|Serious Organised Crime And Police Bill - continued||House of Commons|
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EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
437. The Effects of the Bill on Public Sector Manpower are set out below.
Part 1: SOCA
438. Based on 2004-2005 figures (other than for HMCE which are based on 2003-2004 figures) the costs of staff salary and allowance for SOCA's constituents before it is established for the financial year 2005-2006, are currently estimated at £165M. SOCA's staff costs once it is established are similarly estimated at £165M for each of the financial years 2006-2007 and 2007-2008. The combined staffing of the four precursor agencies that would be expected to transfer is around 4500 - SOCA is expected to have broadly similar numbers of staff.
Part 3: Police powers etc
439. All Police costs relating to the clause on power to stop and search for prohibited fireworks (clause 106) are to do with Police time.
Part 4: Public order and conduct in public places etc.
440. The manpower costs for the clauses relating to Harassment (clauses 116 to 118) are minimal.
441. Nearly all the costs incurred by the clauses relating to religious hatred (clause 119) are manpower costs (see paragraph 428 above).
Part 5: Miscellaneous
442. The additional manpower burden arising from the clause on local policing information (clause 134) is minimal as the information is largely already provided or requires collation from existing sources.
443. All manpower costs incurred by the clauses relating to the Criminal record checks (clauses 140 to 144) will be recovered by charges by the CRB. Manpower costs related to the POVA first checks are minimal. The manpower costs for access to additional databases for each financial year are estimated at £0.4M.
444. Pension transfer costs relating to the clauses on Royal Park (clauses 138 and 139) currently estimated at £3.2M will fall on the DCMS and PCSPS, with £1.2M falling in the financial year 2005-2006 and £1M in the financial years 2006-2007 and 2007-2008 although these costs could be spread out beyond these 3 years. Running costs for 2005-2006 will continue at the same level as before.
SUMMARY OF REGULATORY IMPACT ASSESSMENT
445. 11 Regulatory Impact Assessments (RIAs) have been produced for this Bill either on grounds of cost to the private sector, significant cost to the public sector or where the proposal is likely to attract high levels of political or media interest.
446. RIAs have been prepared for the following provisions in this Bill:
447. The individual RIAs are available on http://www.homeoffice.gov.uk/. The following table summarises the key benefits and costs of provisions for which an RIA has been published:
448. Caroline Flint MP, Parliamentary Under Secretary of State for Reducing Organised and International Crime, Anti-Drugs Co-Ordination and International and European Issues, has signed a statement to the effect that she is satisfied that the benefits of measures for which regulatory impact assessments have been published with this Bill justify the costs.
449. Clause 154 of the Bill provides for commencement. Clauses 135 and Part 1 of Schedule 16 (which relate to Chief Officers' responsibilities for health and safety), together with Part 6 (Final Provisions), with the exception of clauses 150 and 151 will come into force on Royal Assent. Clause 140(4) (which relates to checks on special guardians) will come into force 3 months after Royal Assent. The remaining provisions of the Bill will be brought into force by means of commencement orders made by the Secretary of State or, in appropriate cases, Scottish Ministers.
EUROPEAN CONVENTION ON HUMAN RIGHTS
450. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Home Secretary (the Rt. Hon. David Blunkett MP) has made the following statement:
Chapter 1 of Part 1 - SOCA: Establishment and Activities
451. Chapter 1 of Part 1 establish SOCA. Clauses 32 to 33 make provision about the disclosure of information by and to SOCA (and the use of information by SOCA). Article 8.2 of the ECHR sets out exceptions to the right guaranteed by Article 8 (right to respect for private and family life). In particular, public authorities may interfere with the right "for the prevention of disorder or crime". Disclosures would be for the purposes of the prevention of crime (including its detection). Accordingly, these provisions are regarded as compatible with ECHR Article 8.1.
