Justice and Police Bill
Reading Briefing - Jan 2001
House of Commons
(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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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 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
of samples Cl 79 (1)
Again as above we consider that this function should remain at
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.
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.
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.
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.
in police misconduct proceedings Cl 124
We welcome this provision as a recommendation we made in our
report 'An Independent Police Complaints Commission'.
report on an independent police complaints commission is available
on our website at www.liberty-human-rights.org.uk.
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.