§ Mr. David Steel
I beg to move amendment No. 145, in page 3, line 7, after 'to' insert:'a suitable place named by that person, or if no such place is named, to'.The purpose of the amendment is to replace the requirement in the Bill that a person detained will be taken to a police station or other premises by giving the detained person the opportunity to name the place to which he should be taken. It is common ground, regardless of the merits of the argument, that the Bill extends the power of the police. It is reasonable that if a person is detained without charge and deprived of his liberty he should be able to nominate a suitable place for the police investigation to be conducted, particularly if the police are not to be presumed to wish to apply unreasonable pressure.
Obviously I do not propose a universal discretion. That is why the word "suitable" is in the amendment. Clearly, the home of a suspected accomplice would not be a suitable place if that might lead to the detainee avoiding apprehension. However, the detainee's home should be regarded as a suitable and reasonable place. I am in part motivated by the dictum of Lord Justice Cooper in Her Majesty's Advocate v. Chalmers 1954 in which he said that a police station was a sinister venue for the questioning of suspects. If that were true under the old law it is even more true under the proposed powers of detention. The amendment provides a suitable alternative.
§ The Solicitor-General for Scotland
The right hon. Gentleman proposes a wonderful concept. However, we must be clear that the power of detention, which is a restrictive power, has been exercised on what is in law a voluntary basis. I 390 cannot conceive of a situation in which a person who is to be detained will be able to select the place of his detention. The right hon. Gentleman suggests that a detainee should not be allowed to go to the home of an accomplice but should be allowed to go to his own home. Perhaps he might also be allowed to go to his own pub or club, or any place where his friends meet.
Who is to judge what is "suitable"? The assumption is that the choice should be that of the detainee. He is the person who, it is proposed, would be able to say that he will be detained in the Smoking Room rather than the Tea Room or the Chamber of the House of Commons. What is "suitable"? With respect to the right hon. Gentleman, the concept is fatuous. We are interested in the concept of inquiry into a person who is suspected of committing a serious offence. It is a matter of inquiry.
The safeguards that we have built into the Bill are that there should be in the police station tape recording—when it comes—the ability to fingerprint, the recording of the time when the person arrives and leaves, and the check of other officers and independent persons. I cannot see that the amendment would give any benefit to the person who was detained. It might make a mockery of the whole investigation of justice, without any benefit.
I hope that the right hon. Gentleman will seek to withdraw the amendment.
§ Amendment negatived.
§ Mr. David Steel
I beg to move amendment No. 146, in page 3, line 14 at end insert'and when a person has been detained under subsection (1) above for a period of six hours, he shall be informed immediately upon expiry of this period that his detention has been terminated.'.I am fairly certain that this amendment, unlike my two previous amendments, should be pressed strongly. Its purpose is crystal-clear. It is to ensure that a detainee is aware that he is no longer obliged to remain in the police station, his period of detention under the measure having terminated. Without such mandatory provision, as the Bill is now drafted the police would easily be able to extend the period, albeit that it would then be termed "helping the police 391 with their inquiries", after six hours had expired, because the detainee could still be ignorant of his right to leave.
I have not suggested in the amendment any reduction in the six-hour period. That is a separate issue, which was debated at length in Committee. I do not approve of the six-hour period, but if we are to have it—and there is clearly a majority in the House to sustain that view—it is important that there should be a specific provision in the Bill that the detainee shall be informed that at the end of that period he is free to leave if he wishes.
§ The Solicitor-General for Scotland
I have more sympathy with the concept behind this amendment than with that behind the right hon. Gentleman's two previous amendments. Perhaps the right hon. Gentleman is moving closer to reality.
Under subsection (4) (f),the time of the person's departure from the police stationmust be recorded. If the police wished to use anything that happened thereafter—and, indeed, probably anything that happened before—they would have to justify any detention after the expiry of the six-hour period and prove that it was voluntary.
As the police must release or arrest and charge at the expiry of the six-hour period, it seems to me strange that one should have to advise the person at that point, when in any event one must release him or fall foul of the law, which says that he is entitled to go.
If the right hon. Gentleman says "We cannot trust the police", the answer is that in that case we could not trust them to carry out his amendment any more than to comply with the Bill as it is proposed. Therefore, it is unnecessary to make the amendment, and I ask the right hon. Gentleman to seek leave to withdraw it.
§ Mr. Millan
I am not impressed by that reply. The clause contains much detail and a number of safeguards, but there is still considerable concern about many of the basic provisions.
I am attracted to the amendment. I do not think that it would damage the Bill. It is well drafted. The Solicitor-General for Scotland did not say that there was anything wrong with the drafting, and I urge him to reconsider his 392 attitude. We do not want unnecessary Divisions, and the amendment is a sensible provision which fits neatly with the rest of the clause. It would be an additional safeguard for detainees who may not be aware that they are free to go.
§ Mr. David Steel
The Solicitor-General for Scotland introduced an unfortunate note in his reply. I did not raise the question of trusting the police and I do not believe that it is the right concept to bring up in this debate. It is not a question of trusting or not trusting the police. The hon. and learned Gentleman must be aware that the Bill proposes a major extension of police powers. Whether we agree with it or not, it is a major encroachment on individual liberty. It is right that the House should watch carefully the procedure that is being used.
It is obvious that the average citizen will not be as conversant with the law as is the average policeman. If we write the amendment into the Bill, a person will have to be informed after six hours that he is free to go. That would be an important safeguard.
§ The Solicitor-General for Scotland
I remind the House that subsection (2) provides:Detention under subsection (1) above shall be terminated not more than six hours after it begins".If it is not so terminated it will be a breach of the law. It is not sufficiently understood that persons will be in de facto detention in Scotland, not only for infinitely shorter periods than they are in England but for much shorter periods than they may presently be in Scotland under their misunderstanding of the law.
