Joint Committee On Human Rights Fourth Report

Bills drawn to the special attention of both Houses

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Government Bills

1 Serious Organised Crime and Police Bill

Date introduced to the House of Commons Date introduced to the House of Lords Current Bill Number Previous Reports

24 November 2004 House of Commons 5 None

Background

1.1 This is a Government Bill, introduced in the House of Commons on 24 November 2004. The former Secretary of State for the Home Department, the Rt Hon David Blunkett MP, has made a statement of compatibility with Convention rights under s. 19(1)(a) of the Human Rights Act 1998. Explanatory Notes to the Bill have been published.[4] They set out the Government's view of the Bill's compatibility with the ECHR at paras 450-480. The Bill received its Second Reading on 7 December 2004 and is due to complete its committee stage by 20 January 2005.

1.2 Here we report on our initial consideration of the Bill and identify the most important human rights issues on which we have written to the Government.[5] We have been assisted in our initial consideration of the Bill by the parliamentary briefings prepared by Liberty, JUSTICE and the Law Society,[6] as well as by a specific submission to us from the British Humanist Association on the provisions contained in clause 119 and Schedule 10 on incitement to religious hatred.[7] We will publish a full report setting out the results of our consideration of the Bill in light of the Government's response.

SOCA and the gathering, storage, use and disclosure of information (clauses 3, 31-34)

THE EFFECT OF THE BILL

1.3 Clauses 31-34 provide for the use of information by the proposed Serious Organised Crime Agency (SOCA) and for the disclosure of information both by and to SOCA.

1.4 Clause 31 provides that information obtained by SOCA in connection with the exercise of any of its functions may be used by SOCA in connection with the exercise of any of its other functions. For this purpose, "functions" is defined to include powers and duties.[8]

1.5 SOCA's functions are set out in clauses 2 and 3 and its general powers in clause 5.

1.6 Clause 2 provides that SOCA has the functions of

(a) preventing and detecting serious organised crime, and

(b) contributing to the reduction of such crime in other ways and to the mitigation of its consequences.[9]

1.7 Clause 3 sets out an additional function of SOCA as to "information relating to crime". It provides that SOCA has the function of gathering, storing, analysing and disseminating information relevant to

(a) the prevention, detection, investigation or prosecution of offences, or

(b) the reduction of crime in other ways or the mitigation of its consequences.

1.8 SOCA's information function is not confined to serious organised crime, but extends to crime in general. It is deliberately designed to enable SOCA to provide information to police forces and other law enforcement agencies.[10]

1.9 Clause 3 also expressly empowers SOCA to disseminate such "information relating to crime" to police forces within the UK, special police forces, law enforcement agencies (defined to include any government department[11]), and such other persons as SOCA considers appropriate in connection with the prevention, detection, investigation or prosecution of offences, or the reduction of crime in other ways or the mitigation of its consequences.[12]

1.10 Clause 5 confers general powers on SOCA, including the power, at the request of any law enforcement agency (including a government department), to act in support of any activities of that agency,[13] and to carry on activities in relation to lesser crime if they are carried on for the purposes of any of the agency's functions under clause 2 or 3.[14]

1.11 Clause 32 governs the disclosure of information by SOCA. It provides that information obtained by SOCA in connection with the exercise of any of its functions may be disclosed by it if the disclosure is for any of a list of permitted purposes.[15] The permitted purposes include the prevention, detection, investigation or prosecution of criminal offences; the prevention, detection or investigation of conduct for which penalties other than criminal penalties are provided by law; and the exercise of any of SOCA's functions under clauses 2, 3 or 5.[16] The Secretary of State is empowered to add to the list of permitted purposes by designating by order any function which appears to him to be a function of a public nature.[17]

1.12 Clause 32(3) provides that such disclosures of information by SOCA for permitted purposes do not breach any obligation of confidence owed by the person making the disclosure, or any other restriction on the disclosure of information, however imposed. Disclosures which contravene the Data Protection Act 1998, or which are prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000, however, are not permitted.[18] The Government also accepts, as it must, that disclosures must be compatible with the Human Rights Act 1998.[19]

1.13 Disclosures of information to SOCA are governed by clause 33, which provides that any person may disclose information to SOCA if the disclosure is made for the purposes of the exercise by SOCA of any of its functions. Again, any obligation of confidence or other restriction on the disclosure of information is disapplied, except for those in the Data Protection Act and Part 1 of the Regulation of Investigatory Powers Act.

THE HUMAN RIGHTS IMPLICATIONS

The right engaged

1.14 The gathering, storage, use and disclosure of information relating to an individual's private life falls within the application of Article 8(1) ECHR.[20] "Information relating to private life" has been given a broad interpretation by the European Court of Human Rights. It includes any information relating to an identified or identifiable individual,[21] including public information, and information about activities of a business or professional nature.[22] However, the ECHR recognises the need to balance respect for individuals' privacy against society's need to protect itself against crime: the prevention of crime is one of the specified purposes in Article 8(2) capable of justifying an interference with private life.

The compatibility issue

1.15 The "information relating to crime" which is the subject of clause 3, and the information being used and disclosed under clauses 31-34, is bound to include information relating to an individual's private life. Insofar as it does, those provisions therefore engage the right to respect for personal privacy in Article 8(1) ECHR. The main compatibility question is therefore whether those provisions are compatible with Article 8, or are likely to give rise to breaches of that Article.

THE EXPLANATORY NOTES

1.16 We regret that we find the Explanatory Notes to the Bill wholly inadequate in addressing this compatibility question. The Notes acknowledge that the provisions of the Bill concerning the use and disclosure of information engage Article 8, but assert that, since Article 8(2) permits public authorities to interfere with the right to respect for private life "for the prevention of disorder or crime", and disclosures under the Bill would be for the purposes of the prevention and detection of crime, "accordingly, these provisions are regarded as compatible with ECHR Article 8.1".[23] No further reasoning is offered in support of this assertion of compatibility.

1.17 We recently made a very similar observation about the inadequacy of the Explanatory Notes concerning the information-sharing provisions in the Children Bill.[24] Mere assertions of compatibility in the Explanatory Notes do not assist the Committee in the performance of its function. As we observed in relation to the Children Bill, it often makes it impossible to assess compatibility without first asking a series of detailed questions of the Government. It is an unnecessary obstacle to the efficient performance of human rights scrutiny.

INTERFERENCE WITH THE RIGHT

1.18 Gathering, storing, using and disclosing personal information interferes with the right to respect for private life in Article 8(1).[25] Whether the personal information in question is of a "sensitive" nature, or the precise use to which it is subsequently put, are not relevant to whether or not there is an interference. The mere gathering and storing of such information is in itself an interference with the individual's right in Article 8(1).[26]

1.19 Such interferences with the right to respect for privacy must be "in accordance with the law", serve one or more of the legitimate aims referred to in Article 8(2), and, in addition, be proportionate in the sense of being demonstrably necessary in a democratic society to achieve those aims.

"IN ACCORDANCE WITH THE LAW"

1.20 The requirement in Article 8(2) ECHR that an interference with the right to respect for private life must be "in accordance with the law" requires not only that there be some legal basis for the interference in domestic law, but also that the relevant law must be of a certain quality: it must be accessible to the person concerned, who must also be able to foresee its consequences for him or her.

1.21 We are not concerned about whether interferences with Article 8 rights under the Bill would have a legal basis. Clauses 5 and 31-34 of the Bill in our view would provide such a legal basis. Nor are we concerned about the accessibility of that law to the individuals potentially affected. We do, however, have serious concerns about whether the provisions of the Bill satisfy the requirement of foreseeability.

1.22 To satisfy that requirement, the relevant law must be sufficiently clear and precise in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities may exercise their discretion to interfere with their right to respect for their private life (in this case, by gathering, storing, using and disclosing information about them). There must be a positive framework of legal rules limiting the exercise of any power to interfere with private life, and incorporating legally binding safeguards against abuse. We have therefore scrutinised carefully the quality of the relevant provisions of the Bill with a view to ascertaining whether they will lay down with sufficient clarity and precision the circumstances in and conditions on which SOCA can gather, store, use and disclose information relating to an individual's private life, and whether they provide adequate and effective safeguards against abuse of those powers.

1.23 As explained above, clause 3(1) of the Bill provides that information relevant to the prevention, detection, investigation or prosecution of offences, or the reduction of crime in other ways or the mitigation of its consequences can be gathered, stored, analysed and disseminated by SOCA. In addition, clause 31 authorises the use by SOCA of any information obtained by it in connection with the exercise of any of its functions, and clause 32 authorises the disclosure of such information by SOCA for certain permitted purposes. Clauses 33 and 34 provide for the disclosure of information to SOCA for the purposes of the exercise of its functions.

1.24 On their face, these provisions confer extremely broad discretions on SOCA and others to interfere with an individual's right to respect for their private life. We have therefore looked carefully at the limits on the exercise of those broad discretions in the Bill to determine whether they are "in accordance with the law" within the meaning of Article 8 ECHR.

(i) The kind of information

1.25 One of our principal concerns on our initial consideration of the Bill is the lack of specificity about the kind of information which can be gathered, stored, used or disclosed under powers provided by the Bill.

1.26 Clause 3(1) defines the kind of information which can be gathered, stored, analysed and disseminated by SOCA, but does so in extremely broad terms. We have two concerns in particular about the breadth of the definition of the kind of information subject to this power.

1.27 First, despite SOCA's primary functions[27] relating to serious organised crime, its separate "information function" is not confined to information relating to serious organised crime but extends to information relating to crime generally.[28] Moreover, SOCA's general powers are defined elsewhere in the Bill to include the power to carry on activities in relation to crime other than serious organised crime if such activities are carried on for the purposes of its information function.[29] This means that SOCA's powers in relation to information relating to crime generally goes well beyond a power to pass on to other relevant agencies information which it has obtained in the exercise of its own functions in relation to serious crime. They include the power to carry on activities for the purposes of gathering, storing and analysing information relating to crime generally. We have written to the Government asking for the justification for conferring such a broad information function on an agency the primary functions of which relate to serious organised crime.

1.28 Second, "information relating to crime" in clause 3(1) includes not only information relevant to the prevention, detection, investigation or prosecution of offences, but also information relevant to "the reduction of crime in other ways" or "the mitigation of its consequences". These concepts are not defined in the Bill. On our initial consideration, we consider them to be extremely vague and open-ended. We are concerned that they do not define with sufficient precision the kind of information which can be the subject of the powers given to SOCA which involve interference with Article 8 rights.[30] We have therefore written to the Government asking for clarification of these broad expressions and for the explanation for not defining more precisely on the face of the Bill the kind of information which can be the subject of the wide powers conferred on SOCA by clause 3(1) of the Bill.

1.29 We have similar concerns about the lack of a precise definition of the kind of information that can be used and disclosed by SOCA, or disclosed to SOCA, under clauses 31-34 of the Bill. Under clauses 31 and 32, SOCA has the power to use and disclose information obtained by it in connection with the exercise of any of its functions. As explained above, those functions are extremely broadly defined. They include the prevention and reduction of serious organised crime, but the Bill contains no definition of serious organised crime. The National Criminal Intelligence Service currently operates with a definition: see One Step Ahead, section 1.1. We have written to the Government asking for clarification of the meaning of this term and for the justification for not including a definition of it on the face of the Bill, bearing in mind the importance of legal certainty in defining the limits of the new agency's powers to interfere with fundamental rights including the right to respect for private life.

