Clause 90 Searches, examinations and fingerprinting: England and Wales

208.     Subsection (1) inserts after section 54 of the Police and Criminal Evidence Act 1984 (searches of detained persons) a new section 54 A. The new section provides that where an officer of at least inspector rank authorises it, a person who is detained in a police station may be searched or examined or both (a) for the purposes of ascertaining whether he has any mark on him which would identify him as a person involved in the commission of an offence or (b) for the purpose of facilitating the ascertainment of his identity.

209.     Subsection (2) of the new section 54A limits the grounds for authorising a search or examination under subsection (1)(a) to circumstances where the suspect withholds consent to an examination for a mark, or it is not practicable to obtain such consent, because for example the suspect is drunk and unable to give consent.

210.     Under Subsection (3) in a case to which subsection (2) does not apply, the officer can only authorise a search to establish identity where the person has refused to identify themselves or there are reasonable grounds for doubting whether he is the person who he says he is.

211.     Subsection (5) provides that any identifying mark found during a search or examination may be photographed with appropriate consent or where consent is withheld or it is not practicable to obtain it, a photograph may be taken without the appropriate consent.

212.     Subsection (6) provides that where a search or examination or the taking of a photograph are authorised, only constables and persons who are designated for the purposes of this section by the relevant chief officer of police, may carry out the search or examination or take the photograph. This subsection also applies section 117 of PACE, the use of reasonable force, to the exercise of the powers conferred by subsection (1) and (5) to designated non constables.

213.     Under Subsection (7) a person may not carry out a search or examination of a person of the opposite sex or take a photograph of any part of the body of a person of the opposite sex. Where a search involves the removal of more than outer clothing it will fall within the definition of a strip search for the purposes of PACE Code C and will be subject to the safeguards contained in the code in relation to the conduct of such a search.

214.     Subsection (8) prohibits the carrying out of an intimate search under new Section 54 A. An intimate search is a search of body orifices other than the mouth.

215.     Subsection (9) provides that a photograph of an identifying mark can be used by or disclosed to any person for the purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution and they can be subsequently retained, but then only used for a related purpose.

216.     Subsections (10) to (12) set out definitions of references to crime, references to ascertaining a person's identity, references to taking a photograph and marks.

217.     Subsection (2) of Clause 90 amends section 61 (4) of PACE which sets out the grounds on which an officer of at least superintendent rank can authorise the taking of fingerprints of a person detained at a police station without the appropriate consent. Authorisation can currently only be given where the officer has reasonable grounds (a) for suspecting the involvement of the person whose fingerprints are to be taken in a criminal offence; and (b) for believing that his fingerprints will tend to confirm or disprove his involvement. Subsection (2) amends the grounds in s.61 (4)(b) so that an officer may authorise the taking of a person's fingerprints if the prints will facilitate the identification of the person.

218.     By virtue of subsection (2) (b) the power will only apply to a person who is detained at a police station and refuses to identify himself or there are reasonable grounds for doubting whether he is the person who he says he is.

219.     The effect of the amendments to section 61 (4) of PACE as amended by section 82 of the Criminal Justice and Police Act 2001 is that fingerprints taken for identification purposes will be retained in the same way in which fingerprints taken in order to prove or disprove involvement in a crime are now retained. In other words, fingerprints will be retained regardless of whether the person is proceeded against or convicted, but can be used only for the purposes of the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

Clause 91 Searches, examinations and fingerprinting: Northern Ireland

220.     This clause covers extending the powers on finger printing to Northern Ireland.

Clause 92 Photographing of suspects etc.: England and Wales

221.     Clause 92 inserts a new section 64A after section 64 of PACE.

222.     Subsection (1) of the new section 64A provides a power to photograph a person who is detained at a police station with the appropriate consent or, where consent is withheld, without it.

223.     Subsection (2) provides that a person may, in order to take a photograph of a person, require the removal of any item or substance, such as face paint, worn on or over the whole or any part of that person's face or head and if the person does not comply with this requirement, they may remove the item or substance themselves.

