On a point of order, Mr Caton—I apologise to the witnesses, but I will only delay everyone for one minute. This morning, in our deliberations on the provisions of the Bill vis-à-vis the Regulation of Investigatory Powers Act 2000, the interception of communications commissioner came and told us his views about how the provisions of the Bill will operate with respect to RIPA and his responsibilities. His responsibilities deal with communications.
From the questions and comments that arose this morning, I think that the Committee would have liked to ask the relevant surveillance commissioner about the operation of RIPA. Clearly, we were not able to do that. Through the usual channels—the Government Whip and the Opposition Whip—we sought the attendance of the surveillance commissioners at our deliberations, but it was felt to be inappropriate. That is their decision, which I can understand up to a point, but it would be helpful to the Committee if we could ascertain the views of the chief surveillance commissioner on the provisions in the Bill—whether they see a problem, whether they think the provisions are good or whether they would like to see the Bill amended in any way.
I suggest to the Committee—hopefully the Minister will be able to say something positive—that we should contact the chief surveillance commissioner and ask whether he can provide the Committee with answers to certain questions that would aid our deliberations and our consideration of the Bill. If the Minister could agree to that, it would be extremely helpful.
I hear what the hon. Member for Gedling has just said about information for the Committee. The commissioner was asked if he could attend and give evidence, but unfortunately he was not available. I am certainly happy to refer the commissioner to what was asked in Committee about his views in respect of the RIPA provisions, and to ask what he might be able to provide to the Committee in terms of setting out his thoughts and his response. If that would help the hon. Gentleman, I am happy to take that away and to update the Committee once we have done that, letting the Committee know what information we have been able to secure.
One of the things that might be helpful is to be specific with the sorts of things that we would like the surveillance commissioner to look at, because certain questions were asked.
I certainly agree with the general desire to get some feedback and thoughts from the commissioner. Clearly, we cannot compel the commissioner to respond or to answer—that is not the nature of the Committee—but we can request some feedback and, perhaps, some written evidence that could be submitted as part of the Committee’s consideration. Obviously, I will endeavour to keep the Committee updated. If there are further issues, we can return to them.
Our apologies to the witnesses for that short delay. We will now hear oral evidence from Liberty, Justice, the Law Society and the Criminal Bar Association.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill. We must stick strictly to the timings in the programme motion agreed by the Committee. I hope I do not have to interrupt mid-sentence, but I will do so if I need to. I call Vernon Coaker.
Good afternoon, everyone. Thank you for coming.
First, may I ask each of you to say generally what you feel about the provisions in the Bill with respect to CCTV? What do you think of the balance that the Bill seeks to strike between protecting communities’ freedom from crime, detection of crime, reducing fear and so on, and civil liberties? Does the Bill go far enough or too far? What general comment do you have on the CCTV provisions in the Bill?
Isabella Sankey: Thanks to the Committee for inviting Liberty to give evidence today. On the CCTV provisions in the Bill, we have long been calling for better regulation. As the Committee will be well aware, we have seen a sharp increase in the number of CCTV cameras that are up around this country, over the past 10 years in particular. At the same time, we have not seen an increase in regulation. We are concerned about not only the number of cameras, but the innovations, such as facial recognition technology, microphones and loudhailers being attached to cameras, automatic number plate recognition cameras, and so on. Regulation has not kept pace. The Data Protection Act 1998 and the Human Rights Act 1998 apply to most CCTV cameras in terms of the use and processing of images, but the principles in those Acts were not designed to deal with the sophisticated types of CCTV that we now see on the streets.
In particular, you have mentioned crime and fear of crime, which Liberty is very alive to. We are concerned that public expectations about the role that CCTV can play in keeping them safe are somewhat out of step with the reality. That is not to say that it cannot be extremely useful in detecting crime and leading to convictions. Of course, there have been several high-profile cases in which CCTV has been used, so we are not against it, and I do not think any sensible person would be.
The idea, however, that CCTV is a silver bullet that prevents crime is frankly not borne out by the evidence, which was commissioned by the Home Office under the previous Government to investigate its effectiveness in deterring crime. At best, it might displace it. The images that are collected—certainly in the past—are often not of sufficient quality to lead to successful detections and convictions. We are concerned that the public have a general idea that CCTV is a silver bullet, and that it will keep them safe. Everyone should be seriously concerned if that means that people are walking down deserted alleyways at night because they see a camera. Making people feel safer when in fact they are not is surely no public policy goal. We welcome the Bill’s provisions on additional regulation. It could certainly go further on enforcement, but I wanted to make that point about fear of crime, as well.
Dr Metcalfe: I agree with everything that Isabella has said. Our organisation has a significant concern about the growth in private surveillance. It is understood that public bodies are bound by their obligations under the Human Rights Act, which, as Liberty has pointed out, is a rather blunt instrument when it comes to specific questions on the placement of a camera, where it can look, times, and so on.
Dr Metcalfe: Police and local authorities. Private companies are bound to the extent that the Data Protection Act imposes certain obligations in relation to data processing. But there is nothing in the data protection framework, for example, that can tell you whether the Tesco that you might happen to live next door to has five or 50 cameras on its car park. Surely such matters require better regulations than the current ones. A very poor patchwork of laws governs this area.
When we prepared our written evidence, we could not comment in detail on the regulation under the clauses because the code had not been published. I am pleased to see that that has now been done and a very good consultation paper sets out how the code was drafted and why it was put in those terms. It seems to hint that regulation of private CCTV will be something to be done gradually in future. We certainly hope that that will be taken on. The point is that any private individual may put a camera, or 60 cameras, on their land, and in principle there is no legal barrier to doing so. If we are serious about protecting privacy in this country, we must be more keen to have much better regulation of how CCTV can be established and used.
Mark Stobbs: I think the Law Society would endorse all those points. Our understanding is that 90% of CCTV cameras are outside the public sector, and a number of those are in premises where members of the public go frequently, such as stores and sports grounds. It seems to us that an opportunity has been missed to apply these to the private sector, at least in those areas where substantial numbers of members of the public attend.
We are also a bit disappointed that this is all done by codes of practice. There is a very limited opportunity for parliamentary scrutiny of those codes, and it seems to us that there ought to be a proper debate about where the balance should be and what those codes should contain.
Tim Moloney: The Criminal Bar Association also thanks the Committee for inviting us to give evidence today. We recognise that it is very difficult to quantify the effects that CCTV and ANPR might have on the prevention, detection and investigation of crime. Nevertheless, we are also conscious that there have been a number of high-profile cases where it has been of use in such prevention, detection and investigation of crime. We feel that the current proposals, with the code of practice, represent a positive start in maintaining some sort of regulation of the use of those cameras, and we endorse what others have said in that regard.
The debate about CCTV is interesting. I can understand about the code of practice and so on, but as a constituency MP nobody has ever complained to me about CCTV, apart from complaining that there is none. That is just a comment, really. Although people have complained to me about other areas of the Bill, it is interesting that the public perception of CCTV and ANPR is that they are not a real problem, and yet they generate a huge amount of debate.
For your information, because I think we were surprised, according to the evidence we had this morning the Bill covers 29,000 cameras, and the Association of Chief Police Officers’ latest estimate is that there are 1.8 million cameras, not 4.2 million. Clearly, for us as a Committee there will be a large debate about what all of you have just said about the impact of CCTV and whether the code of practice should apply outside of just the police and local authorities. In that regard, the Bill also proposes to have a surveillance camera commissioner. Why would we not just extend the remit of the Information Commissioner? The Information Commissioner already has a code of practice. Why not amend that and put that together rather than create another bureaucratic body—another quango? Do you not think that would be a better way of doing it, if we are going to have this code of practice?
Isabella Sankey: Similarly, we would support giving this responsibility to the Information Commissioner. One thing that I would say to the Committee is that currently we believe that the Information Commissioner is under-resourced and has overly restricted powers of enforcement in discharging many of the functions of that office, so if he is going to be given additional responsibilities, he would certainly need to have the resources and capabilities to match it. We would not want to remove from the Bill another commissioner who would get resources without having those passed on to the Information Commissioner.
I want briefly to address the point that you made earlier, Mr Coaker, about constituents not being concerned about CCTV. At Liberty we have a pretty different experience, and it might just be that people are more likely to contact us about this. Quite recently we had a case, which was widely reported, of Muslim residents in Birmingham who discovered that their local authority had been responsible for putting up a ring of steel—CCTV cameras—around their community so that nobody could enter or leave without being monitored. I think that very clearly makes the point that without sufficient regulation these cameras can be used inappropriately, and particularly in a discriminatory way.
That is something that you often see with incursions into the privacy sphere. There is this well-worn phrase that we have had a lot over the past few years at Liberty: “Nothing to hide, nothing to fear.” Our experience is quite different; it is those minority groups—those groups that might at any one time be unpopular—that are often on the sharp end of these privacy intrusions. We saw that community become very much alienated and disillusioned, with all the consequences that flow from that. I think that there is concern, but it is not necessarily as widespread as concerns about other things.
