Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 40 - 54)



Mr Miller

  40. When you reply, Minister, as well as setting out the circumstances that you started to outline just now, could you also deal with the Government's feeling on how, particularly in the context of what you describe as the changing circumstances in which the state hold data, the innocent ordinary citizen must be given every confidence that the mechanisms that you intend to use are not going to be misused against them?
  (Mr Clarke) The answer, madam chair, is yes I will in my answer deal with that point very specifically. The core answer lies in the Data Protection Act, to which I referred earlier, and the Regulation of Investigatory Powers Act which has just gone into law, both of which provide a series of safeguards for collection of information in those circumstances. But I will answer in detail when I give a more substantive answer to Lord Lester's question.

  Chairman: Thank you, Minister. Before we move on to consideration of Government amendments to the Bill, if I could just draw your attention to clause 78 with regard to intimate searches. I think it right to say that the Committee may want at some future date to pursue the question of the compatibility of intimate searches with the right to be free of inhuman and degrading treatment, but for the purposes of this Bill Baroness Whitaker wishes to ask a question.

Baroness Whitaker

  41. Looking at clause 78 where you lower the level of authority for an intimate search and looking at your very helpful memorandum, paragraph 74, you point out that the new Bill does not alter the circumstances. I understand by that that the new lower level of authority, the inspector, can authorise this non-consenting search to be carried out by somebody who is not a doctor or a nurse, since that was also the previous position. So, first of all, am I right in that and what guidance does this new less senior person, the inspector, have about when it is not practicable to carry out such a search by a doctor or a nurse?
  (Mr Clarke) My understanding is the responses in paragraph 78 to 80 are designed to address the point raised by Lady Whitaker, but I acknowledge that it does not do it as accurately as your question—

  42. You do indeed say that constables hardly ever carry out the searches
  (Mr Clarke) Precisely.

  43. What I would really like to know is in what circumstances does this new less senior person understand he can authorise somebody who is not a doctor or nurse to carry out the intimate search? It is slightly different than when it was a senior officer.
  (Mr Clarke) I am fumbling a bit because I missed the question right at the beginning. I am being advised that paragraph 74 of the memorandum seeks to set out the circumstances when we say such a search may be authorised, where the senior officer has reasonable grounds to believe 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." Then we set out other safeguards in the Codes of Practice which are referred to in paragraph 77 and, as we indicated earlier, "For example, section 55 prohibits a constable carrying out an intimate search of a person of the opposite sex." Those are the efforts to clarify but I am wary I might not be—

  44. When is it not practicable for this search to be carried out by a doctor or a nurse and what guidance does the inspector have as to when he can authorise this person, who, after all, might have to use force to carry out the intimate search?
  (Mr Clarke) The example we have given is in paragraph 74 where it says, "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."

  45. So it is because there is no doctor or nurse there on the premises and somebody thinks there may be an immediate risk of injury?
  (Mr Clarke) The Code of Practice sets the situation out. I may be completely missing the point here, in which case I apologise.

  46. If there is a Code of Practice it will perhaps be helpful to let us have a copy of the relevant section.
  (Mr Clarke) Of course, yes, absolutely. I am very happy to do that. I apologise if I have misunderstood the thrust of the question.

Lord Lester of Herne Hill

  47. According to paragraph 80 of your memo it says Section 55 of PACE only permits them when strictly necessary in various interests. I am ashamed to say I have not read Section 55 recently, but does that control this in a very clear way using a test of strict necessity?
  (Mr Clarke) As I understand it, yes, and we are not talking in this Bill about any significant and fundamental change.

Baroness Whitaker

  48. Except the person who authorised all this is now junior to the previous person. It is an inspector rather than a superintendent.
  (Mr Clarke) Yes, that is true, but the guidance is still there. Section 55 of PACE is still there and the only reason for the change is to reflect modern management structure changes in the police service which are set out in paragraph 73. We believe that the effect of the decision will be to reduce delays to those in custody. If the suggestion is that the reduction of the rank of authority from superintendent to inspector is a dangerous development in some way then I am very happy to write and clarify further why we think it is not. The basic position of the Code of Practice, the way it operates and so on, is the same as it was when it was a superintendent and we are simply seeking to respond to changes in the structure of the police service. If there is a concern about that, that somehow inspectors are less likely to be rigorous in the way that they approach this or whatever—

  49. It is the exercise of the level of discretion I was interested in.
  (Mr Clarke) Indeed.

  50. Perhaps we could be satisfied if we could have a look at the guidance.
  (Mr Clarke) I will be happy to write to you.