Chapter 2 of Part 1 - SOCA: Special Powers of Designated members of staff
452. Chapter 2 of Part 1 contains provisions which enable a member of the staff of SOCA to be designated as having all or some of the powers and privileges of a constable either generally or for limited purposes. An employee of SOCA or a person seconded to it might be able to exercise a constable's power of arrest. Such a provision is not considered to be incompatible with the Convention rights. Article 5 of the ECHR sets out the right to liberty and security. Article 5.1 provides that no-one shall be deprived of his liberty subject to exceptions; any such deprivation must be in accordance with a procedure prescribed by law. The exceptions include (Article 5.1(c)) "the lawful detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so". Accordingly, Article 5.1 looks to the purpose of a person's arrest. It does not require that the arrest is conducted by a particular office-holder.
Chapter 3 of Part 1 - Complaints and Misconduct
453. Clause 50 provides that Part 2 of the Police Reform Act 2002, which establishes the Independent Police Complaints Commission ("the IPCC"), has effect subject to the amendments contained in Schedule 2 to the Bill. The Bill amendments require the IPCC and SOCA to enter into an agreement to establish and maintain procedures so that the IPCC has jurisdiction in respect of complaints made against members of staff of SOCA operating in England and Wales (the Police Ombudsman will have jurisdiction over those operating in Northern Ireland). The IPCC and SOCA, as public authorities, will have a duty under section 6 of the Human Rights Act 1998 to ensure their agreement as well as their actions comply with the provisions of that Act. There is as an additional safeguard, in that the new section 26A(2) of the 2002 Act, as inserted by paragraph 8 of Schedule 2 to the Bill, requires the Secretary of State to approve the terms of an agreement.
Chapter 1 of Part 2 - Powers of DPP
454. This Chapter confers on the Director of Public Prosecutions and the Director of the Revenue and Customs Prosecution Office powers to require persons to answer questions and provide evidence which are similar to the powers conferred on the Director of the Serious Fraud Office by section 2 of the Criminal Justice Act 1987, as amended. Clause 59 prevents a statement made in pursuance of a requirement to answer questions from being used in criminal proceedings against the person who made it. There are exceptions in the context of perjury and previous inconsistent statements. Accordingly, the privilege against self-incrimination which Convention jurisprudence has determined is part of ECHR Article 6 (right to a fair trial) is not contravened by these provisions.
Chapter 2 of Part 2 - Offenders assisting investigations and prosecutions
455. Chapter 2 of Part 2 of the Bill makes provision to allow prosecutors to offer offenders immunity from prosecution in return for the provision of assistance and for the court to reduce sentences for offenders assisting investigations and prosecutions. Since the aim of this Chapter is to place the accepted existing common law practice of 'Queen's Evidence' on a statutory footing, the provisions should not lead to the breach of a person's rights under the ECHR, should such considerations arise.
Chapter 3 of Part 2 - Financial Reporting Orders
456. Clauses 69 to 73 make provision for a new ancillary order, available to the court when passing sentence in relation to certain specified offences. The order will require the offender to provide financial information, of a kind and in a manner specified by the court, to a specified person. The clauses set a maximum for the duration of an order of 15 years for a determinate sentence and 20 years for a non-determinate sentence. It will, however, be for the individual sentencer to fix a period that is proportionate to each individual case.
457. The order is discretionary in nature, and will only be imposed where the court is satisfied that the risk of re-offending is such as to justify it. The personal nature of the financial information that may fall to be included in a report is such that Article 8 ECHR may be engaged. However, that right is not unlimited, and interference will be justified if it in accordance with the law and necessary for (among other things) the prevention of crime. Since prevention of re-offending will have been identified by the court as justifying the order before its imposition, the provisions do not breach Article 8.
Part 3 - Police Powers etc.
