Protection of Freedoms Bill
Memorandum submitted by British Irish RIGHTS WATCH (BIRW) (PF 53)
INTRODUCTION
1) British Irish RIGHTS WATCH (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our vision is of a Northern Ireland in which respect for human rights is integral to all its institutions and experienced by all who live there. Our mission is to secure respect for human rights in Northern Ireland and to disseminate the human rights lessons learned from the Northern Ireland conflict in order to promote peace, reconciliation and the prevention of conflict. BIRW’s services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. BIRW take no position on the eventual constitutional outcome of the conflict.
2) We welcome this opportunity to submit written evidence to the Protection of Freedoms Bill Committee. We will respond to four aspects of the Bill. First, the proposals on the collection and retention of biometric information. Second, amendments to the authorisation of surveillance powers under the Regulation of Investigatory Powers Act 2000 (RIPA). Third, the permanent reduction of pre-charge detention to 14 days. Fourth, the proposals regarding stop and search without suspicion.
3) The Bill is a missed opportunity in some respects. For example, the Bill could have addressed the harmful, degrading and discriminatory effect of ‘Mosquito’ devices on young people, and the administrative detention of foreign nationals suspected of involvement in terrorist activities. The Bill goes some way in rolling back certain of the draconian powers which have undermined the fundamental rights and freedoms of many people. There is still an opportunity to strengthen key parts of this Bill to provide a fuller and stronger protection for civil liberties.
THE REGULATION OF BIOMETRIC DATA
4) BIRW has always argued that the retention of DNA of all those arrested for or charged with a minor offence but never convicted is wrong. We therefore welcome proposals to remove this information from the database of biometric information in line with the judgment of the European Court of Human Rights (ECtHR) in S and Marper v UK . However, we note that the Bill proposes that the biometric information of those charged but never convicted can be retained for a period of three years and then extended for a further period of two years by a District Judge. In addition, the Bill proposes to retain the biometric information of a child receiving a non-custodial sentence for a period of five years. Finally, the Bill proposes a separate scheme in relation to material retained for "national security purposes". A National Security Determination would be a decision of a senior police officer that it would be necessary for material taken in connection with an offence to be retained on the database for reasons of national security. A Commissioner for the Retention and Use of Biometric Material would be appointed to review all such Determinations.
5) We reject the proposed retention of biometric data of those charged but never convicted for a period of three years with the possibility of extension to up to five years. This material must be removed from the database and destroyed in line with the practice in Scotland. The proposed review by a District Judge would become routine in practice, and an unnecessary administrative burden to the courts. Further, to retain this data on the basis of a police officer’s construction of the meaning of the phrase "national security" is dangerously discretionary. Even though a Commissioner would review these police determinations, no criteria for such review has been provided. To retain on the grounds of undefined national security grounds the biometric information of those charged but not convicted is wrong in that it assumes suspicion and offends the right to privacy under Article 8 of the Convention. It also fatally undermines the presumption of innocence, which is part of the bedrock of our legal system.
6) Regarding the retention of the biometric information of children we argue that there is a presumption that such information should be removed from the database at the age of 18 unless there are compelling reasons to retain, for example the seriousness of the offence.
surveillance under the Regulation of Investigatory Powers Act 2000
7) BIRW has always had reservations to the use of covert surveillance powers under the Regulation of Investigatory Powers Act 2000 (RIPA). We welcome the proposal to have such covert surveillance powers scrutinised by the judiciary. Such powers are often incompatible with Article 8 of the Convention and are not exercised proportionally.
8)
Do we need to have intrusive surveillance of public places and transports, data on travel, phone calls and Internet use in order to protect people from terrorism?
Reluctantly, our answer to this question is: yes. States have a right to defend themselves against terrorism, and, indeed, a duty towards their citizens and residents to do so. Surveillance and the interception of communications are a form of intelligence-gathering, which is essential to combat terrorism, whether it is perpetrated by religious fundamentalists or extremist animal rights campaigners. Modern technology is available to terrorists and it is unrealistic to deprive law enforcement agencies of those same technologies.
9)
However, the use of such techniques can only be justified if they are used for the only legitimate purposes served by intelligence-gathering, which are the prevention and detection of crime. They should not be used to build databases on people who are not involved in terrorism, and records engendered in the course of combating terrorism that involve innocent persons should be destroyed at the earliest opportunity.
10)
Such techniques should be employed in such a way as to respect as far as possible human dignity, decency and the right to privacy. To take a bad example from
Northern Ireland
, strip searching in prisons has been used, and is still used, in inappropriate situations, such as before and after legal visits or "closed" visits, where the prisoner has had no contact with another person. It has also been used to humiliate male and female prisoners. Body searches and searches of baggage at airports and elsewhere should be conducted with due regard to the rights of the person being searched to physical integrity and privacy.
11)
Particular care should be taken not to stereotype particular people or communities as "terrorist suspects". Not only is this insulting to the vast majority of law-abiding people in the world, but it is counter-productive, in that terrorists are likely to avoid using those who fit such stereotypes, and communities who are stigmatised may be more likely to shield susp
ected terrorists rather than co-
operate with the police.
