§ Motion made, and Question proposed, That this House do now adjourn.——[Mr. Gummer.]9.34 am
§ The Secretary of State for the Home Department (Mr. William Whitelaw)
The report that we are debating deals with issues of fundamental importance to our system of policing and criminal justice. It is a report, backed by considerable research, which presents the issues with commendable clarity. Whatever views we may have on the Commission's recommendations, I believe that the whole House will wish me to acknowledge at once our debt of gratitude to the members of the Commission and their chairman, Sir Cyril Philips. It is a tribute to the Commission, and must lend additional weight to its recommendations, that as well as producing a comprehensive and valuable review of our arrangements for investigating and prosecuting criminal offences, it was able to reach such a large measure of agreement on what should be done.
Since the report was published in January, the Government have studied the recommendations in considerable detail. Governments are often criticised for pigeon-holing Royal Commission reports and the like, but in this case that charge cannot be made. It was soon apparent to us that there were aspects of the Royal Commission's proposals, including their practical effects, on which wider consultations were necessary than the Commission itself had been able to carry out. So in August we issued a consultative memorandum to a wide range of interested organisations and individuals, and copies were placed in the Libraries of both Houses. We are grateful to the large number of people who managed to respond so quickly to the consultative memorandum. We set a tight deadline but we have been anxious to maintain momentum in the consideration of the report so that the Government can move as rapidly as possible to a conclusion about the need for legislation in these important areas. We do not intend the report to be lost sight of.
It is in that spirit that I welcome the debate. It is an opportunity—the first full opportunity—for right hon. and hon. Members to tell us what they think of the report, and it comes at a crucial stage in the Government's own consideration of the issues. Because, I am sure, hon. Members will wash to occupy the time of the debate, I do not intend to speak at great length. I shall assume that speakers are familiar with the report and will not rehearse all its recommendations to the House, but I want to remind the House at the outset of our discussion of the stress which the Royal Commission laid on the concept of balance—a 528 balance between the interests of the community in bringing offenders to justice, and the rights and liberties of persons suspected or accused of crime.
I have seen criticisms of that concept, but I believe it to be a sound one. Looking, as we do, to the police and the courts to protect us against crime and disorder, we must ensure that their powers are commensurate with the task. But we want, too, a society in which the citizen is free from arbitrary and unnecessary interference as he goes about his daily business. The Commission looked for a balance between those objectives. It is such a balance that, with the help of the report, and the guidance of this House, I shall be seeking. I remind right hon. and hon. Members that the Royal Commission said:Parliament has the duty of striking the fundamental balance and of keeping it under regular review".In part I of the report the Commission dealt in considerable depth with the powers of the police to investigate offences: powers of arrest, search and detention; powers to question suspects. There is plenty of room for differing views on the Commission's proposals, but nobody reading the report can deny that the Commission has exposed a need for reform. We must be sure that any changes we make are sound, but there is a very strong case for the view that there are anomalies and inadequacies in police powers which ought to be remedied, and that the safeguards which apply to the exercise of such powers must be put on a stronger footing. I cannot, for example, think that it is right that, extraordinary though it may seem, there is no provision in present law for the police to obtain a warrant to search a house for the body of a murder victim. On the other side of the balance, I believe that I shall carry the House with me in welcoming the Commission's proposal that the rules governing the treatment of suspects in custody should be a matter for primary or subordinate legislation, replacing the judges' rules and the present administrative directions to the police. Our general aim, in the interests of both police and public, must be to give greater clarity and certainty to the law.
I am speaking here of powers and rules which bear upon wider issues: the general issue of public confidence in the police, and more particularly the way complaints against the police should be dealt with when they are alleged to have acted contrary to the rules. A proper arrangement for dealing with complaints is part of the balance of which I have spoken. But, having acknowledged that, I express the hope that we shall not, in this debate, take up time in discussing complaints or the wider issue of public confidence generally. Those are important matters to be sure, but there will be other opportunities for discussing them. We are likely to be considering them very shortly in the wake of the Scarman report. In our debate today I hope rather that we shall be hearing the views of the House on particular police powers, to which the report of the Royal Commission was chiefly directed.
