Speeches and Statements

Home Secretary Charles Clarke's letter to Simon Carr, columnist at the Independent

The Home Secretary wrote to Simon Carr, columnist at the Independent, to correct a number of inaccuate statements on the government's record on civil liberties, made in a recent article.

Dear Simon

Your article entitled: “If you think you live in a liberal and democratic society, then please read on,” (Independent 15th April 2006) made a series of incorrect, tendentious and over-simplified assertions about this government’s record on civil liberties.

There is of course always room for legitimate political debate about the merits of any particular proposal but your piece is so misleading that I think that it is important to set out the accurate position, which I am copying widely.

I set out below in bold each of your assertions, and followed them with a factual description of the true situation:

1. “As from the beginning of this year, all offences are arrestable.”

Correct although the Serious Organised Crime and Police Act 2005 (SOCaP) which simplified arrest powers also introduced significant safeguards that mean an officer will only make an arrest when it is necessary to do so to meet specific criteria, including:

preventing the person evading justice
preventing loss of evidence
preventing interference with or harm to evidence

This test of necessity means that the police have to focus on the individual circumstances of the case and in particular the circumstances of the victim, the offender and the needs of the investigation.

Quite frankly, I take the view that where offenders, even minor offenders, are attempting to evade justice or destroy evidence, it is absolutely appropriate that police officers are able to make an arrest to protect the public.

2. “There are three million DNA samples held on file (rising to four million in two years)”

Correct, so that in 2004/05 where DNA was successfully recovered from a crime scene and placed on the Database the detection rate rose to 40% in contrast to an overall detection rate for all crime of 26%. Furthermore, 15,732 further crimes were detected as a result of investigations linked to the original case in which DNA was recovered.

At the end of November 2005, the DNA Database held over 3.4 million DNA profiles, from 3.08 million suspected offenders, which is the majority of the known active offender population. The police make full use of DNA as a vital tool to solve both serious violent crime, such as rape and murder, and 'volume crimes' such as burglary and vehicle crime. The DNA database is a powerful asset to that end.

3. “People can protest in Parliament Square only with the written permission of the police. Where “reasonably practical”, six days notice must be given”

Broadly accurate although the notice period is 24 hours in exceptional cases where a demonstration is organised as a response to events which could not be foreseen. Between 1st August 2005 and 20th April 2006, 157 demonstrations have been authorised to take place in the area around Parliament Square ranging from human rights in Burma to a protest about the right to protest itself.

Organisers of demonstrations must give prior notice to the Commissioner of the Metropolitan Police, who is obliged to authorise the demonstration. This, by the way, simply goes back to the situation some years ago when any demonstration in the vicinity of Parliament had to be agreed with the police. I know – I organised some.
The Commissioner may attach conditions to the authorisation where it is necessary, for example, to safeguard the operation of Parliament or to prevent a security risk to the area, which is why a notice period is needed to give proper consideration to the circumstances.

4. “Damaging GM crops is defined as a terrorist act”.

Completely Wrong: Damaging GM crop fields is not defined anywhere in terrorism legislation as a terrorist act. To qualify as terrorism under section 1 of the Terrorism Act 2000, three separate sets of criteria must be satisfied, in terms of motivation, intention and the action involved.

Of course some existing legislation and ordinary criminal law permits the police to deal with damage to crops and this should be applied where appropriate. I’m not sure whether you advocate the damaging of other people’s crops but I don’t think that the law should permit it.

5. “In 2001 two peace campaigners were prosecuted for causing ‘harassment, alarm and distress’ to US servicemen at their base in Britain by standing at the gate holding a placard reading ‘George W. Bush? Oh dear’ ”.

Whilst I cannot comment on any individual case, it is the duty of the police to balance the right to protest peacefully against any security considerations at particular places, and then for the CPS and the Courts to make their decisions.