Dr Metcalfe: It is an important point: most people do not appreciate the importance of privacy protection until it is not there, just as most people in this country probably did not worry a great deal about the security of data transfer between different Government Departments until 11 million families got a letter from the Treasury explaining that their personal data had been lost in the mail. It is about those kinds of concerns. You or a constituent may not care a great deal or worry about CCTV until a neighbour’s CCTV camera captures footage that is put on YouTube. Then, they may be very concerned about what can be done by way of CCTV. It is at that point that they will look to their MP and say, “What were you doing about the ability of my neighbour, or a private company, to put up CCTV cameras in the first place?”
I take your point, and you can point to that abuse. I was interested in the role of the Information Commissioner perhaps being married to this rather than creating a new body. Given what you have just said about CCTV and the fact that the code of practice is just a code of practice and has no teeth, would you like real power to be given to whomever is responsible for regulating CCTV, so that it does not become, “This is good practice,” but becomes an offence for people to do certain things? What would the offence be? I always find this really interesting, because everyone says that we should criminalise it, but you are the lawyers, so what would the offence be? Is putting up CCTV invading someone’s privacy? Is that not already against the law?
Dr Metcalfe: I will give you an example: 41 years ago, in 1970, we published a report saying:
“English law does…provide a remedy for intrusions into privacy but is not adequate to meet the activities of a society which is perfecting more and more sophisticated techniques for intrusion.”
When computers were the size of people’s living rooms we were saying that there was a growing problem with data gathering powers. Our legislative codes have been outstripped by the growth of technology in this area. You could probably say that there were fewer than 1,000 cameras in Britain in 1970. Now, per capita and in absolute terms, we have the most CCTV cameras on earth. The BBC recently did a study, which found that there were more CCTV cameras in the Shetland islands than there were in the city of San Francisco. The Shetland islands have 22,000 people and San Francisco has 3 million people. That says something about the lack of regulation in this country.
You do not necessarily need a criminal offence specifically for invading privacy—that would probably be too broadly drawn to be satisfactory—but you could have a code of practice backed by a series of regulatory offences. For example, a person responsible for a CCTV camera could be obliged to notify the Information Commissioner’s Office if they had one on their property. Failure to do so could be a regulatory offence and could be backed by criminal sanctions, depending on the seriousness. There are criminal offences under the Data Protection Act, but they are rather difficult to apply to a lot of CCTV.
You can go down a variety of routes with a code of practice. It could be a soft code or we increasingly find a lot of areas of law in which a code has almost the force of law. You could come up with a lot of different alternatives. We will respond to the CCTV code of practice in due course, but we certainly think that there is a very good case for having some force of law behind it beyond a voluntary sign-up, and certainly for extending it beyond the public sector.
Mark Stobbs: There is also something about the use to which the images taken are put. I agree that we do not want to make everything a criminal offence, and there may be regulatory sanctions that can apply. Ultimately, there may be particular invasions of privacy that do need a criminal sanction, and it seems to the Law Society in particular that by simply putting a code of practice in place, the Bill is putting in something that can be watered down, that can be ignored. If there is not some sort of sanction somewhere, you wonder what the point is.
There seems to be a tension in the arguments that we have heard. CCTV is often not sufficiently effective to be useful, but we are worried about developments in technology such as face recognition, and about privacy. We hear philosophical objections on the basis of privacy and then we hear an argument that is empirical. What should be the fundamental object of any law relating to CCTV?
Isabella Sankey: I would say that the fundamental object has to be, first, to look at the number of cameras. There is an argument to be made that the Bill could go further in ensuring that, certainly in the regulation of public authorities’ use, there is a set limit to the number of cameras that a public authority can use. If it wants to go over that limit, it should have to make an argument about why it is necessary and proportionate to have additional cameras. Of course, that would be quite difficult in the private sphere, but it could certainly apply to public cameras.
On other areas of regulation, what is currently envisaged in the code is certainly a movement in the right direction about how images are used, and the standards that need to be enforced as regards who is looking at and processing the images. Those are all areas that need proper regulation—in fact, quite similar to what the Information Commissioner currently has in his voluntary codes. The key point has already been made that, if this going to be a positive step forward, there needs to be a better enforcement mechanism than is currently in the Bill. As others have said, the code could quite easily be ignored without any substantial repercussions.
Dr Metcalfe: The starting point is that CCTV is a form of public surveillance. It should be discouraged, because surveillance is an interference with privacy. There are certain situations when it is absolutely justified to interfere with privacy—for example, CCTV in an airport. That is a security zone and it is reasonable to have security in that situation. But, as a general rule, you have to show that it is necessary and proportionate. I agree with Isabella that you need to have a framework constructed around the idea that CCTV should be scaled back, because it is not possible to do an assessment of each individual CCTV camera in the United Kingdom, but I am willing to bet that the reason why the United Kingdom has the most in the world is not because we made such a judgment in each and every single case. I think we have that situation because there has been a general idea in the public mind that CCTV helps fight crime, and it has been exploited by private security companies that are very keen to sell on new technologies.
Mark Stobbs: We would go first to article 8 of the European convention on human rights about the fundamental principle of respect for private life, and say that there needs to be some clarity. There needs to be a proper debate about what you can and cannot put up, and what you can and cannot look at or pass on to other people. That should be the main aim of the law. You can have a debate about where or when that should be, but leaving it to a code of conduct or a code of practice seems to be ducking the issue from Parliament’s point of view.
Tim Moloney: The aim of any legislation should be to strike a balance between the interests of the individual in terms of privacy and the interests of society in terms of the prevention of crime. To that end, the legislation should be designed to ensure that any information is used properly and that cameras are used properly. The code of practice should seek to strike that balance between the interests of the individual and of society.
Ms Sankey posed the question of looking at the number of CCTV cameras. Do you accept that the question is not so much about the number, but about why people feel that they have to have as many CCTV cameras as they do? I was on a radio programme once with a professor who basically took the same line as you. It was a number of years ago, so there were far fewer cameras then, but the fact of the matter was, and he agreed, that a CCTV camera was perceived to give security. I know that, as does my colleague. I have never had anybody complaining to me about the number of cameras, but I have had plenty of constituents saying, “We want them.” In relation to what you are saying, why would that be? At the end of the day, the Bulger case is probably the biggest case where a CCTV camera helped with the conviction of the people who killed that young boy. For every good story, there is a bad story. I accept that. But as we have seen with previous speakers, perception appears to be everything. Are you not putting forward a line with which most people in the UK would disagree?
Isabella Sankey: This is a debate in which there has not been a huge amount of evidence and there has been a lot of rhetoric. Certainly over the past few years and, if I may say so, under the previous Government, there was definitely a drive to engender support for CCTV among the public. It is a quick fix to say, “We’re going to install some CCTV.”
Isabella Sankey: I think it is an understandable human reaction. When you see a high-profile case where CCTV has been useful, you think that this is going to help to protect me and make me safer. From a human psychology point of view, I do not think that is something you can quibble with. I am saying that the evidence on how useful CCTV has been compared with other crime detection and prevention measures has not been properly explored and explained to members of the public. So you have had a debate that has basically been mediated through a number of high profile and extremely emotive cases, which, understandably, will make people feel that they are more secure with CCTV.
But you used a case to do the opposite, so you are also perpetrating the same kind of thing. You used an example of a case where there was an overuse of cameras, and your colleague sitting beside you talked about how the local community was entrenched with cameras. Is that not the same kind of emotive speak?
Isabella Sankey: I would not say so. I was giving you a factual account of a case that Liberty successfully took and challenged. As you have said, Mr Robertson, for every good case there is a bad case. Just to be clear, we are not against CCTV cameras. As with many of the issues in the Bill, it is not a question of being for or against DNA retention, CCTV, or the vetting of people who are going to work with vulnerable adults and children; it is about getting the right checks and balances and making sure that where there are invasions of people’s privacy, there is some sort of regulation to make sure that those who do come off on the worse end of things have some sort of protection.
Isabella Sankey: I have already given you one example of a community that was very much alienated by the use of CCTV. Liberty has previously taken the case of a man whose suicide attempt was caught on a CCTV camera, which was then shown on national television. You can well understand that that was particularly difficult for that individual, and we successfully took his case as well, which found that there should be better regulation about how images are used. But we are not for a second saying that CCTV has never been useful and will not be useful in future. It is simply about having the protections.
First, I declare an interest—I am a practising solicitor. In case there are any interests that come to the fore, I declare that now.
I agree with some of the points made earlier about the public not fearing the proliferation of CCTV. It is the unregulated nature of CCTV that the public seem to be concerned about. Can I ask you to concentrate on one area you brought up, Dr Metcalfe? You mentioned the issue of Tesco having cameras around its car park. Do you not agree that, if we start getting into the area of regulating private cameras in private areas, we are going into an area where we will inevitably find difficulties, from the man in the street who wants to point a camera at his car to ensure that he can identify anyone who has been targeting it to people holding camcorders and so on? There will be all sorts of difficulties if we start regulating private individuals using private cameras on private land. Although I understand why you use Tesco as an example—I think that we can all get that example—it will also include a lot of people who are purely going about their innocent business and want to do the right thing, but they will get ensnared in that trap that I think you may well set for them.
Dr Metcalfe: Straight off the bat, fortunately at the moment you can distinguish between camcorders and a CCTV system, for the reason that one is self-contained and one is networked. We use CCTV closed camera circuits, but in this day and age most of what we think of as surveillance cameras are not closed circuit. They are networked, linked and they are accessible to a much larger category of people than we are normally aware of.
