Liberty's Report stage briefing on the Crime and Courts Bill in the ...

Liberty’s <strong>Report</strong> <strong>stage</strong> <strong>briefing</strong> on theCrime and Courts Bill in the House ofCommonsMarch 2013

About LibertyLiberty (The National Council for Civil Liberties) is one of the UK’s leading civilliberties and human rights organisations. Liberty works to promote human rights andprotect civil liberties through a combination of test case litigation, lobbying,campaigning and research.Liberty PolicyLiberty provides policy responses to Government consultations on all issues whichhave implications for human rights and civil liberties. We also submit evidence toSelect Committees, Inquiries and other policy fora, and undertake independent,funded research.Liberty’s policy papers are available athttp://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtmlContactIsabella SankeyRachel RobinsonDirector of PolicyPolicy OfficerDirect Line 020 7378 5254 Direct Line: 020 7378 3659Email: bellas@liberty-human-rights.org.uk Email: rachelr@liberty-human-rights.org.ukSophie FarthingPolicy OfficerDirect Line 020 7378 3654Email: sophief@liberty-human-rights.org.uk2

Introduction1. The Crime and Courts Bill was introduced to the House of Commons andread for a Second time on 14 th January 2013. It is a short Bill comprising 42substantive clauses with a huge amount of the content included in Schedules. Part 1of the Bill sets up a National Crime Agency which is intended to replace the SeriousOrganised Crime Agency and the National Police Improvement Agency. Part 2 dealswith reforms to the courts system: including the creation of a family court; reforms tothe judicial appointments process; and relaxation of the law relating to filming andsound recording in court. Part 2 also amends the law of self-defence in a place ofresidence and makes new provision for non-custodial sentences. Part 3 deals with arange of immigration and criminal justice issues - curtailing immigration appeal rightsand extending the powers of immigration officers. Part 3 also includes the creation ofa new offence of driving while under the influence of drugs; and makes importantchanges to one of the public order speech-related offences. Liberty welcomes theintention behind some of the reforms set out in this Bill. In particular, those relating tojudicial diversity and filming and sound recording in court (although we believe thenew scheme needs to be more tightly drawn) and amendments to public orderoffences to help protect free speech. Elsewhere we are disappointed to seecontinued unjustified attacks on due process in the immigration system and the newdangerously low threshold for acceptable use of violence when a person defendsthemselves in their home.2. In this <strong>briefing</strong> we set out a number of amendments to the Bill includingamendments to: Ensure that the new National Crime Agency does not fall within one of theabsolute exemptions to the requirements of the Freedom of Information Act2000. (Amendment 1) Ensure that oversight of the NCA by the Independent Police ComplaintsCommission is put on a statutory footing in accordance with the currentprovisions in the Police Reform Act 2002 governing the relationship betweenthe IPCC with NPIA and SOCA. (Amendment 2) Limit the removal of the ban on recording court proceedings contained in theBill to judgments in the Court of Appeal and sentencing decisions in the Courtof Appeal and the Crown Court. (Amendment 3)3

Remove the new dangerously low threshold for what will be consideredacceptable violence in the context of self-defence in the home set out inclause 30. (Amendment 4)Address concerns about the proposed changes to non-custodial sentences.(Amendments 5 and 6)Retain an in-country appeal right in cases where family visit visas are refused.(Amendment 7)Remove Government proposals to abolish appeal rights following a decisionto vary a person’s leave to enter or remain in the UK where, at the time thedecision takes effect, the individual has no leave to enter or remain.(Amendment 8)Stop the unnecessary extension of police-like powers to immigration officers.(Amendment 9)Ensure that the proposed new strict liability offence of drug driving reflectsevidence driven conclusions going to the level at which specific drugs areliable to impair driving. (Amendment 10)Address overly broad public order speech offences in the Public Order Act2005. (Amendment 11)Part 1 – National Crime Agency3. Part 1 of the Bill abolishes the Serious Organised Crime Agency (SOCA) andthe National Police Improvement Agency (NPIA) and sets up the National CrimeAgency (NCA). The proposed functions of the NCA include the prevention anddetection of serious organised crime (as currently performed by SOCA) as well aswider responsibilities for criminal intelligence storing, processing and disseminatingof information relevant to activities to combat serious crime and any other crime. 1Liberty welcomed the removal in the House of Lords of the original clause 2 of Bill,which further provided that the Secretary of State could modify the functions of theNCA by order (subject to the super-affirmative procedure) to include counterterrorismfunctions that currently sit with the Metropolitan Police Service. Libertybelieves that such a significant expansion of function should take place only inprimary, not secondary, legislation and we urge the Government to accept thischange made to the Bill.1 Clause 1 of the Crime and Courts Bill.4

