Joint Committee On Human Rights Fifteenth Report



Part 4, Chapter 1 of the Bill: Exercise of Police Powers etc. by Civilians

28. Part 4 of the Bill contemplates different groups of police powers being exercisable for the first time by people other than constables. These are controversial proposals from a number of points of view, but we are concerned only with the adequacy of the safeguards for human rights against unjustified interference in the exercise of functions by these newly empowered people. Under Part 4, it would be possible to authorize five categories of civilians (community support officers, investigating officers, detention officers, escort officers, and accredited employees under community safety accreditation schemes) to exercise certain police powers. The objects, as the Minister explained at Second Reading, are to allow for more policing on the streets to combat crime and disorder—so-called 'reassurance patrolling'—and to make greater use of support staff to allow police officers to spend more time on front-line duties.[34]

29. Those in the first four of the categories would be employees of a police authority who are under the direction and control of the chief officer for the force. Civilians in the fifth category would not be employees of a police authority, or under the control of the chief officer. Instead, they would be employees of employers carrying on business in the area, who might be public authorities for the purposes of the Human Rights Act 1998 but might equally well be private companies, partnerships or individuals. They would be able to exercise a considerable range of powers.

30. Community support officers would be able to exercise powers[35] including power—

  (i)  to issue fixed penalty notices;[36]

  (ii)  to ask people for their names and addresses if the community support officer has reason to believe that the person committed a fixed penalty offence, or an offence which appears to the officer to have caused injury, alarm or distress to any person, or loss of or damage to the property of any other person,[37] or to be acting in an anti-social manner[38] for their names and addresses, and to detain them for up to half an hour if they refuse or if the officer has reasonable grounds for suspecting that a name or address given is false or inaccurate;[39]

  (iii)  to use reasonable force to prevent a person making off in order to give effect to one of the above powers;[40]

  (iv)  to require people to surrender alcohol being consumed in a designated public place under section 12 of the Criminal Justice and Police Act 2001 or in a public place under section 1 of the Confiscation of Alcohol (Young Persons) Act 1997, or tobacco in a public place under section 7 of the Children and Young Persons Act 1933), and to dispose of the alcohol or tobacco;[41]

  (v)  to enter any premises for the purpose of saving life and limb or preventing serious damage to property under section 17(1)(e) of the Police and Criminal Evidence Act 1984;[42]

  (vi)  to seize vehicles being used to cause alarm to the public, pursuant to a new power proposed under clause 52 of the Bill;[43]

  (vii)  to remove abandoned vehicles under section 99 of the Road Traffic Regulation Act 1984;[44]

  (viii)  to carry out road checks, exercise powers in relation to cordoned areas, or stop and search vehicles in authorised areas under section 4 of the Police and Criminal Evidence Act 1984,[45] section 163 of the Road Traffic Act 1988,[46] and sections 36, 44(1)(a) and (d) and (2)(b) and 45(2) of the Terrorism Act 2000,[47] although the last of these powers may be exercised only in the company and under the supervision of a constable.[48]

31. Investigating officers would have a narrower, but extremely sensitive, range of powers,[49] including—

  (i)  power to apply for and execute search warrants;[50]

  (ii)  power to apply to a circuit judge for an order for access to or production of confidential material and journalistic material falling into the categories of excluded and special procedure material, under section 9 of and Schedule 1 to the Police and Criminal Evidence Act 1984;[51]

  (iii)  powers to enter premises, search them and seize evidence following an arrest for an arrestable offence, under sections 18 to 21 of the Police and Criminal Evidence Act 1984;[52]

  (iv)  power to seize and retain items while lawfully on any premises, subject to evidential and necessity conditions, under sections 19 to 21 of the Police and Criminal Evidence Act 1984;[53]

  (v)  powers to copy rather than seize material, and to exercise the extended powers of seizure of material which is inextricably mixed with or linked to items subject to legal privilege, under section 21 of the 1984 Act and Part 2 of the Criminal Justice and Police Act 2001 respectively.[54]

