Joint Committee On Human Rights Fifteenth Report



Part 4, Chapter 2 of the Bill: Provisions Modifying and Supplementing Police Powers

NEW ARRESTABLE OFFENCES

47. Clause 42 of the Bill would re-codify and somewhat extend the list of offences which fall into the category of 'arrestable offences' under the Police and Criminal Evidence Act 1984.Section 24 of the 1984 Act set out to codify the law on (among other things) arrest without warrant for criminal offences. It created a new category of offences known as 'arrestable offences'. These are offences for which the sentence is fixed by law (i.e. murder), offences for which a person aged 21 or over and not previously convicted may be sentenced to five years' imprisonment or more, and one of a list of offences set out in section 24(2) of the Act (as amended), together with conspiring or attempting to commit such an offence or inciting, aiding, abetting, counselling or procuring the commission of any such offence.

48. However, various statutes have created other offences which do not fall within the definition of an arrestable offence in section 24 of the 1984 Act, but none the less carry with them a power to arrest suspects without a warrant. There are thus three categories of offences: those which are 'arrestable offences' within the meaning of section 24; those which are not 'arrestable offences' under section 24 but which carry a power to arrest without warrant; and those to which no power to arrest without warrant applies, although even here there may sometimes be a limited power to arrest when certain conditions ('the general arrest conditions' set out in section 25 of the 1984 Act) are satisfied.

49. Clause 42 of the Bill would amend the 1984 Act by amending section 24 and inserting a new Schedule 1A, which would list a large number of offences (around 50) as arrestable offences which previously were not, although powers to arrest without warrant were attached to them. The proposed new Schedule 1A is set out in Schedule 6 to the Bill.

50. At first sight, this is an innocuous provision aimed at tidying up the statute book (although other powers of arrest remain in respect of offences which are still not arrestable offences). However, it has significant implications for human rights, because classifying an offence as an arrestable offence under the 1984 Act carries with it the possibility of exercising further powers if, because of the nature of the offence or the circumstances of the case, an arrestable offence falls to be treated as a 'serious arrestable offence'. The 1984 Act uses the concept of the 'serious arrestable offence' as potentially activating a number of powers if the case in question involved serious harm to the security of the state or public order, serious interference with the administration of justice or the investigation of crime, the death of or serious injury to any person, or substantial financial gain or loss to any person.[89] These powers, which impact significantly on human rights, are—

—  the power to seek an order for access to or production of confidential and journalistic material falling into the categories of 'excluded material' and 'special procedure material', and in some circumstances to seek warrants to search for such material;[90]

—  the power to detain a suspect without charge for more than 24 hours,[91] engaging the right to liberty under ECHR Article 5;

—  the power to delay the exercise of the detainee's right to have someone informed of his or her whereabouts,[92] which is an important safeguard against the 'disappearance' of detainees (engaging ECHR Articles 2 and 3) or their arbitrary detention (engaging ECHR Article 5), as well as making a significant contribution to respecting the family life of the detainee and his or her family as required by ECHR Article 8;

—  the power to delay the exercise of the detainee's right to consult a solicitor privately at any time,[93] which is an important guarantee of the right to a fair trial and of the right to defend one's self through legal advisers of one's own choosing under ECHR Article 6.[94]

51. The Government said, in paragraph 431 of the Explanatory Notes, that in its view interfering with Convention rights in the ways mentioned above would satisfy the test of proportionality. However, it gave no explanation for that view in relation to (for example) the offence of assaulting a constable in the execution of his duty,[95] having an article with a blade or point in a public place or on school premises[96] (where the suspect is likely to be a child), failing to comply with requirements imposed by a constable in relation to the consumption of alcohol in public places,[97] placing advertisements for prostitutes,[98] or ticket touting.[99] We therefore asked the Minister for the Government's reasons.

52. In its reply, the Government points out that only three of the proposed new arrestable offences previously had no power of arrest attached to them: assaulting a police officer in the execution of his duty; driving whilst disqualified where the suspect has left the scene of the crime, and making off without payment. The Government emphasises the seriousness of the offences in terms of the prevention of crime and disorder, and explains the problems caused by the absence of a power to arrest without warrant. In the light of this, the Government takes the view that a power of arrest without warrant for these offences would be proportionate to a legitimate aim, and would be justifiable under ECHR Article 5(1)(c).[100] We accept that this is a legitimate position for the Government to adopt.