4. As with the creation of SOCA, Liberty does not have a principled objection tothe creation of the NCA. Prior to the establishment of SOCA, the UK had a traditionof semi-independent devolved regional policing bodies, which did not necessarilyallow optimal use of central information and resources to successfully combat seriousand organised crime. However, while we do not take issue with the creation of theagency, we are concerned that the Bill provides for insufficient oversight andaccountability for the work of a body which will have responsibility for a wide range ofpolicing functions and which has the potential to take lead responsibility for counterterrorismwork.Freedom of informationAmendment 1 – amend Schedule 8Schedule 8, page 113, line 38, leave out paragraphs 102 and 103.EffectAmendment 1 is a stand part amendment for paragraphs 99 and 100 of Schedule 8,which would ensure that information held by the NCA is exempt under the FOIA. Theeffect of the amendment is to ensure that information held by the NCA does not fall inthe list of bodies absolutely exempt from the Freedom of Information Act 2000.BriefingSchedule 8 of the Bill presently excludes the NCA from the operation of the Freedomof Information Act 2000 (FOIA). This may at first appear appropriate as othersalready exempt include the Security Service, the Secret Intelligence Service,Government Communications Headquarters and the National Criminal IntelligenceService. SOCA, whose functions are subsumed by the NCA, is also exempt –however as the NCA’s functions are extending beyond those undertaken by SOCAthis extended exemption is significant. Further, the Police, Immigration Services andCustoms are not exempt. As the NCA will be effectively covering the work of theseagencies Liberty believes that it must be subject to the same FOI regime.5

Concerns about the exemption of the NCA from FOIA were raised during the SecondReading debate in the House of Lords. 2 In response, the Minister stated that inconsidering whether the NCA ought to be subject to the FOIA he questioned“whether it was cleaner simply to make the larger body exempt”, 3 The Minister notedthe Government is “committed to making the National Crime Agency open, publicfacingand transparent”. 4 Liberty urges MPs to ensure that the NCA fulfils this aim,which will only occur if members of the public are able to exercise their rights toinformation under the FOIA in pursuit of democratic legitimacy and accountability.During the Second Reading debate in the House of Lords the Minister also noted:If the National Crime Agency were subject to the Freedom of Information Act,there is a risk that international and private-sector partners would be morereluctant to share information with the agency. 5Liberty agrees that the NCA’s work should not be jeopardised through any obligationto disclose sensitive information. However this sweeping justification made by theMinister in the Lords has little grounding in law. The FOIA already has an extensiveexemption regime which ensures that information relating to national security, lawenforcement or criminal investigations does not have to be revealed. Part 2 of the Actsets out an extensive list of absolute exemptions, and qualified exemptions which apublic authority may claim exemption for information where it considers the publicinterest in not disclosing the requested material outweighs the public interest indisclosure. 6 Exempt categories include, for example, the following: Information held by a public authority is exempt information if it was directly orindirectly supplied to the public or authority by, or relates to, a listed bodydealing with security matters. These bodies range from the Security Serviceto a number of related statutory tribunals. 7 Information must also not be disclosed:o in order to safeguard national security; 82 See the comments of Baroness Harris of Richmond, House of Lords Hansard, 28 th May2012, at column 1023, and Baroness Smith of Basildon at column 980.3 See House of Lords Hansard, 28 th May 2012, at col 1064.4 Ibid.5 Ibid, at column 1065.6 Section 2 FOIA.7 See section 23 of the Freedom of Information Act 2000.8 Section 24 FOI Act.6

o if it prejudices the UK’s defence forces 9 or Britain’s internationalrelations; 10o if it relates to any relations with any UK administration; 11 oro in order to protect the UK’s economic interests. 12Information held by a public authority “if it has at any time been held by theauthority for the purposes of” investigating criminal offences.A wide number of areas where information is exempt if it would prejudice, orbe likely to prejudice, law enforcement as well as certain civil proceedings orinquiries etc. 13We urge MPs to amend the Bill to ensure that the NCA is not absolutely exemptedfrom the FOIA. The arguments made during Lords’ scrutiny that blanket exemptionwould make it “cleaner”, or alternatively that it is necessary to please internationalinformants (an argument also being put forward to justify undermining the rule of lawin the Justice and Security Bill), simply do not withstand scrutiny. Parliament must bewary of undermining the spirit and function of the FOIA, particularly on the basis ofthese wide and vague arguments. Transparent government ensures accountabilityfor public bodies in a free and fair democracy. This is protected and promoted by theFOIA and, given the clear exemptions in Part II of the Act, which will protect publicsafety.Inspections and ComplaintsAmendment 2 – amend clause 10Clause 10, page 8, line 30, at end insert(5A)In the Police Reform Act 2002 after section 10(1)(g) insert() to carry out functions in relation to the National Crime Agency whichcorrespond to those conferred on the Commission in relation to police forcesby paragraph (2) of this subsection.Clause 10(6), page 8, line 33, remove lines 33 to 36 and insert9 Section 26 FOI Act.10 Section 27 FOI Act.11 Clause 28.12 Clause 29.13 Section 31.7

