Memorandum by the Home Office
This memorandum is submitted by the Home Office
in response to the request for comments on the Criminal Justice
and Police Bill in a letter from the Chair to the Joint Committee
on Human Rights to the Home Secretary of 15 February 2001.
2. The Home Secretary has made a statement
under section 19(1)(a) of the Human Rights Act 1998 indicating
that in his view, the provisions of the Bill are compatible with
the Convention rights. He believes that, where the Convention
rights are engaged, the proposals are a balanced and proportionate
response to a pressing social need and that the judgements he
has made about the balance to be struck between competing rights
and responsibilities can be objectively justified.
3. The jurisprudence of the European Court
of Human Rights and
the early jurisprudence of the English courts on the Human Rights
has established that the legislature and executive have a margin
of discretion in forming a view as to whether particular measures
are justified within the terms of those articles of the ECHR which
permit of exceptions.
4. Many of the provisions in the Bill confer
discretionary powers on public authorities. In the government's
view, all these powers are capable of being exercised in a way
which is compatible with the Convention. Those on whom the powers
are conferredthe police, local authorities, the Secretary
of State, government departments, the courtswill be obliged
in accordance with section six of the Human Rights Act to exercise
them in a way which is compatible with the Convention rights.
5. This memorandum is in response to the
specific questions on the Bill raised by the Committee.
(A) Please could you inform the Committee of the
factual or other considerations which led you to decide that there
is a pressing social need for a nation-wide power to designate
places under these provisions
6. According to the British Crime Survey
around 40 per cent of violent crime is committed while the offender
is under the influence of alcohol. 70 per cent of all local crime
audits conducted by the crime and disorder partnerships identify
alcohol misuse as an issue, which needs to be tackled. 125,000
facial injuries are suffered by people in Britain each year in
violent circumstances. In 61 per cent of cases, either the victim
or the assailant had been drinking alcohol. Half of all facial
injuries sustained by persons between the age of 15 and 25 years
were the result of assaults. There are an estimated 5,000 cases
a year of "glassings" where a broken glass is used as
It is estimated that up to 80 per cent of peak time admissions
to hospital accident and emergency facilities are alcohol related.
7. A nation-wide power to designate areas
where public drinking is controlled already exists in the form
of powers to make bylaws under section 235 of the Local Government
Act 1972 and other bylaw making powers. As of 20 February 2001,
113 local authorities have adopted bylaws for this purpose. The
bylaw making process is lengthy and each set of bylaws and changes
to them must be approved by the Secretary of State. The content
of the bylaws is not always consistent: all provide that a person,
who consumes alcohol in a designated place after being warned
by a constable not to do so, commits an offence; some also provide
for the confiscation of containers. They do not contain a power
of arrest for failure to comply with a requirement.
Clauses 14 to 18
8. The purpose of clauses 14 to 18 is to
provide a consistent set of powers backed by a power of arrest
which may be adopted by local authorities in a quicker and less
bureaucratic process than the adoption of bylaws.
9. The Committee comment on the definition
of "public place" in clauses 18(1) of the Bill: "any
place to which the public or any section of the public has access,
on payment or otherwise, as of right or by virtue of express of
implied permission". This definition is the same as that
in the Confiscation of Alcohol (Young Persons) Act 1997. It is
effectively the same as the definition in section 16 of the Public
Order Act 1986 for the purposes of police powers under that Act.
That definition is also adopted for the purposes of the curfew
and truancy provisions of the Crime and Disorder Act 1998. A similar
definition is used in section 91(4) of the Criminal Justice Act
1967 (drunkenness in public places).
10. The definition is apt to cover not only
obvious public places such as streets and public parks but other
places in which members of the public may congregate so as to
give rise to public nuisance and disorder (for example privately
owned shopping malls). It will not cover private places to which
the public do not have access.
Human rights compatibility
11. The government is satisfied that these
provisions are compatible with article 8 and article 1 of protocol
1 to the ECHR. In so far as restrictions on public drinking may
amount to an interference with article 8.1 rights, we believe
they are justifiable under article 8.2 as in the interests of
public safety, the prevention of disorder and crime and the protection
of the rights and freedoms of others. In so far as the confiscation
powers raise issues under article 1 of Protocol 1, the value of
items confiscated is likely to be minimal and any interference
which there may be is justifiable in the public interest in preventing
injuries and disorder.
(B) Would it be possible to include in the Bill
a clear set of criteria for designating public places for this
purpose, in order to demonstrate clearly and accessibly that restriction
of rights are in accordance with the law and properly related
to a pressing social need.
12. The criteria for designating places
in which the powers are to be exercisable are set out explicitly
in clause 15(2) of the Bill. The local authority must be satisfied
in relation to each place designated that nuisance or annoyance
to the public or disorder has been associated with the consumption
of alcohol in that place. The procedure to be followed in making
a designation order will be set out in regulations under clause
15(4). Those regulations will be subject to the negative resolution
procedure. They will provide for consultation with affected interests
before designation, including in particular consultation with
the owners of any land to be included in a designated area.
(C) Please could you also tell the Committee what
steps you envisage will be taken to ensure that the designation
of places will be properly related to established local needs,
and that police officers will act in a way properly related to
the purpose of designating the place in question.
13. The fact that the decision on designation
is left to local authorities will ensure responsiveness to local
needs and local accountability. The local authority will need
to be satisfied that the criteria in clause 15(2) are met in relation
to each place to be designated. The power under clause 15 will
enable them to define carefully only those areas in which there
is an established problem.
14. Drinking in a designated public place
will not be an offence in itself. An offence will only be committed
if a person fails without reasonable excuse to comply with a requirement
by a constable not to drink in the area or to surrender alcohol,
after being warned that failure to comply is an offence. The powers
will be exercisable only in areas which have been designated for
the purpose in accordance with clause 15(2); these being public
places which have experienced nuisance, annoyance or disorder
related to the consumption of alcohol. It is unlikely that family
picnic areas will fall within this category. The police will have
a discretion as to whether to exercise the powers on a particular
occasion or against a particular individual and we shall issue
advice to the police to suggest that the powers be used where
nuisance or annoyance to the public or disorder is occurring or
seems likely to occur in the area concerned.
