Joint Committee on Human Rights First Report

H. Part 4 of the Bill: Other extensions of police powers under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000

71. Clauses 72 to 87 contain miscellaneous provisions which would extend in various ways the powers of the police under the Police and Criminal Evidence Act 1984, the Police and Criminal Evidence (Northern Ireland) Order 1989, and the Terrorism Act 2000. The following seem to us to be unexceptionable on human rights grounds:

clauses 72 and 73, adding to the list of 'arrestable offences' for which a person may be arrested without warrant under the 1984 Act;

clause 74, allowing reviews of detention to be conducted by telephone or video-conferencing where necessary, and clause 76, allowing hearings of applications for warrants of further detention, etc., in terrorism cases to be conducted by video link rather than in the physical presence of the detainee and his representative. We note the concern expressed about clauses 74 and 76 by Liberty in its briefing for the Second Reading of the Bill in the House of Commons,[98] and the opposition of the Police Federation in submissions to the Home Office,[99] on the ground that it weakens the protection for the rights and safety of detainees. These are important concerns. However, we take the view that they relate to matters of good practice, and that the remaining safeguards are such that the risks which are identified do not amount to a serious threat of a violation of human rights;

clause 75, replacing a superintendent with an inspector as the officer required to authorise a delay before a detained suspect is permitted to notify someone of his arrest and detention. The right not to be held incommunicado is not a Convention right, but it is safeguard of the right not to be detained except in accordance with the law and for a legitimate purpose (ECHR Article 5.1) and not to be subjected to torture or inhuman or degrading treatment while in detention (Article 3). Allowing an inspector to authorise delay increases the number of cases in which the authorising officer may be of the same rank as, or lower rank than, the arresting or interviewing officer, and so weakens the reliability of the protections for those rights. However, we are not convinced that the impact on the core Convention right is sufficient to justify concern. We have reached the same conclusion in relation to clause 79(2), which gives an inspector, rather than a superintendent, the power to authorise compulsory fingerprinting;

   clauses 77 and 78, giving power to the Secretary of State to issue a code of practice on visual recording of police interviews, and, by statutory instrument, to require visual recording;

clause 79 (apart from sub-clause (2), already mentioned), conferring power on the police to require people who have been convicted of a recordable offence to attend a police station to have fingerprints re-taken where an earlier set was incomplete or of insufficient quality to allow satisfactory analysis, comparison or matching, and to require fingerprints from those who have been cautioned or given a warning or reprimand in respect of a recordable offence or who have answered bail but whose identity is in doubt.

72. Clause 86 usefully allows the Secretary of State to make a statutory instrument applying the protections for special procedure material under the Police and Criminal Evidence Act 1984 to investigations by the Department of Trade and Industry into serious arrestable offences. This would provide safeguards for interests under ECHR Article 8 in such investigations, and might prevent violations.

73. A number of other provisions caused us some concern on human rights grounds. These can be conveniently grouped as follows.

74. Provisions weakening procedural protections for Convention rights of liberty and bodily integrity. A number of provisions seem to us to have the capacity to weaken significantly the protections for Convention rights in ways which might tip the balance between the interference with the right being justifiable and being unjustifiable.

75. The substitution by clause 80 of an inspector for a superintendent as the officer who may authorise an intimate search (i.e. a search of a person's most intimate body orifices) of a detainee without that person's consent under the Police and Criminal Evidence Act 1984, and authorise a person without medical qualifications to conduct the search, causes us considerable concern. Intimate searches may include the physical investigation of a person's vagina or anus without her or his consent, using reasonable force to conduct it if necessary. It is hard to imagine a more intrusive or humiliating police procedure which could be lawful. We consider that such searches are in danger of constituting degrading treatment which violates ECHR Article 3, permitting no justification. Intimate searches certainly engage the right to respect for private life under ECHR Article 8.1. The Government do not accept that there is a potential violation of Article 3, and believes that any interference of Article 8.1 rights may be justified under Article 8.2 as the legislation permits searches only 'when strictly necessary in the interests of the prevention of disorder or crime or the protection of health'.[100] It may be necessary for us to revisit this matter in the future. For present purposes, we are particularly disturbed by anything which even slightly erodes the protection for a person's interests in physical integrity, and bodily privacy, or gives the impression that an interference with them is being taken less seriously than it was.