I agree that if you were going to regulate the private use of all photography it would be a nightmare, but we are not talking about that. We are talking about the regulation of the private use of surveillance powers and I think that, as the current News of the World investigation shows, there is very good reason to be concerned about private individuals and private companies using surveillance technology.
For example, Parliament has already made it a criminal offence for a private individual to intercept a communication without a warrant. That is an example of how Parliament has already got into the business of regulating private communications and private surveillance. What we are saying is that it makes no sense for Parliament to regulate phone hacking by private individuals but not to regulate the News of the World if it wanted to put up a CCTV camera in your backyard to film footage there. That seems to me a strange set of affairs.
Most of our witnesses have not responded. If you agree with what another witness says, please do not feel that you have to add to it. Also, I appeal to Members to keep their questions as brief as possible, or we will not get through anything like the number of questions we need to get through.
Am I right in characterising the argument here, from the perspective of all four of you, as being one of proportionality? I see all four of you nodding. I noticed that you focused on the codes of practice and there was a general desire to see them being enforceable. Is that also right? Is it not the case that there are many other areas in life where there are codes of practice and that they work perfectly well without the possibility of criminal sanction. I should declare an interest myself, as a member of the Criminal Bar Association. For example, I am thinking of the Police and Criminal Evidence Act 1984. That is a bulwark of criminal legislation even now, and it has very important codes of practice—does it not?—that are not enforceable in terms of criminal sanction. A breach of that Act’s very important codes of practice might damage a prosecution, but it cannot be punishable by criminal sanction. So there are examples of codes of practice that work pretty well without yet another law, are there not?
Dr Metcalfe: The PACE code seems to be quite clearly oriented towards evidence gathering. The police want to comply with the PACE codes, because they do not want to undermine their ability to prosecute the person they have arrested. It does not seem to me that there is an easy read-across to a situation of private surveillance.
For Tesco, or any other supermarket, would it not be in their interests to comply with the code of practice? We talk about offences. Would it not open the supermarkets up to the possibility of civil action on the part of an individual who is subject to this?
Dr Metcalfe: We have been talking in terms of sanctions, and civil liability is obviously a form of sanction. I am sure that Tesco would pay attention—probably more attention. It is very difficult to bring criminal prosecutions against companies in lots of areas, particularly if you are looking at fines, for example—whether the fine is rendered as a regulatory route or otherwise.
Dr Metcalfe: The point is not whether some codes of practice work well without criminal sanctions, because it may well be the case that they do. I do not agree with you on the PACE example, because it seems to me that that is oriented very much towards a criminal justice model, which does not seem to me to apply in this situation. We are talking about this particular case, given the massive growth of CCTV—I have to make the point again that there are more CCTV cameras in the United Kingdom than in any other country in the world. China has 1.4 billion people, but it has fewer cameras than we do.
Isabella Sankey: I agree with every point that Dr Metcalfe makes there, and in particular, I agree that PACE is not a good comparator in this case, because of the criminal justice element that this does not have. I also add that, for several years now, the Information Commissioner’s Office has had voluntary codes of practice that we know anecdotally are not being complied with and there are very few enforcement possibilities. Re-enacting that with no possibility of criminal or civil sanction would not, I think, necessarily spur authorities on in complying with the guidance.
I too declare an interest, because I am a member of the Bar and a door tenant at 18 Red Lion Court. I want to go to one point with regard to everyone on the panel except Tim—that there needs to be a code. Can I have a view from all of you on what you consider would be an appropriate sanction for a breach of that code? Can we start with you, Mr Moloney? The reason I begin there is because, in the past 13 years, there has been more criminal legislation than we had in the previous 100, and it is often not the case that criminal legislation is the right way forward.
Tim Moloney: As I said at the start, we consider the code to be a useful starting point, and it can only be beneficial in terms of the regulation of people who use CCTV in this way. We would not be calling for any criminalisation of breach of the code at this stage. We would respectfully take the same view that perhaps we should look and see how the code works to begin with. If there were then a perceived need for criminalisation of breaches of the code, that could be revisited in the future. I would not, however, be suggesting any particular criminalisation at this stage, or any particular penalty for a breach of the code.
Mark Stobbs : The sanction has to depend on the seriousness of the breach and, in particular, on the effect on the individuals. If there were a significant misuse of images, or if images were mislaid or leaked to somebody else, you would expect a judgment to be made depending on the number, the size of the organisation, and the extent to which you would expect it to take care.
I am asking about the Regulation of Investigatory Powers Act 2000 now. There is a requirement in the Bill for judicial approval for obtaining and disclosing communications data to local authorities. What are your views on that? Do you think, for example, that that goes far enough?
Dr Metcalfe: We very much welcome that. It is something that we have long expressed concern about. Our concern is shared by members of the public as well, particularly given the recent example from Poole borough council, which was found to be surveilling a couple who may have been sending their child to a school out of zone. That is an example of the ludicrousness of surveillance powers being used by public bodies for purely regulatory matters.
We think that judicial authorisation is an extremely important mechanism. Where we would invite Parliament to go further is to extend it to other areas of surveillance. We have a patchwork of surveillance authorisation under the Regulation of Investigatory Powers Act. Sometimes you speak to people about RIPA, and they say that RIPA was a very human rights-friendly piece of legislation, which was enacted shortly after the Human Rights Act 1998 and was developed in a very considered way. We would say that RIPA is a crude patchwork of different forms of regulation knitted together in one very ugly statute. You end up with a number of absurdities, whereby, for example, if a policeman wants to put a bug in your house because he is investigating serious organised crime, he needs to get the authorisation of a surveillance commissioner, who is usually a judge. If MI5 wants to put a bug in your house, because it is considering a threat to national security, it gets authorisation from the Home Secretary. What is being proposed here is that if a local authority wants to use surveillance powers—it cannot do bugging, of course—it would have to go to a magistrate.
We think that judicial authorisation should apply across the board. It is no different in principle from a search warrant. If the police want to search your house, they need a warrant from a judge. If the police, or any other public body, want to put a surveillance device in your house, they should also get a warrant from a judge. The good thing about what is being proposed is that it sets out that important first step. The problem is that we are not going far enough. We are addressing one aspect of a problem that has been highlighted when it needs root and branch reform.
There are a number of examples, such as the local authority that acts in a disproportionate way against someone who was allegedly sending their child to a school outside the catchment area, or the bin police and all this sort of nonsense. You agree that these provisions would have an advantageous effect on that type of behaviour and conduct by local authorities. You are supportive of that. I see you all nodding on that point, but you would like to see it extended to a wider area?
Isabella Sankey: Absolutely. I agree with the examples that Dr Metcalfe gave on how patchwork the current regime is as regards different types of surveillance and different bodies using that surveillance. We see no reason why there should not be prior judicial authorisation for all types of targeted surveillance that are available under the Act. One recent high-profile case of police infiltration of environmental protest groups has brought people’s attention to how lax the current self-authorising regime is—indeed, the current head of the Association of Chief Police Officers has called for prior judicial authorisation for the use of covert human intelligence sources by the police. When you have the police asking for prior judicial authorisation and better regulation of the use of these powers, it should be incumbent on the Government to look at going further in the Bill.
Dr Metcalfe: We do not think that it will affect the ability of the police. With respect, I differ with the senior police officers who no doubt gave evidence this morning that it will make a significant difference to the ability of the police to prosecute crimes. We know that the previous Government had a great deal of time to come up with it, but there is no evidence to show that it has at all inhibited the situation in Scotland and that police and prosecutors have not been able to prosecute serious crime, including sexual and violent crime. We think that the Scottish model is the correct model to adopt. We have some concerns about particular details—the ways in which the model has changed from the Scottish model—but we think in general that the Scottish model is the correct approach. We do not see any evidence from north of the border to suggest that it has been a problem in their ability to prosecute people.
Dr Metcalfe: It is not merely your personal data; it is your DNA, which is arguably the most intimate genetic information about you that anyone can have. Of course, what is stored on the police computer is the DNA profile rather than the sample, but there was a practice of retaining the sample as well, because as investigative techniques improved over time, they would need to go back to the sample to make new profiles. None the less, that is one core concern—a concern that a public body has more information about you than it needs.
Dr Metcalfe: That is a primary concern. The secondary concern is that it is a marker of suspicion. That is not information that the Government need to have about you if you are innocent; none the less, it is being stored, which therefore leads other people to think, “I know that your DNA is being held on the police national computer. That gives rise to suspicions in my mind.” You as an innocent person should be free of such suspicions.
Isabella Sankey: Innocent people who contact us, who have their DNA profile and, as Dr Metcalfe says, samples currently retained, are concerned about all the things Dr Metcalfe mentioned, such as stigmatisation. In addition, however, whereas they might not know their parentage or ethnicity, the police have access to material that can tell them that information. There are many different concerns. Whether they are going to feel concerned is quite personal and unique to each individual. We know that some people do not—some people volunteer to go on the database. The point from our side is that it is up to the Government to get right the framework for DNA retention, so that innocent people who do feel concerned do not have their DNA retained indefinitely.
I assume you are not far away from that position. I will add something else, and you might like to comment when you have finished on what I have asked already. I am told by the Forensic Science Service providers that they process people’s DNA in batches of about 80 samples, with some control samples in there. They are held in those batches it is not possible to differentiate one from the others, in the sense that they could destroy one. If there is one in a batch that has to be held indefinitely because someone has a sentence for a notifiable crime, the whole batch has to be held; otherwise, you have to destroy that DNA. Going back to your point that it is the personal information, those bodies are going to have to hold on to those.
