Criminal Procedure (Royal Commission's Report) (Hansard, 21 January 1981)

§ Mr. John Ryman (Blyth)

I wish to raise the question of the report of the Royal Commission on criminal procedure, under the chairmanship of Sir Cyril Philips, which reported in January. I am indebted to the Minister of State, Home Office, for being here to reply to the debate and to express the views of the Government on this subject. The report has only recently been published. There has not yet been sufficient time to absorb all the recommendations, or for any public or parliamentary debate to take place. I believe that this is the first occasion for the House to have the opportunity, albeit a short one, to consider these important recommendations.

I wish to take this opportunity to congratulate the commission on its recommendations, on its hard work, and on the painstaking way in which it accumulated a mass of evidence and gave careful consideration to a difficult subject. I believe that it is the first time that there has been a comprehensive review of the history and practice of the investigation of offences and the prosecution of offenders.

In view of the size of the subject, I ask only: what is the Government's reaction to the report; may we have an opportunity to debate the report in the near future; and what is the likely cost of implementing some of the recommendations in the report?

The thread that appears to run through the report is the difficult balance that has to be achieved between strengthening the powers of the police to prevent crime, detect, apprehend and successfully prosecute criminals and protecting civil liberties and the rights of a person in custody.

On the whole, that difficult question has been sensibly and well analysed by the commission, and I suggest that a fair balance has been achieved. The commission has 397 undoubtedly made a large number of recommendations, on the one hand, to strengthen the powers of police officers—for example, in respect of searches of persons, vehicles and so on—and, on the other hand, to increase the rights and protection afforded to persons detained in police custody.

I suggest that the criterion set in chapter 5— Summary and conclusions of Part I: the investigation of offences"— is fair. Basically, the Commission recommends that, in order for the public to have confidence in the police, the criterion should be one of fairness, openness and workability as a means of evaluating existing procedures and proposals for change.

The Government must grasp the nettle and decide whether, in effect, to introduce legislation in due course to increase police powers. I think that some of the comments in the press, when the report was originally published, were extremely irresponsible. I suggest that the powers of the police should be substantially increased in respect of matters such as search. If the police are to perform their task properly, they must have greater powers.

On the other hand, I agree with the tenor of the commission's recommendations that if we give the police greater powers, at the same time we must increase protection for the individual who may be taken into custody to ensure that he is not kept in custody any longer than is absolutely essential.

To this end the commission has recommended that an outside force should exist to supervise how long a person can be kept in police custody either by being brought before a magistrate within a specified period or by ensuring that a solicitor visits the detained person. I think that is a sensible compromise. The commission obviously considered whether somebody should be in a police station to keep watch on what happens but rightly rejected that proposal as being unrealistic.

The commission is to be congratulated on rejecting a number of other unrealistic and distasteful proposals—for example, the mass finger printing of the whole population.

I ask the Minister to deal wih a number of specific matters when he replies to the debate. First, will the government consider embarking on consultations with the legal profession and other interested bodies regarding the implementation of the recommendations set out in chapter 9 relating to the prosecution of offenders? Those proposals concern the legal profession and the organisation of the courts. Could these be implemented without great public expense?

Secondly, will the Government consider urgently implementing the proposals to improve the system whereby records of police questioning are kept, particularly in relation to the phased introduction of tape recorders for interviews? That is urgent because there appears to be agreement on all sides that the present system is unsatisfactory and that something must be done. The sooner something is done the more helpful it will be.

Thirdly, will the Government consider asking the Law Commission to examine the judges rules and the suggested amendment to them by the introduction of a code of practice for regulation of interviews? The Commission recommends that and that a breach of the rules should not render any evidence adduced in breach of those rules as inadmissible but that the breach should go only to the weight of the evidence. Will the Government consider 398 referring that matter to the Law Commission in order to obtain the Commission's views on the practicability of introducing legislation? It is unsatisfactory that, if evidence is obtained in breach of certain rules, whether it be the judges rules, or a code of practice, nevertheless the evidence is admitted and the jury is simply directed that it should pay less attention to that evidence or that it goes to weight of evidence rather than admissibility.

A number of other proposals are sensible and capable of implementation soon. Many other recommendations would take much longer to consider and require much consultation.

