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Police powers: stop and search
199. It is estimated that this provision to reduce reporting requirements for stop and search encounters will save £4.2 million per annum, by reducing police officer and police staff time spent on stop and search processes by up to 15 minutes per encounter.
Police powers relating to fingerprints and samples etc
200. These provisions will lead to estimated average annual costs (excluding one-off costs) of £5.2 million per annum in each of the financial years 2010-2011, 2011-2012 and 2012-2013. Initial estimates suggest that the provisions would also incur one-off costs of between £51.4 million and £53.4 million due to the need to delete orphaned profiles, re-program computer software, destroy DNA samples and destroy fingerprint records. There would also be estimated potential savings of £7.8 million from refrigeration savings in each of the financial years 2010-2011, 2011-2012 and 2012-2013. There will also be potential one-off savings of £5.1 million. In addition there could be potential saving on investigative and prosecution time as a result of speculative DNA and fingerprint searches against crime scene samples for both past and future offences.
Domestic violence
201. The provisions to pilot new Domestic Violence Protection Notices and Domestic Violence Protection Orders in two police force areas will entail a capped running cost of £450,000. This includes any net additional costs to the Ministry of Justice for legal aid and of granting DVPOs in the pilot area and legal aid for granting subsequent longer-term non-molestation orders or occupation orders. Once the pilot has finished and has been evaluated, a further impact assessment will be produced with national costs and national savings for DVPOs to be introduced in each relevant local authority in England and Wales.
Gang-related violence
202. The provisions which effectively extend the use of gang injunctions under the Policing and Crime Act 2009 to those aged 14-17 will be piloted in one area in 2010-11 at an estimated cost of £70,000. This includes average net additional costs to the Ministry of Justice for legal aid, supervision orders and detention orders as well as County Court fees and security, which will fall to the applicant authority.
Anti-social behaviour orders
203. The provisions to introduce a mandatory parenting needs assessment when a child is considered for an ASBO and impose a parenting order upon breach of a child’s ASBO are estimated to be cost neutral. In 2009-2010 £97 million was paid to the Youth Justice Board for prevention work and parenting programmes are funded from this.
Private security industry
204. It is estimated that the licensing of private vehicle immobilisation companies will cost an estimated £525,000 for each of the financial years 2010-2011, 2011-2012 and 2012-2013. These costs will be recovered by the Security Industry Authority through fees and by the individual vehicle immobilisation businesses.
Prison security
205. The estimated average annual cost of the provision to create a new offence of possessing an unauthorised mobile telephone in prison will be £0.5 million for each of the financial years 2010-2011, 2011-2012 and 2012-2013.
Air weapons
206. This provision creates an offence of not taking reasonable precautions to prevent young children from coming into the possession of an air weapon. The estimated annual cost will be £42,000 for each of the financial years 2010-2011, 2011-2012 and 2012-2013.
EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
207. The effects of the Bill on Public Sector Manpower are set out below. These costs are a subset of the identified costs in the financial effects of the Bill. For the majority of provisions the Secretary of State does not expect there to be an increase in manpower but for the new powers or responsibilities to be subsumed into everyday business as determined by local priorities.
Private security industry
208. The licensing of private security businesses made under this Part will be processed by the Security Industry Authority (a Non-Departmental Public Body sponsored by the Home Office). As at November 2009 the Authority had 182 staff (full-time equivalents). The Authority accepted some 141,000 individual licence applications during the financial year 2008 to 2009. It is expected that most of the additional work connected with businesses licensing will be met from within planned staff resources, but there will be an additional 1 full-time equivalent member of staff, at a cost of £50,000 per annum, from 2010 onwards. These staff costs will be recovered as part of the fee charged by the SIA.
REGULATORY IMPACT ASSESSMENT
209. The Better Regulation Executive guidance requires the Secretary of State to publish an Impact Assessment (IA) when it introduces any legislation likely to:
- Impose a cost on the private sector in any one year;
- Cost the public sector more than £5 million; or
- Attract high levels of political or media interest.
210. IAs have been prepared in respect of 10 provisions in the Crime and Security Bill. The individual IAs are available on the Home Office website (http://www.crimereduction.homeoffice.gov.uk/crimeandsecuritybill/). All IAs will be made available in the Vote Office.
211. The costs identified in IAs are economic rather than financial - the Financial Statement above provides the expected costs of the Crime and Security Bill.
212. The Bill contains one provision that will have an impact on business or the voluntary sector, namely:
- Private security industry.
213. The remaining provisions meet the Public Services Threshold (either on grounds of cost or political/media interest), namely:
- Police powers: stop and search;
- Police powers relating to fingerprints and samples etc;
- Anti-social behaviour orders;
EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)
214. 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 about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before Second Reading. The Rt Hon. Alan Johnson MP, Secretary of State for the Home Department, has made the following statement:
“In my view, the provisions of the Crime and Security Bill are compatible with the Convention rights.”
