APPENDICES TO THE REPORT
1. Memorandum from the Home Office
This memorandum is submitted by the Home Office in response to the request for comments on the Police Reform Bill in a letter from the Chair to the Joint Committee on Human Rights to the Minister of State (Lord Rooker) of 28th February 2002.
2. The Minister of State has made a statement under section 19(1)(a) of the Human Rights Act 1998 indicating that in his view, the provisions of the Bill are compatible with the Convention rights. He believes that, where the Convention rights are engaged, the proposals are a balanced and proportionate response to a pressing social need and that the judgements he has made about the balance to be struck between competing rights and responsibilities can be objectively justified.
4. Many of the provisions in the Bill confer discretionary powers on public authorities . In the Government's view, all these powers are capable of being exercised in a way which is compatible with the Convention. Those on whom the powers are conferredthe police, police authorities, the Independent Police Complaints Commission, the Secretary of State, and the courts will be obliged in accordance with section 6 of the Human Rights Act to exercise them in a way which is compatible with the Convention rights.
5. This memorandum is in response to the specific questions on the Bill raised by the Committee.
PART 2: COMPLAINTS AND MISCONDUCT
1. Are you satisfied that Convention rights are adequately protected by a provision in clause 19 which appears to give blanket discretion to the Secretary of State, without including any express requirements as to the manner in which the discretion may be used, particularly having regard to the principle of legal certainty?
1A. The Government is satisfied that Convention rights are adequately protected by the provision in clause 19, and intend to use the power to adapt or amend the provisions of the Regulation of Investigatory Powers Act 2000 and the Police Act 1997 so as to put the IPCC in the same position as police forces with respect to powers granted and ECHR safeguards.
1B. The Government accepts that Clause 19 gives a wide power for the Secretary of State to make provision for the use of directed and intrusive surveillance and for the use of informers. Such provision will be made by suitable adaptation of and amendment to the Regulation of Investigatory Powers Act 2000 and the Police Act 1997. Whilst the provision in the Bill does not make it clear on its face that any order made under it will have to provide sufficient safeguards to ensure that there is legal certainty as to powers and controls, such safeguards are, as the Committee recognizes required in any event to comply with the duty under section 6 of the Human Rights Act. As the Committee also acknowledges, the power is certainly capable of being exercised in full compliance with the ECHR, including the Convention requirements for legal certainty.
1C. The current provisions in the 1997 and 2000 Acts governing intrusive surveillance and the use of informers in RIPA have been drafted to ensure sufficient certainty in the mechanisms for authorisation of surveillance and use of informers, and changes made by regulations made under clause 19 which apply these provisions to the IPCC are intended to ensure that the same safeguards are retained. The intention is to make suitable amendments to the 1997 and 2000 Acts to ensure that the IPCC is put in exactly the same position as a police force in relation to the powers and safeguards to the exercise of these powers. It is intended to use the same or very similar wording to that currently in these Acts in relation to the powers and safeguards which apply to police forces. The Committee will also be aware that any exercise of the power in clause 19 will have the full scrutiny of both Houses of Parliament under the affirmative resolution procedure.
2. Why have these provisions of clause 20 and Schedule 3 been drafted in a way which would appear to authorise the making of regulations which, if implemented in accordance with their plain meaning, would be capable of leading to violations of the fundamentally important rights under ECHR Articles 2 and 3?
2A. Whilst it may be possible when looking solely at the enabling power, for regulations to be made which restrict disclosure in a manner which may be held to be incompatible with articles 2 and 3 of the ECHR, the Government considers that it is important to allow some discretion in order to ensure that an unmitigated duty to disclose does not trample over other ECHR rights.
2B. The Committee accepts that Clause 20 is designed to increase the extent of disclosure of materials to the complainant during and after the investigation of a complaint in comparison to the current system. Clause 20(6) is designed to limit the extent to which there can be any restriction, by regulation, to the duty under clause 20(4) to disclose materials to the complainant. The regulations which set out how the test is to operate can only provide for restrictions in the categories set out in clause 20(6). The Government considers that these categories should allow for restrictions to the duty in clause 20(4) on the basis, inter alia, of possible future prejudice to criminal proceedings or other matters contrary to the public interest. If this were not the case, inappropriate disclosure which contaminates the evidence of the complainant could prevent criminal proceedings from taking place and severely limit the system's ability to provide an effective investigation. The regulations themselves will set out the situations in which disclosure should and should not be made, and the decisions which need to be taken by the person responsible for the disclosure. In making these regulations, the Secretary of State will ensure that the regulations are fully compliant with the developing case law on eye-witness testimony disclosure to a complainant.