2. CLOSURE ORDERS
(D)Please could you inform the Committee why you
consider the standards used in the Bill are sufficiently determinate
to meet ECHR requirements
15. The government agrees with the Committee
that a closure order under clause 19 of the Bill could constitute
an interference with the peaceful enjoyment of a person's possessions.
Accordingly, such an interference must be provided for by law,
but this should be understood against the background of why this
clause is needed.
16. Currently, police powers to close disorderly
premises are limited, and require the prior approval of magistratrates
before action can be taken. A need has been identified for the
police to have a new power to act swiftly and decisively to close
down premises in the interests of public safety. The link between
licensed premises and disorder is well documented, and thus, for
example, the British Crime Survey showed that 16 per cent of all
violent incidents took place in and around pubs and clubs. It
is notable too that the licensing industry itself is overwhelmingly
supportive of the new powers. While the new power has to be formulated
with sufficient precision that it is clear what level of conduct
could lead to a closure order, at the same time the power must
be sufficiently flexible for it to be capable of being exercised
swiftly and in a range of circumstances. It is in the nature of
"disorder" that it can take many different forms, and
what constitutes "excessive noise" is not a simple matter
of reaching a particular decibel threshold, but depends on factors
such as the time of day, whether the neighbourhood is residential,
and whether the noise is prolonged or short-lived.
17. The Committee has questioned whether
the words "disorder" and "excessive noise"
are sufficiently precise to justify an interference with rights
under article 1 of protocol 1. But "disorder" and "excessive
noise" alone are not the triggers set out in the Bill. "Disorder"
(whether actual or likely and "excessive noise" must
be coupled with a senior police officer's reasonable belief that
closure is "necessary" in the interests of public safety
or to prevent the disturbance. Thus the latitude implied by the
words "disorder" and "excessive noise" is
cut backthe disorder must be sufficiently severe and the
noise sufficiently extreme for the police officer to be convinced
of the necessity for an order.
18. In addition, a number of procedural
safeguards ensure that a closure order can be made only in tightly
controlled circumstances; the order must be made by a senior police
officer; it must be made on the basis of a reasonable belief;
it can be made only if the licensee's conduct has first been taken
into account; and it is subject to subsequent court endorsement
at the earliest opportunity.
Human Rights compliance
19. In the Government's view the combined
effect of the procedural safeguards and the wording of the tests
that must be met before a closure order is made ensures that a
closure order can be made only in tightly controlled circumstances.
At the same time the Bill avoids being overprescriptive about
the ingredients of disorder, ensuring that the police's essential
operational flexibility is preserved and that the power will be
available when required. Moreover, the police, as a "public
authority" under section 6 of the Human Rights Act 1998,
may not act in a way incompatible with the Convention and so will
be under a duty to make a closure order only if it is a reasonable
and proportionate response to a particular situation. The government
believes that the legislation strikes a fair balance between the
need for a flexible power, which must be capable of being exercised
in the heat of the moment when public safety is threatened, and
a sufficiently precise formulation of what can trigger a closure
order, which will enable licensees to understand what their obligations
are and what the effect will be of adopting a particular course
3. A NEW OFFENCE
(E) Please could you inform the Committee
of your reasons for deciding that this standard is sufficiently
determinate to act as a Convention-compatible criterion for imposing
a criminal sanction.
20. Clause 34 inserts new section 172A into
the Licensing Act 1964, and its terms reflect very closely the
existing wording of section 172. In effect, the same offence of
permitting drunkenness etc which under section 172 can be committed
only by a licensee can now be committed under section 172A by
any other person who works on the premises. Accordingly, all case
law which offers an aid to the interpretation of the terms "permitting
drunkenness" and "quarrelsome conduct" under section
172 and its predecessor provisions can be applied to the new offence.
There is no shortage of such case law, especially relating to
drunkenness. Thus it is clear from established case law, for example,
that to supply drink to a person already drunk is to permit drunkenness;
that no alcohol need be supplied in order for the offence of permitting
drunkenness to be made out; that to "permit" implies
power to prevent; and that a licensee must be allowed discretion
as to how and when to eject a drunken person.
21. It is of course correct that opinions
may vary as to whether particular behaviour constitutes "quarrelsome
conduct". But again, this is a term that has been in use
for a long time, and magistrates are familiar with it. The government
therefore has no qualms that clause 34, which in reality does
not create a new offence but merely widens the range of people
who can commit a long-established and well-understood offence,
is sufficiently precise to be compatible with the requirements
of article 5 and article 1 of protocol 1.
(F) Please could you inform the Committee
of your reasons for deciding that, in the absence of violent conduct,
this standard is sufficiently determinate to act as a Convention-compatible
criterion for restricting freedom of expression, and that such
restriction is properly related to a pressing social need.
22. The government does not accept that
clause 34 restricts freedom of expression. It should be noted
that nothing in this provision criminalises "quarrelsome
conduct"; the only offence is a failure to act appropriately
by a person with authority to prevent untoward conduct. Customers
can still be as expressive as they wish, but if their behaviour
crosses the line and becomes "violent, quarrelsome or riotous"
they can expect to be excluded from licensed premises by the landlord.
Licensed premises are of course private property and a landlord,
who is not a "public authority" under section 6 of the
Human Rights Act 1998, has common law rights to ask anyone to
leave (other than on discriminatory grounds). The legislation
is therefore only remotely connected to any restriction on a person's
freedom of expression. The government further considers that even
if a person is asked to leave licensed premises, as an indirect
result of these provisions, that person's right to express himself
is not seriously compromised as he can continue to hold and impart
his opinions outside the licensed premises.
23. The government further considers that
it is reasonable to require bar staff to keep a minimum level
of order on their premises, and that it is proportionate for there
to be criminal penalties for failing to do so. The pressing need
for legislation in this area is apparent from research, which
shows the association between violence and disorder and alcohol.
Moreover, this disorder is commonly concentrated on a small number
of premises. A study (Ramsay 1982) showed that six pubs in Southampton
accounted for 50 per cent of all the violence and disorder associated
with licensed premises there.
