Anti-Social Behaviour, Crime and Policing Bill

Written evidence from Rt Hon Damian Green MP (ASB 23)

ANTI-SOCIAL BEHAVIOUR, CRIME AND POLICING BILL: GOVERNMENT AMENDMENTS FOR COMMONS COMMITTEE STAGE

I am writing to let you have details of amendments to the Bill which I have tabled today.

Amendments to existing provisions

Independent Police Complaints Commission (amendments to clauses 116 and 118 and Schedule 7)

The Bill includes a number of provisions extending the remit and powers of the Independent Police Complaints Commission (IPCC). These include provision, at clause 118, conferring on the IPCC a power to serve an ‘information notice’ on any person where they hold information that is reasonably required for the purposes of an investigation being conducted by the Commission (and therefore relate to the most serious categories of alleged misconduct). An ‘information notice’ will require the organisation concerned to disclose the relevant material to the IPCC. Clause 118 on introduction included some safeguards for certain sensitive information, but we have concluded that we now need to build on these safeguards in order to fully protect information which, if disclosed more widely (beyond the IPCC), may damage national security or the public interest.

The amendments to clause 118, and the associated amendments to Schedule 7, therefore make a number of changes to the existing provisions in the Bill, these:   

· add ‘control principle’ material, that is material originating from another State or its agencies, to the categories of information, which are excluded from the scope of an information notice served by the IPCC save where the originator of the information consents to its onward disclosure;

· provide that the requirement on the IPCC to obtain consent to onward disclosure of sensitive information applies to all the IPCC’s reporting requirements in the Police Reform Act 2002,  including those which would otherwise be excepted from any obligation of secrecy etc.;

· add material, which is not intelligence service information or intercept information, but which, if disclosed, would in the opinion of the Secretary of State – or other relevant Minister of the Crown – be damaging to national security or international relations, or the economic interests of the United Kingdom (or any part of the United Kingdom), as a new category of information in respect of which consent for onward disclosure is required; 

· amend the exclusion for  communications data under Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act (RIPA) 2000 from the scope of an information notice served by the IPCC. This exclusion preserves the status quo so that the IPCC continue to use RIPA to secure communications data from any communications service provider, rather than through the broad information notice power. The current exemption is, on reflection, too wide and could prevent a person who is the subject of an information notice from legitimately passing onto the IPCC relevant communications data which that person has acquired from a third party under the terms of RIPA.

Clause 116 amends Part 2 of the Police Reform Act 2002 so as to extend the remit of the IPCC to cover private sector contractors who provide services to police forces. The Bill achieves this by conferring on the Home Secretary a power to provide that contractors of a specified description are to be treated as persons serving with the police for the purposes of Part 2 of the 2002 Act. The amendments to this clause make it clear that such contractors are also to be treated as persons serving with the police for the purposes of any regulations made under Part 2 of the 2002 Act. This will ensure that the complaints framework – whether set out in primary or secondary legislation – fully applies to designated contractors as intended.

Port and border security powers (amendment to Schedule 6)

Schedule 6 to the Bill amends the port and border security powers in Schedule 7 to the Terrorism Act 2000 in line with our commitment to ensure the right balance between security and civil liberties.  Paragraph 11 of Schedule 7 already makes express provision for the retention of a ‘thing’ seized, for example for use as evidence in criminal proceedings. New paragraph 11A of Schedule 7 to the 2000 Act makes express provision for the copying and retention of information from a seized item, for example the call history information stored on a mobile phone. The subsequent retention of such information will, as now, be governed by the statutory code of practice on the Management of Police Information.

New provisions

Amendment to the Protection of Freedoms Act 2012 to preserve forensic samples to be used as evidence in court (New clause ‘Retention of personal samples that are or may be disclosable’ and amendments to clause 140)

The Protection of Freedoms Act 2012 (the 2012 Act) requires that all samples taken from individuals (such as cheek swabs for DNA, blood, hair and urine) must be destroyed within six months. (This provision has not yet been brought into force.) This applies whether the samples were taken for the purpose of including the resultant profile on the National DNA Database or for evidence in court. It differs from the 2012 Act’s treatment of all other evidence where retention of evidence for court is governed by the Criminal Procedures and Investigation Act 1996 (CPIA) and retention of DNA profiles is governed by the 2012 Act.

During implementation of the 2012 Act, concerns have been raised by the Crown Prosecution Service and police forces that this requirement to destroy samples could jeopardise prosecutions where samples are used in proceedings (as it is difficult to counter defence arguments about samples if they are made after the sample has been destroyed), and also jeopardise the identification of bodies where it may be necessary to retain samples from relatives. This new clause therefore amends the 2012 Act so that samples which may be needed in court proceedings will be governed by the CPIA in the same way as other types of evidence – thereby enabling them to be retained during investigation and prosecution. If the 2012 Act is brought into effect as it currently stands, forces would have to seek court orders on an individual basis for retention of samples, which would be likely to result in a large number of applications for such orders, particularly in relation to serious cases. This would result in increased bureaucracy and higher costs for the police and courts.

The new clause is in line with the commitment in the Coalition Agreement to ‘adopt the protections of the Scottish model for the DNA database’. Under the Scottish model, DNA samples and profiles are both retained if the person is convicted and destroyed if they are not. The new clause adopts a more rigorous approach to samples than is required by the Scottish model, because only DNA samples needed for evidence in court will be retained. The great majority of DNA samples are taken to allow a profile to be produced for addition to the National DNA Database, but not required for use in ongoing investigations or in court and these will continue to be destroyed. In fact, as at 11 June, 7.7 million DNA samples have been destroyed, and 1.1 million profiles belonging to innocent individuals have been deleted from the National DNA Database under the programme to implement the 2012 Act.

Direct entry at the rank of chief constable (New clause ‘Appointment of chief officers of police’)

In January we launched a consultation on the implementation of schemes to enable direct entry into the police as recommended by Tom Winsor in his second report on Police Officer and Staff Remuneration and Conditions. This consultation sought views on how, rather than whether, we should give effect to Tom Winsor’s recommendations in this area. Facilitating direct entry to senior ranks in the police would ensure that the police have access to the best and widest pool of talent at leadership ranks and that, as a result, they are best placed to fight crime and keep communities safe. 

Direct entry at chief officer rank requires primary legislation to relax the current stipulation in the Police Reform and Social Responsibility Act 2011 that a person appointed as a chief constable must have served as a constable in the UK. This new clause places a duty on the College of Policing to determine other countries in whose police forces a person may have served, with the list being subject to the approval of the Home Secretary. The Home Secretary’s approval would only be granted in relation to common law jurisdictions which practise policing by consent.

June 2013