3. Do you take the same view in relation to the similar provisions relating to arrangements which may be made for handling complaints against members of the National Criminal Intelligence Service, the National Crime Squad, and other forces under clauses 23 and 24?
3A. Given the developing case-law in this area and the different ways in which disclosure can affect the rights of the different persons involved in a complaint, the Government considers it to be appropriate to provide wide powers for setting up the complaints provisions for NCIS and NCS and other bodies of constables which will then have to be exercised compatibly with the ECHR in each case.
PART 3: REMOVAL, SUSPENSION AND DISCIPLINING OF POLICE OFFICERS
4. In the light of the case-law, do you consider that rights under ECHR Article 6(1) would be engaged by Part 3 of the Bill?
4A. By way of clarification, the Government would point out that the Secretary of State's power to require a police authority to exercise its power to call upon chief officers to retire is not new. It is already contained in section 42 of the Police Act 1996. The power to require resignation and suspension are however new. The Government agrees with the Committee's provisional view that no rights under Article 6(1) are engaged by Part 3 of the Bill and that there is no civil right within the meaning of Article 6 to remain in office. Neither resignation nor retirement will affect an officer's accrued pension rights on the basis of his previous period of service.
5. In the event that you consider rights under Article 6(1) to be engaged by Part 3 of the Bill
What procedures would be provided for under regulations made under section 42A of the 1996 Act as inserted by clause 31 of the Bill?
Why has it proved impossible to include those provisions in the Bill, so that Parliament could satisfy itself that the requirements of ECHR Article 6(1) would be met?
5A. As mentioned above, the Government do not consider that Article 6 rights will be engaged by Part 3. Nevertheless, it is accepted that procedures must be fair and transparent. Section 11(3) of the 1996 Act which is unamended by the Bill, already provides that a police authority exercising its power to require retirement must give the officer concerned an opportunity to make representations and consider any representations which he makes. This obligation will apply equally to any requirement to resign. It is proposed that regulations under new section 42A will in addition confer a specific duty to give written reasons for the police authority's decision and a right to make representations to the police authority in person.
5B. Section 42(3) of the 1996 Act already provides that if the Secretary of State exercises his power to call upon a chief officer to retire he must appoint one or more people (at least one of whom must be someone who is neither a police officer or a civil servant) to hold an inquiry and report to him. This obligation will apply equally to any requirement to resign. It is proposed that regulations under new section 42A will also require written reasons and a right to make representations in person to those holding the inquiry.
5C. The legislation contains sufficient basic safeguards to ensure a fair system. In the Government's view it is appropriate to put more detailed provisions into regulations.
6. To assist it in considering whether the provisions of Part 3 of the Bill are compatible with rights under ECHR Protocol 1, Article 1, the Committee seeks your view on
What impact you would expect that requiring an officer to retire or resign, respectively, would have on the officer's vested pension entitlements?
What flexibility there is likely to be in the operation of the system to ensure that the need to act compatibly with Article 1 in relation to vested pension entitlements could be properly taken into account?
6A. A requirement to retire or resign will not adversely affect vested pension entitlements (although it may affect the accrual of future pension entitlements). Forfeiture of pension rights may occur in various narrowly defined circumstances, but these can only apply in the event of dismissal, which is not at issue in these circumstances. It follows that in the Government's view, rights under Protocol 1, Article 1 are not engaged by these provisions.
7. What measures do you envisage would be put in place to ensure that the civilians who would exercise such powers under clauses 33 to 41 of the Bill, and Schedules 4 and 5 to the Bill, would be properly accountable and subject to sufficient legal and managerial controls to provide adequate safeguards for the compatibility of their actions with Convention rights? In particular, what legal steps will be taken to make accredited persons under a community safety accreditation scheme, who might be employed by a private person or body, legally accountable for acts which would give rise to liability under the Human Rights Act 1998 had they been employed by a public authority?
7A. As far as designated persons are concerned, the chief officer of police will have a discretion as to which powers (if any) he confers on his support staff. Before conferring any powers he will need to be satisfied that the person is a suitable person to exercise those powers; is capable of effectively carrying out the relevant functions ; and has received appropriate training (clause 33(3)). Persons designated under clause 33 will be under the direction and control of the chief officer. They will be subject to the management control and disciplinary system of the chief officer and will be subject to the police complaints system (clause 12(7))). They will also be under a duty to have regard to any relevant Codes of Practice under the Police and Criminal Evidence Act 1984 (Schedule 7, para 7(6)). The powers capable of being conferred on them are already, with two exceptions, exercisable by constables. (The exceptions are the powers to require the name and address from a person acting in an anti-social manner and to seize vehicles used to cause alarm; these powers are conferred on constables by clauses 44 and 52 of the Bill.) In the Government's view, the same considerations apply under Article 8 of the Convention as in relation to the exercise of the relevant powers by police officers ie they will be justifiable within Article 8.2 as for the prevention of crime and disorder. The police authority will be liable for any unlawful conduct, including potential breaches of section 6 of the Human Rights Act (clause 36(5)).
