Supplementary memorandum by the Home Office
1. This supplementary memorandum is submitted
by the Home Office in response to the letter from the Chair to
the Joint Committee on Human Rights to Charles Clarke of 8 March
2001. It supplements the Home Office memorandum of 27 February
and the oral evidence which Mr Clarke gave to the Committee on
5 March. It responds to points raised during the questioning and
subsequently to which there was insufficient time to reply.
New clauses 9 to 12 and particularly New Clause 12
(power to remand youngsters to secure training centres)
Article 10(2)(b) and (3) of the International
Covenant on Civil and Political Rights and article 37(c) of the
Convention on the Rights of the Child, require juveniles to be
detained separately from adults, and those on remand to be separated
from convicted prisoners. The UK has entered reservations to those
provisions which effectively prevent them from binding the UK.
Does the government intend to maintain those reservations, and,
if so, why? (Q54)
2. The government has no immediate plans
to remove its reservations relating to Article 10(2)(b) and (3)
of the International Covenant on Civil and Political Rights and
Article 37(c) of the United Nations Convention on the Rights of
3. It has reviewed the position as regards
England and Wales and in doing so has taken account of the experience
and advice of the Youth Justice Board and HM Prison Service.
4. The government is supportive of the aims
(reflected in the above instruments) of separating remanded and
sentenced detainees and adults and juveniles wherever possible.
However, operational experience demonstrates that at times, these
aims may themselves conflict. Further, the government must also
give full regard to other vital aims. These include that of separating
vulnerable detainees from those who might harm them, the need
to provide young people with appropriate facilities and regimes
and the importance of detaining them as close to their homes and
families as possible. All of these crucial and sometimes competing
factors must be borne in mind amidst the operational reality of
managing a detention estate that can be effectively delivered
Local Authority Secure Units and Secure Training
5. The government takes the view that ideally,
remanded and sentenced young people should be accommodated separately.
However local authority secure units (LASUs) are usually small
and distributed around the country to provide facilities as near
as possible to people's homes. Even Secure Training Centres (STCs)
may be regarded as small when taking into account the fact that
they can take a wide range of ages with differing educational
6. Local authority secure units have always
mixed remanded and sentenced juveniles. Where possible they are
accommodated on separate wings on the same campus but join together
in regime activities where appropriate. STCs currently may not
take remanded juveniles, though New Clause 12 of the Criminal
Justice and Police Bill will enable local authorities to request
that a young person is placed on remand in an STC.
7. Providing completely separate facilities
would be both costly and impractical in LASUs and STCs given the
comparatively small numbers involved. In addition, staffing levels
in both LASUs and STCs enable them to manage risks much more closely
on an individual basis than is possible in the prison service.
This level of closer supervision mitigates some of the risks that
may be inherent in mixing remanded juveniles from those who are
HM Prison Service Juvenile Establishments
8. In HM Prison Service juvenile sites,
which are generally larger than LASUs or STCs, sentenced and unsentenced
boys do not mix freely within living units. Each living unit holds
only sentenced boys or only unsentenced boys. However they do
mix in daytime regime activities/services so long as there is
adequate supervision and where an unsentenced boy agrees to join
the regime or activity. The purpose of this mix is to meet the
common needs of those in the group eg educational classes, health
9. There are relatively few sentenced and
unsentenced young women in custody, and they need to be located
reasonably near to their home areas. Separation between remandees
and those who have been sentenced is not practicable in these
10. While the separation of remanded and
sentenced detainees is an obvious aspiration in the Criminal Justice
system, it may not always be paramount amongst minors who are
being accommodated in a welfare/educational environment rather
than one which is purely penal in nature. The relative vulnerabilities
and ages of minors may at times, be more important determining
factors than their criminal status.
11. Many young men aged 15-17 years are
held in prison service accommodation on split sitesthat
is establishments holding under 18s and 18-20 year olds. Nevertheless,
the two groups are kept separate for most purposes including their
living accommodation (ie sleeping, eating, washing and association
areas) and in their regime activities/services by using separate
facilities or by timetabling the separate use of shared facilities
to achieve separation. Mixing with 18-20-year-olds is permitted
so long as the purpose is to meet common needs (eg attendance
at religious observance) and a thorough assessment of the potential
harm is reflected in the arrangements for supervising mixing.