So any decision to prosecute would have been a matter for the police and Crown Prosecution Service. It would be based on a judgement set out in the Public Order Act 1986 (long before the Labour Government was elected) about whether there was intent to cause a person harassment, alarm or distress by using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening, abusive or insulting. The Court will then take its decision.

6. “A minister can declare a state of emergency and suspend all legal proceedings, including Parliament”.

Correct. The Civil Contingencies Act (2004) allows a Minister of the Crown to introduce temporary emergency laws for part of the country, or even the whole country if Parliament cannot be called into session quick enough for a response. Such laws are limited in duration to 30 days, unless Parliament votes to extend this period before it expires.

The power arises from the possibility of extreme actions, including terrorist acts, which might require emergency regulations as a last resort to deal with the effects of the most serious emergencies where current legislative powers are not sufficient. Their use is subject to tight legal safeguards to ensure that they can only be used in relation to serious emergencies, where the regulations are necessary for the purposes of dealing with the emergency and can only be used in a proportionate way.

Moreover any use of emergency regulations must be compatible with the Human Rights Act also introduced by this government, which cannot be overridden.

7. “The Penalty for breaking an anti-social behaviour order can be five years in prison”.

This is correct for an adult offender. The maximum sentence for breach by a juvenile is a detention and training order, which has a maximum term of 24 months – 12 months of which is custodial and 12 months is in the community.

For young people who breach their ASBOs custody should be a last resort and this has in fact generally been the case. I believe that it is right that those who persist in anti-social behaviour - despite a legal requirement not to do so - are punished fairly, if only to incentivise compliance with the Court order. These ASBOs actually deal with serious problems, including drug dealing and vandalism, which exist in neighbourhoods up and down the country.

8. “Anyone’s internet history- the sites you’ve visited, who has e-mailed you and whom you have e-mailed- can be called up by public servants in a dozen departments, as well as all local councils”.

Completely Wrong. It is this Government which introduced legislation (the Regulation of Investigatory Powers Act 2000 (RIPA)) which provides a statutory framework for the disclosure of communications data by service providers and its acquisition by public authorities. Part I Chapter II of that Act permits such information to be collected where its disclosure and acquisition is both necessary and proportionate for preventing or detecting crime, in the interests of national security or, in an emergency, to prevent death and injury.

Under this Act restrictions upon the types of communications data that public authorities may acquire have been opposed and such data may only be acquired by people holding prescribed offices, ranks or positions approved by Parliament. Local authorities are unable to acquire communications traffic data which includes data about internet sites visited or the source of a person’s incoming e-mail.

The exercise of these powers is overseen by the independent Interception of Communications Commissioner who inspects use of the powers and reports to parliament.

9. “A journalist’s second e-mail requesting information from a council press officer was designated “harassment” and sent to the police”.

It’s certainly true that journalists have more effective ability to harass innocent citizens without public accountability than do police officers!!! And of course the tone/content of this particular email is unknown, though it is by no means unknown for journalists to seek to harass press officers and others.

Sending an e-mail could only constitute harassment if it uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening, abusive or insulting with intent to cause a person harassment, alarm or distress.

Any individual, even a press officer, is entitled to send information to the police if they suspect an offence has been committed. It is for the police and Crown Prosecution Service to decide whether to prosecute.

10. “The presumption of innocence is no longer a fixed legal principal”.

This is complete nonsense. In this country you are innocent of an offence until proven guilty.

Of course there is also a need to try and prevent criminal acts occurring in the first place ranging from vandalism to terrorism and including extreme violence perpetrated by people with previous convictions. This is a complex area but is the reason for ASBOs, for laws giving the Courts the right to control dangerous criminals for life in certain circumstances and for aspects of counter-terrorism legislation. All these measures are fully compatible with Article 6 of the ECHR, the right to a fair trial.

11. “People wearing satirical T-shirts in a “designated area” may be arrested under the Prevention of Terrorism Act. The City of London is a permanently ‘designated area’ ”.