Dr Metcalfe: I am not technically equipped to second-guess why the Forensic Science Service organises itself in the way that it does. The point is that any piece of genetic information is ultimately referable back to an identifiable individual. If they know who the DNA belongs to, that is a match. If they know that the person it belongs to has not been charged or convicted of a criminal offence, they should not be holding on to that material.
But they have to, otherwise they will get rid of profiles that may be necessary for future investigations. The point is that they can destroy the evidence that would identify that piece of personal information to that individual, but it will still have to be held. I am concerned about the principle: is it the personal information or is it the fact of being on a searchable list? That is the question.
Dr Metcalfe: It is both. It is the stigmatisation of being on a list that is a police database, built around the prevention and detection of crime. Some people are on it and some are not. The people who are on it should be people who have been convicted of criminal offences. If you commit and have been convicted of a criminal offence in this country, it is a reasonable restriction on your private life that the police from this time onwards have your DNA profile on file.
Isabella Sankey: Yes, because the usefulness of DNA comes from what it is useful for. If you are investigating a crime where DNA is relevant, by all means, the police should be able to take it. The idea that it can be taken for, say, an offence of fraud, where it will have absolutely no bearing on any type of evidence and investigation, seems perverse.
We heard evidence this morning saying that about 20% of DNA profiles currently held are those of people who have never been convicted. Generally speaking, under the law of this country, those people would be considered innocent. Do you think that it is more proportionate and more targeted not to hold the DNA of those individuals indefinitely on a database, as is the case for the Scottish model proposed?
Isabella Sankey: Absolutely. Our fear is that although the Bill goes much further than the previous Government were prepared to, and we think it is much more likely to comply with the S. and Marper judgment, there are significant loopholes that would effectively allow for indefinite retention via the back door—the national security exception and the idea that if someone is arrested or charged with a serious violent or sexual offence, their DNA may be retained for three years at first, renewable for two years. My reading of the Bill is that there is no finite limit on the retention.
Would you be happy if there was a finite limit? Liberty’s submission says:
“We are further satisfied that the decision to retain the biometric information of those charged, but not convicted of a sexual or serious offence for three years represents a fair and proportionate approach.”
Isabella Sankey: We have always said that the Scottish model, which allows for an additional three-year retention once someone is charged, is a proportionate way of dealing with the difficult issue of the lack of convictions, particularly in rape cases. The bit that I am less keen on in the Bill is that that can kick in at the point of arrest, where the threshold is so low, and where you are not talking about exceptional cases. Being charged and then the case not going ahead is pretty unusual and exceptional. That is where you should make the exception, not at the point of arrest. However, I understand that, particularly with the national security exception, there is no finite limit on how long DNA can be retained, and we think that that is problematic, particularly given that it is almost impossible to challenge retention by a judicial review or any other means.
You seem to suggest that the DNA of people who have been arrested or charged with minor offences should not be cross-checked. From experience, a number of people—not hordes of them, I know—were arrested for minor offences and then subsequently, through DNA, it was found out that they were perhaps involved in a murder, rape or serious offence many years before. You would effectively exclude those.
Isabella Sankey: If I could clarify, I was not referring to minor offences but offences where DNA was relevant. The offence might be a minor assault, but that is an area where DNA is relevant because there potentially is DNA evidence. Our argument is that where DNA is not relevant to the offence for which someone is arrested, it is not proportionate to take their DNA.
Dr Metcalfe: That was the point that I was trying to make earlier, and I am sorry if that was misunderstood. The argument is not that the police should never take DNA in minor offences. If it is a minor assault, you will want to know whether that person has been suspected of a more serious violent offence.
Dr Metcalfe: Yes, but my point is that the police should not do that unless they have reasonable grounds for believing that taking the DNA will help them catch a person. If they are looking for a violent offender who is unidentified and they pick up a person for a minor violent offence, I think that that is reasonable grounds. If they pick up a person for passing a bad cheque, I am not quite sure that I would go that far. As the Bill stands, you would have the power to take the DNA and run a cross-check in both cases.
Isabella Sankey: I would also like to clarify that although we do not believe that it is proportionate to take DNA on arrest for all recordable offences, which include things such as drunkenness in a public place and begging, for example, our real concern is about retention and always has been. The current retention policy means that you have over a third of the black population on the DNA database, and almost two thirds of young black men on that database. Here, again, is the rub between privacy and racial discrimination.
Apologies to all Members who have indicated that they would like to continue exploring the subject, but we really have to move on, I am afraid, to counter-terrorism pre-charge detention.
May I ask each of the witnesses—I guess each and every one will be in favour of the 14 days, and some may even be favour of less than that—to comment on the Government’s proposals to have emergency legislation in place to extend the 14 days, should that be necessary? What sort of process do you think would be necessary to make that work? One of the things that came up this morning from the police was that you get to 11 or 12 days and think, “Oh God, we might need more than 14.” How do you do that without prejudicing the fair trial for the individual concerned, given the seriousness with which, presumably, Parliament would have to take the application for an extension because of an individual or case? What sort of process would you like to see happening if there was an emergency, or do you not think that this emergency legislation option should be available?
Dr Metcalfe: Do I think that there should be provision for emergency legislation in general? Yes, absolutely. Parliament has to be able to legislate in an emergency. Should this particular device be used? Does it qualify as an emergency, and would it be an appropriate response to an emergency? I have great difficulty with that. First of all, I do not know how we identify the kind of emergency in which the appropriate response is extending the current period of pre-charge detention from 14 days to 28 days. In the kinds of emergencies that we have looked at, and if you go back over the history of emergency legislation—fire, flood, famine, bombs dropping on London and all the rest; look at the emergency legislation that was put in place in world war two—it was not about extending the period of pre-charge detention in terrorism cases. If you had an event that qualifies as a genuine terrorist emergency, and the police came to you and said, “We are concerned that there is a nuclear bomb somewhere in central London,” clearly the response would not be just to lift the current period of pre-charge detention from 14 to 28 days. I hope that they would rather do more than that.
It seems to me strange from a criminal justice perspective that the period was always explained as being about evidence gathering, but as we have seen from looking at the detail of a number of these cases during the terrorism debates, in fact it was really about the role of the Crown Prosecution Service and its ability to charge using the threshold test. I do not really know, if there is an emergency, what the draft proposals would be an answer to, and how they would help resolve it.
Isabella Sankey: We are, as you have guessed, Mr Coaker, pleased to see the limit come down to 14 days. When you compare it with the length of time a suspect can be held before being charged for offences that also are complex and involve a lot of investigation, such as organised crime, 14 days is already more than enough in our view. As Dr Metcalfe says, based on recent cases where people were held for extended periods of time, we do not see that more than 14 days will be required.
We briefed parliamentarians, during the attempted legislation on 42 days, about the Civil Contingencies Act 2004, a particularly chilling piece of legislation, in our view. We took legal advice on that from David Pannick QC and he agreed that it would be capable of being used, in a genuine emergency, to extend the pre-charge detention limit to an extended period of time. The reason why that idea was not favoured by the then Government was that it would have to be a genuine emergency and could not be something that could be flicked on and off more easily.
We believe that there is already legislation on the statute book to deal with a genuine emergency—a 9/11-style emergency, God forbid. We do not think that any additional legislation would be required. We completely agree about the difficulties that you mentioned in Parliament passing anything like this in a hurry, particularly given that parliamentarians would not be able to discuss particular cases, and one suspects that the Government would only try to push something like this through because of particular cases. We think that that would be problematic. Of course, there may be reasons for emergency legislation in all sorts of contexts, but we do not think that this is one in which emergency legislation should or would be required.
Tim Moloney: This is perhaps where we differ. We also welcome the reduction from 28 days to 14 days. Many of us in this area are very conscious of how difficult it is for suspects detained in police custody for up to 28 days. It is worse than being in prison; it is solitary confinement. Suspects find it very difficult, so we welcome that reduction, but we are conscious that there may be occasions on which, on taking advice from the appropriate authorities, it is thought necessary to increase that period of detention. We cannot envisage every possible situation, so we are conscious that it would be beneficial for the Government, on taking advice, to be able to enact emergency legislation of this type.
This morning we had interesting contrasting evidence. Lord Macdonald said that he believed that the police would know on day one, virtually, whether there was a requirement to take it beyond 14 days, whereas Steve Kavanagh from the Met thought that by day seven it might have become clear that they needed to push it slightly beyond 14 days. Do you have a view, from your experience, of which of those scenarios is most likely? Clearly, if it is knowing on day one, it may be that the civil contingencies type of legislation is required to kick in at that point.
Isabella Sankey: My understanding is that, of the very few cases over the past few years in which the police have gone beyond 14 days, they have not actually needed to. That has been the advice of lawyers involved in the cases, who have said that, based on police interviews, they could have charged the individuals or released them much earlier. Based on that empirical evidence, we frankly do not see the need to go beyond 14 days, particularly when you bear in mind all the other innovations that we have had over the past few years, which, of course, include threshold charging, the proliferation of lower order terrorism offences and many other innovations to do with encryption under RIPA and so on. It is probably not the best answer to your question, but we frankly do not see the reason to go beyond 14.
