Joint Committee On Human Rights Minutes of Evidence


Supplementary memorandum by the Home Office

  1.  This supplementary memorandum is submitted by the Home Office in response to the letter from the Chair to the Joint Committee on Human Rights to Charles Clarke of 8 March 2001. It supplements the Home Office memorandum of 27 February and the oral evidence which Mr Clarke gave to the Committee on 5 March. It responds to points raised during the questioning and subsequently to which there was insufficient time to reply.

New clauses 9 to 12 and particularly New Clause 12 (power to remand youngsters to secure training centres)

  Article 10(2)(b) and (3) of the International Covenant on Civil and Political Rights and article 37(c) of the Convention on the Rights of the Child, require juveniles to be detained separately from adults, and those on remand to be separated from convicted prisoners. The UK has entered reservations to those provisions which effectively prevent them from binding the UK. Does the government intend to maintain those reservations, and, if so, why? (Q54)

  2.  The government has no immediate plans to remove its reservations relating to Article 10(2)(b) and (3) of the International Covenant on Civil and Political Rights and Article 37(c) of the United Nations Convention on the Rights of the Child.

  3.  It has reviewed the position as regards England and Wales and in doing so has taken account of the experience and advice of the Youth Justice Board and HM Prison Service.

  4.  The government is supportive of the aims (reflected in the above instruments) of separating remanded and sentenced detainees and adults and juveniles wherever possible. However, operational experience demonstrates that at times, these aims may themselves conflict. Further, the government must also give full regard to other vital aims. These include that of separating vulnerable detainees from those who might harm them, the need to provide young people with appropriate facilities and regimes and the importance of detaining them as close to their homes and families as possible. All of these crucial and sometimes competing factors must be borne in mind amidst the operational reality of managing a detention estate that can be effectively delivered and financed.

SEPARATION BETWEEN REMANDED AND SENTENCED DETAINEES

Local Authority Secure Units and Secure Training Centres

  5.  The government takes the view that ideally, remanded and sentenced young people should be accommodated separately. However local authority secure units (LASUs) are usually small and distributed around the country to provide facilities as near as possible to people's homes. Even Secure Training Centres (STCs) may be regarded as small when taking into account the fact that they can take a wide range of ages with differing educational needs.

  6.  Local authority secure units have always mixed remanded and sentenced juveniles. Where possible they are accommodated on separate wings on the same campus but join together in regime activities where appropriate. STCs currently may not take remanded juveniles, though New Clause 12 of the Criminal Justice and Police Bill will enable local authorities to request that a young person is placed on remand in an STC.

  7.  Providing completely separate facilities would be both costly and impractical in LASUs and STCs given the comparatively small numbers involved. In addition, staffing levels in both LASUs and STCs enable them to manage risks much more closely on an individual basis than is possible in the prison service. This level of closer supervision mitigates some of the risks that may be inherent in mixing remanded juveniles from those who are sentenced.

HM Prison Service Juvenile Establishments

  8.  In HM Prison Service juvenile sites, which are generally larger than LASUs or STCs, sentenced and unsentenced boys do not mix freely within living units. Each living unit holds only sentenced boys or only unsentenced boys. However they do mix in daytime regime activities/services so long as there is adequate supervision and where an unsentenced boy agrees to join the regime or activity. The purpose of this mix is to meet the common needs of those in the group eg educational classes, health services.

  9.  There are relatively few sentenced and unsentenced young women in custody, and they need to be located reasonably near to their home areas. Separation between remandees and those who have been sentenced is not practicable in these circumstances.

  10.  While the separation of remanded and sentenced detainees is an obvious aspiration in the Criminal Justice system, it may not always be paramount amongst minors who are being accommodated in a welfare/educational environment rather than one which is purely penal in nature. The relative vulnerabilities and ages of minors may at times, be more important determining factors than their criminal status.

SEPARATION BETWEEN JUVENILES (UNDER 18S) AND ADULTS

  11.  Many young men aged 15-17 years are held in prison service accommodation on split sites—that is establishments holding under 18s and 18-20 year olds. Nevertheless, the two groups are kept separate for most purposes including their living accommodation (ie sleeping, eating, washing and association areas) and in their regime activities/services by using separate facilities or by timetabling the separate use of shared facilities to achieve separation. Mixing with 18-20-year-olds is permitted so long as the purpose is to meet common needs (eg attendance at religious observance) and a thorough assessment of the potential harm is reflected in the arrangements for supervising mixing. They may also mix for the purpose of a specialist facility such as a Health Care Unit where the importance of meeting particular needs overrides the requirement to separate (eg when in-patient medical or psychiatric care is required).