1.30 SOCA's functions are also defined to include "contributing to the reduction of such crime in other ways and to the mitigation of its consequences". We have the same concerns in relation to the vagueness of these phrases as we described above in relation to the same phrases in clause 3(1): given the power to use and disclose information obtained in connection with the exercise of SOCA's functions, the vagueness of the provisions defining those functions gives rise to concern that the Bill fails to define with sufficient precision the kind of information which may be the subject of the powers to interfere with Article 8 rights.

(ii) Persons with access to the information

1.31 Clause 3(2) of the Bill purports to define the persons to whom information relating to crime generally may be disseminated by SOCA pursuant to the wide power in clause 3(1) of the Bill. Such a definition is a necessary restriction on the scope of such a broad power if it is to be in accordance with the law, but we are concerned that clause 3(2) fails to provide an adequate definition to prevent abuse of the power, for two reasons.

1.32 First, law enforcement agencies are defined to include any government department. SOCA therefore has on the face of the Bill a very broad discretion to disclose information to any Government department. There is nothing to confine the disclosure of such information to information required by such departments for the purposes of law enforcement. We have written to the Government to ask if this is the intention and, if so, to make this explicit on the face of the Bill.

1.33 Second, the scope of the discretion conferred on SOCA by clause 3(2)(d) of the Bill is so broad as to undermine any limitation imposed by clause 3(2)(a)-(c). By clause 3(2)(d) SOCA may disseminate information relating to crime to such persons as it considers appropriate in connection with the prevention, detection, investigation or prosecution of offences, or the reduction of crime in other ways or the mitigation of its consequences. Given the breadth and vagueness of these concepts (see above), this amounts to a very wide discretion to disclose information relating to crime generally, and we doubt whether it satisfies the requirement that a law of this nature must indicate with sufficient precision the people to whom disclosure of personal information can be made. We have written to the Government asking for clarification of the sorts of other persons to whom such information may be disclosed and for the reason for not specifying such persons on the face of the Bill.

1.34 We also have concerns about the purported limitations on SOCA's power in clause 32 to disclose information obtained by it in connection with the exercise of any of its functions. Clause 32(2) prescribes a list of "permitted purposes" for which such disclosure may be made. These include the exercise of any function conferred on SOCA by clauses 2 and 3, and therefore incorporate the broad and vague provisions about which we have expressed our concerns above. Clause 32(2)(f) of the Bill also confers a power on the Secretary of State to add to the list of permitted purposes by designating by order any function which appears to him or her to be a function of a public nature. The Bill therefore confers an open-ended discretion on the Secretary of State to authorise disclosures of personal information by SOCA. There is nothing in the Bill, other than the reference to the need for the function to be of a public nature, to limit the Secretary of State's discretion. We have written to the Government about these concerns and asking for greater precision on the face of the Bill.

(iii) Inapplicability of normal safeguards

1.35 We are also concerned about the adequacy of the restrictions on disclosure contained in clauses 32(4) and 33(3). Those restrictions are confined to information protected from disclosure under the Data Protection Act 1998 or information the disclosure of which is prohibited under Part 1 of the Regulation of Investigatory Powers Act 2000. Both of these Acts contain broad exemptions from their protections for the purposes of preventing and detecting crime, and for policing purposes.[31]

1.36 Moreover, the protection of the common law of confidence, which is the principal vehicle for the protection of Article 8 rights in UK law, is expressly disapplied. This means, for example, that the important common law principle that information obtained by a public official can only be used for the purpose for which it was obtained (subject only to very limited exceptions)[32] is displaced. Many of the normal safeguards against improper disclosure of personal information in breach of the right to respect for private life therefore do not apply.

(iv) Absence of other safeguards

1.37 In addition to the above concerns about the adequacy of the limitations which the Bill purports to contain, we are also concerned about the omission from the Bill of various provisions which would structure and limit the very broad discretions conferred by the Bill to interfere with the right to respect for private life. The Bill makes no provision in relation to the following matters which the European Court of Human Rights has held are relevant when ascertaining whether the applicable legal rules satisfy the requirement of foreseeability:[33]

• The categories of people in respect of whom personal information may be gathered, stored, used and disclosed are not defined
• The procedure to be followed in the gathering, storing, using and disclosing of such information is not laid down
• There are no statutory criteria to guide decisions as to when personal information may be gathered, stored, used or disclosed
• There is no requirement for a pre-disclosure assessment to be made of the proportionality of disclosing personal information
• The persons authorised to consult the information are not defined
• There is no limit on the age of the information held
• There is no limit on the length of time for which the information may be kept
• There is no provision for the destruction of stored information which transpires not to have been necessary or which had no further purpose.

1.38 In light of the above, it seems to us, on our initial consideration of the Bill, that its provisions are unlikely to be considered sufficiently clear and detailed to guarantee adequate protection against interference by the authorities with the right to respect for private life.

(v) Code of Practice

1.39 We have considered whether the deficiencies of and omissions from the Bill which give rise to the above Article 8 compatibility concerns can be remedied by the codes of practice which the Secretary of State is empowered to make by clause 11(1) of the Bill.

1.40 We note, however, that the clause provides the Secretary of State with a discretion to issue codes of practice "relating to the exercise by SOCA of any of its functions." It provides no further guidance on the matters to be included in such codes. The lack of any more specific provision in the enabling provision makes it highly unlikely in our view that any codes of practice issued under clause 11(1) will redress the absence of clarity and foreseeability detailed above.

1.41 We also note that such codes of practice may not in any event be publicly available in their entirety, because although the Secretary of State is required to lay before Parliament any code of practice issued and any revisions to such a code,[34] he has a discretion to exclude from what he lays before Parliament anything the publication of which, in his opinion, could prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.[35] A code of practice which even Parliament may not have had the opportunity to consider in its entirety cannot in our view be relied upon to satisfy the "in accordance with the law" requirement in Article 8.

1.42 We therefore consider that the basic requirement for precision and foreseeability in the delineation of the powers in the Bill to gather, store, use and disclose personal information cannot be satisfied by relying on a discretionary code of practice of uncertain content which may not in any event have been considered in its entirety by Parliament. The limits on the scope of the broad discretions should be specified on the face of the legislation.

(vi) Conclusion

1.43 On our initial consideration of the Bill we are therefore concerned that clauses 2, 3, 5 and 31-34 are drafted in terms too general to satisfy the requirement of foreseeability in Article 8 ECHR. Unless the law indicates with sufficient clarity the scope and conditions of exercise of the authorities' discretionary power in relation to the gathering, storage, use and disclosure of information, any interference with the right to respect for private life will not be in accordance with the law and will therefore be in breach of Article 8 ECHR. In our view this lack of clarity and precision should be addressed on the face of the legislation itself, and not by way of a Code of Practice on such matters which may or may not be issued under clause 11(1) of the Bill. There is therefore a need to introduce adequate safeguards into the legislation itself. We have written to the Government asking a number of specific questions in relation to this matter and will report further in due course.

LEGITIMATE AIM

1.44 Even if the interferences with Article 8 rights authorised by the Bill satisfied the "in accordance with the law" test in Article 8, in order to be compatible with that Article it is still necessary to demonstrate that they serve a legitimate aim. Interferences with the right to respect for private life must serve one of the purposes specified in Article 8(2): they must be in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others.

1.45 The Government relies on "the prevention of crime" as the specified purpose which the Bill's provisions concerning the use and disclosure of information are designed to serve.[36] It interprets that phrase in Article 8(2) ECHR to include the detection of crime. Although we are not aware of any Strasbourg authority directly addressing this point, the House of Lords recently proceeded on the assumption that the detection, investigation and prosecution of crime are legitimate aims within the scope of Article 8(2) and therefore capable in principle of justifying interferences with the right to respect for private life,[37] and we make the same assumption. We also accept that the "reduction of crime in other ways" is in principle capable of being a legitimate aim within the scope of Article 8(2), subject to the clarification of that concept that we are seeking from the Government, as explained above.

1.46 However, on our initial consideration we have two specific concerns that the Bill as currently drafted authorises interferences with Article 8 rights which would not satisfy the requirement that they serve a purpose recognised as a legitimate aim by Article 8(2) ECHR.

1.47 First, "the mitigation of crime's consequences" is not a purpose recognised in Article 8(2). Although we are seeking clarification from the Government as to exactly what is meant by this phrase, it seems to us on our initial consideration that by focusing on crime's consequences it contemplates a purpose quite distinct from the prevention, detection or reduction of crime. To the extent that clauses 3(1)(b), 31, 32(2)(c), 33(1) and 34(1) of the Bill purport to authorise interferences with Article 8 rights for the purposes of mitigating crime's consequences, they are therefore likely to be incompatible with Article 8 because they do not serve a legitimate aim. We have written to the Government asking which of the other purposes specified in Article 8(2) ECHR is relied upon as the legitimate aim justifying the powers in clauses 3(1)(b), 31, 32(2)(c), 33(1) and 34(1) of the Bill to interfere with Article 8 rights in order to mitigate crime's consequences, and for the evidence relied upon to demonstrate that the power in those clauses will in fact serve that purpose.

1.48 Second, clause 32(2)(b) of the Bill purports to authorise disclosure of information obtained by SOCA for the purpose of the prevention, detection or investigation of "conduct for which penalties other than criminal penalties are provided". Such disclosures clearly cannot, by definition, be said to serve the purpose of the prevention of crime in Article 8(2). We have written to the Government asking which of the other purposes specified in Article 8(2) ECHR is relied upon as the legitimate aim justifying this particular measure, and for the evidence relied upon to demonstrate that the power in clause 32(2)(b) will in fact serve that purpose.

NECESSITY OF THE INTERFERENCE

1.49 To be compatible with Article 8 ECHR, the interferences with Article 8 rights authorised by the Bill must also be shown to be necessary in a democratic society. This requires the Government to demonstrate that they serve a pressing social need and that they are proportionate to the legitimate aim pursued in the sense that they do not impose an excessive burden on some individuals for the good of the community.

1.50 This is largely a matter of evidence both of the extent of the need and of the degree of the impact on the individuals affected. Although the European Court of Human Rights will afford a State's national authorities a "margin of appreciation" in their assessment of that evidence, there is no reason why Parliament should afford the Executive such a margin of appreciation. On the contrary, in our view it is incumbent on Parliament to scrutinise very carefully the Government's assessment of the evidence on which it bases its claim that certain measures interfering with Convention rights are necessary.

1.51 We have therefore written to the Government asking it to identify the evidence on which it bases its assessment that conferring such wide powers to interfere with the right to respect for private life are necessary for the aims which it states it is seeking to achieve by conferring those wide powers. We have indicated that we are particularly interested in what justifies giving to an agency created to combat serious organised crime such extensive powers in relation to information relating to ordinary crime.