Mark Stobbs: We agree. It is important to remember that these arrests will not take place out of the blue; there will have been a lot of work done before the arrest takes place and the investigation does not finish on day 14. We think that the police ought to be able to put some charges at that stage.
Tim Moloney: To try to answer your question, I think neither day one nor day seven could be definite. It might be that things come to light during the course of the first six days that require the investigation of other persons who may be connected to the investigation, which might necessitate going beyond the 14-day stage. It might arise at the 10-day stage. It would be very difficult to put a time on it.
We know that there has been real concern about stop-and-search for the past number of years. In 2009, 100,000 people were stopped and searched, yet not a single one of them was arrested for terrorist-related incidents. There have also been issues with regard to certain categories of people, such as minorities and photographers, being arrested using these powers. Looking at the Bill as it is, do you agree that it is the right, balanced and proportionate way forward?
Dr Metcalfe: No. I am sorry to say that it does not go far enough. I have to recognise that a great deal of good work has been done. It is a much better provision than section 44 of the Terrorism Act 2000 was. However, it does not go far enough, and it is likely to prove to be incompatible. The main reason for that is that the only way to challenge it as it currently stands is by way of judicial review. There are insufficient safeguards against an authorisation and, despite the requirement that it be necessary and proportionate, the only way to challenge it is ex post facto. The better way forward would be to seek prior authorisation from a Crown court judge to have the notification put in place. It goes back to the point about prior judicial authorisation being a vitally important safeguard. We agree with the principle that there should be a blanket search power without reasonable suspicion of this kind in emergencies. However, we do not think that it would be proportionate for such a search power to be authorised by a senior police officer, even if they have the necessity and proportionality checks.
Mr Moloney, with regard to where we started from, we have moved from having no grounds to having reasonable suspicion, which is the same as for a criminal charge. We need to have that, so by putting it on the same level, we have come a long way.
Isabella Sankey: We took the case of Gillan and Quinton to the European Court, and we were enormously pleased with the result of that case. Enormous credit to the current Government for implementing that judgment by taking swift action to, first of all, suspend a power that has been so counter-productive and has alienated so many in the Asian community.
I agree with Dr Metcalfe that the Bill could go further in a number of respects. We are particularly concerned about there not being a limit on the number of consecutive authorisations that can be made, and we are also concerned that there is not a firmer limit on the geographical extent of authorisations. But there are a number of very welcome reforms in here, and we are delighted that progress has been made.
Could I ask each of you what you think about the fact that, although it is all very well to celebrate what is in the Bill, it is already law through the remedial order that came into effect on 18 March? Given the importance that you have attached to these changes, what do you think about the fact that they have been brought in without any reference to Parliament, without any discussion in Parliament and without any opportunity to debate it? The clauses that you have highlighted and said you are pleased about have already come into law. What do you think about that?
Dr Metcalfe: It is appropriate for the police, because by suspending the operation of section 44 wholesale you take away what in principle could be a valuable power in specific situations. Our criticism of the use of stop-and-search without reasonable suspicion was not that it could never be justified. If, for example, police receive a threat to St Paul’s cathedral and they want to establish a cordon around the City of London and use stop-and-searches, they might want to search everyone’s bag or everyone’s vehicle as they enter the City of London. It would be reasonable to use section 44 for a very limited time—say, a 24-hour period—drawn right around the City of London to effect that.
Dr Metcalfe: The point is that back in 2000 Parliament made legislation for a blanket power, which was too broadly drawn. It is reasonable for the Government not to hamper the police operations for a limited period, but we do not think that this is proportionate enough. We think it is a great improvement on section 44. We think it needs to go further, but we think it is reasonable that the police should still have the power in exceptional cases. I would worry if the Home Secretary had suspended the operation of section 44.
But the Home Secretary did suspend the operation of section 44 in July last year, which is why the guidance was changed, and it was changed again, and why we have had the remedial order in front of us. The point that I am making, however—I wonder what everybody else thinks—is that Parliament has not had the opportunity to debate the clauses in the Bill; the remedial order that was passed and came into force on 18 March puts into effect these clauses before we have debated them.
Isabella Sankey: I take your point, Mr Coaker, about the importance of parliamentary scrutiny. In fact, we are like a broken record, arguing so often about how important parliamentary scrutiny is; that measures that are meant to be in primary legislation should not be in secondary legislation; and that your role is so vital in ensuring that measures are proportionate and human rights compliant. That said, when any Home Secretary decides to use Human Rights Act powers, Liberty will not take issue with that. We think that the Act achieves a fine balance between parliamentary sovereignty, which is absolutely crucial to our style of Government and our history and traditions, and ensuring that people’s rights are protected when you have a judgment, which we had in this particular case, from the European Court of Human Rights saying that the power was unlawful.
Dr Metcalfe: The opportunity for Parliament to go further, as we would encourage it to do. We think it is right for the Home Secretary to take the remedial step, because it is right for the police to have a proportionately drawn section 44-type power. We do not think that the remedial order power is proportionate enough, and we think Parliament should go further. I do not quibble with the Home Secretary for taking that step in the interim. I do not think that it pre-empts your obligation as parliamentarians to deliberate on what the proper rules should be.
Obviously, we are concerned to keep vulnerable groups safe. I wanted to ask the panel whether they had any concerns about some of the deleted activities in the regulated category, and what they thought about the concept of the controlled activities being removed.
Mark Stobbs: We welcome the approach taken in the Bill, which seems to us a proportionate one that will be a substantial help to employers and many others. We do not particularly see that people will become more vulnerable or more at risk as a result of this. One of the things we particularly welcome is the recognition that regulation can happen in a number of ways; that solicitors generally are very highly regulated; and that the sorts of things that the original Bill was seeking to prevent are largely covered by the existing regulation. We are glad that the rules do not apply to solicitors in respect of legal advice to children. We are slightly surprised that they do cover them in respect of other vulnerable people, and there seems to be a very strange anomaly there, which we think ought to be looked at.
Isabella Sankey: Liberty takes very seriously the protection of children and vulnerable adults. Indeed, under the Human Rights Act the Government have positive obligations for the first time in domestic law to protect life and to protect those who are vulnerable. We think that the Bill strikes a good balance on this issue. We absolutely welcomed the creation of an independent body to perform the very sensitive function of ensuring that those who were given employment with vulnerable adults and children were appropriate. One of our major concerns previously was that under the enhanced Criminal Records Bureau disclosure framework we found—this is something that lots of people contacted our organisation about—that employers were always erring on the side of caution if even the smallest piece of soft information was passed their way, regardless of whether the individual could refute the circumstances, or explain information that on the face of it might have made them seem inappropriate. So we thought—I think this was very much the implication of Sir Michael Bichard’s report into the Soham murders—that having an independent body would be a very good way of squaring a difficult circle, so that past criminal convictions could be taken into account along with sensitive information that was not conviction-related, but was relevant.
One thing that we were concerned about when the ISA was created was that the enhanced Criminal Records Bureau check was going to continue alongside it. We did not really understand the point of that. We were also concerned that under the Safeguarding Vulnerable Groups Act 2006, many more people would need vetting who had not previously been vetted. Arguably, they would be categories that it was not necessary to vet, whether they were receptionists, cleaners or other categories of people—that extra controlled activity category.
On that point, do you think that there was a lot of misunderstanding about that? One issue that was raised was about well-known authors going into schools and reading to classes. As I understand it, they would never have been covered by the provisions, but there was a lot of misinformation. Do you think that that was part of the problem?
Isabella Sankey: There may well have been misinformation, but one of the other concerns we had was that the provisions were quite vague in the way that they were defined in legislation. There might have been some quite understandable misunderstandings, which then, of course, can lead to misinformation. Anything that tightens up and gives a bit more certainty is welcome. We would not for a moment want to see a regime whereby people who were spending extended periods of time in contact with children and with vulnerable adults were not being properly vetted beforehand. We hope that as the Bill is given further scrutiny we can all be absolutely sure that that will not be the case. There needs to be detailed scrutiny of those provisions, but more concerning for us is that the Bill seems to be carrying on the two-track approach of enhanced CRB alongside the ISA. It does not seem to make much sense to us, as to why both are required.
Can I ask one other question about barring? It is about the amendments to people who will be on the list for barring. Only people who have worked in regulated activity, or are likely to work in regulated activity, would be on the list. That concerns me, because people make all sorts of decisions in their lives about what kind of careers they have, and they often switch midlife. Does the panel think that we might be setting ourselves up with a problem by having that amendment?
Isabella Sankey: It is important that anyone who starts working with vulnerable groups is properly vetted. My reading of the Bill is that that is not prevented, but that the onus is now going to be on the employer to ensure that they are vetting people they decide to employ. Our experience of that framework is that employers are very keen not only to vet, but to get enhanced CRB and get as much information as possible. We do not see the onus being on the employer as problematic per se. Our concern would be to make sure that people are properly vetted when they are about to start in relevant employment.
There is not enough time for us to ask another question and get an answer, so that brings us to the end of the time allotted for the Committee to ask questions of these witnesses. On behalf of the Committee, I thank you for your contribution.