12)
Techniques of mass observation and searching should be kept under review by independent monitors to ensure that they are proportionate and human rights compliant.
13)
W
here surveillance or interception is to be used, a case must be made for its use; a proper authorization procedure must be put in place (which should include refusal of authorization); and people who suspect they have been wrongly made the subject of such techniques should have access to a meaningful avenue for challenging their use. In the
United Kingdom
, such safeguards are inadequate. While the interception of communications etc is governed by the Regulation of Investigatory Powers Act 2000 (RIPA), a person who believes, for example, that his or her telephone is being tapped without cause, can make a complaint, but the only outcome of the complaint is that s/he will be told that the authorities cannot confirm or deny that the telephone is being tapped, but can assure the complainant that, if it is being tapped, then the tapping is in compliance with the law. There is no mechanism for having the interception stopped.
14) Recently in Northern Ireland it emerged that a lawyer was suspected of involvement in domestic terrorism. It would appear that at least one interview room used for private consultations between lawyers and their clients had been bugged for a number of months, with the possibility that every lawyer who used that consultation room had been bugged. Not only did this action on the part of the police violate Principle 8 of the United Nations Basic Principles on the Role of Lawyers, which forbids interception of lawyers’ communications with their clients, but it also violated the Police Service of Northern Ireland’s own code of conduct on the relationship between the police and lawyers. If information gathered in the course of such interception was used by the prosecution, then the defendant’s right to a fair trial may have been violated.
15) The Bill proposes that no authorisation to obtain or disclose communication data can take effect until a magistrates’ court has made an order approving the grant or renewal of authorisation. In addition, in relation to directed surveillance and covert intelligence sources, any such authorisation must not take effect until judicial approval has been obtained. Under RIPA originally, there was the possibility of self-authorisation "especially in cases of small organisations, or where it is necessary to act urgently of for security reasons." This has now been renewed in as much as that the magistrates’ court will only renew an authorisation if there is confirmation that there has been a review of the use of the Covert Human Intelligence Source (CHIS) and the information previously obtained.
16) The new regulatory regime will lead to transparency and accountability secured through independent judicial scrutiny. However, "in the interests of national security" remains intentionally opaque and open to a wide spectrum of interpretation and for creeping discretion. We also note that the Bill does not extend to covert sources appointed by the police force as opposed to a local authority, which is in effect a self-regulatory regime of authorisation. There must be provision for prior judicial authorisation of undercover policing operations.
PRE-CHARGE DETENTION IN TERRORIST CASES
17) We welcome the reduction of the maximum period of pre-charge detention in terrorist related offences from 28 to 14 days. We note that there are two stand-by Bills designed to enable pre-charge detention back to 28 days for a three month period in the event of a national emergency. We have made submissions to the relevant Committee on these two Bills.
18) However, we maintain that 14 days is still too long to be detained without charge, and that there is no evidence to suggest that such periods of detention are needed. For those detained in relation to terrorist offences, there should be no difference in the period of detention as provided under the Police and Criminal Evidence Act 1984. A period of up to four days should be sufficient to investigate and bring charges in all forms of offences. The 14 days period is still much longer than in many other democratic states and is incompatible with Article 5 of the Convention in that it undermines the right to liberty of the person. Further, if this period of detention is going to be within a police station we would raise further objections on the basis that police stations are not designed for the long-term detention of suspects.
STOP AND SEARCH POWERS
19) BIRW welcomes the repeal of sections 44 to 47 of the Terrorism Act 2000 following the ECtHR judgment in Gillan and Quinton v UK. However, we remain concerned that the Bill does not ensure that intrusive powers to stop and search without individual suspicion would only operate where strictly necessary to prevent acts of terrorism. The Bill provides for provisions to take place without suspicion in particular designated areas. The Bill will limit designation to circumstances where a senior police officer reasonably suspects an act of terrorism will take place and where such authorisation is necessary to prevent such an act. There is no detail in the Bill in relation to either the size of the area designated within an authorisation or the duration of such an authorisation. Whilst we welcome the higher threshold before an authorisation can be granted, we maintain that this should only be given where it is reasonably believed necessary to prevent acts of terrorism (according with Gillan). The Bill provides the executive with extensive discretion to maintain the length of an authorisation without Parliamentary scrutiny. This is clearly wrong in that it reserves unfettered power to the executive at the cost of accountability to Parliament. These provisions resemble the "kettling" powers given to police, in that innocent people going about their daily business will inevitably get caught up in stop and search operations. There is also the risk that certain areas will be more likely to be designated, creating suspect communities and harming relationships between, for example, Muslim communities and the police.
CONCLUSION
20) We welcome some of the proposals on the collection and retention of biometric information, stop and search without suspicion, restrictions on disproportionate and intrusive surveillance powers and the permanent reduction of pre-charge detention to 14 days. However, a Bill with such an impressive title should provide much stronger protection for our liberties. We urge those debating the Bill to seek its transformation into a powerful and useful tool for ensuring that where the state interferes with individuals’ lives in these critical areas, it is only in ways that respect and protect human rights.
April 2011
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