‘(1) The Commission and the National Crime Agency must enter into anagreement for the establishment and maintenance in relation to the Agency’sstaff or procedures corresponding or similar to those provided for by or underthis Part.(1A) An agreement under this section(a) must not be made or varied except with the approval of theSecretary of State; and(b) must not be terminated unless(i) it is replaced by another such agreement, and(ii) the Secretary of State approves.’Clause 10(6)(2), page 8, line 37, leave out ‘Regulations under this section may’ andinsert ‘An agreement under this section must’.Clause 10, page 8, line 42, at end insert‘An agreement under this section must contain provision for enabling theCommission to bring and conduct, or otherwise participate or intervene in,any proceedings which are identified by the agreement as disciplinaryproceedings in relation to members of the Agency’s staff.’Clause 10(6)(3), page 8, line 43, leave out ‘Regulations’ and insert ‘An agreement’.EffectAmendment 2 would ensure that oversight of the NCA by the Independent PoliceComplaints Commission is put on a statutory footing in accordance with the currentprovisions in the Police Reform Act 2002 governing the relationship between theIPCC with NPIA and SOCA. It proposes to: add to the general functions of the IPCC in s 10 of the 2002 Act the oversight ofthe NCA; remove sub-section (1) of the newly inserted s 26C into the 2002 Act, whichallows the Secretary of State to exercise her discretion to provide for the IPCC tooversee the functions of the NCA Director and officers, and replace that by amandatory requirement for an agreement to be made for IPCC oversight8

(mirroring the current provisions in ss 26A and 26B of the Police Reform Act 2002in relation to SOCA and the NPIA respectively);provide for the IPCC agreement to provide for the IPCC to conduct, participate orintervene in disciplinary proceedings in relation to the NCA staff, as currentlyprovided for in relation to the NPIA and SOCA.BriefingAs currently drafted the Bill makes provision for the NCA to be subject to inspectionsby Her Majesty’s Inspector of Constabulary (HMIC) 14 but allows the Secretary ofState discretion as to the possibility of scrutiny by the Independent Police ComplaintsCommission (IPCC). As noted in the House of Lords 15 and by the Shadow HomeSecretary the Rt Hon Yvette Cooper MP in the House of Commons, theaccountability mechanism for the NCA as set out in the Bill is “astonishingly weak”. 16Both SOCA and the NPIA are currently subject to oversight by a number of bodiesincluding HMIC and the IPCC. It is unclear, especially given the expanded functionsof the NCA, why the Government believes that there may be a case for lessgovernance and accountability than that currently provided for SOCA. Liberty urgesthe Government to make the NCA subject to the scrutiny of the IPCC through primarylegislation, as is the case for individual police forces.Part 2 – Courts and JusticeRecording in CourtsClause 28 concerns filming and sound recording in courts and tribunals. It makesprovision for the Secretary of State by order (and with the concurrence of the LordChief Justice) to disapply current prohibitions on the making and publication of soundand visual recordings in courts. At present section 41 of the Criminal Justice Act1925 prohibits taking or attempting to take a photograph, or make a portrait or sketchof any judge, juror, witness, or party to proceedings in any civil or criminal case. Italso prohibits publication of images and case law has confirmed that this includes14 Clause 10(1).15 See the Second Reading debate of the Crime and Courts Bill, House of Lords Hansard, 28May 2012 per Baroness Smith of Basildon at col 979; Baroness Harris of Richmond at column1023.16 See the Second Reading debate of the Crime and Courts Bill, House of CommonsHansard, 14 January 2013, at column 647.9

filming in court. 17 Breach is a criminal offence. Section 9 of the Contempt of Court Act1981 makes it a contempt of court to use in court, or bring for use, a tape recorder orother instrument for recording sound without leave of the court. Publication of asound recording without the courts’ leave is also a contempt. 18 The Supreme Court isalready exempt from these prohibitions under section 47 of the Constitutional ReformAct 2005.As currently drafted, clause 28 grants a comprehensive power to the Secretary ofState to entirely remove the prohibition on film and sound recording for the entirety ofcourt proceedings. 19 Clause 39 provides that any secondary legislation will be subjectto the negative resolution procedure allowing for minimal parliamentary scrutiny.Amendment 3 - amend clause 28Page 31, line 7, omit from ‘-‘ to the end of line 14 and insert –‘does not apply in relation to a recording of relevant proceedings which fallwithin the scope of subsection (1A).(1A) For the purposes of subsection 1, relevant proceedings are:(a) the handing down of judgments in proceedings before the Court ofAppeal;(b) sentencing decisions in proceedings before the Court of Appeal;(c) sentencing decisions in proceedings before the Crown Court.’Page 30, line 36, omit line 39.17 Re Barber v Lloyds Underwriters [1987] QB 103; R v Loveridge, Lee and Loveridge [2001]EWCA Crim 973.18 Section 9(2) provides courts with a discretion to grant or refuse leave for sound recordingsand to impose conditions on the use of sound recordings that have been permitted as thecourt thinks proper.19 The only check on the sweeping order making power granted to the Secretary of State isclause 22(3) which allows courts and tribunals to direct that a provision disapplyingprohibitions on film and sound recording made by order by the Secretary of State isoverridden in order to ensure fairness of particular proceedings or to ensure that anyparticular person involved in the proceedings is not unduly prejudiced. This means that courtsand tribunals will be granted some discretion to reinstate prohibitions on filming and soundrecording for particular proceedings despite a removal of the general bar by the Secretary ofState.10