  12.  That aside, boys under 18 will occasionally need to be held temporarily in an adult prison in particular circumstances, for example during a court case where there is no juvenile establishment within reasonable distance of the court.

  13.  Young women on remand aged 15 and 16 years have already been moved out of prison service accommodation to local authority secure units. The Government also has plans to move sentenced young women aged 15 and 16 years in non-Prison Service accommodation as soon as possible, but by the middle of next year at the latest. But there is limited non-prison service secure accommodation. For the present, young women aged 17 years on remand will continue to share facilities with adults due to their small numbers and the desirability of keeping them near their homes. Those 17-year-old young women who have been sentenced will need to be held with other young women under 21 in enhanced units in women's prisons.

Licensing law: meaning of "quarrelsome" (clause 34) (Q21)

  14.  In response to Mr Browne's question 21 about the meaning of "quarrelsome", it may be helpful to the Committee to know that the term "quarrelsome" has been used in Scottish licensing legislation since 1862, and licensing legislation in England and Wales since 1872. Although a different system of liquor licensing operates in Scotland, section 79(1)(a) of the Licensing (Scotland) Act 1976 makes it an offence for any person in licensed premises "being riotous, quarrelsome or disorderly" to refuse or neglect to leave such premises on being requested to do so by the occupier or manager or his employee or agent, or by any constable.

Disclosure powers (clauses 45-48)

  15.  The Committee's questions on Part II of the Bill (clauses 45-48) on information disclosure provisions appear to be threefold:

1.  Does the State have a positive obligation, under ECHR Article 8, to impose on private people and bodies with access to information disclosable under clauses 45 and 47 obligations at least equivalent to those imposed directly on public authorities by Article 8 (Oral question (viii)?

  16.  As Mr Clarke explained in giving oral evidence, the government accept that there are situations in which the state may have a positive duty to adopt measures to secure respect for private life. However, in the case of clauses 45 and 47 of this Bill, the government's view is that no further measures are required to secure respect for article 8 rights.

  17.  There are two cases in which information disclosable under clauses 45 or 47 could be accessed by private individuals or bodies. The first is where the person making the primary disclosure is not a "public authority" within the meaning of section 6 of the Human Rights Act 1998. The second is where the recipient of the information disclosed in accordance with either clause 45 or clause 47 is a private individual or body.

  18.  On the first point, Mr Clarke mentioned that a few provisions had been identified in which the person making the primary disclosure under the Act might not always be a "public authority" within the meaning of section 6-section 4 of the Electronic Communications Act 2000 (which is not yet in force), section 206 of the Water Industry Act 1991 and section 204 of the Water Resources Act 1991.

  19.  Having had the opportunity to examine the point over the last few days, the government is now of the opinion that the relevant bodies under the Water Industry Act 1991 and the Water Resources Act 1991 probably should be regarded as "public authorities" within the meaning of section 6 for the purpose of their regulated activities. It should also be noted that the Electronic Communications Act 2000 is not in force and that no information is therefore presently held pursuant to this statute. Further, it is not currently intended to bring the relevant provision of this statute into force and the provision will lapse if it does not come into force within the next five years. Nevertheless, even if disclosures were possible under these provisions by a person who was not a "public authority", such a person would not be in any way free to disclose such information at will.

  20.  Mr Clarke explained why the Data Protection Act 1998 operates as a filter on the type of information that can be disclosed and requires an assessment of the proportionality of disclosing the information to be carried out before a decision to disclose is made. For this reason, the government does not believe that any further measures are required to ensure that bodies which are not "public authorities" within the meaning of section 6 undertake a balancing exercise prior to disclosure.

  21.  In any event, the government believes that it would be inappropriate to introduce a proportionality test into the legislation for private individuals. This is because it would be very difficult for a private person or body to be certain, in an individual case, whether the proportionality test pointed in favour of disclosure in the wider interest of preventing crime, or non-disclosure in the interests of an individual's privacy. However, an individual should be able to ascertain whether a particular disclosure is or is not within the scope of the disclosure provision so that he can ensure that he does not fall foul of the criminal law. The penalty for making a disclosure in contravention of these statutes is criminal.

