Joint Committee On Human Rights Appendices to the Minutes of Evidence



APPENDIX

HUMAN RIGHTS—POLICY AND PROCEDURES FRAMEWORK

FRAMEWORK TO ENABLE DRAFTING OF POLICY AND PROCEDURES IN ACCORDANCE WITH HUMAN RIGHTS LEGISLATION

The following provides a set of questions to be applied by those persons involved in auditing, drafting or amending Service policy or procedures. The questions are prompts to ensure compliance with the key principles of Human Rights legislation. It is recommended that this completed document be attached to any policy subjected to this form of review, as this will demonstrate what steps have been taken by the Service to ensure Human Rights compliance. This framework document should be used in conjunction with the full Force Tool Kit as this provides the definitions and context for auditing both policies and practice.

 

Question

Response

(This section should be completed by the individual auditing or drafting policy and provides the evidence to support any certification of compliance)

ISSUE: AUDITING FOR POTENTIAL INTERFERENCE AND DISCRIMINATION

 

1. What is the intention of the Police Reform Bill?

The Bill aims to:

make new provision about the supervision, administration, functions and conduct of police forces, police officers and other persons serving with, or carrying out functions in relation to, the police

amend police powers and to provide for the exercise of police powers by persons who are not police officers

and for connected persons

2. Have the contents of the Bill been previously audited for human rights compliance?

Yes

 

 

 

3. Is there any potential interference with an individual's rights contained in the Bill as set out in the Convention Articles?

Yes

Article 2 - Right to life

Failure to provide suitable clothing, equipment and training, to Officers undertaking the duties outlined in the Bill may result in a subsequent loss of life. This may be deemed to breach this Article Particular attention is drawn to:

  Regulation and provision of equipment

  The additional powers given to Investigating,

 Detention and Escort Officers

  The new powers given to Community

 Support Officers and Accredited Persons

The introduction of the power for Police Civilians to use reasonable force to detain a person may, on the circumstances of the case, be interpreted in such a way as to cause the death of an individual.

Article 3 - Prohibition of torture, inhuman or degrading treatment or punishment

In line with the current use of stop and search procedures, the extended powers to stop and search persons and seize articles given to Police Civilians may be used in an inhuman or degrading way. This can be extended to the new powers for Police Civilians to undertake non-intimate searches of detained persons.

The provision to allow access to detainees by Independent Custody Visitors must be governed by strict guidelines to ensure that those detainees do not feel degraded by being subject to independent scrutiny whilst in custody.

The way in which Police Officers, Police Civilians or Medical staff exercise their extended right to take non-intimate samples or blood or urine specimens may be interpreted as being inhuman or degrading treatment by the individual from whom the samples or specimens are being taken.

Article 5 - Right to liberty and security

Utilising the process of stop and search, or exercising the new powers of Police Civilians or Accredited Persons to stop an individual and require their name and address, seize property or issue an Fixed Penalty Notice may be deemed by the individual as a deprivation of their liberty. The provisions for the use of reasonable force to detain a person further extend this.

The extension of the provisions of Section 16 Crime & Disorder Act 1998 (power to remove truants) to include BTP will involve a temporary deprivation of an individual whilst they are removed to the designated premises.

Article 6 - Right to a fair trial

Failure to adhere to the procedures for recording, investigating and finalising complaints and disciplinary issues outlined in the Bill will affect the ability for an individual to receive a fair hearing.

 

There is a need to ensure the integrity of handling, storing and preserving evidence to again ensure the individual receives a fair hearing. This links closely to the obligation surrounding disclosure.

Article 8 - Right to respect for private and family life

There is a need to consider the duty of care and Health & Safety implications associated with the following aspects of the Bill:

  Regulation of suitable clothing, equipment

 and training

  The vicarious liability imposed upon Chief

 Officers for the Accredited Persons as a

 result of their establishing and maintaining

 accreditation schemes and accrediting

 individuals to implement the new powers

 established within the Bill.

The taking of blood or urine samples and undertaking non-intimate searches may be construed by an individual as an infringement of their right to privacy.

The new provisions allowing Police Civilians and Accredited Persons to stop members of the public require their name and address and in certain circumstances confiscate property inherently interferes with the right to privacy.

Similarly, the right to stop and search individuals and premises by Police Civilians will impinge upon the right to privacy and family life.

The proposed intention to apply disciplinary procedures to an individual who has ceased to be a person serving with the police since the time of the conduct against which the allegation is made may impact upon this right.

The possible introduction of conditions or requirements for the recruitment or promotion of police officers, etc. as outlined in section 60 of the Bill may impinge upon an individual's Article 8 generic rights.

Article 1, Protocol 1 — Protection of Property

Alongside current legislation, the extended provisions for Police Civilians and Accredited Persons to seize and retain or dispose of property in certain circumstances may be deemed by the individual to be an interference with the peaceful enjoyment of their possessions. Similarly, this may be the case where samples of blood or urine are taken.

4. If there is any interference(s), is there any potential for them to be applied in a discriminatory manner on the grounds contained within Article 14?

Yes

There is the possibility of discrimination on the grounds of:

Other status

  The proposed intention to apply disciplinary

 procedures to an individual who has ceased

 to be a person serving with the police since

 the time of the conduct against which the

 allegation is made may impact upon this

 right.