24. Insofar as customers are inhibited from
quarrelling by the fear of being expelled from licensed premises,
or by an actual expulsion, the government is confident that in
practice licensees and their staff will not lightly throw out
their customers. Instead such steps will be reserved for seriously
disruptive or threatening individuals. As already indicated, the
government doubts that such expulsions would engage ECHR issues,
but even if they did, they would be justified under the second
limb of Article 10 of the Convention as being necessary for the
prevention of disorder.
4. TRAVEL RESTRICTION
(G) Please would you inform the Committee
whether you are satisfied that the courts could made a travel
restriction order only in circumstances which correspond to a
legitimate justification for interfering with the right under
article 12.2-3 of the ICCPR, and of your reasons.
25. The government believes that travel
restriction orders will be justifiable for a legitimate purpose
under article 12.3 of the ICCPR as necessary to protect public
order. A travel restriction order can only be made on conviction
for a drug trafficking offence in conjunction with a sentence
of imprisonment for four or more years. Its purpose is both punitive
and preventive. On sentencing, the court will have discretion
to include a travel restriction order as part of the sentence.
The order is not "punishment for a past offence", but
part of the punishment for an offence before the court.
26. One purpose of the power is to prevent
the commission of further drug trafficking offences. The availability
of the power may also have a deterrent effect on the commission
of offences. But a travel ban for a period of years may also be
an appropriate and justifiable way of expressing society's condemnation
of the trafficker' unlawful activities. It will form part of the
individual sentence and is a greatly reduced restriction on freedom
than imprisonment, which is accepted as a justifiable means of
27. Drug trafficking is an international
multi-billion pound industry, estimated by the United Nations
as having in 1997 a turnover amounting to about 8 per cent of
total international trade. Governments devote considerable efforts
and resources world-wide to combat this evil trade, and effective
law enforcement is a vital part of the government's strategy for
tackling drug misuse. Research by the National Criminal Intelligence
Service confirms that between 85 per cent and 90 per cent of organised
criminal networks are active outside the UK. Travel bans will
help to prevent or disrupt such activity.
(H)Please would you inform the Committee whether
you are satisfied that such narrow grounds for suspension are
sufficient to satisfy the necessity and proportionality requirements
of article 12.2, and of your reasons.
28. The government is satisfied that the
powers meet a pressing social need and are a proportionate response
to it. A court will have discretion under clause 35 as to whether
or not to impose an order. In making such an order they must consider
"all the circumstances" of the individual. An order
will be subject to appeal in the same way as any other sentence.
The person concerned may apply to the court at any time for temporary
suspension of the order. The test for the court in clause 37(3)
is that there should be exceptional circumstances justifying the
suspension on compassionate grounds. In making such a decision
the court must have regard to the person's character, his conduct
since the making of the order, the offences of which he was convicted
and any other relevant circumstances (clause 37(4)(2)).
29. In addition to the power to suspend
an order, a person may apply for its permanent revocation under
clause 37(2) once the "minimum period" in relation to
the order (two years in relation to an order for four years or
less) has elapsed. In determining an application for revocation,
the court must consider whether revocation is appropriate in all
the circumstances of the case. The court must have regard in particular
to the person's character, conduct since making the order and
the offences of which he was convicted.
30. The government is satisfied that the
provisions allow sufficient account to be taken of changes in
circumstances during the currency of an order to ensure the requirements
of necessity and proportionality continue to be met.
(I) Please would you inform the Committee
of your reasons for being satisfied that so narrow a power to
review or suspend an order will always suffice to meet the requirement
of necessity in a democratic society for one of the legitimate
aims under article 8.2 of the ECHR.
31. The government does not accept the powers
to review or suspend an order are "narrow". The court's
discretion as to whether to make an order, the rights of appeal
and the rights to apply for revocation or suspension provide a
range of safeguards for the individual whose personal circumstances
must be taken into account at each stage. In so far as the making
of an order does interfere with an offender's family life, that
is a consequence of his conviction for a serious criminal offence,
and is a less serious consequence than a longer period of imprisonment.
In so far as an order does interfere with article 8 rights, that
interference will be justifiable under article 8.2 in the interests
of the prevention of crime and disorder and the protection of
the rights and freedoms of others.
CLAUSES 43 AND
(J)In order to allow the Committee to evaluate
the extension of child curfew schemes in the light of human-rights
standards, please would you inform the Committee of your reasons
for being satisfied that the scheme (as extended by the Bill)
would be compatible with Articles 5, 8 and 11 of the ECHR, and
the provisions of the other treaties mentioned above, in the light
of the previous paragraph.
32. Children are vulnerable to those who
would encourage them into conduct of a criminal or anti-social
nature. This conduct gives rise to a range of consequences which
are damaging to local communities and especially damaging to the
children themselves. Children of a very young age can learn from
peers and elders that to torment other people (by way of abuse
or criminal damage) is an acceptable part of play. They can also
fall into the hands of pimps and drug pushers. Children's lives
and those of their families and communities can be damaged in
ways that can only ever be partially repaired by a range of social,
health and criminal justice interventions.
33. Figures for England and Wales in 1999
show that as many as 181,600 children and young people were found
guilty or cautioned as a result of committing criminal offences.
Of these 10 to 17 year-olds, 12,600 were involved in drugs offences
(compared with only 2,000 eleven years ago), 14,400 were guilty
of violence against another person and 4,600 of criminal damage.
The figures also show that around 78,700 were involved in theft,
burglary or robbery.
34. Certain specific locations have become
well-known "trouble spots". This may be because children
and young people congregate there to indulge in drug-taking or
alcohol consumption. It may be because they have become prime
sites for fighting or for prostitution. These places present significant
dangers for local communities and children in particular. They
are often places where no responsible parent would knowingly allow
their child unaccompanied after dark. The government believes
that a local child curfew scheme is a proportionate and flexible
tool which communities may use where necessary to tackle such
35. Local child curfews may be of particular
value in the fight against child prostitution. The government's
policy is for inter-agency working to ensure that children are
diverted from risk and abuse and treated as victims rather than
In particular locations, curfew schemes might be used to allow
constables to engage with children (whether already involved in
such activity or at risk), and take them out of danger without
any stigma or "criminalisation". This could represent
the initial immediate response. Following this the agreed local
Area Child Protection Committee (ACPC) procedures would be triggered
to ensure the child's safety and welfare and to enable the police
to gather evidence about abusers and coercers.
