Joint Committee on Human Rights First Report

E. Part 1, Chapter 3: Other provisions for combatting crime and disorder

33. Clauses 33 to 46 of the Bill contain miscellaneous measures designed (i) to prevent convicted drug traffickers from travelling abroad after release from prison, (ii) to protect witnesses from intimidation and harassment, (iii) to combat harassment of people in their homes by protesters, and (iv) to extend the scope of child curfew schemes.

(i) Travel restriction orders against drug trafficking offenders

34. Clause 33 applies where a person has been convicted of a drug trafficking offence,[40] and the sentencing court has determined that it is appropriate to impose a sentence of at least four years' imprisonment. In such a case, the court has a duty both (a) to consider whether it would be appropriate to make a travel restriction order, taking account of any other drug trafficking convictions which the defendant has had after the commencement of the legislation and all the other circumstances, and (b) to make such an order if it determines that it is appropriate to do so. If the court decides not to make an order, it must give reasons for that decision.[41] The effect of such an order is to prohibit the defendant from travelling abroad for a specified period of at least two years from the time he is released from custody.[42] The order may require the offender to deliver up any passport held by him to the Secretary of State, who may retain the passport until the end of the duration of the order (unless it is suspended earlier), and until the offender applies for its return. If the passport expires earlier, it need not be returned.[43] There is provision for an order to be revoked after it has been in force for a 'minimum period'[44] if the court is satisfied that it is appropriate to do so taking account of the person's character, his conduct since the making of the order, and the offences of which he was convicted.[45] Before the end of the minimum period, a court may suspend the order for a specified time if satisfied that there are exceptional circumstances justifying suspension on compassionate grounds, taking account of all the circumstances (including the offender's character and conduct and the offences of which he was convicted).[46] It is an offence to contravene an order.[47]

35. The purpose of these provisions is said by the Government to be to 'mak[e] it more difficult for convicted drug traffickers to travel overseas and thereby to help to prevent and disrupt drug trafficking.' To that end, the Government envisages that orders will be made in respect of offences 'identified by virtue of a direct relationship with overseas travel and subject to a sentencing threshold of four years to distinguish serious cases.'[48] In this way, it is hoped to make a contribution to the Government's 10-year National Drug Strategy.[49] These provisions give rise to several human rights issues.

36. The United Kingdom is a party to the International Covenant on Civil and Political Rights, Article 12.2 of which provides, 'Everyone shall be free to leave any country, including his own.' This necessarily includes a right to a passport.[50] These rights may be subject to restrictions, but these 'must not impair the essence of the right...; the relation between right and restriction, between norm and exception, must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.'[51] The United Kingdom has not entered any reservation to Article 12.2, and is accordingly bound by it in international law, although the rights do not form part of national law, falling outside the definition of Convention rights in the Human Rights Act 1998.[52]

37. It is clear that making a travel restriction order and withdrawing a person's passport would interfere with the right to leave the country under Article 12.2. It is also possible that an order might interfere with the right to family life under Article 8 ECHR, for example by preventing the enjoyment of normal family ties if, for any reason, members of an offender's family were unable to enter the United Kingdom. The question is whether such interference can be justified so as to make it compatible with people's rights in international law and the United Kingdom's international obligations and the rights. There is little doubt that the Bill, if enacted, would afford adequate legal certainty. But would the orders be for a legitimate purpose? They might certainly be 'necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others'. The Government believes that the orders would be justifiable as necessary to protect public order, having punitive, preventive and deterrent functions.[53] However, we were concerned about two possible ways in which such orders might fail to be justifiable under Article 12.3.

38. First, it was not clear that orders made under clause 33 of the Bill would always serve a legitimate purpose. Nothing in clause 33 expressly requires the sentencing court to have regard to the tests set out in ICCPR Article 12.3, or the preventive function of the orders (as distinct from their punitive and deterrent functions).[54] Nor does clause 33 even direct the court's attention to those matters. This is particularly important in view of the fact that Article 12.3 does not directly form part of United Kingdom law, so the court might not have its attention directed to it by counsel. When asked whether it would be possible to use the clause to require the court to have regard to the likelihood that the offender would use travel abroad to offend again, the Minister stressed that a travel restriction order could be seen as a legitimate sentencing option irrespective of its preventive role.[55] He also noted that a travel restriction order is a less severe form of interference with liberty than imprisonment, which is accepted as a permissible penalty for drug trafficking.[56]

