Joint Committee On Human Rights Appendices to the Minutes of Evidence

2.  Memorandum from JUSTICE on the Anti-Terrorism, Crime and Security Bill


  1.1  JUSTICE is an independent all party law reform and human rights organisation, which aims to improve British justice through law reform and policy work, publications and training. It is the British section of the International Commission of Jurists.

General Principles

  1.2  JUSTICE accepts, in principle, the justification for special measures to safeguard against terrorist activity. In particular, there may be a need to take certain measures in response to the terrible events of 11 September. However, it is also important that any response should safeguard the rule of law.

  1.3  Any new measures to safeguard against terrorist activity should also be considered within the framework of the Human Rights Act 1998 (HRA). The HRA, and the European Convention on Human Rights (ECHR) provide a valuable and workable framework under which appropriate and targeted action can be taken in response to the events of 11 September and their aftermath.

  1.4  Within this human rights framework, the measures in this Bill, which is designed as a response to the post-11 September terrorist threat, must satisfy two key principles:

    —  They must be necessary and proportionate in the context of the existing powers available, and must, at minimum, incorporate procedural safeguards, to ensure that the powers they allow are not open to abuse; and

    —  They must be carefully targeted at the exceptional situation that justifies them so as to ensure that the rights of innocent parties are protected to the fullest possible extent.

  The need to guard against terrorist action must not, therefore, become the pretext for the erosion of rights in matters unrelated to that threat.

  1.5  As presently drafted, many elements of this Bill fail to satisfy these principles. JUSTICE has a number of broad concerns with the Bill:

    —  Many of the measures are not subject to sufficient safeguards.

    —  Many of the measures are not confined to the investigation of terrorist offences, but allow for significant extension of police investigatory powers in relation to even minor criminal offences. Such measures are not warranted in emergency legislation designed to respond to a terrorist threat.

    —  The majority of powers in this Bill are intended to be permanent and are not subject to a time-limiting sunset clause. This is unacceptable in emergency fast-track legislation. Additional powers beyond those related to the current state of emergency should be closely scrutinised through the usual parliamentary procedures. Given the nature of this legislation, the Bill as a whole should be subject to a sunset clause.

    —  Several elements of the Bill provide for over-extensive delegated powers, which diminish even further the parliamentary scrutiny that can be given to the significant new measures proposed.

  1.6  The measures proposed in this Bill must be seen in the context of the permanent anti-terrorist powers in the Terrorism Act 2000, which came into force only last February. This Act placed permanent anti-terrorist legislation on the statute books for the first time and contained a comprehensive range of powers exercisable on the basis of a very broad definition of terrorism. In addition, the Regulation of Investigatory Powers Act 2000 has created significant statutory powers of surveillance and interception of communications. Any addition to these recent and significant Acts in this present Bill needs to be closely justified by the government.

Derogation from Article 5 ECHR

  1.7  Article 15 ECHR, allows derogation from certain of the rights in the ECHR "in time of war or other emergency threatening the life of the nation". Although the question of whether a state of emergency currently exists continues to be debated, JUSTICE has taken the view that a court would be likely to find, in the current circumstances, that a public emergency does exist for the duration of any credible threat from the Al Qaida organisation.

  1.8  Crucially, however, Article 15 requires that, even where a public emergency can be demonstrated, a derogation should only apply "to the extent strictly required by the exigencies of the situation."

  1.9  In JUSTICE's view, the current provisions of this Bill allowing for detention without trial do not meet this standard, as they are not sufficiently limited and precise, or subject to sufficient safeguards.

  1.10  JUSTICE would also point out that, since this Bill legislates for a derogation from Article 5 of the ECHR, the section 19 statement made in respect of the Bill as introduced in the House of Commons cannot be justified. Although derogation is certainly permitted under the scheme of the ECHR and the HRA, the purpose of a section 19(1)(a) statement is to certify compatibility with the substantive rights annexed to the HRA, not to the scheme of the Act as a whole.

Legal Opinion on Derogation

  1.11  JUSTICE has sought a legal Opinion from David Anderson QC and Jemima Stratford of Brick Court chambers in relation to the government's notice of derogation from Article 5 (the right to liberty) under Article 15 ECHR, for which legislative provision is made in Part 4 of this Bill. This Opinion is attached. JUSTICE supports the arguments it advances.


  2.1  Part 1 of the Bill, along with Schedule 1, allows for confiscation orders to be made in respect of cash related to terrorist activity. Clause 1(5) gives the Secretary of State the power to modify the code of practice in relation to the exercise of officers powers under Schedule 14 of the Terrorism Act 2000, by order bringing Schedule 1 into force. Modifications of the code made in this way may be any such as are considered "necessary or expedient". It is not clear how significant any amendments under clause 1(5) are likely to be.