36. More generally, many of those who champion
the rights of the child seek interventions which seek to protect
and divert children whilst attempting to avoid early introduction
into the formal criminal justice system. The breach of a local
child curfew involves no criminal sanction. It allows a constable
to take the child home to his family.
Clauses 43 and 44 and the Crime and Disorder Act
37. The existing child curfew scheme is
set out in sections 14 and 15 of the Crime and Disorder Act 1998
("the 1998 Act"). Clauses 43 and 44 would extend the
potential age range of curfew schemes to those under 16 and permit
them to be initiated by the police as well as by local authorities.
38. Those involved in the statutory scheme
for child curfewslocal authorities, the police and the
Secretary of Stateare all "public authorities"
for the purposes of section 6 of the Human Rights Act 1998. Thus
any powers bestowed upon them will be exercised in an ECHRcompliant
manner. In particular, powers to initiate, agree or approve the
making of a curfew scheme must only be used when the circumstances
render the measure necessary and proportionate. Further, the constable's
power to take a child home should only be used where necessary
to protect the child or other people.
39. Under section 14(1) of the 1998 Act,
a local authority may make a scheme, but only after consulting
the relevant chief officers of police and other appropriate persons
and only "if, after such consultation as is required by
the scheme, the authority considers it necessary to do so for
the purpose of maintaining order..". The police would
be under a parallel duty to consult where they initiated the scheme.
40. The curfew arrangement lasts for a specific
period which may not exceed 90 days. It is a specific response
to a particular trouble spot, not a restriction of indeterminate
duration. The curfew area and hours are to be specified and the
curfew hours must be between 9pm and 6am. In winter months, these
are normal hours of darkness in most parts of the country. The
curfew may only relate to unaccompanied minors. The rights of
parents and families to be with their children in public (at any
time of day or night) are completely preserved.
41. Section 14(4) of the 1998 Act provides
that a scheme may not come into effect until confirmed by the
Secretary of State. Under section 14(5), the Secretary of State
may confirm or reject such a draft scheme and he fixes the operative
date of any approved scheme. Just as the role of the local authority
is crucial in ensuring local accountability and sensitivity, the
Secretary of State is best placed to ensure consistency across
42. Section 14(6) of the 1998 Act allows
for different curfew hours in respect of different ages of children.
Section 14(7) provides for clear notice of the operation of a
curfew to be given.
43. Section 15(2) of the 1998 Act provides
that a constable who has reason to believe that a child has been
in a curfew area within the hours of danger shall inform the relevant
local authority. This allows the local authority to explore the
matter with the child's parents and family and highlights the
respect for family life, which lies at the heart of this legislation.
44. Section 15(3) provides the constable
with a power (not a duty) to take the child home. This not a power
to take the child to a police station or alternative detention,
nor does "being in the wrong place at the wrong time"
lead to any sanctions (criminal or otherwise) against the child.
He is being taken away from the notorious trouble spot for his
own safety and in order that he keeps out of any trouble. The
constable is precluded from taking the child home if he has reason
to believe that the child would suffer significant harm there.
Human rights compliance
45. In the government's view, its positive
obligations under article 8 of the ECHR are central to any attempt
to measure the existing law (and proposed amendments to it) against
domestic and international human rights standards. The rights
to private and family life of children, their parents and the
other families who live in and around the "trouble spots"
described earlier are clearly in play. The existing and proposed
legislation in relation to local child curfews is designed to
assist families in the difficult task of discharging their obligations
46. The proposals in the present Bill seek
to extend the potential coverage of child curfew schemes to children
as old as 15 years (where the local circumstances justify it).
Persons aged below 18 years of age are treated as children under
the ECHR, Article 1 of the United Nations Convention of the Rights
of the Child and section 105 of the Children Act 1989.
47. The government recognises that local
child curfew schemes may be capable of interfering with the private
life of children. However, such interference would be limited
to keeping children away from dangerous places in night-time hours.
Further, the effect of the provision of the 1998 Act and the Human
Rights Act will be that any such interference (whether caused
by the making, approval or enforcement of the schemes) will be
in accordance with the law. Under article 8(2), use of the powers
must be no greater than is necessary and proportionate to the
aims of public safety, including child safety, the prevention
of disorder or crime, the protection of health and morals, or
the protection of the rights and freedoms of others, including
local residents and the children's own parents and families.
48. Similarly, the government believes that
compliance with the 1998 Act scheme and the Human Rights Act will
ensure that "no child shall be subjected to arbitrary
or unlawful interference with his privacy" and that children
have "the protection of law" for the purposes
of article 16 of the CRC and article 17 of the ICCPR.
49. The government's position in relation
to article 11 of the ECHR, article 15 of the CRC and articles
21 and 22 of the ICCPR is as for article 8 of the ECHR (private
and family life) and the associated instruments mentioned above.
50. The legislation does not provide for
the incarceration of children. Instead, it provides for the possibility
of minors being taken home from places of danger in certain circumstances.
The government notes the Committee's concern that this power need
not relate to suspicion or anticipation of crime or disorder.
However, the government believes that there may be many instances,
including some situations where crime or disorder is imminent,
where the interests of children may be better served by being
taken home to their families than by formal arrest and conveyance
to a police station.
51. Section 46 of the Children Act 1989
already allows for police removal and accommodation for up to
72 hours of children likely to suffer significant harm.
52. In the light of the above, the government
takes the view that article 8 of the ECHR is of greater relevance
to the present issue than article 5. If article 5 is in play,
the government believes that the swift removal of a child to his
own home, may be justified under article 5.1(c) or (d) (depending
upon the facts of the case.)