39. We understand the Minister's point of view and have sympathy with the Government's objectives. However, clause 33 does not make it clear whether the purpose of making a travel restriction order is punitive, preventative, or both. In any case, a sentence of the court must comply with the United Kingdom's human rights obligations no less than any other state action. This is why imprisonment following conviction by a competent court has to be expressly permitted as an exception to the right to liberty, for example in ECHR Article 5.1(a). Where a sentence includes a restriction of the freedom to travel, otherwise than by way of imprisonment, that must be justifiable by reference to the criteria set out in the relevant Article.

40. We accept that a travel restriction order may, in appropriate cases, be a justifiable interference with an individual's rights. The Minister, during his oral evidence to us, maintained that travel restriction orders could serve a legitimate aim and be 'necessary', i.e. a proportionate response to a pressing social need, so as to be justifiable under ICCPR Article 12.3. He explained that in a randomly selected sample of 15 'familial' drug trafficking organisations (where two or more dominant members of the organisation are blood or familial relatives) and 15 'network' organisations (where dominant members are not related to each other), the National Criminal Intelligence Service found that almost all of them are active outside the United Kingdom, and in each case the dominant members travelled outside the United Kingdom more than six times a year, probably to attend important meetings or handle business transactions in person.[57] However, we are not persuaded that clause 33 makes it clear that an order can be made only for the legitimate purpose of preventing or disrupting future drug trafficking by the offender and his or her associates. We consider that clause 33 should expressly state that the likelihood of future drug trafficking, involving foreign travel, is relevant to the decision to make a travel restriction order. The absence of such a provision gives rise to a risk that orders will be made in circumstances which give rise to a breach of the United Kingdom's human rights obligations.

41. We are also concerned that the structure of clauses 33 to 37 may lead to an order being made, or continuing in existence, in circumstances in which it is not or has ceased to be proportionate to any legitimate aim. For example, drug couriers can be sentenced to terms of imprisonment in excess of four years for importing a relatively small quantity of controlled drugs on a single occasion. It might be disproportionate to impose a long (perhaps indefinite) travel restriction order on a teenager in addition to a long prison sentence, particularly if there were to be no serious risk of re-offending. If the other members of the offender's family were prevented from travelling to the United Kingdom to join him for any reason, a travel restriction order might also take away the very essence of the right to respect for family life under Article 8 ECHR, and so almost unavoidably be disproportionate in some cases.[58] On the question of proportionality, the Government relied again on the importance of combatting drug trafficking, and the importance of travel to major traffickers. They also pointed out that clause 37(1)(b) and (3) allows an order to be suspended in exceptional circumstances on compassionate grounds, and clause 37(1)(a) and (2) allows a court to revoke an order after the end of the minimum period calculated in accordance with clause 34(7).[59]

42. However, clause 35(3) provides that a travel restriction order may be suspended only in 'exceptional circumstances' on 'compassionate grounds'. This might leave a court in a situation where it could not make arrangements to take account of pressing circumstances which were not regarded as exceptional, and result in an unavoidable failure of proportionality. As the right is not a Convention right within the meaning of the Human Rights Act 1998, the court would be under no duty to interpret clause 35 in a manner compatible with the right so far as possible, and would not be able to make a declaration of incompatibility under section 10 of the Act. We welcome the Minister's agreement during his oral evidence to us that 'there should be proper guidance [about] the inter-relationship between this law and the relevant international documents for judges ... on proportionality', and his commitment to work with his colleagues and other Government Departments to achieve that.[60] We consider that this should be reflected in the Bill. We therefore draw the attention of each House to these clauses, which we do not believe to be compatible as they stand with the international obligations of the United Kingdom under the ICCPR. The provisions should make it clear that travel restriction orders are to be made only when they serve a legitimate aim under Article 12.3 of the ICCPR, and are proportionate to that aim. The provisions should also make it clear that orders are to be suspended or revoked when they no longer serve a legitimate aim or are not, for the time being, proportionate to such a legitimate aim. We consider that clause 33(1) and clause 35(3) should be amended in order to secure compliance with the ICCPR.

