RIGHT TO HAVE SOMEONE INFORMED WHEN ARRESTED OR DETAINED (Hansard, 22 July 1980)

§ Mr. Harry Ewing
I beg to move amendment No. 10, in page 4, line 41, after 'or', insert 'except in the case of intimation to a solicitor'.

§ Mr. Deputy Speaker (Mr. Richard Crawshaw)
With this we may take the following amendments:

§ Mr. Ewing
It will be obvious that the amendment is an attempt to separate the person reasonably named by a detained person from the right of a detainee to have a solicitor informed of his or her detention. We are dealing with individuals detained in a police station under the clause who will have the right to have a solicitor informed of where they are detained. In addition, they will also have the right to have another person, reasonably named by them, informed.
We accept that in some instances there will be a delay in advising a person reasonably named, or a good reason, connected with the investigation that is under way, for the police not informing him.
We are trying to set aside the solicitor from that sort of qualification. We do not accept, and the Solicitor-General for Scotland should not accept, that there can be any case for a delay to occur before the solicitor is informed. We cannot see any grounds on which it will be necessary, in order to facilitate an investigation that is taking place, not to advise a solicitor. In all circumstances, a solicitor should be informed without delay. If possible—and we think that it is possible—a solicitor should be present 416 at the time of the investigation, again without delay.
Let me sum up my brief moving of amendment No. 10. It is an attempt to separate the right of a detained person to name a solicitor and one other person. If the Solicitor-General were to accept that minor but helpful amendment, it would put a clearer definition on clause 3 as it relates to clause 2.

§ The Solicitor-General for Scotland
I understand what the hon. Member for Stirling, Falkirk and Grangemouth (Mr. Ewing) is trying to do. There is power under sections 19 and 305 of the Criminal Procedure (Scotland) Act 1975 to make intimation to a solicitor. The question is whether there should be any right of delay in that intimation. The hon. Gentleman makes a distinction that suggests that the person named may be a tainted person, and named for the reason of his taint, whereas the solicitor would be taintless.
That is a generous concept, but it may not be accurate. The solicitor may represent the other co-accused. Therefore, to tell one's solicitor that one has been arrested may, with no blame on the solicitor, be a good way of also telling the co-accused. As Thomson suggested, it is important that intimation of the matter should not be communicated to any party, whether he be tainted or taintless, if it is thought that such intimation may not be in the interests of justice or may tip off somebody in a position to be tipped off.
It has been suggested that the solicitor should be allowed access during the period of detention without delay. I do not know what is meant by "delay". Six hours is a short time.

§ Mr. Canavan
That depends on the circumstances in which one is detained.

§ The Solicitor-General for Scotland
The hon. Gentleman, from a sedentary position, may regard six hours as a long time. It is a short time. It may take a large part of that six hours for a solicitor to present himself. In certain circumstances, the whole purpose could be frustrated if that exercise was undertaken.
Government amendments Nos. 11 and 13 and amendment No. 12 arise out of matters discussed in Committee. We 417 have reconsidered the question of what rights and safeguards should apply to children detained or arrested. There should be a statutory right of access by a parent or guardian to a child during a period of detention. The nature and effect of that access must be determined by the police. There are many circumstances in which a child does not wish to see his parents, because of a hostile relationship. It is important that parents should be permitted access, but that it should not be to the prejudice of the child. There are circumstances in which it might be prejudicial to the child. We propose that, in all circumstances, such access should be available but that its form and extent should be determined according both to the interests of the child and to the interests of justice. There are many delicate domestic circumstances in which a child and the parents may be involved, such as there is parental disapproval of what has occurred. It is important that the relationship of the child and the parents should be safeguarded in these delicate circumstances in both directions. I feel that we have come to a conclusion which will be humane and will safeguard the interests of the child in all circumstances.

§ Mr. Buchan
I want to comment on Government amendment No. 13 and on our amendment No. 12. We are, of course, pleased that the Government have recognised the real human problem involved, but, once again, we express our surprise that not until Report has recognition been given to the importance not only of information being given to the parent but of the right of access by the parent.
I am concerned with only one thing in Government amendment No. 13, which has come some way to meet us. I refer particularly to the words in the proposed subsection (4) essential for the furtherance of the investigation", which might still make it difficult for the parents to have proper access to the child. I accept the qualifications of the word "may" in paragraph (a) and the word "may" in paragraph (b). These are perfectly legitimate qualifications, although in many ways it would have been simpler if the Minister accepted amend- 418 ment No. 12. Despite that, I recognise that the Government have moved in our direction and I welcome it.
I wonder whether the words any restriction essential for the furtherance of the investigation may be over-stretched in their significance by the police where there is a child in detention for whom they are finding something useful but something which perhaps may not be altogether in the interests of justice, truth or of the child.
Having said that, I give the Government amendment a qualified welcome. It is only proper that I should, since we pressed the matter very strongly on the Government. I am glad that they have responded to that extent.

§ Mr. Harry Ewing
I share the qualified welcome of my hon. Friend the Member for Renfrewshire, West (Mr. Buchan) to Government amendment No. 13. I also share his view that we should have been much happier if the Government had decided to accept our amendment No. 12.
I am still a little concerned—and I put up a marker here—that the Solicitor-General has seen fit to repeat what was said in Committee, that there might well be circumstances in which a child under the age of 16 asks that his parents be not informed of his detention. I hope that no encouragement will be given to police officers not to inform parents at the request of children who are under the age of 16. In such cases, provided that the parents have not been involved in the commission of the offence—I accept that that would create a different set of circumstances—I repeat most strongly that, whether or not the child under 16 wants his parents advised, the parents should be advised, because they have a responsibility for children under 16.
We ought not in any circumstances to create any loopholes whereby children can say to police, in the circumstances that we are talking about, "Please do not tell my mummy or daddy because I do not get on with them. We have an argument every second night about whether we should watch 'Dallas' or 'Coronation Street' on television and there is some tension between us."
The rule should be that the parents should be informed, whether the child wants them informed or not. I hope that 419 the Solicitor-General will emphasise that aspect.
I ask the Solicitor-General to make one point clear. Under clause 2, am I right in suggesting that an arrested person has the right to have a solicitor informed and to have a solicitor in attendance? A person is arrested because the police consider that they have sufficient evidence to do so, but it does not mean that the investigation is complete. Under the 1975 Act, does an arrested person have the right to have a solicitor informed? If so, why is the principle not extended to a detained person?
As the Solicitor-General will be aware, I am no great lover of the legal profession. I should not go to the stake for that profession. However, I do not accept that the profession is in such a state that the police have to decide whether a solicitor named by a detained person is tainted, to use the hon. and learned Gentleman's own word, or may loosely be connected with the investigation. The hon. and learned Gentleman is making heavy weather of the point. May we have clarification on the rights of an arrested person and a detained person?

§ The Solicitor-General for Scotland
Since a parent has the right of access, however controlled, information is bound to be given to all parents of a child's detention.
An arrested person has the right to see a solicitor. Under the Criminal Procedure (Scotland) Act a person who is arrested must be charged. A person who is charged is then, so to speak, incommunicado so far as the police are concerned. A person in detention is in a completely different situation. He is not incommunicado, and the right to see a solicitor at that stage or any other is a matter for decision.