EffectThis proposed amendment would place the Government’s sound and limited policyfor lifting the ban on recording court proceedings on the face of the Bill. Thesuggested amendments to subclause 1 and the addition of proposed new subclause1A would ensure that the only proceedings in which the ban could be lifted are thehanding down of judgments in the Court of Appeal and sentencing decisions in theCourt of Appeal and the Crown Court. There would still be provision for a judge, inthe interests of fairness and to avoid prejudice, to prevent reporting in an individualcase.BriefingLiberty is confused as to why such a sweeping reform as that proposed in clause 28is being included on the face of the Bill given the Government’s more narrowly drawnstated policy on filming and sound recording in courts. In a detailed Ministry ofJustice document published in May 2012 the Government was specific about itsplans:We are now bringing forward legislation which will allow judgments andsentencing decisions in cases before the Court of Appeal (Criminal and CivilDivisions) to be broadcast. Cases in the Court of Appeal normally deal withcomplex issues of law or evidence, and victims and witnesses rarely appear inorder to provide new evidence. Given the complexity of legal issues in Court ofAppeal cases, we believe that allowing advocates’ arguments to be filmed inaddition to judgments would be more likely to improve public understanding thanjudgments alone. In due course, we intend to allow filming of sentencing remarksin the Crown Court as we believe this will go a considerable way to opening upour justice system to the public. We are aware of concerns that televising ourcourts may open the judicial process to sensationalism and trivialise seriousprocesses to a level of media entertainment. This is why we are not proposing toallow full trials to be filmed. However, we believe that allowing people to see andhear judges’ decisions will increase their understanding of the court withoutundermining the proper administration of justice. 2020 For further information see the Ministry of Justice publication, Proposals to allow thebroadcasting, filming and recording of selected court proceedings (May 2012) available at -11

Liberty supports the Government’s stated policy of increasing public understanding ofthe justice system by allowing for filming of judgments and sentencing decisions inthe Court of Appeal and sentencing remarks in the Crown Courts. We agree with theGovernment’s analysis that public understanding of the justice system – andsentencing framework in particular – is currently limited and could be enhanced byincreasing transparency in the particular proceedings and parts of proceedings that itreferences in the passage cited above. However we would have concerns aboutallowing for the filming and broadcasting of entire criminal and civil proceedings.Reforms in this area need to support public access to, and understanding of, thejustice system while not unintentionally undermining the administration of justice. Asthe Government recognises in its own <strong>briefing</strong> on the matter, concessions tobroadcasting must avoid the “widely recognised risks to witnesses (and potentialwitnesses) and other participants.” Additional pressure on victims and witnesses;witnesses refusing to appear (leading at best to delays and at worst miscarriages ofjustice); distortions of testimony; and broader distortions to the seriousness anddiligence required in the administration justice are just some of the risks inherent inbringing forward wider plans for broadcasting of trials. For these reasons, Libertyurges the Government to approach legislation with the same thoughtfulness andcaution as it approached policy development in this area. There is no reason why thespecific proceedings where the Government wants to permit film and soundrecording cannot be set out in primary legislation for parliamentary scrutiny ratherthan leaving to secondary legislation important decisions about the particular courts,parts of proceedings, and participants to be filmed.Use of force in self-defence at place of residenceClause 30 was introduced as a Government amendment 21 to the Bill at <strong>Report</strong> Stagein the House of Lords and amends the law of self-defence, allowing for a greateramount of force to be considered acceptable under the law when used by a persondefending themselves in a place of residence.Amendment 4 – remove clause 30 from the Billhttp://www.justice.gov.uk/downloads/publications/policy/moj/broadcasting-filming-recordingcourts.pdf21 Amendment 113C.12

Page 32, line 9, leave out clause 30.EffectThis amendment will remove clause 30 from the Bill.BriefingLiberty believes this clause is both unnecessary and sets a dangerously lowthreshold for what will be considered acceptable violence used in the context of selfdefencein the home. Under the common law, defendants have long been able to usereasonable force to defend themselves. The law of self-defence was put on astatutory footing in section 76 of the Criminal Justice and Immigration Act 2008.Section 76 enables a defendant (D) to claim self-defence where the force he usedagainst a trespasser can be considered reasonable and proportionate in thecircumstances as D believed them to be at the time – whether or not this belief isobjectively considered to be reasonable after the fact or whether the belief wasbased on a mistake. This means that a householder who, for example, in fear and inhaste, uses a disproportionate level of force against an intruder is protected if the useof force was proportionate to circumstances as the householder believed them to be(however mistaken he or she may have been). If passed, clause 30 will allow D torely on self-defence even if D used a disproportionate level of force in thecircumstances as D believed them to exist at the time. What D will not be able to dois use force which is grossly disproportionate.Clause 30 has been heralded by Government as being necessary to provideclarification so that ‘homeowners know the law is on their side’. 22 Yet for many yearsthe law has successfully and robustly protected home owners who have, in seekingto protect their property, themselves and their family used a level of force which theygenuinely believed was necessary at the time. The test has also safely balanced theneed to guard against vigilante action, also vital for public protection. The repeatedclaims at the highest level of Government that this change to the law of self-defenceis needed because the law is unclear are simply misleading. It is grim, head-linechasing at its very worst with dangerous repercussions for our society.22 See, for example, speech of the Justice Minister to the Conservative Party conference, 9 thOctober 2012, available at http://www.politics.co.uk/comment-analysis/2012/10/09/chrisgrayling-speech-in-full.13

