E. Part 1, Chapter 3: Other provisions for combatting
crime and disorder
33. Clauses 33 to 46 of the Bill contain miscellaneous
measures designed (i) to prevent convicted drug traffickers from
travelling abroad after release from prison, (ii) to protect witnesses
from intimidation and harassment, (iii) to combat harassment of
people in their homes by protesters, and (iv) to extend the scope
of child curfew schemes.
(i) Travel restriction orders against drug trafficking
34. Clause 33 applies where a person has been convicted
of a drug trafficking offence,
and the sentencing court has determined that it is appropriate
to impose a sentence of at least four years' imprisonment. In
such a case, the court has a duty both (a) to consider whether
it would be appropriate to make a travel restriction order, taking
account of any other drug trafficking convictions which the defendant
has had after the commencement of the legislation and all the
other circumstances, and (b) to make such an order if it determines
that it is appropriate to do so. If the court decides not to make
an order, it must give reasons for that decision.
The effect of such an order is to prohibit the defendant from
travelling abroad for a specified period of at least two years
from the time he is released from custody.
The order may require the offender to deliver up any passport
held by him to the Secretary of State, who may retain the passport
until the end of the duration of the order (unless it is suspended
earlier), and until the offender applies for its return. If the
passport expires earlier, it need not be returned.
There is provision for an order to be revoked after it has been
in force for a 'minimum period'
if the court is satisfied that it is appropriate to do so taking
account of the person's character, his conduct since the making
of the order, and the offences of which he was convicted.
Before the end of the minimum period, a court may suspend the
order for a specified time if satisfied that there are exceptional
circumstances justifying suspension on compassionate grounds,
taking account of all the circumstances (including the offender's
character and conduct and the offences of which he was convicted).
It is an offence to contravene an order.
35. The purpose of these provisions is said by the
Government to be to 'mak[e] it more difficult for convicted drug
traffickers to travel overseas and thereby to help to prevent
and disrupt drug trafficking.' To that end, the Government envisages
that orders will be made in respect of offences 'identified by
virtue of a direct relationship with overseas travel and subject
to a sentencing threshold of four years to distinguish serious
In this way, it is hoped to make a contribution to the Government's
10-year National Drug Strategy.
These provisions give rise to several human rights issues.
36. The United Kingdom is a party to the International
Covenant on Civil and Political Rights, Article 12.2 of which
provides, 'Everyone shall be free to leave any country, including
his own.' This necessarily includes a right to a passport.
These rights may be subject to restrictions, but these 'must not
impair the essence of the right...; the relation between right
and restriction, between norm and exception, must not be reversed.
The laws authorizing the application of restrictions should use
precise criteria and may not confer unfettered discretion on those
charged with their execution.'
The United Kingdom has not entered any reservation to Article
12.2, and is accordingly bound by it in international law, although
the rights do not form part of national law, falling outside the
definition of Convention rights in the Human Rights Act 1998.
37. It is clear that making a travel restriction
order and withdrawing a person's passport would interfere with
the right to leave the country under Article 12.2. It is also
possible that an order might interfere with the right to family
life under Article 8 ECHR, for example by preventing the enjoyment
of normal family ties if, for any reason, members of an offender's
family were unable to enter the United Kingdom. The question is
whether such interference can be justified so as to make it compatible
with people's rights in international law and the United Kingdom's
international obligations and the rights. There is little doubt
that the Bill, if enacted, would afford adequate legal certainty.
But would the orders be for a legitimate purpose? They might certainly
be 'necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms
of others'. The Government believes that the orders would be justifiable
as necessary to protect public order, having punitive, preventive
and deterrent functions.
However, we were concerned about two possible ways in which such
orders might fail to be justifiable under Article 12.3.
38. First, it was not clear that orders made under
clause 33 of the Bill would always serve a legitimate purpose.
Nothing in clause 33 expressly requires the sentencing court to
have regard to the tests set out in ICCPR Article 12.3, or the
preventive function of the orders (as distinct from their punitive
and deterrent functions).
Nor does clause 33 even direct the court's attention to those
matters. This is particularly important in view of the fact that
Article 12.3 does not directly form part of United Kingdom law,
so the court might not have its attention directed to it by counsel.
