'Criminal Justice – Why so many new laws?' Positve Action Group, Manx Legion Club 25 June 2012

Good Evening, it's nice to be back in the Manx Legion Club – I think it's four months since PAG last held a meeting here. My aim is to keep this piece fairly short because what we all probably enjoy the most is the friendly kick around later on.

I will talk for about ten minutes about the proposed new criminal justice legislation and then for probably ten minutes about other justice issues coming up in the Government's legislative programme.

Some of you will have glanced at the list of Government Bills planned for this parliament that I left on your seats. It's a massive programme and 95 Bills are planned to be introduced over the next four years and much of it relates to justice and social legislation which I fear will impact on our privacy and liberty.

Just a couple of years ago the public forcefully rejected a contentious criminal justice bill containing many new police powers and it seems that failed legislation is on its way back - piecemeal.

Some of you will remember the PAG meeting held back in 2010 when Peter Murcott, , and I discussed the Criminal Justice (Miscellaneous Provisions) Bill 2010.

That Bill caused a political furore because it contained so many new policing measures that the public considered to be excessive. Amongst the 78 Clauses proposed were new powers of arrest, hate crime and tough new criminal justice measures directed at children. The public responded to the public consultation by sending in 80 submissions which really did made the politicians think. In the Keys we owe the demise of the Bill to MHK who proposed a motion to send the Bill to a Committee. After a passionate debate that's just what the house did - on the casting vote of the Speaker. As once explained to PAG it is the 'awkward squad' who make democracy work.

But, as we have just seen with the vote on the £24 million investment in Pinewood studios, this 's 'awkward squad' are too small to make a difference. If we had a re run of that criminal justice legislation today it would probably make it through the branches. So it makes it all the more important that the public use the consultation process to the full and make their concerns plain in writing whenever a contentious proposal is put forward. The consultation process does work and is the one thing we can rely on to get Government to properly consider our views and concerns.

So what happened when that Bill went off to a Select Committee? Well, the major issue with the Bill was that it was simply too large for a small parliament, like ours, to digest. Overloading politicians with lots of legislation is a time honoured political device used by the civil service to pursue agendas and get unpopular measures on the statute books.

So how did the Select Committee handle the criminal justice legislation they were given to report on? In the event Brenda Cannell, Chris Robertshaw and Quintin Gill found time to report on just 18 out of the 78 clauses in the Bill. So even in Committee, large Bills can be just too cumbersome to be fully scrutinised when you have only a few politicians to call on.

So did the Committee kill the Bill? Principally they recommended that the provisions in the Bill be returned in a series of smaller Bills and that these should be individually examined by a Committee in the next house. So when it all gets too large to handle lets keep kicking the can down the road. But will a Committee scrutinise the Bill this time? Well, the Government's 5 year legislative programme contains no less than 95 Bills, and that includes at least 8 or 9 bills relating to criminal justice. So Tynwald already has a major task on its hands.

So, when the public and the Keys said NO to more police powers – Government obviously didn't understand. Which syllable in the word NO is so hard to understand?

1 Cutting down criminal justice bills is like cutting the head off the mythical Greek Hydra – it just grows back with more heads. This is not to say that we do not need to amend our legislation as and when but we have the lowest crime rate in the British Isles, and despite the Bill falling, recorded crime has decreased even further. What is the problem we are trying to fix with so much legislation and the incremental ratcheting up of police powers?

So why are we here tonight? Well the first of the 'smaller' Bills the 'Criminal Justice Police Powers and Other Amendments Bill 2012' is out for public consultation until 24 July.

This first Bill contains no less than 35 clauses including some of the contentious measures previously dismissed. Is this going to be examined by a Committee? We don't yet know.

I will touch on just 2 of the 35 clauses in the Bill and then broaden the talk out to discuss other planned legislation.

The age of criminal responsibility in the is just ten years old as in England. Interestingly that age is 12 years in , around 14 years across the EU. The Minister has raised a concern that the only offence for which the police are currently allowed to hold a child in detention for questioning is homicide. So the proposal in Clause 22 is that children could also be held in detention for questioning for 'rape, arson and other serious offences'. It's obviously concerning that the Minister feels we have to consider these issues. However, what is also of real interest is that, when you drill deep into the nitty gritty of the actual clauses, it turns out that what is really being sought is a blanket power for the Department of Home Affairs to create an unlimited number of offences for which children can be arrested without a warrant.

Do we want children aged ten in police cells for very minor offences? I think the Bill should clearly set out exactly what offences the police should be allowed to put a child in a cell for. But the Bill doesn't do that. Instead what is actually being sought is a power for the police to be able to detain children for very minor offences. That's a big change but it's only when you examine the detail that the loophole becomes apparent.

