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Memorandum submitted by
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Overview
1. This Bill is something of an omnibus with
substantive amendments being made to over 20 Acts covering a range of subjects,
including aviation security, sex offences, extradition, and alcohol
misuse. It is a common complaint of
Part 1 - Police Reform
2. Part 1 deals with police reform, placing a duty on police authorities to have regard to the views of the public, amending the method of appointment of senior officers and providing mechanisms for police cooperation. Clause 1 seeks to amend the Police Act 1996 to provide that every police authority in discharging its function must have regard to the views of 'the people' in the authority's area about policing in that area, and inspectors of constabulary can report to the Secretary of State as to whether this requirement is being complied with. However, the Police Act 1996 and the Police and Justice Act 2006 already give local communities the ability to significantly impact upon local policing issues. While we believe that communities should be engaged in police matters, this increases the risk of a few people influencing the policing strategy to the detriment of others. The local community is already represented on PAs and it is through this route that the community should be engaged in policing. The proposal to make it a duty for PAs to have regard to the views of people in the area on policing matters is inappropriate as it further expands the potential for a small group of unrepresentative community members to interfere in policing matters. In addition, if it becomes a duty, how is a PA able to properly fulfil this duty: who represents 'the people'? As this is cast as a duty on a PA it must be clear, workable and necessary, none of which appear to be the case in relation to clause 1.
3. Clauses 11 and 12 raise some serious concerns about the ability of the Secretary of State to interfere in operational policing matters with regard to specific forces. Currently the Police Act 1996 allows the Secretary of State to make regulations requiring all police forces to adopt particular practices and procedures. The proposal in clauses 11 and 12 is to allow the Secretary of State to make these regulations only apply to one or more police forces. Enabling the Home Secretary to direct the type of policies that apply to specific police forces to promote efficiency in that force, raises the specter of political interference in particular police forces. The current power does not allow the Secretary of State to pick and choose between police forces, which is some limit on the power of central government to control how a particular force operates. The police must remain able to investigate crime independently and to apply the laws made by Parliament free from political pressure.
Part 2 - Sexual offences and Sex Establishments
4. Clause 13[1]
introduces the offence of paying for the sexual services of a prostitute
controlled by gain. This offence is
drafted extremely broadly and applies regardless of whether the accused knew
that any of the prostitute's activities were intentionally controlled for gain
by a third person (strict liability).
What 'controlled for gain' means is also very broad, encompassing any
activity controlled for in the expectation of gain for anyone. Presumably this would cover the owner of a
brothel. An offence will be committed
whether or not the services are actually provided: it is enough simply to make
or promise payment. The offence also
applies regardless of where in the world the sexual services are to be
provided. This last provision could
conceivably mean that a person who visits a prostitute in a brothel in a
country where it is legal to do so (such as in the
5. Clause 20 and Schedule 2 amend the Sexual Offences Act 2003 to give police the power to issue a temporary closure notice in respect of any premises if the officer reasonably believes that, within the previous 3 months, the premises had been used for activities related to particular offences (involving child pornography or prostitution and prostitution more generally) and the closure is believed to be necessary to prevent the premises being used for activities related to those offences. These provisions are very similar to those relating to closure orders for anti-social behaviour and drug offences. But as we have seen with such orders, closure does not necessarily end a problem but can merely displace it. The type of offences this is proposed to apply to may be particularly unsuitable for a closure order: a closure order, for example, of a brothel, may in fact increase the vulnerability of some women as they may then be forced onto the streets.[3] Some women band together to work in the relative safety of a private address and it may be that a closure order of this kind would increase street-based prostitution and the problems associated with kerb-crawling, loitering or soliciting. Such a closure order would need to consider the right to private and family life under the Human Rights Act 1998 (HRA)[4]. Proposed new section 136Q is of concern as it would allow the Secretary of State to amend, by order, the power to authorise a closure notice to persons other than members of the police force. The Secretary of State should explain who it is envisaged might be given this power. The power to order the closure of premises, which could include a family home, has serious implications for the right to respect for private and family life and the home. Its use should be carried out by trained professionals and any extension of the power to make such orders should not be extended lightly.