7B. As far as accredited staff are concerned, powers will only be conferred by the chief officer with the agreement of the person's employer. It should be noted that the powers in Schedule 5 (those available to accredited persons) are limited. They do not include most of those referred to in the Committee's letter. For example, there is no power for accredited persons to use force; to carry out strip or intimate searches or take samples or fingerprints; to require persons to account for matters at the risk of adverse inferences being drawn; or to seize confidential material.
7C. A community safety accreditation scheme must contain provisions for ensuring employers supervise any employees on whom community safety functions are conferred and that employers have satisfactory complaints arrangements (clause 34(5) and (6)). The chief officer must also be satisfied that the employer is a fit and proper person to carry out that supervision; that the accredited person is a suitable person to exercise those powers; that he is capable of carrying out any functions effectively and that he has received adequate training (clause 35(4)). Accreditation may be withdrawn at any time and ceases if the person leaves the approved employment.
7D. A code of practice will be issued under clause 39 about the exercise by chief officers of their powers in relation to designation and accreditation. It will for example contain provision about requiring criminal record checks for individuals on whom powers may be conferred and on the standards of complaints system which must be in place before an employer's employees can be accredited.
7E. The accredited person's employer will be liable for any unlawful conduct by them in carrying out their functions (clause 36(5)). As far as potential liability under the Human Rights Act 1998 is concerned, as the Committee acknowledge, many of the potential employers will be obvious public authorities within the meaning of section 6 of the Act, for example local authorities. The decision on which bodies and persons are public authorities for the purposes of the 1998 Act is a matter for the courts. But in the Government's view, those private employers who enter into arrangements with the chief officer of police to accredit employees and accredited persons themselves would also be held to be "public authorities" within the meaning of section 6(3)(b) of the 1998 Act ("any person certain of whose functions are functions of a public nature") when exercising powers and duties conferred on them under the provisions of the Bill.
8. How do you propose to ensure rights are safeguarded in the exercise of powers under clause 38 and schedules 4 and 5 of the Bill? Why does the Bill not spell out the legitimate aims for which the powers could be exercised compatibly with Convention rights?
8A. As the Committee points out, the power in clause 38 to apply additional police powers is limited by clause 38(5) (no powers of arrest, entry without a constable or creation of new powers) and is subject to the affirmative resolution procedure. If additional powers are made available, the safeguards which apply to their exercise by constables will be applied. The legitimate aims in each case will be related to the prevention of disorder, crime and anti social behaviour and the protection of the rights and freedoms of others. In exercising his power under clause 38 to make an order, the Secretary of State will of course be subject to section 6 of the 1998 Act. In the Government's view, the combination of the effect of the 1998 Act and the level of parliamentary scrutiny will ensure that any exercise of the clause 38 power is compatible with the Convention rights.
9. Why has the unusual form of words "reason to believe" been used, in the Bill and how do you consider that "reason to believe" compares with the idea of reasonable suspicion that an offence has been committed, under ECHR Article 5(1)(c)?
9A. In the Government's view the test "reason to believe" is higher than that in Article 5.1c of the Convention"on reasonable suspicion". In our view, the meaning is indistinguishable from "reasonable grounds to believe". The use of "reason" imports an objective requirement of reasonableness and belief requires a stronger degree of certainty than suspicion.
10. In your opinion, could clause 36(5) of the Bill be usefully amended by expressly providing that employers under community safety accreditation schemes are to be regarded as public authorities (within the meaning of section 6(3)(b) of the Human Rights Act 1998, as a person "certain of whose functions are of a public nature") when performing functions in connection with those schemes? How otherwise would the exercise of powers under the Bill by persons not employed by a public authority be appropriately safeguarded?
10A. As explained in paragraph 7E above, in the Government's view, accredited persons and their employers would already be regarded by the courts as within the definition of a public authority in section 6(3)(b) of the 1998 Act. No further provision is therefore necessary. To make explicit provision in this Bill would undermine the approach of the 1998 Act in the case of other private persons exercising public functions in relation to whom no such provision is made.