Special powers of designated members of SOCA staff

1.52 Chapter 2 of Part 1 of the Bill enables the Director General of SOCA to designate members of staff of SOCA as a person having some or all of the powers of a constable, a customs officer or an immigration officer.[38]

1.53 The Explanatory Notes to the Bill state that this is not considered to be incompatible with any of the Convention rights, which require that the substantive protections for the rights concerned are respected, not that justified interferences with those rights be carried out by a particular office-holder.[39]

1.54 We broadly agree with the view expressed in the Explanatory Notes. It is correct that Article 5 ECHR, for example, does not require an arrest to be carried out by any particular office holder, provided that the substantive protections of that Article (e.g. the requirement of reasonable suspicion that the person has committed an offence) are complied with. The existence of the long established power of citizen's arrest, for example, is not per se incompatible with Article 5 ECHR.

1.55 However, the reality is that the exercise of the powers of a constable, customs officer or immigration officer by a person without that officer's training, experience and accountability may make it more likely in practice that breaches of the substantive protections of Article 5 or other relevant Convention rights will occur.

1.56 We have therefore written to the Government asking what steps will be taken to ensure that the people who exercise these powers are (a) trained sufficiently well, and (b) subject to appropriate control and disciplinary systems, to ensure that they are at least as well able as constables to protect the human rights of the people who will be affected by their activities.

Financial reporting orders

1.57 Financial reporting orders (chapter 3 of Part 2 of the Bill) clearly interfere with Article 8 rights. We note that these orders can last for up to 15 or 20 years, and that it is left entirely to the discretion of the individual sentencer to determine the question of the proportionality of such an order.

1.58 We have written to the Government asking what safeguards exist against the making of disproportionate financial reporting orders, and whether, in light of the importance of legal certainty in the protection of the right to respect for private life, the Government will consider inserting explicit safeguards against disproportionate orders on the face of the Bill.

Police Powers etc

1.59 Part 3 of the Bill proposes significant extensions to the powers of police officers to arrest people for criminal offences (clauses 101 and 102 of, and Schedule 7 to, the Bill), to direct people to leave places which they are prohibited from entering by virtue of an order made by virtue of any enactment (clause 103), to obtain warrants to enter and search premises in order to seek evidence of criminal offences (clauses 104 to 105 of the Bill), to stop people and search them for fireworks (clause 106), to take photographs, fingerprints and footwear impressions from people (clauses 107 to 109), and to take intimate samples (clause 110). Clauses 111 to 114 would allow people other than constables, employed by and under the direction and control of the chief officer of police, to exercise the powers of a custody officer in a police station (clauses 111 and 112), to operate in plain clothes to investigate an offence (clause 113), to take over certain other duties from constables (clause 113(7) and Schedules 8 and 9), and to obtain information about registration plate suppliers and people's motor insurance details (clause 114). This last power would also be available to civilian employees of the British Transport Police Authority who are under the direction and control of the Chief Constable of the British Transport Police Force.

EXTENDED POWERS TO ARREST

Background and existing powers

1.60 Clause 101 would rewrite the powers of constables and civilians to arrest people in respect of criminal offences. These powers are currently contained in sections 24 and 25 of the Police and Criminal Evidence Act 1984 (hereafter 'PACE'). These sections were the result of prolonged debate within and outside Parliament following the recommendations of the Royal Commission on Criminal Procedure (hereafter 'RCCP') in its 1981 Report.[40] The resulting legislation was intended to provide an appropriate balance between people's right to be free of arbitrary deprivation of liberty and the need for such deprivation on occasions in order to protect people or property or to make criminal investigations effective. At common law, an arrest without a magistrate's warrant was permitted for two categories of offences: felonies, and offences in respect of which a power to arrest without warrant had been specifically conferred by statute. In 1967, legislation (giving effect to a recommendation of the Criminal Law Revision Committee)[41] had abolished the ancient distinction between felonies and misdemeanours, and created a new category of 'arrestable offences' for which a person could be arrested without warrant. Arrestable offences were those for which the sentence was fixed by law (e.g. murder) or for which the maximum sentence on conviction was five years' imprisonment or more.[42] In 1984 section 24 of PACE retained this as the basic definition of 'arrestable offence', although a number of other offences were added.

1.61 The current powers under section 24 are as follows—

—  Where an arrestable offence has been committed, any person may arrest without a warrant anyone who committed it or whom he or she has reasonable grounds for suspecting of having committed it.

—  Where an arrestable offence is being committed or any person has reasonable grounds to suspect that such an offence is being committed, he or she may arrest without a warrant anyone who is guilty of it or whom he or she has reasonable grounds for suspecting to be guilty of it.

—  A constable may arrest without a warrant anyone whom the constable has reasonable grounds for suspecting to have committed an arrestable offence, even if it turns out later that no arrestable offence was committed.

—  A constable may arrest without a warrant anyone who is, or whom the constable has reasonable grounds for suspecting to be, about to commit an arrestable offence.[43]

1.62 The list of arrestable offences in section 24 has grown considerably since 1984. Alongside offences for which the penalty is fixed by law or which carry a penalty of at least five years' imprisonment, there is an eclectic mixture of other offences including several of those created by the Official Secrets Act 1989, some offences relating to prostitution, publication of obscene matter, indecent or racist chanting at a football match, ticket touting, and touting for hire car services.[44]

1.63 At the time when the 1984 Act was being drafted, there was a desire to provide a power for constables to arrest people without warrant in some other circumstances, either because it might be impossible to serve a summons on people for non-arrestable offences where their names and addresses could not be verified at the time of the offence or because leaving them at liberty would allow them to cause injury to themselves or others or loss of or damage to property, commit an offence against public decency, or cause an obstruction of the highway. Such a power was provided in section 25 of PACE.

1.64 Most previous statutory powers to arrest people without a warrant for a criminal offence were repealed,[45] although a good many new ones have been created since.

1.65 As well as providing the ground for many arrests without a warrant, the concept of the 'arrestable offence' is the basis for assessing whether many other police powers should be activated. A number of powers to interfere with people's liberties and rights arise only in connection with a 'serious arrestable offence': i.e. an arrestable offence which, as well as meeting the criteria laid down in section 24 of PACE, have added characteristics that make them particularly serious. Some arrestable offences are always serious arrestable offences, including offences of treason, homicide, torture, causing an explosion likely to endanger life or property, rape, terrorism, hostage-taking, hijacking, kidnapping, drug trafficking, intercourse with a girl under the age of 13, buggery with a person under the age of 16, gross indecency, various offences relating to the publication or possession of obscene or indecent material, and various firearms offences.[46] Other arrestable offences may also be serious arrestable offences if they meet the criteria of seriousness set out in section 116(6) of PACE, including serious harm to the security of the state or public order, serious interference with the administration of justice or investigations, a death or serious injury, or substantial financial gain or loss.

1.66 Where an offence is a serious arrestable offence, the police may be able to exercise powers in non-terrorism cases including—

—  to establish a road check or road block;

—  to obtain search warrants;

—  to obtain an order for access to or production of confidential or journalistic material;

—  to detain an arrested person without charge for more than 24 hours, up to a maximum (with judicial authorisation) of 96 hours;

—  to delay the exercise by an arrested person of the right to have someone informed of his or her arrest; and

—  to delay the exercise by an arrested person of the right to receive legal advice.

1.67 The reason for treating the concept of 'serious arrestable offence' as grounding powers of this sort is that the maximum sentence of imprisonment for at least five years on conviction is regarded as a sign that the offence is sufficiently grave to justify the use of investigative powers, and interference with people's rights, additional to those allowed in the case of less serious offences.

Problems with the existing powers

1.68 Unlike most of the other investigative powers which intrude on people's liberties, the law provides relatively few rules or standards to control the discretion to arrest. The standard of 'reasonable suspicion' leaves a great deal to the judgment of the person making the arrest. The power to make Codes of Practice to guide constables in exercising their discretion does not extend to arrests. Since the Human Rights Act 1998 came into force, constables must comply with the requirements of Article 5 of the ECHR when deciding whether to arrest someone. As explained below, this limits the discretion to some degree. But the Human Rights Act 1998 probably does not impose similar obligations on people other than constables, as they are probably not 'public authorities' so as to be subject to a duty to act compatibly with Convention rights within the meaning of section 6 of the Act.

1.69 In addition, the distinction between arrestable and other offences requires constables to remember in the heat of the moment the details of the maximum sentence for a great number of offences, together with the various offences listed in PACE (as amended) as being arrestable offences and those which carry a power of arrest without a warrant under other legislation despite not being arrestable offences under PACE.

1.70 Finally, people who are not constables face the same challenges as the police without (usually) having had the same opportunity to familiarise themselves with the relevant legislation before deciding whether to make an arrest.

The effect of the proposed new provisions

1.71 The Explanatory Notes to the Bill say that clause 101 of the Bill 'codifies the powers of arrest available to a constable under the Police and Criminal Evidence Act (PACE) 1984 and in other enactments'.[47] In fact, the proposed new sections 24 and 24A of PACE would go beyond a simple codification. As the then Home Secretary, the Rt. Hon. David Blunkett MP, made clear in the Second Reading debate, they extend powers of arrest without warrant by removing the distinction between arrestable and non-arrestable offences, and making it possible to arrest without warrant for any offence; although the Home Secretary also indicated that some relatively trivial offences might be excluded by way of amendments to be discussed in Standing Committee.[48] The circumstances in which a person would be able to make an arrest for an offence without a warrant would be essentially the same as those in which people can currently make an arrest without a warrant for an arrestable offence. There would continue to be a distinction between the powers of constables and those of civilians.

1.72 A constable would be empowered to arrest without a warrant—

—  anyone who has committed, is committing or is about to commit an offence;

—  anyone whom the constable has reasonable grounds for suspecting to be guilty of an offence which has been or is being committed, or which the constable has reasonable grounds for suspecting has been or is being committed; or

—  anyone whom the constable has reasonable grounds for suspecting to be about to commit an offence.[49]

1.73 A person other than a constable would have power to arrest without a warrant—

—  anyone who has committed or is committing an offence;

—  anyone whom the person has reasonable grounds for suspecting to be guilty of an offence which has been or is being committed. (Unlike a constable, in an action for battery or false imprisonment a civilian would continue to be unable to justify a purported arrest if there in law no offence had been or was being committed, however reasonably the person suspected that there was or had been an offence.)

1.74 This would have two immediate effects. First, it would create a power to arrest without a warrant in respect of offences (including trivial offences) for which no such power currently exists. Secondly, in respect of offences for which an arrest may currently be made only by a constable in uniform it would remove the requirement for the arresting officer to be in uniform, making it more difficult for the person being arrested to know whether the purported arrest is lawful or is an unjustified battery which the person is entitled to use reasonable force to resist: see for example the proposed power to arrest a person for committing the proposed new offence of harassing a person in his or her home under clause 117 of the Bill.[50]

1.75 Secondly, the proposal to abolish the category of arrestable offences has a very significant knock-on effect on the availability of other powers currently limited to arrestable offences. It also leads inevitably to the abolition of the concept of the 'serious arrestable offence'. As noted in paragraph 1.66 above, this concept currently provides the basis for other powers which have a major impact on human rights. The Bill would make those powers available in respect of all indictable offences, i.e. those offences which are triable only and those which are triable either on indictment or summarily ('triable either-way offences').[51] While many indictable offences are serious and carry maximum sentences on conviction of imprisonment for five years or more, many others do not carry such maximum sentences, and so are currently not even arrestable offences, much less serious arrestable offences. As a result, the proposals in the Bill result in a considerable extension of the consequential powers mentioned above, and others, to offences to which they have not previously been applied.[52] The Government has not yet offered to Parliament an explanation of or justification for this move, which significantly shifts the balance between rights and police powers and reduces the protection for the rights, in the debates on the Bill.

