HC Deb 22 July 1959 vol 609 cc1466-74

Lords Amendment: In page 2, line 8, leave out from "may" to end of line 18 and insert: avail himself of any facilities for such entry and inspection provided on the specified date, but shall, if so required, produce some duly authenticated document showing that he is authorised as aforesaid.

Mr. Ray Mawby (Totnes)

I beg to move, That this House does agree with the Lords in the said Amendment.

This Amendment is the result of an undertaking which I gave on Report, on 24th April. My noble Friend Lord Grenfell, in another place, has sought to carry out the undertaking given in this House, and this Amendment, and the one which follows it, do, I hope, fulfil the terms of the undertaking I gave, to make certain that, where a local authority wishes to enter into premises, if the occupier of the premises objects, the local authority will then have to go to a magistrate and apply for a search warrant before it can enter.

5 "(3) If it is shown to the satisfaction of a justice of the peace on sworn information in writing that a person required under the foregoing subsection to give facilities has failed to give them the justice may by warrant under his hand empower the local 5 authority, by any person authorised by them, to enter the premises in question, if need be by force, and inspect the furniture therein.
10 This subsection shall, in its application to Scotland, have effect as if for any reference to a justice of the peace there were substituted a reference to the sheriff or to a magistrate or justice of the peace having jurisdiction in the place where the premises are situated.
15 (4) A person empowered by or under the foregoing provisions of this section to enter premises may take with him such other persons as may be necessary, and, if the premises are unoccupied, shall leave them as effectively secured against trespassers as he found them.
20 (5) A person who wilfully obstructs any person acting in pursuance of a warrant issued under subsection (3) of this section shall be liable on summary conviction to a fine not exceeding twenty pounds, or in the case of a second or subsequent offence to a fine not exceeding fifty pounds."

Read a Second time.

Mr. John Hobson (Warwick and Leamington)

I beg to move, as an Amendment to the Lords Amendment, in line 2, after "writing," to insert: that there is reasonable cause to suspect that an offence has been committed under paragraph (a) of subsection (1) of this section and". We are discussing a position in which a local authority has suspected that an offence under the Bill has been committed. It has requested that facilities should be granted for access to be given for one of its representatives to go into a private individual's house to obtain evidence of the commission of a criminal offence and the owner of the house has refused to grant those facilities. He may well have done so because he is rightly satisfied that the local authority is acting under a complete misapprehension, that neither he nor anybody he has anything to do with or over whom he has any control has had anything to do with the commission of an offence, that there is no evidence on his premises and that nobody should be allowed to enter his private premises. In those circumstances, the local authority, if it desires to do so, can go before the justices and ask for a search warrant.

The ordinary procedure when application of that nature is made by a prosecuting authority, be it a local authority,

Question put and agreed to.

Lords Amendment: In page 2, line 19, at end insert:

a Government Department or the police, is that the justices are not a mere rubber stamp for the prosecuting authority, but, before they issue their warrant, must be satisfied that there is reasonable ground to suspect that the offence has been committed.

By the form of the Lords Amendment, the question would be left entirely to the prosecuting authority, namely, the local authority. In those circumstances, the local authority, if it desired to search a man's premises, coudl go to the justices and say, "He has failed to grant us facilities to enter the premises." The owner of the premises might appear and say," Quite right, too. I would not dream of having them in, because I have not committed any offence and the local authority does not have a scrap of evidence that I have committed any offence." The justices would have to say, "We must now issue the search warrant, because"—without the Amendment to the Lords Amendment—" the local authority has clearly shown that the facilities have been refused and we cannot enter into any question as to whether they were rightly refused or whether the prosecuting authority had the slightest ground for entertaining their suspicions."

I do not desire to attack local authorities generally, but they are not usually prosecuting authorities. Many of their officials, particularly those concerned with the enforcement of landlord and tenant legislation, are not in the ordinary sense concerned with what is or is not proper evidence for laying a criminal information.

We know from many of the cases that appear in the courts that some local authorities act from, occasionally, malicious and, sometimes, improper purposes. Those who are acting quite properly and who have sufficient evidence would be in no difficulty whatever in setting out before the justices the grounds of their decision. I cannot see why they should not do so and why the justices should not in this, as in every other, case have to be satisfied that there are reasonable grounds for suspecting that an offence has been committed before they go to the extreme step of authorising the search of private premises for the purpose of obtaining information as to whether a criminal offence has been committed.