They may also mix for the purpose of a specialist facility such
as a Health Care Unit where the importance of meeting particular
needs overrides the requirement to separate (eg when in-patient
medical or psychiatric care is required).
12. That aside, boys under 18 will occasionally
need to be held temporarily in an adult prison in particular circumstances,
for example during a court case where there is no juvenile establishment
within reasonable distance of the court.
13. Young women on remand aged 15 and 16
years have already been moved out of prison service accommodation
to local authority secure units. The Government also has plans
to move sentenced young women aged 15 and 16 years in non-Prison
Service accommodation as soon as possible, but by the middle of
next year at the latest. But there is limited non-prison service
secure accommodation. For the present, young women aged 17 years
on remand will continue to share facilities with adults due to
their small numbers and the desirability of keeping them near
their homes. Those 17-year-old young women who have been sentenced
will need to be held with other young women under 21 in enhanced
units in women's prisons.
Licensing law: meaning of "quarrelsome"
(clause 34) (Q21)
14. In response to Mr Browne's question
21 about the meaning of "quarrelsome", it may be helpful
to the Committee to know that the term "quarrelsome"
has been used in Scottish licensing legislation since 1862, and
licensing legislation in England and Wales since 1872. Although
a different system of liquor licensing operates in Scotland, section
79(1)(a) of the Licensing (Scotland) Act 1976 makes it an offence
for any person in licensed premises "being riotous, quarrelsome
or disorderly" to refuse or neglect to leave such premises
on being requested to do so by the occupier or manager or his
employee or agent, or by any constable.
Disclosure powers (clauses 45-48)
15. The Committee's questions on Part II
of the Bill (clauses 45-48) on information disclosure provisions
appear to be threefold:
1. Does the State have a positive obligation,
under ECHR Article 8, to impose on private people and bodies with
access to information disclosable under clauses 45 and 47 obligations
at least equivalent to those imposed directly on public authorities
by Article 8 (Oral question (viii)?
16. As Mr Clarke explained in giving oral
evidence, the government accept that there are situations in which
the state may have a positive duty to adopt measures to secure
respect for private life. However, in the case of clauses 45 and
47 of this Bill, the government's view is that no further measures
are required to secure respect for article 8 rights.
17. There are two cases in which information
disclosable under clauses 45 or 47 could be accessed by private
individuals or bodies. The first is where the person making the
primary disclosure is not a "public authority" within
the meaning of section 6 of the Human Rights Act 1998. The second
is where the recipient of the information disclosed in accordance
with either clause 45 or clause 47 is a private individual or
18. On the first point, Mr Clarke mentioned
that a few provisions had been identified in which the person
making the primary disclosure under the Act might not always be
a "public authority" within the meaning of section 6-section
4 of the Electronic Communications Act 2000 (which is not yet
in force), section 206 of the Water Industry Act 1991 and section
204 of the Water Resources Act 1991.
19. Having had the opportunity to examine
the point over the last few days, the government is now of the
opinion that the relevant bodies under the Water Industry Act
1991 and the Water Resources Act 1991 probably should be
regarded as "public authorities" within the meaning
of section 6 for the purpose of their regulated activities. It
should also be noted that the Electronic Communications Act 2000
is not in force and that no information is therefore presently
held pursuant to this statute. Further, it is not currently intended
to bring the relevant provision of this statute into force and
the provision will lapse if it does not come into force within
the next five years. Nevertheless, even if disclosures were possible
under these provisions by a person who was not a "public
authority", such a person would not be in any way free to
disclose such information at will.
20. Mr Clarke explained why the Data Protection
Act 1998 operates as a filter on the type of information that
can be disclosed and requires an assessment of the proportionality
of disclosing the information to be carried out before a decision
to disclose is made. For this reason, the government does not
believe that any further measures are required to ensure that
bodies which are not "public authorities" within the
meaning of section 6 undertake a balancing exercise prior to disclosure.
21. In any event, the government believes
that it would be inappropriate to introduce a proportionality
test into the legislation for private individuals. This is because
it would be very difficult for a private person or body to be
certain, in an individual case, whether the proportionality test
pointed in favour of disclosure in the wider interest of preventing
crime, or non-disclosure in the interests of an individual's privacy.
However, an individual should be able to ascertain whether a particular
disclosure is or is not within the scope of the disclosure provision
so that he can ensure that he does not fall foul of the criminal
law. The penalty for making a disclosure in contravention of these
statutes is criminal.
