2. Memorandum from JUSTICE on the
Anti-Terrorism, Crime and Security Bill
1.1 JUSTICE is an independent all party
law reform and human rights organisation, which aims to improve
British justice through law reform and policy work, publications
and training. It is the British section of the International Commission
1.2 JUSTICE accepts, in principle, the justification
for special measures to safeguard against terrorist activity.
In particular, there may be a need to take certain measures in
response to the terrible events of 11 September. However, it is
also important that any response should safeguard the rule of
1.3 Any new measures to safeguard against
terrorist activity should also be considered within the framework
of the Human Rights Act 1998 (HRA). The HRA, and the European
Convention on Human Rights (ECHR) provide a valuable and workable
framework under which appropriate and targeted action can be taken
in response to the events of 11 September and their aftermath.
1.4 Within this human rights framework,
the measures in this Bill, which is designed as a response to
the post-11 September terrorist threat, must satisfy two key principles:
They must be necessary and proportionate
in the context of the existing powers available, and must, at
minimum, incorporate procedural safeguards, to ensure that the
powers they allow are not open to abuse; and
They must be carefully targeted at
the exceptional situation that justifies them so as to ensure
that the rights of innocent parties are protected to the fullest
The need to guard against terrorist action must
not, therefore, become the pretext for the erosion of rights in
matters unrelated to that threat.
1.5 As presently drafted, many elements
of this Bill fail to satisfy these principles. JUSTICE has a number
of broad concerns with the Bill:
Many of the measures are not subject
to sufficient safeguards.
Many of the measures are not confined
to the investigation of terrorist offences, but allow for significant
extension of police investigatory powers in relation to even minor
criminal offences. Such measures are not warranted in emergency
legislation designed to respond to a terrorist threat.
The majority of powers in this Bill
are intended to be permanent and are not subject to a time-limiting
sunset clause. This is unacceptable in emergency fast-track legislation.
Additional powers beyond those related to the current state of
emergency should be closely scrutinised through the usual parliamentary
procedures. Given the nature of this legislation, the Bill as
a whole should be subject to a sunset clause.
Several elements of the Bill provide
for over-extensive delegated powers, which diminish even further
the parliamentary scrutiny that can be given to the significant
new measures proposed.
1.6 The measures proposed in this Bill must
be seen in the context of the permanent anti-terrorist powers
in the Terrorism Act 2000, which came into force only last February.
This Act placed permanent anti-terrorist legislation on the statute
books for the first time and contained a comprehensive range of
powers exercisable on the basis of a very broad definition of
terrorism. In addition, the Regulation of Investigatory Powers
Act 2000 has created significant statutory powers of surveillance
and interception of communications. Any addition to these recent
and significant Acts in this present Bill needs to be closely
justified by the government.
Derogation from Article 5 ECHR
1.7 Article 15 ECHR, allows derogation from
certain of the rights in the ECHR "in time of war or other
emergency threatening the life of the nation". Although the
question of whether a state of emergency currently exists continues
to be debated, JUSTICE has taken the view that a court would be
likely to find, in the current circumstances, that a public emergency
does exist for the duration of any credible threat from the Al
1.8 Crucially, however, Article 15 requires
that, even where a public emergency can be demonstrated, a derogation
should only apply "to the extent strictly required by the
exigencies of the situation."
1.9 In JUSTICE's view, the current provisions
of this Bill allowing for detention without trial do not meet
this standard, as they are not sufficiently limited and precise,
or subject to sufficient safeguards.
1.10 JUSTICE would also point out that,
since this Bill legislates for a derogation from Article 5 of
the ECHR, the section 19 statement made in respect of the Bill
as introduced in the House of Commons cannot be justified. Although
derogation is certainly permitted under the scheme of the ECHR
and the HRA, the purpose of a section 19(1)(a) statement is to
certify compatibility with the substantive rights annexed to the
HRA, not to the scheme of the Act as a whole.
Legal Opinion on Derogation
1.11 JUSTICE has sought a legal Opinion
from David Anderson QC and Jemima Stratford of Brick Court chambers
in relation to the government's notice of derogation from Article
5 (the right to liberty) under Article 15 ECHR, for which legislative
provision is made in Part 4 of this Bill. This Opinion is attached.
JUSTICE supports the arguments it advances.
PART 1: TERRORIST
2.1 Part 1 of the Bill, along with Schedule
1, allows for confiscation orders to be made in respect of cash
related to terrorist activity. Clause 1(5) gives the Secretary
of State the power to modify the code of practice in relation
to the exercise of officers powers under Schedule 14 of the Terrorism
Act 2000, by order bringing Schedule 1 into force. Modifications
of the code made in this way may be any such as are considered
"necessary or expedient". It is not clear how significant
any amendments under clause 1(5) are likely to be.
