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(a) a serious offence by reason of which P is a qualifying offender,
(b) a serious offence which was taken into consideration by a court in determining the sentence imposed on P for an offence by reason of which P is a qualifying offender, or
(c) a serious offence committed by another person which is associated with-
(i) an offence by reason of which P is a qualifying offender, or
(ii) an offence which was taken into consideration by a court in determining the sentence imposed on P for such an offence.
(a) in the case of an offence under the law of England and Wales, it is an indictable offence,
(b) in the case of an offence under the law of Scotland, it is an offence triable on indictment (whether or not it is exclusively so triable),
(c) in the case of an offence under the law of Northern Ireland, it is an offence which, if committed by an adult, is punishable on conviction on indictment (whether only on conviction on indictment or either on conviction on indictment or on summary conviction),
(d) in the case of a foreign offence, the act constituting the offence-
(i) at the time it was done, would have constituted an offence within paragraph (a), (b) or (c) if it had been done in any part of the United Kingdom, and
(ii) would also constitute such an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it."
(a) in the case of a UK service offence-
(i) the act constituting the offence is a serious offence within subsection (1A)(a),
(ii) the act constituting the offence, if done in England and Wales, would be a serious offence within subsection (1A)(a), or
(iii) the offence is within subsection (4B);
(b) in the case of a foreign service offence, the act constituting the offence-
(i) at the time it was done, would have constituted a serious offence within subsection (1A) or an offence within subsection (4B) if it had been done in any part of the United Kingdom by a member of Her Majesty's forces, and
(ii) would also constitute such an offence if it were done in any part of the United Kingdom by a
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(a) section 24(1) of the AA 1955 or of the AFA 1955, section 2(1) of the NDA 1957 or section 2(1) of the AFA 2006 (misconduct on operations),
(b) section 25 of the AA 1955 or of the AFA 1955, section 3 of the NDA 1957 or section 1 of the AFA 2006 (assisting an enemy),
(c) section 26(1) of the AA 1955 or of the AFA 1955, section 4(1) of the NDA 1957 or section 3 of the AFA 2006 (obstructing operations),
(d) section 30(a) or (b) of the AA 1955 or of the AFA 1955, section 5(a) or (b) of the NDA 1957 or section 4(1) or (2) of the AFA 2006 (looting),
(e) section 31 of the AA 1955 or of the AFA 1955, section 9 of the NDA 1957 or section 6 of the AFA 2006 (mutiny), or
(f) section 32 of the AA 1955 or of the AFA 1955, section 10 of the NDA 1957 or section 7 of the AFA 2006 (failure to suppress mutiny)."
"(a) the relevant offence is within paragraph (a) of section 148(1) and the respondent's conviction for it is subsequently quashed, or
(b) the relevant offence is within paragraph (b) or (c) of that section and the respondent's conviction for the offence (or, if more than one, all of the offences) by virtue of which the relevant offence is within either of those paragraphs is (or are) subsequently quashed."
"(1) The Secretary of State must, as soon as possible and not later than three months after Royal Assent, amend Code D made under section 67(3) of the Police and Criminal Evidence Act 1984 (c. 60) (codes of practices-supplementary) as follows.
"3.4(a) Where an officer takes a photograph or photographs of an individual who has not been arrested, those photographs
29 Oct 2009 : Column 1303
3.4(b) Where an officer takes a photograph or photographs of an individual who has been arrested but not charged with any criminal activity, those photographs must be destroyed as soon as possible after the decision has been taken not to charge the individual, but at the latest within 14 days of the day on which that decision was taken.
Baroness Miller of Chilthorne Domer: My Lords, Amendment 117A moves us on to the issue of police retention of photographs, a matter on which I tabled an amendment in Committee. We had a lively debate in Committee. I was encouraged to return to the issue by the noble Lords, Lord Monson and Lord Henley, who reminded us that this is only part of the wider issue of the retention of DNA, and the regime that we need so that innocent individuals do not have all sorts of information, including photographs, retained inappropriately.
Since Committee stage in July, the Guardian has this week carried out quite a lot of investigation into the scale of the retention of photographs. We were very surprised. We knew that there was a problem, but we had not realised that the sheer scale was as great as that uncovered by the Guardian. In Committee the Minister gave his main reason for rejecting the amendment. He said:
I must ask him again: what is the appropriate vehicle? The PACE codes govern the retention of all evidence collected, of which photographs are one example, so there could be no more appropriate place than the PACE codes.