When asked whether it would be possible to use the clause to require
the court to have regard to the likelihood that the offender would
use travel abroad to offend again, the Minister stressed that
a travel restriction order could be seen as a legitimate sentencing
option irrespective of its preventive role.
He also noted that a travel restriction order is a less severe
form of interference with liberty than imprisonment, which is
accepted as a permissible penalty for drug trafficking.
39. We understand the Minister's point of view and
have sympathy with the Government's objectives. However, clause
33 does not make it clear whether the purpose of making a travel
restriction order is punitive, preventative, or both. In any case,
a sentence of the court must comply with the United Kingdom's
human rights obligations no less than any other state action.
This is why imprisonment following conviction by a competent court
has to be expressly permitted as an exception to the right to
liberty, for example in ECHR Article 5.1(a). Where a sentence
includes a restriction of the freedom to travel, otherwise than
by way of imprisonment, that must be justifiable by reference
to the criteria set out in the relevant Article.
40. We accept that a travel restriction order may,
in appropriate cases, be a justifiable interference with an individual's
rights. The Minister, during his oral evidence to us, maintained
that travel restriction orders could serve a legitimate aim and
be 'necessary', i.e. a proportionate response to a pressing social
need, so as to be justifiable under ICCPR Article 12.3. He explained
that in a randomly selected sample of 15 'familial' drug trafficking
organisations (where two or more dominant members of the organisation
are blood or familial relatives) and 15 'network' organisations
(where dominant members are not related to each other), the National
Criminal Intelligence Service found that almost all of them are
active outside the United Kingdom, and in each case the dominant
members travelled outside the United Kingdom more than six times
a year, probably to attend important meetings or handle business
transactions in person.
However, we are not persuaded that clause 33 makes it clear that
an order can be made only for the legitimate purpose of preventing
or disrupting future drug trafficking by the offender and his
or her associates. We consider that clause 33 should expressly
state that the likelihood of future drug trafficking, involving
foreign travel, is relevant to the decision to make a travel restriction
order. The absence of such a provision gives rise to a risk that
orders will be made in circumstances which give rise to a breach
of the United Kingdom's human rights obligations.
41. We are also concerned that the structure of clauses
33 to 37 may lead to an order being made, or continuing in existence,
in circumstances in which it is not or has ceased to be proportionate
to any legitimate aim. For example, drug couriers can be sentenced
to terms of imprisonment in excess of four years for importing
a relatively small quantity of controlled drugs on a single occasion.
It might be disproportionate to impose a long (perhaps indefinite)
travel restriction order on a teenager in addition to a long prison
sentence, particularly if there were to be no serious risk of
re-offending. If the other members of the offender's family were
prevented from travelling to the United Kingdom to join him for
any reason, a travel restriction order might also take away the
very essence of the right to respect for family life under Article
8 ECHR, and so almost unavoidably be disproportionate in some
On the question of proportionality, the Government relied again
on the importance of combatting drug trafficking, and the importance
of travel to major traffickers. They also pointed out that clause
37(1)(b) and (3) allows an order to be suspended in exceptional
circumstances on compassionate grounds, and clause 37(1)(a) and
(2) allows a court to revoke an order after the end of the minimum
period calculated in accordance with clause 34(7).
42. However, clause 35(3) provides that a travel
restriction order may be suspended only in 'exceptional circumstances'
on 'compassionate grounds'. This might leave a court in a situation
where it could not make arrangements to take account of pressing
circumstances which were not regarded as exceptional, and result
in an unavoidable failure of proportionality. As the right is
not a Convention right within the meaning of the Human Rights
Act 1998, the court would be under no duty to interpret clause
35 in a manner compatible with the right so far as possible, and
would not be able to make a declaration of incompatibility under
section 10 of the Act. We welcome the Minister's agreement during
his oral evidence to us that 'there should be proper guidance
[about] the inter-relationship between this law and the relevant
international documents for judges ... on proportionality', and
his commitment to work with his colleagues and other Government
Departments to achieve that.
We consider that this should be reflected in the Bill. We therefore
draw the attention of each House to these clauses, which we do
not believe to be compatible as they stand with the international
obligations of the United Kingdom under the ICCPR. The provisions
should make it clear that travel restriction orders are to be
made only when they serve a legitimate aim under Article 12.3
of the ICCPR, and are proportionate to that aim. The provisions
should also make it clear that orders are to be suspended or revoked
when they no longer serve a legitimate aim or are not, for the
time being, proportionate to such a legitimate aim. We consider
that clause 33(1) and clause 35(3) should be amended in order
to secure compliance with the ICCPR.