53. In relation to our concern that the classification of a wide range of offences as arrestable offences might trigger the enhanced powers applicable to serious arrestable offences under the Police and Criminal Evidence Act 1984, the Government responds that, in reality, such offences would rarely meet the criteria of seriousness set out in section 116 of the 1984 Act; but that, if extended detention were to be authorized, it would be subject to reviews and checks, which would suffice to protect Convention rights.[101] Again, we accept that this is a legitimate position for the Government to adopt, particularly as the exercise of the powers in individual cases would, by virtue of section 6 of the Human Rights Act 1998, have to comply with the requirements of the Convention rights.

PROPOSED NEW OFFENCE OF FAILING TO GIVE ONE'S NAME AND ADDRESS IN RELATION TO ANTI-SOCIAL BEHAVIOUR

54. Clause 44 would empower a constable in uniform to require a person to give his name and address if the constable had reason to believe that the person was behaving in an anti-social manner, meaning 'a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as' the person in question, and which cannot be shown to be reasonable in the circumstances.[102] It would be an offence for the person to fail to give his or her name and address when required to do so, or to give a false or inaccurate name or address. The offence would be punishable on summary conviction by a fine not exceeding level 3 on the standard scale (currently £1,000).

55. Requiring someone to reveal his or her name or address engages the right to respect for private and family life and the home under ECHR Article 8. The requirement and the threat or imposition of criminal liability interferes with the right. That interference may be compatible with that right if justified under Article 8(2). To be justifiable, the interference must (a) be in accordance with the law, a test which includes a requirement for legal certainty, (b) pursue a legitimate aim from among those listed in the Article, and (c) be necessary in a democratic society for that purpose, which means that it must be a response to a pressing social need and proportionate to the purpose sought to be achieved. The requirement of legal certainty is likely to be satisfied by the definition of 'anti-social behaviour' set out in the preceding paragraph. The aim will usually be the legitimate one of either preventing disorder or crime or protecting the rights and freedoms of others, and the pressing social need and proportionality of police action will depend on the facts of each individual case. We therefore consider that this provision is capable of being enforced in a manner compatible with Convention rights.

INDEPENDENT CUSTODY VISITORS

56. Clause 45 of the Bill would require police authorities to appoint independent custody visitors to visit detainees in police stations. We welcome this further step towards ensuring proper respect for the human rights of those in police detention.

REVIEW OF DETENTION OF DETAINEES WHO ARE ASLEEP

57. Clause 46 would relieve the review officer of the duty under section 40(8) of the Police and Criminal Evidence Act 1984 to make the written record of the review in the presence of the detainee when the detainee is asleep at the time of the review. It would not allow the review to be deferred; nor would it extend the review officer's power under section 40(12)(a) to conduct a review without allowing the detainee to make representations if the detainee is asleep at the time of the review. That being so, it seems to give rise to no risk of incompatibility with human rights.

POWERS RELATING TO THE TAKING OF SPECIMENS OF BLOOD

58. Clauses 48 and 49 relate to specimens of blood. The taking of specimens for possible use in a prosecution engages the right to a fair hearing under ECHR Article 6, the right to respect for private life under Article 8, and potentially engages the right to be free of degrading treatment under Article 3. Clause 48 would amend section 7 of the Road Traffic Act 1988 to allow nurses a greater role in taking specimens and deciding whether they should not be taken on medical grounds. The right under Article 3 would be adequately protected by the requirement for the consent of the person from whom a specimen is requested, and by the professional expertise of the registered nurse. The interference with the right under Article 8 would be justified, being in accordance with the law, in pursuit of a legitimate aim (the prevention of crime and the protection of the rights and freedoms of others), and being usually a proportionate response to a pressing social need. The protection which the nurse's professional expertise offers for the subject's medical welfare is relevant both to the safeguarding of Article 3 rights and the assessment of proportionality under Article 8. In our view, the provision can properly be regarded as compatible with human rights.