6. Clause 22 amends the power to impose foreign travel banning orders on those who have been convicted of sex offences and, because of their subsequent behaviour, it is considered necessary to impose such bans to protect children in other countries. Currently this applies to protect children under 16. This amendment raises that to all children under 18. Clause 23 seeks to extend the length of the travel ban from the current 6 months to a maximum of 5 years. When foreign travel ban orders were introduced we did not take issue with them in principle as concerns about overseas child sex tourism are justified.[5] However, we did have some concerns about the way in which they applied and what safeguards there were. The requirements justifying the creation of an order are extremely broad as is the requirement that a person must have "acted in a way to give reasonable cause" which contains no comments on criminality. Banning a person from leaving the country is a serious step, particularly as it involves a potential limitation on the right under international law to freedom of movement.[6] Increasing the amount of time that a person can be banned from leaving the country (and stripping them of their passport as is proposed by clause 24) for up to 5 years is a much greater interference with the right to freedom of movement than the current time of 6 months. As such, greater safeguards should be built in to ensure more risk assessment is carried out in relation to an individual before an order can be made.
Part 3 - Alcohol misuse
7. Clause 28(3), seeks to amend the Confiscation of Alcohol (Young Persons) Act 1997
to give police the power to remove children from an area to their place of residence
or a place of safety, regardless of whether any offence has been committed or
if it necessary to do so for the person's safety or well-being or for public
order. The police already have the power
under the Anti-Social Behaviour Act 2003 to remove persons under 16 to their
place of residence between 9pm and 6am if they are in a specified area (see
section 30) and the power to remove children for their own safety in an
emergency (see section 46 of the Children
Act 1989).
8. Clause 29 introduces a new offence for a person under 18 to be in possession of alcohol in a public place on three or more occasions in a 12 month period without reasonable excuse. Criminalising teenagers for possessing alcohol will fast-track more children into the criminal justice system and is not the way to tackle the problem of under-age drinking. If children are inappropriately gaining access to alcohol this should be dealt with under child protection measures, not through counter-productive criminalisation of those that we are trying to protect.
9. Clause 30 seeks to amend section 27 of the Violent Crime Reduction Act 2006 (which gives police the power to issue Directions to Leave which require a person to leave an area for 48 hours if there is a risk of an alcohol related disturbance) to apply it to all people aged over 10 years. Currently it only enables police to make such a Direction in relation to people aged 16 or over. No offence needs to have been committed in order for police to make such an order. We have seen that the police are using this power to disperse groups before problems arise.[7] The proposed power is overbroad, discriminatory, counter-productive and unnecessary as the police already have a wide array of criminal law powers to deal with problem behaviour. It also continues a worrying trend of using the civil law in a coercive way to target the young and the vulnerable.[8] This power should not be further expanded by extending it to apply to 10 to 15 year olds. As stated above, there is already a power to move on people for anti-social behaviour and to return children to their homes. A power to disperse children may actually endanger them by forcing them to move on to potentially unsafe areas and is subject to misuse.
Part 4 - Proceeds of Crime
10. The Proceeds of Crime Act 2002 allows for a confiscation order to be made in respect of a person's property following conviction for an offence, if he or she has benefited from the criminal conduct. In addition, a restraint order can be made to restrain the use of the property in question pending the determination of the criminal conviction. As it presently stands, the property itself cannot be seized until a confiscation order is made (although it may be seized for other lawful reasons, such as for use as evidence). Clauses 33 to 38 would allow property subject to a restraint order, seized under another power, to be retained for the duration of the restraint order and enable police, customs authorities and financial regulators to search for and seize property (not necessarily subject to any order) before a person has been convicted, including before proceedings have even been commenced. It is enough simply for the person to have been arrested, criminal investigations to be ongoing and for there to be reasonable cause to believe that the person has benefited from conduct constituting the offence. If property has not been returned after 48 hours further retention must be ordered by a justice of the peace. However, under the current provisions in relation to restraint orders (which are less intrusive than this proposed measure) such orders must be approved by the Crown Court. No reason is given as to why, at the very least, the Crown Court is not involved in providing judicial oversight.
