§ Mr. Russell Johnston
I beg to move amendment No. 158, in page 5, line 26, leave out ' has committed or.'.
The basic contention is that the words "has committed or" are superfluous. The offence is carrying an offensive weapon. It would therefore appear that it would not affect the consequence or meaning of the Bill if the words were deleted.
§ Mr. Rifkind
The hon. Member for Inverness (Mr. Johnston) has argued that the words are superfluous, and he has suggested that the offence is carrying an offensive weapon. That is not the offence. The offence is carrying an offensive weapon in a public place. If the person has moved from a public place to a private place he has ceased to commit an offence. If, however, a police officer is in a private place with permission, he has permission to search that person. If he finds a knife and there is evidence that that person had that knife on him before he entered the private place, that would be sufficient evidence that he had been carrying that weapon in a public place and therefore had committed an offence. To cover those circumstances it is necessary that the words "has committed or" should appear in the clause.
§ Amendment negatived.
§ Mr. Gordon Wilson
I beg to move amendment No. 17, in page 5, line 30, at end insert'or at the option of the person to be searched, the constable may take the person to the police station where he may be detained and searched in accordance with section 2 (4) above.'.The amendment seeks to reduce some of the aggravation which might, not unnaturally, arise when the police have power to search persons for weapons.
421 This has been one of the more controversial clauses in the Bill. It has a history. This provision was introduced in the 1979 Bill in a different form on the casting vote of the then Chairman of the Committee—a precedent which, to my knowledge, has not been followed. The clause provides:Where a constable has reasonable grounds for suspecting that any person is carrying an offensive weapon and has committed or is committing an offence under section 1 of the Prevention of Crime Act 1953 … the constable may search that person without warrant, and detain him for such time as is reasonably required to permit the search to be carried out".When the matter was discussed a year ago, I voted for an amendment which would allow a search to take place in those circumstances because I reckoned that it would be advantageous, but I made it clear that I had an amendment on the Order Paper which would seek to change the formula under which this arrangement for searching for weapons was to be carried out. Basically, the proposition was that power should be given to a police constable to carry out a search for a weapon if there were reasonable grounds, but that an option should be given to the person being detained for the search to be carried out not in the street or in a dance hall or place which might be a cause of aggravation, but in the police office. I shall develop that point later.
One of the immediate advantages of the amendment is the prevention of indiscriminate searching. Obviously it would be almost impossible to search a large number of people in a dance hall where an offence had been committed and it was suspected that the weapon was in the possession of one of 20 or 30 people. Such an incident might be covered by the word "reasonable". But if the persons to be searched had the right to be searched in the police office, the duty inspector might take a fairly rigorous view of the number of people being brought in for that purpose. The amendment seeks to strengthen the word "reasonable". The police constable would have to be pretty certain that a person had a weapon in his possession if the option to be searched in the police station were to be accepted.
422 The Solicitor-General for Scotland will probably recall that in Committee on the 1979 Bill I made two particular points. The first was that the search for an offensive weapon should be conducted under the provisions of the Prevention of Crime Act. That was not in the then formula. I am pleased that the Prevention of Crime Act has been taken as the criterion in this instance because the law in that respect has been settled for a considerable time.
But there still remains the second proposition. I understood at the time that the hon. and learned Gentleman had some sympathy with the concept that the search could take place in the police office if the accused made that request. There are several advantages to that. It may be preferable for the search to be conducted at a police office rather than at the place where the person was detained. A search would cause aggravation, and the suspected person might wish to exercise such a right for personal reasons. I can think of no reason why that right should not be written into the statute book.
§ 11 pm
§ When, for example, an assault takes place in a dance hall and someone has been injured, it is not unusual for the weapon to be passed on to a female accomplice. If no policewoman is available, a search may involve difficulties. Embarrassment may be caused. Therefore, it is not unreasonable to ask that the accused should be allowed to state that he would like the search to take place within the privacy of a police office. If an offensive weapon is suspected, the right of search will remain.
§ The amendment would deal with a danger that exists in many urban areas where weapons are carried and people are wounded. In addition, the Government's position in relation to the new power would not be diminished. The amendment would help to prevent aggression being shown towards the police if the latter extended their practices beyond the frontiers of the clause. If the accused had the right to be searched in a police office, a more senior police officer would be involved and aggravation could be diverted.
