UK: Liberty: Criminal Justice and Police Bill: 2nd Reading Briefing

Criminal Justice and Police Bill

2nd Reading Briefing - Jan 2001
House of Commons

Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. It is the largest organisation of its kind in Europe and is democratically run.

General Principles

Liberty recognises the Government's concern to tackle effectively the causes of crime. However we are concerned that this bill contains an ill conceived raft of measures that are unnecessary, will have little practical effect in reducing crime, or the fear of crime, and will present serious extension of the states power and erosion of existing civil liberties. Of particular concern are the provisions for the extension of child curfews, for keeping DNA of those who are innocent, of changes to PACE, fixed penalty notices, and restrictions on travel of those convicted of drug offences. We have not in this briefing dealt with the provisions around seizure, although we have concerns regarding these.

Offences leading to penalties on the spot CL1-6
We are concerned that these provisions are a further manifestation of the trend to mix criminal and civil law procedures. This dilutes the principles and protections of criminal law in particular the presumption of innocence and the burden of proof. Although these procedures will not attract a criminal conviction, they relate to behaviour that is by definition criminal and can lead to a criminal conviction if a penalty is not accepted.

We are particularly concerned that a penalty can be issued if an officer has reason to believe a penalty offence has been committed (Cl. 2 (1)). This is a lesser standard than the criminal burden of proof.

The effect of accepting a fixed penalty notice will be to accept that behaviour to a criminal standard has occurred, therefore we consider that officers imposing the penalty notices should be required to be satisfied to this standard before being able to impose them. A present the bill allows a police officer "who has reason to believe" that someone was involved in an offence, to present a fixed penalty notice. Liberty believes that this is wrong and that the police officer should be able to establish beyond all reasonable doubt that the person has committed the offence.

If a person provided with the notice goes to court to protest his or her innocence rather than pay the fine, the burden of proof the police will be expected to establish is beyond reasonable doubt. The practical implications of this are that there will undoubtedly be a large number of people challenging these notices, causing not only the administrative burden of issuing fixed penalty notices, but also upon the courts.

Liberty is also concerned that this provision will discriminate against more vulnerable sections of society, in particular those on low income who are less likely to be able to pay fixed penalties. The types of behaviour these notice are likely to attach to, e.g. drunkenness, are also likely to be committed to a large extent by vulnerable members of society who are unlikely to be able to pay fixed penalties. As a result of the non-payment of a series of such fines, these people may end up in prison for non payment of debt. We consider this provision has the potential to further marginalise those members of society already suffering from social exclusion.

In conclusion therefore, we think that these proposals are likely to be unworkable, will marginalise vulnerable sections of society, and are undesirable in civil liberties terms because of the dilution of legal protections.

Travel restriction orders Cl 35
These orders are similar in nature to football banning orders introduced. We raised concerns over the introduction of such orders, which also apply to the current proposals. We have concerns that these orders impinge on the individual's right to freedom of movement, and to receive goods and services throughout the EU. In individual circumstances the imposition of such orders, or the refusal to suspend or revoke such orders, may breach this country's obligations under the EC treaty. In particular we are concerned that there is no upper limit as to the length of the order.

Intimidation of witnesses Cl 40 and 41
We support the extension of protection of witnesses from intimidation to civil as well as criminal proceedings. However we have concerns over the presumption, to be rebutted by the defendant, that the defendant intended to pervert, etc. if it can be proved he did an intimidatory act etc. We would suggest this presumption be removed and that it be for the prosecution to prove all elements of the offence.

We are also concerned about the widening of definition of who may be a witness. We consider the definition is too wide, in particular in respect of those who may be able to give evidence, as opposed to those who actually are witnesses in court proceedings.

Child Curfew Schemes Cl 43
Liberty opposed the imposition of the original child curfew orders for up to 10-year-olds. We are not aware of any occasions on which such orders have been used. We had concerns regarding the wide-ranging nature of the powers and lack of restrictions. These concerns remain and are increased by the proposals that order should apply for up to age 16, and can also be sought by a Chief Officer of Police. We are concerned that the giving of this power to the police as well as the local authority is a move away from the principle of welfare of the child towards the criminal process, and believe this is inappropriate.

We have expressed concerns in respect of the previous legislation as to the computability of any such order with the Human Rights Act, and in particular articles 5 and 8 of the Convention. We consider in particular that these provisions are unlikely to comply with Article 8, the right to respect for private and family life, and that they are to widely drawn to be proportionate or necessary in a democratic society. We suspect that the reason no orders have yet been applied for is that local authorities have been unable to show that such orders would be either a proportionate response to any problems, or necessary in a democratic society, and therefore would be unable to resist any challenge in the courts. In these circumstances we oppose the increase in powers and ambit of such orders.

