attended and her ABE interview were admitted as hearsay pursuant to section 116 of the Criminal Justice Act 2003. Evidence was called at trial from a fellow resident of the hostel who had witnessed the aftermath of the alleged rape. Three other envisaged prosecution witnesses who had also witnessed the aftermath could not be contacted or did not attend.
Held – The recorder (in a pre-trial hearing) had been right to admit the hearsay evidence and the trial judge was right to let that ruling stand. Unlike many sexual offence cases, the evidence was not limited to that of the complainant and the defendant. While the recorder had (rightly) had regard to the possibility that the appellant would be able to cross-examine three other envisaged witnesses, the reality was that the evidence of such witnesses would have been unlikely to have assisted the appellant. The suggestion that cross-examination would ‘unearth’ inconsistencies that would necessarily weaken the prosecution case was speculative. The fact that such witnesses were not in the event called did not justify departing from the existing ruling on the hearsay application. The case was one where the reliability of the complainant’s evidence was capable of proper testing and assessment by the jury, and the appellant could (and did) give his account of events in rebuttal of the allegations made against him. The inconsistencies in the complainant’s evidence and matters impacting upon her evidence (relating to her alcohol consumption on the evening in question) did not render her an inherently unreliable witness, nor did they fatally undermine her evidence. Further, the hearsay evidence did not stand in isolation, and there was evidence (much of which was not contested by the appellant) in relation to events before and after the alleged penetration that was before the jury, and capable of supporting the Crown’s case.
R. v Yasen
Court of Appeal (Criminal Division)
17 January 2025
[2025] EWCA Crim 452, CLW/26/12/2
Summary: At the appellant’s trial for trafficking within the UK for sexual exploitation and three counts of aiding, abetting, counselling or procuring rape following a trial of cases investigated as part of Operation Tourway, which involved allegations of grooming, sex trafficking and sexual abuse of young women between 2002 and 2012 by a number of Kurdish/Iraqi men in South and West Yorkshire, the judge had been entitled to leave evidence of the appellant’s identification by the complainant in a VIPER procedure to the jury.
The appellant was convicted of one count of trafficking within the UK for sexual exploitation and three counts of aiding, abetting, counselling or procuring rape following a trial of cases investigated as part of Operation Tourway, which involved allegations of grooming, sex trafficking and sexual abuse of young women between 2002 and 2012 by a number of Kurdish/Iraqi men in South and West Yorkshire. The complainant had picked out the appellant during a VIPER (Video Identification Procedure Electronic Recording) procedure as the man who had, on a date between June 2004 and June 2005 when she was in her early teens, driven her from Dewsbury to a flat in Wakefield where she had been raped by a number of men, then to Sheffield where she was again raped by a number of men, and then back to Dewsbury. During the appellant’s trial, the judge rejected a submission of no case to answer.
Held – (1) It is a relatively difficult task for a suspect who has taken part in and been identified during a VIPER procedure (which is not itself criticised) to persuade a judge that, despite that, the identification evidence is so weak that it should not even be left to the jury. That is particularly so where, as here, it is not a fleeting glance case. The complainant spent a good deal of time with the driver, during daylight hours. She had picked the appellant out, notwithstanding that it had been 12 or 13 years since she had seen him, and notwithstanding that, as she said, they “were a difficult bunch” because of the similarity of the faces she had been shown. The photograph used in the procedure had been taken in 2005. At no stage did she express any doubt about the accuracy of her identification. The complainant got a number of other things, such as the appellant’s nationality and age, broadly right before she had even taken part in the identification procedure. Issues such as whether the complainant had been intoxicated with drink and drugs at the time of the offending, and that she had said the driver was shorter than her when the appellant was five inches taller than her, went to the weight of the identification evidence and were properly left to the jury. This was also a case where there was at least some other supporting evidence for the identification. When taken together, the location evidence showed that the appellant lived very close to one relevant location, possibly at or close to a second location, and visited the general area of the third relevant location. Circumstantial though such evidence was, it was impossible to say that it was properly to be ignored altogether, particularly in its cumulative effect.
(2) An argument that the judge had erred in refusing to admit evidence that, on another occasion, when looking for a completely different person, encountered at a different time and in different circumstances, the complainant had identified a volunteer and not a suspect at a VIPER parade, was unarguable. It was irrelevant to the reliability of her identification of this appellant in these circumstances. Every identification is different, because the surrounding circumstances will always be different. The complainant attended numerous VIPER parades. There were a total of 35 suspects in those parades. She was able successfully to identify 32 out of those 35. If the appellant had been able to rely on one of those three unsuccessful identifications, the Crown would have been entitled to respond by relying on all the successful ones. The debate would then have become hopelessly mired in satellite issues.