59. Clause 49 would allow a specimen to be taken from a person who is incapable of consenting, for example because he or she is unconscious following a road traffic accident. It would be subject to safeguards for the subject's medical welfare through the professional judgment of the medical practitioner and the practitioner's legal and ethical obligations towards the patient. It would also be subject to constraints on the use which could be made of the specimen: it could be used only after the subject had consented; the subject could not be asked for consent if a medical practitioner thought that the request, or the accompanying statutory warnings about the consequences of giving or withholding consent, would be prejudicial to the proper care and treatment of the patient; and the police would be required to provide a sample of the specimen to the subject for independent analysis, safeguarding the fairness of subsequent criminal proceedings.[103] In our view, the provisions can be justified on human rights grounds, and the express safeguards are sufficiently specific to ensure that no Convention right would be likely to be violated. We welcome the way in which the provision has been drafted, specifying the safeguards in a way which allows those whose rights may be affected to establish the extent of the permissible interference from the face of the legislation, and allowing Parliament to assess the compatibility of the provisions with Convention and other human rights. We consider that this approach is much to be preferred to those clauses which confer powers without express restrictions, leaving it to the human rights awareness on the part of officials and courts to read in sufficient safeguards to avoid incompatibility.

SEIZURE OF MOTOR VEHICLES

60. The police face a long-standing difficulty when dealing with people who use their cars to show off their driving skills in ways which cause alarm and annoyance to other road-users and local residents. The police have no power to seize the vehicles unless, unusually, seizure can be justified under the Police and Criminal Evidence Act 1984 or, possibly, at common law as being necessary in order to provide evidence of an offence. Clause 52 of the Bill would give various new powers to a constable in uniform who has reasonable grounds for believing (not merely suspecting) that a motor vehicle is being used in a manner which contravenes the prohibition on careless and inconsiderate driving or off-road driving, and is causing, or is likely to cause, alarm, distress or annoyance to members of the public. The new powers would be—

    (b)  power to seize and remove the vehicle;

    (c)  power for the above purposes to enter any premises on which the vehicle is or is believed to be;

    (d)  power to use reasonable force, if necessary, to exercise the above powers.

61. Under clause 53, the Secretary of State would be empowered to make regulations to make provision as to the removal, retention, release and disposal of seized vehicles.

62. The seizure, retention, release and disposal powers would engage various Convention rights, especially (as the Explanatory Notes, paragraph 434, observe) the right to the enjoyment of one's possessions under Article 1 of Protocol No. 1 to the ECHR, but also, potentially, the right to respect for private life and the home under ECHR Article 8.

63. Any interference with the right under Article 1 of Protocol No. 1 must be justified by showing that it is 'in the public interest and subject to the conditions provided for by law and by the general principles of international law,' avoiding arbitrariness, and maintaining a fair balance between the general interest of the community and the need to protect the fundamental rights of the individual (essentially a form of proportionality test).[104]

64. Where the owner of a vehicle had been convicted of a criminal offence, and as part of the sentence the court orders the forfeiture of the vehicle which was the tool with which the offence was committed, it would be relatively easy to show that the seizure was justified under Article 1. However, the power under clause 52 would not have the purpose of enforcing or facilitating the enforcement of any sentence of a court (although there would have to be reasonable grounds for believing that an offence was being committed). Instead, the seizure could be triggered by a decision by a single uniformed officer, with a view to preventing further alarm, distress or annoyance to the public. This raises a question as to whether the Bill contains adequate procedural safeguards for the Convention and other rights of people with interests in the vehicle, and whether there are sufficient guarantees that the powers will be exercised only in ways which represent a fair balance between interests as required by Article 1.