11. Why in the light of the observations above, do you consider (as it says in paragraph 431 of the Explanatory Notes) that interfering with Convention rights in the ways provided for under clause 42 of the Bill will satisfy the test of proportionality?
11A. Clause 42 adds 3 new offences to the list of arrestable offences currently set out in section 24 of the Police and Criminal Evidence Act 1984 (PACE). These are
assaulting a police officer in the course of his duty, contrary to section 89 (1) Police Act 1996;
driving whilst disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988; and
making off without payment, contrary to section 3 of the Theft Act 1978.
11B. The Government takes the view that these offences are sufficiently serious to justify interference with Convention rights within the terms of Article 8(2) for prevention of crime and disorder. A power of arrest is necessary in order to enable effective investigation and prosecution of these offences to take place. Arrest in these circumstances will also be compatible with Article 5.1c.
11C. Assaulting a police officer is a serious matter punishable by imprisonment. It is right that if the police are expected to deal effectively with crime and disorder then they should be able to respond firmly when they become targets of violence.
11D. Driving whilst disqualified puts the public at risk of harm from what are frequently repeat offenders. Currently, the police face difficulties in dealing with this type of offence as they are unable to arrest suspects who have absconded from the crime scene, and proceeding by way of summons can give rise to disputes about identification. Both these problems will be addressed if the offence is made arrestable.
11E. Offenders making off without payment are often traced after the event when no power of arrest may arise and there is no scope to take the offender into custody and interview him. Again, if this type of offence is to be combatted properly a power of arrest is needed.
11F. The Committee's concerns focus particularly on the fact that these offences could, in certain circumstances, fall to be treated as "serious arrestable offences". In reality, it will be very unusual for any of the new offences to pass the tests set out in section 116 of PACE and thus be classified as serious. In the event that one of the tests is met then extended detention will be subject to the usual reviews and checks and Convention rights will thus be secured as they are currently in respect of the offences listed in section 24.
11G. All the other offences listed in Schedule 6 to the Bill are offences which Parliament has already deemed suitable for inclusion within the "arrestable offences" category. Arguably, many of these, which have already passed scrutiny, are less serious than those which this Bill seeks to add. The Government, therefore, maintains that the new additions pass the proportionality test.
12. Why were the measures to extend the use of anti-social behaviour orders (ASBOs) under section 1 of the Crime and Disorder Act 1998 not included in the Bill as originally published? The JCHR seeks the earliest possible sight of the proposed amendments to the Bill to make possible full parliamentary scrutiny of proposals which may interfere with human rights.
12A. The amendments relating to ASBOs were tabled on 5th March (amendments 298A to F on the marshalled list). Although not in the Bill on introduction, they will debated at Committee stage and, if the amendments are agreed, all subsequent stages. The new clauses do not affect Lord Rooker's view that the provisions of the Bill are compatible with the Convention rights. Although the Committee observe that the existing provisions of section 1 of the Crime and Disorder Act were controversial, their compatibility with the Human Rights Act has been confirmed in the case of McCann v. Manchester Crown Court (Court of Appeal, 1 March 2001).
13. Why, in the light of the relative weakness of the safeguards included in the Bill, do you consider that the powers granted under clause 52 strike a fair balance between the general interest in controlling anti social behaviour and protecting the rights of others? How could the safeguards be strengthened without losing the effect sought?
13A. The Government believes that these powers are justified under the first rule in Article 1 of Protocol 1. The powers will operate as a temporary control of use rather than a deprivation of property rights and represent a minimal interference in the general interests of controlling anti social behaviour and protecting the rights of others in circumstances in which it appears that offences are being committed. The clause strikes a fair balance between the general interest and the rights of the individual.
13B. The Government does not accept that the safeguards provided in the Bill are "relatively weak". The powers are only exercisable where an offence under section 3 or 34 of the Road Traffic Act 1988 is being committed and where alarm, distress or annoyance is likely is be caused to the public. Prior warning must have been given unless the circumstances make this impracticable. The anticipated level of charges payable (likely to be £105 for removal, and £12 per 24 hours storage) are relatively low and clause 53(3) requires an innocent owner to be exempted from any charge. The Government would draw an analogy between this power and those which already exist to deal, for example, with the removal of illegally parked vehicles.
13C. There are analogous precedents for the regulation making powers given to the Secretary of State in clause 53. The Government anticipates that the regulations made under this power will be modelled on the Removal and Disposal of Vehicles Regulations 1986 (S.I. 1986/183) and on the Police (Retention and Disposal of Vehicles) Regulations (S.I. 1997/1908) which appear to have operated effectively and fairly.