§ One argument against giving the police this new power of search is that it could 423 cause aggravation. It might result in a deterioration in police public relations. All hon. Members would regret that. The amendment would strengthen the context in which the new powers were used. It would give an additional civic right to the suspected person. It would also help the police, as it would remove any ground for aggravation. I therefore strongly commend it to the Government.
§ Mr. Rifkind
I agree with the hon. Member for Dundee, East (Mr. Wilson) that on many occasions it would be reasonable, if the suspect so wished, for a search for an offensive weapon to be carried out in a private place. I have no doubt that, on the whole, the police are only too happy to accede to such a request. The question is whether there should be a statutory obligation to do so.
There is an inevitable and significant defect in the hon. Gentleman's amendment. He suggested that, if the suspect so chose, the option of using the powers of detention should be available. He suggested that instead of searching the suspect the police should be able to detain him and search him in accordance with the detention provisions. The hon. Gentleman should be aware that the detention powers have been clarified and that under the Bill the timing of detention will start from the moment that the suspect is detained in the street. From that moment, the police will have the power to search that person, because he would be a detainee. Therefore, the powers of search would be available, even if the person had not arrived at the police station. For that technical reason, the amendment would not necessarily achieve the desired effect.
There will always be cases—a small proportion, it is to be hoped—in which the need for the police to ascertain whether the individual is carrying an offensive weapon must be exercised right away.
Let us imagine that the police have been called to the scene of an incident—perhaps there has been some violence and a person has been injured—and it is suspected that an individual may be carrying an offensive weapon. It might be frustrating to the police if, before they could check whether the individual that they suspected was the person carrying the weapon, they first had to take him, if he so chose, to a police station, which might 424 be some distance away, particularly in the rural areas. That would thereby jeopardise any further inquiries which the police might make.
If, when they take that person to the police station, they find that their suspicion is justified and that he is the person with the weapon, no harm is done. However, if they found that they were mistaken—and it might have taken them 40 minutes to carry out that exercise—they could be frustrated in the other alternative inquiries that they would have made had they been able to confirm that evidence right away. That sort of emergency situation could arise, and surely the police would be acting reasonably if they wished to exercise the right of search at the first available opportunity.
§ Mr. Gordon Wilson
I did not serve on the Committee, and I cannot comment with any accuracy on what happened there. However, I understood that the Minister had given an assurance that there would be no form of indiscriminate searching. If one takes the Minister's example, it would mean that the suspicion of the police had crystallised on one person and that they felt it was reasonable to exercise their powers under clause 4. However, if they discovered that that was not the person, they would be entitled to search someone else. If one follows the Minister's example, one may find—perhaps in practical terms by extension over a period of time—that the police are able to work their way through two, three, four, five or six people, at which stage the bridge between crystallising of suspicion for the purposes of search and indiscriminate search is crossed.
§ Mr. Rifkind
I take the hon. Gentleman's point. However, I do not think that he realises the situation which might arise.
Let us assume that the police have been called to a particularly nasty incident in which someone has been injured. Let us assume that they have been given information that person X has been seen with a weapon. They would then have reasonable cause to believe that person X is carrying an offensive weapon. It may be. unknown to them, that that information is false. It may even be deliberately misleading. If, however, they have been given it, and have received it in good faith, it will obviously be in the public interest to search person X right away. If they find 425 the weapon, that is excellent. If not, they can carry out further inquiries. The police may not be entitled to search anyone else, and they may not have reason to believe that any other specific individual is carrying the weapon, but they can immediately start other inquiries which may lead to evidence showing who is responsible. If, however, simply by person X so choosing, the police must go to a police station which is some distance away, and if some time has elapsed, they will have been frustrated in the other inquiries which they may have been able to make but for that requirement.
I am not suggesting that that will happen in a majority of cases, but if the amendment were accepted it would place a statutory obligation on the police which would cover even those cases. That would clearly be against the public interest, because legitimate further inquiries could be frustrated. For example, in the rural areas there may be only one police officer making the inquiry. If he is required to take the suspect to the station before he can search him, by definition he will be prevented from carrying out alternative inquiries if at the end of the day the suspect was found not to be carrying a weapon and if the police officer's information was found to be incorrect. There are other possible examples, but that is the sort of problem which might arise.
