Edited by John Wadham and Gareth Crossman
YOUR RIGHTS The Liberty Guide to Human Rights Seventh Edition
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Seventh edition published 2000 by Pluto Press 345 Archway Road, London N6 5AA and 22883 Quicksilver Drive, Sterling, VA 20166–2012, USA www.plutobooks.com Previous editions published 1972, 1973, 1978, 1989 by Penguin; and 1994, 1998 by Pluto Press Copyright © 2000 Liberty (National Council for Civil Liberties) The right of the contributors to be identified as the authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging in Publication Data applied for ISBN 0 7453 1582 8 hardback ISBN 0 7453 1577 1 paperback 05
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Contents
List of Contributors Introduction
ix xi
1 The Right of Peaceful Protest 1.1 The historic right of peaceful protest 1.2 The formal regime for regulating public protest 1.3 In practice – organising a protest action 1.4 Public order offences 1.5 Further information
1 1 4 14 23 30
2 The Right of Free Expression 2.1 The right to freedom of expression 2.2 Defamation – libel and slander 2.3 Other remedies 2.4 Copyright and allied property rights 2.5 Criminal law restrictions on freedom of expression 2.6 Contempt of court and restrictions on court reporting 2.7 Controls on broadcasting, films, video and cable 2.8 The balance of conflicting rights and interests 2.9 Further information
31 31 32 40 41 46 52 56 58 59
3 The Right to Privacy 3.1 Article 8 – the right to respect for private and family life, home and correspondence 3.2 Confidential information 3.3 Spent convictions and the rehabilitation of offenders 3.4 Tapping, bugging and the recording of telephone conversations 3.5 Interception of post 3.6 Regulation of Investigatory Powers Bill 3.7 Other types of bugging and surveillance 3.8 Harassment, unwanted letters and telephone calls 3.9 Intrusion or harassment by neighbours and others 3.10 Power of officials to enter your home 3.11 Searches by Customs and Excise officials 3.12 Sexual identity and sexuality 3.13 Privacy and the media 3.14 Further information
60
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60 63 64 74 77 77 77 78 79 80 87 90 90 93
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4 The Right to Know 4.1 Personal data 4.2 Health records 4.3 Social work records 4.4 Education records 4.5 Housing records 4.6 Credit reference agency records 4.7 Other data protection rights 4.8 Government information 4.9 Other rights 4.10 Further information
94 94 99 101 102 102 103 103 104 106 107
5 The Right of Redress (Complaints and Legal Action) 5.1 Civil action and judicial review 5.2 Government departments 5.3 Local government 5.4 Health services and care services 5.5 The police 5.6 Courts and legal services 5.7 Financial professions 5.8 The media 5.9 Public utilities 5.10 Miscellaneous complaints 5.11 Compensation for the victims of crime 5.12 The Human Rights Act 1998 and European law 5.13 Other international treaties 5.14 The Citizen’s Charter 5.15 Further information
109 109 110 111 112 114 120 123 123 125 127 127 128 140 141 141
6 The Rights of Suspects 6.1 Police powers to stop and search persons and vehicles (without arrest) 6.2 Police powers to search premises 6.3 Police powers of arrest 6.4 Police detention 6.5 The rights of suspects in the police station 6.6 Special powers under the Prevention of Terrorism legislation 6.7 Further information
142 143 147 152 157 160 168 173
7 The Rights of Defendants 7.1 Police powers 7.2 Prosecution 7.3 Bail 7.4 Representation and Legal Aid 7.5 Venue 7.6 Trial 7.7 Sentence 7.8 Appeals
174 174 176 176 178 179 181 182 183
CONTENTS
7.9 7.10
The Criminal Cases Review Commission The European Convention on Human Rights and Human Rights Act 1998
vii
184 185
8 The Rights of Prisoners 8.1 Reception 8.2 Complaints and requests to the Prisons Ombudsman 8.3 The courts 8.4 Access to lawyers 8.5 Differentiated regimes 8.6 Visits and letters 8.7 Telephones 8.8 Marriage and founding a family 8.9 Women prisoners 8.10 Categorisation and allocation 8.11 Discipline, adjudication and punishment 8.12 Segregation and transfer 8.13 Medical treatment 8.14 Work, exercise and education 8.15 Parole 8.16 Further information
187 188 188 189 190 190 190 192 193 193 193 195 196 198 198 199 203
9 The Right Not to be Discriminated Against 9.1 Race discrimination 9.2 Sex discrimination 9.3 Sexual minority discrimination 9.4 Disability discrimination 9.5 Further information
205 205 220 227 238 249
10 The Rights of Immigrants 10.1 The framework of immigration control 10.2 Human rights framework and discrimination 10.3 British nationals and those with a right of abode 10.4 Those governed (at least in part) by EC law 10.5 Those subject to (full) domestic immigration control 10.6 Refugees 10.7 Rights to British nationality 10.8 Further information
253 253 256 259 259 265 273 274 276
11 The Rights of People with Mental Disorder 11.1 The definition of mental disorder 11.2 Informal admission to hospital 11.3 Compulsory admission to hospital (through civil procedures and the courts) 11.4 The ‘Nearest Relative’ 11.5 Compulsory treatment under the Act 11.6 Discharge from hospital 11.7 Rights in hospital
278 278 279 280 283 283 285 288
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11.8 11.9
Powers in the community Further information
289 291
12 The Rights of Children and Young People 12.1 Parental responsibility and children’s rights 12.2 Money and financial support benefits 12.3 Citizenship, nationality and refugees 12.4 Travel and leaving the country 12.5 Education and schooling 12.6 Children involved in the separation or divorce of their parents 12.7 Children involved with social services departments 12.8 Young offenders 12.9 Child witnesses 12.10 Further information
292 293 297 297 298 299 305 308 318 321 322
13 The Rights of Workers 13.1 Unions 13.2 Contracts of employment 13.3 Whistleblowers 13.4 Drug taking, drinking and workers’ rights 13.5 Equal pay 13.6 Maternity rights 13.7 Parental leave rights 13.8 Time off to care for dependants 13.9 Health, safety, sickness and disability 13.10 Dismissal 13.11 Redundancy 13.12 Industrial action 13.13 Human rights 13.14 Claims 13.15 Further information
324 325 329 337 338 339 340 341 342 342 344 346 347 349 355 356
14 The Rights of Travellers 14.1 Definitions of ‘Gypsy’ and ‘Travellers’ 14.2 Racism and discrimination 14.3 The right to stop 14.4 Evictions 14.5 Policing 14.6 The right to housing 14.7 The right to education 14.8 The right to healthcare 14.9 The right to welfare benefits 14.10 Travellers and the media 14.11 Further information
358 358 359 360 363 366 367 368 369 370 371 372
Index
374
List of Contributors
Luke Clements is a solicitor with Thorpes of Hereford and a Senior Research Fellow at Cardiff University. Jo Cooper is a solicitor advocate with a Higher Courts Qualification who specialises in public order law, particularly cases concerning demonstrations. He writes a regular column, ‘Public Order Review’, for Legal Action. Simon Creighton is a partner at Bhatt Murphy solicitors. He is the co-author of Prisoners and the Law (Butterworths, 2000) and has contributed a chapter to The Prisons Handbook (ed. Mark Leech, Pluto Press, 1997). Gareth Crossman worked as a solicitor specialising in criminal advocacy before becoming Liberty’s Advice and Information Officer. Tim Eicke is a barrister specialising in European free movement law, human rights law and immigration. He has extensive experience of the domestic courts (including the immigration adjudicator and the Immigration Appeal Tribunal) as well as the European Court of Justice and the European Court of Human Rights. He is joint editor of the European Human Rights Law Reports (Sweet & Maxwell) and one of the contributors to Human Rights – The 1998 Act and the European Convention. He has also lectured widely on EC free movement law and human rights law in the United Kingdom and abroad. Fiona Fairweather is Head of the School of Law, University of East Anglia. She has written and lectured widely on police powers and is the co-author of the Legal Action Group’s Police Powers: A Practitioner’s Guide, now in its third edition. Tess Gill is a barrister specialising in sex, race and disability discrimination, equal pay and European law. Prior to transferring to the bar she was a solicitor with private practice and trade union legal officer experience. She was appointed as parttime employment tribunal chair in 1995. She has published work on gender equality and is co-author of Women’s Rights a Practical Guide. She has considerable experience of EC and human rights law and was for many years a member of the EC Network of Experts on Equality Directives. She is currently a member of the equal pay task force. Anthony Hudson is a barrister, practising at Doughty Street Chambers. Specialising in all aspects of media and defamation law.
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Rachel Morris is Co-ordinator of the Traveller Law Research Unit at Cardiff Law School. Ijeoma Omambala is a barrister at Old Square Chambers specialising in employment and discrimination law. Camilla Parker is a solicitor and legal member of the Mental Health Act Commission. She was Legal & Parliamentary Officer at Mind (National Association for Mental Health) and now works as a freelance consultant advising on mental health law and policy. Camilla Parker writes the mental health law update series for Legal Action. John Skinner is a solicitor specialising in criminal advocacy, with rights of audience in all criminal courts. He holds a Masters degree in criminology and has lectured on the English criminal justice system to undergraduates on US degree courses. James Strachan is a practising barrister at 4-5 Gray’s Inn Square and specialises in public and administrative law including human rights. He is co-author with Rabinder Singh of The Law of Privacy (Oxford University Press, 2000) and author of ‘Human Rights Act 1998 and Commercial Law’ to be published in an Australian edition of essays entitled Commercial Law and Human Rights. He has lectured on many aspects of the Human Rights Act. John Wadham is a solicitor and the Director of Liberty (the National Council for Civil Liberties). He has acted for large numbers of applicants in cases before the Commission and Court of Human Rights. He is the editor of the civil liberties section of the Penguin Guide to the Law; the case law reports for the European Human Rights Law Review and is the author of Blackstone’s Guide to the Human Rights Act 1998. He is the editor of a forthcoming series of publications being produced on the Human Rights Act for Blackstone’s on a subject-by-subject basis. He has also contributed to many other publications and written many articles on human rights and civil liberties. He is a member of the Government’s Human Rights Act Task Force and has been commissioned to train many public authorities, senior officials, police officers, court staff and lawyers on the Act and the European Convention on Human Rights. Johan Wilhelmsson is a Swedish lawyer and Master of European Laws. His LL.M essay was entitled ‘Public Access to Documents in EU/EC Law’. He has been working for the Campaign for Freedom of Information since April 1999, mainly on the Freedom of Information Bill and data protection. Nicola Wyld is a solicitor who has worked in private practice, specialising in child law and at the Children’s Legal Centre. She now works as legal adviser at Voice for the Child in Care, and as a family mediator.
Introduction
Since the 1930s, Liberty (the National Council for Civil Liberties) has been working to defend civil liberties and to promote human rights in the United Kingdom. We have taken up important Test cases, campaigned on a very wide range of issues and lobbied Parliament on proposed new laws. An important element of this work has been the provision of free legal advice and information to the public. Your Rights complements this service by providing a guide to rights, liberties and responsibilities. Your Rights has been written by expert lawyers. It is intended primarily for people who have no specialist legal knowledge, although we hope it will also serve as a useful resource for lawyers and other advisers. We have tried to write it in an accessible way, avoiding unnecessary jargon, but the law is complex and sometimes this has been difficult. Changes to the criminal justice system include the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999. Changes are already in force for asylum seekers. On privacy, the Data Protection Act 1998 came into force early in 1999 and the Freedom of Information Act 2000 will begin to have an effect in 2000. At the time of writing it is not clear whether the Government will succeed with eroding the right to jury trial, although the Terrorism Bill is likely to extend the provisions of the Prevention of Terrorism Act. The major change in this volume is the Human Rights Act 1998, which comes into force on 2 October 2000. This Act incorporates the European Convention on Human Rights into domestic law and is the most significant human rights reform for many years. For the first time, positive rights such as privacy and family life, freedom of expression and assembly, the right to a fair trial, freedom from arbitrary arrest and freedom from discrimination will be enshrined in domestic law. Those who claim that their fundamental human rights have been breached will no longer necessarily have to endure the expensive and lengthy process of going to the European Court of Human Rights in Strasbourg. The Convention will apply to all public authorities performing a public function. That is, it will be unlawful for bodies such as the police, government departments, local councils and others to violate the rights in the Convention. All courts and tribunals are public authorities for the purposes of the Act and will be under a duty to respect Convention rights. The Human Rights Act will also mean a new interpretation of old (and new) laws.
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We would like to thank all our contributors for their generosity. Their services have again been given free of charge so that the income from this book can go to support Liberty’s work. We are also grateful for all those who have contributed to this guide in the past. Our thanks also to all the staff and volunteers at Liberty and, finally, to Anne Beech and everyone at Pluto. John Wadham Gareth Crossman Liberty June 2000
Liberty is one of the UK’s leading civil liberties and human rights organisations. Through a combination of test case litigation, lobbying, campaigning and research, Liberty has been working to promote civil rights and protect civil liberties for over sixty years. Liberty is the largest organisation of its kind in Europe and we pride ourselves on being democratically run. Producing this book is part of our commitment to promote and protect the rights of everyone in the UK. If you would like to help Liberty’s work please make a donation or become a member, or find out about our Lawyers for Liberty Network. Please photocopy this form, fill it out and return it to Liberty, Freepost, 21 Tabard Street, London SE1 6BP. Surname/s
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1
The Right of Peaceful Protest
This chapter deals with: • • • • •
1.1
The historic right of peaceful protest The formal regime for regulating public protest In practice – organising a protest action Public order offences Further information
THE HISTORIC RIGHT OF PEACEFUL PROTEST
To speak of rights at all in this context is to recognise the constitutional shift which is now in progress. Mr Justice Stephen Sedley, November 1999
For centuries, legislators have resisted the notion of positive rights in the field of public protest and political expression. Whilst it might have been said that we were free to do anything which was not otherwise proscribed by law, to say that we had a positive right to assemble, to march together, to chant and to campaign – rights that might be weighed against the undoubted rights of property owners, road users or business people – was to swim against a strong current of judicial thinking and an ever-rising tide of repressive legislation, which appeared to tolerate protest only if it did not challenge or cause inconvenience to anyone. The constitutional shift that fundamentally alters this position is the incorporation into domestic law, in October 2000, of the European Convention on Human Rights. The Convention sets out a series of basic rights, which have relevance to every chapter in this book. In the field of political protest the Convention will have a dramatic effect in three key areas: •
It gives positive rights to – peaceful assembly freedom of expression freedom of thought, conscience and religion respect for private life
•
It forbids any public body, such as the police and local government, from acting in ways that conflict with the principles set out in the Convention.
•
It enables demonstrators to use the courts to challenge decisions that would restrict protest, and might enable them to mount defences to non-violent criminal offences connected with political protest. 1
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It is important to remember that the Convention does not give a trump card to political protest – rights to assembly and free expression are only two of a series set out in the Convention which deserve to be considered and weighed against each other. The very significant difference from the position before incorporation is that protesters can now point to a key constitutional document which recognises that political protest is not only of fundamental importance in our society, but also a positive indicator of the political health of the nation. Public protest itself is deeply rooted in our political culture. There have been countless times in the past – even in the recent past – when public demonstrations of support for a cause, or opposition to a policy or government, have changed the course of history. ‘People power’ is a very potent political force, whether at a national or a local level; whether to do with political causes or single issues; whether in support of striking workers or bereaved families, or in opposition to road building, live animal exports or Third World debt. Even when people have nothing else to fight with, it is often their solidarity with each other – to stand together and be counted across communities and even across continents – which proves to be their most powerful weapon. For as long as there have been governments there have been rules to restrict dissent. Over the centuries the law in this area has developed piecemeal, adapting to the prevailing attitudes and concerns of the governments and courts of the day. This dynamic process reflects the struggle that lies at the heart of public order law – the natural tension between the amount of freedom we demand as demonstrators and the amount of restriction we as electors want our Parliament to impose. Not all public protest takes the form of organised marches through town centres by people carrying placards and chanting slogans. Although the Public Order Act 1986 introduced extensive controls on such traditional forms of political expression, there has been a movement away from formal protest in favour of a proliferation of imaginative and diverse actions, some on private land, which have enabled political messages to be sent, and damaging practices to be frustrated, away from the restrictive controls of the police. Inevitably, one of the stated reasons given in 1994 and 1998 for extensions of the provisions of the Public Order Act 1986 was that the police needed additional powers to regulate new and varied methods of mass action, including raves, festivals, roads protests and hunt sabotage. The result is a statutory regime that is broader than ever before, with extensive powers that can be used not just against these and other ‘targeted’ groups, but against all manifestations of political protest, both formal and informal. There are always concerns that such wide discretionary powers are often exercised by the police in an unaccountable and discriminatory way. Choosing which powers to exercise, which protests to control and how to control them will often involve very delicate policy considerations. In practice, sensitive to criticism on political and human rights grounds, the police use their considerable powers against protest less often than the frequent use of criminal charges against protesters themselves. In this chapter we set out: • • •
the formal regime for regulating public protest; the practical consequences for organisers; the principal public order offences directed at demonstrators.
THE RIGHT OF PEACEFUL PROTEST
3
Where to find the law The most important statutory provision is the Public Order Act 1986, as extended by the Criminal Justice and Public Order Act 1994 and the Crime and Disorder Act 1998. These statutes together set out the powers of the police to impose conditions on marches, and on static demonstrations such as rallies, pickets and vigils. The Public Order Act 1986 also sets out the main public order offences, such as riot, affray and threatening behaviour, which are directed at people on demonstrations. Another significant statute is the Police and Criminal Evidence Act 1984 which gives the police powers to arrest and detain people suspected of committing criminal offences (see Chapter 6). The full text of these statutes is set out in legal reference books such as Blackstone’s Criminal Practice (see ‘Further information’ at the end of this chapter). Even after these major pieces of legislation, public order law is far from unified. This is because, as well as their powers under these recent statutes, the police retain some historic ‘common law’ powers, such as the power to take action to prevent a breach of the peace. There are also numerous bye-laws, passed by local authorities, which are specific to particular areas and often restrict our rights or impose obligations on us. Other legislation sometimes refers to rights to demonstrate. Picketing during industrial disputes, for example, is regulated by employment laws. Another important source for today’s law is reported cases, showing how the courts have approached particular situations in the past. All laws have to be interpreted – the courts have to decide exactly what counts as a ‘public place’, for example – and the precedents from previous court decisions are a useful indication of how they might react if the same situation were to occur again. Many of these cases are reported regularly in publications such as Legal Action (see ‘Further information’ below), which has a comprehensive round-up of public order cases every February and August. All the above – our domestic statute law, common law and all the cases that interpret them – will now have to be considered in the light of the European Convention on Human Rights. The Convention is set out in Chapter 5, but important provisions in the field of public protest include the right to liberty (Article 5), fair trial (Article 6), respect for private and family life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10) and of peaceful assembly (Article 11). In addition, the Convention outlaws discrimination over the exercise of those rights on the basis of race, sex, religion, colour and political or other opinion (Article 14). Our courts will also have to consider the many cases in which the European Court of Human Rights in Strasbourg has given guidance on the meaning of the Convention. This court has been operating for decades, and Convention law is already highly developed. Unlike our approach to interpreting domestic law, the European Court has been creative, applying the spirit of the Convention to new situations that arise rather than insisting on applying the letter of an outdated law. As a result, the Convention Articles themselves are only a starting point. Important additional rights – particularly in the context of the criminal law – have been ‘read in’ to the Convention by the Strasbourg Court. Liberty has been at the forefront of challenging potential breaches to our Convention rights and in recent years has been responsible for bringing some of the most important cases for consideration by the European Court of Human Rights.
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1.2
THE FORMAL REGIME FOR REGULATING PUBLIC PROTEST
Marches and processions The Public Order Act 1986 refers to marches as ‘processions’ and to all other static demonstrations as ‘assemblies’. A ‘procession’ is simply defined as people moving together along a route; the law does not provide a minimum number to constitute a procession, so even a handful of people going to a Town Hall to hand in a petition will constitute a procession. The Act gives the police extensive controls over processions. Organisers of most processions must give advance notice to the police. The police may impose conditions on processions and, in limited circumstances, have them banned. Failure to comply with these provisions is a criminal offence. Who is the organiser? There is no legal definition. For a big procession an official organiser will probably have been selected well in advance of the date. For a spontaneous event the organiser could be anyone who takes the lead. Advance notice The rules are designed to ensure that the police are told, in advance, about the vast majority of political marches. Specifically, they say that notice should be given of any procession if it is intended to: • • •
Demonstrate support for or opposition to the views or actions of any group. Publicise a cause or campaign. Mark or commemorate an event.
Notice need not be given if it is not reasonably practicable to do so in advance. This is intended to allow for a completely spontaneous procession, for example, when a meeting turns itself into a march or, as Christian CND put it, when it is necessary ‘to call acts of witness or protest at short notice’. If a prosecution is brought, it will be for the Magistrates’ Court to decide whether notice of any kind could have been given. A last-minute telephone call to the police is advisable to show you are prepared to follow the spirit of the law. A record should be kept of the call. Notice is also not required if it is a funeral procession or a procession commonly or customarily held. This will include the Lord Mayor’s Show in the City of London, the Notting Hill Carnival and other annual local parades, including those organised by religious groups. If a protest march occurs regularly (weekly, annually) at the same time along the same route, then no notice should be required. Where notice is required it must be in writing and must include: • • • •
The date of the procession. The time it will start. The proposed route. The name and the address of the organiser.
The written notice must be delivered to a police station in the area where the procession is planned to start (or the first police area in England on the route if it starts in Scotland), either by hand or by recorded delivery six clear days in advance. ‘Six clear days’ means, effectively, a full week in advance, for example, on Saturday for a procession the following Saturday.
THE RIGHT OF PEACEFUL PROTEST
5
If a procession is planned at short notice (less than one week), then the organiser is required to deliver written notice by hand as soon as reasonably practicable. Offences connected with notice The organiser commits an offence (maximum penalty fine up to £1,000) if: • •
Notice was not given as required. The date, starting time or route differs from that given on the notice.
There is no power of arrest, but the police could rely on their general power of arrest (see section 25 of the Police and Criminal Evidence Act, Power of Arrest, p. 152). In practice it has proved very difficult for the police, in the handful of prosecutions brought under this section of the Act since 1987, to prove that a particular person was the organiser of a march. Unless the police can do so, their powers to prosecute are greatly curtailed. Even if they can, it is a defence if you can prove either: •
You were not aware that notice had not been given or not given in time.
•
The different date, starting time or route was due to circumstances beyond your control or was changed with the agreement of the police or by direction of the police.
Police conditions on marches There is no guarantee that the police will allow your proposed procession to take place as you want it. The police have extensive powers to impose conditions on marches, and even to ban them (see below). In advance, the Chief Constable (or the Commissioner in London) can impose conditions relating to the route, number of marchers, types of banners or duration, or restrict entry to a public place. These conditions must be in writing. After the procession has begun the most senior officer on the spot can impose similar conditions, which do not have to be in writing. The Public Order Act 1986 says that conditions can be imposed only if the senior officer reasonably believes that the procession may result in: • • •
serious public disorder; or serious damage to property; or serious disruption to the life of the community.
The senior officer may also impose conditions if he or she reasonably believes that the purpose of the organisers is to intimidate others ‘with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do’. The conditions must be ones that the officer believes are necessary to prevent disorder, damage, disruption or intimidation. Where organisers have sufficient notice of proposed conditions, they can be challenged in the courts (see section 1.3 below). In particular, with the incorporation of the European Convention on Human Rights, the police are under a positive duty not to act incompatibly with the Convention and conditions may be challenged on the grounds that they are excessive or unreasonable, or do not respect Convention rights. Failure to comply with a valid condition, properly imposed, is a criminal offence with different penalties for organisers and other participants (see below).
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Banning marches The Public Order Act 1986 gives police power to ban all or a ‘class’ of processions in a local area for up to three months, by way of a banning order. If a Chief Constable (or the Commissioner in London) is satisfied that the powers to impose conditions will not be sufficient to prevent serious public disorder if the procession takes place, then he must apply for a banning order. Outside London, the Chief Constable applies to the district council for a banning order. The district council is not obliged to make the order, and it must have the Home Secretary’s consent to any banning order it does make. In London, the Commissioner makes the order with the Home Secretary’s consent. A banning order can cover all or part of a district (or all or part of the Metropolitan Police area or the City of London) and can ban all processions or just those within a certain class (for example, processions marking the death of a political terrorist). A blanket ban on all processions is often imposed, even though it is designed to prevent one march only. The standard formula is to ban ‘all public processions other than those of a traditional or ceremonial character’. Once again, banning orders can be challenged in advance by reference to the European Convention, but failure to comply with a valid banning order, properly imposed, is a criminal offence (see below). Static demonstrations, rallies and assemblies The Public Order Act 1986 gives the police specific powers to control static demonstrations which are similar to those for processions (see above). A ‘public assembly’ is 20 or more people gathered together in a public place which is at least partly in the open air. A public place is any highway (including the pavement) and any other place to which the public or a section of the public can have access and therefore includes parks and gardens, shopping precincts, shops and offices, restaurants and pubs, cinemas, football stadia, rights of way, and so on. A public assembly could be 20 people spaced across a wide entrance, but probably not four sets of five pickets at different factory gates. Any static group of less than 20 people will not constitute a public assembly and therefore cannot be regulated under the Public Order Act 1986. Although the police have power to impose conditions, there is no power to ban a public assembly altogether, and no advance notice need be given of any public assembly. Police conditions on public assemblies Conditions may be imposed on a public assembly which restrict: • • •
The place – for example, by forcing pickets to move from embassy gates. The duration – for example, by reducing a 24-hour vigil to four hours. The numbers – for example, by reducing a mass picket from thousands to 20.
Similar to the powers concerning processions, the Chief Constable (Commissioner in London) can impose conditions in advance (in writing) or the most senior officer on the spot can impose conditions as soon as 20 people have assembled. The grounds for doing so – such as fear of serious public disorder – are also the same as for processions. Whenever the police impose conditions they must consider the
THE RIGHT OF PEACEFUL PROTEST
7
European Convention rights of those who may be affected and be prepared to justify them in court if challenged. Police powers to ban ‘trespassory assemblies’ A ‘trespassory assembly’ is 20 or more people on land in the open air without the permission, or in excess of the permission, of the occupier. A group of 30 celebrators at Stonehenge without permission would constitute a trespassory assembly because the land there is privately owned. Unlike a simple assembly, the police have power to ban any trespassory assembly where there is a risk of serious disruption to the life of the local community, or where there is a risk to an important site or building. The police can impose a ban over an area up to five miles around the site, prevent people travelling to the assembly, and can arrest those who organise or take part in the assembly itself. This is a widely drawn provision, which puts a great deal of power in the hands of occupiers of land. Liberty was involved in a Test case in 1999 to challenge the legality of a ban on a group of people who were holding a small demonstration on a public roadway. It was a peaceful, non-obstructive gathering on a road which was open to the general public, but the police said that because the group were not ‘passing and re-passing’ – that is, doing what the road was traditionally intended for – they were legally classified as trespassers. The House of Lords agreed with Liberty that the highway was there to be used for peaceful political protest and that the public therefore had a right of peaceful assembly on the highway. Other police powers In addition to the powers that the police are given by the Public Order Act, they have traditional powers, such as those relating to breach of the peace and obstruction of the highway, and those conferred by local bye-laws, which can be used to move or disperse a crowd that has assembled for a common purpose. Whatever the size of the gathering, the police also have powers to stop and search for weapons – in some circumstances, whether or not they suspect the individual concerned (see powers of stop and search, below) – and have recently been given new powers to require the removal of facial coverings which they believe are being worn to avoid identification. Offences If you know that a Public Order Act condition has been imposed on either a procession or a public assembly, it is an offence if you do not comply, either as an organiser or as an ordinary participant. It is also an offence to incite others not to comply. If you know that a procession or trespassory assembly has been banned, it is an offence for you to organise, to take part in it or to incite others to take part in it. In principle the police can arrest organisers or demonstrators, which in a large gathering gives them extremely wide discretionary powers as to whom they choose to remove from the scene. The maximum penalty for organisers or those who incite is three months’ imprisonment or a fine at level 4 (currently £2,500) and for participants a fine at level 3 (currently £1,000). It is a defence to prove that any failure to comply with a condition was beyond your control.
8
YOUR RIGHTS
Additional powers in London and other towns There are several nineteenth-century statutes (Metropolitan Police Act 1839, City of London Police Act 1839 and Town Police Clauses Act 1847) which enable the Commissioners of Police in London and the City or local councils outside London to make regulations and give directions to prevent obstruction and to keep order. Directions are given to constables and are not required to be made public. There are no conditions that must be satisfied before directions can be given, and, therefore, little scope to challenge them as excessive or unjustified. When lawful directions have been issued (for example, not to continue down a particular street), and you have been ‘acquainted’ with them, you commit an offence if you do not comply. You could also be charged with obstructing the police (see p. 26). Police directions are often used to restrict protest events, but over the last decade police forces in different parts of the country seem to have been more ready to turn to these discretionary powers to regulate not just political demonstrations, but also raves and festivals, and the movement around the country of groups of people such as pickets, football supporters, new age travellers or road protesters. When directions are made, the police can be given very wide powers indeed, as the following examples – all from the last decade – show: •
During the News International dispute at Wapping the Metropolitan Commissioner’s directions, which were renewed monthly during the dispute, gave the police authority to close streets – even to residents – and to stop any person walking or driving in any street in Tower Hamlets.
•
When a ‘Stop the City’ demonstration was planned, the City of London Commissioner issued directions under which the police arrested people who distributed leaflets or gathered in groups of three or more.
•
In Salisbury, the district council made an order banning ‘hippies’ from the town centre for two days and restricted them to a designated route.
In the City of London, the ‘Ring of Steel’ anti-terrorist roadblocks were originally set up under police powers to stop and search suspected offenders (see p. 143, Stop and Search), but after protests the police conceded in practice that they had no special grounds to think that the people caught up in the roadblocks were terrorist suspects. The roadblocks continued, but were then justified by reference to directions issued by the City of London Police Commissioner. In due course, the Government brought in specific statutory powers, but the episode highlighted the use of ‘Commissioner’s Directions’ in anticipation of powers not yet granted under statute. Liberty is prepared to challenge the use of these powers. Demonstrations near the Houses of Parliament At the beginning of each Parliamentary session, the Metropolitan Police Commissioner is instructed by Parliament to give directions under the Metropolitan Police Act 1839 to police officers ‘to disperse all assemblies or processions of persons causing or likely to cause an obstruction, disorder or annoyance’ within a specified area around Westminster whenever Parliament is sitting (see map opposite). The police must rely on their general powers of arrest or powers to prevent a breach of the peace (see p. 29). You commit an offence (maximum sentence, a fine of £400) if you fail to disperse after you are made aware of the Commissioner’s
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O@K? O2@@@@@@@@@6K? ?O2@@@@@6Kh?O@K?O2@@@6KfO2@@@6K?gO2@@@@@@@@@@@@@@6XgO2@@@@@6K?eO26K O26K ?O2@@@@@@@@@@@@@@@@@6XfO2@@@@@6K?g?W2@@@@@@@@@@@@@@@6Ke?W2@@@@@@@@@@@@@@@@@@@6XhO2@@@@@@@@@@6KfW2@@@@@@@@@@@@@@@@@@@@@@@6K?O2@@@@@@@@@@@@@@@@@@@1fW2@@@@@@@@@@@@@@@@6X @@@@@@@@@@hf?W2@@@@@@@@@@@@@@@@@@@@)X?W2@@@@@@@@@@gW&@@@@@@@@@@@@@@@@@@6KO&@@@@@@@@@@@@@@@@@@@@@1gW2@@@@@@@@@@@@@@6Xe7@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@L?e7@@@@@@@@@@@@@@@@@@)X? ?J@@@@@@@@@@hf?7@@@@@@@@@@@@@@@@@@@@@@1?7@@@@@@@@@@5f?W&@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@f?W&@@@@@@@@@@@@@@@@)K?@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@1?e@@@@@@@@@@@@@@@@@@@@)X ?@@@@@@@@@@5hf?@@@@@@@@@@@@@@@@@@@@@@@@?3@@@@@@@@@@HfW&@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@fW&@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@?e@@@@@@@@@@@@@@@@@@@@@1 ?N@@@@@@@@@Hhf?3@@@@@@@@@@@@@@@@@@@@@@@?N@@@@@@@@@5?e?W&@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@f7@@@@@(MeI'@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@(M?I4@@@@@@@@@?e3@@@@@@@@?eI'@@@@@@@@L? @@@@@@@@5?hf?V'@@@@@@@@@@@@@@@@@@@@@@??3@@@@@@@(Y?e?7@@@@@@@(M?fI4@@@@@@@@@@@@@@@@@@(Mf?I'@@@@@f@@@@@@H?e?V'@@@@@@@@@@@@@@@(?'@@@@@@@@(?4@@@@@@@@@@@@@@@@@Hf?I4@@@@@@?eN@@@@@@@5?e?V'@@@@@@@1? @@@@@@@@H? N@@@@@@@@(M??I'@@@@@@@@??N@@@@@@@Hf?@@@@@@@(Yh?@@@@@@@@@@@@@@@@@H?gV'@@@@f@@@@@@gV'@@@@@@@@@@@@@(Y?V'@@@@@@@HeI'@@@@@(?'@@@@@@@?g?I'@@@@?e?@@@@@@@H?fN@@@@@@@@? 3@@@@@@@ ?@@@@@@@(YfV'@@@@@@@?e@@@@@@@?fJ@@@@@@(Y?h?3@@@@@(MI'@@@@@@@h?N@@@@e?J@@@@@@g?N@@@@@@@@@@@@@He?N@@@@@@@?e?V'@@@@H?N@@@@@@@?hV4@@@?e?@@@@@@@g?@@@@@@@@? N@@@@@@@ ?@@@@@@@H?f?N@@@@@@5?e@@@@@@@Le?W&@@@@@@Hhe?V'@@@@HeN@@@@@@@he3@@5e?@@@@@@@h3@@@@(MI4@@@@?f@@@@@@@?fV'@@5?e@@@@@@@? ?@@@@@@@g?@@@@@@@@? ?@@@@@@@ ?@@@@@@@h@@@@@(Y?e@@@@@@@1e?7@@@@@@@?hfV'@@5?e?3@@@@@@heV40Ye?N@@@@@@L?gV'@@0Yhf@@@@@@@?f?V40Y?e@@@@@@@?fO2@?h?3@@@@@@gJ@@@@@@@5? ?@@@@@@@ ?@@@@@@@f?W2@@@@@0Yf@@@@@@@@e?@@@@@@@5?hf?V40Y?e?N@@@@@@fW2@@he@@@@@@)Kg?V+M @@@@@@@?hf@@@@@@@?eW2@@@Lh?N@@@@@@f?W&@@@@@@@H? ?@@@@@@@ ?@@@@@@@L?eW&@@@?h@@@@@@@5e?@@@@@@@H? ?J@@@@@@e?W&@@@L?h@@@@@@@@@6K? @@@@@@@?hf@@@@@@@??O&@@@@1he@@@@@@fO&@@@@@@@5 J@@@@@@@ ?@@@@@@@)K?O&@@@@?h@@@@@@@HeJ@@@@@@@ ?7@@@@@@eO&@@@@1?h3@@@@@@@@@@6K? @@@@@@@?hf3@@@@@@@@@@@@@@@he@@@@@@@@@@@@@@@@@@(Y @@@@@@@@ ?@@@@@@@@@@@@@@@@?h@@@@@@@?e@@@@@@@@ ?3@@@@@@@@@@@@@@@LhV'@@@@@@@@@@@@@6K? @@@@@@5?hfN@@@@@@@@@@@@@@@he@@@@@@@@@@@@@@@@@(Y? N@@@@@@@ ?@@@@@@@@@@@@@@@@?h@@@@@@@?eN@@@@@@@ @@@@@@@@@@@@@@@1h?V'@@@@@@@@@@@@@@@ @@@@@@H?hf?@@@@@@@@@@@@@@@he@@@@@@@@@@@@@@@@(Y
?@@@@@@@ ?@@@@@@@@@@@@@@@@?h3@@@@@@Le?@@@@@@@ ?7@@@@@@@@@@@@@@@5heV'@@@@@@@@@@@@@@L?hf@@@@@@ ?@@@@@@@@@@@@@@@he@@@@@@@@@@@@@@@@H? ?@@@@@@@ ?@@@@@@@@@@@@@@@@?hN@@@@@@1e?@@@@@@@ ?@@@@@@@@@@@@@@@@Hhe?V4@@@@@@@@@@@@@)Xhf@@@@@@ ?@@@@@@@@@@@@@@@he@@@@@@@@@@@@@@@@ ?@@@@@@@ ?@@@@@@@@@@@@@@@@?h?@@@@@@@e?3@@@@@@ ?@@@@@@@@@@@@@@@@?hf?I4@@@@@@@@@@@@1hf@@@@@@ ?@@@@@@(MI'@@@@@he@@@@@@@@@@@@@@@@L? ?@@@@@@@ ?@@@@@@@@@@@@@@@@?hJ@@@@@@5e?N@@@@@@ ?@@@@@@@@@@@@@@@5? I4@@@@@@@@@@L?he@@@@@@ ?@@@@@@HeV'@@@5he@@@@@@@@@@@@@@@@)X ?@@@@@@@ ?@@@@@@@(M?I'@@@@?h7@@@@@@Hf@@@@@@L? ?@@@@@@@eI'@@@@H? I4@@@@@@@@1?he@@@@@@ ?@@@@@@?e?V4@0Yhe@@@@@@@@@@@@@@@@@1 ?@@@@@@@ ?3@@@@@@H?eV4@@@?h@@@@@@@?f@@@@@@1? ?@@@@@@@e?V4@@@ ?@@@@@@@@?he@@@@@@L?hf?@@@@@@? @@@@@@@@@@@@@@@@@@L? ?@@@@@@@ ?N@@@@@@ @@@@@@@?f@@@@@@@?hf?W2@@?e?@@@@@@@heW26Xe?O2@@?h?3@@@@@@@?he@@@@@@1?hf?@@@@@@?h?W2@6Xf@@@@@@@0MI'@@@@@@@1? J@@@@@@@h?W2@@@f@@@@@@heW2@@@?e@@@@@@@?f@@@@@@@?hfW&@@@Le?@@@@@@@h?W&@@)X?@@@@@?h?N@@@@@@@?he@@@@@@@?hfJ@@@@@@?hW&@@@1f@@@@@@fV'@@@@@@@L 7@@@@@@@h?7@@@@f@@@@@@h?W&@@@@?e@@@@@@@Lf3@@@@@@Lhf7@@@@1e?@@@@@@@h?7@@@@)X@@@@@Lh?J@@@@@@@?he@@@@@@@?hf7@@@@@@?g?W&@@@@@e?J@@@@@@f?N@@@@@@@)X? @@@@@@@@hJ@@@@@L??J@@@@@@hW&@@@@@Le@@@@@@@1fN@@@@@@)X?he@@@@@@eJ@@@@@@@L?gJ@@@@@@@@@@@@)X?g?7@@@@@@5?he@@@@@@@Lhe?J@@@@@@@?gO&@@@@@@e?7@@@@@@L?f3@@@@@@@)K @@@@@@@@L?f?O&@@@@@1??7@@@@@@L?f?W&@@@@@@@e@@@@@@@@f?@@@@@@@)Xh?J@@@@@@?O&@@@@@@@)Xg7@@@@@@@@@@@@@)KgJ@@@@@@(Y?h?J@@@@@@@1he?7@@@@@@@?fO2@@@@@@@@eJ@@@@@@@1?fN@@@@@@@@@@? @@@@@@@@)Ke?O2@@@@@@@@?J@@@@@@@)KfO&@@@@@@@H?J@@@@@@@@L?e?3@@@@@@@)K?gO&@@@@@@@@@@@@@@@@@)K?f@@@@@@@@@@@@@@@@6Ke?O&@@@@@@Hhe?7@@@@@@@@L?h?@@@@@@@@@@@@@@@@@@@@@@@e7@@@@@@@@Lf?3@@@@@@@@@L ?J@@@@@@@@@@@@@@@@@@@@@@@W&@@@@@@@@@@@@@@@@@@@@@@??7@@@@@@@@)Xe?V'@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@5?heJ@@@@@@@@@1?h?@@@@@@@@@@@@@@@@@@@@@@5e@@@@@@@@@1f?V'@@@@@@@@1 ?7@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@??@@@@@@@@@@1fN@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@(MI'@@@@@@@@@@@@@@@@@(Y?he7@@@@@@@@@@?h?@@@@@@@@@@@@@@@@@@@@@@He@@@@@@@@@@gV'@@@@@@@5 ?3@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@5??@@@@@@@@@@5f?@@@@@@@@@@@@@@@@@@@@@(MI'@@@@@@@@@@@@@@@@@@@@@(Y??N@@@@@@@@@@@@@@@@0Yhf@@@@@@@@@@5?h?3@@@@@@@@@@@@@@@@@@@@@?e3@@@@@@@@@g?V4@@@@@(Y ?N@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@(Y??@@@@@@@@@(YgI4@@@@@@@@@@@@@@@@@(Y??V4@@@@@@@@@@@@@@@@@@@0Yf@@@@@@@@@@@@@@0M ?I4@@@@@@0Y?h?V4@@@@@@@@@@@@@@@@0M?fV4@@@@@0M?h?I4@@0Y? 3@@@@@@@@@@@@@@@@@@@0M?I4@@@@@@@@@@@@@@@@@@@0YfI4@@@@@0Y?hI4@@@@@@@@@@@@@@0Yf?I4@@@0Mf?I40M?h?I4@@@@@@@@0M? I@M? V4@0?4@@0M I4@0M? I4@@@0M?
O2@@@@6K ?W26K? ?O26K? ?W2@@@@@6?2@@@@@@@@6X?gW2@@@@@@@@@@@@6K?O2@6X ?W2@@@@@@@@@@6K?he?O2@@@@@@@@@@@@6K?heW&@@@@@@6Xh?W2@@@@@6X ?7@@@@@@@@@@@@@@@@@@1?g7@@@@@@@@@@@@@@@@@@@@1 W&@@@@@@@@@@@@@6X?gW2@@@@@@@@@@@@@@@@@6K?h7@@@@@@@@,h?7@@@@@@@1 @@@@6X ?@@@@@@@@@@@@@@@@@@@@?g@@@@@@@@@@@@@@@@@@@@@@ ?W&@@@@@@@@@@@@@@@1?f?W&@@@@@@@@@@@@@@@@@@@@6X?g@@@@@@@@(Yh?@@@@@@@@5hf?J@@@@@)X?hf?@@@@@@@@@@@@@@@@@@@@Lg@@@@@@@@@@@@@@@@@@@@@@ W&@@@@@@@@@@@@@@@@@?fW&@@@@@@@@@@@@0?'@@@@@@@)Xg@@@@@@@@H?h?3@@@@@@@Hhf?7@@@@@@1?hf?3@@@@@@@@0MI4@@@@@@@)X?f@@@@@@@@@@@@@@@@@@@@@@ ?W&@@@@@(Me?I'@@@@@@?f7@@@@@@@(MgV4@@@@@@@1g@@@@@@@5he?N@@@@@@5?hfJ@@@@@@@@Lhf?N@@@@@@@?fI'@@@@@@1?f@@@@@@@(M?fI'@@@@@@ ?7@@@@@(Y?fN@@@@@@?f@@@@@@@(Y?hI'@@@@@@L?f@@@@@@@Hhf@@@@@@H?hf7@@@@@@@@1 @@@@@@@?f?N@@@@@@@?f3@@@@@@Hg?V'@@@@@ ?@@@@@@Hg?3@@@@5?e?J@@@@@@(Yhe?V'@@@@@)Xf3@@@@@@?hf3@@@@@ @@@@@@@@@@ @@@@@@@?g3@@@@@@?fN@@@@@@?hV4@@@@ ?@@@@@@?g?V'@@@H?e?7@@@@@(Y?hfN@@@@@@1f?@@@@@@?hfN@@@@@hf?J@@@@@@@@@@ @@@@@@@?gN@@@@@@?f?@@@@@@?heI4@@ ?@@@@@@LhV'@5f?@@@@@@H ?@@@@@@@f7@@@@@@?hf?@@@@@hf?7@@@@@@@@@@L?hf@@@@@@5?gJ@@@@@@?f?@@@@@@L ?@@@@@@)X?g?V+Yf?@@@@@@? ?@@@@@@@L?e@@@@@@@?hf?@@@@@hfJ@@@@@@@@@@@1?hf@@@@@@h7@@@@@@?f?@@@@@@1fW2@6X? ?@@@@@@@)X ?@@@@@@? ?@@@@@@@1?e@@@@@@@?hf?@@@@@hf7@@@(MI'@@@@@Lhf@@@@@@1?g@@@@@@5?f?@@@@@@@L??W&@@@1? ?3@@@@@@@)X?hf?@@@@@@? ?3@@@@@@@?e@@@@@@@?hf?@@@@@he?J@@@@H??N@@@@@1hf@@@@@@@?e?O2@@@@@@(Y?f?3@@@@@@)KO&@@@@@? ?N@@@@@@@@)Khf?@@@@@@? ?N@@@@@@@?e@@@@@@@?hf?@@@@@he?7@@@@e?J@@@@@@L?he@@@@@@@@@@@@@@@@@@(Yg?N@@@@@@@@@@@@@@@?
9
O@K?hfO2@6X? O@K??O2@@@6KgO2@@@@@@@@@@@@@@@@@@@@@@)X O2@@@@@@@@@@@@6XeW2@@@@@@@@@@@@@@@@@@@@@@@@@)X? W2@@@@@@@@@@@@@@@)KO&@@@@@@@@@@@@@@@@@@@@@@@@@@@1? ?W&@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@L ?7@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@1 J@@@@@@@@0?4@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@ 7@@@@@@(M?eI'@@@@@@@@@@@@@@@?e@@@@@@@@@(?'@@@@@@@@ @@@@@@@Hf?V'@@@@@@@@@@@@@5?e@@@@@@@@(Y?V'@@@@@@5 @@@@@@@?gV'@@@@@@@@@@@(Y?e@@@@@@@@H?eV'@@@@@H @@@@@@@Lg?V'@@@(?'@@@(Yf@@@@@@@@f?V4@@@5? @@@@@@@1hV'@(Y?V4@0Y?f3@@@@@@@g?I40Y? 3@@@@@@@h?V+YhfN@@@@@@@ N@@@@@@@@6K? ?@@@@@@@ ?3@@@@@@@@@@6K ?@@@@@@@L? ?N@@@@@@@@@@@@6K ?@@@@@@@1? 3@@@@@@@@@@@@@6K ?@@@@@@@@? V'@@@@@@@@@@@@@@6Xhf?@@@@@@@@? ?V'@@@@@@@@@@@@@@)X?he?@@@@@@@5? V4@@@@@@@@@@@@@@)Xhe?@@@@@@@H? I4@@@@@@@@@@@@@)X?h?@@@@@@@ I'@@@@@@@@@@1?h?@@@@@@@ W26Xg?V4@@@@@@@@@@?h?@@@@@@@L? ?W&@@1he@@@@@@@@@?h?@@@@@@@1? ?7@@@@L?h3@@@@@@@@?h?@@@@@@@@? ?@@@@@1?hN@@@@@@@@?hJ@@@@@@@@? ?@@@@@@LhJ@@@@@@@5?h7@@@@@@@@L ?@@@@@@)X?f?O&@@@@@@@H?h@@@@@@@@@)X? ?@@@@@@@)?26KO2@@@@@@@@5h?J@@@@@@@@@@1? ?@@@@@@@@@@@@@@@@@@@@@@Hh?7@@@@@@@@@@@L ?3@@@@@@@@@@@@@@@@@@@@5?h?@@@@@@@@@@@@@ ?N@@@@@@@@@@@@@@@@@@@(Y?h?3@@@@@@@@@@@H 3@@@@@@@@@@@@@@@@@(Yhe?V'@@@@@@@@@5? V4@@@@@@@@@@@@@@@0Y?hfV4@@@@@@@0Y? ?I4@@@@@@@@0M? ?I40M?
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Directions, which normally means that the police must read them to you, or at least summarise their effect, before they can arrest you. It is a defence to show that the free passage of MPs would not have been obstructed. The directions do not affect processions or meetings on a day when Parliament is not sitting. Picketing For more than a century, trade unions and organised groups of workers have used picketing as a powerful means of protecting their employment rights and improving the conditions in which they are expected to work. In recent years, picketing has been used by campaigning and protest groups as an effective way of bringing their views to public attention, for example, by picketing premises where politicians are due to attend, demonstrating outside head offices of organisations and ‘blockading’ ports and airports supporting live animal exports. The law gives special status to picketing when it is related to an industrial dispute, but no special exemption under
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YOUR RIGHTS
the criminal law. However, most picketing is lawful unless it causes an obstruction of the highway or is designed to intimidate (see p. 27). You are protected under the civil law if you picket in connection with an industrial dispute at or near your workplace for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working (Trade Union and Labour Relations Act 1992). Employers have increasingly used the civil courts to get injunctions in order to limit the effectiveness of picketing. Injunctions have been granted on the basis that it was not the workplace of some or all of the pickets, or that the picketing was not peaceful. Unions that continue to picket in breach of an injunction are in contempt of court and liable to pay very heavy fines. By injunction the court can limit the location and number of pickets and impose conditions on their conduct. No legal case has been decided which specifies that a particular number of pickets at the location of an industrial dispute will always be lawful. But a government Code of Practice, which the courts can refer to, suggests that the number of pickets at any entrance to a workplace should not generally exceed six. In applications for injunctions, the civil courts have tended to set the upper limit of the number of pickets that must be allowed at six. Other cases have given the police very wide discretion to limit the number of pickets if they believe it to be necessary to prevent a breach of the peace or an obstruction of the highway. Secondary picketing – picketing at a workplace or premises where you do not work – does not have the same civil law protection, but is not a criminal offence. It is worth remembering that the police do not have any enhanced powers over secondary pickets and it is not their job to enforce the civil law on picketing, even if an injunction is in force. Their general powers in this area are dealt with below. Police powers and picketing Giving the police greater power to control and restrict picketing was a primary purpose of the Public Order Act 1986. Any picket of 20 or more people is a ‘public assembly’ and therefore subject to police conditions under the Act (see above). In addition to the power to impose conditions, the police possess a wide range of public order powers to restrict and control picketing and to arrest pickets for various offences. These include: •
Obstruction of the highway (see p. 27) on the basis of too many pickets, even if they are moving, or a single picket trying to compel a driver to stop and listen.
•
Obstruction of the police (see p. 26) – for example, refusing to comply with lawful directions when the police are acting to prevent a breach of the peace.
•
Using threatening, abusive or insulting words or behaviour (section 4, Public Order Act 1986; see p. 25).
•
Disorderly conduct likely to cause harassment, alarm or distress (section 5, Public Order Act 1986; see p. 26).
•
Aggravated trespass (section 68, Criminal Justice and Public Order Act 1994: see p. 26).
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Meetings Public meetings A public meeting is one which is open to the public to attend, with or without payment, and is held in a public place (a place to which the public have access on payment or otherwise). Many private premises, including town halls and council buildings, church halls, football stadia, pubs, become ‘public places’ when public meetings are held there. A meeting could be any number of people and there is no duty to advertise it or to offer tickets widely. Local council meetings are public (except for confidential parts of the agenda). If you are the organiser of a public meeting on private premises, you must ensure that you comply with the terms and conditions for the use of the premises, including all fire and safety regulations, and that the meeting is conducted in an orderly manner. Stewards should be easily identifiable, but they should not wear a uniform to promote a political objective or signify membership of a political organisation. They must not try to take over the functions of the police or use force to promote a political objective (these acts would be illegal). They can assist in the admission and seating of members of the public and in the control of disorder or to remove members of the public who go too far in their heckling. It is an offence under the Public Meeting Act 1908 to try to break up a lawful public meeting by acting in a disorderly manner or to incite others to do so. The maximum penalty is six months’ imprisonment and/or a fine on level 5. If a police officer is present and reasonably suspects you of trying to disrupt the meeting, then, at the chairperson’s request, he or she can ask you for your name and address. It is an offence if you fail to give these details or give a false name or address (maximum penalty a fine on level 1). These offences do not carry a power of arrest, although the police could rely on their general powers of arrest (see p. 152). If there is serious disruption or aggressiveness, and if the police believe that you are involved, then, relying on their common law powers to prevent a breach of the peace, the police could ask you to leave the meeting, threatening you with arrest if you refused, or they could arrest you for an offence under section 4 or section 5 of the Public Order Act 1986 (see p. 25–6). Any meeting of 20 or more people which is wholly or partly in the open air is a ‘public assembly’ and subject to conditions imposed by the police under the Public Order Act 1986 (see p. 6). Such a meeting held on land without the owner’s permission may be a trespassory assembly and could be subject to a banning order (see p. 7). Organisers should be aware that plain clothes police officers may attend political meetings without authority for the purpose of collecting information. Election meetings The Representation of the People Act 1983 makes special provision for public meetings held at the time of local or national elections. All candidates are entitled to use rooms in local schools and other publicly owned meeting halls, free of charge, for election meetings provided that the meetings are open to the public and are intended to further the candidates’ prospects by discussion of election issues. Some local authorities have refused permission to the National Front to use their premises for election meetings on the grounds that the National Front did not intend their meetings to be genuinely open to the public or because damage was likely to be
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caused to the premises. In 1986, the Court of Appeal upheld the right of a British National Party candidate to be allowed to use a schoolroom for an election meeting and ruled that a candidate who was refused such access could sue the local authority to enforce his or her rights under the election law. The Representation of the People Act makes it an offence, punishable with a fine up to £1,000, to disrupt, or to incite others to disrupt, an election meeting. If a police officer reasonably suspects you of trying to disrupt the meeting, then, at the chairperson’s request, he or she can ask you for your name and address and it is an offence if you fail to give these details or falsify them. Police powers for public meetings also apply to election meetings. Private meetings A meeting is private if members of the public are not free to attend, in payment or otherwise (for example, the meeting of a trade union branch or a political party). A private meeting remains private even though it is held in a public building such as a town hall. Organisers can refuse entry or require someone to leave. Private meetings are governed by the rules of the organisation involved, or by conditions specified by the organisers together with any requirements, for example, as to maximum numbers, which apply to the premises where the meeting takes place. Unless the police are invited by the organisers, they have no right to enter a private meeting and can be asked to leave unless they are present to prevent crime or an imminent breach of the peace. Using the highway The law provides a specific right to use a public highway: the right to pass and repass along the highway (including the pavement), and the right to make ordinary and reasonable use of the highway. Reasonable use includes orderly processions and (since an important Test case brought by Liberty; see p. 7 above) peaceful nonobstructive public assemblies on the highway. Any unreasonable obstruction of the highway is a criminal offence (see p. 27 below). There may also be bye-laws – laws relating to a particular area – that restrict activities which are incidental to the right to use the highway (see the following two sections). Since access to the public highway is often, in practice, central to the exercise of powers to demonstrate, the courts should be slow to countenance any improper restriction by police. Street collections, leafleting, petitions, posters and newspapers Generally speaking, the law allows a wider latitude for collecting money for charitable operations than for commercial or political ones, both of which are more closely regulated by licensing. ‘Charitable purposes’ means any charitable, benevolent or philanthropic purpose. It includes the relief of poverty and the advancement of religion or education at home or abroad, but it does not include collections to raise funds for a political party or for a political campaign, such as CND or animal liberation. However, the law relating to these subjects is confused and inconsistently applied by the police. If in doubt, check bye-laws with the local authority and the police beforehand. There is no need to obtain a licence or certificate for handing out leaflets or collecting signatures for a petition. A leaflet must have on it the name and address
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of the printer. Some bye-laws contain restrictions on the places where leafleting may take place; check the bye-laws at the town hall. The police may also move leafleters if they appear to be causing an obstruction. It is an offence to hand out leaflets that are threatening, abusive or insulting or that are intended to stir up racial hatred. A petition to Parliament is governed by special rules and must conform to special wording. Copies of the rules can be obtained from: House of Commons Westminster London SW1A OAA Tel: 020 7219 3000
Sticking up posters in public places is quite legal, so long as: • • • •
You have the consent of the owner of the hoarding, fence or wall in question. The poster is no more than six feet square. It advertises a non-commercial event, including political, educational or social meetings. There is no bye-law to prevent it.
Persons over 18 may sell newspapers in the street or from door to door, as long as the sale is for campaigning purposes. If the sale is for profit, it becomes street trading or peddling (if door to door), both of which are illegal without a licence. Sometimes difficulty is caused because the police believe that the newspaper or magazine is less of a campaigning document and more a device to raise money for a political organisation. Also, the sale of newspapers may obstruct the highway, which is a criminal offence (see p. 27). Bye-laws Many activities on the highway and in other public places such as parks and gardens and on common land are restricted by local bye-laws. Bye-laws for parks may, for example, prohibit public meetings, bill-posting, the erection of notices, stalls and booths, and the sale or distribution of pamphlets and leaflets. They will usually give the police and local authority officials the power to remove anybody who breaches the bye-laws. Ministry of Defence bye-laws are used, for example, to keep trespassers out of US Air Force bases. The RAF Greenham Common bye-laws listed twelve prohibited activities, beginning with entering the protected area except by way of an authorised entrance, and including affixing posters to perimeter fences. A copy of local bye-laws should be on sale at the local town hall and also available for inspection. Bye-laws for land owned by an authority such as British Rail or British Coal, or by a government department, will be available directly from that authority. Often, bye-laws have to be prominently displayed near entrances to private land, and they should show the address from which to obtain copies. It is an offence to breach a bye-law. The penalty is set out in the particular byelaw or, if not, is a fine up to £100. Recent cases supported by Liberty have shown that when a charge is brought, bye-laws can be challenged on the basis that they are ultra vires, that is, beyond the scope of the Act of Parliament which created them, or that they are obviously unreasonable or inconsistent with or repugnant to the
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general law. Further, the courts would not enforce bye-laws which would operate to defeat a person’s Convention rights. For the right to use the highway for industrial and consumer picketing, see p. 10.
1.3
IN PRACTICE – ORGANISING A PROTEST ACTION
It is easy to be intimidated by all the laws that exist to regulate the expression of public protest. Liberty has long argued that the drift towards ever more repressive public order laws is counter-productive – that the more regulation Parliament provides, the more likely it is that campaigners and organisers of demonstrations will simply refuse to co-operate with the police in advance of an event. Instead, they will leave the police to cope with unexpected numbers of people who assemble at a location with no clear idea of what to do, where to go or who to turn to for direction. Recent demonstrations in major cities in relation to global capitalism and the cancelling of Third World debt were characterised by large numbers of people assembling at short notice with highly diverse political interests and demonstrating styles. Following the ‘J18’ demonstration in the City of London in 1999, police leaders accepted that their own responses were often inappropriate and heavyhanded, with problems of communication, insufficient numbers and lack of mobility a recurring theme. Political demonstrations come in all shapes and sizes, however, and organisers must decide for themselves what they want from a particular action, and whether co-operation with the police in advance of the event is likely to support or defeat those aims. Some of the most successful protest groups of the last decade have seen the restrictive legal framework as one of the necessary challenges that their own good organisation can overcome, or at least accommodate. Although the police have been given very wide powers under the Public Order Act 1986, the actual exercise of these powers has been remarkably rare since the Act came into force. Conditions are not routinely imposed on demonstrations, and banning orders have not been used as extensively as opponents of the legislation first feared. In fact, only a handful of the hundreds of thousands of prosecutions brought under the Act since 1987 have been for offences connected with organising marches or assemblies, defying banning orders or even breaching conditions imposed by police. The vast majority have been for the public order offences, ranging from riot to disorderly conduct (see p. 23–6), each of which involved allegations of specific offensive conduct by the person concerned, usually at the demonstration itself. The following sections show how complying with the law and negotiating with the police might be accommodated in the practical arrangements that organisers will be making, in any event, in preparation for a protest of significant size; and how structures developed to support the action itself can be adapted to support protesters who are arrested. Organising a protest action What sort of action? Whether you are planning a simple picket or vigil, or a set-piece march and rally you will have started by asking what sort of action will best achieve the results you
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are seeking. Are you seeking to persuade an identifiable group of people about a particular decision – councillors, perhaps, about a local planning issue – or are you seeking to demonstrate or mobilise support in the wider community for a longrunning cause or campaign? As organisers, you will match the public support and other resources available to you with the sort of impact you want to create. Are you seeking favourable publicity? Many groups, big and small, have secured a place in the public eye by the careful use of media opportunities and attractive or eyecatching stunts, as well as by more traditional shows of mass political support. Stewards and legal observers Whatever the nature of the action, an efficient stewarding operation avoids many of the interactions between protesters and police that have the potential for conflict. Protesters are usually quite happy to follow sensible instructions so long as they know that they are part of the organisers’ plan rather than some arbitrary decision made on the spot by an officious police officer. Stewarding, therefore, gives confidence to your protesters, whilst also enabling information about particular difficulties to reach the organisation room, or chief stewards at the protest, very quickly. It is important to appreciate, however, that the police and organisers may have very different views of what ‘efficient stewarding’ means. From the organisers’ point of view the real job of the stewards is to make sure that the event takes the course that the organisers want, not necessarily to solve problems for the police or to smooth things over where real conflicts exist. What the stewards are told to do might differ quite substantially from what the police want them to do. The police sometimes put conditions on demonstrations and assemblies, which need to be challenged in practice as unreasonable. Stewards can then play a very important role in that challenge (see below, ‘Challenging police decisions’). Stewards should be briefed prior to the protest on what exactly they should be doing, and whom they should report to in the event of difficulty. They are part of the organisation of the event and should be identifiable as such both to police and protesters by bibs, armbands, special T-shirts or badges (but obviously not a quasimilitary uniform, see p. 11). At a march, for example, they should have a map of the proposed route and the telephone number of an organisation room, if you can run to it (see below). Some organisations have ad hoc groups of legal observers who are prepared to attend demonstrations of any size and make an independent note of numbers and movements of police and protesters. In the event of arrests, they will make immediate notes of witnesses’ names and addresses. Observers can be a great help if events turn sour, but in any case their presence at a demonstration can be reassuring to protesters and police alike. It is important that they perceive themselves to be independent of the protest itself and its organisation. They may, therefore, wish to be identified in a way that distinguishes them from other people on the march, including stewards, for example by special badges, armbands or bibs. Often law students or lecturers from local colleges are prepared to provide this service if given enough notice. Inexperienced legal observers should be briefed by a solicitor (see legal cover section on p. 16), preferably in good time before the protest. Stewards and legal observers should know where to meet immediately after the event for a debriefing when any feedback or information they have – for example,
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notes from legal observers – can be retrieved. They should also be available to come to a defendants’ meeting if one becomes necessary (see below). Whether you predict there might be trouble or not, it can do no harm to pencil in such a meeting to take place two or three days after the event. Arranging such a meeting provides a safety net which will enable you to begin to draw all your resources together should there ever be a defendants’ group that needs to rely on them. Advance publicity and press liaison Prior to the event itself, advance publicity for demonstrators should include a clear statement of the venue for assembly, the time of departure (for a march) and the time and place of the eventual rally. Any venues you advertise ought – as a matter of good practice – to have been agreed with the owners/local authority/police in advance (see below). Otherwise, if you are forced to change any of these arrangements, your supporters may never get to the protest. Protest actions are designed to be widely seen and their intended message understood. You might prepare a press statement to be sent out to the media in advance setting out the message you want them to grasp – and, hopefully, to broadcast on your behalf – about why the event is taking place. Ideally, this should include contact telephone numbers of one or two people who are prepared to be quoted speaking on your behalf and a reference point at the protest itself so that journalists know where to go if they want to get an official statement or reaction to something that has happened. The advantage of preparing a press release in advance is that local journalists will put the event in their news diary, which may ensure fuller coverage. Also, they may be more interested in difficulties you have with the police in the run-up to the event, especially if you decide to tell the press that you are preparing to challenge proposed conditions. Organisation room On the day of the event itself there ought to be a reference point away from the demonstration – a union office, for example – with at least two separate phone lines. One of these numbers might be circulated widely on a leaflet which arrested people will be likely to have with them when in the police station. This will also be the number used by stewards or legal observers if they want to contact the organisation room during the event itself. The other phone line can be used for outgoing calls – to the police station, to the standby lawyer (see below) or perhaps to the press. Legal cover Ideally, you will have arranged a standby lawyer well in advance of the action who is prepared to be contacted during the demonstration itself and to follow through with representation for arrested demonstrators if they require it. The standby lawyer should be a criminal solicitor with particular experience of dealing with demonstrations. If you do not know of such a lawyer, organisations such as Liberty will help you find one in your area. If you experience difficulties negotiating with the police in advance, the standby lawyer may be prepared to help you. Debriefing Taking time to listen to feedback from those who have helped you organise the event is more than just good practice – where there have been arrests such an exercise is
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essential. It is also an opportunity to recognise the job done by stewards and legal observers, to thank them and to make sure you have their contact numbers for the next time you need them. Dealing with the police Deciding whether to make contact Whenever it is anticipated there may be police interest in a proposed action, as part of your preparations it will be worth weighing the benefits and costs of speaking to the police well in advance. Sometimes it will be a legal obligation to do so (see p. 4). The benefits of establishing contact with the police are likely to include, if not always good will, at least some co-operation. With some or all of the above measures in place you will be in a strong position to satisfy the police that you will be able to regulate your own event without outside help. Confident organisers who impress with their thoroughness and practicality are more likely to be able to convince sceptical police that a proposed event should proceed exactly as planned. Where they are able to do so, the worry that the event might be hijacked by police interference will be eased, and organisers will then be able to concentrate on getting their political message across to the public. The costs of contacting the police might include the fact that they may use your information to trigger the use of their powers to restrict a protest or, exceptionally, to ban it altogether. It is worth remembering that communications to police – especially those in writing – could be used in court if the police wanted to show that a particular person was an organiser of an illegal demonstration. Despite their substantial human resources and weaponry, the police are very often intimidated by the idea of large numbers of people taking to the streets to make their protest heard. Where police react in a hostile way, it is often through fear of the unknown. In practice, many police forces respond positively to constructive engagement – they like to know that someone who is organising a demonstration has anticipated the likely numbers and thought about the route, stewarding and safety. They also like to know that there will be someone at the protest whom they can talk sensibly to in an emergency. In a protest that continues over days or weeks, maintaining clear channels of communication with a senior officer, even if you consider police tactics to be unhelpful, can have positive benefits for protesters. Meeting the police in advance When you tell the police you are holding a demonstration they often ask you to a meeting with them. There is no requirement that you attend, but it is sensible that you do. You will have to prepare for the meeting quite carefully, with details of arrangements for stewarding and crowd control, first aid and access by emergency vehicles, maps and plans, a detailed timetable and an estimate of numbers. Relying on your knowledge of the community and any other events likely to take place on the same date, try to anticipate police objections. For the police, this meeting can be an information-gathering exercise. The Metropolitan Police, for instance, have an official-looking form which asks you for the information you must give in advance by law, but also a lot of other information – names of speakers, for example. It is important to be aware of the information you must provide and to decide in advance how much you wish to say to the police
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beyond that. If in doubt at the meeting on how to respond, you can always say that you want to consult your committee or co-organisers. You don’t have to agree to everything the police propose. You can tell the police directly that you do not agree to a certain condition, or that you will consider whether to or not. If the demonstration is likely to be big in size or impact, especially if it is in the centre of a major city, there may be a large number of police present at this meeting – traffic police, public order police, local area police and note-takers, and so on. It is always worth taking another person with you (or maybe one or two more) – a fellow committee member, a friend or even a friendly solicitor. It is best to agree in advance on how you will handle this, so that everyone is clear who is there to speak to police, to make decisions or to take notes. Since police forces probably differ quite a lot, it may be worth talking to other groups who have organised demonstrations in your area before going to a meeting with the police. Who to put forward Choose as your own representative(s) for such a meeting the person on your team who is likely, for whatever reason, to get the most constructive and sympathetic response from the police side. This person need not be a ‘spokesperson’ in a formal sense, or have any position of responsibility for your organisation or even for the direction of the protest itself. Indeed it is often better that the person’s only role is to facilitate communication between the parties rather than to be a decision-maker in her/his own right. This ensures the person has a good reason to report back to others to consider police proposals, and it may lessen the personal pressure that can be brought to bear on the negotiator by police. Challenging police decisions Even when the police threaten to impose conditions, organisers have a great deal of discretion about whether and when to challenge the police decision. Sometimes organisers are prepared to agree to police alterations to their original proposals – a minor alteration to the proposed route, perhaps – knowing that this means in practice that the police are unlikely to interfere further with a route they have themselves adopted. Organisers may even prefer to adapt their protest to what they consider to be unreasonable police requests simply to ensure the event goes ahead without its political message being blunted by unnecessary conflict with the police. But where organisers decide to challenge unacceptable police conditions it is possible for them to do so very effectively. This section suggests some starting points. Mobilising political support Although the police regard their own decisions as ‘operational’, in practice they involve setting priorities between the interests of different groups in society. Ultimately, where the right balance lies is really a political matter and the police are sensitive to criticism from MPs and councillors, local interest groups or trades councils. Members of the police committee may be concerned by ‘operational’ policing decisions they consider to be oppressive. Mounting a legal challenge in advance With the help of legal advisers, organisers could test the legality of police conditions through a court case in advance of the action itself. In order to seek a judicial review of a police decision you would need to argue that either:
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•
The decision was improperly reached (for example, because the proper procedure was not followed or improper considerations were taken into account); or
•
The decision is unlawful because it would involve the police acting incompatibly with the European Convention on Human Rights; or
•
The decision was so unreasonable or arbitrary that no reasonable chief officer could have reached that conclusion.
Cases brought to challenge banning orders prior to the incorporation of the European Convention show that the courts have been very unwilling to interfere with police decisions, especially if to do so would involve substituting their own assessment of the facts, and the possible prospects of disorder, damage, disruption or intimidation, for the assessment made by senior police officers. Now that the positive rights of protesters must be made an express part of the decision-making process, the courts might be more willing to engage in the balancing exercise themselves – after all, they, like the police, are under an obligation to give effect to the principles in the Convention. Applications for judicial review must be made to the High Court in London. Urgent applications can be heard quickly. In many instances, however, you will be informed of conditions to restrict processions or assemblies too late to apply to the High Court. There is no one with immediate power to overrule the senior officer on the spot if he decides to impose conditions. Where protesters themselves defy police conditions it will be for the police to decide whether to make arrests and seek prosecutions. If in a subsequent trial it turns out that the conditions were indeed invalid, the prosecutions would fail and arrested persons may be entitled to damages. Help from Liberty Liberty has been able to advise protest groups, unions and political groups about the best way to challenge police operations which threaten to defeat civil liberties. In the past the organisation has supported lawyers and lay people who have challenged such decisions and has itself been prepared to take Test cases when important issues of principle have been at stake. In the first instance, you or your solicitor may want to contact Liberty’s Legal Officer at: Liberty 21 Tabard Street London SE1 4LA Tel: 0207 403 3888
Liberty will either be able to help you or will refer you to a specialist solicitor or campaigning group who have dealt with similar problems in the past. Supporting people arrested at the protest Where people have been arrested at a protest event and charged with offences, they become defendants in the criminal process and face the possibility of a criminal record and sometimes the threat of prison. It is often very frightening for protesters
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to be torn from the solidarity of a demonstration to find themselves facing the music on their own. An important part of what organisers can do for defendants, as their cases progress over the months that may elapse before a trial, is to provide support. Defendants may be helped by support and reassurance in many different ways – it will often be a question of adapting your resources to the calls that are made on them – but one of the most straightforward and practical measures is to ensure that there is always someone from your organisation at court with defendants for each appearance. In the immediate aftermath of the event, however, there are some standard procedures to be performed, starting with the defendants’ meeting. It is best to plan this two or three days after the event just in case it may be needed. Too soon, and defendants may still be in custody. Too late, and a lot of your resources, especially witnesses, will have dispersed, perhaps forever. Defendants’ meeting A defendants’ meeting puts people who have been charged with offences in touch with the people who organised the event, sometimes for the first time. Defendants may need immediate help to get lawyers or Legal Aid, for example, or even just floors to sleep on if they have to remain away from home for a court hearing. The meeting is an opportunity to give defendants reassurance if they need it, and to tell them what support they can expect from your organisation. There may be questions about bail conditions, Legal Aid or bind-overs, for example, or how their cases are likely to develop. The standby lawyer may be prepared to attend such a meeting, but will not give specific legal advice to defendants about their individual cases. The defendants’ meeting is a very important practical opportunity to match defendants to the witnesses who saw them being arrested. It is useful to do this quickly while memories are fresh. Often witnesses will not have met the defendants before and will not know them by name. Unless they come to a meeting and see the defendant, the only method of matching them to the right arrest is by their description of the arrested person, or by the time and location of the arrest. Where there have been many arrests, particularly at a mobile protest like a march, there is often great confusion about location, order and times of arrests. Often the only way to sort out which witnesses saw which arrests is to have everyone in the same room at the same time. Defendants might want to provide passport photographs of themselves or, if you have a camera at the meeting, might want you to take photos of them, to help with identification. This is often an enormous help to you, witnesses and lawyers where there are more than a handful of arrests. Make sure that defendants are happy for you to circulate their photos and other information about them that they give you. Legal Aid and self-help (see Chapter 7) Defendants charged with ‘less serious’ criminal offences may find it difficult – in some cases impossible – to get Legal Aid. The first priority will be to complete the Legal Aid application as fully as possible, pointing out, for example, that a particular defendant may have a special need for representation because of the complexity of the case or the consequences of conviction, which might include the loss of a job or the loss of previous good character. Completing the application is a skilled job –
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lawyers will help defendants to apply for Legal Aid if necessary. If Legal Aid is refused, lawyers will usually offer to represent the client at their normal hourly charging rate, which is often out of the reach of all but well-off defendants. Occasionally, lawyers will represent defendants for a lower fee, or even free of charge. It is always worth asking, especially if a particular lawyer is already representing other defendants from the same demonstration. Defendants who are unable to obtain, or afford, legal representation will have to rely on self-help – and your help – to conduct their defence. Some organisations have proved that they can be very effective in supporting defendants who defend themselves, often by establishing a legal team within the organisation that pools knowledge and experience, and provides a clear reference point for defendants. It is worth remembering that even if a defendant is denied Legal Aid for representation, he or she may still qualify for a number of hours of advice and assistance from a solicitor under the Green Form Scheme. Following a Test case taken by Liberty during opposition to the poll tax, it is now clear law that defendants are entitled to the assistance of a ‘Mackenzie friend’ (see p. 179) to advise them in court if they are otherwise unrepresented. A friend in court can be a great source of practical, as well as moral, support (see section 7.4 below). An excellent reference book on self-representation is available from the Civil Liberties Trust. Michael Randle represented himself successfully at the Old Bailey in 1991 when he stood trial for assisting the escape from prison of George Blake. Randle’s book, How to Defend Yourself in Court, draws on his experience and is a very useful resource and inspiration for defendants and their supporters, whether legally represented or not. Supporting the legal team Once a lawyer is instructed by a person arrested for a criminal offence, the relationship is a personal one between the client and the lawyer and is therefore subject to professional confidentiality. Although the lawyer will not be prepared to speak about the details of the client’s case to anyone else, most sympathetic lawyers will wish to retain close contact with any organisation that has their client’s best interests at heart. Moreover, they may wish to rely on you to get things done that they do not have the knowledge or resources to do themselves. Sometimes several solicitors will be acting for different defendants. Unless you are able to help them with an overview of what happened when and where during the course of the whole event, individual solicitors may never get the full picture. It is very important, for example, for them to know which arrests may be linked with each other. Accurate information about the time and location of arrests will be very helpful when defence lawyers seek film or photographs of the event from journalists who covered it. It is best to get this overview completed when events are fresh in everyone’s mind and you have willing supporters to help. Preparing material for defendants and their solicitors At the earliest opportunity – within a few days of the defendants’ meeting – organisers should marshal all the material they have at their disposal and make it available to defendants and their lawyers. This will include brief accounts of the following matters:
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•
Facts about the event itself – who you are, how you prepared for the event. Negotiations with the police before and at the event. Who spoke for the organisation, who represented the police. What conditions were imposed/agreed. What steps were taken by police/organisers to publicise conditions. Whether any conditions were broken. Include a map of the route showing, if possible, location and time of arrests. Also reports – in the form of brief statements – where stewards and legal observers have made observations about the event that might be relevant. Include telephone numbers to enable lawyers to contact individuals directly if their evidence may be helpful.
•
A full list of defendants’ names, addresses and telephone numbers, including, if possible, time and location of arrest, police station taken to, offence they are charged with, date and venue of first court appearance. If defendants are happy to supply passport-sized photographs of themselves (or wanted you to take photographs at the defendants’ meeting), you can include a photocopied sheet with them all on.
•
A full list of witnesses’ names, addresses and telephone numbers, marked (if known) with the names of the defendants whose arrest they saw.
•
A list of media representatives – especially photographers and television news teams – who you think were at the event. A useful source are the bylines on media coverage – this can be followed up in the local library without having to buy all the newspapers. Wherever a news story might be helpful it should be circulated. You might also include the list of organisations to whom you sent your press release. Lawyers may then be able to follow up whether they had anyone at the event.
•
A list of defence solicitors, so you know whom to circulate information to. It will also help solicitors to communicate with each other if they know who else is being represented by whom.
Where more is needed later, defendants will know exactly whom to ask. Dealing with the press In the run-up to the trials of defendants who plead not guilty – sometimes a delay of many months – you may want to look closely at the media coverage of the event and respond constructively by telephone to journalists, by ‘letters to the editor’ or by press release to anything that is said that you know is not true. The police are adept at public relations and will invariably have their own publicists, who are experienced journalists, handling press enquiries about the event and its aftermath. The media will often take this version as gospel, presuming the guilt of anyone unfortunate enough to have been arrested. Whilst there are no doubt other factors at play, this may sometimes be due to their perception that there is no other reliable source to challenge what the police say. As well as supplying information from your organisation, you may be able to put the media in touch with ordinary protesters who had a very different impression of the way the event took place. If you know that celebrities at the event, such as local politicians, are likely to be supportive, you can ask them if they, too, are prepared to be interviewed.
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It will give confidence to defendants to see that you are active about putting media coverage right. It also advertises the work that you are doing in case defendants or potential witnesses did not know how to get in touch. Practical help It is often useful to talk to people who are experienced at organising protest events to get ideas on ways to get the most impact from the available resources and, in the event of unexpected arrests, on ways of supporting defendants and their legal teams. Liberty can help put you in touch with many groups nationwide, and up-to-date information can be obtained via the Internet if you search for links to ‘politics’, ‘protest’ and ‘action’.
1.4
PUBLIC ORDER OFFENCES
The right of protest may only be exercised peacefully. Otherwise, a wide variety of offences may be committed. The Public Order Act 1986 contains many of the more common public order offences such as riot, affray and threatening behaviour. But there are many offences elsewhere in the law that may be used against activities in public, such as assault, criminal damage and having an offensive weapon. Some specific offences connected with marches, assemblies and meetings were set out earlier in this chapter. Serious offences of violence The three main offences in the Public Order Act 1986 for group violence are riot, violent disorder and affray. Riot It is an offence of riot if you use violence where at least twelve people are together using or threatening violence for a common purpose and in such a way that ‘a person of reasonable firmness’ witnessing the events would fear for his or her safety. This is the most serious of public order offences. The offence can only be tried in the Crown Court, and the Director of Public Prosecutions must consent to the case being brought. The maximum penalty is ten years’ imprisonment. Violent disorder You are guilty of violent disorder if you use or threaten violence where at least three people are together using or threatening violence and in such a way that a person ‘of reasonable firmness’ would fear for his or her personal safety. This offence is used especially for group violence, such as disturbances commonly associated with football hooliganism, or where weapons are used. It can be tried in the Crown Court or the Magistrates’ Court. The maximum penalty is five years’ imprisonment. Affray It is an affray if you use or threaten violence to somebody else in such a way that a person ‘of reasonable firmness’ would fear for his or her personal safety (effrayer is the French word meaning ‘to frighten’).
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Street fighting, with or without weapons or missiles, is an affray. It can be tried in the Crown Court or the Magistrates’ Court. The maximum penalty is three years’ imprisonment. Grievous bodily harm and actual bodily harm Serious assaults on individuals include the offences of inflicting grievous bodily harm and assault occasioning actual bodily harm. These offences are set out in the Offences Against the Person Act 1861. If you cause or inflict grievous bodily harm on somebody or wound them (that is, cut the skin), the maximum penalty is life imprisonment. If the person dies, the charge may be murder or manslaughter. If the injury is less serious, such as bruising or grazes, the charge may be assault occasioning actual bodily harm, with a maximum penalty of five years’ imprisonment. Knives and other offensive weapons You are guilty under the Prevention of Crime Act 1953 if you have an offensive weapon in a public place without lawful authority or reasonable excuse. There are three types of weapon: one designed for causing injury such as a knuckle-duster, dagger or flick-knife; one adapted for causing injury such as a broken bottle; or anything intended for use to cause injury (whether or not it falls into the first two categories), such as a brick or baseball bat. Under the Criminal Justice Act 1988 it is an offence to have a knife in a public place without reasonable excuse. The section does not apply to a normal pen-knife with a blade of less than three inches, but mere possession of any other article with a blade or that is sharply pointed is an offence unless you can prove you had a good reason for carrying it – for example, for use at work or for a hobby. This is a very widely drawn offence which in principle would include possession of innocent household implements such as knitting needles, hat pins or even plastic picnic cutlery. The unusual form of the offence puts the burden on the defendant to satisfy the court that she or he had a reasonable excuse for possession of the item in a public place. In practice, this gives the police and prosecuting authorities enormous discretion to choose which type of people to stop and search, arrest and prosecute. The Knives Act 1997 gives police additional powers, on the authority of a senior officer, to stop and search at random for knives or offensive weapons without needing specific suspicion of an offence being committed by the particular person concerned. This power has been used at mass demonstrations to give the police, in effect, a general power of stop and search. Offensive weapon and bladed article charges can be tried in the Crown Court (maximum penalty two years’ imprisonment) or in the Magistrates’ Court (maximum penalty six months’ imprisonment and/or a fine up to £5,000). Less serious offences Assault You are guilty of common assault (under the common law) if you engage in an act which intentionally or recklessly causes another person to expect immediate personal violence, anything from a punch or a kick to throwing something at somebody. If injury is caused, a more serious charge of assault may be brought (see
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above). Common assault can only be tried in the Magistrates’ Court. The maximum penalty is six months’ imprisonment. You commit a separate offence with a similar penalty if you assault a police officer in the execution of his or her duty. At a trial the prosecution would have to show that the police officer was acting lawfully. In practice, especially in a confused demonstration situation, proving beyond doubt that police action was lawful is often difficult. This offence is the highest-level summary only offence (see Chapter 7, Trial, below) and a custodial sentence, even for a first offender, is a real possibility. Threatening, abusive or insulting words or behaviour It is an offence under section 4 of the Public Order Act 1986 if you use threatening, abusive or insulting words or actions towards somebody else, and: • • •
You intend the other person to fear that violence is going to be used; or The other person is likely to expect violence; or Violence may well be provoked.
This offence is normally used where threats, abuse or insults are likely to cause a breach of the peace: rival football supporters hurling abuse, threats at the picket line, abusive language by rival demonstrators. The charge is often used against protesters who, in the view of the police, go beyond the bounds of ordinary protest, but in all cases the behaviour must be directed towards another person. It is also an offence if threatening words are on a banner or placard or even a T-shirt or badge. This offence can only be tried in the Magistrates’ Court; there is no right to trial by jury. The maximum penalty is six months’ imprisonment and/or a fine of £5,000. Harassment It is an offence under section 4A of the same Act if you use threatening behaviour with intent to cause a person harassment, alarm and distress. Introduced to deal with cases of racial harassment, this section has been used more frequently to prosecute ‘stalkers’. The penalties are as for section 4 (above). The Protection from Harassment Act 1997 contains further provisions designed for stalkers. Under section 1 it is an offence for a person to pursue a course of conduct which harasses, and which the person knows or ought to know amounts to harassment. The offence is punishable by imprisonment of up to six months and/or a fine of £5,000. It is an offence of aggravated harassment under section 4 where a complainant is also put in fear of violence (with a sentence of up to five years’ imprisonment and an unlimited fine). The Act creates a statutory tort of harassment and makes it a criminal offence to breach a civil injunction restraining any conduct of harassment. The Act may have been targeted at stalkers, but one of the first cases in which it was used was an attempt by an animal research laboratory to prevent a group carrying out a vigil and related actions outside its premises. The defendants, supported by Liberty, argued that the Act should not be used to restrict rights to public protest and the court agreed, saying that it would resist any attempt to interpret the statute widely. Later cases, however, have seen the courts taking a more relaxed approach to interpretation, and successful prosecutions have been brought against pickets, hunt saboteurs and other political protesters.
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Disorderly conduct It is an offence under section 5 of the Public Order Act 1986 if you use threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. There must be a victim present at the scene of the crime. That person must be identified, but need not be brought to court. Police officers are unlikely to be victims of this offence. This is the lowest-level public order offence. It is intended to cover minor acts of hooliganism, especially behaviour directed at the elderly and other vulnerable groups. It was much criticised when it was introduced in the Public Order Act because it covered behaviour that was generally not considered to be criminal. In particular, it covers behaviour that falls short of violence or the threat or fear of violence. The offence carries a unique two-stage power of arrest, allowing police to arrest only if the demonstrator has been warned to stop the disorderly conduct and has then gone on to repeat it. The offence can be tried in the Magistrates’ Court only. The maximum penalty is a fine up to £1,000; there is no power to send a person convicted of this offence to prison. Aggravated trespass The offence of aggravated trespass is committed when a person: • • •
trespasses on land; when a lawful activity is taking place on that land or land nearby; and he or she does anything intending to intimidate, obstruct or disrupt that activity.
The offence, under section 68 of the Criminal Justice and Public Order Act 1994, goes hand-in-hand with powers to prevent protesters joining an aggravated trespass. The powers are similar to the exclusion zone powers for trespassory assemblies (see above, p. 7). Once protesters are within a five-mile radius exclusion zone they can be turned back, and can be arrested and charged with an offence if they refuse to comply. The offences carry imprisonment of up to three months or a fine of up to £2,500. Criminal damage You commit an offence under the Criminal Damage Act 1971 if you damage or destroy property or threaten to do so intentionally or recklessly and without lawful excuse. There is a full range of offences from arson with intent to endanger life (maximum penalty life imprisonment) to damage of property under £5,000 in value (Magistrates’ Court only with a maximum penalty of three months’ imprisonment and/or a fine up to £2,500). The damage need not be permanent. Even graffiti designed to wash away in the rain may be criminal damage. Police obstruction It is an offence if you wilfully obstruct a police officer in the execution of his or her duty. This is widely used by the police at demonstrations and in other public order contexts. Wilful obstruction of a police officer means simply doing any act which makes it more difficult for the police to carry out their lawful duty (Magistrates’
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Court only, maximum penalty one month’s imprisonment and/or a fine up to £1,000). It is used against those who refuse to move on or to keep back, or against those who interfere with police work, for example, by objecting to a lawful arrest or search. In practice, proving officers were acting ‘in the execution of their duty’ can be very difficult for the prosecution, especially in complicated situations involving multiple arrests. There is no specific power of arrest for this offence and so the police have to rely on their ‘general arrest powers’ where the circumstances permit (see Chapter 6). Where an arrest can be justified, no warning need be given in advance. ‘Watching and besetting’ It is an offence under the Trade Union and Labour Relations (Consolidation) Act 1992 (maximum penalty six months’ imprisonment and/or a fine up to £5,000) to intimidate others, if, for example, you: • • • • •
Use violence to intimidate someone or their family or damage property. Persistently follow someone. Hide someone’s tools or clothes. ‘Watch and beset’ or picket someone’s home or place of work. (NB: it is not unlawful to picket peacefully at your own place of work.) Follow someone in the street, with two others, in a disorderly manner.
This applies only if you do any of these acts with the intention of compelling the person not to do something he or she has a legal right to do (for example, the right to use the highway to go to work) or to do something he or she has a legal right not to do (for example, the right not to join the picket). Persuasion, even vigorous persuasion, will not amount to an offence unless it crosses into the realm of compulsion. Although designed for employment disputes, this offence has recently been used successfully against a group of road protesters. Highway obstruction You commit an offence if, without lawful authority or excuse, you wilfully obstruct the free passage of the highway. This is a widely drawn offence. It is often seen in practice as a police licensing power over public gatherings. The police use it to remove sit-down demonstrators, to keep marchers from leaving the agreed police route, to control pickets and in every conceivable public order context on the highway. Often the police will give a warning to move before making an arrest, although there is no legal requirement to do so. Nevertheless, a failure to give a warning may be relevant to the reasonableness or otherwise of the use of the highway. When cases reach court, prosecutors commonly agree to offer no evidence if the defendant agrees to be bound over (see below). The offence is obstructing the highway, not other highway users. So it is not necessary to prove that any other person was actually obstructed – the ‘obstruction’ can be made out if you simply occupy a section of highway. In practice the offence turns on whether a particular obstruction was reasonable rather than whether there was, in fact, an obstruction. The test of reasonableness is always objective. Was there an actual obstruction? If there was, how long did it last? Where was it? What was its purpose? Following an important Liberty Test case in 1999 (see p. 7 above)
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it has now been established that there is a right to peaceful, non-obstructive protest on the highway, and so if the court concludes that you were simply exercising this right, you would not be found guilty of the offence. Since the incorporation of the European Convention any court considering the question of reasonableness would also have to consider the impact of their decision on the exercise of your Convention rights. The test of reasonableness can very often be argued successfully in demonstration cases, particularly where the police have taken no action in the past, or where the place of protest is a regular post or where the actual obstruction was trivial. In practice, it is often very helpful to have photographs to show just how extensive – or limited – a particular obstruction was. The offence can be tried in the Magistrates’ Court only. The maximum penalty is a fine of £1,000. There is no power to send a person convicted of highway obstruction to prison. Offences connected with processions, assemblies and meetings It is an offence to breach a condition imposed by the police on a procession or an assembly or to breach an order banning processions in your locality (see p. 6). You may commit an offence if you wear a uniform in public signifying association with any political organisation or with the promotion of any political objective (trial in the Magistrates’ Court, maximum penalty three months’ imprisonment and/or a fine up to £500). For offences connected with picketing, see p. 9–10. For offences connected with meetings, see p. 11. For offences of stirring up racial hatred, see p. 49. Sentences In deciding an appropriate sentence, the courts will always consider the gravity of the offence, the circumstances of its commission and the previous character of the defendant. Defendants who plead guilty are entitled to credit because a guilty plea indicates remorse for their behaviour. There are powers to sentence to imprisonment in all serious cases. Prison has to be considered a real possibility in offences such as threatening behaviour and assault, especially where the police are involved. However, the majority of public order cases dealt with in the Magistrates’ Court are disposed of by way of community penalty (such as community service) or a fine. Wherever there is a real risk of imprisonment, defendants are entitled to Legal Aid, subject to their means. Two common offences – highway obstruction and disorderly conduct – are not imprisonable under any circumstances, and a third offence – obstructing police – is technically imprisonable, but this power is used very rarely indeed. Fine levels In fixing the amount of a fine the court must take into account the means of the offender. The court may give the offender time to pay, for example, within three months, or at so much a week. If the court imposes a sentence of imprisonment in default and the fine is not paid, the court may send the offender to prison, but only after a careful means enquiry.
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Breach of the peace There is no offence of breach of the peace. But if a police officer sees a breach of the peace or reasonably believes that a breach of the peace is about to start, he or she may arrest, disperse or detain those causing the problem and, if necessary, take them before a Magistrates’ Court to be bound over. There is a breach of the peace whenever a person causes harm or appears likely to cause harm to persons or property or acts in a manner the natural consequence of which is to provoke others to violence. If a breach of the peace occurs, one or more of the public order offences of threatening behaviour, disorderly conduct, assault or criminal damage (see above for these offences) is likely to have been committed. In such a case, the police can choose whether to charge an offence or go before the magistrates for a bind-over order. Bind-overs The Magistrates’ Court may bind you over to keep the peace for a specified period in a number of different circumstances: •
You may be brought before the court for committing a breach of the peace (under the Justices of the Peace Act 1361).
•
You may be brought before the court on a complaint made by any person at the court.
•
In proceedings for a criminal offence, a witness or a defendant (even if acquitted) may be bound over.
A bind-over order is not a conviction or a penalty. It is an undertaking as to future conduct. Its purpose is to prevent offences being committed in the future. The order will bind you over to keep the peace for a period of time for a specified sum, say £200 for twelve months. If you breach the order and are brought back to court, you will have to pay up to the whole amount. Sometimes sureties are taken, in which case the person who has put up the surety would have to forfeit some or all of the amount of their surety too. If you refuse to be bound over in the first place, you can be sent to prison for up to six months. You should always be given the opportunity to say in court why you should not be bound over, if you wish to, or why you are not in breach of an order. Bind-over orders are often used against demonstrators and protesters. Sometimes a charge, such as obstruction of the highway, is dropped by the prosecution if the defendant agrees to be bound over and the court also agrees. In some cases, unions will advise their members who have been picketing not to accept bind-overs if they wish to return to the picket line. A bind-over cannot of itself prevent someone returning to the picket line (see p. 27) but it is an inhibiting factor. Liberty believes that the bind-over order is an outdated form of justice and that it is wrong to give the courts the power to send somebody to prison for refusing to be bound over, particularly when no offence has been committed. A Test case brought by Liberty in the European Court of Human Rights in 1998 clarified the law by restricting the circumstances in which bind-overs might be ordered and also by limiting the terms of bind-over orders to future conduct that broke the law rather than conduct which merely amounted to bad behaviour.
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1.5
YOUR RIGHTS
FURTHER INFORMATION
Bibliography Blackstone’s Criminal Practice, Blackstone Press, 2000. Jo Cooper, ‘Public Order Review’, Legal Action (regular round-up of recent public order decisions each February and August). Michael Randle, How to Defend Yourself in Court, Civil Liberties Trust, 1995. Peter Thornton, Public Order Law, Blackstone Press, 1987. Des Wilson, Campaigning ... the A–Z of Public Advocacy, Hawksmere Press, 1995.
Anthony Hudson
2
The Right of Free Expression
This chapter deals with: • • • • • • • • •
2.1
The right to freedom of expression Defamation – libel and slander Other remedies Copyright and allied property rights Criminal law restrictions on freedom of expression Contempt of court and restrictions on court reporting Controls on broadcasting, films, video and cable The balance of conflicting rights and interests Further information
THE RIGHT TO FREEDOM OF EXPRESSION
Prior to the coming into force of the Human Rights Act 1998 the right to freedom of expression was a negative one. With the incorporation of the European Convention on Human Rights into English domestic law in the Human Rights Act 1998, English law for the first time guarantees the right to freedom of expression. The Human Rights Act 1998 provides that so far as it is possible to do so, legislation must be read and given effect in a way that is compatible with the right to freedom of expression. Section 4 of the Human Rights Act provides that the High Court, the Court of Appeal and the House of Lords may, if satisfied that a provision of primary legislation is incompatible with a Convention right (including the right to freedom of expression), make a ‘declaration of incompatibility’. The right to freedom of expression is, however, subject to many restrictions and restraints, and incorporation of the right to freedom of expression will not remove all of those restrictions. Article 10 of the European Convention on Human Rights, as set out in Schedule 1 to the Human Rights Act 1998, provides that: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of 31
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the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Article 10, therefore, provides a right and then sets out exceptions to that right. Further, Article 10 has to be seen in the context of the competing right to privacy and family life under Article 8. Article 8 provides that: 1. Everyone has the right to respect for his or her private and family life, his or her home and his or her correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The Human Rights Act 1998 provides that, in giving effect to the ‘Convention rights’, the courts are to consider the case law of the European Court of Human Rights. The European Court of Human Rights has in its case law strictly limited the scope of the exceptions to these conflicting rights. Before incorporation, Article 10 struck at the heart of much of English law on freedom of expression. Following incorporation citizens may enjoy even greater freedom. It should be noted, however, that some English judges have expressed the view that English law is largely in conformity with Article 10 of the European Convention. Even with Article 10 of the Convention as part of English law, ‘the right to freedom of expression’ may be and is subject to restrictions. This chapter examines the scope of those restrictions on the freedom to speak, write and publish. As set out in Article 10(2), a balance must be struck between an individual’s right to freedom of expression and the right to protection of property in all its varied forms, privacy, reputation, confidential ideas and from criminal or perceived anti-social behaviour. Any restrictions must, however: (a) pursue a legitimate aim; (b) be prescribed by law; and (c) be necessary in a democratic society, that is, satisfy a pressing social need. The European Court has stated that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Further, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The European Court has also stated that these principles are of particular importance as far as the press is concerned, because it is incumbent on the press to impart information and ideas on political issues and other areas of public interest. The following sections give an outline of the principal restrictions that limit the right of free expression.
2.2
DEFAMATION – LIBEL AND SLANDER
Under Article 10(2) of the European Convention the protection of the reputation of others is a legitimate ground for limiting an individual’s right to freedom of expression.
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The distinction between libel and slander Libel and slander are claims that protect an individual’s reputation. An individual is defamed when a person publishes to a third person words or matter containing an untrue imputation against his or her reputation. If the publication is in a permanent form (books, magazines, films, electronic publications, and so on, and broadcasts and theatrical performances) then it is libel. It is slander if the publication is in a transient form. The obvious type of statements are written or spoken words. Defamatory imputations can also be conveyed in many other ways including signs, gestures, photographs, pictures, statues and cartoons. The principal practical difference between claims for libel and claims for slander is what a claimant must prove to succeed in his or her claim. In libel claims damage is presumed and therefore the claimant does not have to prove that he or she has suffered loss or damage as a result of the publication. In contrast, in claims for slander the claimant must prove actual damage. There are, however, exceptions to the rule that actual damage must be proved. For example, if the spoken words contain an imputation of the commission of a crime; or that the claimant is a carrier of a contagious disease; or is unfit for his or her office, business or profession; or if the communication is an attack on the credit of tradespeople; or an accusation of unchastity or adultery to a woman or girl. In these cases damage is presumed and need not be proved. Meaning and defamation There is no single comprehensive definition of what is ‘defamatory’. Various suggestions have been made, including a statement which is to a person’s discredit; or which tends to lower him or her in the estimation of others, or causes him or her to be shunned or avoided, or exposed to hatred, contempt or ridicule. In contrast to most civil cases, defamation claims are usually heard by juries. It is the jury’s role to determine (a) what the words mean; and (b) whether that meaning is defamatory. When deciding what the words mean the intention and knowledge of the person who published the words are irrelevant. The law of defamation recognises two types of meaning. First, the natural and ordinary meaning of the words. This is not limited to the obvious and literal meaning, but includes any inference which the ordinary, reasonable reader would draw from the words. The second type of meaning is the innuendo meaning. This arises when words that appear to be innocent to some people convey a defamatory imputation to those people in possession of special knowledge or extra information. For a statement to be defamatory in English law the imputation must tend to lower the claimant in the estimation of right-thinking members of society generally. Even if the words damage a person in the eyes of a section of the community, they are not defamatory unless they amount to a disparagement of reputation in the eyes of right-thinking people generally. A statement that amounts to an insult or is mere vulgar abuse is not defamatory. This is because the words do not convey a defamatory meaning to those who heard them. It is arguable that the defence of vulgar abuse is not available if the statement
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is a libel. The reason for this distinction is that it is more likely that written words will be taken seriously and understood to have a defamatory meaning. Publication The words complained of must have been published by the person sued to a third party. Publication includes any means of communication even if only to one other person. Due to the breadth of the term ‘publication’, many individuals can find themselves ensnared in defamation proceedings who have only a slight connection with the work. The Defamation Act 1996 provides a defence to persons who are not authors, editors or commercial publishers of the statement if they took reasonable care in relation to its publication and they did not know and had no reason to believe that what they did caused or contributed to the publication of a defamatory statement. This is intended to cover printers, distributors, on-line service providers and live broadcasters. This defence is particularly important where there is a multiplicity of people potentially responsible for disseminating material around the world. The High Court has held that for the purposes of section 1(2) and (3) of the Defamation Act 1996, an Internet Service Provider (ISP) which transmitted a posting from its news server to subscribers who wanted to use it, was not the publisher of the posting albeit at common law it was considered to be. The defence under section 1 of the 1996 Act was therefore available to the ISP. Importantly, however, the court held that because the ISP had not removed the offending material as soon as it was notified of its existence, they had not acted ‘reasonably’ and the defence under section 1 of the 1996 Act was therefore not available. Identification A claimant must prove that the defamatory statement refers to him or her. In most cases this can be done without difficulty as the claimant will be named. However, a claimant who has not been referred to by name must prove that the words complained of were understood by some readers as referring to him or her. The test is whether the words might be understood by reasonable people to refer to the claimant. The claimant can rely on the fact that he or she was referred to by a nickname or initials or that he or she was a member of a class or group of people included in the defamatory statement. The fact that the publisher did not intend to refer to the claimant is irrelevant to the question of whether or not that person has been defamed. A person whose name is the same or similar to that of a fictitious character can therefore sue for defamation if the words complained of would be understood to refer to the claimant by reasonable people who knew him or her. Similarly, a member of a group or class of people can sue in relation to a defamatory allegation referring to the group as a whole, if the group is sufficiently small that the allegation would be understood to refer to him or her personally. Under the Defamation Act 1996, a publisher can make an ‘offer of amends’, which if rejected would be a defence. An offer to make amends is an offer to publish a suitable correction and a sufficient apology and to pay the claimant compensation and costs. If the offer to make amends is not accepted by the claimant, then it
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will be a defence to defamation proceedings unless the claimant can prove that the defendant knew or had reason to believe that the statement complained of (a) referred to the claimant or was likely to be understood as referring to him; and (b) was both false and defamatory. Right to sue Not only can individuals sue, but any trading corporation can sue where the statement has a tendency to damage it in respect of its business or trading reputation. Non-trading corporations can sue in respect of defamatory statements damaging their property or financial interests. It has been held that trade unions cannot sue, although the correctness of the decision has been doubted. In any event, individual trade union officers may bring an action if referred to. Bankrupts can also sue for defamation and keep any damages recovered. Groups without a legal identity cannot complain of libel. Therefore, victims of racism cannot get redress under defamation law where there is no pointer in the statement to an individual. Similarly, an unincorporated club cannot sue for libel, whatever the damage to its reputation, although individual members, if referred to, can. This will depend on whether the statement would be reasonably understood as referring to the claimant. In 1993 the House of Lords ruled that government bodies cannot sue for defamation. This includes organs of local and central government including the Crown and government departments which have corporate status. They considered it was of the ‘highest public importance that a democratically elected body or any governmental body, should be open to uninhibited public criticism’. The decision expressly does not preclude an individual member of a governmental body from suing if the words complained of are capable of being understood to refer to that individual. The decision was however used to prevent a political party (James Goldsmith’s Referendum Party) from pursuing a defamation claim. English law has not yet adopted a ‘public figure’ defence. Recent developments in the defence of qualified privilege may, however, go some way to protecting the right of the media to report about public figures. Only the living can sue for defamation. Thus, historians have considerably greater freedom of expression than current commentators, but even they must be careful that the things they write about the dead do not in some way damage the reputation of the living. If a claimant dies after bringing a claim for defamation but before a verdict has been reached, the claim comes to an end and does not continue for the benefit of his or her estate. Time limits A claim for libel or slander must be brought within one year from the date of publication. The court does, however, have a discretion to allow a claim to proceed if it considers it to be ‘equitable’. In exercising its discretion the court will take into account the length of and the reasons for the delay and the extent to which relevant evidence is likely to be unavailable or less cogent. The defences of truth, fair comment and privilege The main defences available to a defendant in defamation proceedings are justification (truth), fair comment and privilege.