76. We are particularly worried about reducing the level of seniority of the officer who has to decide, under section 55 of the Police and Criminal Evidence Act 1984, whether it is impracticable for an intimate search to be conducted by a medically qualified person, before authorising a police officer who is medically unqualified to conduct a physical examination of a person's body orifices. We asked about the guidance which would be available to the officer when making this assessment.[101] In further written evidence, the Government referred to safeguards in the form of the requirement in section 55 of the 1984 Act for full records of searches to be maintained, and the publication of statistics, which revealed that only four recorded intimate searches had been conducted by police officers rather than medically qualified persons in 1999-2000. In practice, we were told, the power to authorise a police officer to conduct an intimate search would be exercised only in a wholly exceptional and urgent case to prevent injury to the detainee or other people from a hidden weapon such as a razor blade, where no medically qualified personnel could be reached quickly. However, the Government accept that the guidance in Annex A to Code of Practice C does not specify this: the power could be used, for example, to search for Class A drugs.[102]

77. We therefore welcome the Government's commitment to consider including specific guidance for inspectors on exercising discretion in cases where a doctor or nurse is not available to conduct an intimate search.[103] We believe that the guidance should be included on the face of the legislation.

78. We think, however, that there is a further point of considerable importance. We accept that the power to authorise a person with no medical qualifications to conduct an intimate search is rarely used. However, the intrusion caused by an intimate search is a very serious one. We have already mentioned our view (with which the Government disagree) of the possibility that it may violate the right to be free of degrading treatment under ECHR Article 3. We also take the view that it interferes with the right to respect for private life under Article 8.1. Although the power is conferred for a legitimate purpose under Article 8.2, any weakening of the safeguards against abuse of the power may be crucial to the balance between a proportionate interference with the right and one which is disproportionate.

79. The Government told us that the change in the seniority of the officer making the decision '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 delay to those in custody.'[104] We accept that inspectors can be expected to act responsibly, but note that an inspector is more likely than a superintendent to be of the same rank as, or a lower rank than, the investigating officer, potentially compromising his or her independence. We do not regard what are essentially considerations of convenience as sufficient to justify watering down the protection offered to fundamental rights. Management structures should enable a high level of protection to be offered, rather than being made a justification for reducing that level. If a detainee were more concerned about delay than about being subjected to an intimate search, he or she could consent to the search, removing the need for special authorisation.

80. We recommend accordingly to each House that particular attention should be given to the appropriate level of authorisation for authorising intimate searches, and for authorising non-medical personnel to undertake such searches.

81. Related considerations apply to the reduction, by clause 82(1), of the level of authorisation required for the taking of intimate samples[105] and of some so-called 'non-intimate samples'[106] which may none the less involve a considerable degree of nudity and intimacy and which do not require the consent of the subject. The Government pointed out that intimate samples cannot be taken without the consent of the person concerned, and that it is uncommon for the taking of non-intimate samples to require nakedness or undue intimacy.[107] We accept that it is easier to justify under Article 8.2 a reduction in the level of authorisation in respect of samples than in respect of intimate searches, but consider that it requires careful consideration to establish the safeguards which are needed to maintain proportionality in relation to the powers. Accordingly, we recommend that each House should give particular attention to the appropriate level of authorisation for taking intimate samples, and non-intimate samples in circumstances which require access to a body orifice (such as the mouth for a sample of saliva) or removal of clothing.

82. Provisions for extending the range of speculative searches of databases. The police already have power to check fingerprints, samples, or information derived from them, taken from a person who has been arrested on suspicion of being involved in a recordable offence, against the whole set of records held by or on behalf of other specified police forces ('speculative searches').[108] Clause 82 would expand the scope of permitted speculative searches to take in records held by an immensely wide range of 'relevant law-enforcement authorities' in the United Kingdom and abroad.