I am sympathetic to the concept of the amendment. I concede that a detainee may not know whether he has been in detention for two hours or 10 hours. However, a policeman will know, although his watch may have stopped. On balance, this is not a matter that we should argue about. It would be reasonable that a person should be advised that the six-hour period had ended and that if he intended to remain thereafter he was remaining voluntarily and not as a detainee, which is, perhaps, a position that few who have gone to a police station in Scotland have understood hitherto. I accept the amendment.
§ Amendment agreed to.393 9.30 pm
Mr. Deputy Speaker
With this it will be convenient to take the following amendments:
No. 149, in page 4, line 6, at end insertand in any event, no answer given shall be admissible in evidence unless recorded by tape recorder, which recording shall be the only admissible evidence of any answer given. A copy of the tape recordings shall be made available to the detainee or his solicitor within seven days of a decision to institute criminal proceedings against the detained person.'.No. 150, in page 4, leave out lines 7 to 19.
No. 151, in page 4, leave out lines 13 to 19 and insert'provided that in the event of a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under Section 182 or 383 (absolute discharge) or 183 (i) or 384 (i) (probation) of the 1975 Act, all records of the prints and impressions so taken shall be delivered to the person or his solicitor within seven days of such an event.'.No. 152, in page 4, line 21, leave out'or by paragraph (b) or (c) of subsection (5), above'.No. 9, in page 4, line 27, at end add—'(8) Any questions put to a person and any replies given by him while in detention in a police station detained under subsection (1) above shall not be admissible as evidence in any subsequent trial unless they have been tape-recorded or video taped and the said tape recording or video recording and a transcript thereof is lodged as a production in court.'.
§ Mr. Dewar
We now plunge into an extremely important group of amendments—one that I approach with a somewhat faint heart. Amendment No. 6 is a radical attack upon the principles underlying the clause. Amendment No. 9, which deals with the tape recording of extra-judicial confessions or statements made during the period of detention, is one of the fundamental safeguards laid down in the original report of the Thomson committee.
I say "with a faint heart" not because my position has in any way abated but because I recognise that these matters were debated extensively—and I use that word in its fullest sense—in Committee. Several forests in Scandinavia must have 394 been cut down to provide the paper on which the proceedings were recorded. In fairness to the House I shall be fairly brief in rehearsing the argument. I am tempted to delve into the ramifications of the admissibility of evidence, the tests applied and the cases of Hartley, Chalmers and the many others that we lovingly dissected during many a morning, afternoon, evening and night in Committee. But that would not make me popular, and it would not contribute to the debate on Report.
I think that I speak for one or two of my hon. Friends on the Opposition side of the House. Amendment No. 6 seeks to remove from the clause subsections (5) and (6). That would not destroy the right of a police constable to detain a person for a period of up to six hours under the terms of the clause. It would mean that when he took him to the police station he would not have the right to question him about the suspected offence, to search him in the way that he would be able to do following arrest, or to take fingerprints, palm prints or such other prints or impressions that, having regard to the circumstances, the constable might consider appropriate.
I freely concede that if the amendment were to succeed it might mean that few detentions would be made under the clause. Those who think that the clause is a splendid innovation, liberalising the law and making the work of the police in Britain more effective, will doubtless look "sidiewise"—to use a Scottish colloquialism—at the amendment. I do not take that somewhat hopeful view. The clause is a thoroughly dangerous innovation. With the aid of the few hon. Friends that I can gather I intend to divide the House on that issue in the not too distant fuure.
Put in its simplest terms, we object to the whole concept of detention as it is embodied in the clause. When I say "we", I refer to those who share my point of view, of whom there are many on the Labour side of the House. I suspect that there are a number of, at least, doubters on the Conservative side of the House. I look at no one in particular on that point. I am sure that, statistically, there must be a few men of good sense and liberal view scattered somewhere in the dark recesses of the Scottish Conservative Party.
395 It is a fundamental right of the citizen to be able to go about his business as he wishes and under his own control until such time as the police, because they have sufficient evidence, are in a position to effect an arrest and, subsequently, to charge him. The clause envisages that at a time when suspicion arises—which is a key part of the clause mechanism—but when there is not enough evidence to justify an arrest, the police should be able to "huckle" the suspect and take him to a police station for a period of up to six hours for the specific purpose of questioning him. We wish to remove that last part because we regard it as the most obnoxious and dangerous part of the proposal before the House.
It is a totally inescapable conclusion that the only purpose of taking someone to the police station with a view to questioning him about the offence is in the hope that the evidence which is lacking—the evidence which was not there and without which it was impossible to arrest and charge—will be made good. In other words, the point of the procedure—I do not think that there can be much argument about it—is the hope that the suspect will put himself in further jeopardy by making some sort of self-incriminating statement. That seems to me to be a very dangerous idea indeed.
I believe that citizens have a duty to help the police with their inquiries. If someone wishes to co-operate and go on a voluntary basis to the police station, I am thoroughly in favour of that being done—as long as all the parties are clear about the basis on which he is attending.
I also accept—it was one of the clearer things that the Solicitor-General said in the last debate—that there are occasions when people are ignorant of their rights and, perhaps in ignorance of those rights, attend at police stations. But the fact that there is that kind of misconception and that people are ignorant of their right not to co-operate—or ignorant of their right to leave once they have gone to a police station on a voluntary basis, or choose not to exercise that right—is not necessarily a good argument for abolishing that right.