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Justification (truth) It is a complete defence to an action for defamation to prove that the defamatory imputation is substantially true. It is not necessary for a defendant to show that there was a public interest in publication, nor does it matter whether he or she acted maliciously. If relying on the defence of justification the burden of proof is, however, on the defendant to prove that the allegations made are true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true. A defendant is not required to prove that every allegation is true. Section 5 of the Defamation Act 1952 provides that where the words complained of contain two or more distinct allegations a defence of justification can still succeed if the words not proved to be true do not ‘materially injure’ the claimant’s reputation having regard to the imputations which are proved true. An allegation published by repeating a rumour cannot be justified by proving that there was such a rumour. A defendant is required to prove the substance of the allegation. Because the burden of proving the truth of an allegation is on the defendant, claimants enjoy a distinct advantage in defamation claims. It can often be difficult to obtain sufficient admissible evidence to persuade a jury that the statement is true. This will sometimes result in the media being unable to publish allegations which are generally believed to be true, but which they may not be able to prove true to the standard required in court. Further, an unsuccessful defence of justification is likely to increase the level of any damages awarded. Justification therefore has to be deployed with great care. It should be noted a defendant cannot rely on the defence of justification in relation to the publication of the details of spent convictions (as defined by the Rehabilitation of Offenders Act 1974) if the claimant can show that the publisher acted ‘maliciously’. Fair comment If a defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment. The courts have said that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment. The comment must be based on true facts which are either contained in the publication or sufficiently referred to. It is for the defendant to prove that the underlying facts are true. If he or she is unable to do so, then the defence will fail. As with justification, the defendant does not to have to prove the truth of every fact provided the comment was fair in relation to those facts which are proved (section 6, Defamation Act 1952). Fair does not mean reasonable, but signifies the absence of malice. The views expressed can be exaggerated, obstinate or prejudiced, provided they are honestly held. A defence of fair comment will, however, be defeated if the claimant can prove that in making the comment the defendant was motivated by malice (see below).
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The European Court has repeatedly emphasised the distinction between facts and value judgments and has held that a defendant cannot be required to prove the truth of a value judgment. Following incorporation of the European Convention it is likely that English courts will need to broaden the definition of ‘comment’ to ensure compliance with Article 10 of the European Convention. Privilege If untrue defamatory allegations are published on an occasion of privilege, they will be protected from a claim for defamation. The law of libel exists to protect reputations. It is recognised, however, that in particular situations it is to the benefit of society generally for people to be able to communicate without the fear of being sued for defamation. This is so despite the risk that a person’s reputation will be damaged and they will not be able to restore it by bringing a claim for defamation. ‘Absolute privilege’ provides a complete defence, however malicious or untrue the allegation is. ‘Qualified privilege’ provides a conditional defence. If a statement published on an occasion of qualified privilege is published maliciously, then the defence will fail. Absolute privilege Absolute privilege is confined to proceedings in Parliament or courts in this country. The Defamation Act 1996 has provided a statutory absolute privilege for contemporary or court-postponed fair and accurate reports of court proceedings in this country, of the European Court of Justice, the European Court of Human Rights and any international criminal tribunal established by the United Nations Security Council, or by an international agreement to which the United Kingdom is a party. Qualified privilege Qualified privilege is more common. It is provided for both by statute and common law. Section 15 and Schedule 1 of the Defamation Act 1996 provide a statutory qualified privilege for material that is of public concern and for the public benefit. The 1996 Act distinguishes between statements that attract qualified privilege without explanation or contradiction and those that are privileged subject to explanation or contradiction. Statements that qualify for qualified privilege without explanation or contradiction are as follows: 1. fair and accurate reports of public proceedings of legislatures, courts, government appointed public inquiries, international organisations/conferences anywhere in the world; 2. a fair and accurate copy of or extract from any register or other document required by law to be open to public inspection; 3. a notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world; 4. a fair and accurate copy of or extract from matter published by or on the authority of a government or legislature or by an international organisation or an international conference anywhere in the world.
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In relation to the following reports or statements, the defence of qualified privilege will be lost if the claimant shows that he or she requested the defendant to publish a reasonable letter or statement by way of explanation or contradiction and the defendant refused or neglected to do so: 1. a fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of: (i) a legislature in any Member State or the European Parliament; (ii) the Government (or any authority performing governmental functions) of any Member State or the European Commission; and (iii) an international organisation or international conference; 2. a fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice, or by a judge or officer of any such court; 3. a fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of: (i) a local authority or local authority committee; (ii) justices of the peace acting otherwise than as a court exercising judicial authority; (iii) a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland department; (iv) a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision; (v) any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision; (vi) a fair and accurate report of proceedings at any public meeting held in a Member State. At common law, where the person who publishes the words has a legal, social or moral duty or interest in communicating them and the recipient has a duty or interest in receiving them, a defence of qualified privilege is available. Examples of situations in which communications will attract qualified privilege include replying to an inquiry for an employment reference, or to inquiries about a crime. Also included are statements volunteered about crime and the conduct of candidates for public office. Further, complaints or information passed under a public or private legal, social or moral duty to the relevant authorities are protected by common law qualified privilege. The courts have been reluctant to extend the defence of qualified privilege to provide the media with a ‘public interest’ defence. However, in the case of Reynolds v. Times Newspapers Ltd (1999), the House of Lords recognised the ‘high importance of freedom to impart and receive information and ideas’ and observed that the ‘press discharges vital functions as a bloodhound as well as a watchdog’. Their Lordships declined to develop ‘political information’ as a new ‘subject-matter’ category of qualified privilege. They did, however, state that ‘the court should be slow to conclude that a publication was not in the public interest, and therefore, the public had no right to know’ especially when the information was in the field of political discussion. The court was to take into account the following ten, non-exhaustive, matters: 1. the seriousness of the allegation; 2. the nature of the information, and the extent to which the subject-matter is a matter of public concern;
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3. 4. 5. 6. 7. 8. 9. 10.
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the source of the information; the steps taken to verify the information; the status of the information; the urgency of the matter; whether comment was sought from the claimant; whether the article contained the gist of the claimant’s side of the story; the tone of the article; and the circumstances of the publication, including the timing.
Malice The defences of fair comment and qualified privilege will fail if the claimant can prove that the defendant was motivated by malice when publishing the allegations. Express malice has been defined as a dominant desire to injure the person who is defamed. Absence of an honest belief in the defamatory allegations is generally conclusive evidence of express malice. Therefore to publish defamatory allegations knowing they are untrue or reckless as to whether they are true or not will usually amount to malice. Recklessness must, however, be distinguished from indifference. Remedies The courts exercise exceptional caution when considering an application for a pretrial (interim) injunction. In practice, interim injunctions will not be granted unless the words complained of are unarguably defamatory; there are no grounds for concluding that the statement may be true; there is no other defence which may succeed; and there is evidence that the defendant will repeat the defamatory allegations. Injunctions to prevent defamatory statements being made where the exact words to be published are not known with reasonable certainty cannot be obtained. This test does not apply to other claims and injunctions much more readily granted against the media to prevent disclosure of material which is said to be in breach of confidence (see below). Section 12 of the Human Rights Act 1998 applies when a court is considering whether to grant any relief (for example, an interim injunction) which, if granted, might affect the exercise of the Convention right to freedom of expression. Relief is not to be granted in the absence of the respondent unless the applicant has taken all practicable steps to notify the respondent; or there are compelling reasons why the respondent should not be notified. Further, interim injunctions are not to be granted unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. A successful claimant cannot force the defendant to publish a correction or an apology. The claimant’s reputation is, therefore, vindicated by the amount of damages he or she is awarded. The award of damages in defamation cases is usually decided by a jury. A jury can award ‘general’ and ‘special’ damages. Special damages compensate for actual financial loss. General damages compensate the claimant for the damage to his or her reputation. General damages can take the form of compensatory, aggravated and exemplary damages. Exemplary (or punitive) damages can be awarded where the defendant publishes the defamatory matter because the prospects of material advantage to him or her outweigh the prospects of material loss.
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The role played by juries in determining the level of damages awarded has, in the past, meant that libel awards were highly unpredictable and have been criticised as excessive. In 1995 the European Court of Human Rights held that an award of £1.5 million in 1989 to be in breach of Article 10 of the Convention, as the amount of damages could not be considered necessary for the protection or reputation or rights of others. Since then the Court of Appeal has held that judges, and counsel, should be free to draw the attention of juries to awards made in personal injury cases. The appropriate range of award can also be indicated to the jury. Legal Aid is unavailable either to bring or defend defamation proceedings. But ‘no win-no fee’ agreements can be arranged with lawyers.
2.3
OTHER REMEDIES
There are other remedies which may be used by a litigant aggrieved by a false publication. ‘False attribution of authorship’ may be relied on when a publisher fabricates quotations under the law of copyright. Malicious falsehood To be successful in a claim for malicious falsehood the claimant must prove: (a) the defendant published words about the claimant which were false; (b) they were published maliciously; and (c) that publication has caused special damage. Section 3(1) of the Defamation Act 1952 provides that it is not necessary to allege or prove special damage: (a) if the words are likely to cause pecuniary damage to the claimant and are published in writing or other permanent form; or (b) if the words are likely to cause pecuniary damage to the claimant in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication. In 1992 a former Royal maid successfully used this civil wrong against a newspaper which accused her of stealing love letters between Princess Anne and Commander Lawrence. Prior to incorporation of the European Convention malicious falsehood was used by the courts in an attempt to remedy the failure of English law to protect in an effective way the personal privacy of individual citizens. In Kaye v. Robertson, the Court of Appeal granted an injunction to restrain publication of the false story that the television actor Gordon Kaye had posed for photographs and given an interview whilst he was in hospital recovering from brain surgery. The court was unable, however, to restrain the publication of photographs that had been taken of Kaye. Protection from harassment The Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct (a) which amounts to harassment of another; and (b) which he or she knows or ought to know amounts to harassment of the other. A person who pursues such a course of conduct is guilty of an offence punishable by up to six months’ imprisonment and/or a fine of £5,000. A court may also impose a restraining order for the purpose of protecting the victim of the offence. A civil claim can also be brought against a person who pursues such a course of conduct. It is a defence to show that the course of conduct was (a) pursued for the purpose of
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preventing or detecting crime; (b) pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or (c) in the particular circumstances, reasonable. Negligence Where a claimant can show that (a) the defendant owed him a duty of care; (b) the defendant breached that duty by failing to exercise reasonable care; and (c) the claimant has suffered loss, he can recover compensation in respect of statements to third parties which have adversely affected his relationship with that third party. Therefore, an ex-employee can sue with the benefit of Legal Aid in negligence where his or her ex-employer provides an inaccurate and damaging reference to a prospective employer. Press Complaints Commission Complaints about the unethical behaviour of newspapers and magazines can be made to the Press Complaints Commission (PCC). The PCC is a voluntary body set up by the newspaper industry. It enforces the Code of Practice, which lays down the standards to be observed by the press in relation to, amongst others, accuracy, privacy, listening devices, harassment, payment for articles, children, victims of crime and confidential sources. The PCC cannot award damages. If a complaint is upheld, the newspapers concerned will be obliged to publish any critical adjudication in full and with due prominence.
2.4
COPYRIGHT AND ALLIED PROPERTY RIGHTS
A multiplicity of rights Copyright law both provides rights in works to writers, musicians, artists, photographers and the like, and correspondingly grants a multiplicity of rights over the same material. The creative process, and thereby freedom of expression, is restricted and shaped by giving other copyright owners a power of veto over the incorporation of their work in some new work. For instance, the practice of sampling is fraught with copyright difficulty for the musician and the recording company. The use of sampled material from another musician without his or her permission in combination with other material may create copyright in the musical end product, but it can never be exploited without the risk of proceedings for infringement of copyright by the owner of the musical copyright in the sampled work. It does not matter that the infringing track is only a few bars on a 20-track album; the court will still grant a final injunction preventing exploitation of the album. A collage artist, scratch video-maker, popular songwriter, cartoonist and journalist in possession of a leaked memorandum can all encounter copyright obstacles in creating their work, yet none of them would want others to be free to plagiarise their final product. However, there are limits to the reach of copyright law to restrain freedom of expression. In 1993 broadcasters who proposed to broadcast an interview with the serial killer Denis Neilsen could not be prevented from broadcasting the interview by the Home Office on the basis that it owned copyright to the film since to do so would stifle freedom of speech in circumstances where there was no pressing need to ban the broadcast.
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Meaning of copyright Copyright is a statutory right to stop others copying or exploiting in various other ways authors’ works without permission typically for the duration of the author’s life plus 70 years thereafter. The Copyright, Designs and Patents Act 1988 is a complex statute. It creates several different categories of ‘work’ in which copyright can exist, and different owners or authors of works. The principal categories of protected work are: (a) original literary, dramatic, musical or artistic works (including photographs); (b) sound recordings (such as records, tapes and CDs); films, television and sound broadcasts, and cable programmes; and (c) the typographical arrangements of published editions. Copyright does not exist in a work until it is recorded in some written or other form. For example, a musical work is not protected until recorded on a digital audio tape or the like. It is generally the reproduction of that form which is restricted. This means, for instance, that newspapers do not have a monopoly even in their ‘exclusive’ news stories. They can stop others using their photographs, their text (or a substantial part of it) or an imitation of their work, but the information conveyed is not theirs to control. Ideas themselves are not protected and recourse in such cases is made to the developing law of confidence. No copyright exists in a literary, dramatic, musical or artistic work unless it is ‘original’. This simply means that some limited work or effort must have gone into the work by its creator and that it was not copied from another work. For instance, even street directories or television programme schedules can attract copyright as literary works. Therefore, great care has to be taken in using apparently mundane material which may result in copyright infringement proceedings, stifling distribution of the end product. The owner or author of the copyright is normally the creator or creators of it in the case of a literary, dramatic, musical or artistic work. Special rules apply in relation to copyright of other works and all works created in the course of employment. The ownership of copyright is distinct from the ownership of the physical record of the work. For instance, a photographer may own the copyright of the artistic work he or she creates, but not the film on which it is recorded. Separate ownership of the physical property can restrict the use of the work. Owning the copyright in a work gives the owner the exclusive right to (a) copy the work; (b) issue copies to the public; (c) perform, show or play the work in public; (d) broadcast the work or include it in a cable programme service; and (e) make adaptation of the work or do any of the above in relation to an adaptation. Anyone who, without the consent of the copyright owner, does any of the above acts infringes the owner’s copyright. Defences to infringement of copyright A claim for copyright infringement can be defended on various grounds, including: arguing that copyright does not exist in the work; that the act complained of is not a restricted act; that the act did not involve a substantial part of the work; that the copyright owner consented to the act; that the infringement was in the public interest; or that it was a ‘permitted act’. Copyright is not infringed if the owner consents to the copying or other exploitation of the work. The first difficulty is identifying who is the owner or owners of the various copyrights. In some works (a television play, for instance) it is possible for
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different people to own the copyright in the script, the photographs, the sound track, the dramatic screenplay, the film recording, the play and the broadcast. Even if the owners can be identified, there is generally no obligation on them to sell reproduction rights. Under the 1988 Act, some acts in relation to copyright works do not amount to infringement. These are ‘permitted acts’ and include use of a work for research or private study, for criticism or review or reporting of current events, provided it is fair dealing; incidental inclusion; things done for the purposes of instruction or examination; anthologies for educational use; copying by libraries and archives; anything done for the purposes of parliamentary or judicial proceedings; and copying of material open to public inspection or on an official register. The fair use of another’s work for the purpose of criticism or review, or the reporting of current events, does not amount to an infringement of copyright. The originator of the work must be acknowledged in a criticism or review and in the print media’s news reporting (but not in the broadcast media). In an important case concerning a critical book about Scientology, which made use of unpublished internal Scientology documents, the courts confirmed that the defence of fair dealing could apply, even though the work had not previously been published and even though the criticism was directed at the contents of the work rather than its style. The other important defence is public interest. This does not appear in the statute, but the courts have said that (just as they will not stop publication of confidential information which is in the public interest) they would not prohibit the infringement of another’s copyright where the public interest in publication outweighed the private right of property. The defence is based on the idea that the public’s ‘need to know’ should sometimes override the copyright’s owner’s right to restrict or prevent publication. Criminal sanctions It should be noted that there are criminal sanctions for making or dealing with articles which infringe copyright (section 107 of the 1988 Act). As a result of the growth in national and international piracy of copyright material (bootleg videos and the like), the criminal provisions and penalties for commercial copyright piracy have been made more severe. There is a range of offences committed by those who infringe copyright, generally for commercial purposes, when they know or have reason to believe, that they are infringing. Penalties range from imprisonment for up to two years, to fines and forfeiture of infringing material and equipment for making infringing material. The civil courts, in response to growing copyright piracy, have also been prepared to grant to copyright owners what in practice are private search warrants to track down the sources for bootleg operations. ‘Moral rights’ The 1988 Act introduced new ‘moral rights’ for the authors of copyright works. Subject to complex limitations and qualifications, authors of copyright works have the right to be identified as such and the right not to have their works subjected to derogatory treatment. A new right of privacy was also introduced to limit the use of photographs commissioned for private and domestic purpose, for example, wedding photographs.
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Passing off In addition to copyright protection, the law will prevent one trader passing off its goods as those of another. Passing off is primarily concerned with commercial disputes. It has five elements: 1. a misrepresentation; 2. made by a trader in the course of trade; 3. to prospective customers of his or ultimate consumers of goods or services supplied by him; 4. which is likely to damage the business or goodwill of another trader; and 5. which causes actual damage to the business or goodwill of another trader. Passing off has been used to prevent one newspaper using a name and layout which is confusingly similar to another newspaper, and by authors to prevent their name being used on a work which is not their own. The law of breach of confidence Prior to incorporation of the European Convention on Human Rights, English law did not provide an independent right to privacy. Article 8 of the Convention guarantees the right to respect for private and family life, home and correspondence. It remains to be seen how the courts will guarantee this right to privacy through existing laws. The courts may protect a person’s privacy by preventing the disclosure of confidential information and enforcing obligations of confidentiality. Such obligations arise in many different contexts from personal and social to industrial and commercial. Generally, a duty of confidence arises when confidential information comes to the knowledge of a person in circumstances where he or she has notice that the information is confidential, such that it is just in all the circumstances that he or she should be prevented from disclosing the information to others. The law of breach of confidence has developed to protect both personal and commercial secrets. A claim for breach of confidence will arise if (a) the information concerned has the necessary quality of confidence; (b) it is communicated in circumstances imposing an obligation of confidence; and (c) there has been an unauthorised use of the information to the detriment of the owner. A person can be subject to an obligation of confidence under the terms of a contract or agreement (whether written or oral) or by virtue of the nature of the relationship between the owner of the information and the person in whom he or she confides. Obligations of confidence have been held to exist in many situations including (a) personal relationships; (b) business and commerce; (c) employees; and (d) professional relationships. In 1849 the courts granted an injunction to restrain the defendant from the unauthorised publication of etchings created by Queen Victoria and Prince Albert for their own personal pleasure. In granting the injunction the court observed: [T]he Defendant here is unlawfully invading the Plaintiff’s right, but also the invasion is of such a kind and affects such property as to entitle the Plaintiff to the preventive remedy of an injunction; and if not the more, yet certainly not the less, because it is an intrusion – an unbecoming and unseemly intrusion – an intrusion not alone in breach of conventional rules, but offensive to that inbred
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sense of property natural to every man – if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life – into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country. This principle was also used to prevent the Duke of Argyll from revealing to the press confidential details of his marriage to the Duchess. Even though the Duke and Duchess were divorced the court granted an injunction, stating: There could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence. The courts will, however, refuse to protect what might otherwise be considered to be confidential information if such protection would offend against ‘morality’ as perceived by the courts particular in the context of sexual relationships or if the information is public knowledge. In a case in 1988, the court recognised that a duty of confidence could arise in relation to the details of a sexual relationship between two women. The courts will not, however, protect information concerning marriage or relationships if it considers that the relationship is no longer a private matter because both parties had placed the relationship in the public domain by previously disclosing information to the media (as in the case of John Lennon and Yoko Ono). Business and commerce and employees The law of breach of confidence has been used extensively to protect sensitive commercial information and trade secrets. Employees owe their employers a duty of confidence either by virtue of a term in a written contract or as a result of an implied term of fidelity and loyalty. In a 1963 case, the claimants provided drawings of tools to the defendant to manufacture a quantity of the tools. The defendant kept the drawings and used them for his own purposes. The court held that there was an implied condition that the defendant should treat the drawings as confidential. The court stated: The information, to be confidential, must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker upon materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process. Miscellaneous The professions are also subject to obligations of confidentiality, so that lawyers must not disclose to third parties information given to them by their clients; doctors must preserve the confidence of their patients (except in exceptional circumstances where notification of the police is permitted); as must priests.
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The law of breach of confidence is a flexible doctrine, which the courts have frequently developed to include new situations. In 1987 a permanent injunction was granted preventing a newspaper from publishing the names of two practising doctors who had AIDS. The court concluded that the newspaper could only have obtained the information from a hospital employee who had gained unauthorised access to medical records. Confidential information For information to enjoy the protection of the law of confidence it must be secret or confidential. Obligations of confidence can, however, arise in relation to any information whether it is written or oral. Defences A claim for breach of confidence may be resisted on grounds that (a) the information is not (or is no longer) confidential; (b) the owner has consented to its disclosure; (c) the information concerns iniquity; and (d) disclosure is in the public interest. Consent must be obtained from the person to whom the duty of confidence is owed. So, for example, a lawyer can only disclose confidential information about his client to a third party if the client consents. The courts have held that there is no confidence in iniquity. If, therefore, information is obtained in circumstances that would otherwise give rise to an obligation of confidentiality the courts will not prevent disclosure if the information concerns criminal behaviour or serious misconduct. This defence may, however, be restricted to disclosure of the information to the appropriate authority, for example, to the police, the Jockey Club or Law Society, and may fail if the information is published to the public at large. Publication of otherwise confidential information may be protected if disclosure is in the ‘public interest’. The courts have upheld this defence in several cases. In a case in 1984, the claimant manufactured breathalyser devices. An employee of the company disclosed information to the media revealing inaccuracies in the breathalyser. The court held that it was in the public interest for the information to be disclosed to the public at large. Interim injunctions To protect the future disclosure of confidential information the courts have the discretion to grant an injunction restraining disclosure. Injunctions can be resisted on the grounds that the information is already in the public domain and any injunction would be ineffective. It can also be argued that the court should not grant an injunction because (a) disclosure was not deliberate; (b) that damages would be an adequate remedy to the claimant; (c) the claimant had delayed in applying for an injunction; and (d) disclosure is in the public interest or revealed iniquity.
2.5
CRIMINAL LAW RESTRICTIONS ON FREEDOM OF EXPRESSION
Blasphemy At common law blasphemy and blasphemous libel are indictable offences. These are rarely used offences, although in 1977 Mary Whitehouse brought a private
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prosecution against Gay News magazine for the publication of a poem on the homoerotic musings of the centurion guarding the body of Christ. The offences apply only to attacks on the Christian religion; consequently, opponents of Salman Rushdie’s Satanic Verses were unable to start a blasphemy prosecution as the courts refused to extend the offence to protect the Islamic religion. In Whitehouse v. Gay News Ltd (1979) the court adopted the definition of blasphemy set out in article 214 of Stephen’s Digest of the Criminal Law (ninth edition, 1950): Every publication is said to be blasphemous which contains any contemptuous reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the (offence) of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the (offence) of blasphemy. The case of Whitehouse v. Lemon makes it clear that the intentions of the publisher are irrelevant. There is no defence of public good, namely that the material was published in the interests of science, literature or art. Under section 8 of the Law of Libel Amendment Act 1888, a prosecution cannot be brought against the proprietor, publisher, editor or any person responsible for the publication of a newspaper (this does not include a journalist) in respect of any libel published without the order of a High Court judge. The accused must be given notice of the application and be given an opportunity to be heard. In 1996, it was argued before the European Court of Human Rights that the law of blasphemy contravened the right to freedom of expression as guaranteed by Article 10 of the European Convention. The British Board of Film Classification had refused to classify a video film entitled Visions of Ecstasy on the grounds that it would infringe the criminal law of blasphemy. The video concerned the erotic fantasies of a sixteenth-century Carmelite nun who experienced powerful ecstatic visions of Jesus Christ. The European Court considered that blasphemy laws must be a matter for individual countries and therefore the refusal to classify the video did not infringe the Article 10 right to freedom of expression. Obscenity The law governing obscene publications is to be found principally in the Obscene Publications Act 1959. Commercial dealings in obscene items, or possession of them for these purposes, is an offence. With or without a prosecution, the items can be seized under a magistrate’s warrant and, after a hearing to determine whether they contravene the statute, can be forfeited. The test of obscenity – ‘deprave or corrupt’ The 1959 Act adopted as the core of its test of obscenity the famous phrase of Lord Chief Justice Cockburn in 1868: does the article have a tendency to deprave or
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corrupt the persons who are likely to read, see or hear it? Courts have since interpreted ‘deprave or corrupt’ as implying a powerful and corrosive effect. There must be more than an immoral suggestion or persuasion or depiction; it must constitute a serious menace. Despite this, the ‘deprave and corrupt’ test is essentially nebulous. It is difficult to predict in advance whether juries or magistrates will be persuaded that it has been satisfied. This in turn can lead to incompatible decisions in different parts of the country. However, the 1959 Act did not simply mimic the previous law. There had been a tendency for earlier prosecutors to focus on purple passages and to invite juries to consider them in isolation. The 1959 Act now requires courts to have regard to the effect of the item taken as a whole (where the article, for instance in a magazine, consists of two or more distinct items, they can be viewed separately). Again, what matters is the likely audience, and a publisher is entitled to rely on circumstances of distribution which will restrict those into whose hands the article might fall. The prosecution’s case is not made by showing that the odd stray copy might be read by a more impressionable person; it is necessary to show that it would have the tendency to deprave or corrupt a significant proportion of the likely audience. Defence of merit The most important change introduced by the 1959 Act was a new defence that publication (in the case of magazines and books) is in the interests of science, literature, art or learning, or of other matters of general concern. A similar but rather narrower defence (the interests of drama, opera, ballet or any other art, or of literature or learning) applies to plays and films. The use of this defence was demonstrated in the first major case under the 1959 Act when the publishers of D. H. Lawrence’s Lady Chatterley’s Lover were acquitted at the Old Bailey in 1960. Drugs and violence Obscenity cases do not necessarily involve sex. There have been occasional prosecutions and forfeitures of books that advocated the taking of prohibited drugs. In 1968, while allowing the appeal of the publishers of Last Exit to Brooklyn, the Court of Appeal said that the encouragement of brutal violence could come within the test of obscenity. In recent years, video ‘nasties’ have also been dealt with under the Act. Children There are special and much more rigorous offences to try to stop the taking or distribution of indecent photographs of children. Indecency offences Obscenity is concerned with the harmful effect of the article on its reader or audience; another group of offences regulates indecency where the complaint is more that the material is offensive to public susceptibilities and a nuisance rather than a danger. No easy definition of indecency exists. The courts have said that this is something that ‘offends against the modesty of the average man, offending against recognised standards of propriety at the lower end of the scale’. It depends on the circumstances and current (and in some cases local) standards. This vagueness is
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dangerous. Posters for causes such as animal rights which are deliberately intended to shock their audience have sometimes had to contend with indecency prosecutions. Indecency is easier to prove than obscenity because there is no defence of public good, there is no need to consider the article as a whole and there is no need to satisfy the ‘deprave and corrupt’ test. There is no general crime of trading in indecent articles (as there is with obscene ones), but a number of specific offences incorporate the indecency test. Thus, it is a crime to send indecent matter through the post, or to put it on public display unless entry is restricted to persons over 18 and payment is required, or the display is in a special part of a shop with an appropriate warning notice. The indecency offences do not apply to television broadcasts (although both the BBC and private TV companies operate under internal prohibitions on indecent matter – see p. 56 below), to exhibitions inside art galleries or museums, to exhibitions arranged by or in premises occupied by the Crown or local authorities, or to performances of a play or films in licensed cinemas. Telephone calls of an obscene nature can also be caught by the indecency laws as a public nuisance. In fact, the Court of Appeal ruled in 1996 that a telephone call or calls which cause psychiatric injury can amount to an assault or grievous bodily harm. The potential scope of this extension of the criminal law to catch ‘stalkers’ which restricts free speech across all media is worrying. In addition to these offences, local councils can now adopt powers to regulate sex shops and sex cinemas in their areas. Council licences always prohibit the public display of indecent material and licences can be revoked if breaches of these conditions occur. Similarly, the music and entertainment licences granted by local authorities will often be conditional on the licensee ensuring that no indecent display takes place. Breach of this condition is both an offence and a ground for withdrawing the licence. Customs regulations also prohibit the importation of indecent articles. The bookshop ‘Gay’s the Word’ was prosecuted under these provisions for importing books concerned with homosexuality. However, these restrictions have been substantially undermined by an unlikely source, namely the EU provisions on free trade. A cardinal principle of the EU is that one Member State should not set up trade barriers to goods from another Member State if there is a legitimate internal market in the same goods. In the case of the United Kingdom there is a legitimate market in indecent (but not obscene) articles as long as the traders observe the restrictions noted above. Consequently, Britain cannot discriminate against the importation of the same indecent books from other EU countries. European law prevails over the British customs regulations. For these reasons the prosecution of ‘Gay’s the Word’ was dropped. Racial hatred The offences of inciting or stirring up racial hatred have been progressively expanded since they were first introduced in 1965. They are currently contained in the Public Order Act 1986. In brief, they prohibit the use of threatening, abusive or insulting words or behaviour, or displaying any written material which is threatening, abusive or insulting with the intention of stirring up racial hatred or where racial hatred is likely to be stirred up.
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Racial hatred is defined by the Public Order Act 1986 as hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins. An offence may be committed in a public or a private place. No offence is committed however, where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling. The inadvertent use of words that are threatening, abusive or insulting is not an offence. A police officer may arrest without a warrant anyone he or she reasonably suspects is committing the offence. There are other offences of publishing or distributing material; presenting or directing a play; distributing, showing or playing visual images or sounds; broadcasting a television programme (except programmes transmitted by the BBC or IBA); or distributing a cable programme with the same characteristics (that is, threatening, abusive or insulting) and which is either intended to stir up racial hatred or likely to have this effect. In addition, it is an offence to possess racially inflammatory material unless ignorant of its contents. The police can obtain a search warrant for such material and magistrates can order its forfeiture. The Crime and Disorder Act 1998 gave statutory force to the idea of ‘racially aggravated offences’. Racially aggravated offences include assault, criminal damage and public order offences. An offence is racially aggravated if (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or (b) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group. If a person is convicted of the racially aggravated form of assault, criminal damage or public order offences, then the court has increased sentencing powers. In relation to other offences, if the offence is racially aggravated the court is required to treat it as an aggravating factor, that is, a factor that increases the seriousness of the offence. The Official Secrets Acts Protection of government secrets is governed by the Official Secrets Acts of 1911 and 1989. Section 1 of the Official Secrets Act 1911 provides that it is an offence for any person for any purpose prejudicial to the safety or interests of the State to (a) approach, inspect, pass over, be in the neighbourhood of or enter any prohibited place; or (b) make any sketch, plan, model, or note which is calculated to be or might be or intended to be directly or indirectly useful to an enemy; or (c) obtain, collect, record, or publish, or communicate to any other person any secret official code word, or pass word, or any sketch, plan, model, article or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy. A ‘prohibited place’ is defined, extensively, in section 3 of the 1911 Act, and effectively includes any place, property or establishment which either belongs to or is used by the Crown. If convicted, of an offence under section 1 of the 1911 Act a person can be sentenced to up to 14 years’ imprisonment.
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Sections 1–5 of the Official Secrets Act 1989 provide for a series of offences prohibiting disclosure of information relating to the following six categories: (a) security and intelligence; (b) defence; (c) international relations; (d) assisting criminals; (e) information resulting from unauthorised disclosures or entrusted in confidence; and (f) information entrusted in confidence to other states or international organisations. A person who is or has been a member of the security and intelligence services, or a person notified that he or she is subject to the provisions of section 1 of the 1989 Act, is guilty of an offence if, without lawful authority, he or she discloses any information, document or other article relating to security or intelligence which has been in his or her possession by virtue of his or her position as a member of the security and intelligence services or in the course of his or her work (section 1). There is no requirement that the disclosure should be damaging or have harmed the State. A person who is or has been a Crown servant or government contractor is guilty of an offence if, without lawful authority, he or she makes a ‘damaging disclosure’ of any information, document or other article relating to: (a) security or intelligence (section 1); (b) defence (section 2); or (c) international relations (section 3). ‘Damaging disclosure’ is defined differently under each section. For information relating to security or intelligence a disclosure is damaging if it (a) causes damage to the work of, or any part of, the security and intelligence services; or (b) is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect. Under section 4 of the 1989 Act, a person who is or has been a Crown servant or government contractor is guilty of an offence if, without lawful authority, he or she discloses any information, document or other article, the disclosure of which (a) results in the commission of an offence; or (b) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or (c) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders. It is also an offence to disclose any information obtained from a telephone tap. Sections 1–4 of the 1989 Act restrict the activities of Crown servants or government contractors. Section 5 of the 1989 Act extends to others – journalists for example. It makes it an offence to disclose without lawful authority any information, document or other article protected by disclosure under sections 1–4 of the 1989 Act which has been disclosed to him or her (a) disclosed to him or her by a Crown servant or government contractor without lawful authority; or (b) entrusted to him or her by a Crown servant or government contractor in confidence. It must also be proved (a) that the disclosure was damaging; (b) that the defendant disclosed the information knowing, or having reasonable cause to believe, that it would be damaging; and (c) that the defendant disclosed the information knowing, or having reasonable cause to believe, that it was protected against disclosure by the 1989 Act and that it had come into his or her possession as a result of an unauthorised disclosure. None of these offences provides for a defence of public interest or moral duty.
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Other secrecy offences Apart from the Official Secrets Acts, there are dozens of specific statutory offences of disclosing information in the hands of the Government. Frequently, they are imposed where a government department has powers to acquire information under compulsion. These ‘mini’ Official Secrets Acts also lack a public interest defence.
2.6
CONTEMPT OF COURT AND RESTRICTIONS ON COURT REPORTING
The scope of contempt law Contempt of court serves the primary function of protecting the integrity of court proceedings. The law relating to contempt of court is found in the Contempt of Court Act 1981 and in the common law. Contempt of Court Act 1981 The 1981 Act was enacted following a decision of the European Court that English contempt law contravened Article 10 of the European Convention. It was intended to give greater protection to freedom of speech. The 1981 Act provides for the ‘strict liability rule’. The strict liability rule is defined as the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the courts of justice in particular legal proceedings regardless of intent to do so. The strict liability rule applies only to ‘publications’. These are defined so as to include any speech, writing, broadcast or other communication in whatever form, which is addressed to the public at large or any section of the public. Two important limitations on the impact of the strict liability rule are: 1. It applies only to a publication which creates a ‘substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced’; and 2. It applies to a publication only if the proceedings are ‘active’ (see below). Active proceedings The 1981 Act sets out when proceedings become active. Different tests apply as between criminal and civil cases. In criminal cases, proceedings become active for the purposes of the strict liability rule with (a) an arrest without warrant; (b) the issue of a warrant; (c) the service of a summons; (d) the service of an indictment; and (e) oral charge. Criminal proceedings cease to be active (a) upon acquittal or sentence; (b) upon any other verdict, finding or decision which puts an end to the proceedings; and (c) by discontinuance or by operation of law. In civil cases the proceedings become active when arrangements for a hearing are made. They cease to be active when the case is disposed of or discontinued or withdrawn. Substantial risk of serious prejudice In determining whether a publication has created a substantial risk of serious prejudice the courts will consider all the circumstances surrounding the publication and the proceedings in question. It is clear that for a publication to be a contempt a slight or trivial risk of serious prejudice is not enough nor is a substantial risk of slight prejudice.
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In making an assessment of whether the publication does create a substantial risk of serious prejudice the court will consider (a) the likelihood of the publication coming to the attention of a potential juror; (b) the likely impact of the publication on an ordinary reader at the time of publication; and (c) the residual impact of the publication on a notional juror at the time of trial. In assessing the likelihood of a publication coming to the attention of a potential juror the court will consider whether the publication is distributed in the area from which jurors are likely to be drawn and the number of copies circulated. In assessing the likely impact of the publication on an ordinary reader the court will consider the prominence of the article in the publication and the novelty of the content of the article in the context of likely readers. The court will also take into account the length of time between publication and the likely date of trial, the focusing effect of listening over a prolonged period to evidence in a case, and the likely effect of the judge’s directions to a jury. It should be noted that even irreverent comment about defendants in a forthcoming criminal trial may be caught. In 1996 the Court of Appeal found that the makers of the television programme Have I Got News For You were in contempt of court when jokes were made that the Maxwell brothers (who were to be tried for the Mirror Group pension fraud) were obviously guilty of fraudulent conduct, even though the programme was broadcast six months before the trial. The above factors apply primarily to cases which will be heard by a jury (criminal cases in the Crown Court and some civil cases, for example, most defamation claims). In contrast, where cases are heard on appeal or by judges alone it is much less likely that the court would find that there was a substantial risk of serious prejudice, as professional judges are, as a result of their training, expected not to be influenced by the media in reaching a decision. Defences The 1981 Act expressly provides that a person is not guilty of contempt of court under the strict liability rule if at the time of publication (having taken all reasonable care) he or she does not know and has no reason to suspect that the proceedings are active. It is also a defence for a distributor of a publication to show that, having taken all reasonable care, he or she did not know and had no reason to suspect that the publication contained matter that created a substantial risk of serious prejudice. As well as these two fairly limited defences, the 1981 Act permits the publication of material which would otherwise amount to a contempt if (a) it is a contemporaneous report of legal proceedings; or (b) it involves the discussion of public affairs. It is not a breach of the strict liability rule to publish a ‘fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith’. The protection afforded by this defence is subject to the power of the court to make a postponement order under section 4(2) of the Contempt of Court Act 1981. Postponement orders can be made where the court considers it necessary to avoid a substantial risk of prejudice to both in the proceedings before the court and in any other proceedings pending or imminent. Reporting can be postponed for as long as the court considers necessary. The media can challenge postponement orders (a) by way of judicial review; (b) under section 159 of the Criminal Justice Act 1988 ‘any aggrieved person’ may
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appeal to the Court of Appeal against an order made by a Crown Court judge; or (c) by an application to the court that made the original order. The courts have repeatedly stated that the media ought to be given an opportunity to make representations about the propriety of an order restricting reporting. A publication made as part of a discussion in good faith of public affairs or other matters of general public interest does not breach the strict liability rule if the risk of impediment or prejudice was merely incidental to the discussion. Thus Malcolm Muggeridge was free to write about the issues of terminating medical support to deformed babies even though a doctor was on trial at the same time for the killing of a Down’s Syndrome child. Muggeridge focused on a by-election in which the issues of principle had been raised and did not mention the trial. The House of Lords held that the newspaper could rely on the public interest defence. Common law contempt The Contempt of Court Act 1981 expressly provides that the act does not restrict liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice. Common law contempt is therefore preserved. A publisher is liable in contempt for an intentionally prejudicial publication made when proceedings were pending or imminent. Proceedings can be pending or imminent even prior to the arrest of a suspect. Publication of a confidential document in defiance of an injunction prohibiting its disclosure would also amount to a common law contempt. This principle was extended in the Spycatcher litigation in which the Court of Appeal held that other publishers not directly subject to the injunction, acting on their own behalf, could be in contempt of court by publishing the same material where this would frustrate the court’s intention to keep the material secret. Other restrictions on court reporting These powers are in addition to restrictions on reporting which apply without the need for a specific order. Only very brief reports can be carried, for instance, of proceedings in a Magistrates’ Court of a case, which might eventually be sent to trial by a judge and jury at a Crown Court. Newspapers can name the parties, their lawyers and whether bail was granted, but very little else until the trial is over. A defendant has the right to have these restrictions lifted, but if the co-accused differ in their attitude to publicity, the bench decides. In sex offence cases the complainant must remain anonymous (even if the defendant is acquitted) unless the court orders otherwise or the complainant waives his or her right to anonymity. The press (unlike the rest of the public) have a right to attend Youth Court hearings, but are prohibited from identifying defendants or witnesses, or from publishing their photographs. Young people do not have automatic anonymity in other courts, but the courts can make orders in specific cases. Section 12(1) of the Administration of Justice Act 1960 provides that the publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except where (a) the proceedings (i) related to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor; (b) the proceedings are
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brought under the Mental Health Act 1969; (c) where the court sits in private for reasons of national security; (d) where the information relates to a secret process which is in issue in the proceedings; or (e) where the court has expressly prohibited the publication of such information. It is important to note, however, that publication of such information will not be a contempt unless it would have been a contempt at common law. The Court of Appeal has recently stated that hearings in chambers are not confidential or secret, and information about what occurs in chambers should be made available to the public when requested. To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice. This is subject to the situations listed in section 12(1) of the Administration of Justice Act 1960, and where the court orders otherwise. These cases apart, it is very unusual for courts to depart from the principle of open justice. There is a statutory power to do so in particular cases (for example, official secrets prosecutions) and a general power where the public’s presence would defeat the ends of justice. The courts have repeatedly stressed that it is only exceptional circumstances which will justify excluding the public or restricting reporting. The public may be present in court, but photography is prohibited. In 1981, Parliament permitted the limited use of tape recorders in court with the judge’s leave. There are administrative directions that applications should be treated sympathetically. Taping can be used only as an aid in compiling an accurate record of what was said: public reproduction is banned. Reporting the proceedings of tribunals In addition to the regular criminal and civil courts, there is a bewildering array of ‘courts’, tribunals and enquiries. It is impossible to generalise about when the public have a right of access. If they do, there will usually be a qualified privilege to protect the publisher of a fair and accurate report from libel actions (see p. 37 above). The ‘strict liability contempt’ provisions will apply only if the body is ‘exercising the judicial power of the state’. By way of example, licensing authorities act administratively and therefore their proceedings are never ‘active’. Employment tribunals and mental health review tribunals, on the other hand, do exercise a statutory judicial jurisdiction. Their proceedings will be active from the time a hearing date is set, but of course there will be no contempt unless the publication poses a serious threat to the integrity of the proceedings. Enforcement Prosecutions under the strict liability rule can be brought only with the Attorney General’s consent. This was intended to ensure that some consideration was given to the public interest before prosecutions were brought. If the Attorney General refuses to prosecute, there is no right to challenge such a decision. In 1995 the Taylor sisters, whose convictions for murder were quashed by the Court of Appeal after a trial by media, failed in their attempt to get the Court to review the refusal of the Attorney General to prosecute the press for contempt. In recent years, Crown Court judges have been more prepared to discharge defendants in criminal trials who have been the subject of media coverage commenting on their guilt or innocence.
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While private parties cannot prosecute for contempt, they can, if they would suffer particularly from a publication that offended against the rule, seek an injunction to stop publication.
2.7
CONTROLS ON BROADCASTING, FILMS, VIDEOS AND CABLE
The BBC, by its Charter, is intended and expected to ‘censor’ the programmes it transmits. The Independent Broadcasting Authority (the IBA) had similar duties in relation to commercial broadcasting. The IBA’s successors, the Independent Television Commission (ITC) and the Radio Authority, are intended to regulate with a lighter touch, but their powers to penalise their licensees and ultimately to revoke licences mean that they wield considerable influence. The ITC regulates through its Code of Practice. This requires that commercial television programmes do not offend against good taste or decency and are not likely to encourage crime or lead to disorder; that news is presented with due accuracy and impartiality, and that due impartiality is preserved in regard to matters of political or industrial controversy or relating to current public policy. Unlicensed broadcasters are prohibited. It is a criminal offence, which requires no proof of intent. Therefore, pirate radio stations have to keep one step ahead of the Department of Trade Inspectors, who can forfeit equipment as well as prosecute for infringements. The Government has a power to direct that certain matters should not be broadcast on both commercial television and on the BBC. It used this power in 1988 to ban spoken comment by or in support of Sinn Féin, the UDA or any of the organisations proscribed under the anti-terrorism laws, now revoked. A challenge to the gagging order by the National Union of Journalists (NUJ), on the basis that it infringed the guarantee of freedom of expression in Article 10 of the European Convention on Human Rights, failed in the House of Lords and the application was rejected by the European Commission of Human Rights. In 1993 the Government exercised its power to control what is broadcast by proscribing the Red Hot satellite channel, a carrier of pornographic material. This was upheld after an initial legal challenge, although there may have been an infringement of EU broadcasting law. The Government even retains the power to send in troops to take control of the BBC in the name of the Crown in extreme circumstances. Unlike newspapers which can openly propagate their own views, the television companies cannot editorialise on matters (other than broadcasting issues) which are politically or industrially controversial or relate to current public policy. Subliminal messages are prohibited and religious broadcasting is specifically controlled. Political advertising is controlled by the ITC and the Radio Authority. In effect, advertising on behalf of an organisation whose objects are mainly or wholly political or advertising which is directed towards a political end is banned. Notwithstanding a court challenge, this covers radio advertising about atrocities in Rwanda and Burundi by Amnesty International. The magazine Index on Censorship has suffered a similar ban. Article 10 of the Convention was held not to be contravened.
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There are limits to these duties. Thus the Court of Appeal has accepted that in judging whether all the constituent parts of a programme satisfy the ‘good taste’ canon, the ITC can take account of the purpose and character of the programme as a whole. The duties set out above have also to be reconciled with the Commission’s other duties, for instance to secure a wide showing of programmes of merit. Channel 4 was deliberately created to provide programmes ‘calculated to appeal to tastes and interests not generally catered for by ITV’, and ‘to encourage innovation and experimentation in the form and content of programmes’. Inevitably, this can only be done in some cases at the risk of causing offence to those with mainline tastes. The requirement of impartiality in non-news programmes can be satisfied over a series of programmes and a tradition has developed of allowing more latitude to ‘personal view’ programmes that are ‘balanced’ by others. The courts have discouraged legal challenges to the ITC and its predecessor, the IBA, for vetting programmes, and their decisions on individual programmes can (generally) only be quashed if they are so perverse as to be unreasonable. The BBC has accepted similar restraints to those imposed on commercial television, but the legal position of the restraints remains uncertain. The Obscene Publications Act now applies to television and radio broadcasts, although no prosecutions have yet been brought (since 1990). The Broadcasting Standards Commission The 1996 Broadcasting Act set up a new quango to deal with broadcasting regulation. The new body has taken over the functions of the old Broadcasting Standards Council (BSC) which was set up by the Government to monitor sex and violence on radio and television and the Broadcasting Complaints Commission which dealt with complaints in relation to unjust or unfair treatment and unwarranted infringements of privacy. The two regimes now operate under one roof. Radio or television programmes put out by the independent broadcasters or the BBC can be reviewed by the BSC. Complaints of unjust or unfair treatment or unwarranted infringements of privacy in, or in connection with, the obtaining of material included in sound or television broadcasts, may be made by a person affected (fairness complaints). Complaints cannot be made in connection with someone who has died more than five years previously, but within this period a member of the family, a personal representative or someone closely connected can make a fairness complaint to the BSC. Written complaints can be made by anyone about the portrayal of violence or sexual conduct or about alleged failures of programmes to attain standards of taste and decency (standards complaints) within two months of a television programme and three weeks of a radio programme. The Commission cannot order the payment of any money to the complainant, but can insist on the responsible body publishing the Commission’s findings and, more significantly, can insist on an approved summary being broadcast within a stipulated time. The British Board of Film Classification The British Board of Film Classification (BBFC) is a hybrid system. There is no general requirement that a film must have a BBFC certificate before being shown, but this position is achieved indirectly by the power of local councils to license cinemas. Most licences have a condition attached that only films with a BBFC certificate will be
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shown. Like television and radio programmes, films can be prosecuted under the Obscene Publications Act, although feature films (not less than 16 mm) can be prosecuted or forfeited only with the approval of the Director of Public Prosecutions. The BBFC has been given an enlarged role in relation to video cassettes. Here it is a censor in law as well as in practice and it is an offence to supply an unclassified video or to breach any restrictions which have been imposed by the BBFC (as to minimum age, type of supplier, and so on). Videos concerned with sport, religion, music and education are exempt, but not if they show or are designed to encourage human sexual activity (or force or restraint associated with it), or mutilation, torture or other gross acts of violence towards humans or animals. Videos are not exempt either, if they show human genitalia or human urinary or excretory functions. The BBFC has to consider whether videos are suitable for viewing in the home. There is an appeal structure for those who submit videos to the BBFC, but the sizeable fees charged by the Board and the delays that the process necessarily entails can cause grave difficulties for producers. Cable The regulation of cable programming has been established on a similar model to that for broadcasting. Thus, the ITC has the power to license operators. It must do all that it can to see that its licensees do not include in their programmes material which offends against good taste or decency or is likely to encourage or incite crime or lead to public disorder or to be offensive to public feeling. Subliminal images are, again, banned. News must be presented with due accuracy and impartiality, but only if it originates in the United Kingdom. Non-news programmes are considerably less inhibited than broadcasts; instead of a requirement of ‘balance’ there is only the duty to see that undue prominence is not given to the views and opinions of particular persons or bodies on religious matters, matters of public controversy or issues relating to current public policy. Editorialising on religious, political, industrial controversy or current public policy is, as with broadcasting, prohibited. The ITC has the ultimate sanction of withdrawing an operator’s licence if these or the other conditions are broken.
2.8
THE BALANCE OF CONFLICTING RIGHTS AND INTERESTS
Following incorporation of the European Convention into domestic law, English law recognises the positive right to freedom of expression. Further, domestic courts are required to have regard to the case law of the European Court. Whereas before freedom of speech was tolerated subject to restrictions, the courts must now start from the basis that freedom of expression is a fundamental right and constitutes one of the essential foundations of a democratic society. Any restrictions on that freedom must be carefully scrutinised and justified. Those seeking to impose restraints on freedom of speech must show that the restrain pursues a legitimate aim (as set out in Article 10(2)), is prescribed by law, and satisfies a pressing social need. It is likely that incorporation will have significant implications for freedom of expression under English law. Any developments will, however, have to be considered against the new right to privacy guaranteed by Article 8 of the European Convention.
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FURTHER INFORMATION
Useful organisations Campaign for Freedom of Information Suite 102 16 Baldwin Gardens London EC1N 7KJ Tel: 020 7831 7477
Newspaper Society Bloomsbury House Bloomsbury Square 74 -77 Great Russell Street London WC1 3DA Tel: 020 7636 7014
Campaign for Press and Broadcasting Freedom 8 Cynthia Street London N1 9JF Tel: 020 7278 4430 National Union of Journalists 314 Gray’s Inn Road London WC1X 8PD Tel: 020 7278 7916
Bibliography F. Klug and others, The Three Pillars of Liberty, Routledge, 1996. G. Robertson, Obscenity, Weidenfeld and Nicolson, 1976. G. Robertson and A. Nicol, Media Law: The Rights of Journalists and Broadcasters, Penguin, 1992.
James Strachan
3
The Right to Privacy
This chapter deals with • • • • • • • • • • • • • •
3.1
Article 8 – the right to respect for private and family life, home and correspondence Confidential information Spent convictions and the rehabilitation of offenders Tapping, bugging and recording of telephone conversations Interception of post Regulation of Investigatory Powers Bill Other types of bugging and surveillance Harassment, unwanted letters and telephone calls Intrusion or harassment by neighbours and others Power of officials to enter your home Searches by Customs and Excise officials Sexual identity and sexuality Privacy and the media Further information
ARTICLE 8 – THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE
It was often said that there was no right of privacy as such in English law. The English courts had refused to follow the pioneering course of their American counterparts, which have spelt out from the common law and the US Constitution general principles that protect an individual’s right to be left alone. Instead, the English law consisted of a piecemeal system of common law and statutory rights protecting certain aspects of private life by actions like defamation, trespass to the person and trespass to property. This piecemeal system was notoriously incomplete and left people in the past without remedy even where a clear unjustifiable invasion of privacy had taken place. The incorporation of Article 8 of the European Convention on Human Rights by the Human Rights Act 1998 represents one the most significant and dramatic changes for privacy rights in this country that has ever taken place. The effect of Article 8 is likely to more far-reaching than any other Article right. In essence, the incorporation of Article 8 creates a general right to respect for privacy where none previously existed. It offers general protection for a person’s private and family life, home and correspondence from arbitrary interference by the State. This clearly has implications for a large number of areas ranging from surveillance to sexual identity. It is important to note that the right to respect for these 60
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aspects of privacy under Article 8 is qualified. This means that interferences by the State will be permissible, but only if they satisfy certain conditions. Any interference with the right must be: 1. in accordance with the law; 2. in pursuit of one of the legitimate objectives spelt out in Article 8(2); and 3. be proportionate – that is, serve a pressing social need. ‘In accordance with the law’ In many cases which have come before the European Court of Human Rights, interferences with privacy have been in breach of Article 8 because they have not been in accordance with the law. The most well-known examples have been the telephone tapping or bugging of individuals by the police using procedures and systems not contained in statutes. The absence of any proper legal structure in these circumstances has been held to infringe Article 8. Accordingly, the incorporation of Article 8 will bring with it a requirement that all interferences with an individual’s privacy take place in accordance with the law. The legitimate objectives The legitimate objectives set out in Article 8(2) are acting in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. These objectives are broad and it will often be possible for an interference to be categorised as in pursuit of one of these objectives – for example, telephone tapping for the purposes of investigation or prevention of crime. More vexed questions are likely to arise in the context of competing interests of privacy and freedom of expression where publication of photographs or materials about a person’s public life are concerned. In some cases identification of a legitimate objective may involve distinguishing between a legitimate interference in someone’s private life in the public interest as opposed to illegitimate interference merely because it is something in which the public might be interested. Proportionality Even if the infringement of privacy is in accordance with the law and it is for one of the legitimate objectives, it must still be proportionate in order for it to satisfy Article 8. This is a very important requirement, which means that the nature and extent of each interference must be evaluated with regard to the end to be achieved. This is often put colloquially as not using a sledgehammer to crack a nut. The more severe the infringement of privacy, the more important the legitimate objective in each case will need to be. It is likely that this will involve an analysis of deciding whether the interference is required by a pressing social need and the extent to which an alternative, less intrusive interference would achieve the same result. The nature of the privacy rights It is also important to recognise that concepts of private and family life, home and correspondence in Article 8 may be wider than they seem at first glance. The concept of respect for private life includes the right to develop one’s own personality as well as to create relationships with others. Article 8 has been used to protect the rights
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of homosexuals and transsexuals. It has also been used to extend to afford protection to a person’s office space as well as his home. More recently in the English courts, it has been recognised that a right of privacy may be enjoyed in principle by a company as well as an individual. Protection of private life and the home may be relevant to decisions made in planning and environmental contexts. Permitting development of unpleasant development nearby your home (i.e. a nuclear plant or waste site) which will affect your enjoyment of your property may be an interference with your rights under Article 8 which will need to be justified in the ways set out above. Similarly, your rights to refuse medical treatment and to maintain your personal autonomy will usually involve the principles protected in Article 8. There are many varied ways in which the incorporation of this right will filter through the whole body of rights enjoyed by an individual in society. It also important to remember that the rights in the European Convention (as now incorporated) are intended to be rights contained in a ‘living instrument’. That means that the nature of the right and the extent to which it should be protected will depend upon society’s values at any one time. Many of the aspects of private life which now enjoy protection under the Convention would never have been envisaged or protected at the time the Convention was drawn up in the 1950s. The rights in Article 8 are flexible and able to adapt to changes in moral values. You will need to be aware that previous decisions based on Article 8 may not be relevant or applicable to circumstances in today’s world. You may well have a good case that your rights under Article 8 have been infringed even if there is an older case in similar circumstances which appears to be against you. A good example is the emerging rights of transsexuals. The European Court has indicated on several occasions that the current limited rights of transsexuals to change identification documents to reflect changes in their sex will need to be reassessed in the light of any material changes in attitudes towards and scientific knowledge and insight into transsexuality. The requirement on public authorities to act compatibly with the Article 8 privacy rights is contained in section 6 of the Human Rights Act. This means that it is essentially a requirement placed on the State or other public bodies such as the police, local authorities or the courts. There is no right of privacy directly created by the Human Rights Act between individuals. However, the obligation on the courts to act compatibly with Article 8, combined with the obligation to interpret statutes and Statutory Instruments compatibly with Article 8 whenever possible, is likely to cause the courts to develop the common law in a way that seeks to protect rights of privacy as between private individuals (be they neighbours or an individual and a newspaper). Given the way in which Article 8 works through its incorporation by the Human Rights Act, it will still be necessary to examine the piecemeal protection of common and statute law which currently exists in order to determine the privacy rights you enjoy. Whereas previously your rights may have been confined to those set out in that piecemeal protection, any interference with those rights by the State must now also be justifiable in accordance with the tests in Article 8. Accordingly, when dealing with police telephone tapping under a statute, or entry of an official onto your property pursuant to another statute, it will be necessary to examine whether the telephone tapping or entry into your home is justified under Article 8. It is apparent from recent case law from the European Court of Human Rights that a
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public authority may be liable for breaches of your rights to privacy even in circumstances where it obtains information that is subsequently used and admitted as evidence against you in civil or criminal proceedings. What follows by way of analysis of the existing common law and statute law must be seen in this context. So far as rights are concerned between individuals, these will need to be looked at in the light of the developments of the common law by the courts following the implementation of Article 8. It may well be that a new tort of privacy emerges in English law which will significantly redefine an individual’s rights in society. We have tried to give an indication of the areas where there are most likely to be advances in these areas.
3.2
CONFIDENTIAL INFORMATION
The law of confidence has its origins in the commercial world of trade secrets and confidential lists of business contacts. However, it has grown far beyond this. Normally three main elements will have to be proved before the courts will grant an injunction to preserve a secret: 1. The information must be confidential in nature (such as health records). 2. The person with the information must be under a duty to keep it confidential. 3. The proposed use must be incompatible with that duty. The duty of confidentiality can be created by a contract. Members of the Royal households, for instance, have to promise never to reveal what they learn in the course of their employment. But many secrets are shared by people who never think in terms of contracts. There are many relationships which are, by their nature, confidential: for example, between a lawyer and a client or between a doctor and a patient. The courts have been willing to recognise that duties of confidence can be owed between spouses and even friends. As importantly, third parties who acquire information and who know or learn of its confidential character can also be required to respect the confidence. This means that a newspaper to whom a secret is sold or given can be ordered not to publish it. Secret documents accidentally sent to third parties must be returned. The language of ‘duty or confidence’ is applied even to a thief who steals private papers. For the duty to arise, it may simply be sufficient for any reasonable person, standing in the shoes of the recipient of the information, to have realised that the information was being given or obtained in confidence. The requirement that the information must be confidential is loosely applied. The court will not refuse an injunction because the information has leaked out to a limited extent. However, there will come a point (as in the Spycatcher saga) when it is plainly silly to pretend that there is any secret left to be preserved. There is obviously potential for a clash of interests here: between the original confider who wants the secret kept and the press who appeal to the principle of freedom of expression. Although there is a public interest defence to breach of confidence, the balance between these two interests is still unsatisfactory (see Chapter 2 on freedom of expression). Most breach of confidence cases take the form of applications for injunctions but, if a person wishes to stop publication pending a full trial of the case, he or she is
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usually expected to give an undertaking to pay the defendant compensation if the action eventually fails: since most people are unlikely to have the income to be able to give this kind of undertaking, such injunctions tend to be available only to the rich. If publication takes place before the plaintiff can act, the courts can still award damages or order the defendant to account for any profits made as a result of the disclosure. The area of breach of confidence is one which is most likely to be used as a starting point for the growth of a coherent protection of privacy generally. One judge has already stated that if someone with a telephoto lens were to take a picture of another person without their consent even from some distance, where that person was engaged in some private act, his or her subsequent disclosure of the photograph would as surely amount to a breach of confidence as if he had found or stolen a diary in which the act was recounted and proceeded to publish it. If this principle is adopted and enlarged upon by reference to the rights under Article 8, it is possible to see that actions for breach of confidence may arise where the confidential information is in fact really information which should be regarded as private. However, actions for breach of confidence will still not prevent the actual intrusion itself. They will only really cover the consequential acts of disclosure of material obtained by the intrusion. In this respect, English law may need to develop its own action for breach of privacy by reference to Article 8.
3.3
SPENT CONVICTIONS AND THE REHABILITATION OF OFFENDERS
One particular kind of information that a person may understandably want to keep confidential is that relating to a past criminal conviction. On the other hand, other people may have a legitimate need to know about previous convictions so as to protect vulnerable people, for example. The Rehabilitation of Offenders Act 1974 allows people to start with a clean slate after they have paid their debt to society, but provides for exceptions to this general principle. How a sentence becomes spent The Act applies to all types of sentence, whether it is term of imprisonment, a fine, probation, absolute or conditional discharge, findings in a juvenile court that an offence has been committed, and convictions of certain offences in service disciplinary proceedings. The length of the rehabilitation period depends on the sentence and runs from the date of conviction. When the relevant rehabilitation period has expired, the conviction becomes ‘spent’ and usually will not need to be disclosed in the future, for example, when you are applying for a job, completing an insurance proposal form or applying for credit facilities or a tenancy of property. Table 3.1 sets out the rehabilitation periods according to type of sentence. The following sentence can never become spent: • • •
A sentence of imprisonment, youth custody detention in a young offenders institution or corrective training, for a term of more than two and a half years. A life sentence. Detention during Her Majesty’s pleasure.
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If you are convicted during the rehabilitation period of an offence that can only be tried by a Magistrates’ Court, the new sentence will carry its own rehabilitation period and will not affect the earlier one. If the second offence is more serious and you receive a sentence covered by the Act, the earlier conviction will become spent only when the later one becomes spent. If a person is given a sentence that can never become spent, this also prevents an earlier unspent conviction from becoming spent. Table 3.1
Spent convictions and the rehabilitation of offenders
Sentence
Rehabilitation Period
Prison for more than two and a half years Prison for more than six months but less than two and a half years Prison for six months or less Fine Dismissal with disgrace from Her Majesty’s service Dismissal from Her Majesty’s service Detention in respect of conviction in service disciplinary proceedings Borstal Detention for over six months but less than two and a half years Detention for six months or less Probation Hospital order under Mental Health Act 1983
Never
Absolute discharge Conditional discharge, probation order, binding over, care order, supervision order
Disqualification
10 years* 7 years* 5 years* 10 years* 7 years* 5 years* 7 years 5 years 3 years 5 years 5 years or 2 years after order ceases to have effect, whichever is the longer 6 months 1 year after conviction of the order or 1 year after the order ends, whichever is the longer The period of disqualification
*Note: These periods are reduced by half if the offender was under 18 at the date of conviction.
It should be noted that it is the length of the sentence imposed by the court that is relevant and not, for example, the length of time actually served in prison. A sentence counts in the same way whether you are actually sent to prison or the sentence is ‘suspended’. In each case, the periods of rehabilitation are as set out in Table 3.1. Where a person receives two or more prison sentences in the course of the same court case, the rehabilitation period depends on whether the sentences are ordered to take effect ‘concurrently’ (that is, at the same time) or ‘consecutively’ (that is, one after another). For example, if two six-month sentences are concurrent, the offences
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are treated separately, giving each conviction a rehabilitation period of seven years. However, if the sentence is consecutive, they are treated as a single term of twelve months, with a rehabilitation period of ten years. The effect of rehabilitation Once the rehabilitation period has expired, not only do you not have to reveal it, but also it cannot be revealed by anyone else without your permission. Evidence in legal proceedings A spent conviction cannot be used in evidence in a civil court, tribunal, arbitration or disciplinary or similar hearing. You should not be asked questions about spent convictions and, if you are, you need not answer them unless you wish to do so. This does not apply in: •
service disciplinary proceedings;
•
applicants for adoption, custody, wardship or guardianship or in care proceedings.
•
Where the court or tribunal is satisfied that justice cannot be done except by hearing evidence about the spent conviction;
•
criminal proceedings – however, the Lord Chief Justice has issued a practice direction requiring that no one should refer in open court to a spent conviction without the authority of the judge, whose authority should not be given unless the interests of justice so require.
Provision of services Some contracts, such as insurance polices, are governed by the legal principle that all relevant information must be disclosed by the person seeking insurance, whether or not it is asked for – otherwise the contract could be treated as invalid. Clearly, the existence of a driving offence or an offence of dishonesty could be relevant to an insurance company’s assessment of the risk and the appropriate level of the premium. However, the Act clearly states that your duty to disclose all relevant information does not extend to disclosing convictions which are spent. Going abroad It should be remembered that the Act applies only to the United Kingdom and has no effect so far as the laws of other countries are concerned. This means, for example, that applicants for immigration and work permits or for visas to countries such as the United States will be under a duty to disclose spent convictions (unless the law of the relevant country has an Act similar to ours, in which case the extent of your duty will often be made clear on the application form). If in doubt about the law of the country concerned, asked their embassy or high commission in this country. Defamation proceedings A reference to a spent conviction in a newspaper article, for example, can give rise to a claim for defamation. However, in order to protect free speech, the Act states that a person who is sued for disclosing a spent conviction may rely on the defences of ‘justification’ (that is, the statement is true) and/or ‘fair comment’ (that is, the
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statement was a fair comment on a matter of public interest). In order to succeed when such a defence is raised, you would have to prove that the statement was made with ‘malice’, that is with some irrelevant, spiteful or improper motive. In addition, the reporting of certain events and the making of statements in certain circumstances can give rise to the defences of ‘absolute’ or ‘qualified privilege’. For example, fair and accurate reports of judicial proceedings are ‘absolutely privileged’ (that is, immune) from defamation actions (see Chapter 2). As the law relating to defamation is complicated, you should seek specialist legal advice but remember that Legal Aid is not available for defamation actions. Exceptions of the Act The Act is often criticised for the many and wide exceptions made to its general principles. If you fall within any of the exceptions, you will be treated as if the Act had never been passed and you will not be entitled to rehabilitation for an otherwise spent conviction. These exceptions are listed in the Orders made by a relevant government minister and relate to matters of national security, the care of those who are considered to be vulnerable and to the administration of justice. Excepted professions, occupations and offices A number of professions, occupations and offices have been excepted from the Act’s general rule that a person does not have to disclose a spent conviction (see Table 3.2). If you apply to join one of the professions, occupations or offices listed in Table 3.2, you will normally be asked to disclose all previous convictions including spent ones (and you must be told why). Furthermore, a spent conviction, or the failure to disclose it, may be a good ground to exclude or dismiss you from one of the professions, occupations or offices listed in Table 3.2. Table 3.2
Excepted professions, occupations and offices
Accountants Chiropractor Dealer in securities Dentists, dental hygienist or dental auxiliary Director, controller, etc. of insurance company or building society Firearms dealers Judicial appointments Lawyers Manager or trustee of unit trust Medical practitioners
Nurses and midwives Opticians Osteopath Pharmaceutical chemists Police constables Prison board of visitors Prison officers Probation officers Teachers Traffic wardens Veterinary surgeons
Other excepted occupations include: •
Any office or employment where the question about spent convictions is asked for the purpose of safeguarding national security – for example, if you wish to be employed by the UK Atomic Energy Authority, the Civil Aviation Authority or as an officer of the Crown.
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•
Certain types of work in health and social services where the work involves access to people over 65, people suffering from serious illness or mental disorder, alcoholics or drug addicts, blind, deaf or dumb people, persons who are substantially and permanently handicapped by illness, injury or congenital deformity, or where the work is concerned with the provision of care, recreation or leisure facilities, schooling, social services, supervision or training, to people under 18 (see below for further details).
•
Applications for certain certificates or licences (for example, those for firearms, explosives or gaming) require that your spent convictions must be disclosed and allow the licensing authority to take them into account. Failure to disclose a spent conviction could lead to the refusal or loss of the certificate or licence and even to prosecution.
Employment Employers often wish to ask questions about a potential employee’s previous convictions. The general rule under the Act is that you can treat such questions as not relating to spent convictions (provided that they are not within the Act’s excepted professions, occupations or offices dealt with above – you should read these carefully). Therefore, if you decide not to disclose a spent conviction, you cannot be denied employment or subsequently dismissed on the ground that you failed to disclose it; however, in exceptional circumstances, you may be prosecuted for the criminal offence of ‘obtaining a pecuniary advantage by deception’. Likewise, failing to disclose a spent conviction is not a lawful ground for excluding you from any office or profession. Nor can a spent conviction be a lawful ground for prejudicing you in the way you are treated in an occupation or employment. If, therefore, you are excluded or dismissed from employment on the ground of a spent conviction, you may be able to take the matter to a court or to an industrial tribunal. However, you should first seek legal advice. It has also been shown that a significant number of employers have been adopting a practice of asking prospective or existing employees to obtain a copy of their criminal record pursuant to their rights under the Data Protection legislation, which allows people to see records about themselves (see Chapter 4). There was concern that this type of indirect access of employers to personal information (known as ‘enforced subject access’) avoided the safeguards intended by the Data Protection legislation and resulted in persons disclosing information to potential employers about spent convictions in circumstances where such information need not have been disclosed. Access to criminal records for employment purposes has, therefore, now been formalised in a statutory framework set up by the Police Act 1997. The new system involves a centralised procedure for criminal record checks for employment-related and voluntary appointment purposes. All checks will be carried out by the Criminal Records Bureau (the CRB, operational in 2001) and can be applied for only with the knowledge and consent of the person who is the subject of the check. Each application will require payment of a fee. If you are required to make such an application, you should also find out who will be responsible for payment of this fee – you or the potential employer. The CRB will then carry out the check by examining various databases and then issue one of three types of certificate, depending upon the nature of the check required. This in turn will depend upon the
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nature of the employment or voluntary appointment for which the person is applying. There are three types of checks and certificates: 1. Basic level check and Criminal Conviction Certificate This check will be available upon request of the applicant for any type of employment and voluntary appointments. The Criminal Conviction Certificate should show only details of convictions (if any) which are unspent under the Rehabilitation of Offenders Act. A copy of the certificate should only be provided to the person who is the subject of the check. It will then be up to that person to decide whether or not to show it to his/her potential employer. These types of certificate will not be jobspecific and may be used more than once. 2. Intermediate level check and Criminal Record Certificate This type of check will be available for any person seeking a position involving regular contact with persons under 18 years of age or with persons who may otherwise be vulnerable or for occupations which are exempted from the Rehabilitation of Offenders Act – for example, nurses, lawyers, accountants, police officers and traffic wardens. This check requires a joint application from both the relevant person and the potential employer or organisation seeking the check. The potential employer or organisation must be a registered person in order to be able to make such a joint application. This type of check will result in the issue of a Criminal Record Certificate which will provide information about both spent and unspent convictions and also police cautions, reprimands or warnings. Where the position being sought involves close contact with children, the certificate will also contain details of whether the applicant is named on lists held by the Department for Education and Employment and Department of Health of those thought unsuitable to work with children. If your name appears on these lists, then you should have been informed at the time by the relevant Department that your name had come to its attention and why. You should also have been given the opportunity to make representations about the incident in question. A copy of the resulting certificate will be sent to both the applicant and to the registered potential employer or organisation. 3. High level check and Enhanced Criminal Record Certificate This type of check will be available for all those who are applying for work which regularly involves caring for, training, supervision or being in sole charge of those aged under 18 or vulnerable adults. The check will also be available for any person seeking registration as a childminder or day carer, or approval as a foster carer or parent, or seeking gaming or lottery licences or judicial appointments. Like an intermediate level check, it will require a joint application from the relevant person and the potential employer/organisation which must itself be registered. The check will result in the issue of an Enhanced Criminal Record Certificate which will show all of the details contained on a Criminal Record Certificate (that is, unspent and spent convictions, cautions, reprimands and warnings and appearances on the Department of Education and Employment and Department of Health Lists). It may also show additional information held by the police that is not about convictions but which the police feel to be relevant to the job or voluntary work sought,
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including criminal intelligence information, records of acquittals and results of inconclusive police investigations as well as uncorroborated allegations from informants. Again, the certificate will be provided to both the applicant and the potential employer/ organisation but the additional information provided on an Enhanced Criminal Record Certificate may be withheld from the individual applicant. If you apply for any of these certificates and upon receipt discover that the information contained in it is inaccurate, you have a statutory right to apply in writing for a new certificate. The CRB will then have to consider your application and, if it is of the opinion that the certificate is inaccurate, it will be obliged to issue a new certificate. It is for the prospective employer or particular organisation to decide upon your suitability for the position taking into account only those offences which may be relevant to the particular job in question – for example, they should consider the nature of the offence, when it occurred and its frequency. The fact that you have a criminal record does not automatically mean that you are unfit for particular employment or unfit to work with children or vulnerable adults. All those registered bodies entitled to make joint applications for either an intermediate or high level check will be required to adhere to a Code of Practice designed to ensure that the information released by the CRB is used sensibly and fairly. The registered body will be expected to have written policies on the recruitment of ex-offenders and will be expected to store certificates securely and dispose of them once used. They will also be expected to have proper procedures to ensure that the relevance of any conviction to the particular position is carefully assessed so that persons are not unfairly excluded from employment opportunities. Unfortunately, this Code of Practice will not apply to potential employers who require you to provide a Criminal Conviction Certificate. If you are concerned that a prospective employer may take into account a conviction or entry upon a certificate that you consider to be irrelevant to the job applied for, you may wish to make representations in writing explaining the circumstances of any entry on the certificate and why you consider it to be irrelevant. If you are denied employment on the basis of that entry, you should seek legal advice: in limited circumstances, it may be possible to challenge the decision. In the case of a registered body relying upon a Criminal Record Certificate or Enhanced Criminal Record Certificate, a failure to adhere to the Code of Practice will clearly be relevant. It is a criminal offence to make a false certificate, to alter an existing certificate, to use someone else’s certificate as your own or to allow someone else to use your certificate as their own, with intent to deceive. It is also a criminal offence for a person to disclose information provided for the purpose of a Criminal Record Certificate or Enhanced Criminal Record Certificate in an unauthorised manner and without the consent of the person to whom the certificate relates or other statutory authorisation. The incorporation of basic human rights (including a right to respect for your privacy) under the Human Rights Act 1998 may well affect the way in which certificates may be provided by the CRB and used by prospective employers. Provision of a certificate of any form to a potential employer or organisation will represent a type of interference with respect to your private life under Article 8(1), but in most
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cases such interference will be for a legitimate aim since it will be directed at the prevention of crime, the protection of morals and the protections of the rights of others. Such interference must, however, still be proportionate to that legitimate aim. Given the different types of certificate applicable to different types of employment or positions, in most cases the different levels of interference (depending on the nature of the job applied for) will usually be a proportionate interference. However, the CRB will be under a duty to act compatibly with your right to respect for privacy. Its decisions in particular on disclosure of cautions, reprimands and warnings on Criminal Record Certificates and additional material on an Enhanced Criminal Record Certificate will need to be carefully made for each and every case. Blanket policies of disclosure or disclosure of material which is plainly irrelevant to your particular circumstances could well amount to a breach of Article 8. Furthermore, disclosure of information which is untested and which has not resulted in any criminal conviction (such as uncorroborated allegations from informants or criminal investigations) could in certain circumstances amount to breaches of other basic rights such as the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights. This will invariably depend upon your particular circumstances and the method and purpose of the disclosure. If you are in any doubt on these issues you should take legal advice. For further information on the CRB, write to: Criminal Records Bureau PO Box 91 Liverpool L69 2UH
or visit its website: <www.crb.gov.uk> Police disclosure of information The general rule is that police information (including information on convictions) should not be disclosed without the consent of the relevant person unless there are important considerations of public interest to justify departure from the general rule of confidentiality. Comments made in police interviews, for example, are in principle confidential and remain so even if not used in criminal proceedings. Exceptions to the general rule of confidentiality are made where there is a need to: • • •
protect vulnerable members of society; ensure good and honest administration of the law; protect national security.
The effect of this means that under Home Office Circular No. 45/86 Police Reports of Convictions and Related Information, the police may disclose, both when requested or even when no such request is made, information on a person’s past convictions, cases pending and other such background information as would be admissible in court in the circumstances listed in respect of: • •
persons to be appointed to posts with substantial access to children (see above); members of or visitors to the same household as a child subject to a case conference on non-accidental injury to children;
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• • • • • • • • • • • •
parents (and any co-habitees) to whom a local authority propose to return a child in care; applicants for compensation for criminal injury; applicants to join the police; applicants for certain licences: for example, gaming, lottery, sex establishment and entertainment licences (see above); applicants for the holders of licences as operators of heavy goods vehicles and passenger service vehicles; applicants for consumer credit licences; applicants for casual Post Office work; potential jurors in cases involving national security or terrorism; social enquiry reports and other reports by probation officers; welfare reports for courts determining the care and custody of children; people subject to national security vetting; people subject to internal investigations by regulatory bodies operating in the field of public health and safety.
Under the same Circular, the police are asked to report convictions as they occur to the supervising authorities or professional bodies of those groups listed in Table 3.3, particularly where the offences involve violence, dishonesty, drink or drugs, as they may affect a person’s suitability to continue in a profession or occupation. Table 3.3
Reporting convictions of those in certain professions and occupations
British Telecom Staff Civil Aviation Authority staff Civil servants Dentists Lawyers Magistrates Medical practitioners (and various professions supplementary to medicine) Pharmaceutical chemists’ staff
Post Office staff Probation officers Social workers Teachers (including student teachers) and ancillary staff UK Atomic Energy Authority and British Nuclear Fuels staff Youth workers
However, any such disclosure of this type of information should generally be on notice to the relevant person affected. This should give you a proper opportunity to make an application to the court before disclosure takes place if you believe that such disclosure is unjustified. Under section 115 of the Crime and Disorder Act 1998 a new principle of information sharing has been formalised. This section gives power to any person to disclose information to police authorities and chief constables, local authorities, probation committees, health authorities or persons acting on their behalf of personal information so long as such disclosure is necessary for the purposes of any provision of the Act. These purposes include a range of measures including: local crime audits, anti-social behaviour orders, sex offender orders and local child curfew schemes. In addition, the Crime and Disorder Act requires local authorities to exercise their own functions with due regard to the need to do all that it reasonably
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can to prevent crime and disorder in its area. Therefore, it may often be the case that information sharing is possible on the basis of performance of that wide duty – an example might be disclosure by the police of motoring offences committed in or around a certain housing area known to have joy-riding problems. The power to share information, however, does not override the other existing safeguards for disclosure of personal information contained in other legislation or contained in the common law, such as defamation, data protection legislation and duties of confidentiality. Where data protection principles apply (under the Data Protection Act 1998), information will need to be obtained and processed fairly and lawfully, only be disclosed in appropriate circumstances, be accurate and relevant, not be held longer than necessary and be kept securely. Where duties of confidentiality apply, then the disclosure will only be justified if there is an overriding justification for breaching the confidentiality of the type dealt with above. The principle of information sharing only ensures that all persons have the power to disclose material, but does not impose any duty to do so. Decisions as to whether or not material should be disclosed will be subject to the principles discussed above and, in the cases of disclosures by a public authority, directly subject to the right to respect for private life contained in Article 8 of the Convention. It is envisaged that public authorities will issue protocols setting out the ways in which information is to be shared between organisations or bodies. An example is that of the Metropolitan Special Police Notice: The exchange of information under the Crime and Disorder Act. This can be found on the Metropolitan Police website <www.met.police.uk>. If personal information about you has been, or is intended to be, shared between public bodies, you should find out if there is any relevant protocol affecting the way in which such information is to be provided. The Home Office has issued Guidance on this information sharing power which can be found in Chapter 5 of the Home Office Circular 9/1999: Guidance on Statutory Crime and Disorder Partnerships. Unauthorised disclosure of convictions or other information The Rehabilitation of Offenders Act makes it an offence if: •
An official unlawfully discloses someone else’s spent conviction, in the course of their official duties. The penalty is a maximum fine of £2,500 (level 4 on the standard scale).
•
Any person who obtains details of a spent conviction from any official record by means of fraud, dishonesty or a bribe. The penalty is up to six months’ imprisonment and/or a maximum fine of £5,000 (level 5 on the standard scale).
If someone wrongfully reveals that you have a spent conviction, you can: •
Report the matter to the police and ask that the incident be investigated with a view to prosecution of the person responsible.
•
Sue the person concerned for defamation (see above).
•
Make a formal police complaint.
If, for example, the police reveal to a person who is not responsible for people listed in Table 3.3, you may be able to bring a claim for breach of confidence (see section
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3.1 above). You should seek legal advice about this, since it is a developing area of the law. Its advantage over defamation proceedings is that Legal Aid is (at least in principle) available. Furthermore, the police and other bodies who hold confidential information are likely to owe duties to the provider of such information (for example, a police informer) to take reasonable care to prevent such confidential information being disclosed to the public unintentionally. If the police are negligent in the handling of such confidential information, you may be able to sue them for negligence and to claim damages. Sex Offenders’ Register The Sex Offenders Act 1997 imposes a requirement on people who have been convicted (or found not guilty by reason of insanity) or cautioned for sex offences to notify the police of their name and address (sections 1 and 2). Although the Act is often regarded as creating a ‘paedophiles’ register’, the definition of sex offences in Schedule 1 to the Act is very wide and is not confined to offences against children or to non-consensual offences. In the case of those who have been cautioned, the requirement will apply if they have admitted the offence in question (section 1(1)(c)). It will be an offence to fail to comply with the notification requirement, punishable by either a fine not exceeding scale 3 or a maximum of one month’s imprisonment or both (section 3). The requirement will remain in place indefinitely if a person has been imprisoned for a term of more than six months but less than 30 months and for a period of seven years if a person has been imprisoned for six months or less or has been admitted to a hospital without a restriction order. The notification requirement will remain in place for five years for other people (section 1(4)). The relevant periods are halved if the person concerned is under 18 on the relevant date as defined in section 1(8) and section 4(2). Disclosure and use of information contained on this register will be governed by the same principles set out above and, in particular, the right to respect for privacy contained in Article 8 of the Convention as incorporated into our law by the Human Rights Act 1998.
3.4
TAPPING, BUGGING AND THE RECORDING OF TELEPHONE CONVERSATIONS
Telephone tapping The Interception of Communications Act 1958 makes private telephone tapping an offence. We add the qualification ‘private’ because the Act perpetuates the system for the interception of telephone calls under authorisation by the Home Secretary. Warrants ought to be confined to cases involving national security, serious crime or the economic well-being of the United Kingdom, but the scope for investigating the propriety of an official tap or intercept is extremely limited. The Interception of Communications Tribunal can investigate whether there was a warrant and, if so, whether it was properly issued. However, the complainant will not be told the Government’s story or have a proper chance to test it. Where it is found that a warrant has been improperly issued, the Tribunal has power to order compensation and the destruction of the recorded material. If the
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interception took place without a warrant the only sanction is a criminal prosecution (to which the Director of Public Prosecutions must consent). There is no offence under the 1985 Act if the interception has the consent of either party to the telephone call. The 1985 Act does not apply to calls made from cordless telephones – it is therefore not unlawful to intercept such calls without a warrant. Application forms for the Tribunal can be obtained from: Interception of Communications Tribunal PO Box 44 London SE1 0TX
The Interception of Communications Act 1985 does not cover tapping of nonpublic telephone networks, such as workplace or hotel telephone systems. The European Court of Human Rights has already found that the tapping of workplace systems can infringe Article 8 where the person has an expectation of privacy. In response to this finding, the Government has acknowledged that it will be required to introduce legislation covering this form of tapping both in the light of the European Court’s judgment and the European Telecommunications Data Protection Directive due to be implemented by October 2000. The Home Office has issued a Circular to cover this area in the interim period before legislation is passed: see Home Office 15/1999: Interception of Non-Public Telecommunications Networks. At the time of writing, the legislation intended to deal with this form of surveillance was set out in the Regulation of Investigatory Powers Bill and the position should be checked in the light of the eventual progress of that Bill (see further below). Bugging No offence is committed under the 1985 Act if a third party does not interfere with the telephone line itself, but instead listens in by placing a bug on or near the telephone. The person who places the device may commit some other offence (such as criminal damage) or a civil wrong (such as trespass to land) in installing the bug but it is difficult to trace such people, especially if they are officers of the State and/or act undercover (see below). Bugging by the police has for many years been subject only to Home Office guidelines published in 1984 (‘Guidelines on the Use of Equipment in Police Surveillance Operations’). However, the Police Act 1997 puts police bugging on a statutory footing for the first time. This means that the use of bugs by the police in relation to homes, offices and hotel bedrooms will have to have prior authorisation by a Commissioner (a serving or retired High Court Judge) unless the need for surveillance is ‘urgent’, in which case a Commissioner must be informed as soon as practicable. The police still do not need prior authority from a judge if the surveillance can be carried out without the need to go onto, or interfere with, private property. The use of intrusive surveillance is subject to a Code of Practice issued under section 101(3) of the Police Act 1997 and is available from the Home Office website: <www.homeoffice.gov.uk/oicd/iscop.htm>. Whilst most of these procedures are normally to satisfy the minimum requirements for surveillance to be in accordance with law, as required under Article 8 of the Convention, it remains to be seen whether the application of the procedures to particular cases will always be justified. If the police carry out surveillance without
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prior authorisation on the grounds that it was urgent or because they have obtained the consent of a landowner but not the occupant (that is, a hotel owner but not the room owner), then it is possible that this will be an unacceptable interference for the purposes of Article 8. Recording It is not an offence for one party to a telephone call to make a recording of it, even if the other party is unaware of what is being done. Indeed, this can often be a useful way of proving that someone has been making malicious or nuisance calls. However, the combination of an evolving doctrine of breach of confidence and the possibility of a separate tort of privacy developed by the courts in the light of the incorporation of Article 8, may well mean that a person can be stopped from revealing what was said and recorded in such a situation if it was apparent that the conversation was confidential and there is no public interest in such disclosure or the invasion of the person’s privacy is otherwise unjustified. This is another example of an area where the incorporation of Article 8 could have a very significant effect. The Security Service and GCHQ The Security Service (MI5) was given legal recognition in 1989 by the Security Service Act 1989. Burglary and other interferences with property by the security service can only be authorised by the Home Secretary personally. The intrusion must be necessary to obtain information for one of MI5’s functions. These are broadly defined as the protection of national security and safeguarding the economic well-being of the United Kingdom against threats posed by persons outside the country. As with telephone tapping there is a complaints procedure (to a senior judge who is appointed to act as Security Service Commissioner in the case of intrusions into property, and another tribunal in the case of other MI5 activities). However, if the intrusion is skilfully done, the victim will be ignorant of it. The Commissioner’s and tribunal’s powers are limited, and again the process denies the complainant a proper opportunity to hear the case against him or her. Complaints about MI5 should be sent to: Security Service Tribunal PO Box 18 London SE1 0TZ
The Intelligence Services Act 1994 (as amended by the Security Service Act 1996) set up a similar complaints procedure for the Security Intelligence Service (MI6 – responsible for the foreign secret services) and the Government Communications Head Quarters (GCHQ – the Government’s listening centre). The Act also set up a parliamentary committee to supervise the work of all three security services. Unfortunately, this is unlikely to provide any significant level of accountability. Complaints about MI6 should be sent to: Intelligence Services Tribunal PO Box 4823 London SW1A 9XD
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INTERCEPTION OF POST
The official system for interception of post is as old as the Post Office itself. Private interception is an offence (under the Post Office Act 1953). The Interception of Communications Act 1985 provides a system for interception of post with the warrant of the Home Secretary, which is similar to the system for telephone tapping.
3.6
REGULATION OF INVESTIGATORY POWERS BILL
As indicated above, the Regulation of Investigatory Powers Bill was making its way through Parliament at the time of writing. This is an important piece of legislation, which is intended to provide a more comprehensive regulation of surveillance operations for all law enforcement agencies. It is also intended to remedy the loopholes and omissions in the Interception of Communications Act 1985, which was formulated at a time when pagers, mobile phones, e-mail, the Internet and encryption were not commonplace. Therefore, the passages set out above must be read in the light of the eventual progress of that bill. The bill as currently formulated will provide important statutory regulation of the interception of more modern forms of communication including non-public telephone networks, ‘mobile phones and e-mails’. However, the bill as currently formulated also grants very significant powers to law enforcement, security and intelligence agencies to obtain decryption keys for electronic communications. This part of the bill is highly controversial and represents a significant incursion into the right to respect for private life, home and correspondence. It remains to be seen in what form these powers are eventually granted.
3.7
OTHER TYPES OF BUGGING AND SURVEILLANCE
As indicated above, your private conversations may be listened to and recorded through use of a bug even if you are not using the telephone. Often the bug is installed in or attached to the outside of a building. Where such a bug has been installed or attached to property without the consent of the owner or occupier of the property, then that person may have a claim for trespass. There may also be other offences such as criminal damage committed. This will be of limited use if the person who planted the bug cannot be traced, but the apparatus can at least be disabled. If the surveillance (whether by the Government, the press or others) does not involve physical intrusion to property, there are even fewer restrictions. Snooping which employs radio transmitters is an offence under the Wireless Telegraphy Act 1949, which prohibits the use of unlicensed transmitters (or receivers). Other listening devices, such as long-range microphones and the use of long-range telephoto lenses, are not barred under the current state of the law, although there have been increasingly loud demands for their use as a means of intruding on personal privacy to be prohibited. Surveillance in public places (whether overhearing conversations or taking photographs) is often treated only as a public order issue. If no breach of the peace is threatened, there will usually be no offence. Closed circuit television (CCTV)
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systems have been set up in many towns and cities, usually by local authorities and often in partnership with the police. CCTV is still completely unregulated by statute, but is now commonplace. If you are concerned about an aspect of a local CCTV system you should take the matter up with the local authority or the police. Many organisations have agreed to bide by codes of practice relating to CCTV, but these codes are entirely voluntary. A particularly comprehensive code of practice has been drawn up by the Local Government Information Unit (1–5 Bath Street, London EC1V 9QQ). However, it is significant that CCTV recordings will now amount to data for the purposes of the Data Protection Act 1998 and the processing and use of such recordings will be subject to the data protection principles considered elsewhere. In respect of all these types of potential interferences with your private life by the State or state agencies (classified as public authorities), there will a requirement that they must satisfy the requirements of Article 8 and, in particular, requirements that they be in accordance with law, for a legitimate objective and proportionate, in order for them to be lawful. In respect of interference with your private life by private individuals of the types mentioned above, the developing doctrine of breach of confidence and/or a possible new tort of privacy (which may emerge as a result of the incorporation of Article 8) could well provide further protection. The doctrine of breach of confidence may be available to stop distribution of recordings of conversations or events in a public place if it was apparent that the conversation was confidential. The publication of photographs of private acts, obtained, for example, by a telephoto lens, may be restrained if the breach of confidence doctrine is developed further or a new freestanding tort of privacy is developed. Even filming of a person or a company’s operations in a public place where the public has free access may amount to an interference with privacy, which could be restrained under the law once Article 8 is incorporated. This is an area where the law will almost certainly be open to considerable change in the light of the incorporation of the rights under Article 8. If you think you have been the subject of intrusive surveillance of any type, then you should take further advice in the light of the latest developments.
3.8
HARASSMENT, UNWANTED LETTERS AND TELEPHONE CALLS
It is a criminal offence to telephone grossly offensive messages or make indecent or obscene or menacing telephone calls or calls which cause annoyance, inconvenience or needless anxiety (Telecommunications Act 1984). The criminal courts may in certain circumstances treat such harassment as ‘grievous bodily harm’ if psychological damage results. If the perpetrator is known and is persistent in making calls the courts are increasingly willing to grant injunctions to prevent this type of harassment. It was previously hoped that the courts would be willing to develop the law of ‘nuisance’ (the legal category into which many of these claims fall) so as to grant rights of protection to people in respect of property which they do not own. This would have enabled the law to move towards openly protecting domestic privacy. However, this advance was halted by a recent decision of the House of Lords. The incorporation of Article 8 of the Convention by the Human Rights Act since that
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judgment may lead to a reappraisal of the position and it is quite possible that your rights as against other individuals in society will include a right of protection based on privacy which is not based on ownership of property. This may occur through the development of existing causes of action in nuisance or through the creation of a new tort of privacy. In addition to the prospect of common law protection based on the Human Rights Act, the Protection from Harassment Act 1997 introduces a new criminal offence of pursuing a course of conduct, which amounts to harassment of a person. This Act also creates a new civil statutory tort of harassment, which enables a person to obtain a civil court injunction to stop harassment occurring and to claim damages where appropriate. This is a very important piece of legislation which can potentially provide protection in neighbourhood disputes, cases of racial harassment, bullying at work, confrontation with the media or stalking, as well as hate mail and persistent unwanted telephone calls (see below). Harassment is not defined in the Act and so it will be a matter for assessment based on each case. However, there must be a course of conduct in order to bring a claim. This means that there must be at least two incidents representing harassment (that is, more than one telephone call) and the person who is carrying out the harassment must know or ought to know that it would amount to harassment. Hate mail is usually anonymous, but if it can be traced the sender can also be prosecuted under the Malicious Communications Act 1988. This makes it an offence to send a letter or other article which conveys an indecent or grossly offensive message or a threat or which contains information known to be false and the purpose of the letter is to cause distress or anxiety. Inertia selling used to be common before the Unsolicited Goods and Services Act 1971. The technique was to send goods to customers who were then charged for them if they did not go to the trouble to return them. The 1971 Act allows recipients of unsolicited goods to keep them as free gifts after six months (30 days if the recipient writes to the sender asking for them to be collected). The 1971 Act also makes it an offence to send obscene or indecent books, magazines, leaflets or advertising material describing or illustrating human sexual techniques (see Chapter 2 for more on obscenity). Relatively new forms of harassment of a similar type include faxing and e-mailing. Both types of persistent harassment can be distressing. If you are subject to this form of harassment, you should consider reporting the matter to the police for the purposes of a criminal prosecution as well as considering bringing your own action under the Protection from Harassment Act 1997. In the case of e-mails, you can also contact your Internet Service Provider (ISP) and request them to assist in tracing the source of unwanted e-mails. In the case of faxes, you should contact your telephone service provider for a similar purpose.
3.9
INTRUSION OR HARASSMENT BY NEIGHBOURS AND OTHERS
In many respects the law of protection of harassment from neighbours and others in respect of property you own or occupy is based on the principle that every person’s home is their castle. The right to keep others out of your property is one of the defining characteristics of property ownership. Those who are fortunate enough to
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own or rent their home are entitled to injunctions to prevent intrusion and damages to compensate for trespass. Harassment of tenants by their landlords for the purpose of encouraging the tenants to leave can be particularly expensive for landlords. The tenants can claim the additional value which the house or flat has for the landlord with vacant possession (Housing Act 1988). Harassment of this kind can also be a criminal offence (Protection from Eviction Act 1977). Neighbours who do not physically intrude may none the less make life intolerable in a variety of ways. Their unreasonable use of their neighbouring land can be the tort of private nuisance. This might be anything from the growing of plants and shrubs that affect your property to the keeping of noisy animals. Again, such behaviour can be restrained by injunction or lead to a claim in damages. It could also be the subject of a claim under the Protection from Harassment Act 1997 as indicated above. People who come to your door to sell goods, ask you to give to a charity, persuade you to support a particular religion or political party or ask questions for a market research survey have no right to enter your home. You can refuse to talk to them and they must leave when you ask them to. Harassment which occurs outside the confines of your own home or in places which you yourself do not own can now form the basis of a claim under the Protection from Harassment Act 1997, provided the harassment concerned amounts to a course of conduct. There are many possible instances of such harassment, such as confrontation by a person in a public place or following someone persistently. In such cases, you may wish to consider reporting the matter to the police for the purposes of bringing criminal proceedings as well as considering bringing your own civil action in order to obtain an injunction to prevent that person from continuing with their behaviour. Where harassment occurs through offensive behaviour at work, the same remedies under the Protection from Harassment Act 1997 are potentially available. If you find yourself subject to this form of harassment, you should normally follow any procedures of reporting suggested by your employer – that is, reporting to an appropriate senior manager or union representative. You may also have a claim against your employer in the Employment Tribunal. You should take legal advice in these circumstances.
3.10
POWER OF OFFICIALS TO ENTER YOUR HOME
A house on fire, or infested with rats, or with a gas leak, or where building works have been carried out in a dangerous manner, is something which concerns the whole community. To cope with problems such as these, many officials are given the right to enter your home whether you like it or not. There are, in facts, tens of thousands of officials in the United Kingdom who have the power, in certain circumstances, to enter private premises, but most of them only have the power to enter business premises and are not dealt with here. This section describes the most important powers of entry which may involve officials entering your home. (The powers of the police to enter and search private premises are dealt with in Chapter 6.)
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Each type of official is subject to different rules of procedure because each is governed by a different Act of Parliament and there is no general code which covers their conduct. Quite commonly, however, the procedure is that the official must produce evidence of identity and authority before entering and may not insist on entering without first giving you at least 24 hours’ notice. If, after such notice, you refuse to let him or her in, the Magistrates’ Court may give authority to enter without your consent, by force if necessary. In general, if someone asks to come into your home, claiming to be an official, you should: •
Ask to see the caller’s identity card.
•
Ask the caller what authority he or she has to enter your home.
•
If in doubt, refuse entry and contact the office from which the official claims to come in order to check his or her credentials.
If you have a complaint to make about the way an official behaves, you should approach the appropriate authority. For example, in the case of a local authority official, you should complain to your local councillor; in the case of a gas or electricity official, the gas or electricity company; in the case of a VAT inspector, the collector in charge of VAT at the local office; or, in the case of a tax inspector, the Commissioners for the Inland Revenue. There may also be the possibility of a complaint to an official regulator or an Ombudsman (see Chapter 5 on the right of redress). It is also important to remember that all public authorities seeking to exercise powers of entry under various Acts will still be required to act compatibly with Article 8 rights as incorporated by the Human Rights Act 1998. This means that whenever a decision is made which will represent an intrusion of your privacy (that is, a decision to enter into your home without your consent), then the public authority must do so in accordance with the law, for one of the legitimate objectives and the nature of the entry must be proportionate to the need for such entry. It may well be possible to challenge a decision to enter your home if the public authority concerned does not observe these principles. Fire brigade A member of a local authority fire brigade who is on duty (or a police officer) may enter any premises where a fire has broken out, or where there is reason to believe a fire has broken out. Other premises, such as neighbouring houses, may also be entered if this is necessary for fire-fighting purposes. The fire officer can force entry, if necessary. The permission of the owner or occupier does not have to be obtained. It is an offence to obstruct or interfere with any member of a fire brigade who is involved in fighting a fire; the maximum penalty is a fine of level 3 (currently £1,000) (Fire Services Act 1947). Gas and electricity boards An official of a gas or electricity company may enter your home if: • •
You agree to let the official enter. A magistrate has given the official a warrant authorising the official to enter.
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•
There is an emergency and the official has reason to believe that there is danger to life or property.
A gas or electricity board official is entitled to ask to enter your home, or to apply to a magistrate for a warrant, in order to: • •
Inspect the meter or any other fittings. Disconnect the supply in certain circumstances.
In order to obtain a warrant, the official must show that: • • •
You have been given at least 24 hours’ notice; and He or she has asked to be admitted and you have refused; or The premises are unoccupied.
Entry must be at a ‘reasonable’ time and the official must leave the house as secure against trespassers as it was when he or she arrived, and make good any damage caused. It is a criminal offence to obstruct a person who has a warrant or who asks to be admitted in an emergency; the maximum penalty is a fine of level 3 (currently £1,000). It is not an offence to refuse to let the official enter if there is no emergency and the official does not have a warrant (Rights of Entry (Gas and Electricity Boards) Act 1954; Electricity Act 1989 and Gas Act 1995). Water companies An authorised official of a water company may enter any premises at a ‘reasonable’ hour in order to: • • •
Inspect water meters. Ascertain whether there has been any contravention of the law relating to water supplies. Detect waste or misuse of water.
In the first two cases (but not the last), 24 hours’ notice must be given. Entry can be obtained in an emergency or under a warrant. Housing An official authorised by the local authority may enter any house in the area at any ‘reasonable’ time in order to: •
Make a valuation or survey, where a compulsory purchase order is being considered or has been issued.
•
Examine the premises and make a survey where a notice requiring repairs, a demolition order, a closing order or a clearance order has been issued.
•
Measure the rooms, for example, to determine whether there is or has been overcrowding.
•
Ascertain whether there is or has been a contravention of the Housing Act regulations.
The official must have a written document of authority and must give at least 24 hours’ notice. It is an offence to obstruct the official, providing the official is
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authorised and has given notice; the maximum penalty is a fine of level 2 – currently £500 (Housing Act 1985). Planning An authorised local authority official may enter premises at any ‘reasonable’ time for various planning purposes, including: • • • • •
Preparing or approving development plans. Dealing with applications for planning permission. Making a valuation in connection with compensation. Making a survey in connection with a compulsory purchase order. Investigating whether development has occurred without planning permission.
The official must give 24 hours’ notice. The local authority must also pay compensation for any damage caused. It is an offence to obstruct the official, provided that proper notice has been given, the maximum penalty is a fine of level 2 – currently £500 (Town and Country Planning Act 1990). Rating A local assessor may enter any property in the area in order to carry out a survey or make a valuation for the purposes of drawing up rating valuation lists. The official must give three days’ notice. It is an offence to obstruct the official provided that proper notice has been given; the maximum penalty is a fine of level 2 – currently £500 (Local Government Finance Act 1992). Social security An inspector may enter business premises at any ‘reasonable’ time in order to interview employers, employees and self-employed people about their contributions record. It is an offence not to produce National Insurance Certificates or other relevant documents. It is also an offence to refuse to answer the inspector’s questions, except that you are not obliged to give information which will incriminate yourself or your spouse – this does not include a common law husband or wife (Social Security Administration Act 1992). The maximum penalty for either offence is a fine of level 3 (currently £1,000) and a fine of £40 for each day that the offence continues. An investigator (such as an official trying to find out if a person is cohabiting) does not have a right to enter your home. If the official forces entry, or refuses to leave after you ask him or her to do so, he or she is committing a trespass and you may be able to take legal action. Tax A tax inspector can obtain a warrant from a circuit judge if he or she reasonably suspects that an offence involving serious fraud in relation to tax has been committed. The warrant authorises the inspector to enter and search private premises and remove documents. Any application for a warrant must be made with the approval of a Commissioner for the Inland Revenue (Taxes Management Act 1970).
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VAT A VAT official may enter any premises at a ‘reasonable’ time for any purposes connected with administering value added tax. The official may enter without a warrant, and may also inspect goods which are liable to tax. If the official has reasonable grounds for suspecting you of an offence related to VAT, he or she may apply to a magistrate for a warrant authorising him or her to: •
Enter, by force if necessary, at any ‘reasonable’ time within 14 days of the warrant being issued.
•
Seize any documents relating to the investigation.
•
Search any people on the premises (a woman can only be searched by another woman).
Obstructing a VAT official could amount to an assault for which you could be prosecuted (Value Added Tax Act 1984). Mental health An approved social worker may at all ‘reasonable’ times, after producing identity if requested, enter and inspect any premises in which a mentally disordered person is living if there is reasonable cause to believe that he or she is not being properly cared for. Magistrates have the power to issue a warrant authorising a police officer to enter premises (by force, if necessary) if they have reasonable cause to suppose that a mentally disordered person is being ill-treated there, or is unable to look after himor herself. The police officer must be accompanied by a social worker and a doctor (Mental Health Act 1983). Infectious diseases and illness In the case of ‘notifiable diseases’ (for example, plague and cholera) a magistrate may make an order for the compulsory medical examination of suspected sufferers and carriers and for the removal to and detention in hospital of anyone suffering from such a disease where it appears that proper precautions are not being taken to prevent the spread of the disease (Public Health (Control of Diseases) Act 1984). AIDS is dealt with similarly to notifiable diseases, but slightly less stringently; there is no provision for compulsory examination provided the suspected sufferer or carrier is already receiving treatment from a doctor (Public Health (Infectious Diseases) Regulations 1985). On a certificate from the appointed local authority officer, the local authority may serve notice on an occupier to disinfect or destroy articles likely to retain infection within a fixed period, if doing so would tend to prevent the spread of any infectious disease. The occupier has 24 hours to inform the local authority that he or she will comply, failing which the local authority has the right to enter and to do the necessary work. The occupier can be forced to reimburse the local authority and the provision for compensation for articles destroyed is not very satisfactory. Where an infectious disease occurs in a house, the local authority may also, at their own cost, remove persons from the premises, acting with a magistrates’ warrant if there is no consent. This is not limited to the notifiable diseases mentioned above.
