Protection of Freedoms Bill

Memorandum submitted by Equality and Human Rights Commission

Committee stage briefing:

Protection of Freedoms Bill

Contents

Summary 

· The Equality and Human Rights Commission welcomes the opportunity to comment on the Protection of Freedoms Bill . Our advice on this Bill is provided in the context of our statutory duty to promote, enforce and monitor the effectiveness of equality and human rights enactments. [1]

· The Commission broadly welcomes the Bill as providing better protection of human rights. In particular, we welcome measures in relation to the retention and destruction of biometric data , which we consider would provide for a more proportionate regime.

· However, the Commission consider s that aspects of the B ill could be strengthened to ensure they adequately protect human rights. For example , we welcome proposals to amend s ection 44 stop and search powers , but consider they m ay fail to meet requirements under the European Convention on Human Rights. The Commission would suggest additional safeguards for use of these powers .

· The Commission also welcome s further regulation of CCTV surveillance . We would suggest a comprehensive review and reform of legislation governing information privacy to simpl if y existing legislation , as well as ensure it adequately protects and promotes the right to privacy.

Part 1 - Regulation of biometric data 

Commission’s position

The Commission welcomes provisions in the Bill regarding the regulation of DNA profiles and fingerprints. These proposals reflect aspects of the Scottish model, which the Commission considers provides a more proportionate system than currently in place in England and Wales.

The Commission recognises the importance of the database as a tool for detecting and preventing crime. However, we have always considered that retaining DNA samples and profiles indefinitely regardless of the circumstances of the case to be incompatible with the right to privacy under Article 8 of the European Convention on Human Rights (‘the Convention’).

In addition, the Commission considers that the over-representation of ethnic minority men [1] and other vulnerable groups such as children [2] and people with mental health conditions on the database engages and may violate Article 14 of the Convention regarding prohibition of discrimination.

The Commission regards indefinite retention for all recordable offences to be disproportionate, as found in the case of S and Marper [3] . We recommend that the Bill provisions align with the Council of Europe's guidance on the use of DNA within the criminal justice framework. [4]

In relation to proposals on the retention periods for DNA profiles and fingerprints, the Commission considers that the starting point should be that these are destroyed when a final decision has been made in a particular case, subject to limited circumstances. The limited circumstances can be summarised as follows:

· When there has been a conviction;

· when the conviction concerns a serious criminal offence against the life, integrity and security of a person;

· the storage period is strictly limited and regulated by law; and

· the storage is subject to independent or parliamentary scrutiny.

The Commission considers that the Bill meets these criteria to some extent. [5] Importantly, it treats DNA samples differently from profiles and fingerprints.

Destruction, retention and use of fingerprints 

Clause 7: Retention of children’s DNA

The Commission welcomes the provisions on the retention of DNA of children, however would suggest that these measures do not go far enough. The Commission would advise that the DNA material of children not convicted of an offence be destroyed as soon as reasonably practicable in all but the most exceptional circumstances.

The retention of a child’s DNA can be particularly harmful to them and can lead to stigmatisation, as the UN Committee on the Rights of the Child found in its concluding observations in 2008. [6] Therefore, the Commission would advise that children arrested for or charged with a minor offence are not treated in the same way as adults.

In the case of convicted children, the Commission considers that there should be a presumption in favour of destruction of DNA material on reaching 18 or at the end of the sentence, if it is beyond their 18th birthday.

Clause 9: National security

Clause 9 of the Bill provides that fingerprints and DNA profiles (‘section 63D material’), may be retained for as long as a 'responsible chief officer' determines that it is necessary for the purposes of national security, subject to renewal every two years.

In effect, this would allow for the indefinite retention of section 63D material of people who have never been convicted of or possibly even charged with an offence.

The Commission has concerns with this provision. In our view, it will fail to address the current disproportionality of ethnic minority groups on the database. We also consider this provision may not meet the test of proportionality and therefore will not comply with Article 8 of the Convention.

For that reason, the Commission would advise the government to re-consider this provision.