CLW comment
This judgment exemplifies the tendency of the criminal courts to treat identification doctrine as settled rather than scientifically contested. As Roberts & Ormerod have argued, the law has remained largely untouched by decades of research on memory and perception (‘Improving Identification Procedures; Time for Devlin 2.0?’ [2024] Crim.L.R. 325). The wrongful convictions of Andrew Malkinson (CLW/23/31/1) illustrated (as Roberts also observes in his commentary to this judgment at [2026] Crim.L.R. 241) the risk that an apparently strong eyewitness identification (or even multiple identifications) can be wrong, prompting a public inquiry. In the meantime, as the present case illustrates, the criminal courts continue to adhere to the orthodox Turnbull framework (R. v Turnbull [1977] Q.B. 224, CA) and to regard compliance with PACE Code D, the availability of cross examination, and judicial directions, as adequate safeguards.
The court placed weight on a number of factors that scientific research has shown are not guarantors of reliability. First, it emphasised the complainant’s extended opportunity to observe the driver at close quarters during daylight, repeatedly contrasting this with a fleeting glance case. But as Roberts & Ormerod have pointed out (at p.333), while “intuition might suggest that an identification made by a witness who was able to observe the offender at close quarters for a significant period is likely to be reliable… the miscarriage of justice in Malkinson, and many DNA exonerations in cases involving sexual offences in the United States, demonstrate that this assumption will sometimes be wrong”. There are particular risks when there are features of trauma or vulnerability, or where there are external factors that give rise to the possibility of distortion, such as alcohol consumption.
Secondly, the court treated the complainant’s ability to pick out the defendant after a 12 to 13 year interval as a factor that “suggested, perhaps even quite strongly suggested”, that her identification was accurate (at [23]). This proposition is not supported by the scientific literature, which shows that memory is not a stored image that can be “retrieved” intact. Instead, remembering is an active, constructive process that may be influenced by post event information, unconscious inference and stereotyping. The Turnbull direction tells juries to consider the passage of time but does not explain how they should do so and it does nothing to educate juries about how memory works.
Thirdly, the court also treated the complainant’s confidence as probative. She initially described herself as “100 per cent” sure. Although she later moderated this under cross-examination to “not thinking” she was mistaken, the court considered it significant that she had not expressed any doubt about her identification. Yet it is well-established that confidence is not a reliable indicator of accuracy and, as Roberts & Ormerod note, it is particularly vulnerable to reinforcement effects and perceived expectations. Similar difficulties arise from the court’s reliance on the complainant’s remark that the VIPER faces were a “difficult bunch”, because of their similarity. While the court regarded this as underlining the strength of the identification, the cognitive research indicates that similarity among foils increases the risk of a witness selecting the person who most resembles their mental image, even if the perpetrator is absent from the array.
The court also did not address the fact that the witness and suspect were of differing racial appearance, yet there is strong empirical evidence that people are significantly less accurate at identifying unfamiliar faces in such circumstances (known as the “other-race effect”, see Meissner & Brigham, ‘Thirty years of investigating the own-race bias in memory for faces: A meta-analytic review’ (2001) 7 Psychology, Public Policy, and Law 3). Nor did it acknowledge the risk of unconscious transference (referred to by Australian courts as the “displacement effect”) – where a witness correctly recognises a face but misattributes the context in which it was encountered (see Roberts & Ormerod at p.334).
The decision in the present case is unsurprising given the criminal law’s adherence to the frameworks and tests established by Turnbull and R. v Galbraith [1981] 1 W.L.R. 1039, CA. Yet as the Malkinson miscarriage of justice highlighted, the risks inherent in eyewitness identification have not been eliminated by judicial warnings, cross examination or Code D formalities. The ongoing Malkinson inquiry offers a significant opportunity to rethink the assumptions that have long underpinned identification evidence and to ensure that it is evaluated in light of what is now known about the malleability and fallibility of human memory.
Natalie Wortley
DPP v Óg Ó hAnnaidh
Divisional Court
11 March 2026
[2026] EWHC 540 (Admin), CLW/26/10/3
Summary: A failure to obtain the required consent of the Attorney General to charge the respondent, a member of the band Kneecap, with an offence contrary to section 13(1)(b) and (3) of the Terrorism Act 2000 rendered the charge a nullity, as a result of which no written charge was issued within the six-month time limit for summary offences under section 127 of the Magistrates’ Court Act 1980 and the judge was right to hold that he had no jurisdiction to try the offence.
On 20 May 2025 the CPS made a charging decision and provided it to the police, authorising the prosecution of the respondent for an offence allegedly committed on 21 November 2024 contrary to section 13(1)(b) and (3) of the Terrorism Act 2000, as stated in the written charge. This constituted the consent of the DPP but lacked the consent of the Attorney General, which was required under section 117(2A) of the 2000 Act because the offence the DPP wished to prosecute had been committed “for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom”.
