Police, Crime, Sentencing and Courts Bill

Written evidence submitted by Amnesty International UK. (PCSCB05)

Amnesty International UK

Amnesty International UK is a national section of a global movement of over seven million people who campaign for every person to enjoy all rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We represent more than 670,000 supporters in the United Kingdom. We are independent of any government, political ideology, economic interest or religion.

Summary of recommendations

· Given the scope and scale of problematic elements of this Bill , Amnesty International is calling for the Police, Crime, Sentencing and Courts Bill to be dropped entirely . While there may be some welcome provisions within it, those provisions could and should be introduced through other more appropriate legislation.

· Should the Bill not be withdrawn completely, Amnesty International urges Committee members to:

· Amend Part 2 Chapter 1: strategies to reduce serious violence

o Remove requirements to supply information to local Policing Bodies

o Remove language placing qualifications on data protections

o Insert new clause to reference the Public Sector Equality Duty

o Ensure the rights of victims are safeguarded

· Remove Part 3: public order

· Remove Part 4: unauthorised encampments

· Remove Part 10 Chapter 1: serious violence reduction orders

· Amnesty also supports calls by a number of organisations to amend Part 2 Chapter 3 of the Bill in relation to the extraction of information from electronic devices. Please see joint submission, led by Big Brother Watch, entitled "Committee Stage Briefing on digital extraction powers in the Police, Crime, Sentencing and Courts Bill" for detailed recommendations relating to this section.

Introduction

1. Amnesty International UK welcomes this opportunity to input into the Police, Crime, Sentencing and Courts Bill. We join with over 250 civil society organisations and 700 legal academics in expressing our alarm at the scope and scale of this Bill [1] , with many of its measures representing a serious threat to human rights ranging from the rights to peaceful protest through to racial and other discrimination within the Criminal Justice System. The enormous and permanent extension of policing and ministerial powers as articulated within this proposed legislation would introduce the most significant curtailment of rights in decades, and comes at a time when many established freedoms are already restricted in unprecedented ways due to emergency temporary measures put in place to protect public health during the Covid-19 Pandemic.

2. For the purposes of this submission, we are focussing on two substantive issues: the rights to peaceful protest; and racial discrimination and disproportionality. In particular we provide analysis on three substantive areas of the Bill, which relate to the aforementioned substantive issues: functions to reduce serious violence under Part 2 Chapter 1; the restriction of the right to peaceful protest under Part 3; and Serious Violence Reduction Orders (SVROs) in Part 10, Chapter 1.

3. Amnesty International supports the analysis laid out by Liberty and others calling for the removal of Part 4 of the Bill and as such we do not include additional information on that part of the Bill here.

Part 2 Chapter 1 FUNCTIONS RELATING TO SERIOUS VIOLENCES: Entrenching racial discrimination

4. Part 2 Chapter 1 (7) creates a new duty for specified authorities in a local area to work together to reduce serious violence. Specified local authorities are listed in Schedule 1 and 2 and include a very broad range of organisations ranging from the police and fire service, health and social care, local authorities, prison and youth offending services and education providers, including school governors. Part 2 Chapter 1 (12) (2) includes specific reference to victims within definitions of involvement with serious violence. Part 2 Chapter 1 (15) gives authority to specified authorities to share and disclose information and Part 2 Chapter 1 (16) gives police specific authority to request information related to individuals from these specified authorities.

5. Amnesty recognises from our work examining the functioning and failings of the Metropolitan Polices Gangs Matrix tool, that tackling serious violence is best addressed through a multi-agency approach – often referred to as the Public Health approach. However, we believe that such approaches should not be police lead. That is not to say that the police are not a key stakeholder in the detection and prevention of serious violence, but as it is currently written, this section of the Bill creates a new legal footing for the police to request significant levels of information from an incredibly broad range of local service providers. Our experience suggests such an approach is counterproductive and risks further normalisation of dangerous and discriminatory tools which could exacerbate structural racism, discrimination and disproportionality within systems designed to prevent and reduce serious violence.