We ought to go back to the law as we understand it. We ought not to import this dangerous idea that we should be able to take someone at a point of sus- 396 picion—but before there is sufficient evidence for arrest—for the purposes of interrogation. It is bad for the suspect, because it is putting him under pressure; it is also extremely bad for the police, because there will be the temptation to abuse the procedures.
I do not believe that it is very easy to envisage circumstances in which a man is taken at a point where the police believe that he has committed an offence and he sits for six hours in a police station giving nothing more than the legal equivalent of his name and number, and refusing to answer any questions. It is not to attack the police, and not to suggest that there is some sort of wicked conspiracy in the police force, to say that that is a situation that would try the patience of a saint. Even in my most optimistic moments I do not assume that all policemen are saints. It is a situation in which abuse is a possibility and where, even more importantly, the allegation of abuse is a possibility, and that is thoroughly bad for the police force.
Some of us were fortunate enough not only to sit through the Committee stage of the Bill but to read the speeches of the Solicitor-General in the Committee proceedings on the Criminal Justice (Scotland) Bill in 1979—the Bill that was introduced by the Labour Government. The Solicitor-General very strongly shared that point of view at the time, when he said:we want to be extremely careful, if we are giving powers to policemen to detain people and then to question them in the sanctity and seclusion of a police station".He was thinking, I am sure—as the right hon. Memhber for Roxburgh, Selkirk and Peebles (Mr. Steel) was a few minutes ago—about the views of Lord Cooper in Her Majesty's Advocate v. Chalmers.
I do not want to quote at length from that famous judgment, which has long been departed from as a matter of law. The test is now one of fairness, and the tripartite analysis of Lord Cooper has long been abandoned by our courts. But his social comments on that now famous "sinister venue"—the police station—and the difficulties of a position in which inevitably there will be no corroboration for the story or the version of events which may be advanced by the suspect who is being interrogated, have to be taken very seriously by the House.
397 It is right to say, as the Solicitor-General did, thatIf there is this unfortunate and undesirable questioning of the credibility of the police with regard to written statements, we shall get it all the more under this procedure."—[Official Report, First Scottish Standing Committee, 30 January 1979; c. 145-7.]The Solicitor-General was right to make the point. The police will be more at risk as the result of the introduction of these proposals.
Without going into the matter in any great depth, and giving only a short rehearsal of the arguments, the people who support the amendment are saying that in these circumstances we should remove the right of questioning and the right to take fingerprints, which seem to us always to be an invasion of individual liberty and unjustified at this stage of the proceedings, prior to an arrest being made. By doing so, we would then be underwriting essential rights for the individual within the law of Scotland, and also removing the police from a position of turmoil, pressure and difficulty into which they have been thrown by the ill-thought-out and authoritarian approach of this Administration.
I turn now to the important issue of tape recording. The Committee was familiar with the arguments, and I shall not go over them again now. Hon. Members will remember that an essentially integrated package was presented by Lord Thomson, one part of which proposed that there should be periods of detention of the sort that are envisaged in the Bill. That was linked to certain safeguards, of which by far the most interesting and important was that any statement obtained during the period of detention should not be admissible unless it had been tape recorded at the time that it was given.
We have a plethora of extravagant and eloquent quotations from the Solicitor-General for Scotland when he was in Opposition about the essential nature of that safeguard, and at that time he pressed amendments energetically. It is sad that we have now come full circle. The hon. and learned Member is now on the Government Benches. He is a Minister of the Crown, and he now proposes to go ahead with the detention clauses without including the essential safeguard of tape recording.
398 On Second Reading, the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) took the view that experience in England was depressing, and he abstained in protest. Although the Solicitor-General for Scotland and his colleagues are paying lip service to the idea of tape recording, they do not have any hard guarantees that there will be a limited gap, or no gap, between the introduction of the powers under the clause and the introduction of tape recordings in the police station.
§ Mr. Maxton
My hon. Friend refers continually to tape recordings. The amendment also includes video tape recordings, which may be better than tape recordings.
§ Mr. Dewar
I concede that, and it may surprise some hon. Members to hear that I have been talking in shorthand, and not advancing all the arguments fully. Video tape recording is a proper alternative. But it is important that any evidence that is obtained during periods of detention will not be admissible unless a tape recording or video recording is available.
In January 1979 the Solicitor-General for Scotland, in his then Opposition incarnation, said that he was satisfied that the common law and the safeguards for the citizen in a police station would be considerably weakened by the parallel proposal. He said:I am satisfied … of the necessity for our amendments, which introduce the tape recording of such statements"—[Official Report, First Scottish Standing Commitee, 30 January 1979, c. 165.]His arguments did not fall on deaf ears. We are satisfied that there is a need for such a proposal, and that is why we have tabled the necessary amendments today. If the Government are sincere in pushing ahead with their experiments in tape recording, and providing the necessary funds, obviously there is no hindrance to their plans in accepting the amendment. However, if the Government do not intend to push ahead, the amendment is necessary to ensure that they do so before they can put the remainder of the clause into effect.
§ I hope that we shall soon be able to vote on the amendments, both of which are important. I should like to see the 399 Government accept them. If they insist on being reluctant, I hope that the House will force the amendments on the Government. The amendments would greatly improve the clause. Amendment No. 6 would remove the principal dangers of abuse and administration and the principal circumstances in which friction between the police and the public may arise. Writing in the admissibility dependent on tape recording would pick up the safeguards that the Solicitor-General in previous debates has rightly argued are so essential.
§ Mr. Bill Walker
I welcome the clause, which is an essential part of what the Bill is trying to do. It would be wrong to support wrecking amendments. However, amendment No. 9 has merit. In Committee I suggested that we should have longer periods of detention. If video recording is to be successful, and we mean what we say about protecting the innocent and giving the police the necessary tools for their job, it is not unrealistic to link periods of 12 or 24 hours of detention with video tape recording equipment. Many complaints about police abuse of individuals who are being interrogated are not based on fact and cannot be proved. We should seriously reconsider the Thomson proposals.
