Joint Committee On Human Rights Minutes of Evidence

Memorandum by the Home Office

  This memorandum is submitted by the Home Office in response to the request for comments on the Criminal Justice and Police Bill in a letter from the Chair to the Joint Committee on Human Rights to the Home Secretary of 15 February 2001.

  2.  The Home Secretary has made a statement under section 19(1)(a) of the Human Rights Act 1998 indicating that in his view, the provisions of the Bill are compatible with the Convention rights. He believes that, where the Convention rights are engaged, the proposals are a balanced and proportionate response to a pressing social need and that the judgements he has made about the balance to be struck between competing rights and responsibilities can be objectively justified.

  3.  The jurisprudence of the European Court of Human Rights [1]and the early jurisprudence of the English courts on the Human Rights Act[2] has established that the legislature and executive have a margin of discretion in forming a view as to whether particular measures are justified within the terms of those articles of the ECHR which permit of exceptions.

  4.  Many of the provisions in the Bill confer discretionary powers on public authorities. In the government's view, all these powers are capable of being exercised in a way which is compatible with the Convention. Those on whom the powers are conferred—the police, local authorities, the Secretary of State, government departments, the courts—will be obliged in accordance with section six of the Human Rights Act to exercise them in a way which is compatible with the Convention rights.

  5.  This memorandum is in response to the specific questions on the Bill raised by the Committee.


(A) Please could you inform the Committee of the factual or other considerations which led you to decide that there is a pressing social need for a nation-wide power to designate places under these provisions


  6.  According to the British Crime Survey[3] around 40 per cent of violent crime is committed while the offender is under the influence of alcohol. 70 per cent of all local crime audits conducted by the crime and disorder partnerships identify alcohol misuse as an issue, which needs to be tackled. 125,000 facial injuries are suffered by people in Britain each year in violent circumstances. In 61 per cent of cases, either the victim or the assailant had been drinking alcohol. Half of all facial injuries sustained by persons between the age of 15 and 25 years were the result of assaults. There are an estimated 5,000 cases a year of "glassings" where a broken glass is used as a weapon.[4] It is estimated that up to 80 per cent of peak time admissions to hospital accident and emergency facilities are alcohol related.

  7.  A nation-wide power to designate areas where public drinking is controlled already exists in the form of powers to make bylaws under section 235 of the Local Government Act 1972 and other bylaw making powers. As of 20 February 2001, 113 local authorities have adopted bylaws for this purpose. The bylaw making process is lengthy and each set of bylaws and changes to them must be approved by the Secretary of State. The content of the bylaws is not always consistent: all provide that a person, who consumes alcohol in a designated place after being warned by a constable not to do so, commits an offence; some also provide for the confiscation of containers. They do not contain a power of arrest for failure to comply with a requirement.

Clauses 14 to 18

  8.  The purpose of clauses 14 to 18 is to provide a consistent set of powers backed by a power of arrest which may be adopted by local authorities in a quicker and less bureaucratic process than the adoption of bylaws.

  9.  The Committee comment on the definition of "public place" in clauses 18(1) of the Bill: "any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express of implied permission". This definition is the same as that in the Confiscation of Alcohol (Young Persons) Act 1997. It is effectively the same as the definition in section 16 of the Public Order Act 1986 for the purposes of police powers under that Act. That definition is also adopted for the purposes of the curfew and truancy provisions of the Crime and Disorder Act 1998. A similar definition is used in section 91(4) of the Criminal Justice Act 1967 (drunkenness in public places).

  10.  The definition is apt to cover not only obvious public places such as streets and public parks but other places in which members of the public may congregate so as to give rise to public nuisance and disorder (for example privately owned shopping malls). It will not cover private places to which the public do not have access.

Human rights compatibility

  11.  The government is satisfied that these provisions are compatible with article 8 and article 1 of protocol 1 to the ECHR. In so far as restrictions on public drinking may amount to an interference with article 8.1 rights, we believe they are justifiable under article 8.2 as in the interests of public safety, the prevention of disorder and crime and the protection of the rights and freedoms of others. In so far as the confiscation powers raise issues under article 1 of Protocol 1, the value of items confiscated is likely to be minimal and any interference which there may be is justifiable in the public interest in preventing injuries and disorder.

(B) Would it be possible to include in the Bill a clear set of criteria for designating public places for this purpose, in order to demonstrate clearly and accessibly that restriction of rights are in accordance with the law and properly related to a pressing social need.

  12.  The criteria for designating places in which the powers are to be exercisable are set out explicitly in clause 15(2) of the Bill. The local authority must be satisfied in relation to each place designated that nuisance or annoyance to the public or disorder has been associated with the consumption of alcohol in that place. The procedure to be followed in making a designation order will be set out in regulations under clause 15(4). Those regulations will be subject to the negative resolution procedure. They will provide for consultation with affected interests before designation, including in particular consultation with the owners of any land to be included in a designated area.

(C) Please could you also tell the Committee what steps you envisage will be taken to ensure that the designation of places will be properly related to established local needs, and that police officers will act in a way properly related to the purpose of designating the place in question.

  13.  The fact that the decision on designation is left to local authorities will ensure responsiveness to local needs and local accountability. The local authority will need to be satisfied that the criteria in clause 15(2) are met in relation to each place to be designated. The power under clause 15 will enable them to define carefully only those areas in which there is an established problem.

  14.  Drinking in a designated public place will not be an offence in itself. An offence will only be committed if a person fails without reasonable excuse to comply with a requirement by a constable not to drink in the area or to surrender alcohol, after being warned that failure to comply is an offence. The powers will be exercisable only in areas which have been designated for the purpose in accordance with clause 15(2); these being public places which have experienced nuisance, annoyance or disorder related to the consumption of alcohol. It is unlikely that family picnic areas will fall within this category. The police will have a discretion as to whether to exercise the powers on a particular occasion or against a particular individual and we shall issue advice to the police to suggest that the powers be used where nuisance or annoyance to the public or disorder is occurring or seems likely to occur in the area concerned.