§ Mr. Alexander W. Lyon (York)
Surely that is the crux of the problem. If the public were sufficiently reassured about the use of police power, they might be willing to give the police more power. However, among some members of the public there is a deep suspicion about what the police would do with more power. Therefore, establishing confidence in the police is the first requirement before we do anything else.
§ Mr. Whitelaw
Surely nothing that I have said this morning or at any other time differs from what the hon. Gentleman has said. Issues involving public confidence and complaints must be dealt with by the House. I recognise that the system for dealing with complaints which the House incorporated in legislation in 1976 is now not satisfactory and that there is a wish for it to be changed. I want to change it. I think that we shall be able to debate these issues much more effectively when we discuss Lord Scarman's report after it has been published. I do not dissent from what the hon. Gentleman has said.
I should like to deal rather selectively with some of the matters arising from part I of the report before turning to part II, the arrangements for prosecution. Inevitably I shall concentrate on aspects of the commission's proposals which have raised questions in our own minds or in those of commentators on the report; but let us recognise that there is much in the report which has met with general approval. Although there are threads which link the two parts of the report, it is most important that Parliament should take a view on the fundamental issues in part I on their merits. In addition, there are, for example, questions of timing and resources.
One of the most troublesome issues with which the commission had to grapple in part I of the report was the so-called "right of silence" of an accused person, a matter of controversy since the Criminal Law Revision Committee produced its report on criminal evidence nine years ago. The commission concluded that there should be no duty on a suspect to answer questions, and by a majority that there should be no modification to the right of silence. I accept that conclusion, and it will be the basis upon which the Government's approach to the commission's other recommendations will proceed.
A major recommendation of the Royal Commission, in the area of criminal evidence, is its proposal that the law should not automatically exclude evidence obtained in breach of the code of practice for regulating interviews—the Commission's equivalent to the judges' rules—except where the breach involves violence, threats of violence, torture or inhuman or degrading treatment. Along with this would go the abandonment of that part of the so-called "voluntariness" rule which excludes evidence given by an accused person which has been obtained by fear of prejudice or hope of advantage held out by a person in authority. These are proposals on which our consultations have shown a division of opinion and a good deal of opposition to the commission's views. The commission certainly exposed, in paragraph 4.70 of its report, the artificial way in which the voluntariness rule often works in practice, and we are not complacent about the imperfections of the present law, but I must tell the House that the Government have great doubts about going so far towards the abolition of the voluntariness rule as the commission recommended. We shall listen with great interest to what hon. Members have to say. Our present view is that there is still a need for an exclusionary rule.
Another issue of great importance which the Royal Commission tackled is the tape recording of police interviews of suspects. The Commission recommended the introduction of tape recording but for a limited purpose initially, that is, for recording the making and reading back of the summary of a police interview of a suspect and of the process of taking a written statement from him. Many of the commentators on the report have told us that they do not think that these proposals go far enough. They 530 would like to see tape recording used more generally, although I hope that they would all acknowledge, as the Commission did, that tape recording cannot be used to monitor all exchanges between the police and suspects.
I believe that there is general agreement, to which many policemen now subscribe, that the principle is right. The Government accept that. I shall be considering carefully how we can best make any advance. But I must tell the House frankly that there are difficultie—not of principle or even of practicability, although there are many practical problems yet to be overcome, but of resources. Wholesale recording of police interrogations would be a very expensive business.
§ Sir Charles Fletcher-Cooke (Darwen)
Has my right hon. Friend any information to give about the results of the Scottish experiments in the tape recording of police interviews which have been taking place now for over two years at Falkirk and in another area? The experiments in Scotland seem to be much further advanced than those in England.
§ Mr. Whitelaw
I think that it will be best for the Minister of State to reply to my hon. and learned Friend's question when he has obtained the full details. He will do so when he replies to the debate.
§ Mr. Christopher Price (Lewisham, West)
Does the right hon. Gentleman agree that the resource cost of tape recording is not an item to be placed on only one side of the balance sheet? Does he accept that there must be a saving on the other side of the balance sheet in terms of legal aid costs and the court costs that are involved in the endless arguments about who said what and when? A great deal of money might be saved on the other side of the bargain, as it were.
§ Mr. Whitelaw
That is a factor that we must consider. However, there is no doubt that there are resource implications. I put it no higher than that. The implications will have to be considered carefully.