1.76 On the other hand, for the first time the power-conferring legislation would impose an express restriction on the power to make an arrest without a warrant. Although all offences would (subject to any amendment to the Bill during its passage through Parliament) become arrestable, the power to arrest would be exercisable only where the applicable necessity test was satisfied. There are two tests, one for arrests by constables and the other for arrest by civilians, and they are set out in proposed new sections 24(4)-(6) and 24A(3)-(4) of PACE respectively.

1.77 A constable would have to have reasonable grounds for believing (a higher standard than reasonable grounds for suspecting) that it is necessary to arrest the suspect for one of the following reasons—

—  to enable the person's name or address to be ascertained;

—  to prevent the suspect from physically injuring himself or herself or another person, from suffering physical injury, from causing loss of or damage to property, from committing an offence against public decency in a place where members of the public going about their normal business cannot reasonably be expected to avoid the suspect, or from causing an unlawful obstruction of the highway; to protect a child or other vulnerable person from the suspect; to allow the prompt and effective investigation of the offence or of the suspect's conduct; or to prevent any prosecution for the offence from being hampered by the disappearance of the suspect.

1.78 A person other than a constable would have power to make an arrest without a warrant only if—

—  he or she has reasonable grounds for believing that it is necessary to arrest the suspect to prevent him or her from physically injuring himself or herself or another person, from suffering physical injury, from causing loss of or damage to property, or from making off before a constable can assume responsibility for him or her; and

—  it appears to him or her that it is not reasonably practicable for a constable to make the arrest instead.

1.79 Two provisions in clause 101 offer significant protection against arbitrary arrest—

—  Clause 101(3) would amend section 66 of PACE to allow a Code of Practice to be made covering the exercise of powers of arrest. This would allow guidance to be given as to the circumstances which should be regarded as being capable of giving rise to reasonable grounds for suspicion, and as to the operation of the necessity test. Breach of a provision of the Code of Practice would not in itself constitute a criminal offence, a civil wrong or a disciplinary offence, but would be a matter to be taken into account by courts and tribunals where relevant (for example, when deciding whether there was reasonable suspicion or necessity for an arrest in an action for battery or false imprisonment, or where someone is prosecuted for wilfully obstructing or assaulting a constable in the exercise of his or her duty). This is a welcome development, with the potential to assist in protecting people against arbitrary interference with their human rights.

—  Clause 101(4) would abolish '[a]ny rule of common law conferring power to arrest a person without a warrant'. Because this is not limited to arrest for criminal offences, it would appear to abolish the common-law power for anyone to arrest a person where it is reasonably considered to be necessary in order to prevent or end a reasonably apprehended and imminent breach of the peace. At present, that power can be exercised even if the person arrested is not committing any offence. In future, such a power would be available only if the person arrested is himself or herself within the conditions for arrest for an offence under proposed new sections 24 and 24A of PACE. It is not clear whether this effect is intended. Many police officers might regard it as an undesirable restriction on their powers to maintain public order. Nevertheless, from the point of view of civil liberties and human rights it would usefully enhance protection against arbitrary use of powers to arrest in respect of breaches of the peace, and is welcome.

Assessment in the light of relevant human rights standards

1.80 Arrest powers engage the right to be free of arbitrary deprivation of liberty under ECHR Article 5, which, so far as relevant, provides—

1. Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …

1.81 The provisions might also, in some circumstances, interfere with the exercise of a suspect's right to respect for his or her family life under ECHR Article 8.1. However, it is likely that an arrest that is justifiable under ECHR Article 5 would also be justifiable under Article 8.2, so no separate consideration is given here to Article 8.

1.82 The proposed new sections 24 and 24A of PACE appear to prescribe the procedure and conditions for arrest adequately to meet the requirements of Article 5.1. The purpose for which an arrest could lawfully be made would usually depend on reasonable suspicion that the person had committed an offence. Although the proposed new sections (like the present law) would not require reasonable grounds for suspicion if the person is caught in the act of committing an offence, the existence of reasonable grounds can probably be taken for granted in that situation. However, the purpose of making an arrest would not be limited to bringing the person before the competent legal authority, preventing the commission of an offence or preventing the person from fleeing after committing an offence. Some of the permitted aims can plausibly be regarded as falling within the legitimate purposes set out in Article 5.1(c), including: to enable the person's name or address to be ascertained (in order to make flight less likely to frustrate the criminal process); to prevent the suspect from physically injuring another person, from causing loss of or damage to property, from committing an offence against public decency, or from causing an unlawful obstruction of the highway, or to protect a child or other vulnerable person from the suspect (prevention of offences); and to prevent any prosecution for the offence from being hampered by the disappearance of the suspect (prevention of flight).

1.83 On the other hand, some other reasons for an arrest permitted by proposed new section 24 of PACE would not, or might not, fall within the legitimate purposes listed in Article 5.1. For example, it is not obvious that preventing the suspect from physically injuring himself or herself is within Article 5.1(c). The same applies to allowing the prompt and effective investigation of the offence or of the suspect's conduct: as investigations in England and Wales are not conducted under the supervision of a judicial officer, the purpose of the arrest is not to bring the suspect before the competent legal authority, so it is not clear that the arrest would fall within Article 5.1(c); the requirement to take a suspect to a police station,[53] where he or she would come under the control of a custody officer with responsibilities under sections 32, 34, 37 and 39 of PACE and of the review officer under section 40 of PACE, does not suffice, since the paragraph refers to a judicial officer, and a police officer is not sufficiently independent to be judicial.[54]

1.84 Furthermore, substituting 'indictable offence' for 'arrestable offence' and 'serious arrestable offence' has, as noted above, the effect of extending a range of police powers to offences to which they did not previously apply. These powers engage the right to respect for private life under ECHR Article 8, and in the case of intimate samples may also engage the right to be free of inhuman or degrading treatment under ECHR Article 3.

1.85 We have therefore written to the Government to ask why it considers that the proposed changes mentioned in the previous two paragraphs would be compatible with Articles 5.1 and 8 of the ECHR.

DIRECTING PEOPLE TO LEAVE PLACES WHICH THEY ARE PROHIBITED, BY AN ORDER MADE UNDER AN ENACTMENT, FROM ENTERING

1.86 Clause 103 would empower a constable (whether or not in uniform) to direct a person (either an adult or a juvenile) orally to leave a place or area if the constable believes, on reasonable grounds, that the person is prohibited from entering it at that time by virtue of an order made, pursuant to an enactment, on the person's conviction of an offence (for example, as part of a community service order or a suspended sentence order), or imposed by virtue of an enactment as a condition of the person's release on licence from prison where he or she was serving a sentence of imprisonment following conviction of an offence.[55] If the person knowingly contravenes the direction to leave, he or she would be guilty of an offence and liable to a maximum sentence on summary conviction of imprisonment for 51 weeks or a fine not exceeding level 4 on the standard scale or both.[56] A constable in uniform would be able to arrest without warrant a person whom he or she reasonably suspects of committing or having committed this offence, either under the proposed new section 24 of PACE (see above) or under a power specifically to be conferred by the Bill unless and until the proposed new section 24 is brought into force.[57]

1.87 A direction under this clause might interfere with the person's right to respect for private and family life under ECHR Article 8 if it restricts his or her ability to meet or visit his or her family or friends. However, the court or other public authority that imposed the prohibition in the first place would probably have been required to consider this at the time of making the order as part of its duty to act compatibly with Convention rights under section 6(1) of the Human Rights Act 1998. As long as the direction is properly given, it seems to us that it would not usually be likely to give rise to a violation of Article 8.

1.88 Arresting the person for knowingly disobeying the direction would interfere with his or her right to liberty under ECHR Article 5.1, but would fall within Article 5.1(b), which provides that deprivation of liberty may be permitted if it is in accordance with a procedure prescribed by law for 'non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law'. We therefore consider that there is no significant risk of these provisions giving rise to a violation of Article 8.

BROADENING THE POWER TO ISSUE SEARCH WARRANTS

1.89 At present, the person applying to a justice of the peace for a search warrant must specify the premises to be entered and searched and persuade the justice that there are reasonable grounds for believing that the material sought is on those premises. A warrant may be issued only in respect of premises specified in it, and authorises entry on only one occasion. This has caused problems, because material found (or not found) on those premises can show that investigators need to go on to search other premises urgently. The need to apply for separate warrants may delay the search, resulting in a loss of potentially valuable material. Clauses 104 and 105 would amend section 8 of PACE to allow a justice of the peace to issue a single search warrant in respect of all premises occupied or controlled by a named person in order to obtain material of substantial value to the investigation of a serious arrestable offence (or, if the category of arrestable offences is abolished by clauses 101 and 102 of and Schedule 7 to the Bill, an indictable offence). This would mean that there would be two kinds of search warrants in respect of serious arrestable (or indictable) offences: a 'specific premises warrant' and an 'all premises warrant'. In addition, either kind of warrant could authorise multiple entries, without any limit to the number of occasions on which entry to any one set of premises could be permitted;[58] and the period for which a warrant remains in force would be extended from one month to three months.[59]

1.90 The proposed power to issue a warrant covering all premises occupied or controlled by a person raises significant human rights concerns, because—

—  the premises to be entered and searched need not be specified in the warrant, making it difficult for an occupier of premises to know whether police are acting lawfully when they seek entry, and severely limiting the quality of judicial oversight of the process;

—  the power would apply to all kinds of premises, including domestic dwellings, intimately affecting people's privacy;

—  as the warrant could cover premises controlled by the named person, and not only those occupied by him or her, other people might be living in the premises, who could be unconnected with the named person (except by virtue of having taken a lease of the premises, or a licence to occupy them, from him or her);

—  a single application to a justice of the peace could produce authorisation to search a large number of premises on an unlimited number of occasions without a subsequent judicial assessment of the continuing need for or proportionality of individual entries and searches;

—  the power to issue an 'all purposes warrant' would also be available on an application to seek excluded material (sensitive and confidential journalistic material and personal records) or special procedure material (confidential records and correspondence and non-confidential journalistic material) under Schedule 1 to PACE;[60]

—  the period during which the entries to and searches of the same or multiple premises could continue would be three times as long as the period for which a warrant authorising a single entry currently remains in force; and

—  if the amendments to PACE and other legislation, proposed in clause 102 of and Schedule 7 to the Bill, are enacted, the power will be applied in respect of indictable offences instead of serious arrestable offences, and some indictable offences would not have been serious enough to be serious arrestable offences (see above).

