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CRIME AND SECURITY BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Crime and Security Bill as brought from the House of Commons on 9th March 2010. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So, where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND OVERVIEW
Police powers of stop and search
3. The Bill contains provisions to reduce the reporting requirements on the police when they stop and search individuals.
Fingerprints and samples etc
4. The Bill contains provisions to give additional powers to the police to take fingerprints and DNA samples from people who have been arrested, charged or convicted in the UK, and from those convicted overseas of serious sexual and violent offences.
5. In response to the European Court of Human Rights judgment in the case of S and Marper v United Kingdom [2008] ECHR 1581, the Bill also sets out a statutory framework for the retention and destruction of biometric material, including DNA samples, DNA profiles and fingerprints, that has been taken from an individual as part of the investigation of a recordable offence. These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009.
Domestic violence
6. The Bill contains provisions to implement a recommendation from the Together We Can End Violence Against Women and Girls consultation published in March 2009. The provisions provide the police with the power to issue an alleged perpetrator of an offence
relating to domestic violence with a Domestic Violence Protection Notice, requiring the perpetrator to vacate the premises of the victim and not to contact the victim. The Notice must be heard by a magistrates’ court within 48 hours, whereupon a Domestic Violence Protection Order can be made, lasting for up to 28 days.
Gang-related violence
7. The Bill contains provision to amend the powers in Part 4 of the Policing and Crime Act 2009 under which the police or a local authority may apply to a court for an injunction against an individual for the purposes of preventing gang-related violence. In particular, the Bill provides that when a person aged 14 to 17 breaches such an injunction, the court may make a supervision order or a detention order.
Anti-social behaviour orders
8. The Bill contains provision requiring a family circumstances assessment to be carried out when an application for an anti-social behaviour order (ASBO) is made; and provision about the circumstances in which the court must make a parenting order on breach of an ASBO.
Private security
9. The Bill amends the Private Security Industry Act 2001 to enable the Security Industry Authority to introduce a licensing regime for private security businesses, in particular vehicle immobilisation businesses. Such businesses will be prevented from operating without a relevant licence, with penalties of up to five years’ imprisonment or a fine, or both. The Bill contains a provision to extend the Approved Contractor Scheme in the 2001 Act to enable in-house private security services to apply for approved status.
10. The Bill also amends the Private Security Industry Act 2001 to provide an independent avenue of appeal for motorists in respect of release fees imposed by businesses carrying out wheel clamping and related activities.
Prison security
11. The Bill implements a recommendation from the strategy document Extending Our Reach: A strategy for a new approach to tackling serious organised crime, which was published in July 2009. It amends the Prison Act 1952 to create a new criminal offence of possessing an unauthorised mobile phone, or component part, in prison. This offence also includes unauthorised possession of devices (other than mobile telephones) which are capable of accessing the internet or are otherwise capable of sending or receiving data.
Air weapons
12. The Bill amends the Firearms Act 1968 to create a new offence of failing to take reasonable precautions to prevent a person under the age of 18 from having unauthorised access to an air weapon.
Compensation of victims of overseas terrorism
13. The Bill provides for a compensation scheme for persons injured (including those fatally injured) as the result of a designated terrorist act which took place outside the United Kingdom and occurred on or after 18th January 2010.
Sale and supply of alcohol
14. The Bill amends the Licensing Act 2003 to enable licensing authorities to make an order restricting the sale and supply of alcohol between the hours of 3am and 6am in either the whole or a part of their area; such an order may be expressed to apply on every day, or only on certain days of the week. The effect of an order is that any premises licence, club premises certificate or temporary event notice does not (unless specific exemptions apply), authorise the sale or supply of alcohol between those times in the early morning.
Searches of controlled persons
15. The Bill amends the Prevention of Terrorism Act 2005 to insert new powers allowing a constable, for specified purposes, to conduct a search of a person subject to a control order and to seize and retain articles found.
