|In this report we set out the conclusions of our further consideration of the Criminal Justice Bill, taking account of the Government's response to points made in earlier reports on the Bill and of the large number of amendments made to the Bill in Committee and on Report in the House of Commons. We conclude that there are risks of violations of human rights in relation to the following matters:
a) admissibility of evidence of bad character, including previous convictions;
b) the relaxation of recording requirements in respect of the property of people detained at police stations;
c) the relaxation of the rule against double jeopardy;
d) extended powers to take and retain fingerprints and non-intimate samples;
e) delegation of functions of the Secretary of State in relation to the Criminal Records Bureau;
f) new presumptions against granting bail in certain cases;
g) minimum sentences for certain firearms offences;
h) withholding evidence from terrorist suspects and their advisers when applying for extended detention without charge under the Terrorism Act 2000 as it would be amended by the Bill.
In relation to evidence of bad character:
We consider that leaving it to judicial discretion to safeguard a fair hearing by excluding, in suitable cases, evidence of general disposition compromises the right to a fair hearing. (Paragraph 14 below).
In relation to the discretion to exclude evidence of bad character under clause 93(3):
We consider that the result would be a threat to the fairness of the trial, giving rise to a risk of violating ECHR Article 6.1. (Paragraph 20 below).
In relation to the admissibility of previous convictions:
We conclude that there is a significant risk of unfairness resulting from provisions which, in our view, are likely to indicate clearly to courts that previous convictions should be admitted in evidence even if they are irrelevant. (Paragraph 21 below).
In relation to safeguards for property and related rights if recording requirements in police stations are relaxed:
We remain of the view that clause 6 of the Bill should be either omitted or amended to ensure that there is adequate legally enforceable protection for rights under Article 1 of Protocol 1 to the ECHR, particularly as it has become increasingly clear to us that the information contained in a detainee's custody record may often effectively determine the outcome of a criminal trial, engaging the right to a fair hearing under ECHR Article 6 as well as the right to the peaceful enjoyment of possessions under Article 1 of Protocol 1 to the ECHR. At the very least, there should be a statutory requirement to keep all property taken from a detainee in a sealed bag, and to keep a list of anything left in the possession of the detainee if the detainee or his or her legal representative requests that it be done. (Paragraph 27 below).
In relation to the relaxation of the rule against double jeopardy:
We consider that the Bill as currently drafted gives rise to a significant threat to the right under ICCPR Article 14.7, because a case could be reopened on the basis of evidence which is not genuinely new. (Paragraph 37 below).
In relation to extended powers to take and retain fingerprints and non-intimate samples:
There is a risk that the databases might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative 'fishing expeditions' in circumstances where the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in relation to personal data held by public authorities. (Paragraph 55 below).
In relation to delegation of functions relating to the Criminal Records Bureau:
The Government's belief that a PPP provider exercising delegated functions would always be a public authority for the purposes of the Human Rights Act 1998 needs to be kept under review in the light of developing case-law on the meaning of 'public authority' in section 6 of that Act.
Having regard to the factors noted in paragraphs 57 to 63 below, we are not convinced that the delegation provisions in Schedule 29 of the Bill provide adequate safeguards for rights in respect of personal information. (Paragraph 64 below).
In relation to a new presumption against granting bail in certain cases:
We consider that the provisions give rise to an unacceptable risk of violating the right to liberty under ECHR Article 5.1, and other Convention rights, including the right to respect for private life under ECHR Article 8. (Paragraph 72 below).
In relation to the proposed minimum sentence for firearms offences:
We consider that doubts about the ability of courts to take account of a defendant's personal circumstances when sentencing mean that there is a risk of a violation of ECHR Articles 3 and 6.1 in individual cases. (Paragraph 77 below).
In relation to the proposed arrangements for setting minimum terms of imprisonment to be served by those convicted of murder:
We do not consider that these provisions give rise to a significant risk of incompatibility with Convention rights. (Paragraph 97 below).
In relation to the proposed extension of the maximum period for which terrorist suspects could be held without charge under the Terrorism Act 2000:
We consider that the provisions for material advanced by the police as justifying extended detention to be withheld from the suspect and his or her legal advisers in some circumstances makes it possible that, in individual cases, the detention regime might threaten to violate ECHR Article 5.1. (Paragraph 106 below).