53. The legislation conforms with article
37(b) of the CRC and article 9 of the ICCPR. The curfew scheme
and the limited police powers thereunder are clearly prescribed
by way of the 1998 Act. A child will only be taken home against
his will as a last resort. By definition, any deprivation of liberty
will be for the shortest appropriate period of time (no incarceration
CLAUSES 45, 47 AND
(K) In light of this, please inform the Committee
of your reasons for being satisfied that these provisions of the
Bill are compatible with the requirements of ECHR Article 8.2
that an interference with rights under Article 8.1 should be in
accordance with the law and necessary in a democratic society
54. The government believes that these provisions
are compatible with article 8 of the ECHR. In particular, to the
extent that the provisions amount to an interference with rights
under article 8(1) we believe that they are in accordance with
the law and necessary in a democratic society in the interests
of the economic well-being of the country and the prevention of
disorder or crime.
55. Information held by the Inland Revenue,
HM Customs and Excise and other public bodies can be of vital
importance to criminal investigations and criminal proceedings
in the UK and overseas. For example, in one particular case, the
police had arrested an individual suspected of trafficking in
narcotics and discovered during the subsequent investigation that
the individual had reported the drug-trafficking origin of his
earnings to the Inland Revenue. The Revenue had been unable to
disclose this information to the police until a production order
had been obtained. Another example is that the Inland Revenue
often have information that is vital to missing persons' cases.
These cases, which are potential murder inquiries, can be brought
to an end if the Inland Revenue are able to inform the police
that the person in question is alive and working elsewhere. This
could avoid a potential miscarriage of justice for a murder suspect.
56. The government recognises the importance
of retaining taxpayers' confidentiality (and the confidentiality
of other information acquired by public bodies pursuant to their
statutory functions), but is keenly aware of the need to balance
this against the wider public interest in combating crime.
57. The provisions target two similar, but
distinct, problems. First, clause 45 seeks to resolve the uncertainty
which has existed about the scope for disclosure under the existing
disclosure provisions listed in Schedule 1 to the Bill. Secondly,
clause 47 enables certain authorised individuals at the Inland
Revenue and HM Customs and Excise to disclose information for
specified purposes related to criminal investigations and criminal
proceedings. This represents the government's view as to the appropriate
balance to be struck between the interests of taxpayers' confidentiality
and the wider public interest in prevent crime.
Human Rights Compliance
58. This provision has a limited purpose,
namely to resolve the uncertainty that has existed about the purposes
for which disclosure can be made under the 70-odd similar provisions
listed in Schedule 1. This is achieved by harmonising the provisions
in a way, which generally enables information to be disclosed
for any criminal investigations or proceedings, whether in the
UK or overseas. It is not intended to affect the provisions listed
in Schedule 1 in any other way.
59. Each of the statutes listed in this
schedule restrict the disclosure of information which is acquired
by persons in the exercise of their functions pursuant to the
statute. Information restricted in this way can only be disclosed
in accordance with specific statutory provisions enabling disclosure.
The provisions listed in the schedule each allow information to
be disclosed for the purposes of criminal investigations or criminal
proceedings. The formulations, which have been adopted, are similar,
but not identical. These differences across the statute book have
triggered considerable doubts about the extent of the scope for
disclosure. Clause 45 is intended to resolve this uncertainty
by setting out clearly, and in detail, the purposes for which
information can be disclosed pursuant to the provisions listed
in Schedule 1. This should ensure individuals are able to regulate
their conduct accordingly.
60. Most, if not all, of the disclosing
authorities pursuant to Schedule 1 would be "public authorities"
within the meaning of section 6 of the Human Rights Act 1998.
This means that they are required, in accordance with section
6, to exercise these new disclosure powers in a way, which is
compatible with the ECHR. In particular, disclosures should only
be make where the circumstances made the disclosure necessary
61. Clause 45 is not intended to affect
the types of information that can be disclosed pursuant to the
Schedule 1 provisions, nor is it intended to affect any procedures
which may be in place to assess whether disclosures should be
made in the individual case. The provision does not authorise
the making of any disclosure, which is prohibited by any provision
of the Data Protection Act 1998.
62. To the extent that the provisions in
Schedule 1 are widened, the government believes that a fair balance
is struck between the individual's right to privacy and the wider
public interest in preventing crime. The government believes that
clause 45 is formulated with sufficient precision as to be regarded
as "in accordance with the law" within the meaning of
63. The government believes that this new
disclosure provision for Inland Revenue and HM Customs and Excise
strikes a fair balance between taxpayers' confidentiality and
the demands of the community to prevent crime.
64. The government believes that any relevant
information should be capable of being disclosed for the purpose
of a criminal investigation or criminal proceedings, irrespective
of the form in which it is held.
65. The specific purposes for which disclosures
can be made pursuant to this provision are set out in detail in
clause 47(2). This clause should be viewed in the context of the
significant criminal penalties for prohibited disclosures, which
exist within both the Inland Revenue and HM Customs and Excise.
In this context, it is imperative that the information-holder
is able to ascertain whether a particular disclosure is within
or without the scope of the disclosure provision so that he can
ensure that he does not fall foul of the criminal law. This would
be difficult if a "reasonableness" test was introduced,
as this would involve substituting an objective judgement. This
would result in uncertainty.
66. One of the key tenets of this policy
is that it should be possible for public bodies to disclose information
for the purpose of clearing the name of a person who is involved
in a criminal investigation. It should also be possible to disclose
information where the data subject was the victim of an offence
(eg in the context of child pornography). Such disclosures would
not be possible if disclosures were limited to those circumstances
where there were grounds to believe that the data subject had
committed an offence.
67. The government is keen to ensure that
the Inland Revenue and HM Customs and Excise are able to make
spontaneous disclosures of information as well as disclosures
in response to requests from other bodies. For example, the information-holder
may have information concerning a wrongdoing to which they would
want to alert the relevant authorities. In such circumstances,
it may be difficult for the information-holder to determine the
exact nature of the suspected offence. For these reasons, the
government believes that it is best not to limit the disclosure
provisions to certain categories of offences.
68. The Inland Revenue and HM Customs and
Excise are both "public authorities" within the meaning
of section 6 of the Human Rights Act 1998. They will therefore
be required, in accordance with section 6, to exercise these new
disclosure powers in a way, which is compatible with the ECHR.