43. The exercise of the power to make travel restriction
orders may also give rise to problems under Community law. Other
than in a wholly internal situation, an order under clause 35
appears capable of interfering with the free movement of workers
and their families,
the right of establishment (i.e. free movement of self-employed
and the provision of services.
Limitations of these freedoms may be expressly permitted on the
grounds, inter alia, of public policy and public security,
and the Court of Justice has acknowledged that there may be other
overriding interests. But there is no automatic, comprehensive
exclusion for the implementation of domestic criminal law. The
Court of Justice is concerned to ensure that any restriction on
Treaty freedoms is both justified in the circumstances and proportionate
to the legitimate aim pursued. There is thus a risk that a travel
restriction order made against a person with legitimate business
interests requiring him or her to move between Member States of
the Community could contravene Community law. However, this would
call for examination on a case by case basis rather than in general
terms and in the abstract. The power to make an order would have
to be interpreted in a manner consistent with Community law. Therefore
clause 35 itself would not necessarily be incompatible in practice
with rights under Community law.
(ii) Provisions protecting witnesses: clauses
38 to 40.
44. These provisions extend to witnesses in civil
proceedings similar protection to those already available under
statute in relation to witnesses in criminal proceedings, by making
it a criminal offence to intimidate, harm or threaten to harm
a witness with the intention of causing the course of justice
to be obstructed, perverted, or interfered with.
We do not consider that they raise issues of human rights which
require special attention.
(iii) Police directions stopping the harassment,
etc., of a person in his home
45. Clause 41 was inserted during the Committee Stage
in the House of Commons, and is therefore not covered by the statement
of compatibility made by the Home Secretary under section 19 of
the Human Right Act 1998 when he introduced the Bill to the House
of Commons. The clause was drafted in the light of the campaign
being conducted by protesters against people connected to companies
carrying out experiments on live animals. The effect of Clause
41 is to allow the senior
police officer present in the vicinity of premises used by someone
('the victim') as his dwelling
to give directions to a person 'to do all such things as the constable
giving it may specify as the things he considers necessary to
prevent one or both of the following-(a) the harassment of the
victim; or (b) the causing of any alarm or distress to the victim.'
The sole express limitation is that the officer has no power to
direct someone to refrain from picketing his work place, which
is lawful under the Trade Union and Labour Relations (Consolidation)
Act 1992, section 220.
This power arises if two conditions are satisfied. First,
the officer must believe on reasonable grounds that the person
is there for the purpose of 'representing to the victim or another
individual (whether or not one who uses the premises as his dwelling),
or of persuading the victim or such another individual', that
he should not do something he is entitled or required to do, or
that he should do something he has no obligation to do.
Secondly, the officer must believe on reasonable grounds
that the presence of that person either amounts to, or
is likely to result in, harassment of the victim, or is
likely to cause harassment, alarm or distress to the victim.
It would be an offence knowingly to contravene a direction, and
a constable would have a power to arrest without warrant anyone
whom he reasonably suspected of committing that offence.
46. These provisions necessarily engage the right
to freedom of expression, including 'the right to ... impart information
and ideas without interference by public authority', under ECHR
Article 10.1. Some particular directions might also engage the
right to freedom of peaceful assembly under Article 11.1, although
one can imagine directions which would not affect that right.
47. It is clear that the restrictions under Clause
43 would pursue legitimate aims. The question remains whether
the restrictions would satisfy the tests of legal certainty, pressing
social need and proportionality. It seemed to us to be possible
that the standard of behaviour which 'amounts to, or is likely
to result in, the harassment of the victim' or 'is likely to cause
alarm or distress to the victim' might be too vague to satisfy
the test of legal certainty.
48. We also considered that there might be a risk
of the power being used arbitrarily and disproportionately. Although
this is principally a matter for police officers when exercising
the power (as they would be acting unlawfully if it were used
in a disproportionate way),
we thought it important to know whether the Government considered
that the power would be sufficiently wide to inhibit legitimate
political protests, bearing in mind the complaints which followed
attempts by the police to protect a Chinese delegation from peaceful
protests by Tibetan demonstrators in London in 2000.