1.91 In short, the clauses give justices of the peace authority to issue a general warrant of a kind that has been anathema to the common law for centuries on account of the very wide discretion it confers on public officials, and the lack of effective prior judicial control over the decision to enter (if need be, by force) private premises including dwellings.

1.92 This makes it necessary to consider whether the overall effect of clauses 104 and 105, taking into account any safeguards they introduce, is likely to meet relevant human rights standards. The principal human rights obligation arises under Article 8 of the ECHR, which provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

1.93 The proposed legislation would be sufficiently clear and accessible, and provide a sufficient legal basis, to meet the requirement that the interference should be 'in accordance with the law'. It is designed to advance the cause of criminal investigation, and so can be regarded as serving a legitimate aim under ECHR Article 8.2. The question is whether it would be 'necessary in a democratic society' for one of the listed aims, particularly the prevention of disorder or crime (which includes for this purpose the detection of the people responsible for it). The case-law of the European Court of Human Rights and national courts makes it clear that an interference is 'necessary in a democratic society' only if there is a pressing social need for action to advance the legitimate aim, and the measures proposed are a proportionate response to the need bearing in mind the extent and severity of the potential impact on those whose rights are interfered with and the need to ensure that, within reasonable limits, the interference with rights is as small as is compatible with achieving the legitimate aim.

1.94 Clauses 104 and 105 would provide some additional safeguards against abuse of the greatly expanded powers granted above. In particular—

—  the person applying for an 'all premises warrant' would have to specify in the application as many sets of premises which it is desired to enter as is reasonably practicable, together with the name of the person who is in occupation or control of the premises, why it is necessary to search more premises than those specified, and why it is not reasonably practicable to specify the additional premises;[61]

—  a justice, before issuing an 'all premises warrant', would have to be satisfied that, because of the nature of the offence being investigated, there are reasonable grounds for believing that it is necessary to search unspecified premises occupied or controlled by the person in question in order to find the material sought;[62]

—  entry under an 'all premises warrant' to premises not specified in the warrant would have to be authorised in writing before the entry by an officer of at least the rank of inspector;[63]

—  before a second or subsequent entry is made to premises under a warrant authorising multiple entries unless a police officer of at least the rank of inspector has authorised that entry to those premises in writing.[64]

1.95 However, safeguards external to the police are weak, because the justice of the peace is very unlikely to be able to assess properly the proportionality of a request to be allowed to enter and search unspecified premises on an unlimited number of future occasions over the following three months;[65] and decisions of an inspector in relation to particular premises are unlikely to be subject to judicial or public scrutiny.

1.96 Bearing in mind the considerable extent of the proposed power to enter and search premises without prior judicial authorisation in respect of specific premises, the relative weakness of the proposed new safeguards, and the fact that the Government did not provide any explanation during the Second Reading debate of the reason for thinking that such an extension is necessary and is proportionate to a pressing social need, we cannot at present be satisfied that these proposals would be compatible with the right to respect for private life, home and correspondence under ECHR Article 8. We have therefore written to the Government asking why it considers that these provisions could, in their operation, be relied on to be compatible with rights under that Article.

POWERS OF STOP AND SEARCH IN RESPECT OF FIREWORKS

1.97 Section 1 of PACE confers power on constables to stop people in public places and search them for certain kinds of goods. Clause 106 would include among those goods fireworks which a person possesses in contravention of a prohibition imposed by fireworks regulations made under the Fireworks Act 2003.

1.98 Any power to stop someone and search them engages the right to respect for private life under ECHR Article 8 and, potentially, the right to liberty under Article 5. Seizing a person's possessions engages the right to peaceful enjoyment of property under Article 1 of Protocol No. 1 to the ECHR. As Afro-Caribbean and Asian people are more likely to be stopped and searched than white people, and young people are more likely to be searched than middle-aged or elderly people, there is also a risk that the new power may be used in a manner that discriminates against people on illegitimate grounds in the enjoyment of their Convention rights, engaging ECHR Article 14. Nevertheless, in view of the safeguards contained in PACE, particularly in sections 2 and 3, and the Code of Practice made under section 66 of PACE, we consider that extending the existing power to fireworks would not significantly increase the risk of a violation of those Articles.

PHOTOGRAPHS, FINGERPRINTS AND FOOTWEAR IMPRESSIONS

1.99 Section 64A of PACE allows a person to be photographed at a police station in certain circumstances. Clause 107 would amend section 64A to allow people to be photographed in a place other than a police station, either with or without consent, or to have a moving image made, if he or she has been—

—  arrested by a constable or taken into custody by a constable following arrest by someone else for an offence; or

—  required to wait with a community support officer under the Police Reform Act 2002; or

—  given a fixed penalty notice by a constable under the Criminal Justice and Police Act 2001 or the Road Traffic Offenders Act 1988 or the Education Act 1996, or by a community support officer or accredited person under the 2002 Act.

1.100 Requiring someone to allow a photograph or moving image of him or her to be taken without his or her consent is likely to engage the right to respect for private life under ECHR Article 8, both in relation to the initial making of the image and in respect of its subsequent storage and use by the officer making the image or other officers. We have therefore written to the Government asking why it considers that this power would be justified under ECHR Article 8.2, taking account of any safeguards to prevent the image from being held for longer than necessary or used for an unauthorised purpose.

1.101 Clause 108 would amend section 61 of PACE to allow a constable to take a person's fingerprints with or without that person's consent in a place other than a police station if the constable reasonably suspects that the person is committing or attempting to commit, or has committed or attempted to commit, an offence, and the constable either does not know and cannot reasonably ascertain the person's name or the constable has reasonable grounds for doubting whether a name given by the person is his or her real name.[66] The fingerprints could then be cross-checked against other fingerprints held on any database by any law-enforcement authority to which the person making the check has access.[67] Once they have fulfilled their purpose (presumably establishing the person's identity), the fingerprints would have to be destroyed.[68]

1.102 This power engages the right to respect for private life under ECHR Article 8.1. However, in view of the requirement to destroy the fingerprints once they have fulfilled their purpose (a duty no longer imposed on the police in respect of fingerprints taken in the course of investigations generally) it seems to us to be unlikely that the new power would be regarded as intrinsically unjustifiable under Article 8.2 as a disproportionate interference with the right.

1.103 Clause 109 would insert a new section 61A in PACE to give constables the power to take impressions of a person's footwear, at or away from a police station. The person's consent would normally be required, but an impression could be taken without consent if the person has been detained following arrest for a recordable offence or has been informed that he or she will be reported for a recordable offence, and the police have not previously taken an impression of the footwear in the course of the investigation, or the impression was incomplete or not of high enough quality to permit analysis, comparison or matching. The impression would be available for a speculative search of relevant databases.

1.104 The power engages the right to respect for private life under ECHR Article 8.1. However, in view of the relatively trivial nature of the interference with that right and the safeguards contained in clause 109, we consider that the power is unlikely to be regarded as intrinsically unjustifiable by reference to the criteria set out in Article 8.2.

INTIMATE SAMPLES

1.105 In 1984, for the first time, PACE allowed the police to take body samples from people, and introduced careful safeguards against the unjustified use of what was clearly recognised as a highly intrusive procedure.[69] Since then, successive pieces of criminal justice legislation have moved types of samples categorised as 'intimate', attracting the highest level of safeguards, to the 'non-intimate' category, with significantly fewer safeguards. Clause 110 would partially reverse this process, by amending section 65 of PACE so that a swab taken from any part of a person's genitals would once again be regarded as an intimate sample, alongside a swab from a body orifice other than the mouth.[70] This is a small but welcome step to reduce the continuing risk that the power to take samples may be incompatible with the right to be free of inhuman or degrading treatment under ECHR Article 3 or the right to respect for private life under ECHR Article 8.

NEW POWERS FOR CIVILIAN EMPLOYEES OF POLICE FORCES

1.106 The extended powers of civilian police staff proposed in clauses 111 to 114 are significant in extent. Allowing people other than constables, employed by and under the direction and control of the chief officer of police, to exercise the powers of a custody officer in a police station (clauses 111 and 112), to operate in plain clothes to investigate an offence (clause 113), and to obtain information about registration plate suppliers and people's motor insurance details (clause 114)—a power also to be exercisable by civilian employees of the British Transport Police Authority who are under the direction and control of the Chief Constable of the British Transport Police Force—involves making people who do not hold the office of constable responsible for protecting the rights of suspects and others in the course of criminal investigations. In terms of the implications for human rights, the question is whether the civilian employees exercising these powers will be as well trained, and subject to the same standards of discipline, as constables exercising the same functions so as to ensure that the protection for human rights is not diluted by having the roles performed by civilian staff. The same applies to the additional powers to be exercisable by civilian staff under clause 113(7) of and Schedules 8 and 9 to the Bill.

1.107 We have therefore written to the Government to ask what steps would be taken to ensure that civilian staff are properly trained and are subject to appropriate modes of discipline before they begin to exercise the functions which would be conferred on them by these provisions of the Bill.

Public Order in Public Places etc.

1.108 Part 4 of the Bill would extend the criminal law and police powers relating to harassment (clauses 116 to 118), introduce a new offence of incitement to religious hatred (clause 119 of and Schedule 10 to the Bill), create an offence of entering a designated site as a trespasser (clauses 120 to 122), create new powers for the police to give directions to people in the vicinity of the Palace of Westminster (clauses 123 to 124), and make amendments to the law relating to anti-social behaviour orders (ASBOs) and football banning orders, especially relaxing restrictions on publicity for juveniles who are convicted of breaching an ASBO and allowing local authorities to contract out their functions in relation to ASBOs (clauses 125 to 128).

HARASSMENT

1.109 Clauses 116 to 118 would amend the law relating to harassment and public order by creating two new offences of harassment, granting courts an additional power to grant an injunction to restrain the commission of the first of the new offences, extending the power of constables to give directions to people to leave a place in order to stop or prevent harassment and making it an offence to return to the place having left in obedience to a direction.

1.110 The first new offence would be created by clause 116(2), which would insert a new sub-section (1A) in section 1 of the Protection from Harassment Act 1997. A person would commit the new offence if he or she pursues a course of conduct (meaning either conduct on at least two occasions in relation to a single person or conduct on one occasion in relation to each of two or more persons)[71] which involves harassment of two or more persons, and which he or she knows or ought to know involves harassment of those persons, and by which he or she intends to persuade any person (not necessarily the persons harassed) not to do something that that person is entitled or required to do, or to do something that he or she is not under an obligation to do. Clause 116(5) would insert a new section 3A in the 1997 Act allowing the High Court or County Court to grant an injunction restraining a breach or apprehended offence under the proposed new section 1(1A) of the 1997 Act.

