Clause 12.—(APPREHENSION OF OFFENDERS.) (Hansard, 13 February 1951)

§ The Lord Advocate (Mr. John Wheatley)
I beg to move, in page 5, line 32, to leave out "officer," and to insert "person."
I think that it might be for the convenience of the Committee if I dealt with similar Amendments in lines 39, 41 and 48 standing in the name of my right hon. Friend. These are merely drafting Amendments, the purpose of which was explained at an earlier stage in the proceedings.

§ Lord Dunglass (Lanark)
The Committee will remember that on subsection (2) we raised the matter of the owner of fishings being taken out of the classes of persons who may apprehend an offender under this Bill. Subsection (3) applies to the Tweed and raises the same kind of issue. I do not want to repeat all the arguments which I used on that occasion.

§ The Lord Advocate
On a point of order. As the noble Lord has said, practically the same argument was advanced when we were discussing the deletion of subsection (2), and at that time it was suggested from the Chair, and the noble Lord agreed, that it would be for the convenience of the Committee if we discussed the two Amendments together—the deletion of subsection (2) and the deletion of subsection (3). We proceeded to do so, and we went to a Division on the question of the deletion of subsection (2). I was under the impression that there was a ruling at the time that we were discussing these Amendments together, and that all that was left in connection with this Amendment was whether or not it should be passed.

The Deputy-Chairman
The noble Lord said, when I suggested that the two Amendments should be discussed together, that he agreed. I thought that it would be convenient to discuss them together.

§ Lord Dunglass
I have some new arguments to propose. Perhaps I could put them on the Motion, "That the Clause stand part of the Bill."

§ Brigadier Thorp (Berwick-upon-Tweed)
There is a legal point in connection with the subsection which I should like to raise.

The Deputy-Chairman
I think that the hon. and gallant Gentleman might raise that on the Motion, "That the Clause stand part of the Bill."

§ Brigadier Thorp
There is a legal point which I would like cleared up. Subsection (3) says: No person other than a water bailiff, constable or officer appointed as aforesaid … I am not clear to what the words "as aforesaid" refer. Section 38 of the Tweed Fisheries Act, 1857, deals with the powers of superintendents or bailiffs, and the only mention of the person "aforesaid" comes in Clause 37 of the Tweed Fisheries Act which, I understand, if the Schedules to this Bill are agreed to, will be annulled. Therefore, I am wondering to what this "aforesaid" refers. Who are these people who are appointed, and how are they appointed? Presumably, they are not appointed by the Secretary of State for Scotland. Are they appointed by the Tweed Commissioners? Perhaps the Lord Advocate would clear that matter up.

§ Lord Dunglass
I think that it would be useful in view of later Amendments if the Lord Advocate would say something about the position of the riparian owner and other individuals who have been taken out of the classes of persons who can apprehend offenders, as they used to do, under the 1868 Act. What is 252 the owner of a fishing to do if he comes across poachers with their gear, and there is evidence on the spot that they are offending against the Act? As the Bill is at present, it would seem that all the owner can do, if he is not to commit an offence himself, is to go to the police, but by that time the poacher will have decamped with his gear. It seems to me that it might be worse than that. A poacher might be able to defy the riparian owner and the owner of the fishings, and, as I understand that there is no law of trespass in Scotland, it would seem that the owner would have to go through the process of interdict before he could take any action.
These are matters of law, and it would be interesting to hear from the Lord Advocate why under this Clause he takes from the owner of property the right to apprehend persons, and whether he does not think that that is a mistake. This is a Bill designed to make it easier to apprehend poachers, but this Clause will, in fact, make it more difficult. If the Lord Advocate would give us his advice on the matter we should be grateful, and it would influence perhaps our actions in further stages of this Measure.

§ Mr. Charles Williams (Torquay)
When we discussed this matter before, the Secretary of State rejected an Amendment by doing which I thought he rather weakened this Clause. He made a somewhat interesting statement on that occasion, as follows: As far as I know, no one, certainly in recent years, has employed the 1868 Act, which the hon. Member for Torquay (Mr. C. Williams) finds so attractive and so essential." —[OFFICIAL REPORT, 24th January, 1951; VOL. 483, c. 263.] As far as I am personally concerned I have found it neither attractive nor essential. On the other hand, I think that it is necessary, with such wide areas as there are in the Highlands, that we should give powers to apprehend to anyone who is outside immediate communication either with the police or with the water bailiffs. I was surprised to hear that no one had used the powers in the 1868 Act for a long period. What I was not surprised at was that the Lord Advocate was unable to answer a question I had put as to whether there had been any abuse of these powers.
253 If the Government are really looking at this Clause in the interests of the Bill and necessary for the purposes of the Bill, they could make it more satisfactory if that power of apprehension were included. Salmon are an essential food supply and it is necessary that there should be some such powers to protect water courses, which may be five to 20 miles from a policeman or from where a water bailiff is to be found. Anyone who sees these pools being blown up should have the power to stop the miscreant and hold him until assistance is procured either from the police or from the water bailiffs.
I do not think that that power has been abused. The ordinary decent Scotsman, who is keen in looking after the food supplies of the nation and who dislikes fishing by these illegal methods, would not abuse these powers, and it would be a pity if between now and the Report stage we did not get this matter looked into very fully, so that it would be possible to keep in this Bill the power to see that everything possible is done to protect this extraordinary valuable source of food. I am one of the very last persons to urge that there should be excessive penalties or excessive powers of arrest. On this question on the last occasion I was attacked by the Secretary of State for Scotland. I have no intention of replying to that attack, but I think the right hon. Gentleman should not get himself all hot and bothered because it is suggested that the Government should meet the position at some later stage of the Bill.
I suggest to the Government that they should make this Bill watertight by following the course which I have suggested. As this Clause stands, there is a hole in it. There should be some protection for those spawning grounds to which the salmon go, and which are so often in quiet and lonely places away from police protection. It can only be given if this power is vested in other persons as well as the police and water bailiffs. I welcome what the Government are doing, and I have no hostile intent towards their Bill. In my opinion, however, this omission is a grave defect in the Bill, and I suggest that the Government should consult people like the water bailiffs and those who are to administer this Bill to see whether they agree with the views that have been put forward in 254 regard to these arrest powers. I am glad to have had the opportunity on this Clause to emphasise what I think is a very weak spot.

