21. Memorandum submitted by
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
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.
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
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."
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.
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
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"
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
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
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
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
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
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
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
Evidence from MPA to Home Affairs Committee 8 July 2004. Back
Consultation document at 2.3 `There is a complex and often bewildering
array of powers and procedures. Back
Such as "enabling communication", "facilitating
immediate enquiries", "confirming name and address". Back
Such as extended detention without charge, holing incommunicado
and restricted access to legal advice. Back