49. These points were raised with the Minister when
he gave oral evidence to us. He pointed out that the clause was
narrowly drawn to protect people in their homes, in order to uphold
their right to respect for private and family life and the home
under ECHR Article 8. He agreed to provide further written evidence
relating to the Government's view about the potential of the 'harassment'
standard to allow interference with legitimate political demonstrations,
and whether the word meets the standards required by the term
'prescribed by law' under ECHR Article 8.2.
50. The further written evidence from the Home Office
reiterated that protecting people's right to respect for their
private lives and homes is a legitimate aim of steps which interfere
with rights under Articles 10 and 11. Observing that protestors
would remain free to demonstrate away from people's dwellings,
the Government pointed out that it is impossible to specify in
detail the conduct which is to be prohibited. It will depend on
the circumstances in each case. The Government considered that
it would be acceptable for the legislation to be drafted in broad
terms, because the directions given by police officers will have
to be precise.
51. In view of the fact that the directions given
by police officers will be unlawful if they are not compatible
with the requirements of Articles 10.2 and 11.2, including the
principle of proportionality, we do not wish to draw these provisions
to the attention of either House.
(iv) Extension of child curfew schemes: clauses
45 and 46.
52. The Crime and Disorder Act 1998, section 14,
introduced a power for local authorities to introduce 'child curfew
schemes', designating public places in which children under the
age of 10 are not permitted to be during specified hours between
9 pm and 6 am unless they are under the effective control of a
parent or other responsible adult. The schemes require to be confirmed
by the Secretary of State. Under section 15 of the Act, a constable
who has reasonable cause to believe that a child is contravening
a child curfew scheme is empowered to remove the child to its
place of residence (unless he has reasonable cause to believe
that the child would suffer significant harm if taken there).
The constable must also inform the local authority, which then
has a duty under the Children Act 1989 to investigate within 48
53. Clause 45 of the Criminal Justice and Police
Bill would amend section 14 of the 1998 Act to allow child curfew
schemes to be applied to children under the age of 16. In addition,
clause 46 would allow a chief officer of police to make a child
curfew scheme after consulting local authorities in whose areas
the proposed scheme would operate.
54. The Government's purpose in introducing the power
to make child curfew schemes was to prevent young trouble-makers
from gathering regularly to commit crimes and cause disorder.
However, neither section 14 of the 1998 Act nor clause 45 of the
current Bill specifies that the power is to be used for that purpose.
Furthermore, the legislation restricts the freedom of young people
whether or not the individuals have committed, or are likely to
commit, any offence, or have caused or are likely to cause disorder:
the restriction is imposed on an area, not on individuals. Finally,
a child or young person is liable to be taken into custody by
a constable and taken home simply as a result of being in a place
at the wrong time. The legislation does not require that the constable
should believe or suspect that the individual has behaved, is
behaving, or is likely to behave in a criminal or disorderly way.
55. It is at least arguable that child curfew schemes
interfere with human rights in three areas: the right to liberty;
the right to privacy, or respect for private life; and the right
to freedom of association and peaceful assembly. Children and
young people are entitled to the right to privacy (or respect
for private life),
the right to freedom of association and peaceful assembly,
and the right not to be arbitrarily deprived of their liberty.
56. We attempted to evaluate the proposed extension
of child curfew schemes in the light of these human rights concerns.
The cogent explanation of the purposes and operation of the schemes
provided by the Government's response
persuaded us that individual child curfew schemes may be capable
of being justified as being for legitimate purposes (particularly
the protection of children and young persons against the risk
of being injured or drawn into prostitution, drug or alcohol abuse,
sexual abuse, or crime), and that the powers of the police were
intended to help to divert children and young persons away from
the criminal justice system. However, given the existence of other
wide powers available to the police to protect young persons and
to maintain public order, child curfew schemes may be disproportionate
interferences with rights, in that they may not be the least restrictive
measures necessary to accomplish the objectives set out by the
Government. We accept that the making of individual schemes, and
the exercise of the powers of the police and other officials in
relation to them, would be unlawful if they do not comply with
the requirements of Convention rights, but the same is not true
of non-compliance with the ICCPR and CRC which do not form part
of national law.
