Snooping on smokers and non-smokers in a public place
The BBC reported (and the rest of the mainstream media copied the story, often without attribution), about the enforcement of forthcoming Smoking Ban in England:
Last Updated: Thursday, 15 February 2007, 21:38 GMTThousands to police smoking ban
By Nick Triggle
Health reporter, BBC NewsThousands of council staff are being trained to police the smoking ban in bars, restaurants and shops in England.
Ministers have given councils £29.5m to pay for staff, who will be able to give on-the-spot £50 fines to individuals and take court action against premises.
They will have the power to enter premises undercover, allowing them to sit among drinkers, and will even be able to photograph and film people.
[...]
Ian Gray, policy officer for the Chartered Institute of Environmental Health and chief trainer for the government course, said he expected most councils would take a "softly, softly approach" at first.
"But there will be some occasions where action has to be taken and I am sure the compliance officers will not shy away from that," he added.
"These officers do not have to identify themselves when they go into premises and they can even film and photograph people to gather evidence although this may not be appropriate in many cases.
"There will be two ways of doing this, either staff can go in and identify themselves to the landlord, but they don't have to."
[...]
We are generally supportive of the smoking ban, and, judging by the way similar bans have been introduced in other countries, feel that it will be easy enough to enforce in pubs, clubs, offices etc.
However, we are totally opposed to the idea of undercover snooping and photography aimed at individual smokers and non-smokers alike.
We think that this sort of snooping on people, rather than inspections of licensed premises and places of work, is ultra vires.
In our view this constitutes Directed Surveillance under the Regulation of Investigatory Powers Act 2000, which, if conducted by an authorised public body, must be cleared by the Office of the Surveillance Commissioners, in each individual investigation.
This is totally disproportionate to the Fixed Penalty Notice fine of £50 (discounted to £30 if you pay up promptly), which is to be used to enforce this ban.
You are not supposed to get a Criminal Record if you are served with a Fixed Penalty Notice However, the forthcoming, yet delayed, police intelligence systems like the Information Management, Prioritisation, Analysis, Co-ordination and Tasking (IMPACT) programme, together with various Government data sharing plans, could record such snooping details about Fixed penalty Notices in an "intelligence" database, rather than an "official criminal record" database. Similarly, such Fixed Penalty Notice data is likely to end up on the various Childrens Act 2004 "risk factor" databases on children and their parents.
There are, however, massive practical problems with the abuse of Fixed Penalty Notices in this way.
Local authorities i.e.
17. Any county council or district council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, and any county council or county borough council in Wales.
are permitted to conduct Directed Surveillance according to the Regulation of Investigatory Powers Act 2000 section 28 (b), if authorised by
"Assistant Chief Officer, Assistant Head of Service, Service Manager or equivalent"
However this can only be for
"(b) for the purpose of preventing or detecting crime or of preventing disorder;"
but not for section 28 (e)
(e) for the purpose of protecting public health;
Which is what the smoking ban is supposed to be about.
The Enforcement Authorities are listed in
SI 2006 No. 3368 The Smoke-free (Premises and Enforcement) Regulations 2006:
3.—(1) Each of the following authorities is designated as an enforcement authority for the purposes of
Chapter 1 of Part 1 of the Act—
(a) a unitary authority;
(b) a district council in so far as it is not a unitary authority;
(c) a London borough council;
(d) a port health authority;
(e) the Common Council of the City of London;
(f) the Sub-Treasurer of the Inner Temple and the Under Treasurer of the Middle Temple; and
(g) the Council of the Isles of Scilly.
Neither
(d) a port health authority;
nor
(f) the Sub-Treasurer of the Inner Temple and the Under Treasurer of the Middle Temple;are mentioned in any RIPA schedules,
Therefore these Enforcement Authorities have no legal protection from being sued under the Human Rights Act if they conduct Directed Surveillance i.e. it will not be "in accordance with law" , which would otherwise invoke the exemption on Article 8 the right to Privacy, under the European Convention on Human Rights.
Even if they were allowed to do so, we contend that it would not be Proportionate to use Directed Surveillance techniques and technologies identical to those used against Serious Organised Criminals or Terrorists or Foreign Intelligence Agents, to persecute individual smokers, and to snoop on innocent people who are not smoking in a public place.
Similar restrictions on the proportionality of the use of Covert Human Informants i.e. informants and infiltrators, apply under RIPA section 29 so any "undercover" snooping would have to be by the actual "authorised enforcement officers" themselves.
Since the Police seem to have successfully evaded the unpopularity of having to enforce this smoking ban against individuals, the powers of a Police Constable are not available to the "enforcement officers".
They have to show their written authority, when they serve a notice on someone, either for failing to ensure that premises are smoke free, or for breaches of the no smoking sign red tape regulations, and also when they harass an individual smoker.
How is it possible for a member of the public to know that an undercover "smoking inspector" is really who they claim to be ?
Who is personally familiar with the signatures of every Local Authority senior managers, in every place that someone may travel to in the UK ?
The Department of Health have published a draft Fixed Penalty Notice form, which asks for the Name and Address of the person on whom it is being served.
The authorised enforcement personnel, have no statutory powers under the Health Act 2006 , unlike a Police Constable, to demand that someone identifies themselves correctly to them.
Why should anyone bother to give any name and address at all ?
If someone "obstructs" the "authorised enforcement officer" by giving a false name and address, they do not have any investigative powers to follow this up.