I am taking a close interest in the experiment at Tayside. The Tayside police cover my constituency. There is merit in using normal recording equipment, but even more merit in video equipment. A man being interviewed could make a noise, and shout "Stop attacking me." That would be recorded on tape, but video equipment would show whether he was being attacked. The police would welcome the use of video equipment. I have discussed the subject with police officers using the equipment on Tayside. Video recording would avoid the police being wrongfully accused, which damages the police image and their relations with the public.
I support the use of video equipment, but I should prefer to link it to longer periods of detention.
§ Mr. Maxton
I am grateful to you, Mr. Deputy Speaker, for calling me. Obviously my name springs readily to your lips, because today I have spoken more often than has my hon. Friend the 400 Member for Renfrewshire, West (Mr. Buchan).
I have one problem with these amendments, which were put down in my name. I do not like trying to improve what is bad law, or what will be bad law when it gets on to the statute book, and that is the problem here. We are trying to take out the more objectionable aspects of the power of detention, rather than get rid of it altogether, as many Members of the Opposition would wish. It was unfortunate that Mr. Speaker did not select the amendment designed to do that.
We are left with the problem of trying to improve what is an objectionable new police power. We do not believe that this power is necessary. The police already have wide powers of arrest in Scotland. It is not an essential improvement to the powers of the police. It is open to abuse. However, I accept that the amendments will go some way towards stopping the abuse, especially those on tape recordings.
The video tape recordings work both ways in terms of what the police are doing. It is not only a matter of the suspect being able to say "Stop it, you are hitting me". In Committee the Solicitor-General said that when that happened the police would say that the accusation on the tape recording was false. On a tape recording, as a man says "Stop it, you are hitting me" and the policeman hits him in the face, at the same time the policeman may say "This accusation is false". That can happen with a tape recording.
The amendments go some way towards stopping some of the abuse. However, there is no question but that even with the amendments the power of detention is open to abuse by a few policemen. I want to emphasise that. Because of our attack on these clauses the Opposition have been accused of attacking the police. We have, consistenly said this and I want to put it on record. I am not attacking the 95 per cent. of the police who do their job within the law and the proper rules. However, I am concerned about the 5 per cent.—perhaps the percentage is smaller—of the police who misuse their powers. Under the clause they will be able to use their powers to an even greater extent. What- 401 ever safeguards and amendments we incorporate in the clause, a few policemen will abuse their power.
§ Mr. Bill Walker
Will the hon. Gentleman enlighten me on what number is represented by 5 per cent. of Scotland's police? It worries me terribly.
§ Mr. Maxton
I could not give the numbers. I said that the percentage might be smaller. Any Government supporter who claims that no policeman abuses his powers and gets away with it is living in cloud-cuckoo-land. There are policemen who abuse their powers. It need be only a small number. If one takes a station with 30 or 40 policemen operating in it, only one or two of them misusing their powers make for bad relations between them and the community and the whole station and the community. That is the Opposition's basic premise for opposing the power of detention under the clause.
This is not the way to solve the rising crime problem. It will make relations between the police and the community worse. The research evidence proves that. The police need the co-operation of the public, especially in the large working-class areas of the inner cities to solve a large number of crimes and bring down the crime level. The new powers given to the police in the Bill will destroy or damage the relationship between the police and the community in parts of my consituency.
I refer to the Castlemilk scheme and Drumchapel, in Glasgow. Those are large working-class areas with large-scale unemployment and a great deal of social deprivation. In those areas there is not the sort of co-operation between the police and the public that there should be, and the introduction of this power will make matters worse, not better. Youngsters in those areas will be harassed by the police. They will be picked up and detained for six hours under this new power and they will undoubtedly feel resentment. In the first instance some of the parents may not feel that resentment, but eventually that resentment will be felt by them as well and the limited co-operation with the police that exists at present will be destroyed.
402 These amendments are necessary to afford some safeguards under the clause, though my preference would be for the clause to be removed from the Bill. We should look at ways in which we can improve the relationship and the cooperation between the police and the community. That will enable us genuinely to tackle the problems.
My final point is that the Government are intent on introducing new powers for the police not only in this respect but in others. We must look at that in relation not just to the Bill, but to other aspects of Government policies. What appals us most is that at a time when the Government are introducing this kind of repressive legislation they are creating the seedbed of crime by creating increased unemployment. We have seen the evidence of that today in the appalling unemployment figures. We have seen it in increasing social deprivation and cuts in the education service. Those measures are likely to lead our youngsters into crime, yet, at the same time, the Government have introduced this repressive measure. That is what is most abhorrent to us, and that is why I shall vote for the amendments.
§ Mr. Buchan
It is no secret that many Opposition Members are bitterly opposed to the principle of the clause. In these amendments we seek to remove the most objectionable aspect of it.
The clause had the most extraordinary genesis. The argument in its favour is that since the police have been acting without legal authority the way to deal with that situation is to give legal authority to them. That is an extraordinary way of trying to improve our legal structure. If the police have been acting in this way without legal authority—that means illegally—the answer is to deal with that illegality, not to formalise it in a new law. That is my first point.
My second point is that those who have been most closely involved with the law, as defence solicitors in the courts, have been the strongest objectors to this measure. I cite the present Solicitor-General for Scotland, who, before he attained that office a year and a half ago, inveighed strongly against the infringement of the right to silence and rights in relation to liberty. Nobody inveighed 403 more strongly than he did before he took up his present office. Referring to this process, he said:At this stage nobody has been charged with anything.He was right.
