Joint Committee on Human Rights Eleventh Report


3 New human rights issues arising from amendments to the Bill in the House of Commons

39.  As we noted above, among the many amendments made to the Bill since we first reported on it, the following appear to us to raise significant human rights issues:

a)  the new provisions, now in clauses 7 and 8 of the Bill, which would allow the more or less routine taking and storage of fingerprints, non-intimate samples and data derived from them, from anyone arrested for a recordable offence;

b)  a new provision, now in 298 of, and Schedule 29 to, the Bill, which would allow the Home Secretary to delegate to a private body, including potentially one situated outside the United Kingdom, his functions in relation to the issue of criminal record certificates by the Criminal Records Bureau;

c)  a new presumption against granting bail to any defendant who has failed to surrender to bail before in the proceedings, now contained in clause 15 of the Bill;

d)  new provisions, now in clause 271 of the Bill, for a minimum sentence for certain firearms offences;

e)  new provisions, now in clauses 254 to 262 of, and Schedule 17 to, the Bill, for setting 'tariff' periods of imprisonment to be served by a person convicted of murder before he or she would be come eligible for release on licence;

f)  amendments (now in clause 284) to the Terrorism Act 2000 to allow people detained on suspicion of terrorism to be held without charge for up to 14 days, instead of the current maximum period of seven days.

The extended power to take fingerprints and samples

40.  The power to take fingerprints and samples without consent was conferred in the Police and Criminal Evidence Act 1984 in terms which provided a carefully articulated balance between the perceived need for police to have new powers and the provision of protection against abuse of those powers, making sure that they would be used only when they served a legitimate purpose and were necessary for that purpose, and interfered as little as possible with people's bodily integrity and personal autonomy. A distinction was drawn between intimate samples, which involved particularly intrusive methods of collection from a person's body and required particularly strong safeguards (including limited purposes for taking samples and a strong necessity requirement), and non-intimate samples which attracted less extensive safeguards. The idea of balance was drawn from the Report of the Royal Commission on Criminal Procedure in 1981. The provisions received careful parliamentary attention on a number of occasions between 1982 and 1984 when the Police and Criminal Evidence Bill was before the two Houses.

41.  Since then, the carefully struck balance has been steadily shifted in favour of the police. Procedures for taking various samples, including those from the mouth, have been moved from the intimate to the non-intimate category. The range of purposes for which samples could be taken has been steadily extended. The procedural safeguards have been progressively relaxed. The circumstances in which the fingerprints, samples and data derived from them can be retained, and the purposes for which it can be used, have been steadily extended, so that they can now be held even when a person has been acquitted of an offence. The current proposals would make the taking of fingerprints (widely defined to include a range of impressions) and samples for DNA comparison into a routine process, unrelated to the investigation of any particular offence.

42.  Clause 7 of the Bill, amending section 61 of PACE, would allow the police to take fingerprints from anyone who has been arrested for a recordable offence without his or her consent, whether or not he or she is subsequently charged with any offence, and to retain the fingerprints indefinitely. Clause 8, amending section 63 of PACE, would allow the police to take 'non-intimate samples' (apparently intended to be used for DNA profiling) from anyone who has been arrested for a recordable offence without his or her consent, whether or not he or she is subsequently charged or convicted, and to retain the samples indefinitely. So-called 'non-intimate samples', despite their name, can involve uncomfortable, embarrassing, and potentially degrading interference with very intimate parts of a person's body, including the taking of samples from the inside of the mouth and the taking of impressions or casts from any part of a person's body. The use of this power would therefore be likely to interfere significantly with a person's bodily integrity and dignity.

43.  The human rights implications include the following. First, the taking of samples by force without the detainee's consent engages the right to be free of degrading treatment under ECHR Article 3. We consider, however, that the operation of rules of law contained in PACE, combined with the legal duty of every police officer as a public authority to act compatibly with Convention rights unless compelled by primary legislation to do otherwise, and supplemented by the Codes of Practice issued under PACE, would adequately safeguard rights under Article 3 and secure appropriate legal remedies in case of a violation of Article 3.

44.  Secondly, both the taking of samples and fingerprints, and the storage of, access to and use of the data derived from them, engage the right to respect for private life under ECHR Article 8. As interpreted by the European Court of Human Rights, Article 8 requires the State to show a justification for any collection or storage of personal data, and also for allowing any person to have access to those data or to use them for any purpose without the consent of the person to whom they relate. Because the fingerprints, samples and associated records would serve to identify the person to whom they relate, they constitute personal data for this purpose. They make sensitive personal information available to others. Information about a person's distinctive DNA pattern is particularly sensitive, in that people with access to it can use it to identify not just the individual subject but also aspects of that person's genetic susceptibilities and predispositions. If it fell into certain hands, the information could affect the data subject's ability to obtain various kinds of insurance cover and employment opportunities, and to form personal relationships. Any dealing with this kind of information requires particularly strong justification, and very strong safeguards for the accuracy and confidentiality of the data.

45.  The importance of ECHR Article 8 is heightened by the fact that there are wide-ranging exceptions from the duties owed by data users under the Data Protection Act 1998. In particular, the provisions collectively known as the 'subject information provisions' under that Act do not apply where data are being used for the purpose (among others) of preventing or detecting crime, or apprehending or prosecuting offenders.[37] The provisions which do not apply comprise (a) the first data protection principle (fair and lawful dealing with data) except so far as they require particular conditions to have been met before data may be processed,[38] a very weak condition since the Secretary of State is empowered to authorise processing in circumstances specified by him, and (b) the right of the data subject to obtain information about the information held in relation to him or her.[39] As record keeping is a notoriously inexact art, with error rates of 30 per cent commonplace, the requirements of ECHR Article 8 are particularly valuable in imposing a duty to ensure that proper procedures are in place to safeguard the privacy of personal information.

