2.3. TITULO II
2.3.2. ENFOQUES DEL AGUA
The use of provisions contained within the Freedom of Information Act (FoIA)23 as a means of acquiring materials held by public authorities for the purpose of research is a comparatively new tool available to researchers. In this study these provisions were used to address three research questions; whether there was any indication of an occurrence pattern or trend for counterfeit pesticides in the UK marketplace (research Q.2), if this crime is recognised nationally in police rural crime policy or strategy
(research Q.4), and lastly if the police have not engaged with this crime is it being dealt with elsewhere (research Q.8)?
In the comparatively few years since the provisions of the FoIA became available in 2005 they have become recognised as powerful research instruments but ones that perhaps have yet to have their full research potential harnessed (Savage & Hyde, 2014). Understanding the powers that the FoIA extends to citizens, and the limitations in terms of the extent of disclosure and the use of materials that disclosing bodies may impose, is a discipline in its own right. This study is therefore indebted to the work of Brooke and Hislop (2006) for their general guidance on the Act and to Bourke et al. (2012) for their work on the use of FoIA by academic researchers. As a means of gathering data FoIA requests share some of the characteristics of online surveys, a method used elsewhere in this study. However, where they perhaps differ is in the degree of clarity and specificity required in the questions asked; a poorly worded
23 The Information Commissioner’s Office (2015) describes the Freedom of Information Act 2000 as one that provides public access to information held by public authorities in two ways:
public authorities are obliged to publish certain information about their activities; and members of the public are entitled to request information from public authorities. This provision applies to public authorities in England, Wales and Northern Ireland, and by UK- wide public authorities based in Scotland (The Information Commissioner’s Office, 2015). A similar provision exists in Scotland and is contained within The Freedom of Information Act (Scotland) Act 2002.
94
Subject Agency Quantitative (research Q2 & 8)
Qualitative (research Q.4)
Request directed to:
Police Yes (all forces) Yes (all forces) Avon and Somerset Constabulary Bedfordshire Police
Cambridgeshire Constabulary Cheshire Constabulary City of London Police Cleveland Police Cumbria Constabulary Derbyshire Constabulary Devon and Cornwall Police Dorset Police
Durham Constabulary Essex Police
Gloucestershire Constabulary Greater Manchester Police Hampshire Constabulary Hertfordshire Constabulary Humberside Police Kent Police Lancashire Constabulary Leicestershire Police Lincolnshire Police Merseyside Police Metropolitan Police Service Norfolk Constabulary North Yorkshire Police Northamptonshire Police Northumbria Police Nottinghamshire Police South Yorkshire Police Staffordshire Police Suffolk Constabulary Suffolk Constabulary Surrey Police Sussex Police Thames Valley Police Warwickshire Police West Mercia Police West Midlands Police West Yorkshire Police Wiltshire Police Police Scotland Dyfed-Powys Police Gwent Police North Wales Police South Wales Police PSNI
Trading Standards Yes (all councils) No (all councils) Bracknell Forest Council Buckinghamshire County Council Milton Keynes Council
Oxfordshire County Council Reading Borough Council Royal Borough of Windsor & Maidenhead
Slough Borough Council West Berkshire Council Wokingham Borough Council
CRD Yes No Health and Safety Executive
Border Force Yes No Home Office
Table 4.3: Public authorities subject to FoIA requests indicating whether those requests related to the qualitative or quantitative strands of the research
95
survey question may illicit correspondingly poor data but a poorly worded FoIA request may simply be refused by the subject authority (Bourke et al., 2012). It is, in that sense, a highly focused mode of data gathering.
In this study FoIA requests were used to support both the quantitative and qualitative strands of the research where the questions could be addressed using information held by public authorities that are covered by the legislation, as listed in Schedule 1 to the Act (The National Archives, 2015). The authorities that were subject to FoIA requests are shown in Table 4.3, along with an indication as to whether the information they provided was used in support of just the quantitative or both the quantitative and qualitative strands of the study (none being used exclusively for qualitative research). All FoIA requests were made in accordance with government process guidelines (HM Government, 2015).
FoIA requests within the qualitative strand of research were designed to examine the extent to which police forces have considered what constitutes ‘rural crime’ and whether any associated policy or strategy is sufficiently inclusive to accommodate the counterfeit pesticide problem (research Q.4). Given the focus of these questions these FoIA requests were sent to police forces only, as indicated in Table 4.3, who were asked the following:
1. Does your police force have a definition of ‘rural crime’ that it works to? If yes what is that definition?
2. Does your police force have a specific rural crime policy or strategy? If yes please provide me with a copy of that policy or strategy. If this is not possible please tell me why and indicate whether that policy or strategy makes specific mention of counterfeit plant protection products (pesticides).
96
The resulting data was extracted and coded for analysis using proprietary Qualitative Data Analysis Software (QDAS). The method of analysis employed is discussed in section 4.2.1 of the thesis.
In the quantitative strand of the research FoIA requests were used firstly to identify if the data held by the various enforcement agencies with an interest in counterfeit pesticides showed any trend in UK incidence over a specified time period (research Q.2). Secondly this element of the study also provided the opportunity to determine whether, if it transpires that this crime is not being addressed by the police, it is being dealt with elsewhere (research Q.8). To these ends the authorities indicated in Table 4.3 were asked to provide the following data:
1. The number of separate incidents or suspected incidents involving counterfeit pesticides which were investigated by [authority name] in each of the calendar years from 2010-2014 inclusive;
2. The total quantity (by weight or volume) of counterfeit or suspected counterfeit pesticide seized by [authority name] in each of the calendar years 2010-2014 inclusive.
