Anti-social Behaviour, Crime and Policing Bill

Lord Lloyd of Berwick Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Hope of Craighead]

My Lords, I put down my name in support of this amendment for the purpose of drawing attention to a case decided by the Supreme Court in October 2013. It was not mentioned or discussed in the report of the Joint Committee on Human Rights, but it has a bearing on this issue in connection with the amendment moved by my noble friend Lord Pannick. Before I do that, I should like to express my appreciation of the amendments tabled by the Minister in relation to the protection of people who are detained and also the timetable which is set out in the amendments.

I had occasion to look at this very closely in a case from Scotland following on a decision by the European Court of Human Rights in Strasbourg in a case called Salduz. It is clear that the amendments which the Minister has tabled are necessary in order to meet the requirements of the convention for the protection of people who are detained, in particular the right to consult a solicitor. I appreciate the careful way in which that problem has been addressed.

As for the timetable, it is appropriate that this should be in the Bill. In 1980 a provision was introduced in Scotland to give the police the power to detain somebody prior to arrest. In that provision, the timetable was set out. It had to be amended in the light of recent developments following the case of Salduz, but again the timetable was in the Bill. I believe that, for the protection of the subject, that is where it should be, so I welcome the way in which these amendments have been framed.

In the Supreme Court, the case R v Gul was concerned with the definition of terrorism, which is set out in Section 1 of the relevant Act, and the concerns expressed about the breadth of it. Terrorism, as defined in that, has a succession of various acts. People’s perception of what amounts to terrorism can vary according to what their perception is of what is going on and where these activities are being conducted. It is not necessary to discuss that issue today, but it has a bearing on what may be passing through the mind of the port officer who has the power to detain and on the need for some protection of the subject because of the way in which that power may be exercised.

I should declare an interest as I participated in that judgment and was particularly concerned about this issue in our discussions. At the end of the judgment, in paragraph 64, the Supreme Court noted that,

“under Schedule 7 to the 2000 Act the power to stop, question and detain in port and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting”,

which is of course the whole point to which the amendment draws attention. Although the court went on to add that it was not concerned with that issue in that appeal, the last sentence of the judgment reads:

“Detention of the kind provided for in the schedule represents the possibility of serious invasions of personal liberty”.

It is worth bearing in mind in support of the point that has been made that that has been a concern expressed by the Supreme Court in addition to others.

The noble Lord, Lord Pannick, was kind enough to mention what I said in the case of O’Hara, which was the first judgment I ever delivered in this House many years ago. The test which I set out, and which has been recognised, is not particularly exacting. It is partly subjective and partly objective. The subjective part is important because it looks only to what the officer says was passing through his mind at the time. The objective part is that somebody else stands back, takes what was passing through the officer’s mind at the time he was exercising his judgment and asks the question “Did that justify what he did?” That was how the power given to the police was expressed. It does not set a particularly high standard, but it is a protection. It is that protection which is absent at the moment and which I respectfully suggest is in need of being written into the Bill to meet the concerns that have been expressed by various people, including the Supreme Court.

[Lord Lloyd of Berwick (CB)]

My Lords, perhaps I could just have a brief word on Amendments 93A and 93B. There has been much discussion over the years as to whether the right to stop under Schedule 7 should be available only on reasonable suspicion. I am glad that the amendment now before the House does not go that far. The arguments in favour of and against the power to stop without reasonable suspicion are all very well set out in the excellent recent report of David Anderson, the reviewer. Unfortunately, that particular question was not included in the public consultation which took place in 2011. My view has always been in favour of the power to stop without reasonable suspicion. There is no real analogy with the power to stop under Section 44 of the Terrorism Act. But the power to detain—that is, the power to detain under paragraph 6(1)(b)—seems to me altogether different.

By the time that power is exercised, the person in question will have been questioned for up to an hour. All the benefits of the power to stop without suspicion, which I strongly believe in, particularly the deterrent effect of that power, will by then have accrued. Moreover, the examining officer will have had ample time during that hour to explore whether there are grounds for reasonable suspicion. The balance of arguments seems therefore to shift decisively in favour of reasonable suspicion being the test at that stage. For that reason, I support the amendment.

Perhaps I may say in passing how glad I am that the maximum period of detention has been reduced from 24 hours, as it was when I was considering these matters many years ago, to the six hours which is now proposed. That seems to me altogether admirable, as are the other amendments put forward by the Government.

[Lord Avebury (LD)]

My Lords, I also want to add a word in support of the amendment which was moved so comprehensively and powerfully by the noble Lord, Lord Pannick. I am disappointed that the Minister has not had time to make any observations about the two cases that I cited at an earlier stage. The first was where a distinguished imam was stopped at Heathrow Airport, made to give a DNA sample and fingerprints and detained for some time. It took me 15 months to get the DNA sample removed and his name expunged from the records. The second case was of a gentleman who was stopped three times within the space of months, indicating, to my serious concern, that there must exist a blacklist of people who are to be stopped when they pass through airports or sea ports. That is a very serious development on which I had hoped the Minister would be able to make some observations by now.

Amendment 94ZA in my name would delete the whole of new paragraph 11A from Schedule 7 to the Terrorism Act. That paragraph covers the power to take possession of anything that is found when a person is examined or searched at a port of entry, including not only electronic materials but papers, photographs, videos or audio cassettes, and to keep a copy of that material for as long as it is considered necessary for the purpose of determining whether a person falls within Section 40(1)(b); that is, that he is or has been concerned in the commission, preparation or instigation of acts of terrorism. It is clear that the vast majority of people who are held at the ports of entry have nothing to do with terrorism whatever. When this matter was discussed on 11 December, the Minister quoted the observation of the independent reviewer of terrorism legislation that,

“‘it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable’”.—[Official Report, 11/12/13; col. 813.]

However, that statement was not the whole story, as the Minister knows, and it was a little disingenuous of him to omit the rest of Mr Anderson’s comments in his evidence to the Home Affairs Select Committee on 20 November. He recommended that the power to copy and retain data from electronic devices should be exercisable only if a senior officer was satisfied that there were grounds for suspecting that the person appeared to be concerned in the commission, preparation or instigation of acts of terrorism. Mr Anderson went on to compare the indefinite retention of those data with the period of 48 hours that applies to the retention of documents copied under reasonable suspicion powers such as Section 43 of, and Schedule 5 to, the Terrorism Act 2000. He did say that electronic data can be held for very long periods under the management of police information regime, a practice that had recently been criticised by the courts and which is in marked contrast to the rules and guidance that exist under the Protection of Freedoms Act 2012. There should be some consistency between these different regimes while allowing a margin of appreciation in cases where there is a reasonable suspicion of terrorism.