I have summed up the purpose of the Amendment shortly. I certainly do not desire to detain the House any longer in moving this Amendment to the Lords Amendment.

Mr. F. V. Corfield (Gloucestershire, South)

I beg to second the Amendment.

Mr. Mawby

I should like to reply shortly to the Amendment. Naturally, not being a legal expert, I rely upon advice which is given to me by the best sources I can find available. I am advised that the Amendment is unnecessary, because, as my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) has pointed out, magistrates are not, and never have been, rubber stamps. People sometimes may feel that they should have that function, but under the proposed subsection (3) it is open to the magistrate to refuse the issue of a warrant if he is satisfied that the local authority is in any way acting improperly. He is under no compulsion at all to issue a warrant. Indeed, anyone approaching a magistrate for a warrant has to be certain that there is good evidence that an offence has been committed.

It is important that I should repeat what I said on Report, that the local authority has the right to institute proceedings without looking at furniture and fittings at all. It can take action. This Amendment is to make certain that the local authority will be doubly sure when it goes into court that there is a prima facie case against a person who has obviously broken the law.

12.30 a.m.

Mr. A. J. Irvine (Liverpool, Edge Hill)

Whilst the hon. Member has been speaking I ventured to jot down one or two instances. I think I am right in saying that when one applies for a search warrant under the Larceny Act, under the licensing Acts, under the dangerous drugs Act and under the wireless telegraphy Act one can only get the warrant on satisfying the magistrate that there are in existence reasonable grounds for suspecting an offence. Why does the hon. Gentleman seek to make any distinction in his treatment of this case? Granted that the justices are not rubber stamps and that they have a certain duty, why does not the hon. Gentleman want written into his Bill the statutory provision found in all the other instances?

Mr. Mawby

As I say, my advice is that the Amendment moved by my hon. and learned Friend, who is far more learned in the law than I am, is unnecessary and that the magistrate has power either to issue or not to issue the warrant. That, I think, is the important factor. For the reasons I have given I ask the House to reject my hon. and learned Friend's Amendment.

Amendment to the Lords Amendment negatived.

Mr. John Hobson

I beg to move, as an Amendment to the Lords Amendment, in line 4 after "them", to insert "or a constable".

This Amendment seeks to give the justice who is asked to issue a search warrant power to authorise not only the local authority but a constable to execute the warrant. This I regard with some importance.

If as the Lords Amendment now stands no alteration is made, all that the justice can do is to authorise the local authority to execute the search warrant without having the slightest control over what official the local authority sends to execute it because under the Amendment as now drafted the local authority may authorise any person it pleases to execute the warrant.

Anybody who has the slightest experience of the angry scenes that can take place at the doors of premises at which forcible entry is attempted against the will of the occupier under a search warrant will know that there are occasions when it would be vital to have the presence of a police constable in order to prevent a breach of the peace.

Under the provisions as they now stand, justices, even if they were convinced that there might be a breach of the peace if they issued a search warrant, would not have the power to see that it was executed by a police constable. This does not mean that the justices have to authorise a police constable; it only gives them the alternative if they think the circumstances are such that by issuing a warrant it might entail a breach of the peace and that a police constable ought to be present.

In all the Acts I have looked at, the Larcency Act, the Dangerous Drugs Act, the Childrens and Young Persons Act, and the Acts dealing with illicit stills and obscene books, the search warrant is executed by nobody but a constable, because the fact of issuing such a warrant is liable to lead to breaches of the peace at the time it is executed. I would therefore respectfully submit to the House and to my hon. Friend the Member for Totnes (Mr. Mawby) that it would be a wise provision to see that justices have the power to say, "This is a case in which a constable and not some unknown official whose seniority is quite unknown to us should execute this search warrant."

Mr. F. V. Corfield

I beg to second the Amendment.

Mr. Mawby

If these words were inserted the subsection would provide that the entry would be by a person authorised by the local authority or a constable, and the subsection would not allow it to be both. It is generally agreed that a police constable can never be accepted as a valuer in any sense of the word. In my view, the Amendment to the Lords Amendment would mean making certain that the warrant would not be issued to the local authority. In these circumstances, the whole thing would be a very involved procedure, by which the constable would be able to decide what person should accompany him to the premises.