224.     Subsection (3) limits who can take a photograph to constables and persons who are not constables but are designated for the purpose by the relevant chief officer of police. Subsection (3) also applies section 117 of PACE (power to use reasonable force) to persons other than constables in the exercise of the powers conferred under section 64A.

225.     Subsection (4) provides that photographs can be used by or disclosed to any person for the purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution and that they can be subsequently retained, but then only used for a related purpose.

226.     Subsection (5) sets out the definition of references to crime, investigation and prosecution.

227.     Subsection (6) defines references to taking a photograph to include references to using any process to produce a visual image.

Clause 93 Photographing of suspects etc.: Northern Ireland

228.     This section covers extending the powers on photographing to Northern Ireland

Clause 94 Powers to require removal of disguises Great Britain

229.     Subsection (1) of the clause will provide for the Criminal Justice and Public Order Act 1994 to be amended by the insertion of a new section (s 60AA)

230.     Subsection (1) of new section 60 AA sets out the circumstances in which these powers may be used. These circumstances are where

• an authorisation under section 60 of the Criminal Justice and Public Order Act 1994 is in force; or

• an authorisation under subsection (3) is in force.

231.     Currently an authorisation under section 60 may be given where a senior officer reasonably believes incidents involving serious violence may take place in any locality. It gives the police powers to stop and search pedestrians and vehicles for offensive weapons or dangerous instruments. It also gives power to require the removal of face coverings worn for the purpose of concealing identity and to seize any such items.

232.     Subsection (2) of that section confers power on any constable in uniform:

• to require the removal of any item which he reasonably believes a person is wearing wholly or mainly for the purpose of concealing his identity;

• to seize any item which he reasonably believes any person intends to wear wholly or mainly for that purpose.

233.     Subsection (3) describes the circumstances which must exist before the authorisation, referred to in subsection (1)(b), in order for an authorisation to be given. The circumstances are that a police officer of or above the rank of inspector reasonably believes that:

• activities may take place in that area that are likely, if they take place, to involve the commission of offences; and

• it is expedient in order to prevent or control the activities to give an authorisation.

234.     The authorisation means that the powers mentioned in para 219 shall be exercisable at any place within that locality for a period of 24 hours.

235.     Subsection (4) provides that an officer of or above the rank of superintendent may direct that the authorisation referred to in subsection (3) shall continue in force for a further 24 hours if it is expedient to do so, having regard to offences which have been committed in connection with the activities in respect of which the authorisation was given, or are reasonably suspected to have been so committed.

236.     Subsection (5) states that if an authorisation under subsection (3) is given by an inspector, he must, as soon as it is practicable to do so, inform an officer of or above the rank of superintendent.

237.     Subsection (6) specifies the contents of an authorisation. It must be in writing signed by the officer giving it and specify the grounds on which it is given; the locality in which the powers are exercisable; the period during which those powers are exercisable. A direction under subsection (4) shall also be given in writing or, where that is not practicable, be recorded in writing subsequently.

238.     Subsection (7) creates an offence of failing to remove an item when required to do so by a constable in the exercise of his power under this section. The penalty for this offence is, on summary conviction, imprisonment for a term not exceeding one month or a fine not exceeding level 3 on the standard scale.

239.     Subsection (8) states that the powers conferred by this section are in addition to, and not in derogation, of any power otherwise conferred.

240.     Subsections (2)-(4) of Clause 67 make minor consequential amendments to the Criminal Justice and Public Order Act 1994 and the Police and Criminal Evidence Act 1984, making a power of arrest available for the offence in s.60AA(7).