The proposal also gives the impression that detention for questioning is considered as part of the punishment. But it's only the Courts that can issue a punishment – when guilt has been proved. There are obviously some good reasons why a child might end up in custody – but they should be clearly set out in the Bill and not reserved for civil servants to create in regulations at a later date when our attention is diverted.

Which brings me neatly onto the other new powers of arrest changes being sought in Clause 17 of the Bill. This proposes that we grant the police a power that would allow that:

'A constable may arrest without a warrant anyone who is about to commit an offence'

Let's stop and think about this. You have not committed a crime – yet you can be arrested. That's a lot of power because what happens with this is that everything then becomes an arrestable offence – equally. So we are getting away from the old idea that you only get arrested for something really serious – because this power would allow the police to arrest you for anything – before you have done it. This might be appropriate for,say, terrorism but is it necessary for every minor offence?

It is suggested in the consultation that there is a need to revise these police powers to make them more human rights compliant. But it seems to me that the power is cut and paste straight from English law. I think it has to be considered that, in Scotland, they cope without this power of arrest before you have committed a crime. In Scotland, the police can only arrest someone without a warrant if they are actually committing a crime. That sounds much fairer to me.

I think this change in the law will lead to an increase in members of the public being needlessly arrested. And, that's a particular issue of concern because, unlike England the Isle of Man does not have any custody time limits. This is an issue the Bill does NOT address.

I now want to draw your attention to other proposed legislation in the Government's programme.

2 There are other new Bills on the way which may contain new things that we might be arrested for. Much of the proposed criminal justice and social legislation would bring significant changes to our society here in the Isle of Man. Things like legislation on Hatred , Anti-Discrimination, Equality, Anti-Social Behaviour, Interception of Communications, and Extradition.

So what might we be arrested for in the future and how will the authorities be detecting these new crimes and where might we end up being prosecuted and incarcerated?

In the last Criminal Justice Bill proposed hatred laws were widely criticised. They were the most unpopular, might I say 'hated' aspect of the Bill! And it was one of the few things the Department actually admitted it had got wrong and decided to drop. Aside from the obvious issue of free speech the problem flagged up was just how do you actually define hatred and, in any case, why should it be illegal to hate? Why drive things underground? Is it not better to have all disagreeable points of view out in the open - even really offensive ones - where all can see them for what they really are?

Hatred laws in the UK do exist and they are used. Over 10,000 people a year are convicted of hate crimes and apparently they happen too frequently to report. But given that it's really difficult to define hate perhaps that is not surprising. Because what is honestly the difference between hating something a little - and angrily disliking something? This is the sort of law it is possible to grossly over interpret.

Consider what happened to David Jones, author of the Fireman Sam children's books. Last year Mr Jones had the pleasure of passing through Gatwick Security on his way to a holiday in Portugal. He happened to be wearing a scarf. Ahead of him in the security queue was a lady wearing a hijab who was allowed to pass through security without being asked to remove it. Mr Jones made a vaguely jokey remark to an airport security guard to the effect that:

"If I were wearing this scarf over my face, I wonder what would happen".

Was there anything offensive about that? I don't think so. But what then happened perfectly illustrates just how confused our attitude to free speech has become. The security staff immediately 'reported' the remark and found someone ( who hadn't even heard it ) to be offended by his observation (the Moslem passenger herself wasn't involved). Airport Security then confiscated Mr Jones's passport effectively blocking his travel. Having done that they were frankly unsure as to what to do with their captive and it was left to Mr Jones to break the impasse by asking them to call the airport police so he could be arrested. The police duly arrived and told Mr Jones:

"We now live in different times, and some things can no longer be said".

But at no time was he accused of an actual crime. There was no question of racism, sexism or any other type of 'ism'. The only 'ism' that appeared to committed was by the police whose suggestion that the 67 year old author was a bit behind the times was probably ageism!

For about an hour, Mr Jones, quite illegally, lost his liberty before being allowed on his way without charge. He certainly hadn't shown any hatred towards anyone or anything. He hadn't even shown dislike! Yet the way things have become interpreted has become so sensitive these days that officialdom felt entirely within their rights to detain him - illegally. The obvious effect of all this is that people will err on the cautious side of what they say to keep away from trouble. That's where hatred legislation has its real, and chilling, effect because it needlessly stifles free speech.

What a reflection on our times. But should we let this happen here? My own view is that in Britain we're pretty tolerant overall. I am proud of that and am all for encouraging everyone to get along with each other but I do not see that our good behaviour should be legislated for.