Wrong. There is no such provision in any Prevention of Terrorism Act. Nor is there any law against bad taste in t-shirts as long as they do not, for example, incite murder.

The police may only make an arrest under Terrorism legislation if a person is reasonably suspected of being a terrorist or having committed specific offences under terrorism legislation.

12. “Police may take, and retain indefinitely, DNA samples (by force if necessary) from people who have been arrested but neither charged nor cautioned.”

Partly Correct. But samples can only be taken in respect of a recordable offence (essentially one punishable with imprisonment and so serious). DNA samples cannot be taken for minor offences and are in no way a criminal record. It is an operational decision for the police whether to take a sample.

Prior to the Criminal Justice and Police Act 2001, profiles and fingerprints had to be destroyed where charges were dropped or the person acquitted. Of the samples taken since this change in the law, over 8,000 suspects have been matched with crime scene stains, involving over 14,000 offences, including murder, rape, sexual offences and aggravated burglary.

13. “Profiles for 37% of all black men are held by the police”.

This figure is entirely speculative as it is based on a comparison of two sets of data that are not directly comparable and appears to be seriously flawed. Just because a figure has been widely quoted in the media (even the ‘Independent’!!) does not make it true or accurate.

The Home Office has questioned the methodology behind this statistic and has met the National Black Police Association to discuss the proportion of ethnic minority information on the DNA database and share their concerns. We will work closely together to address any concerns about this matter.

14. “The existence of an interception warrant (to monitor internet activity) is a state secret, and the penalty for revealing its existence to the person concerned is five years imprisonment”.

More or less correct and for obvious reasons. Interception of communications is an essential tool in investigating serious crime, terrorism, espionage and other threats to our national security Disclosure of the fact of an interception warrant to anyone being intercepted would fundamentally undermine its effectiveness. The information would be a godsend for the people-trafficker, drug-dealer, terrorist or spy. Secrecy enables law enforcement agencies and the intelligence agencies to best ensure protection of the public in a wide range of cases. However, the issue and execution of interception warrants is overseen by the independent Interception of Communications Commissioner.

Interception warrants, to permit the interception of the content of communications – who said or wrote what to whom – are issued only where the Secretary of State believes the warrant is necessary and proportionate in the interests of national security, for the purpose of safeguarding the economic well-being of the United Kingdom or for the purpose of preventing and detecting serious crime.

15. “It is a criminal offence to prevent an inspector from entering a nursery school for the purposes of inspection and punishable by up to two years in prison”.

The first part is correct. It is a criminal offence to prevent an inspector from entering a nursery school for the purposes of inspection’, as stated in the Care Standards Act 2000, Part VI, sub section 7.

It is incorrect that the maximum sentence is two years. The Act says any person guilty of an offence under subsection (7) shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale which is £2500.

16. “Of 3,069 ASBOs issued to the end of March 2004, only 42 requests were turned down by the courts.”

Correct. This is simply due to the fact that the use of ASBOs is becoming more widespread and more professionally carried through. The fact that so few requests were turned down by the courts demonstrates that ASBOs are in general being used appropriately across the country. The continued increase in ASBO usage since March 2004 demonstrates their value in protecting local communities.

17. “Foreigners detained under the 2001 Terrorism Act are able to appeal only to a new court (SIAC), which has no jury. The court isn’t obliged to inform the detainee of the case against him, and any appeal against the court’s judgement is heard by the same court that passed the judgement”.

Wrong. The 2001 Terrorism Act powers you refer to were repealed under the Prevention of Terrorism Act 2005. All individuals previously certified under these powers were able to appeal to SIAC each individual exercised this right and then took their cases to the Court of Appeal and then to the House of Lords.

The individuals were aware of the open case against them but where there was sensitive or “closed” material, a special advocate was appointed to represent them.

18. “The Law Lords advised that the Act was illegal as foreigners were being sanctioned in a way that British citizens could not be. The Government responded by applying the act to British citizens as well”.