83. This raises issues in relation to confidentiality of personal information falling under the protection of ECHR Article 8. As noted above,[109] the protection of Article 8 extends to all dealings with personal information by public authorities. It requires that every decision dealing with information, whether by way of collection, recording, indexing, processing, or disclosure, must satisfy the justifying conditions of Article 8.2. The Data Protection Act 1998 does not fully control the processes of comparison and data matching, because section 29(1) of that Act exempts from much of the first data protection principle (fair and lawful processing) personal data being processed for the prevention or detection of crime, the apprehension or prosecution of offenders, or the assessment or collection of any tax or duty or of any similar imposition. The disclosure of personal information is also exempted from the statutory obligations by section 29(3) of the Act if it is disclosed for one of the purposes mentioned in section 29(1) and the application of the provisions controlling disclosure would be likely to prejudice the achievement of those purposes.[110] As a result, the Data Protection Act 1998 cannot be relied on to secure compliance with the requirements of ECHR Article 8.

84. In the light of this, we were concerned about the capacity of the scheme envisaged under clause 83 to satisfy the requirements of ECHR Article 8 in three respects. First, it was not clear that adequate controls were in place to ensure that records were up to date and accurate. Secondly, it was not clear that there were controls over the circumstances in which searches of the records were permitted which would be adequate to meet the criterion of necessity in a democratic society for one of the legitimate purposes listed in Article 8.2. Thirdly, it was not clear that bodies given access to the records would themselves have adequate controls in place to satisfy the entitlements of data subjects under Article 8.

85. In response to our concerns, the Government provided a great deal of helpful information about the way in which the records were compiled, maintained, and used.[111] This went a long way towards reassuring us about the rigour of the controls. We note that people will, in principle, be entitled under the Data Protection Act 1998 to have access to the records relating to them, helping to ensure their accuracy. We expect that the exemptions under section 29 of that Act will be interpreted narrowly, and will not be used to hamper people's access to the personal information held about them. On that basis, we are satisfied that these provisions are not necessarily incompatible with rights to privacy. We believe that there should be continuous monitoring of the use made of the extended power, to ensure that Article 8 rights to privacy are being respected in practice. Consideration should also be given to the possibility of providing in this legislation for adequate controls on the accuracy of records, the circumstances in which searches are permissible and proportionate, and of ensuring that the bodies given access to the records also have adequate controls in place.

86. Retention and use of fingerprints and samples, and information derived from them. Clauses 83 and 84 of the Bill would amend section 64 of the Police and Criminal Evidence Act 1984 and Article 64 of the Police and Criminal Evidence (Northern Ireland) Order 1989 respectively.

87. Under the present law, section 64 and Article 64 require the destruction of fingerprints and samples taken from a person during an investigation, and of information derived from those fingerprints or samples, if (inter alia) the person is not proceeded against or is acquitted of the offence in respect of which the fingerprints or samples were taken. The House of Lords held recently, in Attorney-General's Reference (No. 3 of 1999),[112] that information derived from samples held unlawfully by virtue of those provisions could later be used as evidence in relation to a different offence charged against the person who had provided them, despite the unlawfulness of the retention. The trial judge has a discretion to exclude the evidence if admitting it would make the trial unfair, but, if he correctly carries out a balancing exercise, admitting the evidence would not deprive the accused of his right to a fair trial under Article 6 of the ECHR and the Human Rights Act 1998. This has the curious result that the police are under a legal duty to destroy material, but are able to use it as evidence if they breach their duty by keeping it.

88. Clauses 83 and 84 as originally drafted would have amended the law prospectively to remove this anomaly. They permitted fingerprints, samples and information derived from them to be retained in clearly defined circumstances. When we first looked at the Bill, we took the view that the clauses amounted to an interference with the person's right to respect for private life (ECHR Article 8.1), but that they provided a sound legal basis for retention, by ensuring that the circumstances in which retention and use were to be permitted were sufficiently clearly defined, appropriately directed, and limited in scope, in order to satisfy the justifying conditions under Article 8.2.[113] We attached weight to the fact that sub-clause (5) of each clause expressly provided that the new provisions were not to apply to fingerprints, samples or information which should have been destroyed before the coming into force of those clauses. The police would still have been under a duty to destroy those relating to a person who had been acquitted of the offence in connection with which the fingerprints or samples had been taken. We thought that the clause had the effect of avoiding a risk, flowing from the decision of the House of Lords, that there would be violations of ECHR Articles 8 (privacy) and 13 (right to an effective remedy for a violation of another Convention right).