But the trouble is that Government these days does try to regulate our behaviour. And it's not just what we say but what we write that comes under ever increasing scrutiny. There is a furious row in the UK just now about the Government's plans to snoop on our emails and internet surfing habits. There is a draft bill before Parliament drably called the 'Communications Capability Development Programme'. The UK proposal is nothing less than to require all our email contacts and web surfing habits to be stored and made available,

3 at a moment's notice, to the police and the security services – without a judicial warrant. Who you email and what you surf on the internet is hugely personal. It would be like the police having a list of all the letters coming and going in and out of your house. And how and when this happens will be decided behind closed doors by officials without no input from the judiciary whatsoever.

I became interested in this proposal when it was first mooted a few years ago by the New Labour Government. Following a Freedom of Information request I got hold of the views of the various Telecom companies that expressed concern. Here is what the mobile phone company T-Mobile had to say about proposed state snooping:

'It would be extremely ironic if we at T-Mobile (UK) Ltd had to acquire the surveillance functionality envisaged by the Consultation Document at the same time that our parent company, headquartered in Germany, was celebrating the 20th anniversary of demise of equivalent systems established by the Stasi in the federal states of the former East Germany.'

Should we be worried about this? Of course the Isle of Man already has its own snooping laws which are monitored by the Surveillance Commissioner. And whilst anything the UK pass won't automatically apply here the Department for Home Affairs does plan to introduce an Interception of Communications Bill. So I think it's a good time to speculate that any new snooping laws the UK passes may well follow us over here too. People who feel they are being watched change their behaviour to conform and it's not right for Government to assume that's universally needed. As a leading barrister recently pointed out:

'We all have something to hide, even if it is not presently against the law. '

I think it's worth considering all the new arrest powers, additional arrestable offences for children, hatred legislation and possible new snooping laws and asking where we are going with all this. I don't recall any of this being talked about at the last General Election. Did anyone in this room have an MHK knock on the door saying he wanted more arrest powers, snooping laws and hatred legislation?

And when we talk about new laws and prosecutions we have to consider the ever more international nature of things and the reach of foreign jurisdictions into our own land. Because also tabled by the Department of Home Affairs is an Extradition Bill. The European Arrest Warrant is very difficult to contest and the USA has stronger extradition powers than the UK. Think of the current plight of Julian Assange of Wikileaks fame currently facing extradition to Sweden or 24 year old Sheffield student Richard O'Dwyer currently facing extradition to the USA for copyright infringement. So what is currently being mooted for us in the Isle of Man? Will the Manx Government support arbitrary deportation of local residents to foreign countries for acts that are not criminal offences here? Or will extradition laws be tightened up so that we can rely more on facing justice locally? Which would you prefer? The issue is important because a simple matter like breaking a local law on holiday, that you were completely unaware of, can lead to extradition these days.

Which, finally, brings me to the Prison where the next generation of culprits may find themselves residing if they fall foul of the new laws. A few years ago I sat in here listening to a presentation by the Howard League for Prison Reform. The fascinating information they gave out was that, whilst the Isle of Man has proportionately around half the crime, (and half the violent crime) of the UK, proportionately we spend four times as much on prison as England and Wales.

We have to ask what we are getting for this because, earlier this year a report by the Home Office Prison Inspectorate was published in Tynwald. There was some harsh criticism of the Jurby Prison, Amongst other issues they highlighted was the high level of re-offending and the lack of an island-wide strategy to reduce that re offending. Also, very critically, they found that 20% of prisoners are acquiring a drug problem from within the prison itself. In other words people are entering the prison clean – and leaving with an addiction which could lead to re offending.

That, surely, is the opposite of what should be happening and the problems need resolving - but I have yet to see the matter raised in Tynwald.

4 So, to wrap up, what is the political colour of all this massive legislative programme? Are we just being lined up with UK legislation for the sake of it? Or is it more a case of every Department being pragmatic and creating new measures as and when it thinks fit?

What I have spoken about is just a fraction of the vast amount of legislation our politicians will have to process over the next four years. And look how choked up the system got with the previous criminal justice bill. Even a select committee couldn't get through all the clauses. Frankly I think Westminster would struggle with it all. Much of what would be headline grabbing news in the UK media rarely gets a mention locally.

My own view is that the government needs to keep a tight reign on the volume of legislation coming to Tynwald. Given the crisis in the public finances things are, quite frankly, going to be undemocratic in terms of the money spend on public services. But we should have a say in how the available money is spent. Government wants to orchestrate debate in key areas like cuts in benefits. Fair enough, but we must also have a debate about the volume of legislation, because flooding us with bills is not very democratic – even if the parliamentary rules allow that. Every law you pass needs more civil servant time to administer and every additional offence created soaks up police time, and possibly prison time too. I would be worried that the real agenda is from a civil service that is intent on maintaining its own size and position in the Isle of Man.

So, to conclude, the overall point I want to make is that it really does matter that people take an interest and respond to public consultations – even just to comment on one clause. If PAG held a meeting for every proposed Bill we'd be here twice a month until the next election.

Tristram C. Llewellyn Jones

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