6. Building on our research which identified several systemic failings in the operation of the Metropolitan Police service’s Gangs Matrix [2] , we are concerned that the functions relating to serious violence as drafted in this Bill could further normalise and entrench racialised discriminatory practice amongst a potentially wide range of activities undertaken at local and national level to reduce serious violence. These sections as written, appear to repeat the serious failings identified by both the Information Commissioners Office (ICO) [3] and the Mayor’s Office of Police and Crime (MOPAC) investigations relating to the Metropolitan Police’s Gangs Matrix [4] .

7. In short, those failings related to a system that embedded structural racism within policing tools by disproportionately targeting young black men; sharing sensitive data widely amongst a large group of local stakeholders without adequate data sharing agreements; conflating victims of violence with the perpetrators of violence; and keeping large numbers of individuals on a database where there was insufficient evidence or justification for their inclusion, resulting in a number of wider seriously negative impacts on those individuals in respect of their access to housing, education and jobs.

8. It is worth noting that following years of campaigning by organisations such as The Monitoring Group and StopWatch and subsequent investigations by the ICO (and its enforcement notice), MOPAC and Amnesty International, the Metropolitan Police’s Gangs Matrix was significantly reformed and it is subject to ongoing review.

9. The Bill could in our view have the effect of embedding these discriminatory and harmful failings on a permanent legislative footing across a very wide range of activities. Building on our direct experiences with the shortcomings of the Gangs Matrix tool, we make several observations and recommendations about this section of the bill.

10. Recommendation: Part 2 Chapter 1 (7) Duties to collaborate and plan to prevent and reduce serious violence. INSERT new clause to reference Public Sector Equality Duty.

11. Amnesty recommends, to prevent local serious violence reduction strategies further entrenching racial and other disproportionate discrimination and to safeguard against such discrimination, that a new clause is introduced to include a specific reference to public sector equality impact assessments in Part 2 Chapter 1 (7) (3) (see below analysis relating to Clause 15 for more information) i.e.:

12. (3) In particular, the specified authorities for a local government area must-

13. Insert new clause (d) under its statutory Public Sector Equality Duty, undertake a relevant equalities impact assessment (EIA) relating to each strategy for exercising their functions to prevent and reduce serious violence in the area

14. Recommendation: REMOVE Part 2 Chapter 1 (12) (2) Preventing and reducing serious violence and INSERT new language to ensure rights of victims are safeguarded

15. As noted above, a key failing identified in the Gangs Matrix was its conflation of the victims of gang violence with the perpetrators of gang violence. Victims were included on the Matrix and subjected to police intervention that failed to safeguard them as vulnerable individuals. Clause 12 (2) as written repeats these failings. We strongly recommend deletion of:

16. (2) The reference in subsection (1)(a) to becoming involved in serious violence includes becoming a victim of serious violence.

17. Instead members should insert new language specifically referencing the requirements of local specified authorities to safeguard the rights of victims as part of their violence reduction strategies. Such an addition would create a positive duty to protect victims from the harmful impacts of serious violence.

18. We believe the most appropriate place for such a reference is Part 2 Chapter 1 (7) (3) (c) which would now read as follows.

19. (c) prepare and implement a strategy for exercising their functions to prevent and reduce serious violence in the area including the safeguarding of victims of serious violence.

20. Recommendation: Part 2 Chapter 1 (15) Disclosure of Information. REMOVE qualifying language in brackets

21. Whilst there is reference to data protection requirements about the disclosure and sharing of information, this is qualified by the following wording as specified for example in Clause 15 (4) (a) Disclosure of Information. – which reads: "would contravene the data protection legislation (but in determining whether a disclosure would do so, any power conferred by the regulations is to be taken into account)".

