SUSPECT OR POTENTIAL WITNESS MAY BE REQUIRED BY CONSTABLE TO IDENTIFY HIMSELF (Hansard, 22 July 1980)

§ Mr. David Steel
I beg to move amendment No. 136 in page 1, line 7, leave out 'a constable has reasonable' and insert 'there are substantial'.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
With this it will be convenient to take the following amendments:

§ Mr. Steel
This amendment and those selected with it have basically the same purpose. I raise this matter with a certain amount of trepidation, but I believe that we should try, so far as possible, to replace the subjective grounds set out in the Bill as drafted with more objective grounds giving the power of detention. The purpose of the amendment is to make the ground for stopping a person, so far as possible, objective—replacing the wide subjective power given by the words a constable has reasonable grounds". The subsequent amendments, mostly consequential to amendment No. 136, have been tabled with some diffidence because I am not certain that the amendment is watertight. I see that the Minister nods. That is always a bad sign. I am unhappy about the wording of the Bill as drafted. It creates far too wide a subjective power for an individual constable. The amendment is an attempt to raise the issue to see whether the Under-Secretary of State can give any assurance about how he sees the wording working in practice.

§ Mr. Rifkind
I welcome this opportunity to indicate Government thinking on this matter. As the right hon. Gentleman said, the purpose of the amendment is to replace the reasonable grounds that a constable must have under the Bill's present provisions before he can detain a suspect with "substantial grounds".
There are two reasons why the Government cannot accept these amendments. First, they do not achieve the objective that the right hon. Gentleman seeks. He has sought to make 387 the provision slightly less subjective and more objective. However, ultimately, even with his proposed wording, it would be within the discretion of the constable to decide whether the grounds were sufficient to detain the suspect. Whether one calls it "reasonable" or "substantial", the matter is open to interpretation, and only the constable on the spot can so interpret.
However, there is a more substantial reason why the amendment is inappropriate. We are dealing here with the power of detention to be used when a police officer suspects a person who has committed an offence. I assume that by "substantial" grounds the right hon. Gentleman means that the officer must have hard evidence that makes him believe not that the suspect might be involved but that he has actually committed the offence. If a constable has hard grounds, it is time to arrest the person and charge him with the offence. In those circumstances there would be a formal arrest, followed by a charge, given that the evidence was already available to justify that course of action.
We are concerned with the situation before that stage has been reached, when the evidence available to the police officer leads him to believe that the person before him is a suspect. He may not have sufficient evidence to justify a formal arrest, because in Scotland a constable cannot arrest a person unless he is able to charge him at that time.
That is a major difference between Scots law and English law, and that is why the Government have always argued that these powers, while they may not be necessary in England, are unfortunately necessary in Scotland. In England a person can be arrested and the police can hold him for questioning for a considerable time—sometimes several days—before deciding whether a charge should be brought against that person. However, in Scotland the courts have always ruled that an arrest cannot take place unless the police are able, at that moment or shortly after, to bring a specific charge against the accused.
I hope that the right hon. Gentleman will agree that his amendment would either be superfluous, because it would not change the circumstances, or, if it did have any effect, would have the 388 wrong effect. It would be exerciseable only when the police, with their present powers, sought to arrest and charge a person with a crime.

§ Mr. Rifkind
I beg to move amendment No. 1, in page 2, line 23, leave out from ' who ' to end of line 30 and insert 'having been required—

(i) under that subsection to give his name and address; or

(ii) under subsection (2) above to remain with a constable, fails, without reasonable excuse, to do so '.

Mr. Deputy Speaker
With this we may take Government amendments Nos. 2 and 3.

§ Mr. Rifkind
Subsection (5) as drafted makes it an offence for a suspect or witness not to give his name and address when required to do so, or to give a false name and address. These amendments delete the alternative offence of giving a false name and address, as it is really superfluous. They are drafting amendments to delete unnecessary words. It is unnecessary to include the offence of giving a false name and address when it is already an offence under the clause for a suspect or witness to fail to give his name and address when required to do so The one obviously presumes the other and rather than have the confusion of two separate offences, we propose to alter the situation with the amendments.

§ Mr. Millan
I was rather puzzled by these amendments. I thought that the failure to give a name and address meant the failure of someone to give any name and address. However, the Minister, assures us that the one offence includes the other, so we must accept what he says. However, to the layman, the original wording made more sense.

§ Mr. Rifkind
That clause in its present form states that it is an offence for a person who is required to give his name and address to fail to do so without reasonable cause. If the person does not give a name and address, or gives a false one, that person clearly fails to give his name and address and therefore it seems unnecessary to have an additional alternative offence.