  2.2  Under para.7(1) of Schedule 14 to the Terrorism Act, any draft code, or any revision of the code, must be published as a draft, and consulted on. Under para.7(2), a draft of the code must be laid before Parliament. It would appear that, under clause 1(5), this process is circumvented. In JUSTICE's view, any amendments to the code should be laid before Parliament and subject to adequate scrutiny.

  2.3  Under Schedule 1, powers for the seizure of terrorist cash are exercisable whether or not any criminal prosecution has been brought. It provides that an authorised officer may seize any cash if he has reasonable grounds for suspecting that it is terrorist cash (Part 2, para.2). The cash may be held initially for 48 hours and then may be further detained on the order of a magistrates' court, subject to renewal at three monthly periods for a total maximum period of two years. The purpose of detaining the cash must be to allow for further investigation with a view to bringing charges; establishing that the cash belongs to a proscribed organisation; or to hold the cash pending the outcome of proceedings already in progress.

  2.4  Under Part 3 of Schedule 1, cash which is already detained may be permanently forfeited, on an application by a police constable, a customs officer, or an immigration officer,[1] to a magistrates' court. In order to permanently forfeit the cash, it need only be established to a civil standard of proof that the cash is terrorist cash.

  2.5  The effect of this is that cash may be "detained" for a period of up to two years, whilst an investigation is made into whether or not it belongs to a terrorist organisation. No charges need be brought during that period. At the end of the two year period, the cash may be permanently forfeited in a civil action, where the safeguards of criminal procedure do not apply. As JUSTICE has noted in relation to the Proceeds of Crime Bill, such circumvention of traditional criminal procedural safeguards is a cause for concern. In order to be justified, its formulation and application will need to be carefully targeted and proportionate.

Account Monitoring Orders

  2.6  Schedule 2 amends the Terrorism Act to allow for account monitoring orders, lasting for up to 90 days, to be made in the course of a terrorist investigation. Restraint orders are also provided for in Schedule 2, Part 2. Such orders are already provided for under the Terrorism Act 2000, but the Bill would allow for them to be made at any point after an investigation has begun, rather than only where charges are anticipated. Since both these orders are significantly intrusive of privacy rights, it is in JUSTICE's view vital that they be subject to adequate safeguards. JUSTICE welcomes the fact that the orders are to be subject to prior judicial authorisation.

  2.7  However, the potential scope of account monitoring orders under Schedule 2 is a cause for concern. Under para.2(3)(b) of Schedule 6A as inserted by Schedule 2, the application for an account monitoring order may specify information in relation to "a particular description, or particular descriptions of accounts". This would seem to allow for sweeping trawls for information, on the basis of a terrorist investigation relating to a single individual. These provisions have a potentially serious impact on the Article 8 rights to respect for private life of innocent third parties and, in JUSTICE's view, their scope should be reconsidered, and para.2(3)(b) should be deleted.


  3.1  Clause 17 of the Bill allows for very extensive disclosure and exchange of information as between public bodies and investigating or prosecuting authorities, both within and outside the UK. Information may be disclosed for the purposes of "any criminal investigation whatever" or any criminal proceedings, and under clause 17(d), for "the purpose of facilitating a determination of whether" an investigation should be initiated. There is a presumption that information will be exchanged, subject to a direction by the Secretary of State to the contrary under clause 18, which may be made only in specified circumstances. Clause 19 makes similar provision for disclosure of information by the Commissioners for Customs and Excise, and the Commissioners of Inland Revenue, and allows for an additional power of disclosure "for the purpose of facilitating the carrying out by any of the intelligence services of any of that service's functions." (clause 19(2)(a)).

  3.2  Disclosure may be made for these purposes by any public authority, under a range of legislation listed in Schedule 4 to the Bill. Under clause 17(3) additional legislation can be added to the list in Schedule 4 by order. Public authority is broadly defined, in the same way as under section 6 of the Human Rights Act, to include quasi-public authorities as well as "pure" public authorities such as government departments and the police.

  3.3  Disclosure under these powers may interfere with privacy rights under Article 8(1) ECHR. The Court of Human Rights has stressed that the protection of personal data is fundamental to the right to respect for private life.[2] Powers of disclosure such as those extended by Part 3 therefore need to be closely confined, and subject to safeguards, in order to ensure that such interference can be justified under Article 8(2). Under Article 8(2), interference with privacy is permissible only where it is sufficiently prescribed by law, is necessary in a democratic society and proportionate to a legitimate aim.