22. The second case in which information
disclosable under clauses 45 or 47 could be accessed by private
individuals or bodies is where information is disclosed via the
provisions in Schedule 1 (which are subject to clause 45) or under
clause 47 to a private individual or body.
23. In the vast majority of cases, information
disclosed via the provisions listed in Schedule 1 (to the extent
that they are affected by clause 45) or clause 47, will be disclosed
to other bodies that are also "public authorities" within
the meaning of section 6 of the Human Rights Act. This is because
information disclosed for the purposes of criminal investigations
or proceedings will invariably be disclosed to prosecuting authorities.
There is, however, the theoretical (if unrealistic) possibility
than information could be disclosed via these provisions for the
purpose of a private prosecution.
24. In practice, such disclosures are highly
unlikely for a number of reasons. The disclosure provisions are
discretionarydisclosure cannot be compelled under any circumstances
by a person requesting disclosure.
25. The primary information-holder will usually
be subject to the requirements of either the Human Rights Act
1998 or the Data Protection Act 1998 or both. These would involve
a pre-assessment as to the proportionality of making the disclosure
which would be less likely to favour disclosure in a case involving
a private individual.
26. In the unlikely situation that information
was disclosed to a private individual for the purposes of a private
prosecution, that person would be obliged to respect the confidentiality
of the information received in the majority of cases, this requirement
to respect the confidentiality of the information received would
be required by the statute. Onward disclosure would only be possible
for the purposes authorising the primary disclosure.
27. In some cases, such as clause 47, the
disclosing authority would be able to impose conditions upon the
recipient about further disclosure that would be additional to
the requirement that of criminal investigations or proceedings.
In the rare cases where onward disclosure by private recipients
would not be restricted by the statute, they would be subject
to common law obligations of confidentiality.
(2) Can the innocent ordinary citizen be confident
that these mechanisms will not be misused against them (Q40)?
28. The government is satisfied that because
of the safeguards in place, the new powers provided by clauses
45 and 47 will not be misused against innocent citizens. The safeguards
include the following:
(a) Disclosures will only be possible where
the information-holder is satisfied that the information is relevant
for the purposes of a criminal investigation or criminal proceedings.
(b) The disclosure provisions are permissive.
Information-holders cannot be compelled (in the absence of a court
order) to disclose information under either clause 45 or clause
(c) 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 a criminal investigation or criminal proceedings.
(d) Recipients of information from the Inland
Revenue or HM Customs and Excise via these disclosure provisions
are not permitted to disclose the information for any purpose
other than a criminal investigation or proceedings and then only
with the permission of the relevant Commissioners.
(e) As explained in oral evidence, the information-holders
will invariably be subject to the requirements of the Human Rights
Act 1998 and the Data Protection Act 1998. These statutes require
a pre-assessment as to the proportionality of making the disclosure.
This means that the information-holder would need to carry out
a balancing exercise between the wider interests in combatting
crime and the individual's right to privacy. This should help
to ensure that abuses of the power do not occur.
(f) It is intended that disclosures of information
via clause 47 will be regulated and controlled by procedural requirements
to be drawn up by the relevant authorities and distributed to
relevant members of staff.
3. Is the government satisfied that these
provisions are proportionate notwithstanding the extensive list
of bodies in Schedule 1 (Q 38-40)?
29. Each of the statutes listed in Schedule
1 already allow disclosure for the purposes of criminal investigations
or criminal proceedings. The content of the information acquired
by virtue of the statutory regimes listed in Schedule 1 will vary
considerably from statute to statute. The individual statutes
target a number of very different concerns (although certain categories
of statutes can be linked), but they all share a common thread.
They each restrict the disclosure of information acquired pursuant
to that statute, but provide a carve-out for disclosures made
for the purposes of criminal investigations or criminal proceedings.
30. It is possible that information held
pursuant to any of these statutes will be useful for the purposes
of a criminal investigation or criminal proceedings. Nevertheless,
some statutes by their nature will be likely to generate less
relevant information for these purposes than others. It may be
that information held pursuant to certain statutes will only very
infrequently be relevant to a criminal investigation or proceedings.
However, the government's view is that such disclosures should
be possible in the event that the relevant case arises. It believes
that in each case, the wider interests in preventing and combatting
crime outweigh the individual's right to privacy. As has been
mentioned, there are a number of safeguards which exist to ensure
that these powers are not abused.
