6. Memorandum from Police Federation of England & Wales
We anticipate that there is merit in the Joint Committee reporting to each House on the human rights implications of this Bill.
In the time available, we have identified that there may well be human rights implications in relation to the following:
Under this clause (use of investigatory powers by or on behalf of the Commission) the Secretary of State may by order make provision to enable the IPCC to use 'directed and intrusive surveillance' and 'covert human intelligence sources'.
The clause suggests that these orders can be utilised to enable the IPCC to carry out its functions. Those functions relate not only to criminal but also to discipline conduct.
The Regulation of Investigatory Powers Act (recognised to provide the authority necessary under the Human Rights Convention) enables use of surveillance etc in the investigation of serious crime.
We are concerned therefore that the power vested in the Secretary of State, if used to investigate discipline only matters may give rise not only to a breach of RIPA but also human rights legislation.
Under this clause the Chief Officer is given power to designate police authority employees under his/her direction and control as Community Support Officers, Investigating Officers, Detention Officers or Escort Officers. That designation identifies the powers associated with it. The potential power is set out in schedule 4. Schedule 4 part 1 paragraph 2 provides that a Community Support Officer has the power to require a person they have reason to believe has committed a relevant offence (that is a fixed penalty offence or an offence where they have caused injury, alarm or distress or loss of or any damage to another person's property) in the relevant police area to give that CSO their name and address.
Where there is a refusal, or there are reasonable grounds to suspect the wrong address or name has been given, the CSO has the power to require the person to wait with him for 30 minutes for the arrival of a constable (or elect to go to the police station.)
Any failure to comply with that requirement is a criminal offence and the CSO may be provided with the power to use reasonable force to prevent the suspect from making off.
We consider there may be implications under both Article 8 (the right to respect for private and family life) and Article 5.
Insofar as Article 5 is concerned, we question whether the interference is justified by only reason that, subjectively, the CSO 'has reason to believe' that another has committed a relevant offence in requiring disclosure of the name and address, as opposed to a reasonable belief.
Insofar as Article 5 is concerned we consider that the imposition of a requirement by a CSO for a person to wait with him is a deprivation of liberty for the purposes of Article 5.
Consideration should be given as to the extent to which the purpose of this falls within one of the sub-paragraphs of Article 5(1) of the ECHR. The apparent purpose is that the detention is to await the arrival of the constable such that if the person is detained for 30 minutes and the constable has not arrived then on the face of it the person is free to leave.
There is, further, no provision to secure compliance with other parts of Article 5 and in particular notifying the detainee as to the reason for the arrest.
Similar issues arise concerning the power under Schedule 4 paragraph 3 for a CSO to require somebody to give their name and address where there is reason to believe they are acting in an anti-social manner.
Under this a Chief Officer may establish a Community Safety Accreditation Scheme within the police area for the purposes of contributing community safety and security in corporation with the Police Force to combat crime and disorder, public nuisance and other forms of anti-social behaviour.
Where an individual is conferred then powers can be designated which include similar powers to those which may be provided to a CSO under paragraph 2 of schedule 4. The same issues as identified above therefore arise in relation to those accredited under a Community Safety Accreditation Scheme.
In addition, Article 5 of the ECHR confirms anyone deprived of their liberty 'shall be entitled to take proceedings by which the lawfulness of his detentions shall be decided speedily by the Courts, and where they have been a victim of arrest and/or detention in contravention of this Article shall have an enforceable right to compensation'.
If (and this is not without doubt) those accredited under a Community Safety Accreditation Scheme comprise a 'public authority' for the purposes of the Human Rights Act 1998 then we are concerned as to the extent to which any employer (vicariously liable for the act of the accredited employee) will have suitable insurance in place to ensure that any claims that might arise from the abuse of these powers will be met.
Mr C E Elliott
8 February 2002