  3.4  It will also need to be ensured that disclosure to law enforcement authorities complies with data protection principles. Issues are raised in relation to the data protection principle that data should not be used for a purpose different than that for which it was collected.[3] In particular, it should be ensured that, in accordance with data protection principles,[4] there are appropriate safeguards against abuse in relation to the transfer of information to law enforcement authorities outside the UK, particularly in jurisdictions where data protection laws may not afford adequate protection.

  3.5  In JUSTICE's view, there must be doubts as to whether the scope of Part 3, as presently drafted, is sufficiently clear or confined to meet the "prescribed by law" standard in Article 8. This requirement reflects the principle of legal certainty, which is fundamental to the Convention as a whole and to its protection of the rule of law. Article 8.2 requires that an individual should be able to ascertain, with a reasonable degree of accuracy, how and in what circumstances a restriction on privacy rights should apply to him or her.[5]

  3.6  The sweeping powers of disclosure in Part 3, applicable in any criminal investigation, or in order to initiate any criminal investigation, cannot, in JUSTICE's view, be justified as a response to a terrorist threat. JUSTICE therefore proposes that the powers under clauses 17 and 19 be confined to the investigation and prosecution of terrorist offences, and to cases where there are reasonable grounds to suspect that the person on whom information is sought has been involved in the commission of such an offence.

  3.7  Disclosure under clause 17(2)(d) raises particularly serious privacy concerns, since it would allow information about an individual to be disclosed to investigating authorities abroad at a stage when no investigation against that person has yet begun. Clause 19(2)(a) would also allow for unduly wide powers of disclosure. JUSTICE therefore proposes the deletion of clause 17(2)(d) and clause 19(2)(a).


  4.1  Part 4 of the Bill gives the Home Secretary broad discretion to certify a person as an international terrorist. Once a person who is subject to immigration control is so certified, the Act gives the power to detain them without charge and with the chance of review of the detention at six-monthly intervals (or as soon as practical thereafter), only by the Special Immigration Appeals Commission (SIAC). The Bill specifically removes the power of challenge by judicial review of habeas corpus of the detention, although the right to apply for leave to the Court of Appeal against SIAC remains.

  4.2  These powers have necessitated a derogation from Article 5 ECHR, which guarantees the right to liberty, subject to specific exceptions. Derogation from certain provisions of the Convention, including Article 5, is permissible under Article 15 ECHR, and under section 14 of the Human Rights Act, where there is a war or other public emergency which threatens the life of the nation, and to the extent that the derogation is strictly required by the exigencies of the situation.

  4.3  JUSTICE has obtained a legal Opinion from David Anderson QC and Jemima Stratford, which has been distributed to members of the House of Commons and House of Lords. The Opinion concludes that whilst it may be possible to establish that a public emergency exists, for the duration of a credible threat from the Al Qaida organisation, the nature and extent of the powers under Part 4 as currently drafted is too broad to be justified. The measures proposed under Part 4 of the Bill therefore cannot be justified, without further limitation, as a legitimate derogation from Article 5 ECHR. In JUSTICE's view, in order to avoid successful challenge in the courts, the powers of detention under Part 5 will need to be more closely confined in several respects.

  4.4  Firstly, the powers of detention under Part 4 are open to application against suspects with no links whatsoever to the activities of Al Qaida or the events of 11 September. Any derogation is permissible only as a response to those events. As Part 4 is currently drafted, it would permit the detention without trial of someone with no connection whatsoever with any current emergency situation.

  4.5  Such a wide application of the detention powers under Part 4 would be in no way justified as a permissible derogation from Article 5 (the right to liberty) of the European Convention on Human Rights, since it would not be justified by the exigencies of the situation. It would almost certainly be found to be in violation of the UK's obligations under the Convention.

  4.6  Another respect in which clause 21 is unjustifiably wide is in its application to people who have "links with" someone who is a member of an international terrorist group (clause 21 (2)(c)). This ill-defined provision has obviously worrying implications. It would seem to allow, on its face, for detention without trial of someone whose cousin, neighbour or colleague is, or is suspected to be, a member of a terrorist group. JUSTICE welcomes the Home Secretary's undertaking to reconsider the drafting of this provision with a view to confining and clarifying its scope. However, JUSTICE takes the view that the clause is unnecessary and should be deleted. Under clause 21(2)(c) it is already possible to detain anyone "concerned in" acts of international terrorism. This would seem sufficiently broad to allow for the detention of someone with a close and substantial link to terrorist activity.