Taking of fingerprints and samples etc: England and Wales; Taking of fingerprints and samples etc: Northern Ireland; Retention, destruction and use of fingerprints and samples etc
215. Clauses 2 to 13 widen the powers of the police to take fingerprints and samples under the Police and Criminal Evidence Act 1984 (PACE) or, in Northern Ireland, the Police and Criminal Evidence (Northern Ireland) Order 1989, in a number of ways. In particular, the provisions will: a) confer on the police the power to take fingerprints and non-intimate samples without consent from UK nationals or residents convicted of a specified violent, sexual or terrorist related offence committed outside England, Wales or Northern Ireland at any time; b) remove the bar in section 63(9A) of PACE on the taking of non-intimate samples from persons convicted of offences listed in Schedule 1 to the Criminal Evidence (Amendment) Act 1997 before 10th April 1995 unless they remain in prison; and c) extend the time limits for requiring someone to attend a police station for the purpose of having their fingerprints or sample taken. Other changes will increase the existing powers which the police have to take fingerprints and samples following arrest and charge. The Secretary of State considers that these provisions potentially raise issues under Article 8 (right to respect for private and family life) but has concluded that the provisions are compatible with Article 8.
216. The Secretary of State accepts that the taking of fingerprints and samples is likely to constitute an interference with a person’s right to a private life under Article 8. However, the interference with a person’s physical integrity is short-lived and was characterised as ‘minimal’ by Lady Hale in R (on the application of S and Marper) v Chief Constable of South Yorkshire [2004] UKHL 39. Having to attend a police station for the purpose of having the sample or fingerprints taken, if such a requirement is imposed by a constable, is difficult to describe as much more than an inconvenience. It will be possible to run speculative searches of the sample or fingerprints against the national DNA or fingerprint database but this will only have a significant impact on a person if there is found to be a match.
217. These provisions are permissive rather than mandatory and the police will be under a duty under section 6 of the Human Rights Act 1998 to exercise their powers compatibly with Article 8. In addition, in relation to those convicted of an offence whether in England, Wales or Northern Ireland or elsewhere there will be a specific requirement for an officer of at least the rank of inspector to be satisfied that it is necessary to take the sample or fingerprints to assist in the prevention or detection of crime.
218. It will be for the police to consider whether they can justify the taking of a sample or fingerprints in an individual case under Article 8(2). It is clear that the provisions are in accordance with the law and have the aim of preventing disorder or crime and protecting the rights and freedoms of others. The Secretary of State considers that taking fingerprints and samples in these cases will be proportionate in striking a fair balance between competing public and private interests given the minimal nature of the interference, the substantial contribution which fingerprints and DNA databases have made to the prevention and detection of crime and the new and existing legislative safeguards (in particular, the insertion of an express requirement for an officer of at least the rank of inspector to be satisfied that the taking of samples is necessary to assist in the prevention or detection of crime). There will also be time limits on how long after a conviction a person can be required to attend a police station for the purposes of having his fingerprints or sample taken in the case of those convicted of offences which are not specified violent, sexual or terrorist offences and in the case of those arrested or charged but no longer in police detention.
219. Clauses 2 and 3 (and for Northern Ireland, clauses 8 and 9) contains four new powers which can be applied to those arrested but not convicted; to those charged; to those convicted; and to those with foreign convictions. Looking at each in turn, for the power in relation to those arrested but not convicted: where a person is continuing to be investigated for a recordable offence, the current law recognises that it may be necessary and proportionate to take fingerprints and samples from the person whilst they are in police detention to check that data against any fingerprints or samples recovered from the scene of the crime or any other unsolved crimes. Where the initial fingerprints or samples taken on arrest have proved insufficient or unsuitable for analysis, it is appropriate that the police should be able to take another sample or set of fingerprints, even though the person is no longer in police detention, and that the person can be required to attend a police station for that purpose. The police will have to make their request for the person to attend the police station within six months of the officer concerned being informed that the fingerprints or sample were insufficient.
220. The power to take fingerprints and samples, where such fingerprints and samples were not taken when the person was in police detention, will not be available in relation to those who are no longer subject to ongoing investigation, and against whom it has been decided to take no further action, as the person must still be on bail. In these cases, further investigation of the offence may make it necessary to obtain fingerprints and/or samples from the suspect in order to confirm or disprove his involvement in the offence. Rather than changing the bail return date purely to take the DNA sample or fingerprints, the provisions will enable the police to require a person’s attendance at the police station for this specific purpose if necessary at less than seven days notice where the data is required urgently as part of the investigation.
221. The inconvenience caused to the person by having to attend the police station will be limited by the fact that the police officer, when imposing the requirement, will have to consider whether the sample or fingerprints could be taken on the next occasion when the person is due to answer bail at the police station. It will also be possible for the person concerned to re-arrange the date with the officer who imposes the requirement if the time specified by the officer is inconvenient.