14. What procedural protection is intended to be contained in regulations made under clause 53?
14A. The Regulations will contain procedural protection along the lines of that contained in the Regulations mentioned above and will cover, inter alia, the steps that must be taken to serve a notice on the owner requiring the removal of a vehicle in police custody; the period during which the owner can remove the vehicle; and information to be given before the vehicle can be disposed of. In the event of any dispute then the owner of the vehicle will have a cause of action in the County Court for trespass to goods. Similar cases arising out of existing powers of the police to seize vehicles have been dealt with effectively by the civil courts (see Service Motor Policies at Lloyds v City Recovery (Court of Appeal 1997)).
15. What are your reasons for concluding that the use of the power to enter premises under clause 52 would be justifiable under Article 8(2)?
15A. The power to enter property forcibly to confiscate a vehicle will not be exercisable in relation to a dwelling house (but will in relation to garages and outbuildings). We consider that, given this restriction, any interference under Article 8(1) would pursue the general interest referred to above and be proportionate and justifiable within Article 8(2) for the prevention of disorder and crime and the protection of the rights and freedoms of others.
16. What would the purpose of the removal of such truants be, and how it would relate to the legitimate grounds for depriving a person of liberty under Article 5(1) and for interfering with the right to respect for private life under Article 8?
16A. The amendment will provide the BTP with the power under the Crime and Disorder Act 1998 to remove children and young persons from railway stations, other railway property and specified places and return them to their school or designated premises. All young people aged between 5-16 (with some exceptions) have to be in education, and in practice they should be attending school. It is current Government policy to encourage police forces and Education Welfare Services to conduct joint 'truancy sweeps' under these provisions to return school age children to schools if they are found off premises during school hours.
16B. Currently the BTP are unable to deal with children and young people under the provisions in the Crime and Disorder Act 1998 and this creates significant difficulties in the application of a health, safety and care provision.
16C. Children and young people congregate at railway stations for a variety of reasons and their presence can jeopardise both their own safety and that of rail passengers. Groups of children hanging around stations are also vulnerable to criminal elements including drug dealers and sex offenders. They may also engage in petty crime such as pickpocketing and contribute to a fear of crime in other passengers. Other railway property including tracks and sidings can also act as a magnet to children. In the last five-year period 20 children aged under 13 were killed due to their trespassing or suicide on the railways. Vandalism (by adults as well as children) accounts for over half of railway accidents. These are all matters that the BTP is determined to tackle vigorously, and as with any other police force, they must be able to take all necessary steps to protect both the children and the travelling public.
16D. At the moment BTP either have to request that the local police force direct that the powers can be used at a specified railway location or they can use other, less appropriate police powers to remove the children. This is unsatisfactory approach when the welfare of children is at stake and is an inefficient use of police time and resources.
16E. The powers provided under the Crime and Disorder Act 1998 are not of arrest or detention but the ability to remove a child found unlawfully from school and either return them to their school or take them to "designated premises". In practice the police will instigate a 'truancy sweep' but will closely co-ordinate them with education authority officials. When undertaking a sweep trained education officers will be in attendance at all times to deal with the children.
16F. Article 5 of the ECHR provides that "Everyone has the right to liberty and security of person"that right belongs to both fare paying passengers and child truants. The exercise of the power in section 16 of the 1998 Act to remove truants is part of achieving that aim. Removing a young person to their school or designated premises does not deprive that individual of their liberty, and it will also go some way towards protecting members of the public at stations.
16G. The provision will not provide the BTP with the power to detain that child or young person. The time taken to remove the child or young person to their school or the designated premises should always be relatively short, and we do not consider that this would amount to a detention and an interference with the Article 5 right. Even if it were considered an interference, Article 5(1)(d) recognises that the Article 5 right may be interfered with for the purpose of that child's educational supervisionan effect which the use of the power would also have.
16H. The protection of Article 8 for a person's "right to respect for his private life" may only be interfered with on the grounds contained in Article 8(2). The need to remove a child or young person from a railway station serves, for the reasons stated above, the purposes of ensuring "public safety", "the prevention of disorder or crime" and "the protection of the rights and freedoms of others".
17. What training would members of the BTP receive to deal with young people for educational purposes, if that is the aim for which the power is to be conferred?
17A. When encountering a child unlawfully absent from school in a specified area and at a specified time the BTP constable will either remove the child to premises designated by the local authority or return them to their school. They will not be dealing with young people for educational purposes. The BTP are already trained to the same standard as other Home Office Police Forces and it is not considered that additional training would be needed, other than training in the scope and application of the power.
13 March 2002