  4.7  JUSTICE also takes the view, which is supported by the Opinion of David Anderson QC and Jemima Stratford, that detention under Part 4 for a period of 6 months without trial or review is unduly long and disproportionate. On the current Bill, review of detention need only occur "as soon as practicable" after 6 months. In the case of Aksoy v Turkey, the European Court of Human Rights found, despite the existence of a state of emergency, that detention without review by the courts for a period of 14 days was "exceptionally long" and unjustified. Although detention under Part 4 would be subject to safeguards which were not available to the applicant in Aksoy, nevertheless, six months' detention without review remains unnecessarily and oppressively long. Given the exceptional and draconian nature of the power under Part 4, JUSTICE proposes that review of detention should be required within a three-month period.

  4.8  Further amendments that have either been made by the government, or which the government has undertaken to consider, in the course of the House of Commons debates, go some way to mitigating the impact of Part 4. JUSTICE welcomes the insertion of a requirement of "reasonableness" for the certification of an individual as an international terrorist. However, the change in the powers of SIAC to review this decision may negate this. In the first draft of the Bill, SIAC could cancel the certificate if it `does not agree' with the Home Secretary's belief or suspicion. This has been changed so that SIAC now must cancel the certificate if it `considers there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b),' This appears to put a higher burden of proof on the applicant to show how the Home Secretary's assessment was wrong.

  4.9  JUSTICE also welcomes the government's undertaking to reconsider the drafting of clause 27(9). This clause states that following the cancellation of a clause 21 certificate by SIAC the Secretary of State may immediately issue another certificate, either on grounds of change of circumstance "or otherwise". This clause should be amended to confine the re-issue of a certificate to circumstances where cancellation has been on a technicality, or where there has been a change of circumstances.

  4.10  JUSTICE also favours the deletion of clause 29(2), the effect of which is to exclude judicial review and habeas corpus where someone is detained under Part 4. Clause 30 further restricts review by the courts, since it excludes challenges under section 7 of the Human Rights Act, and consideration of derogation issues, from all courts and tribunals except SIAC.

  4.11  The availability of an appeal to SIAC will provide some safeguards for detainees, and is likely to mean that recourse to judicial review would be rare. However, it is particularly important, given the draconian nature of the powers under Part 4, that recourse to the courts should be available to the greatest extent possible. It is of the greatest importance as a point of principle that judicial review and challenge against human rights standards should not be restricted where exceptional state powers are exercised to detain without trial. Equally, where the exceptional step of derogation is taken under Article 15 ECHR, the power of the courts to scrutinise the derogation should not be restricted. Clause 29(2) and 30(2) and 30(3)(a) should therefore be deleted.

  4.12  The restriction of judicial oversight is further evident in clause 29(3), which appears to exclude from review, either in SIAC or in any court, the Secretary of State's conclusion that a person cannot be removed from the United Kingdom for Article 3 reasons or for practical considerations. This provision is clearly open to abuse, in cases where it might be convenient for the Secretary of State to detain a suspect indefinitely rather than allow them to be returned to their home country. The complete exclusion of this executive decision from review, even by SIAC, cannot in JUSTICE's view be justified.

Asylum Applications

  4.13  Under clause 33(1), the Secretary of State has the power to decide when an asylum application should not be considered at all and to sign a certificate to that effect. This can be done when he alleges, inter alia, that an asylum seeker has committed acts contrary to the purposes and principles of the United Nations, which includes terrorist acts, and is therefore excluded from refugee status under Article 1(F) or 33(2) of the UN Convention on the Status of Refugees, 1951. It is not clear what evidence the Secretary of State requires to make this allegation, or what information, if any, he must state on the certificate. On appeal from the issue of a certificate, SIAC has to decide first on the validity of this statement; if it agrees, the asylum application cannot be considered.

  4.14  Clause 33 explicitly states it applies only to appeals heard by SIAC. Clause 34 is not confined in this way, and could be construed as a free-standing clause applying to all asylum applications. It states that Article 1(F) excluding people from refugee status takes precedence over consideration of any danger they might face. This Article covers wider situations than terrorism, as it includes people who are alleged to have committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee. People may have been convicted of crimes of which they are innocent, after unfair trials, they may have been charged with crimes for a political motive, and the definition of `serious' crime could be contentious and different in different countries.

  4.15  This clause is contrary to all established practice in dealing with asylum applications and to guidance in the UN High Commission for Refugees' Handbook, where it is clear that the case for refugee status should be decided first, and then whether there are grounds for exclusion.[6] The Handbook is not international law but it is persuasive and is referred to in the instructions to asylum caseworkers at the Home Office. The government should be asked to explain its intentions with regard to clause 34 and to confirm that it is intended only to apply to asylum applications made by alleged international terrorists, not to all asylum applications.