222. For the power in relation to those charged or reported: where a person has never been detained but there is nevertheless sufficient evidence to charge the person or report them for a recordable offence, it is anomalous that at present the police can only require a person to attend a police station to have a non-intimate sample taken but not their fingerprints. These provisions will allow for the taking of fingerprints in such circumstances and will also increase the one month time limit for requiring a person to attend the station for the purpose of having the sample taken to six months after they are charged or informed that they will be reported for an offence or their previous sample or fingerprints have been found to be inadequate. This is necessary because the police cannot always be expected to impose the requirement within the one month time limit given that they may have other operational priorities, they may not have an up to date address for the offender and the fact that new evidence may come to light some time after the person has been charged or reported for the offence which means that fingerprints and/or samples may now assist in proving the person’s guilt or innocence.
223. For the power in relation to those convicted, the current law already acknowledges that it may be necessary and proportionate to take fingerprints and samples from those convicted in order to detect crime and to deter the person from re-offending in the future. It is necessary to enable the police to require a person to attend a police station for the purpose of taking their fingerprints or a sample at any time after the conviction in relation to specified violent and sexual offences, not just within one month after that time or whilst they are still in custody, because these people may still pose a significant risk to the public. The police may only become aware of the continued risk posed by the offender some time after their conviction, for example, once they exhibit behaviour following their release from prison but not sufficient to merit arrest.
224. The Secretary of State is also concerned to provide a mechanism for the police to be able to require people to attend a police station for the purpose of having their sample or fingerprints taken when they have been convicted of a recordable offence prior to commencement of these provisions but after 10th April 1995. Limiting such a power to two years following commencement provides the offender with some certainty as to how long the police will have to collate the data whilst giving the police enough time to assess the risk posed by this cohort of convicted offenders and find the offender given that some offenders may well be difficult to trace. Similarly, the provisions will increase the time limit for samples and fingerprints to be taken from those convicted following commencement from one month to two years.
225. As discussed above, there will be a specific statutory requirement for an officer of at least the rank of inspector or above to be satisfied that it is necessary to take the sample or fingerprints following conviction to assist in the prevention or detection of crime. In this way, the power is intended to be targeted at those offenders who continue to represent a risk to the public of committing further crime or where there is sufficient evidence to suggest that it will assist in the detection of past crimes.
226. For the power in relation to foreign convictions, the Secretary of State considers it anomalous that a person convicted of a recordable offence in England, Wales and Northern Ireland can have their fingerprints, samples and profiles taken and retained indefinitely, yet the police will not be able to obtain similar data for a person who may have been convicted of very serious offences abroad. Even if fingerprints and samples are taken in the country where the person was convicted, that data will not always be shared with law enforcement agencies in the UK. In relation to UK nationals and residents who commit serious sexual, violent and terrorist offences, the Secretary of State therefore considers it necessary and proportionate to the prevention and detection of crime that the police should be given the power to take fingerprints and non-intimate samples from such offenders on their return to England, Wales or Northern Ireland in order that this data can be checked against and recorded on the national DNA database and fingerprint database in case it matches any unsolved crimes and to deter such people from re-offending.
227. Clauses 14 to 20 amend the Police and Criminal Evidence Act 1984 (“PACE”), the Terrorism Act 2000 and the International Criminal Court Act 2001 to provide that DNA and fingerprints taken by the police in connection with the investigation of an offence are subject to a retention and destruction regime. Clause 19 enables the making of a statutory instrument to make similar provision in respect of pre-existing material. The existing position under section 64 of PACE is that such material may be used only for defined purposes, but it may be retained after it has fulfilled the purposes for which it was taken without reference to a retention period.
228. These clauses are at the heart of the Secretary of State’s response to the decision of the Grand Chamber of the European Court of Human Rights S and Marper v United Kingdom. In this case the applicants complained that their fingerprints and cellular samples and DNA profiles were retained after criminal proceedings against them had ended with an acquittal or had been discontinued. The Administrative Court, Court of Appeal and House of Lords had all dismissed applications that this material should be destroyed.
229. The Strasbourg Court found that the mere storage and retention of fingerprints and DNA samples and profiles constituted an interference with the right to private life under ECHR Article 8. Although agreeing that retention pursued the legitimate purpose of the detection and prevention of crime, when the Court considered if retention was justified it noted that the power did not have regard to the nature or gravity of the offence, or the age of the suspected offender; that the retention was not time limited, and material was retained indefinitely whatever the nature or seriousness of the offence; that there were limited possibilities for an acquitted individual to have the date removed; and that there was no provision for independent review of justification of retention. In conclusion, the Court found that the “blanket and indiscriminate nature” of the retention powers for fingerprints, samples and profiles of suspected, but not convicted, persons, did not strike a fair balance between the public interest of prevention of crime and the rights of the individuals to privacy. The UK had overstepped any acceptable margin of appreciation. The retention at issue constituted a disproportionate interference with the applicants’ right to respect for a private life and could not be regarded as necessary in a democratic society. Accordingly there had been a violation of Article 8.