65. The Government says, in paragraph 434 of the Explanatory Notes, that it is satisfied that the provisions 'strike a fair balance between the general interest in controlling anti-social behaviour and protecting the rights of others.' In its reply to our letter, the Government asserts that the powers—

... will operate as a temporary control of use rather than a deprivation of property rights and represent a minimal interference in the general interests of controlling anti social behaviour and protecting the rights of others in circumstances in which it appears that offences are being committed. The clause strikes a fair balance between the general interest and the rights of the individual.[105]

66. We accept that the detention of a vehicle does not in itself extinguish property rights. However, the provisions of the Bill make it clear that detention is intended to be the start of a process which will, in many cases, lead to the vehicle passing into the ownership of a public authority. While it will be possible for those with interests in the vehicle to assert them, the onus will be on them to establish their interests. The procedural protections available to people whose vehicles are seized form an important element in the assessment of whether or not a fair balance has been struck for the purposes of Article 1 of Protocol No. 1 to the ECHR.

67. In this regard, we take the view that the procedural safeguards set out in the Bill are relatively weak. Before seizing a vehicle, the constable must warn the person who appears to be using it that he will seize it if the use continues or is repeated. The seizure power then arises only if it appears to the constable that the use has been continued or repeated after the warning.[106] However, the constable need not warn the user if—

(a)  the circumstances make it impracticable in the circumstances;

(b)  the constable has already given a warning, on that occasion, to that person in relation to the use of that vehicle or another vehicle;

(c)  the constable has reasonable grounds for believing that another constable has given such a warning to that person on the same occasion; or

(d)  the constable has reasonable grounds for believing that the person in question has been given such a warning on another occasion within the previous twelve months.[107]

68. The Government takes issue with our view that the safeguards are 'relatively weak'.[108] It points to the fact that the powers would be exercisable only where an offence under section 3 or 34 of the Road Traffic Act 1972 is being committed, and where alarm, distress or annoyance is likely to be caused to the public. The Government suggests that prior warning would be required (although this does not take account of the point made in the preceding paragraph). The anticipated level of charges for removal and storage of vehicles is said to be 'fairly low' (although we anticipate that £105 for removal and £12 for 24 hours storage could soon mount up to what many people would regard as a considerable sum). There would be an exemption of an innocent owner from the charge (but we note that this would depend on the owner being able to establish that he or she was innocent). The Government also draws attention to other regulations governing removal and disposal of vehicles which, they say, 'appear to have operated effectively and fairly'.[109] Finally, the Government explains that regulations to be made under clause 53 would be expected to leave the owner of a vehicle with a cause of action in the County Court for trespass to goods.[110] We draw the Government's response to the attention of both Houses.

69. The powers under clause 52 to enter premises, using reasonable force if necessary, engage the right to respect for private life and the home under ECHR Article 8. The considerations which are relevant to deciding whether an interference with those rights is necessary in a democratic society (that is, both a response to a pressing social need and proportionate to a legitimate aim under Article 8(2)), so as to be justifiable, are similar to those which arise in relation to Article 1 of Protocol No. 1. We asked the Minister for his reasons for concluding that the use of the power to enter premises under clause 52 would be likely to be justifiable under Article 8(2). In reply, the Government pointed out that the power would not be exercisable in relation to dwelling houses, although it could be exercised in relation to garages and outbuildings. In the light of this, the Government considered that the provision would be proportionate and justifiable for the prevention of disorder or crime and the protection of the rights and freedoms of others. This seems to us to be a reasonable view to take.

EXTENDING THE USE OF ANTI-SOCIAL BEHAVIOUR ORDERS

70. In the Minister's speech opening the Second Reading debate, he gave notice that the Government intended to bring forward amendments to the Bill to extend the use of anti-social behaviour orders (ASBOs) under section 1 of the Crime and Disorder Act 1998. The amendments would be intended, he said—

... to strengthen the effectiveness of the anti-social behaviour orders. This is a vital part of the Bill for Members both of this House and the other place. We want to extend the use of such orders to registered social landlords and the British Transport Police. We want to introduce a system of interim ASBOs so that communities can be protected pending the outcome of a full hearing. We want to enable anti-social behaviour orders to travel with the people on whom they have been served. That will ensure that people cannot escape the consequences of such an order by moving from one area to another. We also propose to explore whether or not, to save time, there is a role for county courts in making orders when they are already dealing with an eviction notice or other civil proceedings against an individual [111]