1.111 The Explanatory Notes say that the aim of these provisions is 'to protect those people targeted because of their connections with third parties (including businesses, charities and individuals). These new measures have arisen largely due to the extremist activities of animal rights protesters'.[72] The object is to protect people connected with the person or business against suffering harassment because of a campaign against the other person or business—the equivalent of secondary picketing. The proposed measures are likely to be capable of being used in that way. They protect people's right to respect for private and family life under ECHR Article 8. On the other hand, they interfere with the rights of protesters to manifest a belief in public (ECHR Article 9.1), to impart information and ideas without interference by public authorities (ECHR Article 10.1), and to assemble peacefully (ECHR Article 11.1). It is permissible to interfere with these rights if the interference is prescribed by law, serves a legitimate aim within Articles 9.2, 10.2 and 11.2 respectively, and is necessary in a democratic society (importing requirements that there should be a pressing social need for the interference and that the interference should be proportionate to the aim pursued). The measures appear to pursue legitimate aims (protection of the rights and freedoms of others and of public order), and the Bill appears to provide a sufficiently clear and accessible basis in law for the interference to meet the requirement that the interference must be 'prescribed by law'.

1.112 The issue of necessity in a democratic society seems to us to be less straightforward. Freedom to protest forcefully for one's beliefs, and to do it where it is likely to have an effect on people's thinking, is one of the hallmarks of a democratic society. We accept that there is a pressing social need to protect people who are going about their lawful business and private lives against harassment and disruption on account of their beliefs or lawful activities. We are less convinced that the measures contained in this clause can be said to be proportionate to that aim. Nothing in the clause limits the offence or the power to grant injunctions to the situations which are primarily envisaged as the object of the measures. The very wide formulation of the prohibited purpose (persuading a person not to do something he or she is entitled or required to do, or persuading him or her to do something he or she is not under an obligation to do) is capable of covering any political activity. There seems to us to be a danger that the provisions could be used to inhibit ordinary political demonstrations, particularly as it would be possible to treat a single episode of harassment towards each of a number of different people as a course of conduct.

1.113 We have therefore written to the Government to ask how it expects that the offence will be prevented from operating in a way that disproportionately interferes with rights under ECHR Articles 9, 10 and 11.

1.114 Clause 117 would insert a new section 42A in the Criminal Justice and Police Act 2001. This would create a new offence of being present outside or in the vicinity of a person's dwelling for the purpose of representing to or persuading any person that he or she should not do something that he or she is entitled or required to do, or should do something that he or she is under no obligation to do. The accused (alone or with anyone else who was present) would have to be shown to have intended his or her presence to amount to harassment of, or to cause alarm or distress to, the resident or that he or she knew or ought to have known that it would cause harassment, alarm or distress to the resident. The prosecution would also have to show that the presence of the accused amounted or was likely to amount to harassment of a resident, or another person in the dwelling or in another dwelling in the vicinity, or caused or was likely to cause alarm or distress to such a person. A constable in uniform (or, if clause 101 of the Bill becomes law, a constable) would be allowed to arrest without a warrant a person whom he or she reasonably suspects of committing or having committed the offence.

1.115 This proposed new provision would make it a criminal offence to do something which already, under section 42 of the 2001 Act, triggers a power for a constable to direct people to stop doing whatever it is that is thought to be causing or likely to cause harassment, alarm or distress, or to leave the vicinity. Knowingly to fail to comply with such a direction is already a criminal offence.[73] The proposed new section 42A would make the conduct an offence without the need for a constable to give a direction.

1.116 This proposal engages the same Convention rights as are engaged by clause 117. It is, however, less extensive, since it is limited to harassment of people in dwellings. As it is more focused than clause 117, it seems to us to be less likely to give rise to an unjustifiable interference with those rights.

1.117 Clause 118 would extend the power of constables under section 42 of the Criminal Justice and Police Act 2001 to give directions to people in the situation outlined above. At present, as noted above, the directions can include a requirement to leave the vicinity, but cannot specify a time before which the person is not allowed to return. The Bill would allow a constable to direct the person not to return for a specified period, which could be up to three months.[74] It would then be an offence for the person to return within the specified period, but only if he or she does so for the purpose of persuading someone not to do something he or she is entitled or required to do, or to do something that he or she is not under an obligation to do.[75]

1.118 Once again, this proposal engages the rights under ECHR Articles 9, 10 and 11, but the interference with them is focused on harassment of people in dwellings. The power to give directions effective for a period of up to three months seems draconian at first sight. However, it does not exclude people from entering the vicinity for purposes other than harassment, and so it seems to us that the interference is likely be justifiable under Articles 9.2, 10.2 and 11.2.

STIRRING UP RELIGIOUS HATRED

The proposals in the Bill

1.119 Clause 119 of and Schedule 10 to the Bill would amend Part 3 of the Public Order Act 1986, which deals with stirring up racial hatred. In essence, the proposed measures would put incitement to religious hatred on the same footing as incitement to racial hatred, except that the new provisions would apply to stirring up hatred of religious groups outside as well as inside Great Britain. Religious hatred would be defined in a new section 17A of the 1986 Act as meaning 'hatred against a group of persons defined by reference to religious belief or lack of religious belief'.[76] As a result, the following activities would become criminal offences—

—  using threatening, abusive or insulting words or behaviour, or displaying any written material which is threatening, abusive or insulting, with the intention of stirring up religious hatred, or in circumstances where the conduct is likely to stir up religious hatred;[77]

—  publishing or distributing written material which is threatening, abusive or insulting with the intention of stirring up religious hatred, or in circumstances where it is likely to stir up religious hatred;[78]

—  presenting or directing a public performance of a play which involves the use of threatening, abusive or insulting words or behaviour with the intention of stirring up religious hatred or in circumstances where it is likely to stir up religious hatred;[79]

—  distributing, showing or playing a recording of visual images or sounds which are threatening, abusive or insulting with the intention of stirring up religious hatred or in circumstances where it is likely to stir up religious hatred;[80]

—  providing a broadcasting programme service which includes a programme, or producing or directing a broadcast programme, which involves the use of threatening, abusive or insulting visual images or sounds, or using threatening, abusive or insulting visual images or sounds on such a programme, where the accused intended them to stir up religious hatred or in all the circumstances they were likely to stir up religious hatred;[81]

—  being in possession of material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting, with a view to it being displayed, published, distributed, shown, played, broadcast or included in a cable programme service, with the intention of stirring up religious hatred or where in all the circumstances it is likely to stir up religious hatred.[82]

1.120 A great deal of controversy surrounds the proposals to make it an offence to use certain kinds of words, behaviour, or recorded sounds and images to stir up religious hatred.[83] Like the existing provisions which criminalize the stirring up of racial hatred, the new proposals would engage the right to freedom of expression under ECHR Article 10.1. During the Second Reading debate, a number of speakers expressed concern that vigorous criticism of or disagreement with a set of religious beliefs or the practices of members of a religious group, or comedic representations of the group concerned, might lead to prosecution.[84] If this were to occur, it would be very likely to violate the right to freedom of expression under ECHR Article 10 as being a disproportionate interference with the freedom. The question is whether it would actually be likely to have that effect.

Earlier proposals on this subject

1.121 Measures similar to the one proposed have been discussed inside and outside Parliament on a number of occasions. The offences of stirring up racial hatred already protect those religious groups (for example, Sikhs and Jews) which are also regarded as ethnic groups for the purposes of the Race Relations Act 1976 and Part 3 of the Public Order Act 1986.[85] In a review of religious offences in 1985, the Law Commission unanimously recommended the abolition of the offence of blasphemy but was unable to agree whether it should be replaced with any other offence or offences.[86] When the Anti-terrorism, Crime and Security Bill was before Parliament in November and December 2001, the Government, concerned about anti-Muslim feeling in the wake of the attacks of 11 September 2001 in the USA, proposed abolishing the crime of blasphemy and introducing a new offence of stirring up religious hatred along the lines contained in the current Bill. At the time, these proposals were considered by us to be compatible with human rights,[87] but were rejected by the House of Lords because they were thought to raise concerns about human rights that needed fuller consideration than could be given in the course of the very abbreviated timetable for debate on the Bill. Subsequently similar measures were proposed the Religious Offences Bill, a private Member's Bill introduced by Lord Avebury in the House of Lords. That House established a Select Committee on Religious Offences in England and Wales which gathered a great deal of evidence and, after extensive deliberation, reported in April 2003.[88] The Committee's report contains a thorough account of the competing considerations relating to existing religious offences and of the options for reform, including new offences to combat incitement to religious hatred. The Committee reported: 'We believe there should be a degree of protection for faith, but there is no consensus among us on the precise form that it might take. We also agree that in any further legislation the protection should be equally available to all faiths, through both the civil and the criminal law'.[89] After noting that there is a gap in the law as it stands, the Committee reiterated that any protection should be equally available to people of all faiths and of none, and predicted that the best form of legislation on this subject was a matter on which 'Parliament alone can reach decision: the debate will be intense'.[90]

1.122 It is not for us to express a view as to whether the measures proposed in the current Bill represent a desirable policy. Our concern is only to assess whether they are likely to represent a threat to human rights. We approach this question against the background of relevant human rights law.

The state's obligations under national and international human rights law

1.123 The state is required to protect the right to freedom of religion, including the freedom to manifest a religion or belief in public or private, under ECHR Article 9, and to ensure that people do not suffer discrimination in the enjoyment of that right contrary to Article 14. These rights form part of English law by virtue of the Human Rights Act 1998. Although the right to freedom of religion may sometimes justify a restriction on the right to freedom of expression under ECHR Article 10, it is important to bear in mind the words of the European Court of Human Rights in Otto-Preminger Institut v Austria—

Those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to them. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to holders of those beliefs and doctrines.[91]

1.124 In Jersild v Denmark the Strasbourg Court held that the need to combat racism is a legitimate reason for limiting freedom of expression, as long as the limitation is proportionate to the aim.[92] In reaching that decision, the Court interpreted ECHR Article 10 in the light of the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR), to which the United Kingdom is a party.

1.125 The ICCPR protects both freedom of religion in Article 18 and freedom of expression in Article 19, and contains anti-discrimination provisions in Articles 2 and 26. Nevertheless, Article 20.2 of the ICCPR provides: 'Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.' However, the United Kingdom has entered a reservation with respect to this Article—

The Government of the United Kingdom interpret article 20 consistently with the rights conferred by articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order (ordre public) reserve the right not to introduce any further legislation. The United Kingdom also reserve a similar right in regard to each of its dependent territories.