230. In the light of the Marper judgment, the Secretary of State considers that Article 8 is clearly engaged by this clause. But for a number of reasons it considers that the retention regime which is established is proportionate and compatible with Article 8 and fully implements the Marper judgment.
231. Marper held that the mere retention and storage of material had a “direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data”. The Secretary of State accepts this finding, but nevertheless considers that the level of impact on such an individual is modest. A person’s DNA profile can be accessed and used only for very limited statutory purposes. By far the greatest practical effect retention has on a person occurs only if he is implicated in a future crime, by a DNA sample found at the scene. It does not (unlike, for example, a person’s criminal record) affect his employment prospects. It does not stigmatise him as a past or future suspect in any public sense. Nor does it place him on a list of “usual suspects” which the police can use in future investigations.
232. In balancing the competing public and private interests, the Secretary of State notes that Marper in its apparent approval of the corresponding Scottish legislation seems to have accepted the principle that retaining the DNA of unconvicted people is in some cases proportionate. The Secretary of State also considers it is rational to assume that at least some people - but an inevitably unquantifiable number - whose DNA is on the database are likely to be inhibited from criminality by the increased likelihood of detection.
233. The Secretary of State further notes that Marper held that the greatest interference with private life was caused by the retention of DNA samples. Since it is now proposed to delete all samples as soon as a profile has been obtained, the Secretary of State considers that this should go a long way to meeting concerns as to excessive retention.
234. The Secretary of State’s proposed six year retention period for adults arrested but not convicted of an offence is based on research which suggests that a person who has been arrested is for six years at a higher risk of re-arrest than the chance of arrest in the general population. This in turn suggests that some detections of future crimes would be lost if the data relating to arrested persons were not retained.
235. The Secretary of State notes that Marper set some store by the existing “consensus” among Contracting States which narrows the UK’s margin of appreciation for setting retention periods (though at paragraph 47 the Court noted that France allows DNA profiles to be retained for 25 years following acquittal or discharge). However, it seems that little work has been done on the evidence base for retention periods in any of the other countries with a DNA database. It seems to the Secretary of State, therefore, that the special responsibility which the UK’s “pioneer role” confers on it should not prevent it from setting longer retention periods than is the norm in other countries, as this is supported by the best available evidence.
236. In proposing a single retention period, irrespective of the seriousness of the offence for which an adult is arrested, the Secretary of State is acting on research which points strongly to the heterogeneity of criminality - in other words, the type of offence a person is first arrested for or convicted of is not a good indicator of the type or seriousness of offence he is likely to be arrested for or convicted of in future. As the retention of biometric data of innocent people is emphatically not a punishment but rather a measure to facilitate the detection of future offences, it therefore seems appropriate to have a single retention period. Although this approach this runs counter to the steer in Marper that the seriousness of the offence is a material criterion in determining whether retention is proportionate, the Secretary of State submits that this approach is supported by the best available evidence.
237. In proposing retention periods for children, the Secretary of State has again acted on the basis of evidence which shows that the earlier a criminal career starts, the longer it is likely to last, while paying regard to the Strasbourg ruling and results of the consultation exercise which supported a more liberal policy for people aged under 18. The retention period for children aged 16 or 17 who are arrested for but not convicted of a serious offence will however be the same as for adults (namely six years), reflecting the fact that peak offending occurs at this age.
238. The proposal that biometric data of adults convicted of an offence should be retained indefinitely is made in the light of the unequivocal statement in paragraph 106 of Marper that “The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8, paragraph 2 of the Convention”. In other words, the Marper court’s judgment, the arguments it heard and the evidence it was presented with, were all directed at the issue of retaining data from people who had not been convicted. Moreover, the arguments above about the real benefit in preventing crime, and the limited interference with individuals’ rights, apply a fortiori to convicted people.
239. Under the Bill, data can be retained for a renewable period of up to two years beyond the time that destruction would otherwise occur if the chief officer of police determines that this is necessary for national security purposes. The Secretary of State is satisfied that this is a proportionate interference with the Article 8 rights of people whose data are retained. In reaching this view, the Secretary of State has had regard to the facts that issues relating to terrorism and national security frequently have a special status in legislation (for example, in Murray v United Kingdom [1994] (19 EHRR 193) the ECtHR recognised that “terrorist crime falls within a specialist category”), that investigations to counter national security threats are by nature often prolonged, and that the harm that can be caused by terrorist activity is likely to be particularly devastating.
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