46.  To justify under Article 8.2 the taking or storage of personal data, or access to it or use of it, without the consent of the data subject, the state must establish:

a)  that each individual action taken pursues a legitimate aim under ECHR Article 8.2, and is a proportionate response to a pressing social need to pursue that purpose, interfering no more than necessary with any rights of the person affected; and

b)  that there are procedural and institutional safeguards which effectively guarantee that decisions about the taking, storage or use of, or access to, the data will deal properly with the task of balancing the rights of the data subject and the interests of society in each case, in accordance with the standards laid down by Article 8.2.

47.  In his letter to us replying to questions put to him earlier in writing, the Minister asked us 'to accept that any intrusion on personal privacy is proportionate to the benefits in terms of the prevention and detection of crime.'[40] He did not explain the reasons for thinking that it was proportionate, or give evidence to support his request. Instead, he referred to a decision of the Court of Appeal in R. (S. and Marper) v. Chief Constable of South Yorkshire[41] (currently under appeal to the House of Lords) which actually concerns the retention of existing records rather than the taking of new samples and fingerprints and storage of additional records derived from them.

48.  When he gave oral evidence to us, we asked the Minister for information about the number and types of cases in which the collection of the fingerprints and samples and related data would be likely to make a significant contribution to the prevention and detection of offences.[42] The Minister distinguished between two ways in which the proposed powers could be useful. First, being able to fingerprint or take a DNA sample from a suspect before charge can assist in establishing the suspect's true identity. In 'significant numbers of cases' people have to be released because they give a false identity which cannot be checked adequately, failing to prevent further offences and preventing the police bringing the suspect before a court. Secondly, the retention of data relating to people who are not ultimately charged with an offence would produce databases of value in fighting crime. He said that in the first year after powers conferred by the Police and Criminal Evidence Act 1984, section 64, as amended by Criminal Justice and Police Act 2001, allowed fingerprints and samples from acquitted defendants to be retained, the additional retained data enabled 400 offences to be detected involving about 300 offenders. In a subsequent letter to our Chair, the Minister told us that these offences included three attempted murders, four rapes, and an unspecified number of aggravated burglaries and serious assaults. In the same letter, he said that data matching using the current databases of DNA profiles from analysing samples taken from people suspected of, about to be reported for, charged with, or convicted (or, one may add, acquitted) of a recordable offence, and samples taken from crime scenes, there are about 3000 matches each month. Where a sample is taken from a crime scene, there is a 40% chance of finding a matching profile on the databases, and that would increase if the number of individuals' profiles on the database can be increased.[43] There is, he said, therefore social value in keeping the material needed to build up such databases.

49.  In answer to further questions, the Minister said that he thought it would usually be necessary and proportionate, and so acceptable under ECHR Article 8.2, to take fingerprints and/or samples because of the value of establishing a pool of data against which future samples from suspects or offences could be matched.[44] The detainee from whom a fingerprint or sample is taken would have to have been arrested on suspicion of having committed a recordable offence, and most (though by no means all) recordable offences carry the possibility of a sentence of imprisonment. The aim of building up a database for future use has value independent of the offence for which the particular detainee would have been arrested.

50.  Relying on the figures given by the Minister, we accept that the Government is entitled to take the view that the taking and retention of fingerprints, samples and data derived from them would often be likely to be regarded as serving a pressing social need to prevent and detect crime, a legitimate aim under ECHR Article 8.2. The question is whether the extent of the acknowledged interference with the right to respect for private life under Article 8.1 is proportionate to the need, so as to be justifiable under Article 8.2 as being 'necessary in a democratic society' for the legitimate purpose. It seems to us that this depends in large part on the adequacy of the processes for safeguarding the accuracy and security of the data and for ensuring that they are used only for the legitimate purpose of preventing and detecting crime.

51.  The Minister accepted that the sensitivity of the data to be retained makes it necessary 'to be absolutely clear that proper standards are met'. In his oral evidence[45] and a subsequent letter to our Chair,[46] he explained that the Chief Scientist of the Forensic Science Service is the custodian of the national DNA database, under the terms of a Memorandum of Understanding between him and the Association of Chief Police Officers (ACPO) who are legal owners of the data. The custodian sets standards for the performance of laboratories analysing samples and submitting data to the database, and he monitors their performance. The operation of the National DNA Database and management of compliance with the Memorandum of Understanding is overseen by a Board chaired by the Chief Constable leading for ACPO on forensic science matters, and comprising regional representatives from police forces, members of the Forensic Science Service, representatives of the custodian, and a lay member from the Human Genetics Commission who advises on ethical matters. The Minister also informed us that laboratories and the custodian are registered with the Information Commissioner and are subject to the Data Protection Act 1998, although we note that, in view of the broad exceptions (noted above) to the duties of data controllers under that Act when dealing with data for the purposes of preventing and detecting crime, investigating offences and prosecuting suspected offenders, that offers relatively little protection for privacy-related rights.

52.  The Minister also told us, in his letter to our Chair,[47] about the kinds of information held on the DNA database and the form in which it is stored. From that helpful summary, it is clear that the information would allow a person to be identified with a considerable degree of accuracy on the basis of a match with the data stored in the database. On the other hand, no indication of any medical condition could be obtained from the information stored. This limits, although it does not eliminate, the threat to the right to respect for private life which might flow from improper or unauthorised access to the database or processing of the data.

53.  We are prepared to accept that the Chief Scientist of the Forensic Science Service, when acting as custodian of the National DNA Database, is likely to be treated by courts as a public authority for the purpose of section 6 of the Human Rights Act 1998, which imposes a duty on public authorities to act compatibly with Convention rights (including those under ECHR Article 8) unless required to act otherwise by primary legislation. However, we are concerned that it may be difficult to allocate responsibility for the operation of the database to a particular person or body. The division of responsibility between the various people and bodies involved in the operation makes accountability hard to pin down. The owners of the data (ACPO) and the custodian of the database (the Chief Scientists of the Forensic Science Service) have functions allocated by a Memorandum of Understanding between them which is not legally binding. The oversight of the operation and management of the process is overseen by a National DNA Database Board, the status and legal responsibilities of which are unclear. As a result, it is not clear to us who would be legally accountable if an error on the part of any of those parties, or of one of the laboratories submitting samples of analyses for inclusion on the database, or of one of the operatives entering the data or processing them, led to an unjustified interference with a data subject's right to respect for private life under ECHR Article 8. In short, who would be the appropriate defendant in an action by an aggrieved data subject claiming to be the victim of a violation of his or her right under ECHR Article 8?