  22.  The second case in which information disclosable under clauses 45 or 47 could be accessed by private individuals or bodies is where information is disclosed via the provisions in Schedule 1 (which are subject to clause 45) or under clause 47 to a private individual or body.

  23.  In the vast majority of cases, information disclosed via the provisions listed in Schedule 1 (to the extent that they are affected by clause 45) or clause 47, will be disclosed to other bodies that are also "public authorities" within the meaning of section 6 of the Human Rights Act. This is because information disclosed for the purposes of criminal investigations or proceedings will invariably be disclosed to prosecuting authorities. There is, however, the theoretical (if unrealistic) possibility than information could be disclosed via these provisions for the purpose of a private prosecution.

  24.  In practice, such disclosures are highly unlikely for a number of reasons. The disclosure provisions are discretionary—disclosure cannot be compelled under any circumstances by a person requesting disclosure.

  25. The primary information-holder will usually be subject to the requirements of either the Human Rights Act 1998 or the Data Protection Act 1998 or both. These would involve a pre-assessment as to the proportionality of making the disclosure which would be less likely to favour disclosure in a case involving a private individual.

  26.  In the unlikely situation that information was disclosed to a private individual for the purposes of a private prosecution, that person would be obliged to respect the confidentiality of the information received in the majority of cases, this requirement to respect the confidentiality of the information received would be required by the statute. Onward disclosure would only be possible for the purposes authorising the primary disclosure.

  27.  In some cases, such as clause 47, the disclosing authority would be able to impose conditions upon the recipient about further disclosure that would be additional to the requirement that of criminal investigations or proceedings. In the rare cases where onward disclosure by private recipients would not be restricted by the statute, they would be subject to common law obligations of confidentiality.

(2)  Can the innocent ordinary citizen be confident that these mechanisms will not be misused against them (Q40)?

  28.  The government is satisfied that because of the safeguards in place, the new powers provided by clauses 45 and 47 will not be misused against innocent citizens. The safeguards include the following:

    (a)  Disclosures will only be possible where the information-holder is satisfied that the information is relevant for the purposes of a criminal investigation or criminal proceedings.

    (b)  The disclosure provisions are permissive. Information-holders cannot be compelled (in the absence of a court order) to disclose information under either clause 45 or clause 47.

    (c)  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 a criminal investigation or criminal proceedings.

    (d)  Recipients of information from the Inland Revenue or HM Customs and Excise via these disclosure provisions are not permitted to disclose the information for any purpose other than a criminal investigation or proceedings and then only with the permission of the relevant Commissioners.

    (e)  As explained in oral evidence, the information-holders will invariably be subject to the requirements of the Human Rights Act 1998 and the Data Protection Act 1998. These statutes require a pre-assessment as to the proportionality of making the disclosure. This means that the information-holder would need to carry out a balancing exercise between the wider interests in combatting crime and the individual's right to privacy. This should help to ensure that abuses of the power do not occur.

    (f)  It is intended that disclosures of information via clause 47 will be regulated and controlled by procedural requirements to be drawn up by the relevant authorities and distributed to relevant members of staff.

3.  Is the government satisfied that these provisions are proportionate notwithstanding the extensive list of bodies in Schedule 1 (Q 38-40)?

  29.  Each of the statutes listed in Schedule 1 already allow disclosure for the purposes of criminal investigations or criminal proceedings. The content of the information acquired by virtue of the statutory regimes listed in Schedule 1 will vary considerably from statute to statute. The individual statutes target a number of very different concerns (although certain categories of statutes can be linked), but they all share a common thread. They each restrict the disclosure of information acquired pursuant to that statute, but provide a carve-out for disclosures made for the purposes of criminal investigations or criminal proceedings.

  30.  It is possible that information held pursuant to any of these statutes will be useful for the purposes of a criminal investigation or criminal proceedings. Nevertheless, some statutes by their nature will be likely to generate less relevant information for these purposes than others. It may be that information held pursuant to certain statutes will only very infrequently be relevant to a criminal investigation or proceedings. However, the government's view is that such disclosures should be possible in the event that the relevant case arises. It believes that in each case, the wider interests in preventing and combatting crime outweigh the individual's right to privacy. As has been mentioned, there are a number of safeguards which exist to ensure that these powers are not abused.