In particular, disclosures should only be made where the circumstances
make the disclosure necessary and proportionate. This place an
important limitation on the exercise of the powers provided by
69. These authorities are fully aware of
their obligations under the Human Rights Act 1998 and have already
introduced administrative procedures to ensure that disclosures
are only made in appropriate circumstances. These safeguards generally
require that bodies requesting information have to demonstrate
that they have a legitimate interest; the information is properly
required for crime-related purposes, and that staff-training ensures
that staff are fully aware of the conditions and safeguards necessary
to operate disclosure provisions fairly and lawfully.
70. Disclosures will also be limited by the provisions
of the Data Protection Act 1998, which applies to any information
disclosure insofar as it relates to data relating to an identified
or identifiable living individual. This Act provides a detailed
statutory framework for regulating the processing (including the
disclosure) of personal data. If a disclosure cannot be made in
accordance with the data protection principles, the disclosure
can only be made if an exemption applies. Of particular relevance
in the present context is section 29 of the Act which provides
an exemption to the "non-disclosure provisions" where
both (a) the disclosure is for the prevention or detection of
crime or the apprehension or prosecution of offenders, and (b)
the application of the provisions would be "likely to prejudice"
any of those purposes. This means that the Act operates as a filter
on the type of information which can be disclosed and a requirement
for a pre-disclosure assessment of the proportionality of disclosing
71. Other safeguards in relation to disclosure
pursuant to clause 47 are as follows:
The disclosure provisions are permissive.
Information-holders cannot be compelled to disclose information
under clause 47.
Criminal investigators in the UK
are obliged to carry out their investigations in good faith and
accordingly would be expected only to request information which
is relevant to an investigation or proceedings.
Recipients of information from the
Inland Revenue or HM Customs and Excise are not permitted to disclose
the information for any purposes other than those stated in clause
47(2) and then only with the permission of the relevant Commissioners.
72. In conclusion, the government believes
that clause 47 is compatible with the requirements of Article
8 ECHR and that any interference with the rights in Article 8.1
is in accordance with the law and necessary in a democratic society.
1984 AND THE
(L) Would you please inform the Committee of the
reasons why you are satisfied that the provisions of the Bill
with respect to authorisation and taking of such searches and
samples would offer sufficient protection for a suspect's rights
to meet the obligations of the State under ECHR articles 3 and
73. The only effect of clause 78 is to lower
the level of authority needed for an intimate search under section
55 of the Police and Criminal Evidence Act 1984 (PACE) from a
superintendent to inspector. This change is to reflect modern
management structures in the police service. An inspector is a
senior and responsible officer. Allowing decisions to be made
by inspectors ought to reduce delays to those in custody.
74. The Bill does not alter the circumstances
in which an intimate search may be carried out under section 55
of PACE. Such a search may be authorised where the senior officer
has reasonable grounds for believing that someone who has been
arrested and is in police detention may have concealed on him
something which he could use to cause physical injury to himself
or others, for example, razor blades. Such a search must be carried
out by a doctor or nurse unless this is not practicable.
75. An intimate search may also be authorised
where the senior officer has reasonable grounds to believe that
someone who has been arrested may have concealed on him a class
A drug which he had in his possession with intent to supply or
illegally import or export. An intimate search for drugs may only
be carried out on medical premises by a registered doctor or nurse.
76. An intimate search can only be authorised
where an officer reasonably believes that the concealed item cannot
be found without an intimate search.
77. Other safeguards are incorporated in
Section 55 and the Codes of Practice which are required to be
issued under PACE. For example, Section 55 prohibits a constable
carrying out an intimate search of a person of the opposite sex.
Whenever an intimate search is carried out, the custody record
must state which parts of the body were searched and why they
were searched. It is also a requirement for figures to be published
annually showing the total number of intimate searches, the persons
who conducted the searches and the reasons for the search.
78. Intimate searches are rarely carried
out by constables. Figures for 1999-2000 show that of the 170
intimate searches conducted in England and Wales only four were
recorded as having been carried out by constables. The vast majority
of intimate searches are carried out for Class A drugs and in
1999-2000, 135 of the searches were recorded as having been conducted
for this purpose.
79. Code of Practice C which covers the
questioning, treatment and detention of persons by police officers
contains guidance on the conduct of intimate searches to ensure
that they are carried out with proper regard to the sensitivity
and vulnerability of the person concerned.
80. The government does not accept that
intimate searches are inherently inhuman or degrading within the
meaning of article 3 of the ECHR. In so far as they constitute
an interference with article 8 rights, the government believes
that section 55 only permits them when strictly necessary in the
interests of the prevention of disorder or crime or the protection
81. Intimate samples can only be taken with
the consent of the person concerned. Non-intimate samples may
be taken without consent but only where the conditions in section
63 of PACE are satisfied. The Bill does not alter the circumstances
in which such samples may be taken on arrest. It only alters the
rank of officer who must authorise the taking, reducing it from
superintendent to inspector. The officer must have reasonable
grounds for suspecting the involvement of the person concerned
in a recordable offence and for believing the sample will tend
to confirm or disprove his involvement.
82. The non-intimate samples most commonly
taken are from mouth swabs or hair samples. Neither require nakedness
or undue intimacy. The government does not accept that the taking
of samples is either inhuman or degrading within the meaning of
article 3. In so far as the taking of samples amounts to an interference
with article 8 rights, the interference is justifiable in the
interests of the prevention of crime and disorder.
(M) In the light of this, please would you inform
the Committee of your reasons for deciding that these provisions
meet the requirement of ECHR article 8, in the following respects.
(i) Are adequate controls in place to ensure
that records are up to date and accurate as demanded by the case-law
of the European Court of Human Rights under article 8?
83. Fingerprints and information derived
from DNA samples are amongst the most important tools available
to the police in the fight against crime. They provide vital objective
evidence to confirm or disprove involvement in crime. There are
in effect two databasesthe National Fingerprint Collection
and the National DNA database.
84. Fingerprints are a key part of the evidential
process. Strict measures are taken at every stage of the process
to ensure that fingerprints are properly associated with the records
of the person from whom they were taken.
85. Fingerprints are taken from suspects
at police stations and sent to the police forces' fingerprint
bureaux. Fingerprints are normally taken using an ink impression
on paper and then scanned so that they can be stored and searched
electronically. The technology now exists for fingerprints to
be captured electronically using "livescan" devices.
