'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, Chris Robertshaw, Quintin Gill 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 Brenda Cannell 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 Steve Rodan 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 Tynwald'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 Isle of Man is just ten years old as in England. Interestingly that age is 12 years in Scotland, 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.