Policy paper

Police, Crime, Sentencing and Courts Bill: supplementary memorandum by the Home Office, Ministry of Justice and Department for Transport

Updated 29 June 2023

Introduction

1. This memorandum supplements a memorandum dated March 2021 prepared by the Home Office, Ministry of Justice and the Department for Transport which addressed issues arising under the European Convention on Human Rights (“ECHR”) in relation to the Police, Crime, Sentencing and Courts Bill. This supplementary memorandum addresses ECHR issues that arise in relation to Government amendments to the Bill tabled for Lords Report Stage.

2. The government considers that the amendments which are not mentioned in this supplementary memorandum do not give rise to any human rights issues. The Convention rights raised by the Lords amendments are liberty and security of person (Article 5); fair trial (Article 6); no punishment without law (Article 7); private and family life (Article 8); expression (Article 10); assembly and association (Artilce110; discrimination (Article 14); and Article 1 Protocol 1 (peaceful enjoyment of property). The Department for Transport and Home Office analyses relate to particular amendments. The Ministry of Justice amendments have been analysed by reference to the relevant Convention article.

Home Office measures

Serious Violence Duty: information sharing – amendments to clauses 9, 15 and 16

3. Chapter 1 of Part 2 of the Bill includes provisions which establish a new duty on specified authorities to collaborate to prevent and reduce serious violence in England and Wales. To enable the disclosure of information for the purpose of functions conferred by the Bill, primarily preventing and reducing serious violence, clause 9 confers a power on the Secretary of State to make regulations which include a discretionary power to disclose information, clause 15 provides a discretionary power to disclose information and clause 16 confers a duty to disclose information.

4. The Government continues to consider the disclosure provisions in relation to the serious violence duty are compliant with the requirements of Article 8, and Article 14, to the extent it may be engaged, if authorities share information which relates or impacts on a protected group, for the following reasons. The information-sharing gateways continue to be subject to important statutory restrictions on disclosure of information. The Bill does not authorise or require the disclosure of personal data which contravenes the data protection legislation (as defined by section 3 of the Data Protection Act 2018), or a disclosure which is prohibited by the Investigatory Powers Act 2016 (Parts 1 to 7 or Chapter 1 of Part 9 thereof). If regulations made under clause 9(2) provide that a disclosure under the regulations does not breach an obligation or confidence or other restriction on disclosure, then the regulations must provide that they do not authorise a disclosure of information that would contravene the data protection legislation or a disclosure which is prohibited by the Investigatory Powers Act 2016 (Parts 1 to 7 or Chapter 1 of Part 9 thereof). In addition, the disclosure of information is only authorised for the limited purposes specified in the Bill.

5. The amendments provide that personal data cannot be disclosed under regulations made under clause 9 or under clauses 15 or 16, by a health and care authority, as defined in clause 10 of and Schedule 1 to the Bill. Furthermore, the amendments provide that personal information which is patient information cannot be disclosed under regulations made under clause 9 or under clauses 15 or 16. As a result, the amendments further limit the disclosure of information, in particular confidential patient information and personal data held by health and social care authorities.

6. Whilst personal data may continue to be disclosed by other authorities (unless it is patient data), it must only be disclosed if the disclosure is in accordance with the relevant provisions set out in the data protection legislation. In addition to the safeguards set out in the data protection legislation, the Human Rights Act 1998 will apply to the conduct of the authorities exercising the powers, although not expressly referred to in the Bill. The Government considers that the balancing of interests between the exercise of individuals rights to a private and family life on the one hand and the prevention and reduction of serious violence, on the other should be satisfied by compliance with data protection and Human Rights Act 1998 by the public authorities making disclosures of information. By preventing patient information and personal information held by health and social care authorities from being disclosed through the powers conferred in Chapter 1 of Part 2 of the Bill, these amendments will further the interests of individuals’ rights to a private and family life.

Offence of interference with use or operation of key national infrastructure – new clauses “Interference with use or operation of key national infrastructure” and “key national infrastructure”

7. New clause “Interference with use or operation of key national infrastructure” creates an offence where a person does an act which interferes with the use or operation of key national infrastructure in England and Wales, intending or being reckless as to whether the act will interfere with the use or operation. Key national infrastructure includes: road transport infrastructure (motorways and A and B roads); rail infrastructure; air transport infrastructure; harbour infrastructure; downstream oil infrastructure, and newspaper printing infrastructure (including periodicals or magazines). It is a defence if the person can show a reasonable excuse for the activity, or the act is done in the context of a trade dispute.