43. The exercise of the power to make travel restriction orders may also give rise to problems under Community law. Other than in a wholly internal situation, an order under clause 35 appears capable of interfering with the free movement of workers and their families,[61] the right of establishment (i.e. free movement of self-employed persons),[62] and the provision of services.[63] Limitations of these freedoms may be expressly permitted on the grounds, inter alia, of public policy and public security,[64] and the Court of Justice has acknowledged that there may be other overriding interests. But there is no automatic, comprehensive exclusion for the implementation of domestic criminal law. The Court of Justice is concerned to ensure that any restriction on Treaty freedoms is both justified in the circumstances and proportionate to the legitimate aim pursued. There is thus a risk that a travel restriction order made against a person with legitimate business interests requiring him or her to move between Member States of the Community could contravene Community law. However, this would call for examination on a case by case basis rather than in general terms and in the abstract. The power to make an order would have to be interpreted in a manner consistent with Community law. Therefore clause 35 itself would not necessarily be incompatible in practice with rights under Community law.

(ii) Provisions protecting witnesses: clauses 38 to 40.

44. These provisions extend to witnesses in civil proceedings similar protection to those already available under statute in relation to witnesses in criminal proceedings, by making it a criminal offence to intimidate, harm or threaten to harm a witness with the intention of causing the course of justice to be obstructed, perverted, or interfered with.[65] We do not consider that they raise issues of human rights which require special attention.

(iii) Police directions stopping the harassment, etc., of a person in his home

45. Clause 41 was inserted during the Committee Stage in the House of Commons, and is therefore not covered by the statement of compatibility made by the Home Secretary under section 19 of the Human Right Act 1998 when he introduced the Bill to the House of Commons. The clause was drafted in the light of the campaign being conducted by protesters against people connected to companies carrying out experiments on live animals. The effect of Clause 41 is to allow the senior[66] police officer present in the vicinity of premises used by someone ('the victim') as his dwelling[67] to give directions to a person 'to do all such things as the constable giving it may specify as the things he considers necessary to prevent one or both of the following-(a) the harassment of the victim; or (b) the causing of any alarm or distress to the victim.'[68] The sole express limitation is that the officer has no power to direct someone to refrain from picketing his work place, which is lawful under the Trade Union and Labour Relations (Consolidation) Act 1992, section 220.[69] This power arises if two conditions are satisfied. First, the officer must believe on reasonable grounds that the person is there for the purpose of 'representing to the victim or another individual (whether or not one who uses the premises as his dwelling), or of persuading the victim or such another individual', that he should not do something he is entitled or required to do, or that he should do something he has no obligation to do.[70] Secondly, the officer must believe on reasonable grounds that the presence of that person either amounts to, or is likely to result in, harassment of the victim, or is likely to cause harassment, alarm or distress to the victim.[71] It would be an offence knowingly to contravene a direction, and a constable would have a power to arrest without warrant anyone whom he reasonably suspected of committing that offence.[72]

46. These provisions necessarily engage the right to freedom of expression, including 'the right to ... impart information and ideas without interference by public authority', under ECHR Article 10.1. Some particular directions might also engage the right to freedom of peaceful assembly under Article 11.1, although one can imagine directions which would not affect that right.

47. It is clear that the restrictions under Clause 43 would pursue legitimate aims. The question remains whether the restrictions would satisfy the tests of legal certainty, pressing social need and proportionality. It seemed to us to be possible that the standard of behaviour which 'amounts to, or is likely to result in, the harassment of the victim' or 'is likely to cause alarm or distress to the victim' might be too vague to satisfy the test of legal certainty.

48. We also considered that there might be a risk of the power being used arbitrarily and disproportionately. Although this is principally a matter for police officers when exercising the power (as they would be acting unlawfully if it were used in a disproportionate way),[73] we thought it important to know whether the Government considered that the power would be sufficiently wide to inhibit legitimate political protests, bearing in mind the complaints which followed attempts by the police to protect a Chinese delegation from peaceful protests by Tibetan demonstrators in London in 2000.