I do not dwell further on the subject because time is short. The Minister will have much to say about the Government's views. However, I have several questions to ask. Do the Government—and I suggest that they should—in general terms, welcome the Commissions's report? Do they agree with the tenor of the report and believe that it strikes a fair balance between increasing the powers of the police and increasing the safeguards of people in custody?

Will the Government undertake to begin the detailed process of consultation as quickly as possible with the legal professions and other interested parties so that specific recommendations can be implemented as soon as possible? Will the Minister indicate when there will be an opportunity for a full parliamentary debate on the topic? Will he consider issuing a discussion paper setting out the Government's views of the recommendations?

The report is important. It was published only a year or so after the Royal Commission's report on legal services. The legal profession has already taken steps to implement that report and is to be congratulated. The profession has taken steps to improve criminal procedure in the courts. I speak, for example, of the question of summons for directions in criminal cases which saves an enormous amount of time and public money. Another example is the question of admissions under section 10, which saves the time of witnesses. That is a further step in a healthy procedure of improving the quality of justice. I ask the Minister to give the issue urgent consideration.

§ The Minister of State, Home Office (Mr. Patrick Mayhew)

I congratulate the hon. Member for Blyth (Mr. 399 Ryman) upon his choice of subject and on securing our Adjournment debate tonight. I entirely agree with him when, in his closing sentences, he described the report of the Royal Commission on criminal procedure as a most important report and one which takes its place in a series of reports, recommendations and measures which the legal profession has itself initiated, with a view to bringing its procedures up to date and providing a better service for those who depend upon the law for their rights.

The questions that the hon. Gentleman asks are very relevant. The Government indeed want to be told what the profession and all other interested parties think about this very comprehensive report. As my right hon. Friend the Home Secretary said when the report was published, it is our hope that a very wide-ranging body of opinion will make itself felt, so that the Government can come to their conclusions.

I hear what the hon. Member for Islington, South and Finsbury (Mr. Cunningham) has asked me. These matters do not rest with me, but I would judge it very helpful for the Government to have at an appropriate time the kind of debate that he suggests, as part of the process by which they can be informed of general views about the contents of the report.

This represents the first opportunity that the House has had to debate and consider the Royal Commission's report. It must be a very brief debate, naturally, a somewhat superficial one, but I have carefully noted the points that the hon. Member for Blyth has made. I know that he will not expect me to give a full exposition of the Government's response now. Indeed, it would be quite wrong to do so until we have had the benefit of other people's views. But I entirely share what I take to be the hon. Gentleman's wish to devote this occasion to drawing attention to some of the main features of the commission's report, at which we shall all, I hope, be looking in closer detail in the coming months, and to suggest some of the questions that I believe we shall have to ask ourselves about it. The House may well decide that it wishes to have a debate.

Even before the report was published, speculation on its possible contents provoked some comment and criticism. I rather agree with what the hon. Gentleman said about some of the instant criticism that greeted the report's publication. Any sensible consideration of the report leads one to agree with his description of it as striking a fair balance between the opposing interests—those of the public in seeing that the police are adequately equipped for the tasks that we place upon them and those of seeing that the liberties of the subject are not unnecessarily constrained. It was astonishing to find campaigns against the report being launched before hon. Members could have had time to read it, let alone to meditate on its contents.

The commission observed that this was the first thorough-going review of criminal procedure for more than a century. As it stands, the law is often confused and uncertain. It has developed over a long period without any notable logic or consistency in some respects. There are many anomalies. Much of it was originally enacted in social circumstances quite different from those of today. For example, existing powers to stop and search vehicles date from a time before the invention of the internal combustion engine and the vast social changes that have accompanied it.

400 Both the police and the suspect are hampered by this state of affairs—the police because they may be obliged to operate in areas of doubtful or ambiguous legal authority and the suspect because his rights at any particular moment may be so unclear that he lacks any prope or practical legal protection.

Clearly, therefore, there was a case for rationalisation. To do that for its own sake would be a very doubtful reason for the establishment of a Royal Commission. It reminds us that in the period before it was set up there had been a good deal of concern about the operation of police powers and procedures—the eleventh report of the Criminal Law Revision Committee on evidence, the Confait case and so on. It was necessary, therefore, to look at the way in which suspects were brought to trial to ensure that justice was done and seen to be done.