Fixed Penalty Notices for offences involving vehicles or premises are one thing, but they are entirely different when applied to individual people.
The "smoking inspectors" must never be allowed to demand to see your National Identity Card or to demand to check your biometrics against the National Identity Register.
Comments
Accepting what you have said above, is it within their powers to call upon a constable to be present when serving a notice if they find an individual unwilling to accept it.?
Posted by: IanP | February 17, 2007 10:12 PM
@ IanP - Until the new legislation is tested in court, who knows.
However, reading the Health Act 2006 and the accompanying Statutory Instruments:
http://www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/Tobacco/TobaccoGeneralInformation/TobaccoGeneralArticle/fs/en?CONTENT_ID=4080093&chk=bfqRIr
the "authorised enforcement officers" do not have any power of arrest, and they cannot even detain someone for 30 minutes, like the non-Constable Police Community Support Officers can, whilst awaiting the arrival of a real Police Constable.
A Police Constable. if called by previously covert "authorised enforcement officers" , or if accompanying them on an overt raid on premises, does not have the power to issue a Fixed Penalty Notice under the Health Act 2006, since the Police are not designated Enforcement Authorities.
They may of course intervene if an argument or fight ensues, but if an alleged smoker peacefully refuses to cooperate with the "authorised enforcement officer", and leaves, then there seems to be little that they can do about it.
Note also that the Health Act legislation is not limited to tobacco smoking, and the "authorised enforcement officers" seem to have powers to take samples of substances away for analysis, but nowhere in the Health Act 1996 is there any power for them to stop and search a person or a vehicle.
It seems foolhardy to expect untrained, unarmed, civilian "authorised enforcement officers" to effectively take over the duties of the Police or HM Excise, or the Serious Organised Crime Agency regarding, say marijuana or opium or crack cocaine or heroin smoking or even tax and duty avoiding tobacco smuggling etc.
Since the introduction of the Serious Organised Crime and Police Act 2005 section 110, which extended the powers of arrest by a Police Constable to make any offence "arrestable", the old idea of a "citizens arrest" was curtailed.
You can now only make a "citizen's arrest" if someone is possibly guilty of an indictable offence i.e. not one that can be dealt with in a Magistrates Court but which requires a Crown Court.
If you detain someone otherwise, you run the risk of being arrested and prosecuted for "wrongful detention", as has happened in a few cases already, to the fury of the Daily Mail (and us !) etc.
Posted by: wtwu | February 18, 2007 12:46 AM
@Ian P: Is the relevant bit of legislation. Basically: failure to give your name and address is punishable by a £1000 fine... or make you famous
Posted by: Anonymongo | February 18, 2007 2:07 AM
It also appears that the whole concept of trying to apply the smoking ban to vehicles has been handled with the customary NuLabour ineptitude with which we are so wearingly familiar.
Which Enforcement Authority is responsible for trying to impose a Fixed Penalty Notice on the occupants of a workplace related road vehicle, as it travels across Local Authority boundaries ?
It seems that the Labour Government intends to try to apply this to Merchant Ships, Canal Barges and Boats and presumably Aeroplanes as well, even though legislation covering these applies to the whole United Kingdom, not just England, which is what the Health Act 2006 is limited to.
What about Military Ships and Aeroplanes ?
Will an "authorised enforcement officer" attempt to try to board a Foreign Naval Vessel visiting , say, Portsmouth, in order to check for compliance with the "no smoking signs" regulations ?
Apparently Douglas Alexander, the Transport Minister is pretending to launch a public consultation on the issue,
presumably to rubber stamp even more bureaucratic red tape regulations by July 1st:
See
Raedwald - Government cock-up on smoking ban
Dizzy - You are now in international water... light up!
Posted by: wtwu | February 18, 2007 2:21 AM
@ Anonymongo - that is a different law, dealing with dog control orders, litter etc.
Some, but not all, of the "authorised enforcement officers" under the Health Act 2006 may well be authorised to enforce other bits of legislation as well, but they cannot simply abuse their powers granted to them under one Act to enforce another.
Posted by: wtwu | February 18, 2007 2:32 AM
So, the net tightens.
The ineptitude of government depts is by design.
http://tinyurl.com/2byxrv
Local Authority snoopers are being setup in the same way that the STASI began life, as a secret police force.
And the SOCA have been set up in exactly the same way that the Gestapo started life in 1933, and will become the political police of government.
http://tinyurl.com/2heznu
and The Civil Service College has been 'reformed' to become The National School of Government, to embed ideology into the civil service.
http://www.nationalschool.gov.uk/
the two most restrictive pieces of legislation (Civil Contingencies Act and LRR Act) have been stolen from the 1933 German takeover.
http://tinyurl.com/yrbqta
Think this country is in for a rough ride.
Posted by: IanP | February 18, 2007 10:16 AM
Another angle on this mess is whether these inspectors taking pictures and filming on the sly will be arrested by the Police for hostile reconnaissance! More at http://gizmonaut.net/blog/uk/institutionalised_snooping_hostile_reconnaissance.html
br -d
Posted by: David Mery | February 18, 2007 1:01 PM
The marine ban consultation proposals are hopeless. I can't spend more than a couple of hours a day picking them apart, but the first installment is on my blog at http://tinyurl.com/3cecr4
Posted by: raedwald | February 19, 2007 3:51 PM
I can not believe the government are putting this much money into this, surely the money could be spent better elsewhere?
Posted by: Craig Bullock | March 1, 2007 1:56 PM