Clause 30 will significantly lower the threshold for claims of self-defence, allowing forthe use of greater force than currently provided for in the Criminal Justice andImmigration Act 2008. Allowing homeowners to use disproportionate force in thecircumstances as they believe them to be will almost certainly encourage vigilanteaction. Accordingly giving greater protection to use of violence in the home doesnothing to provide clear parameters for self-defence and yet sends a message thatthe law will be on your side whatever action you take. We need only look to theexperience in the United States of tragic cases emerging from household defencelegislation giving liberal scope to homeowners to ‘stand their ground’ to see that thisis a dangerous path to take. 23Non-custodial sentencesClause 31 makes provision for community and non-custodial sentencing of offendersby bringing Schedule 15 into effect. Schedule 15 provides for a number of changes tonon-custodial sentencing options. These options outside of traditional imprisonmentform an important part of the criminal justice system, with serious consequences foroffenders and victims. Liberty supports changes which improve the quality of noncustodialsentences and build on advances in criminal justice thinking, such as thechanges in Part 2 enabling sentencing to be postponed if an undertaking is made toparticipate in restorative justice activities. We are, however, concerned about certainchanges made to non-custodial and community sentences made by Schedule 15.Amendment 5 – remove the punitive element being added to community ordersPage 267, line 12, leave out Part 1 of Schedule 15.EffectThis amendment will remove paragraphs 1 to 4 of Part 1 of Schedule 15.Briefing23 See, for example, the death of Trayvon Martin in 2012, an unarmed teenager shot by aneighbourhood watch volunteer in Florida, who later claimed liberal defence under the ‘StandYour Ground’ legislation: http://www.guardian.co.uk/world/2012/mar/20/trayvon-martin-killinginvestigation-opens.14

Part 1 amends the Criminal Justice Act 2003 to provide that a court must include in acommunity order a requirement imposed for the purposes of punishment and/or afine, unless there are exceptional circumstances which would make this unjust. Thisnew requirement is intended to fetter the court’s current function of imposing acommunity order which, in the court’s opinion, is the most suitable for the offender,with any restrictions on liberty commensurate with the seriousness of the offence.Instead, in future the conditions imposed “will be subject to the new duty on the courtto impose a punitive element” by virtue of this amendment to 2003 Act. 24 Liberty doesnot believe this clause is necessary or warranted. When imposing a non-custodialsentence a court is required to have regard to a number of factors; punishment isclearly one of these, alongside “crime reduction, rehabilitation, public protection andreparation”. 25 We are concerned to see yet another example where the Governmentis attempting to fetter the proper function of the courts to reach a sentencing decisionbased on the circumstances and facts of a particular case. The imposition of anoverriding consideration of punishment attempts to skew the role of the judge andignores the fact a non-custodial sentence already fulfils a number of functions – oneof which clearly is punishment of an offender.Amendment 6 – electronic monitoringPage 269, line 10 leave out Part 4 of Schedule 15EffectThis is a probing amendment proposing to remove Part 4 of Schedule 15 to the Bill.BriefingLiberty is unsure as to the value and purpose of the proposals in Part 4 to allow forelectronic monitoring to be imposed as a general condition of a community order or asuspended sentence order under the Criminal Justice Act 2003, for offenders overthe age of 18. The 2003 Act currently permits electronic monitoring only to ensurecompliance with another condition imposed under the order, such as a residencerequirement or an unpaid work requirement. The change then in Part 4 is a24 See the Explanatory Memorandum for the Bill, at para 447.25 See the Explanatory Memorandum for the Bill, at para 444.15