(D)Please could you inform the Committee why you consider the standards used in the Bill are sufficiently determinate to meet ECHR requirements


  15.  The government agrees with the Committee that a closure order under clause 19 of the Bill could constitute an interference with the peaceful enjoyment of a person's possessions. Accordingly, such an interference must be provided for by law, but this should be understood against the background of why this clause is needed.

  16.  Currently, police powers to close disorderly premises are limited, and require the prior approval of magistratrates before action can be taken. A need has been identified for the police to have a new power to act swiftly and decisively to close down premises in the interests of public safety. The link between licensed premises and disorder is well documented, and thus, for example, the British Crime Survey showed that 16 per cent of all violent incidents took place in and around pubs and clubs. It is notable too that the licensing industry itself is overwhelmingly supportive of the new powers. While the new power has to be formulated with sufficient precision that it is clear what level of conduct could lead to a closure order, at the same time the power must be sufficiently flexible for it to be capable of being exercised swiftly and in a range of circumstances. It is in the nature of "disorder" that it can take many different forms, and what constitutes "excessive noise" is not a simple matter of reaching a particular decibel threshold, but depends on factors such as the time of day, whether the neighbourhood is residential, and whether the noise is prolonged or short-lived.

Clause 19

  17.  The Committee has questioned whether the words "disorder" and "excessive noise" are sufficiently precise to justify an interference with rights under article 1 of protocol 1. But "disorder" and "excessive noise" alone are not the triggers set out in the Bill. "Disorder" (whether actual or likely and "excessive noise" must be coupled with a senior police officer's reasonable belief that closure is "necessary" in the interests of public safety or to prevent the disturbance. Thus the latitude implied by the words "disorder" and "excessive noise" is cut back—the disorder must be sufficiently severe and the noise sufficiently extreme for the police officer to be convinced of the necessity for an order.

  18.  In addition, a number of procedural safeguards ensure that a closure order can be made only in tightly controlled circumstances; the order must be made by a senior police officer; it must be made on the basis of a reasonable belief; it can be made only if the licensee's conduct has first been taken into account; and it is subject to subsequent court endorsement at the earliest opportunity.

Human Rights compliance

  19.  In the Government's view the combined effect of the procedural safeguards and the wording of the tests that must be met before a closure order is made ensures that a closure order can be made only in tightly controlled circumstances. At the same time the Bill avoids being overprescriptive about the ingredients of disorder, ensuring that the police's essential operational flexibility is preserved and that the power will be available when required. Moreover, the police, as a "public authority" under section 6 of the Human Rights Act 1998, may not act in a way incompatible with the Convention and so will be under a duty to make a closure order only if it is a reasonable and proportionate response to a particular situation. The government believes that the legislation strikes a fair balance between the need for a flexible power, which must be capable of being exercised in the heat of the moment when public safety is threatened, and a sufficiently precise formulation of what can trigger a closure order, which will enable licensees to understand what their obligations are and what the effect will be of adopting a particular course of action.


(E)  Please could you inform the Committee of your reasons for deciding that this standard is sufficiently determinate to act as a Convention-compatible criterion for imposing a criminal sanction.

  20.  Clause 34 inserts new section 172A into the Licensing Act 1964, and its terms reflect very closely the existing wording of section 172. In effect, the same offence of permitting drunkenness etc which under section 172 can be committed only by a licensee can now be committed under section 172A by any other person who works on the premises. Accordingly, all case law which offers an aid to the interpretation of the terms "permitting drunkenness" and "quarrelsome conduct" under section 172 and its predecessor provisions can be applied to the new offence. There is no shortage of such case law, especially relating to drunkenness. Thus it is clear from established case law, for example, that to supply drink to a person already drunk is to permit drunkenness; that no alcohol need be supplied in order for the offence of permitting drunkenness to be made out; that to "permit" implies power to prevent; and that a licensee must be allowed discretion as to how and when to eject a drunken person.

  21.  It is of course correct that opinions may vary as to whether particular behaviour constitutes "quarrelsome conduct". But again, this is a term that has been in use for a long time, and magistrates are familiar with it. The government therefore has no qualms that clause 34, which in reality does not create a new offence but merely widens the range of people who can commit a long-established and well-understood offence, is sufficiently precise to be compatible with the requirements of article 5 and article 1 of protocol 1.

(F)  Please could you inform the Committee of your reasons for deciding that, in the absence of violent conduct, this standard is sufficiently determinate to act as a Convention-compatible criterion for restricting freedom of expression, and that such restriction is properly related to a pressing social need.

  22.  The government does not accept that clause 34 restricts freedom of expression. It should be noted that nothing in this provision criminalises "quarrelsome conduct"; the only offence is a failure to act appropriately by a person with authority to prevent untoward conduct. Customers can still be as expressive as they wish, but if their behaviour crosses the line and becomes "violent, quarrelsome or riotous" they can expect to be excluded from licensed premises by the landlord. Licensed premises are of course private property and a landlord, who is not a "public authority" under section 6 of the Human Rights Act 1998, has common law rights to ask anyone to leave (other than on discriminatory grounds). The legislation is therefore only remotely connected to any restriction on a person's freedom of expression. The government further considers that even if a person is asked to leave licensed premises, as an indirect result of these provisions, that person's right to express himself is not seriously compromised as he can continue to hold and impart his opinions outside the licensed premises.

  23.  The government further considers that it is reasonable to require bar staff to keep a minimum level of order on their premises, and that it is proportionate for there to be criminal penalties for failing to do so. The pressing need for legislation in this area is apparent from research, which shows the association between violence and disorder and alcohol.[5] Moreover, this disorder is commonly concentrated on a small number of premises. A study (Ramsay 1982) showed that six pubs in Southampton accounted for 50 per cent of all the violence and disorder associated with licensed premises there.