Clause 77(7) and 79(4) of the Bill provide for type approval by
the Secretary of State of equipment that is used to capture fingerprints
or other skin impressions electronically. This is to ensure that
the equipment is suitable for use and that the integrity of the
evidential chain is maintained. This follows the recommendations
contained within the House of Lords Select Committee on Science
and Technology ,
which recommended that "consideration be given to measures
to reduce the uncertainty over the use of digital images in court".
86. Each set of prints is recorded and given
a unique Arrest Summons Record (ASR) number on the Police National
Computer(PNC), which also records minimum basic details: name
of the person; details of the officer taking the prints; the officer
investigating the case; the offence and the charging station.
The Fingerprint Bureau then enters the record on to the National
Automated Fingerprint Identification System (NAFIS). It is not
possible to create a record on NAFIS without the full information.
87. NAFIS will retrieve the Arrest Summons
Record (ASR) from the Phoenix Criminal Names database on the PNC.
Checks are then made to ensure that the data captured on the new
form matches that on the Arrest Summons Record. If the subject
has a criminal record the Criminal Record Office (CRO) number
is added to the relevant field in the ASR.
88. Data is then checked on NAFIS by entering
the CRO number, which will retrieve images from that quoted number
to enable the fingerprint bureau to make a comparison and to ensure
that the prints belong to the same person. If the prints match
the new set of prints the individual's CRO number will be added
to the fingerprint record. If the prints do not match, NAFIS will
search the new prints against all the fingerprints held in the
database in order to try to achieve a match. This will determine
whether the suspect has a criminal record under another name.
If this search fails to show a match the prints will be given
their own CRO number by the NAFIS system, together with a unique
NAFIS Fingerprint Identification Number. When a fingerprint record
is added either to an existing or a new record, the information
goes electronically to the PNC to update records. Arrest Summons
Records are attached to existing records.
89. The unique Fingerprint Identification Number
allows tracking through the NAFIS system. For any individual there
may be several sets of fingerprints taken for different offences.
NAFIS also uses the best prints to compile the "ten print"
complete fingerprint record - so this might be a composite of
individual prints taken from different sets and records. This
allows for an audit trail to be created, enabling all prints to
be kept and accounted for even though the set shown when the record
is interrogated may be a composite.
90. The systems is designed so that there are
a number of checks and balances to ensure that the infomation
is correct. The link with the Phoenix Criminal Record on the PNC
helps to ensure accuracy and updating of records. The National
Fingerprint Collection is subject to the provisions of the Data
Protection Act 1998 and is registered with the Information Commissioner.
91. The National DNA database currently comprises
the details of individuals suspected, cautioned and convicted
of a recordable offence together with their DNA profile. It also
contains DNA profiles derived from crime stains.
92. The DNA database is an intelligence database.
The results of any analysis carried out or the fact that a match
was found during a speculative search will not be used for the
purpose of a prosecution. If a match is found, the police would
take a further evidential sample that would be used in the preparation
of the case against the individual.
93. The results of the profiling process are
stored electornically as a digital record in compliance with the
Data Protection Act 1998. These records provide a high level of
discrimination between profiled individuals. They also provide
information for investigating officers, such as potential links
between individuals and crime scenes and between different crime
94. When a DNA sample is taken from a suspect
there is a meticulous process to ensure that the details of the
individual remain associated with the correct sample throughout
the process that it goes through before it is entered as a profile
on the database.
95. DNA samples are taken by trained police
officers who are supplied with DNA kits by the Forensic Science
Service. These contain everything that is needed to take a sample:
disposable gloves for the police officer to use to prevent contamination;
two comb swabs used for taking the mouth swabs; the container
to put the swabs or hair samples in; the necessary documentation
to be completed with the suspect's details and a set of unique
bar code labels. One bar code label is attached to the sample
container and a second identical one is attached to the documentation
which accompanies the sample. The sample is placed in a sealed
bag with the documentation and bar code labels in the presence
of the suspect. On arrival at the laboratory the bag is checked
against that on the documentation. The documentation is checked
to ensure the seal is intact and the bar code is checked to ensure
the details of the suspect, the arrest summons number, the details
of the officer taking the sample and the offence have been completed.
If there are errors or omissions the sample is rejected and not
96. Two swabs are taken from the sample. One
is retained and stored so that if there is any subsequent doubt
about the accuracy of the analysis the second sample can be processed.
97. The Forensic Science Service (FSS) are responsible
for processing the majority of DNA samples. Every care is taken
throughout the processing of the sample to produce a profile to
ensure that no contamination occurs and the sample is uniquely
identified at all stages through the process. The FSS in addition
to their own high quality control checks have external accreditation
through BS EN ISO 9000 and UKAS M10 National standard.
98. The FSS have a second role as custodian
of the DNA database on behalf of the Association of Chief Police
Officers (ACPO). In this role they are responsible for managing
and running the DNA database. The FSS enter profiles on to the
database and inform the appropriate police force when a match
occurs. The FSS are also responsible for ensuring that the same
high standards of quality control are applied to the other suppliers
who process DNA samples for entry onto the National DNA database.
99. The FSS DNA database, unlike the National
Fingerprint Collection on NAFIS has no direct link to the Phoenix
Criminal Record on the PNC although work has started to enable
a link to be made. This means that the process for informing the
police of matches and for the police informing the FSS of the
outcome of court cases is not automatic and some delay may occur
in updating rocords. Work on establishing a direct link to the
PNC is due to be completed in October 2001.
100. Under the Data Protection Act 1998, data
subjects have a right of access to their personal data, subject
to specific exceptions. Fingerprints or DNA profiles held on these
computer databases are personal data for these purposes.
101. The government is satisfied that the controls
on collection and storage of fingerprint and DNA information are
sufficiently rigorous to ensure both that the records are up to
date and accurate and that the requirements of article eight are
(ii) Are there adequate controls over the circumstances
in which searches of the records are permitted to ensure that
such searches meet the criterion of necessity in a democratic
society for one of the legitimate purposes listed in Article 8.2?
102. Clause 81(2) provides that fingerprints
and samples taken on suspicion of involvement in an offence can
only be used for the purposes of the prevention and detection
of crime, the investigation of an offence or the conduct of prosecution.