2.2 Under para.7(1) of Schedule 14 to the
Terrorism Act, any draft code, or any revision of the code, must
be published as a draft, and consulted on. Under para.7(2), a
draft of the code must be laid before Parliament. It would appear
that, under clause 1(5), this process is circumvented. In JUSTICE's
view, any amendments to the code should be laid before Parliament
and subject to adequate scrutiny.
2.3 Under Schedule 1, powers for the seizure
of terrorist cash are exercisable whether or not any criminal
prosecution has been brought. It provides that an authorised officer
may seize any cash if he has reasonable grounds for suspecting
that it is terrorist cash (Part 2, para.2). The cash may be held
initially for 48 hours and then may be further detained on the
order of a magistrates' court, subject to renewal at three monthly
periods for a total maximum period of two years. The purpose of
detaining the cash must be to allow for further investigation
with a view to bringing charges; establishing that the cash belongs
to a proscribed organisation; or to hold the cash pending the
outcome of proceedings already in progress.
2.4 Under Part 3 of Schedule 1, cash which
is already detained may be permanently forfeited, on an application
by a police constable, a customs officer, or an immigration officer,
to a magistrates' court. In order to permanently forfeit the cash,
it need only be established to a civil standard of proof that
the cash is terrorist cash.
2.5 The effect of this is that cash may
be "detained" for a period of up to two years, whilst
an investigation is made into whether or not it belongs to a terrorist
organisation. No charges need be brought during that period. At
the end of the two year period, the cash may be permanently forfeited
in a civil action, where the safeguards of criminal procedure
do not apply. As JUSTICE has noted in relation to the Proceeds
of Crime Bill, such circumvention of traditional criminal procedural
safeguards is a cause for concern. In order to be justified, its
formulation and application will need to be carefully targeted
Account Monitoring Orders
2.6 Schedule 2 amends the Terrorism Act
to allow for account monitoring orders, lasting for up to 90 days,
to be made in the course of a terrorist investigation. Restraint
orders are also provided for in Schedule 2, Part 2. Such orders
are already provided for under the Terrorism Act 2000, but the
Bill would allow for them to be made at any point after an investigation
has begun, rather than only where charges are anticipated. Since
both these orders are significantly intrusive of privacy rights,
it is in JUSTICE's view vital that they be subject to adequate
safeguards. JUSTICE welcomes the fact that the orders are to be
subject to prior judicial authorisation.
2.7 However, the potential scope of account
monitoring orders under Schedule 2 is a cause for concern. Under
para.2(3)(b) of Schedule 6A as inserted by Schedule 2, the application
for an account monitoring order may specify information in relation
to "a particular description, or particular descriptions
of accounts". This would seem to allow for sweeping trawls
for information, on the basis of a terrorist investigation relating
to a single individual. These provisions have a potentially serious
impact on the Article 8 rights to respect for private life of
innocent third parties and, in JUSTICE's view, their scope should
be reconsidered, and para.2(3)(b) should be deleted.
PART 3: DISCLOSURE
3.1 Clause 17 of the Bill allows for very
extensive disclosure and exchange of information as between public
bodies and investigating or prosecuting authorities, both within
and outside the UK. Information may be disclosed for the purposes
of "any criminal investigation whatever" or any criminal
proceedings, and under clause 17(d), for "the purpose of
facilitating a determination of whether" an investigation
should be initiated. There is a presumption that information will
be exchanged, subject to a direction by the Secretary of State
to the contrary under clause 18, which may be made only in specified
circumstances. Clause 19 makes similar provision for disclosure
of information by the Commissioners for Customs and Excise, and
the Commissioners of Inland Revenue, and allows for an additional
power of disclosure "for the purpose of facilitating the
carrying out by any of the intelligence services of any of that
service's functions." (clause 19(2)(a)).
3.2 Disclosure may be made for these purposes
by any public authority, under a range of legislation listed in
Schedule 4 to the Bill. Under clause 17(3) additional legislation
can be added to the list in Schedule 4 by order. Public authority
is broadly defined, in the same way as under section 6 of the
Human Rights Act, to include quasi-public authorities as well
as "pure" public authorities such as government departments
and the police.
3.3 Disclosure under these powers may interfere
with privacy rights under Article 8(1) ECHR. The Court of Human
Rights has stressed that the protection of personal data is fundamental
to the right to respect for private life.
Powers of disclosure such as those extended by Part 3 therefore
need to be closely confined, and subject to safeguards, in order
to ensure that such interference can be justified under Article
8(2). Under Article 8(2), interference with privacy is permissible
only where it is sufficiently prescribed by law, is necessary
in a democratic society and proportionate to a legitimate aim.
3.4 It will also need to be ensured that
disclosure to law enforcement authorities complies with data protection
principles. Issues are raised in relation to the data protection
principle that data should not be used for a purpose different
than that for which it was collected.