Sir Roger Singleton: I think that they do. The Bill adopts a different approach to its predecessor, but in general, our view is that the safeguarding interests of children and young people are well considered and they are protected in the Bill. There are lots of aspects that we welcome, such as the abolition of the registration scheme, the auto-bar provisions, the abolition of controlled activity, and the removal of prisoners from the vulnerable adults category.
Our residual concerns—we are still in the process of exploring our understanding of those with officials first, and later with Ministers—are whether the interaction between the new regulated activity, or work that will attract a mandatory CRB disclosure, and other work with children and young people may contain one or two loopholes. In putting those points to the Committee, our intention is not at all to increase by a single role or function the number of people who have to be in regulated activity and, therefore, are the subject of mandatory disclosure. We seek, however, to ensure that the information flows on people who are known to have engaged in inappropriate conduct towards children and vulnerable adults are made known to prospective employers, so that they can consider whether, in the light of that, they should employ or engage such people.
In short, yes, we will be content from a safeguarding perspective, which is what we bring to the party, as it were, to implement the scheme. We have indicated one or two areas where we think that safeguarding could be improved without any violence to the fundamental principles that the Government seek to achieve.
Sir Roger Singleton: I think that our concerns are not about the categories but about the concept of supervision. What will “supervision” actually mean? I do not know whether the Government’s intention is to seek to define it, which I think will be challenging, or to leave it to local interpretation, which could lead to widespread interpretation. That is the point that we want to look at with some care when ideas develop, rather than saying, “Well, we think, for example, that cleaners in old people’s homes should be included in regulated activity”. That is not at all an approach that we are seeking to adopt.
Since you mentioned supervision, would you agree that if a vetting process is too simplistic it tends to undermine the personal responsibility of supervisors and employers for knowing who their staff are, what they are doing and so on?
Sir Roger Singleton: One of the challenges that we all face is that vetting and barring can be vested with too much comfort and authority. The intention is to underline the responsibility of the employer or the organiser of volunteers, and that is right. The approach should be that the right relevant information is provided to employers, so that they can make those sorts of decisions.
When I have stood up and spoken about both the former scheme and these proposals, I have said, “Look, if you go out of this room and forget everything I have said, remember this one thing—that your responsibility as an employer is not diminished one jot by these proposals. These are supplementary. You have every continuing responsibility to engage in proper selection, proper supervision, proper induction and proper training.” However, I agree that given where we are in terms of public communication at the moment, there is a continuing danger, which I hope we can address in the coming months.
With that in mind, my final question for now is about volunteers. There is general cross-party consensus that our society needs more volunteering. Do you agree that volunteers can be put off by vetting and, if so, what sort of measures would you suggest for voluntary groups?
Sir Roger Singleton: I have tried to look at the evidence on how volunteers are put off and frankly it does not swim in a single direction. I understand the irritation of people who are offering their services, time and skills for free at being put through what may very well be perceived as a bureaucratic process.
I would like to add a point to your question if I may, Mr Baker, without seeking to avoid it. When I did a piece of work that looked at the earlier scheme, the National Confederation of Parent Teacher Associations canvassed the views of parents. Three out of four parents said that if they personally could not be responsible for deciding which adults looked after their children, the adults should be subject to some form of check, basically to see that they were not unsuitable to work with children. I have to say that for all my massive support of volunteers, and I have worked with thousands of them during my years with Barnardo’s, consideration of relatives and parents should sit alongside the debate about whether checking is off-putting to volunteers.
So 16 and 17-year-olds are not treated as children. There is a gap and then, if they were vulnerable adults, they would be in that category. Is that correct? There is a gap?
Sir Roger Singleton: Yes, that would be true. The evidence is that girls, particularly in years 11 and 12, are the subject of inappropriate conduct mainly, but not exclusively, by men. We have not raised that because we understood that there had been quite a bit of discussion about it and that the matter was well understood. If you are specifically asking whether we feel that it is appropriate that the age range for the definition of children should be up to 18, our experience of barring would be to say that it should, because there are young women who are vulnerable in those circumstances.
May I ask about information that is passed to the ISA at the moment, but, in the future, would not be covered by a regulated activity? I want to get some idea about what percentage of information would fall into that category and, also, what would happen to that information if the Bill becomes law.
Anne Hunter: That is one of our concerns. We get referrals for people who are currently in regulated activity, and we will not in the future. When that information leads to a bar, they are barred from posts that they will then be able to work in once the definition changes, even though that was the post in which they committed the behaviour that led to them being barred. Our concern is that if we receive information about someone who is working with children and vulnerable adults but not in regulated activity, and that behaviour relates to harm for children and vulnerable adults, if we cannot identify that the person has previously worked in regulated activity, we will not be able to bar them. In theory, if they are not working in regulated activity, it is not an issue, but if they subsequently apply to work in regulated activity, or happen to be working in regulated activity that we are not aware of, we could technically, at that point, consider barring them because they are now applying, but the age of that information would be cold.
Anne Hunter: Yes. Obviously, we would have provisions on how long we would retain the information, in line with all the information that we keep. If we have had a referral and the behaviour is relevant—not if it is irrelevant—in that a child or a vulnerable adult has been harmed, we would retain that information in case that person applied to work in regulated activity at some point in the future.
Just to be clear, if there is a bar on somebody working with children because they were a teacher before and information was available that resulted in a bar, and they then chose to be a volunteer under supervision in a classroom with a teacher, helping with reading, that information about the bar would not be available because it is a non-regulated activity. Is that correct?
Could I ask one other question, which relates to the Education Bill that is currently going through Parliament? That refers to a list of teachers who are barred through the General Teaching Council. That information is held by the Department of Education. As I understand it, that list is available to the general public and to schools. If a teacher is barred on that list, that information is available in the public domain, but you are saying that in the particular instance that we just discussed, the barring information that you hold would not be available?
Anne Hunter: As far as I am aware—I am not familiar with that legislation—the information that would be available to parents and to other people who want to check would be on whether the teacher is registered. If the teacher is barred, they would not be registered. That is how it works at the moment. A parent can check whether a teacher is registered, and if they are barred, they will not be registered, but the parent would not be told whether they are barred. I do not understand how the legislation will work once the General Teaching Council ceases to exist.
That is very helpful. My understanding, from the answer that I received to a parliamentary question earlier this week, is that it is a barred list. It is not if you are not registered; it is if you are actually barred. I will pursue that somewhere else.
Mrs Mason: Yes. First I want to say that, in terms of the review that I have prepared, my fundamental underlying belief is that public protection comes first and foremost, but we can be more proportionate in how we disclose and give information to employers to allow them to make the best decisions. In circumstances such as the example you have just given, there need to be good and safe employment and recruitment practices, as I envisaged when I wrote my report. If, for example, a teacher had done something so serious that it led them to be barred, the police should have been involved. If there was a conviction, it would obviously be disclosed in an enhanced criminal record check, if they were engaged in non-regulated activity—as a volunteer, for example. If there had been no conviction but there was local intelligence information, a chief officer would, again, make a decision about whether it was relevant to release that information. If good and safe employment practices are carried out and proper guidance is given to employers, they can get the right information to look at these issues.
Sir Roger Singleton: That is my understanding. The employer of a person who is prospectively working with children and young people in non-regulated activity has the option to apply for an enhanced disclosure. The enhanced disclosure will not reveal whether the person is barred, but it will reveal information about any criminality—cautions, convictions or police soft intelligence.
The concern that we have—this is one of our three little loophole points—is that we estimate that one in five cases of people being barred have not been near the police. The proportion is greater in relation to vulnerable adults than it is in relation to children. They have not been near the police; therefore, if, for example, a male teacher barred from working in schools wanted to volunteer as a Sunday school teacher and the parish priest decided to apply for a CRB disclosure, if the grounds that led to the barring had not involved the police, the disclosure would come back, in the jargon, clear. Although we understand why we are there on that, we feel that it gives false comfort to the parish priest in that circumstance, because a reasonable belief would be that there are no known grounds for concern. That is a small adjustment that we think would improve safeguarding and, I have to say, would improve public confidence in the scheme, too.
Mrs Mason: I hear what Sir Roger Singleton has to say on those matters. I think, however, that if there are serious concerns, employers need to be educated to refer matters to the police. Quite frankly, it is not only the ISA that might want to share information. I sit as a deputy district judge, and I have to see safeguarding information in respect of children. If the police have information when those safeguarding checks are carried out, that information goes to the courts and will come to a judge’s attention. If an employer only makes a referral to the ISA and does not make any referral to the police to investigate, that information is lost to the criminal justice system. If it goes through the police, the police obviously do a relevance test in deciding whether that information should be released. So there is a proportionate measure, but it is also fairer, correct and safer because the whole criminal justice system can share that information if it is relevant. We are talking here about proportionality and safeguarding.
Sir Roger Singleton: No, Sir, I do not think you are. It is not in the Bill, but it was in the review of the vetting and barring scheme that the Criminal Records Bureau and the Independent Safeguarding Authority should merge. In a sense, there are obviously structural and consequential implications for staff, depending on how that is managed. In relation to the primary function that the ISA has, which is to maintain the lists and to consider whom it is appropriate to add and, indeed, take off the list, no, I do not think our function has changed materially at all.
Sir Roger Singleton: I think you are overstating what I said. The overwhelming majority of our views and feelings are of comfort that this is going to do the job. The ISA board’s concern relates to three points. I have just given an illustration of one. It is a different approach from the approach that the Safeguarding Vulnerable Groups Act 2006 took.
