Scrutiny : third progress report : seventh report of session 2004-05 : report, together with formal minutes and appendices / House of Lords, House of Commons, Joint Committee on Human Rights.
- Great Britain. Parliament. Joint Committee on Human Rights
- Date:
- 2005
Licence: Open Government Licence
Credit: Scrutiny : third progress report : seventh report of session 2004-05 : report, together with formal minutes and appendices / House of Lords, House of Commons, Joint Committee on Human Rights. Source: Wellcome Collection.
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![3.18 We welcome the introduction of the requirement that intimate searches for drugs may only be undertaken when the person to be searched has consented. Carrying out such searches without consent, as provided for under the present law, carries a very considerable risk of violation of the right not to be subjected to inhuman or degrading treatment under Article 3 ECHR, as well as an unjustified interference with the right to physical integrity under Article 8 ECHR.® Introducing a consent requirement therefore enhances compatibility with human rights. 3.19 Providing for the drawing of adverse inferences from a refusal to consent to an intimate search or an X-ray or ultrasound scan, however, raises a separate question of compatibility with the right to a fair trial in Article 6(1) ECHR. Permitting adverse inferences to be drawn in criminal proceedings from a refusal to consent to an intimate search, or to an intrusive procedure such as an X-ray or ultrasound scan, in our view engages the privilege against self-incrimination which has been recognised by the European Court of Human Rights as lying at the heart of the right to a fair trial.™ 3.20 According to the Court’s case-law, the drawing of adverse inferences from an accused’s silence, or refusal to answer questions or to give evidence himself is not per se incompatible with the right to a fair trial in Article 6(1). The Court has clearly stated that an accused’s silence, in situations which clearly call for an explanation from him, can be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. To determine whether there has been a breach of Article 6, the Court will look at all the circumstances of the particular case, including the safeguards that are in place to ensure both that the person is fully aware of the consequences of staying silent and that excessive weight is not placed on the silence by the court or the jury. The need for safeguards is particularly acute where the question of guilt is determined by a jury.” 3.21 Whether the provisions in the Bill providing for the drawing of adverse inferences are likely to give rise in practice to breaches of Article 6(1) ECHR will therefore depend on the adequacy of these safeguards. None are set out on the face of the Bill. We therefore draw to the attention of each House the need for safeguards to be put in place to ensure that excessive weight is not placed on a refusal to consent to an intimate search or an X-ray or ultrasound scan, and in particular for the police to be required to ensure that individuals are aware of the consequences of refusing such consent, and that adequate guidance will be given by judges to juries. Compulsory drug testing on arrest, compulsory assessments of misuse of drugs and intervention orders (clauses 7, 9-10 and 20) 3.22 A number of the remaining provisions of the Bill are avowedly designed to coerce drug users into drug treatment programmes. These include the power in clause 7 to carry 63 Wenote that the Court of Appeal in R v Secretary of State for the Home Department, ex p. Carroll, Al-Hasan and Greenfield [2001] EWCA Civ 1224 held that “squat searches” in prison, to search for items concealed in the genital area or the anus, although adversely affecting the dignity of a prisoner, are nevertheless lawful if conducted “for good reason”. We doubt that this conclusion is correct as a matter of Convention law, and agree with commentators who regard the carrying out of intimate searches without consent as likely to involve breaches of Article 3 ECHR: see for example, Feldman, Civil Liberties and Human Rights, (2nd edn., 2002) at 412-416. 64 See for example John Murray v UK (1996) 22 EHRR 29 65 See Condron v UK (2001) 31 EHRR 1](https://iiif.wellcomecollection.org/image/b32221873_0023.jp2/full/800%2C/0/default.jpg)