§ The Lord Advocate
The hon. and gallant Member for Berwick-upon-Tweed (Brigadier Thorp) was greatly perturbed about the meaning of the word "aforesaid" in subsection (3). That "aforesaid" refers to appointments made by the Secretary of State in pursuance of Clause 10. If the hon. and gallant Gentleman will look at the opening words of Clause 12 (2) he will see that the various people are set out in extenso. In subsection (3) we find that the same people, the water bailiff, the constable and the officer are appointed "as aforesaid." That "aforesaid" has relation to subsection (2) and that is the beginning and end of the hon. and gallant Gentleman's difficulty.

§ Brigadier Thorp
What powers has the Secretary of State to appoint officers in England?

§ The Lord Advocate
The point is that any person who is appointed here under Clause 10 by the Secretary of State is appointed to cover any parts of the river covered by the Bill. The district board, if I recollect properly, which deals with the stretch of the Tweed which runs into England is exactly the same board as that which deals with that part of the Tweed which runs in Scotland. Therefore, an officer if he were appointed in that area would have the same power as if he were appointed a water bailiff by the district board, only that he would be appointed by the Secretary of State as one of the officers in pursuance of the powers conferred by Clause 10.
The noble Lord the Member for Lanark (Lord Dunglass) asked me to explain why we were departing from the general statutory powers which were conferred by the 1868 Act on persons to effect arrests. We discussed this fairly fully on the Amendment to delete subsection (2) of this Clause, and I do not want to reiterate the arguments at any great length. The Committee must appreciate that when this Statutory right of arrest was conferred under the 1868 Act, the police force was not of the same nature as the police force today. The power to employ water bailiffs was presumably not as extensive as it is at the present time. 255 Accordingly, we cannot take the criterion of 1868 as the criterion of 1951.

§ Captain Duncan (South Angus)
Nor can the poachers.

§ The Lord Advocate
Unfortunately, and unlike the hon. Gentleman, my experience of poachers does not go back to 1868. We have to try to balance the rights of individuals to have their property protected and the rights of the citizen. Why we decided to confine the powers of the Clause to the various people referred to was that each of them is a person with some ostensible authority, such as a police constable, a water bailiff or an officer appointed by the Secretary of State, each with a warrant of authority. They can produce their warrant of authority and thereby effect an arrest better than it can be done by a person without any such ostensible authority.
If a person without ostensible authority went up to a person who was fishing in a particular stretch of river, and who might or might not be committing a criminal offence under the Bill, and said, "I am going to take you down to the local police station in order to charge you," we might be involving ourselves in a great deal of trouble. As I indicated at an earlier stage, we might have other charges involving breaches of the peace. We have to take such factors into consideration.
Accordingly, we thought it desirable and justifiable that, in re-enacting the powers in this year of Grace, 1951, we should have greater regard to the conditions applying today as against those which applied in 1868, and we should take into account the very important factors to which I have referred. We must recognise that under the Bill we are extending the powers of the various officers in relation to the power of search without a warrant. If we are to give power of arrest to the people suggested by the noble Lord, it seems equally logical to give them the power of search. If we examine that proposition again, I think the Committee will appreciate what trouble might arise if a person without any ostensible badge of authority sought to operate the power of search without a warrant. It is principally for those reasons that we have decided to restrict the Clause in the present Bill.
256 The hon. Member for Torquay (Mr. C. Williams) wondered if there was any evidence of abuse of these powers in the past. There has not been to my knowledge any evidence of abuse, largely for the reason explained by my right hon. Friend that there has not been any use. If there has been no use, there is not likely to have been any abuse.

§ Mr. C. Williams
I thank the Lord Advocate for giving way. Does he really mean that there has never been a case where someone poaching salmon in Scottish rivers has been stopped and handed over to the police? I can hardly believe that that has never happened, when there has been stealing on a considerable scale. I think I have heard, even on this Bill, people say that men have been trying to stop poaching. Was there not an occasion where there was some trouble about a net.