54.  This leaves us significantly concerned about the risk that the arrangements for managing the hugely increased volume of personal data which would become available through the operation of the proposed new powers would be inadequate to secure compliance with ECHR Article 8. This concern is heightened by the steady increase in the number and scope of statutory provisions allowing data to be shared between agencies, both within and outside the United Kingdom, for a wide range of investigative purposes. We draw the attention of each House to the risk that the databases might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative 'fishing expeditions' in circumstances where the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in relation to personal data held by public authorities. We also draw attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights. The current negotiations relating to the draft agreements between the EU and the USA, including a draft agreement on mutual legal assistance which would lead to the establishment of joint EU-USA investigative teams, are particularly worrying in this regard, since Article 9 of the draft agreement would prevent an EU Member State refusing to provide information to USA investigators on account of the lack of effective protection in the USA for privacy-related rights in respect of personal data.[48]

Delegation of functions relating to the Criminal Records Bureau

55.  On Report in the House of Commons, a new Schedule 29 was introduced to the Bill, to amend Part 5 of the Police Act 1997 relating to criminal record certificates issued by the Criminal Records Bureau. While many of the proposals seem to us to be likely to have beneficial effects on the protection of human rights, there are two causes for concern.

56.  Paragraph 10 of Schedule 29, inserting a new section 122A in the 1997 Act, would allow the Secretary of State to delegate his functions under Part V of the 1997 Act to a third party. The Explanatory Notes to the Bill give, as an example of such a third party, a Public Private Partnership provider.[49] In view of the uncertainty surrounding the meaning of 'public authority' in section 6 of the Human Rights Act 1998, the question arises whether anyone exercising functions in relation to the disclosure of information under the Act will be a public authority within the United Kingdom, and so be bound by the obligation to act compatibly with Convention rights under section 6 of the 1998 Act. If a body is not a public authority, and/or is situated outside the United Kingdom, there will be risk that the Article 8 rights of data subjects will be threatened. This is particularly important considering that the PPP provider would be exempt from obligations to comply with the 'subject information provisions' of the Data Protection Act 1998 when dealing with personal data for the purpose of preventing or detecting crime, apprehending or prosecuting offenders, or assessing or collecting any tax or duty.

57.  There is at the moment some uncertainty about the circumstances in which a private body will be regarded as a public authority for human rights purposes on the ground that it is exercising a public function, as provided by section 6(3)(b) of the Human Rights Act 1998. Indeed, this is an issue into which we are currently undertaking a separate inquiry. Taking account of the different judicial approaches to the matter in the case-law currently available on the question, and the fact that a judgment of the House of Lords is awaited which may throw light on the question, we were not confident that a private, commercial body acting as a PPP provider would be regarded as a public authority, and so bound by Convention rights, for this purpose. We were also concerned that a PPP provider might be a foreign company which would not be subject to the jurisdiction of the United Kingdom's courts, or to the obligations imposed by the Human Rights Act 1998.

58.  We therefore asked the Minister what steps would be taken to ensure that any person or body to whom the Secretary of State delegates functions under Part 5 of the 1997 Act would be a public authority within the meaning of section 6 of the Human Rights Act 1998, and would be subject to the effective jurisdiction of the courts of the UK in respect of the discharge of their delegated functions. We also asked what, for this purpose, the Government considered was meant by the term 'public authority' in section 6 of the Human Rights Act 1998.

59.  The Minister replied that, in the Government's view, a body to which the Secretary of State's functions under Part 5 of the Police Act 1997 had been delegated 'would be in effect performing a plainly public function' and so would be a public authority under section 6 of the Human Rights Act 1998.[50] He wanted to take advice on the possibility of including express provision to that effect on the face of the Bill.[51] Subsequently, in a letter to our Chair on 30 May 2003, the Minister wrote that he would be willing to repeat the Government's view during debate on the Bill in the House of Lords, but the Government would be reluctant to include an express provision in the Bill designating a person to whom functions were delegated as a public authority, because that 'would cast doubt on other categories of persons for whom no express provision has been made.'[52]

60.  We understand this reasoning, but it is a matter which will require to be kept under review if victims of human rights violations are to be able to assert their rights against private bodies to whom ministerial powers are delegated. We draw the matter to the attention of each House, so that the matter can be reconsidered as necessary in the light of developing case-law.

61.  In relation to the position where a PPP provider is outside the jurisdictions of the United Kingdom's courts, the Minister said that the Government would never be able to enter into an arrangement whereby a private provider performed public functions unless the Secretary of State, before delegating those functions, was satisfied that the provider was subject to the jurisdiction of the courts, both in theory and in practice.[53] It would be unlawful to exclude a company in the EU from tendering to perform such functions, but the Minister was satisfied that it would be possible to serve proceedings on any provider in the EU, and a court would be able to make and enforce orders against them.[54] Where the provider sub-contracts particular operations, such as inputting data, to contractors outside the EU, that inputting process would not, in the Minister's view, be a public function. The public function would still be exercised by the provider with overall responsibility, who would be subject to the jurisdiction of courts in the United Kingdom.[55]

62.  Subsequently the Minister wrote to our Chair,[56] explaining how safeguards would be provided for the security of personal data. Contractual arrangements between the Home Office and any PPP provider to whom the Secretary of State delegated a function under Part 5 of the Police Act 1997 would include safeguards. At the moment, when responsibilities of the contractor operating the Criminal Records Bureau sub-contracts work to a company abroad, the sub-contract provides that English law, including the relevant provisions of the Data Protection Act 1998, apply. The Minister said that similar safeguards would apply where the Secretary of State's functions are delegated to a PPP provider. They would be reinforced by a new criminal offence of improperly disclosing information obtained in connection with a delegated function, to be created by the new section 124A which would be inserted in the 1997 Act by paragraph 11 of Schedule 29 to the Bill. He continued:

Our expectation is that were there any functions to be carried on abroad the contracting party would nonetheless have a legal presence in the UK and therefore [be] subject to the jurisdiction of the UK courts. In any litigation arising over an alleged breach of the convention rights I would also expect the Secretary of State to be joined in any proceedings as an interested party.