A further area of difficulty in part I which I should mention is the Commission's scheme for a separate category of "grave offences", for the investigation of which the police would be able to exercise certain powers which would not be available for the generality of offences. For example, the power to detain a suspect beyond 24 hours—which, in itself, has excited little or no adverse comment—would apply to grave offences only. But the Commission found it very difficult to define a "grave offence", and neither the Home Office nor, it is fair to say, those who have responded to our consultative memorandum have yet produced an objective test which would be altogether satisfactory. Perhaps the debate will help us here.
On powers of arrest, many bodies have expressed to us the fear that the Commission's proposal that all imprisonable offences should become arrestable goes too wide. I accept the force of the criticism. We could, instead, stick to the present definition of an arrestable offence for the purposes of the Criminal Law Act 1967—one which carries a maximum sentence of at least five years' imprisonment—but applying some or all of the 1967 Act powers to the few offences which, though carrying a sentence of less than five years, appear to require them. It could then be provided that all other offences carried no power of arrest unless certain criteria 531 were satisfied, such as the failure of the suspected person to identify himself on request or the existence of reasonable grounds to believe that arrest was necessary to prevent the suspect from causing injury or damage. This would reflect what the Commission terms "the necessity principle". I shall welcome the House's views.
§ Mr. Robert Kilroy-Silk (Ormskirk)
I am unsure about what the Home Secretary has just said. Did he say that the powers should be extended to offences which, whilst not carrying a five-year term of imprisonment, would be deemed to require such a sentence? If so, in whose opinion should those offences carry a five-year sentence? Should not that be Parliament's decision and not that of the Executive?
§ Mr. Whitelaw
That is for the hon. Gentleman to argue during the debate. It is a proper point. The matter needs to be considered. I was putting forward the proposals basically for the consideration of the House.
Police powers of stop and search have generated particular controversy. They are available only in certain parts of the country, yet the police there find them an essential tool in preventing and detecting crime. Those are matters which were within the purview of Lord Scarman's inquiry, and the House will soon have the benefit of his views. For my part, I am sure that the police must have properly regulated powers in this area; but I will say no more about it now.
I turn now to part II of the report. The Commission was concerned here with an issue of fundamental importance to the way in which our criminal justice system works: whether, as now, chief officers of police should have responsibility for bringing criminal prosecutions, subject only to the control of my right hon. and learned Friend the Attorney-General and the Director of Public Prosecutions; or whether, as in many other countries, including Scotland, the responsibility for prosecutions should be divorced entirely from those of the police. Of course, chief officers do not act without legal advice in making their prosecution decisions. In most areas that is provided by a prosecuting solicitor's department, the establishment of which was endorsed in the recommendations of a previous Royal Commission, the Willink Commission, which reported in 1962. But the prosecuting solicitor is essentially advisory; he advises the chief officer and conducts prosecutions on his behalf, but it is the chief officer who controls the prosecution process.
The Philips Commission proposed, in effect, a partial, but not total, divorce of the police from the prosecution process. Under its proposals, the original decision to prosecute would remain with the chief officer, but, in every police area, there would be an independent Crown prosecutor who, although working in close consultation and partnership with the chief constable, would have an independent role in the handling of prosecutions once the original decision to prosecute had been made. He, and not the chief officer, would decide what, if any, charges should be pressed, and would be wholly responsible for seeing that there was adequate evidence to support them. Each Crown prosecutor would be responsible to a new police and prosecutions authority, which would be based on the present system of police authorities. The Commission reached no conclusion on whether the responsible Minister would be the Attorney-General or myself.
532 The Government have as yet reached no conclusions on the proposals. We are certainly not complacent, given the load upon the criminal courts and the delays in bringing cases to trial, about the need for discrimination in bringing prosecutions and the importance of weeding out cases which, because the evidence is inadequate, are destined to fail. At a minimum, we should like to see the more comprehensive development of prosecuting solicitors' departments which, at present, exist in only about three-quarters of the police forces. We shall be considering how we can best advance in that direction. But we need to be sure, before we go further, that the Commission has found the right answers.