32. Detention officers would have various powers[55] including—

  (i)  power to require a person convicted of certain offences to attend a police station in order to have fingerprints taken under section 27 of the 1984 Act;[56]

  (ii)  power to arrest a person, already detained at a police station on suspicion of having committed one offence, for a different offence (in which case the consequences for the arrested person, in terms of giving rise to adverse inferences being capable of being drawn at trial, of failing to account for certain matters when asked about them will follow as if he or she had been re-arrested by a constable);[57]

  (iii)  powers to conduct intimate and non-intimate searches of detained persons, and to conduct searches or examinations for the purpose of identifying the people in question;[58]

  (iv)  power to take fingerprints without consent, and to inform the person concerned that a speculative search of fingerprints may be carried out;[59]

  (v)  power to give warnings that intimate samples may be the subject of a speculative search;[60]

  (vi)  power to take non-intimate samples and to give appropriate warnings about speculative searches;[61]

  (vii)  power to require a person to attend at a police station to have a sample taken under section 63A of the 1984 Act;[62]

  (viii)  power to photograph people in police custody under section 64A of the 1984 Act;[63]

  (ix)  power to require a person to account for the presence of an object, substance or mark, or for the person's presence at a particular place, under sections 36 and 37 of the Criminal Justice and Police Act 1994, with the statutory consequences for the person of refusing to do so, in terms of the possibility of adverse inferences being drawn at trial.[64]

33. Escort officers would have powers[65]—

  (i)  to escort an arrested person to a police station;[66]

  (ii)  to escort detained persons from one police station to another;[67]

  (iii)  to conduct any non-intimate search which a constable could have conducted while performing functions under i. and ii., and to seize and retain anything found which a constable could have seized and retained during such a search.[68]

34. Individuals accredited as part of community safety accreditation schemes under clause 34 of the Bill, when in uniform and wearing approved badges, would be empowered to exercise, in the relevant police area, the following powers[69]—

  (i)  to issue fixed penalty notices under section 54 of the Road Traffic Act 1988, or for cycling on a footway (Highway Act 1835, section 72), or for allowing a dog to foul land (Dogs (Fouling of Land) Act 1996), or for litter offences (Environmental Protection Act 1990, section 88);[70]

  (ii)  to ask people whom the accredited person has reason to believe to have committed a fixed penalty offence under a., above, or another offence the commission of which appears to the accredited person to have caused injury, alarm or distress to any person, or the loss of, or damage to, any other person's property, or to be acting in an anti-social manner for their names and addresses, and to detain them for up to half an hour if they refuse or if the officer has reasonable grounds for suspecting that a name or address given is false or inaccurate;[71]

  (iii)  to require people to surrender alcohol being consumed in a designated public place under section 12 of the Criminal Justice and Police Act 2001 or in a public place under section 1 of the Confiscation of Alcohol (Young Persons) Act 1997, or tobacco in a public place under section 7 of the Children and Young Persons Act 1933), and to dispose of the alcohol or tobacco;[72]

  (iv)  to remove abandoned vehicles under section 99 of the Road Traffic Regulation Act 1984.[73]

35. As the Association of Chief Police Officers pointed out in its submission, in a variety of contexts these provisions would entitled civilians, in different situations, to take action which could engage Convention rights.[74] These include-

—  the right to life (ECHR Article 2), particularly if a community support officer were to use force, for example to detain a person;

—  the right to be free of degrading treatment (ECHR Article 3), for example if civilians exercised powers to use force to detain people, or to carry out strip searches or intimate searches, or to take samples or fingerprints from a person without his or her consent;

—  the right not to be arbitrarily deprived of liberty (ECHR Article 5);

—  the right to silence, as an aspect of the right to a fair hearing and the presumption of innocence under ECHR Article 6(1) and (2), where detention officers require suspects to account for certain matters on pain of having adverse inferences drawn at trial from failing to do so;