TERRITORIAL EXTENT AND APPLICATION
16. Clause 58 sets out the territorial extent of the Bill. Different parts of the Bill have different extent:
- Clause 1, on police powers of stop and search, amends the Police and Criminal Evidence Act 1984 (“PACE”) and, like the provisions it amends, extends only to England and Wales;
- Clauses 2 to 7 on police powers to take fingerprints and samples, amend PACE and, like the provisions they amend, extend only to England and Wales (although clause 5(2), which amends the International Criminal Court Act 2001, also extends to Northern Ireland);
- Clauses 8 to 13 make equivalent provision to that in clauses 2 to 7 for Northern Ireland and extend only to Northern Ireland (although clause 11(2) which amends the International Criminal Court Act 2001, also extends to England and Wales);
- Clause 14 on police powers to retain and destroy fingerprints and samples etc, extends to England and Wales only. Clause 15 makes equivalent provision for Northern Ireland;
- Clause 16 makes provision in relation to material subject to the Criminal Procedure (Scotland) Act 1995 and, like that Act, extends only to Scotland;
- Clause 17 and 18 amend the Terrorism Act 2000 and, like the provisions amended, extend to the whole of the United Kingdom;
- Clause 19 amends the International Criminal Court Act 2001 and, like the provisions amended, extends to England and Wales and Northern Ireland;
- Clause 20 amends the provision in the Counter-Terrorism Act 2008 relating to fingerprints and non-intimate samples taken from controlled persons in Scotland and extends to the whole of the United Kingdom;
- Clauses 21 to 23 (which make further provision in relation to the retention, destruction and use of fingerprints and samples) extend to the whole of the United Kingdom;
- Clauses 24 to 33 (domestic violence) extend only to England and Wales;
- Clauses 34 to 39, on injunctions in respect of gang-related violence, amend Part 4 of the Policing and Crime Act 2009 and, like that Part, extend only to England and Wales;
- Clauses 40 and 41, on ASBOs, amend Part 1 of the Crime and Disorder Act 1998, and, like that Part, extend only to England and Wales;
- Clauses 42 to 44 and the Schedule amend the Private Security Industry Act 2001 and, like that Act, extend to the whole of the United Kingdom;
- Clause 45 (offences relating to electronic communications devices in prison) amends section 40D of the Prison Act 1952 and, like that section, extends only to England and Wales;
- Clause 46 (offence of allowing minors access to air weapons) amends the Firearms Act 1968 and, like that Act, extends to England and Wales and Scotland;
- Clauses 47 to 54 (compensation for victims of overseas terrorism) extend to the whole of the United Kingdom;
- Clause 55 amends the Licensing Act 2003 by conferring new powers on licensing authorities to restrict the sale and supply of alcohol in their areas and, like that Act, extends only to England and Wales;
- Clause 56 (persons subject to control order: powers of search and seizure) amends the Prevention of Terrorism Act 2005 and, like that Act, extends to the whole of the United Kingdom;
- The final clauses (clauses 57 to 60) extend to the whole of the United Kingdom.
Territorial application: Wales
17. The Bill applies to Wales in the same way as to England.
Territorial application: Scotland
18. The Scottish Parliament’s consent has been granted for the provisions in the Bill that trigger the Sewel Convention (by way of a Legislative Consent Motion passed on 11th February 2010). These provisions relate to the requirement for businesses to be licensed by the Security Industry Authority. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
19. The provisions of the Bill that relate to the retention, destruction and use of relevant physical data held under the Criminal Procedure (Scotland) Act 1995 (clause 16), the Terrorism Act 2000 and the Counter-Terrorism Act 2008 (clauses 18, 20 and 21) and on air weapons (clause 46), and compensation for victims of overseas terrorism (clauses 47 to 54) extend to Scotland and relate to reserved matters.
Territorial application: Northern Ireland
20. Many of the provisions of the Bill on police powers on fingerprinting and DNA (clauses 5(2), 8 to 13, 17 to 23), the provisions relating to the private security industry (clauses 42 to 44) and those relating to compensation for victims of overseas terrorism (clauses 47 to 54) extend to Northern Ireland and relate to excepted matters.
21. The Bill will not require a Legislative Consent Motion to be passed by the Northern Ireland Assembly Government.
COMMENTARY ON CLAUSES
Police powers: stop and search
Clause 1: Records of searches
22. Clause 1 amends section 3 of the Police and Criminal Evidence Act 1984 (“PACE”) which specifies the information which constables must record when they stop and search a person.
23. Subsection (3) provides that, where a person is arrested as a result of a stop and search and taken to a police station, the constable who carried out the search must ensure that the search record forms part of the person’s custody record (rather than completing a separate form). In all other cases the constable must make the record of the search at the time it takes place or as soon as practicable after completion of the search.
24. Subsection (4) removes the requirement for constables to record the person’s name (or a note otherwise describing the person) and description of any vehicle searched.
25. Subsection (5) further reduces the recording requirements for a stop and search. The previous section 3 of PACE and Code of Practice A required ten items of information to be recorded, including whether anything was found and whether any injury or damage was caused. These are reduced to the following seven items of information:
- Identity of the officer carrying out the stop and search.