  24.  Insofar as customers are inhibited from quarrelling by the fear of being expelled from licensed premises, or by an actual expulsion, the government is confident that in practice licensees and their staff will not lightly throw out their customers. Instead such steps will be reserved for seriously disruptive or threatening individuals. As already indicated, the government doubts that such expulsions would engage ECHR issues, but even if they did, they would be justified under the second limb of Article 10 of the Convention as being necessary for the prevention of disorder.


(G)  Please would you inform the Committee whether you are satisfied that the courts could made a travel restriction order only in circumstances which correspond to a legitimate justification for interfering with the right under article 12.2-3 of the ICCPR, and of your reasons.

  25.  The government believes that travel restriction orders will be justifiable for a legitimate purpose under article 12.3 of the ICCPR as necessary to protect public order. A travel restriction order can only be made on conviction for a drug trafficking offence in conjunction with a sentence of imprisonment for four or more years. Its purpose is both punitive and preventive. On sentencing, the court will have discretion to include a travel restriction order as part of the sentence. The order is not "punishment for a past offence", but part of the punishment for an offence before the court.

  26.  One purpose of the power is to prevent the commission of further drug trafficking offences. The availability of the power may also have a deterrent effect on the commission of offences. But a travel ban for a period of years may also be an appropriate and justifiable way of expressing society's condemnation of the trafficker' unlawful activities. It will form part of the individual sentence and is a greatly reduced restriction on freedom than imprisonment, which is accepted as a justifiable means of punishment.

  27.  Drug trafficking is an international multi-billion pound industry, estimated by the United Nations as having in 1997 a turnover amounting to about 8 per cent of total international trade. Governments devote considerable efforts and resources world-wide to combat this evil trade, and effective law enforcement is a vital part of the government's strategy for tackling drug misuse. Research by the National Criminal Intelligence Service confirms that between 85 per cent and 90 per cent of organised criminal networks are active outside the UK. Travel bans will help to prevent or disrupt such activity.

(H)Please would you inform the Committee whether you are satisfied that such narrow grounds for suspension are sufficient to satisfy the necessity and proportionality requirements of article 12.2, and of your reasons.

  28.  The government is satisfied that the powers meet a pressing social need and are a proportionate response to it. A court will have discretion under clause 35 as to whether or not to impose an order. In making such an order they must consider "all the circumstances" of the individual. An order will be subject to appeal in the same way as any other sentence. The person concerned may apply to the court at any time for temporary suspension of the order. The test for the court in clause 37(3) is that there should be exceptional circumstances justifying the suspension on compassionate grounds. In making such a decision the court must have regard to the person's character, his conduct since the making of the order, the offences of which he was convicted and any other relevant circumstances (clause 37(4)(2)).

  29.  In addition to the power to suspend an order, a person may apply for its permanent revocation under clause 37(2) once the "minimum period" in relation to the order (two years in relation to an order for four years or less) has elapsed. In determining an application for revocation, the court must consider whether revocation is appropriate in all the circumstances of the case. The court must have regard in particular to the person's character, conduct since making the order and the offences of which he was convicted.

  30.  The government is satisfied that the provisions allow sufficient account to be taken of changes in circumstances during the currency of an order to ensure the requirements of necessity and proportionality continue to be met.

(I)  Please would you inform the Committee of your reasons for being satisfied that so narrow a power to review or suspend an order will always suffice to meet the requirement of necessity in a democratic society for one of the legitimate aims under article 8.2 of the ECHR.

  31.  The government does not accept the powers to review or suspend an order are "narrow". The court's discretion as to whether to make an order, the rights of appeal and the rights to apply for revocation or suspension provide a range of safeguards for the individual whose personal circumstances must be taken into account at each stage. In so far as the making of an order does interfere with an offender's family life, that is a consequence of his conviction for a serious criminal offence, and is a less serious consequence than a longer period of imprisonment. In so far as an order does interfere with article 8 rights, that interference will be justifiable under article 8.2 in the interests of the prevention of crime and disorder and the protection of the rights and freedoms of others.


(J)In order to allow the Committee to evaluate the extension of child curfew schemes in the light of human-rights standards, please would you inform the Committee of your reasons for being satisfied that the scheme (as extended by the Bill) would be compatible with Articles 5, 8 and 11 of the ECHR, and the provisions of the other treaties mentioned above, in the light of the previous paragraph.


  32.  Children are vulnerable to those who would encourage them into conduct of a criminal or anti-social nature. This conduct gives rise to a range of consequences which are damaging to local communities and especially damaging to the children themselves. Children of a very young age can learn from peers and elders that to torment other people (by way of abuse or criminal damage) is an acceptable part of play. They can also fall into the hands of pimps and drug pushers. Children's lives and those of their families and communities can be damaged in ways that can only ever be partially repaired by a range of social, health and criminal justice interventions.

  33.  Figures for England and Wales in 1999 show that as many as 181,600 children and young people were found guilty or cautioned as a result of committing criminal offences. Of these 10 to 17 year-olds, 12,600 were involved in drugs offences (compared with only 2,000 eleven years ago), 14,400 were guilty of violence against another person and 4,600 of criminal damage. The figures also show that around 78,700 were involved in theft, burglary or robbery.

  34.  Certain specific locations have become well-known "trouble spots". This may be because children and young people congregate there to indulge in drug-taking or alcohol consumption. It may be because they have become prime sites for fighting or for prostitution. These places present significant dangers for local communities and children in particular. They are often places where no responsible parent would knowingly allow their child unaccompanied after dark. The government believes that a local child curfew scheme is a proportionate and flexible tool which communities may use where necessary to tackle such areas.

  35.  Local child curfews may be of particular value in the fight against child prostitution. The government's policy is for inter-agency working to ensure that children are diverted from risk and abuse and treated as victims rather than criminals.[6] In particular locations, curfew schemes might be used to allow constables to engage with children (whether already involved in such activity or at risk), and take them out of danger without any stigma or "criminalisation". This could represent the initial immediate response. Following this the agreed local Area Child Protection Committee (ACPC) procedures would be triggered to ensure the child's safety and welfare and to enable the police to gather evidence about abusers and coercers.[7]

  36.  More generally, many of those who champion the rights of the child seek interventions which seek to protect and divert children whilst attempting to avoid early introduction into the formal criminal justice system. The breach of a local child curfew involves no criminal sanction. It allows a constable to take the child home to his family.