Clause 95 Powers to require removal of disguises : Northern Ireland

241.      Clause 95 will provide for the Public Order (Northern Ireland) Order 1987 to be amended by the insertion of a new Article 23A, which will make similar provision for Northern Ireland to that made for Great Britain by virtue of Clause 92. Accordingly, where a senior police officer reasonably believes that incidents involving the commission of offences may take place within a locality, he may issue an authorisation which will enable the police to exercise powers to require the removal of face coverings worn for the purpose of concealing identity, and to seize any such items. Under the Northern Ireland (Emergency Provisions) Act 1996, it was an offence to wear a mask or hood in a public place for the purpose of concealing identity. This provision was repealed when the Terrorism Act 2000 took effect.

242.     A consequential amendment is also made to the Police and Criminal Evidence (Northern Ireland) Order 1989 to provide that failure to comply with the requirement to remove a disguise is an arrestable offence.

Clause 96 Power to Stop and Search in Anticipation of Violence : Northern Ireland

243.     Clause 96 will provide for the Public Order (Northern Ireland) Order 1987 to be amended by the insertion of a new Article, which will make similar provision for Northern Ireland to that made for Great Britain by virtue of Section 60 of the Criminal Justice and Public Order Act 1994 which does not extend to Northern Ireland. Where a senior police officer reasonably believes that incidents involving serious violence may take place in a locality, he may issue an authorisation which will enable the police to stop and search pedestrians and vehicles for offensive weapons or dangerous instruments and to seize any such instruments.

Clause 97 Seized Articles: Northern Ireland

244.     Clause 97 will provide for the Public Order (Northern Ireland) Order 1987 to be amended by the insertion of a new Article 23C, which enable the Secretary of State to make regulations to govern the retention and disposal of things seized under new Articles 23A and 23B.

MOD and transport police

Clause 98 Jurisdiction of MOD police

245.     The Ministry of Defence Police ("MDP") is a civilian police force exercising full constabulary powers within its jurisdiction. This jurisdiction is defined in the Ministry of Defence Police Act 1987 ("the 1987 Act"), which is the principal legislation governing the force. The limitations on the jurisdiction of the force have been reviewed in the light of the threat of terrorism and of the changed deployment pattern of the MDP. The changes in deployment include the increased use of mobile patrols, involving movement between defence establishments and bringing MDP officers more into contact with the public than previously.

246.     The jurisdiction of the MDP is governed by section 2 of the 1987 Act. The overall effect is to give the force jurisdiction in relation to defence land, property and personnel within the United Kingdom and its territorial waters. The MDP is also able to operate on land in the vicinity of defence land where a constable of a local force has asked for assistance.

247.     The clause extends the MDP's jurisdiction, by amending section 2 of the 1987 Act.

248.     Subsection (2) amends section 2(2) of the 1987 Act, which deals with the places where the MDP have jurisdiction. Subsection (2) repeals the existing power in relation to acting on land in the vicinity of defence land in response to specific requests from a member of a local force. The repealed power is superseded by a new power provided for by subsection (4).

249.     Section 2(3)(b) of the 1987 Act currently provides for the MDP to have an additional jurisdiction in relation to defence personnel. It applies anywhere in the United Kingdom in which the MDP do not have jurisdiction under section 2(2) of the 1987 Act. The jurisdiction is thought to be confined to the alleged commission of offences by defence personnel. Subsection (3) extends the jurisdiction to offences against defence personnel; for example, an attempt to bribe defence personnel to disclose confidential information.

250.     Subsection (4) confers powers on the MDP where a request is made by a member of a Home Department police force, the Police Service of Northern Ireland, the British Transport Police or the United Kingdom Atomic Energy Authority Constabulary. The new powers supersede those repealed by subsection (2). Unlike those repealed by subsection (2), the new powers are restricted to the particular incident, investigation or operation in relation to which assistance is requested, but they are not restricted to the vicinity of defence land. They will be exercisable within the police area of a requesting Home Department police force, within Northern Ireland (in the case of the Police Service for Northern Ireland), within their railway jurisdiction (in the case of the British Transport Police), or (in the case of the United Kingdom Atomic Energy Authority Constabulary) where an officer of that force may act.