26. Subsection (6) provides that the requirement to state a person’s ethnic origins is a requirement in the first place to record the person’s self-defined ethnicity. However, if a constable thinks that this is different from their own assessment then they will also record their own assessment.
27. Subsections (2), (7) and (8) amend section 3 of PACE to take account of the fact that the person who makes the record in the custody record may not be the constable who carried out the search.
28. Subsection (9) reduces the time within which a person can request a copy of the search record from 12 months to 3 months after the date of the search.
Taking of fingerprints and samples: England and Wales
Clause 2: Powers to take material in relation to offences
29. Subsections (1) and (5) amend sections 61 and 63 of PACE to enable biometric data (fingerprints and non-intimate samples respectively) to be taken from people who have been arrested for a recordable offence, either if they have been released on bail before their biometric data have been taken or if their biometric data have been taken and subsequently have proved inadequate for analysis and/or loading onto the national fingerprint or DNA database. For the purposes of this clause, it does not matter when the arrest took place, so the police may take biometric data from a person who was arrested before the clause comes into force.
30. “Recordable offence” is defined in sections 118 and 27 of PACE. In practice, all offences which are punishable with imprisonment are recordable offences, as are around 60 other more minor offences which are specified in regulations made under section 27.
31. Subsection (2) amends section 61 of PACE to enable fingerprints to be taken from people who are not detained at a police station but who have been charged with a recordable offence, where either their fingerprints have not been taken in the course of the investigation or their fingerprints have been taken and subsequently have proved inadequate for analysis and/or loading onto the national database. Currently, PACE allows the taking of the fingerprints of a person who has been charged, but only if the person is detained at a police station. Again, it does not matter whether the person was charged before the commencement of the clause.
32. Subsection (3) re-enacts, with some modifications, the existing power in section 61 of PACE to take fingerprints from people who have been convicted, cautioned, warned or reprimanded for a recordable offence (before or after commencement). The re-enactment contains limitations on the exercise of the power. In future, fingerprints may only be taken under this power with the authorisation of an officer of at least the rank of inspector who must be satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime. The person must not have had their fingerprints taken since the conviction, caution, warning or reprimand or, if they have, the fingerprints must have proved inadequate for analysis and/or loading onto the national database.
33. Subsection (4) secures that any power to take fingerprints without consent under section 61 of PACE may be exercised by any constable, whether the person is in police detention or not.
34. Subsection (6) extends the power in PACE to take non-intimate samples from persons who have been charged. The power is extended so as to enable the police to take a non-intimate sample from a person who has been charged with a recordable offence in circumstances where the person has had a sample taken previously, from which a DNA profile has been created, but the sample has since been destroyed and the person now claims that the DNA profile did not come from his sample. As explained below, the provisions of the Bill will oblige the police to destroy all DNA samples within six months of their being taken.
35. Subsection (7) re-enacts the existing power to take non-intimate samples after conviction. But it also now includes a power to take non-intimate samples following a caution, reprimand or warning (which is already possible in the case of fingerprints). This modified power is subject to the same limitations as are provided for in relation to the taking of fingerprints after conviction (see the discussion of subsection (3) above).
36. The power may be exercised in relation to convictions, cautions, reprimands and warnings occurring before commencement. However, this is subject to the existing restriction in subsection (9A) of section 63, by virtue of which a non-intimate sample may not be taken from a person convicted prior to 10th April 1995 unless the person is one to whom section 1 of the Criminal Evidence (Amendment) Act 1997 applies: that is, that the offence was one specified in Schedule 1 to the Criminal Evidence (Amendment) Act 1997 (primarily sexual and violent offences) and the person is in prison or detained under the Mental Health Act 1983 at the time the sample is to be taken. The Bill also now secures that a non-intimate sample may not be taken from a person cautioned before that date (see subsection (8)).
37. Subsection (9) amends section 1 of the Criminal Evidence (Amendment) Act 1997, which is referred to in section 63(9A) of PACE (described above). The amendment to the 1997 Act made by subsection (9) means that a sample may be taken from a person convicted before 10th April 1995 of an offence in Schedule 1 to that Act even if he is no longer in prison or detained.
38. Subsection (10) amends section 2 of the Criminal Evidence (Amendment) Act 1997. The effect of this amendment is that a non-intimate sample may be taken from a person who has at any time been detained following acquittal for an offence on grounds of grounds of insanity or was found unfit to plead. Currently, the person must be detained at the time the sample is to be taken.