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Magistrates also have the power to issue a warrant authorising an officer of a local authority to enter premises to remove to hospital persons who are so chronically ill or old as to be unable to look after themselves, and who are not being properly looked after by others. Seven days’ notice to the person of such an application must be given (National Assistance Act 1948). Pests and vermin The occupier of land is under an obligation to notify the local authority if rats or mice in substantial numbers live on or resort to the land. The local authority may serve notice on the owner or occupier (or both) of land (including buildings), requiring them to take specified steps within a specified time to keep the land free of mice or rats. Where premises are so filthy or unwholesome as to be prejudicial to health, or are verminous, the local authority may require corrective measures, including, for example, disinfection or the removal of wallpaper. If necessary, the notice may require the occupiers of infested premises (and neighbouring premises which might be affected) to vacate the premises while gas is employed to destroy vermin. In such a case, the local authority must provide temporary alternative accommodation at its own expense. It is an offence to disobey the notice (maximum penalty level 1 (£200), or level 3 (£1,000) in the case of a mice or rats notice). In the event of disobedience, the local authority also has the power to enter the land to do the work itself (Public Health Act 1936, Prevention of Damage by Pests Act 1949). Foster homes A local authority can authorise someone (for example, a social worker) to inspect any home where a child is being fostered. The inspector must produce an official document, showing that he or she has the right to enter. It is an offence to refuse to allow the inspector to enter; the maximum penalty is a fine of level 3 – currently £1,000 (Children Act 1989). Search Orders The courts have power to issue a form of civil search warrant called a ‘Search Order’. This type of order was previously developed by the courts and known as an ‘Anton Piller’ order (based on the title of a case of the same name). Authority to grant a Search Order is now contained in statute – see section 7 of the Civil Procedure Act 1997. A Search Order is a form of injunction which requires a party to permit entry for certain persons to property in order to conduct a search for and, if necessary, to seize evidence. Such orders are often made in cases involving ‘pirate’ goods, such as unauthorised video copies of popular films. There are usually applied for and obtained from the court without notice to the person who is intended to be the subject of the Order in order to ensure that there is no prospect of evidence being removed or destroyed before the search can take place. However, a Search Order can be issued in any case where the court is persuaded that the defendant is the sort of person who might destroy relevant evidence in his or her possession if the order is not made. Strictly speaking, a Search Order is not a search warrant because it does not directly empower the holder to enter or search premises. Instead, it requires the
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person in charge of the premises to let the holder in. Since it is a contempt of court to refuse to let the holder in, the Order has much the same effect as a search warrant. A Search Order must be served by a ‘supervising solicitor’, but it will usually allow him or her to be accompanied by others. The supervising solicitor may only be accompanied by those persons specified in the Search Order. The supervising solicitor should be experienced in the area, and should not be a member or employee of the firm acting for the person who obtains the Search Order. If you are served with a Search Order, ask the supervising solicitor for an explanation of what is going on: he or she has a duty to offer to explain the effect of the Order to you fairly and in everyday language. Take a good look at the terms and conditions attached to the Order, many of which explain your rights in the situation. For example, you will normally be entitled to refuse entry before 9.30 a.m. or after 5.30 p.m. or at all on Saturday and Sunday, unless the Search Order expressly states otherwise. The supervising solicitor must give you an opportunity to take legal advice. In view of the seriousness of the matter, it would be sensible to do so. It is likely to be a very rare case in which your lawyer would advise you not to comply with the order, but you are entitled to apply to the court to ask for it to be varied or set aside, provided you do so immediately. You will, however, be required to allow the supervising solicitor to enter your premises and remain there while you make such an application. Nearly all Search Orders will contain a provision forbidding you to tip off others (apart from your lawyer) about their existence. Often the person who has obtained the Search Order will have put in place means of telling whether others have been tipped off; he or she may have persons watching for such activity and, if you were caught arranging for others to dispose of inconvenient evidence, you would risk prison for contempt of court. If you are an unaccompanied female and the supervising solicitor is male, then at least one other person named in the Search Order must be female and accompany the supervising solicitor on his search. Only materials covered by the terms of the Search Order may be removed from your property. If, however, such materials include items that exist only in computerreadable form (that is, a client database), then you will be required to give access to the computers with all necessary passwords to enable them to be searched. The search may only be conducted in your presence or with someone who is your responsible employee. The supervising solicitor is under a strict duty to behave responsibly. In one case where it was held that the solicitor acted oppressively, he was ordered to pay substantial compensation. Bailiffs Bailiffs are officers of the court, although they may be employed by private companies, and their job is to seize property. Courts can make a variety of orders which are enforced by bailiffs. Their rights to enter your home are complex and will depend on the order made by the court. In virtually all cases they are entitled to enter your home but only in a few cases, such as eviction orders, are they entitled to break down external doors or force their way in. They can, however, climb through unlocked windows and break down internal doors and may put pressure on you to invite them in. If they are employed by the court following a judgment debt, they can seize any goods or possessions belonging to the debtor, but cannot seize anything needed
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personally for his or her job (for instance, tools, books and vehicles) or used for basic needs (clothing, bedding, furniture, household equipment and food). Thus they can take stereo equipment, televisions, video recorders, and so on. Bailiffs cannot seize property belonging to people other than the debtor. The goods are then usually impounded for a short period (five days) before being sold by auction. Often the goods are left on the premises until sold. This is known as taking ‘walking possession’. If ‘walking possession’ has been taken, then they may subsequently break locks to gain access to a house to take full possession of the goods.
3.11
SEARCHES BY CUSTOMS AND EXCISE OFFICIALS
Approximately 40,000 travellers each year are stopped and bodily searched at customs points throughout the country under powers conferred by the Customs and Excise Management Act 1979. The nature of the search may take a number of forms, from a ‘pocket search’ to a full strip or intimate body search. Most people find such searches distressing and humiliating, and frequently ask the question ‘Why me?’ When you may be searched A customs officer may ask to search you or anything you have with you if he or she reasonably suspects that you are carrying: • •
Any item which is liable to excise duty or tax which has not been paid; for example, perfume, alcohol, cigarettes, in excess of the duty-free allowance. Any item which is prohibited or restricted from being imported or exported; for example, illegal drugs.
A request to search you does not mean that you are under arrest; it means that you are to be detained whilst a search is carried out. If you are placed under arrest, you must be told. Length of detention How long you may be detained for will depend on the circumstances, but in all circumstances the length of detention must be reasonable and not exceed the time taken for the actual search, which is usually completed in under ten minutes. If you decide to leave before being searched, the customs officer may let you go or you may be arrested (see below). You may also (exceptionally) be charged with the offence of obstructing or impeding a customs officer. What amounts to reasonable suspicion? A customs officer does not have to be certain that you are carrying an unlawful item in order to justify a search. But there must be some concrete basis for the officer’s suspicion which relates to you. The mere fact that you have arrived from a particular destination, that you are dressed in a certain way or that you are carrying particular items such as condoms, cigarette papers or petroleum jelly, which could be associated with drug use or drug trafficking, is not in itself sufficient justification. However, a combination of these or other facts, such as suspicious behaviour, an unusual quantity of luggage, unexplained journeys abroad, and so on, may give rise to enough reasonable suspicion to justify your being searched.
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What you must be told The customs officer must tell you what you are suspected of: for example, ‘I have reasonable grounds to suspect that you are carrying illegal drugs.’ Although you should ask why you are suspected of a particular offence, the customs officer does not, in fact, have to tell you. If you are asked to submit to a ‘rub-down’ search (see below), you must be told that you have the right to go before a senior customs officer if you do not agree with the search. In the case of a strip or intimate search (see below), you must be told that you have the right to be taken before either a senior customs officer or a magistrate who will then decide whether or not the search should take place. Going before a senior customs officer or magistrate If you decide to exercise your right to go before a senior customs officer or a magistrate, you are entitled to be present to hear the reasons why you should submit to a body search and have the opportunity to say why you disagree. If you wish someone to speak on your behalf, you should say so. If you decide that you wish to go before a magistrate there may be some delay, but arrangements should be made to ensure that a magistrate is available at all times. It would not be reasonable to expect you to wait more than a couple of hours. If you are told or if it appears that the delay will be any longer than this, you should ask to see the most senior officer in attendance at the airport or port so that you may make an official complaint. If you decide to leave because of the unreasonable delay, you should ensure that the customs officer knows that this is the reason. As mentioned above, you do run the risk of being arrested if you decide to leave prior to the search taking place. After hearing the evidence from both the customs officer requesting the search and yourself, the senior officer or magistrate (depending on whom you request to be taken before) will then direct whether or not the search is to take place and the form that the search may take. What form may the search take? The nature and extent of the search depends on what you are suspected of carrying and where. It may take any of the following forms: • • • • •
A ‘pocket search’ (removal of all items from pockets). A ‘rub-down’ (the body is frisked). A search of outer clothing (removal of outer coat, jacket, hat or gloves). A strip search (see below). An intimate search (see below).
Customs officers are instructed to ensure that any person searched is treated courteously and considerately. All ‘rub-down’ and strip searches can be carried out only by a person of the same sex as the person being searched. (For those who may carry out an intimate search see below.) Strip search A strip search is essentially a visual search of your body. You will be accompanied by two customs officers of the same sex as yourself to a private room and asked to
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remove your clothing. Customs officers are under a duty to make every reasonable effort to reduce to the minimum the embarrassment that you may experience. For example: •
You need not be completely naked at any time. It will usually be possible for the top and bottom halves of the body to be unclothed and reclothed separately. If this is not suggested to you, you should ask that you be allowed to undress in this way.
•
If you are required to be naked, a blanket or other suitable covering should be provided. Again, if this is not offered to you, you should request it.
An intimate search An intimate search consists of the physical examination of one or more of your body orifices (mouth, nose, ears, anus and genitalia) and may be done only if an officer of at least the rank of senior executive officer authorises it. The reason why it is thought necessary must be explained to you. The examination may be carried out only by a doctor or nurse. No person of the opposite sex to yourself who is not a doctor or nurse should be present, nor should anyone whose presence is unnecessary. An intimate search of a juvenile (that is, under the age of 17) or of a person who is mentally ill or mentally handicapped may only take place in the presence of an appropriate adult (for example, a relative or social worker) who is of the same sex as the person being searched – unless the juvenile requests otherwise and the adult agrees. If you do not consent to an intimate search, it is most unlikely that the doctor or nurse will agree to carry it out. However, you must remember that you run the risk of being arrested if you do not consent, particularly if the search has been authorised by a magistrate. If you are arrested A customs officer may arrest you if he or she has reasonable grounds to suspect that you are committing, or have committed, an offence as described above. You must be informed of why you are being arrested. The customs officer has the same powers to search you as described above if you are not under arrest and you have the same rights to be taken before a senior officer or a magistrate (see above). In addition, if you are under arrest, customs officers have the power to request that you submit to an intimate search if they believe you have an article on you that may cause a physical injury to yourself or others whilst in detention. A customs officer of the same sex as you may carry out this search, but only where a senior officer has authorised that it is not practicable for a doctor or nurse to do so. If you are under arrest, you may be detained for longer: up to 24 hours, or if it is alleged that you have committed a ‘serious arrestable offence’, up to 36 hours and to a maximum of 96 hours if a magistrate authorises further detention. During detention you have the right: • •
To inform someone of your arrest. To consult a solicitor in private.
However, exercising these rights may be delayed by 36 hours if you have been arrested for a ‘serious arrestable offence’. You are entitled to a copy of your custody
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record (see Chapter 6). An intimate body sample such as urine or blood can only be taken with your consent in writing. If you wish to make a complaint If you feel that you have been unreasonably subjected to a body search or have any objections to the way in which it was carried out, you may complain in writing to the Collector (the person in overall charge of the airport or port) at the address of the airport or port at which the search took place. You may also take up the matter with your MP and request that your complaint be referred to the Paymaster General at the Treasury (the minister responsible for Customs and Excise).
3.12
SEXUAL IDENTITY AND SEXUALITY
As indicated above, the incorporation of Article 8 into domestic law brings with it the requirement upon the State to respect aspects of private life including sexual identity and sexuality and corresponding rights to develop relationships with who one chooses. Where the Government or any other public authority takes action which requires you to disclose your historical birth gender it will be necessary for it to justify the interference with your private life by reference to the tests in Article 8. To date, the European Court of Human Rights has permitted the United Kingdom to refuse to allow transsexuals to alter the gender registered on their birth certificate. However, the Court has held that similar refusals in relation to identity documentation (such as identity cards and passports) are unlikely to be unlawful. It has also clearly indicated that the position in relation to transsexuals will need to be reexamined in the light of material changes in values or in the light of further scientific knowledge and understanding of transsexuality. Where a public authority seeks to discriminate against homosexuals, be it a ban on entering into forms of employment such as the armed forces, or something akin to differential treatment (such as a different age of consent), then it will almost certainly be acting contrary to Article 8 as recent decisions of the European Court of Human Rights have shown.
3.13
PRIVACY AND THE MEDIA
One of the most significant areas where the rights under Article 8 are likely to have particular effect is in relation to the media. The laws about breach of confidence, trespass, nuisance, surveillance, harassment, and so on, looked at above, apply equally to the media and you may be able to bring actions against the media where they have infringed those laws. Libel may restrict some intrusions on private life, but only if the words are defamatory (see p. 33), and in reality it only helps the wealthy because Legal Aid is not available for libel actions. In practice, it has often been very difficult to control the worst excesses of the media and flagrant breaches of the rights of privacy of individuals have been allowed to go on without redress. This does not simply apply to celebrities or royalty. In many cases, the media have significantly intruded upon the rights of unknown individuals who have become famous or, more usually, infamous as a result.
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In the absence of any right to privacy as such, lawyers have had to resort to strange suits to try to prevent invasions of privacy. In this respect, actions for ‘malicious falsehood’ are on the rise. There is no ban on Legal Aid to actions of this type. Malicious falsehood was notoriously used as a cause of action against a newspaper which photographed and interviewed a famous actor who was recovering in hospital from brain surgery at a time when he was not in a fit state to consent to such an interview. The court dealing with the claim recognised that the remarks which the patient had made were wrongly portrayed as part of a voluntary and exclusive interview. However, the newspaper got round this problem by publishing a statement that the interview was not voluntary or exclusive. This did not enable the real mischief, the invasion of the actor’s privacy at a time when he was most vulnerable and sensitive, to be dealt with and the courts have been criticised for failing to develop the law so as to protect people in positions such as this. The ingredients for an action in malicious falsehood are also difficult to establish: the victim must show that the words are false, that they were published maliciously (that is, for some improper purpose) and that they have either caused financial loss or, in some cases, were likely to cause such loss. Copyright can also be used as a way of preventing publication of private papers or pictures, but working out who owns copyright (and who is therefore the right person to bring an action) can be a complicated matter. Additional protection is given to a person who commissions photographs for private or domestic purposes. Even if copyright is owned by the photographer, that person can prevent their publication. It is these inadequacies in the existing common law in relation to the media that the incorporation of Article 8 will hopefully address. The courts will be under an obligation to act compatibly themselves with Article 8. Although there is no requirement on private individuals or companies (such as journalist and newspapers) to act compatibly with Article 8, the courts may be increasingly willing to develop the common law so as to provide proper protection for privacy. Whether they do this through creation of a new right to privacy or through the existing causes of action developed and enlarged remains to be seen. There may also be some indirect assistance through the current regulators of the media. Where makers of television and radio programmes intrude on a person’s privacy, a complaint can be made to the Broadcasting Standards Commission, a body set up under the Broadcasting Act 1996. This body took over the powers of the Broadcasting Complaints Commission and the Broadcasting Standards Council. The Commission can also consider complaints of unjust or unfair treatment which may overlap with intrusions of privacy but goes far wider. The complaint must relate to a programme that has been broadcast, but the Commission can insist on reviewing material that was filmed or recorded but not used. The Commission has no power to ban a programme in advance and cannot award compensation. However, it can insist that its findings are published and/or broadcast. See Chapter 5 for the address of the Commission. The Broadcasting Standards Commission is a statutory body and as such will itself be required to act compatibly with Article 8. This will mean that its determinations on individual complaints must be made in the light of the case law on protection of privacy which exists on Article 8 which has previously emerged from the European Court.
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There is no equivalent legislation for the press, but there is a Press Complaints Commission which has been set up by the industry itself. The PCC has drawn up a code of conduct which prohibits intrusions into an individual’s private life unless this is justified in the public interest. The PCC publishes its own findings. There is no obligation on a newspaper which is found to have breached the code to report the findings or to give it any particular prominence, although rival titles may be quick to report PCC criticism. (See Chapter 5 for the address of the PCC.) The PCC replaced the previous Press Council in 1991 after a report by the Calcutt Committee in 1990 condemned the inadequate protection for individual privacy. Three years later, Sir David Calcutt QC again reviewed the performance of the press and considered that it was still lamentable in its disrespect for privacy. He proposed a range of new measures, including a statutory tribunal with the power to order compensation and publication of its adjudications on privacy matters. He also recommended that there should be new criminal offences of trespass on private property or the use of surveillance devices for the purposes of obtaining personal information. Calcutt considered that there should be public interest defences, but only in tightly defined situations. His proposals caused concern not only in the press itself, but also amongst others who feared that the new rights would be used to spike stories of real public interest which did not fit neatly into the proposed defences. There was also concern that his suggestions might lead to new grounds for granting injunctions before trial and that the usual cautious approach of the courts to injunctions at that stage (where priority is given to preserving the status quo) would mean that even stories within his categories of public interest would not see the light of day. In a consultation paper in 1993 the Government suggested that there should be a statutory right to privacy which would allow individuals to sue for compensation in specific circumstances. In response, the newspaper industry in January 1994 appointed an ombudsman to deal with complaints. In 1995 the Government decided not to introduce a statutory system for the regulation of the press. The effects of Article 8 are likely to be far-reaching for the Press Complaints Commission. During the course of the passing of the Human Rights Act into law, it became clear that the Press Complaints Commission is likely to be treated as a public authority for the purposes of the Act. If this proves to be the case, the PCC will itself be bound to act compatibly with Article 8 and the other Articles which have been incorporated. This will mean effectively that a form of statutory legislation will have been created over the press. If the PCC fails to uphold a complaint and that failure is incompatible with the right to respect for private life contained in Article 8, then the PCC could be sued for this failure. In light of concerns of the media as to the effect of the Human Rights Act and the potential for injunctions to be sought by individuals seeking to protect rights of privacy or other such matters, the Human Rights Act contains express provisions dealing with claims for injunctions which concern freedom of expression. Freedom of expression is, of course, a right which is separately incorporated by the Human Rights Act through Article 10. In the context of the media, there will always be a tension on the one hand between protecting the right to freedom of expression and a free press with, on the other, respect for rights of privacy. Section 12 of the Human Rights Act deals expressly with this tension and makes it clear that any person seeking to restrain publication of material which might affect the exercise of freedom of expression will:
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1. Take all practical steps to notify the intended publisher or show that there are compelling reasons why that person should not be notified. 2. Need to satisfy the court that the underlying claim is likely to succeed at trial. 3. Need to deal with the Court’s obligation to have particular regard to the Convention right to freedom of expression. And 4. Where such material is journalistic, literary or artistic, will need to deal with the Court’s obligation to have particular regard to: (a) the extent to which the material is, or is about to become, available to the public and it would be in the interest of the public for it to be published; (b) any relevant privacy code. This provision is designed to ensure that freedom of expression is not stifled by welltimed injunctions sought by persons at a time when the publisher of the material will not be able to deal with the application properly. However, it does not prevent you from seeking to obtain an injunction in circumstances where there has been an unjustifiable breach of your privacy and you have a good case of succeeding in litigation against the person responsible.
3.14
FURTHER INFORMATION
Useful organisations Consult your telephone directory for local addresses and telephone numbers of the following organisations: • •
Law centres Citizens’ Advice Bureaux
Johan Wilhelmsson
4
The Right to Know
This chapter deals with: • • • • • • • • • •
Personal data Health records Social work records Education records Housing records Credit reference agency records Other data protection rights Government information Other rights Further information
This chapter describes your rights to see and correct personal information held about you. Many bodies, both public and private, hold files on the people they deal with. Important decisions about you may be taken on the basis of your file – often by people who have never met you or spoken to you. All they know about you is what the file says. If the information is incomplete, inaccurate or unfair, your rights may be at risk or you could be denied a benefit or service that you need. The best safeguard is a right to see the file for yourself, so you can challenge unjustified statements, correct factual inaccuracies and make your views known before – not after – decisions are taken. If you are involved in a civil case or are facing criminal charges you will receive all material that is relevant to your case during the proceedings.
4.1
PERSONAL DATA
Your main rights to see personal data about yourself, held on computer and on paper, come from the Data Protection Act 1998 (DPA). The DPA provides a right of access to personal information about you held by public authorities and private bodies, regardless of the form in which it is held. The 1998 DPA provides access to some records previously available under earlier legislation, which has now been repealed. This includes the right to see computerised records under the 1984 DPA, and the right to see paper-based medical, social work, housing and school records. These rights still apply, though, under the new Act. Additional rights to see other paper and other non-computerised records are being phased in. A limited right came into force in March 2000. The main right of access comes into force in October 2001.
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Structured files The DPA’s right of access to non-computerised records is limited to information held in ‘structured’ files. These are collections of files or papers organised in a way that makes it easy to find information about a particular individual. This includes files which are indexed or arranged by reference to the name of the person concerned, or to some other identifying feature such as their household, street name, postcode, car number plate, national insurance or other reference number. The DPA does not, in general, allow you to see personal information held on paper that is not organised in this way (described in this chapter as ‘unstructured’ information). So a set of files containing correspondence from many people arranged chronologically, and not by the name of the person sending the letter, would probably not be covered (unless it was separately indexed by name). Occasional references to you in other kinds of files or papers would usually not be covered either. In brief, the position is: 1. You can see information held about you by anyone on computers (or in other forms where data can be processed automatically). 2. You can see health, social work, housing and school records held on paper. This applies to all information, not just that in ‘structured’ files. 3. You can see information about you in structured files held in filing systems created after October 1998. This applies to a new set of files, not a new file added to an existing set. However, if the purposes of an existing filing system are changed after October 1998, information relating to the new purposes is also now accessible. 4. From 21 October 2001 you will be able to see information about you in all structured files held by any organisation, including government departments, local authorities, the police, employers and private companies. This right applies regardless of when the files or filing system was created. 5. Information held by central government, devolved institutions or NHS bodies can also be obtained under the ‘open government’ codes of practice. You can use one of these codes to apply for information not yet available under the DPA, including ‘unstructured’ information about yourself. 6. When the proposed Freedom of Information Act is fully in force, ‘unstructured’ information held by any public authority will become accessible under the DPA. No firm timetable for implementation was available at the time of writing. All these rights are subject to a variety of exemptions, which allow certain information to be withheld. These are described later. Applying under the DPA The person holding information (‘data’) about you is called the ‘data controller’. To apply, write to the data controller, saying that you are applying under section 7 of the Data Protection Act 1998 for access to any personal data about yourself. Sending your request by recorded delivery will help avoid any later dispute about whether it was received. If the data controller has different offices or branches and you are not sure which to write to, telephone first and ask. Alternatively, contact the
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Data Protection Commissioner’s office or look at the data controller’s Register entry, which can be found on the Internet at <www.dpr.gov.uk>. Organisations must register under the Act and provide an address for ‘subject access’ requests in their register entry. The register entry must also specify the purposes for which information is held. A data controller must not hold or use the information for purposes incompatible with those stated in the register entry. Before supplying information the data controller is entitled to ask you for proof of your identity and for any further details needed to locate data held about you. It may help if you say what your relationship to the organisation is (for example, customer, employee, student, patient), give any relevant dates or reference numbers and say which of its offices or branches you have dealt with – but don’t volunteer any information you regard as sensitive. You do not need to say why you want the information. The data controller cannot refuse access because you might use the data to criticise the controller, complain or take legal action. You may have to pay a fee. At the time of writing the maximum fee is £10, however, some organisations charge less or nothing. If information is held about you in both computer form and in structured paper files, a single £10 fee covers both. Different rules apply to health and educational records, where you could be charged up to £50 (including the cost of all photocopies) and credit reference agency records where the maximum fee is £2. These fees are explained in more detail later. The data controller must normally give access within 40 days of receiving your request and any supplementary details needed. It must supply the information in ‘permanent form’. This normally means a print-out or a photocopy, but could also include copies of microfiches, X-rays, or audio/video cassettes. Any unintelligible terms, such as computer codes, must be explained. The data controller can refuse to supply a permanent copy of the data if this is not possible or would involve ‘disproportionate effort’. You are still entitled to inspect the information. Parents and children The Act has no minimum age requirement for applicants. Children can apply for their own records provided they are capable of understanding the nature of the request. A parent or guardian can apply on the child’s behalf only if (a) the child has given consent, or (b) the child is too young to have the understanding to make an application. A parent concerned about a young child’s health probably would be able to see their medical record. But a parent wishing to defend him- or herself against allegations of child abuse, or looking for evidence to support a custody claim, probably would not. Inaccurate information The DPA gives you the right to have inaccurate data about yourself corrected. This applies if the data are incorrect or misleading about any matter of fact or contain an opinion based on data which are factually incorrect or misleading. In such cases you are entitled to require the data controller to correct, erase, destroy or block the use of the information. Opinions cannot be challenged unless they are based on wrong facts – but if you disagree with an opinion, it is worth asking for your own
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views about the disputed data to be added to the record. There is though no explicit right to have this done. The DPA’s right of correction comes into force with the right of access. So, for example, the right to correct errors in structured files applies from October 2001. You should send a written notice to the data controller asking for a correction, saying why you think the information is incorrect. If the data controller refuses to comply with your notice, you can complain to the Data Protection Commissioner or apply directly to the court. It will usually be to your advantage to go to the Commissioner first, since this costs nothing and does not prevent you going to the court later. Exemptions The data controller can withhold certain kinds of ‘exempt’ information from you. The main exemptions apply to: Personal information about someone else This will not normally be released to you without that person’s consent. However, the DPA does allow such information to be disclosed without consent if this is reasonable in all the circumstances. In deciding whether it is reasonable, the controller must consider in particular whether a duty of confidentiality is owed to the other person, what efforts have been made to obtain the person’s consent, and whether the person is capable of giving consent or has expressly refused it. If the information can be disclosed to you in a way that does not identify the individual – for example, by deleting the name or other identifying features – then you are entitled to it. Information that would identify someone who has supplied information about you It is not enough for the data controller to suspect that you might be able to identify the individual concerned. The information must itself be enough to identity the person. The information someone else supplies about you is not exempt – unless its disclosure would in itself identify who had supplied it. Only identifiable individuals, not organisations, are protected. Thus information that would reveal that a former employer had supplied information about you would not be exempt unless you would be able to identify the particular individual (for example, a particular manager). This exemption does not protect the identity of a health professional, social worker or teacher who has provided information that is recorded on your health, social work or educational record. Law enforcement Personal data held for the purpose of preventing or detecting crime, apprehending or prosecuting offenders, or assessing and collecting any tax or duty are exempt if disclosure would prejudice one of those purposes. The exemption is not restricted to bodies such as the police or Inland Revenue. So, information about suspected fraud held by a bank or a social security officer could also be covered. Not all law enforcement information is necessarily exempt. If you are the victim of a crime you should be able to see what is held about you without much risk of prejudicing the purpose for which the record is held. But if you are the suspect, the chance of the information being withheld will be much greater.
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Information revealing how anyone is classified under a system for assessing potential tax evasion or benefit fraud is exempt where the exemption is required in the interests of the operation of the system. National security Information can be withheld from you on national security grounds. You can challenge a refusal to disclose by going to the Commissioner in the normal way unless a Cabinet minister has issued a certificate stating that the exemption is required in order to safeguard national security. In this case, you could apply to the Data Protection Tribunal, which could overturn the certificate, but only on the very limited grounds that the minister had no ‘reasonable grounds’ for issuing it. References References are exempt in many, but not all, cases. You will have no right to obtain a confidential reference from the person or body that gave it. But you would be entitled to see a reference held by the person to whom it was supplied, except where this would identify the individual who gave it. The fact that it may identify the organisation that gave it is not relevant. Even information identifying the individual who gave the reference might have to be disclosed if it was reasonable to do so in the circumstances. This means that if you are turned down for a job, you could see any references received by the employer who turned you down, so long as they did not identify the individual who gave the reference. However, you would not be entitled to obtain a copy of a reference from the person or body which gave it, even if it could be disclosed without identifying the individual concerned. Information Information is exempt if it would reveal the data controller’s intentions in relation to any negotiations with you, if disclosure would prejudice those negotiations. General opinions and intentions towards you are however not exempt. Examination marks and examiners’ comments These are exempt – but only for a time. You are entitled to see these 40 days after the examination results have been announced or five months after your request has been received, whichever is shorter. Adoption records and reports These too are exempt. The DPA contains many other exemptions. For example, for data used purely to calculate pay or pensions, or for business accounting purposes or for managing an individual’s personal or family affairs; for data kept solely for statistical, historical or research purposes and published anonymously; for data processed for the publication of journalistic, literary or artistic material; to information that could harm the financial interests of the United Kingdom; and to lawyer–client communications. Will you know what has been withheld? One of the weaknesses of the DPA is that you need not be told whether exempt information has been withheld. You have no right to be told whether you have been
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given access to the full file or only an edited version. You may even get a deliberately ambiguous reply to your request, such as ‘We hold no data on you which we are required to disclose to you.’ This could mean that no information is held on you, or that there is a file, but everything in it is regarded as exempt. Nevertheless, it is worth asking if anything has been held back: it may be difficult for the person involved to evade a direct question. If you suspect you have been refused access to information which is not genuinely exempt you can ask the Data Protection Commissioner to investigate (see below under ‘Enforcing the Act’).
4.2
HEALTH RECORDS
You have additional rights of access to your own health records. Under the DPA you are entitled to see all information relating to your physical or mental health which has been recorded by or on behalf of a ‘health professional’ in connection with your care. This applies not just to computerised data and structured files but to ‘unstructured’ data as well. The right of access covers both NHS and private medical records, and information of any age, however long ago it was recorded. These rights existed before the 1998 DPA and are not dependent on the October 2001 commencement date. The health professionals whose records can be seen are doctors, dentists, opticians, pharmacists, nurses, midwives, health visitors, clinical psychologists, child psychotherapists, osteopaths, chiropractors, chiropodists, dieticians, occupational therapists, physiotherapists, radiographers, speech therapists, music and art therapists, orthoptists, prosthetists, medical laboratory technicians and scientists who head health service departments. Your access rights are more limited if: •
Information about your health is held by someone who does not fall within the Act’s definition of a ‘health professional’, such as records held by various kinds of psychotherapists or alternative practitioners.
•
Information is held by a health professional who is not and never has been responsible for your care, such as a DSS doctor responsible for deciding whether you are entitled to disability benefit.
In these cases, you are entitled to see computerised data and (from October 2001) structured files, but not unstructured information. However, you have additional rights to see medical reports supplied for insurance or employment purposes (see below). Charges If you just want to inspect your records, and not have copies, access must be given without charge, so long as any information has been added to your record in the last 40 days. This should allow free inspection by anyone who has recently been seen by a health professional. If you ask for copies, and your request is made before 24 October 2001, you can be charged up to a maximum of £50 for all copies supplied to you, including copies of non-paper records such as X-rays. You cannot be charged more than this,
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however many copies are involved. If your request applies solely to computerised information, a maximum fee of £10 may be charged. At the time of writing it is not clear what the position on fees will be after 24 October 2001. Other people You will not normally be able to see confidential information about another person, such as another member of your family, which has been recorded in your own record unless that person consents or it is reasonable in the circumstances to disclose this to you. The same applies to information identifying an individual who has supplied information about you, other than health professionals. A health professional does not need another health professional’s permission to show you information recorded by that person. So your GP cannot withhold a letter from a hospital consultant on the grounds that he or she needs the consultant’s permission for disclosure. However, if there is a possibility that you might be seriously harmed by the record, the health professional responsible for the relevant aspects of your treatment may have to be consulted (see below). Parents Parents normally require their child’s consent before they can see the child’s records. If the child is too young to give an informed consent, the parent may be given access except where the child gave information in the expectation that it would not be revealed to the parent or expressly asked for it not be disclosed. The same rule applies to a situation where the data subject is an adult incapable of managing his or her own affairs and the person seeking access is someone who has been appointed by a court to manage those affairs. Relatives of someone who has died There is no right to the deceased’s records. The only exception is if the death may have been caused by negligence. In this case, a provision in the Access to Health Records Act 1990 allows someone who might be entitled to compensation – usually a dependant – to get records relating to the cause of death. All other provisions of this Act have been repealed. Serious harm In addition to the other exemptions in the DPA, information likely to cause ‘serious harm’ to the physical or mental health or condition of the applicant or someone else is exempt. This decision can be taken only after consulting a health professional, normally the doctor treating the patient for the condition concerned. If the health professional’s opinion was given more than six months ago, a new opinion must be obtained. This provision might allow information to be withheld from, for example, someone with a mental illness whose condition could be seriously aggravated by seeing the record. It is not, however, a blanket exemption for psychiatric or any other class of patients. Studies have shown that most psychiatric patients benefit from seeing their medical records, provided they have been written in the knowledge that they might be seen and someone is available to help explain them.
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This exemption refers to ‘serious harm’ – not to ‘harm’ or ‘distress’. It should not permit doctors to withhold upsetting news from patients who want the truth, particularly if they could be helped to come to terms with it by support and counselling. Medical reports for employers or insurers If your doctor writes a report on your health for an insurance company or an employer, you have the right to see it before it is sent under the Access to Medical Reports Act 1988. Only reports by doctors who are or have been involved in your medical care are covered. A report by an independent doctor, who has never treated you and acts solely for the insurer or employer, is not subject to this Act, and will only be accessible under the DPA. An employer or insurer cannot contact your doctor unless they have your written consent and has informed you of your rights under the 1988 Act. You must be invited to say whether you want to see the report before it is sent. If you say yes, the doctor should wait 21 days before sending it, to allow you to arrange to see it. Get in touch with your doctor straight away and ask to be contacted as soon as the report is ready. No charge can be made if you inspect the report only; if you want a copy you can be charged a ‘reasonable fee’. If information has been withheld under an exemption (for example, for ‘serious harm’), you are entitled to be told. If you see the report and are unhappy with it – for example, if you feel it involves an unacceptable breach of your privacy or misrepresents the position – you have the right to stop it being sent. But if you do, the employer or insurer may not be willing to offer you the job or insurance policy, so do not take this step lightly. The doctor is required to keep a copy of the report for six months after sending it and to let you see it if you ask. This may be valuable if you are unexpectedly refused insurance or employment. If you believe that a doctor, employer or insurance company has breached the Act, you can apply to a court for an order requiring compliance. If a doctor has sent a report without your consent, this may be a breach of medical confidentiality. You may have grounds for a complaint to the General Medical Council.
4.3
SOCIAL WORK RECORDS
You are entitled under the DPA to see all information held about you by a local authority social services department, including ‘unstructured’ information. In addition to the normal DPA exemptions information can be withheld if disclosure would be likely to cause serious harm to your, or any other person’s, physical or mental health. A parent would not normally be entitled to see a child’s records without the child’s consent. If the child is too young to consent, the parent can apply on the child’s behalf. Any information which a child has provided in the expectation that it would not be shown to the parents is exempt. These exemptions mean that a parent who is accused of child abuse is unlikely to be given access to the child’s records, or to information provided by the child but recorded on the parent’s file. But the parent should be able to see other information
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recorded about him- or herself, such as the notes of an interview or home visit, so long as disclosure would not expose the child to risk or prejudice law enforcement. A family member caring for a mentally handicapped adult who cannot give an informed consent to their application has no explicit right of access to that person’s file, unless they are acting under a power of attorney or an order of the Court of Protection. Information about someone else which is recorded on your file, and anything which would identify an individual who has provided information about you, will normally be exempt, unless disclosure to you is reasonable in the circumstances. The Department of Health has issued a guidance paper, ‘Data Protection Act 1998 Guidance to Social Services’, on access to social records. It is available on the Internet at <www.doh.gov.uk/scg/datap.htm> or by writing to: Department of Health Publications PO Box 777 London SE1 6XH
4.4
EDUCATION RECORDS
Parents, and pupils who are 16 or over, have had the right to see local education authority (LEA) school records for a number of years. The DPA has now extended this right to younger pupils. There is no minimum age: any pupil who makes a written request to see their school records is entitled to do so, unless the pupil does not have the ability to understand what they are asking for. The right applies to any information produced by a teacher, an education welfare officer or an employee of the LEA. Access must be given within 15 days. In addition to the general exemptions in the DPA: •
Information likely to cause serious harm to the pupil or someone else’s physical or mental health is exempt.
•
Information about a possible risk of child abuse can be withheld from a parent if disclosure would not be in the child’s best interests.
Education records can be inspected free of charge. Photocopying charges are limited to a maximum of £1 for the first 20 pages, plus a further £1 for every subsequent ten pages, up to a maximum of £50. This maximum applies regardless of how many pages are supplied.
4.5
HOUSING RECORDS
If you are or have been a local authority tenant, have applied to be one, or have bought your council home, you have the right to see the council’s housing records on you, including unstructured information. Housing records often contain information about a whole family. Under the DPA, you have no automatic right to information about other family members without their consent, unless disclosure is reasonable in the circumstances. The Department of the Environment, Transport & the Regions has told local authorities that its view is that it normally will be
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reasonable to reveal information about other family members held in connection with a tenancy. However, if other members of your family have no objection, it may be safest to include signed statements from them saying that they agree to the release of any personal information held about them. 4.6
CREDIT REFERENCE AGENCY RECORDS
When you apply for a loan, credit card, bank account or mortgage the chances are that the company involved will run a check on you with a credit reference agency. These agencies check the electoral register to confirm that people live where they say they do, and report on bad debts, bankruptcies and perhaps on how well people keep up repayments of existing loans. If any of the information about you is wrong, it could be extremely damaging. The DPA allows you to see this information. If you are about to apply for a mortgage or other major loan it may be worth checking in advance to see what information credit reference agencies hold on you. Correcting any errors in advance could help you avoid problems at a later stage, when you may not be able to get things put right in time. When you apply, you should state that your request is limited to personal information relating to your financial standing. The data controller then has to reply within seven working days. The maximum fee it can charge you is £2 and you should enclose this with your application. Under the Consumer Credit Act 1974 you are entitled to have incorrect information corrected. If the file contains mistakes, the agency must correct them and tell you what it has done within 28 days. If it refuses, or you are not satisfied with the amendment, you can send it a note of correction of up to 200 words, which it must add to your file and send out whenever information about you is supplied in the future. The two main credit reference agencies in the United Kingdom are: Experian Ltd Talbot House Talbot Street Nottingham NG1 5HF Equifax plc Erskine House 1 North Avenue Clydebank Glasgow G81 2DR
4.7
OTHER DATA PROTECTION RIGHTS
A data controller must only use information about you in accordance with the data protection principles. Amongst other things, these require that the information must be collected and used fairly and lawfully, that the information must be accurate and adequate and not held longer than necessary for the purposes for which it is held. These purposes must be specified in the data controller’s data protection register entry. The information must not be used in a manner incompatible with those
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purposes. The data protection principles also require that information must not be transferred to countries outside Europe if those countries cannot guarantee the same level of protection of the rights and freedoms afforded under the DPA. These principles already apply to computerised records. Structured manual files will not be fully covered until 24 October 2007. Under the DPA, you are entitled to be informed by the person holding information about you what the information is, why it is being used and to whom it has been or will be disclosed. The data controller’s register entry must state in general terms the kinds of organisations to whom it may want to disclose data, but need not give the names of the specific organisations. For example, it may tell you that disclosures will be made to local authorities, but not which ones. You cannot be required under the terms of a contract to obtain your health records and pass them on to an employer or anyone else. When the DPA is fully in force it will also prohibit an employer or service supplier from requiring you to obtain and pass on to it information from your criminal or police records. However, separate legislation will allow employers to require prospective employees to obtain a certificate of convictions from a new criminal records bureau. Enforcing the Act If a data controller fails to comply with any of the Act’s requirements – for example, if it withholds information which is not exempt, fails to respond to your request within 40 days, or refuses to correct demonstrably inaccurate information – you can complain either to a court or to the Data Protection Commissioner. The Commissioner is usually preferable, as this costs you nothing. Also, if you have suffered damage because a data controller has contravened the DPA, you are entitled to compensation under section 13 of the Act. This right is enforceable through the High Court, but the Commissioner has the power to consider whether the contravention has caused any damage.
4.8
GOVERNMENT INFORMATION
Although ‘unstructured’ personal data are not available under the Data Protection Act, this will change when the proposed Freedom of Information Act is fully in force. The Act will amend the DPA to create a right of access to unstructured personal information held by public authorities. In the meantime, you should be able to obtain such information under the nonstatutory ‘Code of Practice on Access to Government Information’ (also known as the ‘Open Government’ code), which came into force in 1994. The Code commits government departments and agencies and other bodies supervised by the Parliamentary Ombudsman to release information on request. It applies to official information generally, as well as to personal information. Under the Code, departments and agencies must also make available the internal guidance they use in dealing with the public. So you should be able to see the procedures meant to be followed by officials who deal with, say, your benefit application and check that you have been fairly treated. It also requires departments to give people reasons for administrative decisions which affect them.
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One of the Code’s limitations is that it only offers access to ‘information’ and not to copies of actual documents. Departments may resist disclosing photocopies of actual documents and offer to answer your questions in a letter instead. However, the Parliamentary Ombudsman, who enforces the Code, has said that where documents are requested, he would expect a department to disclose a photocopy of it, provided it does not contain any exempt information and can be disclosed in full. Exemptions The Code exempts various kinds of information from disclosure. Personnel records are exempt altogether, so civil servants cannot see their own employment files under the Code. Other exemptions apply to information harmful to national security, defence and foreign relations; disclosures which would ‘harm the frankness and candour of internal discussion’; information which would prejudice law enforcement, legal proceedings, public safety, public order, the economy, tax collection, the commercial interests of an authority or a third party, and information supplied to the Government in confidence. Departments can also refuse requests which are ‘vexatious or manifestly unreasonable or are formulated in too general a manner or which ... would require unreasonable diversion of resources’. There are other exemptions as well. However, the Code says that most kinds of exempt information can be disclosed if any harm that might result from disclosure is outweighed by the public interest in making the information available. It may be difficult to argue that a request that you are making for your own personal files is a matter of public interest. But if the information you are seeking has wider implications (for example, if it shows that a department is routinely ignoring its own rules or that people are not receiving a benefit they are entitled to) you may want to argue that there is a public interest in disclosure, even if the information is exempt. Fees Straightforward requests are generally handled free of charge. However, if your request is time-consuming, you may be asked to pay a fee, based on the number of hours of staff time spent on the request. A certain number of free hours is normally allowed (usually between one and five, depending on the department) followed by an hourly charge of £15 or £20. You will be told the likely charges in advance, and asked if you agree to pay. Applying for information You should make your application in writing to the body that holds the information you want. Your letter should say that you are asking for the information under the Open Government Code of Practice and ask for a reply to be sent to you within 20 days – the Code’s target response time. Make your request as specific as possible: this will reduce your chances of being charged a fee, or having your request turned down altogether. If you are not sure to whom to send your request, a list of ‘open government contacts’ in each department and agency can be obtained from the Internet at <www.homeoffice.gov.uk/foi/contacts.htm>.
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Appeals If you are refused information, you should be told which exemption has been relied on. If you think information is not in fact exempt, you should ask the body concerned to review its decision. The review will normally be carried out at a more senior level within the department or agency. If, after this, you are still dissatisfied, you can complain to the Parliamentary Ombudsman. But you must normally have asked the body concerned to reconsider its own decision first. The Code of Practice is not legally binding, but the Ombudsman’s recommendations carry weight in government and are usually accepted. You cannot write to the Ombudsman directly; you must ask an MP to refer your complaint to him. This can be done by any MP, not just your constituency MP. Other codes In Wales the National Assembly of Wales has its own ‘Code of Practice on Public Access to Information’. A further code applies to NHS bodies and is supervised by the Health Service Ombudsman. You can complain to the relevant Ombudsman directly under these codes; you do not need to go through an MP. However, the Ombudsman will expect you to have asked the body concerned to review any initial refusal before he will investigate a complaint. Copies of the various codes can be found on the Internet at: UK code: <www.homeoffice.gov.uk/foi/ogcode981.htm> Welsh code: <www.wales.gov.uk/works/public_access_info/ codeofpracticecover> NHS code: <www.doh.gov.uk/nhsexec/codemain.htm>
4.9
OTHER RIGHTS
This chapter has dealt only with access to personal files. There are also rights to other information. For example, the Local Government (Access to Information) Act 1985 allows the public to attend meetings of local authorities and their committees and sub-committees and to see agendas, reports, minutes and background papers – subject to a series of exemptions. A meeting will usually be closed to the public if personal information about someone is being discussed and, even if the information is about you, you will have no right to attend or see the papers. However, the local authority associations have published a ‘Good Practice Note on Access to Information’ which encourages councils to introduce their own access policies and voluntarily allow people to see their own personal information and details about council policies. The law is being changed to require local authorities to set up executives which will be responsible for many decisions. Executives will not have to meet in public, though their decisions may be examined by scrutiny committees made up of councillors, which will have to meet in public. Papers relating to forthcoming decisions should be publicly available before the decision is taken. At the time of the local authority’s annual audit, a local authority must make available to ‘any persons interested’ all ‘books, deeds, contracts, bills, vouchers and receipts’ relating to the audit. These must be available for inspection for 15 days,
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and public notice given by advertising it in local newspapers. This is one of the most powerful access rights on the UK statute books. There is no exemption for commercial confidentiality: indeed, the only information that can be withheld are details about identifiable members of the council’s staff. An authority that fails to allow such inspection commits an offence under the Accounts and Audit Regulations 1983. The Environmental Information Regulations 1992, which implement a European directive, provide a general right of access to information about the environment held by public bodies, again subject to broad exemptions. Government departments, local authorities and other bodies with ‘public responsibilities for the environment’ must make available information about the state of the air, water, land, and animal and plant life; about activities which adversely affect any of these; and about measures designed to protect them from damage. The United Kingdom has also signed the 1998 Aarhus Convention on access to environmental information, and future regulations to comply with it are likely to strengthen public rights to such information. There are also many laws which forbid the disclosure of information without formal authority. The best known of these is the Official Secrets Act 1989, which makes it an offence to disclose official information potentially harmful to defence, foreign relations, law enforcement, the work of the security and intelligence services, or any information about action taken under a warrant to intercept communications or enter premises. The Government has rejected calls for a ‘public interest defence’ to this Act, so a defendant cannot argue that he or she was justified in releasing information that revealed serious wrongdoing. There are statutory restrictions on disclosure in some 250 other laws. Some protect personal information, but others prevent the disclosure of safety information and other matters of public interest. The proposed Freedom of Information Act will create a new legal right to records held by virtually all public bodies, including government departments and agencies, local authorities, NHS bodies, schools and universities, publicly owned corporations and quangos. The right will be enforced by an Information Commissioner, who will also become responsible for enforcing the Data Protection Act. However, the proposed Act has been criticised for its extremely broad exemptions. The Act is likely to be phased in over several years, starting with central government bodies. Royal Assent for the Act is expected in November 2000 and at the time of writing it is uncertain what provisions the Act will contain. Most sections of the Act will not become law for two years after Royal Assent has been received and some provisions will be delayed for five years.
4.10
FURTHER INFORMATION
Office of the Data Protection Commissioner Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Information line: 01625 545 745 <www.dataprotection.gov.uk/>
Open Government Unit Home Office 50 Queen Anne’s Gate London SW1H 9AT
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Office of the Parliamentary Ombudsman Parliamentary Commissioner for Administration Millbank Tower Millbank London SW1P 4QP Tel: 0845 015 4033 Welsh Administration Ombudsman Fifth floor Capital Tower Greyfriars Road Cardiff CF10 3AG Tel: 0845 601 0987
Scottish Parliamentary Ombudsman 28 Thistle Street Edinburgh EH2 1EN Tel: 0845 601 0456 Campaign for Freedom of Information Suite 102 16 Baldwins Gardens London EC1N 7RJ Tel: 020 7831 7477 [email protected] <www.cfoi.org.uk>
Gareth Crossman
5
The Right of Redress (Complaints and Legal Action)
This chapter contains information on: • • • • • • • • • • • • • • •
5.1
Civil action and judicial review Government departments Local government Health services and care services The police Courts and legal services Financial professions The media Public utilities Miscellaneous complaints Compensation for the victims of crime The Human Rights Act 1998 and European law Other international treaties The Citizen’s Charter Further information
CIVIL ACTION AND JUDICIAL REVIEW
Civil action If another person, or an organisation, has breached the terms of a contract made with you, or if in some other way they have infringed your rights (for example, by acting negligently in their treatment of you or assaulting you), you have the right to take civil legal proceedings against them. Unlike criminal proceedings (where the State almost always has the role of prosecuting individuals who are alleged to have broken the criminal law), in a civil action one party takes proceedings against another party. Many civil cases will concern a claim that one side has broken their contract with the other, but a civil action can also relate to the duties which are imposed by the common law without the need for there to be a contract. For example, a civil action can be brought if a person defames you or trespasses on your land. Most civil cases will be brought in the County Court (although cases concerning very large sums of compensation will begin in the High Court). The usual remedy is financial (damages) and sometimes a court order instructing a party either to carry out a particular course of action or to stop doing so (an injunction). You can obtain the appropriate forms to start a civil action from your local County Court, but it is advisable to seek advice from a solicitor and you could be eligible for financial support to do so, under the Community Legal Service scheme. 109
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Judicial review If you wish to challenge a decision of a public body, in addition to the complaints mechanisms explained below, you may be able to do so by taking judicial review proceedings in the High Court. Judicial review can be applied for in relation to any public body, including government departments, local authorities, the police and other organisations exercising a public function. The grounds for such cases will usually be that the body acted ‘illegally’ or ‘irrationally’ or that the decision was reached unfairly because of a defect in the procedure which led to the decision. The usual remedy if a case succeeds is that the public body will be ordered by the court to reconsider or change its decision. Damages may also be available in certain circumstances. Judicial review applications must usually be initiated very quickly (within three months of the decision being challenged). It is a complicated procedure and legal advice should be sought. Legal Aid is available for judicial review cases.
5.2
GOVERNMENT DEPARTMENTS
If you wish to complain about the way that a case has been handled by a department of central government, or by some non-departmental bodies (a list of which can be obtained from the address below), the Parliamentary Commissioner for Administration (or Parliamentary Ombudsman) exists for this purpose. The Ombudsman also has authority over complaints about the devolved National Assembly for Wales and other public Welsh bodies. The Ombudsman has the power to investigate complaints of injustice or loss arising from maladministration, a term which includes such faults as avoidable delay, bias and arbitrary decision-making. These powers include making government departments show investigators all relevant documents. Regular reports are also made to Parliament, and the Ombudsman has a committee of MPs who can follow up reports. Following an investigation, the Ombudsman may conclude that your complaint was partly or wholly justified. If this does happen, he may recommend that the organisation complained about should provide a remedy. There are no enforcement powers, but the Government almost always accepts the Ombudsman’s recommendations, including financial recompense. The Ombudsman cannot go to court on your behalf, and the decision whether to take up a complaint and make an investigation is entirely up to the Ombudsman. If you feel that you have a good complaint and that you have lost out in some way because of maladministration, you cannot complain directly to the Ombudsman but must do so via an MP (any MP, but it is usual to approach your constituency MP first). You should first have complained to the department and exhausted all internal tribunals and appeals. There is no charge for the Ombudsman’s services and any expenses you incur during the investigation can be reimbursed. You can contact your own MP locally or write to him or her or any other MP at the House of Commons. If your complaint is to the Welsh Administration Ombudsman, you can approach the offices directly. The Ombudsman’s addresses are:
THE RIGHT OF REDRESS The Parliamentary Ombudsman Office of the Parliamentary Commissioner for Administration Millbank Tower Millbank London SW1P 4QP Tel: 0845 015 4033 <www.ombudsman.org.uk>
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The Welsh Administration Ombudsman Fifth Floor Capital Tower Greyfriars Road Cardiff CF10 3AG Tel: 0845 601 0987 <www.ombudsman.org.uk>
There are some areas in which the Parliamentary Ombudsman cannot act, including government policy, the investigation of crime, national security, court proceedings, local authorities and public service personnel matters. He will not normally consider complaints put to an MP twelve months or more after you become aware of them. If you are not satisfied with the Ombudsman’s decision, you can contact the Ombudsman’s offices direct or contact the MP who originally passed your complaint on. Alternatively you can ask for a judicial review.
5.3
LOCAL GOVERNMENT
There are different Ombudsmen for local government, but they exist to carry out the same sort of investigation. You can complain directly to the relevant Ombudsman’s office about maladministration by any local body such as the local authority or police authority, but only once you have exhausted all the procedures used by the body you are complaining about. You must have suffered an ‘injustice’ as a result of maladministration. An injustice might include failing to receive a service to which you were entitled, suffering financial loss or suffering distress or loss. The authorities that can be complained about include district, city, borough or county councils; education appeal committees; fire authorities; police authorities (but not individual officers); urban development corporations on planning matters and the Environment Agency. The Local Government Ombudsman cannot investigate matters which have already been (or could be) appealed to a tribunal or government minister, matters concerning the community in general, court proceedings, personnel matters and the internal management of schools and colleges. The Ombudsman will not normally investigate matters that have been known about for more than twelve months. If the Ombudsman decides to take up a complaint an investigator will get in touch. If the investigator makes a decision that you have suffered an injustice as a consequence of maladministration, they can make a recommendation to the council. While this is not enforceable, the council will almost always follow the recommendation. You cannot appeal the decision but it can be reviewed on the basis of new information. England has three Commissioners for different regions and a separate Commissioner for Wales. Their addresses are:
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For London and the South 21 Queen Anne’s Gate London SW1H 9BU Tel: 020 7915 3210 <www.open.gov.uk/lgo>
For the North Beverly House 17 Shipton Road York YO30 5FZ Tel: 01904 663 200
For the Midlands The Oaks Westwood Way Westwood Business Park Coventry CV4 8JB Tel: 01203 695 999
For Wales Derwen House Court Road Bridgend Mid Glamorgan CF31 1BL Tel: 01656 661325
5.4
HEALTH SERVICES AND CARE SERVICES
Anyone who is receiving, or has received, NHS treatment or services can complain. If you are unable to complain yourself then someone else, usually a relative or close friend, can complain for you. The same procedure applies whichever part of the NHS you wish to complain about. It is important that you make your complaint as soon as possible after the event you want to complain about happens. Usually the NHS will only investigate complaints that are made within six months of the event (or within six months of your realising that you have something to complain about as long as this is not more than twelve months of the event itself). These time limits can be waived if there is good reason to do so. You should tell someone close to the cause of your complaint – a doctor, nurse, receptionist or practice manager, for example. It may well be possible to sort out the problem informally. This is called ‘Local Resolution’. If you would prefer to talk to someone who is not involved in your care, you can telephone or write to the appropriate complaints manager. All NHS Trusts have complaints managers. If your complaint is about a GP, family dentist, pharmacist or optician you should contact the complaints manager at your local health authority. The telephone number is in the phone book. The ‘Patient’s Charter’ entitles you to have a full written reply from the chief executive to any written complaint against a trust or health authority. The NHS tries to do this within four weeks and should inform you of progress if this is not possible. Local family health service practitioners – GP, dentist, pharmacist, optician – have their own complaints procedure. Staff will give you details. You may wish to use this procedure before contacting the local health authority. If you are not satisfied with the outcome of Local Resolution, then you can ask the trust (or health authority) to consider taking your complaint to ‘Independent Review’. You should do this within four weeks of the result of the Local Resolution. You will be asked to explain in writing why you are dissatisfied with the result. A specially trained member of the trust or health authority will then decide whether there should be an independent review of your complaint by a special panel. You will be informed of the decision in writing. If he or she decides to set up a panel, you will be told what matters will be investigated.
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The panel has three members and will re-examine the facts, conduct interviews and take any specialist advice needed. It will then prepare a report together with its conclusions and recommendations. You will be given a copy of this and will also be informed of any action being taken. If you are still unhappy with the result, you can ask the Health Service Commissioner (Ombudsman) to investigate your case. The Ombudsman will not usually look at matters that have not been through the NHS complaints procedure. The Health Service Ombudsman for England 11th Floor Millbank Tower London SW1P 4QP Tel: 020 7276 3000 <www.doh.gov.uk>
The Welsh Health Services Ombudsman can be contacted at: Fifth Floor, Capital Tower Greyfriars Road Cardiff CF10 3AG Tel: 01222 394621 <[email protected]>
Complaints about nurses and midwives These professions are covered by a national council, which may take action on a complaint of conduct which brings the profession into disrepute. Its address is: UK Central Council for Nursing, Midwifery and Health Visiting 23 Portland Place London W1N 4JT Tel: 020 7637 7181
Complaints about doctors If your complaint is about improper behaviour by a doctor (such as sexual harassment or fraud) address it to: The General Medical Council 178 Great Portland Street London W1N 6JE Tel: 020 7580 7642 <www.gmc-uk.org>
The General Medical Council is the governing body for doctors and may discipline its listed doctors, including disqualifying them from practice. It does not investigate complaints of medical negligence or incompetence. Leaflets exist to help you make a complaint. See your Community Health Council. Complaints of negligence You should initially follow the complaints procedure detailed above. If this does not work, or you seek monetary damages, you could consider going to court in a private action for negligence. Advice on this matter can be sought from a solicitor or from: Action for the Victims of Medical Accidents 44 High Street Croydon Surrey CR0 1YB Tel: 0208 686 8333 <www.avma.org.uk>
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Complaints about community care and benefit entitlements If your complaint concerns community care, write first to the Director of Social Services. This may lead to informal problem-solving, registering a complaint or a formal review by a panel which reports to the local authority. Leaflets telling you who to complain to in social services and the DSS are available from Citizens’ Advice Bureaux and other advice centres. If the complaint is of misadministration, it could go to the Commissioner for Local Administration. As the decision is made by a public authority you can ask for a judicial review of some decisions (see p. 110 for information on judicial reviews). If you do not agree with a decision made by the Benefits Agency in respect of a Social Security Benefit you have claimed or are receiving, then you can usually ask an independent tribunal to decide whether the decision is correct. The benefits agency produces a leaflet on how to appeal. If you have a disagreement with the Child Support Agency regarding a Maintenance Assessment, Departure Direction or Reduced Benefit Direction, then you can usually ask an independent tribunal to decide whether the decision is correct. There is an appeal form available from the Benefits Agency or CSA. You should also remember that you can complain to the Parliamentary Ombudsman if you wish to complain about the way your case has been dealt with (See section 5.2 above).
5.5
THE POLICE
Complaints If you are dissatisfied with your treatment by the police, the first thing to do is to get as many details as possible about the officer(s) who dealt with you: their name, number, car number and so on, as well as details of any witnesses. Such information will be important. Write down what happened as soon as you can. Again, this will help later. Anyone can make a police complaint. You need not be a ‘victim’ as such of police misconduct. You might, for example, have been a witness to an incident, which you feel should be the subject of a complaint. Before making a complaint you should consider the following points: •
Complaints should be made within one year of the incident. If you are worried or uncertain, always take advice first. Do not allow yourself to be pressured by the police or anyone else into making your complaint on the spot.
•
Your complaint must be about a particular officer or officers, not about general police practice or policy. This is why it is important to try to identify the officer involved. If you have a general complaint concerning policing practice, you should raise the matter with your MP and the Home Office. Complaints about local policing policy can be taken up through your Police Authority (or Greater London Authority for the police in London).
Before making your complaint against the police, it is a good idea to get advice from a solicitor, Law Centre or Citizens’ Advice Bureau (CAB), particularly if you are also considering a civil action against the police (see below). If you do not have much money, you should consult any solicitor who offers Community Legal Service advice.
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This advice will be free, or virtually free, depending on your income and savings. For more information, see p. 120. How should a complaint be made? A complaint can be made verbally at a police station, but your views will be more accurately recorded if you submit your complaint in writing and retain a copy for yourself. You should write to the appropriate Chief Constable or, if in London, to the Metropolitan Police Commissioner. Give as many details as you can and be honest and accurate, because the police could take legal action if they are falsely accused of wrongful conduct. The police must register the complaint. If you do not want to contact the police yourself, you may ask someone else to put your complaint forward for you, for instance, a Citizens’ Advice Bureau, Law Centre, solicitor, your employer, trade union representative or a friend. You will need to give them written consent to do so. In some cases the police may need to take action as soon as a complaint is received to get evidence which might not be available later. For example, if you complain about an assault while you are in custody, the police would normally ask a police doctor to examine you then and there, but only if you are willing. Nobody can compel you to be examined. The police may wish to try to settle the matter informally. This can only happen if you agree to it. Informal resolution is quicker and simpler than formal investigation. If you do not agree to informal resolution, if attempts at informal resolution do not work or if your complaint turns out to be more serious than originally thought, it can be formally investigated instead. How does informal resolution work? An investigating officer of at least of the rank of the officer concerned, will be appointed to oversee the procedure. He or she must ask you and the officer concerned for your views of the incident under investigation. Although the procedure is meant to be informal, you may still want to give your views in writing or have someone else with you (such as a lawyer) when you are interviewed about your complaint. If there were witnesses to the incident who would support your complaint, you should ask the officer in charge to interview them. The officer should take any other appropriate steps, but no specific procedure is laid down. The appointed officer can apologise to you on behalf of the officer concerned if that officer admits the misconduct, even without the officer’s permission. It is possible that an apology on behalf of the Chief Constable, or the force generally, will be made, but there is no power to require the police officer to take part. If you are asked to attend a meeting to discuss your complaint, you can insist that it take place away from police premises and that you have someone to accompany you. If you are not satisfied by the informal resolution, you can request that your complaint be formally investigated instead (however, minor complaints are rarely upheld using the formal procedure). If a complaint is informally resolved, there will be no formal entry in the personnel record of the officer concerned. A record will be kept, however, and you are entitled to a copy if you request it within three months of the complaint having been resolved.
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What happens when a complaint is formally investigated? If the investigation is to be formal, an officer of at least Superintendent rank and at least one rank above the officer concerned will supervise the investigation. The supervising officer must appoint an investigating officer of at least the rank of inspector and not lower in rank than the officer concerned. The investigating officer must have had no previous involvement with the complaint or close connection with the individuals associated with the complaint. An investigating officer may be appointed from a different police force. The officer you have complained about will be informed of your complaint and cautioned that any statement he or she makes may be used in disciplinary or criminal proceedings. The officer and any police witnesses will be interviewed and statements taken. Then you and your witnesses will be asked to meet the investigating officer to give full statements. What is the Police Complaints Authority and how does it work? Investigation of all complaints is conducted by the police themselves. In certain cases, however, their investigation will be supervised by the Police Complaints Authority (PCA). The PCA is a civilian body whose members are not, and never have been, members of the police. The chair is appointed by Her Majesty, and the Home Secretary appoints no fewer than eight other members. Members are appointed for a maximum of three years at a time. The Home Secretary may appoint not more than two of the members to the position of deputy chair. •
The PCA must supervise any complaint alleging that the conduct of a police officer resulted in death or serious injury to another person;
•
The PCA may supervise any complaint alleging that the conduct of a police officer constituted assault causing actual bodily harm, or constitutes a ‘serious arrestable offence’.
In addition, the Chief Constable or Commissioner may ask the PCA to supervise the investigation of any other complaint. What happens if there is a possibility that a criminal offence may have been committed? When the investigating officer has concluded the investigation, he or she will then submit a written report to the supervising officer. If it is concluded that a criminal offence may have been committed, the Chief Constable should refer the case to the Director of Public Prosecutions (DPP) and notify the Police Complaints Authority. It remains for the DPP to decide whether the officer should be prosecuted. In fact, this very rarely happens. What disciplinary action can be taken? In all other cases the supervising officer will make a decision whether there should be a formal disciplinary hearing, written or oral advice to the officer concerned, or no action should be taken. The PCA must be informed of the decision taken and supplied with a copy of the original complaint, the investigation report and any other relevant statements and documents. The PCA can recommend the supervising
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officer to bring disciplinary charges, and direct that they should be brought if he or she refuses to comply with the recommendation. The possible disciplinary offences are set out in the Police Code of Conduct. Offences are categorised under headings such as honesty and integrity, fairness and impartiality, politeness and tolerance, use of force and abuse of authority. An officer against whom disciplinary charges are brought must face a disciplinary hearing; if the charge is upheld, a punishment will be awarded. Disciplinary hearings are conducted by an Assistant Chief Constable or Commander with two officers of Superintendent rank. In some cases officers of the same rank from another force might take their place. What is the complainant’s role at the disciplinary hearing? If the officer denies the charge, you will be expected to attend the disciplinary hearing to give evidence, although this may be the only part of the hearing you will be allowed to attend. A friend may accompany you, but a lawyer cannot legally represent you. The police officer, however, is entitled to be legally represented at the disciplinary hearing in all serious cases where dismissal, requirement to resign or reduction in rank is a possible outcome. You will normally be called as the first witness. You should be told what the officer has been charged with and whether he or she admits or denies it. You will be allowed to question the officer, but you will not be allowed to ask questions which are considered to be irrelevant, including any questions concerning previous disputes between you and the same officer. If found guilty of a disciplinary offence, the police officer can be punished in a variety of ways, including a reprimand or caution, a fine, a reduction in rate of pay or rank, a requirement to resign, or dismissal. The officer can appeal to the Chief Constable for a review of the case. Officers who have been dismissed, required to resign or reduced in rank may also appeal to a Police Appeals Tribunal after the Chief Constable’s review. Police Appeals Tribunals will be appointed by the relevant Police Authority. In this case you may have to give evidence again. Bringing a complaint against senior officers If your complaint concerns the conduct of an officer above the rank of Superintendent, your complaint will be directed to the police authority for the officer’s area (except in London, where the Commissioner also deals with complaints about senior officers other than those against him- or herself or the Deputy Assistant Commissioner or Commander, in which case the Home Secretary takes over). The police authority is an organisation made up of magistrates, local councillors and independent members, and is responsible for the efficiency of the police. The decision to deal with minor complaints against senior officers by informal resolution is at the police authority’s discretion, and your consent to your complaint being dealt with in this way is not a legal requirement for this procedure to be pursued. If your complaint is to be investigated by the police authority, the officer appointed on behalf of the authority must be of at least the same rank as the officer about whom you have complained. The role of the PCA in supervising the investigation applies equally to complaints against senior officers (see ‘What is the Police Complaints Authority and how does it work?’, above). A senior officer cannot be
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suspended by a police authority whilst a complaint is being investigated without approval being sought from the PCA. Disciplinary charges against senior officers are drawn up by an independent solicitor and are heard by a single person appointed by the Police Authority or Commissioner from a list provided by the Lord Chancellor. Conclusion The police complaints system is criticised because it still involves the police investigating the police and thus lacks the necessary independence. The Government is currently assessing the complaint system with a view to introducing independent investigation of more serious complaints. Until recently, complainants also had to prove complaints to the criminal standard of proof. However, the standard of proof has recently been changed, and must now be proved ‘on the balance of probabilities’. This may increase the number of successful cases that are brought against police officers. If you wish to contact the Police Complaints Authority direct you may do so at: 10 Great George Street London SW1P 3AE Tel: 020 7273 6450 <www.pca.gov.uk>
Taking legal action yourself Suing the police – civil action You may bring a civil action against the police and seek damages to compensate you for your injuries and loss. The categories under which the police can be sued include the following: •
Assault and battery or the use of excessive force in arrest or detention.
•
False imprisonment or restricting your liberty unlawfully (for example, detaining you without justification or for too long without charge).
•
Trespass or searching property without proper authority.
•
Malicious prosecution or bringing a prosecution without any good reason, which then fails.
•
Negligence or failure to meet the standard of care which the police should show for the safety of people foreseeably affected by their actions.
Many civil cases succeed where formal complaints fail, although the change in the standard of proof in complaints cases outlined above may have some effect on this. You should ask a lawyer as soon as possible to advise you on your chances of success and the possible amount of damages you might receive. In February 1997 the Court of Appeal laid down guidelines on the level of damages in civil actions against the police in the case of The Commissioner of Police for the Metropolis v. Thompson and Hsu. The Court proposed a figure of £500 for the first hour of false imprisonment and then a downward sliding scale, with £3,000 to be awarded for 24 hours’ detention. The Court also proposed damages for malicious prosecution of between £2,000 and £10,000, and that exemplary damages (that is, more akin to punitive rather than
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compensatory damages) awarded against the police should be between £5,000 and £50,000. Community Legal Service funding is available for actions against the police (subject to the merits of your case and your income and capital). It is usual to sue the Chief Constable (who is generally responsible for the actions of police officers) of the relevant police force and so, unlike the position with police complaints, it is not essential to know the identities of the police officers involved. If you are considering a civil action as well as making a formal complaint, you should get legal advice from a solicitor or other adviser. You may be advised not to make a very detailed statement in support of your complaint because this might put you at some disadvantage in the civil action as the police will know at a very early stage the case you are going to make against them. If you have already made a complaint, refer the investigating officer to your solicitor. Be prepared for a considerable wait as civil cases can take several years to be concluded. Prosecuting the police – criminal action If you believe that there is good evidence to show that the police officer has committed a criminal offence, for example, by assaulting you, you can bring a private prosecution. Normally you should wait to see if the DPP will prosecute since the outcome would be the same (see p. 116). If the officer is convicted, he or she will be sentenced and could be ordered to pay you compensation. You must get legal advice before bringing a private prosecution since you will need strong evidence if you are to have any chance of success. Under these circumstances there is no Community Legal Service funding available and a private prosecution can be very expensive, especially if the officer elects for trial by jury. It is important to realise that the odds are against your winning and that you could be made liable for the police legal costs. How are major incidents involving the police dealt with? The Home Secretary can set up an independent inquiry into any matter concerning the police in England and Wales – not only misconduct by individuals or groups of officers but also as a result of police instructions and policing policies which result in serious conflict with members of the public. Such inquiries, however, are rarely held. Police authorities can require chief police officers to report on any matter concerning the policing of their area; this is another way in which major incidents can be investigated. Because the scope of public inquiries and reporting to Police Authorities is much wider than individual complaints, a campaign of public pressure is often needed before action is taken. If there has been an incident which needs to be examined in a public way, you should consider taking up the matter with Liberty, with relevant local organisations, your MP and elected members of the police authority and with the press. Complaints about local policing practice If you are not happy with the way the police are carrying out their responsibilities in your area – for example, if you think that their priorities are wrong or that they are unfairly treating certain sections of the community – then you should be able to talk to a committee set up by your local Police Authority. Almost all Police Authorities have set up a number of consultative groups or committees in their
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areas. Their members are appointed by the Police Authority. They tend to meet quarterly, although in some areas it is more frequent, and at least part of each meeting is usually open to the public so that issues of concern may be raised. Details can be found for many of the consultative groups on Police Authority websites. Many of these websites are listed on the Association of Police Authorities website at . It should be noted, however, that the committees are merely consultative in function and have no power to change police practice. They are just a forum for the police to meet the public, not a mechanism for investigating or rectifying complaints. Useful organisations Law Centres Federation 18–19 Warren Street London W1P 5DB Tel: 020 7387 8570 <www.lawcentres.org.uk>
5.6
Association of Police Authorities Local Government House, Smith Square, London SW1P 3HZ
COURTS AND LEGAL SERVICES
This subject area includes the courts and the legal professions, and each has its own system for dealing with complaints. Going to court Before taking any complaint as far as court, you should always seek legal advice. This may be available free through a law centre or by going to a solicitor, many of whom now offer a free initial interview. The Community Legal Service (CLS) has replaced the Legal Aid system. It is available for both civil and criminal cases. Assistance in criminal cases is dealt with in Chapter 7 below. All CLS advisers will have a quality mark to show they have reached an approved standard. To find out details of local General Help Points (for example, Citizens’ Advice Bureaux) and Specialist Help Points (such as solicitors and Law Centres) call 0845 608 11222. For more information on the CLS go to the website at <www.justask.org.uk>. The Community Legal Service has its own fund. You can apply for initial assistance in cases involving: • • • • • • • • • •
Divorce. Housing matters such as rent or mortgage arrears, repairs and eviction. Welfare benefits. Credit, debt, buying goods. Immigration, nationality or asylum. Employment. Family and children. Judicial review. Mental health. Actions against the police.
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Medical negligence. Care in the community.
If you are on low income with little capital, you may qualify for free funding or you may be asked for a contribution. If your disposable income is £84 a week or less and your disposable capital is £1,000 or less you will qualify for help. The value of your home will only be taken into account above a specified limit. People on benefits will usually be financially eligible. If further work is needed, for example to bring court proceedings, then the CLS will also need to be satisfied that you have a good enough case before any funding is given. Your solicitor will assist with applying for this. If you are successful with a case funded by the CLS, you may be asked to pay some or all of the money back. This is called the ‘Statutory Charge’. You should make sure your solicitor has explained this to you. You may be able to come to a ‘no win, no fee’ agreement with your solicitor. This means that you will not be charged for services unless a minimum agreed result is achieved in your case. Obviously, it is important that you are both clear on what has been agreed between you. You may also be able to take out insurance to cover your legal costs in the result of an unsuccessful action. Complaints about the courts If you are dissatisfied with the way the court system works, for example, you have been kept waiting excessively or you have not been given information by the court which you should have received, your rights as a complainant are now in the Courts’ Charter, which is available from the Court Service Secretariat at: Court Service Secretariat for Magistrates The Lord Chancellor’s Department Correspondence Unit Selborne House 54–60 Victoria Street London SW1E 6QW Tel: 020 7210 8500 <www.open.gov.uk/lcd>
Court Service Secretariat for Crown, High, County Courts Court Service Headquarters Southside 105 Victoria Street London SW1E 6QT
This procedure does not cover complaints about individual lawyers, case decisions or court policy. At a local level, the name of the Chief Clerk, to whom all complaints should be addressed, and the complaints procedure must now be on display in all court buildings. Complaints against solicitors There are three sorts of complaints you might have against a solicitor: a complaint about charges being too high; a general complaint about the way you have been dealt with by your solicitor; or a complaint involving negligence by your solicitor. In all cases you should complain in the first instance to the firm itself so that, if possible, your grievance can be settled without taking the matter further. If the solicitor who has acted for you will not address your complaint, you should refer the matter to the senior partner in the firm, or the partner who has specific respon-
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sibility for dealing with complaints. If your complaint is not resolved in this way, the action you take next will depend on the nature of your complaint. Complaints about overcharging Once you have tried to resolve this informally, for matters that have not involved court proceedings, you can ask your solicitor to apply to the Law Society for a Remuneration Certificate. For further information about this you can call the Remuneration Certificate enquiry line on 01926 822022. Alternatively, if court proceedings were issued, you will need to apply to the court for taxation of your solicitor’s bill. You should note that this might involve you in further costs, particularly if the bill is reduced by less than 20 per cent of its original total. Complaints about professional conduct If your complaint is about the way your lawyer has handled your case or how he or she has acted towards you, you can contact the Office for the Supervision of Solicitors (see address below). The OSS will investigate complaints of poor service and/or misconduct made against any solicitor in England or Wales. The OSS can order compensation up to £1,000, require a solicitor to correct a mistake, or discipline a solicitor for misconduct. If you are dissatisfied with a decision of the OSS, or the way your complaint was handled by them, you have three months from the date of their decision to refer the matter to the Legal Services Ombudsman. The Ombudsman is appointed by the Lord Chancellor to ensure that the handling of complaints by the legal profession is well regulated. Complaints about negligence Complaints of this sort should also go in the first instance to the OSS. The OSS will review the complaint and, if appropriate, will refer the matter to one of the solicitors on their Negligence Panel. These are independent solicitors who have volunteered to give one hour’s free advice on whether a solicitor was negligent and, if so, what to do next. Ultimately it may be necessary for you to take action in the courts to obtain compensation for the negligence of a solicitor. Enquiries should be directed to: The Office for the Supervision of Solicitors Victoria Court 8 Dormer Place Leamington Spa Warwickshire CV32 5AE Tel: 01926 820082/3 <www.lawsociety.org.uk>
The Office of the Legal Services Ombudsman 22 Oxford Street Manchester M2 3WQ Tel: 0161 236 9532
Complaints against barristers At present, you cannot sue a barrister for negligence in the way he or she presents your case in court. You may be able to sue for negligent advice if you are dissatisfied with your barrister’s professional conduct (for example, if your instructions have been ignored). You should complain to the profession’s governing body at: The General Council of the Bar 3 Bedford Row London WC1R 4DB Tel: 0207 242 0082.
This body may impose disciplinary sanctions on barristers.
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FINANCIAL PROFESSIONS
Professions which deal with financial affairs have regulatory bodies set up and run by these professions. You should complain to the company involved first and then to the appropriate regulator. The Banking Ombudsman 70 Gray’s Inn Road London WC1X 8NB Tel: 0207 404 9944 <www.obo.org.uk> The Building Societies’ Ombudsman Millbank Tower Millbank London SW1P 4XS Tel: 0207 931 0044 Corporate Estate Agents’ Ombudsman Beckett House 4 Bridge Street Salisbury SP1 1YO Tel: 01722 333 306 <www.oea.co.uk>
Investment Managers’ Regulatory Organisation (IMRO) 25 The North Colonade Canary Wharf London E14 5HS Tel: 0207 676 1000 <www.fsa.gov.uk> The Investment Ombudsman 6 Fredrick’s Place London EC2R 8BT Tel: 0207 796 3065 Pensions Ombudsman 11 Belgrave Road London SW1V 1RB Tel: 0207 834 9144
The Insurance Ombudsman Bureau City Gate One 135 Park Street London SE1 9EA Tel: 08456 006 666 <www.theiob.org.uk>
5.8
THE MEDIA
If you are upset by something shown on television or in the press or covered on radio, or feel that you personally have been misquoted or wrongly represented, you can complain directly to the organisation involved and/or to the regulatory bodies. For the press, the Press Complaints Commission is the current official watchdog. Initially, they operate a telephone helpline, which can give you the name and address of the relevant editor so you can complain directly. Beyond this, the PCC upholds a code of practice which penalises inaccuracy and intrusiveness. Complaints should be in writing to: The Press Complaints Commission 1 Salisbury Square London EC4Y 8JB Tel: 020 7353 3732 <www.pcc.org.uk>
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For radio and television, you should first complain to the programme’s producer. You may address complaints about the BBC to the appropriate senior manager or directly to: The Director-General BBC Broadcasting House London W1A 1AA Tel: 020 7580 4468 <www.bbc.co.uk>
Complaints should be sent to the Programme Controller in the case of a commercial station. If your complaint is not satisfactorily dealt with by the broadcaster, you should write to the Broadcasting Standards Commission at: The Broadcasting Standards Commission 7 The Sanctuary London SW1P 3JS Tel: 020 7233 0544 <[email protected]> <www.bsc.org.uk>
In April 1997 a new regulatory body, the Broadcasting Standards Commission, was set up under the Broadcasting Act 1996 to consider complaints of unjust or unfair treatment and unwarranted infringements of privacy, as well as the portrayal of violence and sex, and standards of taste and decency. The new Commission took over the powers of both the Broadcasting Complaints Commission and the Broadcasting Standards Council. Complaints to the Commission should be made within a reasonable time after the relevant broadcast (usually three months). The Commission has the power to require the broadcaster to publish a summary of a complaint and of the Commission’s findings. For independent television the umbrella body is: The Independent Television Commission 33 Foley Street London W1P 7LB Tel: 020 7255 3000 <www.itc.org.uk>
The Independent Television Commission (ITC) deals with matters of complaint against the commercial television companies: Channel 3 and 4, cable, satellite and Teletext (but not the BBC or S4C). The ITC Programme Code covers matters such as taste and decency, the portrayal of violence, privacy, impartiality, charitable appeals and religious programmes. Complaints about breaches of the Code should be made in writing to the ITC at the above address. The ITC can impose heavy fines or revoke licences in serious cases or ensure that an apology is broadcast. Complaints about S4C should either be made to the BSC or directly to S4C at Parc Ty Glas, Llanisien, Cardiff CF14 5DU Tel: 01222 747444 or 741414
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For independent radio the regulatory body is the Radio Authority: Radio Authority Holbrook House 14 Great Queen Street Holborn London WC2 5DG Tel: 020 7430 2724 <www.radioauthority.org.uk>
The Radio Authority monitors compliance with its three codes: the Advertising and Sponsorship Code, the Programme Code (covering, for example, taste and decency) and the News and Current Affairs Code (covering, for example, impartiality and election broadcasts). Complaints should be made to the Authority within 42 days of the relevant broadcast. The Authority has similar powers to the ITC and can, for example, require an apology to be broadcast. If your complaint is directed at the content or tone of an advertisement in any medium, you should complain to: The Advertising Standards Authority 2 Torrington Place London WC1E 7HN Tel: 020 7580 5555
If you feel that you have been personally defamed by the media, you may wish to bring a civil action for defamation. You should again seek legal advice before acting, although Legal Aid is only available for advice and not for representation. However, you may be able to agree representation on a no win, no fee basis. Starting such an action cannot occur simultaneously with the complaints procedures described above.
5.9
PUBLIC UTILITIES
Since the privatisation of the gas, electricity, water and telephone companies, the Government has created watchdog bodies for each industry. If a complaint to the company itself at a local or regional level (addresses will be in the phone book) does not lead to a solution, you should complain to the regulator. Such complaints may be about standards of service or matters relating to billing. Below are the relevant general addresses. If a local office exists, it will be listed in the phone book. Telecommunications OFTEL 50 Ludgate Hill London EC4M 7JJ Tel: 020 7634 8700 <www.oftel.gov.uk> Consumer helpline: 0345 145000
The Secretary Welsh Advisory Committee on Telecommunications First Floor, Caradog House St Andrew’s Place Cardiff CF1 3BE Tel: 01222 374028
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The Secretariat Independent Committee for the Supervision of Standards of Telephone Information Services (ICSTIS) Third Floor, Alton House 177 High Holborn London WC1V 7AA Tel: 020 7240 5511 <www.icstis.org.uk> <[email protected]>
Electricity OFGEN Sixth Floor, Stockley House 130 Wilton Road London SW1V 1LQ Tel: 020 7828 0898
Water OFWAT Centre City Tower 7 Hill Street Birmingham B5 4UA Tel: 0121 625 1300 <www.open.gov.uk/ofwat/>
River and canal complaints to The National Rivers’ Authority (see phone book for local office) or: Rio House Waterside Drive Aztec West Almondsley Bristol BS32 4UD Tel: 01454 624400 <www.environmentagency.gov.uk>
Gas OFGEN Sixth Floor, Stockley House 130 Wilton Rad London SW1V 1LQ Tel: 020 7828 0898
You can also complain to your local office of the Gas Consumers’ Council, the address of which will be in the phone book or available from the local gas company office. The national office of the Council is at: Abford House 15 Wilton Road London SW1V 1LT Tel: 020 7931 9151
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Complaints about the Post Office For complaints about counter service, look under Post Office Counters Ltd in your phone book. For complaints about the letters service, look under Royal Mail in your phone book. This will include a freepost address. For complaints about the parcels service, look under Parcelforce in your phone book.
5.10
MISCELLANEOUS COMPLAINTS
Complaints about many consumer issues should be taken to the appropriate section of your local authority, or county council such as environmental health and trading standards. They may also be able to advise on housing complaints against private landlords, but specialist advisers in this field exist at Citizens’ Advice Bureaux, law centres and similar organisations.
5.11
COMPENSATION FOR THE VICTIMS OF CRIME
If you are the victim of a criminal act, there are three ways in which you could obtain compensation from the offender: •
A compensation order made by the court as part of a guilty verdict. This is not an award you can directly apply for yourself, and it is important that the prosecution at the trial knows as much information as possible that might persuade the judge to make such an order.
•
A civil action suing for damages. Seek advice from a solicitor or a Citizens’ Advice Bureau before attempting this.
•
An application to the Criminal Injuries Compensation Scheme, set up to assist those injured by crimes of violence. You may apply for an award even if the offender has not been arrested, as long as you have not been awarded any compensation by either of the first two methods above.
Information on the latter scheme is available from: The Criminal Injuries Compensation Board Tay House 300 Bath Street Glasgow G2 4LN Tel: 0141 331 2726
The scheme will not pay compensation assessed at under a certain amount (about £1,000) and will not accept claims made if the offence has not previously been promptly reported to the police or if any information is held back from them. Claims made more than three years after the event are also inadmissible. The Board can take other factors into account in deciding whether to award and how much to award, including whether or not they consider the injuries to be your fault. Unfortunately, they can also refuse or reduce the compensation if you have a criminal record or if you ‘associate with criminals’. Different rules also apply to situations where the victim making the claim is in the same family as the offender. If your claim
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arises from a road traffic offence, unless it was a deliberate attempt to run you over, you should claim from the offender’s insurance company. If the offender is uninsured, payments can be made by the Motor Insurers’ Bureau, an organisation funded by the insurance companies. Their address is: Motor Insurers’ Bureau 152 Silbury Boulevard Milton Keynes MK9 1NB Tel: 01908 240000
Victims may also receive advice and counselling from Victim Support, a national charity in contact with the police. Victim Support will contact those it feels it can offer assistance to. You can contact the Victim Support through the local police’s community involvement unit or phone directly at their local address, which will be in the phone book. Other organisations exist to assist victims of crimes such as rape and they can be found in the phone book or by asking the police.
5.12
THE HUMAN RIGHTS ACT 1998 AND EUROPEAN LAW
When the Labour Government was elected in 1997, it made a commitment to incorporate the European Convention on Human Rights into domestic (UK) law. This happened in the Human Rights Act 1998. The Human Rights Act and the European Convention on Human Rights contain the same rights. Because you are more likely to rely on these rights in domestic courts they are set out below in the section on the Human Rights Act. It should, however, be remembered that these rights can still be relied on if a case does go before the European Court of Human Rights in Strasbourg. Each chapter in this book explains the effect of the Human Rights Act on its subject matter. This section sets out to give an overview of the Act. Introduction to the Human Rights Act The Human Rights Act 1998 came into force on 2 October 2000. This Act incorporates the European Convention on Human Rights into domestic law and is the most significant human rights reform for many years. For the first time, positive rights such as privacy and family life, freedom of expression and assembly, the right to a fair trial, freedom from arbitrary arrest and freedom from discrimination will be enshrined in domestic law. Those who claim that their fundamental human rights have been breached will no longer necessarily have to endure the lengthy process of going to the European Court of Human Rights in Strasbourg. However, as mentioned above, the right to take your case to Strasbourg remains an option for those who have been though the courts in this country. The Convention will not be a panacea for all human rights abuses. Its age is clearly discernible from the weakness of its equality provisions, and it is silent on increasingly important issues such as the rights of children and standards in prisons. The limitations it places on rights are too broad and the anti-discrimination provisions too narrow. Nevertheless the Human Rights Act will make a special difference to rights in this country, particularly in criminal proceedings.
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Who is covered by the Act? The Convention will apply to all public authorities. It will be unlawful for bodies such as the police, government departments or local councils to violate the rights contained in the Convention. The Act does not impose duties directly on private individuals or companies unless they are performing public functions. However, for instance, a private security company will be performing a public function when looking after prisoners for the police or the courts, but not when employed to guard private premises. They will be bound by the Act in respect of the former tasks but not the latter. All courts and tribunals are public authorities for the purposes of the Act and will be under a duty to respect Convention rights (particularly, of course, the right to a fair trial). Some rights and the Act itself impose positive duties on public authorities to prevent violation of rights even for private individuals and therefore in some circumstances the Act can be relied on in actions between private individuals. The extent to which this may be possible will become clear as case law develops. Any person who is a victim of a violation can use the Convention. A victim includes anyone directly affected by the actions (or inactions) of any public body. A victim might also include a person not necessarily directly affected by the action of a public body, but could include someone indirectly affected. For instance, a person who is likely to be subject to surveillance by the police will be able to use the Act even though they have not (yet) had their privacy infringed. However, a person who is no more affected than any other member of the public is unlikely to be able to use the Human Rights Act. How can the Act be used? Public authorities have now had two years to change their policies and procedures to bring them into line with the rights in the Convention, so most of what they do will comply. However, there will be a considerable number of unintentional violations of the Convention, public authorities will make mistakes and in some cases they will have good reasons not to want to go quite as far in respecting the rights in the Convention as they should. Where there has been a breach of the Convention (or even where there is about to be) the victim can take proceedings in court. They may be able to take judicial review proceedings, obtain an injunction to stop the violation, force the public authority to take action or obtain damages and compensation. The Act can also be used if you are subject to proceedings taken against you by a public authority, for instance, if you are being sued or being prosecuted. You will also be able to use the Convention in tribunal proceedings, such as unfair dismissal proceedings. Interpreting laws The Human Rights Act will mean a new interpretation of old (and new) laws. Old judge-made law (the common law) will have to change if it does not respect the rights in the Convention. Nearly all secondary legislation (Statutory Instruments, for example) will not be valid if they do not comply with Convention rights. Even primary legislation (Parliamentary statute) will have to be brought into line with Convention rights ‘so far as it is possible to do so’. However, if primary legislation cannot be read to comply with the Convention, the higher courts can make what is
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called a ‘declaration of incompatibility’, which will allow the Government to amend that law speedily. If the law is not amended, it is likely that the case will proceed to the European Court of Human Rights. Which rights? Articles 2–12 and 14–18 of the Convention plus Articles 1–3 of the First Protocol to the Convention have been incorporated by the Human Rights Act (see below for the text of the Articles). Protocol 6 has also been incorporated (although this only relates to the abolition of the death penalty, which was abolished for all practical purposes in domestic law 35 years ago). The rights in Protocol 7 are likely to be introduced over the next few years. The Convention itself The Convention was drafted over 50 years ago and individuals from the United Kingdom have been able to take cases to the European Commission of Human Rights (which has recently been abolished) and the European Court of Human Rights since 1966. Over the last 30 years the Convention has been interpreted by the Commission and Court in Strasbourg in over 400 Court cases and over 1,000 Commission decisions. The Court in Strasbourg has said that the Convention is designed to protect rights which are not just theoretical and illusory, but practical and effective. The Court has also said that the Convention is a ‘living instrument’; that is, the rights in the Convention are to be interpreted in line with current thinking. This interpretation of the Convention is important because it is how UK judges are likely to interpret it after October 2000. The Convention often means more than the words in the Articles might suggest. For instance, the Court has decided that the right to fair trial goes beyond merely what happens in the court itself and can extend to what happens in the police station months before, if what happened there might have an effect on the fairness of the hearing. In addition the Court has said that the right to a fair trial includes a right of effective access to the court. There is no point having a right to a fair trial if a public body is preventing a person communicating with his or her lawyer, or the court itself (as in a complaint that concerned a prison blocking correspondence). There are now many textbooks on what the Convention means and in most cases it will be necessary to consult an expert for an authoritative answer. (Note: the Convention system has nothing to do with the ‘Common Market’, the EEC, the European Union or the separate European Court of Justice.) The rights themselves There are three categories of rights in the Convention and they work in different ways. The first set are ‘absolute’ rights. These include Article 2, Article 3, Article 4(1) and Article 7. They are not limited and they cannot be infringed no matter how necessary it might seem to be to do so. The second category of rights are ‘limited’ rights. Examples of such rights include Articles 4(2), 5, 6 and 12. In such Articles the right is set out at the beginning and then there are specific limitations in the Article itself. Limitations on the right that are not included in the Article itself are not permissible and there is no general public interest limitation.
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The third set of rights are ‘qualified’. These include Articles 8, 9, 10, 11, 14 and Protocol 1, Article 1. Generally in such Articles the right is set out at the start and then is ‘qualified’. Any infringement needs to promote a specific legitimate aim – ‘in interests of national security, public safety etc.’. The infringement must be properly regulated by the law and must be ‘necessary in a democratic society’. This latter concept means the interference with the right must be a proportionate response to the legitimate aim. If the aim can be achieved by a less intrusive method, then that method must be used instead. Any interference with the right needs to be restricted as much as possible. In other words, the restrictions would not support the use of a sledgehammer to crack a nut. Article 2 ‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary – (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’ Article 2 is the right to life. It protects against the use of lethal force by public authorities unless its use is absolutely necessary (for instance, to protect the life of someone else). The right also has a more positive aspect. It imposes a duty on public bodies to go further than not causing unnecessary death themselves. There is also a duty to try to prevent death caused by private individuals. This duty extends to having in place adequate laws (against murder, for instance) and an effective police force and court system to investigate deaths, and so on. It will also even impose a duty on public bodies to take steps to prevent suicides (especially of those in institutions). Article 3 ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Article 3 is the freedom from torture, inhuman or degrading treatment or punishment. The Court has decided that torture is the deliberate inhuman treatment causing very serious and cruel suffering. Inhuman treatment is treatment that causes intense physical and mental suffering. Degrading treatment is treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance. As with Article 2, Article 3 imposes a limited positive duty on public authorities to protect the rights of others even from infringement by other private parties. For instance, the Court has ruled that allowing a defence in criminal proceedings of ‘reasonable chastisement’ creates a real danger that children will be beaten by their parents and this may violate their right under Article 3.
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Article 4 ‘1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include – (a) any work required to be done in the ordinary course of detention imposed in accordance to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.’ Article 4 is unlikely to be of benefit in many situations that one can envisage in the United Kingdom in peacetime. There have been few cases taken to the Court. Article 5 ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics and drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reason for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within
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a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.’ Article 5 protects from arbitrary and unlawful detention. Note that only those listed exemptions 5(1)(a)–(e) can be used to justify detention. Any detention for other reasons will be a violation of Article 5. Any detention must be lawful. That means the law must specifically sanction it and any rules of procedure must be followed. Article 6 ‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights – (a) to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’ Article 6 provides for a right to a fair trial and is therefore a very important right. Note that in criminal proceedings the right applies to the defendant only. In other proceedings the right applies only where there is a civil right or obligation at stake (therefore it might not apply where, for example, the dispute was over a discretionary social security benefit). Articles 6(2) and 6(3) apply to criminal proceedings only and are in addition to the general right to a fair trial provided by Article 6(1). However, despite the absence of a right to Legal Aid in civil proceedings, under Article 6(1) the European Court of Human Rights has imposed one. The Court has
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decided that in some civil cases without such a right to Legal Aid the person concerned could not have a fair trial. Note the importance of the right to ‘open justice’ and hearings in public in the Article. Article 7 ‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general law recognised by civilised nations.’ Article 7 is unlikely to be used in many circumstances because generally both the courts and Parliament are careful not to make retrospective criminal laws. Article 8 ‘1. Everyone has the right to his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ Article 8, which protects the right to privacy and to a family life becomes important from October 2000. Prior to this, there was no right to privacy in domestic law. This Article is likely to be of use in challenging new forms of technology that may interfere with our privacy (such as CCTV or workplace surveillance). The right to private life includes our right to a private sexuality without interference from public authorities. The right to family life will also be of use to children, parents and others threatened with separation. Article 9 ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ Article 9 protects the right to freedom of religion. There has not been a positive right of this type in domestic law previously. Nevertheless there are few laws that prevent the practice of religion in this country. Some religions do have greater degree of
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protection under current law and this Article in combination with Article 14 (Prohibition on Discrimination) may help to redress this balance. Article 10 ‘1. Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’ Article 10 will be of particular use to journalists and the media. The right to freedom of expression also assists those people who wish to express their views by attending demonstrations and protests as these activities are protected as well. The Article does not include a right to freedom of information from public bodies – there is no specific ‘right to know’ in the Convention. It may, however, protect whistleblowers from dismissal or prosecution. Article 11 ‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.’ Article 11 protects the right of freedom of assembly and may also assist peaceful protesters and demonstrators. It separately protects the right to join (or not join) organisations such as trade unions and other groups. Note the specific restrictions that apply to the police and the armed forces. Article 12 ‘Men and women of marriageable age shall have the right to marry and to found a family, according to national laws governing the exercise of this right.’ This Article does very little to promote rights. Note the right to marry can be restricted by national laws and does not, at least at present, give a right for same-sex
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couples to marry each other. The right to found a family may assist those who for one reason or another are restricted by the State from having children (such as prisoners who seek to have children using artificial insemination). Article 14 ‘The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ Article 14 is a qualified right. It is important to realise that the prohibition on discrimination is not a free-standing right. It can be used only in conjunction with other Articles under the Act. For example, discriminatory searches by the police would allow recourse to Article 14 because the right of freedom from detention and the right to privacy were engaged. It would not apply to, say, the provision of services in shops because no other Convention right was engaged (there is no ‘right to shop’ in the Convention). The list of groups protected from discrimination is much wider than already protected under domestic law (currently only sex, race and disability). It should also be remembered that legislation on sex, race and disability does provide free-standing rights against discrimination and may well provide greater protection than the Act. Articles 15, 16, 17 and 18 are of a technical nature. They are very rarely likely to apply and are not set out here. Protocol No. 1 Article 1 ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties.’ This Article protects the peaceful possession of property. It is a qualified right. In most cases public authorities will be able to justify their actions in relation to the wider public interest (taxation being an example). Nevertheless, in some cases the Article will require compensation to be paid for taking away a person’s property (as in compulsory purchase, for instance). Recently this Article, combined with the right to privacy in Article 8, has been used to claim rights of environmental protection for those living close to sources of pollution. Article 2 ‘No person shall be denied a right to an education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ This Article protects the right to education and the right to respect the philosophical or religious beliefs of the parents. The right only protects primary and
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secondary education. The Article does not impose an obligation on the State to pay for education that respects philosophical and religious beliefs of the parents (but it could be used in conjunction with the anti-discrimination provision in Article 14). Article 3 ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’ This Article does not give a right of election to bodies other than those that legislate (so the election of local councils are not protected, but elections to the European Parliament are). It also does not create a right to any specific system of election. However, this Article might be of use in assisting those who find it difficult to register for the vote in ensuring they have a right to vote (such as the homeless). European Law and The European Convention on Human Rights Although the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, it will still be possible to take cases to Europe. There are two major European Courts, each of which is based on a different organisation. The first is the European Court of Justice, which is part of the European Union (formerly the ‘EEC’). It exists to rule on questions of EC law put to it by national courts, and also to hear cases between Member States and against Community institutions. If you feel that you have such a case, you should seek expert legal advice as the law is often complex. In respect of human rights, EC law has had most impact in relation to discrimination law and freedom of movement within the European Union (see Chapters 9 and 10). The European Court of Human Rights The second system is based on the Council of Europe (currently composed of 41 states). The United Kingdom is bound by many international treaties, which oblige it to respect human rights. One of the most important of these is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This treaty offers the possibility of redress where a person’s civil liberties have been infringed and no remedy can be obtained from the British courts or Government. The Convention was drawn up under the auspices of the Council of Europe, an organisation of West European countries, which is based in Strasbourg and is quite separate from the European Community. The Convention was adopted on 4 November 1950 and came into force on 3 September 1953. Its provisions guarantee most, but not all, civil liberties, including the right to life, freedom from torture, freedom from arbitrary arrest, the right to a fair trial, the right to privacy, freedom of religion, freedom of expression, and freedom of assembly and association. The rights guaranteed by the Convention are considered in the section on the Human Rights Act 1998. In theory, the existence of the Human Rights Act means that there will be fewer cases going to the ECHR, as the domestic courts should ensure that the Convention is adhered to. There will, however, be circumstances where a case proceeds beyond
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the domestic courts. For example, if a ‘declaration of incompatibility’ is made (see above) or if the complainant believes the law has been incorrectly applied. The new European Court of Human Rights came into operation on 1 November 1998. Prior to this there had been a separate Commission that decided on the admissibility of cases. The functions of the old Commission have now been incorporated into the Court. There are two ways in which alleged breaches of the Convention’s provisions by the United Kingdom can be brought to the attention of these bodies. The first is through a complaint made by one of the other countries bound by the Convention. For example, it was as a result of a complaint by the Republic of Ireland against the United Kingdom that certain interrogation practices used in Northern Ireland were held to amount to inhuman and degrading treatment. Countries are, however, reluctant to bring cases against each other and will do so only in the most extreme cases or where their own interests are affected. The second, and most common, method of complaint is by a person whose rights have been infringed. This is used much more frequently and with greater effect. Any person claiming to be a victim of a violation of the Convention may lodge directly with the court in Strasbourg. Application forms are available from the registry. During ‘war or other public emergency threatening life of the nation’, governments can derogate from their obligations under the Convention. This enables them to restrict the exercise of some of the rights and freedoms, but only in so far as is necessary to deal with the emergency. The United Kingdom has, in the past, used this provision in Northern Ireland and one is in force now which allows the police to detain people under the terrorism laws for up to seven days. No derogation is ever possible in respect of the right to life (other than in respect of deaths resulting from lawful acts of war), freedom from torture and slavery and the prohibition of retrospective penalties. Using the Convention The procedure for making a complaint where you believe that any of your rights under the Convention have been violated is relatively straightforward. It is not, however, a speedy process (a case can take five years or more to be resolved). The delays are undoubtedly exacerbated by the many complaints that do not fall within the ambit of the Convention or do not comply with its requirements. These complaints will be at the early stages. It is important, therefore, to check whether the subject matter of your complaint has previously been considered and to ensure that you have complied with the admissibility requirements set out below. It is not essential to be represented by a lawyer, but it is better to get advice from a solicitor experienced in this type of case. Although the UK’s Community Legal Service scheme does not cover complaints under the Convention, limited Legal Aid may be provided by the Court and legal costs are recoverable where a complaint is successful. There are no fees payable to the Court and there is no liability to meet the costs of the Government even if your case is unsuccessful. Making a complaint A complaint does not have to be started on a special application form although you will eventually be asked to complete one. Complaints should be directed to:
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The Registrar European Court of Human Rights Council of Europe F-67075 Strasbourg Cedex France 00 333 88 41 20 18
The following conditions must be satisfied: 1. The Court can only deal with complaints relating to the rights listed in the Convention and Protocols. 2. You can only complain to the Court about matters that are the responsibility of a public authority. It will not deal with complaints against private individuals. 3. Before applying to the Court you must have exhausted all domestic remedies. This means that you have tried all appeal or tribunal avenues available. 4. You must apply to the Court within six months of the decision of the last domestic court or tribunal. How to apply to the Court If you satisfy the above conditions you should send a letter to the registrar: 1. 2. 3. 4.
giving a brief summary of your complaint; indicating which of your Convention rights you think has been violated; stating what remedies you have used; listing the official decisions in your case, giving the date of each decision, the court which took it and brief details of the decision itself. Attach copies (not originals) of these decisions.
The Registrar may ask for more information of documents or for further explanation of your complaints. If the Registrar decides that your complaint is one that could be registered as an application, you will be sent the necessary document on which to submit your formal application. Unlike cases in the courts of the United Kingdom the decision to allow a case to continue is made on the basis of the papers alone. If a case is declared inadmissible at an early stage, there are no further steps that can be taken and no applications can be made concerning the same facts. It is therefore not sufficient merely to complete an application form. To have a real chance of success it will be necessary to set out separately the facts, the relevant domestic law and detailed submissions on Convention law. One of the best ways of setting out the application itself is to model it on a decision of the Court. These are often models of clarity and any application so constructed will help to reduce the workload of those in the Court secretariat, and give the best chance of success. Each application is assigned to a Section (there are four Sections at the Court) and then to a Committee of three judges to sift out inadmissible and unmeritorious applications. If the Committee decides the case is admissible, they will pass it on to a Chamber. In some applications the case will proceed directly to a Chamber. A Chamber (of seven judges) will consider the case and decide on admissibility and
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merit. If a case raises a serious question of interpretation of the Convention, the Chamber may at any time relinquish control in favour of the Grand Chamber of 17 judges. Throughout proceedings Chambers may invite evidence from the parties and may call a public hearing on the merits of the case. Chambers will decide by majority vote. Within three months of the judgment of a chamber, either party may request a referral to the Grand Chamber, which may or may not be granted. The Grand Chamber’s decision is final. Success in the European Court of Human Rights can take several years to achieve and will frequently result in little financial gain for the applicant. However, the Court will help establish points of principle, which are binding on the Member State. As mentioned previously, the Human Rights Act 1998 should reduce the need for British cases to proceed to the ECHR. However, it will remain an important safeguard against human rights abuses. The European Ombudsman In September 1995 the new office of the European Ombudsman was created. It adjudicates on complaints brought by European Union citizens about maladministration in the activities of EC institutions or bodies, such as the European Commission (but not the European Court of Justice or the Court of First Instance acting in their judicial capacities). Complaints can be made directly to the Ombudsman or through your MEP. The address is: The European Ombudsman 1, Avenue du President Schuman F-67001 Strasbourg Cedex B.P. 403 France Tel: 00 333 88 17 40 01
5.13
OTHER INTERNATIONAL TREATIES
Other international treaties also impose minimum standards in relation to human rights. For example, in the Council of Europe there are conventions or directives on the prevention of torture, inhuman and degrading treatment and on data protection. In the United Nations (UN) there are others on the rights of the child, discrimination, torture and refugees. These treaties do not usually allow the right of individual complaint, but impose a duty on a Government to report on its human rights record. In some cases they can involve spot-checks. The International Covenant on Civil and Political Rights is another important UN treaty which is binding on the United Kingdom and which is modelled on the ECHR but is more wide-ranging. The UK Government has to report on its record under this treaty every five years and the United Nations Human Rights Committee most recently examined the United Kingdom’s record in 1995. Unfortunately, the Government has refused to allow the right of individual petition, to allow complaints about breaches of the Covenant, to be made directly to this Committee.
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THE CITIZEN’S CHARTER
Areas covered by the Citizen’s Charter have now set standards which organisations must meet. You can check whether you have a valid complaint by ringing the Citizen’s Charter telephone line if there is one in your area.