"Use" is defined to include allowing searches to be
made against the records and disclosure to any other person. It
follows that the data contained on the National DNA database and
the National Fingerprint Collection will only be able to be used
for those purposes.
103. There is tight control over access to information.
The data held on the National DNA database and the National Fingerprint
Collection on NAFIS is held on a password protected system and
the security layered to comply with the requirements of the Data
Protection Act 1998. Access is to authorised operators only and
according to the status of the accessor this will allow i) the
addition of the individual's profile and the associated unique
identifiers; ii) the addition of case stain profiles and the associated
unique identifers; iii) interrogation of the database.
104. Only the FSS have direct access to the
DNA database. Requests for searches from forces not covered by
the existing arrangements, including requests from the National
Criminal Intelligence Service on behalf of overseas forces, will
be referred to the ACPO chairman of the National DNA Management
Board. Once the roll out of NAFIS is completed in April 2001,
individual forces in England and Wales will have direct access
through their force fingerprint bureaux. Requests for searches
from forces such as the British Transport Police or by NCIS on
behalf of overseas forces will continue to be processed through
the National Fingerprint Bureau located in New Scotland Yard.
105. Exchange information will also need to
be compliant with the provisions of the Data Protection Act 1998.
Personal data can only be disclosed under the 1998 Act if the
disclosure can be made consistently within the data protection
principles; or if one of the non-disclosure exemptions in the
Act applies. In the first case the data protection rules apply
in full. In the second case, certain rules are eased but only
to the extent that they are inconsistent with the disclosure in
question (see section 27(3) and (4) of the 1998 Act).
106. Section 29 of the Act provides an exemption
to the "non-disclosure provisions" where both (a) the
disclosure is for the prevention or detection of crime or the
apprehension or prosecution of offenders, and (b) the application
of the provisions would be "likely to prejudice" any
of those purposes. This means that the Act operates as a filter
on the type of information which can be disclosed and a requirement
for a pre-disclosure assessment of the proportionality of disclosing
the information. This test could not be used to justify routine
searches or data matching. The data controller would have to be
satisfied in each case that if the particular data is not shared,
matched or disclosed this would be likely to prejudice the prevention
or detection of crime or the apprehension of offenders.
What assurances will there be that bodies given
access to the records will themselves have adequate controls in
place to satisfy the entitlements of data subjects under Article
107. Crime is not limited to national borders.
The police may have reason to believe that fingerprints or a DNA
sample that has been recovered from a crime scene relate to a
foreign national. They may then wish to try to confirm the suspect's
identity by checking with the relevant country's fingerprint or
DNA database. A similar logic applies to overseas police forces
seeking assistance from our police service.
108. The exchange of information on fingerprints
and DNA currently takes place under authority of the European
Convention on Mutual Legal Assistance 1959 and Criminal Justice
International Co-operation Act 1990. Clauses 80 and 81 of the
Bill will put these exchanges on a clearer statutory footing.
109. The primary gateway for requests for
intelligence information from overseas police forces is through
Interpol and ACPO do not intend to change this arrangement. The
requests for exchange of information relating to DNA or fingerprints
would be dealt with using the existing procedures. In considering
requests for such information Interpol would look at a full range
of factors including the validity of the request, the purposes
to which the information is to be put, compliance with the data
protection guidelines and the security of information. Requests
for fingerprint information from overseas that have been validated
by Interpol are processed through the National Fingerprint Office
in New Scotland Yard.
110. The safeguards that are already in
place require that bodies requesting information related to fingerprints
or DNA have to demonstrate that they have a legitimate interest
and that the information is required for crime-related purposes.
There is not a blanket authority to share all of the information
on the databases. Decisions are made on an individual case-by-case
111. Bodies within the UK to whom any data
is disclosed will themselves be subject to the provisions of the
Data Protection Act 1998. Bodies elsewhere in the EU will be subject
to the relevant national law in that state implementing the European
Data Protection Directive. The 1998 Act includes provisions prohibiting
the transfer of personal data to foreign jurisdictions unless
the country or territory ensures an adequate level of protection
for the rights and freedoms of data subjects in relation to the
processing of personal data. This is subject to a number of exceptions,
in particular where the transfer is necessary for reasons of substantial
public interest. UK public authorities will also be obliged to
act in accordance with section 6 of the Human Rights Act in their
use of any information derived from the records.
112. The government is satisfied that the
explicit prohibition in the Bill of use of fingerprint and DNA
records for purposes other than the prevention and detection of
crime etc; the provisions of data protection legislation; and
the system of practical safeguards and filters outlined will ensure
compliance with the requirements of article 8. Access to the databases,
searches of them and disclosure of the contents will only take
place where necessary for the legitimate purposes permitted by
article 8.2, notably the prevention and detection of crime.
27 February 2001
1 eg Buckley v United Kingdom (1996)23 EHRR 101. Back
eg R (on the application of Mahmood) v Secretary of State for
the Home Department  All ER (D) 2191; R (on the application
of N) v Governor of HMP Dartmoor (16 February 2001). Back
1992 British Crime Survey, Home Office Research Study No 132.
London. HMSO. Mayhew P et al (1993). Back
"Alcohol and Crime: taking Stock", Home Office Crime
Reduction Research Series Paper 3, Policing and Reducing Crime
Unit. Ann Deehan (1999). Back
"Alcohol and Crime: Taking Stock" ibid. Back
The Government's policy on children involved in prostitution
is set out in Safeguarding Children in Prostitution, guidance
produced jointly by the Department of Health, the Home Office,
the Department for Education and Employment and the National Assembly
for Wales in May 2000. This forms supplementary guidance to Working
Together to Safeguard Children. Back
Safeguarding Children in Prostitution contains a detailed
discussion of the kind of procedures to be put in place involving
local police forces, social services departments and other agencies. Back
HL Paper 64, February 1998. Back
It appears that the question of prejudice was not considered
in the case of R (on the application of A) v Chief Constables
of C and D  All ER (D) 1524, no doubt because the Act was
not in force at the relevant time and so had no bearing on the
outcome of the proceedings. Back