Sir Roger, just to pick up something you mentioned a few minutes ago, you talked about soft intelligence. That sounds like a material factor in deciding the course of what people are allowed to do. I am afraid that I do not know what it is. Could you just walk me through what soft intelligence is and how it comes to be recorded?
Sir Roger Singleton: Yes. ACPO would slap my wrists for calling it soft intelligence. It is basically police information. It might be broadly one of two types in this area—these are the only disclosures that I see. One, it might amplify on the statement of a caution or conviction that is on the disclosure. That is one type—it may give the circumstances. The second type, which is more contentious—Mrs Mason may wish to comment on this because it is as much her area as ours—is where, for example, the police may have investigated allegations of an inappropriate relationship between a care worker and a young person in the care home. It gets to the point where the police decide—perhaps because the young person refuses to co-operate further—that the prospect of a conviction is not there and therefore they do not proceed to court. Under the police intelligence system, they may record the fact of that investigation.
Thank you. Sorry, just to be clear, the fact of that investigation means that it is recorded that there was an allegation, not that there was a conviction or proof of wrongdoing?
Mrs Mason: I am happy to amplify. Intelligence is something that has vexed and taxed me for some time—in fact, since I came into post—because I realise that it is collected by the police for their internal use, but it is then disclosed in a manner that is perhaps not always fair and proportionate, although there are times when it is absolutely essential that that information is revealed. For example, there was a real case where a man who applied for an enhanced check to work as a tennis coach at a primary school had no convictions, cautions, warnings or reprimands, so in that sense it was clear, but the local intelligence held by the police suggested that over a period of five years there were instances of his assaulting four individual girls aged between five and nine. The chief officer thought that that was highly relevant to disclose to the employer, and that information went on to the enhanced CRB check. It is absolutely right in such circumstances that that sort of information is given.
On the other side of the coin, however, information from local intelligence can be revealed as in the case of a 13-year-old who was arrested on suspicion of assault, but who was not identified as the offender and the CPS said that it would not take any further action against her. When she turned 16, however, she applied for a CRB check to work on an external work placement as a nursery nurse and that information was released, so it was not a clear check and she was told that she could not do that job. That is a real-life scenario. That is totally disproportionate, because she was not found guilty; there was no conviction, and on the local intelligence held it was clear that it was not even her.
Intelligence can form a vast array of anything from one to 100 in its relevance. In my discussions with ACPO, it has said that it is really about who disclosed it and when; the nature of that source; the relevance of that information; and how many other incidences there are. It is a decision that needs to be taken by a chief officer under a quality assurance framework test. It is very complicated, but when it is done right it gets the right results.
May I ask a tiny follow-up question? I am not a lawyer, but I am astonished that in the first case that you mentioned the man was not prosecuted. I think you mentioned assaults on children aged five to nine. It seems to me astonishing. If he is guilty of such a thing, I want that person put in prison. Equally, if a person is not guilty and he has had five allegations, do we just get to a point where five allegations amount to a conviction? To me, this seems to be the nub of such measures. Would you agree that it is the heart of what we are doing?
Mrs Mason: It is very worrying, which is why the police keep this information. As to the reasons why and wherefore—I am a family lawyer, not a criminal lawyer by practice—there could be many reasons. The child might not want to give evidence, or the CPS might not feel that it has enough to charge. There could be a whole host of reasons. That information is still really, really important because it contains information that is very serious in terms of safeguarding. It is absolutely right in certain circumstances that that is released.
Well, Sir Roger, can you just explain a little bit more about what the ISA actually does? I should declare that I have visited the ISA on several occasions and have discussed this with some of your caseworkers. I have also worked in high-security prisons and read the court reports of many offenders, and I have observed the fact that in very few of the serious convictions is it the first offence or the first victims. There is clearly a lot of crime going on, and there is information that if it had been passed on and dealt with properly could have prevented crimes. There is an idea that the ISA collects information, and that it probably errs too far on the side of caution and bars people when perhaps common sense might dictate that it should not. Can you explain the process that you go through and the checks that you perform internally to make sure that that does not happen, and the appeals that people can lodge with you to ensure that people are not inappropriately barred?
Anne Hunter: When we receive a referral there are a number of tests that we have to check before we take any action. The first one is whether we have any evidence of relevant conduct. There was a lot of information in the press which suggested that we barred people because they were lonely, or because of gossip and innuendo, or for various other reasons. On the contrary, we actually have to have information that a child has been harmed or put at risk of harm, or a vulnerable adult has been harmed or put at risk of harm, before we would look at the information. This is ignoring the auto-bar process, which is a separate piece of work. If the information that comes to us did not demonstrate that, we would not take action against the person because we have to have that harm to a child or vulnerable adult.
Having established that the information that we have received suggests that harm took place, and if there is no criminal conviction or caution, or a finding of fact by a competent body such as the General Medical Council, we get information to see whether we believe that what we call “relevant conduct” took place. We weigh up the evidence very carefully to ensure that we are satisfied that the behaviour took place. We do not have to reach the same standard of proof as a court, but we have to be satisfied on the balance of probability that the behaviour took place.
If we are satisfied that the behaviour took place, we look at the information that we hold to establish why we believe the behaviour took place, and whether this was a one-off accident that will not be repeated or the result of premeditated behaviour. We have a risk assessment process that caseworkers are trained to undertake, which looks at the behaviour and all the other information that we receive. Some of that information might be about other convictions that the person has, or it might just be other details that we have about how they have behaved in their role—their job. It might be information that the employer has provided to us about previous disciplinary hearings. We collect a range of information, and if there has been police involvement we will get information from the police.
We put together a picture of the person and make a decision about whether we believe that person presents a risk of harm to children or vulnerable adults. If we decide that they do, we write to the person, giving them a copy of all the information that we hold and saying, “This is what we hold. These are the reasons why we consider it is appropriate to bar you,” and we give them the right to make representations in relation to that information. When we receive the representations—if the person makes any—we reconsider the information that we hold to ensure that our findings of fact are still correct. It might be that the person provides information that challenges those findings, and that we decide that they were not accurate because of the new information that impacts on them. We will also reassess whether the findings of fact are accurate, and whether any information is provided that suggests that the level of risk changes.
If, at the end of all that, we are satisfied that relevant conduct took place and we believe that there would be a risk of harm in the future from that person if they were allowed to work with children or vulnerable adults, we bar them. When a person is barred, they have the right to appeal against the decision, and they can appeal on a finding of fact. If we have decided that behaviour took place and there is no caution or conviction, the person can challenge that on appeal. We can also be challenged on a point of law, which could be that the decision that we made was totally irrational—that based on the information we had it was not appropriate to bar.
I am a little confused about the statement that Sir Roger made earlier, that the main concern of the ISA are those cases in which an individual has been barred for reasons that have not been disclosed to the police. Why, if you have a collection of information that is so serious that you feel that a person should be barred from engaging with children, has that information not been passed to the police? Mrs Mason commented that soft intelligence included in CRBs takes in such a range of intelligence. Are you not permitted to pass on such important information to the police?
Sir Roger Singleton: I think it is probably true to say that the majority of cases that involve children have involved the police. There are some that do not, for example, a school might decide, on the face of the information that it has, that a person has behaved inappropriately. It challenges the individual, who says, “I’m going to resign.” The school is so relieved that it lets the bursar bundle him out of the back door. There is no referral to the police, and that is the end of the matter, except that the school should refer it to us. If we are in possession of information that a similar thing happened three years ago and we took a decision at that point not to bar, we start to put those two things together and say, “What is it about this man’s behaviour that leads to this situation?”
I understand that, Sir Roger, and I agree with Mrs Mason that schools should refer such cases to the police in the first instance, and that we have a duty to encourage them to do so. My question is not whether schools should do so; it is this. Once you have that information and you have made a decision about firing, why are you not communicating that decision to the police, along with the information on which you based it?
Sir Roger Singleton: I see. I would like Anne to come in, but there are occasions when, if we believe that a serious criminal offence has been committed, we first of all encourage the school to report it to the police, or, exceptionally, do it ourselves. But we do sometimes deal with information that is less specific and much softer than that. It might even be that the police have been consulted informally and say, “No, you sort it out within the school,” and do not record anything, so there is nothing on the record.
But then what about all the soft information to which Mrs Mason refers that is commonly included on CRB checks? That is exactly the kind of information that you are referring to. You choose not to refer it, and you say that the police do not record it, but Mrs Mason says that they do. I am unclear.
You said that the reason why you did not refer such information to the police is that it is soft information and you do not consider it necessarily as evidence of a criminal offence. However, in the evidence that we just heard, Mrs Mason said that CRB checks commonly include soft information such as that. Why do you not refer that information and remove your concern entirely on that basis?
Sir Roger Singleton: That would be an option open to us. We are not under a statutory duty or obligation to do so. I think that the views of the police would be an important thing to gain on that. Without coming away from the point that you make, a piece of work that the Department of Health carried out revealed that in relation to inappropriate behaviour towards vulnerable adults in care homes, some 50% of concerns that led to dismissal or agreed resignation were not referred to the police. I lay the information before the Committee for it to consider, but at the moment, it is not our duty to police policing activities, if I may put it that way.