Clauses 43 and 44 and the Crime and Disorder Act 1998

  37.  The existing child curfew scheme is set out in sections 14 and 15 of the Crime and Disorder Act 1998 ("the 1998 Act"). Clauses 43 and 44 would extend the potential age range of curfew schemes to those under 16 and permit them to be initiated by the police as well as by local authorities.

  38.  Those involved in the statutory scheme for child curfews—local authorities, the police and the Secretary of State—are all "public authorities" for the purposes of section 6 of the Human Rights Act 1998. Thus any powers bestowed upon them will be exercised in an ECHR—compliant manner. In particular, powers to initiate, agree or approve the making of a curfew scheme must only be used when the circumstances render the measure necessary and proportionate. Further, the constable's power to take a child home should only be used where necessary to protect the child or other people.

  39.  Under section 14(1) of the 1998 Act, a local authority may make a scheme, but only after consulting the relevant chief officers of police and other appropriate persons and only "if, after such consultation as is required by the scheme, the authority considers it necessary to do so for the purpose of maintaining order..". The police would be under a parallel duty to consult where they initiated the scheme.

  40.  The curfew arrangement lasts for a specific period which may not exceed 90 days. It is a specific response to a particular trouble spot, not a restriction of indeterminate duration. The curfew area and hours are to be specified and the curfew hours must be between 9pm and 6am. In winter months, these are normal hours of darkness in most parts of the country. The curfew may only relate to unaccompanied minors. The rights of parents and families to be with their children in public (at any time of day or night) are completely preserved.

  41.  Section 14(4) of the 1998 Act provides that a scheme may not come into effect until confirmed by the Secretary of State. Under section 14(5), the Secretary of State may confirm or reject such a draft scheme and he fixes the operative date of any approved scheme. Just as the role of the local authority is crucial in ensuring local accountability and sensitivity, the Secretary of State is best placed to ensure consistency across the country.

  42.  Section 14(6) of the 1998 Act allows for different curfew hours in respect of different ages of children. Section 14(7) provides for clear notice of the operation of a curfew to be given.

  43.  Section 15(2) of the 1998 Act provides that a constable who has reason to believe that a child has been in a curfew area within the hours of danger shall inform the relevant local authority. This allows the local authority to explore the matter with the child's parents and family and highlights the respect for family life, which lies at the heart of this legislation.

  44.  Section 15(3) provides the constable with a power (not a duty) to take the child home. This not a power to take the child to a police station or alternative detention, nor does "being in the wrong place at the wrong time" lead to any sanctions (criminal or otherwise) against the child. He is being taken away from the notorious trouble spot for his own safety and in order that he keeps out of any trouble. The constable is precluded from taking the child home if he has reason to believe that the child would suffer significant harm there.

Human rights compliance

  45.  In the government's view, its positive obligations under article 8 of the ECHR are central to any attempt to measure the existing law (and proposed amendments to it) against domestic and international human rights standards. The rights to private and family life of children, their parents and the other families who live in and around the "trouble spots" described earlier are clearly in play. The existing and proposed legislation in relation to local child curfews is designed to assist families in the difficult task of discharging their obligations towards children.

  46.  The proposals in the present Bill seek to extend the potential coverage of child curfew schemes to children as old as 15 years (where the local circumstances justify it). Persons aged below 18 years of age are treated as children under the ECHR, Article 1 of the United Nations Convention of the Rights of the Child and section 105 of the Children Act 1989.

  47.  The government recognises that local child curfew schemes may be capable of interfering with the private life of children. However, such interference would be limited to keeping children away from dangerous places in night-time hours. Further, the effect of the provision of the 1998 Act and the Human Rights Act will be that any such interference (whether caused by the making, approval or enforcement of the schemes) will be in accordance with the law. Under article 8(2), use of the powers must be no greater than is necessary and proportionate to the aims of public safety, including child safety, the prevention of disorder or crime, the protection of health and morals, or the protection of the rights and freedoms of others, including local residents and the children's own parents and families.

  48.  Similarly, the government believes that compliance with the 1998 Act scheme and the Human Rights Act will ensure that "no child shall be subjected to arbitrary or unlawful interference with his privacy" and that children have "the protection of law" for the purposes of article 16 of the CRC and article 17 of the ICCPR.

  49.  The government's position in relation to article 11 of the ECHR, article 15 of the CRC and articles 21 and 22 of the ICCPR is as for article 8 of the ECHR (private and family life) and the associated instruments mentioned above.

  50.  The legislation does not provide for the incarceration of children. Instead, it provides for the possibility of minors being taken home from places of danger in certain circumstances. The government notes the Committee's concern that this power need not relate to suspicion or anticipation of crime or disorder. However, the government believes that there may be many instances, including some situations where crime or disorder is imminent, where the interests of children may be better served by being taken home to their families than by formal arrest and conveyance to a police station.

  51.  Section 46 of the Children Act 1989 already allows for police removal and accommodation for up to 72 hours of children likely to suffer significant harm.

  52.  In the light of the above, the government takes the view that article 8 of the ECHR is of greater relevance to the present issue than article 5. If article 5 is in play, the government believes that the swift removal of a child to his own home, may be justified under article 5.1(c) or (d) (depending upon the facts of the case.)

  53.  The legislation conforms with article 37(b) of the CRC and article 9 of the ICCPR. The curfew scheme and the limited police powers thereunder are clearly prescribed by way of the 1998 Act. A child will only be taken home against his will as a last resort. By definition, any deprivation of liberty will be for the shortest appropriate period of time (no incarceration being permitted).