—  the right to respect for private and family life, home and correspondence (ECHR Article 8), for example in relation to detention or the seizure of alcohol or tobacco by community support officers and accredited employees under community safety accreditation schemes, search of premises and seizure of material (including confidential material) by investigating officers, searches of the person by detention officers and escort officers, and detention officers examining people for the purposes of identification, photographing them, taking samples and fingerprints, and giving warnings about their use in speculative searches;

—  the right to be free of discrimination in relation to the enjoyment of other Convention rights (ECHR Article 14), particularly if the powers turn out to be used in a discriminatory way against members of certain groups defined by colour, race, sex, age, etc.;

—  the right to the enjoyment of one's possessions under Article 1 of Protocol No. 1 to the ECHR, particularly in relation to the seizure of alcohol and tobacco by community support officers and accredited persons under community safety accreditation schemes, seizure of vehicles by community support officers, and seizure of material for evidential purposes by investigating officers.

36. The Explanatory Notes, para. 430, suggested that the Government considered only interferences with rights under Articles 5 and 8 to be engaged by these provisions.

37. In earlier reports, we have already expressed concern about the adequacy of safeguards in respect of some aspects of the powers when they were conferred on police officers, including powers to seize alcohol,[75] to conduct bodily searches,[76] and to conduct examinations and take photographs.[77] Our worries were heightened by the fact that, under the new provisions, the powers would be exercisable by civilians. We therefore asked the Minister what measures he envisaged would be put in place to ensure that the civilians who would exercise such powers under clauses 33 to 41 of the Bill, and Schedules 4 and 5 to the Bill, would be properly accountable and subject to sufficient legal and managerial controls to provide adequate safeguards for the compatibility of their actions with Convention rights. In particular, we asked about any legal steps which would be taken to make accredited persons under a community safety accreditation scheme, who might be employed by a private person or body, legally accountable for acts which would give rise to liability under the Human Rights Act 1998 had they been employed by a public authority.

38. In its reply, the Government pointed out that designated civilian employees of a police authority who became community support officers, investigating officers, detention officers and escort officers would be under the control of the chief officer, and would be required to abide by the Codes of Practice issued under the Police and Criminal Evidence Act 1984. The police authority would be liable for any unlawful conduct, including breaches of the duty under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights.[78]

39. We accept that the applicability of section 6 of the Human Rights Act 1998 the legal liability of the police authority for any breach of duty might be sufficient to secure effective protection for human rights generally, but we consider it to be vital that effective and mandatory training should be provided for the new groups of officers on the limits of their discretion in the exercise of their powers and duties under the Police and Criminal Evidence Act 1984, the relevant Codes of Practice, and the Human Rights Act 1998. We recommend that the Government should place before each House whatever information is available about the nature and content of the training which such officers would be required to undergo before beginning to exercise their functions.

40. In relation to staff of other employers, accredited under a community safety accreditation scheme, the Government referred to the more limited powers which would be available to such civilians, the conditions for accrediting people, the Code of Practice which would be issued about the exercise by chief officers of their powers of designation and accreditation, and the liability of the accredited person's employer for any unlawful action by the accredited person.[79] We accept that these are useful safeguards, but they do not deal with the applicability of Convention rights under section 6 of the Human Rights Act 1998 where a civilian employee of a private employer is exercising police powers. In relation to the applicability to such persons of the Convention rights, the Government reiterates that 'many of the potential employees will be obvious public authorities within the meaning of section 6 of the Act, for example local authorities.' In relation to other employers, the Government says—

The decision on which bodies are public authorities for the purposes of the 1998 Act is a matter for the courts. But in the Government's view, those private employers who enter into arrangements with the chief officer of police to accredit employees and accredited persons themselves would also be held to be 'public authorities' within the meaning of section 6(3)(b) of the 1998 Act ('any persons certain of whose functions are of a public nature') when exercising powers and duties conferred on them under the provisions of the Bill.[80]