Is the notion of a combined police and prosecutions authority a sound one? What of resources? There can be no denying that a fully fledged Crown prosecution system would make substantial demands on public expenditure. Can this, in present circumstances, be a priority for the resources that we can spare for the criminal justice system? Those are all matters on which we shall listen carefully to the views of the House, but in our consultative memorandum we have canvassed some modest steps which the Royal Commission recognised should precede more comprehensive reform. They are, first, as I have mentioned, the setting up of prosecuting solicitors' departments in all areas; secondly, enhancing the status of the legally qualified prosecutor, by giving him a power of independent decision in the conduct of cases tried on indictment; and, thirdly, encouragement from the centre of greater consistency in prosecution policy and practice—for example, by adoption of the Director of Public Prosecutions' criterion that conviction must be more likely than acquittal.
My speech today has by no means covered the whole ground. There are a number of matters which were considered by the Royal Commission which I have not had time to deal with, although my hon. and learned Friend may be able to touch on them when he replies to the debate. They include, for example, such important issues as the future of committal proceedings and arrangements for private prosecutions. The fact that I have not been able to discuss them emphasises the breadth and complexity of the report, and the danger of supposing that the Commission's recommendations are susceptible to quick or easy judgment, or that they can be approached from just one point of view.
§ Mr. Eldon Griffiths (Bury St Edmunds)
My right hon. Friend touched on the subject of private prosecutions. Has he been made aware over the past 24 hours of the outcry at the offer for sale in many stores of an appalling new game called "Bombshell" that proposes that young children should enjoy the "explosive fun" of major disasters? I am not sure whether private prosecutions are appropriate. Will my right hon. Friend comment on the practice in present circumstances of offering such sick games to children?
§ Mr. Whitelaw
I heard the news on the radio this morning. I do not always enjoy everything that I hear on the "Today" programme early in the morning—either yesterday or today. I was surprised to hear about that extraordinary game. Given the problems that a Home Secretary has, I thought that it could not be a game that he would like or approve in any way—quite the reverse. I had another sly thought that at least perhaps I would not 533 be responsible for any action to deal with that. I should be extremely careful before I comment. Looked at from the Home Secretary's point of view, however, it seems an extraordinary idea.
I see my own task as ensuring that any legislation that might stem from this distinguished and valuable report is practicable and workable in the view of those who have to administer it; that it is consistent with what society can afford in the way of resources; and, perhaps most important, that it provides the powers and safeguards which are required by the times in which we live.
§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
I join the Home Secretary in congratulating the chairman and members of the Royal Commission on their assiduous work and on the comprehensive report that they have produced. It is so comprehensive that, despite the Home Secretary's proper and understandable wish that the debate should concentrate on its precise contents rather than on related issues, it is difficult to the point of impossibility to consider its conclusions without at least attempting to place them in a wider context.
The report's conclusions are intended to contribute towards the creation of an increasingly peaceful society in which the police act with increasing efficiency, respect and understanding of the community that they serve. The Royal Commission hopes to make proposals that would help us so to organise the processes of justice that what it regards as the proper balance is struck between the need to apprehend and convict wrongdoers and the obligation to protect the citizen's inalienable rights.
The Home Secretary talked of the concept of balance within the report. He said that it was a concept that he would not criticise and that he did not understand how criticism was possible. The difficulty of the concept, which in some ways complicates our entire examination of the report, is that it is of such universal application as to be meaningless. Irrespective of his position on these matters, everyone believes that a balance must be struck between the rights of individuals and the ability of the police and courts to protect society. The question is not whether the balance is in jeopardy; it is where the fulcrum of the balance should be placed. Therefore, the concept of balance takes us very little further forward.
Some of us would argue that the fulcrum has been placed by the Royal Commission on some occasions in the wrong position. However, I nevertheless return to the theme that the object of the Commission's recommendations was to provide a society in which the two obligations are, to a degree, properly met.
The balancing of those obligations and the review and revision of criminal procedures in general cannot be isolated from other proposals in related fields—proposals that we have made on the Opposition Benches and that have been made in other places to improve the relationship between the police and the public. Indeed, some of the proposals made by the Royal Commission cannot be distinguished from proposals frequently made from this side of the House to improve our entire penal policy.
Let me give an obvious example of what I mean in welcoming part II of the report. Paragraph 7.3 contains a proposal that we wholeheartedly endorse. It is that there should be no further delay in establishing a statutorily 534 based prosecution service. I believe that it should be a national service which, after a charge is made or a summons is issued, should have absolute discretion either to proceed with or to drop a case. It should be under the supervision of the Attorney-General.