5.15
FURTHER INFORMATION
Useful organisations It is important to get advice on complaints that have legal implications. If you cannot find advice locally, the following organisations will be able to put you in contact with their nearest affiliate: Federation of Independent Advice Centres 4 Dean’s Court St. Paul’s Churchyard London EC4V 5AA Tel: 020 7489 1800
National Association of Citizens’ Advice Bureaux Middleton House 115–123 Pentonville Road London N1 9LZ Tel: 020 7833 2181 <www.nacab.org.uk>
The Law Centres’ Federation Duchess House 18–19 Warren Street London W1P 5DB Tel: 020 7387 8570 <www.lawcentres.org.uk>
Bibliography The following books may provide useful information about the European Convention on Human Rights: Luke Clements, European Human Rights: Taking a Case under the Convention, Sweet & Maxwell, 1994. European Human Rights Law Review, Sweet and Maxwell (bi-monthly). S. Farran, The UK before the European Court of Human Rights: Case Law and Commentary, Blackstone Press, 1996. D.J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights, Butterworths, 1995. P. Van Dyk and G.J.H. Van Hoof, Theory and Practice of the European Convention on Human Rights, Kluger, 1990. The following book provides useful information on the Human Rights Act 1998: J. Wadham and H. Mountfield, Blackstone’s Guide to the Human Rights Act 1998, Blackstone Press, 1999.
Fiona Fairweather
6
The Rights of Suspects
This chapter deals with the rights of suspects up to the point when they are either released by the police without charge, bailed by the police or brought before a court. Other people – customs and excise officers, for example (see p. 87) – have similar powers, but the differences are not described here. In particular this chapter deals with: • • • • • • •
Police powers to stop and search persons and vehicles (without arrest) Police powers to search premises Police powers of arrest Police detention The rights of suspects in the police station Special powers under the Prevention of Terrorism legislation Further information
This chapter uses expressions such as ‘reasonable grounds’ or ‘reasonable suspicion’. The use of the word ‘reasonable’ implies that what is or is not reasonable is a decision for the courts. The fact that the police believe that they have reasonable suspicion, for instance, is not sufficient. It implies, therefore, an objective test and not a subjective one. Unfortunately, it is difficult to define it more specifically. Most of the police powers and corresponding rights for suspects are to be found in the Police and Criminal Evidence Act 1984 (PACE) and in the Codes of Practice issued by the Home Secretary under PACE and approved by Parliament. PACE was the product of years of discussion about police powers. It was based on the recommendations in the Report of the Royal Commission on Criminal Procedure (published in 1981 – HMSO Cmnd 8092), a body which had been directed in its terms of reference to strike a balance between the interests of the community on the one hand and the rights and liberties of the individual suspect on the other. Another Royal Commission was set up in March 1991 – this time on Criminal Justice – and some of its recommendations, along with other ideas suggested by the Government, were enacted in the Criminal Justice and Public Order Act 1994, which made some significant changes to the 1984 Act. The most notable of these changes is the effective curtailment of the suspect’s ‘right of silence’ (see p. 164). The Codes of Practice are now in their fourth edition. The police have special powers under the Prevention of Terrorism legislation and these are described below on pp. 168. If any of these police powers are abused: • • •
The abuse may make evidence obtained inadmissible in court. You may make an official police complaint (see p. 114). You may be able to sue the police (see p. 118). 142
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The Articles of the Convention particularly relevant here and will be referred to throughout the chapter are: Article 2: the right to life Article 3: prohibition of torture Article 5: the right to liberty and security Article 6: the right to a fair trial Article 8: the right to respect for private and family life.
6.1
POLICE POWERS TO STOP AND SEARCH PERSONS AND VEHICLES (WITHOUT ARREST)
Part 1 of the Police and Criminal Evidence Act (PACE) empowers any constable acting with reasonable grounds for suspicion to stop, detain and search you or your vehicle, or anything in or on your vehicle for certain items, which may be seized. The provisions of the Act are supplemented by a Code of Practice on stop and search. The contents of the Code must be observed by the police, although the remedy for failure to observe it is usually to make a police complaint (or, if prosecuted, to raise an objection in court) rather than to take legal proceedings against the police. PACE also provides some safeguards for other police powers of search. These relate, for instance, to drugs (on reasonable suspicion of being in unlawful possession), evidence of liability to arrest under the Prevention of Terrorism legislation, suspected possession of firearms, animal conservation and evidence of offences under the Sporting Events (Control of Alcohol, etc.) Act 1985. The safeguards also apply in a limited way to the controversial powers of stop and search introduced by the Criminal Justice and Public Order Act 1994 when it is feared that an incident involving serious violence may take place (see below p. 146). For search powers on arrest, see p. 150. The police do not have general powers, apart from those specified in a statute, to stop and search unless you consent. You should ask the police officer to explain on what basis they are searching you (see below p. 145). Stolen or prohibited articles or knives The power to stop and search in PACE enables a constable to search for stolen or ‘prohibited articles’ or knives (except short-bladed penknives). PACE defines two categories of prohibited article: 1. An offensive weapon. 2. An article made or adapted for use in connection with one of a list of offences including burglary, theft, taking a conveyance without authority (or being carried in one) and obtaining property by deception. Virtually any article could come within this second definition but there would have to be some evidence of the use of the article or the intention of the person making, adapting or carrying it, otherwise a constable would not have reasonable grounds to search.
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Where the search may take place The PACE power of stop and search may be used by the police in most public and some private places. In law the power is limited to one of the following types of place: •
A place to which, at the time of the proposed stop and search, the public (or any section of the public) has access as a matter of legal right or because there is permission.
•
Any place (other than a dwelling) to which people have ready access at the time of the proposed stop and search.
These categories are obviously very wide and can include private property, for example, including front gardens and car parks. Whether you have ‘ready access’ might depend on whether a gate or door is locked, or whether a plot of land is fenced. However, a constable may not search you or your vehicle if you are on land which is used for the purpose of a dwelling, without having reasonable grounds for believing that you do not reside in the dwelling and are not in the place with the express or implied permission of a person who does reside in the dwelling. There is clearly a heavy duty on the constable in such cases, since the reasonable grounds must be justified objectively. These provisions should protect people behaving normally: window cleaners, post and milk deliverers and casual visitors. Reasonable grounds for suspicion The power of stop and search under PACE can only be exercised if the constable has reasonable grounds for suspecting that stolen or prohibited articles or knives will be found. The Code of Practice elaborates this requirement. There must be some concrete basis for the officer’s belief, related to you personally, which can be considered and evaluated by an objective third person. Mere suspicion based on hunch or instinct might justify observation but cannot justify a search. Reasonable grounds for suspicion cannot be based on attitudes or prejudices towards certain types of people, such as membership of a group within which offenders of a certain kind are relatively common (for example, young football fans). Nor can it be based on your skin colour, age, hairstyle, mode of dress or previous convictions for possessing an unlawful article. However, where there is reliable information that there is a gang who carry knives or weapons or controlled drugs and wear distinctive clothing or other identification, the members may be identified by that means. Stopping and detaining Any police officer, whether or not in uniform, may search you personally, but usually only a constable in uniform may stop a vehicle. A police officer may detain you or your vehicle for a search, but not in order to find grounds to justify a search. The reasonable grounds must already exist. The detention may only last for as long as it is reasonably required to permit a search to be carried out at the place of detention or nearby. You cannot be compelled to remain with your vehicle while the vehicle is searched, but you may wish to do so. Police officers have other powers to stop a vehicle, for example, to check whether it is roadworthy or stolen, but not to search it.
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Searching In carrying out a search the police may not force you (but may request you) to remove any clothing in public (even if the street is empty) other than an outer coat, jacket or gloves. A more thorough search, involving the removal for instance of a hat or shoes, or a strip search (but not an intimate search: see below) may take place in private, but it must be near to where you were stopped. Thus it could take place, for example, in a police van. No search involving exposure of intimate parts of the body may take place in a police van. The Code states that such searches must be by a police officer of your sex and must be in the absence of anyone of the opposite sex, unless you specifically request otherwise. The power to search a vehicle includes a power to search anything in or on it. If an unattended vehicle is searched, a notice to this effect must be left behind (inside the vehicle if reasonably practicable) stating the police station to which the constable is attached, that any claims for compensation should be made to that police station, and that you are entitled to a copy of the search record if requested within twelve months of the search. A constable may use reasonable force, if necessary, in the detention and conduct of the search, but force can only be necessary if you are first given the opportunity to co-operate and refuse. A constable who discovers an article reasonably suspected to be stolen or prohibited may seize it. It should be noted that the safeguards in PACE and in the Code of Practice do not apply to the routine searching of those entering sports grounds or other premises with their consent or as a condition of entry. Likewise, nothing in PACE or in the Code affects the ability of an officer to search you in the street on a voluntary basis provided that you are capable of understanding to what it is you are consenting. Juveniles and people suffering from a mental handicap or disorder and others who appear not to be capable of giving an informed consent should not be subject to a voluntary search. Information to be given A constable contemplating a search under any power to search (before or without arrest) must take reasonable steps to bring the following to your attention: • • • • •
If the constable is not in uniform, proof that he or she is a constable, which the Code says must be by showing a warrant card. The constable’s name and police station. The object of the proposed search. The constable’s grounds for proposing to search. The availability of a search record (see below) if it is practicable to make one.
The search may not be commenced until the constable gives you such information, and the information must be given even if not requested. Search records A constable who has carried out a search under any power to search (without or before making an arrest) must make a written record on the spot, or later if that is impracticable, unless it is totally impracticable to make a record at all because of the numbers involved or for some other operational reason.
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The Code requires the search record to include your name, or if the police do not know your name, a description of you and a note of your ethnic origin. The record must identify the person making it and state the object of the search, the grounds for making it, the date, time and place, whether anything – and if so what – was found, and whether any – and if so what – injury or damage resulted from the search. You are entitled to a copy of any record made, on request, within twelve months of the date of the search. Roadblocks Police powers to set up roadblocks (referred to in section 4 of PACE as roadchecks) do not derive from PACE but from other sources: road traffic legislation (section 163 of the Road Traffic Act 1988) and case law. If a roadblock is for certain purposes, PACE provides that the police must follow certain procedures. Search powers when an incident involving serious violence may take place Under the Criminal Justice and Public Order Act 1994 (as amended) a police officer of the rank of inspector or above may issue a written authorisation for additional search powers, relating to pedestrians and vehicles, on the basis of a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons in the area without good reason. The powers will be limited to a specified locality and will only be temporary (a maximum of 48 hours at a time). Where an authorisation has been issued any constable in uniform may stop and search any pedestrian or anything carried by the pedestrian, or any vehicle or anyone in it, for offensive weapons and dangerous instruments and may seize any such items which are found. In addition, the police have powers to demand the removal of face coverings if the police reasonably believe that the covering is being worn to hide your identity. They can also seize these face coverings (or any others they find when searching for other things). Where the covering is worn for religious reasons the police have to be sensitive about the removal and it should not be removed in public and, if possible, not in the presence of anyone of the opposite sex. Very importantly, under these powers, the police do not need to have any suspicion that they will find the items for which they may search. Code A applies (but not the provisions on reasonable suspicion) and the provisions on where searches may take place and the minimisation of embarrassment are particularly significant. It is unclear whether these powers to stop and search may be exercised on private premises. The stops and searches are subject to the same safeguards concerning provision of information, the nature of the search and record keeping as the powers under the 1984 Act described above. In addition, a pedestrian or driver of a vehicle who has been stopped is entitled to a written statement to that effect if an application is made within twelve months. Failure to stop, or to remove an item worn by you, when required to do so under these new powers, is a summary offence, with a maximum sentence of imprisonment of one month. In addition, it would of course amount to an offence of obstructing a police officer in the exercise of his or her duty. These powers, under the Criminal Justice and Public Order Act 1994 (as amended), to search anyone in a particular locality without any reasonable suspicion in relation to that person, are almost certainly (like corresponding provisions under
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the Terrorism legislation) in breach of Article 5(1)(c) (the right to liberty and security) since detention should only be on the basis of a reasonable suspicion. ‘Statutory undertakers’ – other police forces ‘Statutory undertakers’ are bodies authorised by statute to carry on a railway, transport, dock or harbour undertaking, the larger of which employ their own police forces (for example, the British Transport Police) whose members have the powers of constables within a geographically limited area. Members of these forces have many of the same powers as members of regular police forces, subject to certain limitations. These are not the same as private security organisations, which enjoy no special ‘policing’ powers. A constable employed by a statutory undertaker may stop, detain and search any vehicle (but not a person) before it leaves a goods area on the premises of the statutory body. Such stops are carried out routinely and need not be justified by any suspicion nor recorded. There is no statutory limitation on what may be searched for and the Code of Practice does not apply to these searches. The Ministry of Defence has its own police force, who have the same powers as civilian police officers.
6.2
POLICE POWERS TO SEARCH PREMISES
The police have powers to enter and search your premises for many reasons. Some of these powers are set out in the Police and Criminal Evidence Act 1984 (PACE), but the police also have power to enter and search under other statutes, for instance the Theft Act 1968. It should be noted that the police do not always need to have a search warrant, although they must always have a reason for the search. There is a Code of Practice stating how the police should conduct searches. (For what you should do if the police do not follow the Code, see p. 114.) The Articles of the Convention which are most likely to be of relevance here are Article 8: the right to respect for private and family life, and Article 10: freedom of expression. Search with your consent The police may search your premises if you consent. However, the Code of Practice on searching premises provides that, before seeking your consent, the officer in charge should state the purpose of the proposed search, inform you that you are not obliged to consent and inform you that anything seized may be used in evidence. For the search to be lawful you must consent in writing. If you live in rented accommodation, the police should not search the premises solely on the basis of your landlord’s consent unless you are unavailable and the matter is urgent. Search of premises under a magistrate’s warrant Magistrates have the power to issue search warrants under many Acts of Parliament – for example, to search for stolen goods under the Theft Act 1968, Misuse of Drugs Act 1971 and for racially inflammatory material under the Public Order Act 1986. More importantly, they have a power under the Police and Criminal Evidence Act to issue a warrant authorising the police to enter and search premises for evidence of a serious arrestable offence (see p. 153). Magistrates should issue warrants under
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this section only if there are reasonable grounds for believing that the police will not be able to obtain access to the evidence without a warrant, for example, if consent will not be forthcoming. In addition, magistrates should be satisfied that there are reasonable grounds for believing: •
The material is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence.
•
That it is likely to be ‘relevant evidence’, that is, anything which would be admissible as evidence at a trial.
•
That it does not consist of or include items subject to legal privilege, ‘excluded material’ or ‘special procedure material’ (see below).
This power clearly applies to premises owned or occupied by someone who is not implicated in the alleged offence. The Police Act 1997 will, for the first time, give statutory authority for police ‘bugging’ and will allow the police with the prior authority of a Commissioner (a serving or retired High Court Judge) to go on to private property to plant surveillance devices and probably also to search and seize evidence. In order to use such powers the police will have to be satisfied that the action is necessary because it is likely to be of substantial value in the prevention or detection of serious crime, and that what the action seeks to achieve cannot reasonably be achieved by other means. The police action will be assessed very carefully against the right to privacy in Article 8 because clearly these powers are extremely invasive of privacy. The protections afforded by the Police Act itself may be inadequate under Article 8, as the authorisation is only from a Commissioner and, for instance, lawyer–client communications are not immune. See also the Regulation of Investigatory Powers Bill (Chapter 3). Material which has special safeguards PACE gives special protection from search (but not necessarily from seizure) to some types of material felt to be sensitive. These categories are ‘excluded material’, ‘special procedure material’ and legally privileged material. Excluded material There are three kinds of ‘excluded material’: 1. Personal records – examples of material which should normally be excluded are medical and psychiatric records, records kept by priests, the Samaritans, possibly school and college records, records of advice given by law centres and Citizens’ Advice Bureaux. 2. Human tissue or tissue fluid. 3. ‘Journalistic’ material – that is, material acquired or created for the purposes of journalism. There is no need for the holder of such material to be a professional journalist. In order to qualify as ‘excluded material’ the items must have been held in confidence. This is a concept which can be legally complex.
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The police cannot easily obtain a warrant to search for this material. They must follow a set procedure which will normally involve a hearing before a judge who will decide, amongst other things, whether it would be in the public interest to allow the police access to the material. This may involve, for instance, considering the rights of the press to freedom of expression under Article 10, if the police were to make an application for access to photographs. Only the person in possession of the material, who will not necessarily be the suspect, and the police, have a right to make representations at the hearing. If the judge permits it, however, the suspect may make representations. If the judge considers it appropriate, he or she will make an order compelling production of the material to the police. If the person in possession fails to produce the material, he or she may be in contempt of court (see p. 52) and the judge may be able to issue a warrant to the police to search his or her premises. In some circumstances, if the police can convince the judge that the situation is urgent, they may be able to obtain a warrant from the judge without the party in possession of the material knowing. Special procedure material There are two categories of special procedure material: 1. Material which is not excluded material but is held in confidence by certain persons. 2. Journalistic material which is not excluded material, either because it is not held in confidence or does not consist of documents. Examples of special procedure material are company accounts or stock records held on behalf of a client by a bank, solicitor or accountant. The procedure enabling the police to obtain this material is broadly the same as for ‘excluded material’ (see above). Legally privileged material The definition of items subject to legal privilege is crucial, since these items are exempt from most powers of search. The police have no power at all to seize material which they have reasonable grounds for believing to be legally privileged. There are three categories of legally privileged material: 1. Communications to do with giving legal advice. 2. Communications to do with legal proceedings. 3. Items connected with either of the above communications. In each category the definition hinges on the term ‘professional legal adviser’, which clearly includes barristers, solicitors and solicitors’ clerks. There is no requirement that the adviser should work for a firm of solicitors and, therefore, the adviser may come from a law or advice centre. Although the advice of an unqualified person will not be privileged unless acting as an agent for a solicitor or barrister, it will in most cases be ‘excluded material’. This would not protect it from seizure, however (see below).
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Items held with the intention of furthering a criminal purpose are not legally privileged, but clearly a letter from a solicitor advising a client of potential criminal liability if a particular course of conduct were pursued would be privileged. Entry and search without a search warrant The police are given powers to enter premises without a warrant by many Acts of Parliament. For example, under the Gaming Act 1968 they have power to enter licensed premises to carry out inspections. Other powers include searches for drugs under the Misuse of Drugs Act 1971, and for firearms under the Firearms Act 1968. In addition, they may have the right to enter premises without a warrant to deal with or prevent a breach of the peace (see p. 29). The Police and Criminal Evidence Act provides them with several other powers: •
To execute a warrant of arrest or commitment.
•
To arrest someone for an arrestable offence.
•
To arrest someone for various offences under the Public Order Acts 1936 and 1986 (such as riot, violent disorder, affray, threatening behaviour and disorderly conduct); the Criminal Law Act 1977 (offences relating to trespass) and the Criminal Justice and Public Order Act 1994 (failure to comply with an interim possession order).
•
To recapture a person who has escaped from lawful custody.
•
To save life or limb or prevent serious damage to property.
It has already been held by the Commission that the police have violated Article 8 (the right to privacy) in connection with an entry to premises to prevent a breach of the peace (above). There had been no need for the police to enter as they had if they had considered the situation appropriately: their entry was disproportionate to the legitimate aim pursued. The police officer need not be in uniform unless entering in connection with the Public Order Acts or the Criminal Law Act. He or she has a power to search the premises, but this is only to the extent that is reasonably required for the purposes of entry. Any further search may be unlawful and may be the subject of a complaint or civil action (see Chapter 5). Search of premises on arrest The Police and Criminal Evidence Act 1984 (PACE) provides the police with clear authority to enter and search premises after an arrest. If you have been arrested for an ‘arrestable offence’ (see above), the police may search premises occupied or controlled by you for evidence of that offence or of some other arrestable offence connected with or similar to that offence. The police officer conducting this search should normally have with him or her written authorisation on the Notice of Powers and Rights (see below) for the search by an officer of at least the rank of inspector. If you have been arrested for any offence (not just an ‘arrestable offence’), the police may enter and search any premises you were in at the time of the arrest or immediately before it for evidence of the offence for which you were arrested. Again, in both cases the police are only permitted to search to the extent reasonably
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required to find the evidence sought and if the search is excessive you may have the remedy of a police complaint or a civil action against the police. Conduct of searches of premises The conduct of searches is governed by PACE and the Code of Practice (see p. 142). A search warrant may authorise anyone to accompany the constable who is executing it. Entry and search must be within one month from the date of the warrant’s issue. You have a right to see the warrant and to be supplied with a copy. You also have a right, unless it is impracticable, to a notice in the standard form setting out police powers and occupiers’ rights (Notice of Rights and Powers). You are also entitled to see the police officer’s warrant card as a means of identification if he or she is not in uniform and in any case, the police officer should identify himor herself. If you are not present but someone else who appears to the police to be in charge of the premises is available, then they have the same rights as you. A warrant authorises entry on one occasion only. The police have a right to use force if necessary to effect an entry or search, but only such force as is reasonable. All searches should take place at a reasonable hour, unless the constable conducting the search believes that the purpose of the search would be frustrated by waiting until such time. You are entitled to have a friend or neighbour to witness a search (although you do not have a right to delay a search unreasonably while you find a witness) unless the officer in charge has reasonable grounds for feeling this would seriously hinder the investigation. The warrant must be endorsed afterwards by the police to show the following: •
Whether articles or persons specified in the warrant were found.
•
Whether any other articles were seized.
•
The date and time of the search’s execution.
•
The names of the officers who executed it, except where the investigations are linked to terrorism in which case warrant numbers and duty stations should be shown.
•
Whether a copy of the warrant, together with a notice of powers and rights, was handed to the occupier or left at the premises.
The occupier of the premises that have been searched has a right to inspect the search warrant (which should have been returned to the Magistrates’ Court) within twelve months. Seizure of property When the police are lawfully on any premises (which includes being there with your consent) they have wide powers to seize anything on the premises, including a vehicle, if they have reasonable grounds for believing that: • • •
It has been obtained as a consequence of the commission of an offence. It is evidence in relation to any offence. It is necessary to seize it in order to prevent it being seized, lost or damaged, altered or destroyed.
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‘Anything’ includes fingerprints. The police may require computerised information which comes within these categories to be produced in a form in which they can remove it. ‘Excluded material’ and ‘special procedure material’ (see above) are not protected from seizure once the police are lawfully on the premises. No power of seizure, however, authorises the seizure of material reasonably believed by a constable to be legally privileged. If you request it, the police must provide a record of seized items within a reasonable time. Lawfully seized articles may be retained so long as is necessary, for example, for production in court, but the articles cannot be kept for use as evidence in a trial or for forensic examination if a photograph or copy would suffice.
6.3
POLICE POWERS OF ARREST
The police may arrest with or without a warrant. There are many powers of arrest under a warrant issued by a justice of the peace or judge, and the rules governing each of them is set out in the statute creating the power. This section deals with police powers of arrest without a warrant. Article 5 of the Convention (the right to liberty and security) is the Article most likely to be violated here. The Article permits arrest on several grounds, the most relevant here being to prevent the commission of offences. This will be closely scrutinised by the court, however, as it does not for instance authorise any general powers of arrest to maintain order. Powers of arrest without a warrant are governed by the Police and Criminal Evidence Act 1984 and can be grouped into the following categories: • • • • • • • •
Arrest at common law for breach of the peace. Summary arrest for an ‘arrestable offence’. Arrest subject to conditions. Arrest under specific powers. Arrest for the purpose of fingerprinting. Arrest for failure to answer police bail. Arrest to have a sample taken. Arrest of a young person for breaking conditions of remand.
Arrest at common law for breach of the peace A breach of the peace is not in itself a criminal offence, but the police and any other person have a power of arrest where there are reasonable grounds for believing a breach of the peace is taking place or is imminent. The Court of Appeal has defined a breach of the peace as being ‘an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm being done’ (R v. Howell). This power of arrest will, of course, have to be closely scrutinised in connection with Article 5 above. It has already been held in the case of peaceful protests that although it is lawful under the Convention for the police to arrest someone if they believe that person’s behaviour might provoke others to violence, where a protest is in fact peaceful, the arrest will violate Article 10 (the right to freedom of expression). Article 11 (the right to freedom of assembly and association) should also be considered in such circumstances.
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Summary arrest for ‘arrestable offences’ PACE uses the phrase ‘summary arrest’ to mean arrest without a warrant and lists the arrestable offences for which the police can arrest without a warrant. The following are arrestable offences: •
Offences for which the sentence is fixed by law (including murder – life imprisonment).
•
Offences carrying a maximum sentence of imprisonment for five years or more (these include serious offences of violence and dishonesty, but also some relatively minor offences such as shoplifting and minor criminal damage).
•
Various statutory offences, including offences under the Customs and Excise Management Act 1979, the Official Secrets Acts 1920 and 1989, the Sexual Offences Act 1956, the Theft Act 1968 (including taking a motor vehicle without the consent of the owner and going equipped for theft), the Football (Offences) Act 1991, the Public Order Act 1986, Criminal Justice and Public Order Act 1994, the Protection from Harassment Act 1997 and the Crime and Disorder Act 1998.
This power of arrest may be carried out by anyone – either a police officer or any other person (a citizen’s arrest) – in the following circumstances: •
Anyone actually committing or whom he or she reasonably suspects to be committing an arrestable offence.
•
Where an arrestable offence has been committed, anyone who is guilty or whom he or she reasonably suspects to be guilty of the offence.
A police officer may arrest in the same circumstances as any person (above), and also: •
Anyone who is or whom he or she reasonably suspects to be about to commit an arrestable offence.
•
Where he or she reasonably suspects an arrestable offence has been committed, anyone whom he or she reasonably suspects to be guilty of the offence.
‘Serious arrestable offences’ There is a further concept in PACE described as the ‘serious arrestable offence’. The definition of a ‘serious arrestable offence’ does not affect the powers of arrest, but the more draconian police powers under PACE relating to the detention of a subject can be invoked where the offence is a ‘serious arrestable offence’ – such as detention without charge for up to 96 hours, denial of access to a solicitor and delaying notification of detention to a friend for up to 36 hours, the authorisation of roadchecks, and so on. The following are serious arrestable offences: •
Treason, murder, manslaughter, rape, kidnapping, incest or intercourse with a girl under 13, buggery with a boy under 16 or a person who has not consented, indecent assault constituting gross indecency, causing an explosion likely to endanger life or property, certain offences under the
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Firearms Act 1968, causing death by dangerous driving, hostage taking, torture and many drug-related offences, ship hijacking and Channel Tunnel train hijacking, taking indecent photographs of children, publication of obscene matter. •
Any other arrestable offence if its commission has led or is intended to, is likely or threatened to lead to any of the following consequences: serious harm to the security of the State or to public order, serious interference with the administration of justice or with the investigation of offences, the death or serious injury (including disease and impairment) of any person, or a substantial financial gain or serious financial loss to any person.
•
For the purposes of denial of access to a solicitor and notification of detention, certain offences under the prevention of terrorism legislation.
Arrest subject to conditions Often, in a minor case, an arrest should be unnecessary. The alleged offender can be summonsed by post to attend court on a particular date and there is no need to go to a police station at all. However, PACE also gives the police a power of arrest for all offences, no matter how trivial, petty or minor, which do not carry a power of arrest under the previously discussed powers. The power of arrest can only be used where: •
A constable has reasonable grounds for suspecting that you have committed or attempted, or are committing or attempting to commit an offence (but not where it is suspected that an offence will be committed in the future).
•
It appears to the constable that service of a summons is impracticable or inappropriate because any of the general arrest conditions (see below) is satisfied.
Thus, the assumption is that the police should proceed by way of summons for minor offences and the power of arrest ought to be used only if this is impracticable or inappropriate. The impracticability or inappropriateness of the summons must arise from one of the general arrest conditions, which are as follows: Name and address •
If your name is unknown to, and cannot be readily ascertained by, the police. You cannot be made to wait while your name is ascertained or confirmed, but might agree to do so to avoid being arrested.
•
If the police have reasonable grounds for doubting that you have given your real name.
•
If you have failed to furnish a satisfactory address for the service of a summons (that is, one at which, it appears to the constable, you will be for a sufficiently long period to be served or at which some other specified persons will accept service of a summons).
•
If the police have reasonable grounds for doubting whether an address furnished is satisfactory.
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Prevention •
If the police have reasonable grounds for believing that an arrest is necessary to prevent you causing physical injury to yourself or to somebody else, or suffering physical injury, or causing loss of or damage to property (including your own), or committing an offence against public decency, or causing an unlawful obstruction of the highway (see p. 27).
Protection •
If the police have reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person (undefined) from you.
If you have been arrested under this power and are on the way to the police station, you must be released if a constable is satisfied that there are no longer any grounds for keeping you under arrest – for example, if you suddenly find some kind of identification or if there is no longer any risk of damage or injury. Arrest under specific powers The specific statutory powers are listed in PACE and some subsequent legislation and relate mainly to the armed forces, animals, absconders, children and offences under legislation concerning immigration, emergency powers, public order, trespass and the prevention of terrorism. They are not subject to the general arrest conditions (set out above), but many of them carry other conditions (for example, that the arresting constable must be in uniform). These powers of arrest include, for example, powers under the Road Traffic Act 1988 to arrest motorists for drink-driving offences. Arrest for the purpose of fingerprinting This power of arrest is designed to apply to somebody who appears at court after receiving a summons and who has not been taken to a police station under arrest. A constable may make an arrest without a warrant in order to have fingerprints taken at a police station. The following conditions must apply: •
You must have been convicted of a recordable offence (that is, most offences other than trivial or traffic offences).
•
You must not have been fingerprinted in the course of the police investigation (or in connection with any matter since conviction).
•
You must have failed to comply, within seven days, with the requirement made within one month of the date of conviction to attend a police station for fingerprinting.
Arrest for failure to answer police bail Under a power inserted into PACE by the Criminal Justice and Public Order Act 1994 the police can arrest you without warrant if you are released on bail from police detention, subject to a duty to attend at a police station and you fail to attend at the appointed time. You must be taken as soon as practicable after the arrest to the police station to which you should have reported.
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Arrest to have a sample taken Under another new power inserted into PACE by the Criminal Justice and Public Order Act 1994 the police may arrest you in order to take samples which could have been taken whilst you were in detention for a recordable offence (see below p. 166). The following conditions must apply: •
You must either have been charged or convicted of the offence and either not have had a sample taken or the sample was unsuitable or insufficient.
•
You must have failed to comply with a request to attend a police station in order to have a sample taken.
Arrest of a young person for breaking conditions of remand The Criminal Justice and Public Order Act 1994 inserted a provision into the Children and Young Persons Act 1969 whereby the police may arrest you in the following circumstances: •
You are a person who has been remanded or committed to local authority care.
•
Conditions under the latter legislation have been imposed.
•
The police have reasonable grounds for believing you have broken any of the conditions.
You must be taken as soon as practicable before a magistrate and in any event within 24 hours. The magistrate must decide whether a condition has been broken. If it has, then the magistrate must remand you and the Children and Young Persons Act 1969 applies as though you were charged with or convicted of the offence for which the original remand or committal had been made. If a condition has not been broken, then the remand or committal continues subject to the same conditions as previously. Information to be given on arrest An arrest is unlawful unless you are told that you are under arrest and the grounds for the arrest at the time. Such an unlawful arrest will become lawful when the police tell you the reason for the arrest. This information must be given at the time of the arrest or as soon as is practicable afterwards. The information need not be given if it was not reasonably practicable to do so because of your escape from arrest before it could be given. If you attend voluntarily at a police station (or any other place with a constable) without having been arrested you are entitled to leave at will unless placed under arrest. Arrest other than at a police station After arrest, a constable must take you to a police station as soon as is practicable (subject to certain exceptions and the power to release you en route). However, a constable may delay taking you to a police station if your presence elsewhere is necessary in order to carry out such investigations as it is reasonable to carry out immediately, such as a search of premises.
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Use of force Under PACE the police are allowed to use reasonable force when exercising their powers. Under Article 2 however (the right to life) only the use of force which is ‘absolutely necessary’ is permitted and so use of any greater force may be a violation of this Article. Search of a person on arrest (other than at a police station) A police officer may search you to the extent reasonably required if there are reasonable grounds for believing that: •
You may present a danger to yourself or to somebody else.
•
You may have concealed on you anything which might be used to assist an escape from lawful custody or which might be evidence relating to any offence.
There are similar restrictions on searching in public to those discussed above (see p. 145).
6.4
POLICE DETENTION
The circumstances in which an arrested person may be kept in police detention are set out in the Police and Criminal Evidence Act 1984. The detention is unlawful unless the provisions of PACE are complied with. A key figure in the scheme is the ‘custody officer’, a police officer of at least the rank of sergeant. Normally, the period of detention without charge should not exceed 24 hours, although in some cases the maximum period, with extensions, is as long as 96 hours. There are a number of stages at which continuation of custody must be authorised – in the early stages by police officers and in the later stages by magistrates. Provision is made for the appointment of custody officers and the performance by them (and any other constable in charge of the prisoner) of important duties. In particular, if the custody officer becomes aware at any time (perhaps after representations from a solicitor) that the grounds for the detention have ceased to apply and that there are no other grounds for continued detention, it is the duty of the custody officer to order your immediate release from custody. Conversely, you may not be released except on the authority of a custody officer at the police station where detention was last authorised. The custody officer is also responsible for keeping a ‘custody record’ in which all information required to be lodged by PACE and the Codes of Practice is recorded. You or your legal representative are entitled to a copy of this very important document on leaving police detention or appearing before the court. This entitlement lasts for twelve months after release. On arrival at or after arrest at the police station The custody officer must, as soon as is practicable after your arrival at the police station or answering to bail (or after arrest at the police station), determine whether there is sufficient evidence to charge you with the offence for which the arrest was made. He or she may detain you for as long as is necessary to make such a determination which includes waiting for others arrested with you to be interviewed. If
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the custody officer decides that there is sufficient evidence to charge you, then you should be charged and must be released unless one of the post-charge detention conditions applies (see p. 160). Detention without charge If the custody officer decides that there is insufficient evidence to charge you, then you must be released, unless he or she has reasonable grounds for believing that detention without charge is necessary to secure or preserve evidence relating to an offence for which you are under arrest, or to obtain such evidence by questioning you. In such a case he or she may order further police detention, but the grounds for the detention must be recorded in writing on the custody record. You must be given these reasons. Detention without charge cannot be authorised in your own interest, or to prevent the repetition or continuation of an offence, or to authorise police ‘fishing trips’ (since the evidence must relate to an offence for which you are under arrest). If the custody officer has reasonable grounds to believe that you will not answer questions (for example, because your solicitor has said so), detention cannot be necessary to obtain evidence by questioning and detention for questioning in such circumstances may well be unlawful. There are special rules relating to those who appear to be younger than 17. The Code of Practice on detention, treatment and questioning prohibits the placing of any juvenile in police cells, unless no other secure accommodation or practicable supervision is available. In any event, the juvenile may not be placed in a cell with an adult. There are also rules as to the identifying of and giving information to those responsible for the juvenile’s welfare. A juvenile who is not released after being charged should, if practicable, be transferred to the care of a local authority. Review of detention Periodic reviews of detention must be carried out for all persons in police custody pending the investigation of an offence. If you have been charged, the review is carried out by the custody officer. If you have not been charged, it is carried out by an officer of at least the rank of inspector who has not at any stage been directly involved with the investigation. The general rule is that the first review must be not later than six hours after the detention was first authorised, and subsequent reviews must take place at intervals of not more than nine hours. Before deciding whether to authorise your detention, the review officer must give you (unless you are asleep) and your solicitor (or the duty solicitor) an opportunity to make oral or written representations. Representations by a solicitor may be made over the telephone. The representations might relate, for example, to the amount of evidence already obtained or to your refusal to answer questions, these matters being connected with the grounds on which continued detention can be authorised. The detention clock PACE limits the length of time for which you can remain in police detention. Such limitations are based on the passage of time from a particular point. The general rule is that the time starts on your arrival at the first police station to which you are taken after arrest. If arrest takes place at the police station the time starts when you are arrested. There may be some delay between arrest and arrival
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caused by necessary investigation, but there is a general provision that an arrested person must be taken to a police station as soon as is practicable after arrest. There are special rules if the arrest takes place outside England and Wales or in a different police area from the one in which you are questioned. You should not be interviewed except at a police station, unless there are special circumstances, for instance, that a delay may lead to interference with evidence or harm to other people. Detention limits and police extensions The general rule is that you may not be kept in police detention for more than 24 hours without being charged. This period can be extended by a maximum of twelve hours on the authority of an officer of the rank of superintendent or above after giving opportunity for representations to be made. The extension can only be authorised where: •
The officer has reasonable grounds for believing that the offence is a serious arrestable offence.
•
The investigation is being conducted diligently and expeditiously.
•
Detention without charge is necessary to secure or preserve evidence of an offence for which you are under arrest or to obtain evidence by questioning.
The authorisation cannot last beyond 36 hours from when the detention clock began. Detention limits and magistrates’ extensions You must be released by the end of 36 hours from the starting point, unless an application is made to a Magistrates’ Court sitting in private. The application is made on oath by a police officer and supported by a written ‘information’, which must state the nature of the offence, the general nature of the evidence for the arrest, what enquiries have been made and are proposed, and the reason for believing the continued detention is necessary. You are entitled to a copy of the information and to be legally represented (you can have an adjournment to obtain legal representation). The police officer will be at court to be cross-examined and representations may be made to the magistrate(s). These might be directed, for example, towards any delay in the investigation or in making the application, whether there is a serious arrestable offence involved, whether detention is necessary, and whether there is sufficient evidence for you to be charged. The court may only authorise further detention if: •
The offence is a serious arrestable offence.
•
The investigation is being conducted diligently and expeditiously. And
•
Further detention is necessary to secure or preserve evidence relating to the offence or to obtain such evidence by questioning you.
The court may authorise further detention for up to 36 hours from the time that the application is granted. A further extension of up to 36 hours may be granted if the same procedure is followed. The total maximum period of detention is 96 hours from
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the original starting point (except under the Prevention of Terrorism Act where the maximum is currently seven days, but see below p. 169). Detention after charge After you have been charged, the custody officer must order your release unless one of the following post-charge detention conditions applies: •
Your name or address is unknown or doubted.
•
Detention is necessary to prevent your committing an offence (if you were arrested for an imprisonable offence) or from causing physical injury to any other person or damaging property (if you were not arrested for an imprisonable offence).
•
Detention is necessary to prevent your failing to appear in court to answer bail.
•
Detention is necessary to prevent your interfering with the administration of justice or with the investigation of offences.
•
Detention is necessary for your own protection.
•
A juvenile needs to be detained in his or her own interest (this is additional to the other grounds that may apply equally to juveniles).
A person who has been detained after charge must be taken to court as soon as practicable and not later than the first sitting after charge. The police are now also able to impose bail conditions.
6.5
THE RIGHTS OF SUSPECTS IN THE POLICE STATION
The rights of suspects after arrest are contained principally in the Police and Criminal Evidence Act 1984 and in the Code of Practice on the Detention, Treatment and Questioning of Persons and the Code of Practice on Identification of Persons by the Police (Codes C and D). It is in this area that the provision of the Codes are most important. Any breaches by the police may result in disciplinary action against them and, if the breaches are sufficiently serious, any confession you make may not be admitted as evidence in a trial (see p. 142). The Codes contain detailed provisions governing the conditions of detention, for instance, on the right to legal advice and the right not to be held incommunicado, as well as on searches, exercise and medical treatment. The Codes also provide that if you are classed as a vulnerable person, for example, if you are mentally handicapped or a juvenile, an appropriate adult (not a police officer) should be present to look after your interests. So far as your questioning and treatment by the police in custody are concerned, Articles 3 (prohibition of torture, inhuman or degrading treatment), 6 (the right to a fair trial) and 8 (the right to privacy) have been and will continue to be very important, particularly when applying to the court to have evidence, usually confessions, excluded from your trial.
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Personal searches at the police station The custody officer (see p. 157) is under a duty to list all the property you have with you on your custody record. You may be searched, using reasonable force if necessary (see above p. 157, the same comments on ‘reasonable force’ when making an arrest apply here), if you refuse to co-operate, by a police officer of the same sex, and you should be told the reasons for the search. You are allowed to check the list of property and you should sign only if it is correct. Clothes and personal effects (not including cash) may be seized only if the custody officer believes you may use them to cause physical injury to yourself or to somebody else, to damage property, to interfere with evidence, to assist an escape, or if he or she has reasonable grounds for believing that they may be evidence relating to an offence. You should be given the reasons for the seizure. Strip searches A strip search may take place if the custody officer considers it necessary, but he or she has no power to authorise an intimate body search (see below). The courts have recognised that strip searches may be deeply humiliating and that the removal of a brassiere, for instance, would require considerable justification. No person of the opposite sex except for an ‘appropriate adult’ who has been specifically requested by the person being searched, may be present at such a search, nor anyone whose presence is unnecessary. Except in cases of urgency there must be two people present other than the person being searched, when the search involves exposure of intimate parts of the body. One of these may be the ‘appropriate adult’, if relevant. Reasons for a strip search and the results of the search must be recorded on the custody record. Intimate body searches An intimate body search consists of the physical examination of any one or more of a person’s bodily orifices, including the anus, vagina, ears and nose. The police can only carry out an intimate body search in limited circumstances. They can search you if a police officer of at least the rank of superintendent has reasonable grounds for believing that: •
You may have concealed on you something that you could use to cause physical injury to yourself or to others, and that you might so use it while you are in police detention or in the custody of a court.
•
You have concealed Class A drugs (such as heroin and cocaine, but not cannabis or amphetamines) on yourself and that you are in possession of the drugs either with intent to supply them to somebody else or with a view to committing a customs offence.
A search for drugs (Class A drugs only) may only be carried out by a registered medical practitioner or a registered nurse. It should only be carried out at a hospital, at a registered medical practitioner’s surgery or at some other place used for medical purposes. An intimate search for potentially harmful items should also be carried out by a doctor or nurse, but may be conducted by a police officer if an officer of at least the rank of superintendent believes that it is not practicable for it to be carried out by a doctor or nurse. The search may be carried out at a police station.
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In the case of all the above searches, Article 8 (the right to privacy) must be considered. Anything which goes further than that which is necessary for the prevention of disorder or crime would be in violation of the Article. The right to decent conditions The Code says that there should only be one person in each cell, but only ‘so far as is practicable’. Police cells must be adequately heated, cleaned, ventilated and lit. Bedding should be clean. Access to toilet and washing facilities must be provided. The police should check on persons in cells once an hour, or every half-hour on those who are drunk. At least two light meals and one main meal should be offered in any period of 24 hours. Brief outdoor exercise should be offered daily ‘if practicable’. For conditions for juveniles see above (p. 158). Article 3 (prohibition of torture, inhuman or degrading treatment) is of course relevant here. The more vulnerable the suspect (for example, a juvenile or someone who is mentally disordered) the more stringent the safeguards will have to be. The right to medical treatment A detained person is entitled to a medical examination by a police surgeon on request (but not for minor ailments – although the benefit of the doubt should be given to the suspect). He or she may also be examined by a GP of his or her own choice at his or her own expense. He or she is entitled to have medication where appropriate. The custody officer must also call the police surgeon if a detained person is injured, or appears to be suffering from physical illness or mental disorder, or otherwise appears to need medical attention. All of this must be recorded on the custody record and, when a doctor is called, he or she must also make a record. The right to legal advice If you are arrested and held at a police station or other premises you have a statutory right to consult a solicitor (if you wish) in private and free of charge at any time. A duty solicitor scheme is in operation at every police station in England and Wales, so that free telephone advice or a free visit from a solicitor is available. On arrest you should be informed by the custody officer, orally and in writing, of this right, as well as the right to have someone informed of the arrest (see below), and your right to consult the Codes of Practice, and that these are continuing rights – if you do not take advantage of them when offered you can do so at any time you are in the police station. The police must remind you of your right to see a solicitor at many points during your detention: for instance, before the beginning or recommencement of any interview or before a review. Access to legal advice may be delayed by the police, however, if you are detained for a ‘serious arrestable offence’ (see p. 153), a drug-trafficking offence or certain other specified offences where the police are attempting to recover property and you have not yet been charged with an offence for up to 36 hours from the relevant time or for up to 48 hours in the case of a person detained under the Prevention of Terrorism legislation. Delay may be authorised only by an officer of at least the rank of superintendent if he or she has reasonable grounds (which must be recorded in writing) for believing that the exercise of the right to legal advice would lead to any of the following:
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• • • •
163
Interference with evidence of a ‘serious arrestable offence’. Harm to others. The alerting of accomplices. Hindering the recovery of property.
There are further grounds where a person is detained under the Prevention of Terrorism legislation. Once the reason for authorising the delay ceases to exist, there may be no further delay in permitting access. Delays are rare and even then they often will not be justified. The Code provides that if you ask for legal advice you should not be interviewed until you have received it, unless: •
Delay is authorised (as above); or
•
An officer of at least the rank of superintendent reasonably believes that delay caused by waiting for a solicitor involves risk or harm to persons or property; or
•
This would unreasonably delay the investigation; or
•
The solicitor cannot or will not attend and you do not want to use the duty solicitor scheme or the duty solicitor is not available; or
•
You consent in writing or on tape to the interview going ahead.
You may consult your solicitor in person, on the telephone or in writing. If you are not allowed to see a solicitor, you should think very carefully indeed before answering any questions or making a statement. This is a very difficult decision considering the curtailment of the right of silence (see below). It should be noted that the right to have a solicitor present when being interviewed and also to communicate privately with a solicitor is viewed extremely seriously by the European Court of Human Rights and any unnecessary deprivation will be viewed as a violation of Article 6 (the right to a fair trial). The right not to be kept incommunicado If you are detained in a police station or other premises, you are entitled to have one friend, relative or person who is known to you or likely to take an interest in your welfare notified of your whereabouts as soon as is practicable, at public expense. The right is subject to the same delay as consultation with a solicitor (see above). You may exercise this right each time you are transferred to another police station. If the person cannot be contacted, you may try two others and after that the police have discretion as to whether you can try to contact any others. The police should caution you that what is said in any letter, call or message may be given in evidence, except that the police should not listen to a call or read a letter to a solicitor. With juveniles, the police have an additional duty to inform the person responsible for their welfare as soon as is practicable and to request their attendance at the police station. There are no provisions permitting delay. The conduct of interviews The conduct of interviews is covered by the Code of Practice. The overriding principle is that all persons in custody must be dealt with expeditiously and released as soon
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as the need for detention has ceased to apply. Except in very limited circumstances interviews should only take place in a police station. You should be told why you are being interviewed and the level of offence you are facing (that is, the police should not imply it is for a less serious offence than it really is). At the beginning of an interview at a police station the interviewing officer, after cautioning you, should put to you ‘any significant statement or silence’ which occurred before your arrival at the police station and you should be asked to confirm, deny or add to it. A ‘significant’ statement or silence is one which is capable of being used in evidence against the suspect or of giving rise to an ‘inference’ under the Criminal Justice and Public Order Act 1994 (see below). An accurate written record should be made of each interview (whether or not it takes place at a police station) unless the interview is tape-recorded. You have a right to see the interview record and you should sign it only if it records exactly what you have said. Virtually all interviews are now tape-recorded and procedures must follow the Code of Practice for tape-recording. You may find that your interview is videorecorded. But less formal interviews, which are subsequently written up by police officers in their notebooks, are still quite common and you usually have no chance to check the accuracy of their notes. The use of prolonged or oppressive questioning, or the denial of access to a solicitor, or other breaches of the Codes or the Act (so long as they are not merely technical) may render confessions inadmissible in evidence at court. There may, in addition, be a breach of Article 3 (see above), which can be used as part of the argument to have the confession excluded. Questioning should cease as soon as the interrogating officer believes that there is sufficient evidence for a prosecution to be brought successfully. You should then be taken before the custody officer and charged or informed that you may be prosecuted. Curtailment of the right of silence The ‘right of silence’ long considered the most fundamental right of a suspect, was curtailed by the Criminal Justice and Public Order Act 1994. The Act permits the court hearing the charge against you to draw such ‘inferences as appear proper’ from the fact of your silence in the following circumstances: •
Failure to mention a fact when questioned under caution before charge which is relied on in your defence.
•
Failure on being charged with an offence or informed of likely prosecution, to mention a fact which it would have been reasonable for you to mention at the time.
•
Failure or refusal to account for objects, substances or marks found on your person, in or on your clothing or otherwise in your possession, in the place where you were arrested.
•
Failure or refusal after your arrest to account for your presence at a place at or about the time the offence is alleged to have been committed.
No inferences may be drawn, however, if you were not given an opportunity to consult a solicitor, prior to being questioned, charged, informed of a prosecution, or requested to explain the matters referred to above.
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Before inferences can be drawn in the last two cases the officer should first have explained in ordinary language, amongst other things, the nature of the offence, the possibility of adverse inferences being drawn and that a record is being made of the interview which could be used in the trial. This is in addition to the caution which is now worded as follows: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence. This caution must be given before any questioning of someone who is suspected of committing an offence about his or her involvement in the offence. You should normally be cautioned on arrest and before any interviewing or continuation of an interview. If you are charged, you should be cautioned in the same way, but if you are questioned after charge, the caution is simply that anything you say may be used in evidence but that you do not have to say anything. This is because there is no provision in the 1994 Act for inference to be drawn from silence after charge. These restrictions, which have been introduced by the 1994 Act, have been reviewed many times by the courts. The European Court of Human Rights regards any inroads into the right of silence very seriously under Article 6 (the right to a fair trial) and there are many challenges to the 1994 provisions pending. You cannot be convicted of an offence solely on the basis of your failure or refusal to answer questions or furnish information. Because the rules are more complicated it is of crucial importance that legal advice is sought before answering questions. Fingerprints Fingerprints (the term includes palm prints) may be taken from anyone over the age of ten without consent and without a court order in any of the following circumstances: •
If an officer of the rank of superintendent or above believes that fingerprints will confirm or disprove involvement in an offence and authorises the fingerprinting.
•
If you have been convicted for a recordable offence.
•
If you are charged with a recordable offence or informed that you will be reported for such an offence and fingerprints have not already been taken in the course of the investigation.
Recordable offences are specified in regulations and include all but the most trivial offences. Where fingerprints are taken without your consent, reasons must be given before they are taken and those reasons must be recorded. Reasonable force may be used. If the police obtain your consent to fingerprinting, it must be in writing if given at a police station. Consent in the case of a child (aged 10–14) is the consent of his or her parents alone and in the case of a young adult (aged 14–17) of the parents and him- or herself. Before your fingerprints are taken, with or without your consent, you should be told that they may be the subject of ‘speculative search’. This means that they can be checked against other fingerprints held in records by or on behalf of the police.
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Photographs Your photograph may not be taken without your written consent unless you have been charged, reported for or convicted of a recordable offence and your photograph is not already on record, unless you were arrested along with others, or others are likely to be arrested and a photograph is necessary to establish who was arrested, when and where. A senior officer may also authorise the taking of your photograph where he or she reasonably believes that you were involved in an offence and there is other identification evidence. The police may not use force to take a photograph and therefore if you do not cooperate – by turning your face away – the police cannot force you to do so. Intimate and non-intimate samples An intimate sample is a sample of blood, semen or any other tissue, fluid, urine, saliva, pubic hair or a swab taken from a bodily orifice other than the mouth. An intimate sample (other than urine) may only be taken by a medical practitioner and dental impressions by a registered dentist, and only if an officer of at least the rank of superintendent authorises it and you consent in writing (consent for juveniles is the same as for fingerprinting). The authorisation may only be given if the officer has reasonable grounds for believing the sample will confirm or disprove your involvement in a recordable offence or even if you are in police detention, if the police previously took from you in the course of investigating an offence, at least two nonintimate (see below) samples for the same means of analysis (often DNA) which prove to be insufficient. (See above p. 165 for powers of arrest to provide fingerprints and samples.) If you refuse to consent ‘without reasonable cause’ the court or jury may (in committal proceedings or at a trial) draw such inferences from the refusal as appear proper, and the refusal may be treated as corroboration of any evidence against you to which the refusal is material. You must be warned of this before being asked to provide such a sample. This provision was inserted with rape suspects in mind. The provisions for breath tests and blood or urine samples in cases of drunk drivers are quite separate. A non-intimate sample is a sample of hair other than pubic hair, a sample taken from a nail or from under a nail, a swab taken from any part of a person’s body other than an orifice, and a footprint or a similar impression of any part of a person’s body other than a part of the hand (except dental impressions – see above). Non-intimate samples may be taken with your written consent (consent for juveniles is the same as for fingerprinting) or without consent if: •
You are in police detention or being held in custody on the authority of a court and an officer of at least the rank of superintendent authorises it. He or she may do this if there are reasonable grounds for believing the sample will confirm or disprove your involvement in a serious arrestable offence. Reasons for taking the sample must be provided to you and recorded.
•
You have been charged with or informed you will be reported with a view to summons for a recordable offence and either have not had a non-intimate sample taken in the course of investigation of the offence or such a sample was taken but it was not suitable or was insufficient for the same means of analysis (often DNA).
•
You have been convicted of a recordable offence.
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Speculative searches As described above under ‘fingerprints’ and ‘samples’, the police have powers to take fingerprints and samples to compare with any on their databases. Before such fingerprints and samples are taken, you should be informed that they may be used for such a ‘speculative search’. Any such search should be conducted before the police are required to destroy the fingerprints and samples. Destruction of fingerprints, photographs and samples If you are prosecuted for an offence and acquitted, or if you are not prosecuted or cautioned, all samples, fingerprints, photographs, copies and negatives must be destroyed as soon as is practicable (including the computer representation of your DNA profile). You are entitled to be present to witness the destruction of your photographs and fingerprints and either to witness the destruction of your photographs or be provided with written confirmation of the destruction. Samples should be destroyed also, except in very restricted circumstances, and there is no right to witness their destruction. Fingerprints and samples taken under the Immigration Act or the Prevention of Terrorism Act may, however, be retained. Identification by witnesses Procedures for identification parades or other group identifications, video identifications with others (group identifications), confrontation by witnesses and the showing of photographs to witnesses are set out in detail in a Code of Practice and you should consult these and where possible have a solicitor present. You are entitled to have a solicitor or friend present at an identification parade, which should have at least eight persons (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life. Two suspects should not be on the same parade unless they are of roughly similar appearance. Making notes If you have been involved in any incident with the police or you have witnessed an incident, it is advisable to make and keep full notes as soon as possible after the events in question. The police are allowed to refer to notes in court. This happens not because police officers have some special status as witnesses – they do not – but because the notes are contemporaneous, that is, notes which are made at the time or as soon as reasonably practicable thereafter. Contemporaneous notes are not in themselves evidence, but they can be used to refresh the witness’s memory. You have the same right to use notes. A delay in writing the notes of several hours or even a day or so may not prevent you from using the notes. Even if you cannot use them at court they will be a helpful record of the events. If you are detained at a police station, the Codes of Conduct provide that you should be supplied on request with writing materials. This may be delayed in certain circumstances. When making notes: •
Write out a full and legible note of everything that happened in the correct sequence of events.
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•
Write down everything that was said, word for word if possible, particularly any conversation you had with police officers.
•
Record the names and numbers, if you know them, of the police officers involved.
•
Sign the notes at the bottom and put the time and date.
•
If you see a solicitor, hand over the notes and make sure you get a copy to keep for yourself.
•
If you are going to court, take the notes with you.
If there are witnesses to the incident, take their names and addresses if possible and ask them to make notes. If you have been injured (for example, by the use of excessive force by the police during your arrest) you must: • •
Have photographs taken if there are any visible injuries. See a doctor so that your injuries are recorded.
The photographs and medical evidence may be of great value to you if you are charged with a criminal offence or if you wish to make a police complaint or sue the police.
6.6
SPECIAL POWERS UNDER THE PREVENTION OF TERRORISM LEGISLATION
The Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA) covers the whole of the United Kingdom. It is based on three earlier Acts, the first of which was rushed through Parliament after the Birmingham pub bombings in November 1974. The 1974 and 1976 Acts mainly covered activities associated with affairs in Northern Ireland. The PTA 1984, however, extended the power of arrest for questioning to cover anyone suspected of being involved with international terrorism. The 1989 Act created new offences and court powers of restraint and forfeiture relating to terrorist funds. It also created new powers of investigation into terrorist activities. The Prevention of Terrorism (Additional Powers) Act 1996 (the 1996 Act) completed a very speedy passage through Parliament (twelve hours in total in the House of Commons) giving police powers to designate areas at risk from bombing and implement additional stop and search procedures, searches of premises and parking restrictions. These procedures are not based on ‘reasonable suspicion’ and so may be a violation of Article 5 (the right to liberty) as in the case of the powers under the Criminal Justice and Public Order Act 1994 (above p. 146). The Terrorism Bill (before Parliament at the time of writing) supersedes the PTA completely. The main effect of the Terrorism Bill is to extend the definition of terrorism and therefore the remit of the law. In future the use or threatened use of violence (including violence against property) for political, religious or ideological reasons will be subject to these provisions. This will mean violence to property – damaging genetically modified crops or equipment for building roads could be within the definition of terrorism.
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The current PTA does not deal directly with acts of violence usually associated with the word ‘terrorism’, such as bombings and killings. These are crimes under ordinary criminal law. It is essentially a law that increases the power of the police to detain and interrogate anyone who may have information about ‘terrorism’, whether or not they are personally involved. If you are arrested or detained under the PTA, it is essential that you obtain expert legal advice as soon as you can. It is likely that many of the police powers under the terrorism legislation will be effectively challenged under the Human Rights Act. Arrest and questioning Under the PTA a police officer can arrest you without a warrant if he or she has ‘reasonable’ grounds to suspect many activities, some of which are listed below: •
You are involved in the ‘commission, preparation or instigation of acts of terrorism’ (this power will be a violation of Article 5 if it is not used in connection with an offence. It is usually used, however, in connection with membership of a proscribed organisation (see below) which is an offence); or
•
You belong to or support any banned organisations, (p. 173); or
•
You have solicited, lent, given or received money or other property for use in connection with acts of terrorism, or you have been involved with the movement of terrorist funds.
If you are unsure whether you are being arrested under the PTA, ask the police officer making the arrest which power is being used. Once arrested, the police can detain you for up to 48 hours and then for up to a further five days with the consent of a Secretary of State (in England and Wales the Home Secretary). During this time they do not have to charge you or take you before a court. Again, this power may be in breach of Article 5 if used during a time when there is an effective cease-fire. During your detention, the police (or prison officer) can take any ‘reasonably necessary’ steps to identify you, including photographing, fingerprinting and measuring you without your consent or a court order and with reasonable force if you refuse. These powers may be in breach of Article 8 (the right to privacy) and Article 2, which does not permit more force than is ‘absolutely necessary’. It is a criminal offence not to give the police, or the army if you are in Northern Ireland, specific information you may have about people or events concerned with acts of political violence. You should always be careful not to pass on anything based on rumour, and you are not obliged to pass on any information at all if you have a reasonable excuse, for example, if the information incriminates you personally or if you would have reason to fear for the safety of either yourself or your family. You can be fined and/or imprisoned if convicted. Although very few have actually been charged or convicted of this offence, people have been threatened with this during interrogation. This offence does not apply to information relating to acts of international terrorism. Other than the offence of ‘withholding information’, the general principle of the ‘right to silence’, in its curtailed form, prevails (see above, p. 164), and you are therefore not obliged to answer any other type of question (except about your identity). Because of the inferences which may be drawn by a court from your failure to answer questions during interviews you must consider the consequences of remaining silent extremely carefully.
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Your rights under the PTA are, in certain other respects, more limited than those of other suspects. For example, in England and Wales, the ‘safeguards’ provided in the Police and Criminal Evidence Act (see p. 142) do not apply to limit the circumstances in which you can have your fingerprints taken or provide circumstances under which they will be destroyed – so records can be kept indefinitely. Again, this may be in violation of Article 8 (the right to privacy). Also, you do not have an absolute right to legal advice until after 48 hours and then, under certain circumstances, a senior officer can decide that you can only consult your solicitor in the sight and hearing of a police officer unconnected with your case. These provisions may be challenged under Article 6 (the right to a fair trial). You do not have an absolute right to have someone informed of your detention until after 48 hours. The Code of Practice under PACE provides for the physical conditions of your detention and your heating, meals, lighting, and so on, should therefore be the same as for other suspects, as should those concerning medical treatment. Always obtain legal advice in any case as soon as possible and before answering any questions. Examination or detention at ports or airports Under the PTA, you can be stopped, questioned and detained by an examining officer while entering or leaving Great Britain or Northern Ireland to find out whether you have any connection with, or information about, the use of terrorism. Once again these powers may be in breach of Article 5 (the right to liberty) as they are not based on reasonable suspicion of committing an offence. Examining officers can be police, immigration or certain Customs and Excise officers and, in Northern Ireland, soldiers. They can require you to fill in a Landing or Embarkation Card, which asks for your name and the details of your address, occupation, name of your employer, address where you will be staying and the purpose of your trip. They can also require you to produce a passport or other papers establishing nationality and identity, or produce any other papers establishing nationality and identity, or produce any other documents considered relevant. They can search any baggage and keep anything that they consider could be relevant in a court case or in considering an exclusion order. You can be asked any reasonable question. Article 8 (the right to privacy) should again be considered in connection with these powers. You can be detained for up to twelve hours (nine hours under the new Terrorism Bill) in the absence of any suspicion (again Article 5 may be relevant here); after this the officer must have ‘reasonable suspicion’ to continue your detention and you should receive a Notification of Further Examination. As with PTA arrests elsewhere, you cannot be held beyond 48 hours without the authority of a Secretary of State (once the new Terrorism Bill comes into force the period of detention can only be extended by a special Magistrates’ Court) and, with the appropriate authority, you can be held for up to a total of seven days (see again Article 5 – the right to liberty). It is an offence to refuse to comply with directions from an examining officer and you can be fined and/or imprisoned if convicted.
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Search of persons or premises Under the PTA you can be stopped and searched without a warrant if the police suspect you of being involved in terrorism and need to establish if you are carrying anything which makes you liable for arrest. You can also be stopped and searched if you are suspected of supporting a banned organisation or of breaking an exclusion order. There is a power inserted by the Criminal Justice and Public Order Act 1994 whereby a senior officer may issue an authorisation covering a specific locality for a specific period that the police may stop and search any vehicles, their drivers and passengers, for articles which could be used in connection with terrorism. The police do not need to have any suspicion in relation to the person or vehicle searched. The 1996 Act inserts the same powers into the PTA to issue an authorisation for searches of pedestrians. Again, the police need not have any suspicion in relation to the person searched. In other respects Code A and the other safeguards in the Police and Criminal Evidence Act 1984 apply, except that the police may require the removal of headgear (unless there are religious sensitivities) and footwear in public under these powers. (See above, p. 146 for how these powers may be in violation of Article 5 if they are not used in connection with an offence.) The police can apply to a magistrate for a warrant to search premises in the usual way (see p. 147). However, they can also carry out a search with a note signed by a superintendent (or officer of higher rank) if he or she considers the case to be one of great public emergency. Using these powers of search the police can seize anything considered to be evidence of an offence relating to a proscribed organisation or an exclusion order, or which would justify the Home Secretary exercising powers of proscription or exclusion. Exclusion orders Under the PTA, an exclusion order can be used to expel you from either Great Britain or Northern Ireland, or from the whole of the UK. This process does not happen through the courts. Instead, the Secretary of State – usually the Home Secretary or the Secretary of State for Northern Ireland – signs an order when satisfied that: •
It appears expedient, in order to prevent acts of terrorism intended to influence government policy or public opinion with respect to Northern Ireland affairs; or
•
You are or have been concerned in the ‘commission, preparation or instigation of acts of terrorism’; or
•
You are attempting to enter Great Britain or Northern Ireland with a view to being concerned in the ‘commission, preparation or instigation of acts of terrorism’.
Terrorism in this context is defined as the use of violence designed to influence public opinion or government policy with respect to affairs in Northern Ireland. This includes any use of violence intended to put the public or any section of the public in fear. You cannot, therefore, be excluded if you are believed only to be involved in international terrorism. It is possible, however, that you could be deported under immigration legislation (see p. 272). ‘Commission, preparation or instigation’ covers any type of involvement.
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Restrictions on exclusion The type of exclusion order depends on whether or not you are a UK citizen. If you are a UK citizen you cannot be completely excluded from the United Kingdom. You can, however, be forbidden to enter (or be in) either Great Britain or Northern Ireland unless you are already excluded from one of these areas or you have been living in the area from which you are to be excluded for the previous three years (not including time spent in prison in the United Kingdom, Channel Islands or Isle of Man). If you are excluded you will be removed to the part of the United Kingdom you are allowed to be in. If you are not a UK citizen, you can be forbidden to enter or be in the United Kingdom or any part of it. Before excluding you, the Home Secretary should consider whether you have connections which would make it appropriate to send you to another country. You can be excluded irrespective of the length of time you have been living in the United Kingdom. Challenging exclusion If you are excluded, you should be given a written order that says this and tells you about your right to object as soon as possible. If you want to object, you must write to the Home Secretary within seven days and try to prove your case. If you ask, you also have the right to a private interview with a government adviser appointed by the Home Secretary. You can have a solicitor with you at this interview if the adviser agrees. You will remain in custody while the Home Secretary considers your arguments against exclusion. If you do not make representations within seven days, you will be removed whether you agree to this or not. If you agree to being removed before making representations, you must write making your case against exclusion and asking for an interview, if you want one, within 14 days of your removal. By making representations after you are removed, you lose your absolute right to an interview since you can only have one if the Home Secretary considers it ‘practicable’. If you use either procedure, the Home Secretary must consider whether or not to cancel the order, taking into account the report of any interview with the adviser, the adviser’s opinion and anything else considered relevant. You can ask people to write supporting your case. However, you cannot call a witness or appeal to a court. The procedure also denies you your right to know what evidence has satisfied the Home Secretary that you should be excluded or the reasons why your representations against the order are successful or not. You cannot, therefore, be confident of being able to provide the evidence necessary to challenge the decision adequately. It is, nevertheless, worth making representations since a number of orders are cancelled as a result. If your exclusion is not cancelled after you make representations, it will last for three years. The Home Secretary can then make a new order excluding you for another three years after reviewing your case. This is done by the Home Office, which writes to you at your last known address asking you to fill in a form or write if you want to take part in that review. You may also be offered an interview with the police and you can ask to take a solicitor to this. If you do not hear from the Home Office, you can write asking if you are still excluded and, if necessary, asking for a review. If you are excluded for another three years you can write making representations against this within 14 days. In any exclusion order case you should
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obtain expert legal advice to help you with the representations and to consider any possible legal remedies. Related criminal offences You can be arrested and charged if you disobey an exclusion order or if you help anyone else to do so. You can be fined and/or imprisoned if convicted. The consent of the Attorney General is necessary before you can be prosecuted. (Note: Exclusion orders are being phased out and once the new Terrorism Bill has become law they will be abolished.) Banned organisations Any organisation can be banned (‘proscribed’) under the PTA if it appears to the Home Secretary to be involved in terrorism in the United Kingdom, that is connected to affairs in Northern Ireland, or appears to be promoting or encouraging it. An organisation is defined as any association or combination of people. The banning of organisations may be in breach of Article 11 (freedom of association). The Provisional and Official IRA were proscribed in 1974, the INLA in 1979 and the UDA in 1992. Related criminal offences It is a criminal offence: •
To belong or to say you belong to a proscribed organisation, except where you prove that you were a member before the organisation was banned and that you have not been a member since.
•
To raise or receive money or goods on behalf of a banned organisation or to encourage any other form of support for it, except where you can prove that you did not know the money or goods were for this purpose.
•
To help organise a public or private meeting of more than three people in support of a banned organisation, or where a speaker belongs or says he belongs to one of these organisations, except where you prove that you did not know this was the case.
•
To display, carry or wear in public anything which gives rise to a reasonable fear that you are a member or supporter of a banned organisation, even if you are not. (See above on Article 11.)
6.7
FURTHER INFORMATION
Useful organisations Consult your local telephone directory for the addresses and telephone numbers of the following organisations: • •
Citizens’ Advice Bureaux Law centres
Bibliography E. Cape, Defending Suspects at Police Stations, Legal Action Group, 1999. J. Harrison and S. Cragg, Police Misconduct, Legal Action Group, 1995. Ashford and Chard, Defending Young People, Legal Action Group, 2000.
John Skinner
7
The Rights of Defendants
This chapter deals with: • • • • • • • • • •
Police powers Prosecution Bail Representation and Legal Aid Venue Trial Sentence Appeals The Criminal Cases Review Commission The European Convention on Human Rights and Human Rights Act 1998
The ‘defendant’ is the term used in the criminal courts for a person accused of an offence. This chapter explains, in brief outline, your basic rights in England and Wales should you find yourself in that position, or under suspicion of committing a crime in the preliminary police investigation. This area of law has been rapidly changing under recent governments, aiming to reduce crime and cut the costs of delivering justice, sometimes at the expense of defendants’ rights. The present Home Secretary shows every intention of continuing this rate of change. The recent MacPherson Report into the Stephen Lawrence case, and the incorporation of the European Convention on Human Rights into English law, have brought opposing pressures for change in the criminal justice system. I shall deal with the various stages of the system in the order you are likely to encounter them, outlining the procedures involved, and your basic human and legal rights at each point. To do so in a single chapter, it is necessary to simplify and summarise often complex rules and procedures. It should also be kept in mind that changes are constantly occurring to the law in this area, even as I write.
7.1
POLICE POWERS
On the street Police may stop and search any person or vehicle for stolen or prohibited items, for example, weapons. To do so, they must first have a reasonable suspicion that they will find these. Your general characteristics (for example, race) are not sufficient basis for reasonable suspicion. A record must be kept of the search, which you can obtain from the police station. 174
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There is no requirement to answer police questions on the street, and if the police want to ask you about a suspected offence, they must caution you first. Arrest This is the beginning of detention. Broadly speaking, a police officer may arrest anyone the officer has reasonable cause to suspect has committed, is committing, or is about to commit, an offence, other than minor offences. You must be told the reason for your arrest as soon as practicable afterwards. Only reasonable force may be used to detain you, if you attempt to resist or escape. Search Once arrested, you may be searched on the spot or at the police station. Intimate searches must be conducted by someone of the same sex at the police station. Entry The police may enter your home address without a warrant to arrest you, or to search your address after arrest for items related to the offence you have been arrested for. Otherwise, they generally require a search warrant to enter, and you may require them to produce this, and refuse entry if they do not. Detention Once at the police station, your detention is the responsibility of the custody officer. Your treatment is governed by codes of practice, which you are entitled to see. These cover areas such as your entitlement to sleep, food or medical attention. The police may detain you for 24 hours without charge, extendable to 36 hours when authorised by a senior officer. After this, the police must release you, or apply to the earliest sitting of the local Magistrates’ Court to authorise your further detention up to a maximum of 96 hours. Your basic rights while detained at the police station include the following: 1. An interpreter, if you are unable to understand English. 2. An appropriate adult, for example, a family member or social worker, if you are under 17 or otherwise vulnerable, for example, due to mental illness. 3. Notification of your arrest to a relative or friend. 4. The right to speak to a solicitor in private. This is free of charge. If you do not have a solicitor of your own to contact, you can speak to the duty solicitor. Local solicitors dealing with criminal cases, who are independent of the police, will operate a rota to provide this service. Some of these rights may be delayed if authorised by a senior officer. Questioning The police may interview you about your suspected involvement in an offence, before any charge. This will be tape-recorded. You are entitled to have your legal representative present during the interview. At the start of the interview, you must be reminded of this right, and cautioned. The caution states that you do not have to say anything unless you wish to do so, and that what you say may be given in evidence at court.
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The caution then goes on to warn you that it may harm your defence if you fail to mention anything at the police station which you later rely on in court. This last part of the caution reflects recent changes in the law, which have undermined the so-called ‘right of silence’. Until 1898, defendants in this country were not allowed to give evidence in their own cases, as it was felt the temptation to commit perjury might be too great. Nowadays, the wheel has come full circle, and if you fail to give evidence, the court can be invited to draw its own conclusions from such failure. The obvious conclusion a court may draw against you if you remain silent at the police station and then give evidence at court is that you have made up your account of events since being interviewed by the police. It is important to remember that this problem only arises when you are charged with an offence and plead not guilty at court. There is still no legal requirement to answer police questions, and, where by doing so you would incriminate yourself, it may often be better to make no comment to the police during interview. If the evidence against you is already strong, however, and you hope to be given a warning or caution by the police, rather than prosecuted in the courts, it may be best to admit the offence from the start. You may also receive credit in court for cooperating with the police. Conversely, if you have a strong defence to an accusation, putting it on the record straight away may lead to your avoiding being charged, or strengthen your defence when your case is heard in court. The decision whether or not to answer questions is often a difficult one, and it is best to take legal advice before making it.
7.2
PROSECUTION
The initial decision whether or not to prosecute you is normally taken by the police. Once a prosecution has been started, the responsibility passes to the Crown Prosecution Service, who will then decide whether to proceed, to alter or to drop the charges. They also have the power to take over private prosecutions and can then discontinue them. The police may charge you with one or more offences, and then release you on bail to attend court in a few days, or keep you in custody, when they must produce you at the next sitting of the local Magistrates’ Court. Alternatively, for less serious offences, and most road traffic matters, where you may not have been arrested, you should normally be released without charge and sent a summons by post a few weeks later. Both summons and charge sheet will set out the offence or offences and the place, time and date that you must attend court.
7.3
BAIL
From the police station If their investigation is continuing, the police can bail you without charge to return to the police station at a fixed time and date. Failure to do so could be a separate offence.
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Once charged, the police must release you on bail unless the custody officer reasonably believes that: 1. There is doubt about your name or address; or 2. Detention is necessary to protect you or somebody else; or 3. You will fail to attend court or will interfere with witnesses or the administration of justice. Like the courts, the police are now able to attach conditions to your bail, such as living at a fixed address, reporting to a local police station, a curfew, avoiding named people or places, or providing a financial guarantee for your attendance at court. If you fail to attend court without reasonable excuse when on bail, you commit a separate offence under the Bail Act 1976. If you break any of the conditions of your bail, you can be arrested and brought in custody to the next sitting of the local Magistrates’ Court, who may then take away your bail. From the court If on police bail, you can apply to the Magistrates’ Court to vary the conditions. If the police have kept you in custody, they must produce you at the next sitting of the local Magistrates’ Court, which then takes any decisions about bail if your case continues after the first hearing. The court can grant bail with or without conditions, or remand you in custody. Before conviction, you have a right to be granted bail unless certain exceptions apply. The most significant of these are where the court finds that there are substantial grounds for believing you may do one of the following: • • •
Fail to attend court. Commit further offences. Interfere with witnesses.
The factors the court will consider in deciding this include the charge, the evidence, your own background and any previous convictions you have. If the court has concerns on these grounds, it can attach conditions to your bail, including those already mentioned; residence at a bail hostel; payment of a cash security into court; or providing a surety. A surety is someone who knows you personally and offers the court a sum of money to guarantee you will attend when required. They do not have to pay the money into court, but have to show that they have it available. If you then do not turn up at court on time, they may have to pay the money or even go to prison themselves if unable to do so. If you are charged with an offence which does not carry a possible sentence of imprisonment, the court can normally only refuse bail if you have failed to attend in the past and they believe you would do so again. Where conditions are attached to your bail, or bail is refused, the court must state its reasons for doing so. In cases of rape or homicide, the court must also state reasons if it decides to grant bail. If you are refused bail at your first hearing, you can apply again at the second hearing of your case, or if there is a change in your circumstances relating to bail. You can also appeal to a Crown Court judge, sitting in chambers, against the refusal of bail by the magistrates, even if your case can only be heard in the Magistrates’ Court.
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In serious cases, the prosecution can appeal to the Crown Court judge against the granting of bail by the magistrates, although this is unusual. There is also a little used process of appeal against conditions or refusal of bail to a judge of the High Court sitting in chambers. Criminal Legal Aid is not available for this. If you are under 17 when bail is refused, you will not be remanded straight to custody, but will be accommodated by the local authority, which may place you with your family, in a children’s home, or apply to the court to place you in secure accommodation in certain circumstances. Lastly, the hearing of your case is subject to custody time limits, after which the court must release you on bail unless the prosecution has obtained an extension from the court beforehand. The limits are 56 days for Magistrates’ Court trial, 70 days for committal to the Crown Court, and 112 days from committal to Crown Court trial. To extend these limits, the prosecution has to justify the time they are taking to bring your case to trial.
7.4
REPRESENTATION AND LEGAL AID
The criminal courts are a world within a world, which most of us have glimpsed on TV. They have their own rules and procedures, which can be confusing or even frightening to an outsider. It often seems as though an elaborate game is being played, but the stakes are high, your freedom or livelihood may be at risk, and it makes sense to secure the help of a knowledgeable insider. Criminal lawyers fall into two categories: 1. Solicitors, who will be your first point of contact, see clients, take instructions, prepare cases and appear in the Magistrates’ Court. Some solicitors with a higher qualification also appear in the Crown Court. 2. Barristers specialise in advocacy, mainly in the higher courts, and will be instructed by your solicitor on your behalf, if necessary. Barristers work from chambers in central locations, and solicitors have offices which may be local to your home or to the court where you appear. If you have not already seen a solicitor at the police station, it is a good idea to consult one before your first court appearance, although you may have little time in which to do so. If you do not know of a solicitor, your local Citizens’ Advice Bureau or the court should have lists of local solicitors dealing with criminal work. Legal services do not come cheap, and most defendants in the criminal courts rely on the Legal Aid scheme to provide representation. If you cannot afford to pay for a solicitor privately, initial advice and assistance (but not representation) is available under a means-tested scheme, which has a cut-off point just above benefit levels. Free advice can also be obtained from local law centres, although they do not normally conduct cases in the criminal courts. To be represented in court, all defendants at their first appearance can seek the help of the court Duty Solicitor, free of charge. Again, this service is provided by a rota of independent local solicitors, and is often the best way of obtaining advice and, if necessary, representation on a straightforward or minor case.
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Under a hybrid scheme, a solicitor of your own choice can now represent you free of charge in certain early hearings at the Magistrates’ Court, under the ‘duty solicitor of choice’ scheme. If your case is at all serious or complex, and you cannot afford a lawyer, you will need to apply to the court for Legal Aid. In doing so, you may nominate a lawyer of your own choice to represent you, and you should seek his or her assistance in completing the application forms. At the time of writing, the court applies two tests in deciding whether to grant Legal Aid, the ‘merits’ test determines whether it is in the ‘interests of justice’ for you to be represented at public expense. This means whether your case is serious enough or sufficiently complex. The basic threshold of seriousness is whether there is any risk of imprisonment. In the case of juveniles, the criteria are more relaxed. Second, the ‘means’ test, which at the time of writing is due to be abolished, as it costs more to administer than is collected. This is to determine whether you can afford to pay for your own lawyer. The court will assess you on your income for the previous three months, and will need to see documentary proof of this in the form of a letter from your benefit office (if not working) or your last three months’ income and outgoings (if working). You should take the necessary documents with you to your solicitor’s office or to court. Basically, if you are on benefit or a very low disposable income, Legal Aid is likely to be free. If on a moderate disposable income, you can expect to pay a weekly contribution. On an average or higher income, Legal Aid is likely to be refused. If Legal Aid is refused on merits, you can renew your application to the court and, if the case is to be tried in the Crown Court, appeal to the Legal Aid Board. Lastly, if you are not represented, you are still entitled to have a friend or adviser to sit with you in court to give you advice and help take notes. This person is referred to as a ‘Mackenzie’ friend, and cannot speak for you in court.
7.5
VENUE
This term is used by lawyers to refer to the court in which your case will be heard. All cases begin in the Magistrates Court or, if you are under 18, in the Youth Court. Over 90 per cent of cases are concluded in the lower court. They are heard by a bench of two or three lay Justices of the Peace, who are trained volunteers, or a single legally qualified District Judge, formally known as a Stipendiary Magistrate. There are three categories of offences: 1. Summary offences Most offences are ‘summary’, which means they can only be heard in the Magistrates’ Court. These include common assault, threatening behaviour and nearly all motoring offences. They may not be imprisonable at all, or may carry a maximum sentence of no more than six months. 2. Indictable-only offences At the other end of the scale, a small number of the most serious offences, such as murder, rape or robbery, are tried on indictment only. That means they must be tried in the Crown Court before a judge, who rules on the law and passes sentence,
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and a jury of twelve members of the public, chosen at random, who decide on the facts if you plead ‘not guilty’. The judge’s maximum sentencing powers extend up to life imprisonment, but in all cases the sentence is limited by the maximum sentence fixed by Parliament for the offence charged. These cases pass through the Magistrates’ Court for committal, or, more speedily, for transfer to the Crown Court, while the magistrates decide on preliminary issues such as bail only. 3. Either-way offences In between are a number of offences, such as assaults resulting in injury, theft and other offences of dishonesty, and burglary, which may be tried in either the Magistrates’ Court or the Crown Court. In either-way offences, a somewhat complex procedure, known as ‘plea before venue’, takes place in the Magistrates’ Court. First, you indicate how you intend to plead to each of the charges. If you enter a guilty plea, then the Magistrates’ Court goes on to consider sentence, but may still decide to commit you to the Crown Court for a heavier sentence than they have power to impose. The magistrates cannot pass a sentence of more than six months’ imprisonment for any one offence, but, where you are convicted of two or more either-way offences, they can impose a total of up to one year in prison. If you indicate a not guilty plea to an either-way charge, and the prosecution is proceeding against you on that charge, then the Magistrates’ Court first considers whether its powers of sentence are sufficient to deal with the case in principle. If not, for example for most dwelling house burglaries, the magistrates send the case to the Crown Court. If the magistrates decide that they can hear the case, at present you still have the right to elect trial by jury in the Crown Court yourself. However, the present Government has already attempted legislation to remove this right and give the courts the last say. When given this decision, you need to weigh carefully the advantages and disadvantages of each court. Rates of acquittal on not guilty pleas are significantly higher in jury trials, and many defendants feel they receive a fairer hearing before a jury than before magistrates, who may have become ‘case-hardened’. This is especially so where challenging police officers’ evidence or arguing for the exclusion of evidence which may be inadmissible, as the magistrates will hear this anyway. Jury trial, however, involves significant delays and greater defence costs, if you are contributing, or greater prosecution costs if you are convicted, and ordered to pay at the end of the case. You are also opting for a court with greater sentencing powers in the event of your conviction. The choice may not be straightforward, and again it is best to obtain legal advice before making it. You are entitled to a summary of the prosecution evidence, or copies of their witness statements, before deciding. This is known as ‘Advance Information’. In the Youth Court, the process is simpler. All charges are heard there, unless, on certain ‘grave’ charges carrying very long maximum sentences, the Youth Court sends the case to the Crown Court for trial. Youths have no right to elect jury trial.
THE RIGHTS OF DEFENDANTS
7.6
181
TRIAL
If you plead not guilty, the court will fix a date for your trial, or, in the Crown Court, a warned period of one or two weeks, when it could be heard. You will need to arrange for any witnesses you wish to call in your defence to attend court on the trial date. When they do so, they will have to wait outside court and not discuss the case until after they have given their evidence. Before trial, the prosecution must disclose to you details of any ‘unused material’, that is, evidence in their possession that they will not be using at trial, which may be relevant to your case. You must have the chance to examine it. In the Crown Court, you must then provide to the court and the prosecution a brief statement of your defence in outline. In the Magistrates’ Court, this is optional, but you can use it to seek further disclosure from the prosecution, who must again review all material in their possession, when they receive it, and disclose anything relevant to your defence. When the trial begins, the prosecution will open their case with a brief speech setting out what they intend to prove against you. They then call their witnesses in turn, and play any tape or video evidence. The basic rule is that evidence must be given orally in court on oath. You will have the opportunity to question each witness in turn. This is called crossexamination, and when you do so you must state which part of the witness’s evidence you dispute, and give them the chance to respond. Written statements cannot be read out in court unless you or your lawyer have been given a copy and have not objected to this. There are certain limited areas in which written evidence can be read with the court’s agreement, for instance, where a witness is abroad, or a statement compiled from details of transactions a witness could not be expected to remember. At the end of the prosecution case, if they have failed to provide any evidence of a vital ingredient of the charge against you, you can make a submission to the court that there is no case for you to answer. Otherwise, you then have the choice of whether or not to go into the witness box and give evidence yourself. If you do so, you will be cross-examined by the prosecutor. If you do not, you risk the court concluding that you have no answer to the charge, or none that will stand up to cross-examination. You then call any witnesses in your defence, and you or your lawyer makes a concluding speech arguing your case. In the Crown Court, the judge will then sum up the case to the jury. Then the jury or the magistrates retire to consider their verdict. The basic safeguards for the defendant in English trials are known as the ‘burden’ and ‘standard’ of proof. The ‘burden’ of proof is on the prosecution. They bring the case and they must prove, by admissible evidence, each element of the charge against you. Another way of describing this is the ‘presumption of innocence’: you do not have to prove your innocence, it is presumed unless and until the prosecution prove the contrary. There are certain limitations to this basic proposition. For instance, where you argue selfdefence on an assault charge, you will have to raise some evidence that you were yourself at risk of attack, which the prosecution then has to disprove.
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The ‘standard’ of proof is that the jury, or magistrates, must be sure of your guilt. Another way of expressing this, less commonly used nowadays, is that they must be satisfied, ‘beyond reasonable doubt’, that you committed the offence charged. If not – say, for example the jury think you probably committed the office, but cannot be certain that you did – then you should be found not guilty. The verdict of the court is one of guilty or not guilty. A not guilty verdict is not a finding of innocence, but means that the prosecution has failed to prove by admissible evidence that you committed the offence. In practice, it means that in normal circumstances you cannot be tried again for the same offence. Jury verdicts must be unanimous unless, after two or three hours, the judge allows a majority verdict of ten jurors. The magistrates’ verdicts are by majority. If you are acquitted, you can apply to the court for your personal expenses and your legal costs to be reimbursed, but not for any loss of earnings. Your witnesses can claim their expenses and also loss of earnings from the court. You may also wish to consider a civil claim against the police where, for instance, there is evidence of malicious prosecution (see Chapter 5).
7.7
SENTENCE
If you are found guilty, or have pleaded guilty, the court will then go on to consider how to sentence you. At this point, the court will be told of any previous convictions you may have, which will not normally have been mentioned at your trial unless you claimed to be of good character yourself, or attack the character of prosecution witnesses. Sentences available to the court range from discharges and fines, through community penalties such as probation or community service, up to custody. Variations of this are available in the Youth Court. If considering a community penalty, the court will normally adjourn for a presentence report to be prepared by the Probation Service. They must do so if considering custody unless, when dealing with an adult, the court deems it unnecessary. Reports are usually prepared in two to four weeks and, although the right to bail no longer applies, there is a presumption that, if you are already on bail, this will be continued. Imprisonment can be imposed only where the court considers the offence and associated offences so serious that only a prison sentence is appropriate. Where sentencing for more than one offence, the court must not simply add up the sentences passed for the individual offences, but review the totality of the sentence. Credit is normally given for pleas of guilty in the form of a reduction of a sentence, up to a maximum of one-third, depending on how soon the guilty plea was notified to the prosecution. Before you are sentenced, you can tell the court of any mitigating factors relating to yourself or the offence, and call character witnesses or submit written character references to the court. The court may also require medical or psychiatric reports before passing sentence. The court should not pass a sentence of imprisonment on you without giving you the opportunity to be legally represented.
THE RIGHTS OF DEFENDANTS
7.8
183
APPEALS
If you feel the court has made the wrong decision in your case, there are various possible routes of appeal open to you. Appeals from the Magistrates’ Court You have an unlimited right of appeal from the Magistrates’ or Youth Court to the Crown Court, against sentence only if you pleaded guilty, against conviction and sentence if you pleaded not guilty. Notice of appeal must be given to the court and to the prosecutor within 21 days of the conclusion of your case. You can apply for Legal Aid for the appeal. These appeals are complete rehearings of your case in the Crown Court, but before a judge and two magistrates. There is no jury. If your appeal is against conviction, the evidence will be heard afresh, and the court will reach its own conclusion, by a majority if divided. If your appeal against conviction fails, or if your appeal is against sentence only, the court will then review the sentence passed, and can substitute any sentence the original court could have passed, up to the maximum sentence available to that court. This means there is a possibility that your sentence could be increased. An additional risk is that you might be ordered to pay the costs of an unsuccessful appeal. The decision of the Crown Court on appeal is final, and there is only one, relatively unusual, situation in which you can pursue your case further. Appeals to the Divisional Court Where you consider that either the Magistrates’ Court or Youth Court, or the Crown Court when hearing your appeal, have made an error of law, acted in excess of their jurisdiction or failed to exercise their jurisdiction in deciding your case, you can appeal on a point of law to the Divisional Court of the High Court. This is done by way of asking the lower court to ‘state a case’ for the Divisional Court’s consideration, or by asking for judicial review by the Divisional Court. These proceedings are available to both the prosecution and the defence. The procedure is complex, and you will need the help of a lawyer. Criminal Legal Aid is not available, and you will need to apply for civil Legal Aid. You cannot challenge decisions of fact in this way. Should you succeed in the Divisional Court, your case is likely to be sent back to the lower court with directions for its reconsideration. Appeals from the Crown Court Where your case has been heard in the Crown Court, other than on appeal, you can give notice of appeal to the Court of Appeal (Criminal Division) within 28 days of the decision to be appealed. Thus, if you appeal against conviction after your trial, you may have to give notice to the court before you are actually sentenced. Your original Crown Court Legal Aid order includes advice on appeal from your advocate, and the drafting of grounds, if appropriate. These appeals are not a rehearing. The Court of Appeal will consider written and oral arguments, but rarely hear fresh evidence and will only intervene in an appeal against conviction
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if the conviction is shown to be ‘unsafe’. Where the appeal is against sentence only, the Court of Appeal does not have the power to increase the sentence, but will only reduce it where it is shown to be ‘wrong in principle’ or ‘manifestly excessive’. The prosecution can also refer serious cases to the Court of Appeal where they consider the Crown Court sentence passed was ‘unduly lenient’, in which case your sentence may be increased. Your application will first be considered by a single judge, who can grant or refuse leave to appeal. If leave is refused, the single judge has power to direct that time spent in prison already does not count towards your sentence, thus effectively lengthening it. This power is rarely used at this stage, but, if you are refused leave to appeal and go on to pursue your appeal in the full court, the court has the same power. If leave is granted, Legal Aid is likely to be extended for you to be represented by an advocate at your appeal. Lastly, there is always the risk of being ordered to pay the costs of an unsuccessful appeal, but, again, this is unlikely if leave has been granted. Appeal from the Court of Appeal There is a limited right of appeal to the House of Lords, but only where a point of law of ‘general public importance’ is certified. The procedure is arcane and you will certainly need the help of a lawyer in these circumstances. Bail pending appeal In each of these situations, if you are in custody, it is possible to apply for bail to be granted until your appeal is heard, either to the lower court whose decision you are appealing, or to the court where your appeal is to be heard. In practice, this is very rarely granted, but making the application may speed up the hearing of your case.
7.9
CRIMINAL CASES REVIEW COMMISSION
Set up in 1995 in response to public concern after a series of well-publicised miscarriages of justice had come to light, this is the last resort for a dissatisfied defendant. You can ask the Commission to review your case. They have the power to investigate and to refer Crown Court cases back to the Court of Appeal, or Magistrates’ Court cases back to the Crown Court on appeal. They should not normally do so unless they are satisfied that there is ‘a real possibility’ that the verdict or sentence passed would not be upheld. However, the Commission is restricted in that referrals can only be based on arguments or evidence not raised in the original hearing or appeal, unless there are ‘exceptional circumstances’. As a result, you cannot simply regard the Commission as a court of final appeal, but rather as a means of bringing possible miscarriages of justice back into the court system where further information comes to light, or there is continuing public concern.
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7.10
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THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND HUMAN RIGHTS ACT 1998
Underpinning the whole system is the European Convention. Britain was one of the original countries to sign this in 1950, but it has only become directly enforceable in English criminal courts as a result of incorporation in the Human Rights Act 1998. Until the year 2000, if you felt your human rights had been breached in the conduct of a criminal case, you had to petition the European Court of Human Rights in Strasbourg directly, a process that could take as long as five years. Now it is possible to make your complaint to the court hearing your case at the time, and pursue it through the English courts system, though the possibility of petitioning Strasbourg remains if you have exhausted all possible remedies here. Incorporation means that the criminal courts will have to take account of the Convention, and any judgment or opinions of the Court in Strasbourg in interpreting English law, so as to comply with it as fully as possible. Where the English courts find it impossible to do so, either the High Court, the Court of Appeal or the House of Lords can make a ‘declaration of incompatibility’, enabling the Government to amend the law in question. The most important part of the Convention, in terms of criminal justice, is Article 6, the right to a fair trial. This guarantees a public hearing within a reasonable time, and formally states the presumption of innocence. It specifies your minimum human rights, including the right: 1. To be informed of the case against you in a language you understand. 2. To enough time and facilities to prepare your defence. 3. To defend yourself and to have representation, free of charge when this is in the ‘interests of justice’. 4. To ensure that prosecution witnesses attend and can be cross-examined, and to call defence witnesses on the same terms. 5. To have an interpreter, if necessary, free of charge. Other articles are also relevant to criminal justice, for instance Article 5 guarantees liberty, except in specified circumstances, which include custodial sentences after conviction, and detention in order to bring you before a court once you have been charged. If you are detained, you must be promptly informed of the reason for your original arrest and brought promptly before a court which can authorise your detention or release according to law. If you are detained pending trial, you must be tried within a reasonable time. Article 7 guarantees no punishment without law. In other words, you cannot be punished for something that was not an offence at the time you did it or sentenced in excess of the maximum for the offence at the time. In theory, the English criminal justice system should comply with all the requirements of the Convention. In practice, it has been found wanting on a number of occasions. For instance, the Court at Strasbourg has ruled that the children convicted of the James Bulger’s murder were too young to receive a fair trial in the adult court. It has also ruled that persons accused of a second rape or homicide
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should not be denied the possibility of applying for bail in the English courts. These cases may seem unworthy examples, but often the best test of a system is its ability to uphold the rights of unpopular defendants. If these are eroded, then all of us are potentially at risk in the future. If you consider your human rights under the Convention have been breached and you have not been able to gain satisfaction in the English courts, then you can still petition the European Court of Human Rights. This has to be done within six months of the final decision complained of. The procedure is mainly in writing, and only a very limited form of Legal Aid may be available to assist you. Should the Court eventually find the UK Government in breach of your rights under the convention, it can order the Government to pay you compensation, and the Government has a duty to change English law to bring it into line with the Convention.
Simon Creighton
8
The Rights of Prisoners
This chapter sets out prisoners’ rights. It deals with: • • • • • • • • • • • • • • • •
Reception Complaints and requests and the Prisons Ombudsman The courts Access to lawyers Differentiated regimes Visits and letters Telephones Marriage and founding a family Women prisoners Categorisation and allocation Discipline, adjudication and punishment Segregation and transfer Medical treatment Work, exercise and education Parole Further information
Prisoners retain certain basic rights, which survive despite imprisonment. The rights of access to the courts and of respect for one’s bodily integrity (that is, not to be assaulted) are such fundamental rights. Others may be recognised as the law develops. Prisoners lose only those civil rights that are taken away either expressly by an Act of Parliament or by necessary implication. For example, one right taken away by statute is that prisoners detained following conviction do not have a right to vote. The test in every case is whether the right is fundamental and whether there is anything in the Prison Act 1952, the Prison Rules 1999 or elsewhere which authorises the prison authorities to limit such a right. The extent to which the authorities can interfere with the rights of those in custody is the most difficult question to answer. In the United Kingdom, the courts have veered between two tests. The first is that the State can only place limits on prisoners’ rights if they are necessary for the prevention of crime or for prison security. The second approach has been to suggest that the prison authorities are allowed to impose restrictions on prisoners simply because they are in prison, as custodial detention is incompatible with the enjoyment of many fundamental rights. The first test is the one favoured by the European Court of Human Rights and is likely to prevail under the Human Rights Act 1998. The situations where Human Rights Act issues may arise are dealt with as they arise in this chapter, with references to the relevant articles of the European Convention. 187
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In law, the Prison Rules have legal force only in so far as the Prison Act gives authority for the Rule: legal challenges to the Rules have been successful in cases where the courts have held that the Act does not authorise the scope of a particular Rule. The Prison Rules provide a structure and framework for the regulation of prison life. Breach of the Rules by the prison authorities does not of itself give prisoners the right to sue in the courts for damages. More detailed instructions are given in the Standing Orders and Prison Service Orders and Instructions. These are internal directives, which govern the conduct of prison life issued to prison governors and prison officers. They are a vital source of information about prisoners’ rights and entitlements.
8.1
RECEPTION
On reception into prison a prisoner will be searched and may be photographed. The prison authorities will keep any property that he or she is not allowed to have with him or her in prison. A list will be made on arrival of all property and the prisoner must be given the opportunity to check it is correct before signing it. All cash must be paid into an account, which is under the governor’s control. All prisoners should be issued on arrival with a copy of the Prisoners’ Information Handbook. A copy of the Prison Rules must be made available to any prisoner who requests it.
8.2
COMPLAINTS AND REQUESTS TO THE PRISONS OMBUDSMAN
Within prison, complaints and/or requests may be made in person or in writing to a governor, or to the Board of Visitors. A governor must be available each day to hear complaints or requests. The prisoner need not give the reason for his or her application to see the governor and an application may be made direct in writing and in confidence to the governor or chair of the Board of Visitors. Prisoners will have to give the reason why they wish the complaint to be dealt with in confidence, but it may be that the person complained about will be told of the complaint – which rather discourages complaints of this nature. If a complaint is made to the governor, a written reply should normally be received within seven days. If the prisoner is not satisfied with the decision, he or she may appeal to the casework unit, a department under the control of the area manager at Prison Service Headquarters. Some issues – called ‘reserved subjects’ – may only be dealt with by Prison Service Headquarters. These include parole, transfer to or removal from mother and baby units, Category A status, life sentence prisoners, transfers and deportation. Complaints on these issues will be dealt with by the relevant department and should also be replied to within six weeks. The booklet ‘How to Make a Request or Complaint: Information for Prisoners’, which gives details of the procedures, should be available in prison libraries. If a prisoner is not satisfied with the response received from this system, it is possible to make a complaint to the Prisons Ombudsman. The Ombudsman can investigate complaints only when the internal request/complaints system has been exhausted and the complaint must be made within one month of the reply received
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from Prison Service Headquarters. The complaint must be made personally by the prisoner (or with his/her signed authority). The Ombudsman will normally take around twelve weeks to investigate the matter and will then issue a report either upholding or rejecting the complaint. If it is upheld, recommendations will be made to the Prison Service about the individual case and any general issues that it raises. The Ombudsman cannot investigate decisions made by the Parole Board, decisions made personally by Ministers or clinical judgments made by medical staff. Prisoners may also raise complaints with any outside organisation or person, for example, their MP, the Parliamentary Commissioner for Administration, the European Parliament, the European Commission of Human Rights (ECHR), the police. Petitions may also be made to the Queen and Parliament. For a complaint to be admissible with the ECHR it must be made within six months of the alleged breach of the right or from the time that all effective remedies that exist in this country have been exhausted. It is important to remember that the request/complaint system is not considered a suitable remedy when calculating this time limit. Again, details of how to make an application the ECHR should be available in the prison library (see Chapter 5).
8.3
THE COURTS
Prisoners have the absolute right to commence legal proceedings in the courts either in person or through a solicitor. Prisoners can conduct: •
Normal civil proceedings such as divorce or breach of contract.
•
Cases where the prisoner is suing the prison authorities, for example, for assault or medical negligence.
•
Judicial review in the High Court of an administrative or disciplinary decision which affects him or her.
The High Court will intervene by way of judicial review only when it can be shown that a decision has been taken which is wrong in law (for example, where the prison authorities had no power to do what they did) or the decision was flawed by procedural unfairness. The High Court has reviewed a wide range of decisions by the prison authorities, including parole and parole revocation, security categorisation, transfer, censorship, segregation and the separation of a mother from her baby. The Race Relations Act applies to prisons, and discrimination (for example, in the allocation of jobs) would be actionable in the courts. A breach of the Prison Rules does not automatically give a prisoner grounds to sue the prison authorities for their failure to comply with the Rules. In such cases, the prisoner will need to establish some form of compensatable loss or damage resulting from the breach of the Rules. At present, a prisoner acting without a solicitor who wishes to be produced at court to present his or her case in person must apply to the Home Office by completing the relevant request form. This includes a requirement that he or she undertakes to pay the costs of his or her production. These costs should be limited to production from the prison nearest to the court and the level at which they are set should have regard to what the prisoner can actually afford to pay. The courts
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have recognised that there may be an appearance of bias if the Home Office refused to produce at court a prisoner who was unable or who had refused to give an undertaking as to costs in an action when the Home Office is the defendant to the action. A prisoner faced with this difficulty should apply to the court that is to hear his or her action for guidance. Any refusal to produce a prisoner, particularly when the action is against the Home Office, may be in breach of Article 6 of the European Convention.
8.4
ACCESS TO LAWYERS
Prisoners have an absolute right to have visits from and correspond with their solicitor. They do not have to tell the prison authorities why they wish to contact a solicitor, nor make any complaint about prison treatment to the authorities before contacting a solicitor for legal advice. This right was first recognised by the European Court of Human Rights and any attempts to interfere with such access are closely scrutinised by the courts.
8.5
DIFFERENTIATED REGIMES
All prisoners, including unconvicted and civil prisoners, are required to be classified to one of three regimes: basic, standard or enhanced. This decision is taken by the governor, based on the prisoner’s performance in custody (for example, his or her disciplinary record). Each regime offers a different level of incentives and privileges and commonly, prisoners on the basic regime will receive the bare legal minimum in terms of visits or access to private cash and wages. Those on the standard and enhanced regimes will receive progressively more favourable facilities, although the precise nature of these will vary according to each prison’s security category. These regulations also require a number of key items such as phonecards, cigarettes and stamps to be purchased from the private cash allowance.
8.6
VISITS AND LETTERS
There are detailed regulations on communications which are set out in Standing Order 5 which is publicly available from HMSO and which should also be available in the prison library. Visits Convicted prisoners are entitled to a visit on reception to prison and then a minimum of two visits every four weeks. Governors should allow more visits if facilities and staffing make this possible and many prisons do so for prisoners on the standard and enhanced regimes. Prisoners will be issued with visiting orders (VOs), which must be sent out, with the visitors’ names on them. Visitors then present the order on arrival at prison. Up to three adults and four children are normally allowed at once. Most prisons now require visitors to telephone in advance of their visit to ensure that there is sufficient space for it to take place.
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Unconvicted prisoners may have daily visits. These should total at least one and a half hours a week, though in practice such visits are likely to be limited to short daily visits. The prison service have issued instructions to prevent prisoners who are convicted of violent or sexual offences from receiving visits from children in certain circumstances. Prisoners in this group can only receive visits from their biological children or from children with whom they lived before they were imprisoned. Exceptions will only be made to this rule on an individual basis. Visits from legal advisers and probation officers do not count against a prisoner’s visits’ entitlement. Nor is there a restriction on the number of visits allowed from a legal adviser. The Assisted Prison Visits Scheme exists to help close relatives with the costs of travel. All prisoners, convicted and unconvicted, are eligible for assisted visits if the relative(s) qualify because of their low income. The governor or Board of Visitors may grant extra visits if they are considered necessary for the welfare of the prisoner or his or her family. A prisoner who is located far from home may save up to 26 visits a year and then be transferred temporarily to a prison near his or her family to have these accumulated visits. The prisoner must have served at least six months since he or she was allocated to a prison to be eligible for accumulated visits. It is a criminal offence to pass items to a prisoner during a visit, for which the visitor can be fined or imprisoned. Most prisons will allow certain items to be handed in through official channels. The governor has power to refuse or restrict visits on the grounds of security, good order and discipline, or if he or she believes it will prevent or discourage crime, by either: • • •
Refusing visits from certain people. Ordering closed visits, that is, in a small room with a prison officer present. Ordering screened visits where there is a glass partition between prisoner and visitor.
There is power to search and strip-search visitors entering or leaving prisons providing that no more than reasonable force is used, that the decision to search is not perverse and that the search is conducted in a seemly and decent manner and only by members of the same sex as the visitor. Police officers may interview an inmate in prison, but only if the prisoner is willing to be interviewed. The provisions of the Police and Criminal Evidence Act and the Codes of Practice do not generally apply to the interviews in prison, but instructions to the prison authorities say that the spirit of the provisions must be observed as though the interview were at the police station. Copies of the Codes of Practice must be made available in the prison library. The prisoner of course has the right to consult a legal adviser before any interview takes place. There are situations where the visiting arrangements for prisoners may potentially be in breach of Article 8 of the European Convention, which protects the right to a private and family life. These are most likely to occur in situations where women prisoners and young offenders are held in prisons where their families cannot visit or where prisoners are placed on closed visits for an unnecessarily long period of time.