1.126 In November 2001, the Human Rights Committee at the United Nations, in its Concluding Observations on the periodic report of the United Kingdom on its compliance with the ICCPR, recommended that this reservation should be withdrawn, and that the criminal law should be extended to protect people who were being subjected to harassment and attacks on account of their religion in the light of the terrorist attacks of September 2001.[93]

1.127 The Strasbourg Court in Jersild also took account of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (to which the United Kingdom is a party), in which States Parties undertake (among other things) 'to adopt immediate and positive measures designed to eradicate all incitement to, or acts of' racial discrimination, and to 'declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin …' This Convention does not cover religious discrimination. In Jersild, the relevant criminal provision had made it an offence to make 'a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief'. The European Court of Human Rights accepted that the obligations of the State under international human rights treaties, and the object and purpose of those treaties, 'are of great weight in determining whether the applicant's conviction, which—as the Government have stressed—was based on a provision enacted in order to ensure Denmark's compliance with the UN Convention [on the Elimination of All Forms of Racial Discrimination], was "necessary" within the meaning of Article 10 § 2.' Nevertheless, the Court decided that it was disproportionate to convict television journalists who merely broadcast a recording of racists expressing their racist views in order to demonstrate the nature of those views in the public interest, and who did not express support for the views in any way.[94]

1.128 In relation to the measures proposed in the Bill, this gives rise to a number of points.

• In view of the approach of the European Court of Human Rights to the stirring up of racial hatred and of Article 20 of the ICCPR and its effect on the interpretation of Articles 9 and 10 of the ECHR, it seems very likely that it would be a justifiable interference with freedom of expression and freedom of religion to make advocacy of religious hatred that constitutes incitement to hostility, violence or discrimination a criminal offence.
• In order to be justifiable for that purpose, legislation would have to be shown to be clearly aimed at it and proportionate to the goal. The proportionality test in this case should be a fairly strict one: if restrictions are wider than is reasonably necessary, they could threaten the freedom of public debate and religious expression and undermine the tolerance of other points of view which are essential foundations of our democratic and multi-faith society.
• The proposed legislation is arguably wider than necessary for the limited purpose set out above, in that it would catch words, conduct, publications and recordings which are likely to stir up religious hatred but do not advocate it, and it is not limited to words, conduct, publications and recordings which constitute incitement to discrimination, hostility or violence: it applies whenever the words, etc., are intended or likely to stir up hatred, without regard to the more remote consequences. As the then Home Secretary said in the Second Reading debate—
  • We are trying to stop groups of people who are prepared verbally, communicating through writing or the internet, to incite others to hatred because of someone's faith. That does not relate to argument about their faith. For instance, we will not stop anyone proselytising … I just want to ensure that people out there who feel threatened, which they do, who feel that society is not embracing them, which they do, and who feel that the existing law relating to mono-faith, in terms of nationality and faith, protects such people—those who incite hatred—but does not protect them, are covered. That is why we are seeking to extend the law.[95]
• These restrictions on freedom of expression and, potentially, of religious manifestation could still be proportionate to the legitimate aim. The wider they are, the greater is the risk that they will be regarded as disproportionate; but it is significant that the conditions for conviction under the legislation proposed in the Bill would set a higher threshold than Danish legislation at issue in Jersild did.
• The restrictions would be no greater than those in relation to racial hatred, but those were enacted in 1986, well before the Human Rights Act 1998, and were not subjected by Parliament to detailed scrutiny by reference to human rights standards.

1.129 In 2001 (as noted above) we considered that measures similar to those proposed in this Bill were likely to be compatible with Convention rights. We have had the opportunity to subject the issue to closer scrutiny and have had the chance to consider the discussion of the issues by the House of Lords Select Committee on Religious Offences.

1.130 We are therefore writing to the Government to ask why it considers that the provisions as currently drafted are likely to be regarded as a proportionate response to a pressing social need so as to justify the interference with ECHR Article 10.

ENTERING A DESIGNATED SITE AS A TRESPASSER, AND POLICE POWERS IN THE VICINITY OF PARLIAMENT

1.131 Clause 120 of the Bill would make it an offence to enter a designated site as a trespasser. The Secretary of State would be able to designate a site by order if it is comprised in Crown land, or in land belonging to Her Majesty in Her private capacity or to the immediate heir to the Throne in his private capacity, or it appears to the Secretary of State that it is appropriate to designate the site in the interests of national security. A defendant would have a defence if he or she could prove that he or she did not know had had no reasonable cause to suspect that the site had been designated. The Attorney-General's consent to prosecution would be required. The maximum sentence on summary conviction would be imprisonment for 51 weeks and/or a fine not exceeding level 5 on the standard scale. Clause 121 would permit a constable in uniform[96] to arrest a person without a warrant if the constable reasonably suspects that he or she is committing or has committed an offence contrary to clause 120. Under clause 122(1), the right of the public to have access to land under the Countryside and Rights of Way Act 2000, section 2(1) and (in Northern Ireland) Part III of the Countryside (Northern Ireland) Order 1983 would not apply to designated sites.

1.132 Clause 123 would allow the senior police officer present to give people directions in respect of their behaviour in an area to be designated by the Secretary of State by order. Although the clause carries the heading 'Directions as to behaviour in vicinity of Parliament' and some (but not all) of the kinds of behaviour subject to control are concerned with the Palace of Westminster and the workings of Parliament,[97] it would be possible to designate other places within a radius of one kilometre from the edge of Parliament Square.[98] The senior police officer would be empowered to give directions if he or she reasonably believes that a person's behaviour has had or could have the result of hindering any person from entering or leaving the Palace of Westminster, or hindering the proper operation of Parliament, or spoiling the visual aspect, or otherwise spoiling the enjoyment by members of the public, or any part of the designated area. The directions may require a person to cease or not to begin the behaviour, or to undertake it only at specified times or for specified periods, or to comply with conditions as to the number of participants and noise levels, or other relevant conditions. A direction takes effect immediately, and continues in force for a specified period not exceeding three months. Clause 124 would make it an offence for a person knowingly to fail to comply with a direction given under clause 123, unless he or she can prove that the failure arose from causes beyond his or her control.

1.133 The then Home Secretary explained the purpose of clauses 120 to 124 during the Second Reading debate—

Clauses 120 to 122 deal with trespass. They arise from the investigation that followed an intrusion in Windsor castle. Clauses 123 and 124 follow recommendations by the Procedure Committee. They have been described by some, including me, as a sledgehammer to crack a nut, but sometimes a sledgehammer is needed for that purpose, and this is a tough nut. It is important for people, including protesters, to be able to go about their business, and for people coming to our capital city to be able to enjoy the environment surrounding the Palace of Westminster. It is daft that we should have to pass a law for the purpose, but that is what happens when people make a monkey out of the existing law.[99]

1.134 The power under clause 120 to designate sites, on which trespass would be a criminal offence and public access to the land would be restricted, goes well beyond protecting royal residences against trespassory entry. It may extend to open land as well buildings and their immediate vicinity, and so far as it restricts people's access to land to which they would otherwise have had rights of access for purposes of pleasure or political action it may engage the right to freedom of peaceful assembly and freedom of expression under ECHR Articles 10 and 11. As Liberty has pointed out,[100] the power to designate sites in the interests of national security on the basis of the Secretary of State's subjective belief that this is necessary gives him very wide discretion, and could have been used to stifle protests against the Iraq war. What is more, it seems that a landowner would be able to prohibit the Secretary of State from giving notice of a site's designation by placing a notice in or on the building or land that is subject to the designation.[101] The Secretary of State could put a notice nearby, but there must be some doubt as to whether this would be adequate to make the designation, and hence the criminalisation of entry, sufficiently accessible to people affected by it. Taken together, these factors give rise to doubts as to whether the interference with rights under Articles 10 and 11 of the ECHR would be prescribed by law or proportionate to their legitimate aim so as to justifiable.

1.135 The powers under clauses 123 and 124 raise similar issues but in a much more acute form, as it is clear that they are aimed at an area of London that is much used, for very good reasons, by people bringing entirely legitimate political views and campaigns to the attention of members of the country's principal legislature. A designation, followed by a direction from a police officer, would make otherwise entirely lawful conduct into a criminal offence. The clauses thus allow an immediate and direct interference with the right to freedom of expression and freedom of peaceful assembly under ECHR Articles 10.1 and 11.1. The question is whether the interference can be justified under Articles 10.2 and 11.2.

1.136 We note that clause 123 makes no provision for notice of the designation to be given to people likely to be affected by it. This makes it possible that the provision actually authorising an interference with rights under Articles 10.1 and 11.1 would not be sufficiently accessible to those people to be 'prescribed by law' within the meaning of those words in Articles 10.2 and 11.2 of the ECHR.

1.137 Furthermore, we find it difficult to see what legitimate aim under Articles 10.2 and 11.2 would be served by requiring people to abstain from exercising rights under Articles 10.1 and 11.1 in order to avoid 'spoiling the visual aspect, or otherwise spoiling the enjoyment of members of the public, of any part of the designated area' (clause 123(2)(c)). While necessary restrictions would be permissible in order to protect the ability of Parliament to function and of people to have access to it, thus protecting public order and the rights and freedoms of others, it is not clear how optimising visual amenities can be said to justify an interference with freedom of expression and peaceful assembly. The power to interfere with those important rights is given to advance pressing social needs, not to turn the hub of London's political life into a pleasure ground. Even so far as the clause might serve a legitimate aim, it is not clear that the restriction would be proportionate to the aim.

1.138 We agree that these clauses are a sledgehammer to crack a nut. As such, there is a significant risk that, so far as they interfere with Convention rights, they would be regarded as disproportionate and hence unjustifiable. We have therefore written to the Government to ask why it considers that such a wide power to designate sites under clauses 120 to 124 and the power to give directions for the purposes of clauses 123 and 124 would be prescribed by law, serve a legitimate aim, and be proportionate to that aim for the purposes of ECHR Articles 10.2 and 11.2.

ANTI-SOCIAL BEHAVIOUR

1.139 Clauses 125 to 128 would amend the Crime and Disorder Act 1998 in a number of ways relating to anti-social behaviour orders (ASBOs). In terms of their human rights implications, the significant provisions appear to us to be clauses 127 and 128.

1.140 Clause 127 would amend section 1 of the 1998 Act to allow proceedings against a child or young person for the offence of breaching a requirements imposed by an ASBO to be reported at the discretion of the court. This would engage the right of the child to respect for his or her private life under ECHR Article 8. Instead of the normal rule under section 49 of the Children and Young Persons Act 1933 that proceedings involving children and young persons are not reported, there would be a presumption in favour of allowing reporting, at least to the extent of requiring the court to give its reasons if it gives a direction restricting reporting under section 45 of the Youth Justice and Criminal Evidence Act 1999.[102] During the Second Reading debate the then Home Secretary explained the purpose behind these provisions as being to 'allow local communities to be involved in the justice system by ensuring that breaches of antisocial behaviour orders can be publicised, so that people can see who is doing what and where it is being done'.[103]

1.141 We have some doubts as to this justification for interfering with Article 8 rights. We accept that the need to balance press freedom under ECHR Article 10 against the right of a child to respect for his or her private and family life under ECHR Article 8, coupled with the value of publicising ASBOs to allow breaches of them to be detected and reported, makes it unlikely that the provision would be intrinsically incompatible with Article 8. Nevertheless, the benefits of publicising a conviction for breach an order are less clear than those of publicising the making of an order, and we consider that there should be a balancing in each case on its own facts. The principle that young people should generally be protected against being publicly pilloried for criminal behaviour in their immature years has been established for over 70 years. It stems from an understanding that children are different from adults, and that the consequences of their behaviour should be different. This has been reinforced by two provisions of the Convention on the Rights of the Child, which does not form part of the law in the UK but to which the United Kingdom is a party. Article 3.1 provides—

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 40.1 provides—

States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

These provisions do not inevitably mean that it would be improper ever to publicise the fact that a child had been convicted of breaching a requirement of an ASBO. On the other hand, they make it clear that an assessment should be made in each case of the likely effect on the child of allowing reporting, taking account of the child's best interests and sense of dignity and worth. These factors should, we think, be taken into account by any court considering the exercise of its power to restrict reporting. As the provisions of the Convention on the Rights of the Child do not form part of domestic law in the United Kingdom, courts might not be aware of the relevance of the provisions.