In particular, it should be ensured that, in accordance with data
there are appropriate safeguards against abuse in relation to
the transfer of information to law enforcement authorities outside
the UK, particularly in jurisdictions where data protection laws
may not afford adequate protection.
3.5 In JUSTICE's view, there must be doubts
as to whether the scope of Part 3, as presently drafted, is sufficiently
clear or confined to meet the "prescribed by law" standard
in Article 8. This requirement reflects the principle of legal
certainty, which is fundamental to the Convention as a whole and
to its protection of the rule of law. Article 8.2 requires that
an individual should be able to ascertain, with a reasonable degree
of accuracy, how and in what circumstances a restriction on privacy
rights should apply to him or her.
3.6 The sweeping powers of disclosure in
Part 3, applicable in any criminal investigation, or in order
to initiate any criminal investigation, cannot, in JUSTICE's view,
be justified as a response to a terrorist threat. JUSTICE therefore
proposes that the powers under clauses 17 and 19 be confined to
the investigation and prosecution of terrorist offences, and to
cases where there are reasonable grounds to suspect that the person
on whom information is sought has been involved in the commission
of such an offence.
3.7 Disclosure under clause 17(2)(d) raises
particularly serious privacy concerns, since it would allow information
about an individual to be disclosed to investigating authorities
abroad at a stage when no investigation against that person has
yet begun. Clause 19(2)(a) would also allow for unduly wide powers
of disclosure. JUSTICE therefore proposes the deletion of clause
17(2)(d) and clause 19(2)(a).
PART 4: IMMIGRATION
4.1 Part 4 of the Bill gives the Home Secretary
broad discretion to certify a person as an international terrorist.
Once a person who is subject to immigration control is so certified,
the Act gives the power to detain them without charge and with
the chance of review of the detention at six-monthly intervals
(or as soon as practical thereafter), only by the Special Immigration
Appeals Commission (SIAC). The Bill specifically removes the power
of challenge by judicial review of habeas corpus of the detention,
although the right to apply for leave to the Court of Appeal against
4.2 These powers have necessitated a derogation
from Article 5 ECHR, which guarantees the right to liberty, subject
to specific exceptions. Derogation from certain provisions of
the Convention, including Article 5, is permissible under Article
15 ECHR, and under section 14 of the Human Rights Act, where there
is a war or other public emergency which threatens the life of
the nation, and to the extent that the derogation is strictly
required by the exigencies of the situation.
4.3 JUSTICE has obtained a legal Opinion
from David Anderson QC and Jemima Stratford, which has been distributed
to members of the House of Commons and House of Lords. The Opinion
concludes that whilst it may be possible to establish that a public
emergency exists, for the duration of a credible threat from the
Al Qaida organisation, the nature and extent of the powers under
Part 4 as currently drafted is too broad to be justified. The
measures proposed under Part 4 of the Bill therefore cannot be
justified, without further limitation, as a legitimate derogation
from Article 5 ECHR. In JUSTICE's view, in order to avoid successful
challenge in the courts, the powers of detention under Part 5
will need to be more closely confined in several respects.
4.4 Firstly, the powers of detention under
Part 4 are open to application against suspects with no links
whatsoever to the activities of Al Qaida or the events of 11 September.
Any derogation is permissible only as a response to those events.
As Part 4 is currently drafted, it would permit the detention
without trial of someone with no connection whatsoever with any
current emergency situation.
4.5 Such a wide application of the detention
powers under Part 4 would be in no way justified as a permissible
derogation from Article 5 (the right to liberty) of the European
Convention on Human Rights, since it would not be justified by
the exigencies of the situation. It would almost certainly be
found to be in violation of the UK's obligations under the Convention.
4.6 Another respect in which clause 21 is
unjustifiably wide is in its application to people who have "links
with" someone who is a member of an international terrorist
group (clause 21 (2)(c)). This ill-defined provision has obviously
worrying implications. It would seem to allow, on its face, for
detention without trial of someone whose cousin, neighbour or
colleague is, or is suspected to be, a member of a terrorist group.
JUSTICE welcomes the Home Secretary's undertaking to reconsider
the drafting of this provision with a view to confining and clarifying
its scope. However, JUSTICE takes the view that the clause is
unnecessary and should be deleted. Under clause 21(2)(c) it is
already possible to detain anyone "concerned in" acts
of international terrorism. This would seem sufficiently broad
to allow for the detention of someone with a close and substantial
link to terrorist activity.
4.7 JUSTICE also takes the view, which is
supported by the Opinion of David Anderson QC and Jemima Stratford,
that detention under Part 4 for a period of 6 months without trial
or review is unduly long and disproportionate. On the current
Bill, review of detention need only occur "as soon as practicable"
after 6 months. In the case of Aksoy v Turkey, the European
Court of Human Rights found, despite the existence of a state
of emergency, that detention without review by the courts for
a period of 14 days was "exceptionally long" and unjustified.