Powers of arrest
458. Clause 101 inserts new sections 24 and 24A into the Police and Criminal Evidence Act 1984 (PACE). Those sections contain a power of arrest for constables and other persons respectively. Use of the power of arrest clearly engages the right to liberty which is guaranteed by Article 5 of the ECHR, and may possibly engage with the right to respect for family life guaranteed by Article 8. Article 5(1)(c) of the ECHR allows "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on a reasonable suspicion of having committed an offence or when it is reasonably considered necessary to do so to prevent his committing an offence or fleeing after having done so". Under the new powers, constables will only be able to carry out an arrest if they have a reasonable suspicion that an offence has been or might be committed, accordingly the Government believes that the provision is compatible with Article 5. Under the new section 24 of PACE any arrest would have to be necessary to meet one of the specified objectives (which broadly reflect the existing general arrest conditions in section 25 of PACE). As a result, any restriction on the rights protected by Article 8 will satisfy the requirement that such a restriction is "in accordance with the law". Additionally, the purpose of the new provisions is self evidently designed to meet a legitimate objective, the reduction of crime or disorder and the efficient prosecution of offenders and is considered a proportionate response.
459. Clauses 104 and 105 enable magistrates to grant "all-premises" and "multiple entry" search warrants. An "all-premises" warrant would permit the search of all premises owned or controlled by a specified individual where it is not possible to identify all such premises at the time of application for the warrant. The "multiple entry" warrant would allow the police to enter premises more than once during the life of the warrant.
460. The search of premises would engage the right to respect for family life guaranteed by Article 8 of the ECHR. The interference pursues the legitimate objective of detecting and preventing crime in a proportionate manner. The provisions include a number of safeguards. First, the police will only be able to obtain a warrant if they satisfy a magistrate that it is necessary and the magistrate will have to consider in each case that the use of the powers is proportionate. Second, each entry on to premises under a "multiple entry" warrant and each entry onto premises not listed on the face of an "all-premises" warrant would have to be authorised by a police officer of at least the rank of inspector.
Powers to take photographs outside a police station
461. Clause 107 gives the police additional powers to photograph people who have been arrested or given fixed penalty notices. Schedule 8 extends the powers to community support officers and, in a limited way, to accredited persons. The taking of a photograph engages the right to respect for family life guaranteed by Article 8 of the ECHR. It is considered that the new provisions is justified under Article 8(2). They closely mirror the existing provisions which deal with the taking and retention of fingerprints and DNA samples. The compatibility of that regime with Article 8 was recently confirmed by the House of Lords in R (S & Marper) v Chief Constable of South Yorkshire, 22 July 2004. The taking of fingerprints or DNA samples involve a greater interference with Article 8 than the taking of a fingerprint. Additionally, the purpose of the new provision is self evidently designed to meet a legitimate objective, the reduction of crime or disorder and the efficient prosecution of offenders and is considered a proportionate response.
Power to take fingerprints elsewhere than a police station
462. Clause 108 gives the police additional powers to take fingerprints from a person who has not been arrested and is not held in police detention. Taking fingerprints engages the right to respect for family life guaranteed by Article 8 of the ECHR. The interference with Article 8 would be prescribed by law and is a proportionate measure aimed at the legitimate aim of the prevention of disorder or crime. Fingerprints taken under this provision may not be retained by police.
Power to take footwear impressions
463. Clause 109 gives the police additional powers to take an impression of a suspect's footwear. Schedule 8 extends the power to detention officers. The taking of a footwear impression engages the right to respect for family life guaranteed by Article 8 of the ECHR. The Government considers that the new provisions would be justified under Article 8(2). They would closely mirror, and be less intrusive than, the existing provisions which deal with the taking and retention of fingerprints and DNA samples, which, as noted above, has been held by the House of Lords to be compatible with the ECHR.
Fireworks offences: new stop and search powers
464. Clause 106 would give the police powers of stop, search and seizure in respect of two offences created by the Firework Regulations 2003 (S.I.2003/3085) (2003 Regulations) made under the Fireworks Act 2003. Any intrusive search has the potential to contravene Article 8 in that it constitutes interference with privacy. However, in this case the search is directed towards the prevention of crime and fully justifiable on that basis. It is also in the interests of increasing public safety. No stop and search can take place unless there is reasonable suspicion that the relevant articles are in possession of the person to be searched.
465. Article 1 of the First Protocol may also be engaged as an officer may seize any items he finds during the search which are made or adapted for use in connection with the offences under the 2003 Regulations or intended by the person having them for such use. This seizure is justified as items will only be seized if their only use is in connection with the commission of an offence or the person intended to use them in that way.
