Emergency powers to forcibly relocate terror suspects without consent are being planned by the Government in new emergency legislation, just months after it pledged to scrap the existing measure.

In January, home secretary Theresa May went to the House of Commons to announce the results of the counter terrorism review which was one of the main commitments of the coalition government. The headline announcement was the proposal to scrap the controversial control order regime. Control orders were to be replaced by “a new package of measures that is better focused and has more targeted restrictions,” to be known officially as terrorism prevention and investigation measures (TPIMs for short). There would be removal of those aspects of control orders that most resemble house arrest, with curfews replaced by an overnight residence requirement. In particular, forcible relocation was to be ended and replaced with the power to order more tightly defined exclusions from particular areas.

When the Terrorism Prevention and Investigation Measures Bill was published in May it was widely regarded as a rebranding of the control order regime. The only substantive concession was the removal of provision for internal exile. Now, in a major U-turn, the government has published the Enhanced Terrorism Prevention and Investigation Measures Bill. In the draft bill the Government says that it intends to use powers of relocation or other restrictions “in exceptional circumstances”. The ability to move a suspect to a new home for security reasons, originally abandoned by thegovernment, could now be taken in matters relating to national security. Theresa May said: “We will publish, but not introduce, legislation allowing more stringent measures, including curfews and further restrictions on communications, association and movement.” The powers will be held in reserve and put before parliament should exceptional circumstances arise.

Shadow home secretary Yvette Cooper has branded the draft legislation as “irresponsible, incompetent and potentially dangerous.” “The Government has finally admitted there is a problem with their plans to weaken counter terror legislation and remove the ability to relocate very dangerous terror suspects”, she said. She went on to say: “Instead of amending her own bill to sort this out, the Home Secretary has created a shambolic process of draft emergency legislation that won’t work for those cases and is impractical and chaotic, especially when Parliament is not sitting. It does not give the police or security services what they need to keep communities safe, especially during Olympic year when the capital may need extra protection. The Home Secretary is putting political deals and fudges ahead of national security.”

Other critics include Lord Carlile, former independent advisor on terrorism strategy, who said the legislation is the “worst of all possible worlds”. Tory MP David Davies is reported as saying that the new draft emergency powers are as ill-thought out as control orders. Shami Chakrabarti, the director of Liberty, said: “You can call them control orders, TPIMs, or whatever you like, but they still allow dangerous terrorists to live amongst us whilst innocent people are punished forever with no opportunity to stand trial and clear their name. Ten years into the ‘war on terror’, have we really learned so little?”

In April, district Judge Feinstein, at Salford Magistrates’ Court, made a ruling that set a substantial cat amongst a large flock of pigeons.
The case concerned a murder suspect, Paul Hookway, who was arrested last November. Police had been given permission to detain him for 36 hours. Five months later, police applied to the courts to extend the period of detention from 36 hours to the maximum of 96 hours. But the district judge refused, saying that the 96 hours had expired months ago. Greater Manchester Police sought a judicial review, but on 19 May the ruling was upheld at the High Court. By the time the full implication of this judgement was appreciated, the flock of pigeons had turned into headless chickens.
The ruling overturned 25 years of police practice under the 1984 Police and Criminal Evidence Act, which allows suspects to be held only for 96 hours before they are charged or released. It has been customary for officers to release suspects on police bail while they complete their investigations, which can take weeks or months. But this ruling said that periods spent on bail should also count towards the 96-hour ‘detention clock’ limit, and threw into doubt the legal position of 85,000 police suspects currently out on bail.
The Supreme Court, due to hear a full appeal on the issue on 25 July, dismissed an application to suspend the original ruling pending that hearing. So the Home Office decided to take immediate action. Last Thursday the Home Secretary introduced the Police (Detention and Bail) Bill. Five hours were allowed for the passage of the bill through all its stages in the Commons. In the event three hours sufficed, with all party support. It completed its passage through the Lords and received Royal Assent on Tuesday. Section 1 of the Act states:

1 Amendment of Police and Criminal Evidence Act 1984
(1) In section 47 of the Police and Criminal Evidence Act 1984 (bail after arrest), in subsection (6), at the end insert “and any time during which he was on bail shall not be so included”.
(2) In section 34 of that Act (limitations on police detention), in subsection (7), at the end insert—
“But this subsection is subject to section 47(6) (which provides for the calculation of certain periods, where a person has been granted bail
under this Part, by reference to time when the person is in police detention only).”
(3) The amendments made by subsections (1) and (2) are deemed always to have had effect.