251.     Subsection (4) also deals with occasions on which MDP officers face emergencies where their normal jurisdiction would not apply. It may not be possible for the MDP officer to obtain timely authority from the local police force to deal with the incident. Subsection (4) empowers an MDP officer in uniform (or having proof of being an MDP officer) to act without a request for assistance from a Home Department or other police officer, in limited circumstances, if he reasonably believes that waiting for such a request would frustrate or jeopardise the purpose of his action. These circumstances are where the MDP officer has reasonable grounds for suspecting that an offence is about to be committed, is being committed or has been committed, or where he reasonably believes that action is necessary to save life or prevent or minimise personal injury.

Clause 99 Provision of assistance by MoD police

252.     This clause inserts a new section (section 2A) in the 1987 Act. It deals with where another police force requires extra resources to meet a special burden. The new section allows such assistance to be given by the MDP, where requested by the chief police officers listed, to enable their force to meet any special demand on its resources. It provides that, where MDP officers serve with other forces as a part of such assistance, they come under the direction of the chief officer of the force with which they are serving for the time being and have full powers of a constable of that force, (i.e. without the jurisdictional limits applying to MDP officers).

Clause 100 Jurisdiction of transport police

253.     This clause is to permit British Transport Police ("BTP") officers to act outside their normal railways jurisdiction. These measures are intended to improve the effectiveness of the BTP enabling it to play a fuller role in protecting the public from terrorism and other crimes.

254.     BTP constables already have jurisdiction on, and in the vicinity of, the railways and elsewhere on railways matters. They need however to move between railway sites and often have a presence in city centres, and BTP officers are frequently called upon to intervene in incidents outside their 'railways' jurisdiction. It is estimated that some such 8,000 incidents occur each year. In these circumstances BTP officers only have the powers of an ordinary citizen, despite being police officers fully trained to the standards of a Home Office force, and despite routinely dealing with the same range of incidents in the course of their railway activities.

255.     Subsection (1) allows a BTP officer to assist a member of a Home Department police force, the MDP or the UK Atomic Energy Authority Constabulary (UKAEAC) when assistance is requested by them. The BTP officer can only assist in relation to a single incident, investigation, or operation but will have the same powers and privileges of a constable of the requesting police force. This is to avoid confusion, so that there will be no difference in the powers available to the BTP officer on such an occasion and an officer from the other force whom he is assisting.

256.     Subsection (2) allows a BTP officer to intervene if he reasonably believes that an offence has been, is or is about to be committed; or in order to prevent injury or save life. In these circumstances the BTP officer will have the same powers and privileges of a Home Department police officer. A BTP officer can only act under subsection (2), if he satisfies the requirements of subsection (3).

257.     Subsection (3) limits the circumstances when a BTP officer can act under subsection (2). He must be able to show evidence that he is a BTP officer i.e. be in uniform or have documentary proof - e.g. his warrant card. In addition he can only act if he reasonably believes that waiting for a request for assistance from the police force with primary jurisdiction (i.e. the local Home Department force, MDP or UKAEAC) or waiting for one of their officers to act, would frustrate or prejudice the purpose of his intended action.

Clause 101 Further provisions about transport police and MoD police

258.     This clause gives effect to Schedule 7 that provides the BTP with additional police powers in certain circumstances. These powers are all currently available to local police force constables but not to the BTP. Certain similar powers are also extended to the MDP. The BTP and MDP are under the same restrictions as Home Department police forces regarding the application and use of these powers. Details of the amendments to the various Acts of Parliament are contained in the note on Schedule 7.