8. These provisions may be used in the context of protests where people are exercising their Article 10 right to freedom of expression and potentially their Article 11 right to freedom of assembly. These are both qualified rights. The offence will be set out in primary legislation and will be sufficiently precise to be foreseeable. The Government therefore considers that the provisions will be in accordance with the law. The offence pursues various legitimate aims, including the prevention of disorder and crime, and protecting the rights of others, and is necessary in a democratic society.

9. The ‘reasonable excuse’ defence will permit a fact-specific enquiry by a court, and enable consideration of the exercise of Convention rights. The amendment is proportionate as the court will take into account the specific facts. Further, the offence will only be committed where the operation of key national infrastructure is interfered with. The normal operation of such infrastructure is vital for activities such as the distribution of essential goods, including food, fuel and medicines and interference can result in significant disruption to the lives of the general public.

10. The police and the Crown Prosecution Service must comply with the Human Rights Act 1998 when making decisions around arrest, charge and prosecution and therefore must do so in a way that is compatible with an individual’s human rights. The court must do the same when carrying out its functions.

11. Article 6 is also engaged as a person who obstructs major transport works commits a criminal offence. It is a defence to show that there was a reasonable excuse for the interference, or that the interference was in the context of a trade dispute, and the usual safeguards provided for in the criminal justice system will apply. The burden of proof in relation to both defences is placed on the defendant given the general nature of the defence and the facts as to whether the defendant has a reasonable excuse being within their knowledge. The prosecution must still prove all the elements of the offence to the criminal standard of proof. Accordingly, the Government considers the provisions to be compliant with Article 6.

Department for Transport measure

##Minimum periods for Disqualification from driving – amendment to clause 66

12. Section 34(1) of the Road Traffic Offenders Act 1988 (RTOA) provides that, where a person is convicted of an offence involving obligatory disqualification, (see Column 1 of Parts I and II of Schedule 2 to the same Act), “the court must order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”.

13. The offences of causing death by dangerous driving under section 1 of the Road Traffic Act 1988 (RTA), and of causing death by careless driving (see S3A RTA), along with the other offences specified in section 34(4)(a), attract a higher minimum period – currently two years. The full list of offences is as follows:

• manslaughter, or in Scotland culpable homicide
• an offence under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving)
• an offence under section 1A of that Act (causing serious injury by dangerous driving)
• an offence under section 3ZC of that Act (causing death by driving: disqualified drivers)
• an offence under section 3ZD of that Act (causing serious injury by driving: disqualified drivers)
• an offence under section 3A of that Act (causing death by careless driving while under the influence of drink or drugs)

14. The minimum period of two years is also triggered, with certain exceptions, by a person on whom more than one disqualification for a fixed period of 56 days or more has been imposed within the three years immediately preceding the commission of the offence. See S34(4)(b).

15. The minimum period of two years currently increases to three years in the case of repeat convictions for any combination of the offences under the RTA listed in S34(3) within ten years of each other, which include causing death by careless driving when under the influence but not causing death by dangerous driving. The full list of repeat offences is as follows:

• section 3A (causing death by careless driving when under the influence of drink or drugs)
• section 4(1) (driving or attempting to drive while unfit)
• section 5(1)(a) (driving or attempting to drive with excess alcohol)
• section 5A(1)(a) and (2) (driving or attempting to drive with concentration of specified controlled drug above specified limit
• section 7(6) (failing to provide a specimen) where that is an offence involving obligatory disqualification
• section 7A(6) (failing to allow a specimen to be subjected to laboratory test) where that is an offence involving obligatory disqualification

16. The intention behind the proposed measures is to:

• increase the minimum disqualification period for a stand-alone offence of causing death by dangerous driving, and for a stand-alone offence of causing death by careless driving when under the influence of drink or drugs, from 2 to 5 years
• increase the minimum period for repeat offences consisting solely of causing death by careless driving when under the influence from 3 to 6 years

17. These measures will not alter the existing discretion under section 34(1) on the court to order disqualification for a period above the minimum or, where there are special reasons for doing so, to disqualify for less than the minimum period, or make no order for disqualification at all.

