Select Committee on Home Affairs Written Evidence

21.  Memorandum submitted by Liberty

  Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

  Following on from the publication of the Home Office consultation "Policing: Modernising Police Powers to Meet Community Needs" we would like to submit some brief observations on the proposals. We will of course be submitting a detailed response to the Home Office. Our observations here summarise our initial reaction and concerns.

  The consultation recommends wholesale extension of police powers. To be justified any extension depends upon a quantifiable social need. Throughout the document there are references to justification (for example, clarification of powers for officers, simplification of process) but these are put in broad and vague terms. Concerns about whether blanket powers can be justified are dealt with by saying discretion would be used[31]. The dangers of extending powers and relying on discretion have been recently demonstrated through the use of extended powers of stop and search.

  S.44 of the Terrorism Act 2000 allows for exercise of stop, search and other powers without the need for suspicion. The whole metropolitan area of London has been on a rolling authorisation[32] for the use of these extended powers for over two years. In 2002-03 the number of Asians subjected to S.44 searches rose by over 300%. Even the Police have expressed concerns about this rise. Giving evidence to the Home Affairs Committee the Metropolitan Police Authority said that it had been given "powerful evidence" that it was having a "hugely negative impact" on community relations. The MPA added

    "Section 44 powers do not appear to have proved an effective weapon against terrorism and may be used for other purposes, despite the explicit limitation expressed in the Act. . . It has increased the level of distrust of our police. It has created deeper racial and ethnic tensions against the police. It has trampled on the basic human rights of too many Londoners. It has cut off valuable sources of community information and intelligence. It has exacerbated community divisions and weakened social cohesion."[33]

  Moves towards unfettered discretion will result in arbitrary exercise of policing powers.


  Justification for extension of powers of arrest to all offences are based on the difficulties police officers have in deciding whether they can arrest.[34] The argument put forward is that by removing all need for seriousness the process would be simplified. The balance to this extension is that that there is a need for arrest. This need would be taken from the list contained at Paragraph 2.6. However, the list covers a wide range of situations[35] and it is difficult to see how one of the criteria would not be met. In practical terms it will offer little practical obstacle to arrest. The only other ground, that the constable has reasonable suspicion that the person is committing, has committed or is about to commit an offence similarly presents no obstacle as an officer would not be contemplating arrest unless satisfied of this.

  The officer would use his discretion before arresting. However, to correctly use discretion an officer should consider whether his interference with the person's rights are legitimate, necessary and proportionate. Essentially this is a Human Rights Act assessment of the use of powers in each case. If officers are unable to determine whether they can exercise arrest on the basis of seriousness we do not see how the imposition such an analysis can simplify matters.

  The same point is relevant to the exercise of trigger powers (entry search and seizure etc) following arrest. Restriction to either way offences does not present a particular barrier given the range of such offences. Again, an officer would need to make a detailed rights analysis before the exercise of such powers in each situation they arise.

  We are extremely concerned by the proposal to extend the wide ranging police powers currently associated with "serious arrestable offences"[36] to cover all either way or indictable offences. We will give detailed comments in our response to the Home Office. The scope for abuse of powers is great. At this stage we would urge the Home Affairs Committee to seek clarification from the Government as to the necessity for such an extension. In particular, we wonder how it plans to introduce safeguards so that the exercise of powers "are proportionate to the rights of the individual". We appreciate the police when investigating crime, will seek to use all powers available to them. When statute allows such powers what practical protection can be given to the police station detainee against abuse?

  The purpose of statute should be to limit powers to appropriate use. There will always be a need for some discretion. However, allowing blanket powers tempered only by determination by individual officers whether they will exercise all the powers available to them raises fundamental concerns about the way in which they will be used.

  The Criminal Justice Act 2003 allows for indefinite retention of DNA following arrest even if no further action is taken. Once all offences become arrestable will ensure that a far greater number of people have their DNA retained. If the Government wishes to introduce a National DNA register we would prefer open debate about the merits and drawbacks rather that creation by stealth.


  The government proposes allowing warrants to cover an individual rather than premises. This will allow anywhere occupied, controlled or accessible by the person to be subject to the warrant. We do not see how appropriate consideration can be given to proportionality and necessity when issuing such a warrant. The justification for entering premises occupied by the suspect, as opposed to say their partners or parents or their workplace will differ. Issuing blanket warrants means that proportionality will not be considered at point of issue. The consultation document states that "officers would still need to have justification for entry onto specific premises". However, in practice it is extremely likely officers will enter first and consider justification later.