On 21 May 2025, the police issued a written charge and requisition pursuant to the procedure in section 29 of the Criminal Justice Act 2003, and sent it by first-class post to the respondent.
On 22 May 2025, more than six months from the time when the offence was allegedly committed, the Attorney General gave the DPP permission to consent to the prosecution, and on the same day a second written charge and requisition in the same terms as the first was issued by the police and posted to the respondent.
Held – (1) Proceedings were instituted for the purposes of section 117 of the 2000 Act when the first written charge was issued on 21 May 2025. However, that was a nullity because the consent of the Attorney General had not yet been obtained. It followed that no written charge was issued within the six-month time limit for summary offences under section 127 of the Magistrates’ Court Act 1980 and the judge was right to hold that he had no jurisdiction to try the offence. There is no reason why the word ‘instituted’ in section 117(2)(a) of the 2000 Act should be construed as having a different meaning to the word ‘institute’ in section 29(1) of the 2003 Act, which provides “(1) A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a ‘written charge’) which charges the person with an offence”.
(2) Observed: If the ‘institution’ of proceedings occurs when the written charge and requisition are issued, then that will not only affect summary offences but may include much more serious crimes. Where the offence is either way or on indictment, it will be possible to continue to prosecute the case because there is probably no impediment, save perhaps if an abuse of process is involved, to starting again from the point where the proceedings were a nullity because of the lack of consent with law officer permission. This issue was left open in R. v Lambert, CLW/09/38/3, [2009] EWCA Crim 700, [2010] 1 W.L.R. 898, CA, but the court said that the Crown Court in that case could reconstitute itself as a magistrates’ court and hold a new plea before venue hearing.
Key cases cited: Applied – Price v Humphries [1958] 2 Q.B. 353, DC; R. v Lalchan, CLW/22/26/1, [2022] EWCA Crim 736, [2022] Q.B. 680, CA. Considered – R. v Welsh and ors, CLW/15/40/1, [2015] EWCA Crim 1516, [2016] 4 W.L.R. 13, CA; Brown v DPP, CLW/19/17/2, [2019] EWHC 798 (Admin), [2019] 1 W.L.R. 4194, DC; DPP v McFarlane, CLW/19/30/5, [2019] EWHC 1895 (Admin), [2020] 1 Cr.App.R. 4, DC.
R. (Thompson and another) v Commissioner of Police of the Metropolis
King’s Bench Division (Administrative Court)
21 April 2026
[2026] EWHC 915 (Admin), CLW/26/19/11
Summary: Lawfulness of live facial recognition technology in London to locate “sought persons”, whose images are placed on one or more “watchlists”.
The defendant police commissioner deploys live facial recognition technology (LFR) in London to locate ‘sought persons’, whose images are placed on one or more “watchlists”. For those who are not on a watchlist, the deployment of LFR involves no prior collection and storage of data and, where they are not matched with someone who is on a watchlist, their image is almost instantaneously deleted. The defendant’s policy governing the use of LFR provides that LFR can only be deployed: in a permitted use case (supporting the policing of ‘hotspots’, supporting protective security operations, or locating people based on specific intelligence); in compliance with rules on watchlist construction and watchlist images; at a permitted location; where an authorising officer has determined that the deployment is proportionate in all the circumstances; and subject to transparency requirements. The inclusion of sought persons on any particular watchlist is “responsive to the particular use case being considered for LFR Deployment”. For example, where the use case is supporting the policing of a crime hotspot, a watchlist will include those persons it is reasonable to suspect would commit the main types of offending that have been or are likely to be committed in the hotspot (which would have been specified in the application for the use of LFR).
The defendant’s LFR policy is both “in accordance with the law” within the meaning of Article 8 of the European Convention on Human Rights and “prescribed by law” within the meaning of Articles 10 and 11. It contains adequate and lawful constraints on where LFR might be deployed, and is sufficiently clear as to how it might be operated so as to avoid arbitrariness. Where a person is added to a watchlist on suspicion of criminality that amounts to one or more relevant hotspot offence types or because they are subject to court orders having been charged or convicted of such an offence, there is a link between who is on the watchlist and the area in which LFR will be deployed. For those categories of person included on watchlists not through any link to the location of an LFR deployment, viz serious criminals, those wanted by the courts and offenders subject to multi-agency public protection arrangements, there is overall protection against arbitrariness by virtue of other requirements of the policy, namely the reason for the deployment and the proportionality requirement. The section of the policy dealing with proportionality gives guidance that is specifically and practically linked to the sort of situations that face the police when determining whether to deploy LFR. It also provides a clear and structured approach for decision-makers, acting as an effective safeguard against arbitrary outcomes.