Incorrect. The December 2004 Law Lords ruling (which was not ‘advisory’) led to new legislation - the Prevention of Terrorism Act 2005, which was passed through Parliament after a full democratic debate and votes in both Houses.

The Government has introduced a new set of powers – control orders - which do not involve detention in prison. These measures can indeed be applied to any individual, irrespective of nationality, and whatever the nature of the terrorist activity.

19. “Trial by jury is abolished for certain fraud cases”.

No it isn’t. No such legislation has been passed.

However the Manifesto on which the Government was elected did include such a commitment and as soon as parliamentary time allows the Government does intend to introduce legislation permitting the most serious and complex fraud cases to be tried without a jury. The reason for this is experience with some very complex and unsuccessful fraud cases, which have been very expensive, which suggests that current procedures bring neither effective justice nor transparency.

Parliament will consider proposals in due course.

20 “A judge may direct a jury to infer guilt if a prisoner claims his right to silence”.

Completely Untrue. The Criminal Justice and Public Order Act 1994 allowed a jury “to draw such inferences as appear proper from an individual’s silence”. A jury could therefore take a defendant’s silence into account when making their judgement but does not mean they can automatically infer guilt.
UK law is fully compatible with Article 6 of European Convention on Human Rights, the right to a fair trial.

21 “Hearsay evidence is now permitted in court”.

Yes it is but only in a very few cases. Evidence of what somebody told somebody else is not normally admissible as evidence in a criminal trial and a jury will not be able to hear and assess such evidence. This is known as hearsay evidence.
One exception to this general rule was that a recent complaint made by a victim of a sexual assault was admissible to assist the jury in assessing whether the victim was telling the truth.

We believe that juries should be allowed to hear and take account of as much evidence as possible

The Criminal Justice Act 2003 changed the law of evidence to allow juries to hear about statements victims made to other people in a much wider set of circumstances than before.

We acknowledge that it is not the natural reaction of a victim of sexual assault to make a complaint spontaneously or early.
A statement of complaint made by a victim to someone else can now be heard by a jury if it is made as soon as reasonably practicable but we have a concern that this definition will be interpreted narrowly so that only recently made complaints will be allowed to be heard by the jury.

We believe that evidence of the first complaint made by a victim of sexual assault is likely to assist a jury in understanding the facts of that case.

We are therefore consulting on whether the present definition in the Criminal Justice Act requires clarification to ensure that reasonably made complaints can be heard by a jury whether the complaint was made recently or not.

22 ‘Double Jeopardy’ has been abolished”

Correct for a limited number of crimes. Where there is new evidence on the guilt of an acquitted person for a serious crime, this Government believes that person should again be made to face a court. It is unjust and dangerous to let murderers and rapists go free because a retrial is not permitted.

The legislation allows this only in strictly defined circumstances:

It applies to a limited range of serious crimes such as murder, manslaughter and rape
The DPP must approve both further investigations following a defendant's acquittal and applications to the Court of Appeal for a retrial
Before ordering a retrial the Court of Appeal must be satisfied that there is new and compelling evidence against the acquitted person and that it is in the interests of justice to do so.
It will only be possible to retry an acquittal person once under this procedure: there will be no repeated retrial.

Reform of the double jeopardy rule has enabled the Court of Appeal to quash an acquittal and order a retrial where there is new and compelling evidence relevant to the guilt of the acquitted person, often as a result of new scientific techniques, particularly DNA evidence.

It is important that the public should have full confidence in the ability of the criminal justice system to deliver justice and this can be undermined if it is not possible to convict offenders for very serious crimes where there is strong and viable evidence of their guilt.

23 “Bad character can now be produced as evidence of guilt”.

True. A judge can allow relevant evidence of bad character, but can only be a small part of overall evidence in a case and is by no means conclusive

24 “Britons can be extradited to America without any evidence of wrongdoing being presented”.