63.  We recognize that in most cases the arrangements are likely to work in the way that the Government expects. However, we doubt that the arrangements would always provide a reliable set of safeguards for Convention rights and effective remedies for violations, for three reasons.

a)  Contractual provisions in a contract between the Secretary of State and the delegatee of functions could require the delegatee to make relevant provisions of the Data Protection Act 1998 applicable through any contract with a sub-contractor. However, the Secretary of State might not be able to enforce the duties directly against the sub-contractor, if the duties are not intended to confer a benefit on the Secretary of State. Since any safeguards would benefit the data subject rather than the Secretary of State, it is likely that the Secretary of State would have to rely on the willingness of the delegatee to take action to enforce the duties in question against the sub-contractor. This might not always provide a reliable way of safeguarding personal information.

b)  Even if the Data Protection Act 1998 can be applied through the medium of contracts and sub-contracts, we have already noted that the Act provides exemptions from important duties (the 'subject information provisions') where the data are being dealt with for the purpose of preventing crime. For this reason, it is at least as important to ensure that PPP providers and their sub-contractors are required to comply with the standards imposed by ECHR Article 8 in relation to personal information as it is to secure compliance with the applicable obligations under the Data Protection Act 1998.

c)  We are concerned that the Minister wrote of an expectation, rather than a legal requirement, that contracting parties would be subject to the jurisdiction of the courts in the United Kingdom, and the Government would be joined in any legal proceedings as an interested party.

Taking account of these considerations, we are not convinced that the delegation provisions in Schedule 29 of the Bill provide adequate safeguards for rights in respect of personal information. We draw the matter to the attention of each House.

Presumption against bail

64.  Clause 15, added to the Bill on Report in the House of Commons, would amend paragraph 6 of Part 1 of Schedule 1 to the Bail Act 1976. As amended, that paragraph would require a court to refuse bail to an adult defendant who failed without reasonable cause to surrender to custody in answer to bail in those proceedings, unless it is satisfied that there is no significant risk that he would fail to surrender again if released on bail. It would also allow a person to be prosecuted for the offence of failing to surrender to bail up to three months after the person's surrender to custody, arrest or court appearance in respect of the offence, instead of limiting prosecutions to six months from the date of failure to surrender.

65.  On Report in the House of Commons, there was also an amendment to what is now clause 14(1) of the Bill. It would amend Part 1 of Schedule 1 to the Bail Act 1976 so as to require a court before whom an adult defendant is brought in respect of an offence to refuse bail if, at the time of the alleged offence, the defendant was already on bail for another offence. The court would be allowed to grant bail only if satisfied that there is no significant risk that the defendant would fail to surrender if released. (A less far-reaching provision would remain clause 14(2) in respect of defendants aged under 18.)

66.  These provisions engage the right to liberty under ECHR Article 5 by imposing a presumption against bail in these cases. Normally there is a presumption in favour of liberty. ECHR Article 5 allows people to be detained pending trial only if the state can show that there are 'relevant and sufficient' reasons to justify continued detention.

67.  In Letellier v. France,[57] the European Court of Human Rights held that pre-trial detention must be limited to a reasonable period of time, and the court must examine all the circumstances for or against a public interest in detention, justifying any detention with due regard to the principle of the presumption of innocence. The Court's case-law has identified five factors which may justify detention pending trial:

a)  the risk of absconding;

b)  the risk of interfering with the course of justice;

c)  the prevention of crime;

d)  the preservation of public order; and

e)  the need to protect the defendant.

But in relation to these grounds, the individual's particular circumstances and personal characteristics must be taken into account, and the reasons given for refusing bail must not be 'abstract or stereotyped'.[58]

68.  Under Part 2 of the Bill as it now stands, the court would be prevented from granting bail in at least some cases even though it is not satisfied that there is a sufficient public interest in detaining the defendant pending trial. Instead, the court would have to detain him or her unless satisfied that there is no significant risk that he or she would abscond. In some cases (for example, where a minor offence has been committed, and the defendant poses no real risk to the community) the court would be prevented from granting bail where detaining the defendant in custody would be self-evidently disproportionate to any purpose, and in other cases it might be clear that the public interest in detaining the defendant is outweighed by other considerations unrelated to the likelihood of the defendant absconding.

69.  When the Minister gave evidence to us, we asked why the Government thought that these provisions would be compatible with ECHR Article 5.1, when (for example) a defendant might present no significant risk to the public, and custody might significantly interfere with the right to respect for the private and family life of the young children of the defendant or of a disabled person for whom the defendant cares. The Minister replied that the presumption against granting bail could be rebutted, and that failure to surrender to bail would only be a very strong indicator that bail should be refused, leaving the courts with appropriate discretion.[59] However, there would be no discretion if the defendant cannot satisfy the court that there is no significant risk that, if released on bail (whether subject to conditions or not), the defendant would commit an offence or fail to surrender to custody.[60] When this was pointed out, the Minister denied that it would make a huge inroad on the right to liberty. The purpose of remands in custody, he said, is generally accepted to be to stop people reoffending and failing to surrender to custody. The right to liberty has to be balanced against the need to make the court system work effectively.[61]

70.  We are unable to accept the Minister's view. Provisions which deny a person bail unless they can convince a court that there is no significant risk of their reoffending or failing to surrender for trial seem to us to constitute a disproportionate interference with the right to liberty under ECHR Article 5.1. A court would be prevented from considering the other Convention rights of the defendant, members of his or her family, and other dependants. All factors relating to the circumstances of the offence (for example, that it might be of a very minor character) and the defendant (apart from the likelihood of offending or failing to surrender to custody) would be excluded from the court's consideration. The defendant would be required to satisfy the court as to negative propositions: the absence of a significant likelihood of offending while on bail or of failing to surrender for trial. This is notoriously difficult.