Clause 18: Definition of conviction

Clause 18 of the Bill defines a conviction as including cautions, warnings and reprimands under the Crime and Disorder Act 1998, and it specifies disregarding the Rehabilitation of Offenders Act 1974. [7]

Cautions, warnings and reprimands are aimed at low level repeat offenders, such as drug addicts. Therefore, the Commission considers it would be disproportionate to treat these in the same way as convictions [8] .


Part 2 - Regulation of surveillance   

Commission’s position

The Commission recognises that CCTV can be a useful tool in the prevention of crime and can increase people’s feelings of safety and security. However, the use of CCTV and other surveillance camera technology engages the right to privacy under Article 8 of the Convention and therefore the aim of the use of a surveillance power must be clearly and unambiguously established, and its scope strictly confined to the requirements of the investigatory aim it pursues.

The Commission welcomes the intention to place CCTV and other surveillance camera systems on a statutory regulatory basis, and the associated regulatory function of a Commissioner to oversee compliance with the code.

While we welcome the current proposals as a step in the right direction, we have concerns as to the complexity and adequacy of the proposed regulatory system for CCTV.

The Commission is concerned that the proposals will not increase the ability of individuals to ascertain what information is held on them or to challenge why or how that information is held. The Commission is also concerned that the complex legal and regulatory regime will prove difficult to follow for those operating CCTV and other surveillance camera systems.

Evidence

Individuals and communities have expressed concern about the use and impact of CCTV [1] . For example, concerns were raised by Muslim communities regarding the recent positioning of over 200 CCTV cameras in an area of Birmingham. [2]

The processing of personal data captured by CCTV is regulated by the Data Protection Act 1998 (DPA) and the use of covert CCTV systems is subject to the Regulation of Investigatory Powers Act (RIPA) 2000. Both have associated codes of practice and regulators.

The Commission considers that as this legislation sanctions interferences with human rights for necessary public interest purposes, it should be as accessible and transparent as possible.

In its report, Surveillance: citizens and the state [3] , the House of Lords Constitution Select Committee stated:

"We recommend that the government should propose a statutory regime for the use of CCTV by both the public and private sectors, introduce codes of practice that are legally binding on all CCTV schemes and establish a system of complaints and remedies."

While the Commission welcomes the placing of CCTV and other surveillance cameras on a statutory footing, the Commission is concerned that these proposals add another layer to an already complex and confusing statutory and regulatory system.

The provisions set out in this Bill will have to be read in conjunction with the DPA 1998 principles and Article 8 of the Convention, and where appropriate the Regulation of Investigatory Powers Act (RIPA). While some aspects of regulation of CCTV may be suitable for a statutory code, the Commission considers there is a need for comprehensive legislative reform of regulation of CCTV, and indeed information privacy issues generally.

Clause 33: Effect of CCTV code

The Commission would welcome consideration being given to expanding the scope of the CCTV code to include other government agencies and private sector organisations, including those undertaking a public function.

The vast majority of surveillance cameras are in fact operated by private bodies, for example the use of automatic number plate recognition systems by private car park contractors.


Clause 34: Commissioner in relation to code

The Commission would welcome consideration being given to providing the Surveillance Commissioner with similar complaint and enforcements powers to those of the Information Commissioner. This would ensure consistency in powers, approach and remit between the Information Commissioner and the new Surveillance Commissioner.

The Information Commissioner has responsibility for promoting and enforcing the DPA 1998. There is significant overlap between the Information Commissioner’s remit and that of the proposed Surveillance Commissioner, as the DPA 1998 applies to images related to an individual captured by CCTV. The Information Commissioner has already published a CCTV code of practice to assist compliance with the DPA 1998.

Safeguards for certain surveillance under RIPA  2000 

Commission’s position 

The Commission welcomes the proposals for additional safeguards to govern the use of RIPA 2000 powers by local authorities. The Commission considers that judicial control affords the best guarantee of independence, impartiality and a proper procedure. [1] We would suggest the greater the independence of the bodies or officials that authorise and review the use of covert methods, the greater the likelihood that the regulatory regime will satisfy the requirements of Article 8(2) of the Convention.