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Letters Convicted prisoners may send one letter a week on which the postage will be paid (the ‘statutory’ letter) and at least one ‘privilege’ letter, the postage for which must be paid for out of the private cash allowance. The statutory letter must not be withdrawn or withheld as part of punishment for a disciplinary offence. In addition, prisoners may be granted ‘special’ letters, which do not count against the statutory or privilege letter allowance. A special letter should be granted, for example, after conviction to allow a prisoner to settle his or her business affairs, when transferred to a different prison or to make arrangements regarding employment and accommodation on release. In practice, prisoners in many prisons may send and receive more letters than this minimum allowance. Prisoners in open prisons have no restriction on the volume of their correspondence. Unconvicted prisoners may send as many letters as they wish at their own expense and will be allowed two second-class letters a week on which the postage will be paid by the prison authorities. Censorship Mail is censored in dispersal prisons (those designed to accommodate high-risk prisoners) and for all Category A prisoners, but otherwise letters will not routinely be read. There is power for the governor to return an ‘excessive’ number of letters from a correspondent, and if they are ‘overlong’ the governor may request letters be limited to four sides of A5 paper. Letters may be returned to the sender if these requests are ignored. Complaints about prison treatment are no longer prohibited and letters – whether to family, to MPs, the ECHR, and so on – may not be stopped on this ground. Letters between a prisoner and his or her legal adviser are protected from interference and may not be read nor stopped, whether or not legal proceedings have been issued. There may be examination of such correspondence only to the minimum extent necessary to check that it is bona fide legal correspondence. If a letter is to be inspected it must be done in the presence of the prisoner.
8.7
TELEPHONES
Card-operated telephones for the use of prisoners are being installed in all prisons so that closer links with family and friends can be maintained by those in prison. For security reasons all calls will be recorded and all calls may be monitored and recorded, except those to legal advisers, the Samaritans and other ‘reputable organisations’. Use of the telephone may be limited by the governor, but should not be restricted as part of a disciplinary punishment unless the offence was directly related to the misuse of the cardphone or phone card. The Prison Rules do not provide any absolute right to use telephones and pilot schemes have been introduced in some prisons to impose restrictions on the use of telephones by having pre-recorded messages informing the recipient of the call that the person calling is in prison. Although these types of restrictions are not prohibited by the Prison Rules, they may, in some circumstances, breach Article 8 of the Convention.
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Contacting the media Prisoners are not allowed to telephone the media from cardphones and must make an application for permission from the governor. Letters sent to the media can be stopped if they contain information about the past criminal offences of the prisoner or others, identify members of staff or are sent in return for payment. Serious comment on the criminal justice system is allowed. It used to be policy for journalists visiting prisons to be asked to sign an undertaking stating that any material obtained would not be used for publication or professional purposes. This policy was ruled to be unlawful by the House of Lords in 1999. Visits from journalists can now be permitted on application to the prison governor. The visits will normally be allowed if the prisoner wishes to discuss a matter relating to their conviction or sentence, but may be more difficult to obtain in other circumstances. A refusal to allow a journalist to visit may potentially breach Article 10 of the European Convention and, if the visit is concerned with a miscarriage of justice, Article 6.
8.8
MARRIAGE AND FOUNDING A FAMILY
High-risk prisoners who wish to get married will have to make arrangements with the prison authorities for a service to take place within the prison. Low-risk prisoners may be given escorted leave or temporary release to marry outside prison. Prisoners, especially those serving long sentences, may wish to start a family with their partner by artificial insemination. Prison Department policy is that this should only be allowed where there are ‘exceptionally strong reasons’, and where the applicant couple are legally married. Article 12 of the European Convention on Human Rights guarantees the right to marry and found a family: a refusal by the Prison Department to allow a prisoner to marry or to start a family by artificial insemination could be challenged under this Article.
8.9
WOMEN PRISONERS
Male and female prisoners will be held completely separately from each other, although this may be in the same prison. As a matter of practice, women prisoners are allowed to wear their own clothes and do not have to wear prison uniform. There are a limited number of mother and baby units within the prison system. A baby may be kept up to the age of nine months in Holloway, 18 months at Styal (both closed prisons) and 18 months at Askham Grange. If the baby has reached these age limits before the mother has served her sentence, the mother may be forced to give up looking after her baby, either then or at an earlier stage.
8.10
CATEGORISATION AND ALLOCATION
There are broadly five categories of prison: 1. Local prisons for unconvicted and short-term prisoners. 2. Dispersal prisons for high security prisoners.
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3. Training prisons for long-term prisoners who do not need the highest security. 4. Category C prisons, which are closed but have less internal security. 5. Open prisons for prisoners not believed to be a risk to the public or in danger of escaping. Immediately after conviction, a male prisoner will be held at a local prison while his security categorisation and allocation are decided. Because there are fewer young offenders and women prisoners and prisons, the arrangements are not exactly the same. Women’s prisons and young offenders’ institutions are simply divided into open and closed establishments. Categorisation There are four security categories: Category A: prisoners whose escape would be highly dangerous to the public, police or security of the State no matter how unlikely their escape may be. Category B: prisoners who do not need the highest conditions of security but for whom escape must be made very difficult. Category C: prisoners who cannot be trusted in open conditions but who do not have the ability or resources to make a determined escape attempt. Category D: prisoners who can reasonably be trusted to serve their sentences in open conditions. Category A prisoners also have an escape risk classification based upon their ability and willingness to escape. The classifications are exceptional, high and standard escape risk. Women prisoners and young offenders may be made Category A, but normally they will either be allocated to open or closed conditions. Categorisation decisions are made by the governor and these can be reviewed by the prisoner casework unit through the complaints or requests procedure. A prisoner can then either make a complaint to the Ombudsman if the decision is considered to be unfair or, alternatively, could apply to the High Court for judicial review of his or her categorisation if there were evidence that it had been arrived at unlawfully, for example, by taking account of irrelevant information or applying the wrong criteria. Category A prisoners have greater restrictions upon them for security reasons, and their visitors will be vetted by the police on behalf of the prison authorities. These prisoners are entitled to a formal, annual review of their security categorisation during which the gist of reports prepared on them will be disclosed and the prisoner invited to make written representations to the decision-making committee. Legal advice and assistance can be sought in making these written representations. Allocation Prisoners may be allocated to any prison in England and Wales according to the offence, sentence, security category and individual circumstances of the prisoner. There is no right to be located close to home, but the prisoner can apply for transfer (as can his or her family, who might wish to put in evidence, for example, from a GP about the difficulties illness causes in travelling long distances). Again, the Ombudsman could intervene in an allocation decision if it could be shown to be
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unfair or, an application can be made to the High Court if the decision is, for example, wrongly motivated, especially if it deprives an unconvicted prisoner of access to his or her lawyers and family.
8.11
DISCIPLINE, ADJUDICATION AND PUNISHMENT
The Prison Rules create a number of offences against discipline which can be punished by the governor. The Board of Visitors no longer has any powers in relation to disciplinary matters. If the alleged offence is too serious for the governor to deal with, it will be referred to the police for prosecution in the criminal courts. If there is to be a referral to the police, a disciplinary charge should still be laid against the prisoner and, if the governor is satisfied that there is a case to answer, he or she should adjourn the hearing pending the outcome of the police investigation. If the police decide not to proceed in the outside courts, the governor may continue the proceedings. However, a prisoner cannot be tried for the same offence in both the criminal courts and before the governor. There is a new offence of prison mutiny, which can be punished with imprisonment for up to ten years, a fine or both. It is committed if two or more prisoners engage in conduct intended to ‘further a common purpose of overthrowing lawful authority’ in a prison. Prisoners may be regarded as taking part in a mutiny if they fail to leave when there is a reasonable opportunity to do so. Offences under the Prison Rules range from the more serious which are also criminal offences (such as assault), to more minor offences, for example, refusing to work or the catch-all ‘in any way offending against good order and discipline’. If the governor is to deal with the alleged offence, then the procedure as set out in the Discipline Manual should be followed (a copy of this should be available to prisoners on request or can be purchased from the Home Office at a price of £2.50). The essential points are: •
A charge must be laid as soon as possible and, ‘save in exceptional circumstances’, within 48 hours of the discovery of the offence.
•
Pending enquiry by the governor a prisoner who is to be charged may be segregated. After the governor’s first enquiry, segregation is only permissible under Rule 43 (see below).
•
The charge must be in sufficient detail for the prisoner to know exactly what is alleged against him or her.
•
The governor must ask if the prisoner understands the procedure and if he or she wishes to be legally represented or assisted, but is not obliged to grant a request for legal representation; as an alternative, the prisoner can ask for the assistance of a ‘McKenzie friend’.
•
If legal representation is refused, the prisoner may still request an adjournment in order to get legal advice from a solicitor.
•
The prisoner may request copies of statements or other written material which is to be used in evidence and the governor should usually allow this.
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•
At the hearing the prisoner must be allowed to put questions to witnesses who give evidence against him or her and to call witnesses who are relevant to his or her defence.
•
The case must be proved to the criminal standard of proof, that is, beyond a reasonable doubt.
The maximum number of additional days which a governor may order to be served as punishment for an offence is 42. If found guilty of more than one offence arising from the same incident, punishment may be ordered to run consecutively, but the total period may not exceed 42 days. Other punishments include forfeiture of facilities (maximum 42 days), stoppage of earnings (maximum 42 days), cellular confinement (maximum 14 days) or exclusion from work (maximum 21 days). A prisoner may ask the prisoner casework unit to review a finding of guilt or the punishment imposed. Before doing so, the prisoner should always request a copy of the record of the disciplinary hearing, which must be provided free of charge. Governors’ disciplinary hearings can also be reviewed by the Ombudsman or the High Court if the governor made a mistake in law or adopted a procedure which was unfair. Prisoners can apply to the governor for cancellation of additional day awards if they have had a period of six months without further awards being made. Neither the seriousness of the original disciplinary offence nor the criminal offence for which the prisoner is serving his or her sentence is relevant to the question of whether an award of additional days should be reduced in whole or part. The question is whether the prisoner’s behaviour and attitude have shown an improvement. The guidelines state that normally no more than half of additional days awarded should be returned on any one application. The prison disciplinary process may potentially breach Article 6 of the European Convention which ensures a fair trial procedure for criminal charges. The Home Office does not consider prison disciplinary hearings to be ‘criminal’, but there is some authority from the European Court that the more serious charges which have parallels in the criminal law should be treated as criminal proceedings. If these arguments are successful under the Human Rights Act, it could mean that prisoners are entitled to legal representation more frequently and that prison governors should not hear the more serious charges as governors are not ‘independent’. Mandatory drugs tests All prisoners can be required to undertake a mandatory drug test, either on a random selection or if the governor has reasonable suspicion that an individual is using or supplying controlled drugs. It is a disciplinary offence to refuse a test or to test positive for a controlled drug. There are statutory defences that the prisoner had lawful excuse to take the drug (for example, as prescribed medicine) or that it was administered to the prisoner without his/her knowledge or consent. The European Court has held that mandatory drug testing in prisons is lawful.
8.12
SEGREGATION AND TRANSFER
Prisoners can be segregated either as punishment following adjudication (maximum 14 days), ‘for the maintenance of good order and discipline’, or at the prisoner’s
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request for his or her own protection. Prisoners segregated as a punishment must first be certified fit for such punishment by the medical officer, who should also see the prisoner daily during segregation and may order a return to normal location on medical grounds. Prisoners segregated in the interests of good order and discipline (GOAD) may not be segregated for more than three days without the authorisation of either a member of the Board of Visitors or the Home Secretary. This authorisation may be for a maximum of one month, but may be renewed from month to month. Reasons for the segregation must be given as soon as possible and ‘as far as practicable’ in writing if the prisoner so requests. Additionally, prisoners considered to be seriously disruptive or subversive may be transferred on a temporary basis to another prison for a period of up to one month for a ‘cooling off’ period. Inmates must be told of the reason for transfer in writing within twenty-four hours of the action being taken. A prisoner transferred under this provision must not be automatically segregated at the new prison. This will happen only if the governor of the new prison considers it necessary and the same rules concerning segregation as detailed above will apply. As a last resort, prisoners can be selected for a place in the Close Supervision Centres. These are special units at Woodhill and Durham prisons where the most dangerous and disruptive prisoners are held. The decision to place a prisoner in a CSC is made by a Committee on behalf of the Secretary of State and will be reviewed monthly by that Committee. Conditions in the CSCs are very severe and there have been concerns that a prolonged stay in a CSC could breach the prohibition against inhuman and degrading treatment under Article 3 of the European Convention. Temporary confinement and restraints Prison officers are instructed not to use force ‘unless absolutely necessary’ and when necessary to use no more force than is ‘absolutely necessary’ to achieve the required objective. A violent or unmanageable prisoner may be placed temporarily in a special or strip cell, but not as punishment, nor may he or she be held in such a cell after he or she has ceased to be violent. The cell will be stripped of furniture except for a mattress or have cardboard furniture which cannot cause injury. This can only be done on the authority of the governor. Furthermore, the governor may order prisoners to be put in physical restraints where necessary to prevent injury to themselves, others, damaging property or creating a disturbance. Body belts, which are made of a leather belt around the waist with handcuffs attached to restrain movement, may be used for this purpose. Physical restraints should only be used in rare and extreme cases. If restraints are used, the medical officer and a member of the Board of Visitors must be informed without delay. If the medical officer disagrees with the order to put the prisoner under restraint the governor must comply with his or her recommendation. Prisoners put into a special cell or mechanical restraint must be observed every 15 minutes and be visited by the governor and medical officer twice every 24 hours. A prisoner may not be held for longer than 24 hours in mechanical restraints without the written authorisation of a member of the Board of Visitors or an officer of the Home Office (who is not an officer of the prison). If a prisoner is held wrongly
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– either unnecessarily or for too long – in a body belt or other restraint, he or she will be entitled to claim damages in the court for assault.
8.13
MEDICAL TREATMENT
Convicted prisoners are in the care of the Prison Medical Service, which is not part of the National Health Service. They therefore have no right to consult the doctor or dentist of their choice for treatment. Unconvicted prisoners, if willing to pay any expenses involved, may be visited and treated by the doctor or dentist of their choice. However, a prisoner who is party to legal proceedings may be visited by an independent doctor where examination is relevant to those proceedings. The Access to Health Records Act 1990 has given the prisoner the right to see (and have copies made on request) their medical records since 1 November 1991 (though disclosure can be refused on the basis that it would cause serious harm to the physical or mental health of the patient or any other individual). All medical information on a prisoner should be treated in confidence and is not to be disclosed except for ‘specifically defined purposes’. The same confidentiality applies to prisoners who are HIV positive. The prison guidelines say, ‘If it seems desirable in the inmate’s interest to inform a third party [that he or she is HIV positive] a member of staff must consult the prisoner and must obtain the prisoner’s consent before disclosing the information.’ The prison authorities may be liable in damages if they negligently reveal confidential information (for example, that a prisoner has committed sexual offences) as a result of which he is assaulted.
8.14
WORK, EXERCISE AND EDUCATION
Work All convicted prisoners may be required to work unless the medical officer has certified the prisoner unfit for all or a specific type of work. It is a disciplinary offence to refuse to work or intentionally to fail to work properly. Account should be taken of a prisoner’s religion so that he or she is not required to work on recognised days of religious observance. This ‘forced’ labour for convicted prisoners is permitted by the European Convention. The Prison Rules give the maximum working day as ten hours, but do not give a minimum working day. Prison workshops are exempt from the provisions of the Factories Act: if injured at work prisoners must rely upon a civil claim of negligence in order to claim damages for their injury. In practice, governors are required to observe the requirements of the Factories Act and the Health and Safety at Work Act 1974; governors are also instructed to give Health and Safety Executive inspectors access to all areas of the prison. If found guilty of a disciplinary offence a prisoner may be excluded from working with other prisoners as part of his punishment for a maximum of 21 days and/or have his earnings stopped or reduced. Wages can only be stopped to their full value for a period of 42 days, but the length of this punishment can be spread out over 84 days (that is, the loss of half of one’s earnings over this period of time).
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Exercise Convicted prisoners no longer have a statutory right to one hour’s exercise each day. There is a right to one hour’s physical exercise a week and it is aimed to allow one hour’s exercise in the open air a day if circumstances permit. Health care advice is that this period should not normally be reduced to less than half an hour a day. Education The prison service is under a general duty to provide evening classes at every prison and to encourage prisoners to ‘profit’ from the educational facilities provided. This does not mean that every prisoner has a right to the educational course of his or her choice, and the prison authorities have a wide discretion as to what educational facilities they provide and who is to benefit from them. Local education authorities provide a programme of evening classes in all prisons, but classroom space is often limited. Facilities for daytime study and remedial teaching vary. The governor is responsible for assessing a prisoner’s needs and suitability for further study. He or she can release individuals from work duty for study. Permission from the prison authorities can be obtained to take a correspondence course and long-term prisoners often study Open University courses leading to a degree. All prisons have at least one library. Governors are instructed that prisoners of compulsory school age should have educational and vocational training for at least 15 hours a week and should be denied education only as a last resort. The lack of provision of adequate educational facilities for young offenders could potentially breach Article 2 of the second protocol of the European Convention. The governor may suspend or end attendance at educational classes if he or she believes it necessary to prevent disruption or for security reasons, or if a disciplinary punishment (for example, segregation) prevents it. However, removal from education may not in itself be ordered as a punishment. Reading and writing materials Prisoners are entitled to have supplied to them at their own expense ‘books, newspapers, writing materials and other means of occupation’, except those that appear objectionable. Generally, material should only be denied if it includes matter which incites or involves criminal or disciplinary offences. While it may be permissible to withhold a particular issue of a publication, a blanket ban may be subject to challenge in the courts. 8.15
PAROLE
The rules regarding release from custody changed in October 1992 and a different scheme applies to all those sentenced on or after 1 October 1992. Sentence prior to 1 October 1992 Prisoners serving more than twelve months will be eligible for release on parole onethird of the way through the sentence. Release will be automatic at the two-thirds stage (subject to any loss of remission for disciplinary offences). Consideration for parole happens automatically but after October 1994 all prisoners will be considered under the new system described below.
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Sentence on or after 1 October 1992 Those serving less than four years will automatically be released halfway through their sentence. For those serving twelve months or less release is unconditional. Those serving over twelve months will be released on licence until the three-quarters point of their sentence and will be subject to compulsory supervision by the probation service. Conditions may be attached to the licence, for example, to attend medical or psychiatric treatment, not to undertake certain types of work, not to communicate with named persons. Prisoners who breach their licences can be recalled to prison until the three-quarters point of their sentence. If the released prisoner commits any offence punishable by imprisonment between the time of his or her release and the date when his or her original sentence runs out, then he or she will be liable to serve the balance of the original sentence which is outstanding at the time of the fresh offence. For those serving four years or more, the system of parole remains and is as follows: prisoners will be eligible for release on parole once half of the sentence has been served; at the two-thirds stage of the sentence the prisoner will be released automatically. Recommendations by the Parole Board to release prisoners serving seven years or more must be approved by the Secretary of State. Between the two-thirds automatic release point and the three-quarters point in the overall sentence, the ‘at risk’ provisions with regard to further offences which are imprisonable apply as they do for short-term prisoners. Long-term prisoners who are in breach of parole licence conditions may be recalled to prison and if recalled may remain in prison until the three-quarters point of the original sentence. If recalled, the prisoner must be told of the reasons for recall and can appeal against the decision in writing to the Parole Board. The parole process for all prisoners will begin six months before the prisoner is first eligible for release on parole. A dossier will be compiled of all the material to go before the Board. The prisoner will be shown all such reports (unless it is considered some material should not be shown: any proposal to withhold material must be referred to the chair of the Parole Board) and his or her comments and representations will go before the Board when the case is considered. An interview is then arranged with a member of the Parole Board and the record of this interview is disclosed to the prisoner and then placed with the other papers. The prisoner should be told whether parole has been granted three weeks before he or she is eligible for release and reasons for the decision will be given. The release dates of long- and short-term prisoners will be subject to postponement if ‘additional day awards’ have been made as punishment for disciplinary offences. The Home Secretary has power to release any prisoner on compassionate grounds ‘in exceptional circumstances’. This power is normally reserved for prisoners who are in the advanced stages of a terminal illness. A prisoner so released will be subject to supervision up to the three-quarters point in the sentence (or, for those serving less than twelve months, the halfway point). Home Detention Curfew Early release for short-term prisoners (those serving less than four years) on Home Detention Curfew (HDC) – commonly referred to as tagging – was introduced on 1 January 1999. The scheme requires prison governors to consider all prisoners serving more than three months but less than four years for release on HDC. Certain
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prisoners are excluded from the scheme including: those under 18 years old; prisoners subject to a hospital order; violent and sexual offenders serving extended sentences; prisoners facing deportation; prisoners who have been released early under an HDC and have been returned to custody; people serving sentences for fine default and contempt of court; and, prisoners who have breached an early release licence and have received a further prison sentence. The length of time that can be spent out of prison on HDC is determined by the length of the sentence being served: •
For sentences of over three months but less than four months, release cannot take place before 30 days have been served.
•
For sentences of four months or more, but less than eight months, one quarter of the sentence must be served.
•
For sentences of eight months or more but less than four years, 60 days before the half-way point of the sentence.
The Prison Service have issued detailed guidance on how risk must be assessed (Prison Service Order 6700). Although there is a presumption in favour of release, the overriding issue for the governor is to ensure that there is no risk to the public and so prisoners convicted of violent or sexual offences or those with a lengthy history of offending will find it more difficult to receive a favourable assessment. Decisions made by the governor can be appealed both internally at the prison and then to the Area Manager. Life sentence prisoners There are two categories of life sentence: a life sentence is mandatory if convicted of murder. The second category includes three different groups of lifers: anyone convicted of murder when under the age of 18 receives a sentence of detention at Her Majesty’s Pleasure; people convicted of a second serious violent or sexual offence will receive an automatic life sentence; and, for other offences (for example, rape, grievous bodily harm), the court may impose a life sentence. This is referred to as a discretionary life sentence. This second group of lifers are all treated in the same way. HMPs, automatic lifers and discretionary lifers The trial judge will usually, when sentencing, fix the punishment period – the tariff – to be served before release can be considered. The length of this tariff may be appealed as with a determinate prison sentence. At the end of this period there will be an oral hearing before a panel of the Parole Board to decide whether the prisoner should be released. The panel will meet at the prison where the prisoner is located to consider the case. The prisoner is entitled to legal representation (and Legal Aid is available for this) to prepare and conduct his or her case. The prisoner is entitled to see all reports which go before the panel except those that would ‘adversely affect the health or welfare of the prisoner or others’. In such a case the reports must still be shown to the legal representative. If the Panel is satisfied that it is no longer necessary for the protection of the public that the prisoner be detained, then he or she will be released. If the Panel does not
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direct release, the prisoner is entitled to have his or her case considered again by the Panel at two-year intervals. Mandatory lifers Those serving a sentence for murder will have a tariff set by the Home Secretary following recommendations by the trial judge and the Lord Chief Justice. The decision is that of the Home Secretary, but the prisoner must be given: •
Information as to the period the judges have recommended should be served for the purpose of deterrence and retribution.
•
The opportunity to make written representations to the Home Secretary as to how long he or she should serve before he or she can be considered for release.
•
Reasons for any decision of the Home Secretary not to follow the recommendation of the judge as to how long should be served for the purposes of retribution and deterrence.
It is arguable that the decision to fix the tariff is part of the sentencing exercise and that it should be set by the judiciary rather than the Home Secretary. There are likely to be challenges made on these grounds under the Human Rights Act. Once the tariff period has expired, life sentenced prisoners may be released if the Parole Board recommends release to the Home Secretary and the Home Secretary, after consultation with the Lord Chief Justice and the trial judge (if available), accepts that recommendation. The first review takes place three years before the tariff expires or three and a half years if the prisoner has been in a category C prison for over twelve months. Subsequent reviews take place at intervals set by the Home Secretary (normally two years) although lifers moved to open prisons are usually reviewed after 18 months. The prisoner will be given a dossier containing details of the offence, progress in custody and up-to-date reports from a range of prison and probation staff. Lifers are normally expected to progress to open prison conditions before release will be authorised. Release will only be authorised if it is felt that the prisoner no longer poses a risk of committing further offences and if there is a satisfactory release plan. Life sentenced prisoners can be detained on these grounds (the risk factor) after the tariff has expired. Once a life sentenced prisoner is released, he or she will remain on life licence and can be recalled to prison by the Home Secretary or the Parole Board if the terms of the licence are breached or if his/her behaviour causes concern. If a prisoner in this position is recalled, a further review will be conducted by the Parole Board to decide on the fairness of the recall. Compassionate release All prisoners are entitled to apply for permanent compassionate release from prison at any time in their sentence. The power to grant compassionate release rests with the Secretary of State and is a wholly discretionary power. The guidelines issued state that it will be considered in cases where a prisoner is terminally ill or in tragic family circumstances where there is an urgent and immediate need for the presence of the prisoner in the family home. In both cases, the facts giving rise to the application must be new (that is, they were not known at the time sentence was passed) and the Secretary of State needs to be satisfied that there is no risk of further
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crimes being committed. In order for an application to be made, the governor of the prison must forward the case to the Sentence Enforcement Unit of the prison service who will then consider whether the case should be referred to the Parole Board for advice. Only a tiny number of these applications are granted each year and the power is most often used in cases where a prisoner is terminally ill to enable the prisoner to be released to a hospice or hospital. Applications based on tragic family circumstances are very rarely granted. Temporary release Prisoners may be released for a set period (usually between two and five days) on the authority of the prison governor. This can be for compassionate reasons, such as attendance at a funeral or for medical treatment, or on resettlement licence. Before temporary release can be granted, all prisoners must pass a risk assessment carried out in the prison. Compassionate temporary release can be granted at any point in the sentence, but is not available to category A prisoners. Resettlement licence can be granted after a prisoner has reached his/her parole eligibility date, but if parole is refused, the application will be suspended for a period of six months. For prisoners serving less than four years, an application can be made after they have served one-third of their sentence. Certain groups are ineligible for any form of temporary release, such as high-risk prisoners, or those who are to be deported at the end of their sentence. Discharge On release, personal clothing and belongings are returned. Suitable clothing will be provided if the prisoner’s clothing is inadequate. Money received on reception will be returned and most prisoners will be eligible for a discharge grant. Those serving under fourteen days are not entitled to the discharge grant, though the prison authorities may give a subsistence allowance to enable the prisoner to get to the local DSS office. A travel warrant to an address in the United Kingdom will also be given. An organisation set up by ex-offenders to address issues of rehabilitation for prisoners, UNLOCK, is currently campaigning to have the discharge grant raised to two weeks payment of income support to prevent released prisoners from falling into a benefit gap between release and receipt of income support.
8.15
FURTHER INFORMATION
Useful organisations Justice 59 Carter Lane London EC4V 5AQ Tel: 020 7329 5100 NACRO (National Association for Care and Resettlement of Offenders) 169 Clapham Road London SW9 0PU Tel: 020 7582 6500
POPS (Partners of Prisoners and Families Support Group) St Marks Cheetham Tetlow Lane Cheetham Manchester M8 7HF Tel: 0161 740 8600
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Prison Reform Trust 2nd Floor, Old Trading House 15 Northburgh Street London EC1V 0PR Tel: 020 7251 5070
UNLOCK 35A High Street Snodland Kent ME6 5AG Tel: 01634 247 350
Prisoners’ Advice Service Unit 305, Hatton Square 16/16a Baldwin Gardens London EC1N 7RJ Tel: 020 7405 8090
Inquest (Deaths in Custody) Ground Floor, Alexander National House 330 Seven Sisters Road London N4 2JP Tel: 020 8802 7430
Women in Prison Unit 3b, Aberdeen Studios 22 Highbury Grove London N5 2EA Tel: 020 7226 8180
Bibliography S. Creighton and V. King, Prisoners and the Law, Butterworths, 2000. M. Leech and D. Cheney (eds), The Prisons Handbook, Waterside Press, 1999. S. Livingstone and T. Owen, Prison Law, Oxford University Press, 1999.
Ijeoma Omambala
9
The Right Not to be Discriminated Against
This chapter deals with: • • • • •
9.1
Race discrimination Sex discrimination Sexual minority discrimination Disability discrimination Further information
RACE DISCRIMINATION
The Race Relations Act 1976 deals with race discrimination in employment and training; education; housing; the provision of goods, facilities and services, and advertising. It also set up the Commission for Racial Equality (CRE). The Act applies to England, Wales and Scotland, but not to Northern Ireland, which now has its own legislation. Complaints by individuals who believe they have been discriminated against must be made either to the employment tribunal (for employment-related matters) or to the County Court. What is discrimination? The Act sets out the circumstances in which discrimination on the grounds of race is unlawful. It defines three types of discrimination: direct discrimination, indirect discrimination and victimisation. The Act defines racial grounds as being on the grounds of colour, race, nationality or ethnic or national origins. Most people think of race discrimination as being less favourable treatment on the grounds of colour or race. However, discrimination on the grounds of nationality, ethnic or national origins is equally unlawful. Thus if a workplace contains Afro-Caribbean and African employees and the employer treats the African employees less favourably by allocating them the menial or less interesting work, that could amount to less favourable treatment on racial grounds. Similarly, if a Japanese bank offered its services to Korean customers on less favourable terms than those offered to other customers, the bank’s actions could constitute less favourable treatment on racial grounds. It is equally unlawful to treat someone less favourably on the grounds of another person’s race so that it is discrimination to treat a white employee less favourably because he or she has a black partner. Direct discrimination Direct discrimination occurs when a person treats another less favourably on racial grounds than he or she would treat, or treats, some other person. Sometimes direct discrimination is very obvious (for example, ‘no blacks here’), but it may be more 205
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subtle. For example, quotas are sometimes operated by some clubs or pubs to prevent their black members or customers from exceeding a specific number or proportion. Or a person might be refused a job or promotion on the grounds that customers would not like it. The Act also covers those who have suffered less favourable treatment because of the race of a third party. For example, if a white employee is dismissed for refusing to obey her employer’s instructions to refuse to serve Asian customers, she would have a direct discrimination claim under the Act. All of these situations are examples of direct discrimination. The intention and motive of the discriminator are irrelevant to the question of whether a person has been subject to unlawful direct discrimination on the grounds of race. Once a race discrimination claim has been found to be proven, a court must consider the intention and motive of the discriminator when looking at the question of compensation and other remedies. Segregation Segregation on racial grounds is defined by the Act as direct discrimination. Providing separate washing facilities for white and Asian employees, even if the facilities are of the same standard, might be an example of segregation on racial grounds. Similarly, only employing ethnic minorities in ‘back room’ roles where they have no contact with the public but allowing others a full range of roles and duties might be an example of segregation on racial grounds. Indirect discrimination Indirect discrimination occurs when a racial group is unjustifiably at a disadvantage in its ability to comply with a specific requirement or condition. For example, a job that requires the employee to be clean-shaven would put Sikhs in general at a disadvantage. Excluding job applicants who live in a certain area of a city, where that area is occupied by a higher proportion of ethnic minority people, would put ethnic minority candidates at a disadvantage. If the requirement cannot be objectively justified with reference to criteria other than race, a claim for indirect discrimination would lie. Only people who experience this disadvantage themselves can bring a complaint. The concept of indirect discrimination is not user-friendly. The legal definition and the case law it has generated are complex and abstruse. Perhaps as a result, this provision of the Act is greatly underused. If you consider you unjustifiably suffer a disadvantage because you cannot comply with a requirement or condition you should consider seeking specialist help (see p.249). Intention is a relevant question in a claim based on indirect discrimination. The motive of the alleged discrimination is not considered when the tribunal or court is deciding whether, in fact, you have been discriminated against. However, once a finding of indirect discrimination has been made, a tribunal or court can decide not to make an award of compensation to you because it is satisfied that the discrimination was unintentional. Victimisation Victimisation occurs when one person treats another less favourably than he or she treats, or would treat, someone else in those particular circumstances because the person victimised has done any of the following:
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•
Brought proceedings against the discriminator or any other person under the Act; or
•
Given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Act; or
•
Otherwise done anything under or by reference to the Act in relation to the discriminator or any other person; or
•
Alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of the Act; or
•
The discriminator knows that the person victimised intends to do any of those things or suspects that the person victimised has done, or intends to do, any of them.
It is not necessary for the person bringing the claim to show that the alleged discriminator was consciously motivated by the fact that he or she had done a protected act. A person making allegations of discrimination must make those allegations in good faith in order to be protected by the victimisation provisions of the Act. An example of a situation in which a claim of victimisation might arise is where another employee accuses his or her boss of discriminating against him or her on the grounds of race and as a result of the complaint is demoted or disciplined. Or, if a white colleague suggests that a manager has treated a black employee unfairly and then finds him- or herself ostracised or subject to unwarranted criticism from that manager or his employer, this too might amount to unlawful victimisation. Responsibility for acts of discrimination The Act makes unlawful certain types of discrimination. These are considered below. It also makes it unlawful to instruct someone to carry out an unlawful act of discrimination or to induce or attempt to induce, directly or indirectly, such an act. Only the CRE may bring proceedings in respect of such unlawful instructions and/or inducements. Employment and training This is dealt with in Part II of the Act. Employers are made responsible for the unlawful acts of their employees, which are acts done during the course of employment. The employer can avoid liability for the unlawful acts of employees if it can be shown that the acts complained of fell outside the scope of employment. Courts and tribunals must take a common-sense view as to what is meant by ‘in the course of employment’ in accordance with the layperson’s understanding of those words. Employers can also avoid liability for their employees’ acts of discrimination if they can show that they took such steps as were reasonably practicable to prevent their employees from doing such unlawful discriminatory acts. Such steps might include the provision of equal opportunity training, ethnic monitoring of the workforce, the distribution of an equal opportunities policy statement and its implementation. It is also unlawful for a person, including an employee, to aid another to do an unlawful act of discrimination. Thus, where an employee devises a plan to send a racially offensive card to an employee who is a member of a racial group and enlists
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the help of a colleague to carry out that plan, both the originator of the plan and the colleague may be guilty of unlawful discrimination on the grounds of race. It is unlawful for an employer to discriminate against you on grounds of race in any of the following ways: • • • • • •
Refusing to hire you or consider you for a job. Offering you a job on less favourable terms than other people. Refusing to promote you or transfer you to another job. Refusing to make provision for you to be trained. Giving you less favourable fringe benefits. Putting you on short-time work, dismissing you or making you redundant.
As the law stands, if you are discriminated against or victimised by your former employer after your employment has terminated – for example, in the conduct of an appeal hearing, or by the content of a reference – you have no remedy under the Act. The Act covers both permanent and temporary jobs, whatever the size of the firm. It covers apprentices and trainees as well as other employees; partners in a firm of six or more partners (such as a solicitors’ firm); the police (who are not technically employees); subcontracted workers (such as the ‘lump’ building workers or night cleaners), and employment agencies. It is unlawful for the Government to discriminate on race grounds in appointing people to serve on public bodies. It is also unlawful for trade unions and professional associations to discriminate in any of the following ways: • • • • •
Deciding whom to admit to membership. Refusing to let you join. Only allowing you to join on less favourable terms. By giving you fewer benefits, facilities or services or refusing to let you have any of these benefits (for example, legal services, representation in a dispute). Expelling you or subjecting you to any other disadvantage.
Similarly, it is unlawful for any licensing body (for example, the Law Society, which licenses solicitors; the Director General of Fair Trading, who licenses credit and hire businesses, or the police, who license taxi-drivers) to discriminate on racial grounds in deciding who can have a licence. Furthermore, whenever one of these bodies has to consider an applicant’s ‘good character’ before giving a licence, they will be able to take into account any evidence about previous unlawful race discrimination. So, for instance, magistrates who are renewing a publican’s licence should take account of any evidence that the publican or his or her employees had previously refused to serve ethnic minority groups. The Courts and Legal Services Act 1990 extended the non-discrimination provisions of the Act to the legal profession. Racial abuse and harassment at work If you are subjected to racial abuse and/or racial harassment at work you may be able to bring a claim under the Act. Racial abuse or harassment is a form of direct discrimination on racial grounds. However, you will have to prove on a balance of
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probabilities that as a result of the insult, abuse or harassment you are disadvantaged at work, in order to succeed in your complaint. Exceptions It has already been noted that not all race discrimination is made unlawful by the Act. Racial discrimination is still lawful in any of the following situations: •
Employment in a private household.
•
If an employer wants to employ someone who is not ordinarily resident in Great Britain, but who will be trained here before going to work abroad.
•
Employment of workers on ships who were recruited outside Great Britain.
•
Employment outside Great Britain.
•
Employment in dramatic performances, or for artists’ or photographic modelling, where someone of a particular racial group is needed for reasons of ‘authenticity’.
•
Employment in restaurants, for example, with a particular setting where someone of a particular racial group is needed for reasons of authenticity (for example, Chinese waiters or waitresses in a Chinese restaurant).
•
Employment of someone to provide personal services to a particular racial group, where someone of the same racial group can do the job most effectively.
The last three exceptions are known as ‘genuine occupational qualification’ exceptions. If race is genuinely an occupational qualification, then the employer may legitimately discriminate in the last three ways described above. In any of these cases, the employer must try to fill a vacancy from existing workers before discriminating on racial grounds. The CRE has published a Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment, which is obtainable from the CRE (see p. 249). The Code sets out guidelines of good race relations practice although it is not enforceable in law. Training It is unlawful for any of the following training organisations to discriminate on race grounds: • • • • •
Industrial training boards. Employment Services Agency. Training Services Agency. Employers’ organisations which provide training. Any other organisation designated by the Home Secretary.
These organisations are, however, allowed to practise ‘positive discrimination’ where there have been no people of a particular racial group, or very few, doing a particular kind of work, either in the whole of Great Britain or in a region, in the previous twelve months. In this case they will be allowed to run training courses or provide facilities for that racial group only, or to encourage people from that group to take up a particular kind of work. Employers will also be allowed to run training courses for a particular racial group only, or to encourage them to take up a particular kind of work, where there have
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been no people of that racial group, or very few, doing that kind of work in the firm during the previous twelve months. Trade unions and professional organisations are also allowed to organise special training courses to encourage people from a particular racial group to hold posts within the organisation (for example, as shop stewards or officials) where there have been very few or no people from that group holding such posts in the previous twelve months. Education Part III of the Act deals with discrimination in the field of education. The Race Relations Act applies to schools or colleges maintained by a local education authority (LEA), independent (‘public’ or fee-paying) schools, or colleges, special schools, grant-maintained ‘opted-out’ schools and universities. The Home Secretary can also designate other establishments to be covered by the law. It is unlawful for any educational body (including the governors of a school or college and an LEA) to discriminate on race grounds in any of the following ways: • • • • •
The terms on which they admit you. Refusing to admit you. Providing more facilities or better facilities for particular racial groups. Expelling you or in any other way putting you at a disadvantage. Acting in any other way which involves race discrimination.
If you or your child has been discriminated against, you will have to make a complaint to the Secretary of State for Education (this does not apply to complaints against independent schools or universities where you apply to the institution directly). The Minister will have two months in which to do something about your complaint. If the Minister rejects your complaint, or the two months run out, you can make a complaint to the County Court. A County Court action must be brought within six months (or eight months if the complaint has first gone to the Minister). The Act also puts a general duty on LEAs to ensure that educational facilities are provided without race discrimination. This duty is a general duty and cannot be enforced by you directly. You can, of course, draw the attention of local councillors and school governors to it. The general duty can only be enforced by the Secretary of State for Education ordering the LEA to carry out its duties reasonably. It is lawful for LEAs and other bodies to provide special facilities to meet the particular needs of a racial group (for example, for language classes). Overseas students There is only one exception to the education sections of the Act and this concerns overseas students. It is lawful for any organisation or individual providing education or training to discriminate on racial grounds against people who are not ordinarily resident in Great Britain and who do not intend to remain in Great Britain after their period of education or training. This means, for instance, that it is lawful for colleges or halls of residence to charge higher fees to overseas students.
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Housing Housing and premises, such as business premises, are also covered by Part III of the Act. In general, it is unlawful for someone to discriminate on race grounds, when selling, letting, subletting or managing property, in any of the following ways: • • • • • •
In the terms on which you are offered the premises. By refusing to let you buy or rent the premises. By treating you differently from other people on a list of people wanting to buy or rent the premises. By refusing to agree to the transfer of a lease to you. By refusing you access to any benefits or facilities in the premises you occupy. By evicting you or subjecting you to any other disadvantage.
The law covers private landlords and owner-occupiers as well as local authorities. Exceptions There are three main exceptions. 1. Owner-occupiers selling or letting their property are excluded, provided that they do not advertise or use an estate agent. 2. Small residential premises (for example, small boarding houses or shared flats) are excluded. To qualify as ‘small residential premises’, the owner or occupier (or a near relative) has to live permanently in the house or flat; part of the house or flat, other than stairs or storage space, has to be shared with other people; and there must be only two households (other than the owner’s or occupier’s household) or not more than six people (other than the owner’s or occupier’s household) in the house or flat. A boarding house containing more than six lodgers, in addition to the landlord/lady’s family, would not be allowed to discriminate, but a boarding house with fewer lodgers would be allowed to. 3. Charities and membership bodies whose main purpose is to provide benefits for a particular racial group are allowed to provide housing for that group only. But these organisations will not be allowed to discriminate on grounds of colour, only on grounds of race, nationality or national or ethnic origin. Goods, facilities and services Part III of the Act also covers any ‘goods, facilities or services’ which are offered to the public or a section of the public. This means, for instance, the services and facilities offered by hotels, boarding houses, pubs and restaurants, banks, insurance companies, credit houses and hire purchase firms, transport authorities and local authorities. Direct or indirect discrimination (see p. 205–6) by any such organisation will be unlawful. If you have been discriminated against on racial grounds by someone offering goods or services to the public, you must bring your action in the County Court. An action must be brought within six months. Any contract (for example, to buy goods or supply services) which includes a term which discriminates on racial grounds is void and can be amended by applying to the County Court to strike out that term formally.
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Exceptions There are a number of situations where race discrimination remains lawful: •
Any arrangement where someone takes a child, elderly person or someone needing special care and attention into his or her home to be looked after (for example, fostering children).
•
Goods, facilities or services provided outside Great Britain, or insurance arrangements to cover a situation outside Great Britain. (But the services of, for instance, a travel agent in this country, even though it arranges foreign travel, will still be covered.)
•
Charities and voluntary organisations whose main purpose is to provide benefits for a particular racial group (but these organisations will not be allowed to discriminate on grounds of colour, only on grounds of race, nationality or national or ethnic origin).
•
Special arrangements can be made for members of a particular racial group who have particular needs for education, training, welfare, and so on (for example, language classes).
•
Discrimination on grounds of nationality, place of birth or length of residence is permitted in: (a) selecting people to represent a particular place or country in a sport or game; or (b) deciding who is eligible to compete in any sport or game, according to the rules of the competition.
Prisons The provisions prohibiting unlawful discrimination in housing and in relation to goods, facilities and services have been held to prevent the unlawful discrimination by prison officers in the allocation of work to prisoners. They also probably make unlawful other discrimination occurring in the prison regime (for example, more unfavourable withdrawal of privileges from, and more frequent strip searches of, black prisoners). Clubs Under the previous race relations laws, private clubs, such as political and workingmen’s clubs, were allowed to discriminate on race grounds. It is now unlawful for any club or society with 25 or more members to discriminate on race grounds in any of the following ways: • • • • •
Refusing to allow you to join. Offering you less favourable terms of membership. Giving you fewer benefits, facilities or services or refusing to let you use or have any of these benefits (for example, social facilities). Expelling you from the club or changing the terms of your membership. Putting you at a disadvantage in any other way.
But a club or society whose main purpose is to provide benefits for people of a particular racial group, whatever its size, will continue to be allowed to discriminate on race grounds (although not on grounds of colour).
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Advertisements It is unlawful to insert, publish or cause to be published an advertisement which indicates that an employer, a company or anyone else intends to discriminate unlawfully. The absence of an intention to discriminate is no defence. Only the CRE (see below) will be able to take legal action against discriminatory advertisements. If you see an advertisement which you believe breaks the law you should bring it to the Commission’s attention. You can also make a complaint about the advertisement to the person displaying it yourself. Discrimination is allowed where exceptions in the law exist, for example, advertisements for jobs to which the genuine occupational qualification applies, for employment outside the United Kingdom and for posts and training where positive action is permitted. But an advertisement for employment in a private household must not be racially discriminatory. Commission for Racial Equality The Commission for Racial Equality (CRE) was set up by the Race Relations Act 1976 with the duties of: •
Working towards the elimination of discrimination.
•
Promoting equality of opportunity and good relations between persons of different racial groups generally.
•
Keeping under review the working of the Act and, when required by the Home Secretary or when it otherwise thinks it necessary, to draw up and submit to the Home Secretary proposals for amending it.
In carrying out its duties, the CRE has the following powers: •
To undertake formal investigations into discriminatory practices which are unsuitable to be dealt with on an individual basis.
•
To support, including financially, individuals taking up complaints of discrimination.
•
To issue Codes of Practice on employment. The first Code was approved by Parliament in 1984. It is not legally binding, but can be used in evidence at an industrial tribunal.
•
To examine areas of policy outside the scope of the Act.
•
To issue non-discrimination notices. This happens if the CRE decides, as a result of a formal investigation, that the law has been broken.
•
To fund research and other projects.
•
To apply for an injunction if it believes someone has broken the law and is likely to go on doing so. In the following circumstances, it is the CRE alone which can take action, such as applying for an injunction, if discrimination has taken place: (a) if an advertisement demonstrates an intention to discriminate unlawfully; (b) if someone instructs an employee or agent to discriminate unlawfully; (c) if someone puts pressure on anyone else to discriminate unlawfully.
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Investigations The CRE can conduct ‘formal investigations’ into any subject it chooses – for instance, employment patterns in a region, the recruitment policies of a firm, housing allocation policies in local authorities, and so on. The CRE must give notice of its intention to hold a formal investigation and draw up terms of reference. If it is investigating a particular organisation or person and states in the terms of reference that it believes they are discriminating unlawfully, then it will be able to require them to give evidence or produce information. The power to take evidence and summon witnesses will also apply in other investigations with the consent of the Home Secretary, or if the aim of the investigation is to see whether a non-discrimination notice is being obeyed (see below). Either during or at the end of an investigation, the CRE can make recommendations for changes which would promote equality of opportunity. These recommendations will not be legally binding, but could be used to bring pressure on the organisation or person, or as evidence in an individual case against them. Non-discrimination notices The CRE will be able to issue a non-discrimination notice if it decides, during a formal investigation, that an organisation or individual has discriminated unlawfully. The non-discrimination notice requires the organisation or person named in it to stop discriminating unlawfully and, if necessary, to let the people concerned know what changes have been made in their procedures or arrangements in order to obey the non-discrimination notice. Before issuing the notice, the CRE must warn the organisation or person concerned that it is thinking of doing so, and give it or them 28 days to make representations. Once the notice is issued, the organisation or person named can appeal to the industrial tribunal (in an employment case) or the County Court. The appeal must be made within six weeks of the issue of the notice. If the appeal fails, or no appeal is made, the non-discrimination notice becomes final; in other words, it can be enforced. The CRE keeps a register of notices that have become final and anyone is entitled to inspect this register and take a copy of any notice in it. Injunctions A non-discrimination notice can only be enforced if the CRE goes to court and gets an injunction. It can do this at any time within five years of when the notice becomes final if it thinks that the organisation or person named in the notice will continue to discriminate unlawfully. An injunction is an order by a County Court or the High Court ordering someone to stop acting in a particular way. If the organisation or person does not obey the injunction, they will be in contempt of court and the CRE can apply to the court to have the people involved fined or imprisoned. The CRE may also apply to the County Court for an injunction without issuing a non-discrimination notice in the following circumstances: •
If someone has successfully brought a complaint against an individual or organisation and the CRE considers that the individual or organisation will go on discriminating unlawfully.
•
If the CRE considers that someone has discriminated unlawfully and is likely to go on doing so; in this case, the CRE must itself apply to the industrial
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tribunal or County Court to get a finding that the person concerned has in fact discriminated unlawfully. •
If the CRE considers that someone has published an unlawful advertisement (see p. 213), instructed an employee or agent to discriminate unlawfully, or put pressure on anybody else to discriminate unlawfully. Only the CRE can take action on these kinds of unlawful acts.
Time limits A complaint about race discrimination in employment must be brought to an employment tribunal (see p. 326) within three months of the act or failure to act being complained of. The tribunal has discretion to extend the time for bringing a complaint of race discrimination if, in all the circumstances of the case, it considers it just and equitable to do so. A tribunal might be persuaded to extend the time for presentation of your claim or allow a late claim to proceed if you can provide a good explanation for your delay in making a claim. Explanations which might be accepted are that you were not aware of your right to make a complaint under the Act; that you have been ill and that prevented you lodging your complaint in time; or that you were trying to resolve matters within the organisation by pursuing an internal grievance or appeal. In all these cases a tribunal or court would expect to have evidence from the complainant put before them before they allowed a late claim to proceed. Enforcement and remedies In order to win a case of race discrimination (see p. 249 for more information about making a complaint of race discrimination), you must show that you were being treated less favourably than someone of different racial or national origins would be treated and that the treatment you received was because of or on the grounds of your race. It is also necessary to show that you suffered some detriment or disadvantage as a result of this differential treatment. The courts have recognised the difficulties of proving a discrimination claim and have given guidance that in direct discrimination and victimisation claims it may be permissible to infer that unlawful discrimination has occurred from the primary facts. Therefore, if a complainant is able to show a difference in treatment between him- or herself and another person and a difference in race, then a tribunal is entitled, but not required, to draw the inference that the reason for the difference in treatment is on racial grounds. If a complaint of race discrimination is successful, a court or employment tribunal has the power to make a declaration and to consider the grant of a number of remedies. A court or tribunal can award compensation if it thinks it is just and equitable to do so. Provided that a complainant can prove that he or she has suffered the losses alleged, there is no limit on the compensation that a tribunal or court can award. Injury to feelings is a detriment or disadvantage recognised by employment tribunals and the courts for which compensation may be awarded. A court or tribunal can also make an order for the payment of compensation for past or future loss of earnings if you have suffered financial loss as a result of the discrimination you are complaining about. If you have suffered injury to your health as a result of the unlawful discrimination, you can also receive compensation for this injury. It is important to remember that the burden of proof is on you. This
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means that you must provide the employment tribunal or court with enough evidence to prove your claim. Local authorities and race equality The Act imposes a duty on every local authority to make appropriate arrangements with a view to seeing that their various functions are carried out with due regard to the following needs: • •
To eliminate unlawful racial discrimination. To promote equality of opportunity and good relations between persons of different racial groups.
This duty affects every power and duty of a local authority. Criminal acts to stir up racial hatred The Public Order Act 1986 prohibits certain acts intended or likely to stir up racial hatred (see p. 49). No prosecution for these offences may be brought without the Attorney General’s permission. The Act covers: •
The use of words or behaviour or displays of written material which are threatening, abusive or insulting and intended to stir up racial hatred. The acts do not have to be committed in public; however, such acts, if committed in a private dwelling, are outside the Act.
•
Publishing or distributing to the public written material that is threatening, abusive or insulting and intended to stir up racial hatred or which, in the circumstances, is likely to stir up racial hatred. This will include racist graffiti as well as newspaper articles and other similarly offensive racist material that is threatening, abusive or insulting.
•
The public performance of a play that involves the use of threatening, abusive or insulting words or behaviour intended to stir up racial hatred or that, in the circumstances, are likely to stir up racial hatred. There are defences to this offence which apply in very limited circumstances. The offence is primarily aimed at the presenter and director, but actors who alter their lines will be within the prohibition.
•
Distributing, showing or playing a recording of visual images (including video recordings) or sound which is threatening, abusive or insulting and which is intended to stir up racial hatred or which, in the circumstances, is likely to stir up racial hatred.
•
Broadcasting (including a programme in a cable programme service) which is threatening, abusive or insulting and which is intended to stir up racial hatred or which, in the circumstances, is likely to stir up racial hatred. (For further controls on broadcasting see Chapter 2.)
Inflammatory material The Public Order Act 1986 also makes it an offence to have possession of written material which is threatening, abusive or insulting, or a recording of visual images or sound which is threatening, abusive or insulting with a view to use it, and with
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the intention that racial hatred will be stirred up or in circumstances in which it is likely to be stirred up. Powers of entry, search and forfeiture are given in respect of such material. Again, prosecutions may only be brought with the Attorney General’s consent. In the Public Order Act 1986, ‘racial hatred’ is defined as hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins. This definition does not include religion. It may also exclude Travellers (see also p. 359). The Criminal Justice and Public Order Act 1994 This renders racial, sexual and other forms of harassment in the street and at work a criminal offence punishable by imprisonment. The Act creates a new offence of causing intentional harassment, alarm or distress by the use of threatening, abusive or insulting words, behaviour, writing, sign or other visible representation. It also makes the publication of racially inflammatory material an arrestable offence. The Protection from Harassment Act 1997 This Act is designed to protect individuals from harassment and similar conduct. It was passed for the purpose of dealing with ‘stalking’ but there is no reason why in appropriate circumstances it should not be used to protect victims of racial harassment. The Act does not define harassment, although it makes clear that alarming a person or causing a person distress may constitute harassment. It creates an offence of putting people in fear of violence being used against them. There is a racially aggravated form of this offence. It creates a criminal offence of harassment with a maximum term of imprisonment of six months and/or a fine. The Act also provides a civil remedy to victims and permits the grant of an injunction and an award of damages where the criminal offence is proved against the harasser. The Crime and Disorder Act 1998 Section 29 creates a category of racially aggravated offences. These are: malicious wounding or grievous bodily harm and actual bodily harm. On summary conviction both carry liability to a term of imprisonment not exceeding six months or to a fine. On conviction on indictment the maximum term of imprisonment is a term not exceeding seven years, or to a fine, or both. There is also an offence of racially aggravated common assault, which carries a maximum term of six months on summary conviction or a fine or both; and on conviction on indictment to imprisonment for a maximum of two years or a fine or both. Developments in the law – Amendments to the Race Relations Act Proposed amendments to the Race Relations Act The Race Relations Act has been extended to cover discrimination (both direct and indirect) in services provided by public bodies such as the police and others. New provisions impose a statutory duty on public bodies to promote race equality will also be included. European Directive Following on from the adoption a general non-discrimination provision in the 1997 Treaty of Amsterdam which made it possible for the European Commission to take
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legislative action in respect of race discrimination, the Commission has produced a draft Directive outlawing race discrimination in a number of fields including in employment and the provision of services. However, the Directive is unlikely to come into force before 2001 and Member States will then have up to two years to implement its provisions. The Human Rights Act 1998 The Act came into force on 2 October 2000 and is intended to incorporate the rights and freedoms of the European Convention on Human Rights into British law. The Act is intended to build upon and supplement existing legal protection of human rights in UK law. It is anticipated that the Act will have a very significant impact on the way in which legal arguments are formulated; and on the ways in which courts, tribunals and other quasi-judicial bodies carry out their functions. The Act requires all courts to decide the cases before them in a way that is compatible with Convention rights so far as it is possible to do so. Courts are required to proceed on the basis that Parliament intended all its legislation to be compatible with the Convention. Where it is not possible to interpret legislation in a way to be compatible with the Convention, the Appellate Courts may strike down subordinate legislation and, in the case of primary legislation, make a declaration of incompatibility. Such a declaration does not affect the validity, continuing operation or enforcement of the legislation declared incompatible with the Convention. Its effect may be largely political. The declaration in essence is a warning to Parliament that an incompatibility has been identified. Courts are also required to take the case law of the European Court of Human Rights into account in so far as they consider it is relevant to the proceedings before them. In addition, the Act makes it unlawful for public authorities, which includes all courts and tribunals and any person certain of whose functions are of a public nature, to act in a way which is incompatible with the Convention. The Act will create new, directly enforceable rights against public bodies and against quasi-public bodies with some public functions. Individuals who believe their rights have been infringed, or that the public body has acted in breach of Convention rights, will be able to bring proceedings against that public body and/or rely on their Convention rights in proceedings brought by others. The remedies available for breach of Convention rights are wide-ranging and include the award of damages. The Act does not make Convention rights directly enforceable against private individuals nor against quasi-public bodies that are acting in a private capacity. However, in some cases the Act will have an indirect effect on the outcome of a case against private individuals because the court will be obliged to interpret any statute so as to be compatible with the Convention wherever possible. Whilst the most frequent use of the Act is likely to be interpretative, there are a number of specific provisions in the Act that may have particular relevance in the context of race discrimination. Article 3 This provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. European Court guidelines define inhuman treatment or
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punishment as treatment or punishment that causes intense physical and mental suffering; and degrading treatment or punishment as treatment or punishment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance. The European Commission has recognised that the institutionalisation of certain practices can amount to degrading treatment contrary to Article 3. This may include institutionalised racism. Article 8 This Article provides that everyone has the right to respect for his private and family life, his home and his correspondence. Unlike Article 3, this right is a qualified one designed in essence to protect the individual from arbitrary action by public authorities. A violation of Article 8, even if proved, may be legitimate if it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 may be applicable to surveillance at work where this is targeted at a specific racial group. It may also provide protection from adverse treatment in the workplace for speaking to colleagues in one’s own (minority) language. This Article may also assist in providing protection from racial harassment and bullying. Article 9 This Article provides that everyone has the right to freedom of thought, conscience and religion; this includes freedom to change religion or belief and, either alone or in community with others, and in public or private, to manifest religion or belief, in worship, teaching, practice and observance. This is also a qualified right. In a race discrimination context Article 9 may have some relevance in cases concerning restrictions on dress and appearance which interfere with religious or cultural convictions. It is, however, doubtful that Article 9 will provide any meaningful extension to the existing law since the interpretation given to the right by the Strasbourg case law has been relatively narrow. The European case law on Article 9 has been particularly restrictive in cases where discrimination has been alleged as a consequence of religious beliefs. Article 10 This Article provides that everyone has the right to freedom of expression. It is a qualified right in the sense that violations of Article 10 may be legitimate if they are in accordance with or prescribed by law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 10 might have some application in protecting minority employees who converse with fellow minority employees in their own language at work and are penalised as a result. It may also be relevant to situations where dress and appearance codes are imposed by employers and interfere with religious or cultural beliefs.
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Article 14 This Article prohibits discrimination in respect of access to other Convention rights. It is not a free-standing guarantee of equal treatment or a prohibition on discrimination more generally. Its purpose is to guarantee equality before the law of the Convention. The grounds of discrimination identified by the Act and the European Court and the Commission have been widely interpreted. They are not closed. The grounds include race, nationality and religion. It is only differences in treatment of people in analogous situations which falls within Article 14 and thus far the European Court has interpreted this condition quite strictly. However, there is no requirement that the difference in treatment has caused a detriment to the complainant. Discrimination can be justified with reference to the aims and effects of the measure complained of; and to whether there is a reasonable relationship of proportionality between the means used and the aims to be achieved. There are a number of areas where the Court has recognised that it will take very weighty reasons to justify discriminatory measures. These areas include race, nationality and religious discrimination. Article 14, read together with Articles 5, 8, 9 and 10, may have some application in a race discrimination context, perhaps, to challenge discriminatory policing like stop and search; or to challenge dress codes or language restrictions at work.
9.2
SEX DISCRIMINATION
This section deals with sex discrimination in education; housing; the provision of goods, facilities and services; advertising, and social security. The duties and powers of the Equal Opportunities Commission are also explained here. Sex discrimination in pay and terms and conditions of work is dealt with in Chapter 13, as is information on maternity rights for working women. Sex discrimination as it relates to immigration and nationality is dealt with in Chapter 10. What does the law cover? The law relating to sex discrimination is heavily influenced by European Community law. Article 119 of the Treaty of Rome provides that ‘Each Member State shall maintain the application of the principle that men and women should receive equal pay for equal work.’ Article 119 is extended by additional Directives. The most relevant being the Equal Pay Directive (Directive 75/117) and the Equal Treatment Directive (Directive 76/207) (ETD). The Sex Discrimination Act 1975, as amended by the Sex Discrimination Act 1986 (SDA), covers discrimination in the following areas: • • • •
Employment. Education. Goods, facilities and services. Housing.
The Act covers discrimination against men and women. The Act has been amended to bring discrimination against transsexuals within its scope. Whilst there is no legal
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definition of transsexualism there is now a statutory definition of ‘gender reassignment’ in the Sex Discrimination Act as amended. Discrimination on the grounds of sexual orientation is not expressly covered by the Sex Discrimination Act. The Act also makes it unlawful to discriminate against married people in the fields of employment and training. But this does not apply to the other areas of the Act listed above. Discrimination against single people because of their marital status is lawful. The SDA does not cover: • • • •
Tax. Social security. Immigration. Nationality.
There are other exceptions within the areas that are covered by the law. These are mentioned below, under the relevant headings. What is discrimination? The Sex Discrimination Act 1975 defines discrimination in two ways: direct and indirect. Direct discrimination Direct discrimination is when you are or would be treated less favourably in the same circumstances than someone of the opposite sex, just because of your sex. For example, admitting only boys to a GCSE course in electronics at a mixed school would be direct discrimination; so would offering hire-purchase facilities only to men, or half-price entry to a disco only to women. Indirect discrimination Indirect discrimination occurs when a requirement or condition is applied to both sexes in any area covered by the Act with which, in practice, far fewer members of one sex than the other can comply. Indirect discrimination is unlawful if it cannot be shown to be justifiable irrespective of sex and if the aggrieved person can show that the discrimination causes them detriment. For example, an after-school computer club open only to pupils taking an examination course in computer science could be against the law if hardly any girls took the examination course. Similarly, a housing association which excluded single parents from membership could be indirectly discriminating because the vast majority of single parents are women. Victimisation The Act also protects you against victimisation for taking action under either the Sex Discrimination Act or the Equal Pay Act. This provision makes it unlawful to treat you less favourably than anyone else because you have done any of the following: • •
Made a complaint under either of the Acts. Helped someone else to make a complaint.
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Given evidence in a court or tribunal in a case under either of the Acts. Accused someone of breaking either of the Acts. Taken any other action in connection with either of the Acts.
So, for example, it would be an act of unlawful victimisation for a former employer to refuse to provide an ex-employee with a reference because that ex-employee has brought proceedings against him or her. The complainant does not need to show that the discriminator was consciously motivated by the fact that he or she had carried out one of the above protected acts. A person making allegations of discrimination must make those allegations in good faith in order to be protected by the victimisation provisions of the Act. Sexual harassment The SDA does not contain any express provisions in relation to sexual harassment. However, sexual harassment is a form of direct discrimination. It is recognised as a serious issue and the source of much misery and distress for victims and their families. Sexual harassment can take a variety of forms. The term suggests a degree of repetition in the conduct or behaviour complained of, but this is not always necessary. A single incident can in some circumstances be properly described as sexual harassment. The European Commission Code of Practice on Measures to Combat Sexual Harassment provides a helpful outline definition. It states that sexual harassment includes unwanted conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at work. It can include unwelcome physical, verbal or non-verbal conduct. Sexual harassment may include ridicule, unwelcome comments about appearance, demands or requests for sexual favours and even actual physical assault. Men may also be subject to sexual harassment as some recent employment tribunal decisions have acknowledged. In order to succeed in a claim founded on sexual harassment, the complainant must show that the behaviour complained of is less favourable treatment on the grounds of sex and that she or he has suffered a detriment as a result. The Protection from Harassment Act 1997 This Act is designed to protect individuals from harassment and similar conduct. It was passed for the purpose of dealing with ‘stalking’; as such in appropriate circumstances it can be used to protect victims of serious sexual harassment. The Act does not define harassment, although it makes clear that alarming a person or causing a person distress may constitute harassment. It creates an offence of putting people in fear of violence being used against them. It creates a criminal offence of harassment with a maximum term of imprisonment of six months and/or a fine. The Act also provides a civil remedy to victims and permits the granting of an injunction and an award of damages where the criminal offence is proved against the harasser. Public hearings and publicity The fact that employment tribunal hearings, in particular, are public hearings and are often attended by the press has on occasion deterred individuals who have been subjected to harassment from pursuing their case to tribunal. Where cases involve allegations of sexual misconduct or conduct related to sex, gender or sexual
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orientation, employment tribunals are able to make an order prohibiting publication of any matter likely to enable members of the public to identify an individual affected by or making the complaint. The tribunal is able to make such an order either on the application of the parties or of its own motion. This power also enables an employment tribunal to produce written decisions, which also exclude matters likely to assist in the identification of individuals involved in the proceedings. In addition, an employment tribunal now has the power to make a restricted reporting order either on application of the parties or of its own motion. Such an order, if made, prevents the reporting of the identity of specified individuals in the proceedings while the case is being heard. Education The SDA makes it unlawful to discriminate on grounds of sex, directly or indirectly, in any of the following areas: • • •
Admissions policies. Access to classes, courses or other benefits, facilities or services provided by the school or college. Any other unfavourable treatment.
The Act permits the continuation of single-sex schools, but also places a general duty on local education authorities to provide education without sex discrimination. This might mean, for example, that although a single-sex girls’ school may not offer a design and technology course through its own curriculum, the LEA has to ensure that if boys in the same area have the opportunity to study this subject, arrangements are made to enable girls to take it, perhaps by attending a nearby mixed school for those lessons. The following bodies can be held responsible for discrimination under the SDA: •
All schools, colleges and other educational establishments maintained by LEAs. Depending on the circumstances of the case, the LEA itself and/or the governors of the institution can be held responsible. Governors can be held responsible individually or collectively.
•
Independent or private schools. The proprietors would be responsible.
•
Universities. The governing body would be responsible.
•
Other establishments designated by the Secretary of State for Education. These include other establishments in receipt of grants (such as grant-maintained schools) from the DES or the local authority. The governing body in each case is responsible for any discrimination.
Educational trusts The SDA allows educational trusts to change their terms, with consent from the Secretary of State for Education, in order to apply their benefits to both sexes. Exceptions •
Single-sex schools and colleges. A single-sex institution planning to turn coeducational can apply for permission to discriminate by admitting more members of one sex for a limited period.
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•
Co-educational schools which provide boarding accommodation for one sex only may continue to do so. If provided for both sexes, accommodation must be equal though it may be separate.
•
Education provided by charities set up to benefit one sex only.
•
Further education courses in physical training.
•
In sport, single-sex competitive sport is allowed ‘where the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man’. In practice, this has often been used to exclude girls from certain sports at school.
Housing The SDA makes it unlawful to discriminate in renting, managing, sub-letting or selling accommodation. Owner-occupied properties, small boarding houses and flatsharing, however, are excluded from the Act. Single-sex housing associations are also exempt. Mortgages Building societies, local authorities or any other body that grants mortgages are breaking the law if they treat women applicants any less favourably than they would treat a man in the same circumstances. For example, they may not apply different rules regarding earnings levels, age, dependants, and so on. Goods, facilities and services This covers a wide range of public and private services, including pubs, cafés, restaurants, hotels, transport, banking, insurance, hire purchase, recreation and entertainment. The list of exceptions to this part of the Act, however, is just about as long as the list of situations it does cover. The exceptions are: •
Private clubs, such as working-men’s clubs and sports clubs. (Note: these are covered by the equivalent section in the Race Relations Act 1976.)
•
Political parties. Women’s sections and conferences are still lawful.
•
Religious bodies may continue to discriminate if necessary because of their doctrine or because not to do so would offend ‘a significant number’ of its members.
•
Hospitals, prisons, hostels, old people’s homes and any other places for people needing ‘special care’.
•
Competitive sport, if an average woman would be at a disadvantage because of her physical capacity compared to the average man.
•
Charities and non-profit-making organisations set up to provide facilities or services for one sex only. This does not mean such organisations may discriminate across the board – for example, by restricting their office workers to one sex only – but they may discriminate in the provision of services, including who is employed in actually providing those services.
•
Insurance companies and similar bodies. These may discriminate if it is on the basis of ‘reasonable actuarial information’. For example, women can be offered cheaper car insurance than men because statistics show they are safer drivers.
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•
Facilities and services which need to be restricted to one sex only in order to preserve ‘decency and privacy’. This covers toilets, saunas, changing rooms, and so on.
•
Certain provisions in relation to death or retirement are also excluded. Occupational pension schemes and redundancy payment schemes are outside of the Act.
Discriminatory contractual terms Contractual terms which conflict with the Act are void. This applies to any term of a collective agreement, rule made by employers, organisations of workers, professional organisations or regulatory bodies. Individuals affected by such terms or rules have the right to apply to the industrial tribunal to have the term or rule declared invalid. Advertisements If an advertisement for a job covered by the SDA states or implies an intention to discriminate against men or women applicants, a complaint could be made to an industrial tribunal under the employment sections of the Act, as the advertisement would count as part of the arrangements made by the employer to fill a vacancy. Advertising in other areas, for example, for accommodation, entertainment or services, is also covered by the SDA, but complaints about discriminatory advertising may only be taken up by the Equal Opportunities Commission (EOC). If you see a discriminatory advertisement, you can report it to the EOC (the address is at the end of this chapter). Sexism in advertising, through offensive images of women used to sell products for example, is not outlawed by the SDA. But complaints of sexism or anything else you consider to be illegal, indecent, dishonest or untruthful can be made to: Advertising Standards Authority 15–17 Ridgmount Street London WC1E 7AW Tel: 020 7580 5555
How to complain about sex discrimination A complaint under the SDA must be taken to an employment tribunal if it concerns employment, including cases of victimisation concerned with employment. This includes complaints about discriminatory treatment during the course of an appeal hearing following a summary dismissal. Your complaint of discrimination must be lodged within three months of the discrimination complained of. Complaints of discrimination in education, housing and the provision of goods, facilities or services must be made to the County Court. Complaints concerning education must first be made to the Secretary of State for Education. If the matter has not been resolved to your satisfaction within two months, you may then proceed with action in the County Court. Complaints about housing, goods, facilities and services must be made within six months of the discrimination taking place. There is a discretion to extend the time for the presentation of a complaint brought in either the court or the employment tribunal provided that the court or tribunal
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is satisfied that it would be just and equitable to do so having regard to all the relevant circumstances and the reasons for the late presentation of the claim. The Equal Opportunities Commission (EOC) The EOC was set up under the Sex Discrimination Act 1975 (SDA) with the following duties: • • •
To work towards the elimination of sex discrimination. To promote equality of opportunity between men and women generally. To keep the SDA and the Equal Pay Act under review and propose amendments to the Home Secretary.
In carrying out its duties, the EOC has the following powers: •
To undertake formal investigations into discriminatory practices which are unsuitable to be dealt with on an individual basis.
•
To support, including financially, individuals taking up complaints of discrimination.
•
To issue Codes of Practice on employment. The first Code was approved by Parliament in April 1985. It is not legally binding but can be used in evidence at an employment tribunal.
•
To examine areas of policy outside the scope of the Act, for example, social security, taxation, maternity rights.
•
To issue non-discrimination notices. This happens if the EOC decides as a result of a formal investigation that the law has been broken.
•
To fund research and other projects.
•
To apply for an injunction if it believes someone has broken the law and is likely to go on doing so. In the following circumstances, it is the EOC alone which can take action, such as applying for an injunction, if discrimination has taken place: (a) if an advertisement demonstrates an intention to discriminate unlawfully; (b) if someone instructs an employee or agent to discriminate unlawfully; or (c) if someone puts pressure on anyone else to discriminate unlawfully.
Local authorities Unlike the Race Relations Act, the Sex Discrimination Act does not impose a statutory duty on every local authority to carry out its functions with regard to eliminating unlawful sex discrimination and to promoting equal opportunity. Social security An EC directive on equal treatment in social security has led to some changes in Britain’s social security benefits in recent years. For example, men and women now have equal treatment in short-term, contributory benefits, such as unemployment benefit. Women may also claim income support on behalf of their partners and dependants, although in practice this is rare. Discrimination against married women claiming the invalid care allowance (ICA) has now been outlawed following a
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successful test case under the European directive. Married and cohabiting women claiming ICA may also put in for back payments to December 1984, if applicable to their case.
9.3
SEXUAL MINORITY DISCRIMINATION
Sexual orientation There are no laws specifically criminalising sex between lesbians. As a general rule, consensual sexual activity between men over 18 in private is legal, although under specified circumstances. There is no statutory protection against discrimination on grounds of sexual orientation. However, if an individual is dismissed by reason of his/her sexual orientation and has sufficient qualifying service in that employment, he or she may be able to bring a claim in respect of unfair dismissal. The Human Rights Act requires public authorities to act in a manner compatible with the European Convention on Human Rights and will allow individuals to sue a public authority which they believe has infringed their rights. This may well lead to protection from dismissal and from discrimination in employment on grounds of sexual orientation in certain circumstances. There is now some statutory protection under the Sex Discrimination Act for those who have undergone, are undergoing or who plan to undergo gender reassignment. Gender re-assignment is defined as a process undertaken with medical supervision for the purpose of re-assigning a person’s sex by aligning physiological or other characteristics of sex, and includes any part of such a process. Criminal law Women There are no laws specially restricting lesbian behaviour. Technically, though, lesbians can be prosecuted for the following acts, but they rarely are: •
Insulting behaviour (see below).
•
Indecent assault on another woman who did not consent or who is under 16.
•
Although there is no age of consent for lesbians, the Indecency with Children Act 1960 provides that a woman committing an act of gross indecency, that is, having sex (see below) with a girl under 14, would be breaking the law.
Men It is legal for two men over 18 to have sex together, provided they are in private and both consent (this is now the law throughout the whole of the United Kingdom). In this context, sex means any form of sexual activity (subject to the potential restriction mentioned above) including intercourse (buggery). The following restrictions apply to sex between men: •
The age of consent is now 18. Parliament is trying to reduce this to 16.
•
‘In private’ does not include places such as public lavatories (even if no one can see), nor when more than two people are present (even if they all consent). It is up to the prosecution to prove that the activity did not take place in
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private, and many courts have decided that particular places were ‘in private’, even if the public theoretically had access to them (for example, a dark lane, behind a clump of bushes, in an enclosed yard after normal working hours, and so on). •
Meeting another man with a view to having lawful sex may itself be illegal. Because of the law of importuning or soliciting, it may be an offence for a man to chat up another man if done in a public place. Even just smiling at someone can be classified as importuning and, if a man ‘persistently’ importunes for an ‘immoral purpose’, that is an offence. It is up to the court to decide if lawful sexual activity amounts to an ‘immoral purpose’ in any particular case, but they can (and sometimes do) find men guilty of this offence even though the sexual activity would have been lawful, that is, between two consenting men over 18 and in private.
•
On 12 January 2000 the ban on homosexuals serving in the armed forces was lifted with immediate effect. The UK Government has introduced a code of conduct governing personal relationships in the armed forces under which sexual orientation is essentially a private matter for the individual. The code applies to all personnel whether they are male or female, heterosexual or homosexual and regardless of racial or religious background. The code sets out circumstances in which the service has a duty to intervene in the personal lives of its personnel. The test to be applied is whether the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the service.
•
Displays of affection in public by lesbians or gay men might be illegal on the ground of ‘insulting behaviour’ (see below).
Offences Cruising/picking up men A man making an approach to another man with a view to having sex may itself be a crime, even though it was intended to have sex in circumstances that would be legal. Under the Sexual Offences Act 1956, it is an offence persistently to importune in a public place for an immoral purpose. This law was enacted originally at the end of the nineteenth century to outlaw pimping for female prostitutes in the Leicester Square music halls. Although the section applies to both heterosexual and homosexual behaviour, now it is used almost exclusively to stop men approaching other men with a view to sex – known as cruising, or more commonly, picking someone up. Usually the police arrest men for importuning (also called ‘soliciting’) outside or near gay pubs or clubs, or in parks, public lavatories or other places where it is likely that one man can pick up another. This law is not used primarily against men who are prostitutes, though male prostitution is covered by it. Importuning is any kind of approach to another person – a smile is enough – and either words or gestures will do. ‘Persistently’ means more than once to the same person, or to two or more people. If a man speaks to or gestures towards another man just once it is not an offence under this section, but it may still be caught by the offence of ‘attempting to procure an act of gross indecency’ (see below). Whether a purpose is
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an ‘immoral purpose’ depends entirely on the view of the court applying its own standards. However, there has to be some form of sexual activity. Magistrates are known to convict of this offence much more frequently than juries. The higher courts have made it clear that a man can be convicted of this offence even though he was chatting someone up with a view to having perfectly lawful sex – that is, both consenting, 21 (the age of consent at the time of the case) or older and in private. Many juries have taken the view that picking up another man, even a stranger, for sex is not an ‘immoral purpose’ caught by this Act, and the majority of such cases result in acquittals if fought in the Crown Court. Sentences vary widely from place to place. For most men convicted of this kind of offence, it is the publicity, social costs, exposure and humiliation that are far greater penalties than those imposed by the courts which are frequently in the form of a fine. Sexual activity Any kind of sexual activity involving a man under 18 or taking place ‘in public’ is illegal. The law uses the term ‘gross indecency’ to describe all sexual activity between males other than buggery (anal intercourse). ‘Gross indecency’ includes sexual activity short of physical contact as well as touching. For example, two men masturbating in sight of each other, although separated by a wall, have been found guilty of gross indecency even though they were in adjacent locked cubicles of a public lavatory and no one else could see them (except police officers peering down from a hole in the ceiling). It is not ‘gross indecency’ to engage in sexual activity merely directed towards another man unless he too is a willing participant in the sense that he is aware of what is going on and co-operates in an ‘indecent exhibition’. This offence was once used to prosecute the director of a play in which the actors simulated gay sex. To commit ‘gross indecency’ the men involved in the act must be acting in concert and there must be at least some participation and co-operation by both, but actual physical contact between them is not necessary. It is a question for the court to decide as to whether the activity that was taking place amounts to ‘gross indecency’. If either or both of the parties are under 18 they can both be prosecuted, though in practice this will rarely be done if both are under 18. The Director of Public Prosecutions must give his or her consent to a prosecution for an offence involving someone under the age of 18. In many cases sexual activity will only be illegal because it takes place in public. It is for the prosecution to prove that an act of gross indecency took place otherwise than in private. Whether a place is public or private is a question for the court. In the case of Reakes (1974), the Court of Appeal approved the following definition of ‘in private’: Look at all the surrounding circumstances, the time of night, the nature of the place including such matters as lighting and you consider further the likelihood of a third person coming upon the scene. As with cases of importuning, a majority of juries acquit on charges of gross indecency. There is a better chance of acquittal in the Crown Court than in the Magistrates’ Court, which has no jury.
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It can also be an offence to approach another man with a view to having sex, either by ‘importuning’ or by ‘attempting to procure an act of gross indecency’. This means no more than making an approach to another man. It differs from importuning in two ways: there does not need to be any ‘persistency’ or repetition of the approach; but also, for it to be an offence, the prosecution must prove that the sexual activity sought would have been illegal, that is, in public usually. Buggery between men is legal or illegal in the same circumstances as gross indecency, that is, it depends on the ages of the parties and the place where it happens. Displaying affection in public Lesbians or gays who hold hands or kiss or fondle each other in public in the same way as heterosexuals may be committing an offence of ‘insulting behaviour’ under the Public Order Act 1986. Much will depend on the particular facts of the case and, as it is an offence which can only be tried in the Magistrates’ Court, it will usually depend on the moral and political views of the magistrates as to whether the behaviour is regarded as insulting. The term ‘insulting’ is not defined by the law; it has to be given its ordinary meaning, but the higher courts have upheld a conviction under similar (though not identical) legislation where two men were fondling each other’s genitals and buttocks over their clothes in the course of saying goodnight in a public place. Policing and agents provocateurs The police have a very wide discretion in the way they enforce the offences referred to above. In some areas of the country they are far more rigorous about seeking out gay offences than in others, and the attitudes of the same police force may change from time to time depending on the views of the senior officers responsible for operational decisions. In some instances the police themselves try to lure men into committing offences, especially importuning. They do this by standing around, often dressed to attract an advance, usually outside gay pubs or in public lavatories, making it obvious that they are looking for a pick-up. A man who approaches a policeman who is acting as an agent provocateur will not thereby automatically have a defence to a charge of importuning or attempting to procure an act of gross indecency, despite the fact that police and Home Office regulations specifically prohibit this activity. However, a jury in such a case may well be more disposed to acquit the man on other grounds as an indication of their disapproval of the police behaviour. Conspiracy to corrupt public morals This is a rarely used but powerful criminal offence, invented by the judiciary rather than passed by Parliament. It has been used in particular to prohibit gay men advertising in the ‘contact’ pages of magazines. Essentially, it is an offence to conspire or agree to do some act which, in the opinion of a jury, is calculated to corrupt or debauch public morals. In 1973, the House of Lords upheld, by a majority, the conviction of a magazine containing explicit gay contact ads on the ground that encouraging homosexuality is the sort of thing a jury might properly consider to be a ‘corrupt practice’. However, the people placing the advertisements were not prosecuted. Since 1973, there have been no further prosecutions of this
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kind and explicit advertisements are now commonplace. The law, however, has not been repealed so there is always the possibility of a prosecution in the future. Civil law There is no difference in the way in which the civil law affects lesbians and gay men. Both groups are treated in the same way in principle, though in practice there may be a difference if a man’s civil rights are threatened as a result of a conviction for one of the consensual sexual offences referred to above which do not affect lesbians. There are no specific statutory provisions protecting lesbians and gay men from discrimination on the grounds of their sexual orientation. Employment Recruitment At present, broadly speaking, there is no way a lesbian or gay man can challenge an employer who refuses to give her or him a job on the grounds of their sexual orientation. The Sex Discrimination Act 1975 prohibits discrimination on grounds of sex or marital status (see section 9.2). It has been amended to include discrimination against those who have undergone, plan to undergo or are undergoing gender re-assignment but the Government refuses to amend the Sex Discrimination Act to prohibit discrimination on the grounds of sexual orientation. The courts have not yet interpreted the Act to include sexual orientation. However, in rare cases it might be possible to use this legislation when the real reason for the discrimination is sexual orientation. An example is the Dan Air case. The airline company had a policy of only employing women cabin staff and not even considering for interview men who applied for posts on the grounds that, if any of them were gay, passengers might be exposed to the risk of becoming HIV positive. The Equal Opportunities Commission investigated Dan Air’s policy and found that there were no medical grounds for implementing it, with the result that the company was in breach of the Sex Discrimination Act. They issued a non-discrimination notice (see section 9.1) and subsequently Dan Air changed their policy. The case illustrates the point that the company was discriminating against all men in their desire to exclude gay men, and so was breaking the law. Existing workforce Many employees suffer discriminatory treatment at work because they are known or believed to be lesbian or gay. There are some cases of discriminatory treatment of gay men by colleagues and employers on the grounds that they may be HIV positive solely because they are gay. The difficulty in challenging such treatment is that there is no specific law prohibiting it, and lesbian and gay workers have to depend on general employment laws which have not always proved of much use in these circumstances. If an employer discriminates against a lesbian or gay worker (for example, by denying them promotion) or responds to hostile pressure by colleagues (for example, by moving the worker concerned to different duties or a different location), the only way that the worker can challenge the decision in law is by resigning and claiming ‘constructive dismissal’ (see Chapter 13) on the ground that the employer has acted
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in breach of contract. This is obviously a high-risk strategy. The European Commission Code on Measures to Combat Sexual Harassment, recognises that gay men and lesbians are vulnerable to harassment (see p. 222 above). The provisions of Article 8 of the Human Rights Act may provide some additional protection in employment in certain limited situations. Article 8 of the Convention recognises that the right to private life includes the right to develop one’s own personality as well as to create relationships with others. European case law accepts that sexual activities are an element of private life. Transsexuals who experience discrimination in employment now have some protection by virtue of the Sex Discrimination Act 1975 as amended. Dismissal on grounds of sexual orientation The response of the employment tribunals and the Employment Appeal Tribunal (EAT) to dismissals on grounds of sexual orientation has varied from case to case and is difficult to predict, except that it is more often unfavourable to the employee than the employer. In one notorious decision in 1980, the EAT in Scotland upheld as fair the dismissal of a maintenance worker at a children’s camp solely on the ground that he was gay. It was held reasonable for the employer to dismiss him on the basis of prejudice by parents whose children attended the camp, even though that prejudice was without any basis. In another of the few sexual orientation cases to be heard by the EAT, it was held fair to dismiss a teacher following his conviction for gross indecency outside working hours. The EAT went to some pains to emphasise that each case must be decided on its merits and it was neither automatically fair nor automatically unfair to dismiss in such cases. Few cases involving lesbians have reached the tribunals, partly because of the different criminal laws. However, one of the best-known cases, Boychuk (1977), demonstrates the hazards of showing one’s sexual orientation openly at work. Ms Boychuk wore a badge with the words ‘Lesbians Ignite’ in her job as a receptionist at an insurance company’s office. She was dismissed for refusing to take it off and her dismissal was upheld as fair by the EAT. Individuals who are employed by public authorities may well have some protection from discrimination on grounds of sexual orientation including dismissal from 2 October 2000 under the Human Rights Act 1998. This allows individuals who believe that public authorities have acted in a manner inconsistent with European Convention rights to bring proceedings against them. If successful, remedies could include the payment of compensation. There are a number of trade unions which have specific lesbian and gay sections or groups which have campaigned effectively within the workplace to prevent discrimination. They can be contacted through the lists of lesbian/gay organisations (see p. 251). Housing A lesbian or gay relationship is not always treated as being equivalent to a heterosexual marriage in the eyes of the law. However, the House of Lords has ruled that same-sex couples can be treated as a family. The Code of Guidance to the Housing Act 1996 has gone some way to remedy discriminatory treatment and some local
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authorities will exercise their statutory discretion to extend tenancy rights to lesbian and gay partners. Immigration The same approach has been taken by the courts to lesbian or gay relationships in immigration law as in housing law, that is, they cannot be compared to a heterosexual marriage. Lesbian and gay relationships are not recognised for immigration purposes, though the Home Office has suggested that applications could be considered if there were exceptional circumstances such as the grave illness of the British partner. A case-by-case approach should be adopted. Also, foreign nationals would be entitled to apply for asylum (see p. 273) if they could demonstrate that they would be likely to be persecuted, for instance on the grounds of their sexuality, in the country that they would be returned to. Disturbingly, to date, the European Commission of Human Rights has consistently held that lesbian and gay relationships, regardless of their stability (and whether children are involved), are not protected by the right to family life although there might be some protection provided by the right to a private life. Parental rights There is no law against lesbians or gays being parents and many lesbians and gays marry or live in heterosexual relationships before coming out and thus already have children. Lesbians and gays sometimes have children using artificial insemination or by other means. Lesbians or gays who seek custody of or access to their children following a breakup may discover that the law treats them less favourably than heterosexuals in the same circumstances. Although there is a right to apply to the courts for a residence order (custody) or for access, this right is entirely at the discretion of the judges, who have often been biased against lesbian or gay parents. For example, mothers are usually given a residence order in disputes between parents, but if the court knows she is a lesbian her chances are then much less than that of the father. However, courts have granted custody to both lesbians and gays. Local authorities allow applications to foster from both single lesbians and gays and from those in couples and obviously the special needs of young people who are lesbian or gay should be considered. Ban on promoting homosexuality The most significant piece of legislation affecting homosexuals since the reforming 1967 Act was section 28 of the Local Government Act 1988, which bars the ‘intentional promotion of homosexuality’ by local authorities. The section prohibits the intentional promotion of homosexuality, the publishing of material with the intention of promoting homosexuality or the promotion of teaching in any maintained school of ‘the acceptability of homosexuality as a pretended family relationship’. The section does not prohibit such activities if done for the purpose of treating or preventing the spread of disease. Nevertheless, many local authorities throughout Britain have reacted to its enactment by adopting policies of self-censorship and caution, in most cases probably unnecessarily. There have been examples of local authorities banning:
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•
The publication of a list of advice agencies for young people because a couple of the hundreds of entries were lesbian and/or gay organisations.
•
The performance of a play by a ‘theatre in education’ group because it contained a scene involving a gay man.
•
The publication of a cartoon in a Women’s Unit newsletter because it was a lesbian parody of heterosexual attitudes.
•
The confirmation by a gay teacher of his sexuality when asked about it by children in his class.
•
The stocking in public libraries of the gay and lesbian weekly newspaper ‘The Pink Paper’.
Expert legal opinion is of the view that none of those examples fell within the terms of section 28 and all these local authorities misinterpreted the section by imposing such bans. These cases do, however, illustrate the real impact of the section, which is to inhibit, censor and undermine the legitimate functions of local government and schools. The ban on promoting the teaching of the ‘acceptability of homosexuality as a pretended family relationship’ in maintained schools is, in strict legal terms, greatly weakened by two factors. First, it is school governors and not local authorities who are legally responsible for sex education in schools. School governors are not affected by section 28. Second, it is highly unlikely on any interpretation of the section that discussion of and counselling about homosexuality would be prohibited or restricted by this law. However, as we noted, some local authorities have already acted as though they are prevented from discussing or offering advice and counselling about homosexuality, despite the fact that the law will not prohibit it. Note that it is local authorities not individuals who are liable under this section. At the time of writing the Labour Government continues with its efforts to secure the revocation of section 28. Transvestites There is nothing in the law to stop anyone dressing in clothes traditionally worn by members of the opposite sex. Sometimes, however, transvestites have been arrested for ‘insulting behaviour’ and in theory they could in some circumstances be convicted of this offence, but such situations are very rare. In 1996 the Employment Appeal Tribunal rejected an appeal from a local authority employee who claimed unlawful sex discrimination after he had been threatened with disciplinary proceedings for wearing at work what was conventionally regarded as female wear (Kara v. London Borough of Hackney, 13 May 1996). Transsexuals and transgendered people It is lawful to undergo gender re-assignment (sex change) surgery, but there is no consequent right in law to be regarded as a member of the opposite sex from that into which you were born. In practice, however, transsexuals are able to obtain most official documents except a birth certificate in their new name and sexual identity. Medical cards, driving licences, income tax forms, passports, etc. will be issued by the relevant authorities in the new identity.
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There is no right to be married as a member of the opposite sex and for the purposes of the law any such marriage is void in this country. The European Court of Human Rights has ruled that refusal of an amended birth certificate and the right to marry is not a breach of the right to a private life contained in the European Convention on Human Rights, although a case against France suggests that the Court may reconsider its position. A decision of the European Court of Human Rights against the United Kingdom has re-examined and restated the earlier case law. However, the court observed that since the Convention is to be regarded as a living instrument, rulings made interpreting its provisions may well change in the light of developments in society. Recent observations made in the UK courts suggest that the State has an obligation to keep such matters under review and that a failure to do so may well tilt the balance towards family life being interpreted as encompassing same-sex and transsexual relationships. As has been stated earlier there is now some statutory protection against discrimination for those who have undergone, plan to undergo or are undergoing gender re-assignment. The relevant provisions are to be found in the Sex Discrimination Act. They provide protection from discrimination in the fields of employment, discrimination in relation to barristers and advocates and in other fields in so far as they relate to the provision of vocational training. There is a statutory definition of gender re-assignment which provides that gender re-assignment means a process undertaken under medical supervision for the purpose of re-assigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of that process. A person undergoing, intending to undergo or who has undergone such a process is protected from less favourable treatment in employment: •
in the arrangements made for the purposes of determining who is offered employment;
•
in the terms on which employment is offered;
•
by refusing or deliberately omitting to offer that employment.
Once employed, a person undergoing, intending to undergo or who has undergone gender re-assignment is protected from discrimination: •
in the way he or she is afforded access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford access to them;
•
by dismissal or subjecting him or her to any other detriment.
Where the less favourable treatment relied upon is treatment in relation to an absence from work the test to be applied is whether a person is treated less favourably than he or she would have been if the absence were due to sickness or injury; or if the absence was due to some other cause. Courts and tribunals must have regard to the circumstances of the case and consider whether it is reasonable for the person to be treated less favourably or not. Transsexuals are excluded from bringing a claim in respect of men-only or women-only jobs where the employer can show that the less favourable treatment is reasonable in the circumstances.
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The rules relating to ‘Genuine Occupational Qualifications’ also apply to transsexuals. Transsexuals are excluded from bringing a claim where they are excluded from jobs which involve intimate physical searches made pursuant to statutory powers; work done in private homes for specific purposes. Where the person is undergoing or intends to undergo gender re-assignment they are excluded from bringing a claim in relation to work which involves living in premises provided by the employer where accommodation and facilities have to be shared, and where it is not reasonable for alternative arrangements to be made. Also excluded are claims in relation to jobs where the holder provides vulnerable individuals with personal services promoting their welfare, and where in the reasonable view of the employer, these services cannot be provided by a person undergoing gender re-assignment. Sado-masochism The House of Lords, in Brown (1993), has ruled that certain sado-masochistic sex which involves the infliction of injury which is more than merely ‘transient and trifling’ is a criminal offence. This is so even where there is express consent to the act or acts. Although the defendants in that case were gay men, it applies equally to the activities of heterosexuals and lesbians. Nevertheless, the Court of Appeal in a later case involving a married couple (Wilson (1996)) distinguished that case from the Brown decision. The European Court of Human Rights has held that the United Kingdom was not in breach of the European Convention on Human Rights in prosecuting the defendants in the Brown case. The Human Rights Act 1998 The Act came into force on 2 October 2000 and is intended to incorporate the rights and freedoms of the European Convention on Human Rights into British law. The Act is intended to build upon and supplement existing legal protection of human rights in the UK law. It is anticipated that the Act will have a very significant impact on the way in legal arguments are formulated; and on the ways in which Courts, tribunals and other quasi-judicial bodies carry out their functions. The Act requires all courts to decide the cases before them in a way that is compatible with Convention rights so far as it is possible to do so. Courts are required to proceed on the basis that Parliament intended all its legislation to be compatible with the Convention. Where it is not possible to interpret legislation in a way to be compatible with the Convention, the Appellate Courts may strike down subordinate legislation and in the case of primary legislation, make a declaration of incompatibility. Such a declaration does not affect the validity, continuing operation or enforcement of the legislation declared incompatible with the Convention. Its effect may be largely political. The declaration in essence is a warning to Parliament that an incompatibility has been identified. Courts are also required to take the case law of the European Court of Human Rights into account in so far as they consider it is relevant to the proceedings before them. In addition, the Act makes it unlawful for public authorities, which includes all courts and tribunals and any person certain of whose functions are of a public nature, to act in a way which is incompatible with the Convention. The Act will create new, directly enforceable rights against public bodies and against quasi-public bodies with some public functions. Individuals who believe
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their rights have been infringed, or that the public body has acted in breach of Convention rights, will be able to bring proceedings against that public body and/or rely on their Convention rights in proceedings brought by others. The remedies available for breach of Convention rights are wide-ranging and include the award of damages. The Act does not make Convention rights directly enforceable against private individuals nor against quasi-public bodies that are acting in a private capacity. However, in some cases the Act will have an indirect effect on the outcome of a case against private individuals because the court will be obliged to interpret any statute so as to be compatible with the Convention wherever possible. Whilst the most frequent use of the Act is likely to be interpretative, there are a number of specific provisions in the Act that may have particular relevance in the context of sex discrimination. Article 8 This provides that everyone has the right to respect for his private and family life, his home and his correspondence. This right is a qualified one, designed in essence to protect the individual from arbitrary action by public authorities. A violation of Article 8, even if proved, may be legitimate if it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 provides protection for private life, which includes the right to develop one’s own personality as well as to create relationships of whatever orientation with others. Sexual activities are recognised as a dimension of private life. Stable relationships between same-sex couples may yet be recognised by the Commission and Court as ‘family life’ within the meaning of Article 8. Since European Court case law places emphasis on the Convention as a living instrument which must be interpreted in the light of the social mores of the times it is quite likely that, in due course, same-sex relationships and relationships involving transsexuals will be recognised as falling within ‘family life’ in Article 8. This Article may also assist in providing protection from sexual harassment and bullying. Article 10 This provides that everyone has the right to freedom of expression. Again, it is a qualified right in the sense that violations of Article 10 may be legitimate if they are in accordance with or prescribed by law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 10 might have some application in protecting employees who are discriminated against by dress and appearance codes which are imposed by employers, and which cannot be justified as legitimate or proportionate. Article 12 This provides for the right to marry and found a family. It is focused on procreation within the traditional family unit. This right applies only to biologically opposite
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sexes so that as the law currently stands prohibition on same sex marriages will not violate Article 12. Article 14 This Article prohibits discrimination in respect of access to other Convention rights. It is not a free-standing guarantee of equal treatment or a prohibition on discrimination more generally. Its purpose is to guarantee equality before the law of the Convention. The grounds of discrimination identified by the Act and the European Court and the Commission have been widely interpreted. They are not closed. The grounds include sex, marital status and sexual orientation. It is only differences in treatment of people in analogous situations which falls within Article 14 and thus far the European Court has interpreted this condition quite strictly. However, there is no requirement that the difference in treatment has caused a detriment to the complainant. Discrimination can be justified with reference to the aims and effects of the measure complained of, and to whether there is a reasonable relationship of proportionality between the means used and the aims to be achieved. There are a number of areas where the Court has recognised that it will take very weighty reasons to justify discriminatory measures. These areas include sex, but not as yet sexual orientation. Whilst Article 14, read together with Articles 8 and 10, may have some application in a sex discrimination context, Article 14 is unlikely in the short to medium term to add significantly to the existing anti-discrimination legislation, where it applies.
9.4
DISABILITY DISCRIMINATION
The Disability Discrimination Act 1995 is the first legislative attempt to address comprehensively the issue of discrimination against disabled people. The Act is divided into six parts. Part 1 defines the meaning of ‘disability’ and ‘disabled persons’. Part 2 deals with discrimination in employment. Part 3 deals with discrimination in other areas, namely, the provision of goods, facilities and services. Part 4 deals with education. Part 5 deals with public transport. Part 6 establishes the National Disability Council. The Act will be brought into force in stages. The provisions relating to employment and the provision of goods and services came into force in November 1996. The framework of the Disability Discrimination Act 1995 differs from the framework of both the Sex and Race Discrimination Acts. The Disability Discrimination Act contains no general principle of equal treatment. It contains three separate definitions of discrimination. Under the Disability Discrimination Act, the notion of justification is incorporated into the definition of discrimination so that actionable discrimination only occurs when you are treated less favourably for a reason related to your disability which cannot be justified under the Act. As a result of this approach there are differing definitions of discrimination for the purposes of Part 2 and Part 3 of the Act. A further difference from the Sex and Race Discrimi-
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nation framework is that the Disability Discrimination Act does not recognise the concept of indirect discrimination. The scope of the Act is more limited than that of the Race and Sex Discrimination Acts. The education, police, prison and armed services are excluded from its provisions as are firms employing fewer than 20 people. Section 1 of the Act establishes a new definition of ‘disabled person’. To benefit from the Act’s protection, a person must either be a person who has a disability or be a person who has had such a disability. In deciding whether a person is a disabled person within the meaning of the Act there are four questions which have to be considered: 1. Does the applicant have a physical or mental impairment? The terms physical or mental impairment are to be interpreted in their broadest sense. Sometimes medical evidence will be required as to whether or not there is a mental or physical impairment. Mental impairment is further defined in Schedule 1 paragraph 1(1) of the Act as ‘suffering from a mental illness which is clinically well recognised’. 2. Does the impairment affect the person’s ability to carry out normal day-to-day activities in respect of at least one of the following? Mobility, manual dexterity, physical coordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of risk or danger and does it have an adverse effect. The effect of medical treatment must be discounted. This means that the court or tribunal must try and deduce the effect of the impairment without the treatment. 3. Is the adverse effect substantial? Substantial means more than minor or trivial. There may be a cumulative effect. 4. Is the adverse condition long-term? That is, has it lasted or is it likely to last for one year or more? Progressive conditions like cancer and HIV must be dealt with on the basis that a person with the condition is disabled as soon as the condition is symptomatic if it is likely to result in a substantial adverse effect on activities in the future. Like the Race and Sex Discrimination Acts, the Disability Discrimination Act involves the complainant making comparisons. Unlike those Acts, the Disability Discrimination Act is accompanied by, and must be read with, a range of delegated legislation and non-statutory material. These include ‘The Code of Practice for the Elimination of Discrimination in the Field of Employment Against Disabled Persons’ and ‘Guidance on Matters to be Taken Into Account in Determining Questions Relating to the Definition of Disability’ and various regulations. Discrimination in employment Discrimination in employment is dealt with in Part 2 of the Act. Section 4(1) sets out the less favourable treatment which is prohibited by the Act in relation to employment. This treatment is discrimination: •
in the arrangements made for appointing employees;
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in the terms on which employment is offered; by refusing to offer employment.
Further, section 4(2) prohibits discrimination: • • • •
in the terms of employment; in the opportunities offered for training, promotion, transfer or any other benefit of employment; by refusing to offer such opportunities; by dismissing a disabled person or subjecting him/her to any other detriment.
Less favourable treatment is defined in section 5(1) of the Act. An employer discriminates against a disabled person if, for a reason which relates to the person’s disability, he or she treats the disabled person less favourably than they would treat a person to whom the reason does not apply and they cannot show that the treatment is justified. Additionally, section 5(2) provides that an employer discriminates against a disabled person if he or she fails to provide such reasonable adjustments to the working environment as are required by section 6 of the Act and he or she cannot justify this failure. If the material reason for the less favourable treatment could be resolved by a reasonable adjustment to the working environment, then the employer’s decision cannot be justified where the less favourable treatment puts the disabled person at a substantial disadvantage. The concept of less favourable treatment under the Disability Discrimination Act is different from that used in the Race Relations Act and the Sex Discrimination Act. Under the Disability Discrimination Act there is no requirement to compare ‘like with like’. The comparator in a DDA case is not someone with the same characteristics as the applicant except that he or she is not disabled. Instead, the comparator is a person to whom the reason for the treatment complained of does not apply. So, for example, where an employee is injured at work, is off sick for five months and then dismissed because his doctor cannot give a definite date for a return to work, that employee is dismissed for a reason relating to his disability if he is found to be a disabled person within the meaning of the Act. His comparator would be someone to whom the reason for the treatment does not apply. That is, someone who was at work and who was capable of doing the job. If that person would not have been treated in the same way as the injured, then absent employee, there has been unfavourable treatment. The Act is silent as to whether an employer needs to know an employee is disabled before he can be guilty of unlawful discrimination. It is still not clear how close a causal connection is required between the less favourable treatment complained of and the individual’s disability. However, the Act uses the words ‘for a reason which relates to’ which suggests that a looser causal connection may be acceptable than that under the Race and Sex Discrimination Acts. The correct approach is probably to consider whether or not, looked at objectively, there is a relationship between the treatment complained of and the disability. Reasonable adjustments Where any arrangements made by or on behalf of an employer, or any physical features of premises occupied by an employer, place a disabled employee at a
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substantial disadvantage in comparison with persons who are not disabled, and the employer knows or could reasonably be expected to know that the person has a disability and is likely to be adversely affected by the working arrangements or premises, then the employer must take such steps as are reasonable in all the circumstances to prevent the disadvantageous effect. The duty to make reasonable adjustments is not limited to employers. It is relevant to trade unions and employers’ associations as well as users of contract workers. The duty to make reasonable adjustments is owed to individual disabled persons when the relevant circumstances arise. The duty is not a general one. It arises in relation to a particular disabled job applicant or employee. If the employer does not know or could not reasonably be expected to know that an applicant or employee has a disability and is likely to be disadvantaged, then the duty is not imposed. However, the Code of Practice suggests a degree of positive enquiry is required from the employer. Thus an employer must do all he or she could reasonably be expected to do to inform him- or herself of the position. A failure to make reasonable adjustments is not discriminatory in itself. It is a failure to make reasonable adjustments without justification which amounts to unlawful discrimination under section 5 of the Act. The Act provides some illustrations of what steps might be taken by way of a reasonable adjustment. These include allocating some of the disabled person’s duties to another person; transferring him or her to fill an existing vacancy; altering his or her working hours; permitting absences from work for rehabilitation, assessment or treatment. An employer is not obliged to take steps to make adjustments, he or she is only required to take such steps as are reasonable in all the circumstances. The Act provides a list of factors which will be taken into account in assessing whether an employer has acted reasonably in refusing to make an adjustment. These are: •
The extent to which the step would prevent the effect in question.
•
The extent to which it is practicable for the employer to take the step.
•
The financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt any of the employer’s activities.
•
The extent of the employer’s financial and other resources.
•
The availability to the employer of financial or other assistance with respect to taking such a step.