§ The Lord Advocate
I am coming to the point which the hon. Gentleman anticipates. I am not saying that there were not prosecutions, but in many cases they were due to the activities of district boards, water bailiffs or the Fishmongers' Company with which the hon. Member for Moray and Nairn (Mr. J. Stuart) is associated as prime warden. It was through the agency of these bodies that prosecution took place. I cannot give with the same authority the answer I might give in other circumstances, because many of these prosecutions were private and not public. The knowledge at my disposal relates only to public prosecutions.
Private prosecutions do not come through my department and are not examined by my officials. I cannot speak with the same authority in relation to private prosecutions. Certainly there has not been a great number, and those which have taken place have been instigated by boards or other interested bodies whose employees have been successful in collecting the necessary evidence to institute proceedings.
As far as I know—and I say this with the qualification that I do not know of these cases of private prosecution but only of cases of public prosecution—there has been no great handicap occasioned in the obtaining of evidence merely because the owner would not have the right to effect an arrest. Weighing the balance of advantage against disadvantage, and having in 257 mind the trouble that might be created by giving this power to people who have no ostensible authority, the Committee may feel that we are wise in restricting the power of the Clause to these persons.

§ Mr. C. Williams
I again thank the Lord Advocate for giving way, and I appreciate what he has said. I am sure, from the speeches we have heard before, that there is a great deal of substance in the point he has made, but I want to ask whether, between now and the Report stage, the Lord Advocate will go into this matter again and see whether it is possible to meet us in some way. I am not asking for extreme measures, but that he shall look at the matter with a view to meeting the point of view which has been put forward.

§ Mr. Peter Roberts (Sheffield, Heeley)
I hesitate to intervene in this Debate, except on a question of principle. The Lord Advocate has apparently put forward a query that one must have a badge of authority in order to effect an arrest.

§ The Lord Advocate
No.

§ Mr. Roberts
I am sorry, but I understood him to say so.

§ The Lord Advocate
I did not say "a person without a badge of authority." What I said was that without a badge of authority a person trying to effect an arrest might create a great deal of trouble which could not be foreseen.

§ Mr. Roberts
That is the idea, but perhaps I was wrong in point of detail. I see a difficulty. Why should not the owner have the authority. All he has to do is to say, "I am the owner," and having said that he would have the right of arrest. He takes the poacher to the local police station. I may be asked what happens if he is wrong and is not the owner. I assume that the person arrested would have a case for wrongful arrest against him just as in the case where a man says, "I am a policeman, and I am going to arrest you."

§ The Lord Advocate
Does the hon. Gentleman know of any policeman in plain clothes who does not carry a warrant of authority about with him?

§ Mr. Roberts
The argument is that a person who has not a warrant of 258 authority cannot make an arrest. Is that the suggestion?

§ The Lord Advocate
We are talking about statutory power. If a constable is not in uniform and is not on duty he is not a constable within the meaning of the Bill.

§ Mr. Roberts
I am trying to get over a question of principle, which is that the owner is in a particular position of authority. If, for the purposes of the Bill, it should be suggested that he should carry something on him to show that he is the owner, and if that is the only difficulty which the Government have, it may be that the difficulty can be got over in that way. To say that the owner is not a person of particular authority to deal with people who go upon his land seems an extraordinary argument and one that I should like to oppose now as being the first time that I have heard it.

§ Lord Dunglass
We are not really satisfied on this and should like the Lord Advocate to look at it again before the Report stage. He has based his objection to including the owner of the fishings in the classes of person who are entitled to apprehend largely on the fact that the owner has no badge of authority. One way might be for the Secretary of State to nominate all riparian owners. We do not particularly press this procedure. We feel that there has been no abuse since 1868 by owners of this privilege and right.
If it is of any interest to the Lord Advocate, I apprehended a poacher the other day with a good deal of trepidation. He was shooting without a gun licence, a game licence or anything. He would have got away if I had had to go and collect a policeman. We feel that the owner on the spot, particularly of a river bank, is in a position to help to apprehend offenders, which is, after all, the object of the Lord Advocate's own Bill—to make apprehension easier. Without pressing this any more at this stage, we should be grateful if the Lord Advocate would look into ways and means of helping us in something about which we feel strongly.

§ The Lord Advocate
This proposal is much narrower than that in the Amendment which was moved originally. The existing law gives the power of arrest to any person whomsoever. All I under- 259 stand the noble Lord to be pressing for is the inclusion of the owner somewhere or other. I will certainly give an undertaking to look at this more limited aspect of the subject before the concluding stages of the Bill.

§ Mr. Malcolm MacMillan (Western Isles)
It might also arise that someone had a lease, however short, of the fishing and might be the tenant most directly interested for a short period? Would he have the same power, being the most directly interested party at the time?

§ Mr. Mitchison (Kettering)
I would ask the Lord Advocate to bear one possibility in mind. The limit between the land of one owner and another and the limit between the fishing of one owner and another is not always certain. It is possible that there might be a mistake. The Lord Advocate should make certain that he includes power for one owner to arrest another.