  4.16  JUSTICE considers clauses 33 and 34 to be unacceptable, since they undermine the right to have a claim for asylum fully considered under the 1951 Convention. These provisions are also unnecessary, since it is already permissible, under Article 1(F) and 33(2) of the 1951 Convention, for a claim for asylum to be refused where there are reasonable grounds to suspect that an asylum seeker may be a threat to national security.

Retention of fingerprints

  4.17  Clause 35 allows for the blanket and indefinite retention of fingerprints taken in immigration and asylum cases under section 142 of the Asylum and Immigration Act. All asylum seekers, including children, are fingerprinted at the time of application. Clause 35 applies both in relation to data already held and that taken in the future. This would allow fingerprints to be retained even following the grant of indefinite leave to remain.

  4.18  JUSTICE is concerned that clause 35 allows for the creation of a database of information in respect of people lawfully resident in this country and with no connection to terrorism or to any criminal activity. The creation and retention of such a body of data for use in law enforcement investigations can no more be justified in regard to asylum seekers than it would be in respect of the general public.

  4.19  More information is needed as to the purpose for which such records could be retained and the circumstances in which fingerprint data will be shared, in particular with law enforcement agencies. It is not clear whether fingerprint records are to be retained for use only in terrorist cases for the purpose of safeguarding national security, or whether it can be used more widely. In JUSTICE's view, the grounds on which fingerprint data can be retained and disclosed under the Bill need to be more closely limited.

  4.20  If fingerprints are to be retained for lengthy periods of time, this retention should be made subject to adequate safeguards, in accordance with data protection principles. This is particularly so as it is likely that the information will be used in criminal investigations. In the absence of such safeguards, it is likely that the right to respect for private life under Article 8 ECHR will be unjustifiably interfered with.


  5.1  JUSTICE welcomes the proposal in Part 5 to extend racially aggravated offences to cover religiously aggravated offences. JUSTICE also welcomes the proposal in Part 5 to extend the crime of incitement to racial hatred to cover religious hatred. In its recent concluding observations on the compliance of the United Kingdom with the International Covenant on Civil and Political Rights (ICCPR) the United Nations Human Rights Committee recommended that:

        "The State Party should extend its criminal legislation to cover offences motivated by religious hatred, and should take other steps to ensure that all persons are protected from discrimination on account of their religious beliefs."[7]

  5.2  "Religious hatred" is defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief. In the context of civil law JUSTICE believes that the use of the term "religion and belief" best categorises the field we seek to address. This deliberately echoes the phrase used in Article 9 which has been defined by the European Court of Human Rights to encompass a very wide range of religions and beliefs including the right not to believe. The new EC Employment Framework Directive that will have to be implemented by December 2003 also uses the term "religion and belief". It is both more appropriate and easier for the Courts to define if a common phrase is used in all aspects of the law relating to religion and belief.

  5.3  The term religious hatred may not be open to such a wide interpretation, as within the UK the definition of "religion" has been more narrowly interpreted, mainly in the context of charity law. It has been used to exclude Scientologists and some other new religious movements. We would propose that the provision be amended to bring it into line both with Article 9 and the new obligations under the EC Employment Framework Directive.

  5.4  We support the retention of the Attorney General's fiat for any such prosecutions as a way of retaining a balance between the right of freedom of religion and belief and ensuring the continued protection of freedom of expression and legitimate democratic debate. Under the Human Rights Act, the Attorney General will be subject to Article 10 ECHR (freedom of expression) as well as Article 9 ECHR (freedom of religion) in the operation of his duties. Under section 12 of the Human Rights Act he will need to give particular consideration to freedom of expression.

  5.5  A consortium of Muslim Organisations have expressed concern that a new offence of incitement to religious hatred will result in heavier policing and investigation of the whole Muslim community. They have proposed safeguards to any such offence, including:

    —  that the legislation should include a note of guidance setting out the criteria for the Attorney General's use of his discretion,

    —  that his discretion should be subject to scrutiny by Parliament via an annual report to be presented to the Home Affairs Select Committee, and that this report should include racial/religious breakdown of the figures together with reasons for proceeding/not proceeding with a prosecution,

    JUSTICE supports these proposals.

  5.6  An additional safeguard would be to require that information and statistics be published annually on prosecutions under Part 5. The Criminal Justice Act 1991, section 95(1) already makes provision for the Secretary of State to publish annually such material:

    "as he considers expedient for the purpose of . . . facilitating the performance by such persons of their duty to avoid discrimination against any persons on the ground of race or sex or any other improper ground."

  5.7  JUSTICE would propose amending this section by extending its application to religious discrimination adding the word `religion' to race and sex. Alternatively, the Bill could include a more specific duty to provide an annual breakdown of the statistics of prosecutions for incitement to religious or racial hatred by reference to the racial and religious group of both of the parties involved.