Convention considerations – summary of the government’s position

18. The government considers that both Article 8 of the convention, and Article 1 of the First Protocol to it (A1P1) are potentially engaged and potentially interfered with. However, we consider that any interference with those rights is fully justified.

19. We have considered whether Article 6 (the right to a fair trial) is engaged, but do not consider it is. This is because we are not creating a new offence or penalty or altering either the way in which any existing offence is tried or any existing appeal rights or other procedural safeguards. Neither are we altering the minimum rights of the accused. All we are doing is increasing the starting point for considering the length of an existing penalty, namely disqualification from driving, for two existing offences (see above).

20. The measure engages, but does not interfere unjustifiably with Article 8 rights, as it is fully in accordance with the law and necessary in a democratic society in the interests of public safety, and for the prevention of crime. The criteria for a justifiable interference in Article 8(2) is therefore considered satisfied. Any interference with A1P1 would be in the general interest, meaning that it would strike the requisite balance between the private interest of the property owner and the general interest of the community for an interference to be justified according to relevant case authorities.

Analysis

Article 8 ECHR

21. Turning first to Article 8, this provides that everyone has the right to respect for his private and family life, his home and his correspondence (Article 8(1)). Article 8(2) provides:

“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 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.”

22. It is well established that a person’s private life encompasses an individual’s right to form and develop relationships with others, including professional and business relationships. See, for example, Volkov v Ukraine (21722/11) [2013] IRLR 480 (ECtHR), where the judge’s dismissal from his employment engaged his private life under the convention.

23. It may arguably follow from this that, if an individual is disqualified from driving for an increased period as a result of this measure, and this causes him to lose employment, there is an interference with this or her Article 8 rights.

24. However, this measure will clearly be in accordance with the law, as that phrase is understood by the convention, i.e. that the measure must have some basis in domestic law, and must be sufficiently precise so that an individual can foresee with a reasonable degree of certainty the consequences of their actions or the circumstances in which the authority may take a particular course of action.

25. This is because the new disqualification periods will be plainly set out in domestic legislation. The law will also be sufficiently precise to enable individuals to foresee with a reasonable degree of certainty the consequences of their actions, as the new periods for disqualification will only apply to two specified offences, and in respect of offences committed on or after the date these measures come in to force, i.e. at the end of the period of two months after the Bill receives Royal Assent. See clause 66(4) and the commencement provision in clause 178(5)((g). Individuals will therefore be given entirely adequate warning of this change in the law, which will be fully prospective in its effects.

26. The measure is also considered necessary in a democratic society in the interests of public safety, and for the prevention of crime. a measure is necessary in a democratic society where there is a “pressing social need” for the interference, and where the interference is proportionate to that need. See Dudgeon v UK [1981] ECHR 5).

27. The pressing social need arises here because the Government considers that longer disqualification periods will provide a deterrent against dangerous driving, and because early evidence suggests that longer periods of disqualification are shown to be effective in reducing recidivism, especially the recidivism of drink drivers.. The measure is considered to be proportionate to the need because the two offences to which the new minimum disqualification periods relate – death by dangerous driving, and death by careless driving under the influence of drink or drugs, are regarded as the two most serious driving offences. The longer minimum periods provided for are only a starting point, and the courts’ discretion to set a period above or below the minimum, or to make no order for disqualification at all, is unaffected. This will ensure that penalties in individual cases will continue to be proportionate.

28. The measure is considered necessary in a democratic society in the interests of public safety because, if it deters more motorists from dangerous driving, and discourages people from reoffending, this has the potential to reduce the number of injuries and deaths on the roads. Crime will also clearly be prevented if the measure has this deterrent effect.

29. Any interference with Article 8 by this measure is therefore considered to be fully justified under Article 8(2).

A1P1

30. A1P1 provides as follows:

“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 a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

31. A person’s vehicle is clearly an example of a possession. This is probably equally true of the right to drive conferred by a driving licence, given that, by analogy, a right to fish conferred by a fishing licence was accepted to be a possession in R (Mott) v Environment Agency [2018] (UKSC 10).

32. It follows that A1P1 is engaged by this measure. The next question is whether the disqualification of a person from driving for a specified period amounts to a deprivation of property, or a mere control on the use of that property. This is important because the deprivation of property without payment of compensation can only be justified in exceptional circumstances (see Lithgow v United Kingdom (1986) 8 E.H.R.R. 329, at 120).