Additional powers for Community Support Officers
466. Clause 113 and Schedules 8 amend Part 1 of Schedule 4 and Schedule 5 to the Police Reform Act 2002 to further empower community support officers and accredited persons where those powers are expressly designated on them by their chief officer of police. The new powers which may now be designated on community support officers and accredited persons include the power to search individuals who they are detaining or accompanying to a police station either for items that may be used to assist escape or, where the person appears to be a danger to themselves or to others, for items that may be used to cause physical injury. Exercise of the power to search individuals and seize and retain certain items could engage Article 8 and Article 1 of Protocol 1 to the Convention. Any interference with Article 8 is considered to be necessary and proportionate for the prevention of crime and for the protection of the rights and freedoms of others and any interference with Article 1 of Protocol 1 is considered to be proportionate and in the public interest.
Part 4 - Public Order and Conduct in Public Places
467. Clause 116 extends the scope of the Protection from Harassment Act 1997 (the "1997 Act") to protect those people targeted because of their connections with third parties (including businesses, charities and individuals). These new measures have arisen largely due to the extremist activities of animal rights protestors.
468. The clause would amend section 7 of the 1997 Act to provide that conduct which involves harassment need only occur in respect of one victim on one occasion where there is more than one person being targeted in an attempt to influence a person's behaviour, whether or not that person is a victim of the harassment. Where there is only one victim, the previous requirement for at least two occasions of harassment remains. The proposed changes to the 1997 Act will mean that the harassment endured on each single occasion, if done with the aim of persuading someone not to carry on a legitimate activity, could constitute the requisite 'course of conduct amounting to harassment'. Individual events could be considered together to add up to this. The freedoms under Articles 9, 10 and 11 which these provisions may engage are all qualified. Interference with these rights can be justified in the interests of public safety, the protection of public order and the protection of the rights and freedoms of others. The exercise by some individuals of their rights under Articles 9, 10 and 11 can interfere with the ECHR rights of others to a degree which is unacceptable. In addition, depending upon the exact form of protest or harassment, public safety and order can be threatened.
469. Clause 117 creates a new offence of protesting outside residential premises. A person will commit an offence if he is outside or in the vicinity of a dwelling house with the aim of representing to an occupant that he should not do something he is entitled to do or should do something he is not obliged to do, when he intends, knows or ought to know that his presence will cause harassment, alarm or distress, and his presence constitutes or is likely to result in harassment to the occupant or cause the occupant alarm or distress. It will be for the police to decide in the circumstances whether it is more appropriate to give a direction to the protestor, either to conduct himself differently or to leave the vicinity altogether (under section 42 of the Criminal and Justice Police Act 2001), or alternatively to charge him with the new offence. This will give flexibility to the police as they deal with such protests outside people's homes. Any restrictions that this offence may place on the freedoms guaranteed under the ECHR, including freedom of assembly, are considered to be legitimate in the interests of public safety, the protection of public order and the protection of the rights and freedoms of others. The new offence is a proportionate means of preventing demonstrators from waging campaigns of harassment outside the homes of people who are involved in legitimate activity. Peaceful protest will not be affected. It will also not interfere with the right to protest in a Trade Union context.
Racial and Religious hatred
470. Clause 119 and schedule 10 amends the existing offences in Part 3 of the Public Order Act 1986 of stirring up racial hatred by applying them in addition to the stirring up of religious hatred. Amending the offences raise issues under Article 10 (freedom of expression) and Article 9 (freedom of thought, conscience and religion). The offences apply to the use of words or behaviour or display of written material (section 18), publishing or distributing written material (section 19), the public performance of a play (section 20), distributing, showing or playing a recording (section 21), broadcasting or including a programme in a programme service (section 22) and the possession of written materials or recordings with a view to display, publication, distribution or inclusion in a programme service (section 23). For each offence the words, behaviour, written material, recordings or programmes must be both be threatening, abusive or insulting and intended or likely to stir up racial hatred. These offences are amended so that each will apply to the stirring up of both racial and religious hatred. Religious hatred being defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief. The clause also clarifies that for material to be likely to stir up racial or religious hatred it need only be shown that it was likely to be seen or heard by a person in whom it was likely that racial hatred be stirred up.