significant shift in the use of electronic monitoring, from checking on compliance to“monitoring the offender’s whereabouts”.We are also concerned as to the safeguards which will be in place for the use of suchinformation. At present the Bill only provides that a non-binding code of practice mustbe issued by the Secretary of State to govern the processing of data gathered in thecourse of electronically monitoring offenders. Given the volume and sensitivity of theinformation that will be collected under this scheme, and recent scandals involvingthe loss and abuse of personal data, we urge the Government to consider a moreappropriate scheme for processing.Part 3 – Immigration and Criminal JusticeAppeals against refusal of visit visasClause 34 amends section 88A of the Nationality, Immigration and Asylum Act 2002(NIAA) to remove rights of appeal for those who wish to challenge a refusal to grant afamily visit visa for the UK. Challenges under the Immigration Rules will no longer bepossible, and individuals wishing to visit the UK will be required to submit a newapplication upon refusal.Amendment 7 - omit clause 34Page 37, line 40, omit clause 37.EffectThis amendment would retain an in-country appeal right in cases where family visitvisas are refused.BriefingThe Government argues that individuals will be able to submit further applications inthe event of refusal, but this may be a prohibitively expensive option and will beinappropriate for time-sensitive family events such as weddings and funerals. Whilstthe Government points to the number of Tribunal appeals allowed on the basis ofnew evidence, some 37% of allowed family visit visa appeals succeed on other16

grounds. 26 We can only conclude that, in over a third of allowed appeals, an initialrefusal was due, at least in part, to flawed reasoning or administrative error.These changes could cause particular problems for refugees and their extendedfamilies. By definition, a refugee cannot go home, so if they want to see familymembers still based in their home country, that will mean the relative visiting the UK(or both parties travelling to a third country which will prove prohibitively expensivefor many people). Liberty is unsure why the Government is seeking to remove theseappeal rights. If the driver is to cut the overall numbers of those visiting the UK wesuggest that removal of appeal rights is in an inappropriate tool. If the dissatisfactionis with the submission of new evidence at appeal <strong>stage</strong>, a prohibition on adducingnew evidence on appeal would be a better targeted and more proportionateresponse. The UK Border Agency has a poor track record on first-time decisionmaking and the possibility of appeal is crucial to ensure that the Agency properlyimplements the Government’s family visit visa applications.Restrictions on certain in country appeal rightsAmendment 8 - omit clause 35Page 38, line 18, omit clause 38EffectThis proposed amendment would remove Government proposals to abolish appealrights following a decision to vary a person’s leave to enter or remain in the UK(including cancelling that leave) where, at the time the decision takes effect, theindividual has no leave to enter or remain.BriefingClause 35 amends the NIAA by inserting new subsection 92(2A) and new subsection97B(3). The reforms concern the right of appeal against a decision to vary a person’sleave to enter or remain in the UK where, at the time the decision takes effect, the26 UKBA, Family migration: a consultation, paragraph 1.22, available at:http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/familymigration/consultation.pdf?view=Binary.17

individual has no leave to enter or remain. Under clause 35, where a decision istaken partly or wholly on the ground that an individual’s continued presence in the UKis no longer conducive to the public good and the person is outside the UK when thedecision is taken, an appeal may only be brought from outside the UK (the personmay not enter the UK for the purposes of an appeal). Presumably the idea is that,regardless of the basis for an individual’s claim, they will not be given leave to enterto take part in proceedings. This is a response to a Court of Appeal judgment lastyear Secretary of State for the Home Department v MK (Tunisia). 27 The CA foundthat a person excluded on public good grounds was not excluded by statute fromexercising an in-country right of appeal. While the provision is relatively narrow in thatthe person must be outside the UK when the decision is taken before he loses his incountyappeal right, it could lead to very serious injustice where is does apply. It ispractically very difficult to conduct an appeal when an appellant is not allowed toattend his own hearing and all preparatory work has to be done on the phone. Theissues at stake could include Article 3 ill-treatment or Article 2 risk to life issues in thecountry of origin. If the individual happens to be in a third country which robustlyprotects human rights he can use their legal system to challenge removal to hishome country and apply for leave to remain there, but if he is in Greece or Italy, forexample, this out of country challenge may be the only substantive appeal rightavailable.Extending immigration powersClause 36 and Schedule 17 extend a clutch of police, customs and surveillancepowers to immigration officers. In particular clause 36 extends to the list of‘authorising officers’ who can authorise applications to interfere with property; grantsimmigration officers extended search, detention and seizure powers and extends thepower to authorise intrusive surveillance under the Regulation of InvestigatoryPowers Act 2000 (RIPA) to a senior immigration official.Amendment 9 - omit clause 36 and Schedule 17Page 40, line 28, omit clause 40.Page 322, line 1, omit Schedule 20.27 [2011] EWCA Civ 33318

EffectThis proposed amendment would remove Government proposals to giveunprecedented powers to immigration officers.BriefingLiberty has frequently advised that Governments should be wary of sendingcontinuous signals that immigration is criminally suspicious per se. Clause 36 of thisBill continues this disturbing trend by proposing powers that are neithercomplimentary or necessary for immigration officials in discharging their functions.Further extending the flawed system of self-authorisation for intrusive surveillanceunder RIPA to the UKBA is particularly short-sighted following recent scandalssurrounding a number of long-term and costly surveillance operations on peacefulenvironmental movements undertaken by the police. Liberty is further concerned thatthe roll out of ever greater police-like powers to immigration officials is not matchedby provision for training and accountability mechanisms.Drug DrivingClause 37 inserts a new section 5A into the Road Traffic Act 1988 (RTA) creating anew offence of driving or attempting to drive, or be in charge of a vehicle on a road orother public place, with a specified controlled drug in your body, where the proportionin your blood or urine exceeds the limit specified for that drug. It will be a defence toshow that the specified controlled drug had been prescribed or supplied for medicalor dental purposes; was taken as prescribed and in accordance with themanufacturers’ instructions and that the driver’s possession of the drug immediatelybefore taking it was not unlawful. The defence won’t be available if the drug wastaken contrary to prescription or manufacturer advice. The specified limits for therange of drugs to be covered by the new offence will be defined by regulation, but thespecified limit for a particular drug could be as low as zero. The maximum penalty onconviction is a custodial sentence of 51 weeks or a level 5 fine.Amendment 10 – amend clause 37Page 45, line 33, omit ‘may be zero.’ and insert:19