However, in addition, the Commission recommends a more comprehensive review of legislation regarding information privacy generally, in particular the DPA 1998 and RIPA 2000. The key objectives of such a review would be:

a) To simplify the legislation, which is a complex and unwieldy legislative regime and has been described as ‘puzzling’ and ‘perplexing’ [2] ; and

b) to ensure that legislation and regulation which deals with information privacy rights adequately protects and promotes the right to privacy and is compliant with the Human Rights Act 1998.

Part 4 - Counter-terrorism powers 

 


Commission’s position

The Commission welcomes the reduction in the pre-charge detention period from the previous regime of up to 28 days to a maximum of 14 days. The Commission also welcomes the removal of the order making powers , which would have enabled a reversion to up to 28 days detention.

However, the Commission is concerned that the proposed pre-charge detention period still remains significantly in excess of that in the normal criminal justice system.

The Commission considers that long periods of pre-charge detention raise serious matters of principle and practice and therefore considers the lower the extended period of pre - charge detention, the more likely it is that the measures will be necessary and proportionate .

As a starting point, the Commission would suggest that normal periods of pre - charge detention within the criminal justice system of up to four days should be used wherever possible. [1]

T he Commission is also concerned to note t hat the sunset clause, which required annual renew of extended periods of detention of up to 28 days, has been removed . This means the new provision for up to 14 days detention will be permanent .

Evidence

As a matter of principle, extended periods of pre-charge detention are contrary to human rights and British constitutional history and values. [2]

Article 5(3) of the Convention requires that any person detained be brought before a court and Article 5(4) requires that the legality of detention shou ld be determined speedily by a J udge. Furthermore, a ny period of detention must be accompanied by the appropriate procedural guarantees, sufficient to ensure compliance with the Convention.

I f terrorism matters were dealt with through the usual criminal process es in usual circumstances there would be a maximum period of pre charge detention of up to 4 days. This is similar to elsewhere , including Canada (one day) , the US ( two days) , Germany, ( two days) , Spain (five days), and France (six days). It would also be in accordance with the recommendations of Lord Lloyd in his 1996 inquiry into terrorist legislation [3] .

In 2008, the UN Human Rights Committee noted its concern at extended detention periods. [4] Both it, and the UN U niversal P eriodic R eview have recommended strict time limits and strengthened guarantees for those in detention [5] , and that any terrorist suspect arrested should be promptly informed of any charge against him or her and tried within a reasonable time or released. [6]

The original power under the Terrorism Act 2000 was for up to seven days detention, and this was only increased to 14 days detention by the Criminal Justice Act 2003. Comparatively , few numbers are held in detention for over seven days. From 2006-9 , 91% of those arrested under terrorism charges were released within a week and a significant proportion of those held for over seven days were not subsequently charged with terrorism offences [7] .

Solution

T he Commission would recommend that this power should remain subject to annual renewal by Parliament. We also consider that there should be an assessment by the Crown Prosecution Service as to whether it continues to be necessary in light of the nature of the terrorist threat, as well as consideration of its operation and necessity by the independent reviewer of terrorism legislation.

Fairness of judicial procedures for extended warrants 

Commission’s concern

The Commission recommends the government takes this opportunity to amend Schedule 8 of the Terrorism Act 2000.

The amendment could provide for full implementation of the requirements set out in the judgment of AF [1] in relation to the use of special advocates and closed material in extended pre - charge detention proceedings. This would ensure that the procedure for judicial consideration of request for extended periods of detention is fair, meets A rticle 5 requirements, and enables the detainee to effectively know and challenge the basis for detention.

Evidence

In the recent case of Sher [2] , it was argued that the lack of the special advocate procedure meant that the detainee was unable to effectively challenge the evidence on which an application for extended detention was made [3] . The court considered that the current regime under Schedule 8 of the Terrorism Act met the requirements of Article 5 of the Convention , and that there was no need for the special advocate procedure. However , the Commission understands that this decision is currently being appealed.

 

Stop and search powers   

Commission’s position

The Commission welcomes proposals to amend s44 stop and search powers. While the Commission considers this an improvement on the previous regime, we would suggest that additional safeguards are required to ensure they fully comply with the Convention.