(K)  In light of this, please inform the Committee of your reasons for being satisfied that these provisions of the Bill are compatible with the requirements of ECHR Article 8.2 that an interference with rights under Article 8.1 should be in accordance with the law and necessary in a democratic society

  54.  The government believes that these provisions are compatible with article 8 of the ECHR. In particular, to the extent that the provisions amount to an interference with rights under article 8(1) we believe that they are in accordance with the law and necessary in a democratic society in the interests of the economic well-being of the country and the prevention of disorder or crime.


  55.  Information held by the Inland Revenue, HM Customs and Excise and other public bodies can be of vital importance to criminal investigations and criminal proceedings in the UK and overseas. For example, in one particular case, the police had arrested an individual suspected of trafficking in narcotics and discovered during the subsequent investigation that the individual had reported the drug-trafficking origin of his earnings to the Inland Revenue. The Revenue had been unable to disclose this information to the police until a production order had been obtained. Another example is that the Inland Revenue often have information that is vital to missing persons' cases. These cases, which are potential murder inquiries, can be brought to an end if the Inland Revenue are able to inform the police that the person in question is alive and working elsewhere. This could avoid a potential miscarriage of justice for a murder suspect.

  56.  The government recognises the importance of retaining taxpayers' confidentiality (and the confidentiality of other information acquired by public bodies pursuant to their statutory functions), but is keenly aware of the need to balance this against the wider public interest in combating crime.

  57.  The provisions target two similar, but distinct, problems. First, clause 45 seeks to resolve the uncertainty which has existed about the scope for disclosure under the existing disclosure provisions listed in Schedule 1 to the Bill. Secondly, clause 47 enables certain authorised individuals at the Inland Revenue and HM Customs and Excise to disclose information for specified purposes related to criminal investigations and criminal proceedings. This represents the government's view as to the appropriate balance to be struck between the interests of taxpayers' confidentiality and the wider public interest in prevent crime.

Human Rights Compliance


  58.  This provision has a limited purpose, namely to resolve the uncertainty that has existed about the purposes for which disclosure can be made under the 70-odd similar provisions listed in Schedule 1. This is achieved by harmonising the provisions in a way, which generally enables information to be disclosed for any criminal investigations or proceedings, whether in the UK or overseas. It is not intended to affect the provisions listed in Schedule 1 in any other way.

  59.  Each of the statutes listed in this schedule restrict the disclosure of information which is acquired by persons in the exercise of their functions pursuant to the statute. Information restricted in this way can only be disclosed in accordance with specific statutory provisions enabling disclosure. The provisions listed in the schedule each allow information to be disclosed for the purposes of criminal investigations or criminal proceedings. The formulations, which have been adopted, are similar, but not identical. These differences across the statute book have triggered considerable doubts about the extent of the scope for disclosure. Clause 45 is intended to resolve this uncertainty by setting out clearly, and in detail, the purposes for which information can be disclosed pursuant to the provisions listed in Schedule 1. This should ensure individuals are able to regulate their conduct accordingly.

  60.  Most, if not all, of the disclosing authorities pursuant to Schedule 1 would be "public authorities" within the meaning of section 6 of the Human Rights Act 1998. This means that they are required, in accordance with section 6, to exercise these new disclosure powers in a way, which is compatible with the ECHR. In particular, disclosures should only be make where the circumstances made the disclosure necessary and proportionate.

  61.  Clause 45 is not intended to affect the types of information that can be disclosed pursuant to the Schedule 1 provisions, nor is it intended to affect any procedures which may be in place to assess whether disclosures should be made in the individual case. The provision does not authorise the making of any disclosure, which is prohibited by any provision of the Data Protection Act 1998.

  62.  To the extent that the provisions in Schedule 1 are widened, the government believes that a fair balance is struck between the individual's right to privacy and the wider public interest in preventing crime. The government believes that clause 45 is formulated with sufficient precision as to be regarded as "in accordance with the law" within the meaning of Article 8.2.


  63.  The government believes that this new disclosure provision for Inland Revenue and HM Customs and Excise strikes a fair balance between taxpayers' confidentiality and the demands of the community to prevent crime.

  64.  The government believes that any relevant information should be capable of being disclosed for the purpose of a criminal investigation or criminal proceedings, irrespective of the form in which it is held.

  65.  The specific purposes for which disclosures can be made pursuant to this provision are set out in detail in clause 47(2). This clause should be viewed in the context of the significant criminal penalties for prohibited disclosures, which exist within both the Inland Revenue and HM Customs and Excise. In this context, it is imperative that the information-holder is able to ascertain whether a particular disclosure is within or without the scope of the disclosure provision so that he can ensure that he does not fall foul of the criminal law. This would be difficult if a "reasonableness" test was introduced, as this would involve substituting an objective judgement. This would result in uncertainty.

  66.  One of the key tenets of this policy is that it should be possible for public bodies to disclose information for the purpose of clearing the name of a person who is involved in a criminal investigation. It should also be possible to disclose information where the data subject was the victim of an offence (eg in the context of child pornography). Such disclosures would not be possible if disclosures were limited to those circumstances where there were grounds to believe that the data subject had committed an offence.

  67.  The government is keen to ensure that the Inland Revenue and HM Customs and Excise are able to make spontaneous disclosures of information as well as disclosures in response to requests from other bodies. For example, the information-holder may have information concerning a wrongdoing to which they would want to alert the relevant authorities. In such circumstances, it may be difficult for the information-holder to determine the exact nature of the suspected offence. For these reasons, the government believes that it is best not to limit the disclosure provisions to certain categories of offences.

  68.  The Inland Revenue and HM Customs and Excise are both "public authorities" within the meaning of section 6 of the Human Rights Act 1998. They will therefore be required, in accordance with section 6, to exercise these new disclosure powers in a way, which is compatible with the ECHR. In particular, disclosures should only be made where the circumstances make the disclosure necessary and proportionate. This place an important limitation on the exercise of the powers provided by this clause.