31. The Committee raised the particular
examples of the Sex Discrimination Act 1975 and the Race Relations
Act 1976. As is standard in the case of specific restrictions
on the disclosure of information acquired pursuant to a particular
statute, a carve-out was provided in both these statutes at the
time of enactment which enabled information to be disclosed for
the purposes of criminal proceedings.
32. The current provisions do not allow
the Commissions to release information prior to the institution
of criminal proceedings. Formal proceedings would need to be commenced
before information, legitimately obtained by the Commissions under
their formal investigation powers, could be released. The additional
disclosure powers would enable the relevant Commissions to provide
information for the purposes of a criminal investigation or where
consideration was being given to launching a criminial investigation.
In the event that information was held by the relevant Commissions
that demonstrated, for example, that a crime had been committed,
the limitation inherent in the current disclosure provisions could
mean that proceedings would never be initiated.
33. Removal of any of the provisions from
the list in Schedule 1 would result in a continuation of the uncertainties
that have been identified about 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. Inclusion within
Schedule 1 is important to ensure individuals are able to regulate
their conduct so as to remain within the bounds of the law.
Intimate searches and samples (clauses 78 and 79)
The issue of guidance for inspectors when deciding
whether it is impracticable to have an intimate search conducted
by a medically qualified person (Q41-50)
34. The Home Office memorandum of 27 February
set out at paragraphs 73 to 80 the limited circumstances in which
an intimate search may be carried out by a constable. As that
memorandum made clear the only change made by the Bill is that
the decision to authorise such a search could be made by an officer
or inspector rather than superintendent rank. There are substantial
safeguards in section 55 of PACE and Code C issued under that
35. An intimate search by a constable can
only be authorised where the senior officer reasonably believes
the detainee has concealed a dangerous item on his person with
which he may harm himself or others; that the item cannot be found
without an intimate search; and considers that it is not practicable
for the search to be carried out by a medically qualified person.
Annex A of Code C states that the reasons why an intimate search
is considered necessary shall be explained to the person before
the search takes place. A constable may not carry out an intimate
search of a person of the opposite sex.
36. Whenever an intimate search is carried
out, the custody record must state which parts of the body were
searched and why they were searched. In addition, Annex A of Code
C provides that where an intimate search is carried out by a constable,
the reason why it was impracticable for a suitably qualified person
to conduct it must be recorded.
37. Section 55 also makes it a requirement
for figures to be published annually showing the total number
of intimate searches, the persons who conducted the searches,
the reasons for the search and the results of the search.
38. In practice, the circumstances in which
a superintendent will need to authorise an intimate search of
a person by a constable are rare. Such a situation would arise
where, for example, a superintendent reasonably suspects a person
has concealed a harmful article on himself, such as a knife or
razor blades, and no doctor or nurse is available to conduct an
39. Figures for 1999-2000 reveal that there
were only 4 cases in which constables were recorded as carrying
40. While guidance on this issue is not
set out in precise terms in Code of Practice C, it is clear from
the statutory framework and the statistics recorded that searches
by constables are genuinely exceptional. The government is however
revising Code C as part of a general revision of all PACE codes
of practice. In that context we shall consider including specific
guidance for inspectors on exercising discretion in cases where
a doctor or nurse is not available to conduct an intimate search.
Restrictions on use and destruction of fingerprints
and samples (clauses 81 and 82, as amended)
FOR ECHR ARTICLES
6. 8 AND 13 OF
CLAUSES 81 AND
82, AS AMENDED
41. Mr Clarke explained to the Committee
the background to these provisions and the reasons for believing
them compatible with article 8 of the Convention. The government
does not believe that removing the transitional provision in clause
81(5) of the Bill affects the balance of argument under article
42. As far as article 6 of the Convention
is concerned, the type of evidence we are concerned withfingerprints
and DNAis amongst the most compelling and objective evidence
in the fight against crime. It may conclusively establish involvement
in a serious crime. It may on the other hand conclusively exonerate
someone who might otherwise have been convicted on the basis of
circumstantial or confession evidence. It is in the interest of
justice and in the interests of the defendant that this evidence
be available to the court.
43. Turning again to the facts of the cases
of R v B and R v Weir, the government do not believe any
sensible person would say that an injustice would have been done
had the conclusive evidence of involvement in rape and murder
led to their conviction.