However, we should not examine that proposal within the narrow concepts of cost and efficiency and whether it is acceptable to existing prosecuting authorities. We should see the wider implications and advantages of instituting such a scheme. I suspect that such a scheme would assist in releasing necessary police manpower from duties for which it is not particularly appropriate to duties that it can carry out with greater efficiency. It would improve the relationship between the police and the public. Above all, it would help—that is why I say that the report cannot be distinguished from other wider implications of penal policy—to reduce the pressure on the prison population, since a more objective decision about proceeding with prosecutions would reduce the number of cases coming before the courts. It would reduce the prison population if we ceased to send to prison men and women who should not be there and who probably should not have been prosecuted in the first place.
§ Mr. Hattersley
I am relying, first, on my faith in the objectivity of qualified solicitors and banisters who, under the system, would make the decision. They are capable of making a more objective decision than the police, who have themselves apprehended the criminal. I am buoyed up in that hope by what the Home Secretary described as the use of greater discrimination in bringing prosecutions. That is a slightly more sophisticated way of putting the concept than the way that I put it. It is a way slightly less likely to cause offence. However, the right hon. Gentleman was making exactly the same point, a fact that I welcome.
§ Mr. Clive Soley (Hammersmith, North)
Does my right hon. Friend agree that if we had a system similar to that in Holland, where the sentence length can be recommended, for example, we should do even more to reduce the prison population?
§ Mr. Hattersley
My hon. Friend must not tempt me to widen the debate beyond the remit of the Royal Commission. I am particulary tempted when he asks me a question to which I wish to respond with an enthusiastic "Yes". Holland, which is as law-abiding as Britain, has a prison population so much smaller than ours, so we could do well to emulate it. However, I must not say any of those things in this limited debate.
I move from my wholehearted welcome for the main proposals in part II to say that even part I, about which I have much stronger reservations, has a profound effect on all aspects of criminal policy and on the overriding obligation that the House and the Home Secretary have to forge the right relationship between the police and the public.
Many of the justifications of the new proposals—certainly the final paragraph of the report—make it clear that working the new regimes that the Royal Commission proposes largely depends on the existence of a better educated and better trained police force, whose members are committed to putting on paper the justification, as they see it, for using the sterner powers that in some cases the 535 Royal Commission proposes. I give away no secrets. Sir Cyril Philips has said to me, as he has said often in public, that in many ways the success of his recommendations depends on the creation of a police force that can accept the techniques of justifying its decisions with a written report and that is subject to cross-examination.
If that is the basis of many of the proposals in the report, not only does it require a better system of police training; it also requires a major revision of the police complaints machinery. It is no good the final paragraph of the report saying that everything will be all right because a better educated and better trained police force will write down why it has taken the decisions that are in its discretion and why it believes that the necessity principle applies—why it believes that it is such a serious crime and the extra powers are appropriate—if there is no adequate system to investigate what it has decided and to penalise it if it has decided wrongly.
However, although I regard the wider debate as something to which we must come, in the time available this morning I wish to deal with some of the details of part I, many of which, I repeat, are unacceptable to me and, I believe, to many of my hon. Friends.
The terms of reference of the Royal Commission required it to examine the powers and duties of the police in respect of the investigation of criminal offences and the rights and duties of suspects or accused persons. Within those terms of reference two principles must be balanced and reconciled. In some ways, they may be regarded as being in conflict. They are the rights of suspects and the powers of the police. The report proposes powers for the police that they should not possess. It provides inadequate protection for individuals in the light of those new powers and, indeed, even in the light of my general considerations about the liberty of the subject.
The Commission rejected the most draconian proposals. It said that it could not accept the removal of the suspect's right to silence. It could not accept the right of the police to detain without charge for three days or the notion of fingerprinting whole communities.
My astonishment is not that those proposals were rejected, but that they were ever suggested. I can only say, as I said when the report was first published, that to reject the intolerable cannot be a justification for accepting the unjustifiable. We must therefore examine what the Commission actually proposed rather than the draconian and in some ways preposterous suggestions that it ruled out of hand. I shall take them one by one.