Although detention under Part 4 would be subject to safeguards
which were not available to the applicant in Aksoy, nevertheless,
six months' detention without review remains unnecessarily and
oppressively long. Given the exceptional and draconian nature
of the power under Part 4, JUSTICE proposes that review of detention
should be required within a three-month period.
4.8 Further amendments that have either
been made by the government, or which the government has undertaken
to consider, in the course of the House of Commons debates, go
some way to mitigating the impact of Part 4. JUSTICE welcomes
the insertion of a requirement of "reasonableness" for
the certification of an individual as an international terrorist.
However, the change in the powers of SIAC to review this decision
may negate this. In the first draft of the Bill, SIAC could cancel
the certificate if it `does not agree' with the Home Secretary's
belief or suspicion. This has been changed so that SIAC now must
cancel the certificate if it `considers there are no reasonable
grounds for a belief or suspicion of the kind referred to in section
21(1) (a) or (b),' This appears to put a higher burden of proof
on the applicant to show how the Home Secretary's assessment was
4.9 JUSTICE also welcomes the government's
undertaking to reconsider the drafting of clause 27(9). This clause
states that following the cancellation of a clause 21 certificate
by SIAC the Secretary of State may immediately issue another certificate,
either on grounds of change of circumstance "or otherwise".
This clause should be amended to confine the re-issue of a certificate
to circumstances where cancellation has been on a technicality,
or where there has been a change of circumstances.
4.10 JUSTICE also favours the deletion of
clause 29(2), the effect of which is to exclude judicial review
and habeas corpus where someone is detained under Part 4. Clause
30 further restricts review by the courts, since it excludes challenges
under section 7 of the Human Rights Act, and consideration of
derogation issues, from all courts and tribunals except SIAC.
4.11 The availability of an appeal to SIAC
will provide some safeguards for detainees, and is likely to mean
that recourse to judicial review would be rare. However, it is
particularly important, given the draconian nature of the powers
under Part 4, that recourse to the courts should be available
to the greatest extent possible. It is of the greatest importance
as a point of principle that judicial review and challenge against
human rights standards should not be restricted where exceptional
state powers are exercised to detain without trial. Equally, where
the exceptional step of derogation is taken under Article 15 ECHR,
the power of the courts to scrutinise the derogation should not
be restricted. Clause 29(2) and 30(2) and 30(3)(a) should therefore
4.12 The restriction of judicial oversight
is further evident in clause 29(3), which appears to exclude from
review, either in SIAC or in any court, the Secretary of State's
conclusion that a person cannot be removed from the United Kingdom
for Article 3 reasons or for practical considerations. This provision
is clearly open to abuse, in cases where it might be convenient
for the Secretary of State to detain a suspect indefinitely rather
than allow them to be returned to their home country. The complete
exclusion of this executive decision from review, even by SIAC,
cannot in JUSTICE's view be justified.
4.13 Under clause 33(1), the Secretary of
State has the power to decide when an asylum application should
not be considered at all and to sign a certificate to that effect.
This can be done when he alleges, inter alia, that an asylum seeker
has committed acts contrary to the purposes and principles of
the United Nations, which includes terrorist acts, and is therefore
excluded from refugee status under Article 1(F) or 33(2) of the
UN Convention on the Status of Refugees, 1951. It is not clear
what evidence the Secretary of State requires to make this allegation,
or what information, if any, he must state on the certificate.
On appeal from the issue of a certificate, SIAC has to decide
first on the validity of this statement; if it agrees, the asylum
application cannot be considered.
4.14 Clause 33 explicitly states it applies
only to appeals heard by SIAC. Clause 34 is not confined in this
way, and could be construed as a free-standing clause applying
to all asylum applications. It states that Article 1(F) excluding
people from refugee status takes precedence over consideration
of any danger they might face. This Article covers wider situations
than terrorism, as it includes people who are alleged to have
committed a serious non-political crime outside the country of
refuge prior to their admission to that country as a refugee.
People may have been convicted of crimes of which they are innocent,
after unfair trials, they may have been charged with crimes for
a political motive, and the definition of `serious' crime could
be contentious and different in different countries.
4.15 This clause is contrary to all established
practice in dealing with asylum applications and to guidance in
the UN High Commission for Refugees' Handbook, where it
is clear that the case for refugee status should be decided first,
and then whether there are grounds for exclusion.
The Handbook is not international law but it is persuasive
and is referred to in the instructions to asylum caseworkers at
the Home Office. The government should be asked to explain its
intentions with regard to clause 34 and to confirm that it is
intended only to apply to asylum applications made by alleged
international terrorists, not to all asylum applications.
