The Joint Committee on Human Rights (JCHR) today publishes a Report on the Anti-Social Behaviour, Crime and Policing Bill in which it accepts the need for a counter-terrorism power to stop, question and search travellers at ports and airports without reasonable suspicion, but calls for a reasonable suspicion threshold to be introduced for the more intrusive powers such as detention, searching and copying the contents of personal electronic devices like mobile phones and laptops, and taking biometric samples.
The Committee welcomes the improvements made to the powers in Schedule 7 of the Terrorism Act 2000 to stop, question, search and detain at ports, but still considers that a number of significant human rights compatibility concerns remain with those powers even after the changes have been made. The Committee:
- proposes that the legal framework should distinguish between the powers to stop, question and physically search persons and property, and the more intrusive powers including detention and accessing, searching and copying information on personal electronic devices;
- recommends an amendment to introduce a reasonable suspicion requirement before the more intrusive powers are exercisable;
- suggests amendments to the Bill to address concerns that the current powers to access, search, examine, copy and retain data held on personal electronic devices, are too wide;
- questions whether the powers extend to requiring passwords to electronic devices to be handed over;
- recommends that the Government bring forward proposals to introduce safeguards for certain categories of material detained including material subject to legal professional privilege or which would disclose a journalist’s sources.
The Committee calls on the Government to drop from the Bill the proposed new test to be applied when decided whether a person whose conviction has been quashed is entitled to compensation for miscarriages of justice. The Bill would require proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction. In the Committee’s view, this is incompatible with the presumption of innocence which is protected by both the common law and the European Convention on Human Rights.
The Committee recommends a number of other amendments to the Bill with regards to preventive measures against anti-social behaviour to ensure that:
- Courts take into account the best interests of the child as a primary consideration when deciding measures against children;
- Current drafting of the Bill is made clearer in relation to: the definition of anti-social behaviour; the legislative tests that are to be applied by courts when imposing anti-social behaviour measures; and the conditions that can be attached to the measures;
- The police dispersal powers are properly circumscribed and can only be used for the purpose of tackling anti-social behaviour; and
- Individuals are not evicted from their homes as a result of a conviction for a riot-related offence.
The Committee cautiously welcomes the Bill’s provision to criminalise forced marriage. However, it is important that the new law is implemented and monitored carefully to ensure that it is not counter-productive for victims. The Committee recommends that the Crown Prosecution Service develops a strategy for the prosecution of forced marriage, and that the Government reports annually to Parliament on the effectiveness of the new law.
The Committee also recommends additional measures to protect against the potential for prolonged retention of DNA and other personal samples in criminal investigations.
Dr Hywel Francis MP, the Chair of the Committee, said:
“My Committee welcomes the improvements that this Bill makes to the very wide counter-terrorism power to stop, question and detain people at ports and airports. Given the current nature of the threat from international terrorism, we also accept that the Government has made out the case for having an unusual power to stop, question and search travellers without suspicion.
"However, recent events have brought to the world’s attention how extraordinarily broad those powers are. They include the power to detain somebody, to take their mobile phone and laptop and download all the information on it, and to take biometric samples, all without reasonable suspicion. Most people would be shocked to know that the police have such extensive powers which could be exercised in relation to anyone, whether suspicious or not.
"We make the simple recommendation that the more intrusive powers should only be available where the police have formed a reasonable suspicion that the traveller may be somebody who is involved in terrorism. I look forward to the Government responding to public concern about the scope of these powers by agreeing to the amendments that we propose.”