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Crime And Security Bill


 

These notes refer to the Crime and Security Bill as introduced in the House of Commons on 19 November 2009 [Bill 3]

CRIME AND SECURITY BILL


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Crime and Security Bill as introduced into the House of Commons on 19 November 2009. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So, where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND AND OVERVIEW

Police powers of stop and search

3.     The Bill contains provisions to reduce the reporting requirements on the police when they stop and search individuals.

Fingerprints and samples etc

4.     The Bill contains provisions to give additional powers to the police to take fingerprints and DNA samples from people who have been arrested, charged or convicted in the UK, and from those convicted overseas of serious sexual and violent offences.

5.     In response to the European Court of Human Rights judgment in the case of S and Marper v United Kingdom [2008] ECHR 1581, the Bill also sets out a statutory framework for the retention and destruction of biometric material, including DNA samples, DNA profiles and fingerprints, that has been taken from an individual as part of the investigation of a recordable offence. These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009.

Domestic violence

6.     The Bill contains provisions to implement a recommendation from the Together We Can End Violence Against Women and Girls consultation published in March 2009. The provisions provide the police with the power to issue an alleged Bill 3—EN                                              54/5 perpetrator of an offence relating to domestic violence with a Domestic Violence Protection Notice, requiring the perpetrator to vacate the premises of the victim and not to contact the victim. The Notice must be heard by a magistrates’ court within 48 hours, whereupon a Domestic Violence Protection Order can be made, lasting for up to 28 days.

Gang-related violence

7.     The Bill contains provision to amend the powers in Part 4 of the Policing and Crime Act 2009 under which the police or a local authority may apply to a court for an injunction against an individual for the purposes of preventing gang-related violence. In particular, the Bill provides that when a person aged 14 to 17 breaches such an injunction, the court may make a supervision order or a detention order.

Anti-social behaviour orders

8.     The Bill contains provision requiring a family circumstances assessment to be carried out when an application for an anti-social behaviour order (ASBO) is made; and provision about the circumstances in which the court must make a parenting order on breach of an ASBO.

Private security

9.     The Bill amends the Private Security Industry Act 2001 to enable the Security Industry Authority to introduce a licensing regime for private security businesses, in particular vehicle immobilisation businesses. Such businesses will be prevented from operating without a relevant licence, with penalties of up to five years’ imprisonment or a fine, or both. The Bill also contains a provision to extend the Approved Contractor Scheme in the 2001 Act to enable in-house private security services to apply for approved status.

Prison security

10.     The Bill implements a recommendation from the strategy document Extending Our Reach: A strategy for a new approach to tackling serious organised crime, which was published in July 2009. It amends the Prison Act 1952 to create a new criminal offence of possessing an unauthorised mobile phone, or component part, in prison.

Air weapons

11.     The Bill amends the Firearms Act 1968 to create a new offence of failing to take reasonable precautions to prevent a person under the age of 18 from having unauthorised access to an air weapon.

TERRITORIAL EXTENT AND APPLICATION

12.     Clause 44 sets out the territorial extent of the Bill. Different parts of the Bill have different extent:

  • Clause 1, on police powers of stop and search, amends the Police and Criminal Evidence Act 1984 (“PACE”) and, like the provisions it amends, extends only to England and Wales;

  • Clauses 2 to 7 on police powers to take fingerprints and samples, amend PACE and, like the provisions they amend, extend only to England and Wales (although clause 5(2), which amends the International Criminal Court Act 2001, also extends to Northern Ireland);

  • Clauses 8 to 13 make equivalent provision to that in clauses 2 to 7 for Northern Ireland and extend only to Northern Ireland (although clause 11(2) which amends the International Criminal Court Act 2001, also extends to England and Wales);

  • Clause 14 on police powers to retain and destroy fingerprints and samples etc, extends to England and Wales only. Clause 15 makes equivalent provision for Northern Ireland;

  • Clause 16 amends the Terrorism Act 2000 and like the provision amended extends to England and Wales, Scotland and Northern Ireland;

  • Clause 17 amends the International Criminal Court Act 2001 and like the provision amended extends to England and Wales and Northern Ireland;

  • Clauses 18 to 20 (which make further provision in relation to the retention, destruction and use of fingerprints and samples) extend to the whole of the United Kingdom;

  • Clauses 21 to 30 (domestic violence) extend only to England and Wales;

  • Clauses 31 to 36, on injunctions in respect of gang-related violence, amend Part 4 of the Policing and Crime Act 2009 and, like that Part, extend only to England and Wales;

  • Clauses 37 and 38, on ASBOs, amend Part 1 of the Crime and Disorder Act 1998, and, like that Part, extend only to England and Wales;

  • Clauses 39 and 40 and the Schedule amend the Private Security Industry Act 2001 and, like that Act, extend to the whole of the United Kingdom;

  • Clause 41 (offence of possessing a mobile phone in prison) amends section 40D of the Prison Act 1952 and, like that section, extends only to England and Wales;

  • Clause 42 (offence of allowing minors access to air weapons) amends the Firearms Act 1968 and, like that Act, extends to England and Wales and Scotland;

  • The final clauses (clauses 43 to 46) extend to the whole of the United Kingdom.