22. Amnesty suggests that such qualification in bracketed text creates potential scope for wider sharing of information than might normally be permissible under data protection legislation. Data of this kind is likely to be highly sensitive in nature, with a range of potentially serious consequences should such data be shared in error or misused. We believe there is an increased likelihood that such an outcome with the qualification as written could help further embed structural racism and disproportionality into violence reduction strategies, because it further weakens the data protection requirements that were misused within the Gangs Matrix.

23. We therefore recommend the removal of any qualification in the application of data protection requirements. We recommend delating the bracketed text wherever it appears, so it would simply read:

24. "would contravene the data protection legislation"

25. This terminology currently appears in at least five parts of the Bill and should be amended in all cases to remove any perceived qualification to existing data protection legislation.

26. Moreover, whilst data protection misuse was a key lesson for the failings of the Gangs Matrix, it was not the only failing. The ICO was clear to point out that issues of racial discrimination and their harmful impacts on individuals and communities were beyond the scope and remit of the data protection act, but nevertheless of critical importance to the protection of rights. As such, it was clear that insufficient regard to equality impact assessments were undertaken by police and partner agencies as part of their required public sector equality duties when compiling and sharing data relating to "gangs". [5]

27. Recommendation Part 2 Chapter 1 (16) paras (1) to (7) Supply of Information to Local Policing Bodies. REMOVE referenced sections in entirety.

28. To be effective, local based violence reduction strategies should not be police lead. This clause gives disproportionate power to Police to request information from an exceptionally broad list of referenced agencies. Police already have existing powers to request information where necessary for the detection and prevention of crime. This clause as written risks normalising and embedding the established failings of the Metropolitan Police’s Gangs Matrix specifically about racial disproportionality and profiling across a much wider range of policing tools.

Part 3 PUBLIC ORDER: Restricting the right to peaceful protest

29. The rights to peaceful protest are fundamental universal rights enshrined in international and domestic human rights law. The state and its agencies have a positive obligation to protect the rights of peaceful protest and can only restrict them in certain limited circumstances, with a high threshold justification applied to any restrictions or curtailments that might be imposed. These rights are expressed for example, in Article 21 of the International Covenant on Civil and Political Rights and Article 11 of the European Convention on Human Rights (ECHR).

30. Article 21 of the ICCPR states: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law, and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. [6]

31. Article 11 of the European Convention of Human Rights (ECHR) states:

o Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

o No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State [7]

32. The over-riding principles in any exceptional limitation of these rights are ones of strict proportionality and necessity. Any restrictions or limitations that are imposed must be as a last resort in cases where it is necessary to prevent serious harm, and even then, only after all other less intrusive measures are considered. This consensus was most recently articulated in the UN Human Rights Council General Commentary on the right to peaceful assembly, issued on 17 September 2020. [8] Of particular relevance to this Bill, paragraph 44 of this General commentary says:

33. "States parties should not rely on a vague definition of "public order" to justify overbroad restrictions on the right of peaceful assembly. [9] Peaceful assemblies can in some cases be inherently or deliberately disruptive and require a significant degree of toleration. "

34. In our view, Part 3 of this Bill represents a significant lowering of thresholds applied to public order situations with the introduction of new highly subjective and ill-defined vague terms such as noise, unease and annoyance. We believe this runs counter to the obligations of all states to avoid vague and overbroad restrictions and puts the UK clearly in violation of its international obligations to protect the rights of peaceful protest.

35. Giving Ministers further enhanced powers to issue further legally binding regulations around these definitions and limitations in relation to these highly subjective and vague thresholds clearly gives the Government excessive scope to undermine universal rights to peaceful protest. This raises the prospect that the current or future government may seek to misuse these powers to stifle criticism and views that it might find uncomfortable, rather than seek to prevent or limit activities that pose a serious and genuine threat to public order and safety. This sets an enormously dangerous precedent in allowing any future Government to undermine fundamental rights by misusing those powers in absence of adequate oversight by Parliament.