  69.  These authorities are fully aware of their obligations under the Human Rights Act 1998 and have already introduced administrative procedures to ensure that disclosures are only made in appropriate circumstances. These safeguards generally require that bodies requesting information have to demonstrate that they have a legitimate interest; the information is properly required for crime-related purposes, and that staff-training ensures that staff are fully aware of the conditions and safeguards necessary to operate disclosure provisions fairly and lawfully.

70.  Disclosures will also be limited by the provisions of the Data Protection Act 1998, which applies to any information disclosure insofar as it relates to data relating to an identified or identifiable living individual. This Act provides a detailed statutory framework for regulating the processing (including the disclosure) of personal data. If a disclosure cannot be made in accordance with the data protection principles, the disclosure can only be made if an exemption applies. Of particular relevance in the present context is section 29 of the Act which provides an exemption to the "non-disclosure provisions" where both (a) the disclosure is for the prevention or detection of crime or the apprehension or prosecution of offenders, and (b) the application of the provisions would be "likely to prejudice" any of those purposes. This means that the Act operates as a filter on the type of information which can be disclosed and a requirement for a pre-disclosure assessment of the proportionality of disclosing the information.

  71.  Other safeguards in relation to disclosure pursuant to clause 47 are as follows:

    —  The disclosure provisions are permissive. Information-holders cannot be compelled to disclose information under clause 47.

    —  Criminal investigators in the UK are obliged to carry out their investigations in good faith and accordingly would be expected only to request information which is relevant to an investigation or proceedings.

    —  Recipients of information from the Inland Revenue or HM Customs and Excise are not permitted to disclose the information for any purposes other than those stated in clause 47(2) and then only with the permission of the relevant Commissioners.

  72.  In conclusion, the government believes that clause 47 is compatible with the requirements of Article 8 ECHR and that any interference with the rights in Article 8.1 is in accordance with the law and necessary in a democratic society.


(L) Would you please inform the Committee of the reasons why you are satisfied that the provisions of the Bill with respect to authorisation and taking of such searches and samples would offer sufficient protection for a suspect's rights to meet the obligations of the State under ECHR articles 3 and 8.

 Intimate searches

  73.  The only effect of clause 78 is to lower the level of authority needed for an intimate search under section 55 of the Police and Criminal Evidence Act 1984 (PACE) from a superintendent to inspector. This change is to reflect modern management structures in the police service. An inspector is a senior and responsible officer. Allowing decisions to be made by inspectors ought to reduce delays to those in custody.

  74.  The Bill does not alter the circumstances in which an intimate search may be carried out under section 55 of PACE. Such a search may be authorised where the senior officer has reasonable grounds for believing that someone who has been arrested and is in police detention may have concealed on him something which he could use to cause physical injury to himself or others, for example, razor blades. Such a search must be carried out by a doctor or nurse unless this is not practicable.

  75.  An intimate search may also be authorised where the senior officer has reasonable grounds to believe that someone who has been arrested may have concealed on him a class A drug which he had in his possession with intent to supply or illegally import or export. An intimate search for drugs may only be carried out on medical premises by a registered doctor or nurse.

  76.  An intimate search can only be authorised where an officer reasonably believes that the concealed item cannot be found without an intimate search.

  77.  Other safeguards are incorporated in Section 55 and the Codes of Practice which are required to be issued under PACE. For example, Section 55 prohibits a constable carrying out an intimate search of a person of the opposite sex. Whenever an intimate search is carried out, the custody record must state which parts of the body were searched and why they were searched. It is also a requirement for figures to be published annually showing the total number of intimate searches, the persons who conducted the searches and the reasons for the search.

  78.  Intimate searches are rarely carried out by constables. Figures for 1999-2000 show that of the 170 intimate searches conducted in England and Wales only four were recorded as having been carried out by constables. The vast majority of intimate searches are carried out for Class A drugs and in 1999-2000, 135 of the searches were recorded as having been conducted for this purpose.

  79.  Code of Practice C which covers the questioning, treatment and detention of persons by police officers contains guidance on the conduct of intimate searches to ensure that they are carried out with proper regard to the sensitivity and vulnerability of the person concerned.

  80.  The government does not accept that intimate searches are inherently inhuman or degrading within the meaning of article 3 of the ECHR. In so far as they constitute an interference with article 8 rights, the government believes that section 55 only permits them when strictly necessary in the interests of the prevention of disorder or crime or the protection of health.


  81.  Intimate samples can only be taken with the consent of the person concerned. Non-intimate samples may be taken without consent but only where the conditions in section 63 of PACE are satisfied. The Bill does not alter the circumstances in which such samples may be taken on arrest. It only alters the rank of officer who must authorise the taking, reducing it from superintendent to inspector. The officer must have reasonable grounds for suspecting the involvement of the person concerned in a recordable offence and for believing the sample will tend to confirm or disprove his involvement.

  82.  The non-intimate samples most commonly taken are from mouth swabs or hair samples. Neither require nakedness or undue intimacy. The government does not accept that the taking of samples is either inhuman or degrading within the meaning of article 3. In so far as the taking of samples amounts to an interference with article 8 rights, the interference is justifiable in the interests of the prevention of crime and disorder.

(M) In the light of this, please would you inform the Committee of your reasons for deciding that these provisions meet the requirement of ECHR article 8, in the following respects.

(i)  Are adequate controls in place to ensure that records are up to date and accurate as demanded by the case-law of the European Court of Human Rights under article 8?

  83.  Fingerprints and information derived from DNA samples are amongst the most important tools available to the police in the fight against crime. They provide vital objective evidence to confirm or disprove involvement in crime. There are in effect two databases—the National Fingerprint Collection and the National DNA database.


  84.  Fingerprints are a key part of the evidential process. Strict measures are taken at every stage of the process to ensure that fingerprints are properly associated with the records of the person from whom they were taken.