71. The amendments were tabled on 5 March 2002.[112] They contain wide-ranging extensions to the use and effect of an already controversial measure contained in the Crime and Disorder Act 1998. They engage important Convention rights, and other human rights, but were not covered either by the Minister's section 19 statement or by the Explanatory Notes to the Bill. The Government has suggested that the compatibility of ASBOs with Convention rights has been confirmed by the Court of Appeal.[113] However, the only question in issue in that case was whether an application for an ASBO should be classified as civil or criminal for the purpose of establishing the content of the right to a fair hearing under ECHR Article 6(1). ASBOs which frequently significantly interfere with the Convention rights to freedom of expression under ECHR Article 10, freedom of association and assembly under ECHR Article 11, and private life under ECHR Article 8, of those subject to them. The impact of ASBOs on those rights was not in issue in that case, and the Court of Appeal's decision does nothing to illuminate the necessary conditions for compatibility of orders with those Convention rights. Nor could the Court of Appeal have considered directly the compatibility of ASBOs with the right to freedom of movement, which is not one of the Convention rights under the Human Rights Act 1998 but is a right under the the International Covenant on Civil and Political Rights which binds the United Kingdom in international law.

72. The Government points out that the proposed amendments will be debated at the Committee stage in the House of Lords and, if agreed then, at all subsequent stages in both Houses.[114] We accept this, and also bear in mind that the amendments, if agreed, would have to be the subject of a ministerial statement under section 19 of the Human Rights Act 1998 when the Bill is introduced to the House of Commons, and would presumably be covered in the Explanatory Notes prepared for the Bill at that stage. Nevertheless, we regard it as an undesirable practice to introduce a Bill knowing that important provisions which have sensitive human rights implications are not available for scrutiny at that point. In the case of these proposals, there is not even the justification of urgency, let alone emergency.

73. Furthermore, in relation to the substance of the proposals, we note that neither the relevant provisions of the Crime and Disorder Act 1998 nor the proposed amendments set out the conditions which would ensure that any ASBO which might be made, in circumstances which engaged the rights mentioned above, would be justifiable in terms of the ECHR as being a proportionate response to a pressing social need to pursue one of the legitimate aims under ECHR Articles 8(2), 10(2) and 11(2). In particular, under section 1 of the 1998 as amended, a 'relevant authority' would be able to apply for, and a court may make, an ASBO where 'such an order is necessary to protect relevant persons'. The amended version of section 1(1)(b) and section 1(4) would not specify the harm against which relevant persons could be protected. Although the person subject to the order would still have to be proved to have acted in an anti-social manner (section 1(1)(a)), the section would not in terms restrict the form of anti-social behaviour to those which meet the requirements of Articles 8(2), 10(2) and 11(2), which allow an interference with rights to be justified only—

'in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others' (Article 8(2)),

or

'in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary' (Article 10(2)).

or

'in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others' (Article 11(2)).

74. The need for such considerations to be taken into account is strengthened by the wider range of circumstances in which ASBOs could be made if the proposed amendments were to be accepted. In particular, the range of circumstances in which the power could be used are directly relevant to any assessment of the proportionality of the power conferred. The proposed amendments would permit—

'any person registered under section 1 of the Housing Act 1996 (c. 52) as a social landlord who provides or manages any houses or hostel in a local government area'

to apply for an ASBO in relation to persons residing in, or otherwise on or likely to be on, premises provided or managed by the landlord, and persons who are, or are likely to be, in the vicinity of such premises: see the proposed new section 1(1A)(d) and (1B)(d) of the Crime and Disorder Act 1998 proposed in amendment 298A to the Bill. We note that such landlords might not be public authorities within the meaning of section 6 of the Human Rights Act 1998.[115] Although they would be required to consult local authorities and the police before applying for an ASBO (see new section 1E of the Crime and Disorder Act 1998 proposed in amendment 298F to the Bill), those other authorities would not be entitled to veto a landlord's decision to apply to the court for an ASBO.