‘must be based on evidence that the prescribed proportion of the drug inblood or urine is liable to impair driving ability.’EffectThis amendment would help to ensure that the proposed new strict liability offence ofdrug driving reflects evidence driven conclusions going to the level at which specificdrugs are liable to impair driving.BriefingThe RTA already makes it an offence for a person to drive, or attempt to drive, avehicle when unfit to drive through drink or drugs. 28 Section 4(5) of that Act providesthat a person is to be taken to be unfit to drive “if his ability to drive properly is for thetime being impaired”. A drug is defined to be “any intoxicant other than alcohol” andthis has been held to include prescription drugs as well as proscribed drugs. 29 Thelaw in this area is therefore very clear, but the Government claims that enforcementis difficult. To assess impairment in relation to drugs the police must have areasonable suspicion that a person is or has driven (or attempted to drive) whileunder the influence of drugs. If there is such reasonable suspicion the police canconduct a ‘preliminary impairment test’, 30 which is known as a Field Impairment Test(FIT). This generally involves pupil examinations and physical tests. In order toadminister a FIT a constable must be appropriately trained and be approved by thechief officer. Once a person has been arrested on suspicion of drug driving theperson is taken to a police station for a Forensic Medical Examiner (FME) to certifywhether a condition that may be caused by drink or drugs is present. A sample canonly be taken for toxicological analysis if a FME certifies this, yet due to theunavailability of FMEs, sometimes too long has passed for a drug test to be of anyreal use.In 2009 the Department for Transport consulted on the creation of a new strict liabilityoffence of drug driving which would have made it an offence to have any level of28 See section 4(1) and (2) of the Road Traffic Act 1988. See also section 3A which makes itan offence to cause the death of a person while driving when unfit to drive through drink ordrugs.29 See section 11(2) of the RTA and Armstrong v Clark [1957] 2 QB 391 and Bradford vWilson [1984] RTR 116.30 See section 6B of the RTA.20

specified drugs in the body while driving despite the fact that this may have noadverse effect on a person’s ability to drive. The 2009 consultation also proposedexcluding all prescription drugs from the scope of any offence (including those thathave been medically proven to affect a person’s driving ability). We understand thata high proportion of road fatalities occur in relation to people over the age of 70,many of whom are on a range of prescription medication, which may impair theirdriving ability. This previous approach therefore made clear that the offence was notreally targeted at increasing safety on the roads but rather criminalising use of illegaldrugs. Liberty opposed the creation of this offence and suggested an offence muchmore akin to that now proposed. If road safety is the principal concern and it isthought necessary to introduce a new strict liability offence to avoid evidentialdifficulties, whether the drug in question was prescribed or not should be irrelevant –the key concern should be whether the driver presents a risk on the road.Liberty supports the improvement of road safety by introducing targeted andevidence based offences if necessary. As such we do not oppose in principle thecreation of the offence now proposed if the levels of specified drugs present in thebody have been medically proven to impair driving (for example, similar to bloodalcohol levels). We understand that it is be possible to set levels for some drugsbased on an actual or likely impairment of driving ability. However we are concernedat the Government’s approach with regard to drugs that cannot accurately be linkedto impairment. The explanatory note for the Bill as published in the House of Lordsstated -New section 5A(2) of the 1988 Act allows for different specified limits to be set fordifferent controlled drugs. For some controlled drugs the specified limit might beset at a level where the average person’s driving would be impaired. However forother controlled drugs which are also associated with road safety problems (asthey can impair driving), it may not be technically possible to determine a levelwhich impairs most people’s driving. This may be, for example, becausetolerances vary widely in the population, or because the drug is often taken inconjunction with other drugs and is associated with abuse or risk-takingbehaviour. For such drugs a specified limit may be set at a lower level than maybe considered likely to impair most people’s driving. In some cases the level maybe very low (for example minimum detectable amounts); this can be described as21