But it was not without contention. Many MPs queried the delay in reacting to the initial judgement, though Home Office ministers insisted that the full implications of the original ruling did not become clear until 30 June. The rush to legislation also sat uneasily. Too often in the past it has been a case of legislate in haste and repent at leisure, the virtually unusable Dangerous Dogs Act 1991 being the classic example. Theresa May said that only fast-track legislation could give the police the “certainty and immediacy in restoring the law as it was understood to operate.”
Then there was the retrospective nature of the legislation. The Home Secretary rebutted criticism, saying: “This is not retrospective legislation in that it merely corrects the decision that has recently been made and puts the situation back to what it had been understood to be. That is supported by Liberty, which has said: ‘We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would, in our view, not fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties.’”
Defence lawyers have warned that the legislation boosts police powers. Hookway’s solicitor said that the legislation being rushed through will widen police powers, not prevent chaos. “The judgment in Hookway should have been a wake-up call in respect of this new emerging police practice of ‘bail and see’ rather than interview and investigate properly at the front end” he said. In the Commons debate, Frank Dobson said: “I have had cases drawn to my attention in the past few years of people on greatly protracted periods of bail. I do not believe that that is acceptable.” Ian Kelcey, of the Law Society, said the courts may be sending out a message to the police. He told BBC News: “Defence solicitors have been extremely concerned over the period of the past few years that bail has extended and extended, and I think this may be a message that’s coming out from the courts that enough is enough and you can’t just treat it as an ever-extending piece of elastic.”

Out will go the existing Serious and Organised Crime Agency, and the Child Exploitation and Online Protection Centre, and in will come the National Crime Agency (NCA) under plans announced by the Home Office. The NCA will become fully operational from December 2013.

Last Wednesday Home Secretary Theresa May told the Commons: “Our law enforcement agencies assess that there are some 38,000 individuals engaged in organised crime, involving 6,000 criminal groups (but) law enforcement is impacting in a meaningful way on only 11% of those 6,000 organised crime groups. We must do better.” She said that for too long national and international crime was neglected and our borders became porous, and the overall effect was a fragmented and patchy law enforcement response. She added: “The National Crime Agency will be a crime-fighting organisation. It will tackle organised crime, defend our borders, fight fraud and cybercrime, and protect children and young people. Intelligence will be at the heart of what the NCA does…All other agencies will work to the NCA’s threat assessment and prioritisation, and it will be the NCA’s intelligence picture that will drive the response on the ground.” The new head of the National Crime Agency will effectively become the most senior police officer in Britain with powers to order other chief constables to undertake investigations.

The new agency will be made up of four distinct parts, or ‘commands’, dealing with organised crime, border policing, economic crime and the child exploitation and online protection centre (CEOP). The commands will be linked to the NCA’s intelligence centre to ensure information flows to and from the police and other law enforcement agencies in support of tactical operational activity. Last-minute negotiations led to the exclusion of the Serious Fraud Office from the new agency, although the NCA will have a lead role in tackling economic crime. The City of London police, the Office of Fair Trading and the Financial Services Authority had already been excluded from the merger.

Shadow Home Secretary Yvonne Cooper was particularly critical of the proposal to replace the Child Exploitation and Online Protection Centre. She told the Commons that, despite good results this year, Jim Gamble, its successful head, resigned from the agency after seeing the Government’s plans to merge CEOP with the NCA. She quoted him as saying: “I don’t believe that the rebranding or the submerging of CEOP within a far greater entity will allow the critical child protection focus that we need,” making the point the point that CEOP will also suffer a 10% per cent reduction in its budget by 2014. On the National Policing Improvement Agency she said that the Home Secretary has said nothing at all, but she is disbanding it in 2012, a year before the NCA starts.

The full text of ‘The National Crime Agency – A plan for the creation of a national crime-fighting capability’ can be found at:

http://www.homeoffice.gov.uk/publications/crime/nca-creation-plan?view=Binary

Once again the peace of Westminster was disturbed by the sound of screeching brakes and the smell of burning rubber as yet another major policy revision was thrown into reverse. 

By my reckoning the reported shelving of justice secretary Ken Clarke’s sentencing plans is the fifth such U-turn in recent months. The Government would have us believe that policy U-turns are a sign of a listening, flexible governance, but when they become so frequent judicious flexibility starts to look more like careless driving or simple incompetence.