The Commission proposed a widening of the power of arrest to cover any offence that carries the punishment of imprisonment and the case of any individual who refuses to give his name and address to a policeman when requested to do so. The Commission recommends that the police should use that enhanced power only when they believe it to be justified by what it describes as the necessity principle. The condition is imprecisely defined. It depends upon an officer's individual judgment. I must say to the Home Secretary that, despite the high regard in which he and I properly hold the House, I think that he will get little help from us today or on any future occasion in defining the indefinable concepts that appear in the report. If a Royal Commission finds it difficult to give precision to such concepts, the House is unlikely to succeed where the Commission has failed.
I believe that to extend the power of arrest in such a wide and comprehensive way, according to a criterion that 536 is difficult to define, is not only dangerous in practice but inappropriate to the operations of a free society. I also believe that to widen the powers of arrest in those terms would damage the relationship between the police and the public. One thing that I hope will be clear from my speech today is my great desire to see relations between police and public improved. In my view, the operation of some of the proposals in the report could have only the opposite effect to that which I and, I am sure, most Members of the House wish to see.
I believe that the same is true of the Commission's recommendations about detention of suspects. The Commission proposes that after a suspect has been detained for six hours a senior police officer may authorise a further 24 hours' detention without charge. Thereafter, it proposes that by application to magistrates detention may be extended for a further series of 24-hour periods.
I can only say, as I said with regard to the proposals concerning the power of arrest, that I regard it as wrong in principle that an uncharged suspect should be held for so long. Again, too, I believe that such a power, operating as it might well be operated, would be bound to result in friction between the police and local communities, which would do nothing to enhance respect for the police service or to protect the long-term interests of law and order.
§ Mr. Kilroy-Silk
Does my right hon. Friend accept that in the evidence given to the Royal Commission there was no suggestion whatever that the police were in any way inhibited in the detection of crime by the absence of such powers? Indeed, research study No. 7, commissioned by the Royal Commission and written by a tutor at the police college, clearly showed that the existing powers of the police were sufficient and that there was no necessity for any additional powers. Yet the Commission, for some reason or other—perhaps because it had two police members—flew in the face of all the objective evidence laid before it.
§ Mr. Hattersley
That is absolutely true, but it leads me—indiscreetly, perhaps—to make a point as it were in the Commission's defence. I think that some members of the Commission—I choose my words carefully as I do not wish to apply the judgment to the Commission as a whole—would say that some of the powers which are extensions, or which would be extensions in a formal way if given legal backing, are already operated by the police improperly and illegally. They would therefore go on to say for instance, that it is better for "stop and search" to be given statutory backing and for a 24-hour period of detention without charge to be written into law than for those things to happen frequently and improperly. I understand that argument, although I do not share it. In my view, if it is wrong for a person to be held for 24 hours without charge, the practice should be prohibited rather than enshrined in law. Nevertheless, I mention that argument as I believe that it is a justification that some members of the Commission would advance for what they have done.
§ Mr. Eldon Griffiths
I should like to be clear as to what the right hon. Gentleman is saying—presumably on behalf of his party—about detention. Is he saying that in all circumstances the person should be released after six hours? Or is he saying that 24 hours is about right? Is he also prepared to accept that there are bound to be exceptions, such as the detained person who wishes to get 537 a lot off his chest or the person arrested at one o'clock in the morning for whom a six-hour period would be difficult to operate in practice? What exactly is the right hon. Gentleman saying?
§ Mr. Hattersley
As the hon. Gentleman shows anxiety about my welfare, I should make it clear that I do indeed speak on behalf of my party in this particular.
I am saying that charge and detention should go together and that, as in other societies, if a man or woman is to be detained, he or she ought to be charged. Very often, the separation of those two aspects is either for the administrative convenience of the charging authority or in the hope that in the inauspicious surroundings of a police station the suspect will respond in a way different from that in which he or she would respond if at home. I believe that that is wrong. Other societies succeed more than adequately in combining detention and charge at the same point. I believe that we should do the same.
I move from those two specific powers to other powers that the commission believes should be circumscribed, partly by what I have already sought to describe as the necessity principle, which is described better by the Royal Commission than by me, but also by the concept—I am tempted to describe it as a concept invented by the commission—of "grave offence". I say "invented", because although a grave offence is something that we all think that we can recognise, the invention is the codification of a category of offences and the idea that this omnibus description of offences can be defined and given a discrete understanding. That may be possible, but it has not proved possible for the Royal Commission.
