CRIMINAL JUSTICE AND POLICE BILL
SECOND READING BRIEFINGHOUSE OF COMMONS
Liberty (The National Council for Civil Liberties)
is one of the UK's leading civil liberties and human rights organisations.
Liberty works to promote human rights and protect civil liberties
through a combination of test case litigation, lobbying, campaigning
and research. It is the largest organisation of its kind in Europe
and is democratically run.
Liberty recognises the Government's concern
to tackle effectively the causes of crime. However we are concerned
that this bill contains an ill conceived draft of measures that
are unnecessary, will have little practical effect in reducing
crime, or the fear of crime, and will present serious extension
of the states power and erosion of existing civil liberties. Of
particular concern are the provisions for the extension of child
curfews, for keeping DNA of those who are innocent, of changes
to PACE, fixed penalty notices, and restrictions on travel of
those convicted of drug offences. We have not in this briefing
dealt with the provisions around seizure, although we have concerns
Offences leading to penalties on the spot CL1-6
We are concerned that these provisions are a
further manifestation of the trend to mix criminal and civil law
procedures. This dilutes the principles and protections of criminal
law in particular the presumption of innocence and the burden
of proof. Although these procedures will not attract a criminal
conviction, they relate to behaviour that is by definition criminal
and can lead to a criminal conviction if a penalty is not accepted.
We are particularly concerned that a penalty
can be issued if an officer has reason to believe a penalty offence
has been committed (CL2(1)). This is a lesser standard than the
criminal burden of proof.
The effect of accepting a fixed penalty notice
will be to accept that behaviour to a criminal standard has occurred,
therefore we consider that officers imposing the penalty notices
should be required to be satisfied to this standard before being
able to impose them. At present the bill allows a police officer
"who has reason to believe" that someone was involved
in an offence, to present a fixed penalty notice. Liberty believes
that this is wrong and that the police officer should be able
to establish beyond all reasonable doubt that the person has committed
If a person provided with the notice goes to
court to protest his or her innocence rather than pay the fine,
the burden of proof the police will be expected to establish is
beyond reasonable doubt. The practical implications of this are
that there will undoubtedly be a large number of people challenging
these notices, causing not only the administrative burden of issuing
fixed penalty notices, but also upon the courts.
Liberty is also concerned that this provision
will discriminate against more vulnerable sections of society,
in particular those on low income who are less likely to be able
to pay fixed penalties. The types of behaviour these notices are
likely to attach to, eg drunkenness, are also likely to be committed
to a large extent by vulnerable members of society who are unlikely
to be able to pay fixed penalties. As a result of the non-payment
of a series of such fines, these people may end up in prison for
non payment of debt. We consider this provision has the potential
to further marginalise those members of society already suffering
from social exclusion.
In conclusion therefore, we think that these
proposals are likely to be unworkable, will marginalise vulnerable
sections of society, and are undesirable in civil liberties terms
because of the dilution of legal protections.
Travel restriction orders CL 35
These orders are similar in nature to football
banning orders introduced. We raised concerns over the introduction
of such orders, which also apply to the current proposals. We
have concerns that these orders impinge on the individual's right
to freedom of movement, and to receive goods and services throughout
the EU. In individual circumstances the imposition of such orders,
or the refusal to suspend or revoke such orders, may breach this
country's obligations under the EC treaty. In particular we are
concerned that there is no upper limit as to the length of the
Intimidation of witnesses CL 40 and 41
We support the extension of protection of witnesses
from intimidation to civil as well as criminal proceedings. However
we have concerns over the presumption, to be rebutted by the defendant,
that the defendant intended to pervert, etc. if it can be proved
he did an intimidatory act etc. We would suggest this presumption
be removed and that it be for the prosecution to prove all elements
of the offence.
We are also concerned about the widening of
definition of who may be a witness. We consider the definition
is too wide, in particular in respect of those who may be able
to give evidence, as opposed to those who actually are witnesses
in court proceedings.
Child Curfew Schemes CL 43
Liberty opposed the imposition of the original
child curfew orders for up to 10-year olds. We are not aware of
any occasions on which such orders have been used. We had concerns
regarding the wide-ranging nature of the powers and lack of restrictions.
These concerns remain and are increased by the proposals that
order should apply for up to age 16, and can also be sought by
a Chief Officer of Police. We are concerned that the giving of
this power to the police as well as the local authority is a move
away from the principle of welfare of the child towards the criminal
process, and believe this is inappropriate.
We have expressed concerns in respect of the
previous legislation as to the compatability of any such order
with the Human Rights Act, and in particular articles 5 and 8
of the Convention. We consider in particular that these provisions
are unlikely to comply with Article 8, the right to respect for
private and family life, and that they are too widely drawn to
be proportionate or necessary in a democratic society. We suspect
that the reason no orders have yet been applied for is that local
authorities have been unable to show that such orders would be
either a proportionate response to any problems, or necessary
in a democratic society, and therefore would be unable to resist
any challenge in the courts. In these circumstances we oppose
the increase in powers and ambit of such orders.