71.  Taking account of these factors, we conclude that the provisions give rise to an unacceptable risk of violating the right to liberty under ECHR Article 5.1, and other Convention rights (including the right to respect for private life under ECHR Article 8). We draw this matter to the attention of each House.

Minimum sentences for firearms offences

72.  Clause 271, introduced to the Bill on Report in the House of Commons, would insert a new section 51A in the Firearms Act 1968. This would require a court to sentence a person convicted of certain offences under section 5 of that Act to a minimum term of imprisonment of five years if the defendant was aged 18 or over at the time of the offence, and three years if he was aged 16 or 17 at that time.

73.  If this prevents a court from having regard to the circumstances of the particular offence and the individual offender when passing sentence, it could deprive him or her of a fair hearing, violating ECHR Article 6.1, and fail to treat him with appropriate respect for his or her humanity, threatening a violation of ECHR Article 3. The Judicial Committee of the Privy Council decided last year, in an appeal from Belize, that a mandatory sentence of death for murder by shooting prevented the sentencing court from considering the humanity of condemning a defendant to death. It therefore breached section 7 of the Constitution of Belize, which precluded the imposition of inhuman or degrading punishment, and was unconstitutional.[62] While it is not clear how far a prohibition on inhuman or degrading punishment requires the court to impose sentence in the light of the individual circumstances of the case and the offender where the punishment is not one of death, or where the statutory scheme limits but does not entirely exclude judicial discretion, it is clear that the duty to avoid inhuman treatment requires a sentencing court to take account of the circumstances of the defendant.

74.  In the case of this clause, however, new section 51A(2) of the 1968 Act would allow the court not to sentence to the statutory minimum term if it is 'of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.' In relation to mandatory life sentences for repeat offenders, the Court of Appeal (Criminal Division) has discharged its responsibility under section 3 of the Human Rights Act 1998 to give a somewhat extended meaning to the term 'exceptional circumstances' justifying not imposing the life sentence. In R. v. Offen[63] the court considered that it had to take account of the degree of continuing risk an offender posed: it would have violated ECHR Articles 3 and 5 to impose a life term for a relatively minor offence on someone who presented no significant risk to the public, and the fact that a repeat offender did not pose such a risk was treated as an exceptional circumstance.

75.  However, it is not clear what would count as an exceptional circumstances in the context of a variable sentence with a minimum term for an offence involving firearms, rather than a mandatory life sentence. In evidence to us, the Minister said that the Government did not necessarily accept that the approach in Offen would apply to minimum sentences for firearms offences.[64] The Explanatory Notes to the Bill suggest:

'Examples of when this might apply might be where the holder of a firearms certificate inadvertently forgets to renew his authority or where a war trophy is discovered among a deceased person's effects.'[65]

These examples relate to the circumstances in which the offence was committed, rather than the personal circumstances of the defendant. In evidence to us, the Minister said that he regarded the case where a firearm is discovered in the possession of someone who has inherited it from a deceased person, without realising that it is part of the estate, as relating to the circumstances of the offender rather than of the offence.[66] We disagree: the circumstances seem to us clearly to relate to the circumstances giving rise to the offence, rather than the personal circumstances of the defendant. If the court's discretion does not extend to taking account of the defendant's personal circumstances when deciding on the appropriate sentence, there would be a significant danger of violating the right to a fair hearing and the right to be free of inhuman and degrading treatment.

76.  We hope that courts, unlike the Government, would interpret the term 'exceptional circumstances' as including matters relevant to the defendant's personal circumstances. But there is no assurance that they would do so, given the way the provision is drafted. We consider that there is therefore a risk of a violation of ECHR Articles 3 and 6.1 in individual cases. We draw this to the attention of each House.

Tariff periods for people convicted of murder

77.  Similar issues potentially arise in relation to clauses 254 and 262 of, and Schedule 17 to, the Bill. These provisions, introduced on Report in the House of Commons, contain the Government's response to several recent decisions of the House of Lords and the European Court of Human Rights on the fixing of the minimum term of imprisonment to be served before a person sentenced to life imprisonment for murder may be considered for release on licence.

78.  The new provisions are designed to remove two incompatibilities between section 29 of the Crime (Sentences) Act 1997, under which the Secretary of State is ultimately responsible for setting the minimum period to be served by a mandatory life sentence prisoner before being eligible for release, with ECHR Article 5.4 (the right to have the lawfulness of detention decided speedily by a court and his release ordered if the detention is not lawful) and Article 6 (right to a fair hearing by an independent tribunal in the determination of a criminal charge).

79.  The European Court of Human Rights held in Stafford v. United Kingdom[67] that the Secretary of State's role in determining the release date for a life sentence prisoner violated the right under ECHR Article 5.4 to have the lawfulness of detention decided speedily by a court and his release ordered if the detention is not lawful. Next, a seven-judge Appellate Committee of the House of Lords held in R. (Anderson) v. Secretary of State for the Home Department[68] that the role of the Secretary of State in fixing the minimum term to be served by a mandatory life prisoner was an aspect of the determination of a criminal charge. In substance, it was part of the process of setting the sentence, and so was part of the trial for the purpose of Article 6. The Secretary of State is not independent of (indeed, is an integral part of) the executive, so there had been a breach of the right to a fair hearing by an independent tribunal in the determination of the criminal charge under ECHR Article 6.1. The House of Lords decided that it should not try to interpret section 29 of the 1997 Act in a manner compatible with Article 6.1, because the section represented a clear legislative choice to make the Secretary of State responsible for setting the minimum term to be served. Their Lordships therefore made a declaration of incompatibility.