a zero tolerance approach. New section 5A(9) provides that specified limits couldbe zero. 31In the explanatory note for the House of Commons, this paragraph was amended,and now states:Specified limits could be set based on evidence of the road safety risk posedby driving after taking the drug, or based on an approach whereby it is notacceptable to drive after taking any appreciable amount of the drug. Newsection 5A(9) provides that specified limits could be zero, though this doesnot mean that limits would in fact be set at zero. 32A strict liability offence that hinges on “minimum detectable amounts” and a “zerotolerance approach” is an unwise reform. Strict liability offences must in general beapproached with extreme caution, given that there is no need for intention or evennegligence on the part of those made culpable. At the very least, a strict liabilityoffence for drug driving must be linked to drug levels which actually cause drivingimpairment.Liberty has further related concerns about where the creation of this type of offencecould lead. In the few jurisdictions that do make it an offence to drive whilepossessing any level of prescribed drug in the body, random drug testing has alsobeen introduced. 33 This would mean allowing the police to randomly stop certaindrivers, without suspicion, and require them to undergo a drug test. It is not hard toimagine how blanket powers of this nature would in practice inevitably lead todisproportionate targeting of ethnic minority as well as young drivers. It could also beused as an alternative means of enforcing existing prohibitions on the use ofprohibited drugs. This is not the role of road safety laws. The current offence whichrequires a link to unfitness to drive, and its applicability to all drugs (legal and illegal),has a clear focus on road safety. We urge the Government to ensure that this newlyproposed offence mirrors that focus, and is not used a pre-cursor to extendingintrusive police powers.31 See the Explanatory Memorandum for the Bill in the House of Lords, at para 407.32 See the Explanatory Memorandum for the Bill in the House of Commons, at para 562.33 See the situation in Victoria and New South Wales in Australia and some States inAmerica.22

Public order offencesClause 38 of the Bill was inserted by amendment in the House of Lords. The clauseamends section 5 of the Public Order Act 1986 (POA) to remove the word “insulting”from the offence of using “threatening, abusive or insulting” words or behaviour.Given the chilling effect clauses 5 and 4A (i.e. the same offence as in clause 5 butrequiring intent) of the POA have caused to free speech we urge MPs to go further.Amendment 11 – address expansive public order offencesClause 42, page 46, line 35, leave out lines 35 to 38, and insert() Omit section 5 of the Public Order Act 1986.() Omit ‘insulting words’ from section 4A(1)(a) of the Public Order Act 1986.() Omit ‘or insulting’ from and before ‘abusive’ insert ‘or’ in section 4A(1)(b) ofthe Public Order Act 1986.EffectThe first part of this amendment will repeal the offence of causing harassment, alarmor distress by using threatening, abusive or insulting words or behaviour or disorderlybehaviour, or displaying any writing, sign or other visible representation which isthreatening, abusive or insulting (section 5 of the Public Order Act 1986).The second part of this amendment will remove the vague notion of ‘insulting’behaviour from the offence of intentionally causing harassment, alarm or distress,under section 5 of the Public Order Act 1986 (POA).BriefingThe POA contains three separate public order offences dealing with speech andbehaviour that fall short of actual violence. These range in seriousness and scope.Section 5 contains the most broadly defined offence and provides that someone isguilty of an offence for using, with or without any intention, any “threatening, abusiveor insulting” words or behaviour, or displays such writing, posters or signs to thateffect which is likely to result in another person being feeling “harassed, alarmed or23

distressed”. Clause 38 removes the word ‘insulting’ such that no offence will becommitted for using insulting, rather than abusive, words, behaviour etc.The term ‘insulting’ has been held to bear its ordinary meaning. Lord Reid in a Houseof Lords decision in 1972, (in respect of an equivalent provision in the Public OrderAct 1936) stated:We were referred to a number of dictionary meanings of 'insult' such astreating with insolence or contempt or indignity or derision or dishonour oroffensive disrespect. Many things otherwise unobjectionable may be said ordone in an insulting way. There can be no definition. But an ordinary sensibleman knows an insult when he sees or hears it. 34This effectively means that an insult is in the eyes or ears of the ‘reasonable’beholder. While the courts may be reluctant to convict a person in relation to using‘insulting’ words or signs, the mere fact that this is a criminal offence is enough tostifle freedom of expression. A recent example of this was the case of a young manwho was threatened with prosecution under section 5 for peacefully holding a placardthat read “Scientology is not a religion it is a dangerous cult”. 35 While no prosecutionultimately went forward the fact that a peaceful protester who was merely expressinghis opinion – which contained no threat or intimidation - could be threatened withprosecution demonstrates the clear need for this offence to be more tightlycircumscribed. Even where police action is not accompanied by a threat ofprosecution, section 5 can have a chilling effect on peaceful protest. Liberty’sexperience of providing legal observation for the policing of the TUC’s 2011 ‘Marchfor the Alternative’ fuelled very real concerns about the way section 5 is beinginterpreted by officers on the ground. In one case observed by Liberty, a placard wasconfiscated; apparently on the basis (as reported to our observer by a police officer)that it contained swear words.Sophie FarthingIsabella SankeyRachel Robinson34 Brutus v Cozens [1972] 2 All ER 1297, per Lord Reid at 1300.35 See http://www.guardian.co.uk/world/2008/may/23/religion.24