One of our strongest objections to the kind of questioning dealt with in the clause is the danger and the weakness of the proposal because it formalises illegal administrative police procedures. We are now told they should be made legal without proper judicial safeguards. The Solicitor-General went on to say:They do not know whether it is mobbing and rioting, murder, pick-pocketing, spitting in the street or what it is—they have just a general, vague view about something."—[Official Report, First Scottish Standing Committee, 29 April 1980; c. 173.]It is on that basis that the Government are asking us to adopt sections of the clause which allow the police to put questions to a suspect. The Solicitor-General will remember the wise words of Lord Cooper, who said that in the eyes of the ordinary citizen the venue—that is, the police station—was a sinister one. Lord Cooper said:'When he stands alone in such a place confronted by several police officers, usually some of high rank, the dice are loaded against him, especially as he knows that there is no one to corroborate him as to what exactly occurred during the interrogation, how it was conducted, and how long it lasted'."—[Official Report, First Scottish Standing Committee, 6 May 1980; c. 315.]That is why, a year ago, the hon. and learned Gentleman, before he became Solicitor-General for Scotland, said:I stress that it is important that a person should be warned at this very early stage that he need not give an explanation to a police officer".— [Official Report, First Scottish Standing Committee, 23 January 1979; c. 38.]It is true that under pressure from another place, as well as in Committee, the Government introduced subsection (7), which gives some kind of protection. But it leaves open—
§ It being Ten o'clock, the debate stood adjourned.
§ Question again proposed, That the amendment be made.404
§ Mr. Buchan
I was saying that subsection (7) gives some protection. Nevertheless, the accused, or rather the detainee—he has not yet been accused when the process of interrogation starts—is left in the police station without the normal paraphernalia of proper legal safeguard and, incidentally, redress.
The consequence of this provision was clear to the hon. and learned Gentleman before he bacame the Solicitor-General for Scotland and was still in business defending clients. He said:But where a police officer, make allegations about explanations which a person subsequently denies, that does nothing for the cause of justice. And it does nothing for the reputation of the police or indeed, the interests of the public."—[Official Report, First Scottish Standing Committee, 23 January 1979; c. 38.]Those were wise words. The Solicitor-General knew then, as we know now, that the complaints of denials of evidence given in that way will proliferate, and that will bring the law into discredit. It is strange how a man's wisdom will bring flies out of the window when he gets into office. The hon. and learned Gentleman had so much to give when he was in that mood. To throw away this wisdom for the sake of Solicitor-Generalship is a shoddy exchange, and it is a pity I was saying nice things about the hon. and learned Gentleman this morning because of something that he did which was valuable, and he has no doubt been informed about that. However, I shall try to restrain myself in that regard.
Besides the denting of law and order, there is the denting of the right to silence. The pressure on a man detained without a charge or accusation having been made considerably dents the rights to silence. It also begins to flaw the care with which we consider evidence in the courts. In other words, the admissibility of evidence—that which should be permitted in our accusatorial system which the Government are also trying to destroy in clause 6—is now brought into question and is severely denied by this process. The right to silence and the admissibility of evidence are dented.
I should like to quote from my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), who played such a notable role in leading on many of 405 these arguments in Committee. Referring to this kind of interrogation—this is before any formal charge has been made—he said:I believe that either abuse will creep in or the very proper care that the court at present exercises will slip back and will allow in evidence that which at present we would not properly allow.This is a preliminary stage leading, among other things, to clause 6, which formalises even further the whole question of inquisition before the trial proper starts.
We said that we would like to get rid of the entire clause. We fought bitterly to get rid of it, but we did not succeed. Therefore, we are confronted with trying to improve it. Clearly the most dangerous aspect concerns the four points that I mentioned regarding the permission of interrogation before accusation. That is the most dangerous aspect, and we wish to get rid of it by getting rid of subsections (5) and (6).
406 I hope that we shall vote on the amendment, because we should like to introduce a safeguard. Indeed, before the Solicitor-General for Scotland took office he told us that that was necessary. I do not wish to enter into the argument about tape recorders or video tapes. Everyone agrees that they are necessary. We have sought to prevent the clause being enacted before the non-accused—but accused—in a police station has the protection of a video tape or a tape recorder. We shall certainly support the amendment.
There is one person who should lead us into the Lobby on such issues, namely, the Solicitor-General for Scotland. [Hon. Members: "Hear, hear."] We should have followed him so willingly; but, for a handful of wigs and gowns, he has left us. If Conservative Members value freedom, justice, liberty and consistency in the Solicitor-General for Scotland, they should join us in the Lobby tonight.
§ Mr. Harry Ewing
Before the debate began I had not intended to intervene. However, I wish to make two brief points. I should point out to the hon. Member for Inverness (Mr. Johnston) that, although no Liberal Member served on the Committee, the Liberal Party has had nearly all its amendments selected. I am disappointed that, although a group of its amendments is under discussion, no effort has been made to comment on amendments Nos. 149, 150, 151 and 152.
Amendment No. 151, which stands in the name of the right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) and the hon. Member for Inverness is important. It seeks to leave out lines 13 to 19, on page 4. Even at this late stage we should not feel ashamed to admit that the wording of the amendment is better than the original wording of the clause. It covers the possibility of a person being detained at a police station without any charge being made. At present, any records such as fingerprints merely have to be destroyed. The amendment would ensure that such records would be delivered either to the person who had been suspected or to that person's solicitor. It would also ensure that such material would be delivered within seven days of the termination of the interview at the police station. The Solicitor-General for Scotland should accept the amendment, because it provides a better safeguard than the present provision.