80.  We welcome the Government's willingness to address the incompatibilities. In dealing with them, the Government is keen to limit the discretion of judges in setting minimum terms and to make Parliament responsible for setting the guiding principles.

81.  The scheme of the amendments therefore incorporates 'starting points' for judges when deciding what term of imprisonment is appropriate for the purposes of punishment and deterrence, taking into account the seriousness of the offence or offences and the time already spent in custody. When making these assessments, the court would be required to have regard to scheduled general principles and other sentencing guidelines not incompatible with them. The Secretary of State would be empowered to amend the scheduled principles by order. A court would have to state in open court the reasons for its decision, the scheduled principles on which it relied, and its reasons for any departure from the starting point provided by those principles.

82.  The principles to be followed are set out in Schedule 17 to the Bill. The Schedule specifies three starting points for deciding on the minimum term of imprisonment: a full-life term for cases of exceptionally high seriousness; thirty years for particularly serious cases not falling into the first category; and fifteen years for other cases. Paragraphs 4 to 6 of the Schedule set out the criteria for deciding the class of murder into which a case falls. The minimum term could then be adjusted to take account of aggravating and mitigating factors, a number of which are specified in paragraphs 9 to 11 of the Schedule.

83.  The provisions would remove the role of the Secretary of State in setting minimum terms of imprisonment, and with it the cause of the incompatibilities between the current law and ECHR Articles 5.4 and 6.1. We welcome this.

84.  At the same time, the provisions give rise to two new human rights questions.

85.  First, would the scheduled principles, and the requirement that the court should justify any departure from them, fetter the judicial discretion to such an extent that the judges would be prevented from exercising their independent sentencing function in the light of the facts of each case and the circumstances of each offender? If the scheduled principles have that effect, they might constitute a threat to the right to a fair hearing in the determination of a criminal charge, leading to a new violation of Article 6.1.

86.  Secondly, would the principles operate in an arbitrary or discriminatory way? If so, the detention pursuant to the principles might not be justifiable under ECHR Article 5.1(a). Such a detention must be 'lawful' and 'in accordance with a procedure prescribed by law'. The European Court of Human Rights has held that a detention under Article 5 is lawful only if it is not be arbitrary. If the scheduled principles operate in a discriminatory way, it could also breach Article 14 taken together with Articles 5.1 and 6.1.

87.  These questions must be approached in the light of a number of factors. First, the purpose of Articles 5.1 and 6.1 is to give effect to the principles of non-arbitrariness, due process, and the separation of powers, which form important aspects of the Rule of Law as it applies to the criminal process. Secondly, courts in the United Kingdom have consistently held that it is a cardinal principle of sentencing that the sentence should be properly related both to the seriousness and circumstances of the offence and to the circumstances of the offender. There is a risk that fixing a very long minimum sentence without regard to the particular circumstances of the offence and of the offender might amount to inhuman or degrading punishment.[69]

88.  Thirdly, the English courts have a duty under section 3 of the Human Rights Act 1998 to read and give effect to legislation in a manner compatible with Convention rights so far as it is possible to do so. They will not use section 3 to fly in the face of a decision of Parliament expressed in clear terms in a statute,[70] but they have held that a statutory duty to impose a life sentence for a second serious offence save in exceptional circumstances allows them to take account of the fact that an offender would not represent a serious continuing threat to the public as an exceptional circumstances.[71]

89.  Would the scheduled principles operate so as to deprive the defendant of the benefit of a fair hearing by an independent tribunal? The process of fixing the minimum term involves several steps. First, the court would select a starting point, taking account of the factors set out in paragraphs 4-6 of the proposed new Schedule but, save in one respect, not being bound by them. Cases in the categories described in those paragraphs are said 'normally' to fall within one or other of the groups for a whole life, 30 year or 15 year starting point. Subject to what is said in the following paragraphs, nothing in the scheduled principles would compel a court to select one starting point rather than another, or to use either whole life or 30 years as a starting point, or to assign a case to one category of seriousness rather than another. However, it seems to us that courts are unlikely to move far from the starting points set out in the Schedule, particularly as they would in any case be able to adjust the minimum term in the light of mitigating or aggravating factors.

90.  Potential arbitrariness. In a case not classified as being of exceptionally high or particularly high seriousness, the appropriate starting point is specified in paragraph 6 as 15 years. As well as applying to adult offenders whose offences are not regarded as being of particularly high seriousness, this applies to juveniles however serious their crimes are thought to be. This is an arbitrary choice.

91.  If the effect were to impose a mandatory minimum term of imprisonment regardless of the circumstances of the offender, this might lead to a degree of arbitrariness which would deprive the sentence of the quality of lawfulness necessary to be justifiable under Article 5.1. It would also be likely to deprive the offender of the benefit of a fair hearing, because he or she would have no opportunity to try to persuade an independent tribunal to impose a shorter minimum term. For the same reason, it might amount to inhuman or degrading punishment: the court would be unable to take account of the humanity or inhumanity of imposing such a sentence.[72] This is a particularly severe risk when dealing with juvenile offenders.

92.  In addition, a risk of arbitrariness is inherent in the scheduled principles themselves. For example, murder to advance a political, religious or ideological cause would normally fall within the most serious category of cases, while murder for gain would fall within a less serious category. Yet advancing a political, religious or ideological cause is a sufficiently valuable purpose to attract the protection of Convention rights under ECHR Articles 9 and 10, while the pursuit of gain might be thought to have less redeeming social value.[73] Then again, the murder of a police or prison officer would be treated as more serious than that of a parking warden, security guard or judge; and murder using a firearm would be regarded as more serious than murder by knife or poison. The reason for these distinctions is not immediately obvious.