PART 11: RETENTION OF COMMUNICATIONS DATA

Overview

259.     Part 11 sets up a structure within which the Secretary of State can issue a code of practice relating to the retention of communications data by communications service providers, such as telephone and internet companies. Communications data is data relating to telephone, Internet and postal communications which does not include the substance of the communications itself. The Telecommunications (Data Protection and Privacy) Regulations 1999 regulate the retention of such data by communication service providers providing that such data can only be retained for certain specific commercial purposes. Otherwise it must be erased or made anonymous. Communications data can be a useful tool for law enforcement agencies and if held by a communications service provider will be accessible by a public authority under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 which is shortly to come into force. However, whilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply. Accordingly, communications service providers do not currently have a clear lawful basis for retaining communications data beyond the period that they require it for their own business purposes. Part 11 establishes a structure to regulate the continued retention of such data on national security and crime prevention grounds so that it may then be accessed by public authorities under the Regulation of Investigatory Powers Act 2000. Under clause 102 the Secretary of State can issue a voluntary code of practice which will provide a basis for retention of communications data. Clause 103 provides that if the voluntary scheme proves ineffective the Secretary of State may by affirmative order be authorised to impose mandatory retention directions on communications service providers. Clause 104 provides that the power to invoke the mandatory scheme in clause 103 will itself lapse unless renewed by affirmative order.

Clause 102 Codes and agreements about the retention of communications data

260.     Subsection (1) sets out that a voluntary code of practice will be drawn up and issued by the Secretary of State. The code will be applicable to communications providers and will apply to communications data that they have generated or is otherwise in their possession.

261.     Subsection (2) explains that the Secretary of State may enter into further agreements with specific communications providers, with the consent of both parties. These will specify in greater detail than the generic code the type of data that is retained, and the conditions of retention and retrieval. The aim of these individual agreements is to provide greater clarity as to each provider's retention practices for public authorities who are eligible under the Regulation of Investigatory Powers Act 2000 to access communications data.

262.     Subsection (3) puts a requirement on the Secretary of State to consult with those who may be affected by the code, or their representatives, before issuing or revising it.

263.     Subsection (4) requires the Secretary of State to publish the code of practice and any revised code in a way which brings it to the attention of the communications service providers to whom it applies.

264.     Subsection (5) sets out that the code and any agreements may contain provisions necessary to safeguard national security, to prevent or detect crime and to prosecute offenders. The code and agreements may therefore contain any provision relative to those ends. Data retained in accordance with the code will therefore be retained for national security and law enforcement purposes, without prejudice to the communication provider's own business purposes.

265.     Subsection (6) makes it clear that the code is voluntary: there are no penalties for non-compliance.

266.     Subsection (7) allows the code or any agreement drawn up under this section to be used in legal proceedings brought against a communications provider by a person whose communications data they hold. Adherence to the terms of the code or agreement may be used as evidence that the retention of data is justified for national security or law enforcement purposes. This provision is intended to prevent a communications provider facing civil liability for retaining data in accordance with the code when they have no further need of it for business purposes.

Clause 103 Directions about retention of communications data

267.     This clause permits the Secretary of State to issue compulsory directions if he is not satisfied that the operation of the voluntary code of practice is effective. Directions may only be given if the Secretary of State is authorised to do so by order.

268.     Subsection (1) provides that the Secretary of State may by order authorise the giving of directions under this section.

269.     Subsection (2) explains that the mandatory directions may apply to any of three categories: either all communications providers, a particular type of communications providers, or one or several specific communications providers.

270.     Subsection (3) explains that the statutory order authorising the giving of directions must specify the maximum period for which any communications provider can be directed to retain any particular type of data.

271.     Subsection (4) obliges the Secretary of State to consult with those who may be affected by the mandatory directions, or their representatives, before giving them. If the requirement is only being placed on particular communications providers (as in subsection 2(c) above), the Secretary of State must consult with them directly.

272.     Subsection (5) explains that any direction must be explicitly brought to the attention of those to whom it applies.

273.     Subsection (6) puts a duty on the communications provider to comply with any direction given under this section that applies to him.

274.     Subsection (7) sets out the consequences of non-compliance with any direction. The Secretary of State may bring civil proceedings against the communications provider, seeking an injunction, or other appropriate relief.

275.     Subsection (8) requires that the Secretary of State lay a draft of any order made under subsection (1) before Parliament and seek the approval of both the House of Commons and the House of Lords for that order.