Correct. It is a feature of modern extradition law that trusted extradition partners do not require prima facie evidence from each other. That is why we have the same arrangement with 47 other countries, including Australia and Canada as well as those countries that have signed the European Convention on Extradition (ECE) such as Azerbaijan and Turkey.

Indeed, we have not required signatories to the ECE to provide prima facie evidence since 1991 (well before the election of this Government!!!) and this has not given rise to problems in the large number of requests that we have processed since then.

Information has to be provided to the UK courts in sufficient detail to "justify the issue of a warrant for the arrest of a person accused of the commission of the offence within the judge's jurisdiction".

Finally, we are not the only European country to have removed the prima facie requirement for the US - both Ireland and France have also removed this requirement.

25 “ ‘Control orders are not designed to punish people for having done something wrong, but to prevent people from doing something wrong’ Hazel Blears”.

Correct. Control orders are preventative orders to be used where prosecution is not possible. They are designed to place obligations on suspected terrorists in order to prevent, restrict or disrupt involvement in terrorism-related activity.

The threat from international terrorism to the UK remains real and serious, and represents a danger that can only be addressed through preventative action. Where the aim of organisations like Al-Qaeda is to kill and maim as many innocent people as possible and destroy themselves in the process, punishment is neither a deterrent nor a plausible course of action.

As we have consistently made clear, each order is made on a case by case basis and tailored to meet the particular risk posed by the individual concerned. Control orders will only be used sparingly as and where appropriate. Only a small number of orders have so far been made.

None of the current orders are derogating control orders. The UK has not derogated from Article 5 of the ECHR and the Home Secretary has not therefore imposed any conditions which would amount to a deprivation of liberty.

Failure to act in the face of evidence even if that evidence could not be used in court would not be an adequate defence if another atrocity took place similar to 7/7.

26 “Where the court of first instance or appeal court quashes a control order… this does not prevent the Secretary of State exercising his power to make a new control order- even if it is to the very same effect, and is based on the same evidence, as the original order.”

Wholly hypothetical. Each control order that has been put before the Administrative Court has been upheld. If the court were to quash an order and the Secretary of State put an identical case back before the court, it follows that the order would more than likely be quashed again.

27 “Under the Inquiries Act 2005, the powers of independent chairmen to control inquiries has been removed and given to government ministers”.

Partly correct. The Inquiries Act 2005 clarifies the respective roles of Ministers and Chairmen. Chairmen will be able to call for any evidence and any witnesses they feel are necessary to conduct an inquiry effectively. The Act does not give Ministers power to decide what evidence an inquiry should hear.

28 “The state can sue for the proceeds of crime under civil law (where standard of proof is ‘balance of probability’ rather than ‘beyond reasonable doubt’)”

Correct and rightly so. Seizing and recovering criminal assets from drug traffickers and other criminals is an integral part of the government's commitment to reduce crime, deliver justice and create safer communities.

The Proceeds of Crime Act 2002 created a new specialised central Assets Recovery Agency (ARA) with powers to investigate and recover the proceeds of crime. It also introduced a new 'civil recovery' scheme empowering the Director of ARA to sue in the High Court to recover the proceeds of crime where it has not been possible to obtain a conviction. The Director has to show a good arguable case that property is derived from crime. Civil rules of evidence and procedure apply. The burden of proof rests with the Director on the civil standard, namely the balance of probabilities.

29 “Under the Anti-Terrorism Act 2005 it is an offence to recommend the violent overthrow of national dictators such as Saddam Hussein”.

Wholly misleading. The Terrorism Act 2006 (There is no such act as the Anti-Terrorism Act 2005!) creates the offence of Encouragement of Terrorism. This offence can only be committed if a person makes a statement with the intention of encouraging others to commit acts of terrorism or is knowingly reckless on the point.

30 “The Serious Organised Crime Agency can obtain a warrant for the forcible entry or search of anyone’s premises, whether or not they are suspected of an offence”.