  5.8  The creation of an offence of incitement to religious hatred highlights the absence of religious discrimination legislation. It is important that the Government should act soon to implement comprehensive legislation to outlaw religious discrimination. This should not be done by secondary legislation to implement the Employment Framework Directive but by primary legislation.


  5.9  If a crime of incitement to religious hatred is introduced it is surely the right moment to propose the abolition of the common law offence of blasphemy.[8] This offence only applies to the Christian religion, and such inequality cannot be justified. In 1985 the Law Commission proposed that it should be abolished and in 1989 the Home Office undertook that there would be no more state prosecutions for blasphemy. JUSTICE welcomes the Home Secretary's indication that he is minded to abolish the offence of blasphemy. The government should be asked to provide more detail of its intentions in this regard.


  6.1  JUSTICE has serious concerns in relation to the powers in Part 10 of the Act. Powers to search, fingerprint and photograph suspects without their consent interfere with rights to privacy and physical integrity under Article 8 ECHR, and therefore must be justified as necessary in a democratic society and proportionate to a legitimate aim under Article 8.2.[9]

  6.2  It is of particular concern that these measures are being introduced in fast-track legislation, since the complex issues raised by these provisions need thorough and detailed consideration by Parliament. In JUSTICE's view, many of the powers in Part 10 are too broadly framed, and cannot be justified as a response to a terrorist threat.

  6.3  The proposals in Part 10 must be viewed in the context of the Terrorism Act 2000, which already contains the power to take reasonable steps to photograph or identify someone arrested on suspicion of terrorist offences (Schedule 8, para.2). This power, viewed in the light of the broad power of arrest without warrant under section 41 of the Terrorism Act, means that any additional powers have to be very carefully scrutinised.


  6.4  At present, section 54 of PACE empowers the police to search people who are detained in a police station to ascertain what property the person has on them, and may search to the extent necessary for that purpose. The police may also search at any time a person in police detention to find out whether they have anything which could cause physical injury, damage, interfere with evidence or assist escape.

  6.5  Clause 89 would insert a new section 54A permitting a search or examination of a person in police detention to ascertain whether s/he has any mark that would link them with an offence or to facilitate identification of them. Force could be used if necessary, including by a civilian detention officer.

  6.6  JUSTICE has several concerns with this provision:

    —  Where authorisation is given on the grounds that it may link a person with a crime, the power is not limited to the offence for which the person has been arrested or of which they are suspected, and is not limited to serious (or terrorist) offences.

    —  The power can be used simply to establish identity if the person refuses to disclose it, or where there are reasonable grounds for suspecting that the person is not who they claim to be, again irrespective of the offence concerned.

    —  The power applies to a person "detained in a police station" as opposed to a person in "police detention". The latter is used in PACE to include only those arrested for an offence, so this new power would seem to apply whether or not a person is arrested for an offence e.g. a person arrested for breach of the peace, or under the power of a warrant.

  6.7  In JUSTICE's view, these powers, which are seriously intrusive of Article 8 rights to privacy and physical integrity, can only be justified in the context of an exceptional terrorist threat, and should be confined to circumstances where a person has been arrested for or is suspected of a terrorist offence.


  6.8  Currently, fingerprints can be taken (without consent of the person) from a person detained at a police station who has not been charged with an offence if a superintendent is satisfied that fingerprints will tend to confirm or disprove involvement in an offence of which they are suspected. When s78(2) Criminal Justice and Police Act 2001 comes into force, authorisation will be downgraded to inspector.

  6.9  The new provisions will additionally allow fingerprints to be taken if the officer is satisfied that it will facilitate the ascertainment of his/her identity. Authorisation can only be given if the person has refused to give their identity or there are reasonable grounds for suspecting they are not who they claim to be. Under existing powers, the police will be able to retain the fingerprints indefinitely irrespective of whether the person is proceeded against or convicted of an offence.

  6.10  This proposal raises similar concerns to those in relation to search powers. Taking of fingerprints, without consent, to establish identity, interferes with Article 8 rights to privacy and physical integrity, and this interference is unlikely to be justified in the broad range of circumstances in which the power can be exercised under clause 89. In JUSTICE's view, such wide-ranging measures cannot be justified by the terrorist threat, and should not be introduced in fast-track legislation, without full consultation and debate.


  6.11  Currently the taking of photographs is not covered by statutory powers, but by PACE Code D. This provides that the police can take a photograph of an arrested person at a police station if the person consents, or without consent in a limited number of circumstances, including where the case involved identification evidence.