That would mean we should not be carrying out what we really want to do, and we should not preserve what we want to preserve, the privacy of occupiers of premises, if they should want to stand on their rights and not agree to the right of entry. In most circumstances, I feel, occupiers would prefer to see the valuer given the right to enter the premises, than to have the procedure proposed by my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson), which would mean a procession of people, including a police constable, and under his aegis the valuer, coming to the premises.

I think the Amendment to the Lords Amendment is unnecessary, and I ask the House to reject it.

Amendment to the Lords Amendment negatived.

Mr. John Hobson

I beg to move, as an Amendment to the Lords Amendment, in line 15, after "necessary", to insert "and are named in the warrant."

My Amendment provides that if a search warrant is to be issued to enable more than one person to go to the premises those who are to go to the premises under the warrant should be named in the warrant. As the Lords Amendment is drafted A person empowered by or under the foregoing provisions of this section to enter premises may take with him such other persons as may be necessary. He considers that three or four other persons are necessary and goes along with them, none of them named in the warrant, the only person named in the warrant being the local authority, who are not even the people who are going to execute the warrant because somebody else will execute it on their behalf, under the Lords Amendment as drafted. One can imagine that on the door-step of the house there will be a considerable argument whether the third and fourth and fifth members of the party arriving at the front door are "necessary" or not.

I have been involved in litigation in another place about the right of three men to go on land to take rabbits. One was almost shot by a landowner. The litigation that ensued proceeded to the House of Lords on a point as to who was entitled to be or to remain on the land for the purpose of rabbiting. People get just as excited about troops of people arriving at their front door to enter the house. If a local authority thinks that more than one person is necessary to enter the house, why not ask the justices to put the names on the warrant? Then the person who executes the warrant, who, I am now horrified to hear, may be an independent valuer not connected with the local authority, will produce the warrant and say, "I have A, B and C with me and the justices have authorised them to enter as well."

All he now has to do, under the Bill, is to produce a warrant showing that such and such a local authority has authorised him to enter, and he may bring along those whom it is thought necessary to accompany him. One can imagine the arguments that will take place about trespass, and the circumstances in which that might be very unpleasant and dangerous. All that could be remedied if the local authority took the trouble at the time of the application and told the justices whom they wanted to go along. The justices could then put the names on the warrant and there would be no argument. It is for that reason that I regard the Amendment as desirable, in an attempt to have the enforcement provisions of the Bill made plain.

Mr. Corfield

I beg to second the Amendment.

Mr. Mawby

I have a great deal of feeling for the Amendment. On the face of it, it seems to tie the whole matter up by having all the people named on the warrant. But, in practice, I cannot see that there is any need to lay down that all the people who will be present must be named in the warrant. This is purely a case where the local authority considers that there is justification for feeling that the law has been infringed and it wants to examine the furniture and fittings to make certain that first opinions, based upon the inventory, are correct.

In those circumstances, I should have thought that the local authority would want to send to the premises only someone who could appear in court as a person competent to value furniture. There would be no need for that person to take with him a large number of people to have a look at the premises, even if the occupier said that he was not prepared to let him in other than on a warrant.

Another point is that under subsection (4) the local authority is entitled to send persons only when necessary. One could argue about how many people a local authority might feel it necessary to send, but I do not think that local authorities ever feel it necessary to send large numbers to do a job which could be well done by one man when there are so many other jobs to do.

Mr. John Hobson

It is not the fact that the person is authorised if the local authority thinks him necessary. The local authority might think him necessary and the courts might think him not, and then he would be a trespasser. The question is not whether the local authority thinks him necessary but whether the courts do.

Mr. Mawby

There again, my hon. and learned Friend is helping me, because if the local authority felt it was sufficiently justified in applying for a search warrant, I would have thought it would be prepared to institute proceedings against that person under the Bill.

12.45 a.m.

In those circumstances, if the defendant pointed out in court that a large number of people had descended on his premises I should have thought that that was a matter of which the court could take cognisance and that, therefore, the local authority would not send more people to enter the premises than were absolutely necessary.

I would also mention in passing that the Amendment as drafted would not work, because there is no parallel provision in Subsection (3) for a magistrate to include additional people in a warrant. For those reasons, I ask the House to reject the Amendment.

Amendment to the Lords Amendment negatived.

Lords Amendment agreed to.