Whatever view one takes of its recommendations, including, for example, the point to which the hon. Member referred—the consideration which the commission gave to tape recording police interviews, for which thereis, in my opinion, much to be said, although, equally, there are powerful considerations against it—the commission is to be congratulated on rising to this challenge. Its report is very full. I should like to associate myself with the tribute that the hon. Member very properly paid to it.

The report covers every aspect of pre-trial procedures, from arrest to trial, dealing also with powers of search, bringing cases to trial and the possible organisation of a new prosecuting system. In pursuing its arguments, the commission makes use of a series of specially conducted research studies, all of which have been published separately. The report is complemented by a companion volume setting out in a useful form a digest of the present arrangements. In the same way as the commission evidently saw its recommendations, whether on police powers or the prosecution process as interrelated, so I am sure the commission would hope that its report would be read in conjunction with the research and law and procedure volumes. I commend them to hon. Members because they are, like the report, lively and readable, which, again, distinguishes this report from many others.

The hon. Member asked whether the Government would consult the Bar, in particular on the proposals relating to prosecutions in chapter 9. We very much hope that all who prosecute, prosecuting solicitors and prosecuting members of the Bar, as well as those who defend, will give us the benefit of their views on those topics.

When the Royal Commission was established, the then Prime Minister referred to the balance which was to be struck between the interests of the whole community and the rights and liberties of the individual citizens. The commission has adopted this concept of a fundamental balance and it provides the foundation of its work. It observes that debate tends to be polarised between those to whom the interests of justice are paramount and those with an absolute belief in the rights of the suspect or individual members of the public.

To some extent, the commission continues, it is possible to reconcile these points of view by balancing any increase in the powers of the police with compensating safeguards in the rights of the suspect. But the commission did not find this approach universally helpful. In many instances, the commission found that views were being 401 advanced in areas in which there was a good deal of ignorance about the effects of existing procedures, and it was here that research had a vital part to play. It was not just a question of arbitrating between two extremes.

Here I might interpose that I have carefully noted what the hon. Gentleman said about asking the Law Commission to look at the proposals relating to the judges' rules. We shall certainly take that proposal into account. I have heard what the hon. Member said about whether it is just for evidence that has been obtained in breach of the judges' rules, or whatever code of practice might replace them, to be heard and whether that should be adbmissible. At the moment, there is a discretion, as the hon. Gentleman knows, for a judge to determine whether to admit the timed note—the point that he makes in that regard.

In putting forward its recommendations, the commission strove to maintain the balance to which the then Prime Minister referred. There have been those who have argued that it is not for a Royal Commission to deal with the balance but to deal only with the questions which need to be resolved before the balance can be struck. It may help here to repeat the commission's words that It is for Parliament to decide how the fundamental balance in pre-trial procedures is to be defined and maintained". That is from paragraph 10.13. Again, the commission says: Our proposal for regulating in a comprehensive statutory framework arrangements for the investigation of offences and the prosecution of offenders affirms that Parliament has the duty of striking the fundamental balance and of keeping it under regular review. That is paragraph 10.16. I do not think the commission could have been more explicit in setting down the exact limitation of its responsibilities and in reminding this House of ours in reading the report and taking stock of its arguments.

The report is in two parts, dealing respectively with the investigation and the prosecution of offences, and it is on the former that argument so far has tended to concentrate. If implemented, the commission's proposals would cut through the haphazard entanglements of existing procedures which I have already mentioned and replace them with a quite new procedure in which the respective positions of the police and the suspect would be clearly and systematically defined for the first time. Existing powers of stop and search would be placed on a single footing. The powers of arrest without warrant, which at present derive with no consistency from a number of different statutes, would be similarly brought into line. Clear limitations would be placed on the powers of the police to detain after arrest. The procedures contained in the judges' rules would be brought up to date and given statutory force, and so on.

Some critics have been quick to select and condemn these and other recommendations as unwarrantable extensions of police powers. But I wonder whether this does justice to either the commission's intentions or what, on closer inspection, it actually says. Is it enough, for example, to compare such recommendations with the existing arrangements without setting them in the wider context of the commission's proposals as a whole?