41. We recognize the force of this argument. However, the case-law on the meaning of 'public authority' under section 6(3)(b) of the 1998 Act is, at the moment, unsettled.[81] People should not have to rely on judicial interpretation in a developing field of law for protection against interference with their human rights by private citizens purporting to exercise police powers. It is important that people who are subject to interference with their Convention rights under police powers should not lose the protection of the rights merely because they are being exercised by accredited employees of private employers, under community safety accreditation schemes, rather than by police officers or designated persons. If the employer were to be regarded, for the purpose of the Human Rights Act, as a private person, he or she would probably not be subject to the duties which correlate to Convention rights, and the victim of a violation of those rights might lack the effective remedy before a national authority for such a violation which ECHR Article 13 requires.[82] We consider that clause 36(5) of the Bill should be amended by expressly providing that employers under community safety accreditation schemes are to be regarded as public authorities (within the meaning of section 6(3)(b) of the Human Rights Act 1998, as a person 'certain of whose functions are of a public nature') when performing functions in connection with those schemes. Accordingly, we draw the matter to the attention of each House.

42. In our letter to the Minister, we also drew attention to clause 38, which would confer on the Secretary of State the power to amend Schedules 4 and 5 to the Bill in order (inter alia) to allow civilians to exercise additional police powers, as long as they did not include additional powers to arrest or detain persons, to enter premises without the occupier's consent otherwise than in the company of a constable, or other powers not already conferred on constables. Despite the relatively high level of parliamentary scrutiny which this offers, which the House of Lords Delegated Powers and Regulatory Reform Committee decided was sufficient for its purposes,[83] we felt that the power to extend the range of police powers which civilians could exercise, without resort to primary legislation, further threatened safeguards for Convention rights. We therefore asked how the Minister proposed to ensure that rights would be safeguarded in the exercise of powers under clause 38 of, and Schedules 4 and 5 to, the Bill; and why the Bill did not spell out the legitimate aims for which the powers could be exercised compatibly with Convention rights, as had been done (for example) in the Regulation of Investigatory Powers Act 2000.

43. The Government replied that the legitimate aim in each case would be related to the prevention of disorder, crime and anti-social behaviour, and the protection of the rights and freedoms of others.[84] So far as the Government relies on the aim of preventing anti-social behaviour which does not fall within one of the other legitimate aims, we draw the attention of each House to the fact that it would not be a legitimate aim for the purposes of Convention rights.

44. The Government also observes that the Minister, in exercising the power, would be subject to the Convention rights.[85] We accept this. However, it would help to clarify the scope of the powers if the safeguards for Convention rights, and particularly the aims for which powers could legitimately be exercised, were set out on the face of the Bill. This would avoid a situation in which (for example) a Minister exercised the power under the mistaken impression that it was lawful to do so in order to prevent anti-social behaviour which did not amount to disorder or crime, or threaten the rights and freedoms of others. It would also assist the officers who have to operate the provisions (particularly as the officers in this case would be civilians rather than police officers).[86] We draw this to the attention of each House.

CONDITIONS FOR THE EXERCISE OF POWERS: 'REASON TO BELIEVE'

45. Some powers would be exercisable where an officer has 'reason to believe' in the existence of a specified state of affairs. Those which would be particularly likely to engage human rights are the power of a community support officer or an accredited person under a community safety accreditation scheme to ask for a name and address, which may lead to detention.[87] Having reason to believe something is not often used in legislation as a foundation for the exercise of a police power. It is not clear how it relates to the more usual conditions under statute: having reasonable grounds to suspect something, or (more demandingly) having reasonable grounds to believe something, to be the case. For example, the higher standard, having reasonable grounds for believing that a motor vehicle is being used in a certain way, is employed in clause 52 as a condition for the exercise by a constable in uniform (or, under Part 1 of Schedule 4 to the Bill, a community safety officer) of the proposed new power to seize vehicles. The Police Federation of England and Wales, in its submission to the Committee, suggested that 'reason to believe' might be a less assured state of mind than 'reasonable belief', and that a detention following a request for a name and address on the basis of 'reason to believe' might not be justifiable under ECHR Article 5 (which requires reasonable suspicion that the person has committed an offence).[88] We raised this matter with the Minister.