Clause 3: Powers to take material in relation to offences outside England and Wales
39. Subsections (1) and (4) enable the police to take fingerprints and non-intimate samples from a person convicted of a qualifying offence (see clause 7) outside England and Wales, whether the conviction occurred before or after the coming into force of these provisions. The person must not have had their fingerprints or sample (as the case may be) taken previously under the respective powers or, if such data have been taken previously, it must have proved inadequate for analysis and/or loading onto the national database. The taking of the fingerprints or non-intimate sample must be authorised by an officer of at least the rank of inspector who must be satisfied that taking the sample is necessary to assist in the prevention or detection of crime.
40. Subsection (2) provides the police with the power to take an intimate sample from a person convicted of a qualifying offence outside England and Wales where two or more non-intimate samples have been taken under the powers provided in subsection (4) but have proved insufficient and that person consents. The taking of the sample must be authorised by an officer of at least the rank of inspector who must be satisfied that taking the sample is necessary to assist in the prevention or detection of crime.
Clause 4: Information to be given on taking of material
41. Clause 4 re-enacts the provisions in PACE relating to the information given to those from whom biometric data are taken without consent, with modifications, and applies these provisions to the new powers to take biometric data. In relation to fingerprints and non-intimate samples, the result is that a person must be informed of the reason for taking the biometric data, the power being used, and the fact that authorisation has been given (where authorisation is necessary). A police officer (or designated detention officer) must also inform the person that his data will be subject to a speculative search (in other words that the reference samples will be compared with those already on the existing databases). Those matters must then be recorded as soon as practicable after the data has been taken. Similar information and recording requirements apply in relation to the taking of intimate samples as well as a requirement to record the fact that the person gave their consent to the intimate sample being taken. In relation to the taking of intimate and non-intimate samples prior to conviction, the existing requirement to specify the nature of the offence in which it is suspected that the person has been involved is preserved.
Clause 5: Speculative searches
42. Clause 5 adds to the existing provisions in PACE that permit the speculative searching of biometric data so that such searches can be carried out in relation to samples and fingerprints taken using the new powers in this Bill.
Clause 6: Power to require attendance at police station
43. Clause 6 inserts a new Schedule 2A into PACE which sets out the powers to require attendance at a police station in respect of both the existing and new powers to take biometric data. For each power in PACE to take biometric data from those no longer in police detention (whether existing or which is being inserted by these provisions), there is a power to require a person to attend a police station for the purpose of taking those data, and for a constable to arrest a person who does not comply with a requirement to attend.
44. The Schedule puts some time limits on the power to require attendance. In cases where fingerprints or samples of a person arrested or charged are being taken because the previous ones were inadequate in some way, the power must be exercised within six months of the day on which the relevant police officer learnt of the inadequacy. There are also time limits where the fingerprints or samples are to be taken under new section 61(5B) (fingerprints from person charged), section 61(6) (fingerprints from person convicted), new section 63(3A) (non-intimate sample from person charged) and new section 63(3B) (non-intimate sample from person convicted) of PACE. But the time limits do not apply in cases where a person has been convicted of a qualifying offence or, in the case of non-intimate samples, where the person is convicted of an offence prior to 10th April 1995 and he is a person to whom section 1 of the Criminal Evidence (Amendment) Act 1997 applies (see above). In these cases the power to compel attendance may be exercised at any time.
45. Paragraph 6 of new Schedule 2A to be inserted into PACE provides that where a person’s fingerprints have been taken under section 61 of PACE on two occasions in relation to any offence, he may not be required to attend a police station to have his fingerprints taken again under that section in relation to that offence without the authorisation of an officer of at least the rank of inspector. Paragraph 14 imposes the same requirement for non-intimate samples taken under section 63 of PACE.
46. Paragraph 15 of new Schedule 2A stipulates that where authorisation is required for the taking of fingerprints or a sample this must be obtained before a person is required to attend the police station.
47. Paragraph 16 of new Schedule 2A makes provision regarding the time a person shall be given to attend a police station and the ability of a person to vary the date or time of attendance.
Clause 7: Qualifying offence
48. Clause 7 defines the “qualifying offences” referred to in other provisions dealing with biometric material. These offences are serious violent, sexual or terrorist offences, and also include the offences of aiding, abetting, conspiring etc the commission of such offences. The list of qualifying offences may be amended by order, using the affirmative resolution procedure (see subsections (3) and (4)).
Taking of fingerprints and samples: Northern Ireland
49. Clauses 8 to 13 make provision for Northern Ireland equivalent to that made for England and Wales by clauses 2 to 7.
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