The Commission recognises that there may be exceptional circumstances where it is necessary for there to be a power to stop and search without reasonable suspicion. However, any departure from the principle of reasonable suspicion must be only used where it is strictly necessary to prevent a real and immediate act of terrorism. Its use must be non-discriminatory and in accordance with the provisions of the Convention.

Evidence

The European Court of Human Rights (ECtHR) considered the compliance of the previous s44 powers with the Convention in the case of Gillan and Quinton v UK in 2010. [1] While making no determination on compliance with Article 5 of the Convention, the court found the powers breached Article 8 stating:

"The safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference." [2]

The court was particularly concerned regarding the wide discretion given to a police officer when a s44 authorisation was in place, and the lack of any need for suspicion in how they exercised the decision to stop and individual.

"Of still further concern is the breadth of the discretion conferred on the individual police officer. ...That decision is ... one based exclusively on the "hunch" or "professional intuition" of the officer concerned. Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched"

The court set out a number of criticisms. These focussed on:

· The basis on which an authorisation could be made;

· the process for making and reviewing an authorisation;

· the restraints on an individual police officer in exercising the power once an authorisation was made; and

· the ability of an individual to effectively challenge the use of the powers.

The Commission regards the provisions in the Bill address a number of these concerns, in particular in relation to when an authorisation for the use of these powers can be made, the length and geographical scope of the authorisation, and approval for the authorisation.

This is welcome however the Commission considers that greater safeguards should put in place. For example, there is no provision in the Bill that address the concern of the ECtHR in relation to the lack of requirement of reasonable (or any form of) suspicion on the part of the individual police officer in deciding to search an individual.

The Commission has sought the advice of Rabinder Singh QC, counsel in the case of Gillan, and Professor Aileen McColgan. Their advice is that, as currently drawn, the powers are likely to be arbitrary and discriminatory in their use and to breach Article 5, 8 and 14 of the Convention. Singh and McColgan question whether the use of such powers without reasonable suspicion can fully comply with the Convention. However, they support the view that the more tightly drawn the powers and stringent the safeguards, the greater the likelihood that the court will find the use of the powers in practice to be compliant.

Additional safeguards  that should apply

Authorisation of designation

Clause 60(1): s43 B (1): Schedule 6B (7)

To strengthen the safeguards for the use of the stop and search power, the Commission considers that designations should be subject to prior judicial authorisation. In urgent cases, an authorisation could be made by a senior police officer, with the requirement that it must be confirmed by a judge within 24 hours.

The current provision in the Bill provides for authorisation of a designation by a senior police officer. The court in the Gillan case expressed concern over review of authorisations. In particular, the court noted the limited review powers of the Secretary of State, and the fact that as far as it was aware no authorisations had subsequently been refused. It also expressed concern that the only judicial scrutiny of use of the powers was limited judicial review.

The Bill strengthens the powers of the Secretary of State to review authorisations. However, the Commission remains concerned that initial authorisation is by a senior police officer, and is only subject to subsequent scrutiny by the Secretary of State, with limited possibility of judicial review.

Geographical extent of stop and search area

Clause 60 (1): s 43B (1)(b)(ii)

The Commission would suggest that this provision should be more tightly proscribed to include a specific geographical limit. The Commission would suggest a geographical limit of no more than one square mile.

Duration of designation

Clause 60(1): section 43 B(1)(b)(iii)

The Commission suggests that such a maximum duration should be no longer than 48 hours. Any need for longer periods of designation should require a fresh authorisation, made by a judge.

Concerns were raised in respect of the previous legislation that rolling authorisations were used, to create long continual periods of designation. The Commission suggests the Bill is amended to prevent this occurring, with a limit specified as to the number of authorisations that can be made consecutively and in relation to a given place.


About the Equality and Human Rights Commission 

The Equality and Human Rights Commission is an independent statutory body established under the Equality Act 2006.  The Commission works to reduce inequality, eliminate discrimination, strengthen good relations, and promote and protect human rights.  As a regulator, the Commission is responsible for enforcing equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encouraging compliance with the Human Rights Act.  The Commission has achieved ‘A’ status accreditation as a National Human Rights Institution, enabling us to participate in the United Nations Human Rights Council, and to undertake monitoring of the UK’s human rights obligations.