Secondly, there is still the problem that there seems to be no statutory accountability of the three national police units that are responsible for the policing of domestic extremism, as they call it. We would call it the right to protest and demonstrate. The very unfortunate terminology of "domestic extremism" being applied to innocent people who do nothing more than go on a protest is a move that must be strongly resisted. It is only on the basis that they attend protests that such people are photographed. There is a very serious issue here, which is why we have returned to it on Report.
I know that the Minister will say that we should wait for Denis O'Connor, the Chief Inspector of Constabulary, to release his national review of the policing of protests. The Minister would be wrong. We do not need a review to know that the photographs of innocent people-people who are not being charged with any offence-should not be retained. For the Minister to quote the review of the policing tactics at protests is simply a red herring. Nor do we need a review to know that the present situation has got so out of control. Anton Setchell, who is in command of ACPO's domestic extremism unit, apparently said that people who find themselves on the databases,
However, people are worried. We have had a number of people listed on the so-called "sus" cards who were very worried about being on the cards, and who were very worried that their children had been photographed. There can be no excuse for the retention of these photographs past the point where police know whether they are going to charge anyone or not or whether any crimes have been committed, other than for the purpose of building up a database of innocent people, which begins to smack of a police surveillance state, of which we are all very wary.
Lord Henley: My Lords, the noble Baroness, Lady Miller, quite rightly said that I voiced some sympathy for her amendments when she moved them in July. I suggested that she should come back to them. However, I note that the amendment that she has moved today is significantly different from the earlier version. In July she was asking for photographs to be destroyed after a year if they are not being used, while that has now been reduced rather drastically to two weeks. It is possible that the noble Baroness has diluted the strength of her argument by producing quite such a tight timeframe. Nevertheless, the Minister, back in July, made a suggestion that a better method than amending PACE codes, which was one option, might be to work with ACPO to ensure that all forces are aware of the implications of the judgment in Wood, which found that the taking of photographs at public order events is not unlawful, but that the continuing retention of photographs will generally have to be justified by the existence of clear grounds for suspecting that the individual photographed may have committed an offence at the event in question.
We would be interested to hear more details from the Minister about what steps the Government have taken in the months since then to engage with ACPO in this way. For the moment, I think we prefer that approach, and would prefer to hear whether the Government have done anything in that direction, rather than endorsing the noble Baroness's rather overrestrictive amendment.
Lord Bach: My Lords, I am grateful to the noble Baroness, Lady Miller, for raising this important issue again. However, it is an entirely different amendment to the one that she moved in July, and I will come to that in a moment. We share her desire to see these matters addressed, but are clear that the route to ensuring the proper use and retention of photographs is not more legislation, but compliance with the statutory framework that already exists. Without going into the details of the Data Protection Act, or the management of police information guidelines, surely the key principles are that the police, or any public authority, need to be very clear about the purposes and reasons for which they are taking, retaining and storing images of any individual-protester or otherwise-and that they need to justify those reasons.
"Where an officer takes a photograph or photographs of an individual who has not been arrested, those photographs must be destroyed as soon as possible, but at the latest within 14 days of the day on which the photograph was taken".
Is it seriously being suggested that the law should be changed so that whatever the circumstances, a photograph of someone who has not been arrested within 14 days after the photograph was taken should be destroyed? If so, that would be a fantastic advantage to those who have committed criminal offences-they would be mad not to hide themselves away for 14, or 15, days, because, if they had not been arrested by that stage, the photographs that might well be valuable identification evidence against them would have to be destroyed. It is completely irresponsible to suggest that this amendment be implemented and become the law of the land. Although there is every justification in broad terms for bringing this subject back, this part of the amendment would lead to absolute chaos. Anyone who was guilty of an offence, where the evidence of identification was the photograph, could simply escape justice by avoiding being arrested for 15 days. That would be an absurd piece of law, which would mean that many criminals would escape justice for no good reason at all.