36. Moreover, the new criminal offence of participating in a demonstration and not being aware of any restrictions in place using the threshold of "ought to have known" is a hugely disproportionate criminalisation of individuals whose activities would otherwise have been perfectly lawful in any other given context. It also risks further discrimination against any individuals who may not have easy access to digital communications or their access to relevant information may be otherwise impaired.

Existing powers to Police protest: Tactical and operational decisions.

37. It is important to recognise that policing of public order situations, including protests and demonstrations or indeed any public gathering, is not only a matter of legislation. Whilst every police action must have lawful authority, how protests are policed are also down to tactical and operational considerations by Police Commanders at the time. In our view, police already have considerable legal powers to police protest, including a duty to prevent violence and serious threats to public order. Any disparities in outcomes at different protests are the result of different tactical considerations rather than deficiencies in the legal framework.

38. Police officers in the UK can and do make arrests for any number of offences in relation to policing demonstrations. These include, but are not limited to trespass, criminal damage, causing harassment alarm or distress, inciting or being violent and, blocking or otherwise impeding public highways. Powers also include intelligence led pre-emptive arrests and the use of reasonable force where necessary, including a wide range of tactical options and specialised equipment. Police also have authority to deploy a wide range of surveillance tools to monitor crowds and identify individuals as well as existing broad powers to stop, search and detain [10]

The Rights to protest, discrimination and racism.

39. Part 3 of this Bill as worded, will also in our view allow police officers to make any decisions on restrictions and limitations as "appear to be necessary". These are excessive powers, which will not only place unreasonable burdens on police officers to make correct judgements in complex situations, but will almost certainly lead to inconsistent and subjective decisions around protests which will further undermine trust and confidence in policing, especially by those communities who already feel overpoliced.

40. In this regard, Amnesty notes that evidence clearly points to unacceptable levels of racial disproportionality within policing and the wider criminal justice system. The findings of the MacPherson Report into the death of Stephen Lawrence [11] ; the Lammy review into racial discrimination within the criminal justice system [12] ; the Review of the Metropolitan Police’s Gangs Matrix [13] as well as a mountain of statistical evidence presented by the Home Office’s Use of Force reporting system [14] , collectively demonstrates unacceptable levels of institutional racism within policing, specially targeted towards young black men. Other groups, such as Irish travellers, and in certain contexts other minoritised groups face similar disproportionate over-policing.

41. Amnesty is concerned that without addressing the structural failings that allow such disproportionality to thrive, additional, discretionary and highly subjective policing powers such as these will only serve to exacerbate disproportionality in these areas, further eroding trust and confidence in policing by those affected communities and groups.

42. Amnesty concludes that the proposals to limit peaceful protest are incompatible with the UK’s existing legal obligations under relevant international human rights law. They are neither proportional, nor necessary in our view. As such, we urge that Part 3 is removed from the Bill in its entirety.

43. Recommendation: Remove Part 3 from the Bill

Part 10 Chapter 1: SERIOUS VIOLENCE REDUCTION ORDERS

44. As previously noted, available evidence already points to significant levels of racial discrimination within this specific area of the criminal justice system. In our view, this risks becoming more pronounced and further entrenched with the introduction of Serious Violence Reduction Orders (SRVOs).

45. As with sections dealing with protest, Clause 139 again sets a very low threshold to criminalise an individual, a recurrent feature of this Bill. SVROs can be imposed based on a "balance of probability" that a weapon was used and more worryingly applied to anyone involved in an incident who "ought to have known" a weapon was present, even if they themselves did not have one. Anyone subject to an SVRO can then be subjected to stop and search at any time without existing thresholds of "reasonable suspicion" being met, effectively meaning stop and search powers can be used without any suspicion that the individual has been involved in any current crime.

46. It is clear that stop and search powers overwhelmingly are used against black people. NGO Stopwatch have documented that Black people are at least eight times as likely as their white counterparts to be stopped and searched. [15] The College of Policing [16] and Her Majesty’s inspectorate of Constabulary [17] , both part of the established regulatory oversight and professional standard setting bodies for UK policing, have questioned the effectiveness of existing stop and search powers in the detection and prevention of crime. Both bodies have concluded their over-use and misuse has clearly undermined public trust and confidence in the police, specifically amongst Black and Asian communities who are disproportionally targeted.