1.142 We have therefore written to the Government to ask what steps it would take to ensure that the provisions of the Articles 3.1 and 40.1 of the Convention on the Rights of the Child will be brought to the attention of courts when considering, in the light of the proposals in clause 127, whether or not to restrict reporting.

1.143 Clause 128 would allow the Secretary of State to make an order providing that a local authority may contract out its functions in respect of ASBOs. This has considerable implications for the capacity of the state to ensure that guarantees of fundamental rights, particularly the right to respect for private life under ECHR Article 8.1 in respect of the control of sensitive personal information about a child subject to an ASBO, will be complied with. It is likely but by no means certain that a private individual or company to which functions are contracted out would be held to be a public authority for the purpose of section 6 of the Human Rights Act 1998, and so under an enforceable legal duty to act in a manner compatible with Convention rights. Nor is it certain that such individuals or companies would be familiar with the state's responsibilities under other human rights instruments, such as the Convention on the Rights of the Child.

1.144 We have therefore written to the Government to ask how it would ensure that any body to which a local authority is permitted to contract out its functions in relation to ASBOs would act in a manner compatible with Convention rights and will take into account the United Kingdom's obligations under the Convention on the Rights of the Child.[104]

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4   Bill 5-EN (Hereafter 'EN') Back

5   Appendix 1a Back

6   Not published here; available from the relevant organisation Back

7   Appendix 1b Back

8   Clause 37(1) Back

9   Clause 2(1).These are referred to in the Explanatory Notes as SOCA's "core functions": EN para. 75 Back

10   EN para. 78 Back

11   Clause 3(4)(a) Back

12   Clause 3(2)(a)-(d) Back

13   Clause 5(2)(c) Back

14   Clause 5(3) Back

15   Clause 32(1) Back

16   Clause 32(2)(a)-(c) Back

17   Clause 32(2)(f) Back

18   Clause 32(4) Back

19   EN para. 120 Back

20   Leander v Sweden (1987) 9 EHRR 433 at para. 48; Amann v Switzerland (2000) 30 EHRR 843 at para. 65 Back

21   Amann v Switzerland, op cit. at para. 65; Rotaru v Romania (2000) 8 BHRC, at para. 43 Back

22   Niemietz v Germany (1993) 16 EHRR 97 at para. 29; Halford v UK (1997) 24 EHRR 523 at para. 42 Back

23   EN para. 451 Back

24   Twelfth Report of Session 2003-04, Scrutiny of Bills: Fifth Progress Report, HL Paper 93, HC 603 at paras 1.28-1.30 and Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161, HC 537 at para. 105 Back

25   Leander v Sweden, op cit. at para. 48; Amann v Switzerland, op cit. at paras 65-67 Back

26   Kopp v Switzerland (1998) 27 EHRR 91 at para. 53; Amann v Switzerland, op cit. at paras. 69-70 Back

27   As defined in clause 2(1) of the Bill Back

28   Clause 3(1) of the Bill defines the relevant information in terms of information relating to crime generally, not merely serious organised crime. Back

29   Clause 5(3) of the Bill Back

30   In Rotaru v Romania (2000) 8 BHRC, at para. 58, the European Court of Human Rights held that where the relevant domestic law empowered the authorities to permit interferences necessary to prevent and counteract threats to national security, the ground allowing such interferences had not been laid down with sufficient precision. Back

31   As acknowledged in EN para. 120 Back

32   See, for the best-known exposition of the principle, Sir Nicolas Browne-Wilkinson VC at first instance in Marcel v Metropolitan Police Commissioner [1991] 2 WLR 1118. Back

33   See for example, Amann v Switzerland, op cit. at paras 58 and 76 ; Rotaru v Romania, op cit., at paras 57-58 Back

34   Clause 11(4) Back

35   Clause 11(5) and (6)(b) Back

36   EN para. 451 Back

37   Marper v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 4 All ER 193 Back

38   Clause 38(1) Back

39   EN para. 452 Back

40   Royal Commission on Criminal Procedure, Report, Cmnd 8092-I, 1981, London: HMSO. On powers of arrest see particularly pp. 40-52, paras. 3.61-3.93 Back

41   Seventh Report of the Criminal Law Revision Committee on Felonies and Misdemeanours, Cmnd 2659, 1965, London: HMSO Back

42   Criminal Law Act 1967, s. 2 Back

43   PACE, s. 24(4)-(7) Back

44   PACE, s. 24(2) as amended; see also Schedule 1A to the Act Back

45   PACE, s. 26, subject to the savings in Schedule 2 to the Act Back

46   See PACE s. 116 and Sched. 5 as amended Back

47   EN para. 221 Back

48   HC Deb, 7 December 2004, col. 1052 (an exchange with Mr. Dominic Grieve MP). See also Mr. David Heath MP at col. 1072, pointing out that a review of the arrest powers in 2002 had rejected the idea of abolishing the distinction between arrestable and other offences; and Vera Baird MP at col. 1088, pointing out that clause 101 would effectively make 'every offence arrestable, from parking on a yellow line or not having a light on a bicycle to murder, subject to a test of "necessity".' Back

49   Proposed new s. 24(1)-(3) Back

50   Clause 117(2) and (3) Back

51   Cl. 102 of and Schedule. 7 to the Bill Back

52   On the effect of changing 'serious arrestable offence' to 'indictable offence' see particularly Schedule 7, paras. 4, 6, 8, 13, 14, 15 and 16.Changing 'arrestable offence' to indictable has wider implications: see ibid., paras. 6, 7 (effect on power to impose conditions on or suspend solicitors' practising certificates), 10 and 11 (circumstances in which a court may order possession of dwelling houses let under secure or assured tenancies), and 12 (cross-border powers of arrest). Back

53   PACE, s. 30 Back

54   Schiesser v Switzerland (1979) 2 EHRR 417 at para. 29 Back

55   Cl. 103(1)-(4), (9) Back

56   Cl. 103(5) Back

57   Cl. 103(6), (7) Back

58   Cl. 105(2), which would insert new sub-ss. (1C) and (1D) in s. 8 of PACE Back

59   Cl. 105(8)(a), which would amend s. 16(3) of PACE Back

60   Cl. 104(11)-(15), amending Schedule. 1 to PACE. Such warrants could be issued by a High Court judge, Circuit judge or Recorder. The extension to a Recorder itself involves a watering down of the protection for privacy rights: See cl. 105(9), amending para. 17 of Schedule 1 to PACE. Back

61   Cl. 104(7), inserting a new sub-s. (2A) in s. 15 of PACE Back

62   Cl. 104(4), inserting a new sub-s. (1B) in s. 8 of PACE Back

63   Cl. 104(9), inserting a new sub-s. (3A) in s. 16 of PACE Back

64   Cl. 105(8), inserting a new sub-s. (3B) in s. 16 of PACE Back

65   This point is made by Liberty, Serious Organised Crime and Police Bill: Liberty's Briefing for the Second Reading in the House of Commons, December 2004, para. 23. See www.liberty-human-rights.org.uk Back

66   Cl. 108(2), inserting sub-ss. (6A)-(6C) in s. 61 of PACE Back

67   Cl. 108(5)(a), inserting new sub-s. (1ZA) in s. 63A of PACE Back

68   Cl. 108(7), inserting new sub-s. (1BA) in s. 64 of PACE Back

69   See Royal Commission on Criminal Procedure, Report, Cmnd 8092, pp. 67-68, paras. 3.134-3.137 Back

70   Cl. 110(2) substituting para. (c) of s. 65 of PACE Back

71   Proposed new s. 7(3) of the Protection from Harassment Act 1997, to be inserted by cl. 116(7)(a) of the Bill. Back

72   EN para. 467 Back

73   Criminal Justice and Police Act 2001, s. 42(7) Back

74   Proposed new s. 42(4) of the Criminal Justice and Police Act 2001: see cl. 118(2) of the Bill Back

75   Proposed new s. 42(7A) of the Criminal Justice and Police Act 2001, to be inserted by cl. 118(4) of the Bill Back

76   Para. 3 of Schedule 10 to the Bill. For comparison, s. 17 of the Public Order Act 1986 currently defines 'racial hatred' as meaning 'hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.' Back

77   Proposed amended version of s. 18 of the Public Order Act 1986 Back

78   Proposed amended version of s. 19 of the Public Order Act 1986 Back

79   Proposed amended version of s. 20 of the Public Order Act 1986 Back

80   Proposed amended version of s. 21 of the Public Order Act 1986 Back

81   Proposed amended version of s. 22 of the Public Order Act 1986 Back

82   Proposed amended version of s. 23 of the Public Order Act 1986 Back

83   See Appendix 1b, submission from the British Humanist Association Back

84   See for example, HC Deb, 7 December 2004, cols. 1054 (Mr. Jon Owen Jones MP and Mr. James Clappison MP), 1067 (Rt Hon David Davis MP), 1076-7 (Rev. Ian Paisley MP), 1081 (Mr. Richard Shepherd MP) Back

85   See Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548, HL Back

86   Law Commission Report No. 145, Offences against Religion and Public Worship, 1985, London: HMSO Back

87   Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, paras. 57-60 Back

88   Select Committee on Religious Offences, First Report of 2002-03, HL Paper 95-I Back

89   ibid., para. 133 Back

90   ibid., paras. 137-138 Back

91   Otto-Preminger Institut v Austria (1995) 19 EHRR 34 at p. 56 Back

92   (1994) 19 EHRR 1 at para. 30  Back

93   The Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland. 05/11/2001. CCPR/CO/73/UK, CCPR/CO/73/UKOT. (Concluding Observations/Comments), para. 14 Back

94   (1994) 19 EHRR 1 at paras. 31-37 Back

95   HC Deb, 7 December 2004, col. 1056 Back

96   The requirement for the constable to be in uniform would be abrogated by cl. 101 if it comes into law. Back

97   See cl. 123(2)(a) and (b), and compare (c) Back

98   Cl. 123(10) Back

99   HC Deb, 7 December 2004, col 1059. The Procedure Committee recommendations referred to are contained in its Third Report of Session 2002-03, Sessional Orders and Resolutions, HC 855, and led to the decision to dispense with most of the Sessional Orders and Resolutions customarily moved at the start of each parliamentary Session, retaining in an amended form the Order directed to the Metropolitan Police Commissioner to keep open and free from obstruction the environs of the parliamentary estate (see HC Deb, 23 November 2004, col. 3). It is envisaged that this Order, too, will be dispensed with if legislation of the kind contained in clauses 123 and 124 is passed. Back

100   Liberty, Serious Organised Crime and Police Bill: Liberty's Briefing for the Second Reading in the House of Commons, para. 35 Back

101   Cl. 122(2), (3) Back

102   Proposed new sub-s. (10D) and (10E) of section 1 of the Crime and Disorder Act 1998, to be inserted by cl. 127(2) of the Bill. Back

103   HC Deb, 7 December 2004, col. 1059 Back

104   See Appendix 1a Back

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Prepared 24 January 2005