Last May the Coalition Programme for Government committed to a full review of sentencing and rehabilitation policy. That review produced a detailed green paper in which Clarke sought to tear up rules on fixed jail terms for offenders and restore the discretion of judges when sentencing murderers and other serious offenders (see blog ‘Breaking the Cycle’, posted on 23 December 2010). One of the major proposals was to encourage defendants in England and Wales to plead guilty early by offering a discount of up to 50% instead of 34%. This would mean 3,400 fewer prison places needed in 2014/15 and a saving of £130m.

Of all the green paper proposals this attracted the most hostility. Many conservatives fear it undermined Tory claims to be the party of law and order, particularly over shorter sentences in return for rapists pleading guilty. According to several top judges, criminals would spend too little time behind bars. Lord Justice Thomas, vice-president of the Queen’s Bench Division, and Lord Justice Goldring, the senior presiding judge of England and Wales, said it would not be right to go beyond the current rules, which allow for a discount of up to a third for a guilty plea. In their view, a discount of 50% for an early indication of guilt risks crossing the boundary between giving the guilty the incentive to plead guilty and leading the innocent into making false admissions. Judge David Swift, chairman of the criminal sub-committee of the Council of Circuit Judges, added that any increase in the discount given for guilty pleas would benefit serious offenders the most.

The U-turn on sentencing was a pretty swift execution of a policy that had been in the coalition agreement, with the saving credited in the budget. The Prime Minister in the Commons this week insisted there had been no U-turn, arguing that the discount proposal had only been floated in a consultative green paper. A number 10 spokesman was reported as saying that the policy of discounted sentences had not been to cabinet. But a fortnight ago, in the Commons, Clarke had described the policy as agreed, and only at the weekend justice minister Nick Herbert had been defending the plans.  Clarke is now reported to be fiercely resisting Treasury demands to make his justice ministry bear the multi-million pound cost of the U-turn.

Clarke had originally postponed an announcement on his sentencing plans until after the Whitsun break. The home secretary, Theresa May, confirmed on Wednesday that this announcement has now been postponed again, and the publication of a sentencing and legal aid bill delayed for a matter of weeks. Watch this space.

The Home Office has launched plans to tackle violence against women and girls. Spouses and partners of UK residents who are forced to flee their relationships as a result of domestic violence will now be able to access vital support services.
The UN declaration on violence against women defines such violence as “any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”
The British Crime Survey reports that every year in the UK more than one million women experience domestic abuse and one in four women will be affected by domestic abuse. More than 300,000 women are sexually assaulted and 60,000 women raped; and more than one in twenty women will be stalked.

The ‘Call to End Violence Against Women and Girls – Action Plan’ has been published alongside the government’s response to Baroness Stern’s review into the handling of rape complaints (see blog “Stern Review” posted on 25.03.10). Key actions from the plan include making data on regional levels of violence against women – including domestic abuse, sexual assault and stalking – more accessible to ensure resources are targeted to where they are most needed. There will be new research aimed at countering the myth that false allegations of rape are common and an independent consultation on the measurement of rape conviction rates.

A new national stalking group will be set up to support the work of the Association of Chief Police Officers and the Crown Prosecution Service in improving the police response to stalking. Action will be taken to raise awareness of the law around sexual offences and challenge attitudes of abuse within teenage relationships. There will be more training for key frontline professionals – including doctors, nurses, health visitors – on identifying and dealing with violence against women. Central funding will be provided for frontline services including rape crisis centres, Independent Domestic Violence Advisors, and four years of funding for the National Domestic Violence Helpline.
Introducing the plan, Home Secretary Theresa May said: “I want to see an end to all forms of violence against women and girls. Our comprehensive and detailed action plan sets out how we are going to tackle these crimes – supporting those at risk, helping victims and ensuring offenders are brought to justice. Most importantly we need to prevent these crimes occurring in the first place. That is why we are challenging and where necessary working to change, attitudes and behaviours.”

The Ministry of Justice has announced more than £10.5 million of funding for three years for rape crisis services. Baroness Stern said: “I welcome the government’s response to the recommendations in my report. Particularly in a time of financial stringency it is good that the government recognises the importance of a specialist and supportive response to rape victims.”

The ‘Call to End Violence Against Women and Girls – Action Plan’ can be found at:

http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/vawg-action-plan?view=Binary

Photo courtesy of ghetto_guera29′s photostream

Home Secretary Theresa May went to the House of Commons on Wednesday to announce the results of the counter terrorism review which was one of the main commitments of the coalition government. The headline announcement was the proposal to scrap the very controversial control order regime.