4.16 JUSTICE considers clauses 33 and 34
to be unacceptable, since they undermine the right to have a claim
for asylum fully considered under the 1951 Convention. These provisions
are also unnecessary, since it is already permissible, under Article
1(F) and 33(2) of the 1951 Convention, for a claim for asylum
to be refused where there are reasonable grounds to suspect that
an asylum seeker may be a threat to national security.
Retention of fingerprints
4.17 Clause 35 allows for the blanket and
indefinite retention of fingerprints taken in immigration and
asylum cases under section 142 of the Asylum and Immigration Act.
All asylum seekers, including children, are fingerprinted at the
time of application. Clause 35 applies both in relation to data
already held and that taken in the future. This would allow fingerprints
to be retained even following the grant of indefinite leave to
4.18 JUSTICE is concerned that clause 35
allows for the creation of a database of information in respect
of people lawfully resident in this country and with no connection
to terrorism or to any criminal activity. The creation and retention
of such a body of data for use in law enforcement investigations
can no more be justified in regard to asylum seekers than it would
be in respect of the general public.
4.19 More information is needed as to the
purpose for which such records could be retained and the circumstances
in which fingerprint data will be shared, in particular with law
enforcement agencies. It is not clear whether fingerprint records
are to be retained for use only in terrorist cases for the purpose
of safeguarding national security, or whether it can be used more
widely. In JUSTICE's view, the grounds on which fingerprint data
can be retained and disclosed under the Bill need to be more closely
4.20 If fingerprints are to be retained
for lengthy periods of time, this retention should be made subject
to adequate safeguards, in accordance with data protection principles.
This is particularly so as it is likely that the information will
be used in criminal investigations. In the absence of such safeguards,
it is likely that the right to respect for private life under
Article 8 ECHR will be unjustifiably interfered with.
PART 5: RACE
5.1 JUSTICE welcomes the proposal in Part
5 to extend racially aggravated offences to cover religiously
aggravated offences. JUSTICE also welcomes the proposal in Part
5 to extend the crime of incitement to racial hatred to cover
religious hatred. In its recent concluding observations on the
compliance of the United Kingdom with the International Covenant
on Civil and Political Rights (ICCPR) the United Nations Human
Rights Committee recommended that:
"The State Party should extend
its criminal legislation to cover offences motivated by religious
hatred, and should take other steps to ensure that all persons
are protected from discrimination on account of their religious
5.2 "Religious hatred" is defined
as hatred against a group of persons defined by reference to religious
belief or lack of religious belief. In the context of civil law
JUSTICE believes that the use of the term "religion and belief"
best categorises the field we seek to address. This deliberately
echoes the phrase used in Article 9 which has been defined by
the European Court of Human Rights to encompass a very wide range
of religions and beliefs including the right not to believe. The
new EC Employment Framework Directive that will have to be implemented
by December 2003 also uses the term "religion and belief".
It is both more appropriate and easier for the Courts to define
if a common phrase is used in all aspects of the law relating
to religion and belief.
5.3 The term religious hatred may not be
open to such a wide interpretation, as within the UK the definition
of "religion" has been more narrowly interpreted, mainly
in the context of charity law. It has been used to exclude Scientologists
and some other new religious movements. We would propose that
the provision be amended to bring it into line both with Article
9 and the new obligations under the EC Employment Framework Directive.
5.4 We support the retention of the Attorney
General's fiat for any such prosecutions as a way of retaining
a balance between the right of freedom of religion and belief
and ensuring the continued protection of freedom of expression
and legitimate democratic debate. Under the Human Rights Act,
the Attorney General will be subject to Article 10 ECHR (freedom
of expression) as well as Article 9 ECHR (freedom of religion)
in the operation of his duties. Under section 12 of the Human
Rights Act he will need to give particular consideration to freedom
5.5 A consortium of Muslim Organisations
have expressed concern that a new offence of incitement to religious
hatred will result in heavier policing and investigation of the
whole Muslim community. They have proposed safeguards to any such
that the legislation should include
a note of guidance setting out the criteria for the Attorney General's
use of his discretion,
that his discretion should be subject
to scrutiny by Parliament via an annual report to be presented
to the Home Affairs Select Committee, and that this report should
include racial/religious breakdown of the figures together with
reasons for proceeding/not proceeding with a prosecution,
JUSTICE supports these proposals.
5.6 An additional safeguard would be to
require that information and statistics be published annually
on prosecutions under Part 5. The Criminal Justice Act 1991, section
95(1) already makes provision for the Secretary of State to publish
annually such material:
"as he considers expedient for the purpose
of . . . facilitating the performance by such persons of their
duty to avoid discrimination against any persons on the ground
of race or sex or any other improper ground."
5.7 JUSTICE would propose amending this
section by extending its application to religious discrimination
adding the word `religion' to race and sex. Alternatively, the
Bill could include a more specific duty to provide an annual breakdown
of the statistics of prosecutions for incitement to religious
or racial hatred by reference to the racial and religious group
of both of the parties involved.