  We are also concerned that the introduction of warrant issue by fax and over the phone will lead to a culture of "rubber stamping". The issue of warrants is a judicial process. It should not be reduced to an administrative hurdle.


  Liberty is particularly concern by some of the proposals in this section. Requiring someone to take a drug test will necessitate interference in privacy rights. It should be restricted to those situations where proper and necessary. It is far more likely that such interference can be justified when there is sufficient evidence established in a particular case to justify charge. By allowing testing on arrest it is likely that the infringement will be disproportionate.

  The consultation expresses concern that the British Medical Association advice medical staff to refuse to undertake an intimate search if a suspect does not give consent. Rather than seeking ways around this we wonder if the Home Office might consider why the BMA refuses to do so and whether there might be grounds for concern arising from forced intimate searches. The two proposals put forward by the consultation are to allow detention of those suspected of swallowing drugs and the drawing of adverse inference from a refusal to undertake an intimate search. We see problems with both the proposals. The Article 5 analysis that detention for approximately two weeks (to allow drugs to pass through the detainees system) will be justified needs further justification. This is particularly true as the consultation says that x-ray evidence is of uncertain quality. There would have to very strong evidence to justify detention on the basis of other evidence, which would presumably be based around tip offs and surveillance. The drawing of adverse inference from a refusal to undertake a search raises issues about self-incrimination. We doubt whether such a move would be compliant with Article 6 of the Human Rights Act.

  There is a wide range of powers available to the police to deal with protest. We do not see how there is a specific need to extend powers dealing with protests outside homes (Para 5.29) Examples of existing powers are:

    —  It is an offence under section 5 of the Public Order Act 1986 if you use threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress

    —  Under section 1 of The Protection from Harassment Act, it is an offence for a person to pursue a course of conduct which harasses, and which the person knows or ought to know amounts to harassment. The Act also allows you to apply for a civil order preventing named people or groups from coming within a specified area of you.

    —  Under the Public Order Act 1986 the police can determine that two of more people gathered together are causing an assembly and can require you to move on. It is an offence to fail to do so. The Anti Social Behaviour Act 2003 changed the number of people required from 20 to two.

    —  It is an offence at common law to without lawful authority or excuse to wilfully obstruct the free passage of the highway.

    —  It is an offence under the Trade Union and Labour Relations (Consolidation) Act 1992 to picket someone's home or place of work.

    —  It is an offence under the 1994 Criminal Justice Act 1994 to trespass on someone's property and to "Obstruct", "disrupt" or intimidate.

    —  S42 of the criminal Justice and Police Act 2001 allows an officer to give directions to protestors outside a house if they believe they are their presence is likely to cause distress.

  People should not be subjected to unlawful harassment. However we wonder where is the gap in the criminal law requiring the creation of a new offence?


  Proposals to allow the taking of covert DNA samples (para 6.19) raise grave concerns. We presume that this covers the situations where DNA can be retrieved from, for example cigarette butts or from the contents of dustbins. The person from who the sample is taken does not have to be arrested and, presumably will never know they have had a sample taken. However, this will allow for their DNA to be retained and used for speculative search indefinitely. The justification is that it will enable the police to confirm or disprove a persons involvement in an offence. The distinction with the current position where someone volunteers their DNA is that the sample will be retained even when involvement is the offence is discounted. There is also a distinction from the taking of fingerprints from a crime scene as this is done for the purpose of investigation into a particular offence rather than for speculative searches.

7 September 2004

31   For example at paragraph 2.7 "This approach enables a constable to apply his professional judgment on whether to apply the arrest criteria". Back

32   The Home Secretary needs to renew authorisation every two weeks saying he is satisfied that the designated zone faces particular risk of terrorist attack. Back

33   Evidence from MPA to Home Affairs Committee 8 July 2004. Back

34   Consultation document at 2.3 `There is a complex and often bewildering array of powers and procedures. Back

35   Such as "enabling communication", "facilitating immediate enquiries", "confirming name and address". Back

36   Such as extended detention without charge, holing incommunicado and restricted access to legal advice. Back

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