93.  However, the choice of starting point would not lead mechanically to the selection of a minimum term. There is a second stage in the process, in which the court adjusts the minimum term to take account of mitigating or aggravating factors. The lists of those factors in paragraphs 9 and 10 of the proposed new Schedule are not expressed to be exhaustive, so other factors may be thrown into the balance if relevant in individual cases. The weight given to any of these factors is a matter for the judgment of the sentencing court. In principle, it should therefore be possible for the court to individualize the minimum period of imprisonment to the circumstances of the offence and of the offender. In performing its functions, the court would no doubt be mindful of its responsibilities to act compatibly with Convention rights, as a public authority within the meaning of section 6 of the Human Rights Act 1998.

94.  On the face of it, therefore, it should be possible for courts to preserve their independence of the executive and the legislature and to set a minimum period of imprisonment which takes account of all the circumstances of the offence and all the circumstances of the offender. Such an approach would be compatible with Convention rights. If that is to be achieved, courts would have to feel free to use the entire range of possible periods of imprisonment, discounting heavily for mitigating factors and not increasing penalties too much for aggravating factors. However, the Home Secretary has let it be known that he anticipates that the statutory starting points would produce higher minimum sentences in some cases than are currently imposed by him on advice from the judges.[74] If this policy is given parliamentary approval, judges might be reluctant to use the latitude allowed to them by the proposed amendments to make substantial allowances for mitigating factors. In addition, there is a possibility that the duty to explain the reasons for any departure from the statutory starting point would tend to inhibit a court's willingness to make use of the full range of possible minimum terms.

95.  When the Minister gave evidence to us, we asked him about the intended effect of these provisions on the level of minimum terms for murder. He said that there might well be cases where a higher minimum term would be imposed than the Secretary of State would currently impose on the basis of advice from the judges. For example, more whole-life tariffs might be set, because of the express recognition that such a term would be the appropriate starting point for the most serious murders. However, he stressed that the judges would always have the final say, in the exercise of their discretion after taking account of the guiding principles.[75] Asked about the likely effect on terms served by battered women who kill their abusers, he made it clear that the flexibility allowed to judges would allow them to reflect the special circumstances as at present. The Government did not intend to increasing the terms served by such offenders.[76]

96.  In the light of this, we do not consider that the provisions relating to tariffs for people convicted of murder give rise to a significant risk of violating Convention rights.

Extension of maximum period of detention without charge in terrorism cases

97.  At present, a person detained on suspicion of terrorist offences under the Terrorism Act 2000 may be held without charge for up to two days. A Senior District Judge (Chief Magistrate) or specially designated District Judge (Magistrates' Court) may authorise extended detention in certain circumstances, as long as the total period of detention without charge does not exceed seven days. The decision will be made at a hearing at which the detainee will be entitled to legal representation. This regime is laid down in paragraphs 21, 24 and 29 of Schedule 8 to the Terrorism Act 2000.

98.  The legislation was a response to earlier decisions of the European Court of Human Rights. In Brogan v. United Kingdom[77] the Court had held that detention without charge for up to seven days without judicial authorisation, under the Prevention of Terrorism (Temporary Provisions) Act 1984, violated the right to be brought promptly before a judge or other judicial officer under ECHR Article 5.3. The United Kingdom was initially unwilling to give up the seven-day detention period or to introduce judicial control during it. Accordingly the United Kingdom gave notice of derogation from Article 5.3 to allow it to maintain the provisions. In Brannigan and McBride v. United Kingdom[78] the Court held that the derogation was justifiable under ECHR Article 15. It was accordingly included as a 'designated derogation' in Schedule 3 to the Human Rights Act 1998. However, when drafting the Terrorism Act 2000 it was decided to introduce judicial control over the period of detention, without lengthening the period of detention without charge beyond seven days. This was done in Schedule 8 to the Bill, and the United Kingdom was able to withdraw its derogation in respect of Article 5.4 and to amend Schedule 3 to the Human Rights Act 1998 accordingly.

99.  Clause 284 of the Bill would amend Schedule 8 to the 2000 Act to allow a judicial officer to extend a warrant of further detention under the Schedule, granted initially for a period ending not more than seven days after the 'relevant time' (the detainee's arrest or the start of the person's examination), so long as the total period of detention without charge ends not more than 14 days from the 'relevant time'.[79]

100.  This has a number of human rights implications. Detention interferes with the right to liberty of the person under ECHR Article 5.1, and requires to be justified under the provisions of that Article. Detention will usually be lawful under Article 5.1(c), 'the lawful ... 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'. The procedure must be 'prescribed by law' and the detention must be 'lawful'. This imports a requirement that it must not be arbitrary or disproportionate: there must be arrangements to ensure that there are sufficient grounds for detaining the person and that the detention is proportionate both in the period of detention and the conditions of detention.

101.  Generally, the conditions laid down for authorising extended detention satisfy these requirements, and would continue to do so if the proposed amendment were to be introduced. Extended detention may be authorised only if two necessity conditions are met: (i) that there are reasonable grounds for believing that further detention is necessary in order to obtain relevant evidence in relation to terrorism, either by questioning the detainee or by detaining him or her in order to preserve evidence; and (ii) that the judge is satisfied that the investigation is being conducted diligently and expeditiously, so that the detainee is not being held longer than necessary.[80]

102.  Even if the maximum period of detention without charge is extended to fourteen days, it should still be possible for the Chief District Judge or designated District Judge to ensure that the necessity conditions are complied with. The detainee's legal representative will be able to make both written and oral submissions to the judge, although the detainee may himself be excluded from all or part of the hearing if necessary, for example on national security grounds).[81] However, we have considered two matters.

103.  First, at the legislative level, we have examined whether there are adequate grounds for thinking that it is necessary to extend a time limit last set after careful policy and parliamentary consideration less than three years ago. The Home Secretary, in a recent letter to our Chair,[82] explained the need for the extension of the time limit as follows:

'There has been a marked development in the sophistication of terrorist technology overall since 9/11. Examples of the issues this has highlighted include the fact that multiple arrests are occurring more frequently and when a "cell" is arrested, each member needs to be interviewed and each interview cross-referenced .... Some have been released on police bail prior to their significance being fully explored, due to time constraints.'