It is important to note that this was not an attempt to estimate what proportion of the pesticides sold in the UK are counterfeit, the problems of the quantitative ‘absolute percentage’ research route having already been noted in the review of the literature. Rather this ‘occurrence’ element of the study was intended to establish if any pattern of incidence over the period since 2010 could be established24.
24 The time period of the FoIA requests was not arbitrary rather it reflected what was likely to be the minimum length of time that the public bodies involved would have retained data. Principle 5 of the Data Protection Act 1988 requires that those subject to the Act do not keep information
97
The various organisations approached with this FoIA request reflects the fact that this is a multi-faceted crime with different authorities carrying responsibility for separate aspects of illegality. Whilst this diversity of responsibility was acknowledged in the introduction to the thesis to better understand this element of the research it is worth further exploring how each agency fits into the enforcement jigsaw;
Police involvement recognises that besides anything else counterfeiting is an act of fraud often perpetrated by organised crime groups. Whilst the police engagement with counterfeiting is discussed in the literature review it is worth noting that there is seemingly a new found recognition of the policing
significance of this crime, well-illustrated by the Intellectual Property Office funding of the City of London Police to bring their longstanding expertise in investigating fraud to bear on the problem25;
Trading Standards are probably the organisation that the general public most closely associate with tackling the problem of counterfeit goods, having as they do an eclectic mix of associated responsibilities primarily derived from
consumer law. As the primary agency with responsibility for maintaining a fair and safe living and trading environment for consumers and businesses they
for any longer than is necessary. Whilst the police generally keep information for seven years (under the national guidance given in the Management of Police Information document) there is considerable variation amongst other public bodies. Had the time period selected exceeded their retention policy it would have given scope for the request to be refused and therefore a period of four years was chosen because this fell within all retention policies.
25 The Police Intellectual Property Crime Unit (PIPCU) is a specialist unit dedicated to tackling “serious and organised intellectual property crime” (City of London Police, 2015). The unit’s primary focus is on counterfeiting offences committed using an online platform; this includes pirated DVDs, CDs and computer software. Whilst the ‘catch-all’ FoIA request to police forces included the City of London Police a separate request was made to this force requesting data concerning incidents of the counterfeiting of pesticides that had been dealt with by PIPCU since it became operational in September 2013.
98
both respond to complaints and actively seek out counterfeit items. Because of their close association with the counterfeiting problem Trading Standards were also included in the qualitative phase of the study as a significant stakeholder26; The Health and Safety Executive, or more specifically the Chemicals Regulation
Directorate (CRD – a subdivision of the former) is the body specifically charged with regulating plant protection products authorised for sale, supply, use and storage in the UK. All pesticides must be authorised by the Chemicals
Regulation Directorate before they can be sold and supplied for use in the UK. CRD would therefore engage with the counterfeit pesticide problem because these are products that, by definition, are not approved and therefore contrary to regulation. As with Trading Standards because of their close association with the problem the Health and Safety Executive were also included in the in-depth interview phase of the study;
The UK Border Force is the law enforcement command within the Home Office and, amongst other things, is responsible for customs controls over goods entering the UK. Their relationship with counterfeit pesticides is less easy to define than the other key agencies but one of their priorities is to deter and prevent individuals and goods that would harm the national interest from entering the UK. The status of a counterfeit pesticide entering the UK is
26 In practice engagement with Trading Standards in the qualitative strand of the study preceded the quantitative FoIA request phase. In the course of the stakeholder interviews it became apparent that Trading Standards held no information on their national recording system with regards to counterfeit pesticides, essentially pre-empting any FoIA request. Given the disparate nature of Trading Standards, being located as separate units within numerous local authorities, undertaking a comprehensive FoIA request would have been a time consuming exercise which the qualitative phase of the research suggested would produce a nil return. For this reason this element of the study was treated as a dip-sample taking in all of all Trading Standards
departments within the sample police force area with a view to expanding the survey if the results suggested that the indications of the quantitative data had been wrong.
99
problematic, at least until an attempt is made to place thatproduct onto the market (particularly if that product is separated into its constituent parts such as active ingredient, packaging, and labelling when entering the UK).
Nevertheless, given their customs and revenue related powers and the duty evading nature of counterfeit goods they frequently engage with such goods at their point of entry into the UK.
It is also worth noting that there are various other peripheral offences relating to counterfeit pesticides, most notably amongst these being those associated with false declarations on shipping manifests27. A significant organisation in understanding the significance and scope of these misdemeanours, the ICC Counterfeiting Intelligence Bureau, was not subject to the FoIA request because it is not an authority listed in Schedule 1 of the Act but was included as part of the qualitative strand of the research28.
Returns from this quantitative strand of the research were almost universally nil, however, this in itself proved useful in research terms and is discussed further in section 4.2.2 which follows and in the relevant section of the results chapter.
27 The risks associated with falsely declared goods on ships manifests are well known; the low flashpoint of some chemicals makes them a serious hazard on board a container ship if they are not appropriately positioned for transit. The Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1990 make specific reference to such goods.
28 The ICC Counterfeiting Intelligence Bureau is a not for profit membership organisation formed in 1985 to undertake anti-counterfeiting activities in defence of industry interests. It has a particular interest in maritime crime which reflects the fact that it is run alongside an
100