471. The threshold for the offences is high. It only applies to words, behaviour, written material, recordings or programmes that are threatening, abusive or insulting. Second, the material must be intended to, or likely to stir up racial or religious hatred; that is hatred of a group of persons defined by their religious beliefs or lack of religious beliefs. Hatred is a strong term and the offence will not encompass material that just stirs up ridicule or prejudice or causes offence. Further, what must be stirred up is hatred of a group of persons defined by their religious beliefs and not hatred of the religion itself. Therefore, legitimate discussion, criticism, or expressions of antipathy or dislike of particular religions or their adherents will not be caught by the offence.
472. Accordingly, in so far as the provisions interfere with Article 10 rights, the interference is justifiable under Article 10.2 as a necessary and proportionate measure for the prevention of disorder or crime and the protection of the rights of others. In so far as the provisions protect groups in society from hatred directed against them because of religious belief, they may be seen as safeguarding article 9 rights.
Trespass on designated site
473. Clauses 120 to 122 makes provision for a new criminal offence of trespass on a designated site. The site would be designated by order by the Secretary of State on the grounds that it is comprised in Crown land; or land belonging to the Monarch or her heir in a private capacity; or because it is in the interests of national security to do so. These provisions arise from recent intrusions at Buckingham Palace and the Palace of Westminster by protestors.
474. A person would only become liable for the offence of trespass if s/he were present on a designated site without lawful authority. In addition, clause 120(4) provides a specific but limited defence for a person to prove that he did not know, and had no reasonable cause to suspect, that the site to which the alleged offence relates was a designated site. This raises issues under Article 6(2) (which states that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law) because it imposes a reverse legal burden on the defence. However, this is considered necessary and proportionate because the facts to be proved would be within the defendant's own knowledge and only s/he can say what his/her motive was for being on the site. In addition, proceedings against a person for this offence could only be brought with the consent of the Attorney General.
Protests in vicinity of Parliament
475. Clauses 123 and 124 allow the police to place conditions on and give directions to persons in the vicinity of Parliament when their behaviour is hindering any person from gaining access to the Palace of Westminster, hindering the proper operation of Parliament or is spoiling the visual aspect of any part of the designated area. A direction given under this section may continue for a period of time up to a maximum of three months. This new power to give directions and the corresponding offence of failure to comply with such directions is capable of being exercised in a way which is compatible with the ECHR and in particular with the rights under Articles 10 and 11. Any restrictions that this offence may place on the freedoms guaranteed under these Articles are considered to be legitimate in the interests of preventing disorder or crime.
Removal of Automatic Youth Court Reporting Restrictions
476. Clause 127 removes the automatic reporting restrictions for breaches, committed by children and young persons, of Anti-social Behaviour Orders and Orders made under sections 1B and 1C of the Crime and Disorder Act 1998. Publicity is a key part of the strategy to tackle anti-social behaviour, and for this reason, the Government considers that a breach by a child or young person of such an Order should be reported unless the Court considers it inappropriate to do so. The Government accepts that there are competing tensions in this context between the requirements under Article 8 of the Convention (the right to privacy and family life) and Article 10 (freedom of expression) and the principle that justice be administered in public. These tensions are balanced in favour of publicity, in the context of making these Orders, and the Government considers that they are to be properly balanced in the same way, in regards to breach of such Orders. It is established under domestic law that it is inappropriate for the court to restrain press identification of a child who is the subject of an ASBO (Medway Council v BBC). This was confirmed in T v St Albans where it was held that the public has an interest in knowing who has been responsible for such anti-social behaviour and that this does not constitute 'naming and shaming'. More recently in Stanley, it was accepted that ASBOs require publicity in order to operate.
|© Parliamentary copyright 2004||Prepared: 24 November 2004|