My second point refers to tape recording. A debate has developed about the use of video equipment during interviews at police stations. Experiments are being carried out at Falkirk and at Tayside. As the hon. Member for Perth and East Perthshire (Mr. Walker) said, those experiments do not involve video equipment. I was interested in the hon. Gentleman's comments. I do not know whether the chief constable of Tayside, Mr. John Little, has retired. If not, I hope that he will enjoy a long and happy retirement with his wife and family when he does. He is a very good police officer. I wish his successor, the new chief constable from the Lothians and Border, Mr. Bob Sim, every success with the force at Tayside.
The hon. Member for Perth and East Perthshire indicated that he had discussed 408 with the police in Tayside the experiment now going on in Tayside and Falkirk. There seemed to be an indication by the police that they would prefer the video equipment rather than the tape recording equipment which they are using at present. Before this debate develops much further, the Government ought to give an indication whether there is a possibility of video equipment being made available. Perhaps the Solicitor-General for Scotland can indicate whether experiments using video equipment are likely to be carried out in other police force areas and whether the experiments now taking place in Falkirk and Tayside will continue with the existing tape recording equipment.
I rest my comments primarily on those two points. However, I place heavy emphasis on amendment No. 151. I hope that the Solicitor-General for Scotland will consider it very seriously indeed.
§ The Solicitor-General for Scotland
I should like to reply in reverse order to the points that have been made. I am sure that the whole House would want to join in the good wishes which the hon. Member for Stirling, Falkirk and Grangemouth (Mr. Ewing) gave to Mr. Little, chief constable of Tayside, and his family. I am sure that all of us wish him a happy retirement after a most distinguished career.
I turn first to amendment No. 151. Presumably one would deliver, say, fingerprints to the solicitor or to some other representative only because one did not trust the police to destroy them. However, if one did not trust the police to destroy them, why should they not photocopy them before delivery? Therefore, I do not believe that that would constitute any kind of safeguard. If one does not trust the police, I regret to say that there are almost no safeguards. If one says that such things should be handed over to the solicitor as proof, how does one prove that they were not first photocopied and retained? One cannot do so.
§ Mr. Harry Ewing
This is the second or third time in the last hour that the Solicitor-General for Scotland has used the phrase "If one does not trust the police". It is not a question of trusting or distrusting the police. I have absolute confidence in the police. It is a question 409 of giving a member of the public confidence in the system in respect of which the Government are now legislating. Everything that I have said on Second Reading, in Committee and today on Report has been designed to give the public confidence in the system which the Government will obviously put on the statute book.
§ The Solicitor-General for Scotland
If a person is not willing to accept an assurance that any record which has been taken will be destroyed on his release, I do not believe that delivery to his solicitor will represent a safeguard. It would be an added expense. If it were to be betrayed it would be infinitely more upsetting to any public concept of trust. Trust in the integrity of the police is a concept which is held, and ought to be held, throughout the House. I do not think that the provisions of amendment No. 151 would enlarge it. By suggesting distrust, I believe that they would tend to diminish it.
§ Mr. Russell Johnston (Inverness)
I entirely agree with the hon. Member for Stirling, Falkirk and Grangemouth (Mr. Ewing) that this amendment is not intended to cast any doubt on the reliability of the police. However, there is no sanction if such records are not destroyed. Secondly, there does not appear to be any way of proving that they have been destroyed. At least this amendment would have that effect. I suppose there is no answer to what the hon. and learned Gentleman says. There is no way of disproving if something is photocopied. It would nevertheless be an assurance to the public that action had specifically been taken.
§ The Solicitor-General for Scotland
I would say, with respect to the hon. Gentleman, having reminded myself of the terms of amendment No. 151, that there is no sanction or proof under that amendment that records have not been kept. To deliver to a solicitor in seven days something that can have been photocopied gives neither proof nor sanction. The one is as invalid as the other.
I want to deal with the question of video taping and tape recording. The experiments in Dundee and Falkirk are going well. We shall be making a report in November or December on the initial 410 situation. Few people have refused to be tape recorded. To introduce video recordings would delay any decision about recording as a whole. We should proceed on this basis. If it is found that video taping, although vastly expensive, is more satisfactory, we can develop in that direction. We should not, however, introduce anything at this stage to delay what was the wish of the last Government and is the wish of this Government that the recording should be proceeded with, and should be found to have a satisfactory future provided that no appalling difficulties stand it its way. None has so far been indicated.
As the hon. Member for Renfrewshire, West (Mr. Buchan) said, I have defended a large number of people. The unemployed, the deprived, the unfortunate and youngsters are often the victims of crime. When considering these rights, it should be remembered that they are more likely to be the victims than the perpetrators. We must remember that before the Bill started there was the investigation of crime.
The hon. Member for Glasgow, Garscadden (Mr. Dewar) put forward the remarkable concept that until the police are in a position to make an arrest no one should have to be questioned. There would rarely be arrests if that had been the law of the land. That has never been the law of the land.
It is in the interests of all that there should be investigation into crime. It is important from the point of view of excluding people who may be suspected. There should be the right, for instance, for someone who may have been named by another person to be excluded through being asked questions or being fingerprinted. Nothing is more likely to exclude a person from an investigation and ensure his release than that the fingerprint on the weapon is proved not to be his. Equally, nothing is more likely to determine a person's release than the asking of questions that produce satisfactory answers and make it inevitable that the person can no longer be a suspect.
