28 March 2012
2nd Reading Briefing - Jan 2001
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.
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 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.
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
Intimidation of witnesses Cl 40 and 41
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
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.
Changes to PACE
Review of detention by telephone or video link Cl 72
Authorisation for delay in notifying of arrest Cl 73
Use of video links for Terrorism Act detention proceedings Cl 74
Codes of practice Cl 76
Fingerprints and DNA
Fingerprints for cautions for recordable offences Cl 77 (6)
Authorisation of taking fingerprints without consent Cl 78
Taking of samples Cl 79 (1)
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
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
Liberty's report on an independent police complaints commission is available on our website at www.liberty-human-rights.org.uk.
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