It is true, for example, that in the commission's system the police would have wider powers of arrest without warrant than at present. The existing position is that there is a power of arrest for any offence punishable with at least five years' imprisonment and, in addition, for a number 402 of other offences. Under the commission's proposals, this would be extended to any imprisonable offence. But the commission argues that, since it also proposes that a suspect should not be detained after arrest except in carefully defined circumstances—rather like the circumstances in which a person may be refused bail under the Bail Act—the extension of powers of arrest without warrant would not in fact lead to their wider use.

The commission proposes that there should be a code of practice for the regulation of interviews. The criticism has been made that the commission does not go on to propose—apart from certain limited and rather extreme circumstances—that evidence put forward at the trial in breach of the code of practice should be made inadmissible. Instead, the commission believes that the court should merely be empowered to make an assessment of the reliability of such evidence.

It should be emphasised that this recommendation—with which I do not for the moment record my agreement or dissent—does not reflect any degree of satisfaction with the existing state of affairs. But, after a careful study of the jurisdictions in which an "exclusionary" rule was practised, the commission came to the conclusion that it could not recommend it. If introduced in this country, it maintains, it could only give rise to an increase of disputes about the admissibility of evidence", resulting in an increase in court time spent on matters which are not concerned with the innocence or guilt of the accused". And this would risk a diminution of public respect for the institutions of criminal justice". That is set out in paragraph 4.128.

I say this not by way of defending—I do not think they need defending—the commission's recommendations. That is not my business this morning. I wish merely to elucidate its approach to the problem.

I set out at least two of the ways in which the Government will wish to address themselves to the first part of the report. First, there is the question of balance. We should need to make sure that in any new scheme of pre-trial procedure the power of the police would be matched by adequate safeguards for the suspect. Secondly, we shall need to be satisfied that the available information really supports any changes that are contemplated in present arrangements. Crucial recommendations, including those on the admissibility of evidence, which I have just mentioned, on the right of silence and on the tape-recording of interviews, depend on an assessment of existing procedures and of research material, on which we shall have to take a view, together with the opinions of those who we hope will inform us, before taking a decision on the commission's proposals themselves.

I find that the second part of the report has been much less widely discussed. I hope that this will be put right in the coming months, because the questions at issue in the second part are arguably at least as important as those in the first. Who should take charge of the prosecution of offences? Should it be the police, as it is at present, or should there be a new prosecuting authority independent of the police? What should be the role of the police prosecuting solicitor's departments, and upon what criteria should they or the new authorities operate? Here the 403 commission seems to have left some of its recommendations perhaps open-ended, partly, no doubt, because the problems are less concrete and there is, accordingly, more room for manoeuvre on points of detail.

At present, the responsibility for the police decision to prosecute generally speaking rests with the chief constable concerned. Under the commission's proposals, the Crown prosecutor would be accountable in terms of management to what is at present the local police authority, but his prosecution policy would be accountable to either the Home Secretary or the Attorney-General, who is in turn accountable to Parliament. The choice of one or the other of these raises intriguing constitutional questions which we cannot enter upon tonight.

Any movement in the direction suggested by the commission on prosecutions would have unavoidable and direct public expenditure implications. The extension as a first step of prosecuting solicitor's departments to all police areas and the creation of a prosecution inspectorate cannot be done without increases in public expenditure, increases which we should have to measure very carefully against possible benefits.

These, then, are some of the questions to which the Government will be addressing themselves in future months. In our consideration of the report, we shall, of course, be anxious to take into account, as I have said, the comments of everyone concerned with the subject, and, of 404 course, the comments and opinions of the House. We attach high value to a full public discussion of the commission's proposals. Indeed, anything less would not do them justice. So I welcome this debate in that spirit.

In conclusion, I refer to the hon. Gentleman's last question as to whether the Government welcome the report. Yes, indeed, we do, and wholeheartedly. I take this opportunity to repeat once again our thanks to the commission and its chairman, Sir Cyril Philips. At a time when some have sought to discredit the role of the Royal Commission in the formulation of public policy, this Royal Commission has demonstrated how such a body can bring fresh insights to what have been found to be intractable problems. In its painstaking analysis of arguments, its imaginative use of research and the comprehensive scope of its recommendations, no one who discusses criminal procedure in future years will be able to dismiss the commission's work.

I give an assurance that the Government will be looking at the commission's findings in the same reasoned and constructive spirit as they have been put forward. We very much hope that this will be an ambition which we can all share and act upon so that we can as a community create a new and enduring balance in a vital area of our criminal law.