Sex, Race, Colour, Language, Religion, Political or other opinion, National or social origin, Association with national origin, Other status

  These issues may be involved during the

 process of stop and search

Race, Language, National or social origin, Association with national origin, Other status

  The possible introduction of conditions or

 requirements for the recruitment or

 promotion of police officers, etc. as outlined

 in section 60 of the Bill may discriminate

 against individuals on these bases.

ISSUE: KEY HUMAN RIGHTS PRINCIPLES

 

5. Does the Bill contain a statement explaining what the specific legal basis is for any action/direction/statement of intent, within the Bill?

Not Applicable

6. Does the Bill provide details of what could be considered a legitimate aim(s) for the potential interference with an individual's rights as outlined in Question 3 above (looking specifically at the limitations within the Articles for legitimacy)?

Partially

RECOMMENDATION: Consideration should be given to including the appropriate legitimate aims for areas where human rights are to be engaged in a style adopted by the Regulation of Investigatory Powers Act 2000.

Article 2: Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 5: everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.

Article 6 ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial:

in the interests of morals, public order or national security in a democratic society,

where the protection of the private life of the parties so require,

or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 8: There shall be no interference by a public authority with the exercise of this right except as such as in accordance with the law, and is necessary in a democratic society in the interests of:

national security

public safety or the economic well-being of the country

prevention of disorder or crime

protection of health and morals

protection of the rights and freedom of others

Article 1, Protocol 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ...

7. Does the Bill provide details of what could be considered sufficient reasons to support the potential interference (as outlined in Question 3 above), and show that the interference is justified, proportionate and least intrusive. (Further evidence might be required to show other options considered.)

Partially

RECOMMENDATION: The following issues should be expanded upon or made reference to in sections of the Bill where specific human rights issues are highly likely to be engaged, for example the proposed nationality requirements in section 60:

Justification

Proportionality

Intrusiveness

Necessity

8. Is there any clearly defined decision-making process set out in the document, to guide staff in executing the requirements of the Bill?

Partially

Whilst some decision-making processes are outlined with in the Bill, for example complaints and disciplinary processes, it is recognised that much of the definitive detail for the remaining issues addressed within the Bill will be dealt with by secondary legislation and Codes of Practice.

RECOMMENDATION: Particular consideration should be given to the following issues in any subsequent secondary legislation or Codes of Practice when defining the decision-making processes:

Is there a less intrusive but equally effective alternative?

Is the intended course of action proportionate to the intended aim?

What is the impact likely to be on any third party?

Is there a legal basis for the action?

Does the disposal or other course of action pursue a legitimate aim, i.e. public safety, prevention of crime, protection of health, or protection of the rights and freedom of others

 

 

 

 

9. Is it explicit within the Bill as to what the minimum standards are required in relation to the documentation of such decision making?

Partially

Whilst minimum standards for documenting some decision-making processes when dealing with complaints and disciplinary matters are highlighted within the Bill, it is recognised that much of the definitive detail will be dealt with by secondary legislation and Codes of Practice.

ISSUE: DELINEATING BETWEEN POLICY AND TACTICS

 

10. Does the Bill incorporate police tactics, which would make it impractical to publish the contents?

Not Applicable

 

 

 

 

 

ISSUE: PUBLICATION, CHALLENGE, AUDIT AND INSPECTION

 

11. Does the Bill contain a statement in favour of the policy being publicly available, or, if this is inappropriate, justifications of any reservation to this rule on public interest/ other grounds?

 

 

 

 

12. Does the Bill contain a statement on the method of proposed publication to the public (i.e. means of publication e.g. hard copy, internet, public libraries etc)?

Not Applicable to the Bill

The Bill does make provision for the following to be laid before Parliament:

National Policing Plan

Annual Reports of the Independent Police

 Complaints Commission

Codes of Practice introduced through secondary

 legislation

Not Applicable

13. Does the Bill policy include details of how the public can challenge the policy? (e.g. the courts, Police Complaints Authority, Information Commissioner)

Not Applicable

14. Does the Bill recommend how it is proposed to audit and inspect decision-making

 

 

 

 

 

 

 

15. Does the Bill recommend any level of independent scrutiny of decision-making and complaints?

Partially

Whilst reference is made to the way in which complaints and disciplinary matters can be audited and inspected within the Bill, it is recognised that much of the definitive detail of these areas and the remaining provisions will be dealt with by secondary legislation and Codes of Practice.

Partially

Whilst reference is made to the way in which the following will be independently scrutinised within the Bill, it is recognised that much of the definitive detail of these areas and the remaining provisions will be dealt with by secondary legislation and Codes of Practice:

National Policing Plan

Complaints and disciplinary matters

 

 

ISSUE: CERTIFICATION OF COMPLIANCE

 

16. Does the Bill contain a certification that it has been drafted in accordance with the Human Rights Act and the principles underpinning it?

Yes

ISSUE: LEGAL VETTING

 

17. Has the Bill been through legal vetting for human rights compliance?

Not Applicable

ISSUE: REVIEW

 

18. Has the Bill got a review date to ensure ongoing compliance in light of emergent legislation and human rights case law?

Not Applicable

 


 
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