The police may need to retain images for longer than 14 days for a variety of reasons: for evidential purposes, of course; the photographs may be of assistance in responding to complaints that are made against them or others; for legal challenges, or to tackle criminal activity. The retention of photographs is important for the complaints system. If we consider the G20 protests, the Independent Police Complaints Commission will have examined images taken by the Metropolitan Police when investigating complaints. Surely the noble Baroness and others would support retention of those images by the police, to ensure that any complaints were properly dealt with, but if the person involved had not been arrested within 14 days, those photographs would have to be destroyed forthwith. That on its own would be a reason for opposing this amendment. While the current legislative framework acknowledges the need for retention, it does not allow police to retain information without valid reason.
It comes down to proper guidance and training, to ensuring that officers understand the guidance, and leadership to ensure that officers have this training. ACPO is already committed to ensuring that these issues are addressed in revised guidance that also picks up wider lessons from the reviews into the policing of the G20 protests and the Kingsnorth climate camp, and that training for public order commanders flags the importance of this issue.
The HMIC review on policing protest is due to be published later this year and there will no doubt be important learning for police forces to pick up from that thorough review. The Home Office will also be setting out in its policing White Paper, due out later this year, the key principles for the policing of protest and how they need to be embedded in policing operations. Part of that will touch on the use and retention of photographs. The retention of photographs has to be assessed on a case-by-case basis. Police will have to
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The noble Baroness still thinks that PACE code D is the appropriate place to change the law. She knows that we disagree. She will be aware that the Police and Criminal Evidence Act governs the taking, retention and use of photographs of persons detained at a police station, as well as photographs taken on the street of people who have been arrested or detained by a police community support officer or given a fixed penalty notice. PACE code D also sets out the procedures for conducting identification parades to enable witnesses and victims to identify suspects. These powers are focused on evidence of either the identity of the person suspected of the offence or evidence of the offence in question. The amendment would extend the scope of the PACE code D provisions to all images taken by the police, including intelligence information. We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs taken by the police. Article 3.4 of PACE code D relates to the procedures governing the conduct of identification procedures when the identity of a suspect is known, not the retention of images. If this change to PACE code D were to take place, the effect would be confusing.
Baroness Miller of Chilthorne Domer: My Lords, the debate was helpful and has narrowed down the issues. I can appreciate the comments of the noble Lord, Lord Henley, that while in principle the retention for a long time of innocent people's photographs is unacceptable, he finds 14 days too short a period. I accept the arguments that he and the Minister made whereby there may be a difficultly with 14 days, but the Minister is missing the point. It is one thing when the police are normally taking photographs of a suspect because they have actually committed an offence, but I was talking about all the photographs taken of people who have committed no offence, other than to exercise their right as citizens to take part in a peaceful demonstration. The Minister will no doubt say that some of them may have committed an offence and that the police may need to keep those photographs to identify them, but that is a hypothetical situation.
Photographs are taken of vast numbers of innocent people as they enter and leave openly advertised public meetings or demonstrations. These images of people, who it is accepted are innocent, are put on force-wide databases-and that is about chronicling campaigners' political activities. It is that which is unacceptable.
I understand why a period of 14 days has not found favour on the Conservative Front Bench, but an important issue remains. It is so serious that I shall take it away and consider it further. Although I shall not press it today, I do not intend to leave the matter to rest, because the principle here is as important as that regarding the retention of innocent people's DNA. For that reason, I hope to return to the issue at some point. In the mean time, I beg leave to withdraw the amendment.
(a) omit "that at any time",
(b) at the beginning of paragraph (a) insert "that at any time",
(c) before "and" at the end of that paragraph insert-
"(aa) that the correct fee is paid under section 19(4),", and
(d) at the beginning of paragraph (b) insert "that at any time"."
Lord Tunnicliffe: These amendments fill a small gap in the Bill as currently drafted. Noble Lords may be aware that the Government have introduced a new two-tiered structure for the fee which data controllers pay to the Information Commissioner to be registered as a data controller. This replaces the existing flat-fee structure. The notification fee for tier 1 data controllers will remain at £35 while the fee for tier 2 data controllers will be £500. The higher tier will encompass all data controllers with 250 or more members of staff and a turnover of £25.9 million or more, as well as all public authorities with 250 or more members of staff. We estimate that that represents around 5 per cent of all data controllers.
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