It is important that hon. Members should understand that this is a two-way concept. It works not only in the interests of the person who may be detained; it works in favour of the innocent person who is detained. None of us wants an innocent person to be detained 411 for longer than is necessary. Therefore, I believe that these amendments are misconceived. I believe that they would wreck the ordinary power of investigation. They would work against the interests of those who should be released. I invite the House to reject them.
|Division No. 424]||AYES||[10.21 pm|
|Adams, Allen||Field, Frank||Miller, Dr M. S. (East Kilbride)|
|Alton, David||Flannery, Martin||Morton, George|
|Anderson, Donald||Fletcher, Ted (Darlington)||O'Neill, Martin|
|Archer, Rt Hon Peter||Foster, Derek||Palmer, Arthur|
|Ashton, Joe||George, Bruce||Parry, Robert|
|Beith, A. J.||Gilbert, Rt Hn Dr John||Pavitt, Laurie|
|Bennett, Andrew (Stockport N)||Hamilton, James (Bothwell)||Penhaligon, David|
|Booth, Rt Hon Albert||Hamilton, W. W. (Central Fife)||Powell, Raymond (Ogmore)|
|Brown, Hugh D. (Provan)||Harrison, Rt Hon Walter||Radice, Giles|
|Brown, Ron (Edinburgh, Leith)||Haynes, Frank||Rees, Rt Hon Merlyn (Leeds South)|
|Buchan, Norman||Hogg, Norman (E Dunbartonshire)||Richardson, Jo|
|Callaghan, Jim (Middleton & P)||Home Robertson, John||Robertson, George|
|Campbell, Ian||Hooley, Frank||Ross, Ernest (Dundee West)|
|Campbell-Savours, Dale||Hudson Davies, Gwllym Ednyled||Rowlands, Ted|
|Canavan, Dennis||Hughes, Robert (Aberdeen North)||Silkin, Rt Hon John (Deptford)|
|Clark, David (South Shields)||Janner, Hon Greville||Silverman, Julius|
|Cocks, Rt Hon Michael (Bristol S)||John, Brynmor||Skinner, Dennis|
|Concannon, Rt Hon J. D.||Johnston, Russell (Inverness)||Smith, Rt Hon J. (North Lanarkshire)|
|Craigen, J. M. (Glasgow, Maryhill)||Jones, Alec (Rhondda)||Soley, Clive|
|Cryer, Bob||Jones, Barry (East Flint)||Spearing, Nigel|
|Cunliffe, Lawrence||Jones, Dan (Burnley)||Stewart, Rt Hon Donald (W Isles)|
|Cunningham, George (Islington S)||Kerr, Russell||Stott, Roger|
|Dalyell, Tarn||Kilfedder, James A.||Strang, Gavin|
|Deakins, Eric||Lambie, David||Thomas, Dr Roger (Carmarthen)|
|Dean, Joseph (Leeds West)||Litherland, Robert||Tilley, John|
|Dempsey, James||McCartney, Hugh||Wainwright, Edwin (Dearne Valley)|
|Oewar, Donald||McDonald, Dr Oonagh||Walker, Rt Hon Harold (Doncaster)|
|Dixon, Donald||McElhone, Frank||Welsh, Michael|
|Dobson, Frank||McKay, Allen (Penistone)||White, Frank R. (Bury & Radcliffe)|
|Dormand, Jack||McKelvey, William||White, James (Glasgow, Pollok)|
|Dubs, Alfred||McNamara, Kevin||Wilson, Gordon (Dundee East)|
|Duffy, A. E. P.||McWilliam, John||Woodall, Alec|
|Dunn, James A. (Liverpool, Kilkdale)||Marshall, David (GI'sgow, Shettles'n)||Woolmer, Kenneth|
|Eadie, Alex||Marshall, Dr Edmund (Goole)||Young, David (Bolton East)|
|Eastham, Ken||Maxton, John|
|Evans, John (Newton)||Maynard, Miss Joan||TELLERS FOR THE AYES:|
|Ewing, Harry||Mikardo, Ian||Mr. James Tinn and|
|Faulds, Andrew||Millan, Rt Hon Bruce||Mr. Terry Davis.|
|Alexander, Richard||Clarke, Kenneth (Rushcliffe)||Gummer, John Selwyn|
|Alison, Michael||Clegg, Walter||Hamilton, Hon Archie (Eps'm&Ew'll)|
|Ancram, Michael||Cockeram, Eric||Hampson, Dr Keith|
|Atkins, Rt Hon H. (Spelthorne)||Colvin, Michael||Hannam, John|
|Atkins Robert (Preston North)||Cope, John||Haselhurst, Alan|
|Atkinson, David (B'mouth East)||Corrie, John||Hawksley, Warren|
|Beaumont-Dark, Anthony||Costain, A. P.||Heddle, John|
|Bendall, Vivian||Cranborne, Viscount||Henderson, Barry|
|Bennett, Sir Frederic (Torbay)||Crouch, David||Hicks, Robert|
|Benyon, Thomas (Abingdon)||Dean, Paul (North Somerset)||Hogg, Hon Douglas (Grantham)|
|Berry, Hon Anthony||Douglas-Hamilton, Lord James||Hordern, Peter|
|Best, Keith||Dunn, Robert (Dartford)||Hunt, John (Ravensbourne)|
|Biffen, Rt Hon John||Elliott, Sir William||Hurd, Hon Douglas|
|Blackburn, John||Fairbairn, Nicholas||Jessel, Toby|
|Bonsor, Sir Nicholas||Fairgrieve, Russell||Johnson Smith, Geoffrey|
|Boscawen, Hon Robert||Faith, Mrs Sheila||Jopling, Rt Hon Michael|
|Bradford, Rev. R.||Fenner, Mrs Peggy||Kellett-Bowman, Mrs Elaine|
|Braine, Sir Bernard||Fletcher, Alexander (Edinburgh N)||Knight, Mrs Jill|
|Bright, Graham||Fletcher-Cooke, Charles||Lawrence, Ivan|
|Brinton, Tim||Fookes, Miss Janet||Lester, Jim (Beeston)|
|Brittan, Leon||Forman, Nigel||Lloyd, Peter (Fareham)|
|Brown, Michael (Brigg & Sc'thorpe)||Fraser, Peter (South Angus)||Loveridge, John|
|Budgen, Nick||Garel-Jones, Tristan||Luce, Richard|
|Bulmer, Esmond||Goodhew, Victor||Lyell, Nicholas|
|Cadbury, Jocelyn||Gow, Ian||McCrindle, Robert|
|Carlisle, John (Luton West)||Gray, Hamish||MacGregor, John|
|Carlisle, Kenneth (Lincoln)||Greenway, Harry||MacKay, John (Argyll)|