89. During the Committee Stage in the House of Commons, clauses 83(5) and 84(5) were amended. They would now retrospectively legalise the unlawful retention of those fingerprints, samples and information. This would avoid the need for the police to destroy fingerprints, samples and information which they have unlawfully retained. This would no doubt be a considerable convenience, and might assist in the detection of some crimes. However, it would deprive people who gave fingerprints, etc., and were subsequently not prosecuted or were acquitted, of the right to protect their privacy by having samples, etc., destroyed when no longer needed for the purpose for which they were taken.

90. In our view, this could give rise to the possibility that the amendments would make clauses 83 and 84 incompatible with Article 13, taken together with Article 8 by retrospectively removing the right to take legal action to have samples destroyed in order to protect privacy interests. Article 13 is not one of the rights which form part of national law by virtue of the Human Rights Act 1998, section 1. Failing to offer an effective remedy before a national authority for violation of a Convention right is therefore not actionable in the United Kingdom, but an aggrieved person could complain to the European Court of Human Rights, as Article 13 of the ECHR binds the United Kingdom in international law.

91. Any legislation interfering with rights retrospectively calls for the most careful scrutiny.[114] We asked the Minister, during his oral evidence to us, whether it would be desirable to make transitional arrangements in the Bill to safeguard existing rights in relation to retained material. The Minister said:[115]

'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.'

92. We understand and accept the Minister's view and his aims. Having given detailed attention to the possible argument that the retrospective effect of clauses 83 and 84 of the Bill might lead to the loss of an effective remedy for a past violation of Article 8, we believe that such argument would be unlikely to succeed, because:

(a) the caselaw of the European Court of Human Rights on Article 13 and the scope for retrospective legislation is not settled, but it is likely that States would be permitted a degree of flexibility in matters such as this;[116]

   (b) clauses 83 and 84 would not extend powers to take fingerprints and samples, but only to retain those which had been lawfully taken;

(c) the future operation of the new powers seems to us to be fully compatible with Convention rights;

(d) the retained material is likely to provide valuable evidence mainly in relation to very serious offences against the person; and

(e) the House of Lords has held that evidence based on material unlawfully retained in the past need not be excluded from evidence in such cases.

We regard those considerations as decisive.

98   Reprinted at pp. 15-18 of our First Special Report. Back

99   Supplied to the Committee by the Home Office and reprinted at pp. 41-42 of our First Special Report. Back

100   Home Office Memorandum, para. 80. Back

101   Oral evidence, QQ. 41 to 50. Back

102   Home Office Supplementary Memorandum, paras. 34-39. Back

103   Home Office Supplementary Memorandum, para. 40. Back

104   Home Office Memorandum, para. 73. Back

105   These are samples of blood, semen, other tissue fluid, urine, or pubic hair; a dental impression; and a swab taken from a body orifice other than the mouth: Police and Criminal Evidence Act 1984, s. 65, as amended by Criminal Justice and Public Order Act 1994, s. 58(2). Back

106   These are samples of non-pubic hair, samples taken from nails or under nails, swabs which are not intimate samples, saliva, and impressions of any part of a person's body other than part of the hand: Police and Criminal Evidence Act 1984, s. 65, as amended by Criminal Justice and Public Order Act 1994, s. 58(3). Back

107   Home Office Memorandum, paras. 81 and 82. Back

108   Police and Criminal Evidence Act 1984, s. 63A(1) and (1A), inserted by Criminal Justice and Public Order Act 1994, s. 56, as amended. Back

109   See para. 60, above. Back

110   See also R. (A.) v. Chief Constable of C. [2001] 1 WLR 461. Back

111   Home Office Memorandum, paras. 83-100. Back

112   [2001] 2 WLR 56, HL. Back

113   Nevertheless, we were aware of the disquiet expressed by some commentators. See, e.g., Liberty's brief for the Second Reading of the Bill in the House of Commons, reprinted at pp.15-19 of our First Special Report. Back

114   See for example The National and Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. United Kingdom, Eur. Ct. HR, Judgment of 23 October 1997, RJD 1997-VII, No. 55, 25 EHRR 127. Back

115   Oral evidence, answer to Q. 51. Back

116   See The National and Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. United Kingdom, Eur. Ct. HR, Judgment of 23 October 1997, RJD 1997-VII, No. 55, 25 EHRR 127. Back

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