5.8 The creation of an offence of incitement
to religious hatred highlights the absence of religious discrimination
legislation. It is important that the Government should act soon
to implement comprehensive legislation to outlaw religious discrimination.
This should not be done by secondary legislation to implement
the Employment Framework Directive but by primary legislation.
5.9 If a crime of incitement to religious
hatred is introduced it is surely the right moment to propose
the abolition of the common law offence of blasphemy.
This offence only applies to the Christian religion, and such
inequality cannot be justified. In 1985 the Law Commission proposed
that it should be abolished and in 1989 the Home Office undertook
that there would be no more state prosecutions for blasphemy.
JUSTICE welcomes the Home Secretary's indication that he is minded
to abolish the offence of blasphemy. The government should be
asked to provide more detail of its intentions in this regard.
PART 10: POLICE
6.1 JUSTICE has serious concerns in relation
to the powers in Part 10 of the Act. Powers to search, fingerprint
and photograph suspects without their consent interfere with rights
to privacy and physical integrity under Article 8 ECHR, and therefore
must be justified as necessary in a democratic society and proportionate
to a legitimate aim under Article 8.2.
6.2 It is of particular concern that these
measures are being introduced in fast-track legislation, since
the complex issues raised by these provisions need thorough and
detailed consideration by Parliament. In JUSTICE's view, many
of the powers in Part 10 are too broadly framed, and cannot be
justified as a response to a terrorist threat.
6.3 The proposals in Part 10 must be viewed
in the context of the Terrorism Act 2000, which already contains
the power to take reasonable steps to photograph or identify someone
arrested on suspicion of terrorist offences (Schedule 8, para.2).
This power, viewed in the light of the broad power of arrest without
warrant under section 41 of the Terrorism Act, means that any
additional powers have to be very carefully scrutinised.
6.4 At present, section 54 of PACE empowers
the police to search people who are detained in a police station
to ascertain what property the person has on them, and may search
to the extent necessary for that purpose. The police may also
search at any time a person in police detention to find out whether
they have anything which could cause physical injury, damage,
interfere with evidence or assist escape.
6.5 Clause 89 would insert a new section
54A permitting a search or examination of a person in police detention
to ascertain whether s/he has any mark that would link them with
an offence or to facilitate identification of them. Force could
be used if necessary, including by a civilian detention officer.
6.6 JUSTICE has several concerns with this
Where authorisation is given on the
grounds that it may link a person with a crime, the power is not
limited to the offence for which the person has been arrested
or of which they are suspected, and is not limited to serious
(or terrorist) offences.
The power can be used simply to establish
identity if the person refuses to disclose it, or where there
are reasonable grounds for suspecting that the person is not who
they claim to be, again irrespective of the offence concerned.
The power applies to a person "detained
in a police station" as opposed to a person in "police
detention". The latter is used in PACE to include only those
arrested for an offence, so this new power would seem to apply
whether or not a person is arrested for an offence e.g. a person
arrested for breach of the peace, or under the power of a warrant.
6.7 In JUSTICE's view, these powers, which
are seriously intrusive of Article 8 rights to privacy and physical
integrity, can only be justified in the context of an exceptional
terrorist threat, and should be confined to circumstances where
a person has been arrested for or is suspected of a terrorist
6.8 Currently, fingerprints can be taken
(without consent of the person) from a person detained at a police
station who has not been charged with an offence if a superintendent
is satisfied that fingerprints will tend to confirm or disprove
involvement in an offence of which they are suspected. When s78(2)
Criminal Justice and Police Act 2001 comes into force, authorisation
will be downgraded to inspector.
6.9 The new provisions will additionally
allow fingerprints to be taken if the officer is satisfied that
it will facilitate the ascertainment of his/her identity. Authorisation
can only be given if the person has refused to give their identity
or there are reasonable grounds for suspecting they are not who
they claim to be. Under existing powers, the police will be able
to retain the fingerprints indefinitely irrespective of whether
the person is proceeded against or convicted of an offence.
6.10 This proposal raises similar concerns
to those in relation to search powers. Taking of fingerprints,
without consent, to establish identity, interferes with Article
8 rights to privacy and physical integrity, and this interference
is unlikely to be justified in the broad range of circumstances
in which the power can be exercised under clause 89. In JUSTICE's
view, such wide-ranging measures cannot be justified by the terrorist
threat, and should not be introduced in fast-track legislation,
without full consultation and debate.
6.11 Currently the taking of photographs
is not covered by statutory powers, but by PACE Code D. This provides
that the police can take a photograph of an arrested person at
a police station if the person consents, or without consent in
a limited number of circumstances, including where the case involved
6.12 The new section 64A would give a statutory
basis for the taking of photographs for the first time, and would
enable the police to require a person to remove head or face coverings
and, if they refused, to enable police to themselves remove it.
