Protection of Freedoms Bill

Memorandum submitted by the Criminal Bar Association (PF 23)

INTRODUCTION

1. The Criminal Bar Association ("CBA") represents about 3,600 employed and self-employed members of the Bar who appear to prosecute and defend the most serious criminal cases across the whole of England and Wales. It is the largest specialist bar association. The high international reputation enjoyed by our criminal justice system owes a great deal to the professionalism, commitment and ethical standards of our practitioners. The technical knowledge, skill and quality of advocacy guarantee the delivery of justice in our courts; ensuring on our part that all persons enjoy a fair trial and that the adversarial system, which is at the heart of criminal justice, is maintained. We welcome the opportunity to provide evidence to the Protection of Freedoms Bill Committee.

SUMMARY

2. The CBA is supportive of the attempt by the Government to redress some of the widely perceived imbalance which has developed between the rights of the individual and the powers of the State.

3. It is the view of the CBA that the Protection of Freedoms Bill contains a number of valuable measures which have the potential to provide greater safeguards of the freedom of the individual without significant adverse effect to the investigatory powers of the police and other authorities.

SUBMISSIONS

Part 1: Regulation of Biometric Data

Chapter 1: Destruction, retention and use of fingerprints etc

4. The CBA is supportive of the proposed changes to the system of use and retention of biometric data. It is of the view that the adoption of the Scottish model approved by the European Court of Human Rights in S and Marper v UK represents a positive development. In particular, the CBA welcomes the provision in Clause 1, the proposed new section 63D of PACE, that there be destruction of DNA profiles and fingerprints where they have been taken unlawfully or in connection with an unlawful arrest or on the basis of mistaken identity. Moreover, the CBA welcomes the restriction on the retention of biometric information taken in connection with the investigation of an offence in which the person is suspected of being involved until the conclusion of the investigation. The CBA also welcomes the proposed judicial oversight of applications for extension of the period for retention of DNA and considers that the appointment of a Commissioner under clause 20 will be beneficial.

Chapter 2 of Part 1: Protection of biometric information of children in schools etc

5. The CBA supports the regulation of powers to obtain biometric data from persons under 18 and considers that the requirement that schools provide a reasonable alternative when consent is not given to the processing of biometric data is appropriate.

Part 2: Regulation of Surveillance

Chapter 1: Regulation of CCTV and other camera surveillance technology

6. The CBA welcomes the institution of a Code of Practice for the use of CCTV and ANPR and considers that the proposals for the involvement of Parliament in the approval of the code and any amendments to it are appropriate. Moreover, the CBA considers it valuable that a court or tribunal may take into account any failure by a relevant authority to have regard to the code in the determination of any question in proceedings. The CBA supports the appointment of a Surveillance Camera Commissioner under Clause 34.

Chapter 2 of Part 2 – Safeguards for certain surveillance under RIPA

7. Plainly there have been some high profile examples of arguably disproportionate, intrusive surveillance by local authorities. The CBA considers the Government’s response to be sensible. The CBA welcomes the provision for judicial oversight of applications for the use of such surveillance. The CBA considers that the tests and procedure for approval of applications under the new sections of RIPA are appropriate.

Part 3: Protection of Property from Disproportionate Enforcement Action

Chapter 1: Powers of Entry

8. The CBA is of the view that the Clauses 39 to 46 of the Bill constitute sensible provisions designed to rationalise the powers of search and seizure currently available to the authorities. The proposed code of practice into powers of entry and associated powers is supported by the CBA.

Chapter 2 of Part 3: Vehicles left on land

9. The CBA supports the Government’s attempts to counter the activities of unscrupulous firms and others operating in this area. The CBA considers that the framework included in Clause 54 is sensible and considers a financial penalty to be the appropriate level of punishment for such an offence.

10. The CBA also agrees with the proposals set out in Clauses 55 and 56 and the associated schedules.

Part 4: Counter-terrorism powers

Chapter 1 – Permanent reduction of maximum detention period to 14 days

11. The CBA congratulates the Government on having the courage to legislate to this effect. It is well known that some people have been held to the statutory maximum period and then released without charge. It is the experience of practitioners working in this area that persons detained in police custody in connection with terrorist offences find it to be a very difficult experience. It is to be hoped that the reduction in the maximum period of detention allowed would reduce the difficulties associated with such detention whilst still providing sufficient time for effective investigation on the part of the police.

12. The CBA is also very supportive of the new provisions governing ‘stop and search’. It was plain to many practitioners in the area that there was the potential for abuse of the powers available to the police. The Government’s response to Gillan v UK [2010] EHRR 45, designed to ensure stop and search powers are compliant with the European Convention on Human Rights, is welcomed. The CBA considers that the introduction of an associated code of practice is appropriate.

Part 5: Safeguarding vulnerable groups, criminal records etc

Chapter 1: Safeguarding of vulnerable groups

13. The CBA considers the amendments to provisions relating to regulated activities with vulnerable adults and vulnerable children, set out in clauses 63 to 66 of the Bill, to be sensible.

14. Similarly, the CBA is supportive of clauses 67 and 68 which repeal provisions relating to controlled activity and the monitoring of individuals in connection with the SVGA.

15. Provision made in clause 70 for review of inclusion in the barred lists is supported by the CBA, as is the imposition of the duty to check whether a person is barred inserted into the SVGA by clause 72.

Chapter 2 of Part 5: Criminal Records

16. The CBA does not oppose the provisions relating to criminal records set out in clauses 77 to 81 of the Bill.

Chapter 3 of Part 5: Disregarding certain convictions for buggery etc

17. The CBA welcomes the provisions contained within clauses 82 to 88 of the Bill. It considers it entirely appropriate that, following a successful application to the Secretary of State, convictions for consensual homosexual activity which is no longer criminalised should be treated in law as though the offence had not been committed.

18. The CBA considers that an appeal to the High Court against a refusal by the Secretary of State under clause 89 is to be welcomed. Given that the clause prohibits the use of any evidence not before the Secretary of State and provides that there should be no further appeal, the CBA is of the view that more than one application to disregard should be available to a person.

Part 6: Freedom of Information and Data Protection

19. The CBA has no observations on the provisions relating to freedom of information and data protection included in Clauses 92 to 98 of the Bill.

Part 7: Miscellaneous

20. The CBA warmly supports Clause 99 repealing section 43 of the Criminal Justice Act 2003. The CBA is strongly of the view that jury trial should be available to all those facing trial on charges relating to serious fraud.

21. The CBA has no observations to make on Clause 99 governing the timing of the holding of marriage or civil partnership ceremonies.

March 2011