11. These proposed amendments clearly raises issues regarding the right to privacy and peaceful enjoyment of possessions under the HRA.[9] They are far too broad in scope, particularly as they apply even before a person has been charged with any criminal offence. There is already a power to issue restraint orders restraining the use that can be made of certain property in similar circumstances. In addition, these proposals necessarily involve direct or indirect findings of guilt on the part of the property holder or persons connected to the property, as there is a requirement to show that the person has benefited from conduct constituting the offence. This undermines the presumption of innocence, and the danger is that individuals will be 'convicted' by the civil courts in the eyes of the public without the protections that would be available in the criminal courts. Such an extreme interference with property and potentially private and family life should be proportionate and necessary. The Explanatory Notes to the Bill recognise this interference but simply provide that a Code of Practice will be drafted "to cover the exercise of these powers, to ensure that they are exercised proportionately". This is not adequate: Parliament should oversee the exercise of these powers and such broad powers should not be left to be regulated by secondary instruments.
Part 5 - Extradition
12. Part 5 seeks to amend the Extradition Act 2003. When
this Act was introduced
13. There is no way, as this is currently drafted, for
the Secretary of State to be satisfied that the country of return has the same
standards for incarceration as the
14. Additionally, at the time an undertaking is given conditions of detention in the particular country may give rise to no particular concern, however when the person is due to be returned there may have been a regime change or other event that would cause real concern. None of these possible problems are dealt with in these proposed amendments. All we have is a clause that provides that nothing requires the return of the person if to do so would breach the ECHR, in the view of the Secretary of State. This is insufficient to fully protect the human rights of the extradited person. It is not enough for legislation to leave this up to the discretion of the Secretary of State (with the only review rights being within the confines of judicial review). Parliament should set out specific safeguards in this Bill and not leave it to the discretion of the Secretary of State. There are also other considerations apart from the ECHR that would have to be taken into consideration before a person could be returned to a country, such as the Refugee Convention and other international instruments. It is not clear what happens to an undertaking that is given under these powers if it subsequently cannot be honoured as a result of human rights concerns. This should be dealt with more specifically in this Bill.
15. In addition
16. Finally we note that clause 58 allows for a judge to grant an extension of up to 48 hours for the detention of a person subject to provisional arrest under the Extradition Act 2003 if it is not reasonable to comply with the requirement that the person be brought before the judge along with certain documents. This appears to be a matter purely of administrative convenience and no explanation has been given as to why this is necessary or proportionate which must be explained given the clear interference with article 5 (right to liberty).
Part 7 - Miscellaneous: Criminal Records
17. Clauses 62 to 72 seek to make amendments to the Safeguarding Vulnerable Groups Act 2006 and the Police Act 1997 to amend the application process for Criminal Record checks and checks done by the (renamed) Independent Safeguarding Authority (ISA). Clause 69 seems to us to be unnecessary, costly and potentially discriminatory. It provides that if a person has applied for a Criminal Record Check for the purposes of employment, an immigration control check can also be carried out if an additional fee is paid by the applicant. The stated intention is to "assist employers in avoiding the employment of illegal workers".[13] This amendment is completely unnecessary. Employers can already find out this information by checking an applicant's passport and, if necessary, making inquiries of the UK Borders Agency. To include this here will incur a fee (the amount is not yet stated), which will inevitably have to be paid by a job applicant or employee, which in straightened economic times cannot be considered either fair or useful.
January 2009
[1] And the equivalent
provision for [2] It is interesting to note that the legal
power to impose such an offence is questionable under international law if the
victim or offender is not a [3] For example, sadly in 2006
we saw the particular vulnerability of women engaged in street-based
prostitution with the tragic murders of five women working as prostitutes in [4] Article 8 of the European Convention on Human Rights as incorporated by the Human Rights Act 1998. [5] See [6] See article 2 of the
Fourth Protocol (1963) to the European
Convention on Human Rights to which the [7] See the case of up to 80 [8] [9] See article 8 of the ECHR regarding the right to privacy and article 1 of Protocol 1 to the ECHR regarding protection of property, as incorporated in the HRA. [10] See [11] See clause 53 (proposed new section 59(6)(b)), clause 54 (proposed new section 132(6)(b)) and clause 55 (proposed new section 153B(4)(b). [12] Article 5 (right to liberty) of the ECHR as incorporated by the HRA. [13] See Explanatory Notes at paragraph 456. |