We also have worries about the practical effects
of any such blanket curfews. Firstly if police will be available
to enforce these sanctions, surely they are also available to
deal effectively with any young people who are breaking the law.
Secondly imposing blanket curfews could prevent innocent young
people who are out on legitimate business from entering the curfew
area. This could lead to them staying out or going home by a different
and perhaps more dangerous route.
Information disclosure for criminal proceedings
We recognise the need for there to be a proper
flow of accurate information between official bodies. However,
balanced against this is an individual's right to privacy. We
are concerned that these proposals are wide ranging and do not
provide proper checks to protect an individual's right to privacy,
to guarantee accuracy and appropriate use of information.
Review of detention by telephone or video link
We opposed these proposals in our response to
the consultation paper. The rights and protections given to a
defendant in PACE are of fundamental importance, and should not
be eroded for administrative convenience, such as flooding of
roads. Reviews are an important mechanism to determine both whether
continuing detention is justified, and to check the conditions
of such detention. If a defendant is unable to speak personally
to the reviewing officer then there is potential for abuse of
a defendant's situation in a police station.
Authorisation for delay in notifying of arrest
Again our comments for the reasons for the PACE
protections made above apply. We are aware of no cogent evidence
requiring this lowering of rank for authorisation. The decision
not to notify of arrest is an important one, and a substantial
incursion into the rights of a defendant in a police station.
Its importance is reflected in the level of officer needed to
make such a decision. It is less likely that a lower ranking officer
will be able to consider, critically and independently, whether
such authorisation should be given.
Use of video links for Terrorism Act detention
proceedings CL 74
We consider that all judicial proceedings that
allow for detention of an individual should take place in person
with the individual having the right to attend should they wish.
Codes of practice CL 76
We repeat our comments above about the importance
of the protections in PACE. These are not administrative matters
but matters relating to the deprivation of the freedom of the
individual, and their treatment in custody. As such they are matters
for full parliamentary debate, not regulations.
Fingerprints for cautions for recordable offences
CL 77 (6)
We do not support the extension of compulsory
fingerprinting to those cautioned of a recordable offence. A caution
is not a criminal conviction. We consider these proposals further
erode the nature of a caution as a low-level informal method of
disposing of cases.
Authorisation of taking fingerprints without consent
We consider that this function, as with others
stated above, should remain at Superintendent level to provide
greater independence and protection.
Taking of samples CL 79(1)
Again as above we consider that this function
should remain at superintendent level.
Speculative searches CL 80
We object to the addition of public authorities
to the list of bodies authorised to carry out speculative searches
of the DNA database. We consider the functions for which such
searches can be justified, ie detection of crime, are distinct
functions of the police and related agencies, which are subject
to codes of practice, training, discipline and complaints mechanisms.
The proposed legislation is too widely drafted
and may for example include local authorities that have a role
in prosecuting noise nuisance cases. These bodies would not be
subject to the checks, regulations, discipline or complaints mechanisms
of the police and we are concerned that there would be insufficient
safeguards and potential for abuse.
Retention of DNA and fingerprints from innocent
people CL 81
We oppose this provision as another infringement
of basic rights of individuals. The taking and retention of DNA
and fingerprint samples infringes individuals' right to privacy.
Clearly samples can be taken and kept of suspected or convicted
criminals already, for the purposes of prevention of crime. However
these proposals extend the keeping of samples to those who
have been convicted of no offence. There is no logical difference
between this and the compilation of a mass DNA base of all individuals.
Neither could it be said to be a proportionate infringement of
individuals right to privacy.
Apart from the huge civil liberties implications
of such measures, a practical effect would without a doubt be
to prevent people from coming forward voluntarily to give samples
for the purposes of elimination. Although DNA is often considered
as being an infallible source of information, this is not the
case, and there have been celebrated examples of mistaken identity.
A DNA database of people who have committed offences, coupled
with random others, may well prevent the police from properly
investigating crimes on the basis that they already have someone
whose DNA matches. This will not help to produce the targeted
and focused policing that Liberty supports and believes works.
Inferences in police misconduct proceedings CL
We welcome this provision as a recommendation
we made in our report "An Independent Police Complaints Commission".
Liberty's report on an independent police complaints
commission is available on our website at www.liberty-human-rights.org.uk.
The measures contained in this bill are not
quick fixes for crime. They erode the human rights and liberties
of innocent members of the public. Liberty believes that the Government
could more effectively combat crime by tackling the root causes
such as youth boredom, rather than applying heavy-handed measures
to deal with the results.
This briefing is also available on our website
at www.liberty-human-rights.org.uk. For further information or
details on this briefing, please contact Deborah Clark, Director
of Public Affairs at Liberty, on 020 7378 2664 or 07974 569299
(mobile), or [email protected]