6.13 There is no requirement for authorisation
from a senior officer and no need to link the taking of photographs
to investigative needs. It appears that, for the first time, the
police will be able to use force (although there is some argument
that it only authorises them to use it to remove a face covering
as opposed to forcing the person to pose for the photograph).
The police are permitted to retain the photographs irrespective
of whether the person is prosecuted or convicted.
6.14 Again, in JUSTICE's view, these powers
allow interference with Article 8 rights, in a range of circumstances
which cannot be justified by reference to terrorism, and is likely
to be disproportionate.
Power to Require Removal of Facial Coverings
6.15 The additional powers in Part 10 allowing
for the removal of facial coverings are difficult to justify in
the context of existing powers, or as a necessary response to
a terrorist threat. There is already provision under the Criminal
Justice and Public Order Act 1994, as amended by the Crime
and Disorder Act 1998 for police to demand the removal of
facial coverings in certain circumstances. Under the existing
law, a superintendant may make an order allowing police to require
the removal of headgear where he considers it necessary to prevent
serious violence in the area. The authorisation lasts for 24 hours,
extendable for 6 hour periods.
6.16 This Bill extends the power to make
an order for removal of facial coverings in a given area. It allows
such orders to be made by an inspector rather than a superintendent
and allows an order to be made to prevent or control the commission
of any offence, rather than, as at present, only to prevent serious
6.17 Powers to allow facial coverings to
be removed to prevent any crime raises issues of freedom of religion
and freedom of expression (Articles 9 and 10 ECHR) and, potentially,
freedom of assembly (Article 11 ECHR). The powers are also clearly
open to application in a discriminatory way, contrary to Article
14 ECHR. Their extension in this Bill raises serious questions
as to proportionality. At a minimum, in JUSTICE's view, these
provisions of the Bill should be amended so as make the powers
exercisable only to prevent the commission of a terrorist offence.
PART 11: RETENTION
7.1 Part I Chapter II of the Regulation
of Investigatory Powers Act 2000 (RIPA) permits the police (and
some other public authorities) to require postal and telecommunications
operators (including internet service providers) to provide them
with communications data. This requires only internal authorisation,
which can be given, inter alia, for preventing or detecting
crime (not limited to serious crime) or preventing disorder.
7.2 Communications data includes subscriber's
details, the names, addresses and numbers of those contacted,
web sites visited and, in the case of mobile phones, the user's
geographical location. Such data is increasingly valuable to criminal
investigations and its disclosure more intrusive to individuals;
the assumption that access to such data is less intrusive is no
longer necessarily true.
7.3 Clause 101 of this Bill provides for
a voluntary code on retention of such data by communications service
providers (such as telephone and internet companies), in order
to facilitate access to such data by the police and other law
enforcement authorities, on grounds of national security or the
prevention of crime.
By clause 102, if the Secretary of State believes that the code
is not working, he or she can make it mandatory by Order (subject
to renewal every two years).
7.4 JUSTICE is concerned that this proposal
would allow for the creation of a substantial database of information,
the potential uses of which would go far beyond response to a
7.5 It must be ensured that the retention
of data under the proposed code is in accordance with data protection
principles, and with the requirement that an interference with
Article 8 ECHR privacy rights must be necessary and proportionate.
JUSTICE would therefore propose that the Bill make specific provision
for consultation with the Information Commissioner in the drafting
of a code under clause 101, or a mandatory direction under clause
102. In addition, any new code should be required to be laid before
Parliament, so that it will be subject to sufficient scrutiny.
PART 13: THIRD
8.1 Clauses 109 and 110 allow for the implementation,
by means of secondary legislation, obligations of the UK created
or arising by or under the Justice and Home Affairs pillar. Title
VI of the Treaty on European Union (as amended by the Treaties
of Amsterdam and Nice) and the Schengen acquis (which makes provision
for cross-border policing, including the Schengen Information
System, Europe's largest database). Secondary legislation made
under this power will be subject to positive resolution by both
Houses of Parliament. The power will apply even where the measures
implemented are contrary to existing primary legislation: Ministers
will be able to repeal existing primary legislation by means of
8.2 The new power would enable Ministers
to make regulations with a significant impact on the criminal
justice system. This is in a context where, under the Tampere
agenda, radical criminal justice measures including:
the introduction of new police powers
for joint cross-border investigation and surveillance;
new provisions for pan-European information
sharing amongst police and security forces;
mutual recognition of pre-trial decisions,
meaning that domestic courts would be bound by judicial decisions
in other member states relating to matters such as the seizure
of assets and evidence;
the harmonisation of criminal laws
in areas such as drug trafficking, hooliganism and cyber crime;
the creation of EUROJUST, a unit
of national prosecutors, magistrates and police officers to work
8.3 As Clause 109 stands, it could be used
to implement the proposed European Framework Decision on the EU
arrest warrant. This measure has been speeded up since the events
of September 11th and will abolish many of the safeguards contained
in existing domestic extradition legislation. A leading QC, specialising
in extradition and criminal justice issues, has advised JUSTICE
that: "It would be a worrying (and unprecedented) development
for extradition changes to be made in this way, particularly given
the countries that are or may in due course be covered by the
8.4 JUSTICE recognises that the powers created
under clause 109 are limited to implementing decisions that the
UK agrees at the EU level in accordance with its Treaty agreements.