Well, it is your duty to ensure safeguarding. I would have thought that one way that you could do so is to ensure that the criminal justice system has the information that it needs, but that is my personal view.
This follows on from what we have been talking about in relation to clauses 77 and 79. Most of the questions are for Mrs Mason, but all of you should feel free to contribute. Do you envisage any problems arising if individuals are allowed to see what the disclosure will be before their employer gets it? Are you happy with that?
Mrs Mason: I think it is much more fair and proportionate. I carried out a wide range of consultations with lots of different types of person, stakeholders, charities and organisations, and I have to say that most people were very much in favour of the “one certificate” approach, because it is much fairer and more proportionate.
We talked about the alarming type of local intelligence that can be disclosed on a certificate. It can go from something very serious to very minor, but a lot of employers are still under the false apprehension that if a check does not clear, one cannot employ someone. I spoke to a head teacher who said that he still meets head teachers today who think that. One of the examples that I gave in my review was of a teacher who had a penalty notice for disorder—not a conviction—for excessive standing at a football match. That was revealed in local intelligence. He was very worried about it and thought he might lose his job. If he had seen that first, when that certificate was disclosed to him, he would have had an opportunity to put that right. He would have had the opportunity to go back and say, “Is it really relevant that this is disclosed? Does that make me a risk to children that I got a bit excited at a football match once?” Someone can then make a decision on that. He should not have to be at risk of, or fear, losing his job over that. It is about being proportionate and sensible.
Yes. Having said that, I was quite excited at the weekend myself.
My information is that many of the checks were group checks. When the airports were being done, they were done en masse. The checks therefore did not come from the individual; they came from the airport authorities. What happens in a case like that—where the airport authority has paid for the checks to be done, which are part of the process—when the authority does not get the reply from the system that it would expect to get? What happens when it goes to the individual and that individual just disappears?
Mrs Mason: If an individual wants a job, it is for them to ensure that that disclosure goes back to the employer, or, if they want a voluntary position, that the disclosure goes to the person who needs to see it. It also means that if there is information on a person that makes them think, “I did not know that the police had this on me, but it is quite right, I will not be able to challenge it successfully, I will step away”, that is quite right.
But if I pay for it, do you think I will get it? That is the point I am trying to make. If I am paying the money for the disclosure, should I not be getting it, if I am the airport authority?
Mrs Mason: I think that is a matter for Government to decide. One of the things that I did was to look at the bigger picture and a more proportionate response. On actual operation, it is for Government to decide how best to meet those needs. I would say that that was more of an operational process-driven point.
Mrs Mason: One of things that I said was that it is confusing. I only say it because the people whom I consulted found it confusing to have two different systems. I fundamentally believe that barring decisions should be taken independently. However Government decide to merge or call a new body, I think that that is right—I have said that in my review. The Government review and my review on criminal records sit together very well. One of the questions was, “Should soft intelligence be on the face of a disclosure?” Sorry, I mean local intelligence, otherwise ACPO will be cross. Let me use the correct terminology.
Can I ask you to clarify what soft intelligence is? I am comparing clause 79 with clause 77. Clause 79 is about enhanced criminal record certificates. The explanatory notes state that the determination of
“non-conviction, information should be included in an enhanced criminal records certificate.”
Does that mean that it only happens with an enhanced criminal records certificate and that there is no soft intelligence on the original ordinary request?
Mrs Mason: Not on a standard or a basic, no. That would only be on an enhanced certificate. If you were working in the sort of role that required you to have an enhanced certificate, you would apply for it and that information would come out. One of the questions that was in my terms of reference, and which the Government asked me to look at very carefully, was whether local intelligence should be on the face of disclosure. I very much felt that it should, but with a package to make it more proportionate to individuals, hence my idea of one certificate. If, however, the Government had said to me, “We hear what you’re saying, Mrs Mason, but we do not think that this should be on the face of a disclosure”, then I would have been uncomfortable with how the two reviews sat, because I would have thought that there would have been loopholes and gaps for individuals to fall into, and that could have eroded public protection. However, I believe that the way that the two sit together as drafted covers public protection but still looks at proportionality, so I am satisfied with that.
But nothing there says that all soft intelligence has to be included. It simply says what is “relevant”. The wording has changed to “reasonably believes to” be relevant. I am not quite sure what the difference is or if it is just a case of trying to make the clause look different. Who says it is relevant?
Mrs Mason: Yes, hence my example about the penalty notice for disorder—excessive standing at a football match. The chief officer might have thought, in his wisdom, that it was relevant to disclose that on a teacher’s CRB check. The individual gets it on his certificate, asks why it has been disclosed and appeals, so the decision is made to remove it.
May I come in there? I am probably not supposed to. Some of the decisions seem to be quite finely balanced and rely on a lot of expertise and experience. With the merger of the two organisations, will what the ISA bring to the new organisation help to make those judgments or has that not been decided? Will it still be separate?
Sir Roger Singleton: The judgments about disclosure of police intelligence, as Sunita said, rest with the chief constable of the administrative area that acquired the information, so the ISA has no locus or say in what is disclosed on police intelligence. Part 5 of the Police Act 1997 deals with that.
To pick up Mr Robertson’s point about the ISA and the CRB, he will accuse me—“He would say that, wouldn’t he”—but I am not aware of a single complaint about the lack of effective work between the CRB and the ISA. It is highly electronic, obviously. The lists must be updated daily, but I think the case for merger rests much more on clarity for the public and the professionals and on rationalisation of back-office costs.
My point on that was that it was not so much that somebody would complain about it, but that something would be missed because you were not talking to each other. Nobody will complain about something that is not there. They will complain about something that is there, but not about something that is not there.
This is a question to Mrs Mason. On Mr Robertson’s earlier question on the individual knowing what information is against held on them so that they can challenge it, am I right in thinking that it is essential in the interests of justice and fairness for that individual to have the information? It is similar to evidence of bad character in a criminal trial, where an individual is given the details beforehand, and sometimes it is not convictions or cautions that amount to bad character. If people are given the opportunity to challenge in the interest of justice in the latter case, they should be given the opportunity to challenge information before it goes anywhere else in the former case, in the interests of fairness.
So, you support the provision that this extra safeguard will entail within the Bill. That will create a safeguard, as it were, of allowing an avenue of appeal. You feel that is important.
I take that as a definite yes. May I add this point? Correct me if I am wrong, I detected a degree of concern that you have about soft information. Is it accurate to say that what is being termed as soft information—the police do not actually like that term because they think it is derisory—can be little more than hearsay, sometimes no more than gossip? Is it not right that people should have a robust safeguard against malice that may be directed towards them? What this does is form a balance between the competing interests, both the individual who may be subject to that soft information and the general public and the need for protection.
Mrs Mason: Generally. However, because there are so many different police forces in the country, I have found from my discussions with ACPO that there is not always the same consistency of decision making. That is why there are the anomalies like the revelation of a penalty notice of disorder. One of my recommendations was that that decision making could be centralised or regionalised. Then you would get a much more consistent approach. Also, if there were a statutory code of practice, which I again recommended, that all chief officers follow and there is a procedure known as the quality assurance framework, then a chief officer has to jump through many hoops and hurdles and ask themselves the questions, “Was it malicious? How long ago was it? What happened? What was the outcome?”, before they decide whether it is relevant to reveal that. That is why I have also said that when that information is revealed to an individual and an employer, they should say why, so that the individual and employer understand.
Mrs Mason: No. I believe that in terms of portability it should be for a children’s sector or vulnerable adults’ sector, because the type of information that a chief officer might choose to disclose would be relevant in terms of whether it was children or adults. It might not be relevant vice versa. That does not stop one applying for both, for example.
I think that is interesting about the proportionate nature of the decision making, in terms that you do not have it sector-specific. May I just ask you one other thing? In your review, you also recommended that employers should face fines for scurrilous CRB checks. Is that a real problem? Are too many employers seeking CRB checks?
Mrs Mason: It is a concern raised by many of the organisations I consulted. I have been told that they ask for enhanced checks when they are not actually eligible for an enhanced check. At the moment, employers or registered bodies simply tick the box and send it to the CRB. The CRB, as Sir Roger has just said, is an operational, functional body. It is not there to check whether that application is correct, although I understand that it does do some sampling. Because there are no sanctions for somebody asking for extra information, those employers who feel that they want to know everything, even if they are not entitled to it, may well do so. I am not suggesting that someone who makes a mistake should be fined, but I think repeat offenders should face sanctions and penalties, because it is inappropriate and not proportionate.
I just worry about the voluntary sector, and people who volunteer to do administration work for small charities and groups. They are not big employers; they are not like Tesco, with an HR department of hundreds. These people are trying to do their best. I wonder whether you think that this sort of system will enable such groups to fulfil the requirements of the legislation. Will it be easy for them to understand regulated activity and what supervision is, and so on? I am concerned that there is going to be confusion, particularly in the voluntary sector.
Mrs Mason: I share your concerns. At the moment the guidance is confusing, it is not tailored, and most people are not quite sure. Sometimes when they look at the guidance, there are grey areas. As the Law Society said—or was it Liberty?—what happens is that everyone takes the most risk-averse stance. It is fundamental that very good and clear guidance is given, because we must not deter small bodies, volunteers and so on. In fact, it is vital that they are able to come on board and embrace it, and be clear about what is appropriate.