46. In its reply, the Government gave us its view that 'reason to believe' imports a more demanding test than the Convention's test of 'reasonable suspicion'. The Government explained that, in its view—

the meaning is indistinguishable from 'reasonable grounds to believe'. The use of 'reason' imports an objective requirement of reasonableness and belief requires a stronger degree of certainty than suspicion.

We agree, and on that basis do not find it necessary to draw the matter to the attention of either House on human rights grounds.


34   HL Deb., 5 February 2002, cc. 511-512 Back

35   Clause 33(5)(a) and Schedule 4, Part 1 Back

36   Schedule 4, para.1 Back

37   Schedule 4, para. 2 Back

38   ibid., para. 3 Back

39   ibid., paras. 2(3), 3(2) Back

40   ibid., para. 4(3) Back

41   ibid., paras. 5, 6 and 7 Back

42   ibid., para. 8 Back

43   ibid., para. 9 Back

44   ibid., para. 10 Back

45   ibid., para. 11 Back

46   ibid., para. 12 Back

47   ibid., para. 13(1) Back

48   ibid., para. 13(2) Back

49   Clause 33(5)(b) and Sched. 4, Part 2 Back

50   Schedule 4, para. 14 Back

51   ibid., para. 15 Back

52   ibid., para. 16 Back

53   ibid., para. 17 Back

54   ibid., paras. 18 and 19 Back

55   Clause 33(5)(c) and Sched. 4, Part 3 Back

56   Schedule 4, para. 20 Back

57   ibid., para. 21 Back

58   ibid., paras. 22 to 24 Back

59   ibid., para. 25 Back

60   ibid., para. 26 Back

61   ibid., para. 27 Back

62   ibid., para. 28 Back

63   ibid., para. 29 Back

64   ibid., para. 30 Back

65   Clause 33(5)(d) and Sched. 4, Part 4 Back

66   Schedule 4, para. 31(1) Back

67   ibid., para. 32(1) Back

68   ibid., paras. 31(2) and 32(3) Back

69   Clause 35(3) and Sched. 5 Back

70   Schedule 5, para. 1 Back

71   ibid., paras. 2 and 3 Back

72   ibid., paras. 4, 5 and 6 Back

73   ibid., para. 7 Back

74   Letter from Miss Marcia Barton, OBE, dated 11 February 2002, and enclosure, pp Ev 8 to Ev 14 Back

75   First Report of 2000-01, Criminal Justice and Police Bill, HL Paper 69, HC 427, pp. xi-xii, paras. 17-20 Back

76   ibid., p. xxv, paras. 75, 78, 81 Back

77   Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, pp. xvii-xviii, paras. 61-62 Back

78   p Ev 3, para. 7A Back

79   p Ev 4, paras. 7B-7E Back

80   p Ev 4, para. 7E; see also p Ev 5, para. 10A Back

81   Compare R. (Heather and others) v. The Leonard Cheshire Foundation and H.M. Attorney General [2001] EWHC Admin 429, 15th June 2001, Admin Ct., with Poplar Housing and Regeneration Community Association Ltd. v. Donoghue [2001] 3 WLR 183, CA Back

82   Article 13 binds the United Kingdom in international law, and could be the basis for a complaint to the European Court of Human Rights in Strasbourg, although it is not one of the Convention rights which is made part of national law under the Human Rights Act 1998, s. 1 and Sched. 1 Back

83   Delegated Powers and Regulatory Reform Committee, Twelfth Report of 2001-02, Police Reform Bill, HL Paper 73, para. 7 Back

84   p Ev 4, para. 8A Back

85   ibid. Back

86   pp Ev 11 and Ev 12 Back

87   Schedule 4, paras. 2 and 3 (community support officers) and Schedule 5, paras. 2 and 3 (accredited persons) Back

88   pp Ev 21 and Ev 22 Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 25 March 2002