  31.  The Committee raised the particular examples of the Sex Discrimination Act 1975 and the Race Relations Act 1976. As is standard in the case of specific restrictions on the disclosure of information acquired pursuant to a particular statute, a carve-out was provided in both these statutes at the time of enactment which enabled information to be disclosed for the purposes of criminal proceedings.

  32.  The current provisions do not allow the Commissions to release information prior to the institution of criminal proceedings. Formal proceedings would need to be commenced before information, legitimately obtained by the Commissions under their formal investigation powers, could be released. The additional disclosure powers would enable the relevant Commissions to provide information for the purposes of a criminal investigation or where consideration was being given to launching a criminial investigation. In the event that information was held by the relevant Commissions that demonstrated, for example, that a crime had been committed, the limitation inherent in the current disclosure provisions could mean that proceedings would never be initiated.

  33.  Removal of any of the provisions from the list in Schedule 1 would result in a continuation of the uncertainties that have been identified about 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. Inclusion within Schedule 1 is important to ensure individuals are able to regulate their conduct so as to remain within the bounds of the law.

Intimate searches and samples (clauses 78 and 79)

The issue of guidance for inspectors when deciding whether it is impracticable to have an intimate search conducted by a medically qualified person (Q41-50)

  34.  The Home Office memorandum of 27 February set out at paragraphs 73 to 80 the limited circumstances in which an intimate search may be carried out by a constable. As that memorandum made clear the only change made by the Bill is that the decision to authorise such a search could be made by an officer or inspector rather than superintendent rank. There are substantial safeguards in section 55 of PACE and Code C issued under that Act.

  35.  An intimate search by a constable can only be authorised where the senior officer reasonably believes the detainee has concealed a dangerous item on his person with which he may harm himself or others; that the item cannot be found without an intimate search; and considers that it is not practicable for the search to be carried out by a medically qualified person. Annex A of Code C states that the reasons why an intimate search is considered necessary shall be explained to the person before the search takes place. A constable may not carry out an intimate search of a person of the opposite sex.

  36.  Whenever an intimate search is carried out, the custody record must state which parts of the body were searched and why they were searched. In addition, Annex A of Code C provides that where an intimate search is carried out by a constable, the reason why it was impracticable for a suitably qualified person to conduct it must be recorded.

  37.  Section 55 also makes it a requirement for figures to be published annually showing the total number of intimate searches, the persons who conducted the searches, the reasons for the search and the results of the search.

  38.  In practice, the circumstances in which a superintendent will need to authorise an intimate search of a person by a constable are rare. Such a situation would arise where, for example, a superintendent reasonably suspects a person has concealed a harmful article on himself, such as a knife or razor blades, and no doctor or nurse is available to conduct an intimate search.

  39.  Figures for 1999-2000 reveal that there were only 4 cases in which constables were recorded as carrying them out.

  40.  While guidance on this issue is not set out in precise terms in Code of Practice C, it is clear from the statutory framework and the statistics recorded that searches by constables are genuinely exceptional. The government is however revising Code C as part of a general revision of all PACE codes of practice. In that context we shall consider including specific guidance for inspectors on exercising discretion in cases where a doctor or nurse is not available to conduct an intimate search.

Restrictions on use and destruction of fingerprints and samples (clauses 81 and 82, as amended)

THE IMPLICATIONS FOR ECHR ARTICLES 6. 8 AND 13 OF THE RETROSPECTIVE OPERATION OF CLAUSES 81 AND 82, AS AMENDED BY GOVERNMENT AMENDMENTS IN STANDING COMMITTEE

Article 8

  41.  Mr Clarke explained to the Committee the background to these provisions and the reasons for believing them compatible with article 8 of the Convention. The government does not believe that removing the transitional provision in clause 81(5) of the Bill affects the balance of argument under article 8.

Article 6

  42.  As far as article 6 of the Convention is concerned, the type of evidence we are concerned with—fingerprints and DNA—is amongst the most compelling and objective evidence in the fight against crime. It may conclusively establish involvement in a serious crime. It may on the other hand conclusively exonerate someone who might otherwise have been convicted on the basis of circumstantial or confession evidence. It is in the interest of justice and in the interests of the defendant that this evidence be available to the court.

  43.  Turning again to the facts of the cases of R v B and R v Weir, the government do not believe any sensible person would say that an injustice would have been done had the conclusive evidence of involvement in rape and murder led to their conviction.