It is also acknowledged that, as the explanatory notes to the
Bill point out, similar powers exist in relation to the implementation
of obligations arising under the Treaties establishing the European
Communities, under section 2(2) of the European Communities Act
1972. However, there are crucial differences between the types
of obligation covered by the 1972 Act and those dealt with under
the Justice and Home Affairs Title VI pillar which is the subject
of this proposed new clause 109.
8.5 First, the subject matter of the obligations
is different. The existing powers to implement Community law through
secondary legislation have related predominantly to economic and
regulatory issues, whereas the proposed powers affect the most
sensitive areas of policing and criminal justice. Under the European
Communities Act, secondary legislation can only be used to create
offences with a maximum of two years' criminal sentence. However,
under clause 109, there would be no limit on the length of sentence
that could be imposed through secondary legislation.
8.6 Secondly, the agreements being implemented
are created in different ways at the EU level and are subject
to different parliamentary scrutiny. Despite changes in the Amsterdam
Treaty, there remains a real democratic deficit in decision-making
under the Justice and Home Affairs pillar, which is not present
in other parts of the EU. The decisions, precisely because of
their highly sensitive nature, are made inter-governmentally.
The European Parliament is consulted but has no power of joint
decision making as it does with Community law. This therefore
makes proper scrutiny at the domestic level crucial. This is particularly
so as the way in which such measures are implemented into the
UK criminal justice laws will necessarily raise fundamental questions
as to compatibility with the fair trial rights of Article 6 of
the European Convention on Human Rights. In this context it is
important to remember that the principle of fair trial under Article
6 is safeguarded in different ways and at different points under
the different criminal justice systems of member states. This
means that each country must provide its own scrutiny as to its
implementation of Framework Directives in the policing and criminal
8.7 It is in JUSTICE's view unacceptable
that such significant changes should be introduced by secondary
legislation, even in light of the positive resolution procedure
specified under clause 110 (7). It is vital that the implementation
of Justice and Home Affairs measures should be subject to the
highest level of parliamentary scrutiny and debate, and should
be introduced by way of primary legislation. It is particularly
problematic that a provision of such constitutional importance
as section 109 is being included in emergency legislation that
is being fast-tracked through Parliament. JUSTICE favours the
deletion of clauses 109 and 110 from the Bill.
Information about Acts of Terrorism
8.8 Clause 115 amends the Terrorism Act
2000, making the failure to disclose information about acts of
terrorism a criminal offence. In JUSTICE's view, this provision
is problematic because of the very broad definition of terrorism
in the Terrorism Act, on which the offence is based. Given of
the wide and uncertain scope of the definition, it will be very
difficult for individuals to ascertain when they will be criminally
liable under this provision. In JUSTICE's view, this offence may
not be sufficiently certain to satisfy the principle of legal
certainty, which is fundamental to the rule of law, and to the
European Convention on Human Rights. Clause 115 should therefore
be deleted from the Bill.
1 Defined as "authorised officers" by Schedule
1, Part 6 para. 19(1). Back
MS v Sweden 28 EHRR 313, Leander v Sweden 9 EHRR
433, Hilton v UK 57 DR 108. Back
The second principle of data protection under the Data Protection
The 8th principle of Data Protection in the Data Protection Act. Back
Silver v UK, 5 EHRR 347; Sunday Times v UK 2 EHRR
245: An individual must be able to "foresee, to a degree
that is reasonable in the circumstances, the consequences which
a given action may entail." Back
para 156: `in applying this exclusion clause, it is also necessary
to strike a balance between the nature of the offence presumed
to have been committed by the applicant and the degree of persecution
para. 14. Back
The last conviction for blasphemy that resulted in a prison sentence
was in 1921. Since then there have been two private prosecutions,
the 1976 private prosecution of Gay News by Mary Whitehouse and
the Salman Rushdie affair. Back
Murray v UK 1995) 19 EHRR 193, McVeigh, O'Neill and Evans v UK
1981 EHRR 71. Back
Operators currently differ markedly in relation to the length
of time they store such data. According to press reports (Guardian,
15 November 2001), BT telephones keep it for 7 years, Claranet
ISP keep it for only 2 weeks. Back