33. A control on use without compensation, whereas, may be justified in the “general interest”, which is done by showing that it is proportionate, and strikes a fair balance between the general interest of the community and the private interest of the property owner. See Sporrong & Lonnroth v Sweden (1983) 5 E.H.R.R. 35, at 73. A control on use is hence justifiable with reference to a lower threshold and a broader range of considerations, than a deprivation of property.

34. The government considers that this measure is a control on use. A person who is disqualified from driving for a specified period is not having his property, i.e. the right to drive, taken away from him permanently, but only temporarily, albeit in some cases for a long time. Moreover, the European Court of Human Rights (ECTHR) appear to regard the seizure and forfeiture of property by operation of a regulatory regime as amounting to a control of use, rather than a deprivation of property. See, for example, Agosi v United Kingdom [1987] 9 EHRR 1.

35. Although this was a case about the seizure and forfeiture by customs of smuggled goods, an analogy can be drawn with disqualification from driving, which involves the control on the use of property following a criminal act by the driver.

36. This measure can be fully justified as a control on use. It is entirely proportionate, for the same reasons given in relation to Article 8 at paragraph 17 above. For those reasons, and also those given at paragraph 18, it strikes a fair balance between the private interest of the property owner and the general interests of the community.

37. It is also notable that the preservation of safeguards for a real estate owner was held in the Sporrong case referred to above to be a relevant factor in determining whether a fair balance has been struck. As noted above, the government’s amendment preserves the safeguard of the court’s discretion to disqualify for a shorter period than the minimum, or not to disqualify at all.

38. Another relevant factor in determining whether the balance has been struck is where the accused is at fault, as in Air Canada v UK [1995] 20 EHRR 150), where an airline had had an aircraft carrying illegal drugs seized at Heathrow, pursuant to a measure which aimed at encouraging improvements in security, and it was held that the seizure had not been disproportionate. By analogy, a driver who has been convicted of a driving offence is at fault and so a measure aimed at discouraging dangerous driving is more likely to strike the requisite balance.

Conclusion

39. For the above reasons, it is considered that this measure engages, but only interferes justifiably with, Article 8 and A1P1.

Ministry of Justice measures – Convention article analysis

40. The following Ministry of Justice led Government amendments to the Bill raise ECHR issues:

1. Imposition of a life sentence for offenders aged 16 or over who are convicted of the unlawful act manslaughter of an emergency worker in the exercise of their functions
2. Increase in the maximum penalties for child cruelty offences: causing or allowing the death of a child or vulnerable adult (maximum penalty to be increased to life imprisonment); causing or allowing a child or vulnerable adult to suffer serious physical harm (maximum penalty to be increased to 14 years’ imprisonment) and cruelty to persons under 16 (maximum penalty to be increased to 14 years’ imprisonment).

Article 5

41. Article 5 provides everyone has the right to liberty and security of person, and must not be unlawfully deprived of their liberty. This requires that deprivation of liberty must not be arbitrary and there remains a causal connection between the conviction and the deprivation of liberty.

42. In relation to the measure which provides for a life sentence for those who are convicted of the unlawful act manslaughter of emergency workers in the exercise of their functions (above at 31(a)), Article 5 is engaged.

43. In order for a sentence not to amount to arbitrary detention, the court must retain discretion and be able to take into account material circumstances (R v Offen (Matthew Barry) (No. 2) [2001] 1 WLR 253). It is considered that Article 5 is not breached as the life sentence is not determinative or mandatory, and the court retains its discretion to determine whether it would be just to impose another sentence in the alternative, having regard to the circumstances of the offence and the offender. The Court will also retain the latitude to set the minimum term for a life sentence imposed under this provision, taking into account all relevant circumstances, further insuring against any sentence being arbitrary (R v McGill, Hewitt, Hewitt [2017] EWCA 1228, Venables v United Kingdom App no 24888/94).

44. With the sentencing measure at 31(b), the offence of causing or allowing the death of a child or vulnerable adult is to be added to Schedule 19 of the Sentencing Act 2020, meaning if the judge determines the offender is dangerous and the circumstances of the offence are sufficiently serious to warrant it, the offender must receive a life sentence. The addition of this offence to Schedule 19 will only result in a life sentence where the Court determines there is an apparent danger to the public posed by the offender of further serious offending, and that the circumstances of the offending are sufficiently serious so as to justify a life sentence, preventing any arbitrariness or unlawful interference with Article 5.