We also have worries about the practical effects of any such blanket curfews. Firstly if police will be available to enforce these sanctions, surely they are also available to deal effectively with any young people who are breaking the law. Secondly imposing blanket curfews could prevent innocent young people who are out on legitimate business from entering the curfew area. This could lead to them staying out or going home by a different and perhaps more dangerous route.

Information disclosure for criminal proceedings Cl 45-7I
We recognise the need for there to be a proper flow of accurate information between official bodies. However balanced against this is an individual's right to privacy. We are concerned that these proposals are wide ranging and do not provide proper checks to protect an individual's right to privacy, to guarantee accuracy and appropriate use of information.

Changes to PACE

Review of detention by telephone or video link Cl 72
We opposed these proposals in our response to the consultation paper. The rights and protections given to a defendant in PACE are of fundamental importance, and should not be eroded for administrative convenience, such as flooding of roads. Reviews are an important mechanism to determine both whether continuing detention is justified, and to check the conditions of such detention. If a defendant is unable to speak personally to the reviewing officer then there is potential for abuse of a defendant's situation in a police station.

Authorisation for delay in notifying of arrest Cl 73
Again our comments for the reasons for the PACE protections made above apply. We are aware of no cogent evidence requiring this lowering of rank for authorisation. The decision not to notify of arrest is an important one, and a substantial incursion into the rights of a defendant in a police station. Its importance is reflected in the level of officer needed to make such a decision. It is less likely that a lower ranking officer will be able to consider, critically and independently, whether such authorisation should be given.

Use of video links for Terrorism Act detention proceedings Cl 74
We consider that all judicial proceedings that allow for detention of an individual should take place in person with the individual having the right to attend should they wish.

Codes of practice Cl 76
We repeat our comments above about the importance of the protections in PACE. These are not administrative matters but matters relating to the deprivation of the freedom of the individual, and their treatment in custody. As such they are matters for full parliamentary debate, not regulations.

Fingerprints and DNA

Fingerprints for cautions for recordable offences Cl 77 (6)
We do not support the extension of compulsory fingerprinting to those cautioned of a recordable offence. A caution is not a criminal conviction. We consider these proposals further erode the nature of a caution as a low-level informal method of disposing of cases.

Authorisation of taking fingerprints without consent Cl 78
We consider that this function, as with others stated above, should remain at Superintendent level to provide greater independence and protection.

Taking of samples Cl 79 (1)
Again as above we consider that this function should remain at superintendent level.
Speculative searches Cl 80
We object to the addition of public authorities to the list of bodies authorised to carry out speculative searches of the DNA database. We consider the functions for which such searches can be justified, i.e. detection of crime, are distinct functions of the police and related agencies, which are subject to codes of practice, training, discipline and complaints mechanisms.

The proposed legislation is too widely drafted and may for example include local authorities that have a role in prosecuting noise nuisance cases. These bodies would not be subject to the checks, regulations, discipline or complaints mechanisms of the police and we are concerned that there would be insufficient safeguards and potential for abuse.

Retention of DNA and fingerprints from innocent people Cl 81
We oppose this provision as another infringement of basic rights of individuals. The taking and retention of DNA and fingerprint samples infringes individuals' right to privacy. Clearly samples can be taken and kept of suspected or convicted criminals already, for the purposes of prevention of crime. However these proposals extend the keeping of samples to those who have been convicted of no offence. There is no logical difference between this and the compilation of a mass DNA base of all individuals. Neither could be said to be a proportionate infringement of individuals right to privacy.

Apart from the huge civil liberties implications of such measures, a practical effect would without a doubt be to prevent people from coming forward voluntarily to give samples for the purposes of elimination. Although DNA is often considered as being an infallible source of information, this is not the case, and there have been celebrated examples of mistaken identity. A DNA database of people who have committed offences, coupled with random others, may well prevent the police from properly investigating crimes on the basis that they already have someone whose DNA matches. This will not help to produce the targeted and focused policing that Liberty supports and believes works.

Inferences in police misconduct proceedings Cl 124
We welcome this provision as a recommendation we made in our report 'An Independent Police Complaints Commission'.

Liberty's report on an independent police complaints commission is available on our website at www.liberty-human-rights.org.uk.

In conclusion
The measures contained in this bill are not quick fixes for crime. They erode the human rights and liberties of innocent members of the public. Liberty believes that the Government could more effectively combat crime by tackling the root causes such as youth boredom, rather applying heavy-handed measures to deal with the results.

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