The list is not exhaustive and there may be additional factors that should be considered in determining reasonableness. Justification Less favourable treatment can only be justified if the reason for it is both ‘material’ to the circumstances of the particular case and ‘substantial’ (section 5(3)). How the tribunals interpret the words ‘material’ and ‘substantial’ will clearly determine both the availability of the justification defence and the extent of the protection actually provided to disabled people by the Act. The Code of Practice explains that justification means that the reason has to relate to the individual circumstances in question
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and not just be trivial or minor. This is a very low threshold for an employer to overcome and it weakens the protection offered by the Act. It is worth noting that whilst the cost of an adjustment may amount to justification, the average cost of an adjustment since the Act has been in operation is £200. Many adjustments cost nothing at all. Liability of employers and principals An employer is responsible for acts of discrimination carried out by his/her employees in the course of their employment whether or not it was done with the employer’s knowledge or approval (section 58). This is so unless the employer can show that he or she has taken such steps as were reasonably practicable to prevent the employees from committing the acts of discrimination complained of. Advertisements The Act merely provides that where a discriminatory advertisement has appeared and a disabled person has applied for and been rejected for employment and lodges a complaint against that employer to the Tribunal, the Tribunal will assume unless shown otherwise that the decision is related to the complainant’s disability. Aiding unlawful acts A person who knowingly aids another person to do an act made unlawful by the Disability Discrimination Act is treated as if he or she had committed the acts of discrimination themselves. Such a person will have a defence if he or she has been told that the action is not discriminatory and it was reasonable for him or her to rely on such a statement. Trades unions and trade associations Section 13 makes unlawful discrimination by trade organisations which includes trade unions, organisations of employees, and organisations whose members carry out a particular trade or profession. The Act prohibits discrimination in the terms upon which such an organisation is prepared to admit a disabled person to membership, and the refusal to accept an application for membership from a disabled person. Section 13(2) of the Act prohibits discrimination in the case of a disabled person who is already a member of the organisation concerned in: •
the way in which the organisation affords the disabled person access to any benefit, or by refusing or deliberately omitting to afford him access to the benefit;
•
by depriving him/her of membership, or varying the terms on which he or she is a member; and
•
by subjecting him/her to any other detriment.
Part 3: The provision of goods, facilities and services Part 3 of the Act prohibits discrimination against a disabled person in the provision of goods, services or facilities. The provisions include services provided by public authorities as well as those provided by private agencies or individuals, irrespective of whether or not there is a charge for the services concerned. Examples of the types
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of activities covered by the provisions of this part of the Act include: communications, information services, hotels and boarding houses, financial and insurance services, entertainment facilities, training, employment agencies and the use of any public place. Education and transport services are excluded from this part of the Act. Public authorities undertaking enforcement duties such as the police or prison service may also be excluded. Private clubs are also probably excluded. Discrimination under this part of the Act occurs when a service provider treats a disabled person less favourably for a reason which relates to that person’s disability and which cannot be justified under the provisions of the Act (section 20(1)). The service provider also discriminates if he/she fails to provide the disabled person with a reasonable adjustment when required to do so under section 18 of this Act and that failure cannot be justified. Section 16 of the Act indicates that the following discrimination is unlawful: •
Refusing service which is provided to or is prepared to provide to members of the public; or
•
Treating a disabled person less favourably than the standard of service or in the manner in which the service is provided; or
•
Providing the service on less favourable terms.
It is also unlawful for a person to fail to comply with the duty to make reasonable adjustments, so that the effect is to make it impossible or unreasonably difficult for the disabled person to make use of the goods, facilities or services. Justification Justifications for otherwise discriminatory treatment are set out at section 20(3) and (4). These justifications are capable of excusing both a failure to provide a reasonable adjustment and a failure to provide equal treatment. They are as follows: •
If the less favourable treatment is necessary in order not to endanger the health and safety of any person, including the disabled person.
•
If the disabled person is incapable of giving informed consent or of entering into an enforceable agreement and for that reason the treatment is reasonable in that case.
•
Where a person has been refused service, this must be necessary because the provider of services would otherwise be unable to provide the service to members of the public.
•
Where the less favourable treatment relates to the standard, manner or terms of which a service is provided, this must be necessary in order to provide the service either to the disabled person or to other members of the public.
•
Where there is a difference in the terms on which the service is provided to a disabled person this must reflect the greater cost to the provider of providing the service to the disabled person.
In order to establish justification, the service provider must establish that, in his or her opinion, one or more of the above conditions are satisfied; and that, in all the circumstances of the case, it is reasonable for him to hold that opinion.
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Reasonable adjustments The duty on the service provider to make reasonable adjustments is quite different from the duty which arises under section 6 and applies to an employer or prospective employer. Section 18 requires service providers to take such steps as are reasonable in the circumstances to amend policies, procedures and practices; and to remove or alter physical features or provide a reasonable means of avoiding them or provide a reasonable alternative means of delivering the service where a disabled person would otherwise find it impossible or unreasonably difficult to use the service. The service provider is also under a duty to provide auxiliary aids or services wherever these would facilitate the use by disabled persons of such a service. Where there are physical barriers to access, the service provider can respond in three specified ways (section 21(2)): • • •
By removing or altering the physical feature concerned. By providing a reasonable means of avoiding the physical barrier. By providing a reasonable alternative means of delivering a service.
There are no provisions in this part of the Act that set out the factors to be taken into account when determining the reasonableness of making adjustments. However, the Act reserves the right to set out such factors in Regulation form in due course. The Secretary of State has power to establish a financial ceiling on the extent of costs which it is reasonable for a service provider to incur in making adjustments. It is worth noting that nothing in the provisions of the Act requires a service provider to take any steps that would fundamentally alter the nature of the service, facility or business provided or conducted. Purchase or rental of premises Sections 22 and 24 of the Act make discrimination in the sale, letting, assignment, sub-letting or management of premises unlawful. The definition of premises extends to land, business and residential properties. The behaviour prohibited is: •
Refusing to dispose of premises to a disabled person; or
•
Offering the said premises on less favourable terms to a disabled person; or
•
The less favourable treatment of a disabled person in relation to any list of persons in need of premises of that description.
These sections further prohibit discrimination against a disabled person: •
In the way in which a disabled person is permitted to make use of any benefits or facilities;
•
By refusing to allow that disabled person the use of such benefits or facilities; or
•
By evicting that disabled person or subjecting him to a detriment.
The provisions for the justification of the less favourable treatment outlined above are very similar to those permitted in relation to the general provision of goods, facilities and services. Private sale and small dwellings are excluded from these provisions. There is no duty to make reasonable adjustments.
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Part 5: Transport Part 5 of the Act is concerned with access to certain public transport vehicles and to the infrastructure of transport. Licensed cabs The Secretary of State has the power to define by Regulations standards of access which new taxis will be required to meet. It will be an offence for a taxi driver to fail to comply with any such requirement or to drive a vehicle that fails to conform to the said Regulations. The equivalent requirements can be imposed on vehicles used under a contract to provide hire car services at designated transport facilities. Once the Regulations are in force, the licensing authority will not be able to grant licences to taxis unless vehicles comply with the accessibility provisions. The Secretary of State can grant a licensing authority exemptions from the above licensing restrictions provided that specified criteria are met. These are that, having regard to the circumstances in its area, it would be inappropriate to apply the access requirements and that the application of such standards would result in an unacceptable reduction in the number of taxis in the area. Section 36(3) of the Act requires taxi drivers to carry the disabled passenger while he remains in his wheelchair; not to make any additional charges for doing so; if the passenger chooses to sit in a passenger seat, to carry the wheelchair; to take such steps as are necessary to ensure that the disabled passenger is carried in safety and reasonable comfort, and to give such assistance as may be reasonably required. Section 37 imposes comparable requirements on taxi drivers in relation to the treatment of disabled persons with guide dogs and hearing dogs. Buses, coaches and other public service vehicles Section 40 gives the Secretary of State power to make Regulations covering access to public service vehicles for disabled persons to ensure that disabled persons can get on and off buses and coaches in safety and without unreasonable difficulties and to be carried in such vehicles in safety and reasonable comfort. Rail Rail transport Regulations model those relating to public service vehicles. It will be an offence to operate a rail vehicle in public service that does not comply with the accessibility Regulations when they are promulgated. Enforcement A complaint of unlawful discrimination in relation to employment must be brought in the Employment Tribunal. Proceedings should be started within three months of the allegation. The Tribunal does have discretion to hear a case presented outside the time limits if it considers it just and equitable to do so. In deciding whether or not to allow a complaint presented out of time to proceed, the Tribunal can take into account any relevant factors including the strength of the case, the reasons for the delay and the extent to which a person’s disability has impeded the ability to bring a case within the prescribed time limits. Claims in relation to unlawful discrimination in the provision of goods, facilities and services must be brought by civil proceedings in the County Courts. Claims must
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be brought within six months of the act of discrimination complained of. The Courts have discretion to extend the time for bringing a complaint if it considers it just and equitable to do so. Also, where a disabled person has consulted the network of assistance agencies established under the Act before the end of the six-month period, the time limit will be extended by a further two months. Remedies The Employment Tribunal can make such orders as it considers just and equitable including a declaration of the rights of the parties; compensation for foreseeable damages arising directly from the unlawful act of discrimination; damages for injury to feelings; and a recommendation that within a specified period of time the respondent takes reasonable action to remove or reduce the adverse effects on the complainant of any matter to which the complaint relates. In the County Court, injunctive relief is also available. The Act provides for limits to be prescribed as to the maximum amount of damages that can be awarded as compensation for injury to feelings. National Disability Council The Act establishes the National Disability Council whose role is to advise the Secretary of State on the operation of the Act and on the elimination of discrimination on the grounds of disability. The National Disability Council is required to prepare an annual report on its activities and place the report before Parliament. In addition, the National Disability Council may prepare codes of practice providing specific guidance on specific aspects of the Act (other than employment matters) at the request of the Secretary of State. Before giving advice to the Secretary of State, the National Disability Council is obliged to consult and have regard to the responses of such persons as it considers appropriate. The members of the National Disability Council are appointed by the Secretary of State and must have knowledge or experience of the needs of disabled people or people who have been disabled, or be members of professional bodies or bodies which represent industry or other business interests. The Secretary of State must try to ensure that at least half the members of the Council are disabled persons, persons who have had a disability or the parents or guardians of disabled people. Disability Rights Commission The Disability Rights Commission (DRC) was formally launched on 25 April 2000. The DRC has two sites based in London and Manchester. It consists of 15 commissioners, two-thirds of whom are disabled. The DRC has a budget of £11 million in its first year. The DRC will operate in a similar way to the CRE and EOC. It has a statutory duty to work towards the elimination of discrimination against disabled persons and to promote the equalisation of opportunities for disabled persons in all fields of activity. In addition, the DRC is required to review the working of the Disability Discrimination Act. It has the power to conduct formal investigations and to issue non-discrimination notices. It also has the power to enter into legally binding agreements in writing with a person believed to have committed or be committing an unlawful act.
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One of the priorities of the DRC is to establish an information and advice service for individuals and organisations. It will also establish a conciliation service for claimants under the Act. The DRC is empowered to provide assistance to individuals in bringing cases where the case raises a question of principle; it is unreasonable to expect the individual complainant to deal with the case unaided; or there is some other special circumstance which makes it appropriate to provide assistance. The DRC has launched consultation on a Code of Practice on the access of disabled people to goods, services, facilities and buildings. It will also start consultation on proposals for amending the Act and extending the scope of disability rights. Proposals being advanced at the moment include extending the definition of disability and reducing the small employer exemption from 15 to two. The Human Rights Act 1998 The Act came into force on 2 October 2000 and is intended to incorporate the rights and freedoms of the European Convention on Human Rights into British law. The Act is intended to build upon and supplement existing legal protection of human rights in UK law. It is anticipated that the Act will have a very significant impact on the way in which legal arguments are formulated; and on the ways in which the courts, tribunals and other quasi-judicial bodies carry out their functions. The Act requires all courts to decide the cases before them in a way that is compatible with Convention rights so far as it is possible to do so. Courts are required to proceed on the basis that Parliament intended all its legislation to be compatible with the Convention. Where it is not possible to interpret legislation in a way to be compatible with the Convention, the Appellate Courts may strike down subordinate legislation and, in the case of primary legislation, make a declaration of incompatibility. Such a declaration does not affect the validity, continuing operation or enforcement of the legislation declared incompatible with the Convention. Its effect may be largely political. The declaration in essence is a warning to Parliament that an incompatibility has been identified. Courts are also required to take the case law of the European Court of Human Rights into account in so far as they consider it is relevant to the proceedings before them. In addition, the Act makes it unlawful for public authorities, which includes all courts and tribunals and any person certain of whose functions are of a public nature, to act in a way that is incompatible with the Convention. The Act creates new directly enforceable rights against public bodies and against quasi-public bodies with some public functions. Individuals who believe their rights have been infringed, or that the public body has acted in breach of Convention rights will be able to bring proceedings against that public body and/or rely on their Convention rights in proceedings brought by others. The remedies available for breach of Convention rights are wide-ranging and include the award of damages. The Act does not make Convention rights directly enforceable against private individuals nor against quasi-public bodies that are acting in a private capacity. However, in some cases the Act will have an indirect effect on the outcome of a case against private individuals because the court will be obliged to interpret any statute so as to be compatible with the Convention wherever possible.
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Whilst the most frequent use of the Act is likely to be interpretative, there are a number of specific provisions in the Act that may have particular relevance in the context of disability discrimination. Article 3 This provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. European Court guidelines define inhuman treatment or punishment as treatment or punishment that causes intense physical and mental suffering; and degrading treatment or punishment as treatment or punishment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance. This provision and Article 5 below may have some relevance in cases concerning the conditions of detention for those held in institutions. Article 5 This guarantees the right to liberty and security of person. It also provides a set of procedural rights for detainees. Article 5 contains an overriding requirement that any deprivation of liberty must be in accordance with a procedure prescribed by law. Article 5 is concerned with both deprivation and restriction of liberty. The period of deprivation or restriction is relevant but not determinative. The mere fact that a person has voluntarily surrendered to detention will not negate Article 5’s operation but an ability to leave the area of confinement will negate its operation. The Convention permits the detention of those of ‘unsound mind’ and to prevent the spread of infectious diseases if such detention is lawful and in accordance with a procedure prescribed by law. There is no case law on the meaning of the term ‘infectious diseases’. However, in cases involving those of unsound mind it has been said that the medical disorder relied upon must be established by objective medical expertise; the nature of the disorder must be sufficiently extreme to justify detention; and the detention should last only as long as the medical disorder persists. Article 8 This provides that everyone has the right to respect for his private and family life, his home and his correspondence. This right is a qualified one designed, in essence to protect the individual from arbitrary action by public authorities. A violation of Article 8, even if proved, may be legitimate if it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 protects physical integrity. It does not expressly include a right to medical treatment but there may be circumstances in which withholding or withdrawing medical treatment; or the nature of the treatment itself, raise issues under this Article. Article 8 has been relied upon to obtain a right of access to health information. The collection of medical data and the maintenance of medical records have also been held to fall within the sphere of private life protected by Article 8. The ability of individuals to have access to their medical records can also raise issues under
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Article 8. The European Court has held that there must be specific justification for preventing individuals from having access to information that forms part of their private and family life. In addition, the rights of disabled people to form relationships and engage in sexual activities may also be protected by the private life and family life provisions of Article 8. Article 14 This Article prohibits discrimination in respect of access to other Convention rights. It is not a free-standing guarantee of equal treatment or a prohibition on discrimination more generally. Its purpose is to guarantee equality before the law of the Convention. The grounds of discrimination identified by the Convention are illustrative and not exhaustive. These grounds have been widely interpreted. They are not closed. They do not expressly include disability. The definition of less favourable treatment under the DDA does not require a comparison of like with like in order for discrimination to be established. However, it is only differences in treatment of people in analogous situations which fall within Article 14, and thus far, the European Court has interpreted this condition quite strictly. There is no requirement that the difference in treatment has caused a detriment to the complainant. Discrimination can be justified with reference to the aims and effects of the measure complained of; and to whether there is a reasonable relationship of proportionality between the means used and the aims to be achieved. There are a number of areas where the Court has recognised that it will take very weighty reasons to justify discriminatory measures.
9.5
FURTHER INFORMATION
Race discrimination Useful organisations Liberty 21 Tabard Street London SE1 4LA Tel: 020 7403 3888 Commission for Racial Equality 10–12 Allington Street London SW1E 5EH Tel: 020 7828 7022 Community Race Equality Councils exist throughout the country. You can get the address of your nearest CREC from a Citizens’ Advice Bureau, the town hall or the telephone directory.
Trades unions will often be able to help you if you suffer discrimination at work.
Law Centres’ Federation Duchess House 18–19 Warren Street London W1P 5DB Tel: 020 7387 8570 Contact them to find out the address of your nearest law centre. Runnymede Trust 133 Aldersgate Street London EC1A 4JA Tel: 020 7600 9666 Society of Black Lawyers Unit 149 Brixton Enterprise Centre 442–444 Brixton Road London SW9 8EJ Tel: 020 7274 4000 ext. 290
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Bibliography The CRE publish a number of useful pamphlets on the workings of the Race Relations Act 1976, including a code of practice. Paul Nichols, Tolley’s Handbook on Discrimination, Tolley, 1990.
Sex discrimination Useful organisations Liberty 21 Tabard Street London SE1 4LA Tel: 020 7403 3888
Rights of Women (ROW) 52–54 Featherstone Street London EC1Y 8RT Tel: 020 7251 6577
Citizens’ Rights Office Child Poverty Action Group 1–5 Bath Street, 4th Floor London EC1V 9PY Tel: 020 7253 6569
The addresses of your local Citizens’ Advice Bureau or Rape Crisis Centre can be found in the telephone directory.
Equal Opportunities Commission Overseas House Quay Street Manchester M3 3HN Tel: 0161 833 9244
Bibliography S. Edwards, Sex and Gender in the Legal Process, Blackstone Press, 1996. Equal Opportunities Review, IRS, 18–20 Highbury Place, London N1 1QP. Tel: 0171 354 5858. C. Palmer, Discrimination at Work: The Law on Sex and Race Discrimination, Legal Action Group, 1992.
Transsexuals/Transgender and Transvestites Useful organisations Liberty 21 Tabard Street London SE1 4LA Tel: 020 7403 3888
Press for Change BM Network London WC1N 3XX Tel: 0836 344334 or 0161 432 1915
Beaumont Society (for Transvestites and Transsexuals) BM 3084 London WC1N 3XX Information Tel: 0582 412220 Advice Tel: 0700 028 7878
Sexual orientation Useful organisations Liberty 21 Tabard Street London SE1 4LA Tel: 020 7403 3888
Bisexual Group Helpline 86 Caledonian Road London N1 Tel: 020 8569 7500 or 0131 557 3620
THE RIGHT NOT TO BE DISCRIMINATED AGAINST Campaign for Homosexual Equality (CHE) PO Box 342 London WC1X ODU Tel: 0402 326151
London Lesbian and Gay Switchboard BM Switchboard London WC1X 3XX Tel: 020 7837 7324 (24 hours)
GALOP (Gay policing project) 2G Leroy House 436 Essex Road London N1 3QP Tel: 020 7704 2040
OutRage! 5 Peter Street London WC1V 3RR Tel: 020 7439 2381
LAGER (Lesbian and Gay Employment Rights) 21 St Margaret’s House Old Ford Road London E2 9BL Tel: 020 7704 6066 Lesbian and Gay Youth Movement BM GYM London WC1N 3XX Tel: 020 8317 9690 Lesbian and Gay Christian Movement Oxford House Derbyshire Street London E2 6HG Tel: 020 7739 1249
Stonewall Group 16 Clerkenwell Close London EC1R OAA Tel: 020 7336 8860 Terrence Higgins Trust BM/AIDS London WC1N 3XX Tel: 002 7242 1010 For advice and support on HIV and AIDS issues. Immunity 1st Floor, 32–38 Osnaburgh Street London NW1 3ND Tel: 020 7388 6776
London Friend (Counselling and advice organisations for lesbians and gays) 86 Caledonian Road London N1 Tel: 020 7837 3337 (gay help line) Tel: 020 7837 2782 (lesbian help line)
Bibliography Madeleine Colvin et al., Section 28 – A Practical Guide to the Law, Liberty, 1989. Caroline Gooding, Trouble with the Law, Gay Men’s Press, 1992. Liberty, Lesbians and Gay Men and the Criminal Law, 1990. April Martin, Lesbian and Gay Parenting Handbook, Harper Perennial, 1993.
Disability discrimination Useful organisations The British Council of Organisations for Disabled People (BCODP) Litchurch Plaza Litchurch Lane Derby DE24 8AA Tel: 01332 29551 The Disability Alliance First Floor, East Universal House 88–94 Wentworth Street London E1 7SA Tel: 020 7247 8776
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Disability Rights Commission DRC Contact Centre Freepost MID02164 Stratford-upon-Avon CV37 9BR Tel: 0845 7622633
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Bibliography Colin Barnes and BCODP, Disabled People and Discrimination, Hurst and Co, 1991. Ian Bynoe, Equal Rights for Disabled People, Institute of Public Policy Research, 1991. Disability and Work, Labour Research Department, 1993. The Disability Rights Handbook, The Disability Alliance (published each year). Bryan Doyle, Disability Discrimination – The New Law, Jordans, 1996. Caroline Gooding, Disability Discrimination Act 1995, Blackstone Press, 1996.
Tim Eike
10
The Rights of Immigrants
This chapter deals with: • • • • • • • •
10.1
The framework of immigration control Human rights framework and discrimination British nationals and those with a right of abode Those governed (at least in part) by EC law Those subject to (full) domestic immigration control Refugees Rights to British nationality Further information
THE FRAMEWORK OF IMMIGRATION CONTROL
At the time of writing the framework of UK immigration law – that is, the laws controlling the entry into, residence in and departure from the United Kingdom – is still provided by the Immigration Act 1971. Over the years this Act has been substantially amended and supplemented by, amongst others, the Immigration Act 1988, the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996 to produce the regime in force today. However, even though in appearance the 1971 Immigration Act may remain the dominant statute, the most significant changes to current immigration law since the introduction of the 1971 Act are about to be implemented (and may already be in force at the time of publication). These changes will be brought about in particular by the entry into force of the Immigration and Asylum Act 1999, the entry into force of the Human Rights Act 1998 and the passing and entry into force of the Race Relations (Amendment) Bill, which, at the time of writing, is being considered by the House of Lords. In this chapter some of the impending changes will be anticipated, although their full impact and effect can only be assessed as and when the provisions enter into force. The Human Rights Act 1998 came into force on 2 October 2000, as did the related sections of the Immigration and Asylum Act 1999. However, as regards the exact date of entry into force of the various other provisions, it was not possible at the time of writing, to anticipate the exact date(s). If confronted with an issue that involves immigration law or the immigration authorities, it is, therefore, advisable to seek competent legal advice as to the exact state of the law at the time of your query. Advice can be obtained, for example from one of the organisations listed at the end of this chapter. 253
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These Acts, and in particular the Immigration Acts 1971 and 1988, lay down the general principles of domestic law about who is subject to immigration control and who is not. Certainly since the introduction of the 1996 Asylum and Immigration Act, the statutory immigration regime has been extended quite significantly beyond control at the border (or in the vast majority of cases, the port or airport) into daily life. As a result, proof of immigration status may be asked for by many public authorities. In some cases, such as the Benefits Agency dealing with a claim for social security benefits, a person’s immigration status has first to be proved before a person has access to any benefit. This trend will receive significant reinforcement once the Immigration and Asylum Act 1999 has fully entered into force (though some of these provisions are already in force). That Act, and Instruments adopted thereunder, for example, deny asylum seekers access to benefits and make them dependent upon vouchers issued to enable them to purchase basic necessities. However, not only is the daily life of an alien is increasingly subject to immigration laws and the marginalisation that flows from being recognisable as an ‘alien’. The law also requires an increasing number of persons, who are not immigration officials or not even officials at all, such as employers, Benefits Agency staff, local authorities, doctors, hospital staff, teachers and others to act as ‘quasi’-immigration control and to investigate an individual’s immigration status. Sometimes, as in the case of employers or carriers, such as ferry operators, lorry drivers and airlines, this is done under the threat of criminal sanctions and/or substantial financial penalties. The maximum fine upon conviction for employing someone who, under domestic immigration law, is not entitled to work is currently £5,000; the charge levied for every undocumented alien found on board a lorry, ferry or plane entering the United Kingdom is £2,000. The Immigration Acts, as amended, provide the statutory basis for the control of immigration. However, the powers granted under the Immigration Acts are very general. How those powers are to be exercised is set out in much more detail in the Immigration Rules. These attempt to be wide-ranging and fairly precise, and try to cover every conceivable type of application and state the requirements for each, but are not exhaustive. In principle, situations and applications not covered by the Immigration Rules are dealt with ‘outside the rules’ and are at the discretion of the immigration authorities. In some cases, the Immigration Authorities have formulated policies to deal with certain categories of applications outside the Rules. These include those allowed to remain permanently due to long residence; those fleeing civil war; those allowed to stay to care for a sick relative; those unable to get married, be it because they are in a same-sex relationships or because one of the partners continues to be married; those here as domestic workers; those with children who have been in the United Kingdom for more than seven years and others. There is, however, one important exception to this ‘rule’. The Immigration Rules do not, with very few exceptions, deal with the situation of nationals of the Member States of the European Union and of Norway and Iceland (‘EEA nationals’) and their families, nor with the rights of Turkish nationals under European Community law. However, in both instances, rights of entry, residence and/or extension of permission to work (for Turkish nationals) are as of right and do not depend upon the exercise of the authorities’ discretion ‘outside the rules’ (see below).
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The Immigration Rules are not in the form of legislation or secondary legislation passed or approved by Parliament, but are statements of the rules applied set out in so-called House of Commons Papers and will enter into force unless disapproved of by Parliament. They are not, therefore, exposed to any, or at least any detailed, parliamentary scrutiny. The Immigration Rules currently in force are included in House of Commons Paper No. 395 of 1994 (HC 395) which came into effect on 1 October 1994. These Immigration Rules, again, have been subject to frequent subsequent amendments, for example in 1995, in order to provide for the rights of establishment arising under the Association Agreements between the EC and the states of Central and Eastern Europe, and in November 1996 following the introduction of the 1996 Asylum and Immigration Act. In addition to the Immigration Rules, there are also detailed instructions to immigration officers (General and Asylum) on how they should operate the Rules. A disclosable version of these Immigration Directorate Instructions is published on the Internet, as are some of the concessionary policies ‘outside the rules’, such as the enforcement policy in relation to children with long-term residence (see below under ‘Further information’). However, not all such policies are published: in some instances they have come to public attention because they have been referred to in Parliament, for example, when a Home Office minister explains the Government’s approach or attitude to an issue; alternatively, the existence of a policy may be referred to in a court or tribunal in individual cases. Some have been set out in letters from the Home Office to certain organisations. Other policies have been leaked. In order to have a complete picture of the immigration law as it applies at any time, it is not only necessary to know the current legislative framework and the Immigration Rules, but also to know about the practice of the Home Office, and it is advisable to contact one of the organisations listed at the end of this chapter for advice before approaching the Home Office. Furthermore, it is important to note that since the end of 1996, the use of standard forms in making certain applications to the Home Office has been compulsory (this does not apply to applications governed by EC law). However, applications under the Association Agreements between the EC and the states of Central and Eastern Europe, though at least to some extent governed by EC law, are said to require an application form. If in doubt it is always safer to use the application forms. It is important to remember that standard application forms are required for immigration applicants not asylum seekers. The Home Office insists on the completion of all sections of the form, the provision of answers to all questions and the supply of all documents in the original (or a reasonable explanation offered). An incomplete or improperly completed application will be rejected and this may lead to any complete application being received after the original leave has expired and the applicant therefore becoming an overstayer without a right of appeal. With the exception of applications for a residence permit under EC law, in the case of all other applications if you seek the return of your documents, for example, in order to be able to travel, the Home Office will consider your application to have been withdrawn with all the possible consequences that flow from that. There are other statutes which have a bearing on immigration control: these range from nationality laws, which extend or restrict rights of abode (to the Falkland Islands and Hong Kong respectively), to the Carriers’ Liability Act (and the
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Immigration and Asylum Act 1999), which imposes fines on carriers who bring passengers without the required documents into the United Kingdom. The European Union has an increasingly significant impact on domestic immigration law. This is not only due to the direct effect of EU laws on the free movement of persons, but also due to the co-ordination and harmonisation of matters of immigration and asylum that takes place at the political and policy level of the European Union. Following the amendment to the EC Treaty by the Treaty of Amsterdam in May 1999, the EC Treaty now also contains a chapter expressly dealing with immigration and asylum matters, which includes the Schengen arrangements between the continental Member States of the EC. This does not, however, apply to the United Kingdom, which has opted out of the application of that part of the EC Treaty. The United Kingdom has, however, reserved the right to opt into all or any measure adopted under that part of the EC Treaty. At the time of writing the present Government has not expressed any intention of doing so. This, however, may change. Finally, on 2 October 2000, the European Convention on Human Rights (ECHR) was ‘incorporated’ into English law through the operation of the Human Rights Act 1998. So far, the ECHR was only considered by the courts as being relevant where domestic law was unclear. With ‘incorporation’, however, the ECHR is likely to add an important additional level of protection for the rights of aliens/immigrants. For the first time, the rights provided by the ECHR will be directly enforceable through the English courts.
10.2
HUMAN RIGHTS FRAMEWORK AND DISCRIMINATION
On 2 October 2000, the Human Rights Act 1998 came into force and ‘incorporated’ into English law the rights protected by the ECHR. As a consequence, it became unlawful for any public authority to act in a way that is incompatible with an individual’s rights under the ECHR. ‘Public authority’ in this context includes not only the Home Office and Immigration Officers, but may also include private companies fulfilling a ‘public’ function. The most obvious example in the context of immigration and asylum law are private companies charged with the running of immigration detention centres or privately contracted interpreters employed in asylum interviews. The protection provided by the ECHR and the Human Rights Act applies to every person (whether individual or company) within the jurisdiction of the UK authorities, irrespective of whether they have leave to enter or remain in the United Kingdom. Most importantly, it includes those who have been granted temporary admission, which means that even though they are physically present in the United Kingdom, they are not legally present. The most important rights, in the context of immigration, protected by the ECHR and the Human Rights Act are: Article 3 The prohibition of torture or inhuman or degrading treatment or punishment. This provision not only protects against torture, inhuman or degrading treatment or punishment inflicted by British public authorities but also protects against the
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removal of any individual to a country where there is a real risk of that individual suffering treatment that would amount to torture or inhuman or degrading treatment or punishment. Unlike the Refugee Convention, the protection offered by Article 3 is absolute and applies no matter how poor an individual’s immigration history or criminal record is. Furthermore, in order to be able to rely on Article 3 protection from removal, it is not necessary that the real risk of torture, inhuman or degrading treatment in the country of destination emanates from that State’s public authorities. Article 3 also protects against threats emanating from non-state agents, such as the Colombian drugs barons. Article 5 The right to liberty and security of the person. This provision provides for a minimum level of protection in relation to those deprived of their liberty. It does, however, expressly allow for the lawful detention in order to prevent unauthorised entry into the country or in order to take deportation action. Nevertheless, any detention must comply with the safeguards laid down (in the case law of the European Court of Human Rights) under Article 5. Article 8 The right to respect for private and family life. The concept of ‘family’ in the context of Article 8 is wide and includes spouses, children (whether legitimate or illegitimate) but may also include relatives in the ascending line, such as grandparents, aunts and uncles and even foster parents. What is important is the existence of ‘family life’. In relation to children, even natural fathers who have had little or no contact with their children since their birth can enjoy a right to family life with those children. Though this provision is of particular importance in the case of removal or refusal of admission of a spouse or parents (or other family member) of an individual who has a right of residence in the United Kingdom, there are two important notes of caution: 1. Even though there is a right to respect for family life this, in principle, does not extend to a right to respect for the choice of marital or family home. Where there is an alternative country in which the spouses/family can reside, refusal to allow admission to or residence in the United Kingdom may not amount to an interference with the right to respect for family life or, if it does, may be justifiable in law. 2. Unlike Article 3 above, the protection of the right to respect for private and family life is not absolute and is capable of being justified in law: any decision involving Article 8 therefore includes a sometimes difficult balancing act between the different interests involved. Article 14 The prohibition of discrimination. Article 14 provides for an open-ended list of grounds on which discrimination is prohibited and in that sense it provides an extension to the protection against discrimination already provided by English law. Its influence on immigration law, however, has been extremely limited for two reasons:
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1. In order to be able to rely on Article 14 the conduct complained of must fall within the ambit of one of the other provisions of the ECHR, such as Articles 3, 5 or 8; and 2. The courts so far have accepted that Article 14 is not engaged in typical immigration situations either because, aliens and a country’s own nationals are not in a comparable situation or because the differential treatment between two categories of aliens are objectively justifiable. By way of example, the more favourable treatment accorded to EC nationals or Commonwealth nationals as compared to other aliens is objectively justified because of the particularly close links the United Kingdom has with those categories of countries. Even though the above provisions are the most important, other provisions may well be of relevance to a specific immigration issue. These may include: Article 2 (right to life), Article 6 (right to a fair trial), Article 9 (freedom of thought, conscience and religion), Article 12 (right to marry) or Article 2 of the First Protocol (right to education). In addition to the rights under the ECHR it must not be forgotten that there are a number of other important international human rights instruments of relevance to immigration issues. Even though they are not incorporated, they may provide support for arguments under the ECHR and they will have to be considered by the courts and the Government, just as the ECHR was before incorporation. These instruments include: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child, the UN Convention for Elimination of all forms of discrimination against Women, the UN Convention for the Elimination of Race Discrimination and the European Social Charter. In the context of the prohibition of discrimination, it is also important to note that the Race Discrimination (Amendment) Bill will extend the application of the Race Relations Act, and the prohibition of discrimination on grounds of race, nationality, national origin, colour, and so on, included in that Act, to those concerned with immigration decisions. At the time of writing this bill is on its way through Parliament and it is not clear when (and if) it will be passed and enter into force. The bill, however, provides for one major exception to its application in the immigration context: it will not be unlawful under the Race Relations Bill to discriminate against another person on grounds of nationality or ethnic or national origin in carrying out immigration and nationality functions. While one may be able to understand why discrimination on grounds of nationality is exempted in this context it is difficult to see why this exception also includes ‘ethnic or national origins’. Both the Human Rights Act and the Immigration and Asylum Act 1999 introduce a separate right of appeal and/or cause of action in the courts for breach of a Convention Right. Even before the UK Human Rights Act was incorporated into English law, international human rights law had formed a fundamental principle of EC law. As a result, those whose immigration status involved EC law rights could always rely, as part of their case, not only on the ECHR but also other international human rights instruments to which the Member States are signatories or in the preparation of which they have been involved. At the time of writing the European Union has put
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in place a so-called Convention to draft a Charter of Fundamental Rights, which should be completed by the end of 2000. The aim of that Charter is to put into one document the various human rights protected by EC law. It is to be hoped that this Charter will eventually become a legally binding document; initially it will only take the form of a solemn declaration.
10.3
BRITISH NATIONALS AND THOSE WITH A RIGHT OF ABODE
British citizens are not subject to immigration control. This may seem obvious, but for the purposes of UK immigration law, not every person holding a British passport is also a British citizen. There are several other categories of people entitled to hold British passports, such as British Overseas Citizens, British Dependent Territories Citizens and British Protected Persons. These are subject to immigration control and have to fit within the immigration rules on entry and residence. They are also not British nationals for the purpose of exercising EC free movement rights in other EC Member States. Commonwealth citizens with the right of abode and Irish citizens travelling from Ireland are not subject to immigration control. As someone not subject to immigration control, you do not require permission from an immigration officer to enter and your passport will not be stamped when you travel in and out. Commonwealth citizens have the right of abode if they had a right of abode under the 1971 Immigration Act immediately before 1 January 1983 and have not ceased to be Commonwealth citizens. The requirements that had to be fulfilled before 1 January 1983 are that either: •
One of their parents was born in the United Kingdom; or
•
They were women who were married to a man who was a British citizen or a Commonwealth citizen with the right of abode.
10.4
THOSE GOVERNED (AT LEAST IN PART) BY EC LAW
Paragraph 10.1 describes the legislative framework for English immigration law. As has been explained, the Immigration Rules do not, with very few exceptions, apply to those relying on EC free movement rights. The right of free movement of nationals of the EC Member States and Norway and Iceland is governed primarily by the EC Treaty and the European Economic Area Agreement and by Regulations and Directives adopted under the EC Treaty as interpreted by the European Court of Justice. In this context, nationals of EC Member States include British nationals who return to the United Kingdom after they have exercised their right of free movement in another Member State. In terms of British domestic law, some of these rights have been translated into British law in section 8 of the Immigration Act 1988 and the Immigration (European Economic Area) Order 1994, though the latter expressly does not apply to British nationals returning to the United Kingdom after having lived and worked in another Member State. It is further important to note that despite the fact that EC free movement law forms an integral part of British law (through the operation of the European
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Communities Act 1972), the British immigration authorities and the courts have always maintained that EC free movement law and domestic immigration law are two completely separate systems without any point of contact. As a result, individuals who could rely on either EC free movement law or domestic immigration law are likely to be made to choose which system they seek to rely on. This can be quite a difficult choice as the short- and long term consequences of that choice are different. By way of example, the foreign spouse of a British national returning after having worked in Germany for some time may find that the delay in obtaining a visa to return with the spouse is significantly shorter if reliance is placed on EC law than if the application is made under domestic law. However, having chosen the EC law route, the spouse may then find that an application for indefinite leave to remain, which would have been considered after one year’s residence as a spouse under domestic immigration rules, will now only be considered after four years. Before making the decision as to which regime to rely on it is, therefore, important to conduct some long-term planning and to weigh up the pros and cons of both. Nationals of the Member States of the European Union, Norway and Iceland and their families Nationals of the Member States of both the European Community (also known as the European Union) and of the European Economic Area enjoy a right of free movement under European Community law and are therefore subject to only limited immigration control. The European (Economic) Community came into existence as a result of the Treaty of Rome of 1957, as amended. It now comprises 15 Member States: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. Nationals of the United Kingdom only benefit from EC free movement law rights if and when they return from having lived (and worked) in another Member State of the EC. Without this Community law connection to their immigration, a UK national cannot invoke EC law as against the UK immigration authorities, for example, in order to ensure that his or her foreign spouse is admitted to the United Kingdom. The European Economic Area (EEA) took effect from the 1 January 1994, and comprises the European Community and two of the remaining countries from the European Free Trade Association (EFTA), namely Iceland and Norway. For various reasons Switzerland and Liechtenstein, which are both in EFTA, are not yet part of the EEA. As a matter of EC law, in addition to nationals of the EEA, the following enjoy a right of free movement, which entails a right of entry and a right of residence (subject to certain conditions): spouses, children under 21 or still financially dependent upon the parents and dependent relatives (of the EEA national or the spouse) in the ascending line, such as parents and grandparents. This derived right of entry and residence is enjoyed irrespective of the nationality of the family member. However, Member States are entitled to and the United Kingdom does impose visa requirements upon family members of certain nationalities. Unlike national visas, these visas (known as EEA family permits) are free of charge. EEA nationals enjoy a general right of entry to another Member State, irrespective of their intention in that State. Although immigration authorities are entitled to continue to check the passports or identity cards of those seeking to enter in order to ascertain identity and nationality, they are not entitled to ask any further
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questions about intention, availability of funds, sponsors or the like. An EEA national’s right of residence, however, is dependent upon the individual falling within one of the (economic) categories of persons who enjoy a right of residence. These are: •
Workers. These include part-time workers and work-seekers, though the latter may be required to leave a Member State if they have not found employment and have no prospect of doing so within a certain period, usually six months.
•
The self-employed.
•
Those seeking to provide services in a Member State or those who travel to a Member State in order to receive services. The latter category includes tourists and ‘window-shoppers’. The right of residence is, however, tied in its duration to the time required to provide or seek the services in question.
•
Students, as long as they provide assurance, in the form of a declaration or otherwise, that they have sufficient funds not to become reliant on state benefits. In the case of students only spouses and children of a student also enjoy a (derived) right of entry and/or residence.
•
Retired persons. For example, those who have retired after having worked and/or lived in the United Kingdom for more than three years at the time of his retirement, or who have to stop work after more than two years in the United Kingdom due to permanent incapacity to work, or who, irrespective of length of residence or work in the United Kingdom, have to retire because of an accident at work or an occupational disease are entitled to remain permanently in the United Kingdom, as do the members of their family. Those who seek to retire to the United Kingdom, not having worked here, enjoy a right of residence as long as they can show that they have health insurance and sufficient funds not to have to rely on benefits.
•
All others. As long as they can show that they have sufficient funds not to become dependent on benefits and that they have health insurance.
As a rule, the rights of residence of family members who are not EEA nationals or do not otherwise have their own individual right to reside either under EC law or domestic law, will cease as soon as: •
The EEA national ceases to be resident in the United Kingdom. The one exception to this rule is children in education. The children of an EEA national who are in education in the United Kingdom while their parent(s) leave the United Kingdom enjoy an independent right of residence to complete their education. As the law stands, however, their non-EEA national parent, who may wish to stay to look after them while the EEA national parent moves to another country, does not enjoy a derived right of residence to remain with the child(ren). At the time of writing this is the issue of a case before the European Court of Justice and the situation may therefore change.
•
The family relationship with the EEA national is terminated; in cases of divorce, the entitlement only ceases upon the decree absolute but survives during periods of separation and the decree nisi. The only exceptions to this rule are the family members of those who have retired in the United Kingdom
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after having worked here for the requisite time, and those family members whose EEA national spouse dies during his or her working life, for example after continuous residence of two years or due to an accident at work. The right of residence of these family members survives beyond the death of the EEA national. Individuals exercising their right of residence under EC law are entitled to apply for a residence permit (for EEA nationals) or a residence document (for dependent family members). These are not compulsory and cannot be a prerequisite for the exercise of the right of residence but there are significant practical advantages in obtaining one, as it provides convenient proof of one’s status in the United Kingdom. Residence permits and residence documents must be valid for at least five years and should be issued free of charge. They will be issued upon provision of evidence of nationality, family status, economic activity (or health insurance and sufficient funds). EC law requires that a decision on issuing a residence permit (or refusing it) must be made as soon as possible and in any event within six months. Lengthy delays are unacceptable and the EC Commission has suggested that the appropriate time scale should be equivalent to the time it takes to issue British nationals with a passport. As a matter of domestic law, EC nationals and their family members who have been so resident in the UK for four years can apply for indefinite leave to remain which is a prerequisite for naturalisation as a British citizen. However, under current practice of the Nationality Directorate of the Home Office, EC nationals and those exercising EC free movement rights are presumed to be settled even without having applied for and been granted indefinite leave to remain. As a result, children born to those exercising EC free movement rights may be entitled to British nationality and therefore to a British passport. Turkish nationals and their families In addition to EEA nationals and their families, EC law provides for limited rights of free movement under a number of Association Agreements and Co-operation agreements with non-EEA countries. The oldest such Association Agreement is that with Turkey dating back to 1963, with an Additional Protocol of 1970. The rights granted to Turkish nationals are not reflected either in the Immigration Rules or in the Immigration (European Economic Area) Order and anybody seeking to benefit from them will therefore have to refer directly to EC law. The Additional Protocol includes a so-called stand-still provision which has the effect of requiring Member States, including the United Kingdom, not to introduce any new restrictions, after its entry into force in 1973, on the rights of Turkish nationals to set up in business as self-employed persons. However, only Turkish nationals who initially have been admitted to the United Kingdom and been allowed to take up economic activity can benefit from this right. Although it does not provide the Turkish national with a directly effective right of establishment (as is enjoyed by EEA nationals) it means that the Immigration Rules that should be applied to them are not those in force now but the Immigration Rules in force in 1973, which imposed much less stringent requirements on being allowed to set up in business. The rights of Turkish workers are laid down in a Decision of the EC–Turkey Association Council, namely Decision 1/80 (unpublished). This provides Turkish
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workers, who have been in ‘legal employment’ in a Member State for a certain period of time, with a right to have their permission to work renewed and to have their right of residence renewed in line with the right to work. The requirement for ‘legal employment’ means that, again, in order to benefit a Turkish national has to have been admitted to the United Kingdom under domestic immigration law and must have been allowed to work under UK domestic law. This could, however, go well beyond those who have obtained a work permit and include au pairs and others allowed to work incidental to their primary activity. The scheme operates in these terms: •
One year’s legal employment gives the Turkish worker a right to have his or her right to work renewed for the same employer and to have his or her leave to remain renewed in line. A Turkish national can only benefit from this right if he or she has been employed with the same employer for the whole year.
•
Three years’ legal employment with the same employer entitles a Turkish worker to have the permission to work renewed to work within the same industry, subject to the preferences that must be accorded to EC nationals. Again, there is an entitlement to have the right of residence renewed in line with the right to work. In order to benefit from this right the Turkish national must have been employed with the same employer for three continuous years. If the Turkish worker has changed employment within the three years, she or he will either have to rely on the ‘one year’ rule, if one year has been achieved or, if not, will fall outside the benefit provided by Decision 1/80.
•
After four years’ legal employment, a Turkish worker is entitled to free access to the labour market, which includes a right to give up his or her job and to be a job-seeker for a reasonable period of time, probably similar to that allowed for job seeking EEA nationals.
When calculating the period of time that has been spent in ‘legal employment’, time ‘clocked up’ solely as a result of a pending appeal will not be counted unless and until the appeal has been successful. The question of whether leave to remain gained under the Immigration (Variation of Leave) Order, which extends existing leave to remain as the result of an application for extension made before its expiry until 28 days after a decision has been made, counts towards the time of ‘legal employment’ is currently in dispute. Nationals of States of Central and Eastern Europe under the Association Agreements with the European Union Since the collapse of the Soviet bloc, the European Community has concluded Association Agreements (so-called Europe Agreements) with the majority of Central and Eastern European States: these include amongst others Bulgaria, the Baltic States (Estonia, Lithuania and Latvia), Romania, Slovenia, Slovakia, the Czech Republic, Hungary and Poland. The aim of these agreements is to prepare these States for membership of the European Union, with the first new Members being admitted after the end of 2002. These Agreements provide for a right of establishment in the United Kingdom as a self-employed person or in a company. Though the right is expressed in terms virtually identical to those granted to EEA nationals, they are expressed so as to
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exclude any employment. Those who are not exclusively self-employed cannot benefit under the Agreement. The extent of the right of establishment and whether it is similar to that granted to EEA nationals or whether it requires that the individual was first admitted to the United Kingdom under the domestic Immigration Rules is currently in dispute. The Immigration Rules make provision for those seeking to establish themselves under the Europe Agreements and impose certain requirements to ensure that the individual in question really intends to be self-employed and to ensure that the selfemployed activity will be sufficiently profitable to enable the individual to live without recourse to employment or benefits. The requirements laid down for those seeking to exercise rights of establishment under the Europe Agreements are less stringent than those imposed under the general business rules. The Europe Agreements do not provide for a right of free movement of workers at all. They only provide that workers ‘legally employed’ in the United Kingdom may not be treated less favourably than UK nationals. This does not create either a right of entry or residence nor does it create a right to have your leave to remain extended until the expiry of your employment contract. Nationals of the Maghreb States and others benefiting from EC law In addition to the above Association Agreements, the EC has concluded a series of Association Agreements and Co-operation Agreements with countries such as Algeria, Tunisia and Morocco. The significance of these agreements in immigration terms is extremely limited in that they merely provide for non-discrimination clauses akin to those included for workers in the Europe Agreements. As was said there, the provisions do not create either a right of entry or residence nor do they create a right to have your leave to remain extended until the expiry of your employment contract. Enforcement of immigration controls and appeals EEA national family members and their families (and others who can rely on a right of free movement under the EC Treaty or the EEA Agreement) can be prevented from entering the United Kingdom or be removed from the United Kingdom only if such a measure is justified on grounds of public policy. In order to be so justified, the immigration authorities have to show that the individual is a present and sufficiently serious threat to a fundamental interest of UK society to warrant exclusion or removal. Such steps can only be justified on the basis of the individual’s conduct itself and may not be taken for general preventative purposes. In relation to any decision concerning entry to or residence in the United Kingdom, as well as the issue of or refusal of a residence permit or passport, the applicant is entitled either to appeal (where the decision is a decision to withdraw or not renew a residence permit) or to apply for judicial review. Here EC law itself requires certain procedural safeguards to be in place and limits the cases in which the right of appeal may only be exercised from outside the country. The Immigration and Asylum Act 1999 includes provisions which allow the Secretary of State to make new regulations concerning the appeals structure as it applies to EEA nationals and the family members of returning UK nationals.
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THOSE SUBJECT TO (FULL) DOMESTIC IMMIGRATION CONTROL
Everybody else is subject to full immigration control and will be allowed to enter only with permission of an immigration officer if they qualify under the Immigration Rules to enter for a specific purpose. If a person is coming to stay permanently or to work, he or she has to get permission from a British Embassy or High Commission abroad before travelling; this is called ‘entry clearance’ and could be either a visa or an entry certificate. Citizens of many countries are ‘visa nationals’. A list of these countries appears in an annex to the Immigration Rules. Being a ‘visa national’ means that the individual must always get permission before travelling, whatever they are coming for. It is increasingly more difficult to discern any deep underlying reason for the inclusion of a country on the visa national list, or more unusually for a country to be taken off the list. It could, in the past, be said that visas were required of nationals from the poorer countries of the South, the former communist countries in Europe, the former Soviet Union and the former Yugoslavia. More recently however, the pressure for a harmonised visa list within the European Union seems to be the determining factor. This has led to a curious situation where many Commonwealth countries with strong ties with the United Kingdom are on the visa national list, but countries without such ties are not. Visa nationals have to apply for permission to come here for a specific purpose and are in the main not allowed to obtain an extension for a different purpose. Thus a visa national who is here as a visitor and applies to remain here longer as a student will be refused without any right of appeal, however meritorious the case. Coming to settle Normally, only the close relatives of people already settled here (that is, people allowed to stay permanently) will be allowed to settle with them. Applicants must get entry clearance and satisfy other conditions before travelling. There are still long delays in processing these applications, particularly in the Indian subcontinent. Most people will be allowed to come only if their relatives can show that the person joining them can be supported and accommodated ‘without recourse to public funds’. Public funds for immigration purposes, since the changes brought about by the 1996 Asylum and Immigration Act, the Rules and Social Security regulations, now include virtually all benefits. It is a measure of the extent of the change in the law, that Child Benefit, a benefit that was paid universally regardless of means, is included within the definition of public funds. Husbands and wives English law and the Immigration Rules will not recognise polygamous marriages for the purposes of seeking entry to the United Kingdom as a spouse. To qualify, the following will have to be proved to an entry clearance officer (a visa issuing officer at a British diplomatic post): •
The applicant is the husband or wife of the person they are coming to join and he or she is present and settled in the UK or is being admitted at the same time for purposes of settlement.
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•
The spouses both intend to live together permanently as husband and wife.
•
They have already met each other.
•
They have adequate accommodation for themselves and any dependants in the United Kingdom without claiming public funds.
•
They will be able to support themselves without relying on public funds.
There are particular difficulties for people from the Indian subcontinent. The officers who issue entry certificates expect an applicant to prove that he or she qualifies under the complex and unfamiliar immigration rules. There is little regard for social and cultural differences in the way questions are asked or the way answers are interpreted. Sometimes an Entry Clearance Officer may question the credibility of an applicant who appears not to conform to a perceived social or cultural norm, and this may lead to refusal. An applicant is rarely given the benefit of the doubt. Details of family and social relationships are investigated in order to bring out ‘discrepancies’ which could lead to refusal. The questioning by officers is often hostile and this too may lead to unjustified refusals. If the application is successful, the applicant will be allowed in for one year. Before the end of that year, an application to the Home Office for indefinite leave to remain (that is, permission to stay permanently) should be made. The Home Office must be satisfied that the spouses still intend to stay together and can support and accommodate themselves without relying on public funds before this is granted. Fiancés and fiancées In order to come here to get married an applicant has to meet similar criteria to husbands and wives and show, in addition, that he/she intends to get married soon after arrival in Britain. If granted entry clearance, the applicant will be allowed in for six months, during which time he or she is expected to get married. Those admitted in this category will not be allowed to work until they get permission from the Home Office to stay. If successful, they will be granted permission to stay for one year, after which they will be granted settlement if they continue to satisfy the requirements. Children Children under 18 may be allowed to join parents here (or to join one parent if the other parent is dead) if: • • • •
They get entry clearance. Both their parents (if living) are settled here (or are being admitted at the same time). The parents have adequate accommodation for the child here. The parents can support the child here without having to claim public funds.
However, if the child is leading an independent life, is married or has formed an independent family unit before reaching the age of 18, he or she is not eligible to be admitted under the Immigration Rules concerning ‘children’. If children are coming to join one parent and the other parent is still alive but not coming to live here, or coming to join a relative other than a parent, they also have to prove either:
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•
The parent living here has had the sole responsibility for their upbringing; or
•
There are serious and compelling family or other considerations making their exclusion from the United Kingdom undesirable.
These rules are difficult to satisfy. In practice, they are not interpreted so strictly for children under twelve coming to join their mothers, but this has never been written into the rules. Adopted children under 18 will be allowed to come only if it can be shown that the child was adopted in accordance with the proper legal procedures in the child’s country, that there has been a genuine transfer of parental responsibility, and adoption took place because the natural parents were unable to care for the child and the child has lost or broken ties with the natural family, and that the reason for the adoption was not to bring a child here. In common with most other applications for settlement, the ability for the sponsors to provide adequate maintenance and accommodation without recourse to public funds must also be shown. Legal adoptions abroad are recognised if the adoption has taken place in a country on a designated list, but the other requirements will still have to be met. Parents and grandparents It may be possible for an applicant to join children or grandchildren settled here if: •
The applicant gets an entry clearance.
•
The applicant is a widow or widower over 65 or, if a couple, that one is over 65.
•
The applicant can be supported and accommodated by their children here without reliance on public funds.
•
The applicant was wholly or mainly financially dependent on the children here while living in his/her country of origin.
•
There are no other close relatives in the country of origin to whom the applicant can turn for care and support.
In practice it is very difficult to establish these requirements. Other relatives Other relatives wanting to join family in the United Kingdom have to get entry clearance, and have to show that they are related as claimed to someone here, have been financially dependent on this relative, that they can be supported and accommodated here without recourse to public funds, and that they were living alone in the most exceptional compassionate circumstances without other close relatives to turn to. This applies only to sons, daughters, sisters, brothers, uncles and aunts of people settled here, normally only when they are over 65, though it would be possible for a parent under 65 to apply under this rule. It is very rare for anyone to qualify to come here under this rule. In general, the United Kingdom has a narrow definition of family for the purposes of immigration control. But for families of EEA nationals, a broader definition based on extended families and shared households would apply (see above).
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Coming to work Those wanting to come to work here need to get a work permit before travel. The employer here needs to apply to the Department of Employment for permission to employ a foreign worker, and has to satisfy restrictive conditions about the applicant’s skills and experience and show there is nobody already allowed to work here who could do the job. Once a work permit has been issued, the applicant will be allowed in for four years or less if the job is for a shorter period. The work permit will only be for a particular job with a specified employer, and will not allow an individual to enter the labour market here (but note the position of Turkish nationals set out above). In order to change jobs, the new employer must first get a new permit for the worker and all the original conditions must be satisfied again. In law, work permit holders have the same rights as other workers. However, the fact that their immigration status here is dependent on a particular job with a specific employer may effectively act as a deterrent and stop them from enforcing their rights. After four years, work permit holders can qualify to settle. The spouse and the children under 18 of a work permit holder may be allowed to come here to join him or her as long as both parents are living or coming to live in the United Kingdom and they can be supported and accommodated without recourse to public funds. They must get entry clearance before coming and will be allowed to stay for the same length of time as the work permit holder. Some work does not require a work permit. Ministers of religion, missionaries, journalists working for overseas newspapers, servants of diplomats, people working for overseas governments and international organisations, amongst others, do not need a work permit, but still have to get permission before they come. Leave to enter may be granted to writers or artists if they can show that they can support and accommodate themselves from the proceeds of their art or writing and any savings without having to take any other work or to claim benefits. Employees of diplomatic missions are not subject to immigration control. They can remain here for as long as their employment continues; but however long they remain, they never acquire any right to settle here. If an applicant has capital of at least £200,000 and satisfies other requirements, he or she may be allowed to come here to set up in business or be self-employed (but note the different requirements for those coming from Central and Eastern Europe under a Europe Agreement set out above). Those seeking to make their home here as a retired person must show a guaranteed annual income of £25,000, without having to work. Once an individual has been allowed to settle there are no further immigration restrictions on what they can do here. They are able to work or set up in business without needing any extra permission. If they leave Britain, they will be allowed in again for settlement provided they have not been away for more than two years and that they confirm they are returning to stay. People who were settled and have been away for more than two years may still be allowed to settle again in certain circumstances, for example, if they have lived here for the majority of their life. Coming for temporary purposes If an applicant wants to visit Britain he or she needs to satisfy an immigration officer that he or she is seeking to be here for a limited period of less than six months, intends
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to leave at the end of that period and has enough money to support and accommodate him- or herself for the length of the visit without needing to work or to claim benefits. It is acceptable to be supported and accommodated by someone who lives here, but an applicant may be asked detailed questions about the relationship, what they do here and how they can support and accommodate the applicant. Immigration officers may also look at the applicant’s personal circumstances, such as education, employment and family ties, and form a view about the ‘incentive to return’ to the applicant’s country at the end of the stay. If the applicant is a visa national, they need to get a visa in advance; if not, they can arrive at a port or airport and seek admission there. Six months is the longest time allowed to a visitor. Applications for extensions as a visitor will be refused, except in special circumstances such as illness, and may jeopardise future visits. Study Those who want to study may be allowed to come here if they can show that they have been accepted for a full-time course of study at a recognised college or independent (fee-paying) school, that they have the money to pay the fees and to live here without needing to work or to claim benefits, and that they intend to leave Britain at the end of their studies. ‘Full-time’ normally means at least 15 hours of daytime classes per week, studying one subject or related subjects. Overseas students have to pay fees which cover the full cost of their courses and are not usually eligible for local authority grants. A student will normally be allowed in for a year or the duration of the course, whichever is shorter, and can apply to the Home Office to extend this time to continue a course. If a student has not yet been accepted by a college he or she may be allowed in for a short time in order to enrol and can then apply to the Home Office for an extension. A student wanting a short period of post-qualification training or on-the-job experience may be allowed to stay on as a trainee on the understanding that this is temporary and that a transfer to ordinary employment will not be allowed. If a student has spent more than four years on short courses of under two years, or appears to be chopping and changing courses with no end in sight, or has not been attending studies regularly, an extension will be refused. The spouse of a student and children under 18 may be permitted to live here for the period of study, as long as they can be supported and accommodated without recourse to public funds. The family of a student does not have a right to stay independently of the student. Where the student is to be here for more than a year, permission may be obtained for the spouse to take up employment. Students may be permitted to take part-time or holiday jobs provided the college does not object and provided permission is first obtained from the Department of Employment. Registration with the police Those aliens who are over 16 and are ‘relevant foreign nationals’ will normally be subject to a requirement to register with the local police where they are admitted for purposes of employment for longer than six months, or for longer than six months as an au pair, a student, a business person or self-employed, an investor or person of independent means or a creative artist or the spouse or child of such a
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person. A ‘relevant foreign national’ includes the citizens of countries listed in Annex 2 to the Immigration Rules, stateless persons and those holding non-national travel documents. This requirement may also be imposed on any other foreign national aged 16 or over who has been given limited leave to remain, where exceptionally it is thought necessary to ensure compliance with the conditions imposed on the leave. The police have to be informed of the individual name, date of birth, nationality, marital status, address, occupation and immigration status. They must be informed of any future changes in these. This requirement will only be lifted if the individual is later allowed to stay permanently. Enforcement of immigration controls and appeals There are three stages to immigration control: before entry, at the port of entry and after entry. It should be noted, however, that the Immigration and Asylum Act 1999 empowers the Secretary of State to make provision for leave to enter to be given before arrival or for an entry visa or any other entry clearance to have the effect of leave to enter. This would effectively lead to an amalgamation of the pre-entry and port of entry controls and avoid some of the insecurity caused by the current system where the fact that an entry clearance was issued by the relevant post abroad does not act as a guarantee that leave to enter will be granted at port. Furthermore, both the provisions concerning appeals and those concerning bail, currently contained in the 1971 Immigration Act, are due to be completely replaced by the new regime introduced by the Immigration and Asylum Act 1999. Before entry All visa nationals have to obtain entry clearances from British diplomatic posts designated by the Foreign Secretary. The rules were changed so that applicants requiring visas must apply to the designated post in the country of their nationality or where they are resident if different. Not all posts grant a full range of visas. If you are refused an entry clearance, you do not have the right of appeal if your application was to come here as a visitor, to study for not more than six months or with an intention to study without a definite place. At the port of entry Those who have obtained entry clearance before travelling, but are refused entry here have a right of appeal from within the country and can remain here while the appeal is pending. Immigration officers have the right to detain such individuals while this is going on; after seven days an application can be made to the immigration authorities for bail. Under the 1999 Immigration and Asylum Act there will be a duty to produce a detainee at court no later than on the eighth day of the detention and, unlike under the current regime, there will be a general presumption that the detainee is to be released on bail unless the court is satisfied that certain conditions are satisfied – for example, that the individual would not comply with conditions imposed, would commit an offence while on bail, would be likely to cause a danger to public health or would be a serious threat to the maintenance of public order. If an individual is refused entry and did not have entry clearance, he or she can be sent straight back. There is currently no in-country right of appeal against this. The individual may be detained at the airport until there is a flight back, or while any
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representations made on his or her behalf are under consideration, and there is no right to apply for bail. However, in some circumstances, the individual may be allowed temporary admission with the requirement to reside at a particular address and to report back at a given date and time. ‘Temporary admission’ is a legal fiction. It means that you are physically in the United Kingdom, with the permission of the authorities and subject to conditions, but in law you are not and never have been in the United Kingdom. After entry Those who have been allowed in for a temporary period and are refused permission to stay longer can appeal only if their application was made to the Home Office before permission to stay here expired. If the application was made late there is no right of appeal and the individual is an overstayer who is in Britain illegally. All immigration appeals are heard in Britain, even when the appellant is abroad. An appeal is made first to a single adjudicator and then, if leave is granted, usually on a point of law only, to a three-person Immigration Appeal Tribunal. Adjudicators used to be appointed by the Home Office but now both they and tribunal members are appointed by the Lord Chancellor’s Department. Under certain circumstances, Legal Aid may be available for appeals. Police constables and immigration officers have the power to arrest, without warrant, anyone who has or whom they suspect has committed an immigration offence. The Asylum and Immigration Act 1996 increases the number of immigration offences, increases powers of search and arrest in relation to these and provides for increased penalties for immigration offences. The Immigration and Asylum Act 1999 will further increase the arrest, search and fingerprinting powers in the immigration context. It is a criminal offence not to give information to an immigration officer, or to give false information or documents. There is effectively no right of silence as the responsibility is on the individual to show that he or she qualifies for the status being claimed under the law. The very wide power under the immigration laws allows for the investigation and detention of suspects under these administrative provisions who do not benefit from the same level of rights as others. This leads to frequent questioning of black people about their immigration status when they come into contact with the police for any other reason, often when there is no rational cause for suspicion. The Police and Criminal Evidence Act 1984 provides for Codes of Practice for the police in connection with the detention and questioning of people and searches of premises, but in law these do not apply to immigration officers, though they have agreed to follow them voluntarily. Those who knowingly remain longer than they have been allowed by the immigration officers or the Home Office without asking permission become overstayers and are committing a criminal offence. It makes no difference whether they have overstayed for many years or for a few days. They can be arrested and appear before a Magistrates’ Court charged with this. They can be fined, imprisoned and recommended for deportation. Those who are not British citizens, or Commonwealth citizens with the right of abode, or Commonwealth or Irish citizens who settled here before 1 January 1973 and who have lived here ever since, can be recommended for deportation by a court
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if convicted of any crime for which the penalty could be imprisonment, even if they have been allowed to stay in Britain permanently. Special requirements apply where the individual recommended for deportation is an EEA national or the family member of such a national. There is a right of appeal against this as part of the sentence. The recommendation is not binding and it is up to the Home Office whether to carry out the recommendation. Unless the court specifically directs release from detention, the individual will be detained while the Home Office makes its decision. The Home Office can also make its own decision to deport people for overstaying or for breaking other conditions of stay, for example, working without permission. If it makes a decision to deport, there is a right of appeal to the immigration appeal authorities. If the individual has lived here for more than seven years, compassionate aspects, as well as the law, can then be considered. If they have been here less than seven years, the appeal is based on the facts only, that is, whether or not they are overstayers. If they are married to a British citizen or someone settled here, and/or have children here who are British or are settled here, these are factors which must be taken into account by the Home Office in coming to a decision as to whether or not deportation is appropriate. Under the Human Rights Act, consideration of the rights under Article 8 ECHR will become even more significant in this context than previously. The Home Office has the power to detain people it has decided to deport, even while an appeal is pending. If someone is being deported, a decision to deport the spouse and children under 18 (assuming that they do not have a right of abode of their own) can also be made solely on the grounds of their relationship. This will not apply if the family live in separate independent households. The Home Office can also decide to deport someone on the grounds that their presence is ‘not conducive to the public good’. This is a very vague term which can include people who have been convicted of a criminal offence but whom the court did not recommend for deportation, or people who are alleged to have made a marriage of convenience. There is a right to an immigration appeal, but if the Home Secretary decides that your presence is non-conducive on the grounds of national security that appeal is to the Special Immigration Appeals Commission rather than to the adjudicator and the Immigration Appeal Tribunal. Once all appeals have been exhausted, the Home Secretary can sign a deportation order and the individual can be sent out of the country. While the order is in force, they cannot return here. They can apply for the order to be revoked, either to the British post in their own country or to the Home Office, but the order is not normally revoked until it has been in force for at least three years. If the order is revoked, that does not entitle the applicant to return, but only to apply to return if they can satisfy the immigration rules. If the Home Office claims that someone entered the country illegally, they have a right of appeal to the adjudicator once removal directions have been set. Such an appeal is limited to the question whether there is in law power to make such directions. Persons can be treated as illegal entrants either because they entered the country without being questioned by immigration officers at all or because it is alleged that they, or even another person, misled immigration officers or did not disclose information that was relevant and, therefore, should not have been allowed in.
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There are also provisions in the law for fares to be paid for people settled here who want to return to their countries of origin if it is ‘in that person’s interest to leave the UK’. People receiving in-patient treatment in mental hospitals may be sent back, under the provisions of section 90 of the Mental Health Act, to receive treatment in their country of origin, again if it is ‘in the interests of the patient to remove him’. No definition of this is given and there are no legal safeguards against these powers.
10.6
REFUGEES
A refugee is defined by the 1951 Convention Relating to the Status of Refugees as someone who, being outside their own country, has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. The Convention is not part of domestic law but the Asylum and Immigration Appeals Act 1993 states that nothing in the immigration rules and practice should contravene the Convention. However, the United Nations High Commission for Refugees, human rights organisations and other leading commentators have expressed concern about the way in which the rights of refugees, guaranteed under international law, are not adequately protected and the Convention is not applied in the spirit intended. Asylum seekers can be fingerprinted, a practice that is otherwise confined to those suspected of a criminal offence. Two successive Acts relating to asylum (of 1993 and 1996) have restricted the rights of appeal of asylum seekers: for example, where an asylum seeker is said to have an unfounded claim, or where the asylum seeker has not come directly to the United Kingdom, and most recently where an asylum seeker claims a fear of persecution in a country which the Home Secretary says there is in general ‘no serious risk of persecution’. Once a person has claimed asylum, the Home Office has the power to take away any previous permission granted to remain in some other capacity. In most cases, asylum seekers have the right of appeal against being required to leave the United Kingdom, although the time limits for appeal in certain cases are so short that it may be practically impossible to get legal advice and to prepare a case thoroughly. In cases where an asylum seeker has not arrived in this country directly from the country of persecution, the Secretary of State can issue a certificate which has the effect of removing a right of appeal against removal from within the country. The rules and the processes relating to asylum seekers place additional hurdles. If they manage to arrive in this country without being stopped or having to transit in another country considered to be safe, asylum seekers are required to apply for asylum on arrival (not least to be able to claim benefits in so far as they are still available), to tell their story in a consistent way, not to damage or destroy any relevant document and not to undertake activities which are inconsistent with previous beliefs or said to be calculated to enhance his or her claim. The asylum seeker can also be penalised for the actions of anyone acting on his or her behalf. Most refugees never have the opportunity of claiming asylum here or elsewhere in Europe. The visa requirement of nationals of countries which are considered to be ‘refugee producing’ effectively prevents most asylum seekers from ever coming
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here. The burden of caring for refugees invariably falls on countries closest to the country of persecution which are, more often than not, least able to provide. The Carriers’ Liability Act, as supplemented by the Immigration and Asylum Act 1999, which imposes sanctions against the carrier bringing improperly documented passengers (currently a fine of £2,000), is another measure that effectively denies asylum. The introduction of new laws governing asylum seekers is set against a background of increasing hostility towards refugees. Popularly held misconceptions are reinforced by politicians and others, who demand tough action against ‘bogus refugees and economic migrants’. In practice, this means that the Home Office is less likely to accept as refugees people fleeing from poorer countries or people who are fleeing from civil war or other circumstances. There is also an increasing trend of the UK Government, in concert with other countries, mainly in Europe, to limit the scope of the Convention by giving it a narrow literal meaning. Once recognised as a refugee, the applicant (and his/her family) will normally be allowed to stay for an initial four years and can then apply for settlement, that is, permanent residence. If the Home Office does not believe that the applicant is a ‘refugee’ within the narrowest meaning of the Convention, but thinks that in the circumstances they should not have to return at present, ‘exceptional leave to remain’ may be granted. After seven years’ exceptional leave to remain it is possible to apply for settlement. After the entry into force of the Human Rights Act, there will also be the obligation on immigration authorities to assess whether that removal would be contrary to Article 3 ECHR. Refugees are allowed to be joined by their families once they are recognised, but those who are granted exceptional leave to remain must wait four years before they can apply for their families to join them and must satisfy the other requirements of the Immigration Rules. Asylum seekers are discriminated against in another vital way: access to benefits and housing. Under the Immigration and Asylum Act 1999, benefits have now almost totally been replaced by vouchers which are given to asylum applicants. Furthermore, asylum seekers are now compulsorily dispersed throughout the country in an effort of burden sharing between local authorities. Once recognised as a refugee, an individual is protected against discrimination by the Convention. They are then free to work, change jobs or engage in economic activity without needing any further permission from the Home Office. If they want to study, they will be treated as a home student for the purposes of fees and eligibility for grants. Those with exceptional leave to remain can work, but must fulfil other criteria to be entitled to educational grants. Refugees are entitled to a Convention Travel Document, but those with exceptional leave are generally required to travel on their national passports unless they can show that this facility has been denied them.
10.7
RIGHTS TO BRITISH NATIONALITY
The British Nationality Act 1981 came into force on 1 January 1983. It defines who is British by birth and how people may become British through naturalisation or registration.
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Other people who are settled here may be eligible to apply for British citizenship by naturalisation. If the applicant is married to a British citizen it is easier to be granted citizenship. In this case, they must show that: •
They are settled here.
•
They have lived here legally for at least three years and have not been out of the United Kingdom for more than 270 days in that period, nor more than 90 days in the year before the application.
•
They are of good character.
The application fee is £150 and acceptance of the application is at the discretion of the Home Office. If the applicant is not married to a British citizen they have to show that: •
They have been settled here for at least a year.
•
They have lived here legally for at least five years and not been out of the United Kingdom for more than 450 days in those years, nor more than 90 days in the year before the application.
•
They are of good character.
•
They have a sufficient knowledge of the English, Welsh or Scottish Gaelic language.
•
They intend to continue to live in Britain.
There is a fee of £150 and acceptance is at the discretion of the Home Office. In all cases of naturalisation, the Home Office claimed that it did not have to give any reasons for refusing an application. The courts have, however, held that where the Home Office is intending to refuse British nationality for particular reasons, it is right to afford the applicant a chance to comment first before a final decision is made. If the reason for refusal is technical, such as having been abroad longer than allowed, the Home Office will generally inform the applicant. There is no right of appeal against refusal although it is possible to reapply. People who were born in the United Kingdom before 1983 were automatically British citizens by birth. The only exception to this was children whose parents were working here as diplomats at the time they were born. Anybody born here after 1 January 1983 is automatically British if at the time of the birth: • •
one of their parents was a British citizen; or one of their parents was allowed to stay here permanently.
If the parents were/are not married, only the mother’s status counts. If parents later becomes settled, they can then apply for their child to become British. If children are not able to inherit a nationality from either of their parents and are born stateless, and if they live here for the first ten years of their life without gaining any nationality, their parents can apply for them to become British.
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10.8
YOUR RIGHTS
FURTHER INFORMATION
Useful organisations The AIRE Centre 74 Eurolink Business Centre 49 Effra Road London SW2 1BZ Tel.: 020 7924 9233 Fax: 020 7733 6786 Immigration Advisory Service County House 190 Great Dover Street London SE1 4YB Tel: 020 7357 6917 (advice line); 020 8814 1559 (out of hours emergencies) <www.vois.org.uk/ias/> Joint Council for the Welfare of Immigrants 115 Old Street London EC1V 9JR Tel: 020 7251 8706 <www.jcwi.org.uk/> Law Centres Federation Duchess House 18–19 Warren Street London W1P 5DB Tel: 0207387 8570 For information about your nearest Law Centre Refugee Council Bondway House 3–9 Bondway London SW8 1SJ Tel: 020 7582 6922 Refugee Legal Centre Sussex House 39–45 Bermondsey Street London SE1 3XF Tel: 020 7827 9090 (advice line: 020 7378 6242; emergencies: 0831 598057)
UKCOSA (UK Council for Overseas Students’ Affairs) 9/17 St Albans Place London N1 0NX Tel: 020 7226 3762 <www.ukcosa.org.uk> United Nations High Commission for Refugees (UNHCR) Millbank Tower 21/24 Millbank London SW1P 4QP Tel: 020 7828 9191 For Citizens’ Advice Bureaux, you may call these numbers for information about your nearest CAB: National Association of Citizens’ Advice Bureaux Myddelton House 115-123 Pentonville Road London N1 9LZ Telephone: 020 7833 2181 <www.nacab.org.uk/policy.ihtml> For other independent advice centres, you may contact: FIAC (Federation of Independent Advice Centres) 4 Deans Court St Paul’s Churchyard London EC4V 5AA Tel.: 020 7489 7920 <www.fiac.org.uk> The Immigration Law Practitioners Association Lindsey House 40/42 Charterhouse Street London EC1M 6JH <www.ilpa.org.uk/index.html > Can provide a directory of practitioners. Please send a self-addressed envelope.
Legislation, practice, etc. Immigration and Nationality Directorate <www.homeoffice.gov.uk/ind/sitemap.html> Disclosable version of staff instructions under Immigration and Asylum Act 1999 <www.homeoffice.gov.uk/ind/policy_law/asylum_contents01.html> Immigration Rules (HC 395): <www.homeoffice.gov.uk/ind/policy_law/policy_law_contents02.htm>
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Disclosable Version of the Immigration Directorate’s Instructions – General: <www.homeoffice.gov.uk/ind/policy_law/idis/idint.htm> Disclosable Version of the Immigration Directorate’s Instructions – Asylum: <www.homeoffice.gov.uk/ind/policy_law/asylum_contents01.html> Enforcement Policy – Children: <www.homeoffice.gov.uk/ind/policy_law/policy_law_child_enforce_pol.html>
Bibliography D. Jackson, Immigration and Asylum Law and Practice, Sweet & Maxwell, 1999. Joint Council for the Welfare of Immigrants, Immigration and Nationality Law Handbook (regularly updated) I. Macdonald and N. Blake, Immigration Law and Practice, Butterworths, 1995. See also publications and mailings from: The Immigration Law Practitioners Association Joint Council for the Welfare of Immigrants Greater Manchester Immigration Aid Unit Individual Law Centres.
Camilla Parker
11
The Rights of People with Mental Disorder
The Mental Health Act 1983 (the Act) provides for the compulsory detention and treatment of people with mental disorder. This chapter discusses the relevant powers under the Act and covers the following areas: • • • • • • • • •
11.1
The definition of mental disorder Informal admission to hospital Compulsory admission to hospital (through civil procedures and the courts) The ‘Nearest Relative’ Compulsory treatment under the Act Discharge from hospital Rights in hospital Powers in the community Further information
THE DEFINITION OF MENTAL DISORDER
‘Mental disorder’ is widely defined under the Act: ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind … ‘Mental illness’ is not defined in the Act and the courts have considered a definition unnecessary, suggesting that the test should be what the ‘ordinary sensible person’ would decide on a case by case basis. The conditions which are generally accepted as falling under the category of ‘mental illness’ include schizophrenia and mood disorders. The Act defines three other forms of mental disorder: •
Severe mental impairment: ‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.’
•
Mental impairment: ‘a state of arrested or incomplete development of mind (not amounting to a severe mental impairment of intelligence and social functioning) and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.’
•
Psychopathic disorder: ‘a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.’ 278
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Recent statistics issued by the Department of Health show that nearly all (98 per cent) of the admissions under the Act that require the category of mental disorder to be specified were patients with a mental illness. The Act states that a person cannot be treated as mentally disordered solely on the grounds of ‘promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’. The terms used in the Act are legal, not medical, categories. While recognising these terms have no legal meaning in the context of the Act, many people, in particular people who use mental health services, prefer terms such as ‘mental health problems’ and ‘mental distress’ when describing their experience.
11.2
INFORMAL ADMISSION TO HOSPITAL
The Act makes clear that people who are able and willing to consent to their admission to hospital for treatment for their mental disorder may be admitted informally, without the need to use procedures set out in the Act. In 1998 the House of Lords ruled in R v. Bournewood Community and Mental Health Trust that people who lack the capacity to agree, but do not object, to their admission to hospital may also be admitted informally. In this case Mr L, a 48-year-old autistic man had been admitted to hospital informally on the basis that he was ‘quite compliant’ and had ‘not attempted to run away’. The effect of the House of Lords decision is that none of the safeguards available to patients detained under the Act applies to people such as Mr L. For example, there is no independent review of the decision to admit them to hospital nor do they fall under the remit of the Mental Health Act Commission, which oversees the implementation of the Act and visits detained patients. Following the House of Lords decision a complaint has been made on behalf of Mr L to the European Court of Human Rights on the grounds that his informal admission was in contravention of Article 5(1) (the right to liberty) of the European Convention on Human Rights (ECHR). Article 5 states: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … e. the lawful detention of … persons of unsound mind … (see p. 132) Thus, the first question that the European Court of Human Rights will need to consider is whether Mr L was detained. The majority of the House of Lords (three out of five) considered that he was not detained, but this was dismissed as a ‘fairytale’ by one of the dissenting judges on the basis that if Mr L had tried to leave he would have been physically prevented from doing so. The case of Winterwerp v. The Netherlands has established that for detention under Article 5(1)(e) to be justified the following conditions (except in an emergency) must be met:
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•
There must be objective medical opinion to establish a true mental disorder.
•
The mental disorder must be of a kind or degree warranting compulsory confinement.
•
The validity of continued detention depends on the persistency of the mental disorder.
11.3
COMPULSORY ADMISSION TO HOSPITAL (THROUGH CIVIL PROCEDURES AND THE COURTS)
The Act provides for the circumstances in which a person may be compulsorily detained and treated in hospital. The civil admission process, commonly known as ‘sectioning’, is set out in Part II of the Act. Part III of the Act sets out the circumstances in which the criminal courts can order a person to be detained in hospital and the Home Secretary can order the transfer of prisoners to hospital. The procedure for civil admission Usually the application for a person’s compulsory admission to hospital is made by an approved social worker (ASW), that is, a social worker who has specialist training and experience in dealing with people with mental disorder. The person’s Nearest Relative (see below) also has the power to make the application but this power is used rarely. The application must be supported by two medical recommendations. At least one of the doctors must be approved under section 12 of the Act as having special experience in the diagnosis or treatment of mental disorder and one of the recommendations should, if practicable, be given by a doctor who has a previous acquaintance with the patient. In emergencies, where it is of urgent necessity for the person to be admitted and obtaining a second medical recommendation would cause undesirable delay, an application may be made on the basis of one medical recommendation. Before applying for a person to be detained in hospital under the Act, the ASW must assess whether detention in hospital is the most appropriate way of providing for the patient’s needs. An application for compulsory detention may be made in respect of a patient who is already in hospital on an informal basis. Admission for assessment Section 2 of the Act provides for the detention in hospital for a period of up to 28 days on the grounds that: •
The person’s mental disorder is of ‘a nature or degree’ which warrants detention in hospital for assessment or assessment followed by medical treatment; and
•
It is considered that the person ought to be detained in the interests of his or her own health or safety or with a view to the protection of others.
The power to detain under section 2 cannot be renewed.
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Admission for treatment Under section 3 of the Act a person with a specific form of mental disorder namely mental illness, mental impairment, severe mental impairment or psychopathic disorder may be detained for an initial period of up to six months if certain conditions are met: •
The mental disorder must be of a ‘nature or degree’ which makes it appropriate for the person to receive treatment in hospital; and
•
It must be necessary for the health or safety of the person or for the protection of others that he or she receives such treatment, which cannot be provided unless the person is detained under this section.
•
In the case of a person who has a psychopathic disorder or mental impairment such treatment must be likely to alleviate or prevent a deterioration of the person’s condition (this is known as the ‘treatability test’).
Provided the conditions for further detention are met, detention under section 3 can be renewed for a further six months and then subsequently renewed on a yearly basis. The Government’s proposals for reforming the Act, Reform of the Mental Health Act, Proposals for Consultation (the Green Paper), include the introduction of ‘independent mental disorder panel’, which will be responsible for deciding whether a person should be subject to compulsory care and treatment beyond the initial 28day period. Emergency powers The Act provides emergency powers of detention: •
Emergency Applications for Admission. Under section 4 of the Act an ‘emergency application’ for admission to hospital may be made where the grounds for detention under section 2 are met but there is insufficient time to obtain a second medical recommendation. The power lasts for a maximum of 72 hours.
•
‘Holding Powers’. Patients who are in hospital may be detained in hospital for short periods to allow time for the admission procedure to be completed, if appropriate. The doctor in charge of the patient’s treatment, or the doctor’s nominated deputy may authorise the patient’s detention for up to 72 hours (‘the doctors holding power’). A qualified nurse may detain a patient for up to six hours where the nurse considers that the person should be immediately restrained from leaving hospital (‘the nurses holding power’).
Police powers to remove a person to a place of safety The Act provides for the circumstances in which the police can remove a person to a ‘place of safety’ (which in most cases will be a police station or hospital) for up to 72 hours, in order to make arrangements for the person’s treatment and care. •
From premises. A magistrate may issue a warrant on hearing from an ASW that there is reasonable cause to suspect that a person believed to be suffering from mental disorder is not being cared for properly. The warrant will authorise a police officer, accompanied by an ASW to enter the premises and, if thought fit, remove the person to a place of safety.
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From a public place. The police may, in the interests of the person or for the protection of others, remove a person to a place of safety found in a public place who appears to be suffering from a mental disorder and in immediate need of care and control. The Act states that the person should be examined by a doctor and interviewed by an ASW. The Code of Practice to the Act (the Code), which provides guidance on the implementation of the Act, states that if having examined the person, the doctor concludes that the person is not mentally disordered within the meaning of the Act, the person should be immediately discharged. This advice takes into account that Article 5 of the ECHR (discussed above) requires certain conditions to be met in order for the detention to be lawful. Thus if the doctor considers that the person does not have a mental disorder the detention is no longer justified.
Admission via the courts Individuals who are accused or convicted of an offence may be ordered by the courts to be detained in hospital to be assessed and/or treated for their mental disorder. For example, the court may make a ‘hospital order’ where a person has been convicted of an offence for which she or her could receive a custodial sentence (other than cases where the court is required to give a life sentence, such as murder). The court would need to be satisfied, on the basis of the evidence of two doctors that: •
The person is suffering from mental illness, severe mental impairment, mental impairment or psychopathic disorder; and
•
The mental disorder is of a nature or degree which makes it appropriate for the person to be detained in hospital for medical treatment.
•
In the case of psychopathic disorder and mental impairment, such treatment must be likely to alleviate or prevent a deterioration of the person’s condition.
Furthermore, the court must be of the opinion, taking into account such matters as the nature of the offence and the character of the offender, that a hospital order is the most suitable method of disposing of the case. In certain cases the Crown Court may add a ‘restriction order’ to a hospital order. Such an order would be made if, having regard to issues such as the nature of the offence and the risk of the offender committing further offences if discharged, the court considers that such an order is necessary for the protection of the public from serious harm. The restriction order may be made without limit of time or for a period decided by the court but it is more usual for the order to be made without limit of time. If a patient is subject to a restriction order (a ‘restricted patient’) the consent of the Home Secretary is required before a patient can be granted leave from hospital, transferred to another hospital or discharged from hospital The Crime (Sentences) Act 1997 amends the Act by providing the Crown Court with further powers including the power to specify the level of security in which the patient should be detained by ordering that a restricted patient is detained in a particular hospital unit. This would mean that the patient cannot be transferred to another unit, even if it is in the same hospital unless the Home Secretary authorises such a move.
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Duty of hospital managers to give information to detained patients The Hospital Managers (for NHS Trusts they will usually be a sub-committee of the Trust Board of Directors) are required to take steps to ensure that patients understand their rights as soon as possible after their detention has begun. The information that must be given includes the section under which the patient is detained and the effect of this section and the patient’s right to apply to a Mental Health Review Tribunal. 11.4
THE ‘NEAREST RELATIVE’
Under the Act the ‘Nearest Relative’ has certain powers and rights in connection with the patient’s admission to, and detention in, hospital. The Act sets out a list of people, who may be the Nearest Relative, and it will be necessary to consider the list in the light of the patient’s individual circumstances to identify the Nearest Relative. For example, the spouse of the patient will be the patient’s Nearest Relative unless they are permanently separated. The provisions in the Act which refer to the Nearest Relative include the following: •
The ASW must, before an application under section 2 or within a reasonable time after the application, take steps to inform the Nearest Relative of the patient’s detention and Nearest Relative’s power to discharge the patient.
•
The ASW must consult the Nearest Relative before making an application under section 3 unless such consultation is not reasonably practicable or would involve unreasonable delay. If the Nearest Relative objects to the application being made, it cannot go ahead unless the county court displaces the Nearest Relative.
•
The Nearest Relative can apply for the patient to be detained under section 2, 3 or 4 of the Act.
•
The Nearest Relative can require the local social services authority to carry out an assessment of the need to make an application for the patient’s admission to hospital.
•
The Nearest Relative can seek to have the patient discharged from hospital (although this can be prevented by the doctor in charge of the patient’s care – see below).
The Green Paper proposes that instead of the Nearest Relative, under the new Mental Health Act patients would be able to appoint a ‘nominated person’, who would need to be notified if the patient was made subject to compulsory powers and consulted before the patient was discharged. However the nominated person would not have the power to apply for the person to be subjected to compulsion nor be able to discharge the patient from compulsion. 11.5
COMPULSORY TREATMENT UNDER THE ACT
The Act provides for circumstances in which medical treatment for mental disorder may be given where the patient either refuses to give, or is incapable of giving,
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consent. The provisions for such compulsory treatment are set out in Part IV of the Act. These powers do not apply to everyone who is detained under the Act. Patients detained under section 2 or 3 or under a hospital order are subject to the compulsory treatment provisions, but these provisions will not apply to those who are detained under the emergency powers of the Act, such as a doctor’s holding power. Capacity to consent to treatment Every adult is presumed to have the capacity to decide whether or not to accept treatment even if the reasons for refusing are irrational or non-existent. The fact that a person suffers from mental disorder does not necessarily mean that he or she is incapable of giving or refusing consent to the treatment proposed. Treatment requiring consent or authorisation Save for emergencies, medication administered for a period exceeding three months and electro-convulsive therapy (ECT) may only be given with the patient’s consent or if a Second Opinion Appointed Doctor (SOAD) has authorised such treatment. •
The SOAD must consider whether, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, the treatment should be given.
•
Before deciding whether to authorise the treatment the SOAD must interview the patient, discuss the treatment with the doctor in charge of the patient’s treatment and consult two other people who are professionally concerned with the patient’s medical treatment.
Treatment requiring consent and authorisation of a second doctor The Act provides that invasive treatment such as psychosurgery may only be given with the patient’s consent and the authorisation of a doctor appointed by the Mental Health Act Commission (MHAC). The doctor and two appointees of the MHAC who are not doctors, must be satisfied that the patient has consented to the treatment. Urgent treatment The Act provides that in limited circumstances, for instance, where the treatment is immediately necessary to save the life of the patient, such treatment may be given without the procedures set out above. Treatment without consent or authorisation Other treatments for mental disorder, which when provisions of the Act were being considered by Parliament were described as ‘general nursing and other general care’, can be provided without the person’s consent or the involvement of a second independent doctor. Given that these treatments were considered to be non-controversial, no special safeguards were thought necessary. However, recent cases have held that this provision of the Act authorises treatments such as feeding by nasogastric tube on the basis that such treatments were for the patient’s mental disorder – in the case of force feeding this was considered to be treatment ancillary to the treatment for the patient’s anorexia. Following such cases a court has held that a woman could be given a caesarean section under the Act on the basis that the successful outcome of
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her pregnancy was a necessary part of the overall treatment of her mental disorder. However, this case was been severely criticised and is generally considered to be restricted to its particular facts. The MHAC has recommended that nasogastric feeding should only be given with the patient’s consent or, in the absence of consent, if authorised by an SOAD. Treatment and the ECHR The European Court of Human Rights made clear in Winterwerp that Article 5(1)(e) does not provide a ‘right to treatment’ appropriate to the detained person’s mental health needs. However the Court has stressed that the detention of a person ‘as a mental health patient’ will only be lawful under Article 5(1)(e) if the person is detained in a hospital or other appropriate setting. In a more recent case, Aerts v. Belgium, the Court found a violation of Article 5(1)(e) on the grounds that Mr Aerts received no treatment required by the condition that gave rise to his detention.
11.6
DISCHARGE FROM HOSPITAL
Temporary leave The doctor in charge of the patient’s care and treatment, referred to in the Act as the responsible medical officer (‘the RMO’) may grant leave to the detained patient, subject to any conditions which the RMO considers necessary in the interests of the patient or the protection of other persons. For restricted patients leave will be subject to the Home Secretary’s consent. The RMO may revoke the leave and recall the patient if it is necessary to do so in the interests of the patient’s health or safety or the protection of others, but the patient cannot be recalled if the period of detention has expired. The Act includes powers to return a patient who is absent without leave. For example, patients who are detained under section 3 of the Act may be returned to hospital within six months of absconding from hospital or until their period of detention expires, whichever is the later. Restricted patients may be returned at any time. Patients who are detained under the civil admission procedures Patients who are detained under the civil admission procedures can be discharged from hospital by the doctor in charge of their treatment in hospital (the Responsible Medical Officer – RMO), the Hospital Managers, a Mental Health Review Tribunal or the patient’s Nearest Relative. The Responsible Medical Officer The RMO can discharge patients detained under the civil part of the MHA at any time. Although as discussed above, under the ECHR a person’s continued detention on grounds of mental disorder is only justified if the mental disorder persists, there is no duty on the RMO to discharge a patient as soon as the criteria for detention no longer apply. However, the Code states that patients should be discharged from compulsion as soon as it is clear that the application of the powers under the Act are no longer justified.
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Nearest Relative The Nearest Relative has the power to discharge a patient detained under section 2 or 3 of the Act. However, the patient’s RMO can prevent this by issuing a report to the hospital managers stating that the patient, if discharged, is likely to ‘act in a manner dangerous to other persons or himself’. This is known as a ‘barring certificate’. Mental Health Review Tribunals Mental Health Review Tribunals (MHRTs) provide an independent review of the need for the patient’s continued detention under the Act and have the power to discharge the patient from hospital. They are considered to be a ‘court’ for the purpose of Article 5(4), which states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful. Article 5(4) requires that the lawfulness of the detention is carried out ‘speedily’. The European Court of Human Rights has held that a review which took approximately two months was not sufficiently prompt and considered that it is up to the State to ensure that the necessary arrangements are in place so that such reviews are dealt with speedily. The MHRT consists of three people, a lawyer, a doctor and a ‘lay person’, who may be, for instance, a social worker. Patients detained under section 2 may apply to a MHRT in the first 14 days of detention. Patients detained under section 3 may apply to a MHRT in the first six months of detention and in each subsequent period of detention, if renewed. Patients are entitled to legal representation and staff on the ward should be able to provide details of solicitors who undertake this work. Once appointed, the solicitor can apply to the Legal Aid Board to represent the patient under the ‘assistance by way of representation’ scheme which is non-means tested. If an RMO issues a barring certificate in respect of a patient detained under section 3 the Nearest Relative may apply to a MHRT within 28 days. The Hospital Managers are under a duty to refer cases to a MHRT if the patient has not made an application within a certain period. For instance, if a patient has been detained under section 3 for six months or more and no application has been made to the MHRT; the Hospital Managers must refer the case to the MHRT. Hospital Managers The Hospital Managers have the power under the Act to discharge patients from hospital. Unlike MHRTs, the Hospital Managers have no statutory criteria to consider in deciding whether to discharge the patient. However, the Code provides guidance on the practice and procedures to be adopted by Hospital Managers in exercising this power. The Code states that if the Hospital Managers conclude that the patient ought to be discharged but arrangements for aftercare need to be made, they may adjourn the panel to enable a meeting to discuss the aftercare arrangements to take place. While
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the revised Code states that the adjournment should be ‘for a brief period’, it is not clear how long the adjournment could last. If the Hospital Managers have concluded that the patient ought to be discharged such continued detention is likely to contravene Article 5 of the ECHR (discussed above) if the clinical supervisor considers that the conditions for the detention no longer apply but is unable to discharge the patient. Patients detained under a hospital order Patients detained under a hospital order can be discharged by the RMO and the hospital managers but not by their Nearest Relative and can only apply to an MHRT after the first six months of detention. Patients detained under a hospital order with restrictions Restricted patients cannot be discharged by their Nearest Relative and can only be discharged by the RMO or the hospital managers with the consent of the Home Secretary. Restricted patients and can only apply to a MHRT after the first six months of detention. Where an MHRT decides that a restricted patient can leave hospital, the MHRT can order that the patient be conditionally discharged. This means that the Home Secretary may recall the patient to hospital at any time. In most cases the MHRT will attach conditions to the conditional discharge, such as requiring the patient to live wherever specified by the professionals appointed to supervise the patient in the community. Failure to comply with such conditions is likely to lead to the patient being recalled to hospital. Recall to hospital Although this is not required in the Act, under the ECHR, the patient should be recalled to hospital only if the Winterwerp criteria are satisfied (save in emergencies); namely, that there is objective medical evidence to show that the patient has a mental disorder of a kind or degree that warrants compulsory confinement. Thus if patients are recalled without such medical evidence the decision could be subject to challenge on the basis that the requirement under Article 5 have not been met. Delay in arranging aftercare A decision by the European Court of Human Rights highlighted the importance of ensuring that there is no unreasonable delay in arranging the aftercare when the MHRT has concluded that subject to suitable aftercare arrangements, the patient should be conditionally discharged. In Stanley Johnson v. the UK, three successive MHRTs concluded that Mr Johnson should be conditionally discharged (1989, 1990 and 1991), but the necessary aftercare was not arranged. The Court noted that neither the MHRT nor the appropriate authorities could ensure that the conditions were met within a reasonable time while there was no mechanism for Mr Johnson to request that the conditions be reconsidered in between the annual MHRTs. Given that Mr Johnson had no means of ensuring that his release from detention was not unreasonably delayed, the Court found that Article 5(1)(e) had been violated.
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11.7
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RIGHTS IN HOSPITAL
Dealing with property and finance Under existing law all adults are presumed to have the capacity to manage their own affairs unless the contrary is shown. The fact that a person is detained in hospital under the Act does not mean that he or she is incapable of managing his or her personal or financial matters. If a person is considered to be incapable of managing his or her own financial affairs, an application can be made to the Court of Protection to appoint a receiver to do so. The right to visits Detained patients have the right to be visited by their friends and family. The Code makes clear that visitors should only be excluded in limited, and clearly documented, circumstances. Such circumstances could include cases where the visit is likely to cause a deterioration of the patient’s mental health or where there are concerns that the visitor may smuggle illicit drugs into the hospital. However, the Code states that hospitals should have a policy on arrangements for visits by children of detained patients and that such visits should only take place if it is in the best interests of the child. In response to widespread criticism of this part of the Code, the Government has issued further guidance on how policies on child visiting should be developed which stresses that decisions to refuse visits should be made in exceptional cases only. Where such visits are refused, those advising the patient will need to consider whether there has been a breach of Article 8 (the right to respect for private and family life) which states: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Correspondence The Act provides that, on the written request of the addressee, a postal packet sent by a detained patient may be withheld. For patients detained in the high security hospitals (Broadmoor, Rampton and Ashworth) the Act states that post may be withheld from the patient if it is necessary to do so in the interests of the safety of the patient or the protection of other persons. These restrictions do not apply to correspondence between the patient and certain addressees, such as a Member of Parliament, the patient’s legal adviser and the MHRT. As with restrictions on visiting, if the patient’s correspondence is restricted, his or her advisers should consider whether there has been an unjustified interference with the patients right to privacy and family life under Article 8. Voting The Representation of the People Act 2000 removed the bar on the use of a psychiatric hospital address for registration purposes and enables both voluntary
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and detained civil patients to register either at that address or another address with which they have a local connection. However, the Act also introduced a ban on voting for those detained in hospital via the criminal courts.
11.8
POWERS IN THE COMMUNITY
Supervised discharge The Mental Health (Patients in the Community) Act 1995 amended the Act by introducing the new power of ‘Aftercare under Supervision’ (more commonly known as ‘supervised discharge’). Under this power, patients who have been detained in hospital for treatment for their mental disorder can be required to comply with certain conditions on their discharge from hospital such as residing at a particular place and attending an out-patients clinic for medical treatment. The patient’s RMO may apply for a patient to be made subject to supervised discharge upon his/her discharge from hospital, where the patient is 16 years or over and the patient is liable to be detained in hospital for medical treatment on the following grounds: •
The patient is suffering from mental illness, severe mental impairment, mental impairment or psychopathic disorder; and
•
There would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the aftercare services to be provided to the patient under section 117; and
•
Being subject to supervised discharge is ‘likely to help secure’ that the patient receives the aftercare services to be provided.
The application must be supported by written recommendations of an ASW and of a doctor. The application must include details of the person who has agreed to supervise the patient’s care in the community. The supervisor will have the power to ‘take and convey’ the patient to any place where the patient is required to reside or to attend for the purpose of medical treatment, occupation, education or training or authorise another person to do so. The doctor in charge of the patient’s aftercare may direct at any time that the supervised discharge should end, but before doing so would need to consult the patient and others involved in the patient’s care. Supervised discharge will cease if the patient is detained in hospital for treatment for mental disorder or made subject to guardianship. The patient may apply to a MHRT to be released from supervised discharge. Supervised discharge applies for six months, when it can be renewed for a further six months and thereafter the power can be renewed annually. Guardianship The Act also provides for the circumstances in which a person can be made subject to ‘guardianship’. The guardian, who could be a local authority or an individual, will have similar powers to the supervisor in supervised discharge such as the power
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to require the patient to reside at a specified place (but does not have the power to take and convey). A person who is 16 years or over may be made subject to guardianship if he or she suffers from mental disorder (mental illness, severe mental impairment, psychopathic disorder or mental impairment) and the mental disorder is of a nature or degree which warrants the person’s reception into guardianship. The use of guardianship must be considered necessary in the interests of the welfare of the patient or for the protection of other persons. The application is made by an ASW or the person’s Nearest Relative and is founded upon two medical recommendations. The medical recommendations must state that the grounds for detention are met and include an explanation as to why the patient cannot be appropriately cared for without the powers of guardianship. Guardianship can be renewed for a further six months and then subsequently renewed on a yearly basis. The Nearest Relative can object to the guardianship taking place and can discharge the patient from guardianship The provision of services in the community People living in the community who have mental health problems will need access to services whether or not they have formerly be detained under the Act. •
Under the NHS & Community Care Act 1990 local social services authorities are responsible for assessing an individual’s needs for community care services and arranging the provision of any such services. If it appears to the local authority that the person has health or housing needs the local authority is required to invite the relevant authority to assist in the assessment. ‘Community care services’ include accommodation, home help and social support and aftercare under section 117 of the Act (see below).
•
The Care Programme Approach (CPA) requires health authorities in collaboration with local social services authorities to put in place specified arrangements for the care and treatment of people with mental illness to live in the community.
Section 117 – aftercare services Section 117 of the Act places a joint duty on health authorities and local authorities to provide aftercare services, in co-operation with voluntary organisations, to certain patients who have been detained in hospital under the MHA. For example, section 117 will apply to a person who has been detained under section 3 or hospital order with or without restrictions but not to a person who has been detained for assessment under section 2 of the Act. No definition for aftercare is provided in the MHA, but in a recent case, the court considered that it would normally include social work support, accommodation, the provision of domiciliary services and the use of a day centre and residential facilities. Provision of services where section 117 does not apply Although people who have been detained in hospital under section 2 of the MHA or received in-patient care as an informal patient will not receive section 117 aftercare services, their needs for other community care services should be assessed.
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Proposals for reform – compulsory treatment in the community The Green Paper proposes that a power to require people to receive care and treatment in the community and convey to hospital those individuals who fail to comply with the community order should be introduced. However, it is questionable whether such a power would comply with Article 5(1)(e) unless the new Act makes clear that in addition to non-compliance, the criteria for detention as set out in Winterwerp are met.
11.9
FURTHER INFORMATION
Useful organisations Law Centres – consult your telephone directory for local addresses and telephone numbers. Mencap 123 Golden Lane London EC1Y ORT Tel: 020 7454 0454
MIND Granta House 15–19 Broadway London E15 4BQ Tel: 020 8519 2122
Bibliography Department of Health, Code of Practice to the Mental Health Act 1983, The Stationery Office, March 1999. Department of Health, In-patients Formally Detained in Hospitals under the Mental Health Act 1983 and Other Legislation, England: 1988–89 to 1998–99, The Stationery Office, February 2000. Conor Foley, with Liberty, Human Rights, Human Wrongs – The Alternative Report to theUnited Nations Human Rights Committee, Rivers Oram Press, 1995. Brenda Hoggett, Mental Health Law, Sweet & Maxwell, fourth edition, 1996. Richard Jones, Mental Health Act Manual, Sweet & Maxwell, sixth edition, 1999. The Mental Health Act Commission, Eighth Biennial Report 1997–1999, The Stationery Office. X v. United Kingdom (1981) 4 European Human Rights Reports 188. Winterwerp v. The Netherlands (1979) 2 European Human Rights Reports 387. Johnson v. United Kingdom 9 (1997) European Court of Human Rights Report of Judgment and Decisions (1997 – VII) no. 55, 2391. Aerts v. Belgium (1998). R v. Bournewood Community and Mental Health NHS Trust, ex parte L, 3 All ER 289.
Nicola Wyld
12
The Rights of Children and Young People
This chapter deals with: • • • • • • • • • •
Parental responsibility and children’s rights Money and financial support benefits Citizenship, nationality and refugees Travel and leaving the country Education and schooling Children involved in the separation or divorce of their parents Children involved with social services departments Young offenders Child witnesses Further information
Because of both their inherent vulnerability and society’s attitudes towards their independence, children and young people have considerably fewer rights than adults. Children do not acquire full legal independence until they are 18. However, before then, the law states that children can do certain things or can be treated in particular ways at specific ages – for example, the right to drink alcohol in private at five, to buy a pet at twelve, to work part-time at 13 and many different things at 16. There are increasingly things that can be done when an adult forms the view that the child has the maturity to understand the implications of the decision in question for example giving consent to medical treatment. For more information about this, see p. 295. The rights of children and young people have been developing over the past two decades. This has been reflected in law and social policy although practice still often falls far short of expectations. There is an acceptance that children and young people should be seen as people in their own right and as neither possessions of their parents nor objects of investigation. This is reflected in the Children Act 1989, which gives children rights of participation in decision-making where the local authority or the family courts are concerned. And judge-made law has also created rights such as the Gillick judgment in which the rights of children of ‘sufficient understanding’ to make decisions in relation to their own medical treatment has been extended to other areas of decision-making. The UN Convention on the Rights of the Child (UNCRC) is a significant international convention ratified by the United Kingdom in 1991. It sets out minimum standards and principles relating to children’s civil, political, economic, social and cultural rights. Article 12 is one of the key Articles which says that children have the right to express their views and to have those views taken into account in any matter or procedure affecting the child. Unlike the European Convention it has not been incorporated into English law as a whole, although some of its Articles have 292
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been reflected in domestic legislation. The first report of the UN Committee on the Rights of the Child in 1995 was critical of the Government in many areas of social policy. The second report is awaited this year. The European Convention represents an additional opportunity for children to promote their rights through the courts. While the Articles are framed in such a way that they have been seen to be adult focused some of them have been used successfully on the part of children through the European Court and all the Articles can be utilised by children as well as adults. The main Articles of relevance to children are as follows: Article 3 ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Article 5 ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …’ Article 6 ‘In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal established by law ...’ Article 8 ‘Everyone has the right to respect for his private and family life, his home and his correspondence … There shall be no interference by a public authority … except such as in the accordance with the law and is necessary in a democratic society … for the protection of health or morals, or the rights and freedoms of others.’ Article 14 ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground … or other status.’
