Protection of Freedoms Bill

Memorandum submitted by the Law Society of England and Wales (PF 15)

1. The Law Society (‘The Society’) is the professional body for solicitors representing over 145,000 solicitors in England and Wales. The Society represents the solicitors’ profession to decision makers within Parliament, Government and the wider stakeholder community, and has an established public interest role in law reform.

2. The Society takes an interest in Parts 1, 2, 3, 4, 5 and 7 of the Bill. The Society welcomes the opportunity to give written and oral evidence to the Public Bill Committee.

Part 1, Regulation of biometric data

Chapter 1: Destruction, retention and use of fingerprints etc.

3. The provisions on the destruction, retention and use of DNA & fingerprints (Chapter 1, Part 1) are welcome.  The Society opposes in principle the indefinite retention of DNA profiles and fingerprints of people who have never been convicted of a crime. However, compared with the changes introduced by the previous government in the Crime and Security Act 2010, these provisions will introduce a more proportionate three year retention period where the information results from an arrest for a serious violent crime, and immediate destruction in the case of an arrest for a minor crime, mirroring the Scottish system.  Accordingly they are an improvement.


Part 2, Regulation of Surveillance

Chapter 1: Regulation of CCTV and other surveillance camera technology

4. The Society has expressed concern about restricting the scope of the proposed code to local authorities and the police.

5. The Society has pointed out that most CCTV systems are not operated by the police or local authorities. According to the British Security Industry Association (BSIA)’s CCTV Section "state-owned CCTV accounts for less than 10% of the cameras in the UK. It’s the privately-owned surveillance systems that provide the majority of evidence in prosecutions."

6. The Society would also point to the work of Professor Raab and his collaborators in the Surveillance Studies Network (SSN) in their recent report for the Information Commissioner (Report to Parliament on the state of surveillance, November 2010) "[t]he public and private sectors are no longer discretely bounded…data flows across them between the state and private companies in complex pathways."

7. It is now clear that this is recognised by the Home Office. In the Home Office’s Consultation on a Code of Practice Relating to Surveillance Cameras (1 March 2011) they acknowledge that "many…[CCTV] systems owned and operated by the private sector in locations where the distinction between public and private space is blurred, including for example privately owned premises which the public is actively encouraged to visit (shopping centres, business premises, public transport and sporting venues). In many local areas, there has been a deliberate integration and networking of publicly and privately owned systems in recognition of the blended nature of the space in which we conduct many or our day to day activities and in order to maximise the benefits of CCTV coverage of these areas."

8. The Home Office also recognise that the private sector uses and exchanges APNR data in relation to monitoring private areas and car parks but that there is ‘less clarity around the use of Automatic Number Plate Recognition (ANPR) by private companies’ than there is in police use of ANPR (which follow ACPO guidelines).

9. They have expressed the ‘hope that the Code will be widely adopted as the standard’ beyond local authorities and police forces. If this is the government’s intention it would be better realised by addressing it on the face of the Bill. Indeed, on privacy grounds the case for requiring the private sector to have regard to the proposed Code may be slightly greater for two reasons. Public authorities are directly or indirectly accountable to the public in a way that does not apply to private operators; and CCTV systems operated by or on behalf of public authorities are subject to the qualified right to respect for private and family life enshrined in Article 8 of the European Convention on Human Rights.

10. There is a danger that the recognition of blurred boundaries between public and private sector CCTV and ANPR and a desire for adoption of the Code by the private sector without including the sector in the provisions of the Bill reflect a lack of clarity about objectives. The relationship between the framework proposed by the Bill and the Information Commissioner’s responsibilities are similarly unclear.

11. The potential for conflict with the Information Commissioner’s existing CCTV code of practice and between the Information Commissioner and the Surveillance Camera Commissioner have been pointed out by commentators [1] and is of concern to the Society. More importantly, the Information Commissioner has expressed concern that ‘it may be difficult to reconcile different legislative approaches within one document, especially where there are differences in territorial scope, sectors covered, compliance obligations and enforcement mechanisms’. [2]

12. There must be a danger that the overall effect of this approach will be to increase rather than decrease the clarity of the legal and administrative objectives and frameworks within which CCTV and ANPR are deployed and regulated. Such a piecemeal approach to legislation is unlikely to result in robust and effective law that stands the test of time.