  44.  The Convention does not require (and nor does English law) that evidence which was obtained or was held unlawfully is necessarily inadmissible in a trial. The courts will retain their discretion under section 78 of PACE to exclude DNA evidence which ought to have been destroyed under the existing law, if they believe it would have a detrimental effect on the fairness of a particular trial.

Article 13

  45.  As far as article 13 of the Convention is concerned, the government do not believe that either the substantive provisions of clause 81 or the amendments to the transitional arrangements give rise to any violation of the Convention rights. We do not believe the current "right" under PACE to destruction of samples is a "right" protected by the Convention. It follows that we do not believe any separate issue arises under article 13. If an issue of fairness arises as to the admissibility of particular evidence during a criminal trial, section 78 of PACE provides the court with the means to exclude that evidence.

NUMBER AND TYPES OF OFFENCES AFFECTED BY THE AMENDMENTS

  46.  Those affected by the amendments to clauses 81 and 82 will be a relatively small group, ie those who had been acquitted before commencement of the section but whose samples had not yet been removed from the database. Until the amendments to section 64 come into force, the police will still be under an obligation to destroy samples. The Forensic Science Service currently remove an average of 600 profiles a week from the National DNA database. This will include samples relating to all the offences in relation to which samples can be taken.

  47.  In these circumstances it is likely that the evidence resulting from the speculative search on the database will be the first indication that an individual was involved in a crime other than the one for which the DNA sample was taken. There is therefore a high probability that without the DNA evidence, the crime would not be detected. It is also probable that any subsequent investigation would rely upon the DNA evidence as in the cases of R v Weir and R v B. The government would not wish to see further cases where rape and murder go unpunished. Hence our wish to make the change as soon as possible to reduce any further uncertainty.

Harassment of people' homes (New clause 6)

The certainty of the criteria for the exercise of the new police powers and related offences of harassment etc (Q53)

  48.  The government accept that the provisions of new clause 6 may engage rights under article 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the Convention. However those rights are not absolute and are subject to the restrictions permitted by articles 10.2 and 11.2. Of particular relevance in this context are the interests of preventing disorder or crime and protecting the rights and freedoms of others.

  49.  Rights of freedom of expression and rights of assembly must also be balanced against the other Convention rights, most notably the article 8 rights of those against whom these protests are directed to privacy and family life and to carry out their lawful occupations.

  50.  New clause 6 does not prevent anyone from expressing their views about animal rights issues (or indeed any other issues). Nor does it prevent pickets, assemblies or demonstrations. It does not affect demonstrations which are held away from people's homes. The right to carry out a peaceful picket of a workplace in furtherance of a trade dispute is specifically preserved. Even in relation to protests outside people's homes, it does not create any kind of blanket offence. No one is stopping people from expressing their genuinely held views, but the government are determined to offer some protection to the victims of campaigns of harrassment and intimidation around their homes.

  51.  If the police are satisfied on reasonable grounds that the conditions in the secction are met—ie that the protest is an attempt to pursuade someone not to do something they are entitled to do (or to do something they don't have to do) and that is likely to cause harassment, distress or alarm to the victims or their families, they can direct those concerned to move away.

  52.  The government is satisfied that this is a sufficiently clear test for the exercise of the constable's powers. It would be impossible to prescribe in detail precisely what behaviour or activities might give rise to harassment, alarm or distress. The tactics of those involved in these sort of protests vary. They may include large numbers of people gathering outside the home. They may include tactics such as videotaping children arriving at and leaving the house. They may include chanting or the display of posters and photographs. The clause gives the constable a discretion which he must exercise on reasonable grounds to decide whether or not the presence of those concerned is likely to cause harassment, alarm or distress.

  53.  If he decides that those results are likely to be caused, he may issue a direction to those involved. The terms of the direction must be those necessary to prevent the harassment etc continuing. The terms of the direction will be precise. They may involve requirements as to how far away from the premises protesters must move or as to who and how many may remain. The protesters will be in no doubt as to what they must do to comply with the direction. It is knowingly failing to comply with the direction which constitutes the offence under this section, not the fact of protesting outside the house or of causing harassment.

  54.  It follows that we are satisfied that the terms of new clause 6 are fully compliant with the requirement that any interference with article 10 or 11 rights must be "prescribed by law".

8 March 2001


 
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