  6.12  The new section 64A would give a statutory basis for the taking of photographs for the first time, and would enable the police to require a person to remove head or face coverings and, if they refused, to enable police to themselves remove it.

  6.13  There is no requirement for authorisation from a senior officer and no need to link the taking of photographs to investigative needs. It appears that, for the first time, the police will be able to use force (although there is some argument that it only authorises them to use it to remove a face covering as opposed to forcing the person to pose for the photograph). The police are permitted to retain the photographs irrespective of whether the person is prosecuted or convicted.

  6.14  Again, in JUSTICE's view, these powers allow interference with Article 8 rights, in a range of circumstances which cannot be justified by reference to terrorism, and is likely to be disproportionate.

Power to Require Removal of Facial Coverings

  6.15  The additional powers in Part 10 allowing for the removal of facial coverings are difficult to justify in the context of existing powers, or as a necessary response to a terrorist threat. There is already provision under the Criminal Justice and Public Order Act 1994, as amended by the Crime and Disorder Act 1998 for police to demand the removal of facial coverings in certain circumstances. Under the existing law, a superintendant may make an order allowing police to require the removal of headgear where he considers it necessary to prevent serious violence in the area. The authorisation lasts for 24 hours, extendable for 6 hour periods.

  6.16  This Bill extends the power to make an order for removal of facial coverings in a given area. It allows such orders to be made by an inspector rather than a superintendent and allows an order to be made to prevent or control the commission of any offence, rather than, as at present, only to prevent serious violence.

  6.17  Powers to allow facial coverings to be removed to prevent any crime raises issues of freedom of religion and freedom of expression (Articles 9 and 10 ECHR) and, potentially, freedom of assembly (Article 11 ECHR). The powers are also clearly open to application in a discriminatory way, contrary to Article 14 ECHR. Their extension in this Bill raises serious questions as to proportionality. At a minimum, in JUSTICE's view, these provisions of the Bill should be amended so as make the powers exercisable only to prevent the commission of a terrorist offence.


  7.1  Part I Chapter II of the Regulation of Investigatory Powers Act 2000 (RIPA) permits the police (and some other public authorities) to require postal and telecommunications operators (including internet service providers) to provide them with communications data. This requires only internal authorisation, which can be given, inter alia, for preventing or detecting crime (not limited to serious crime) or preventing disorder.

  7.2  Communications data includes subscriber's details, the names, addresses and numbers of those contacted, web sites visited and, in the case of mobile phones, the user's geographical location. Such data is increasingly valuable to criminal investigations and its disclosure more intrusive to individuals; the assumption that access to such data is less intrusive is no longer necessarily true.

  7.3  Clause 101 of this Bill provides for a voluntary code on retention of such data by communications service providers (such as telephone and internet companies), in order to facilitate access to such data by the police and other law enforcement authorities, on grounds of national security or the prevention of crime.[10] By clause 102, if the Secretary of State believes that the code is not working, he or she can make it mandatory by Order (subject to renewal every two years).

  7.4  JUSTICE is concerned that this proposal would allow for the creation of a substantial database of information, the potential uses of which would go far beyond response to a terrorist threat.

  7.5  It must be ensured that the retention of data under the proposed code is in accordance with data protection principles, and with the requirement that an interference with Article 8 ECHR privacy rights must be necessary and proportionate. JUSTICE would therefore propose that the Bill make specific provision for consultation with the Information Commissioner in the drafting of a code under clause 101, or a mandatory direction under clause 102. In addition, any new code should be required to be laid before Parliament, so that it will be subject to sufficient scrutiny.


  8.1  Clauses 109 and 110 allow for the implementation, by means of secondary legislation, obligations of the UK created or arising by or under the Justice and Home Affairs pillar. Title VI of the Treaty on European Union (as amended by the Treaties of Amsterdam and Nice) and the Schengen acquis (which makes provision for cross-border policing, including the Schengen Information System, Europe's largest database). Secondary legislation made under this power will be subject to positive resolution by both Houses of Parliament. The power will apply even where the measures implemented are contrary to existing primary legislation: Ministers will be able to repeal existing primary legislation by means of secondary legislation.

  8.2  The new power would enable Ministers to make regulations with a significant impact on the criminal justice system. This is in a context where, under the Tampere agenda, radical criminal justice measures including:

    —  the introduction of new police powers for joint cross-border investigation and surveillance;

    —  new provisions for pan-European information sharing amongst police and security forces;

    —  mutual recognition of pre-trial decisions, meaning that domestic courts would be bound by judicial decisions in other member states relating to matters such as the seizure of assets and evidence;

    —  the harmonisation of criminal laws in areas such as drug trafficking, hooliganism and cyber crime;

    —  the creation of EUROJUST, a unit of national prosecutors, magistrates and police officers to work alongside EUROPOL.