Chapter 2, Safeguards for certain surveillance under RIPA

13. The Society has called for review of Regulation of Investigatory Powers Act 2000 (RIPA) on numerous occasions. Our view has always been that a confused and complex legislative framework for surveillance, along with equally complex and overlapping oversight arrangements, is a significant and dangerous component of a Surveillance Society.

14. The Bill’s proposed restriction on local authority surveillance powers is welcome but, again, piecemeal. Symptomatic of the wider need for review, and of particular concern to the Society, neither RIPA nor its Codes of Practice, prevent surveillance of solicitors’ communications with their clients. The Bill is a missed opportunity.

15. The relevant passage from the Codes (they have similar wording) is that:

"The 2000 Act [ie RIPA] does not provide any special protection for legally privileged information" (para 3.5)

16. The Courts have taken a different view. In R v Grant [2005] 3 WLR Laws LJ delivering the judgment of the Court of Appeal said that 'Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court's process'. He also quoted the well-known passage from Lord Taylor of Gosforth CJ in R v Derby Magistrates' Court Ex p B [1996] AC 487, 507:

"Legal professional privilege is...much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests"

17. To some extent, this is recognised in the Codes of Practice which go on to say that "[l]egally privileged information obtained by surveillance is extremely unlikely ever to be admissible as evidence in criminal proceedings. Moreover, the mere fact of such surveillance has taken place may lead to any related criminal proceedings being stayed as an abuse of process" (ibid).

18. So alongside our concern about a piecemeal approach to legislation the more general point the Society would wish to make is that Codes of Practice – as potentially, in the case of CCTV - can sit uncomfortably and confusingly alongside legislative provisions and wider legal frameworks.

Part 3, Protection of property from disproportionate enforcement action

Chapter 1, Powers of entry

19. The Society welcomes the new power for the appropriate national authorities, in clause 39 and schedule 2, to repeal unnecessary or inappropriate powers of entry to land or other premises, and the power to add safeguards to any power of entry, in clause 40.

Part 4, Counter-terrorism powers

Clause 57, Permanent reduction of maximum detention period to 14 days

20. The Society welcomes the reduction in the maximum period for detention in terrorism investigations.  While the permanent reduction of the maximum detention period for terrorist suspects in the Terrorism Act 2000 from 28 to 14 days is very much supported, the Society considers that there is a case for considering the return to the originally enacted period of 7 days, which applied until the increase to 14 days was enacted in the Criminal Justice Act 2003.

Clauses 58 – 62, Stop and search powers: general

21. The repeal of the overly broad 'without suspicion' stop and search powers in s44 - 47 of the Terrorism Act 2000 is welcome.  The much more tightly drawn power for senior police to authorise such stops and searches, limited to where a reasonable suspicion exists that an act of terrorism will take place, for specific areas and only for as long as necessary, are far more proportionate. 

Part 5, Safeguarding vulnerable groups, criminal records etc.

Chapter 2, Criminal records

22. The Society supports the changes to the Police Act 1997 concerning the information provided in criminal record certificates, the setting of a minimum age and the additional safeguards, which reflect the outcome of Ms Sunita Mason's recent review of employment vetting schemes involving the Criminal Records Bureau.  The Society agrees that these changes will make the system strike a more proportionate balance between civil liberties on the one hand, and the protection of the public on the other. 

Chapter 3, Disregarding certain convictions for buggery etc.

23. The Society supports the proposed power of the Secretary of State to disregard historic convictions or cautions for consensual gay sexual offences with over 16 year olds.

Part 7, Miscellaneous and general

Clause 99, Repeal of provisions for conducting certain fraud cases without jury

24. The Society has a long history of support for the right to trial by jury in serious criminal cases, so it very much welcomes clause 99 which would repeal the, yet-to-be-implemented, section 43 of the Criminal Justice Act 2003 that allows a prosecution application for trial without jury in certain serious fraud cases.

March 2011

[1] Notably Dr Chris Pounder of Amberhawk, “Protection of Freedoms Bill promotes efficient CCTV surveillance not effective privacy” 16 February 2011

[2] The Information Commissioner’s evidence to the Public Bill Committee on the Protection of Freedoms Bill.