Again, wholly misleading. SOCA has no exclusive powers that aren’t already part of police, Revenue and Customs or immigration powers.

The police power to search someone’s premises, even if they are not under suspicion, already exists but this is only done where there is a suspicion that there is evidence at that premises - e.g. a criminal stashes a weapon at his grandmother’s house, or a garage owned by the council is raided because there is a suspicion stolen goods are present.

31 “A person hosting a British website auctioning Nazi memorabilia can be extradited to France to face charges of ‘inciting racism’ – even though the site is legal in Britain”.

Partially correct providing that only acts committed in France were included in a request for extradition, that France stated that the acts were within the lists of offences for which extradition is possible and that the offences carried a sentence of at least 3 years in France.

If this were all true the person might be extraditable to France. There are also other, albeit limited, grounds on which extradition could be refused under Part 1 of the Extradition Act 2003. The decision on extradition in this part of the Act is for a court, and not for the Secretary of State.

32 “The National Identity Register may be used to record every sort of personal information- such as withdrawing more than £200 from the bank, getting prescription drugs, voting, applying for a mortgage, taking out an insurance policy, applying for a fishing licence”.

Wholly untrue. The National Identity Scheme is being introduced to safeguard people’s identities, not track their lifestyle or activities. The information that can be held on the National Identity Register is strictly limited to that listed within Schedule 1 of the Identity Cards Act 2006 which is roughly the same as that needed to be issued with a passport.

The National Identity Register covers only basic personal identity information and will not contain any of the following:

details of withdrawals of cash from bank accounts,
applications for mortgages
insurance applications
details of any financial or tax records
details of drugs prescribed to individuals
any other form of health or medical records
details of whom an individual has voted for.

The NIR will not record whether someone has obtained a fishing licence.

33 “Officials can demand access to any bank account or financial records (credit cards, utilities, mobile phone companies) without a warrant for the purpose of detecting benefit fraud”.

Untrue. There is no question of government officials just randomly accessing the bank account details of individuals. Only a limited number of authorised DWP benefit fraud investigators have the legal powers to examine, without a magistrates warrant, the bank accounts and other financial data (from the private sector) of suspected benefit fraudsters. This is to enable the Government to track down individuals who are attempting to defraud the tax payer of millions of pounds. These people are also preventing money getting to the individuals and families who need it most. It is right that where officials suspect someone of carrying out benefit fraud we take the steps needed to stop them.

Such investigations are carried out in accordance with Section 109B of the Social Security Administration Act 1992 and are strictly governed by a formal Code of Practice which is there to prevent misuse of these powers.

34 “Any cabinet minister may make ‘emergency regulations’ if he believes an emergency has occurred, is occurring, or will occur”.

In the unlikely event that emergency powers are used, regulations would be made by Her Majesty. Only if the Queen is unable to make the regulations without serious delay would the regulations be made by a Minister, whose actions would be subject to strict legal safeguards. Once made, the Regulations must be put before Parliament as soon as is reasonably practicable, and will fall if Parliament does not approve them (with or without amendment) within 30 days.

I hope that this detailed explanation of the true facts in relation to each of the assertions in your article will lead you to reassess your view of the approach which this Government has followed since 1997.

As you do so I hope that you will take account of the establishment of the Independent Police Complaints Commission and the passage of the following measures, each of which in my opinion significantly enhances human rights in the country and, taken together create an entirely different and more positive climate from that point of view than what we inherited in 1997:-

Human Rights Act 1998
Data Protection Act 1998
Freedom of Information Act 2000
Regulation of Investigatory Powers Act 2000
Environment Information Regulations 2004
EU Data Protection Directive 1998
Privacy and Electronic Communications Regulations (EC Directive) 2003

I think that any fair-minded assessment of the changes wrought by this Government since 1997 would be bound to conclude that human rights in this country have been very significantly advanced. But perhaps that conclusion would be too much to ask of the ‘Independent’ newspaper.

Yours sincerely

Charles Clarke MP

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