44. The Convention does not require (and
nor does English law) that evidence which was obtained or was
held unlawfully is necessarily inadmissible in a trial. The courts
will retain their discretion under section 78 of PACE to exclude
DNA evidence which ought to have been destroyed under the existing
law, if they believe it would have a detrimental effect on the
fairness of a particular trial.
45. As far as article 13 of the Convention
is concerned, the government do not believe that either the substantive
provisions of clause 81 or the amendments to the transitional
arrangements give rise to any violation of the Convention rights.
We do not believe the current "right" under PACE to
destruction of samples is a "right" protected by the
Convention. It follows that we do not believe any separate issue
arises under article 13. If an issue of fairness arises as to
the admissibility of particular evidence during a criminal trial,
section 78 of PACE provides the court with the means to exclude
46. Those affected by the amendments to
clauses 81 and 82 will be a relatively small group, ie those who
had been acquitted before commencement of the section but whose
samples had not yet been removed from the database. Until the
amendments to section 64 come into force, the police will still
be under an obligation to destroy samples. The Forensic Science
Service currently remove an average of 600 profiles a week from
the National DNA database. This will include samples relating
to all the offences in relation to which samples can be taken.
47. In these circumstances it is likely
that the evidence resulting from the speculative search on the
database will be the first indication that an individual was involved
in a crime other than the one for which the DNA sample was taken.
There is therefore a high probability that without the DNA evidence,
the crime would not be detected. It is also probable that any
subsequent investigation would rely upon the DNA evidence as in
the cases of R v Weir and R v B. The government would not wish
to see further cases where rape and murder go unpunished. Hence
our wish to make the change as soon as possible to reduce any
Harassment of people' homes (New clause 6)
The certainty of the criteria for the exercise
of the new police powers and related offences of harassment etc
48. The government accept that the provisions
of new clause 6 may engage rights under article 10 (freedom of
expression) and 11 (freedom of peaceful assembly) of the Convention.
However those rights are not absolute and are subject to the restrictions
permitted by articles 10.2 and 11.2. Of particular relevance in
this context are the interests of preventing disorder or crime
and protecting the rights and freedoms of others.
49. Rights of freedom of expression and
rights of assembly must also be balanced against the other Convention
rights, most notably the article 8 rights of those against whom
these protests are directed to privacy and family life and to
carry out their lawful occupations.
50. New clause 6 does not prevent anyone
from expressing their views about animal rights issues (or indeed
any other issues). Nor does it prevent pickets, assemblies or
demonstrations. It does not affect demonstrations which are held
away from people's homes. The right to carry out a peaceful picket
of a workplace in furtherance of a trade dispute is specifically
preserved. Even in relation to protests outside people's homes,
it does not create any kind of blanket offence. No one is stopping
people from expressing their genuinely held views, but the government
are determined to offer some protection to the victims of campaigns
of harrassment and intimidation around their homes.
51. If the police are satisfied on reasonable
grounds that the conditions in the secction are metie that
the protest is an attempt to pursuade someone not to do something
they are entitled to do (or to do something they don't have to
do) and that is likely to cause harassment, distress or alarm
to the victims or their families, they can direct those concerned
to move away.
52. The government is satisfied that this
is a sufficiently clear test for the exercise of the constable's
powers. It would be impossible to prescribe in detail precisely
what behaviour or activities might give rise to harassment, alarm
or distress. The tactics of those involved in these sort of protests
vary. They may include large numbers of people gathering outside
the home. They may include tactics such as videotaping children
arriving at and leaving the house. They may include chanting or
the display of posters and photographs. The clause gives the constable
a discretion which he must exercise on reasonable grounds to decide
whether or not the presence of those concerned is likely to cause
harassment, alarm or distress.
53. If he decides that those results are
likely to be caused, he may issue a direction to those involved.
The terms of the direction must be those necessary to prevent
the harassment etc continuing. The terms of the direction will
be precise. They may involve requirements as to how far away from
the premises protesters must move or as to who and how many may
remain. The protesters will be in no doubt as to what they must
do to comply with the direction. It is knowingly failing to comply
with the direction which constitutes the offence under this section,
not the fact of protesting outside the house or of causing harassment.
54. It follows that we are satisfied that
the terms of new clause 6 are fully compliant with the requirement
that any interference with article 10 or 11 rights must be "prescribed
8 March 2001