Intrusive powers over travellers at airports require greater safeguards

Anti-social Behaviour, Crime and Policing Bill

Reasonable suspicion is the absolute minimum that is required to qualify as a safeguard for some of the more intrusive powers available at ports and airports, says the Joint Committee on Human Rights in its Report.

Scope of the report

The Report follows up the recommendations of its first Report on the Anti-social Behaviour, Crime and Policing Bill and examines some developments which have occurred since its publication.

Suspicion threshold

The Committee welcomes the Independent Reviewer’s recommendation that the more intrusive powers exercisable at ports and airports (to detain and to copy and retain data on personal electronic devices) should be subject to a suspicion threshold, but recommends that it should be a "reasonable suspicion", not a "subjective suspicion" threshold, to ensure that the exercise of the power can be subject to independent scrutiny and review.

Compensation

The Committee also revisits the provisions in the Bill relating to compensation for miscarriages of justice, particularly in the light of two significant recent decisions in the European Court of Human Rights – Adams v UK and A.L.F. v UK.In the Committee’s view those decisions make clear that, as currently drafted, the provision in the Bill is incompatible with the presumption of innocence because it uses the language of "innocence" in the test to be applied.

Remove reference to "innocence"

The Committee recommends that the Bill be amended to remove the reference to "innocence" in the proposed statutory test for a miscarriage of justice and to enshrine into law the test formulated by Lord Phillips in the Supreme Court in the case of Adams. The Committee believes that this will meet both the concern that the current clause is incompatible with the presumption of innocence, and the concern that the law has become so uncertain that statutory clarification is needed in order to avoid unnecessary and costly litigation.

Clause 91

The Committee renews the recommendation from its first Report on the Bill that clause 91 be deleted. This clause creates a new discretionary ground of possession for riot-related anti-social behaviour which would enable landlords to evict tenants who had been convicted of a riot-related offence committed anywhere in the UK.

The Committee regards this as a punishment, which is the job of the criminal law, and does not consider the existence of judicial discretion to be a satisfactory answer to its concern about the disproportionate impact of eviction on other members of the household who have not engaged in such behaviour.

The Committee’s other recommendations in its Report, concerning some of the anti-social behaviour provisions in the Bill, have already been given effect by Government amendments to the Bill tabled after the Committee’s Report was agreed

Committee Chair

Dr Hywel Francis MP, the Chair of the Committee, said:

"We are grateful for the way in which the Government has engaged with some of the recommendations of our first Report on this Bill, particularly with regard to the definition of anti-social behaviour and provisions concerning religious belief. However, especially on account of some recommendations made by the Independent Reviewer of Terrorism Legislation, and some recent developments at Strasbourg with regard to compensation for miscarriages of justice, we have felt it necessary to revisit some of the recommendations of our first Report.

Stop, search and detain powers have often been a focus of attention of this Committee and its predecessors in the past. We understand that there is a need for a without suspicion power to stop, question and search travellers at ports and airports. We have considered the Independent Reviewer’s recommendation that a subjective suspicion threshold be required to be met before the powers to detain and to download data from mobile phones and laptops can be exercised. However , we believe that reasonable suspicion is the absolute minimum that is required to qualify as a safeguard because it opens up the possibility of independent scrutiny and review.

We also say that the test in the Bill for deciding when compensation should be paid for a miscarriage of justice is too narrow and in breach of the presumption of innocence. To avoid continued legal uncertainty and a judgment that the new test is in breach of human rights, the wider test preferred by the Supreme Court should be written into law."