49. These points were raised with the Minister when he gave oral evidence to us. He pointed out that the clause was narrowly drawn to protect people in their homes, in order to uphold their right to respect for private and family life and the home under ECHR Article 8. He agreed to provide further written evidence relating to the Government's view about the potential of the 'harassment' standard to allow interference with legitimate political demonstrations, and whether the word meets the standards required by the term 'prescribed by law' under ECHR Article 8.2.

50. The further written evidence from the Home Office[74] reiterated that protecting people's right to respect for their private lives and homes is a legitimate aim of steps which interfere with rights under Articles 10 and 11. Observing that protestors would remain free to demonstrate away from people's dwellings, the Government pointed out that it is impossible to specify in detail the conduct which is to be prohibited. It will depend on the circumstances in each case. The Government considered that it would be acceptable for the legislation to be drafted in broad terms, because the directions given by police officers will have to be precise.

51. In view of the fact that the directions given by police officers will be unlawful if they are not compatible with the requirements of Articles 10.2 and 11.2, including the principle of proportionality, we do not wish to draw these provisions to the attention of either House.

(iv) Extension of child curfew schemes: clauses 45 and 46.

52. The Crime and Disorder Act 1998, section 14, introduced a power for local authorities to introduce 'child curfew schemes', designating public places in which children under the age of 10 are not permitted to be during specified hours between 9 pm and 6 am unless they are under the effective control of a parent or other responsible adult. The schemes require to be confirmed by the Secretary of State. Under section 15 of the Act, a constable who has reasonable cause to believe that a child is contravening a child curfew scheme is empowered to remove the child to its place of residence (unless he has reasonable cause to believe that the child would suffer significant harm if taken there). The constable must also inform the local authority, which then has a duty under the Children Act 1989 to investigate within 48 hours.

53. Clause 45 of the Criminal Justice and Police Bill would amend section 14 of the 1998 Act to allow child curfew schemes to be applied to children under the age of 16. In addition, clause 46 would allow a chief officer of police to make a child curfew scheme after consulting local authorities in whose areas the proposed scheme would operate.

54. The Government's purpose in introducing the power to make child curfew schemes was to prevent young trouble-makers from gathering regularly to commit crimes and cause disorder. However, neither section 14 of the 1998 Act nor clause 45 of the current Bill specifies that the power is to be used for that purpose. Furthermore, the legislation restricts the freedom of young people whether or not the individuals have committed, or are likely to commit, any offence, or have caused or are likely to cause disorder: the restriction is imposed on an area, not on individuals. Finally, a child or young person is liable to be taken into custody by a constable and taken home simply as a result of being in a place at the wrong time. The legislation does not require that the constable should believe or suspect that the individual has behaved, is behaving, or is likely to behave in a criminal or disorderly way.

55. It is at least arguable that child curfew schemes interfere with human rights in three areas: the right to liberty; the right to privacy, or respect for private life; and the right to freedom of association and peaceful assembly. Children and young people are entitled to the right to privacy (or respect for private life),[75] the right to freedom of association and peaceful assembly,[76] and the right not to be arbitrarily deprived of their liberty.[77]

56. We attempted to evaluate the proposed extension of child curfew schemes in the light of these human rights concerns. The cogent explanation of the purposes and operation of the schemes provided by the Government's response[78] persuaded us that individual child curfew schemes may be capable of being justified as being for legitimate purposes (particularly the protection of children and young persons against the risk of being injured or drawn into prostitution, drug or alcohol abuse, sexual abuse, or crime), and that the powers of the police were intended to help to divert children and young persons away from the criminal justice system. However, given the existence of other wide powers available to the police to protect young persons and to maintain public order, child curfew schemes may be disproportionate interferences with rights, in that they may not be the least restrictive measures necessary to accomplish the objectives set out by the Government. We accept that the making of individual schemes, and the exercise of the powers of the police and other officials in relation to them, would be unlawful if they do not comply with the requirements of Convention rights, but the same is not true of non-compliance with the ICCPR and CRC which do not form part of national law.

57. We recognise the importance of the Government's aims. However, we remain concerned about the proportionality of child curfew schemes, especially considering the extent of the discretion given to individual constables where a scheme is in force, taking account of the other powers available to the police to protect children and young persons and to prevent disturbances in public places. We consider that safeguards are needed against the arbitrary exercise of powers to make and operate these schemes. A first safeguard might be that the legitimate aims of the schemes should be written into section 14 of the Crime and Disorder Act 1998 which would be amended by this Bill. The operation of the schemes should then be carefully and continuously monitored to ensure that the powers are not being used in a disproportionate way. We therefore draw these provisions to the particular attention of each House.