  85.  Fingerprints are taken from suspects at police stations and sent to the police forces' fingerprint bureaux. Fingerprints are normally taken using an ink impression on paper and then scanned so that they can be stored and searched electronically. The technology now exists for fingerprints to be captured electronically using "livescan" devices. Clause 77(7) and 79(4) of the Bill provide for type approval by the Secretary of State of equipment that is used to capture fingerprints or other skin impressions electronically. This is to ensure that the equipment is suitable for use and that the integrity of the evidential chain is maintained. This follows the recommendations contained within the House of Lords Select Committee on Science and Technology [8], which recommended that "consideration be given to measures to reduce the uncertainty over the use of digital images in court".

  86.  Each set of prints is recorded and given a unique Arrest Summons Record (ASR) number on the Police National Computer(PNC), which also records minimum basic details: name of the person; details of the officer taking the prints; the officer investigating the case; the offence and the charging station. The Fingerprint Bureau then enters the record on to the National Automated Fingerprint Identification System (NAFIS). It is not possible to create a record on NAFIS without the full information.

  87.  NAFIS will retrieve the Arrest Summons Record (ASR) from the Phoenix Criminal Names database on the PNC. Checks are then made to ensure that the data captured on the new form matches that on the Arrest Summons Record. If the subject has a criminal record the Criminal Record Office (CRO) number is added to the relevant field in the ASR.

  88.  Data is then checked on NAFIS by entering the CRO number, which will retrieve images from that quoted number to enable the fingerprint bureau to make a comparison and to ensure that the prints belong to the same person. If the prints match the new set of prints the individual's CRO number will be added to the fingerprint record. If the prints do not match, NAFIS will search the new prints against all the fingerprints held in the database in order to try to achieve a match. This will determine whether the suspect has a criminal record under another name. If this search fails to show a match the prints will be given their own CRO number by the NAFIS system, together with a unique NAFIS Fingerprint Identification Number. When a fingerprint record is added either to an existing or a new record, the information goes electronically to the PNC to update records. Arrest Summons Records are attached to existing records.

  89. The unique Fingerprint Identification Number allows tracking through the NAFIS system. For any individual there may be several sets of fingerprints taken for different offences. NAFIS also uses the best prints to compile the "ten print" complete fingerprint record - so this might be a composite of individual prints taken from different sets and records. This allows for an audit trail to be created, enabling all prints to be kept and accounted for even though the set shown when the record is interrogated may be a composite.

  90. The systems is designed so that there are a number of checks and balances to ensure that the infomation is correct. The link with the Phoenix Criminal Record on the PNC helps to ensure accuracy and updating of records. The National Fingerprint Collection is subject to the provisions of the Data Protection Act 1998 and is registered with the Information Commissioner.

DNA records

  91. The National DNA database currently comprises the details of individuals suspected, cautioned and convicted of a recordable offence together with their DNA profile. It also contains DNA profiles derived from crime stains.

  92. The DNA database is an intelligence database. The results of any analysis carried out or the fact that a match was found during a speculative search will not be used for the purpose of a prosecution. If a match is found, the police would take a further evidential sample that would be used in the preparation of the case against the individual.

  93. The results of the profiling process are stored electornically as a digital record in compliance with the Data Protection Act 1998. These records provide a high level of discrimination between profiled individuals. They also provide information for investigating officers, such as potential links between individuals and crime scenes and between different crime scenes.

  94. When a DNA sample is taken from a suspect there is a meticulous process to ensure that the details of the individual remain associated with the correct sample throughout the process that it goes through before it is entered as a profile on the database.

  95. DNA samples are taken by trained police officers who are supplied with DNA kits by the Forensic Science Service. These contain everything that is needed to take a sample: disposable gloves for the police officer to use to prevent contamination; two comb swabs used for taking the mouth swabs; the container to put the swabs or hair samples in; the necessary documentation to be completed with the suspect's details and a set of unique bar code labels. One bar code label is attached to the sample container and a second identical one is attached to the documentation which accompanies the sample. The sample is placed in a sealed bag with the documentation and bar code labels in the presence of the suspect. On arrival at the laboratory the bag is checked against that on the documentation. The documentation is checked to ensure the seal is intact and the bar code is checked to ensure the details of the suspect, the arrest summons number, the details of the officer taking the sample and the offence have been completed. If there are errors or omissions the sample is rejected and not processed.

  96. Two swabs are taken from the sample. One is retained and stored so that if there is any subsequent doubt about the accuracy of the analysis the second sample can be processed.

  97. The Forensic Science Service (FSS) are responsible for processing the majority of DNA samples. Every care is taken throughout the processing of the sample to produce a profile to ensure that no contamination occurs and the sample is uniquely identified at all stages through the process. The FSS in addition to their own high quality control checks have external accreditation through BS EN ISO 9000 and UKAS M10 National standard.

  98. The FSS have a second role as custodian of the DNA database on behalf of the Association of Chief Police Officers (ACPO). In this role they are responsible for managing and running the DNA database. The FSS enter profiles on to the database and inform the appropriate police force when a match occurs. The FSS are also responsible for ensuring that the same high standards of quality control are applied to the other suppliers who process DNA samples for entry onto the National DNA database.

  99. The FSS DNA database, unlike the National Fingerprint Collection on NAFIS has no direct link to the Phoenix Criminal Record on the PNC although work has started to enable a link to be made. This means that the process for informing the police of matches and for the police informing the FSS of the outcome of court cases is not automatic and some delay may occur in updating rocords. Work on establishing a direct link to the PNC is due to be completed in October 2001.

  100. Under the Data Protection Act 1998, data subjects have a right of access to their personal data, subject to specific exceptions. Fingerprints or DNA profiles held on these computer databases are personal data for these purposes.

  101. The government is satisfied that the controls on collection and storage of fingerprint and DNA information are sufficiently rigorous to ensure both that the records are up to date and accurate and that the requirements of article eight are met.

(ii) Are there adequate controls over the circumstances in which searches of the records are permitted to ensure that such searches meet the criterion of necessity in a democratic society for one of the legitimate purposes listed in Article 8.2?