12.1
PARENTAL RESPONSIBILITY AND CHILDREN’S RIGHTS
Parental responsibility is the term introduced by the Children Act to describe the legal relationship between parents (and in certain circumstances other adults) and their child(ren). The Act does not define parental responsibility other than by reference to parental rights and duties which need to be understood by reference to the general law (see below). Unlike the law in Scotland, there is no express requirement to promote the child’s welfare or to consult the child in decision making. Parental responsibility lasts until the child is 18, although the way in which it is exercised should reflect the evolving capacities and age and maturity of the child (see below). In practice, young people at 16 are relatively independent.
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Parents, unmarried fathers and others Mothers and married fathers automatically have parental responsibility for their children and this continues even if they divorce. Unmarried fathers can obtain parental responsibility by going to court for a parental responsibility order or by entering into a special written agreement with the mother. The Government has agreed to introduce changes whereby unmarried fathers whose name appears on the child’s birth certificate will automatically acquire parental responsibility but it is not known when this will be introduced. It is possible that unmarried fathers could argue that their rights to family life have been breached under Article 8 and they are being discriminated against under Article 14 because they do not have automatic parental responsibility. However, it is likely that there are adequate safeguards under UK domestic law and this has been confirmed in a recent court ruling. Other people may acquire parental responsibility in certain circumstances, for example, where a residence order (specifying with whom the child is to live) is made by the court or on the appointment of a guardian where a parent has died. The local authority obtains parental responsibility when a care order is made by a court, but not when the child is accommodated. Sharing and delegating parental responsibility Each person with parental responsibility can act independently of the other. There is no obligation to consult with the other parent about the child unless this breaches a court order or the law such as taking the child out of the country in which consent is required. If there are disagreements about how parental responsibility is being exercised the court can make a prohibited steps order (stopping a parent from doing something) or a specific issues order (telling the parent(s) to do something in a certain way). Other people in charge of children, such as childminders, teachers or foster carers, do not have parental responsibility. However, they do have a duty of care to behave as a reasonable parent would do to ensure the child’s safety and in emergency circumstances may take reasonable steps to promote the child’s welfare. Key areas of parental responsibility Consultation with children Unlike the law in Scotland, the Children Act does not require parents or others with parental responsibility to consult their children or take their views into account in making decisions about their upbringing. However, in 1985 the House of Lords said that parental powers to control their children dwindle as the child matures. The rights of parents should give way to the child’s right to make decisions when ‘he or she is of sufficient understanding and intelligence’ to be able to make up his or her own mind. This is known as the Gillick principle. This notion of children’s rights to respect for their evolving capacities in parental decision making is also reflected in Article 5 of the UNCRC. Names Mothers, married fathers and others with parental responsibility have the right to choose the name of their child. They also have a duty to register the child’s name
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with the Registrar General of Births, Marriages and Deaths within 42 days of the child’s birth. Strictly speaking, either parent can change the name of the child without reference to the other unless there is a residence order which automatically precludes this or a prohibited steps order preventing this. However, in a case decided in 1999, the House of Lords ruled that in any dispute about a name change an application should be made to the court before the change is made whether or not the other parent has parental responsibility or there is a residence order. The father’s argument that his rights under Article 8 of the European Convention had been infringed was rejected by the court in favour of the welfare principle that it was in the children’s interests to retain the mother’s surname. With the implementation of the Human Rights Act the paramountcy of the child’s welfare can no longer be applied without reference to the rights of all parties to respect for family life. Consequently, it may be that there will be greater opportunities to argue the merits of Article 8 in relation to name change. With parental consent, young people may use a different name from that on their birth certificate. Applying the Gillick principle, parents should allow children of sufficient understanding to change their name even if they do not agree with this. Young people of sufficient understanding may apply for a specific issues order to change their name with the court’s permission. Religion Following on from the Gillick decision, young people should be able to choose their own religion or otherwise if they have the maturity to understand the implications of that decision. Again, if there is a dispute between the parents and/or the child, the court can be involved. In a recent domestic case the court considered Article 9 of the European Convention (freedom of thought, conscience and religion) in relation to the circumcision of a five-year-old child. The judge concluded that where both parents have equal rights under Article 9, limitations on one parent’s rights can be imposed if these conflict with the rights of the other parent and the child and are not in the best interests of the child. Medical treatment At 16, young people have the right to give consent to medical, dental and surgical treatment as if they were adults. This includes contraceptive advice and treatment. Young people under the age of 16 can give consent provided that the doctor or health worker thinks the young person is mature enough to understand what is involved in the treatment and the consequences of this. Although the law says that doctors should encourage young people to inform their parents, they may give treatment without parental knowledge or consent if the young person does not wish to involve them. These principles also apply to termination of pregnancy but in practice doctors very rarely perform abortions for under-16s without parental consent because of the possible risks associated with general anaesthesia. The rights of young people under the age of 18 to refuse consent to medical treatment are more limited. In cases usually concerning serious mental health matters and anorexia nervosa cases their refusal of consent may be overridden if their parents (or if they are in care, the local authority) disagree with their decision.
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It usually involves a court application and the courts have said that the young person’s refusal to give consent should be an important matter for parents, doctors and the courts in deciding whether to override the young person’s views. Cases decided by the European Court have determined that compulsory medical treatment such as force feeding or the administration of drugs where it is necessary to prevent death or serious injury would not be treated as degrading or inhuman treatment in accordance with Article 3 of the Convention because of lack of consent. Corporal punishment Parents or others in charge of a child have the right to administer reasonable physical chastisement. This represents a defence in law to a charge of assault so far as it applies to parents. Statute has banned corporal punishment for those who look after children in other situations such as schools. In 1996 the UN Committee on the Rights of the Child was critical of the British Government for failing to take steps to ban corporal punishment. In a case brought against the British Government a boy who had been beaten with a garden cane by his step-father argued that the use of physical punishment constituted inhuman and degrading treatment under Article 3 of the European Convention. In a unanimous decision the Court held that Article 3 had been breached and said: Children and other vulnerable individuals in particular are entitled to state protection in the form of effective deterrence against such serious breaches of personal integrity. The Government is unwilling to abolish the defence of reasonable physical chastisement and is consulting on a range of alternative options to comply with this judgment. Leaving home In law, under-16s cannot leave home unless their parents agree. Alternatively a court may make a residence order to another person such as a relative or an adult friend. This can be done on the application of the adult concerned, or by the child provided that the court has first decided that the child has sufficient understanding to make the application. The law relating to 16- and 17-year-olds is not clear but they can probably leave home without parental consent. Parents may take legal action for the return of a child under the age of 18 by seeking a residence order or an injunction in wardship proceedings. However, the court is most unlikely to order that the child should return home where he or she does not want to go home, there is evidence that the child is safe and there is a clear breakdown of the family relationship. The police will return young runaways under 16 to their parents (or their care authority, if in care) unless they have reasonable cause to believe that the child is at risk. In these circumstances the police may hold the child in police protection (see p. 310). The police will liaise with social services, which may take further action for the child’s protection. The police are unlikely to return over-16s to their parents.
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297
MONEY AND FINANCIAL SUPPORT BENEFITS
Child support Parents should support their children financially until they are 18; the 1991 Child Support Act reinforces this principle. On separation or divorce, the absent parent is responsible for paying maintenance in support of the child. This is administered, collected and enforced through the Child Support Agency (CSA), a branch of the Benefits Agency. The amount of maintenance is determined by reference to a standard formula. In certain circumstances, the CSA should take into account the welfare of the child, but the rules are very complex and the outcome may not always appear to do so. Young people have no right to make their own applications for a maintenance assessment against their parents. However, over-18s may apply to court for maintenance if they are at school, in full or part-time further or higher education or training. Benefits Sixteen- and 17-year-olds are not entitled to social security benefits as of right. They are expected to access work based training through the Careers Service for which they are paid a training allowance. However, 16–17-year-olds may apply for benefits in certain limited circumstances. They are entitled to income support if they are unable to work as a result of ill health or disability, pregnancy or the care of dependants. They may also be eligible to income-based job-seeker’s allowance (JSA) if they are available for work and training and also qualify for income support although in practice it may be difficult to satisfy the availability for work requirement. Sixteen- and 17-year-olds may be able to obtain JSA on a discretionary basis to avoid ‘severe hardship’. This payment is made for 16 weeks, but may be renewed. The Benefits Agency should take into account the young person’s vulnerability to risk of any kind, including homelessness and whether there is anyone else to support them. Under 18s may also be eligible for longer-term JSA hardship payments as they come within the definition of a vulnerable group. In these circumstances the Benefits Agency must look at whether there is a ‘substantial risk’ that the claimant will be without certain essential items such as food, clothes, heating and accommodation.
12.3
CITIZENSHIP, NATIONALITY AND REFUGEES
Children born in the United Kingdom before 1 January 1983 are automatically British citizens irrespective of the nationality or immigration status of their parents. Children born in the United Kingdom after that date are British citizens only if one parent (or the mother only of a non-marital child) is a British citizen or is settled in the United Kingdom at the time of the birth (see p. 274). Children and young people may apply for British citizenship by application to the Home Office for registration. Unaccompanied minors seeking refugee status The same international obligations apply to children as to adults (see Chapter 10). However, in recognition of their particularly vulnerable status there are some additional safeguards for children who seek refugee status in their own right. An
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adviser from the Refugee Council Panel is available for all children at the point of entry to assist them initially through the asylum process and with regard to the responsibilities of the local authority. There is a protocol in which immigration officers notify the local authority of the child’s arrival. Children’s applications for asylum should be given priority and immigration rules specify that in determining the outcome their welfare must be taken into account. However, there is no system that guarantees a child a proper right of specialist legal representation before the immigration appeals tribunal. This would appear to be in breach of Article 6 (the right to a fair hearing in determination of civil rights and obligations). However, European case law has established that decisions in relation to immigration and refugee status do not form part of public and administrative law and do not come within the meaning of civil rights and obligations.
12.4
TRAVEL AND LEAVING THE COUNTRY
Children may travel on their parents’ passport until the age of 16, after which they have to obtain their own passport. Children of any age may have their own passport, but the application must always be made by the parent even for young people of 16 and over, unless the applicant is married or enlisted in the armed forces. Parents with a residence order in their favour may take their child out of the country for up to four weeks without seeking the consent of the other parent or others with parental responsibility. The child’s consent is not required. Permanent removal from the country by a parent with a residence order is unlawful without an order of the court or the written consent of the other parent and/or others with parental responsibility. Again, the child’s consent is not required. The court’s decision will be determined by what is in the best interests of the child which in practice has been interpreted by reference to compatibility of the child’s interests with that of the resident parent. Living abroad is likely to have a significant impact on the child’s contact arrangements with the remaining parent. The approach of the courts to date certainly raises a strong argument on the part of both children and non-resident parents that their Article 8 rights (rights to privacy and family life) under the European Convention have been breached. In either of these cases, it may be possible for a child to obtain a prohibited steps order to stop the parents taking or sending them abroad. The court would first need to be satisfied that the child has ‘sufficient understanding’ to make the application. If the child is under eleven, the court is unlikely to consider that they have the understanding to make the application. It is a criminal offence for one parent to take a child out of the country without the consent of the other, but there is little that can be done by way of the criminal law once the child is out of the country unless extradition proceedings can be brought. This is very slow process and there is no mechanism to effect the child’s return to the country. However, the United Kingdom has ratified two international Conventions which deal with international child abduction and provide a procedure for the summary return of abducted children. The aim is that the law of the country of ‘habitual residence’ should be enforced unless specific and somewhat restrictive grounds can be satisfied or that courts in the country of habitual residence should sort out any difficulties that need resolution. Children do not have the right to invoke
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either Convention in their own right. The court must take into account their wishes and feelings, but only in limited circumstances. This is a very complex area of law about which legal advice should be taken immediately. It is thought that these proceedings may contravene Articles 6 and 8 of the European Convention because of their summary nature.
12.5
EDUCATION AND SCHOOLING
The law relating to education is complex and there are a number of different kinds of state maintained school with different forms of school government. Most are now fully funded by the local education authority (LEA). The following is a brief summary of essential rights relating to state schools only. Apart from the ban on corporal punishment, independent schools fall outside the remit of education law unless they are boarding schools, in which case social services must inspect them to monitor the welfare, but not the education, of the children. There have been a vast number of initiatives coming from the Labour Government since it came to power in 1997. The aim is to increase standards in school by the introduction of literacy and numeracy initiatives and the establishment of target setting for children. It also aims to promote social inclusion by introducing measures to support children with emotional and behavioural difficulties in school and reducing the number of exclusions. The most recent initiative is the development of the new Connexions strategy, which endeavours to support young people between the ages of 13 and 19 at risk of social exclusion by providing them with a personal adviser. Parents as consumers One of the key features of education law is the formal recognition of the role of the parent exclusively, as consumer and participant in key decision making processes such as admissions, rights to schools records (up to the age of 16), appeals against exclusions and the statementing process in relation to special educational needs (SEN). This was highlighted in 1995 by the UN Committee on the Rights of the Child in its consideration of the first Government report on the implementation of the UNCRC which recommended that changes should be made particularly with regard to the participation in exclusion appeals. Since then the Government has issued guidance to schools which has highlighted the importance of ascertaining the wishes and feelings of pupils and encouraging their participation in the running of the school such as with the establishment of schools councils, but has stopped short of providing formal legal rights. It remains to be seen whether the right to a fair trial enshrined in Article 6 of the European Convention will be of assistance but European case law to date is not encouraging because rights to education have so far been excluded from the meaning of civil rights and obligations. The current view is that this exclusion will be tested in domestic cases under the Human Rights Act. Article 2 of the First Protocol to the Convention confirms the importance attached to parental views. It states: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect
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the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. The United Kingdom has entered a reservation to this Article in the following terms: in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure. This reservation, which applies to the principle of parental choice in the second sentence of the Article, and reflects the same principle enshrined in domestic law, has to be reviewed every five years. The European Court has so far made no ruling on it. The European Court has considered cases in relation to discipline, corporal punishment and education of SEN pupils in mainstream school. The meaning of philosophical convictions has been explored by the European Court in a number of cases. Essentially it means a system of convincing, serious, cohesive and important beliefs which are worthy of respect in a democratic society and are not incompatible with human dignity. In addition they must not conflict with the child’s right to education. Compulsory education The law makes education compulsory for all children from the age of five to 16. The school leaving date for all 16-year-olds is the last Friday in June. Parents must ensure that their children go to school or otherwise receive ‘efficient full-time education suitable to his or her age, ability, aptitude and any special educational needs’. This means that children may be educated at home, but the local education authority (LEA) must be satisfied that the education is suitable. LEAs must ensure that there are sufficient primary and secondary schools available in their area. The right to education provided by Article 2 above is worded in a negative form and the European Court has ruled that it gives a right to pre-existing facilities and to gain benefit from education received from those facilities such as instruction in a national language but not necessarily the family’s own language. It does not give individuals a right to require the State to set up a particular type or level of education. It is a criminal offence for a parent to fail to ensure regular attendance at school. This is an absolute offence, which means that conviction will automatically follow other than in a few specific circumstances such as non-attendance for illness or the school being too far away. The penalty is a fine up to a maximum of £1,000. In an attempt to tighten up on truancy the Government has proposed an increase in the level of fine up to £2,500 with the option of imposing a custodial sentence of up to three months through the Criminal Justice and Courts Services Bill before Parliament at the time of writing. The court may also make a parenting order (requiring the parent to comply with certain requirements including counselling and guidance) if it is satisfied that this would address the issue of truancy. As an alternative the LEA may start civil proceedings for an education supervision order (ESO), the purpose of which is to address the issues of non-attendance. This places the child under the supervision of the LEA which has the power to make arrangements (where possible in consultation with the child and parents) to ensure that the
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child is properly educated. The child is represented in these proceedings and must be consulted by the supervising officer in carrying out the ESO. Admissions The law allows parents the right to state a preference for choice of school for their child unless that school is over-subscribed and it can be shown that admitting the child would prejudice the provision of efficient education or the use of resources in that school. Children have no independent right of choice. In practice popular schools are over-subscribed and it may be very difficult for parents to obtain their choice of school for their child. Parents have a right of appeal against a refusal of a school place. This will be heard by an independent panel established by the LEA or the school governing body, depending on the type of school. Children have no independent right of appeal and it is unlikely that they will attend the panel hearing. The curriculum Schools must ensure that there is a broadly balanced curriculum which ‘promotes the spiritual, moral, cultural, mental and physical development of pupils at the schools and of society and prepares pupils for the opportunities, responsibilities and experiences of adults life’. Within this, each school must teach the National Curriculum (NC), religious education (RE) and sex education (in secondary schools only). The NC consists of the three core subjects of English, maths and science plus the foundation subjects of history, geography, technology, physical education, art, music and at secondary level, a foreign language. These subjects are evaluated by means of teacher assessment and National Curriculum tests, called SATs, for seven, eleven- and 14-year-olds. These results must be reported to parents and in the school prospectus. The Government publishes annual league tables of schools’ performance. Citizenship is being introduced into secondary schools from September 2002 and will be compulsory. Children with statements of SEN (see below) may be withdrawn from the National Curriculum (NC) or have parts of it modified. Other pupils may be withdrawn from part or all of the NC for up to six months. Parents can ask the head to withdraw their child from all or part of the NC. If they disagree with the head’s decision, they have a right of appeal to the governing body. In addition four- and five-year-olds are now assessed in language and literacy, maths, and personal and social development on first entering school (baseline assessments). Parents have the right to see the assessment of their own child. Parents, but not children, have a right to complain about the curriculum. Religious education Parents may withdraw their children from religious education (RE) at school and arrange for alternative RE during school hours. Sex education The biological facts of sex education are part of the science National Curriculum for 11–14-year-olds. The social and emotional aspects of sex education form part of the broader personal and social curriculum in secondary schools. The law requires the teaching of sex education in a way that encourages children to have regard to moral considerations and the value of family life. However, there has been considerable
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controversy about how schools achieve this. At the time of writing the Government had issued new draft guidance on the teaching of sex and relationship education in part to address the heated debate surrounding its attempt to repeal section 28 of the Local Government Act 1988 concerning the promotion of homosexuality in schools. This guidance emphasises that children should learn the significance of marriage and stable relationships as key building blocks of community and society. But it also states that teaching in this area needs to be sensitive so as not to stigmatise children on the basis of their home circumstances. In law, parents have the right to withdraw their children from PSE sex and relationships education whatever the view of their child. The only remedy for the child is the rather draconian one of seeking the court’s leave for a specific steps order (see p. 295) for the court to determine the child’s access to sex education. At present the decision would be governed by the paramountcy of the child’s welfare. However, the right to privacy and family life enshrined in Article 8 could be raised in this context by both parent and child in relation to this most fundamental human right to education about sexuality and relationships. Primary schools may decide whether to offer sex education and parents must be informed of the school’s policy. Special educational needs It is estimated that about 18 per cent of children in England and Wales have special educational needs (SEN). These are children with learning difficulties requiring special provision for their education. This can include children with emotional and behavioural difficulties. The law requires both schools and LEAs to identify and provide for children with special educational needs. The aim is that the education of the majority of children with SEN should be within mainstream school. A Code of Practice, currently under review, specifies that there are five stages to the identification and meeting of SEN, three within the school and two being the responsibility of the LEA. Under the Code, schools are under a duty to ensure that special educational provision is made, and that the child’s special needs are known to all those who teach the child. All schools have an SEN Co-ordinator (SENCO) responsible for these tasks. Depending on the level of the child’s needs, schools must make provision within the normal classroom setting or by means of an individual education plan identifying specific help, possibly with further advice and assistance from other professionals outside the school. The responsibility for educational provision lies within the school and is funded from the school’s SEN budget. While parents and children should be included in the decision-making process there is no formal means for parents to challenge this decision other than by making representations to the governing body or possibly by requesting the LEA to carry out a formal assessment (see below). However, if a school does not support this request it is difficult to succeed. The law requires LEAs to identify those children with more serious SEN for whom it considers it should make SEN provision. This is done by carrying out a formal multidisciplinary assessment to decide whether to issue a statement of SEN. This describes the child’s SEN, specifies the educational provision and names a school or educational institution suitable for those needs. The LEA is legally required to provide and to pay for this. Parents also have the right to ask the LEA for a formal assessment. The law provides parents with detailed rights of consultation at each
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stage of the process and there are strict time limits within which the process should be completed. Children are not accorded such rights, although the Code of Practice recommends that children should be consulted during the process with their views being recorded separately. The 1996 Education Act consolidates previous legislation which promotes the principle that children with special needs should have their needs met in a nonspecial school unless this is incompatible with the parent’s wishes and provided that their choice is compatible with the necessary SEN provision for the child and the efficient education of other children and use of resources. Parents have a right to nominate a school of their choice in the statement. In practice parent’s rights are restricted by resource limitations. If parents are not satisfied with the eventual provision contained in the statement or the nominated school they may appeal to a Special Educational Needs Tribunal provided that they requested the assessment themselves. There is no independent right of appeal for the child. This contravenes Article 12 of the UNCRC. However, draft regulations which govern the conduct of the tribunal are due to be issued which go some way to addressing these difficulties. It is proposed that the child should have a right to attend the hearing although he or she may be excluded in certain circumstances as for other witnesses. The tribunal will also have the discretion to allow the child to give evidence and address the tribunal. However, these rights are dependent on the parents lodging an appeal. This procedural unfairness has been challenged in the European Court as being in breach of Article 6 of the Convention. However, the Court ruled that educational rights were not of a ‘civil’ nature as required by the Article as they fell within the definition of public law, that is something that is required to be provided by the State. Article 2 of the First Protocol has been used to challenge the LEA provision of SEN as conflicting with parents’ philosophical convictions. The State’s view has usually prevailed either on the basis of the efficient use of resources or the child’s right of access to education. In a couple of cases parents home educated their child because they wanted their children educated in mainstream school and the LEA did not consider that this was suitable for the child’s needs and the Court found in favour of the LEA. Behaviour and discipline The law requires all state schools to have behaviour policies for the promotion of good behaviour and discipline. Schools have the right to make their own rules about behaviour both inside and outside the school premises. Guidance encourages children and parents to be involved in the development of behaviour polices and in particular by the establishment of school councils so that pupils can be involved to some degree in decision-making in the school. Since September 1999 schools have been required to have a home-school agreement. Its purpose is to set out the school’s aims and values and the respective responsibilities of the school, parents and pupils. Parents, and children of sufficient maturity, are encouraged to sign the agreement but cannot be forced to do so. The agreements are not legally enforceable even if signed. Bullying There is now a legal requirement that schools should take measures to prevent all forms of bullying. This strengthens the school’s general duty of care to act towards
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all the children in the school as a reasonable parent would do in those circumstances. Many schools have effective bullying policies, which encourage a range of ways to tackle bullying. Other schools have not done so and children and their parents have not always been satisfied that the school has acted in a way to ensure the child’s safety. Some children and their parents have taken legal action against the school for compensation in negligence for failing to provide proper protection for the child. This is developing area of law and as yet there are no reported cases of success. It is known that an out of court settlement was reached in one case, although liability was not admitted. It is possible that the European Convention could be used to address these issues. Two cases have been lodged with the Commission under Article 3 of the Convention. The parents have argued that it is inhuman and degrading treatment for the child that the school has failed to take action to effectively combat bullying at an earlier stage. Detentions Detentions, which are reasonable and proportionate to the offence, may be given after school hours without the consent of the parent. Imposition of a detention must include consideration of whether the parent can reasonably arrange for the child to get home after the detention and parents must be given 24 hours’ written notice. Corporal punishment A number of UK cases have come before the European Court in relation to the use of corporal punishment in schools. This led in 1986 to the banning of corporal punishment (this includes throwing objects and hair pulling as well as smacking and caning) in all maintained schools and for those children with assisted school places in independent schools. The 1998 School Standards and Framework Act has extended this ban to all pupils in all schools including independent schools. The ban now defines the use of corporal punishment as a criminal offence in addition to providing a right to bring a civil claim. Pastoral support programme (PSP) This is a school-based intervention to help individual pupils better manage their behaviour. The aim is to identify clear and realistic behavioural outcomes for the child to work towards. It should automatically be set up where the child has had several fixed term exclusions that may lead to permanent exclusion or who has otherwise been identified as being at risk of failure at school through disaffection. The programme should be agreed with the parents in collaboration with the LEA and other relevant agencies. Behaviour support plans As from January 1999, LEAs have been required to develop behaviour support plans drawn up in partnership with a range of relevant local agencies such as social services, YOTs, health, police, and so on. Their purpose is make arrangements for supporting schools with advice and resources to promote good behaviour and deal with pupils with behavioural problems including arrangements for excluded children out of school.
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Exclusions Pupils may be excluded from school permanently or for a fixed period of up to 45 school days in a school year. Heads only may make this decision. Government statutory guidance states that a decision to exclude should be taken only in response to serious breaches of the school’s behaviour policy and if allowing the pupil to remain in school would seriously harm the education of the pupil or others in the schools. Before excluding a child it is expected in most cases that a range of alternative strategies should be used to address the behaviour in question including the establishment of a PSP. Parents must be informed about the exclusion and the reasons for it and they have the right to make representations to the discipline committee of the governing body for their child to be reinstated. There are strict time limits set out in the legislation as to the procedural requirements. Parents may appeal against a permanent exclusion to an independent appeals panel which are set up by the LEA. Pupils under the age of 18 have no right to make representations to the governing body’s discipline committee or the independent appeals panel. Their parents are the appellants. However, guidance states that unless there are strong reasons to refuse, both the governing body discipline committee and the independent appeals panel should allow the excluded pupil to attend the hearing and to present their case if the parents and pupil request this. The pupil’s participation is therefore dependent on the agreement of the parent and requires a formal request to the adjudicating body as opposed to being allowed as of right. This arrangement does not fully meet the criticism of the UN Committee on the Rights of the Child and it continues to contravene Article 12 of the UNCRC. It possibly contravenes Article 6 of the European Convention (the right to a fair hearing). No cases have yet been brought before the European Court on this point possibly because of the interpretation of civil rights and obligations which has been held to exclude rights to education in a case concerning representation at the SEN tribunal (see above).
12.6
CHILDREN INVOLVED IN THE SEPARATION OR DIVORCE OF THEIR PARENTS
The philosophy of the Children Act 1989 is to encourage parents to agree about their children’s future welfare when they separate or divorce by providing continuing parental responsibility for divorced parents and by requiring the courts not to make court orders unless it is better to do so for the child. This approach has been underpinned by the development of mediation, a process designed to help parents reach agreement about issues with regard to their children (and increasingly in relation to housing and finances too). In practice the emotional distress of adults in family break up usually predominate and the interests of children are all too frequently given little priority. Uncontested cases In the majority of cases parents agree arrangements about their children without recourse to mediation or the courts. It is not a requirement for either parent to attend court in divorce proceedings in relation to their children. The court merely looks at a written statement of arrangements for the children and grants the divorce
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unless it is concerned about the children’s welfare in which case it will order a court welfare report. However, there have been a number of concerns that in uncontested cases there is no formal way in which children can express their wishes and feelings about their future should they wish to do so. The 1996 Family Law Act required the court to take into account the wishes and feelings of the child depending on the age and maturity of the child and the circumstance in which those wishes were expressed. Implementation of this provision has been deferred for the time being. Mediation Parents seeking legal aid to take court proceedings about their children are first required to attend a mediation assessment meeting. Mediation is not obligatory and the mediator assessor must be satisfied that it is a suitable case for mediation and that there is no fear of domestic violence or other harm which would preclude mediation being attempted. During the mediation process, the law requires mediators to ensure that parents consider the child’s welfare and their wishes and feelings and also whether the child should directly participate in the mediation. In practice children rarely directly participate in mediation. Every attempt is made to elicit their views via discussion with the parents. This raises complex issues which are under consideration by the mediators’ professional bodies. However, it is certainly in breach of Article 12 of the UNCRC unless there is some clear procedure for enabling children to convey their wishes and feelings independently into the mediation process should they wish to do so. It may also be in breach of Article 8 of the European Convention in that there is a breach of procedural fairness in respect for the child’s family life. Court proceedings under the Children Act Divorcing or unmarried parents may apply for a residence order, contact order, prohibited steps order or specific issue order. Other people, such as relatives, can ask for the court’s leave to do so and this is likely to be granted where the court considers that the application has a reasonable chance of success. Children and young people may also ask the court for permission to take a case to court, but this will only be granted if the court thinks that they have sufficient understanding to make that application. The courts are wary of parental influence in such circumstances and seek to balance the rights of children against their welfare. Where children have been granted permission to bring a case, they are represented by their own lawyer. Paramountcy of children’s welfare The court must place the child’s welfare as its paramount consideration. This is assessed by reference to a welfare checklist of matters such as the child’s physical, emotional and educational needs, the capacity of the parents (or anyone else) to care for the child and any harm he or she is suffering. It must also ascertain and take into account the wishes and feelings of the child in light of his or her age and understanding. This will be done by means of a court report usually prepared by a family court welfare officer. In practice the quality of such reports is variable not least in the manner in which the officer has communicated with the child.
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Article 8 of the European Convention is likely to have a significant impact on the way in which the courts make their decisions. The paramountcy principle does not sit comfortably with the rights of parents and other family members for respect to their private and family life unless it can be shown under Article 8(2) that it is ‘in accordance with the law and is necessary in a democratic society for … for the protection of the rights and freedoms of others’. From an analysis of cases decided by the European Court commentators have suggested that the courts will have to start from the principle that all family members, including the child, have a right to respect for their family and private life. If the rights of family members are in conflict the court will have to consider whether interference with rights of family members is necessary under the second limb of Article 8(2). Representation of children Occasionally, children are made parties to the proceedings but the practice is not widespread and is not favoured by the courts. The Family Law Act 1996 made statutory provision for children of any age to be separately represented in certain circumstances without having to make their own application. However, this provision has not yet been implemented. It has been argued by Government and official bodies that it is inappropriate and burdensome for children to be parties in their parents’ conflicts and that most children would not wish to participate in this way. However, there are other cases where children have been deprived of the right to participate. The new Children and Family Court Advisory and Support Service (CAFCASS) presently being established by the Criminal Justice and Courts Services Bill will be considering the representation of children in these proceedings but so far the Government’s view seems to support the status quo. In light of the sensitive nature of children’ s participation in their parents’ conflicts it is not unreasonable to establish criteria in which party status is granted but these should not be drawn too tightly. As things stand at present children’s lack of formal representation is in breach of Article 12 of the UNCRC. It is also in contravention of Article 6 of the European Convention (right to a fair hearing) and in relation to Article 8 (respect for privacy and family life). Cases decided by the European Court have determined that there is a requirement of procedural fairness in supporting rights under Article 8 (see p. 311). Contact Contact disputes between parents are often difficult to resolve to the detriment of the child. The Children Act expresses contact as the right of the child. However, cases heard by the European Court under Article 8 have ruled that parents have a right to contact to their child. This challenges the theoretical approach of the domestic courts in considering contact issues. However, in practice the courts have taken a very robust view in arguing that it is in the child’s best interests to maintain contact with the absent parent in circumstances that are often far from ideal. However, there seems to have been a recent shift in some judicial attitudes in recognising the impact of domestic violence on the child in relation to contact decisions and guidelines for the courts are being prepared. It is questionable whether the practice of the courts will significantly change with the implementation of the Human Rights Act. Article 8(2) would provide protection to children and to their
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parents who have been subjected to, and are at continuing risk of violence. However, the impact of Article 8 is likely to reinforce the reluctance of the courts to give adequate weight to the wishes and feelings of children who state that they do not wish to have contact with their absent parent.
12.7
CHILDREN INVOLVED WITH SOCIAL SERVICES DEPARTMENTS
Children may become involved with social services departments in different ways from their parents’ request for family support services, to concerns about child protection, to being taken into care and ‘looked after’ by the local state as corporate parent through to preparation for adoption. There has been a plethora of reports about the failures of the public care system for looked after children, the most recent one being the Waterhouse Report into the abuse of young people in homes in North Wales. The Government has recognised this ‘woeful tale of failure’ by introducing its three-year Quality Protects initiative in 1998. This specifies objectives for change with the provision of additional funds for local authorities which satisfy these criteria. These include reducing the number of placements that children experience and increasing the range of placements on offer; raising educational attainment; and involving children both collectively and individually through the development of independent advocacy services. Significant changes in support for young care leavers have been introduced in the Children (Leaving Care) Bill and improvements for their protection through new regulatory standards for residential and foster care in the Care Standards Bill. Local authority services Family support The local authority has a general duty to promote the welfare of children in need in their area and to enable children to be brought up by their families by providing a range of services to the child and his or her family. This includes services such as advice, counselling, placement in family centres, day care provision, provision of holidays and recreational activities and in exceptional circumstances, cash help. ‘In need’ is widely defined. In practice there is quite considerable variation in practice between authorities about what is provided and whether or not children are assessed as in need. The local authority can also ask for help from other departments, which must be given unless this would prejudice the normal provision of their services. Local authorities are required to produce and publish multidisciplinary children services plans. Since 3 April 2000, the local authority is no longer allowed to provide accommodation or the ‘essential living needs’ of a dependent child or his or her family where the family are asylum seekers and eligible for support under National Asylum Support Service, whether or not an application has been made. This restriction does not apply to unaccompanied minors who remain eligible to the full range of support under the Children Act. Accommodation The local authority has a duty to provide accommodation for children where their parents are unable to care for them for whatever reason. Its philosophy is one of
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service provision without the stigma of public care and should be arranged in partnership with parents who are by law at liberty to remove the child at any time. In practice this does not always happen and accommodation is often used in a coercive way as an alternative to the use of care proceedings for which there may be inadequate evidence. The local authority has a duty to provide accommodation to children over the age of 16 where it considers that the child’s welfare would otherwise be seriously prejudiced. In practice local authorities are extremely reluctant to provide accommodation to these young people. It is equally difficult for them to obtain housing under the homelessness legislation and in many cases they need social work support. Their only remedy is to make a formal complaint or where there are sufficient grounds in an emergency to seek an application for judicial review. The law is unclear whether social services have a duty to accommodate under-16s at their own request. However, since their parents can remove them at any time its helpfulness is limited unless there is sufficient evidence for the local authority to take care proceedings. Child protection The local authority has a duty to make enquiries where it has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm. The purpose of this enquiry is for the local authority to decide whether it needs to take any action to safeguard the child’s welfare. Children at risk are also children in need. Research has shown that many children are placed on the child protection register unnecessarily creating trauma for them and their parents and, in many cases, no additional help being provided at the conclusion of the process. Revised Government guidance, ‘Working Together’, has taken account of this research in formulating best practice and procedures. ‘Working Together’ sets out the response of local authorities to child protection concerns. These span a continuum from an informal enquiry, an initial assessment with the provision of family support services through to the holding of a multidisciplinary child protection conference. A child protection conference will be convened following a core assessment, which has found that the child is at continuing risk of significant harm. The aim is to decide whether there is sufficient evidence to place the child on the child protection register and, if so, thereafter to draw up a child protection plan. Most children on the child protection register remain at home with their parents but the conference may recommend that social services should take legal action to protect the child. Police investigations may take place in parallel with local authority enquiries. ‘Working Together’ states that the child of sufficient age and understanding should be given the opportunity to attend the conference if she or he wishes and to bring an advocate, friend or supporter. In any event his or her wishes and feelings should be conveyed to the conference. It is questionable whether this is fully compliant with Article 8 of the Convention in that European case law has held that there must be procedural fairness in establishing a right to family life. Younger children have no independent champion of their rights and interests. The provision of an independent advocate for all children, whether or not they attend the conference, would address these concerns.
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Emergency protection Police protection The police have the power to take children and young people into police protection for up to 72 hours there is reasonable cause to believe that they would otherwise be likely to suffer significant harm. These powers are usually exercised in relation to young runaways and to those involved in the sex industry. In law, there are a number of specific steps that the police have to take such as finding out the child’s wishes and feelings, notifying the parents and the local authority and arranging for the child to be removed from the police station to local authority accommodation. The child must be released from police protection where a senior officer is satisfied that the grounds no longer exist. However, there is no requirement that a court considers the evidence in relation to police protection and it is certainly arguable that this constitutes a breach of Article 6 of the Convention (the right to a fair hearing). Emergency protection orders The local authority (or any other person) may apply for an emergency protection order (EPO) for up to eight days. Before granting this application the magistrates must be satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he or she is not removed to local authority accommodation (or kept in an existing placement, for example, in hospital). The court must also consider whether the order is necessary and in the best interests of the child balancing the need for protection with the trauma of removal. An application for an EPO may be made without notice to the parents. In these circumstances they have the right to apply for the order to be discharged. A guardian ad litem is appointed at such hearings and the child is also legally represented. Article 6 of the Convention provides for a right to a fair hearing and implied within this is the right to give oral evidence. It is arguable that parents who are not provided with notice of an EPO could say that that their rights to a fair trial have been breached by the failure to give notice. However, since the purpose of an EPO is to deal with emergencies it will depend on the evidence as to the severity of the risk to the child as to whether the local authority and/or the court can argue that the decision comes within the margin of appreciation. Care and supervision proceedings The local authority may apply to the court for a care order which is an order giving parental responsibility to the local authority and this usually involving the removal of the child from home. The court can only make a care order where it is satisfied that the child is suffering, or is at risk of suffering, significant harm as a result of the way the parents are caring for the child, or because the child is beyond parental control. Once these criteria have been established the court must place the child’s welfare as its paramount consideration in light of the welfare checklist and must also take into account the child’s wishes and feelings. In doing so it will consider a care plan, which must be prepared by the local authority in support of its application. In particular, it must consider alternative orders such as supervision orders or residence orders to relatives or friends and whether or not it is better for the child to make no order at all. Where, for instance, there is evidence that the family is willing to co-
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operate with social services on a voluntary basis, there may be no need for an order since the child can be accommodated instead. Before making a care order, the court must look at the arrangements for the child’s contact with his or her parents and other people significant to the child. Applications for supervision orders are made in the same way as for a care order. A supervision order means that the child will continue to live at home with the parents but with formal visits from social services. It lasts for a year but can be extended for up to three years. If the parents fail to let social services see the child a warrant can be obtained or a police officer to get access to the child. Welfare principle Article 8 of the European Convention is likely to have a significant impact on the way in which the courts make their decisions. The paramountcy principle does not sit comfortably with the rights of parents and other family members for respect to their private and family life unless under Article 8(2) interference by the State is ‘in accordance with the law and is necessary in a democratic society … for the protection of the rights and freedoms of others’. From an analysis of cases decided by the European Court it has been suggested that the courts will have to start from the principle that all family members, including the child, have a right to respect for their family and private life. If the rights of family members are in conflict the court will have to consider whether interference with rights of family members is necessary under the second limb of Article 8(2). In a case concerning a child in public care the European Court said: A fair balance has to be struck between the interests of the child remaining in public care and those of the parents in being reunited with the child. In carrying out this balance ... the court will attach particular importance to the best interests of the child which depending on their seriousness may override those of the parent … the parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development. Scrutiny of care plans The court has no authority to determine the content of the care plan. Where there is no alternative sufficient to protect the child, such as placement with a family member, it has no option but to make a care order even if it disagrees with the care plan proposed or the details of its implementation. Moreover, the court has no ongoing role once a care order had been made. If the care plan is changed or there are difficulties in its implementation there is nothing that can be done by the parent or child by way of bringing the matter back before the court other than an application for discharge of the care order which is often inappropriate and contrary to the child’s welfare. The court has no right to reopen the case on its own account. Parents and children can make a formal complaint under the Children Act. While the process of investigation involves the input and recommendations of an independent person at the initial and subsequent panel stage of the process, the complaint is ultimately adjudicated by the very authority complained about. The judiciary has been very unhappy about their lack of ongoing scrutiny in care cases, something that was available to them under the old law in wardship proceedings.
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Article 6 (right to a fair hearing) and Article 8 (right to privacy and family life) are likely to have a significant impact particularly in light of the judiciary’s disquiet about the present state of affairs. In a key decision against the United Kingdom concerning pre-Children Act contact, the European Court ruled that in order to uphold Article 8 rights there was a fundamental requirement of procedural fairness in decision making in children’s cases to provide sufficient protection of parent’s interests. Since children’s rights are also included under Article 8 this principle can be extended to the protection of their procedural rights. The right to procedural fairness is strengthened by the requirements of Article 6(1) the right to a fair hearing, including administrative decisions, before an independent and impartial tribunal. The European Court in the case cited above also ruled that the parent should have an opportunity of having the case decided on its merits and not just in relation to matters of procedural fairness such as in applications for judicial review. Consequently there are strong arguments for both parents and children (in their own right or through their guardians ad litem) to bring actions under both Articles 6 and 8 where the local authority has failed to implement care plans approved by the court. Representation of children Children and young people are parties to the proceedings and are entitled to legal representation. The court will in most circumstances appoint a guardian ad litem who is a social worker usually independent of the local authority and certainly independent of those working with the child. The guardian is required to investigate the circumstances of the case, ascertain the wishes and feelings of the child and make recommendations to the court about the child’s best interests. Younger children are represented through instructions given by the guardian to the child’s solicitor. Guardians work in partnership with the child’s solicitor and may instruct experts such as psychiatrists or paediatricians to assist the court. Where a child of sufficient understanding disagrees with the guardian’s recommendation, the solicitor must represent the child as if he or she were an adult. By the Criminal Justice and Court Services Bill the Government has established a new agency (Children and Family Court Advisory Support Service) amalgamating the functions of the guardian ad litem service with that of the family court welfare service, effective from April 2001 (see also p. 307). Through this agency it is proposed that guardians ad litem will have the right to present the case for the child in court. While it is probable that older children of sufficient understanding will retain a right to their own legal representation, younger children may be represented in court directly by the guardian ad litem. While the Government has made a commitment that these officers will be trained in court skills it is questionable whether this will be adequate to provide representation of sufficiently high quality and expertise to safeguard the rights of such vulnerable children. It is arguable that this represents a breach of Article 6 (right to a fair hearing) since European case law has established that the exercise of this right must be effective. Duties of social services to looked after children Children who are accommodated and those subject to care orders are referred to as ‘looked after’ children. The duties of the local authority to these children are largely
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the same. It has an overriding duty to safeguard and promote the child’s welfare, to listen to and take into account the child’s wishes and feelings and to provide accommodation and maintenance. The main distinction lies in the fact that parents retain their parental responsibility when their child is accommodated while under a care order the local authority acquires parental responsibility. This is shared with the parents but may be limited by the local authority in the interests of the child. Consequently it is expected that local authorities will work in partnership with parents whose children are accommodated although this does not always happen in practice. A care order lasts until the young person is 18 unless the order has been previously discharged or a residence or adoption order have been made. A child remains accommodated until the parent removes that child from accommodation or a child over the age of 16 discharges him- or herself. In practice there is widespread practice amongst local authorities to discharge young people from accommodation by their 16th birthday in order to avoid aftercare duties towards them. Planning and reviews The local authority has a duty to promote the child’s welfare and to make plans for the child on admission or as soon as possible afterwards. The law sets out a number of matters that must be looked at. These include health, education, contact and return home. In making any decision about the child, the local authority must consult with the child, the parents and significant others concerned with the child. It must take into account these views (subject to the child’s age and understanding) together with considerations about the child’s religion, race, language and culture. Plans must be recorded in writing and given to the child in a form that she or he can understand. Wherever possible plans should be agreed with accommodated young people over the age of 16 and with their parents when under this age. The care plan must be reviewed initially after four weeks, then at three months and after that at six-month intervals. Before conducting the review the local authority should consult the child and, wherever possible, allow the child to participate in the review and to attend the review meeting. Where the child is unhappy with the content of the care plan or the plan has been changed with involvement he or she can make a formal complaint (see p. 315). The comments about court scrutiny of care plans under Article 8 probably do not apply to plans in relation to accommodated children (see above). Education The local authority acts as corporate parent in relation to the education of looked after children. Under the Quality Protects programme the Government has targets to raise the level of educational attainment for looked after children. Recent guidance has been issued to move this forward and has placed new statutory duties on local authorities. These include a requirement for the local authority to take into account the need to obtain an educational placement in identifying a suitable care placement. They are also expected to find an education placement for any looked after child within 20 school days. Each looked after child should also have a personal education plan, which accompanies his or her care plan.
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Contact and reunification The local authority has a duty to try to encourage contact with parents, relatives (including siblings), friends and other people significant to the child unless this is contrary to the child’s welfare. They may be able to help with financial support where otherwise the visits would not be able to take place. For children subject to a care order there is a presumption of contact with their parents (and others with parental responsibility) unless ordered otherwise by the court. Local authorities cannot terminate contact without first seeking a court order to this effect. Children and their parents have the right to make an application to the court about contact arrangements. The local authority is also under a duty to work towards the reunification of children to their parents, relative, friend or other significant person unless this is contrary to the welfare of the child. The frequency and nature of contact is inevitably linked with the care plan for the child. Contact for children being reunited with their families will be extensive compared to the termination of direct contact for children who have been placed for adoption which happens in the majority of cases (see below). Impact of the European Convention The issue of contact in the context of Article 8 (the right to privacy and family life) is particularly significant in relation to looked after children. In relation to a case brought against the United Kingdom prior to the implementation of the Children Act the European Court stated: The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life … this is not terminated by reason of the fact that the child is taken into public care. The Children Act was amended to reflect this judgment by creating the presumption of contact and providing rights of access to the court in relation to contact decisions. The question is likely to revolve around the extent and quality of contact which is conducive to the mutual enjoyment of each other’s company and post-adoption contact (see p. 317 below). In practice the domestic courts have been wary of making contact orders which interfere with local authority planning for adoptive placements once a placement has been made, although prior to placement contact is usually allowed, albeit of decreasing frequency up to the point of placement. However, some decisions from the Court of Appeal have robustly considered contact in its own right in the knowledge that this may cause the local authority to reconsider its care plan. The impact of the European Convention is likely to strengthen the court’s role in this respect. Contact under the Children Act is considered as the right of the child and so potentially in conflict with the principles of Article 8, although the child is also entitled to respect for his or her family life as well as the parents. Compliance with Article 8 displaces the present statutory requirement that the child’s welfare is the court’s paramount consideration and the courts will have to carry out a careful balancing exercise of respective rights before deciding whether state interference is justified.
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Discipline and punishment Corporal punishment is unlawful for all looked after children. Children in residential care are specifically protected from other unreasonable punishments which are set out in law. These include being deprived of food and drink and normal medication, being given other forms of medication for control purposes, deprivation of sleep, being made to wear distinctive clothing, being made to pay a fine (other than a court fine) and being stopped from contact with parents, family and friends and making contact with a social worker, solicitor or guardian ad litem. Physical restraint may be used provided that it is reasonable to prevent immediate danger of physical injury to the child or another person or to avoid immediate danger to property. Aftercare support The Children (Leaving Care) Bill, which was going through Parliament at the time of writing, will make significant changes to the duties of local authorities towards looked after young people who have left public care. At present the local authority has a duty to advise and befriend young people from the ages of 16 to 21 provided that the young person was looked after at 16. There is no duty to provide housing, cash (other than in exceptional circumstances) or any other form of assistance. The new law provides that all young people between the ages of 16 and 21, who have been looked after for a period of three months before their sixteenth birthday, qualify for an extensive new package of support. The local authority will be obliged to assess young people approaching 16 and to prepare a pathway plan in which the authority will be under a duty to provide suitable accommodation, maintenance and other forms of support. Young people will have a personal adviser to assist them in this process until they are 21. Specific help must be given in relation to education and training and this may last beyond the age of 21 until the young person has completed the course. The legislation is due to be implemented in April 2001 although the provisions in relation to 18–21-year-olds is dependent on government funding and may be implemented at a later date. Complaints and legal action Children have a legal right to make a formal complaint about matters of concern to them. The procedure must involve an independent person during the initial investigation and at the subsequent panel stage if the complaint has not been resolved. At both stages the local authority is obliged to take into account the recommendations of the independent person and the panel it is not obliged to follow these recommendations in responding to the complaint. Failure to do so would give grounds for an application in judicial review. The Government is presently reviewing the complaints procedures and in acknowledgement of the difficulties encountered by young people in making complaints it is likely to recommend that children should be provided with independent advocacy support. Increasingly, children who have been damaged by the care system and/or abused wish to sue the local authority for damages in relation to its failure to comply with its statutory duties and to provide a standard of care as a reasonable parent would do. This is a very complex area of law. In the past the courts have ruled that as a matter of public policy local authorities should be immune from actions in
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negligence and breach of statutory duty and consequently such actions have been struck out without a consideration of the merits of the case. In a ruling by the House of Lords in 1999 this position was reversed in that it was held that those bringing such cases should have the right to have their case heard. This ruling was based in part on a European Court decision concerning the application of Article 6 in a case in which a negligence action was brought against the police. These decisions are likely to have a significant impact in this developing area although of course ultimate success will be dependent on the strength of the evidence. Secure accommodation This is described as accommodation for the purposes of restricting liberty. In the criminal justice field children may be remanded to secure accommodation or sentenced to detention, which may be decided by the Home Secretary to be in local authority secure accommodation. Looked after children of 13 and above can also be placed in secure accommodation for welfare reasons (younger children can be locked up with the approval of the Secretary of State). The local authority may initially place for up to 72 hours, following which an application must be made to court. The court must be satisfied that the child has a history of absconding and is likely to run away from any open placement and that in doing so he or she is likely to suffer significant harm or is likely to injure him- or herself if kept in any other open placement. If these criteria are established, the court must make a secure accommodation order of up to three months for an initial order and for any subsequent order for up to six months. The court must not make an order unless the child is legally represented or has refused legal aid to instruct a lawyer. However, it has been ruled that the child should be present only if the court considered that it would be in his or her interests to be present and also could order that the child should not be allowed into court if it thought the child would be unruly. Within one month of an initial order a review panel comprising one person independent of the local authority must consider whether the criteria are still met and then at within three-monthly intervals. The panel must take into account the wishes and feelings of the child in doing so. Impact of the Convention Article 5 of the Convention states that no one should be deprived of their liberty other than in specific circumstances. These mainly relate to criminal proceedings and also in relation to health matters. However, there is one exception that applies specifically to under 18-year-olds, namely detention by lawful order for the purpose of educational supervision or for the purpose of bringing the child before the court. It is difficult to see how the domestic law complies with this Article. The purpose of secure accommodation is for the welfare and protection of children and young people. The European Court has not considered the meaning of educational supervision in a welfare context and it is questionable whether this can encompass all features of welfare. The second limb of the Article does not appear to be relevant in welfare cases other than to justify for an initial detention of 72 hours before a court application is made. The application of Article 6 is also likely to be relevant in light of the court ruling that the court can decide on whether the child is present in court. Although entitled
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to legal representation this cannot be effective as required by Article 6 without the young person having the opportunity of instructing his or her lawyer and giving evidence. It may also be relevant in relation to attendance at review panels from which children are not infrequently excluded. Adoption An adoption order means that parental responsibility for the child is transferred from the birth parents to the adoptive parents and the child is regarded as having been part of the adoptive family since birth. A child can be adopted only with the consent of the birth parent (not including unmarried fathers without parental responsibility). This may be overridden by the court in certain circumstances, most usually if it is satisfied that the parents are withholding their consent unreasonably. There have been a great number of court cases exploring what is reasonable. While the welfare of the child is not paramount in adoption proceedings (it is the first consideration) and should not be taken into account in considering the issue of the parent’s consent in practice welfare issues are relevant particularly if the child has been living with the adoptive parents for any significant period of time. There is no requirement for the child’s consent before an adoption order is made. In a draft government legislation for the reform of adoption law (dropped before the 1997 general election) it was proposed that the consent of children aged twelve or over should obtained before an adoption order could be made. On two occasions the European Court has considered whether the making of an adoption order contravenes parents’ rights under Article 8 and on the facts reached different conclusions. The impact of the Convention on adoption is therefore unclear. It is likely that the courts will need to look more carefully at how they make decisions to dispense with parental consent attaching greater weight to the rights of the birth parents in particular in relation to proposals for reunification. The court may also need to look more carefully at the wishes and feelings of the child and how these have been obtained. Representation of children Guardians ad litem are appointed in contested adoption proceedings to investigate and advise the court about whether adoption is in the best interests of the child. Unlike care proceedings, children are not usually represented in adoption proceedings but the court must take into account their wishes and feelings which are conveyed in the guardian’s report. The draft bill referred to above made proposals about widening the representation of children but this fell short of giving children the right of legal representation in all adoption proceedings. Failure to provide party status for children in these proceedings is in breach of Articles 6 and 8 and should certainly direct the Government’s attention to implement the earlier proposals for representation. Because of the nature of the proceedings the Government may be successful in arguing that failure to provide representation for all children falls within the margin of appreciation. Post-adoption contact In the early baby adoptions secrecy was an essential part of the process and there was no question of any contact with birth parents. Different circumstances apply to
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the adoption of children from care particularly in relation to older children with a knowledge and memory of their birth families. There are still strong views in practice about the benefits or otherwise of open adoption although there is an increasing recognition of its benefits to some children, particularly in relation to their sense of identity, a right enshrined under the UNCRC. In virtually all adoptions there is letterbox contact whereby the parents are provided information about the child, usually on an annual basis. Research shows that in about a third of cases there is some form of ongoing contact. This may be by way of exchange of letters, cards and presents or direct contact which is likely to be about two or three times a year. The courts have the power to make orders for contact but will not do so unless the adoptive parents are in agreement with this in principle. They may make orders for sibling contact where the adoptive parents are opposed to the order. The European Court has not yet ruled on the question of post adoption contact although, the Government settled one case brought by a father who argued breach of Article 8 rights. At 18 and over, young people can apply to the Registrar General for a copy of their original birth certificate and information about their birth family from the adoption agency that arranged the adoption. Adult adoptees and birth family members may also apply to the Registrar General for entry of their names on the Adoption Contact Register. Details of birth family members will be given to adoptees so that contact can be established if the adopted person wishes to pursue this.
12.8
YOUNG OFFENDERS
The Labour Government has introduced considerable changes to the youth justice system with the 1998 Crime and Disorder Act. The main objective of the Act is the prevention of offending. It introduces a new framework of youth offending teams (YOTs) to tackle youth offending comprising representatives from social services, the police, probation, education and health, and the voluntary sector. At national level the Youth Justice Board (YJB) provides oversight of the new system. This Act, together with the Youth Justice and Criminal Evidence Act 1999, has introduced a new range of court orders to address youth crime, simplify sentencing and create statutory attempts to divert young people from the court process. Many of the changes have moved in the direction of meeting the recommendation of the UN Committee on the Rights of the Child in its consideration of the Government’s first report in 1995 that the administration of juvenile justice should be more childoriented. However, there are other provisions, which have brought more children into the ambit of the juvenile justice system. Age of criminal responsibility Children under ten Children under the age of ten are below the age of criminal responsibility and so cannot be charged with any criminal offence. In most European countries the age of criminal responsibility lies between 13 and 16 and the UN Committee on the Rights of the Child recommended that the age of criminal responsibility should be raised in all countries of the United Kingdom.
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It is open to the local authority to take care proceedings in relation to persistent young offenders under the age of ten if it can be shown that the child is at risk of significant harm. However, the Crime and Disorder Act has introduced the child safety order, which may be made where a child under ten has committed one antisocial act only which would have been a criminal offence if committed over the age of ten or otherwise to prevent anti-social behaviour. The order usually lasts for three months but may be extended up to a year and the child is placed under the supervision of a social worker or YOT member. A parenting order may be made at the same time. A child safety order may be discharged and a care order substituted by the court if the child fails to comply with any requirement made of him or her. This entirely undermines the philosophy of the Children Act which specifically legislated against care orders being made on welfare grounds alone without it first being established that the child is suffering or at risk of suffering significant harm (see above). Ten- to 13- year-olds In the past there was a presumption that children were incapable of knowing the difference between right and wrong. This presumption was not absolute and enquiries would be made of the child to establish their understanding of these matters. The 1998 Act abolished this presumption and so this age group is now treated in the same way as other juveniles (14–17 year olds). Police investigation, reprimands and warnings The rules for police questioning, search and detention of juveniles are the same as for adults but juveniles have additional rights. Parents must be informed of the juvenile’s arrest and detention. Except in certain circumstances, interviews should take place only in the presence of an ‘appropriate adult’. This is usually the parent but may be another adult such as a social worker, youth worker or member of the local YOT if the young person is estranged from the parent(s). With a first offence the police have the discretion to issue a reprimand (formerly known as a caution) instead of recommending a prosecution. For a second offence a warning may be issued. A second warning may only be made if the latest offence is not serious and more than two years have elapsed since the making of the first warning. Reprimands or warnings can be given only if the juvenile admits the offence, has no previous convictions and it is considered contrary to the public interest for the offender to be prosecuted. Reprimands and warnings are made at the police station in the presence of an appropriate adult. Following a warning the juvenile will be referred to a YOT for assessment to decide whether a rehabilitation programme is appropriate. Reprimands and warnings do not form part of the young person’s criminal record although they may be brought up if there are court proceedings in the future (see Chapter 3 above on criminal records). Criminal trials and sentencing The majority of cases are heard in the Youth Court. This is a specialist branch of the Magistrates’ Court. Murder, manslaughter and other ‘grave’ offences (punishable with a maximum of 14 years’ imprisonment if committed by an adult) such as rape, arson, grievous bodily harm, robbery or aggravated burglary are heard by the Crown Court. Both tiers of court are required to have regard to the welfare of the
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child, but this is a weaker requirement than in relation to family or care proceedings. Guidance has recently been issued by the Lord Chief Justice which requires proceedings in the Crown Court to take into account the particular needs of juveniles to ensure the right to a fair trial as required by Article 6 of the European Convention. In particular, courts are required to ensure that the young defendant sits with his family and lawyer; the proceedings are conducted in a language understandable to the young defendant; the timetable should take into account the young person’s level of concentration with the provision of suitable breaks and that careful and sensitive arrangements for media reporting should be made in cases with high public interest. Community sentences The courts may impose a range of punishments including a fine, an attendance centre order or a supervision order. Supervision orders may contain different conditions such as participation in certain activities (intermediate treatment), night restriction or a requirement that the young person lives in social services’ accommodation for up to six months. New sentences include reparation orders and action plan orders. The purpose of these two orders is to strengthen non-custodial disposals to provide opportunities for young offenders to be given structured help to prevent re-offending and to make reparation to victims or to the community. Referral orders are another form of community sentence, of between three and twelve months, introduced by the 1999 Youth Justice and Criminal Evidence Act. They are presently being piloted with implementation intended during the course of 2002. Again the idea is to combine an approach to address the causes of youth offending with an element of restorative justice. Most first-time offenders who plead guilty and do not need a custodial sentence will be referred to a youth offender panel drawn from the community and facilitated by the YOT. The function of the panel is to draw up a programme of behaviour with the child the terms of which form the basis of the youth offender contract, which the child must sign. While an appropriate person should attend the panel with the child, usually a parent, and the child is allowed to bring someone of his or her choice, legal representation is disallowed. This places the child in a potentially weaker position with regard to his or her rights than if sentencing was dealt with in court. It is arguable that the deprivation of legal representation at the panel constitutes a breach of Article 6. European case law has established that Article 6 rights must be practical and effective and that this may include access to legal aid and legal representation. Custodial sentences Detention and training order This is a new comprehensive sentence for 12–17-year-olds introduced by the Crime and Disorder Act. The law allows for this sentence to be extended to ten- and elevenyear-olds, but only if the Home Secretary thinks that it is necessary to do so. It can be made in relation to 15–17-year-olds when they have been convicted of an offence sufficient to warrant a custodial sentence if they were an adult. It can be made also in relation to persistent young offenders aged 12–14 when they have been convicted of an imprisonable offence and has been previously convicted of three or more imprisonable offences. The maximum sentence is 24 months in the Crown Court
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(six months in the Youth Court) provided that it does not exceed the adult maximum for the offence. The sentence comprises a period of detention and training for half the order with a period of supervision after release. The Home Secretary has the discretion to decide placement in local authority secure accommodation, secure training centre, young offender institution or youth treatment centre. He has the power to order early release. He may also apply to the Youth Court for late release of one or two months depending on the length of sentence. It is unclear whether the young person will be heard in court on such an application. Detention during Her Majesty’s pleasure Young offenders under the age of 18 who have been convicted of murder are sentenced to detention during Her Majesty’s pleasure which is indefinite detention in social services’ secure accommodation transferring at 18 to a young offender institution and at 21 to prison. Until a recent decision of the European Court, the length of detention was entirely in the discretion of the Home Secretary who set the ‘tariff’ (the minimum period which the prisoner has to satisfy the requirements of retribution and deterrence) and, although advised by the trial judge and the Lord Chief Justice, could depart from their recommendations. The court ruled that Article 6 (the right to a fair hearing by an independent and impartial tribunal) was breached by this procedure since the Home Secretary, being part of the executive, could not be said to be independent. The Lord Chief Justice now decides the tariff and it is for the Parole Board to determine whether the young person should be released. Detention under section 53 of the Children and Young Persons Act 1933 Young offenders under the age of 18 convicted of grave crimes which would attract a period of imprisonment of 14 years or more if an adult may be convicted to a period of detention for periods in excess of 24 months provided that the sentence does not exceed the maximum term which would be imposed if an adult. The court should determine the appropriate sentence for rehabilitation and deterrence and for young people this is normally one half of the sentence before referral to the Parole Board. Young people are referred to the Parole Board for determination as to whether it is safe to release on licence once the tariff period has expired.
12.9
CHILD WITNESSES
Children of any age can give evidence as a witness in a criminal trial if they can give ‘intelligible testimony’ – that is, understand the questions put to them and answer questions that can be understood by the court. Children under 14 do not have to take the oath. For those over 14 the court decides whether their evidence should be sworn or unsworn on the basis of whether the child understands the solemnity of the occasion and the particular responsibility to tell the truth. Most children involved as child witnesses are also the victims of sexual and/or physical abuse and many have described their experience of being a witness in criminal proceedings as an abusive experience. Some parts of an influential advisory group on video-recorded evidence were introduced in 1994, but it was not until the 1999 Youth Justice and Criminal Evidence Act that most of the remainder of these
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recommendations of an advisory group on video-recorded evidence have been given full statutory effect. There is a presumption, unless the court considers that this would not be in the interests of justice, that the evidence of all child witnesses under the age of 17 may be taken before the trial by means of a video-recording. This evidence is transmitted by live television link at the trial so that the child does not have to appear in court. There is also a presumption that child witnesses in sex offence cases may be crossexamined before the trial about their evidence and the video-recording of that cross-examination is shown at trial instead of calling the child to give live evidence. This has not yet been implemented since it will take time for the facilities to be put in place but meanwhile cross-examination will take place on the day of the trial by means of live television link. Child witnesses in cases involving violence and other matters will be cross-examined on the day by means of live television link. These provisions do not cover children under 18 unless the court considers that the quality of their evidence is likely to be diminished because of mental, intellectual, social or physical difficulties or because of their fear or distress in testifying. The court may also allow an approved ‘intermediary’ to support the child during the criminal process.
12.10
FURTHER INFORMATION
Useful organisations ChildLine Freepost 1111 London N1 0BR Tel: freephone helpline 0800 1111 Children’s Legal Centre University of Essex Wivenhoe Park Colchester Essex CO4 3SQ Tel: 01206 873820 (advice service Monday to Friday 2–5 p.m.) Children’s Rights Alliance for England 319 City Road London EC1V 1LJ Tel: 020 7278 8222 National Youth Advocacy Service 1 Downham Road Heswell Wirral Merseyside CH60 5RG Tel: 0151 342 7852 Voice for the Child in Care Unit 4, Pride Court 80-82 White Lion Street London N1 9PF Tel: 020 7833 5792
Advisory Centre for Education Aberdeen Studios 22 Highbury Grove London N5 2DQ Tel: 020 7354 8321 Refugee Council 3 Bondway London SW8 1SJ Tel: 020 7820 3000 NACRO 169 Clapham Road London SW9 0PU Tel: 020 7582 6500 NSPCC Child Protection Line National Centre 42 Curtain Road London EC2A 3NH Tel: 0800 8800 3333 Citizens’ Advice Bureaux – consult your Yellow Pages telephone directories, or your local library to find your local office.
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Bibliography Swindells, Neaves, Kushner and Skilbeck, Family Law and the Human Rights Act 1998, Family Law, 1999. Ford, Hughes and Ruebain, Education Law and Practice, LAG, 1999. At What Age Can I?, Children’s Legal Centre, 1999. UK Agenda for Children, Children’s Rights Development Unit, 1994. Convention on the Rights of the Child: Second Report to the UN Committee on the Rights of the Child by the United Kingdom, 1999.
Tess Gill
13
The Rights of Workers
This chapter deals with: • • • • • • • • • • • • • • •
Unions Contracts of employment Whistleblowers Drug taking, drinking and workers’ rights Equal pay Maternity rights Parental leave rights Time off to care for dependants Health, safety, sickness and disability Dismissal Redundancy Industrial action Human rights Claims Further information
Central to any system of civil liberties is a recognition of the importance of workers’ rights. In the United Kingdom, there was grudging acceptance of workers’ rights in the form of the Trade Union Act 1871, which allowed trade unions to exist when hitherto they had been illegal. The expression of trade union rights in the form of calls for industrial action was made lawful by the Trade Disputes Act 1906. The foundation of modern workers’ rights lies in those two statutes, now repealed, and it was not until the 1960s that attention was given to the rights of workers as individuals with the passing of legislation on minimum periods of notice and redundancy pay. After the Conservative Government was elected in 1979 it passed a series of measures limiting the powers of trade unions and restricting the ambit of employment protection legislation. The new legislation was consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992, to be followed by the Trade Union Reform and Employment Rights Act 1993 (TURER). This latter Act introduced yet more stringent requirements as to union ballots, control over union finances and maintenance of the check-off system whereby union contributions are collected by the employer. Employers were permitted to benefit employees who withdrew from union membership or negotiated terms and conditions. Members of the public could sue unions if adversely affected by unlawful industrial action. Following the election of the Labour Government, the Employment Relations Act 1999 reversed this trend and introduced landmark rights for trade union activities. It established important procedures for union recognition at workplaces with more 324
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than 20 employees, as well improving the protection from dismissal for workers who have taken industrial action. A statutory minimum wage was introduced for the first time. Rights were also enhanced as required by European Community Law in respect of maternity, parental leave, time off to care for dependants, working time, victimisation in connection with health and safety, statutory statement of terms and conditions, transfer of undertakings and collective redundancies. The Employment Rights Act 1996 (ERA) consolidated employment protection rights, while the Disability Act 1995, the enforcement provisions of which came into effect on 2 December 1996, introduced the right to make a claim to the tribunal for discrimination on grounds of disability. EC law has had a noticeable impact in the fight for women to achieve equal pay for doing work which is the same as, or of equal value to, a man’s, and in challenging other forms of discrimination on the grounds of sex. It is also the source of the protection of workers’ rights on business transfers, collective redundancies, health and safety, and, as from 1996, working hours. EC law applies throughout the United Kingdom. Employment legislation applies in England, Wales and Scotland, and most of it applies (in the form of Parallel Orders) in Northern Ireland. The Scottish and English laws of contract have different terminology but similar substance. This chapter deals principally with the rights contained in the Acts, Codes and cases arising since 1974. From the outset it is important to recall that the courts have been hostile to the concept and practice of workers’ rights, particularly when these rights are advanced by way of industrial action by trade union members. Because union membership is the key to enforcing workers’ rights at workplace level through collective bargaining and industrial action, union rights are dealt with first.
13.1
UNIONS
Why join? Employment law has traditionally viewed workers’ problems as definable in individual contracts of employment. In reality, your rights as an individual worker are largely determined by the negotiating position you have with your employer and individuals have little opportunity to influence the specific terms and conditions of employment, whereas collectively workers can and do. Furthermore, although just under one in three of the 23 million or so people in employment are members of trade unions, two-thirds have their terms and conditions affected by collective bargaining between their employer, or a group of employers, and trade unions. Rights against employers You are protected by TURER against refusal of employment, dismissal including selection for redundancy and victimisation short of dismissal on the grounds that you are or are not a trade union member. This includes seeking to become a member and taking part, at an appropriate time outside working hours but on your employer’s premises, in the activities of the union. You are also protected if the grounds of your dismissal or victimisation are your trade union activities in the past, for example, when you were working for another employer, when the basis of the
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employer’s action is fear that you will repeat those actions in your current employment. The rights entitle you to recruit members, hand out literature, collect subscriptions and hold meetings during the times when you are not working. If management allows you to talk while you are at work, you are also allowed to talk about trade union membership and to encourage people to join. Any action or omission by your employer that is to your detriment is unlawful if your employer’s purpose is to prevent or deter you from union membership or activity or penalise you. This includes the refusal to allow representation by a union official in accordance with agreed procedures. Generally any form of disadvantage is unlawful so long as the target of the management action is genuinely ‘trade union activity’. That includes the presentation of, for example, a complaint or grievance relating to health and safety, and does not include merely the activities of a group of individuals who happen to be union members. The union content of the issue must be clear, and the management action must be taken against you as an individual and not as a form of retaliation against the union which may be seeking to organise. However, it is not unlawful for an employer to pay employees who opt out of collectively agreed terms and conditions a higher salary increase provided that this reasonably relates to the services provided by the worker and that there is no inhibition in the contract of employment which prevents the worker from being a member of a union. Further, the employer may be able to successfully raise the defence that it sought to further a change in the relationship with all or any class of its employees where sweeteners are offered to those who opt out of collectively agreed terms and conditions. You can make a claim to a tribunal. Compensation is available for dismissal and victimisation of up to £56,900 for dismissal, with further compensation available if management refuses to comply in full with an order for reinstatement or reengagement made by the tribunal. Compensation for action short of dismissal is in the discretion of the tribunal and may include a sum for injury to feelings and reputation. The most important remedy for dismissal is an order for reinstatement. In order to make a claim, you should use the ‘interim relief’ procedure available while you are under notice or during the first seven days after dismissal. This requires a certificate from a union official confirming that in their opinion you were dismissed because of your trade union activities and are likely to win a claim for unfair dismissal on those grounds. A very quick hearing will then be arranged by the tribunal which has power to order management to continue your contract until the full hearing of the case. With the exception of the requirement of a union official’s certificate all of the above rights and procedures apply to someone who has been dismissed on the grounds that they refused to join or take part in the activities of a trade union. Right to representation at disciplinary or grievance hearings A worker who is required or invited to attend a disciplinary or grievance hearing is entitled upon reasonable request to be accompanied by a representative. The representative can be a co-worker, or a trade union official or employee whom the union certifies in writing has experience or training in representation matters. The right to bring a union representative exists even where the union is not recognised
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by the employer. However, the rights of representation are limited in that the representative may address the hearing, but may not answer questions on the worker’s behalf, or cross-examine witnesses. If the worker encounters difficulties in obtaining a representative, they have the right to ask the employer to postpone the hearing for a reasonable time. Where an employer unreasonably refuses to allow a worker’s representative to attend the hearing, the worker may have recourse to a tribunal for compensation. Union recognition Recognition means that management is prepared to negotiate with an independent trade union or unions over terms and conditions of employment. Negotiation is stronger than consultation, which is essentially a one-way process. The employer must consider representations but there is no joint decision-making. The Employment Relations Act 1999 introduces statutory procedures for the recognition of independent trade unions in workplaces employing more than twenty workers. The complex details of these procedures are outside the scope of this chapter. Generally, the emphasis is on voluntary recognition and agreement where possible between employers and trade unions. Where agreement is not possible, then an employer may be compelled to recognise a trade union for collective bargaining purposes in respect of a specified bargaining unit in which the majority of the workers are members of the union or otherwise following a ballot where the majority of the workers, and at least 40 per cent of those entitled to vote within the bargaining unit support recognition of the union to act on their behalf. Where a trade union is recognised, collective bargaining will cover issues of pay, hours and holidays at the minimum, unless the parties agree to negotiate additional matters. A number of other legal advantages flow from recognition. These are: •
The duty to deal with and give facilities to safety representatives appointed by the union under the Health and Safety at Work, etc. Act.
•
Consultation on occupational pensions.
•
Consultation on redundancies, on takeovers and mergers and the automatic transfer of collective agreements. Where a union is recognised for classes of workers affected by collective redundancies, takeovers or mergers, the employer must consult with the trade union even where other appropriate employee representatives exist in the workplace.
•
Disclosure of information, for instance, financial information, for the purposes of collective bargaining, with a legally enforceable right to obtain better terms and conditions if information is denied.
•
Time off with pay for union representatives carrying out duties or training connected with collective bargaining, or without pay for union members attending internal union activities.
The right to time off can be enforced by a claim to a tribunal. It is available to shop stewards, staff representatives and other elected representatives. It enables them to prepare for negotiations, draw up plans, consult other members and officers, and negotiate. The amount of time off is that which is ‘reasonable’ for carrying out duties and training in connection with their industrial relations functions.
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Quite separately, union members have the right to take time off for union activities, such as voting, attending union conferences and other matters of internal organisation. This right does not attract pay. Union membership agreements can be negotiated with management. Since the Employment Acts 1988 and 1990, refusal of employment on the ground of unwillingness to join the union or victimisation on such grounds is unlawful. All companies with 250 employees must include in their annual report a statement of the measures taken to provide information to, and to consult with, employees on matters of concern to them (Companies Act 1985). Rights within the union There is a right not to be unjustifiably excluded or expelled from a trade union. Exclusion or expulsion may be justified if you do not satisfy the union’s rules, for example, by not being employed in a specified trade or profession, or it is due to your conduct other than having been a member of another trade union or a member of a political party. You can complain to a tribunal if your rights are infringed. The relationship between you and your union is governed both by the union rule book and by statute. The rule book, together with custom and practice, sets up contractual rights entitling you to the benefits and the procedures contained in it. In addition, the rules of natural justice will generally apply to any disciplinary hearing within the union. These are the right to be given notice of the allegation made against you, the opportunity to state your case and to be heard by an impartial body within the union. You have the right under the TURER not to have unjustifiable disciplinary action taken against you. You can complain to a tribunal, which can set aside the decisions of the union and award compensation. Discipline is unjustifiable if it is on the grounds of failing to participate in or support industrial action, even if a majority of the members involved voted in favour. Similarly, disciplinary action for refusing to break your contract of employment, or for following calls for action in breach of the union’s rules, is unjustifiable. Disciplinary action means expulsion, fines, deprivation of benefits or any other detriment. You also have a right to terminate your union membership and not to have your union subscriptions deducted from your salary without your agreement, which must be obtained every three years. You may complain to a tribunal if your employer makes an unauthorised deduction of subscriptions. Political activities A union may resolve to have a political fund and to require its members to pay contributions, part of which go into the fund. Activities of a party political nature must be paid for out of the political fund and not out of the general fund of the union. You have an absolute right to refuse to contribute to the political fund and must not be disadvantaged for so doing (Trade Union Act 1913). Ballots were held in all unions which had political funds, pursuant to the Trade Union Act 1984 (now the TURER), and all passed resolutions favouring the continuance of such funds. Such ballots must be conducted every ten years. In Northern Ireland the system is reversed, in that all members are contracted out of the political fund and it requires a positive statement by an individual to join in the fund.
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Election of officers TURER provides that all officials (except certain senior officials nearing retirement) who have voting rights, or who attend and speak at the governing bodies of trade unions, must be elected by secret postal ballot every five years.
13.2
CONTRACTS OF EMPLOYMENT
Not everyone who works has a contract of employment. Some are self-employed. Employment law has in the past generally only protected employees. Many new rights protect ‘workers’ which includes those working under a contract to provide services even though they are not ‘employees’. In discrimination cases and equal pay cases, workers under a personal contract to do work are also covered. Employed or self-employed? The distinction between employees and the self-employed is easier to see than to define. The label used is not decisive as to what the parties to the contract intended. All the relevant circumstances have to be examined to see if the person is in business on his or her own account. You may be employed even though you work through an employment agency. You will generally be an employee, and not self-employed, if the economic reality of the relationship is that you are not in business on your own account, or in ordinary language, ‘Are you your own boss?’ One test is whether you and your employer owe each other obligations which include, on your part, the requirement to obey instructions and to do the work yourself; and on your employer’s part to provide work and to pay you for the work done. Since there are tax advantages to the worker and tax and other advantages to the employer in establishing self-employed status, these are superficial temptations. Self-employed workers are denied access to much employment protection legislation and are unprotected by the employer’s compulsory insurance against industrial injuries. Unless you genuinely want to go into business on your own account, taking the risks inherent in such a practice, you should resist offers to become self-employed. Remember that even if your employer calls you self-employed and you are selfemployed for tax and National Insurance purposes, you may be found to be an employee for the purposes of employment protection if you claim unfair dismissal or other statutory rights. Certain categories of worker are given employment protection rights although strictly they are not employees. For example: •
Apprentices enter into fixed-term contracts, which impose particular obligations upon the apprentice and the employer. There is a strict obligation to give and accept instruction in the trade and termination generally requires the apprentice’s parents’ consent.
•
Civil servants work under terms of service with the Crown and do not have contracts of employment. This includes some National Health Service workers. Nevertheless, they have access to most of the employment legislation, and where they are excluded they have their own arrangements, for example, in relation to redundancy pay.
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•
People who hold office may or may not be employees, depending on the nature of the relationship with their ‘employer’. Directors of companies, for example, may be office holders under company law and also be employees of their companies. Trade union officers hold office by virtue of their election in some cases, and are also employees of their union. Police officers hold office and are not employees but are covered by discrimination laws.
•
Homeworkers may or may not be employees, depending on the nature of the relationship and upon whether they are engaged in business on their own account, applying the ‘economic reality’ and ‘mutual obligation’ tests.
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Casual workers may be self-employed or employees only for the time when they are engaged, even though they continue to work day after day for the same employer and take on all the appearances of a regular employee. If you can establish that all your contracts as a casual worker are linked under an ‘umbrella’ contract, or that you have worked continuously for the same employer for whatever length of time is required for the right in question, using the complicated tests found in the Employment Rights Act 1996, you will be able to take advantage of your rights.
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Trainees on government training schemes may or may not be employees, depending on the type of scheme and the arrangements for pay, but are covered by health and safety and discrimination legislation.
What’s in a contract? Every employee has a contract of employment, which may or may not be in writing. For most people, this means a written statement of the main terms given to you shortly after you started work. Nevertheless, you may be still an employee working under a contract of employment even if nothing is written down. The fact that you have agreed to work and your employer has agreed to pay you is likely to constitute a contract of employment. True, if a dispute arises as to the rate of pay or entitlement to bonus, it will be more difficult for you to prove that your version is correct, but that does not detract from the fact that you have contractual rights. A contract will generally consist of terms and conditions, which may be identified in any of the following forms. Written statement Within two months of your starting work, your employer must provide you with a statement, in writing, of the particulars of your terms of employment (ERA). These must include: •
The name of your employer.
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The date your employment started and whether any previous employment is regarded as continuous with it.
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The rate of pay or the method of calculating it and how often it is paid.
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Hours of work.
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Entitlement to holidays, holiday pay, sick pay, and whether or not a pension scheme exists.
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The length of notice required to be given by each side.
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Job title.
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If your employment is not intended to be continuous the period for which it is expected to continue, if it is for a fixed term the date on which it is to end.
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Your place or places of work, whether you are required to work outside the United Kingdom.
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Whether any collective agreements directly affect your terms and conditions of work.
These particulars must be given in a single document unless they refer to another accessible document for particulars of incapacity, sick pay or pensions, or notice requirements. Any disciplinary rules that apply to you must be specified as well as the name of any person to whom you can apply if you have a grievance or are dissatisfied with any disciplinary action, and the procedure that you must follow. Details of disciplinary rules need only be given if your employer employs at least 20 people. Another accessible document, such as a Company Handbook which contains this information, may be referred to. If you are not given a written statement, you can make a claim to a tribunal and if successful you would get compensation. The written statement provides strong evidence of what the agreed terms are, but does not in itself constitute the contract of employment. As the written statement is just your employer’s account of what are the terms of your contract, you can challenge the terms in it if they are not those to which you agreed. Even if you have signed to acknowledge receipt of the statement, it is not itself a contract. It is best only to agree to sign that you have received the document and not that you accept its contents as being true so that if you later want to challenge any of the contents you are free to do so. You must be notified of any changes to your terms and conditions not later than one month from such changes taking effect. Again, you may be referred to an accessible document, which contains the information as to such changes. Only changes which you, or your union on your behalf, have agreed to are binding upon you. If your employer unilaterally attempts to impose a change upon you, you are entitled to record that you do not agree to the change and hold your employer to the original agreement. Your employer may counter-attack by dismissing you and offering you a new contract with the new terms. If you claim unfair dismissal, the tribunal would have to decide whether the employer had good business reasons for the changes and whether in all the circumstances the dismissal was fair. Collective agreements Frequently, many of these terms and conditions will be determined by agreements negotiated by trade unions on your behalf. The fruits of the negotiations between unions and employers are usually incorporated into your contract of employment, since either your written statement or the custom and practice at your workplace will generally say so. Collective agreements generally set terms and conditions such as wages, hours, holidays and sick pay and will also provide the machinery for the resolution of disputes, discipline and grievances. Itemised pay statement Every time you are paid you are entitled (ERA) to a written statement setting out the gross pay, any variable or fixed deductions, net pay and, if not all the pay is paid
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in the same way, the method of payment for each part, for example, where a bonus is paid less frequently than basic pay. If you have fixed deductions for each pay period, it is sufficient for management to give you a statement in advance of what the fixed deductions are, and they must reissue it at least annually. If you are not given an itemised pay slip, then you can make a claim to a tribunal. Works rules Management may publish on notice boards or in employee handbooks a set of works rules. These do not necessarily form part of your contract, so that if you break any of them you may not automatically be breaking your contract of employment. At most, they are management’s instructions about how the job is to be done and are not to be treated as rules cast in stone – they can be challenged if you make a claim to a tribunal arising out of, for example, your dismissal for breaking one. Wages council orders and Agricultural Wages Boards In 1909, protection was given to workers in industries where there is low trade union organisation and where workers are notoriously prone to exploitation. The Wages Act 1986 cut down the rights of workers engaged in a range of industries including catering, garment manufacture and retailing. On 30 August 1993, all wages councils were abolished. The Agricultural Wages Board remains in place and sets minimum rates and rest days for agricultural workers. If agricultural workers are not paid the minimum rate wages, inspectors employed by the Department of Employment can prosecute the employer. A court can order the employer to pay a fine and to make payments of arrears of wages or repayment of deductions unlawfully made (for example, for accommodation). In addition, proceedings can be brought either by you or the wages inspector in the county courts. Breach of contract Since it takes two to make a contract, changes to it must be agreed by both. Otherwise there is a breach of contract, which, if sufficiently serious, entitles you to say the contract is at an end and to walk out. Alternatively, as explained above, you can refuse to accept that the serious action or omission by your employers has brought the contract to an end and you can continue to work, while reserving your rights to make a claim in the courts for breach of contract. A breach occurs when either party fails to carry out the agreed terms, or terms which have been implied by the courts or by custom and practice, or when you are dismissed with no or insufficient notice, unless you have committed ‘gross misconduct’. A sufficiently serious breach of contract will also entitle you to bring a claim of unfair dismissal. Contractual obligations This section contains the main contractual obligations between you and your employer. Payment of wages From 1 April 1999 workers have the right to be paid the national minimum wage (NMW). This means that all workers aged 22 or over must be paid a specified minimum hourly rate. At present the minimum hourly rate is set at £3.60. Workers
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aged 18 or over but who have not reached 22 are entitled to a minimum hourly rate of £3.00. Workers who have not reached their 18th birthday do not qualify for the minimum wage. Additionally, apprentices aged between 18 and 26 are not entitled to the minimum wage during the first year of apprenticeship. Specific detailed provisions exist for workers taking accredited training, entitling them to an hourly rate of £3.20 for the first six months of their employment. Employers are under a duty to keep records of the wages paid to their workers. You can inspect your records by making a written request to your employer. Employers must produce these records within 14 days of the request. If you are not being paid the minimum wage, you can contact the Inland Revenue enforcement agency or bring a claim in the employment tribunal. The method and frequency of wages or salary are as set out in your written statement. If deductions are made unlawfully from your pay you can make a claim to a tribunal (ERA). Deductions are lawful only if you have given your consent in writing or if this is provided for in your contract. However, there are exceptions allowing management to make deductions in respect of: overpayment of wages and expenses; payments by law to public authorities; payments to third parties, for example to trade unions, or deductions following a strike or other industrial action. The law as to unlawful deductions applies not just to employees but to all workers provided they have undertaken to do the work personally. Hours of work Hours of work are determined by agreement either with you or with trade unions. The Working Time Regulations 1998 impose restrictions on the hours worked by men and women. The Regulations provide for: •
An average 48-hour maximum working week measured over a 17-week reference period (six months for certain types of work, or twelve months where a workforce or collective agreement so provides). You can opt out of this average 48-hour maximum where you agree with your employer in writing. This opt-out can be terminated by giving a maximum of three months’ notice or where no period of notice is specified in the agreement, by giving your employer seven days’ notice of your wish to opt into the 48-hour maximum.
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For night workers an average of eight hours in a 24-hour period over a period of three months.
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A minimum of four weeks’ paid annual leave. This must be taken and cannot be rolled over to the next year.
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Eleven hours daily rest for adult workers in each 24-hour period.
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An uninterrupted weekly rest break of not less than 24 hours in each sevenday period (subject to exceptions).
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An uninterrupted rest break of 20 minutes which can be taken away from the workplace where a worker’s daily working time is more than six hours (this may be modified by a collective or workforce agreement).
There are, however, numerous exemptions to the new regulations, both for certain industries and for certain types of workers. There are some restrictions on the hours
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of young people below the age of 18. If your employer refuses to comply with any of your working time rights, a tribunal can award compensation. Obligation to provide work As long as management pay you, they have no obligation to provide work. The right to work may be enforced only by: •
Employees who are offered the opportunity to earn commission or a bonus (and therefore cannot achieve this if they are denied the right).
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Artists, actors, singers and performers whose careers are advanced by exposure.
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Highly skilled craft workers who need to keep their hand in.
Claims for lost belongings Although management is under an obligation to provide adequate storage accommodation for your clothing if you work in a factory, they are not generally liable to recompense you for losses unless they are aware of a history of thefts and have done nothing, or they know you are required to bring tools or clothing to work in order to carry out your job. In that case, it is more likely that you can claim. Right to search There is no right to search you, for example, on leaving the work premises, unless you have agreed this in your contract or accepted it by long-standing custom and practice. Security officers have no general powers to search or detain you. Injuries at work If you are injured at work you can claim compensation on the basis that your employer has not provided safe tools or equipment, a safe workplace, proper training, or a safe system of work including assessing risks to your health and taking preventative measures when necessary. Suspensions and layoffs Management has no right to impose a suspension or lay-off without pay and without your agreement. Suspension with pay, pending the investigation of an allegation of misconduct against you, is often provided for in agreements, but unilateral suspension without pay for economic or disciplinary reasons is unlawful. If you are dismissed because management’s needs for work of the kind you are engage to do have diminished, you can claim redundancy pay (see p. 346) if you are suspended or reduced to less than half-pay for more than four weeks. If there is no work at all, you can also claim a guarantee payment of £16.10 per day for up to five days a quarter (ERA). Personal data You are entitled to see personal data held by your employer on computer and any other form of readily accessible information, such as personnel files and other employee records (Data Protection Act 1998). If the data are inaccurate, you may issue a notice requiring your employer to cease processing personal data about you,
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and may be entitled to demand that any inaccuracies be corrected or removed. You may also be entitled to apply to a court to seek damages for the distress or damage that this has caused you. Not all categories of data fall within the Act, as it provides for a number of important exceptions. The majority of the provisions of the Act came into force on 1 March 2000, although it does not become fully effective until 23 October 2007. By 1 October 2001 manual records added since 24 October 1998 will be covered and only records held unaltered since before 24 October 1998 and manual health records will be exempt until 2007. In processing your data, your employer is under a duty to comply with certain principles of data protection set out in the Act. In summary, personal data must be processed fairly and lawfully, it should be adequate, relevant and not excessive in relation to its purposes. Such data must not be kept for longer than is necessary. Employers who keep records of irrelevant data, such as marital/partnership status or vastly outdated disciplinary records may be subject to challenge. The Act also sets out requirements as to the conditions on which such data may be processed which include the requirement to obtain the employee’s consent. This may be done by making it a term of your contract of employment. Processing must also be necessary for a specified purpose such as performance of the contract, compliance with a legal obligation, or to protect the vital interests of the employee. Increased protection is afforded to sensitive personal data, which include more intimate private matters such as your political opinions, religious beliefs, trade union membership, health and sexual life. You must have given your explicit consent or processing is necessary for a number of specified reasons such as legal obligation. The Act gives you the right to be told which data are being processed by your employer and to obtain copies of information held about you. You have four main rights under the Act activated by a request to your employer and the payment of a maximum fee of £10. These are: 1. The right to be told whether information is being held or processed by your employer. 2. The right to be given a description of such data, the purposes for which they are being held and also the persons to whom the employer may disclose these to. 3. The right to have the data communicated to you in a understandable form, such as a photocopy or print-out. 4. In cases where a decision is made using an automated process (such as performance-related pay methods), you are entitled to know the basis of the decision-making process. Duties of fidelity and confidentiality You owe a duty of fidelity to your employer while you work and some aspects of that survive your leaving. While you are employed, you must not disclose confidential information, but you can use information which you remember (you must not remove and use your ex-employer’s documents after you leave) unless there are clear written restrictions in your contract – known as restrictive covenants – forbidding this. Then, such restrictions will be upheld provided they do not stop you earning a living and they are reasonable for the protection of your exemployer’s interests. A covenant is unreasonable if it restricts you for too long or
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from too large a geographical area, or if it prevents you earning a living. Information relating to your employer’s specific trade secrets must be kept confidential even after you leave. While employed, you must work for the one employer only during your working hours, but in the absence of some implied restriction on your working for others, you can work in your own time as you wish. Any money you make arising out of your employment belongs to your employer and you must account for it. If you produce written material for publication, your employer has the copyright over it. If you make inventions or create patents, management gets the benefit provided your normal duties include the likelihood of your making inventions. If you invent something of outstanding benefit to management, you can claim a fair share of the profits (Patents Act 1977). Duty to obey instructions You are under a duty to obey instructions, provided these are lawful, reasonable and within the scope of the contract you have agreed. Other instructions will constitute breaches of the contract, for example, if you are instructed to do something which is against the criminal law or which is unsafe, unreasonable or outside the scope of the duties you have agreed to perform. If your contract is in any way illegal (for example, because of your intention to avoid tax by being paid cash in hand), you can claim no rights under it or benefit from the employment legislation except in respect of sex and race discrimination. Previous convictions You are under no obligation to disclose previous convictions, unless you are applying for a job in certain professions or occupations where disclosure is obligatory. You are entitled to answer ‘no’ to questions aimed at probing convictions which have become ‘spent’ after periods of time, for example, five years for a fine (Rehabilitation of Offenders Act 1974; see Chapter 3 above). Answering negatively is neither a lie nor grounds for dismissal. For information on discrimination at work see Chapter 9 above. References On leaving, management is not obliged to give you a reference. However, if your employer provides a reference there is a duty to take reasonable care to see that any reference is fair and accurate. There is an implied term in a contract of employment requiring the exercise of due care and skill in the preparation of a reference. If, as a result of a bad reference which is the result of a failure to take care, the employee suffers loss, for example a job, then he or she may claim damages in the county court. Legal Aid is available. Time off You have a right to time off without pay to be a member of a local council, health authority, school or college governing body, water authority, police authority, board of prison visitors or magistrates’ bench, or for jury service. If this right is denied you can claim to a tribunal (ERA). The amount of time off is that which is ‘reasonable’ taking into account the effect of your absence on your employer’s business.
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WHISTLEBLOWERS
Since 2 July 1999, legislation has protected workers from detriment in certain cases of whistleblowing where this amounts to a protected disclosure. The ERA sets the parameters of what constitutes a protected disclosure, as well as the manner of the permissible disclosure by the worker. Different degrees of protection apply depending upon whether the disclosure was made internally within the employer’s organisation, or externally to a third party. A protected disclosure includes the disclosure of any information by a worker which in their reasonable belief tends to show that: •
A criminal offence has been, is about to be, or is likely to be committed.
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A person has, or is about to fail to comply with a legal obligation imposed upon them.
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The health and safety of any person has been, or is being or is likely to be endangered.
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A miscarriage of justice has occurred, is occurring or is likely to occur.
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The environment has been, or is being, or is likely to be damaged.
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Information tending to show that one of the above matters has been, or is likely to be deliberately concealed.
It is not necessary for the worker to show that the act concerned has or will occur. A reasonable belief is sufficient. It is immaterial that the act has taken place in the United Kingdom or elsewhere. The general emphasis of the legislation favours internal disclosures, thereby giving employers the opportunity to address the situation. Workers are protected from detriment where, acting in good faith, they make a disclosure internally to their employer, or where they consider that another person is responsible to that person. A worker who deliberately sets out to embarrass or humiliate the employer may be denied protection on the ground that they were not acting in good faith. A disclosure is not protected if the worker commits a criminal offence in making it, such as a breach of the Official Secrets Act. If the employer has a procedure whereby the worker may make a disclosure to another person, that disclosure is protected. Disclosure to a legal adviser is also protected. Workers who are engaged by government bodies may make a disclosure to a Minister of the Crown. A worker may also make a disclosure in good faith to a person prescribed by the Public Interest Disclosure (Prescribed Persons) Order 1999/1549. For example, if the complaint is as to the proper administration of charities the Charity Commissioners are prescribed. Different protections apply to cases where disclosures are made to other persons. Aside from the requirements as to reasonable belief and good faith, in order to be protected, the worker must not act for personal gain. The worker also has to show that they reasonably believed that they would have been subjected to detriment by their employer if a disclosure was made internally, or that the evidence relating to the alleged failure would either be concealed or destroyed, or that an internal disclosure has already been made. Additionally, the worker has to show that the external disclosure was reasonable in all of the circumstances. This depends upon
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a number of factors, including to whom the disclosure was made, the seriousness of the failure, whether it is continuing or likely to arise in the future and other similar factors. Where the disclosure concerns an exceptionally serious matter, the worker need not make an internal disclosure or show that they anticipated employer retaliation, or that the evidence would be concealed provided that in all of the circumstances it is reasonable for the worker to make the disclosure. The protection afforded in these circumstances will depend upon the nature of the alleged failure and its likely consequences. Where a worker is victimised by the employer as a result of making a protected disclosure, a claim can be brought to an employment tribunal. Dismissals or selection for redundancy for making a protected disclosure are automatically unfair. The worker does not have to have been employed for a minimum period of time to make a claim. There is no limit on the compensation that can be awarded. Tribunals can award interim relief in unfair dismissal claims. Where a whistleblower makes a disclosure that is not protected, they are at the mercy of their employer. It is likely that the disclosure will amount to a breach of the duty of confidentiality or fidelity, and the employer can institute disciplinary procedures against the worker. In such cases however, a worker may be able to pursue a general claim for unfair dismissal against their employer. An employer may sue workers who have disclosed confidential information. In no circumstances can a worker reveal the trade secrets of the employer (which may be widely defined to include simple processes). Ex-employees may also be prevented by their contract of employment from revealing other information confidential to the employer – to stick, the clause must not prevent the worker from being able to work in the future and the information must be defined. Injunctions may be obtained where such contracts are broken leading to lengthy ‘gagging’ of ex-employees in some cases. There is a right not to be unfairly dismissed or victimised if a worker (who is a health and safety representative) takes action when he or she believes workers to be in serious and imminent danger (ERA).
13.4
DRUG TAKING, DRINKING AND WORKERS’ RIGHTS
Drug addiction, like alcoholism, should be treated as an illness. The Advisory Conciliation and Arbitration Service (ACAS) in its advice booklet ‘Discipline at Work’ urges employers to have a policy covering both problems. However, employers usually treat drug taking as misconduct. Reasons given are that drug taking, unlike alcohol, can be a criminal offence and employers themselves can commit an offence under the Misuse of Drugs Act 1971 if they know that illegal drugs are being used or distributed on their premises. Research suggests that one in four of workplace accidents involves workers who have been drinking. Some 14 million working days are lost through alcohol abuse. In the past tribunals have usually found that dismissal is a reasonable response to drug taking or being under the influence of drink or drugs at work. However, there is an increasing trend towards treating long-term alcohol and to a lesser extent drug taking as an illness. Many employers have adopted a specific policy for dealing with alcohol and drug related problems. These may include taking time off for
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medical treatment. This approach is encouraged by ACAS in their booklet ‘Discipline at Work’. However, where an employee recklessly comes to work having been drinking or under the influence of drugs, and even more if the work gives rise to danger in these circumstances, dismissal is likely and will be held to be fair. Factors that a tribunal are likely to take into account include: whether the conduct was on or off duty; safety at work; contact with children or young people; the effect on the employer’s reputation and business, and the illegality of the employee’s actions. So off-duty conduct will not usually merit dismissal in itself, though it may if it affects the employee’s ability to do the job or the employer’s reputation. Even if the employee has been convicted of a drug offence, the employer must conduct a proper investigation before dismissing, otherwise it will be unfair as there may be mitigating circumstances. In one case, for instance, the employee did not smoke the cannabis found in his garden. Personal problems causing temporary drug taking or drinking have sometimes been seen as a factor that employers should take into account and restrict themselves to a warning rather than dismissal. Tribunals often accept that an employer is entitled to assume that there is a safety risk in drug taking or drinking without there being any evidence. So a worker up on disciplinary charges connected with drugs or alcohol would do well to provide evidence that there was no safety risk. The Transport and Works Act 1992 creates a number of criminal offences aimed at workers controlling vehicles (trains, trams, and so on) whilst being unfit through drink or drugs. In some workplaces, for example there may be an absolute prohibition on possession of alcohol or drugs. Drug and alcohol screening The Transport and Works Act 1992 led to employers such as British Rail and London Underground to introduce drug and alcohol tests. Testing may not be carried without the employee’s consent. Consent may be obtained by making it a standard term in the contract of employment that employees consent to such tests. The employer may require employees not to have any trace of the prohibited substance in their bloodstream. This gives rise to particular problems when applied to drugs as some soft drugs are detectable for more than a month after consumption. Whether or not dismissal is justified in circumstances of traces that may have been consumed off duty and give rise to no impairment in performance is doubtful in employment where no breach of the criminal law is involved.
13.5
EQUAL PAY
Women are entitled not to be discriminated against by having less favourable terms of employment including pay if they are doing work that is the same as, or broadly similar to, that of a man in the same employment or employed in the same service, or if they are covered by a job evaluation scheme that gives them similar scores to a man doing different work, or if they are doing work which they consider to be of equal value to a man’s. Pay is widely defined and includes all aspects of remuneration including pension contributions. If your job and that of the man you are comparing yourself with have been jobevaluated and your job scores less than his, you will have to prove that the scheme
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discriminates by, for example, giving undue weight to characteristics and abilities commonly possessed by men, or undervalues those of women. You can also compare yourself with a man who is doing work that is of ‘equal value’ to yours whether or not his job has been evaluated under a job evaluation scheme. In these circumstances you may have quite different jobs. You make your claim to a tribunal, which will decide in a claim of equal value whether to refer your claim for analysis to an independent expert appointed under the Equal Pay Act or decide the issue themselves. Unless your employer can convince the tribunal that there are no ‘reasonable’ grounds for making the comparison, your claim is then assessed. If an expert is appointed to carry out the assessment, the tribunal may accept or reject the expert’s report. Your employer may defend the inequality in a claim under any part of the Equal Pay Act by saying that the difference is genuinely due not to sex but to a ‘material factor’ which is not sex discriminatory. If women generally are paid less than men for like work or work of equal value, the material factor has to be objectively justified by the employer. This means that the employer will have to prove that the reason for the higher male pay corresponds to a real need on the part of the employer and is appropriate and necessary. Reasons for the inequality of pay put forward as material factors may include additional responsibility, the pressure of market forces, seniority. However, if you can show that the reasons themselves are discriminatory such as seniority favouring men as they on average have longer service the defence should fail. If you win, the tribunal can award arrears of pay for up to six years prior to the making of the claim and can change the terms of your contract to give you equality.
13.6
MATERNITY RIGHTS
The ERA 1999 has introduced improved maternity rights for women. All pregnant employees have essentially three rights: to be paid time off for antenatal leave, to 18 weeks’ ordinary maternity leave, and not to be dismissed on account of her pregnancy. Employees with at least six months’ employment are entitled to statutory maternity pay for up to 18 weeks. Additionally, all employees who have been continuously employed for at least one year at 11 weeks before the expected week of childbirth are entitled to an additional period of maternity leave. This starts immediately after the end of the 18th week of ordinary maternity leave and lasts for up to 29 weeks following the birth of the baby. If your employer suspends you from your work during your pregnancy on health and safety grounds you must be paid. In order to be entitled to maternity leave, you must notify management in writing at least 21 days before the start of your leave of your pregnancy, the expected week of childbirth and when you intend to go on maternity leave. If you are eligible for additional maternity leave rights, it is presumed that you will take this extended leave unless you notify your intention to return early to the employer. If you wish to return before the end of ordinary or additional maternity leave, you must give your employer 21 days’ notice.
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•
You can also be asked in writing after your confinement to confirm your intention to return.
•
Your employer can seek medical confirmation.
You may be entitled by your contract or collective agreement to be paid while you are on leave, and to be paid above the minimum statutory maternity pay (SMP) levels. You can take advantage of whichever is better. SMP is available if you have been employed for 26 weeks including the 15th week before the expected week of confinement, SMP is available from the eleventh week before confinement and lasts for 18 weeks. You are entitled to SMP at 90 per cent of your average earnings for the first six weeks of absence and twelve weeks’ pay at the lower rate of £60 in 2000. Pregnancy dismissal It is automatically unfair to dismiss you for a pregnancy-related reason or to fail to offer you a suitable available vacancy. If a redundancy has occurred during your maternity leave and it is not reasonably practicable to give you your old job back, you must be offered suitable alternative employment on no less favourable terms. It will also be discrimination on grounds of sex to dismiss a woman for pregnancyrelated reasons (see Chapter 9).
13.7
PARENTAL LEAVE RIGHTS
From 15 December 1999, all employees who have been employed continuously for one year have rights to take parental leave for the purpose of caring for a child. The right applies to all employees whose children are born or have been placed for adoption after 15 December 1999 (however, this restriction is subject to challenge on the ground that it is incompatible with EC law). In such cases each parent has the right to take up to 13 weeks’ leave for the purpose of caring for each child until the child’s fifth birthday or in cases of adoption, the fifth anniversary of adoption or until the adopted child’s 18th birthday (whichever is the sooner). A maximum of four weeks’ parental leave may be taken in a year, and this leave can only be taken in minimum blocks of one week’s duration. Any period requested less than one week counts as one whole week. The leave is unpaid unless the employer agrees otherwise. Parents of disabled children are able to use their leave over a longer period, until the child’s 18th birthday. Whether a child is disabled or not is determined by whether they are entitled to disability living allowance. During the leave period, the contract of employment continues, and on your return, you are entitled to carry out the same job, and on the same terms and conditions as before. The mechanics of taking leave will be contained in a relevant collective or workforce agreement, or if none exists, then the default provisions contained in accompanying Regulations apply which provide for specified periods of notice for requesting leave to be given by the employee. Employers have a limited right to postpone the leave by up to six months in certain instances. However, fathers who wish to take parental leave immediately after the birth of their child, or when the child is placed for adoption, can do so if they have given their employer at least 13 weeks’ notice of this before the expected week of childbirth or adoption. This
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leave cannot be postponed by employers under any circumstances. Employees can seek to complain to a tribunal if their employer infringes these rights, and a dismissal for exercising or seeking to exercise these rights will be automatically unfair. .
13.8
TIME OFF TO CARE FOR DEPENDANTS
From 15 December 1999, all employees, regardless of length of service, have the right to take a reasonable amount of time off to deal with family emergencies. Such absences are unpaid unless the employer agrees otherwise. The rights apply only to those providing care to a dependant which includes the worker’s spouse, parents, children, or another person living in the same household who is not a tenant, boarder or lodger. Additionally, the right extends to any person who reasonably relies upon the employee for the purpose of providing assistance or making arrangements. Family emergencies include instances connected with the death, illness or injury of a family member, or where a dependant gives birth. The right also exists where an unexpected disruption has arisen in relation to care arrangements for a dependant, or where an incident occurs involving the worker’s child at school. You must inform your employer of the reason for your absence as soon as is reasonably practicable, as well as when you expect to return to work, unless this is impossible. You can bring a claim against your employer for unreasonably refusing to allow you to take time off.