Therefore, there are two reasons why I hope that the hon. Gentleman will not insist upon his amendment. The first is that even if the amendment were accepted it would not achieve its desired effect, because the power of detention, which is the alternative that the hon. Gentleman suggests, gives the police powers of search from the earliest moment. Secondly, for the reasons that I have indicated, there would be risk of legitimate frustration of a proper police inquiry. I know that the hon. Gentleman would not wish that to happen, but it could arise as a result of his proposal.
§ Mr. Millan
The Minister knows that the Opposition object in principle to clause 4. I do not want to discuss that matter at this time, but I took the view on Second Reading—I was not a member of the Committee and did not hear the detailed discussion—that the new powers of detention made the clause unnecessary. In particular circumstances, where the 426 is reasonable cause for suspicion, the detention procedure under clause 2 should be followed rather than search under clause 4. For that reason, at first sight I was attracted to the amendment.
There are, however, some difficulties about the amendment. I am not sure that if the amendment were accepted in the terms in which it appears on the Amendment Paper it would necessarily lead to a satisfactory outcome from the point of view of the person who exercised his option. I am not clear how one exercises an option unless one is told that one can exercise it. This raises practical difficulties. I would also be apprehensive following exercise of the option that, unless the circumstances were clearly laid down, a person, once taken to the station, might find himself there for longer than was necessary to be searched for an offensive weapon. He might find that the other provisions of the clause, allowing for six hours' detention, would bite.
Under the strict terms of the clause, that should not happen. The clause should ensure the release of a person taken to the station, searched immediately and found not to possess an offensive weapon. I have a suspicion that, in the practical circumstances of the case, there might be resentment that the person had exercised his option. I fear that he might find himself detained for even longer than the six hours.
I am not sure that, at the end of the day, one can eliminate the mischief of clause 4 by this kind of provision. I have to say regretfully that there are good reasons for not pressing the amendment to a Division. I do not think that the opportunity will arise at this late stage, because amendment No. 14 has not been selected for Division, to get clause 4 eliminated. In those circumstances, I could not ask my hon. Friends to support the amendment if it is taken further.
§ Mr. Gordon Wilson
There is clearly a technical flaw in the amendment in its reference to clause 2 (4) and the consequences that might occur. I accept that part of the Minister's answer. I have some doubts about the way the clause is framed. The right hon. Member for Glasgow, Craigton (Mr. Millan) indicated that there could be resentment on the part of the police if a person were 427 to exercise the right given by statute. It would not surprise me if that happened in this case and in relation to many other statutory rights that are exercised.
One of the problems of the legislation is that it has proceeded partly on the basis of informal police practice which has built up over a period affecting the rights of the citizen. The Bill seeks to make permanent and legitimate some of the practices. There are good reasons following waves of violence and assaults, why the power of search should be given. Equally, one has to accept that there could be danger to communal relations if the search were carried out on a wider basis than was perhaps envisaged by the Minister in Committee and perhaps in relation to the example that he has given.
I did not regard as effective the Minister's answer relating to the inquiries that the police would make. It is not a particularly good example of the word "reasonable" if the police are entitled, virtually on hearsay, and perhaps even on anonymous information, to stop someone and search him on the ground that he is suspected of carrying a weapon. I should have thought that in the circumsances of an assault, a breach of the peace or mobbing and rioting, the police, having arrived on the scene, would make some other inquiries before their suspicions crystallised. In this context, it seems that if some restriction were put on the police, by way of the 428 example that I mentioned of the statutory right to be searched in the police office with a senior officer present, there would be advantage to all concerned.
§ However, I must accept that clarification of the powers of detention would give the police additional powers, and to that extent part of my amendment is invalidated. But, in my view, the argument behind the amendment is not invalidated. I suppose that, as the Bill must go back to the House of Lords, there is the slightest chance that there may be some change made there. If that does not happen, it would not surprise me if, in future, the House of Commons had to return to the question of police powers in relation to search and detention because consequences of an informal nature will flow from the powers which are given and which, in time, will form a new police practice which may go well beyond what was envisaged by the House.
§ Against the background of the Minister's remarks, some of which I must accept, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Further consideration of the Bill adjourned.—[Mr. Wakeham.]
§ Bill, as amended (in the Standing Committee), to be further considered to morrow.