45. With both these sentencing measures, section 6 of the Human Rights Act 1998 will apply to the all sentencing exercises carried out by judges, ensuring these are undertaken compatibly with that Act. It is therefore considered that Article 5 is not breached by these measures.

Article 7

46. Article 7 provides that no one shall be subject to a heavier penalty than that which was available at the time the criminal offence was committed.

47. In accordance with the principles of lex mitior as reflected in R v Docherty [2017] 1 WLR 181, the sentencing measures at 31(a) and 31(b) will only apply to those who commit offences on or after commencement; therefore Article 7 is not engaged in relation to these measures.

Article 14

48. The measure at 31(a) may raise the issue of differential treatment between those persons subject to the new provision who are convicted of the unlawful act manslaughter of an emergency worker exercising their functions as such, who will be treated differently, and potentially less favourably, than those persons who are convicted of the unlawful act manslaughter of any other person (in conjunction with Article 5) by virtue of receiving a life sentence, unless the Court considers that there are exceptional circumstances that would justify the imposition of a different sentence.

49. Any distinction being created in this instance is a consequence of changes to sentencing going forward and offenders are unable to compare themselves to those sentenced under a different sentencing regime (Minter v UK (2017) 65 EHRR SE6 and R v Docherty [2017] 1 WLR 181). In Minter, it was held that the difference in treatment was that a “…different sentencing regime applied to him as a consequence of a new legislation. As such, his Article 14 complaint is indistinguishable from that which was declared inadmissible as manifestly ill-founded…[43]”. Therefore, being subject to a legislative change in sentencing regime is not an “other status” for the purposes of Article 14.

50. Neither is type of sentence (in this case, a life sentence) considered to be an ‘other status’, as the treatment complained of does not exist independently of the characteristic on which it is based. In the event that this were to be challenged, it is considered that the changes to the sentencing regime are objectively justified because the manslaughter of an emergency worker who is exercising their functions at the time of death causes greater societal harm than the manslaughter of any other person in the same circumstances, due to the particular value that emergency workers bring to society and the fact that they put themselves at greater risk because of the situations their roles take them into. It is therefore justified that when they are unlawfully killed while carrying out those functions, the perpetrators should be subject to more severe punishment, subject to the residual judicial discretion.

51. It is therefore the Government’s position there is no unlawful interference with Article 14.

The UN Conventions on the Rights of the Child

52. Article 37 of the UNCRC requires that no child shall be deprived of their liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. The youth justice system is distinct from the criminal justice system applicable to adults, focusing on the statutory aim of preventing offending by children and the welfare of the child. The measures in the Bill will not affect these fundamental principles.

53. The government amendment outlined above at 31(a) imposes a life sentence for any person who causes the death of an emergency worker acting in the course of their duties. This amendment applies to children aged 16 and 17. However, this amendment is compliant with Article 37: the sentence is not arbitrary as the life sentence is not mandatory and the independent judiciary retains its discretion to impose a determinate sentence if there are exceptional circumstances which relate to the offence or to the offender which justify it. Where a life sentence is imposed, the minimum term that must be served is also determined by the judiciary, taking into account all relevant circumstances surrounding the offence and the offender, which will include a child’s age and maturity. Furthermore, in their sentencing, the judiciary will take into account the principle aim of the youth justice system to prevent offending by children and the welfare of the child.

54. The government amendment at 31(b) also engages Article 37 as the offences of causing or allowing the death or serious physical harm of a child or vulnerable adult can be committed by children. In particular, the offence of causing death will be added to Schedule 19 of the Sentencing Act 2020. This measure is compliant with Article 37 as the life sentence may only be imposed after a judicial determination of dangerousness and if the circumstances of the offence are sufficiently serious to warrant such a sentence.

55. A child under 16 years old will be able to be made subject to the 14 year maximum for causing or allowing a child to suffer serious physical harm, but only where they are the parent of the victim. It is considered that as a parent, they have a special responsibility that other under 16s do not have and therefore it is proportionate for the offence (and any subsequent increase in maximum penalty) to apply in those cases. These increases are also considered to be compatible with Article 37 as the sentencing exercise will still be undertaken by the judiciary in accordance with the youth sentencing principles described above.

Home Office, Ministry of Justice and Department for Transport

1 December 2021