  8.3  As Clause 109 stands, it could be used to implement the proposed European Framework Decision on the EU arrest warrant. This measure has been speeded up since the events of September 11th and will abolish many of the safeguards contained in existing domestic extradition legislation. A leading QC, specialising in extradition and criminal justice issues, has advised JUSTICE that: "It would be a worrying (and unprecedented) development for extradition changes to be made in this way, particularly given the countries that are or may in due course be covered by the Euro warrant."

  8.4  JUSTICE recognises that the powers created under clause 109 are limited to implementing decisions that the UK agrees at the EU level in accordance with its Treaty agreements. It is also acknowledged that, as the explanatory notes to the Bill point out, similar powers exist in relation to the implementation of obligations arising under the Treaties establishing the European Communities, under section 2(2) of the European Communities Act 1972. However, there are crucial differences between the types of obligation covered by the 1972 Act and those dealt with under the Justice and Home Affairs Title VI pillar which is the subject of this proposed new clause 109.

  8.5  First, the subject matter of the obligations is different. The existing powers to implement Community law through secondary legislation have related predominantly to economic and regulatory issues, whereas the proposed powers affect the most sensitive areas of policing and criminal justice. Under the European Communities Act, secondary legislation can only be used to create offences with a maximum of two years' criminal sentence. However, under clause 109, there would be no limit on the length of sentence that could be imposed through secondary legislation.

  8.6  Secondly, the agreements being implemented are created in different ways at the EU level and are subject to different parliamentary scrutiny. Despite changes in the Amsterdam Treaty, there remains a real democratic deficit in decision-making under the Justice and Home Affairs pillar, which is not present in other parts of the EU. The decisions, precisely because of their highly sensitive nature, are made inter-governmentally. The European Parliament is consulted but has no power of joint decision making as it does with Community law. This therefore makes proper scrutiny at the domestic level crucial. This is particularly so as the way in which such measures are implemented into the UK criminal justice laws will necessarily raise fundamental questions as to compatibility with the fair trial rights of Article 6 of the European Convention on Human Rights. In this context it is important to remember that the principle of fair trial under Article 6 is safeguarded in different ways and at different points under the different criminal justice systems of member states. This means that each country must provide its own scrutiny as to its implementation of Framework Directives in the policing and criminal justice areas

  8.7  It is in JUSTICE's view unacceptable that such significant changes should be introduced by secondary legislation, even in light of the positive resolution procedure specified under clause 110 (7). It is vital that the implementation of Justice and Home Affairs measures should be subject to the highest level of parliamentary scrutiny and debate, and should be introduced by way of primary legislation. It is particularly problematic that a provision of such constitutional importance as section 109 is being included in emergency legislation that is being fast-tracked through Parliament. JUSTICE favours the deletion of clauses 109 and 110 from the Bill.

Information about Acts of Terrorism

  8.8  Clause 115 amends the Terrorism Act 2000, making the failure to disclose information about acts of terrorism a criminal offence. In JUSTICE's view, this provision is problematic because of the very broad definition of terrorism in the Terrorism Act, on which the offence is based. Given of the wide and uncertain scope of the definition, it will be very difficult for individuals to ascertain when they will be criminally liable under this provision. In JUSTICE's view, this offence may not be sufficiently certain to satisfy the principle of legal certainty, which is fundamental to the rule of law, and to the European Convention on Human Rights. Clause 115 should therefore be deleted from the Bill.

1   Defined as "authorised officers" by Schedule 1, Part 6 para. 19(1). Back

2   MS v Sweden 28 EHRR 313, Leander v Sweden 9 EHRR 433, Hilton v UK 57 DR 108. Back

3   The second principle of data protection under the Data Protection Act. Back

4   The 8th principle of Data Protection in the Data Protection Act. Back

5   Silver v UK, 5 EHRR 347; Sunday Times v UK 2 EHRR 245: An individual must be able to "foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." Back

6   para 156: `in applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared.' Back

7   para. 14. Back

8   The last conviction for blasphemy that resulted in a prison sentence was in 1921. Since then there have been two private prosecutions, the 1976 private prosecution of Gay News by Mary Whitehouse and the Salman Rushdie affair. Back

9   Murray v UK 1995) 19 EHRR 193, McVeigh, O'Neill and Evans v UK 1981 EHRR 71. Back

10   Operators currently differ markedly in relation to the length of time they store such data. According to press reports (Guardian, 15 November 2001), BT telephones keep it for 7 years, Claranet ISP keep it for only 2 weeks. Back

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