57. We recognise the importance of the Government's
aims. However, we remain concerned about the proportionality of
child curfew schemes, especially considering the extent of the
discretion given to individual constables where a scheme is in
force, taking account of the other powers available to the police
to protect children and young persons and to prevent disturbances
in public places. We consider that safeguards are needed against
the arbitrary exercise of powers to make and operate these schemes.
A first safeguard might be that the legitimate aims of the schemes
should be written into section 14 of the Crime and Disorder Act
1998 which would be amended by this Bill. The operation of the
schemes should then be carefully and continuously monitored to
ensure that the powers are not being used in a disproportionate
way. We therefore draw these provisions to the particular attention
of each House.
40 'Drug trafficking offence' is defined in cl. 34(1).
It includes production and supply of controlled drugs and related
offences under the Misuse of Drugs Act 1971, as amended (subject
to a power in the Secretary of State to amend the list by statutory
instrument); offences under the Customs and Excise Management
Act 1979 of illegal importation, exportation, or evasion of controls
and duties in relation to a prohibition or restriction having
effect by virtue of s. 3 of the 1971 Act; and a conspiracy or
incitement to commit any such offence. Back
Cl. 33(2). Back
Cl. 33(3). Back
Cl. 33(5). Back
The 'minimum period' is two years where the order is made for
up to four years, four years in respect of an order for between
four and ten years, and five years in any other case: cl. 35(7). Back
Cl. 35(1), (2). Back
Cl. 35(1), (3), (4). Back
Cl. 36. Back
Criminal Justice and Police Bill Explanatory Notes [Bill
31-EN] para. 101. Back
Home Office, Tackling Drugs to Build a Better Britain (London:
Home Office Communications Directorate, April 1998). Back
Communication no. 57/1979, Vidal Martins v. Uruguay; Communication
no. 77/1980, Lichtenstejn v. Uruguay; Communication no.
106/1981, Montero v. Uruguay; Communication no. 263/1987,
Gonzales del Rio v. Peru; and see Human Rights Committee
General Comment No. 27, 18 Oct. 1999, 7 IHRR 1, para. 9. Back
United Nations Human Rights Committee, General Comment No. 27,
18 Oct. 1999, 7 IHRR 1, para. 11. Back
There is, in addition, an obligation under the ICCPR, Art. 2.3,
to provide an effective remedy for any violation of a right or
freedom recognized in the ICCPR. Back
Home Office Memorandum, paras. 25 and 26. Back
The Law Society drew attention to this point in their Briefing
Paper on the Bill for its Second Reading in the House of Commons,
reprinted in the First Special Report, pp. 18-19. Back
Oral evidence, QQ. 24, 25 and 27. Back
Oral evidence, QQ. 26 and 28. See to the same effect Home Office
Memorandum, paras. 25 and 26. Back
Oral evidence, answer to Q. 32. Back
The case-law of the European Court of Human Rights relates to
attempts to prevent deportation after conviction of a criminal
offence, not challenges to orders preventing people from leaving
the country. See, e.g., El Boujaïdi v. France (1997)
30 EHRR 223; Mehemi v. France (1997) 30 EHRR 739. However,
similar principles should apply. Back
Home Office Memorandum, para. 31. Back
Oral evidence, Q. 35. Back
Arts. 43-48 of the Treaty establishing the European Community
Arts. 49-55 TEC. Back
Arts. 56-60 TEC. Back
Arts. 39(3), 46 and 55 TEC. Back
Cl. 38(1), (2). Cp. Criminal Justice and Public Order Act 1994,
s. 51, dealing with protection for witnesses in criminal proceedings. Back
Clause 41(6)(a). Back
Clause 41(1)(a). Back
Clause 41(2). Back
Clause 41(6)(b). Back
Clause 41(1)(b). Back
Clause 41(1)(c). Back
Clause 41(7), (8). Back
Human Rights Act 1998, s. 6. Back
Home Office Supplementary Memorandum (printed in our First Special
Report at pp. 66-72), at paras. 48-54. Back
ICCPR Article 17, the UN Convention on the Rights of the Child
(CRC) Article 16, which the United Kingdom has ratified and by
which we are bound in international law, and ECHR Article 8. Back
ECHR Article 11, ICCPR Arts. 21 and 22, and CRC Article 15. Back
ECHR Article 5, ICCPR Article 9, and CRC Article 37(b). Back
Home Office Memorandum, paras. 32-53. Back