75. In addition, amendment 298A would, if approved, amend section 1(6) of the Crime and Disorder Act 1998 to make it possible for a court to make an order including any prohibition at all which might be deemed to be necessary for the purpose of protecting not only people in the area, but anywhere in England and Wales. This might interfere very substantially with a defendant's Convention rights. That being so, we entertain significant doubts as to the adequacy of the proposed amendments to ensure that powers under the Crime and Disorder Act 1998, as amended in line with the proposals, would be exercised only in a manner proportionate to a pressing social need to advance one of the legitimate purposes under ECHR Articles 8(2), 10(2) and 11(2).

76. Proposals such as this deserve the fullest possible scrutiny by each House on human rights grounds. Accordingly, we draw these matters to the attention of each House.

POWER OF THE BRITISH TRANSPORT POLICE TO REMOVE TRUANTS

77. Clause 54 would amend section 16 of the Crime and Disorder Act 1998 to allow members of the British Transport Police (BTP) to exercise the power to remove truants to a specified place where the children were in or in the vicinity of premises policed by the BTP. As in the original text of the Crime and Disorder Act 1998, the provision engages a number of rights, including the Convention right to freedom from arbitrarily deprivation of liberty under ECHR Article 5, the right respect for private life under Article 8, and (if force is used) the right not to be deprived of life (Article 2) and the right to be free of inhuman or degrading treatment (Article 3). The Explanatory Notes do not expressly address these matters.

78. We asked the Minister what the purpose of the removal of such truants would be, and how it would relate to the legitimate grounds for depriving a person of liberty under Article 5(1) and for interfering with the right to respect for private life under Article 8. The Government's reply explained that children and young people congregate round railway stations, jeopardising their own safety and that of rail passengers, and becoming vulnerable to criminals. They may also commit criminal acts themselves. The BTP have no power at present to deal with these people under the Crime and Disorder Act 1998. The power would be to take children to premises designated by the local authority (which would be used in co-ordination with officials of the education authority) or to school. The children would not be detained on premises of the BTP. The BTP already receive training to the same standard as that delivered to other police forces. The objects would be to protect the security of the individuals and their education.[116]

79. In the light of this, we do not consider that the extension of the power to the British Transport Police would give rise to any additional risk of incompatibility with Convention rights beyond those to which the existence of the power in the Crime and Disorder Act 1998 itself may give rise. We do not consider that it is necessary to draw the matter to the attention of either House in the context of this Bill, although at some point we may wish to examine the general issue of the use of detention powers in respect of children and young persons.


89   PACE, s. 116(3), (4), (6) Back

90   PACE, s. 9 and Sched. 1 Back

91   PACE, ss. 42 and 43 Back

92   PACE, s. 56 Back

93   PACE, s. 58 Back

94   Other powers, such as the power to require an intimate sample under s. 62 of PACE, originally depended on the person being suspected of a serious arrestable offence, but the safeguards have been watered down to the point at which the power can now be exercised in respect of any recordable offence Back

95   Police Reform Bill, Sched. 6, para. 22 Back

96   ibid., para. 15 Back

97   ibid., para. 25(a) Back

98   ibid., para. 25(b) Back

99   ibid., para. 21(b) Back

100   p Ev 5, paras. 11A-11E Back

101   p Ev 5, paras. 11F and 11G Back

102   Clause 44(1) applies the meaning of the term in s. 1(1)(a) and (5) of the Crime and Disorder Act 1998 Back

103   See clauses 49, 50, and (in relation to equivalent provisions concerning offences connected with transport systems) 51 Back

104   Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35 at para. 69 of the Judgment Back

105   p Ev 6, para. 12A Back

106   Clause 52(4) of the Bill Back

107   Clause 52(5) Back

108   p Ev 6, para. 13B Back

109   p Ev 6, para. 13C Back

110   p Ev 6, para. 14A Back

111   HL Deb., 5 February 2002, c. 514 Back

112   Amendments 298A-298F on the marshalled list Back

113   p Ev 6, para. 12A, referring to R. (McCann) v. Crown Court at Manchester [2001] EWCA Civ 281, [2001] 1 WLR 1084, CA Back

114   p Ev 6, para. 12A Back

115   See Poplar Housing and Regeneration Community Association Ltd. v. Donoghue [2001] 3 WLR 183, CA Back

116   p Ev 7 to Ev 8, paras. 16A-16H, 17A 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