Territorial application: Wales

13.     The Bill applies to Wales in the same way as to England.

Territorial application: Scotland

14.     At introduction this Bill contains provisions that trigger the Sewel Convention. The Scottish Parliament’s consent has been sought for these provisions, which relate to the requirement for businesses to be licensed by the Security Industry Authority. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

15.     The provisions of the Bill that relate to the retention, destruction and use of fingerprints and samples held under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 (clauses 16 and 18) and on air weapons (clause 42) extend to Scotland and relate to reserved matters.

Territorial application: Northern Ireland

16.     Many of the provisions of the Bill on police powers on fingerprinting and DNA (clauses 5(2), 8 to 13, 15 to 20) and the provisions relating to the private security industry (clauses 39 and 40) extend to Northern Ireland and relate to excepted matters.

17.     The Bill will not require a Legislative Consent Motion to be passed by the Northern Ireland Assembly Government.

COMMENTARY ON CLAUSES

Police powers: stop and search

Clause 1: Records of searches

18.     Clause 1 amends section 3 of the Police and Criminal Evidence Act 1984 (“PACE”) which specifies the information which constables must record when they stop and search a person.

19.     Subsection (3) provides that, where a person is arrested as a result of a stop and search and taken to a police station, the constable who carried out the search must ensure that the search record forms part of the person’s custody record (rather than completing a separate form). In all other cases the constable must make the record of the search at the time it takes place or as soon as practicable after completion of the search.

20.     Subsection (4) removes the requirement for constables to record the person’s name (or a note otherwise describing the person) and description of any vehicle searched.

21.     Subsection (5) further reduces the recording requirements for a stop and search. The previous section 3 of PACE and Code of Practice A required ten items of information to be recorded, including whether anything was found and whether any injury or damage was caused. These are reduced to the following seven items of information:

  • Date;

  • Time;

  • Place;

  • Ethnicity;

  • Object of search;

  • Grounds for search;

  • Identity of the officer carrying out the stop and search.

22.     Subsection (6) provides that the requirement to state a person’s ethnic origins is a requirement in the first place to record the person’s self-defined ethnicity. However, if a constable thinks that this is different from their own assessment then they will also record their own assessment.

23.     Subsections (2), (7) and (8) amend section 3 of PACE to take account of the fact that the person who makes the record in the custody record may not be the constable who carried out the search.

24.     Subsection (9) reduces the time within which a person can request a copy of the search record from 12 months to 3 months after the date of the search.

Taking of fingerprints and samples: England and Wales

Clause 2: Powers to take material in relation to offences

25.     Subsections (1) and (4) amend sections 61 and 63 of PACE to enable biometric data (fingerprints and non-intimate samples respectively) to be taken from people who have been arrested for a recordable offence, either if they have been released on bail before their biometric data have been taken or if their biometric data have been taken and subsequently have proved inadequate for analysis and/or loading onto the national fingerprint or DNA database. For the purposes of this clause, it does not matter when the arrest took place, so the police may take biometric data from a person who was arrested before the clause comes into force.

26.     “Recordable offence” is defined in sections 118 and 27 of PACE. In practice, all offences which are punishable with imprisonment are recordable offences, as are around 60 other more minor offences which are specified in regulations made under section 27.

27.     Subsection (2) amends section 61 of PACE to enable fingerprints to be taken from people who are not detained at a police station but who have been charged with a recordable offence, where either their fingerprints have not been taken in the course of the investigation or their fingerprints have been taken and subsequently have proved inadequate for analysis and/or loading onto the national database. Currently, PACE allows the taking of the fingerprints of a person who has been charged, but only if the person is detained at a police station. Again, it does not matter whether the person was charged before the commencement of the clause.

28.     Subsection (3) re-enacts, with some modifications, the existing power in section 61 of PACE to take fingerprints from people who have been convicted, cautioned, warned or reprimanded for a recordable offence (before or after commencement). The re-enactment contains limitations on the exercise of the power. In future, fingerprints may only be taken under this power with the authorisation of an officer of at least the rank of inspector who must be satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime. The person must not have had their fingerprints taken since the conviction, caution, warning or reprimand or, if they have, the fingerprints must have proved inadequate for analysis and/or loading onto the national database.