March 2011


[1] Sections 8 and 9, Equality Act 2006.

[1] A Commission report in 2009 found that Black men were four times more likely to be on the DNA database (30%) than white men (8%). It found that the database held about one third of all Black men and the proportion of Asian people on the database was increasing beyond their proportion to the size of the population. (Police and Racism: What has been achieved 10 years after the Stephen Lawrence inquiry report? 2009. Equa lity and Human Rights Commission )

[2] Hansard, 14 January 2009, column 788w: http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090114/text/90114w0014.htm#090115103000152 . In 2009, it is estimated that there were over 150,000 children on the DNA database with a further 300 added per day.

[3] In the case of S and Marper v UK , the European Court of Human Rights (ECtHR) held that the ‘blanket and indiscriminate’ retention of fingerprints, DNA samples and profiles of persons amounted to a violation of the right to respect for privacy under Article 8 of the Convention. Following the judgment, the framework governing the retention and destruction of DNA samples was amended by way of the Crime and Security Act 2010 (CSA), although the Commission regarded this framework did not sufficiently address the issues identified by the ECtHR. See: S and Marper v United Kingdom [2008] ECHR 1581 (4 December 2008).

[4] Committee of Ministers Recommendation No. R (92) 1, para.8 and the related Explanatory Memorandum: cited in S and Marper at n.3 above paras.43 and 44

[5] See Equality and Human Rights Commission ’s p arliamentary b riefing , January 2010, Home Affairs Select Committee's Inquiry into the National DNA database,

[6] The UN Committee on the Rights of the Child has raised concerns about the retention of DNA data on the National DNA Database irrespective of whether they are charged or convicted - see Committee on the Rights of the Child 49th Session, Concluding Observations on UK , 20 October, at para 36. Full report available at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf

[6]

[7] Section 18(2)

[8] See Home Office website for more on the status of cautions and warnings: http://www.homeoffice.gov.uk/police/powers/cautioning/

[8]

[1] See for example report on Surveillance Society: Surveillance Studies Network September 2006: Big Brother watch 2010: the grim RIPA .

[2] Th ames Valley Police, Project Champion Review. 30 September 2010

[3] House of Lords Constitution Select Committee, Surve illance: Citizens and the State , 2 nd Report of Session 2008-09, HL Paper 18-I. London: The Stationery Office.

[3]

[1] Rotaru v Romania (2000) 8 BHRC 43 at para 59; Kopp v Switzerland (1999) 27 EHRR 91 at para 74.

[2] Lord Bingham in Attorney General’s Reference (No 5 of 2002) [2004] UKHL 40 paragraph 9

[1] See for example recommendations of Report of the Eminent Jurists Panel on Terrorism, Counter Terrorism and Human Rights, Geneva 2009; Recommendations of Lord Lloyd; Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism (cm 3420 October 1996).

[2] The rights to liberty, presumption of innocence and protection against unlawful imprisonment were enshrined in the Magna Carta. Extended periods of detention without charge enga ge Articles 5 of the Convention . Extended periods of detention also potentially engage Article 3 (prohibition on torture), Article 6 (right to a fair trial) and Article 14 (non discrimination).

[3] Lord Lloyd, supra

[4] CCPR Concluding Observations , 93 rd Session UK review July 2008 : http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/433/42/PDF/G0843342.pdf?OpenElement

[5] United Nations Human Rights Council Universal Period Review : http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx

[6] CCPR concluding observations, 93 rd Session UK review July 2008 : http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/433/42/PDF/G0843342.pdf?OpenElement

[7] House of Commons Library research paper 11/20 .

[1] Secretary of State for the Home Department v AF

[2] Sultan Sher and others (2010) EWHC 1859

[3] The special advocate procedure is used where there is closed or secret evidence. A special advocate is appointed on behalf of the defendant who has access to closed and secret evidence. The special advocate puts the defendant’s case to the court, although the defendant is not able to see the material. The procedure is used in immigration appeals, control orders, and other cases where there is a need to withhold evidence from the defendant for national security reasons.

[1] Gillan and Quinton v United Kingdom

[2] Gillan ibid para 79