Control orders are to be replaced by “a new package of measures that is better focused and has more targeted restrictions,” to be known officially as terrorism prevention and investigation measures (T-PIMs for short). There will be the removal of those aspects of control orders that most resemble house arrest. Curfews will be replaced by an overnight residence requirement. Forcible relocation will be ended and replaced with the power to order more tightly defined exclusions from particular areas. There will be the power to prevent foreign travel. Individuals will have greater access to communications, including to a mobile phone and to a home computer with internet access. They will have greater freedom to associate and will be free to work and study, subject again to restrictions.

The review accepts that the normal maximum period of pre-charge detention should be 14 days but recognises that in exceptional circumstances this might need to be temporarily increased to 28 days. Draft primary legislation will be drawn up to be introduced for parliamentary consideration only in such circumstances. On the use of section 44 stop-and-search powers, the Home Secretary said: “I have concluded that the current provisions, which were found unlawful by the European Court of Human Rights, represented an unacceptable intrusion on an individual’s human rights and must be repealed. We therefore propose to repeal section 44 and to replace it with a tightly defined power that would allow a senior police officer to make an authorisation of much more limited scope and duration for no-suspicion stop-and-search powers to prevent a terrorist attack where there is a specific threat. This targeted measure will also prevent the misuse of these powers against photographers.”

On the Regulation of Investigatory Powers Act 2000, Mrs May promised implementation of the commitment to prevent the use of these powers by local authorities unless for the purpose of preventing serious crime and unless authorised by a magistrate. She expressed concern at “the use of counter-terrorism legislation by local authorities in respect of matters that clearly had nothing to do with counter-terrorism, such as dog fouling and whether or not children had the right to go to a particular school in a particular catchment area.” Surveillance will only be authorised for offences that carry a custodial sentence of at least six months.
Writing in the ‘Guardian’, Lib Dem MP Tim Farron said: “The ridiculous, heavy handed and easily abused powers brought in by the last Labour regime trampled over centuries of British tradition and liberty. That’s why the Liberal Democrats and other civil liberties campaigners fought to prevent them and railed against them once they were imposed. And that’s why we should all be proud of the steps taken by the coalition government today.” Shami Chakrabarti, Director of Liberty, was less fulsome. She said: “We welcome movement on stop and search, 28-day detention and council snooping, but when it comes to ending punishment without trial, the Government appears to have bottled it. Spin and semantics aside, control orders are retained and rebranded, if in a slightly lower fat form. As before, the innocent may be punished without a fair hearing and the guilty will escape the full force of criminal law.” On ‘This Week’ last night, former Home Secretary Charles Clarke called it “a complete fudge” that endangered national security.

Black people are 26 times more likely than white people to be stopped and searched by police in England and Wales. The figures relate to stop and searches under Section 60 of the Criminal Justice and Public Order Act 1994, which was introduced to deal with football hooligans and the threat of serious violence. It allows police to search anyone in a designated area without specific grounds for suspicion.

As reported in the ‘Observer’, analysis by the London School of Economics and the Open Society Justice Initiative found that there are 41.6 Section 60 searches for every 1,000 black people, compared with 1.6 for every 1,000 white people, making black people 26.6 times more likely to be stopped and searched. Asians were 6.3 times more likely to be stopped than whites, according to the analysis of Ministry of Justice figures for 2008-09. This analysis of government data has brought claims of discrimination from campaigners who say the findings corroborate concerns that black and Asian Britons are being unfairly targeted. The data reveal a marked escalation in relative searches of ethnic minorities in England and Wales. In the previous year blacks were 10.7 times more likely to be stopped than whites, and Asians 2.2 times more likely. US civil rights activist Jesse Jackson, recently arrived in London to launch a campaign aimed at curbing what he says is stop and search discrimination, described the figures as “astonishing”. Interviewed on ‘Newsnight’ on Monday, he said that this race profiling, indicative of basic structural inequalities, produced a “racial dragnet that is immoral and illegal.” Not the least effect, he said, is that it deprives the police of their moral authority and credibility.