   Chairman:I think it would be very helpful if you could get that to us as soon as possible. If we may now move on to Government amendments to the Bill, amendments numbers 178 and 180 with regard to fingerprints and samples. Lady Perry?

Baroness Perry of Southwark

  51. Minister, the Government has obviously had second thoughts with the amendments but we still remain with some concerns, particularly with regard to Articles 6, 8 and 13. Equally we would like to hear from you your definition of "pressing social need". What kinds of offences do you imagine could be detected as a result of the retrospective operation of the provisions which obviously could not be otherwise detected?
  (Mr Clarke) Okay. It may be helpful if I briefly explain the background to these amendments for the reasons that were indicated. They make parallel amendments to clauses 81 and 82 of the Bill which amend the Police and Criminal Evidence Act in relation to England and Wales and the corresponding article of the Northern Ireland PACE Order. The Section provides that fingerprints and samples taken must be destroyed as soon as is practicable after an acquittal or decision not to prosecute. The implications of Section 64 were brought into focus in the most acute way by two cases heard together in the Court of Appeal R v B and R v Weir. In those cases compelling DNA evidence linked the accused to two particularly bad brutal attacks on elderly people in their homes, one resulting in rape and the other in murder. In both cases a match was made between samples taken at the crime scene and DNA profiles on the database. However, those profiles were derived from samples which were taken in relation to offences of which the two accused had been acquitted. They, therefore, fell to be destroyed under the terms of Section 64. New samples were taken as a result of the link made and it was these new samples which were adduced in evidence. Nevertheless, the Court of Appeal concluded that the matches had been used in the investigation of the subsequent offences contrary to the prohibition in Section 64; that the trial judge had no discretion to admit the evidence and that, therefore, neither man could be convicted. As the Court of Appeal said "It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. Whether in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this Court of Appeal but there can be no doubt as to the seriousness of the consequences". The Government merely has sought to respond to that. The House of Lords' decision in R v B when it reached them on appeal took a rather different approach to that of the Court of Appeal. They decided that the trial judge did have a discretion to admit the DNA evidence, even though it derived from a sample which ought to have been but had not been destroyed. The Government welcomed this decision which at least meant that where compelling evidence was available, the courts were not forced to ignore it. Nevertheless the law was left in what was, in our view, an unsatisfactory state, hence the need for reform. The court might be able to look at evidence if it so happened that the relevant police force had not yet caused the profile to be removed from the database, but that would depend on a combination of chance and police efficiency. Once it is accepted the compelling evidence should be used if it happens to be available, we believe the logical next step is to ensure that it is available. Hence the decision to remove the requirement that such samples be destroyed and not used in subsequent investigations. We accept of course that the retention and use of fingerprints and samples from those who have been acquitted raises potential issues under article 8 of the Convention, which is the point you, Lady Perry, have just raised, but we do not believe that article 8 requires the destruction of this potentially vital objective evidence. We do not expect the police to destroy all the interview notes or documentation relating to previous investigations (whether or not they lead to a conviction). It is accepted that information may well be relevant to subsequent investigations. Information derived from DNA samples is one of the most objective and conclusive forms of establishing involvement in a crime or—equally important—disproving involvement. We do not believe the police should be under a duty to throw it away. The Bill does not affect the position of those who volunteer samples for the purposes of elimination in so-called mass screens. What it does provide is that where samples are taken on suspicion of involvement, they may be retained and used. The police are not given carte blanche to do with them as they will. Clause 81(2) makes it clear that they can only be used for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution. It is the Government's view that any interference with article 8 rights is justifiable under article 8.2 of the Convention in the interests of the prevention of disorder and crime. This is the background for our amendments to clauses 81 and 82 of the Bill. Clause 81(5) as presently drafted has the effect that the duty to destroy samples on acquittal and the prohibition of their use in subsequent proceedings would continue for those acquitted before that part of the Bill comes into force. Amendment 178 changes that position and provides instead that on commencement of clause 81, all prints and samples held at that point could be retained and used. Until that clause comes into force, the position will remain as it is now—the police will be under a duty to destroy the samples and information derived from them as soon as is practicable after an acquittal. If they do not do that and the evidence is in fact available, the court will have a discretion as to whether or not to admit it. The Government's view is that this is a rather unsatisfactory state of affairs and should be rectified as soon as possible. Without amendment 178, the current state of the law will continue to be argued in respect of samples unlawfully retained before the new arrangements come into force. Arguments might continue at length and forces whose destruction policy is the most efficient would be disadvantaged in the fight against serious crime. Once it is accepted in principle that prints and samples should be able to be retained and used in the fight against crime, the sensible course, we believe, is to implement that policy as soon as possible and without making transitional arrangements which will continue the present unsatisfactory position for one category of cases. Amendments 178, 180 and 181 are therefore designed to put the position beyond doubt at the earliest opportunity. I hope that clarifies the situation. I am sorry again to have been lengthy in my answer.