  102. Clause 81(2) provides that fingerprints and samples taken on suspicion of involvement in an offence can only be used for the purposes of the prevention and detection of crime, the investigation of an offence or the conduct of prosecution. "Use" is defined to include allowing searches to be made against the records and disclosure to any other person. It follows that the data contained on the National DNA database and the National Fingerprint Collection will only be able to be used for those purposes.

  103. There is tight control over access to information. The data held on the National DNA database and the National Fingerprint Collection on NAFIS is held on a password protected system and the security layered to comply with the requirements of the Data Protection Act 1998. Access is to authorised operators only and according to the status of the accessor this will allow i) the addition of the individual's profile and the associated unique identifiers; ii) the addition of case stain profiles and the associated unique identifers; iii) interrogation of the database.

  104. Only the FSS have direct access to the DNA database. Requests for searches from forces not covered by the existing arrangements, including requests from the National Criminal Intelligence Service on behalf of overseas forces, will be referred to the ACPO chairman of the National DNA Management Board. Once the roll out of NAFIS is completed in April 2001, individual forces in England and Wales will have direct access through their force fingerprint bureaux. Requests for searches from forces such as the British Transport Police or by NCIS on behalf of overseas forces will continue to be processed through the National Fingerprint Bureau located in New Scotland Yard.

  105. Exchange information will also need to be compliant with the provisions of the Data Protection Act 1998. Personal data can only be disclosed under the 1998 Act if the disclosure can be made consistently within the data protection principles; or if one of the non-disclosure exemptions in the Act applies. In the first case the data protection rules apply in full. In the second case, certain rules are eased but only to the extent that they are inconsistent with the disclosure in question (see section 27(3) and (4) of the 1998 Act).

  106.  Section 29 of the Act provides an exemption to the "non-disclosure provisions" where both (a) the disclosure is for the prevention or detection of crime or the apprehension or prosecution of offenders, and (b) the application of the provisions would be "likely to prejudice" any of those purposes. This means that the Act operates as a filter on the type of information which can be disclosed and a requirement for a pre-disclosure assessment of the proportionality of disclosing the information. This test could not be used to justify routine searches or data matching. The data controller would have to be satisfied in each case that if the particular data is not shared, matched or disclosed this would be likely to prejudice the prevention or detection of crime or the apprehension of offenders.[9]

What assurances will there be that bodies given access to the records will themselves have adequate controls in place to satisfy the entitlements of data subjects under Article 8?

  107.  Crime is not limited to national borders. The police may have reason to believe that fingerprints or a DNA sample that has been recovered from a crime scene relate to a foreign national. They may then wish to try to confirm the suspect's identity by checking with the relevant country's fingerprint or DNA database. A similar logic applies to overseas police forces seeking assistance from our police service.

  108.  The exchange of information on fingerprints and DNA currently takes place under authority of the European Convention on Mutual Legal Assistance 1959 and Criminal Justice International Co-operation Act 1990. Clauses 80 and 81 of the Bill will put these exchanges on a clearer statutory footing.

  109.  The primary gateway for requests for intelligence information from overseas police forces is through Interpol and ACPO do not intend to change this arrangement. The requests for exchange of information relating to DNA or fingerprints would be dealt with using the existing procedures. In considering requests for such information Interpol would look at a full range of factors including the validity of the request, the purposes to which the information is to be put, compliance with the data protection guidelines and the security of information. Requests for fingerprint information from overseas that have been validated by Interpol are processed through the National Fingerprint Office in New Scotland Yard.

  110.  The safeguards that are already in place require that bodies requesting information related to fingerprints or DNA have to demonstrate that they have a legitimate interest and that the information is required for crime-related purposes. There is not a blanket authority to share all of the information on the databases. Decisions are made on an individual case-by-case basis.

  111.  Bodies within the UK to whom any data is disclosed will themselves be subject to the provisions of the Data Protection Act 1998. Bodies elsewhere in the EU will be subject to the relevant national law in that state implementing the European Data Protection Directive. The 1998 Act includes provisions prohibiting the transfer of personal data to foreign jurisdictions unless the country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data. This is subject to a number of exceptions, in particular where the transfer is necessary for reasons of substantial public interest. UK public authorities will also be obliged to act in accordance with section 6 of the Human Rights Act in their use of any information derived from the records.

  112.  The government is satisfied that the explicit prohibition in the Bill of use of fingerprint and DNA records for purposes other than the prevention and detection of crime etc; the provisions of data protection legislation; and the system of practical safeguards and filters outlined will ensure compliance with the requirements of article 8. Access to the databases, searches of them and disclosure of the contents will only take place where necessary for the legitimate purposes permitted by article 8.2, notably the prevention and detection of crime.

27 February 2001

1   eg Buckley v United Kingdom (1996)23 EHRR 101. Back

2   eg R (on the application of Mahmood) v Secretary of State for the Home Department [2000] All ER (D) 2191; R (on the application of N) v Governor of HMP Dartmoor (16 February 2001). Back

3   1992 British Crime Survey, Home Office Research Study No 132. London. HMSO. Mayhew P et al (1993). Back

4   "Alcohol and Crime: taking Stock", Home Office Crime Reduction Research Series Paper 3, Policing and Reducing Crime Unit. Ann Deehan (1999). Back

5   "Alcohol and Crime: Taking Stock" ibid. Back

6   The Government's policy on children involved in prostitution is set out in Safeguarding Children in Prostitution, guidance produced jointly by the Department of Health, the Home Office, the Department for Education and Employment and the National Assembly for Wales in May 2000. This forms supplementary guidance to Working Together to Safeguard ChildrenBack

7   Safeguarding Children in Prostitution contains a detailed discussion of the kind of procedures to be put in place involving local police forces, social services departments and other agencies. Back

8   HL Paper 64, February 1998. Back

9   It appears that the question of prejudice was not considered in the case of R (on the application of A) v Chief Constables of C and D [2000] All ER (D) 1524, no doubt because the Act was not in force at the relevant time and so had no bearing on the outcome of the proceedings. Back

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