In July, Home Secretary Theresa May told Parliament that the government would change how stop and search powers under section 44 of the Terrorism Act are used with immediate effect. The move was in response to a decision by the European Court of Human Rights, which found that the use of stop and search powers under section 44 of the Terrorism Act 2000 amounted to a violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. However, the police can still rely on powers granted by section 60 of the Criminal Justice and Public Order Act 1994, which allows police to stop individuals without reasonable suspicion “in anticipation of violence,” and by schedule 7 of the Terrorism Act 2000, which allows stops in ports and airports for counterterrorism purposes.  Police use of these powers has given rise to similar problems as seen with section 44, with a disproportionate impact on ethnic minorities.
 
The National Council for Civil Liberties, now known simply as Liberty, report that a consultation on amending PACE Codes, not published on the Home Office website but only made available to certain interested organisations, includes a statement that whilst officers must take particular care not to discriminate, there “may be circumstances…where it is appropriate for officers to take account of an individual’s ethnic origin in selecting persons and vehicles to be stopped.” Isabella Sankey, Director of Policy for Liberty, said: “Stopping and searching individuals without suspicion is divisive enough without telling police they can directly discriminate on the grounds of race. Significant progress has been made since the Lawrence Inquiry but the Home Office’s planned changes to PACE will set the clock back and jeopardise race relations in the UK.”

Yesterday Home Secretary Theresa May told Parliament that a rapid review of key counter-terrorism and security powers is underway. The review, a commitment in the coalition agreement, published on 20 May 2010, will look at what counter-terrorism powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers “and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country.”

She said: “The review will consider six key powers: control orders; section 44 stop-and-search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.” She believes that these are the most controversial and sensitive powers. “In particular, the issue of pre-charge detention has been the subject of considerable debate in the House, and tomorrow we will consider whether to renew the current detention limit for a further six months.” That would provide sufficient time to look carefully at pre-charge detention and to explore how the period of detention below 28 days can be reduced. She added: “Personally, I was always in favour of 14 days, but the whole point of a review is to look at what the appropriate period should be, and I do not wish to pre-empt the review’s decision or the information with which it will come forward.”

The review will be conducted by the Home Office with the full involvement of the police, security and intelligence agencies and other Government Departments, including those in Scotland and Northern Ireland, and with oversight from Lord Ken Macdonald QC, former Director of Public Prosecutions. The proposals made by Lord Carlile, in his statutory role as independent reviewer of terrorism legislation, will be fully considered as part of the review. The Home Secretary concluded: “I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to the review, and it has said that it would be delighted to do so. I am keen to involve other civil liberty and community organisations and, as with other reviews, I would urge anyone with an interest to submit their views to the Home Office.” On timing, she said: “I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. I will report back to Parliament on the outcome of the review after the summer recess.”

Home Secretary Theresa May told Parliament yesterday that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.

The move is in response to a decision by the European Court of Human Rights,  which found that the use of stop and search powers under section 44 of the Terrorism Act 2000  amounted to a  violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. The Home Secretary told the House of Commons: “I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us.” She added that the new government had been concerned about the use of section 44 powers for some time. The changes are designed to comply with the Strasbourg ruling and provide clarity for the police before a review of all counterterrorism legislation this summer. The terms of reference for the review are expected to be announced next week.

The Home Secretary has sought urgent legal advice and consulted police forces, and interim guidance for the police has been introduced which sets a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers. Instead they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. Police may search only vehicles under section 44 of the law, and then only if they have reasonable suspicion of terrorist activity. The changes will bring the operation of counter-terrorism use of stop and search powers fully into line with the European Court’s judgment. Theresa May concluded: “The first duty of government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights.”

In reply, Alan Johnson, the former Labour Home Secretary, said he was ‘amazed’ that his successor had not tried to appeal against the Strasbourg ruling. He went on to say: “I am deeply concerned about the Home Secretary’s intention to restrict section 44 powers to searches of vehicles. That quite clearly restricts the powers of the police.” But Lord Carlile, the government’s independent reviewer of anti-terror legislation, speaking on BBC’s ‘World at One’ yesterday, said section 44 had been ineffective in combating terrorism, had caused community tensions and was used arbitrarily and for incorrect purposes. He added: “You don’t have to search people to discourage terrorists, the evident availability of police officers in the area, obvious uniformed policing, is just as much of a deterrent.” And Shami Chakrabarti, director of the human rights group Liberty, said: “Liberty welcomes the end of the infamous section 44 stop and search power that criminalised and alienated more people than it ever protected. We argued against it for ten years and spent the last seven challenging it all the way to the Court of Human Rights. It is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, rights to protest and race equality in Britain.”