  52. In view of the time perhaps we could ask if your officials could write to us about the second half of my question which is the pressing social need and the number and type of offences that could detected.
  (Mr Clarke) Of course I would be happy to write in those circumstances. Perhaps I could say generally that if the Committee wants to communicate with my Department on other areas of the question which you might have preferred fuller time and fuller answer than we have had here, I will be more than happy to write to you.

   Chairman:We will indeed do that on one particular issue. If we may move onto the last clause, clause 6 in the last minute available to us. Lord Goldsmith?

Lord Goldsmith

  53. Can I at least identify the question and it may be that again a written answer may be more helpful. What new clause 6 does, as I understand it, is to create a new power where if a constable believes that the presence of someone is going to cause harassment or is likely to cause alarm or distress to a victim, then directions could be given. Those directions could plainly involve interfering (in a neutral sense) with freedom of expression or, indeed, other Convention rights such as right of peaceful assembly. One entirely understands that what lie behind this are events which caused enormous public concern in relation particularly to extremist animal groups. But the concern I really wanted to ask you about is the way that the clause is drafted. Again, perhaps it focuses more than anything else on the use of the word "harassment". It will be necessary, I would suggest, to satisfy two tests. One is the "prescribed by law" part of the justification for interference with the Convention rights and, secondly, that the interference is necessary in a democratic society. I can identify, I think, the question best by just saying how does someone who wants to protest about something else, which is a longstanding tradition of this country, recognise that he is doing something which might involve harassment or something which falls the other side? Is protesting about the rights of a particular religious group when a visiting dignitary comes from another country, likely to be harassment of the dignitary; can the protesters all be told to go away? Is protesting outside Downing Street harassment? Where is the line to be drawn and how does the individual know where that line is to be drawn? So I think "prescribed by law" and the definition of harassment is what particularly interests me in this question.
  (Mr Clarke) I will write fully as you suggest, Lord Goldsmith, but in general let me just say, as I mentioned in an earlier answer, I think there is an issue here under the Convention about an individual's right to privacy in certain circumstances and there are offsetting issues and judgments that have to be made about this and it is very difficult and very complicated. I myself believe, and I considered this in great detail before we decided to table this clause, that the only area where difficulty really arises is where a home and office are in the same kind of place. In almost all the circumstances that you have described, Lord Goldsmith, it is that home/office question. Number 10 Downing Street is a classic case but there are many others as well where the issues arise. I think it is indubitable that Parliament would be right to say that an individual, for example the Director of Huntingdon Life Sciences, at his or her home is entitled to peace and enjoyment of their life at that home. It is quite different to have a demonstration which involves harassment at somebody's home than it is at the laboratories or the offices of the organisation concerned. Now we have tried to draw the legislation in a way that balances those judgments but I think, given the time, Chairman, perhaps what I ought to do is to accept Lord Goldsmith's invitation and write fully to you on the precise points that he has made.


  54. Can I say also that with regard to new clause 10, Children in Custody, a Member did wish to raise a point about that. Could you write to us on that?
  (Mr Clarke) Yes. As far as I am concerned, Chairman, I have enjoyed this session a great deal. I do think it is a model of how we should operate. The only criticism I have, as it were, is of myself for sometimes answering your questions at too great length. If I can remedy that by writing fully on the questions that you have raised and I have not been able to give a full elaboration on, I am very happy indeed to do that.

  Chairman: I should have said new clause 9, in any event it is on Children in Custody. Can I thank you for appearing before us today, Minister, and giving us very full answers to the questions that we have raised. I do not know how you have felt about this experience in relation to the Standing Committee procedure, I hope you have found it somewhat more forensic. Thank you for your attendance. We are grateful.

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