40   'Drug trafficking offence' is defined in cl. 34(1). It includes production and supply of controlled drugs and related offences under the Misuse of Drugs Act 1971, as amended (subject to a power in the Secretary of State to amend the list by statutory instrument); offences under the Customs and Excise Management Act 1979 of illegal importation, exportation, or evasion of controls and duties in relation to a prohibition or restriction having effect by virtue of s. 3 of the 1971 Act; and a conspiracy or incitement to commit any such offence. Back

41   Cl. 33(2). Back

42   Cl. 33(3). Back

43   Cl. 33(5). Back

44   The 'minimum period' is two years where the order is made for up to four years, four years in respect of an order for between four and ten years, and five years in any other case: cl. 35(7). Back

45   Cl. 35(1), (2). Back

46   Cl. 35(1), (3), (4). Back

47   Cl. 36. Back

48   Criminal Justice and Police Bill Explanatory Notes [Bill 31-EN] para. 101.  Back

49   Home Office, Tackling Drugs to Build a Better Britain (London: Home Office Communications Directorate, April 1998). Back

50   Communication no. 57/1979, Vidal Martins v. Uruguay; Communication no. 77/1980, Lichtenstejn v. Uruguay; Communication no. 106/1981, Montero v. Uruguay; Communication no. 263/1987, Gonzales del Rio v. Peru; and see Human Rights Committee General Comment No. 27, 18 Oct. 1999, 7 IHRR 1, para. 9. Back

51   United Nations Human Rights Committee, General Comment No. 27, 18 Oct. 1999, 7 IHRR 1, para. 11. Back

52   There is, in addition, an obligation under the ICCPR, Art. 2.3, to provide an effective remedy for any violation of a right or freedom recognized in the ICCPR. Back

53   Home Office Memorandum, paras. 25 and 26. Back

54   The Law Society drew attention to this point in their Briefing Paper on the Bill for its Second Reading in the House of Commons, reprinted in the First Special Report, pp. 18-19. Back

55   Oral evidence, QQ. 24, 25 and 27. Back

56   Oral evidence, QQ. 26 and 28. See to the same effect Home Office Memorandum, paras. 25 and 26. Back

57   Oral evidence, answer to Q. 32. Back

58   The case-law of the European Court of Human Rights relates to attempts to prevent deportation after conviction of a criminal offence, not challenges to orders preventing people from leaving the country. See, e.g., El Boujaïdi v. France (1997) 30 EHRR 223; Mehemi v. France (1997) 30 EHRR 739. However, similar principles should apply. Back

59   Home Office Memorandum, para. 31. Back

60   Oral evidence, Q. 35. Back

61   Arts. 43-48 of the Treaty establishing the European Community (TEC). Back

62   Arts. 49-55 TEC. Back

63   Arts. 56-60 TEC. Back

64   Arts. 39(3), 46 and 55 TEC. Back

65   Cl. 38(1), (2). Cp. Criminal Justice and Public Order Act 1994, s. 51, dealing with protection for witnesses in criminal proceedings. Back

66   Clause 41(6)(a). Back

67   Clause 41(1)(a). Back

68   Clause 41(2). Back

69   Clause 41(6)(b). Back

70   Clause 41(1)(b). Back

71   Clause 41(1)(c). Back

72   Clause 41(7), (8). Back

73   Human Rights Act 1998, s. 6. Back

74   Home Office Supplementary Memorandum (printed in our First Special Report at pp. 66-72), at paras. 48-54. Back

75   ICCPR Article 17, the UN Convention on the Rights of the Child (CRC) Article 16, which the United Kingdom has ratified and by which we are bound in international law, and ECHR Article 8. Back

76   ECHR Article 11, ICCPR Arts. 21 and 22, and CRC Article 15. Back

77   ECHR Article 5, ICCPR Article 9, and CRC Article 37(b). Back

78   Home Office Memorandum, paras. 32-53. Back

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