13.9
HEALTH, SAFETY, SICKNESS AND DISABILITY
Health and Safety at Work Act 1974 This Act imposes duties on all employers to ensure so far as is reasonably practicable the health, safety and welfare of their employees. This means providing safe plant and systems of work, and making arrangements for the safe handling, storage and transport of all articles used at work. Information, instruction, training and supervision should be provided so as to ensure employees’ health and safety. If management break these obligations, the Health and Safety Executive inspectors can issue prohibition or improvement notices requiring the work to be stopped or the machinery to be improved. They also have power to prosecute. If your trade union is recognised for collective bargaining, you have the right to appoint union safety representatives who are given rights under the Act to time off with pay and to carry out inspection of the workplace and of relevant documents. Employers must consult safety representatives on health and safety arrangements. Claims for time off can be made to a tribunal or complaints about safety can be made to the Health and Safety Executive. Regulations and a Code of Practice set out employers’ obligations to provide firstaid facilities, including first-aid boxes and trained first-aiders, the number depending on the nature of the risk and the number of employees. In hazardous workplaces, there should be one qualified first-aider where more than 50 persons are employed and two where more than 150 are employed. Accidents and industrial diseases causing the loss of more than three days’ working time must be notified to the Health and Safety Executive.
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The Fire Precautions Act 1971 requires a fire authority to give a certificate to the occupiers of any workplace other than low-risk premises where an exemption has been granted or when there are fewer than 20 employees. This imposes duties on employers to ensure that fire precautions and means of escape are provided and maintained. Employers must keep workplaces clean, at a reasonable temperature (a minimum of 16ºC or 13ºC when the work requires severe physical effort), free from humidity, well ventilated, well lit, well provided with toilets and clean floors. Dangerous machinery must be guarded or, when this is not practicable, other suitable steps taken. Cranes must be kept in good mechanical order and be regularly inspected. If you are working on processes involving danger to your eyes, you must be provided with and wear eye protection. Adequate drinking water and washing facilities must be provided. The atmosphere must be kept free of harmful dust and fumes. Some of these obligations apply in all circumstances – they are ‘absolute’ duties and any breach of them will be a breach of the law. On the other hand, some depend on what is practicable, in which case a lesser standard will suffice. Many of these obligations arise from regulations implementing EC directives, which came into force on 1 January 1993. They replace many of the previous Factories Act 1961 provisions. Specific regulations cover, for example, working with asbestos, wood, civil engineering, lead, and nuclear radiation and in foundries. Sanctions For breach of any of the above, the Health and Safety Executive may bring proceedings in the criminal courts and may issue prohibition and improvement notices. Compensation In addition to possible prosecution, many breaches of the above laws give rise to claims by injured workers for breach of statutory duty or negligence. Every employer is under an obligation to provide: •
A safe system of work.
•
Competent staff, that is, if another worker is careless you can sue the employer for failing to supervise him or her.
•
A safe place of work.
•
Safe and adequate plant, machinery and materials, and adequate supervision.
A civil claim is made in either the County Court or the High Court depending on the seriousness of the injury or the disease you have contracted. Legal Aid is available. You must claim within three years of the injury or disease, although you can sometimes claim later if you did not know that you were suffering from an injury or disease which is attributable to your employer’s negligence. If successful, you will be awarded damages to compensate you for your injury and for financial losses such as loss of wages and expenses. Sick pay Many contracts and collective agreements contain arrangements for payment during times of sickness. If these are better than the minimum statutory sick pay
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(SSP) you are entitled to them by your contract. If you have made sufficient social security contributions, you will be entitled to SSP, payable by your employer. Provided you earn more than the lower earnings’ level (£67 in 2000) you qualify for SSP for the first 28 weeks of absence, excluding the first three days. You get SSP at one flat rate (which was £60.20 in 2000). You are entitled to no more than 28 weeks’ SSP in any three-year period.
13.10
DISMISSAL
The termination of a contract of employment by your employer is a dismissal. It can take many practical forms. You may be dismissed with or without or with less than your contractual notice. You may be made redundant or offered early retirement. You may resign in protest at your employer’s words or behaviour – this is called constructive dismissal if your employer’s action is serious enough. You may be given an ultimatum in which you can either resign or be dismissed. You may be the victim of a process of ‘squeezing out’ over a period of time. If you are on a fixed-term contract, management may refuse to renew it on its expiry. Or they may refuse to take you back after a strike, or to re-engage you after your dismissal during a strike. Or they may refuse to offer you a job after you have been on maternity leave. In reality, there are only two kinds of dismissal in law upon which you can take action. You can either claim wrongful dismissal, which is when you are given less than your contractual period of notice or denied access to agreed procedures prior to dismissal (that is all it means); or you may claim unfair dismissal because the reason given by your employer, or found by a tribunal on your claim, is insufficient, and management acted unreasonably in dismissing you for that reason in all the circumstances (ERA). Notice You are entitled to periods of notice depending on your length of service and the written statement must include a note of your contractual entitlement. After one month’s service you are entitled to one week’s notice and thereafter at the rate of one week for each year of service, up to a maximum of twelve weeks. Of course, your contract may provide for longer periods than this, but if nothing is said, you are entitled to a ‘reasonable’ amount of notice, which may exceed the statutory minimum. If you do not get your contractual or statutory notice, you can claim in the tribunal or sue for breach of contract in the County Court. If you have been denied access to a contractual procedure for challenging dismissal, your notice period is extended by the notional period during which you would have pursued your rights internally. You lose your right to notice if you are dismissed for gross misconduct, a term not defined in any statute but taken to mean conduct by you which shows that you no longer intend to be bound by the contract and which, if proved, deprives you of your rights. Reasons for dismissal Provided you have been employed for one year at the date of dismissal, you are entitled to particulars, in writing, of the reasons for your dismissal. Following a
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written request, management must provide them within fourteen days. If this is not forthcoming, you can make a claim to a tribunal, which has the power to declare the reason for dismissal and to award two weeks’ pay. If you are claiming unfair dismissal, you should seek written particulars in any event and add this to your claim if management does not comply. Unfair dismissal In order to claim unfair dismissal, you must have been continuously employed for at least one year unless you are claiming on the basis of: race; sex; trade union discrimination; dismissal related to pregnancy; national minimum wage; working time rights; health and safety activities; making a protected disclosure; or where in good faith, you seek to exercise a statutory employment protection right. You can claim at any stage up to the age of 65, unless there is a lower normal retirement age at your workplace If you bring a claim to a tribunal management must show what the reason was for your dismissal. Some dismissals are automatically unfair, for example, a dismissal for a pregnancy-related reason, or because the employee was an employee representative, or the reason for the dismissal was because the employee had made a complaint against the employer that his or her statutory rights had been infringed (ERA). If the dismissal does not fall into one of these categories, the reason for the dismissal must fit into one of the following categories: conduct, capacity, redundancy, a legal restriction (for example, not having proper working papers), or some ‘other substantial reason’ which could justify the dismissal. Few employers have difficulty putting forward a reason, so the main dispute focuses on the reasonableness of the employer in deciding to dismiss for that reason. Since the circumstances in which dismissal arises are numerous and varied, there is not space here to deal with this complex area of the law. Clear rules have emerged for dealing with sickness, reorganisations, criminal acts committed within the employment context, poor performance and refusal to obey instructions. Nevertheless, each case is to be treated on its own merits and tribunals on the same facts could reach quite different conclusions. Remedies for unfair dismissal If you win your case, the tribunal must first consider whether you wish to be reinstated and, if so, must decide whether it is just and equitable to order that. If not, compensation should be awarded to take account of the losses you have suffered up to the date of the hearing and the amount of time you are likely to be unemployed, or if you have a job, to compensate you for any loss in pay in the new job. If you have claimed unemployment benefit, the amount of benefit you have received is deducted from the award of compensation. In addition, you should also get a payment equivalent to a redundancy payment (see below) which is called a basic award. After dismissal, you must take steps to try and find alternative work and if you do not, your compensation may be reduced by a percentage. Also, it may be reduced and the tribunal may refuse to order reinstatement if you have contributed to your dismissal by your own actions.
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In 1994–95, only 39 per cent of applicants who reached a tribunal hearing succeeded. The median award of compensation in 1998–99 was £2,388. Reinstatement was awarded in 0.8 per cent of successful cases. Breach of procedure The existence of a disciplinary procedure in your contract of employment or collective agreement is important for both unfair and wrongful dismissal. If you are denied your rights, you may claim an injunction in the High Court to prevent management acting upon your dismissal or taking other disciplinary action until the procedure has been exhausted. This means you are to be treated as still employed, although perhaps not being required to work, until the full trial of your case for wrongful dismissal. You can get legal aid for this. Also, in unfair dismissal proceedings, a failure to go through either the agreed procedure or to adopt the rules of natural justice (giving notice of an allegation, an opportunity for you to say what you think, and an open-minded management) may result in the dismissal being unfair. In other words, a potentially fair dismissal can be made unfair if proper and reasonable procedures are not followed.
13.11
REDUNDANCY
Redundancy occurs where your dismissal is wholly or mainly attributable to the fact that management’s requirements for work of the particular kind you are employed to do has ceased or diminished, either temporarily or permanently. If you are dismissed for this reason, or put on short-term working (receiving less than half pay) or are laid off for four weeks or more, you can claim a redundancy payment (ERA). The payment is based on your age, length of continuous service and weekly pay. You are entitled to one and a half weeks’ pay for each year of continuous employment when you are aged between 41 and 63 inclusive, one week’s pay between the ages of 21 and 40 inclusive, and half a week’s pay for each other year. Weekly pay does not include all your earnings and so, for example, voluntary overtime is excluded but regular commission and bonuses are included. The maximum weekly pay allowable for redundancy purposes is £230 (2000). You lose your right to a redundancy payment if you turn down an offer made by your employer to re-engage you on a new contract if the offer is of suitable alternative employment – the kind of work which would be regarded as suitable for you – and you have unreasonably refused to take it. The unreasonableness is judged by what your own circumstances are. Before you are made redundant, you have a right to claim a reasonable amount of time off with pay in order to look for work or to retrain. And, if you accept an offer of new employment with the same employer or one of its associates, you have the right to a four-week trial period during which time you can quit the job and be regarded as redundant. In other words, you do not prejudice your rights by taking the job for a trial period. You need two years’ continuous employment to qualify for redundancy pay. Your entitlement to redundancy pay is reduced if you have reached the age of 64.
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If management dispute that there is a redundancy situation, for example, by claiming that there has simply been a reorganisation of the business without any lessening of the requirements for employees, or if you dispute the amount of money paid to you, you can make a claim to a tribunal. If your employer has gone bust, you can make a claim for redundancy pay and other outstanding debts including notice and holiday pay to the Secretary of State for Employment (ERA). Consultation If an employer is proposing to make at least 20 employees redundant within a period of 90 days or less there is an obligation to consult employee representatives about a proposal to make any dismissal (TURER). There is a minimum consultation period: 30 days if 20 or more employees are to be dismissed, 90 days for 100 or more. Employee representatives are either trade union representatives or representatives appointed or elected by the employees. If a trade union is recognised in respect of affected employees, then the employer must consult the trade union representatives even where there already exist elected employee representatives in the workplace. If the union or any employee representative claims that there has been no or inadequate consultation, it can make a claim to a tribunal which can then make a ‘protective award’ of compensation in favour of the employees who have been dismissed without the necessary consultation having taken place. Takeovers, mergers and transfers If the business in which you work is transferred as a going concern to another employer, the Transfer of Undertakings Regulations 1981 protect your terms and conditions with the new employer. Recognition of your union and all your contractual terms go over to the new employer. If you are dismissed as a result of the transfer, you can claim unfair dismissal, which will be automatically unfair unless management proves that the dismissal was on account of an organisational or technical reason associated with the transfer. The employer must provide information as to the transfer and consult as to any measures affecting the employees which either the present employer or the new employer envisages will be taken in connection with the transfer. The information and consultation must be with trade union representatives or where there are no such representatives, either representatives elected for the purpose of the consultation or appointed or elected for general purposes.
13.12
INDUSTRIAL ACTION
The ERA 1999 extends protection from unfair dismissal for workers who take strike or other industrial action. In the United Kingdom, trade unions are permitted to organise some forms of industrial action and may be immune from legal liability. They do not, however, have the right to organise industrial action. What is regarded as a fundamental or constitutional right in other countries becomes an immunity from some forms of civil action in the courts in the UK. Persuading people not to work and to break their contracts has always been unlawful in common law. If it is done in contemplation or furtherance of a trade dispute, as narrowly defined by the
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Trade Union and Labour Relations Act 1974, and if a ballot in favour of the action has been held, union leaders are ‘immune’ from normal civil liability. Restrictions on the freedom to strike are placed on police and prison officers, apprentices (who must make up the time) and merchant seafarers; limited action by postal workers is also restricted by law. A trade dispute is a dispute between workers and their own employer about terms, conditions, suspension, duties, engagement of workers, allocation of work, discipline, union membership, negotiating procedures and union facilities. In the course of such a dispute you can persuade people not to work. But if you do it on behalf of the union because you are a lay or full-time officer, or if the union adopts your actions, the union must conduct a ballot, and such calls for action will only be lawful if taken within four weeks of the result of a successful ballot or a further four weeks if agreed by the employer. The ballot must ask all those at work at the time of the ballot who are likely to be asked to breach their contracts whether they are in favour. Small accidental mistakes in the ballot will not invalidate it. It does not matter what form the industrial action takes – it can be a strike, work to rule, ban on overtime (whether it is voluntary or compulsory), withdrawal of cooperation, boycotts – they are all forms of industrial action. A trade union organises ‘official’ industrial action in circumstances where they have acted lawfully and are therefore immune from liability and complied with the balloting requirements. This is significant as workers who participate in official industrial action are protected from dismissal by their employer. In such cases, it is automatically unfair for an employer to dismiss an employee for taking part in official industrial action within a period of eight weeks starting from the date the employee began to take industrial action, or at any time after the eight-week period if the employee stopped participating in industrial action before the end of the eightweek period. In some cases, it will be automatically unfair to dismiss an employee who continues to take industrial action after the end of the eight-week period where the employer has failed to take appropriate and reasonable procedural steps to resolve the dispute. Where a dismissal is automatically unfair, an employee may be entitled to be reinstated to their old job. A union can be sued for damages if it organises industrial action which is unlawful. Much ‘secondary action’, that is, action taken against an employer who is not a party to the main trade dispute, is unlawful. If the union has organised this, an injunction can be granted to prevent it, and claims for damages of up to £250,000, depending on the size of the union, can be awarded. If employees take unprotected industrial action and the employer dismisses all those taking the action at the same workplace and none is re-engaged within three months, none of them has any claim for unfair dismissal. After the three-month period, selective re-engagement is permissible. This means that if you take part in unofficial or unprotected industrial action, you are always at risk whatever the form of industrial action. Employers sometimes withhold pay for all or part of the time that you have been engaged in limited industrial action. They are entitled only to deduct a proportion of pay representing the proportion of your time lost by your action. Action in pursuit of union membership agreements (the closed shop) is always unlawful.
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Picketing of your own workplace (but nowhere else) during the course of a dispute is lawful provided that your purpose is peacefully to persuade people not to work or to communicate information. A Code of Practice (and one court decision) recommends that there be a limit of six pickets on each entrance, but different numbers may be appropriate in different circumstances. Offences under public order legislation are the most likely criminal charges to arise out of picketing.
13.13
HUMAN RIGHTS
The Human Rights Act 1998 incorporates most of the rights contained in the European Convention of Human Rights into UK law. It came into effect on 2 October 2000. It has potential to provide workers with greater protection in the workplace. The rights in the Convention are set out in Chapter 5. Courts and tribunals will be under a duty to act in compliance with and give effect to Convention rights so far as is possible when interpreting legislation and when considering case law. If a court considers that the legislation is incompatible with Convention rights it may make a declaration that it is incompatible. When a declaration of incompatibility has been made the legislation may be amended by a Minister. Until this happens the legislation continues in force. The result of the Human Rights Act is that workers whose Convention rights have been infringed by their employer may rely on the Convention in domestic courts rather than having to go before the authorities in Strasbourg. It is unlawful for a public authority to act in contravention of the Convention unless it does so as a consequence of legislation which does not allow it to act differently. A public authority includes a court or a tribunal. You can bring a claim against a public authority where you claim it has acted in contravention of Convention rights. Rules of court will set out which court or tribunal is appropriate. They were not published at the time of writing. The Act does not define which bodies are public. Some bodies such as local authorities are clearly public. Others such as privatised services which carry out some public functions may or may not be. The Lord Chancellor has indicated that the definition of public authority will cover those bodies which are obviously public in nature, but will exclude those that fall somewhere between the public/private divide. Apart from claims brought against a public authority, Convention rights are not free standing under UK law. In such cases, workers can rely on the Convention rights if there is scope for the courts and tribunals to interpret legislation or construe case law in accordance with the Convention. In doing so, courts and tribunals are obliged to consider decisions of the Strasbourg authorities, although these are not binding. The overall effect that the HRA will have in increasing workers’ rights is difficult to assess at present. Many Convention rights are severely limited in scope, but the new emphasis on human rights will give much needed scope for raising issues for the first time before the tribunal. The convention rights most relevant to workers are summarised below, with some indication of their likely impact.
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The right to a fair trial (Article 6) Where claims are brought by workers, Article 6(1) provides that there must be procedural fairness in the conduct of the litigation. This includes conduct of litigation before the hearing. One area of controversy surrounds the extent to which the Government is obliged to provide Legal Aid for cases brought before employment tribunals. At present, Legal Aid is not available for employment tribunal claims, but it can be obtained for appeals made to the Employment Appeal Tribunal (EAT). Although it is permissible for a State to restrict the provision of Legal Aid on the basis of the prospects of success of a case and on the basis of limited public funds, there is scope to argue that the blanket denial of Legal Aid for tribunal cases infringes the right to a fair hearing in some instances. The European Court of Human Rights has held that the denial of Legal Aid can undermine an individual’s right of effective access to a court. Whether this is so will depend upon the facts of each case. In particular, this will depend upon the degree of complexity of the judicial or tribunal procedure relating to the claim, as well as whether the litigation is likely to involve complicated points of law or the use of expert witnesses. In such cases, it may not be legitimate for workers to represent themselves, as the right to a fair hearing would be compromised. This is not to say that Legal Aid should be granted in every case. It is at least arguable that, given the complex procedure and law involved in an equal value claims, in an appropriate case, Legal Aid should be granted in order to ensure the worker is afforded a fair hearing. This matter however awaits judicial resolution. The right to respect for private and family life, home and correspondence (Article 8) Traditionally, there was no general privacy law in this country. However, Article 8 of the Convention provides that everybody has the right to respect of his/her private life, and correspondence (except where restrictions are necessary, for example in the interests of public safety or for the prevention of crime and/or disorder). This right is important in the employment context. There are numerous Orwellian devices enabling employers to intrude into the privacy of workers, including monitoring telephone conversations, e-mail communications, reading correspondence, video surveillance, intimate searches, drug and alcohol testing as well as through means of detailed questionnaires when applying for positions and psychometric testing. Under the HRA such types of interference potentially violate the right to privacy guaranteed by Article 8 and may be open to legal challenge. The European Court of Human Rights decided that police surveillance of Alison Halford’s telephone calls while she was an employee breached Article 8, in doing so it also firmly emphasised the far reaching protection afforded to workers by Article 8. The Court stated that telephone calls from business premises might form part of the worker’s right to privacy. As she had not been warned that calls made from her office phone would be liable to interception, combined with the fact that she had not been told that she could not use the phone to make personal calls, she had a reasonable expectation of privacy for such calls which was violated by the act of police surveillance. In contrast, in a Swedish case the court accepted the need of the State to collect information and maintain secret dossiers on candidates for employment in sensitive jobs, where there might be threats to national security. The
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Government had to identify those exceptional conditions and special jobs. There also had to be measures to ensure that the Government was not abusing its powers. Current legislation (the Interception of Communications Act 1985) makes it an offence to ‘intercept’ post or communications without a warrant; however, it does not cover eavesdropping on an employer’s own telephone system. In the light of the Halford decision, the Government has drafted the Regulation of Investigatory Powers Act 2000, which makes it unlawful to listen to calls without authority. This has also prompted OFTEL to produce guidance for companies who record telephone conversations for business purposes. This guidance focuses on the reasonable expectation of privacy that employees are entitled to at the workplace under Article 8. It is no longer sufficient merely to warn workers that their telephone conversations at work may be recorded or monitored in order to remove their expectation of privacy as it is unreasonable to assume that workers will never make or receive calls touching on personal or intimate matters. One solution would be for employers to provide workers with access to a telephone where they could make or receive personal calls, which would not be recorded. The Regulation of Investigatory Powers Act will also apply to use of electronic mail at work as workers are entitled to have a reasonable expectation of privacy at work. Merely informing workers that their e-mail system is being monitored is not enough as circumstances may arise where they may need to make or receive mail touching on personal matters. The right to privacy does not mean that employers can no longer monitor what workers do at the workplace. There are acceptable limits of interference with workers’ privacy. Employers are permitted to monitor workers in so far as this is necessary and proportionate to management’s reasons for so doing. It may be permissible for an employer to retain itemised call and e-mail records in order to detect misuse. This is less intrusive than monitoring such communications in their entirety. A large number of employers now employ video surveillance on their premises and require workers to wear name badges, particularly in the retail and banking industries. The former may be related to reasons of security and would, in most cases, be viewed as reasonable in the circumstances. Excessive surveillance, for example, in changing rooms, may be viewed as unreasonable. The wearing of name badges has come to be perceived as a useful tool in customer relations, and, again, will usually be justified on these grounds, as well as security. In addition to Convention rights, there is an implied term in the contract of employment that employers will not without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy, or seriously damage, the relationship of confidence and trust between themselves and their employees. If an employer opens your personal mail or tapes your telephone calls, their conduct may be interpreted as breaching this term, entitling you to resign and claim unfair constructive dismissal (see p. 345). Some employers have introduced alcohol and drug screening of workers, but as a matter of law an employer is unable to do so without your consent. The same requirement applies to searches for drugs and alcohol. If such searches are contracted out to a third party such as a security firm, then this should be the subject of a specific provision within your contract of employment. If you refuse to consent to a search, whether or not there is a specific provision within the employment contract, it would be an assault to proceed with the search, and you may be entitled to resign in protest,
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claiming constructive dismissal. For this reason, your contract of employment may provide that refusal to co-operate with a search is a disciplinary offence. The right to privacy also encompasses issues of sexual orientation. In the Smith and Grady case, the European Court of Human Rights regarded sexual orientation as a most intimate part of an individual’s private life. It decided that the Ministry of Defence policy prohibiting homosexual personnel from serving in the Armed Forces, as well as the inquisition system specifically designed to ascertain the sexual orientation of the ‘suspect’, infringed the right to respect for their private lives. This decision equally affects all employers. Unless particularly strong justification exists, employers cannot subject workers to detrimental treatment on grounds of their sexual orientation. Freedom of thought, conscience or religion (Article 9) There is an absolute right to believe but the right to manifest your belief may be made subject to law in the interests of matters such as safety and public morals and protection of the rights and freedoms of others. This right overlaps to a large extent with the right to freedom of expression which is covered in greater detail below. It is clear that workers receive greater protection in relation to holding beliefs rather than when voicing them at the workplace. As there is no protection from discrimination on grounds of religion in Britain (unlike Northern Ireland) if a worker is required by his employer to take action contrary to his religious belief in circumstances where it is not discrimination on grounds of race, Article 9 may be relied upon. For example dress requirements. In one case a Rastafarian was dismissed for having dreadlocks. He did not succeed under the Race Relations Act as it was held Rastafarians were not an ethnic group. He would now be able to rely on Article 9 directly against his employer if it was a public authority. He might also be able to claim discrimination (see Chapter 9). Freedom of religion has not been afforded such extensive protection as might be expected in the employment context under the Convention. One way of manifesting beliefs is to ask for time off to pray or attend religious ceremonies. In one case a Muslim teacher employed by an ILEA asked for time off to attend prayers every Friday. He was offered variation in his working week to a 412⁄ -day week, but refused the offer. The Commission ruled his application was inadmissible as the ILEA had given due regard to Article 9 in offering to reduce his hours and he was not entitled to absent himself from work in breach of his contract of employment. Similarly in 1997 a woman who objected to Sunday working had her claim declared inadmissible as she had been dismissed for refusing to work her contractual hours and she had the option of resigning. The unsatisfactory justification for this approach is that when a worker appreciates that their contract conflicts with their religious beliefs, the freedom of religion is guaranteed in that they are free to resign. It is perhaps surprising therefore that a worker is capable of bargaining away their rights to religion with such ease. It remains to be seen whether domestic courts and tribunals will choose to follow such a restrictive interpretation of freedom of religion. Freedom of expression (Article 10) The right to freedom of expression is made subject to a long list of matters including such formalities, conditions, restrictions, or penalties as are prescribed by law and
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necessary in a democratic society for a number of reasons including the interests of national security, public safety and crime and disorder. Freedom of expression includes the worker’s right to communicate their beliefs, opinions or other information by words, images, pictures or actions intending to communicate an idea. It also covers issues such as dress codes and appearance at work. The Strasbourg authorities have not given clear guidance on the scope of this right as each case is decided on its own facts. What is clear is that this right is severely limited. This is because of the competing rights between a worker’s freedom of expression and the employer’s right to manage the workplace. It is also clear that under the Convention you may restrict your freedom of expression by your contract of employment to an extent provided that you have freely agreed to this. To this extent, the rights to expression can be bargained away by the worker upon agreeing contractual terms. The scope of the freedom of expression depends upon a number of factors, including the method and manner in which you express opinion or criticism, as well as the nature of the opinion. In one case, the dismissal of a teacher for criticising her employer on television for refusing to promote her on grounds of her sexual orientation was held not to violate her freedom of expression under Article 10. The Commission considered that the scope of her freedom of expression was partly determined by reference to her contractual duties and responsibilities. Therefore, it was relevant that she had accepted a responsible post in the education sector and had accepted certain restrictions on the right to freedom of expression by virtue of her professional responsibilities. Her suspension without pay was capable of being reasonably justified for the protection of the reputation of the teaching institution where she worked and also her superiors. However, the extent of your contractual duties does not mean that your freedom of expression is always limited. Courts are likely to consider whether the allegations are supported by evidence, and also whether the matters have been raised and addressed internally. The manner in which the freedom of expression is exercised is also likely to be a relevant in deciding whether there has been a breach of Article 10. The Commission has stated on numerous occasions that where a worker is openly abusive and offensive in criticising superiors, then sanctions can be imposed not because of the fact of the criticism levelled, but on grounds of the way in which this was raised. Other considerations include the need to protect the reputation of those criticised as well as whether the worker has disclosed information of a confidential nature. The issue of freedom of expression also featured in the cases brought against the MOD regarding its previous policy prohibiting homosexual personnel from serving in the Armed Forces. Although the European Court did not consider the issue fully, it was not prepared to rule out that this policy violated their freedom of expression. In addressing the issue it considered that the operation of the homophobic policy effectively silenced personnel in relation to their sexual orientation and also created a constant need for vigilance and secrecy. To this extent, the policy clearly amounted to an unacceptable restriction of their freedom of expression. Therefore, where an employer operates a homophobic policy, or dismisses workers on the basis of their sexual orientation, this may amount to a violation of the worker’s freedom of expression. However, in the MOD case, the court indicated that if the sole reason for the detrimental treatment is the sexual orientation of the worker, then this is more appropriately to be dealt with as a violation of the right to
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privacy. This of course will not prevent workers from claiming that both of their rights to privacy and expression have been violated. It is also clear that freedom of expression covers the appearance and manner in which a worker chooses to dress. Such matters represent an outward expression of one’s personality. However, it is unlikely that the application of the Convention will have a significant impact upon an employer’s discretion to stipulate modes of appearance and dress in the workplace. This is mainly because your freedom of expression in this regard is likely to be limited by the express terms of your contract, or terms implied through dress codes or staff handbooks. Additionally, it is also arguable that the worker has given up their freedom of expression by acknowledging the employer’s general power to give instructions as to how the work is performed, which includes matters of dress and appearance. Freedom of assembly and association (Article 11) Article 11 gives everyone the right to freedom of assembly and to freedom of association with others, including the right to join a trade union. The usual limitations are placed on these rights such as permitting restrictions, which are necessary in a democratic society in the interests of national security or public safety or prevention of disorder or crime. In particular the Article permits the impositions of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. The rights in UK law to join a trade union and not to join which are required under Article 11, and to participate in union activities are covered in ‘Rights against employers’ (p. 325). The cases taken to the European Court under the Convention have not on the whole been in favour of upholding collective rights in respect of trade organisation and activities. For example, the court decided in a Swedish case in 1976 that there was no obligation on a State to conclude a collective agreement with a trade union on behalf of its members, though it did find that under Article 11 a trade union could present claims for its members, make representations on their behalf, and to negotiate. However, when a British union sought to complain that the House of Lords ruling in the 1995 Associated Newspapers v. Wilson case, which permitted an employer to pay more to employees who opt out of collectively agreed terms and conditions, was a breach of Article 11 the complaint was held to be inadmissible. Bringing a claim under the Human Rights Act You can only bring a claim if you are a victim of an alleged human rights violation. The HRA does not define what constitutes a victim, although it is clear that corporations can also bring claims as victims. A victim is someone who is directly affected by an unlawful act. Indirect victims who have suffered some harm may also bring actions. You need not show that your human rights have been violated, it is sufficient if you can establish that your human rights would or are likely to be contravened. Trade unions may also bring actions on behalf of members which they can identify as being directly affected by the alleged human rights violation, and provided that the union can demonstrate that it has authority to act on behalf of its members. The rules governing procedure are not yet published. If your claim arises from your employment it is likely that your Human Rights Act complaint should be made to an employment tribunal alongside any complaint you may have under the other laws dealt with in this chapter. The general procedure for making claims is
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dealt with below. Only the High Court can make declarations of incompatibility where UK statutes are in conflict with a convention right. An application requiring such a declaration would therefore have to be made in the High Court and may be by way of judicial review where the act of a public authority is at issue.
13.14
CLAIMS
Most claims in this chapter are brought before employment tribunals. Legal Aid is not available, initial advice under the Community Legal Service scheme for preparation and/or counsel’s advice can be granted. Appeals from tribunals go to the Employment Appeal Tribunal for which Legal Aid is available. Legal Aid is also available if you are taking a case such as an injunction to the High Court. Help can be obtained from the Equal Opportunities Commission, the Commission for Racial Equality or, in certain cases, from the Commissioner for the Rights of Trade Union Members. Claims in time The first point to check is whether you are in time to bring a claim. Deadlines are strict, usually three months from the action complained of. Make sure you fill in, or have filled in on your behalf, the ‘Originating Application to an Tribunal’ form (IT1) and that it reaches the Central Office of Tribunals for England and Wales, or for Scotland or for Northern Ireland, within the appropriate time. If you are not sure whether to pursue a claim or not it is best to send your claim form in well within the time limit. You can always withdraw your claim at a later date if you decide not to proceed with it. Documents The organisation against which you are claiming – usually an employer but sometimes a trade union – will reply in a set form. You may ask for further particulars of any matter they raise, and you can also be asked to give particulars. Before commencing proceedings in a race relations or sex discrimination claim, you may issue a questionnaire seeking to obtain information from your employer about the actions and policies you are challenging. If you have been dismissed, write a letter seeking particulars, in writing and within fourteen days, of the reasons for your dismissal. An important step in the proceedings is the ‘discovery of documents’. You are entitled to see all documents relevant to your claim, including internal notes and minutes, which are particularly important in respect of claims for discrimination. If the employers do not provide documents, you can seek an order from the tribunal to this effect. Representation You can be represented at a tribunal by anyone you like. If you are claiming unfair dismissal, the employers start the case and bring their witnesses. Otherwise you start. If you think the hearing is likely to last more than one day you should tell the tribunal so that they can fix a block of time for it. Otherwise the case will be adjourned with an interval in between.
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The case is generally conducted by the Chairman (the statutory term) who is a lawyer, but the tribunal also consists of a person nominated by employers’ organisations and one by employees’ organisations. They have an equal say in the decision. Awards Tribunals can award compensation, make recommendations of reinstatement or re-engagement, and order employers to rectify discriminatory acts and policies. Appeals Appeals on points of law go to the Employment Appeal Tribunal (EAT) in London or Edinburgh or to the Northern Ireland Court of Appeal. The EAT consists of a High Court Judge and a person nominated by employers and one by employees. Legal Aid is available. You may be represented by anyone you like at the EAT, and appeal from its decisions lies to the Court of Appeal, the Court of Session in Scotland or the House of Lords. This can only be on a point of law, and you must have the permission either of the EAT or the Court of Appeal or Court of Session in order to take the case further.
13.15
FURTHER INFORMATION
Useful organisations The best source of advice is your trade union. The TUC will direct you to an appropriate union. Their address is: Congress House Great Russell Street London WC1B 3LS Tel: 020 7636 4030 Advisory Conciliation and Arbitration Service (ACAS) Regional offices in Newcastle, Leeds, London, Bristol, Birmingham, Nottingham, Manchester, Liverpool, Glasgow, Cardiff and the Labour Relations Agency in Belfast. Commission for Racial Equality Elliott House 10–12 Allington Street London SW1E 5EH Tel: 020 7828 7022 Equal Opportunities Commission Overseas House Quay Street Manchester M3 3HN Tel: 0161 833 9244
Equal Opportunities Commission for Northern Ireland Chamber of Commerce House 22 Great Victoria Street Belfast BT2 2BA Tel: 0232 242752 Fair Employment Agency Andras House 60 Great Victoria Street Belfast BT2 7BB Tel: 01232 240020 Health and Safety Executive 2 Southwark Bridge Road London SE1 9HS Tel: 020 7717 6000 Labour Relations Agency Windsor House 9–15 Bedford Street Belfast BT2 7NU Tel: 01232 321442
Bibliography J. McIlroy, Industrial Tribunals, Pluto Press, 1982. R. W. Painter and K. Puttick, Employment Rights, Pluto Press, 1993.
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C. Palmer, Discrimination at Work, Legal Action Group, 1992. D. Pannick, Sex Discrimination Law, Oxford University Press, 1986. M. Rowland, C. Kennedy and I. McMullen (eds), The Rights Guide to Non-means-tested Benefits, Child Poverty Action Group (annually). E. Slade, Tolley’s Employment Handbook, tenth edition, Tolley, 1991. Lord Wedderburn, The Worker and the Law, Penguin, 1986.
Luke Clements and Rachel Morris
14
The Rights of Travellers
This chapter deals with: • • • • • • • • • • •
Definitions of ‘Gypsy’ and ‘Travellers’ Racism and discrimination The right to stop Evictions Policing The right to housing The right to education The right to healthcare The right to welfare benefits Travellers and the media Further information
As with most other rights under English law, you can do what you like, unless it breaches criminal law or someone else’s rights under civil law. As a Traveller, you are subject to broadly the same laws as anyone else. So you have the right to pass and re-pass on the highway, but no special right to stop and park your caravan or other vehicles. Although there is planning guidance from Central Government which encourages local planning authorities to consider the needs of ‘Gypsies’ (see definitions below), civil and criminal powers to evict people, or direct them to leave land, can be used against anyone, whether they are a ‘Gypsy’ other Traveller, or anyone else. In particular powers under the Criminal Justice and Public Order Act 1994 apply to what people are doing (trespassing) and not specifically to those who are doing it. A local authority has to consider the welfare needs of anyone it is considering whether to evict or direct to leave the land and should consider leaving that person on its land, if no great nuisance is being caused. The police ‘may’ consider welfare needs of people they are considering whether or not to direct to leave the land.
14.1
DEFINITIONS OF ‘GYPSY’ AND ‘TRAVELLERS’
The term ‘Travelling people’ is one often used in both the United Kingdom and Ireland. It can include: •
‘Gypsies’: who may be of English, Welsh or Scottish descent, and who have Romany ancestry to a greater or lesser degree. ‘Gypsies’ have a specific meaning for the purposes of planning and local authority law, as well as under the Race Relations Act 1976. When the word ‘Gypsy’ is used in relation to a planning or local authority obligation it means anyone (regardless of race or 358
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origin) who is of nomadic habit of life and who travels around for economic reasons. Under the Race Relations Act a different definition applies and this is considered in section 14.3 below. •
‘Irish Travellers’: who are a nomadic Irish ethnic group with a separate identity, culture, language and history. There are many Irish Travellers resident in the United Kingdom for all or part of the year.
•
‘Scottish Travellers’: who like Irish Travellers have musical traditions, language and other histories that date back at least to the twelfth century.
•
The Roma people who have moved to the United Kingdom from Central and Eastern Europe (of which UK Romany Gypsies are members).
•
People with a long family history of travelling because they work with fairgrounds and circuses (also known as ‘showmen’ or ‘showpeople’).
•
So-called ‘New’ Travellers, some of whom may be second- or third-generation Travellers and/or may have Gypsy ancestry.
(Note: The capitalisation of ‘Traveller’ is largely used in this chapter to make such people distinct from tourism-related travellers.) Many of the people listed above will not necessarily be living a nomadic way of life, but may have settled into bricks-and-mortar accommodation. Indeed, some Roma immigrants will never have lived in anything but housing, having been integrated or assimilated due to the historical and political developments in their country of origin. This is not to say that these people would not consider themselves as being Gypsies, Roma or other Travellers. Nomadism is only one of a number of cultural features of Gypsies and other Travellers. While it can be difficult for some ‘settled’ or ‘sedentary’ people to understand this, nomadism can be as much a state of mind as it is a way of life.
14.2
RACISM AND DISCRIMINATION
Gypsies have been a protected racial group under the Race Relations Act 1976 since the case of CRE v. Dutton in 1988. The Act applies to Great Britain (not Northern Ireland) and makes it unlawful to discriminate (directly or indirectly) against anyone on the grounds of race. It gives individuals a right of direct access to the civil courts and industrial tribunals for legal remedies for such discrimination. The Commission for Racial Equality (CRE), and local Race Equality Councils, can provide advice with regard to complaints of racial discrimination, and may in some circumstances assist individuals in taking cases under the Act. The contact details for the main CRE office in London, who can give details of local assistance, are given at the end of the chapter. The Dutton case found that a ‘No Travellers’ sign outside a pub indirectly discriminated against Gypsies. The Court of Appeal held that Romany Gypsies were an ethnic group within the meaning of the Act and that since many such persons were ‘travellers’ such a sign was likely to affect more of them than non-Romanies. In a more recent case taken by the CRE on behalf of two Gypsy women the court has found discrimination by a local authority in the way in which it treated them when providing a venue for a wedding reception.
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Until recently, the Act applied to the main functions of the private sector and its relationship with members of the public (that is, pubs, shops, and landlords). It has also prohibited direct and indirect discrimination by public bodies in the employment of staff and the provision of education, housing, goods, facilities and services. As a result of the findings of the Stephen Lawrence Inquiry Report in relation to ‘institutionalised racism’ the Government has presented to Parliament the Race Relations (Amendment) Bill. The bill if enacted will extend the duty not to discriminate on grounds of race (either directly or indirectly) to all functions of all public authorities including the police. It will also place a positive duty on public authorities to promote racial equality. Under section 71 of the 1976 Act local authorities already have a duty to ensure that their various functions are carried out with regard to the need to eliminate unlawful discrimination, and promote equality of opportunity and good relations, between people of different racial groups in their area. Under section 19A of that Act it is unlawful for a planning authority to discriminate against a person in the carrying out of its functions, including deciding applications for planning permission, enforcing planning controls and preparing development plans. Individuals who consider that they have been the victims of such discrimination may be able to seek remedies under the relevant planning legislation in addition to those under the Race Relations Act. The CRE web site defines ‘direct discrimination’ as: ‘less favourable treatment on racial grounds. In practice, either it must be obvious that the treatment is on racial grounds, for example racial harassment, or there must be evidence that a person of a different racial group in similar circumstances would not have received the same treatment’. ‘Direct discrimination’ is: ‘ concerned with the imposition of a condition or requirement – not necessarily formally adopted, but customarily operational within an organisation – that does not refer to race, but which in its application operates to the disadvantage of a particular racial group, as members of that group are proportionately less able to comply with the condition or requirement’. It is unlawful if it cannot be justified on non-racial grounds. Irish Travellers have been a protected racial group in Northern Ireland since the Race Relations (Northern Ireland) Order 1997 came into force. The statements above in relation to Great Britain also apply to them although, under the Northern Ireland Act 1998, the separate equality bodies in Northern Ireland – the CRE (NI), the Fair Employment Commission, the Equal Opportunities Commission (NI), and the Disability Council – were merged to form a new Equality Commission. The body has worked alongside the new Human Rights Commission for Northern Ireland since 1 October 1999, and it is the Equality Commission who would provide advice and assistance in Northern Ireland (see details at end of chapter).
14.3
THE RIGHT TO STOP
Where can you stop, legally, and park and live in a caravan? The answer to this is: a legal site. A legal site is: •
Own land: a piece of land you own, which has any necessary planning permission. You are the owner and occupier.
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•
Someone else’s land: a piece of land owned by someone else, including a local council, which is laid out as a site with any necessary planning permission, with a site licence and where the site operator and yourself have agreed you can stay. You are a licensee, with very limited rights if it is a local authority Gypsy caravan site.
•
Camping for short periods or for purposes of agriculture or forestry: a piece of land, not necessarily laid out as a site, where no planning permission or site licence for the parking of an inhabited caravan is required because you are doing seasonal agricultural or forestry work for the landowner (usually a farmer), or in a limited number of other cases where you are staying for short periods on open fields.
•
Land use of ten years’ duration: a piece of land where one or more caravans have remained continuously for over ten years and where no valid planning enforcement notice has been served nor planning application turned down during that time. In these cases, if you own the land or the landowner allows you to stay, you can apply for a Certificate of Lawful Established Use and Development (CLEUD) and that Certificate is the same as a full planning permission. If you can prove that caravans have been on the land since at least 1963 or even 1948, then the local planning authority will not be able to take planning enforcement action against that number of caravans or fewer.
Other than the four cases above, you may be liable to have planning (enforcement) action taken against you or be moved on. What follows is a checklist to help you identify not only how much the right to stop has been reduced, but also which powers may be used against caravans or other vehicles on any particular type of land. Own land Even if you live on land where you have freehold or leasehold title, you may still fall foul of the law. If it is not a legal site, you must get planning permission and a site licence. If you do not seek planning permission from your local district, borough or unitary council, it may decide to take out a planning enforcement notice (and even a stop notice) on you. A planning enforcement notice will require you to cease using the land as a site, after a specified date. A stop notice will require you to cease to do so immediately (under sections 183–185 of the Town and Country Planning Act 1990). However, if you later get planning permission to run a site, the local planning authority may have to pay you compensation if they have served a stop notice on you earlier. If you do not appeal against any enforcement notice, or you do not win your appeal, you can subsequently be fined, face High Court injunctions to prevent the occupation of your land, and even, finally, be imprisoned for contempt of court and have your land sold to pay unpaid fines. It is, however, rare for all these to happen. Stop notices can only be used in relation to the use of a caravan (and not other occupied dwellings) and therefore may be in breach of Article 14 (discrimination) and Article 8 (respect for one’s home). If you are able to show that your planning application has been turned down due to your race or ethnic group, there would have been a breach of the Race Relations
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Act 1976 (see above). If this has happened to you (or you suspect it has), contact the Commission for Racial Equality at the address at the end of this chapter. The Department of the Environment issued advice in England in 1994 on planning provision for Gypsy sites as Circular 1/94 (in Wales the Circular was issued by the Welsh Office as 2/94). The Circular emphasises the importance of local authorities making adequate Gypsy site provision in their Development Plans, with the Local Plans (Unitary Part II Plans) providing ‘detailed policies’ (paragraph 9). Planning authorities considering planning applications should always consider both the proposed use of the land and the personal circumstances of the applicant and their immediate family. If the Council turns down the application (or issues an enforcement notice, because no application has been made), the applicant or person enforced against may appeal to the Secretary of State for the Environment. That often results in an appeal hearing, and at least exchanges of correspondence before an appeal decision is made. In 1996 the European Court of Human Rights gave judgment in a case brought by June Buckley, a Gypsy. She had applied retrospectively to her district council for planning permission for her three caravans. Permission was refused and enforcement proceedings were taken against her. June Buckley argued that she had been prevented from living with her family on her own land and following a traditional Gypsy lifestyle, in breach of the right to respect for her private and family life under Article 8 of the European Convention. The Court found that Article 8 did apply to her case but on the particular facts the Court found by six votes to three that the Convention had not been breached because adequate account had been taken of her position in the planning proceedings. At the time of writing the decision is awaited of a further case by the European Court of Human Rights, namely Chapman v. UK (hearing 24 May 2000) where the Court is being urged to reverse the negative aspects of the Buckley decision. Someone else’s land Public land Between 1970 and 1994 there was a duty placed on local authorities in England and Wales (under the Caravan Sites Act 1968) to provide sites on which Gypsies could place their caravans and stay, either temporarily or permanently. In the early 1980s it became clear that many local authorities were not fulfilling this duty, and a 100 per cent exchequer grant was provided by Central Government to encourage them to do so. The Criminal Justice and Public Order Act 1994 repealed both the duty and the grant, and few sites are now being built. There is currently, in England and Wales, a network of Gypsy sites provided by local authorities upon which there are approximately 4,896 pitches for caravans. Unfortunately, due to the repeal of the site provision duty, local authority pitch numbers are reducing, with over 300 being lost in the last five years. Local authority sites may be permanent stopping places or for ‘transit’ use, and may have a number of facilities including water and electricity, or may be nothing more than a hardstanding upon which a caravan can be placed. Rents and terms and conditions for residency on these sites will vary between local authority areas, and many sites have a long waiting list for a vacant pitch. There were insufficient numbers of pitches to
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meet the needs of Travelling populations by 1994; the loss of pitches and population growth since then means that many more are needed. Public site residents are always given licence agreements rather than the tenancy agreements usually given to other residents in public accommodation. A licensee has far fewer rights than a tenant, with little protection against eviction. This has no legal or practical justification and is clearly discriminatory, and may be open to challenge under the Human Rights Act 1998. Travelling people have stopped on droves, ancient highways, green lanes, common land and other nooks and crannies of the British countryside for hundreds of years. There is no absolute right to stop on these places; many of which have vanished anyway, having been built on, classed as ‘protected land’ such as National Park or Site of Special Scientific Interest, or blocked off by public authorities to prevent incursion. Those Travelling people using the remainder to stop on, may face eviction by local or highway authorities or other landowners, or by the police (see ‘Evictions’ below). Private sites As there is no longer any duty to provide public sites, the Government expects that Gypsies and Travellers will make provision for themselves by purchasing parcels of land and seeking to obtain planning permission to live on that land if it does not already have such permission for residential use. A site licence is also required for any caravan site to be lawful; where planning permission is granted a site licence will automatically be issued, although it may have conditions attached such as how many caravans may be permitted, or what type of amenities a site must have. If permission has been denied, applicants may appeal to the Planning Inspectorate; there is a slightly higher success rate for applications on appeal. As with purchase of housing in the private sector, not all Travelling people wish or can afford to settle on one site of their own in this way. Those who do set up and live on such private sites and do not have planning permission may be subject to enforcement action to compel them to seek it (as outlined above).
14.4
EVICTIONS
Gypsies and other Travelling people may be subject to a number of legal powers to ‘move them on’ if they are on what is known as an ‘unauthorised encampment’. Lack of legal stopping places in the United Kingdom means that travelling is not necessarily a problem, but stopping may sometimes be. Whilst Protocol 4 of the European Convention on Human Rights protects freedom of movement, the United Kingdom has not yet ratified this Protocol. In addition the Council of Europe has issued a resolution calling on all Member States to enact laws which safeguard the cultural heritage and identity of nomads, and which stop any form of discrimination against nomads, but this is not legally enforceable in the United Kingdom. A ‘Good Practice Guide to Managing Unauthorised Camping’ was issued to all local and police authorities by the Department of the Environment, Transport and the Regions (DETR) in October 1998. It summarises the law relating to such encampments and states that local authorities should work with the police to create
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a policy for their area in relation to such encampments. It states that eviction is only one means of dealing with them, and other measures – such as site provision – should be considered. Local authority powers and the Criminal Justice and Public Order Act 1994 Local authorities have powers under sections 77–79 of the Criminal Justice and Public Order Act 1994 to move Travelling people from land (including the highway). These powers are constrained by guidance and case law (for example, R v. Lincolnshire County Council ex parte Atkinson (1995)) which states that they must take into account ‘considerations of common humanity’ as well as their statutory obligations to Travelling people under such legislation as the Children Act, Housing Acts, Education Acts and so on. In practice, this means that local authorities must liaise with the Travelling people and undertake an assessment of their needs before considering whether or not to proceed with an eviction. Because of the delay engendered by this ‘welfare enquiry’ process, some local authorities are more likely to use civil proceedings in the County or High Court to move Travelling people on. It is likely however, that these procedures will be significantly affected by the implementation of the Human Rights Act 1998 and the probable restrictions on the use of local authority powers are therefore considered below (under ‘Trespass’). Police powers under the Criminal Justice and Public Order Act 1994 The police have powers under the Highways Acts to move Travelling people on if they are obstructing the highway. They also have powers under section 61 of the 1994 Act to direct trespassers to leave private land where: •
The landowner has taken action to request that the trespassers leave and they do not do so; and
•
There are six or more vehicles on the land; or
•
Damage has been caused to the land, or there has been abusive, threatening or insulting behaviour by the trespassers.
The police also have powers under section 62 of the 1994 Act to seize and impound the vehicles of Travelling people who are directed to leave land under section 61 and do not do so in a reasonable time. It is likely that a disproportionate use of this power would violate Article 1 of the First Protocol to the European Convention on Human Rights as well as Articles 8 and 14. The evidence suggests that the police use this power rarely, if at all, although they frequently threaten to use it. The Association of Police Officers has issued guidance in relation to the use of police powers, a copy of which can be obtained from the Traveller Law Research Unit (see addresses below). It suggests that the police should act in co-operation with local authorities, and describes the circumstances in which it might be appropriate to use section 61 powers, such as when dealing with very large groups of Travelling people on unsafe or highly unsuitable land. Trespass A person who stops on land belonging to (or under the control of) another, commits the tort of ‘trespass’ if he does so without that person’s permission. Procedures exist
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which enable the ‘person claiming possession’ of the land to apply to the High Court or the County Court to obtain an eviction order. These require that (where the person entered the land as a trespasser) that the Court make a ‘forthwith’ eviction order. This automatic right to a court eviction order is unlikely to withstand the implementation of the Human Rights Act 1998, particularly if it is a public body applying for the eviction. Section 6 of the Human Rights Act makes it unlawful for a public body to act contrary to the Convention (a ‘public body’ will include government departments and local authorities as well as such organisations as Railtrack and the National Trust). In Buckley v. UK the European Court of Human Rights held that eviction proceedings may interfere with a Gypsy’s right to respect for his home (under Article 8) even where the caravan was unlawfully on the land. Thus public bodies will generally be required to establish that the proceedings pursue one of the legitimate aims listed in Article 8(2) and that eviction is not disproportionate. The court hearing this claim, as a public body itself, will also be bound by the provisions of section 6 of the Act. It cannot, therefore, maintain its present procedure of automatically making an immediate order for possession once ‘entitlement to possession’ has been established. Such an absolute entitlement (as presently embodied in the Court Rules) is clearly contrary to the concept of proportionality. Highway land There are many powers to prosecute and/or move on Travellers (or anyone else) under the Highways Acts. The highway is generally defined as including the greensward on either side of the metalled carriageway. Where the Traveller has been on the land for any period of time, or has traditionally resorted to the land, the authority seeking to evict will need to establish (as noted above) that the proceedings pursue one of the legitimate aims listed in Article 8(2) and that eviction is not disproportionate. The legal presumption that any camping constitutes an obstruction of the highway, legitimating eviction will almost certainly be curtailed by the Human Rights Act 1998. If there is no actual highway danger, then automatic eviction will not comply with the balancing requirements of Article 8. Bye-laws Some local authority areas have bye-laws that prohibit Gypsies, squatters and other persons from camping on certain land or within a specified distance of dwelling houses. A characteristic of such bye-laws is that they enable the authorised body to remove trespassers without the necessity of a court order; all that is required is that the trespasser has been requested to leave the land and has failed to do so. Such byelaws accordingly sanction any eviction, no matter how disproportionate or unjust. Section 23(2) of the Caravan Sites and Control of Development Act 1960, for instance, empowers District Councils to ‘make orders’ which prohibit absolutely the stationing of caravans on commons or waste land, that is, the blanket exclusion of Gypsies from the very places where they have traditionally camped (without any requirement that the ‘absolute prohibition’ be in anyway justified). Such bye-laws would seem to offend the principles of ‘balance’ and respect for traditional lifestyles inherent in the European Convention on Human Rights. Indeed, case law suggests that such bye-laws are probably already unlawful in that they contravene our
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common law, being ‘manifestly partial and unequal in their operation between different groups of people’.
14.5
POLICING
The police are not automatically entitled to stop vehicles at any time and for any purpose they chose. The law, however, provides them with certain stop and search powers, including: •
In various circumstances outlined in the Road Traffic Act, that is, if they believe a vehicle to be unsafe or to be driven recklessly or without due care and attention.
•
Section 1 of the Police and Criminal Evidence Act 1984 (PACE) permits a constable who has reasonable suspicion that a person is in possession of a stolen or prohibited article to detain a person or vehicle for the purposes of a search for such an article.
•
Section 60(4) of the Criminal Justice and Public Order Act 1994 provides that, where an authorisation for its use has been granted, a constable in uniform may stop any vehicle and search it, its driver and any passenger for offensive weapons or dangerous instruments. Authorisation for the use of this section must be given by a police officer of, or above, the rank of superintendent who must reasonably believe that incidents involving serious violence may take place in any locality in his area and such authorisation will prevent their occurrence. An authorisation permits the use of the powers anywhere in the locality for a period of up to 24 hours, must be in writing, and must specify both the locality and the time period for which it is valid.
•
In urgent cases there is a common law power which may permit preventative action to be taken to prevent breach of the peace. These include powers to arrest or detain a person. Breach of the peace takes place when harm is done or likely to be done to a person, or in his presence to his property, or a person is put in fear of being harmed through assault, affray, riot or other disturbance.
•
If a uniformed police officer reasonably believes that a person is en route to an assembly in an area to which an order under section 14A of the Public Order Act 1986 applies, and that this assembly is likely to be one prohibited by that order, he may stop that person and require him not to proceed in the direction of that assembly. An order cannot be valid for more than four days or more than a five-mile radius.
Police may sometimes approach encampments and request personal information from Travelling people. Gypsies and Travellers are entitled to know why this information is being requested, to what use it will be put, and how it will be stored, although the police are partially exempt from some of the stringent provisions of the Data Protection Act 1998. Travelling people should also note that they are not obliged to give information unless they choose to. Police will sometimes obtain video footage of unauthorised encampments, either openly or covertly. Such practice is not currently covered by any legislation and so
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would appear to be legal. However, it may in future be open to challenge as being in violation of Article 8 if it cannot be justified.
14.6
THE RIGHT TO HOUSING
Either by choice, or because of a lack of adequate sites and the difficulty of life ‘on the road’, many Travelling people live in housing. The Housing Act 1996 and associated Code of Practice state that a person is ‘homeless’ if they have a mobile dwelling and nowhere legal to place it. Under the legislation the housing department may be under a duty to provide you with accommodation if you are judged to be ‘homeless’ (for example, you are being evicted from a piece of land or a highway verge, and you have nowhere legal to go and live in your caravan), and have a ‘priority need’ for accommodation (if you have children living with you, or elderly or disabled people). If it is decided that you are homeless and have such a priority need, then the council can avoid its duty to provide you with accommodation only by showing either that you have a ‘local connection’ with another council’s area that is stronger than your connection with theirs, or that you made yourself intentionally homeless (for example, you were in housing or on a legal site, perhaps even some time ago, but left this legal accommodation for no good reason, or for a reason which was the fault of you or a member of your family living with you). Housing departments are advised that they should consider the needs of applicants under homelessness legislation and, as far as is possible, provide them with ‘suitable’ accommodation. This may include providing such persons with a pitch on a public site rather than with housing. However, this is discretionary and, in areas where there are no available pitches, Travelling people will be offered housing. If you are looking for settled accommodation, or even if you want to put your name on a waiting list for a possible caravan site, you should visit the local council housing offices, preferably in the area that you have most connection with, unless there is a good reason for selecting another area (risk of violence from another member of the family or someone else, for example). When you visit the housing offices, ask them what sort of provision is available. Do they have a site for travelling people? Does it have spare places on it? Where is it and how do they decide who goes on to it? If you have no interest in such a site, instead give the housing officer all the details about your living arrangements in your caravan. Remember that there are two separate ways of getting council accommodation and that you can apply to be put on a council house waiting list without being homeless. Before you leave the council office, ask them for a record of your applications, and ask them to let you know their decisions in writing. Keep all the paper they give you in a safe place. If you apply to be dealt with as homeless, the council housing department should give you a quick answer. If necessary, visit them regularly. Find out the name of the housing officer or other person that you need to speak to and try to speak to the same person each time. If you are applying for a council house (or ‘social housing’ provided by a housing association, as is now more common), make sure you keep in contact with the housing department by telephone or letter as the council house waiting lists are revised every six months or year in many areas and you have to
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make sure that you stay on the list each time until they make you an offer. It is possible to be on more than one council house waiting list at once. Finally, you have the right to see all information on the housing department files. You may have to pay a charge if you want copies. If you do not read, or feel more confident with someone assisting you, then ask a sympathetic councillor, council Travellers’ officer, teacher, health visitor or some other person that you trust to go with you on those visits, who could not only give you assistance, but also act as an independent witness. Home repair grants The Housing Grants, Construction and Regeneration Act 1996 gives a right to local authority grants for home repairs assistance provided that certain requirements are met. These grants have been available for housing for a long time, and were available to caravans and houseboats from 1996, but from 1 January 1998 (following amendment of the 1996 Act which had excluded many Travelling people in a discriminatory way) they are also available to caravan dwellers on public and private sites. Requirements for eligibility include that the applicant must be in receipt of welfare benefits and must have resided on the site for three years. Some local authorities may include a requirement that the applicant be over a certain age, although they must be able to justify the imposition of such a requirement. The housing department of the relevant local authority can advise on such grants.
14.7
THE RIGHT TO EDUCATION
Many counties in England, and a few counties in Wales, have Traveller Education Support Services, funded in part by Central Government. These help support schools taking in Travelling pupils, and help Travelling pupils and parents to access education. The National Association of Teachers of Travellers (see contact addresses at the end of the chapter) produces an annual booklet listing these services, and can also provide information about books and other education resources just for Travelling children. Although Travelling children aged between five and 16 have the same legal right to education as anyone else, it is obviously difficult to claim or seek these rights if you do not have a legal place to stop. If your child is of school age, then simply take the child to the state school nearest to where you are and ask it to provide education. It will be very helpful, both for the child and the local education authority, if you present children at school at age five or even shortly before. However, do not hesitate to take them at any age, even if there have been difficulties in getting your children to school at an earlier age. You have a legal duty to present them at school, and the local education authority has a legal duty to provide them with appropriate fulltime education. Once you have met the school secretary, head or another teacher, they may say that there will or could be difficulties which stop them admitting your child. It is important for you to stand your ground. Those practical difficulties are for the school or the local education authority to work out. If they ask you to go away for a few days, ask them exactly why you are being asked to do so. It is a good plan to be firm but polite. If one or more of your children is refused education at a school,
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or there are many obstacles put in front of her or him, then you should approach the Chief Education Officer for that council by going to the local town or county hall. Many Travelling children start school later than five and attend only from time to time. If you keep moving because of work or other reasons, then you only have to make sure that your children are in school for 200 half-days (100 full days) during the September to July school year. If your children have started late or attended irregularly, they may be judged to have special needs, which may include remedial help with reading or even the necessity for them to go to a special school. There are rules about the way in which this decision on special needs is made, and if you cannot read well you will need the assistance of someone who can help you through this process. In conclusion, remember that your school-age children have a right to be educated and a right to have their needs considered in the same way as any other child. If the school or education department is planning to make (or making) decisions that you do not understand or disagree with, keep asking them questions at every stage, so that they tell you exactly what they are doing, why they are doing it, and what the likely result will be. What is most important is that you do not give up and withdraw your child or children from school if you do not understand what is happening. Taking a child away from school is more likely to damage the child’s education than to get a council to change a decision it has made. The Children Act 1989 puts responsibilities on courts and local authorities to make decisions about children in the best interests of those children. A number of court decisions have indicated that local authorities have to protect the interests of children, when they are in that authority’s area, including when the authority is considering whether or not to evict families which include those children.
14.8
THE RIGHT TO HEALTHCARE
Everyone has a right to healthcare from the National Health Service. What this means in practice is that no hospital should ever turn away someone who is the victim of accident or illness, whoever that person is and whether or not they have paid any national insurance contributions. When you go to a dentist or take a prescription to the chemist, however, you will only get certain benefits free or at a reduced price if you are a child, someone who suffers from a long-term illness or disability (for example, diabetes) or if you receive income support, a pension or family credit. Although many Travellers go to casualty departments when they have an accident or illness, it is much more sensible to register with a local doctor if you are in an area, or expect to be, for more than a few weeks. Lists of doctors should be available at main Post Offices, and the best way is to visit the doctor you pick from the list and give her or him the exact details of those members of your family who wish to register with them (dates of birth, and so on). Some doctors are prevented from taking extra people onto their list if it is already too long, and so you may have to go to several doctors before you find one that will allow you to register with her or him. If you are turned down by all the doctors, whether or not it is because you are a Traveller, find the address and phone number of the Health Authority and/or the Community Health Council in the local phone book. Contact them (if possible in
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writing, after a telephone call) telling them that you have been turned down by the doctors concerned, the reasons you have been given by the doctors, and any other reasons you believe may have affected the decision. If there is an accident or illness within your family and you believe it may be unsafe to move the person concerned, you can telephone any local doctor and ask for emergency help. Try to make sure that there is somebody else with you when you make that call, if that is possible, so there is no doubt that you made it and when you made it. In practice, health visitors may have more contact with your family and friends, especially around the time that any children are born. Ask a health visitor for advice about registering with a doctor and for help with getting your rights to healthcare, even if you are regularly being moved from place to place.
14.9
THE RIGHT TO WELFARE BENEFITS
It is commonly believed that if you do not have a settled address, then you are not entitled to welfare benefits. This is untrue. You are as entitled to welfare benefits if you move around as if you stay in the same place. But it is obviously more difficult to claim them; you may get long delays while the papers relating to you go from office to office of the Benefits Agency. Agency officers may also presume fraud, or the intention to defraud, more easily in those who are more mobile. If you and any members of your family that you live with do not have any income, or only a very small one, then you can apply for income support at your local social security office, or for job-seekers allowance at your local Job Centre (see below). If you are on a site or in a house, you may be able to claim housing benefit and for this you approach the local council housing benefit department. If you have children under 16 living with you, you are entitled to child benefit, whatever income you have. If you do not have a settled house or site to stop on, your child benefits may be paid at the end of each three months, unless you can make an arrangement for it to be paid through a close friend, relative or council officer, or it can be added to any income support that you are receiving each week. You may also be entitled to other benefits, such as Working Families Tax Credit (if you are working but on a low income) as well as benefits for disabled people or carers etc. You can get leaflets about all these from main Post Offices or discuss them with the local social security office or Citizens’ Advice Bureau. At the end of this chapter, there are details of a guide to many of these benefits and how to claim them. Particular difficulties often arise with lost birth certificates or with people proving their identity. These two issues may well be linked. If you are having difficulty with either of them, approach your local advice centre, Citizens’ Advice Bureau or local social services department to help you get your money, especially if it is an emergency. Unless you are not required to be ‘available for work’, due to your age, pregnancy, lone parent status, and so on, you claim Job Seekers’ Allowance from a Job Centre. In order to receive this, you are not only required to be ‘available for work’ but also ‘actively seeking work’ and have a current ‘Job Seekers’ Agreement’ with the Job Centre. The rules for receiving Job Seekers’ Allowance do not allow those seeking work to place too many restrictions on the type of work they are prepared to accept
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and may result in having to take a job that is not linked to particular skills or that they would not normally choose.
14.10
TRAVELLERS AND THE MEDIA
Travelling people often suffer from negative and stereotyped articles about them in the press. The press are subject to a self-regulation system by which they undertake to comply with a Code of Practice which is enforced by the Press Complaints Commission (PCC) from whom a copy of the Code can be obtained (see addresses below). If you have a complaint about an item in a newspaper or a magazine which you believe breaks a clause of the Code of Practice, first write a letter of complaint to the editor. This is usually the quickest way of obtaining a correction or apology for inaccuracies. Give the editor at least seven days to reply, but do not wait longer than a month. If you are unhappy with the editor’s response to your letter, then write a letter of complaint to the PCC. If they cannot proceed with your complaint because, for example, it is outside their responsibility, they will inform you promptly. Otherwise your complaint will be carefully examined by them. If they decide that it does not show a breach of the Code, they will tell you. A copy of your letter will be sent to the editor. If they think your complaint does raise a possible breach of the Code, they will send the editor a copy of your complaint and try to reach a resolution quickly and amicably. This might be by means of the publication of an agreed correction and/or apology, a letter from you or a follow-up article. If a resolution is not possible, the Commission will investigate the matter. You may be asked for further information before the Commission makes a decision on your complaint. Both you and the editor will be sent copies of the decision. If your complaint is upheld, the publication concerned will be obliged to publish any critical adjudication in full and with due prominence. A copy of the adjudication will be contained in one of the Commission’s regularly published reports. Any individual or organisation directly affected by the matters about which they are complaining can complain. Occasionally, the Commission may consider complaints from third parties (people not directly affected) but only where the complaint raises a significant issue, which has not already been resolved. If you are complaining on behalf of someone else, please provide a signed statement from that persons stating that they wish you to complain on their behalf. If this is not possible, you should tell the Commission why. You should also tell the Commission your relationship to the person or organisation featured in the item about which you are complaining. The Commission generally accepts only those complaints made within one month of publication or of the editor’s reply to any complaint made directly to the newspaper or magazine. They may consider late complaints in exceptional circumstances. They cannot deal with complaints about legal or contractual matters; advertisements, promotions and competitions; taste, decency and the choice – subject to the Code – of what is published, all of which are the responsibility of individual editors; or broadcast material, books, leaflets and pamphlets. Nor is the Commission able to seek financial compensation for complainants.
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In your letter of complaint, you should include: •
a cutting of the complete article, if possible, or a clear dated copy of the item(s) concerned;
•
a summary of your complaint giving details of how you believe the item concerned breaches of the Code of Practice. Indicate, if you can, the relevant Clause(s) of the Code;
•
copies of any relevant correspondence or documents which you believe may help the Commission to understand and assess your complaint.
The address to which you should send your letter is at the end of the chapter. You can also contact them to get a copy of their Code and complaints procedures. If you wish to complain about a television programme you find offensive, the Broadcasting Standards Commission do accept third party complaints under their ‘standards’ complaints procedure. Copies of the procedure can be obtained from, and complaints sent to, the address listed at the end of the chapter.
14.11
FURTHER INFORMATION
Advisory Committee for the Education of Romany and Other Travellers (ACERT) Moot House, The Stow Harlow, Essex CM20 3AG Tel: 01279 418666
The Gypsy Council for Education, Culture, Welfare and Civil Rights 8 Hall Road, Aveley Essex RM15 4HD Tel: 01708 868986
Broadcasting Standards Commission 7 The Sanctuary London SW1P 3JS Tel: 020 7233 0544 Fax: 020 7233 0397
National Association of Teachers of Travellers c/o Essex Traveller Education Service Alec Hunter High School, Stubbs Lane Braintree Essex CM7 3NT Tel/fax: 01376 340360
Commission for Racial Equality Elliott House, 10–12 Allington Street London SW1E 5EH Tel: 020 7828 7022 Fax: 020 7630 7605
National Gypsy Council Greenhills Caravan Site Hapsford, Helsby Warrington Cheshire WA6 0SS Tel: 01928 723130
Equality Commission for Northern Ireland Andras House, 60 Great Victoria Street Belfast BT2 7BB Tel: 028 9050 0600 Fax: 028 9031 5993 <www.equalityni.org> Freephone: 0808 100 33 00
National Romany Rights Association The Bungalow, Roman Bank Walpole St Andrews Wisbech Cambridgeshire PE14 7HP Tel: 01945 780326
Friends, Families and Travellers Community Base, 113 Queens Road Brighton BN1 3XG Tel: 01273 234777 Fax: 01273 234778
THE RIGHTS OF TRAVELLERS Press Complaints Commission 1 Salisbury Square London EC4Y 8AE Tel: 020 7353 1248 Fax: 020 7353 8355 Textphone: 020 7583 2264 (for deaf and hard of hearing) <www.pcc.org.uk>
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Traveller Law Research Unit Cardiff Law School Cardiff University PO Box 427, Museum Avenue Cardiff CF10 3XJ Tel: 02920 874580 Fax: 02920 874097 <www.cf.ac.uk/claws/tlru/>
The Romany Guild c/o 61 Blenheim Crescent London W11 2EG Tel: 020 7727 2916
Bibliography C. Brand, Mobile Homes and the Law, Sweet & Maxwell, 1986. Child Poverty Action Group, National Welfare Benefits Handbook, (annual). Criminal Justice and Public Order Act 1994, Stationery Office. Department of the Environment Circulars 1/94 and 18/94, Stationery Office. Department of the Environment, Transport and the Regions, Good Practice Guide to Managing Unauthorised Camping, 1998. R. Morris and L. Clements, Gaining Ground: Law Reform for Gypsies and Travellers, University of Hertfordshire Press, 1999. Shelter, Mobile Homes – an Occupier’s Guide, 1988.
Compiled by Sue Carlton
Index absolute privilege, in defamation cases 37, 67 absolute rights 130 ACAS (Advisory Conciliation and Arbitration Service) 338 action plan orders 320 active proceedings 52, 55 actual bodily harm 24 adoption 317–18; records and reports 98 advertising: complaints about 125; disability discrimination 242; political 56; race discrimination 213; sex discrimination 225; sexually explicit 230–1 Advertising Standards Authority 125 affray 3, 23–4 agents provocateurs 230 aggravated trespass 10, 26 Agricultural Wages Board 332 agricultural workers 332 alcohol abuse, employees and 338–9, 351 ‘Anton Piller’ orders 85–6 appeals: against convictions 183–4; asylum seekers 273; bail 178; immigrants 270, 271, 272; points of law 356; withheld information 106, see also Employment Appeal Tribunal (EAT); Mental Health Review Tribunals apprentices 329, 348 Armed Forces, homosexuality 352, 353–4 arrest 132–3, 152–7; citizen’s 153; by customs officers 89–90; information on 156; for minor offences 154; police powers of 5, 50, 150, 152–7, 175; preventative 155; summary 153; under specific powers 155; use of force 157; warrants 152, 153 arrestable offences 153–4; and searches 147, 150; serious 147, 153–4, 159, 162–3 assault 24–5; indecent 153; on police 25; by police 118, 119 assemblies: definition of 6, 11; freedom of 1, 3, 135, 354; offences 28; police conditions on 6–7, 12, 19; trespassory 7, 11, see also protest actions Assisted Prison Visits Scheme 191 asylum seekers 254, 255, 273–4; children 298, 308; discrimination 256–9, 274, see also immigrants/immigration; refugees bail 176–8; failure to answer 155, 177; immigrants 271; pending appeal 184
bailiffs, right of entry 86–7 ballots 324 banned organisations 169, 171, 173 banning orders, on assemblies 6, 11, 14, 19 barristers 178; complaints against 122 bind-overs 27, 29 birth certificates, transsexuals 90 blasphemy 46–7 blood samples 90 body searches 87–90; intimate 88, 89, 145, 161–2, 175 breach of contract 109, 332, see also contracts of employment breach of the peace 3, 8, 11, 29, 150, 152 British Board of Film Classification 57–8 British citizenship 274–5 broadcasting: BBC charter 56; cable 58, 216; complaints 57, 91, 124; controls on 56–8; ‘good taste’ 56, 57, 58; incitement to racial hatred 50, 216; indecency 49, see also media Broadcasting Standards Commission 57, 91, 124, 372 buggery 153, 227, 229, 230 bugging 61, 75–6, 77, 148 buses, disability discrimination 245 bye-laws 13–14, 365–6 cable television 58, 216 care orders 310–11, 312–13, 319 casual workers 330 caution, on arrest 165, 175–6 censorship 56–8; prisoners’ mail 192 Central and Eastern Europe, immigration agreements 263–4 Certificate of Lawful Established Use and Development (CLEUD) 361 Charter of Fundamental Rights 259 child safety order 319 Child Support Agency (CSA) 114, 297 children/young people 292–323; access to personal data 96, 102; accommodation 308–9; adoption 317–18; age of criminal responsibility 318–19; behaviour support plans 304; breaking remand conditions 156; care orders 310–11, 312–13, 319; citizenship/nationality 297–8; community sentences 320; consultation with 294;
INDEX contact with absent parent 307–8; contact with birth parent 317–18; corporal punishment 296, 304, 315; criminal trials 319–20; custodial sentences 320–1; and divorce/separation 305–8; financial support 297; fingerprinting 165; indecent photographs of 48; and justice system 318–22; with learning difficulties 302; leaving home 296; legal representation 312, 320; ‘looked after’ 312–17; medical treatment 295–6; names 294–5; parental responsibility 293–6, 317; parental rights 312; police detention 319; protection of 309–11; refugee status 297–8; religion 295, 301; representation of 307, 312, 317; right to fair trial 320; rights of 128, 140, 258, 292–3, 298–9, 303, 312, 318; social security benefits 297; travel/passports 298–9; of Travellers 368–9; as witnesses 321–2, see also education; parents Citizens’ Advice Bureau (CAB) 114, 115, 178 citizen’s arrest 153 Citizen’s Charter 141 civil servants 326 Close Supervision Centres 197 closed circuit television (CCTV) 77–8 clubs, discrimination 212 commercial information, protection of 45 Commission for Racial Equality (CRE) 205, 209, 213–15; Gypsies 359, 360; injunctions 214–15; investigations 214 common law contempt 54, 55 Commonwealth citizens 259 community care, complaints 114 Community Legal Service (CLS) 109, 114, 120–1 compensation: employment 334, 343, 345, 356; from police 118; victims of crime 127–8 complaints 109–41; about officials 81; access to records 104, 106; civil actions 109–10; customs searches 90; European Convention 129–39; financial professions 123; legal services 120–3; Local Resolution 112; media 90–3, 123–5; police 114–20; by prisoners 188–9; public utilities 125–7 conditions: on assemblies 6–7, 12, 19; on marches 5–6, 8, 19; on picketing 10; on protest action 18 confessions 160 confidence, breach of 44–6, 63–4, 78, 90 confidential information: official secrets 50–2, 107; public interest 46, 51; right to privacy 63–4; searches 148–50, see also data protection; personal records confidentiality 44–6; data protection 98; employees 335–6, 338; police information 72–3
375
Connexions 299 consent: adoption 317; age of 227–8, 229; body searches 145; fingerprinting 165; mental patients 284; samples 166; search of premises 147 conspiracy to corrupt public morals 230–1 constructive dismissal 231 contact orders 306 contempt of court 52–6; common law contempt 54, 55; defences 53–4; enforcement 55–6; ‘strict liability rule’ 52, 53, 55 contracts of employment 329–36; breaches 332; collective agreements 331; discriminatory terms 225; employed/selfemployed 329–30; itemised pay statement 331–2; obligations 332–6; works rules 332; written statement 330–1 copyright 41–6, 91, 336; criminal sanctions 43; defences of infringement 42–3; meaning of 42; ‘moral rights’ 43; passing off 44 corporal punishment 296, 304, 315 correspondence, right to 350 Council of Europe 137 court(s): of Appeal 184; children and 318–22; complaints about 121; contempt of 52–6; County 109; Crown 178, 179, 180, 181, 319–20; House of Lords 184, 356; incorporation of European Convention 60, 185, 256; Magistrates 159, 179–80, 183, 184, 229, 319; open justice 55, 134; postponement orders 53–4; prisoners’ access to 189–90; reporting restrictions 52–6; risk of serious prejudice 52–3; venue 179–80; Youth 179, 180 credit reference agency records 103 crime, compensation for victims 127–8 Criminal Cases Review Commission 184 Criminal Conviction Certificate 69 criminal damage 26 Criminal Injuries Compensation Board 127 criminal proceedings, and human rights 129–34 Criminal Record Certificate 69, 71 criminal records, checks 69–71 Criminal Records Bureau (CRB) 68–71 Crown Court 178, 179, 180, 181, 319–20; appeals 183–4 Crown servants, confidentiality 51 cruising 228–9 custody officers 157, 158, 175, 177 custody record 89–90, 157, 161, 162 Customs and Excise, HM: body searches 87–90; prevention of terrorism 170 damages 109, 110, 118–19
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data protection 94–104; disclosure of information 103–4; European directives 140; exemptions from disclosure 97–9, 100–2, 104, 105; spent convictions 68, see also confidential information; personal records death penalty 131 ‘declaration of incompatibility’ 130, 138, 185 defamation 32–41, 66–7; damages awarded 39–40; defence of 35–9; identification 34–5; and meaning 33–4; media 125; publication 34; remedies 39–41; right to sue 35; time limits for claim 35 defendants: acquittal 182; after protest action 19–23; children/young people 318–21; identification 20; legal advice 178–9; Legal Aid 20–1; preparing case 21–2; representation 178–9; rights of 174–86; self-representation 21; sentence 182 demonstrations see protest actions deportation 171, 272–3 detention 144, 157–60; after charge 160; basic rights 175; of children/young people 158, 160, 163, 320–1; conditions in 162; conduct of interviews 163–4; Customs and Excise 87, 89–90; extensions 159; immigrants 257, 270–1; juveniles 158; medical treatment 162; notifying relatives/friends 163; persons of unsound mind 248, 279–80; photographs 166, 167, 169; prevention of terrorism 169; questioning 175–6; review of 158; right to legal advice 159, 160, 162; time limits on 158–60, 175; without charge 153, 157, 158 detention and training order 320–1 direct discrimination 205–6, 221, 222, 360 disability, definition of 239 disability discrimination 238–49; advertisements 242; complaints 245–6; employment 239–42; enforcement and remedies 245–6; European Convention 247–9; goods, facilities and services 242–4; justification for 241–2, 243; purchase and rental of premises 244; reasonable adjustments 240–1, 244; trade unions 241, 242, 325; transport 245, see also mental patients Disability Rights Commission (DRC) 246–7 discrimination 3, 205–52; direct and indirect 205–6, 221, 222, 360; European Convention 136, 220, 238, 249, 257–8, see also disability discrimination; race discrimination; sex discrimination dismissal 325, 326, 344–6; breach of procedure 346; constructive 231; notice 344; reasons for 344–5; unfair 232, 332, 338, 341, 345–6, 347; wrongful 344, 346
disorderly conduct 10, 26–8 Divisional Court, appeals to 183 divorce/separation 305–8 DNA 166 doctors: complaints against 113; intimate searches 89, 161; medical reports 101 drugs: employees and 338–9, 351; obscenity and 48; prisoners 196; screening tests 339, 351; search powers 143, 161 e-mails: interception of 77, 350, 351; unwanted 79 education 299–305; admissions 301; behaviour/discipline 303–5; bullying 303–4; compulsory 300–1; curriculum 301; exclusion 305; overseas students 210, 269, 274; parents as consumers 299–300, 301; pastoral support programme (PSP) 304; prisoners 199; race discrimination 210; records 96, 102, 299; religious education 301; right to 136–7; sex discrimination 223–4; sex education 301–2; special needs (SEN) 302–3; Travellers rights 368–9 ‘either-way’ offences 180 elections: free 137; meetings 11–12; of trade union officers 329 electricity companies: complaints 126; right of entry 81–2 employment: claims to tribunals 355–6; drugs/alcohol 338–9, 351; employers’ obligations 343; equal pay 339–40; freedom of assembly/association 354; freedom of expression 352–4; freedom of religion 352; health and safety 342–4; hours of work 333–4; human rights 349–55; immigrants 254, 268; industrial action 347–9; injuries at work 198, 334, 343; maternity rights 340–1; medical reports 101; previous convictions 68–71, 336; prisoners 198; race discrimination 205–8; reasonable adjustments for disability 240–1, 244; records 105, 334–5; redundancy 346–7; references 336; right to privacy 350–2; sexual orientation 231–2, 352; sick pay 343–4; surveillance of workers 350–1; suspension 334; telephone conversations 350–1; time off 336, 342; wages 332–3; whistleblowers 337–8; women 339–41, see also contracts; dismissal; trade unions Employment Appeal Tribunal (EAT) 232, 234, 350, 356 employment tribunals 55, 355–6; discrimination 232, 234, 245; dismissal 232, 326, 345; equal pay 340; Legal Aid 350; sexual harassment 222
INDEX Enhanced Criminal Record Certificate 69–70, 71 entry, right of: mentally ill 84, 281; officials 62, 80–7; police 216–17; Search Orders 85–6, see also searches environmental information, access to 107 Equal Opportunities Commission (EOC) 225, 226, 231 equal pay 339–40 Equality Commission, Northern Ireland 360 Europe Agreements 262, 263–4 European Commission of Human Rights 189, 217–18, 222 European Convention on Human Rights: children 293, 298–9, 307, 312; disability discrimination 247–9; discrimination 235, 236–7, 247; employment 349–55; freedom of expression 31–2, 44; immigration 256–8; incorporation into British law 60, 185–6, 247, 256; ‘looked after’ children 314, 316–17; police powers 143; prisoners’ rights 187, 189, 191; privacy 60–3, 62, 75; protest actions 1–2, 3, 5, 28; race discrimination 218–20; redress 128–40; refugees 273–4; sexual minorities 235, 236–8; Travellers and Gypsies 362, 363, 365 European Court of Human Rights 3; bindovers 29; detention of mental patients 279–80, 285, 286; education 300; employment tribunals 350; freedom of expression 32, 47, 52, 58; redress 130, 137–40; sexual orientation 90, 352; suspects’ rights 163, 165; Travellers and Gypsies 362 European Court of Justice 137 European Economic Area (EEA) 260, 261–2, 267 European Free Trade Association (EFTA) 260 European Social Charter 258 European Union: Association Agreements 262, 263–4; free movement rights 259–63; immigrants/immigration 256 examinations, marks and comments 98 excluded material 148–9, 152 exclusion orders 171–3 expression, freedom of 31–59, 135, 219, 237, 352–4; conflicting interests 58–9, 63; contempt of court 52–6; criminal law restrictions on 46–52, see also censorship; defamation face coverings, removal by police 146 fair comment, in defamation cases 36–7, 66–7 fair dealing, copyright 43 fair trial, right to 130, 133–4, 185–6, 320, 350 false imprisonment 118, 133
377
family, right to found 135–6, 193, 237–8 family support services 308 fathers, parental leave 341–2 faxes, unwanted 79 fidelity, to employer 335–6 files see personal records films, censorship 57–8 financial professions, complaints against 123 fingerprinting 155, 165, 169 fire brigade, right of entry 81 footwear, removal by police 171 forced labour 132 foster homes, inspection 85 gas companies: complaints against 126; right of entry 81–2 gender reassignment 234–6 Gillick principle 292, 295 goods, facilities and services: disability discrimination 242–4; race discrimination 211–12; sex discrimination 224–5 government departments: complaints against 110–11; defamation 35 government information: access to personal records 104–6; freedom of information 107 Green Form Scheme 21 grievous bodily harm 24; harassment 78 gross indecency 153, 227, 229, 230 guardians ad litem 310, 312, 317 guilty pleas 176, 182 Gypsies: definition of 358–9; evictions 363–6; race discrimination 359–60; site provision 361–3, see also Travellers harassment 25, 78–80; at work 80; as ‘grievous bodily harm’ 78; intrusion 79–80, 81; letters and phone calls 78–9; by media 90; by neighbours 79–80; protection from 40–1, 217; in public places 80; racial 208–9; sexual 222; of sexual minorities 232; of tenants by landlords 80, see also victimisation hate mail 79 headgear, removal by police 171 highway: obstruction of 10, 12, 27–8; right to use 12, 13, 14, 28; roadblocks 8, 146 HIV/AIDS 46, 231 Home Detention Curfew (HDC) 200–1 homeworkers 330 homosexuality: ban on promotion of 233–4, 302; discrimination 90, 352, 353–4; restrictions on 227–30; sexual behaviour 227–8 homosexuals: importuning 228–9, 230; privacy rights 62 hours of work 333–4 House of Lords, appeals to 184, 356
378
YOUR RIGHTS
Houses of Parliament, demonstrations near 8–9 housing: race discrimination 211; records 102–3; sex discrimination 224; sexual minorities 232–3; Travellers rights 367–8 housing officers, right of entry 82–3 identification: defamation victims 34–5; DNA 166; police officers 145, 151; suspects 154, 160; by witnesses 167 immigrants/immigration 253–77; application 255, 265; British Nationality 259, 274–5; children 266–7; controls 253–6, 264; detention 257, 270–1; discrimination 256–9; domestic immigration controls 260, 265–73; European Convention 256–8; extended families 267; fianc≥(e)s 266; free movement of EC nationals 254, 259–63; from Central and Eastern Europe 263–4; husbands and wives 265–6; inhuman treatment 256–7; overstaying 271–2; parents/grandparents 267; registration with police 269–70; for temporary purposes 268–9; to study 269; Turkish nationals 262–3; ‘visa nationals’ 265, 269, 270; work permits 268, see also asylum seekers; refugees immigration officers, instructions to 255 indecency offences 48–9, 153, 227, 229, 230 Independent Broadcasting Authority (IBA) 56 Independent Television Commission (ITC) 56, 124 indictable-only offences 179–80 industrial action 347–9; restrictions on 348; secondary 348; unlawful 348–9, see also picketing inertia selling 79 infectious diseases 84–5, 248 injunctions 109; against harassment 79, 80; breach of confidence 44–5, 46, 63–4; defamation 39 injury: at work 198, 334, 343; crime victims 128–9; of detained person 162; during arrest 168 INLA 173 ‘institutionalised racism’ 360 insurance: complaints 123; medical reports 101; sex discrimination 224; spent convictions 66 intelligence services, confidentiality 51 International Covenant on Civil and Political Rights 140, 258 International Covenant on Economic, Social and Cultural Rights 258 interviews see police interviews intimidation: aggravated trespass 26; picketing 10
invalid care allowance (ICA), sex discrimination 226–7 inventions 336 IRA (Irish Republican Army) 173 Irish Travellers 359, 360 job evaluation schemes 339 Job Seekers Allowance, Travellers rights 370–1 judges: appeals 184; bail 177–8; media influence 53; role 40, 179, 181 judicial reviews 110, 189 juries: burden of proof 181–2; defamation damages 40 jury trials 180, 182 juveniles: detention 158, 160, 163, see also children/young people landlords 80, 147, 211 Law Centres 114, 115 leafleting 12–13 legal advice 141; children/young people 312, 320; civil actions 109; right to 120–1, 159, 160, 162–3, 178–9 Legal Aid 20–1, 41, 120, 125, 178–9; for appeals 183; employment tribunals 350, 355; European Court on Human Rights 186; judicial reviews 110; libel actions 90, 91; mental patients 286, see also Community Legal Service (CLS) legal observers, for protests 15–16 legal services: complaints 120–3; Ombudsman 122 legally privileged material 149–50 lesbianism 227, 230, 231, 232–3 libel 32–41, 90; blasphemous 46–7 liberty, right to 132–3, 248, 257, 279 licensing: local authorities 49, 57; race discrimination 208; spent convictions 68, 72 life, right to 131 local authorities: access to information 106–7; bye-laws 13–14, 365–6; child protection 309, 310–11; complaints against 111–12; duties to ‘looked after’ children 312–14; family support services 308–9; licensing 49, 57; race discrimination 216, 360; right of entry 82–3, 85; sex discrimination 226; and Travellers 364, 365 London, additional police powers 8 ‘looked after’ children 312–17; aftercare support 315; complaints and legal action 315–16; contact and reunification with parents 314; discipline/punishment 315; duties of local authorities 312–14; education 313; secure accommodation 316 Mackenzie friend (adviser) 21, 179, 195 Maghreb States, immigration agreements 264
INDEX magistrates 88; broken remand conditions 156; extension to custody 159; warrants 147–8 Magistrates Court 159, 179–80, 183, 184, 229, 319 mail: interception of 77, 351; mental patients 288; prisoners 192; unwanted 79 male prostitution 228 malice 39, 67 malicious falsehood 40, 91 malicious prosecution 118 marches/processions: advanced notice 4–5; banning of 6, 14; identifying organiser of 4, 5; offences 28; police conditions on 5–6, 8, 19; regulating 4–14 marriage: immigrants 265–6; right to marry 135–6, 235, 237–8 maternity rights 340–1 media: complaints about 90–3, 123–5; copyright law 91; defamation 125; and prisoners 193; qualified privilege 38–9; rights of privacy 90–3; and Travellers 371–2, see also broadcasting; press medical negligence 113 medical records 96, 99–101, 248–9 medical reports 101 medical treatment: children/young people 295–6; detention 162; prisoners 198; right to 248; right to refuse 62; Travellers rights 369–70 meetings: banning orders 6, 11, 14, 19; disrupting 11, 12; election meetings 11–12; offences 28; private 12; public 11–12 mental disorder, forms of 278–9 Mental Health Review Tribunals (MHRTs) 286, 287, 289 mental patients 278–91; access to records 100; aftercare 287, 289–91; care in community 290, 291; compulsory admission 280–3; compulsory treatment 283–5; conviction of offence 282; discharge from hospital 285–7; emergency powers 281; guardianship 289–90; Hospital Managers 286–7; ‘hospital orders’ 282, 287; informal admission 279–80; information to 283; Legal Aid 286; nearest relative 283, 286, 290; police powers 281–2; Responsible Medical officers 285, 286; ‘restriction orders’ 282, 287; right of entry 84; rights in hospital 288–9; supervised discharge 289, see also disability discrimination mentally handicapped: access to records 102; detention 160 merit, defence of 48 midwives, complaints against 113 miscarriages of justice 184
379
mobile phones, surveillance 77 ‘moral rights’ 43 mortgages: credit checks 103; sex discrimination 224 Motor Insurers’ Bureau 128 names: children 294–5; suspects 154, 160 nasogastric feeding 285 National Assembly for Wales, complaints 110 National Association of Teachers of Travellers 368 National Asylum Support Service 308 National Disability Council 238, 246 National Health Service: complaints 112–13; Patients’ Charter 112; Travellers rights 369–70 national security 67, 72, 98, 111, see also terrorism naturalisation 275 negligence: defamation 41; medical 113; police 118; by solicitors 122 newspapers, selling 13 non-discrimination notices 214 notifiable diseases 84–5 nuisance law 78, 80; media 90 nurses: complaints against 113; intimate searches 89, 161 obscene publications, sending 79 obscenity 47–9; defence of merit 48 obstruction: of highway 10, 27–8; of officials 82, 84, 87; of police 10, 26–7 offensive weapons 24, 143, 144, 146 Office for the Supervision of Solicitors (OSS) 122 official secrets 50–2, 107, see also confidential information officials, right to enter 80–7 Ombudsmen: European 140; financial professions 123; health service 113; Legal Services 122; Local Government 111–12; Parliamentary 105, 110–11, 114; press 92; prison 188–9, 194 ‘Open Government’, Code of Practice 104–5 open justice 55, 134 open prisons 192 overseas students 210, 269, 274 ‘paedophiles’ register’ 74 parental leave 341–2 parents 296; access to child’s records 96, 100, 101–2; divorce/separation 305–8; education 299–300, 301; immigration 267; of ‘looked after’ children 314; responsibilities 293–6, 317; rights 312; sexual orientation 233; spent convictions 72
380
YOUR RIGHTS
Parliamentary Commissioner for Administration (Ombudsman) 105, 110–11, 114 parole 199–203; compassionate release 202–3; Home Detention Curfew (HDC) 200–1; life sentence prisoners 201–2 personal records 94–108; on computer 95, 99, 100, 104; credit reference 103; of deceased 100; disclosure of 103–4; education 96, 102, 299; employee records 334–5; ‘excluded material’ 148; inaccurate information 96–7, 103; medical 96, 99–101, 248–9; of police interviews 146; structured and unstructured files 95, 101, 104; withheld 97–9, 100–2, 104, 105, see also confidential information; data protection; government information pests and vermin 85 petitions 12–13 photographs: copyright law 91; indecent 48; of injuries 168; surveillance 77; of suspects 166, 167, 169; of young offenders 54 picketing 3, 6, 9–10, 349; offences 10, 28; secondary 9 piracy, copyright 43, 85 planning enforcement notices 361 planning officers, right of entry 83 ‘pocket search’ 88 police: abuse of powers 142–3; as agents provocateurs 230; assault by 118, 119; assault on 25; challenging decisions 18–19; child protection 310; ‘common law’ powers 3; complaints against 114–20; disciplinary actions 116–17; and industrial action 348; information 71–4, 73; local consultative committees 119–20; meeting with 17–18; negligence 118; obstruction of 10, 26–7, 146; and picketing 10; powers of arrest 5, 50, 150, 152–7, 175; powers to search premises 147–52; and press 22; and protest action 2, 3, 5, 6–9, 14; race discrimination 217; right of entry 81, 175; seizure of property 151–2; special powers 142, 168–73; stop and search powers 143–7, 174; suing 118–19; and Travellers 364, 366–7; use of force 118, 151, 157, see also conditions; searches Police Complaints Authority (PCA) 116 police interviews: conduct of 163–4; of prisoners 191; right of silence 142, 164–5, 176 political advertising 56 possession of property, right to 136 post see mail Post Office, complaints 127 posters 13 postponement orders 53–4
press: complaints 41, 92, 123, 371–2; court reporting 52–6; freedom of expression 92–3, 149; and protest actions 16, 22–3; regulation of 92; trespass 92; unethical behaviour of 41, see also media Press Complaints Commission (PCC) 41, 92, 123; and Travellers 371–2 prison officers: industrial action 348; use of force 197–8 Prison Rules 188, 195, 198 prisoners: access to courts 189–90; access to lawyers 190; categorisation and allocation 193–5; censorship of mail 192; complaints and requests 188–9; confinement and restraints 197–8; contact with media 193; differentiated regimes 190; discharge 203; disciplinary process 195–6; education 199; exercise 199; mandatory drugs tests 196; marriage/founding family 193; medical treatment 198; parole 188, 199–203; police interviews 191; property of 188; segregation and transfer 196–8; tagging 200–1; telephones 192–3; temporary release 203; visits 190–1; women 193, 194; work 198; young offenders 194 prisons: conditions 128; discrimination 189, 212; mother and baby units 188, 193; mutiny 195; security 194 privacy, right to 40, 44–5, 60–93, 134; confidentiality 44–5; conflicting interests 32, 61; discrimination 219, 248–9; employment 350–2; immigrants 257; and media 90–3; right to marry 235, 237–8; and searches 162; and sexual orientation 62, 90, 237, see also confidentiality; surveillance privilege, in defamation cases 36–7 professions: disclosure of police information 72; disclosure of spent convictions 67–8; race discrimination 208 ‘prohibited articles’ 143, 144 prohibited steps orders 306 property: of prisoners 188; right to possess 136; seizure of 86, 143, 145, 146, 148, 151–2 protected disclosures 337–8 protest actions 1–30; advance publicity 16; and arrest 152; and bye-laws 13; historic right of 1–3; legal cover 16; London 8–9; notice 4–5; organising 14–23; and police 2, 3, 5, 6–9, 14, 17–19; and press 16, 22–3; public order offences 7, 14, 23–9; regulating 2, 3, 4–14; roadblocks 8; stewards 15–16 public order law 2, 3, 5–6, 14 public order offences 7, 14, 23–9; racially aggravated 50; sentences 28
INDEX public places 3, 6; importuning 228, 230; meetings 11; sexual activity 229 public utilities, complaints about 81, 125–7 publication: contempt of court 53; incitement to racial hatred 50 qualified privilege, in defamation cases 37–9, 67 qualified rights 131 questioning see police interviews race discrimination 205–20; advertisements 213; clubs 212; criminal acts 216–17; direct 205–6; employment/training 205–8; enforcement and remedies 215–16; European Convention 218–20; exceptions 209, 210, 211, 212; genuine occupational qualification 209; goods, facilities and services 211–12; Gypsies 359–60; housing 211; indirect 206; ‘institutionalised racism’ 360; local authorities 216; overseas students 210; positive 209; prisons 212; segregation 206; time limits for complaints 215; victimisation 206–7 racial hatred: incitement to 49–50; inflammatory material 216–17 racially aggravated offences 217 radio see broadcasting; media Radio Authority 56, 125 rallies 3, 6 rating officers, right of entry 83 ‘reasonable grounds for suspicion’ 142, 144 redress, right of 109–41, see also complaints redundancy 346–7; consultation 347; payment 346–7; transfer 347, see also dismissal references 98, 336 referral orders 320 refugees 273–4; unaccompanied children 297–8, see also asylum seekers; immigrants rehabilitation of offenders 64–6, see also spent convictions ‘relevant foreign nationals’ 269–70 religion: blasphemy 46–7; children/young people 295, 301; freedom of 134–5, 219, 352 remand, breaking conditions of 156 reparation orders 320 reprimands 319 residence orders 306 torture 131, 140, 218–19, 248 right to silence 142, 176; curtailment of 164–5 riot 3, 23 roadblocks 8, 146 Romany Gypsies 359 sado-masochism 236 samples 156; blood 90; destruction of 167; intimate and non-intimate 166
381
Scottish Travellers 359 screening, for drugs and alcohol 339, 351 Search Orders 85–6 searches 175; after arrest 150–1, 157; ‘Anton Piller’ orders 85–6; at police station 161–2; conduct of 151; employees 334, 351–2; piracy offences 43, 85; of premises 147–52; to prevent serious violence 146–7; prevention of terrorism 143, 170, 171; records of 145–6; ‘rub-down’ 88; safeguarded material 148–50; speculative 167; stop and search 143–7, 174; strip 88–9, 145, 161; vehicles 143–7; warrants 147–8, 149, 150, 151, 171, 175, see also entry, right of secure accommodation order 316 security services 76–7 self-employed 329–30 sentences: children/young people 320–1; during Her Majesty’s pleasure 201, 321; life 201–2; mitigating factors 182; public order offences 28; suspended 65 services: disability discrimination 242–4; race discrimination 211–12; sex discrimination 224–5 sex discrimination 220–7; complaints 225–6; contractual terms 225; direct 221, 222; education 223–4; equal pay 339–40; exceptions 223–5; ‘gender assignment 221; genuine occupational qualification 236; goods, facilities and services 224–5; housing 224; indirect 221; local authorities 226; sexual harassment 222, 222–3; social security 226–7; victimisation 221–2 sex education 301–2 sex offences: anonymity 54; cruising 228–9 Sex Offenders’ Register 74 sexual harassment 222 sexual minorities 221, 227–38; age of consent 227–8, 229; Armed Forces 352, 353–4; civil law 231; conspiracy to corrupt public morals 230–1; criminal law 227–8; employment 231–2, 352, 353–4; explicit advertisements 230–1; housing 232–3; immigration 233; marriage 233, 235; offences 228–31; parental rights 233; police as agents provocateurs 230; privacy rights 237; public display of affection 228, 230; sado-masochism 236; sex education in schools 234; sexual activity 229–30; unfair dismissal 232, see also transsexuals sick pay 343–4 single-sex schools 223–4 slander 32–41 slavery, freedom from 132 snooping see surveillance social security benefits: asylum seekers 274; children/young people 297; complaints
382
YOUR RIGHTS
114; immigration status 254; sex discrimination 226–7; Travellers rights 370–1 social security inspectors, right of entry 83 social services, and ‘looked after’ children 312–13 social work records 101–2 solicitors 178; charges 121, 122; complaints against 121–2; duty 178; prisoners’ access to 190; protest actions 15, 16, 21–2; supervising 86, see also legal advice special procedure material 149, 152 specific issue orders 295, 306 spent convictions 64–6; defamation 66–7; disclosure of 66–8, 73–4; employment 66, 67–71, 336; evidence in legal proceedings 66; exceptions 67–8; insurance policies 66; rehabilitation period 65–6; sex offences 74; working abroad 66 sport: race discrimination 212; sex discrimination 224 stalkers 25, 49 standard of proof 181–2 statutory sick pay (SSP) 343–4 ‘statutory undertakers’ 147 stolen goods 143, 144, 145 stop and search, right to 143–7, 174, see also searches street collections 12 ‘strict liability rule’ 52, 53, 55 strikes see industrial action summary offences 179 surveillance 61, 74–8, 129; at work 350–1; bugging 61, 75–6, 77–8, 148; CCTV 77–8; media 90 suspects: identification 154, 160, 167; making notes 167–8; photographs taken 166; rights of 142–73, 160–8; searches 161–2 suspended sentences, rehabilitation periods 65 tape-recording: in court 55; of interviews 164 tax officials, right of entry 83 taxis, disability discrimination 245 telephone: tapping 61, 62, 74–5, 76, 350–1; unwanted calls 78–9 telephone companies, complaints 125–6 television see broadcasting; media tenants, harassment by landlords 80 terrorism, definition of 168, 171 terrorism, prevention of: arrest and questioning 162–3, 169–70; banned organisations 169, 171, 173; detention at ports/airports 170; exclusion orders 171–3; search powers 143, 170, 171; special powers 168–73 thought, conscience and religion: freedom of 134–5, 219, 352, see also religion
threatening, abusive or insulting words or behaviour 3, 10, 25; racial hatred 49–50 trade secrets 45, 338 trade unions 325–9; ballots 324; collective bargaining 325; consultation 327; disability discrimination 241, 242, 325; election of officers 329; industrial action 347–9; political activities 328; race discrimination 208; recognition 327–8; rights against employers 325–6; rights within 328; sex discrimination 232, 325; working time 333, see also industrial action trainees 330 training, race discrimination 207–8, 209–10 trains, disability discrimination 245 transgendered people 234–6 transsexuals 220–1, 234–6, 237; discrimination in employment 232; identification documents 90; privacy rights 62, 90 transvestites 234 Travellers 358–73; bye-laws 365–6; definition of 358–9; discrimination 217; education 368–9; evictions 363–6; healthcare 369–70; and highway land 365; home repair grants 368; housing 367–8; and media 371–2; and police 364, 366–7; right to stop 360–1, 363; sites 361–3; trespass 364–5; unlawful encampments 363–4; welfare benefits 370–1; Working Families Tax Credit 370, see also Gypsies trespass: aggravated 10, 26; media 90, 92; police 118; Travellers 364–5 trespassory assemblies 7 tribunals: mental health 55, 286, 287, 289, see also employment tribunals Turkish nationals, immigration 262–3 UDA (Ulster Defence Association) 173 unfair dismissal 232, 332, 338, 341, 345–6, 347 United Nations: Convention for Elimination of all forms of discrimination against Women 258; Convention for Elimination of Racial Discrimination 258; Convention on the Rights of the Child 258; Convention on the Rights of the Child (UNCRC) 292–3, 303, 318; Human Rights Committee 140 urine sample 90 VAT officials, right of entry 84 vehicles, searching 143–7 Victim Support 129 victimisation 325, 326; race discrimination 206–7; sex discrimination 221–2; for whistleblowing 338, see also harassment
INDEX video-recording: of child witnesses 321–2; of interviews 164 videos 48, 58, 85 violence 23–5; obscenity and 48; searches to prevent 146–7, see also terrorism violent disorder 23 voting rights, mental patients 288–9 wages 332–3; equal pay 339–40; maternity pay 340–1; redundancy pay 346–7; sick pay 343–4 wages council orders 332 Wales, National Assembly 110 ‘walking possession’ 87 warrants: search 147–8, 149, 150, 151, 175; Search Orders 85–6 ‘watching and besetting’ 27
383
water companies: complaints 126; right of entry 82 whistleblowers 337–8 women: employment 339–41; equal pay 339–40; maternity rights 340–1; prisoners 193, 194, see also lesbianism; sex discrimination workers’ rights 324–57, see also employment; trade unions Working Families Tax Credit, Travellers rights 370 wrongful dismissal 344, 346 young offenders 195, 318–21 Youth Court 179, 180 Youth Justice Board (YJB) 318 youth offending teams (YOTs) 318, 319