29.     Subsection (5) extends the power in PACE to take non-intimate samples from persons who have been charged. The power is extended so as to enable the police to take a non-intimate sample from a person who has been charged with a recordable offence in circumstances where the person has had a sample taken previously, from which a DNA profile has been created, but the sample has since been destroyed and the person now claims that the DNA profile did not come from his sample. As explained below, the provisions of the Bill will oblige the police to destroy all DNA samples within six months of their being taken.

30.     Subsection (6) re-enacts the existing power to take non-intimate samples after conviction. But it also now includes a power to take non-intimate samples following a caution, reprimand or warning (which is already possible in the case of fingerprints). This modified power is subject to the same limitations as are provided for in relation to the taking of fingerprints after conviction (see the discussion of subsection (3) above).

31.     The power may be exercised in relation to convictions, cautions, reprimands and warnings occurring before commencement. However, this is subject to the existing restriction in subsection (9A) of section 63, by virtue of which a non-intimate sample may not be taken from a person convicted prior to 10th April 1995 unless the person is one to whom section 1 of the Criminal Evidence (Amendment) Act 1997 applies: that is, that the offence was one specified in Schedule 1 to the Criminal Evidence (Amendment) Act 1997 (primarily sexual and violent offences) and the person is in prison or detained under the Mental Health Act 1983 at the time the sample is to be taken. The Bill also now secures that a non-intimate sample may not be taken from a person cautioned before that date (see subsection (7)).

32.     Subsection (8) amends section 1 of the Criminal Evidence (Amendment) Act 1997, which is referred to in section 63(9A) of PACE (described above). The amendment to the 1997 Act made by subsection (8) means that a sample may be taken from a person convicted before 10th April 1995 of an offence in Schedule 1 to that Act even if he is no longer in prison or detained.

33.     Subsection (9) amends section 2 of the Criminal Evidence (Amendment) Act 1997. The effect of this amendment is that a non-intimate sample may be taken from a person who has at any time been detained following acquittal for an offence on grounds of grounds of insanity or was found unfit to plead. Currently, the person must be detained at the time the sample is to be taken.

Clause 3: Powers to take material in relation to offences outside England and Wales

34.     Subsections (1) and (4) enable the police to take fingerprints and non-intimate samples from a UK national or resident convicted of a qualifying offence (see clause 7) outside England and Wales whether the conviction occurred before or after the coming into force of these provisions. The person must not have had their fingerprints or sample (as the case may be) taken previously under the respective powers or, if such data have been taken previously, it must have proved inadequate for analysis and/or loading onto the national database. The taking of the fingerprints or non-intimate sample must be authorised by an officer of at least the rank of inspector who must be satisfied that taking the sample is necessary to assist in the prevention or detection of crime.

35.     Subsection (2) provides the police with the power to take an intimate sample from a UK national or resident convicted of a qualifying offence outside England and Wales where two or more non-intimate samples have been taken under the powers provided in subsection (4) but have proved insufficient and that person consents. The taking of the sample must be authorised by an officer of at least the rank of inspector who must be satisfied that taking the sample is necessary to assist in the prevention or detection of crime.

Clause 4: Information to be given on taking of material

36.     Clause 4 re-enacts the provisions in PACE relating to the information given to those from whom biometric data are taken without consent, with modifications, and applies these provisions to the new powers to take biometric data. In relation to fingerprints and non-intimate samples, the result is that a person must be informed of the reason for taking the biometric data, the power being used, and the fact that authorisation has been given (where authorisation is necessary). A police officer (or designated detention officer) must also inform the person that his data will be subject to a speculative search (in other words that the reference samples will be compared with those already on the existing databases). Those matters must then be recorded as soon as practicable after the data has been taken. Similar information and recording requirements apply in relation to the taking of intimate samples as well as a requirement to record the fact that the person gave their consent to the intimate sample being taken. In relation to the taking of intimate and non-intimate samples prior to conviction, the existing requirement to specify the nature of the offence in which it is suspected that the person has been involved is preserved.

Clause 5: Speculative searches

37.     Clause 5 adds to the existing provisions in PACE that permit the speculative searching of biometric data so that such searches can be carried out in relation to samples and fingerprints taken using the new powers in this Bill.

Clause 6: Power to require attendance at police station

38.     Clause 6 inserts a new Schedule 2A into PACE which sets out the powers to require attendance at a police station in respect of both the existing and new powers to take biometric data. For each power in PACE to take biometric data from those no longer in police detention (whether existing or which is being inserted by these provisions), there is a power to require a person to attend a police station for the purpose of taking those data, and for a constable to arrest a person who does not comply with a requirement to attend.