He went on to say that it is also taking longer to retrieve and analyse samples of material for radiological examination because of health and safety requirements, and the need to examine the hard drives of computers after searches of premises is time consuming. Further delays may occur because of the use of false identities.

104.  The Home Secretary drew attention to the safeguards contained in Schedule 8 to the 2000 Act, and to the fact that an extension of detention beyond seven days could be authorised only if the full seven days' detention has already been authorised and that seems to be insufficient in the particular case. Finally, he said, the power would be used only complex cases. 'Such cases are relatively infrequent and the power would therefore only be invoked where the compelling circumstances of the [case] justify it.'

105.  Secondly, we have considered whether there are sufficient safeguards against abuse of the power, particularly in cases where evidence said to support the application for a further warrant of detention is withheld from the detainee and his or her legal advisers. There is power to withhold such evidence in certain circumstances,[83] going well beyond circumstances in which national security is likely to be affected by disclosure. Unlike the position in proceedings before the Special Immigration Appeal Tribunal, there is no provision to appoint a special advocate to make submissions on undisclosed material to protect the detainee's interests in the absence of the detainee and his or her legal representative. This might make it hard to ensure that the procedure is fair enough to be 'lawful' within the meaning of ECHR Article 5.1. We draw the potential for a lack of fairness in the decision-making system, and the risk of a violation of Article 5.1, to the attention of each House.




37   Data Protection Act 1998, s. 29 Back

38   Ibid., Sch. 3 Back

39   Ibid., s. 7 Back

40   See Appendix 5 Back

41   [2002] EWCA Civ 1275, [2002] 1 WLR 3223, CA Back

42   Q. 71 Back

43   See Appendix 5 Back

44   Q. 79 Back

45   Q. 80 Back

46   See Appendix 5 Back

47   See Appendix 5 Back

48   Draft Agreement on Mutual Legal Assistance, Art. 9.2(b). House of Lords European Union Committee, Sub-Committee E (Law and Institutions), took evidence from Bob Ainsworth MP on 4 June 2003 in relation to this text. Back

49   HL Bill 69-EN, para. 646 Back

50   QQ. 86-88 Back

51   Q. 89 Back

52   See Appendix 5 Back

53   Q. 91 Back

54   QQ. 92-93 Back

55   Q. 94 Back

56   See Appendix 5 Back

57   (1991) 14 EHRR 83, Eur. Ct. HR, at para. 35 of the judgment Back

58   Yagci and Sargan v. Turkey (1995) 20 EHRR 505, Eur. Ct. HR, at para. 52 of the judgment; I. A. v. France, Eur. Ct. HR, RJD 1998-VII, at para. 104 of the judgment; Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000), vol. 1, pp. 501-504, paras. 10.138-10.144 Back

59   QQ. 95-96, 98 Back

60   New paras. 2A(1) and 6(1) of Sch. 1 to the Bail Act 1976, as substituted by cl. 14(1) and cl. 15(1) of the Bill Back

61   QQ. 99-101 Back

62   Reyes v. R. [2002] UKPC 11, [2002] 2 AC 235, [2002] 2 WLR 1034, PC Back

63   [2001] 1 WLR 253, [2001] 2 All ER 154, CA Back

64   Q. 115 Back

65   HL Bill 69-EN, para. 580 Back

66   Q. 115 Back

67   (2002) 35 EHRR 1121, Eur. Ct. HR Back

68   [2002] UKHL 46, [2002] 3 WLR 1800, [2002] 4 All ER 1089, HL Back

69   See Reyes v. R. [2002] UKPC 11, [2002] 2 AC 235, [2002] 2 WLR 1034, PC, a death penalty case Back

70   See e.g. R. (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46, [2002] 3 WLR 1800, [2002] 4 All ER 1089, HL Back

71   R. v. Offen [2001] 1 WLR 253, [2001] 2 All ER 154, CA Back

72   See para. 50 above Back

73   The real object of this seems to be to treat terrorist murders as falling into a particularly serious category, but it is not clear why this is justified as compared (for example) with coldly calculated murder for gain Back

74   See Appendix 3 Back

75   Q. 117 Back

76   QQ. 118-120 Back

77   Eur. Ct. HR, Series A, No. 145, (1988) 11 EHRR 117 Back

78   Eur. Ct. HR, Series A, No. 258-B, Judgment of 26 May 1993 Back

79   This would be the effect of Terrorism Act 2000, Sch. 8, para. 29(3) as amended by the proposed new clause in the Bill and para. 29(3A) and (3B) as inserted by the proposed new clause Back

80   Terrorism Act 2000, Sch. 8, para. 32 Back

81   ibid., paras. 8, 31, 33 Back

82   See Appendix 4 Back

83   Terrorism Act 2000, Sch. 8, para. 34(2), (3): (a) where there are reasonable grounds for believing that the detainee has committed and benefited from offences (other than drug trafficking offences) in respect of which a confiscation order might be made, and disclosing the information would hinder the recovery of the value of the benefit; or (b) where there are reasonable grounds for believing that disclosure would have the consequence of (i) interference with or harm to evidence of a terrorist offence, (ii) hindering the recovery of property obtained as a result of a terrorist offence, (iii) hindering recovery of property in the possession or under the control of the detainee at the time of the arrest, and intended for use for terrorist purposes, such property being liable to forfeiture under s. 23 of the Act, (iv) alerting a person suspected of terrorism, making his apprehension, prosecution or conviction more difficult, (v) alerting a person so that it would be more difficult to prevent an act of terrorism, (vi) interfering with the gathering of information about the commission, preparation, or instigation of an act of terrorism, or (vii) interference with or physical injury to any person. 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 2003
Prepared 13 June 2003