|Chapman, Sydney||Griffiths, Peter (Portsmouth N)||McQuade, John|
|Churchill, W.S.||Grist, Ian||McQuarrie, Albert|
|Clark, Hon Alan (Plymouth, Sutton)||Grylls, Michael||Major, John|
§ Question put. That the amendment be made:—
§ The House divided: Ayes 110, Noes 159.413
|Marlow, Antony||Rathbone, Tim||Stradling Thomas, J.|
|Mates, Michael||Rees-Davies, W. R.||Taylor, Teddy (Southend East)|
|Mather, Carol||Rhodes James, Robert||Tebbit, Norman|
|Maxwell-Hyslop, Robin||Rhys Williams, Sir Brandon||Temple-Morris, Peter|
|Mills, lain (Meriden)||Ridley, Hon Nicholas||Thompson, Donald|
|Mills, Peter (West Devon)||Rifkind, Malcolm||Thorne, Neil (Ilford South)|
|Moate, Roger||Roberts, Michael (Cardiff NW)||Thornton, Malcolm|
|Monro, Hector||Robinson, Peter (Belfast East)||Townend, John (Bridlington)|
|Morrison, Hon Peter (City of Chester)||Rost, Peter||Wakeham, John|
|Mudd, David||Sainsbury, Hon Timothy||Walker, Bill (Perth & E Perthshire)|
|Murphy, Christopher||St. John Stevas, Rt Hon Norman||Ward, John|
|Myles, David||Shaw, Michael (Scarborough)||Warren, Kenneth|
|Neale, Gerrard||Shepherd, Colin (Hereford)||Watson, John|
|Needham, Richard||Shersby, Michael||Wells, P. Bowen (Hert'rd&Stev'nage)|
|Nelson, Anthony||Skeet, T. H. H.||Wheeler, John|
|Neubert, Michael||Speed, Keith||Whitney, Raymond|
|Normanton, Tom||Speller, Tony||Wickenden, Keith|
|Onslow, Cranley||Spicer, Michael (S Worcestershire)||Williams, Delwyn (Montgomery)|
|Page, John (Harrow, West)||Sproat, lain||Wolfson, Mark|
|Page, Rt Hon Sir R. Graham||Squire, Robin||Younger, Rt Hon George|
|Page, Richard (SW Hertfordshire)||Stainton, Keith|
|Parris, Matthew||Stanbrook, Ivor||TELLERS FOR THE NOES|
|Patten, Christopher (Bath)||Stevens, Martin||Mr. Tony Newton and|
|Pollock, Alexander||Stewart, John (East Renfrewshire)||Mr. David Waddington.|
|Proctor, K. Harvey|
§ Question accordingly negatived.
§ Mr. Russell Johnston
I beg to move amendment No. 153, in page 4, line 27, at end insert—'(8) Failure by any constable or police officer to follow or comply with requirements of this section may render inadmissible any evidence, answer or statement obtained or made during the period of detention.'.
§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
With this amendment it will be convenient to take amendment No. 156, in clause 3, page 5, line 23, at end insert—'(5) Failure by any constable or police officer to comply with the requirements of this section shall render inadmissible any evidence, answer or statement obtained of made during the period of detention.'.
§ Mr. Johnston
It seems to us that it is an omission from this part of the Bill that, while a whole variety of fairly precise requirements are laid upon the police, and specific procedures that they must follow are set out, there appear to be no sanctions in the event that they do not follow the requirements.
The proposed new subsection is simply an attempt to provide some sanction by holding out the possibility that evidence obtained without adhering to the requirements in the Bill might render inadmissible and invalid evidence so obtained. I emphasise that it is not intended that the proposed provision should be something that accused persons might take advantage of by exploiting minor irregularities. That is why we use the discretionary word "may" rather than 414 the firmer word "shall" before "render inadmissible".
Amendment No. 156 deals basically with the same point in relation to clause 3.
§ The Solicitor-General for Scotland
I hope that I can satisfy the hon. Member for Inverness (Mr. Johnston) on this matter. Amendment No. 153 would add nothing to the present law. The hon. Gentleman will see from clause 2 (5) (a) that the present law on the admissibility of evidence is safeguarded. Nothing in the clause alters the power of a court to rule whether evidence is admissible or inadmissible, on the basis of our present practice, which is essentially the test of fairness. The first amendment would merely repeat something that is the common law and has massive case law to support it.
Amendment No. 156 would create an absolute situation. At present, the test of fairness would mean that even if a police officer did everything required of him it might be held that the evidence ought to be inadmissible. If one mistake rendered evidence inadmissible, one would presumably, by implication, render admissible something done by the book, regardless of the test of fairness. We cannot accept that.
The general law of the test of fairness has been a brave and excellent principle of the law of Scotland on admissibility and the hon. Gentleman can be assured that that test will continue to apply. The test of fairness, taking all the circumstances into account, will always be the course.
§ Amendment negatived.