39.     The Schedule puts some time limits on the power to require attendance. In cases where fingerprints or samples of a person arrested or charged are being taken because the previous ones were inadequate in some way, the power must be exercised within six months of the day on which the relevant police officer learnt of the inadequacy. There are also time limits where the fingerprints or samples are to be taken under new section 61(5B) (fingerprints from person charged), section 61(6) (fingerprints from person convicted) new section 63(3A) (non-intimate sample from person charged) and new section 63(3B) (non-intimate sample from person convicted) of PACE. But the time limits do not apply in cases where a person has been convicted of a qualifying offence or, in the case of non-intimate samples, where the person is convicted of an offence prior to 10th April 1995 and he is a person to whom section 1 of the Criminal Evidence (Amendment) Act 1997 applies (see above). In these cases the power to compel attendance may be exercised at any time.

40.     Paragraph 6 of new Schedule 2A to be inserted into PACE provides that where a person’s fingerprints have been taken under section 61 of PACE on two occasions in relation to any offence, he may not be required to attend a police station to have his fingerprints taken again under that section in relation to that offence without the authorisation of an officer of at least the rank of inspector. Paragraph 14 imposes the same requirement for non-intimate samples taken under section 63 of PACE.

41.     Paragraph 15 of new Schedule 2A stipulates that where authorisation is required for the taking of fingerprints or a sample this must be obtained before a person is required to attend the police station.

42.     Paragraph 16 of new Schedule 2A makes provision regarding the time a person shall be given to attend a police station and the ability of a person to vary the date or time of attendance.

Clause 7: Qualifying offence

43.     Clause 7 defines the “qualifying offences” referred to in other provisions dealing with biometric material. These offences are serious violent, sexual or terrorist offences, and also include the offences of aiding, abetting, conspiring etc the commission of such offences. The list of qualifying offences may be amended by order, using the affirmative resolution procedure (see subsections (3) and (4)).

Taking of fingerprints and samples: Northern Ireland

44.     Clauses 8 to 13 make provision for Northern Ireland equivalent to that made for England and Wales by clauses 2 to 7.

Retention, destruction and use of fingerprints and samples etc

Clause 14: Material subject to the Police and Criminal Evidence Act 1984

45.     Clause 14 substitutes a new section 64 into PACE and inserts fourteen new sections immediately after it. Section 64 (destruction of fingerprints and samples) currently sets out the purposes for which fingerprints, impressions of footwear and samples may be retained but permits them to be retained after they have fulfilled the purposes for which they were taken without reference to a retention period. The effect of this clause is to establish a framework for the retention and destruction of such material, following the decision of the European Court of Human Rights in S and Marper v United Kingdom [2008] ECHR 1581. The new provisions require the destruction of samples (for example, biological DNA material, dental and footwear impressions) and fingerprints once they have been loaded satisfactorily onto the national database (in the case of DNA samples) and have served the investigative purpose for which they were taken (for other samples). In any event, all DNA samples are required to be destroyed within six months of their being taken (see new section 64ZA).

46.     The retention periods for the various categories of data depend on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. The different categories can be summarised as follows:

  • Adults - convicted: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));

  • Adults - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZD);

  • Under 18 year olds - convicted of serious offence or more than one minor offence: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));

  • Under 18 year olds - convicted of single minor offence: retention of fingerprints, impressions of footwear and DNA profile for 5 years (see new section 64ZH);

  • 16 and 17 year olds - arrested for but unconvicted of serious offence: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZG);

  • All other under 18 year olds - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 3 years (see new sections 64ZE and 64ZF);

  • Persons subject to a control order: retention of fingerprints and DNA profile for 2 years after the control order ceases to have effect (see new section 64ZC);

  • All DNA samples: retained until profile loaded onto database, but no more than 6 months (see new section 64ZA).

47.     For the purposes of these provisions, the concept of “qualifying offence” is used to distinguish between serious and minor offences. Qualifying offence is defined in clause 7.

48.     The substitution of new section 64 also has the effect of removing the existing right of a person to witness the destruction of their fingerprints or impressions of footwear as, with the increasing use of technology, there are often no physical prints to destroy. However, a person still has the right to request a certificate from the police confirming that their data have been destroyed (see new section 64ZM).

49.     The clause also contains provision in new section 64ZB for material which has been given voluntarily to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless the individual is subsequently convicted, has previous convictions or consents to its retention.

50.     In addition, where fingerprints or DNA profiles would otherwise need to be destroyed because of the expiry of a time limit set out in the above clauses, new section 64ZK enables a chief officer of police to determine that, for reasons of national security, those fingerprints or DNA profiles may be retained for up to two further years on that basis. It is open to chief officers to make further determinations to retain material where the necessity continues to exist.

 
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Prepared: 20 November 2009