47. In addition, given that knife crime is already subject to increasingly tough criminal sanction, [18] and stop and search powers are already overly broad and over-used, Amnesty concludes that the extension of stop and search powers, as provided for in the current iteration of SRVOs, are neither a necessary nor proportionate response to serious violence, especially given the likely impact on racial discrimination in already over-policed communities.

48. Recommendation: REMOVE PART 10 CHAPTER 1.

Conclusion

49. The overly broad, vaguely defined and unprecedented expansion of police powers provided for in this Bill would significantly restrict fundamental human rights and entrench racism and discrimination into an already discriminatory criminal justice system. The scope, scale and impact of the Bill is such that solely amending it is unlikely to render it compliant with relevant international human rights standards. The Bill should therefore be dropped entirely.

17TH May 2021.


[1] See https://friendsoftheearth.uk/system-change/open-letter-home-secretary-and-secretary-state-justice

[2] See "Trapped in the Matrix; Secrecy, Stigma and Bias in the Met’s Gangs Database" Amnesty International May 2018, available at https://www.amnesty.org.uk/files/reports/Trapped%20in%20the%20Matrix%20Amnesty%20report.pdf

[3] See https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2018/11/ico-finds-metropolitan-police-service-s-gangs-matrix-breached-data-protection-laws/

[4] See MOPAC summary review findings over the Gangs Matrix available at https://www.london.gov.uk/sites/default/files/gvm_update_jan_2021_final_for_publication_.pdf

[5] See for example Information Commissioners Office (ICO) enforcement Notice against the Metropolitan Police, issued on November 13, 2018, available at https://www.met.police.uk/SysSiteAssets/media/downloads/force-content/met/about-us/gangs-violence-matrix/ico-enforcement-notice.pdf

[6] See https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[7] https://www.echr.coe.int/documents/convention_eng.pdf

[8] See Human Rights Committee, General comment No.37 (202) on the right of peaceful assembly (article 21) available at https://digitallibrary.un.org/record/3884725?ln=en

[8]

[9] CCPR/C/KAZ/CO/1, para. 26; and CCPR/C/DZA/CO/4, paras. 45–46.

[10] See for example the College of Policing’s Authorised Professional Practice on Public order, available at https://www.app.college.police.uk/app-content/public-order/

[11] See THE STEPHEN LAWRENCE INQUIRY REPORT OF AN INQUIRY BY SIR WILLIAM MACPHERSON OF CLUN, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf

[12] See "The Lammy review: final report An independent review into the treatment of, and outcomes for Black, Asian and Minority Ethnic individuals in the criminal justice system " available at https://www.gov.uk/government/publications/lammy-review-final-report

[12]

[13] See https://www.london.gov.uk/mopac-publications-0/review-mps-gangs-violence-matrix-update

[14] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/945435/police-use-of-force-apr2019-mar2020-hosb3720.pdf

[15] See https://www.stop-watch.org/uploads/documents/StopWatch_Response_to_Macpherson_20_years_on.pdf

[16] See https://www.app.college.police.uk/app-content/stop-and-search/

[17] See for example, Disproportionate use of police powers - A spotlight on stop and search and the use of force, HMICFRS Report, published on 26 February 2021, available at https://www.justiceinspectorates.gov.uk/hmicfrs/publications/disproportionate-use-of-police-powers-a-spotlight-on-stop-and-search-and-the-use-of-force/

[17]

[18] See for example, Crown Prosecution Service Guidance on Offensive weapons, knives, bladed and pointed articles, available at https://www.cps.gov.uk/legal-guidance/offensive-weapons-knives-bladed-and-pointed-articles

 

Prepared 19th May 2021