The commission succeeded only in producing an illustrative list of what it meant by grave offences. No doubt it is a list to which we should all subscribe. If, as laymen on the Clapham omnibus, we were asked whether those offences were grave, I am sure that we should all say "Yes". But it is a great intellectual leap from making that statement in everyday language to introducing a category of "grave offence" which, if it is to be detected and apprehended, must carry additional police powers. According to the Royal Commission, when those ill-defined offences are thought to have occurred, extra powers should be available to the police, such as road checks, intimate searches, the taking of body samples, the temporary denial of access to solicitors, the search for evidence in property that is not the property of suspected persons, detention for more than 24 hours, detention in the immediate vicinity of the crime and surreptitious surveillance.
I believe that in such an ill-defined area it is deeply dangerous to suggest that such additional powers might be used. They are clearly open to misuse—intentionally or not—because they are open to use on the subjective judgment of police officers. I believe that to give the police power to make up their own minds and to come to their own judgments whether such powers are appropriate is, to repeat the phrase that I used before, wrong in principle and deeply damaging to the prospects of good relations between the police and the public.
Having said those critical things about the Royal Commission's proposals in part II, I do not want the Home Office or the House to think that the Opposition are unequivocally opposed to all that appears in part I. I give 538 some examples of what I regard as admirable statements of sentiment that appear in part I. Paragraph 4.116 says that "all aspects" of the treatment of suspects in custody, including the conduct of interviews, should be regulated by statute. Amen to that, say we on the Opposition Benches.
Having endorsed, if that is the appropriate word, and having certainly supported, the proposal laid down by the Royal Commission, I cannot argue in good conscience that the way in which it suggests that the statute should operate for the taking of evidence is anything like adequate. The report does not recommend that a breach in the statutory code would invalidate the evidence improperly obtained. It does say that evidence obtained through torture, violence, the threat of violence or inhuman treatment, should be inadmissible. That seems such a minimum proposition that, in a civilised society, it is hardly worth stating.
The Opposition believe that inadmissibility should be the rule for improperly obtained information unless the prosecuting authority had been able to convince the courts that, in special circumstances, it would be in the public interest for the improperly obtained information to be submitted. We believe that improperly obtained information should be ruled out because it prevents people from attempting to get information in the wrong way.
§ Mr. Douglas Hogg (Grantham)
I am not contesting the proposition at the moment. I wish to know how far the right hon. Gentleman would extend it. Does he extend the proposition to the exclusion of other evidence that has been obtained in an unlawful manner—that is to say, evidence obtained when there was not a search warrant and things of that kind?
§ Mr. Hattersley
I hope that what the hon. Gentleman mentions is not "other evidence." I hope that this would be included in the statutory rules governing the admissibility of evidence. The statutorily backed rules, as I suppose I should describe them, ought to say that "improperly obtained" means "inadmissible" save only for the proviso that in special circumstances—I shall not weary the House by offering suggestions of how those special circumstances might occur—the court can be persuaded that an exception can be made. It is, however, in my view, an exception to what ought to be a rule.
The Opposition very much support the principle proposed by the Royal Commission of taping or even video recording all evidence as it is taken. The report supports that principle but goes on to say that it may be too expensive for immediate recommendation. It proposes instead a tape recording of a summary of the evidence made by the interrogator. That is inadequate. It demonstrates a basic shortcoming of the attitude of the Royal Commission and the contents of the report.
Sir Cyril Philips, for whom I have the greatest personal respect and regard, said on radio when discussing the report with me that the recommendations had been constrained by two realities, one of which I think resulted in the limited proposal for tape recording that the Royal Commission made.
The two realities of which Sir Cyril said the report had to take account were, first, the Government's commitment to law and order, their definition of law and order and their election on a tough law and order mandate. The second was the well-known desire of the Government to hold 539 down the cost of all forms of public service. I do not believe that it is right for Royal Commissions to take into account such transient considerations. Royal Commissions are supposed to recommend what they think to be objectively right. It is for the Government to decide whether the political necessities justify them or whether economic circumstances make them possible.
Much of what I criticise in the report is the result of this concept of balance, not the balance between rights and police powers but the balance between propriety and reality. A Royal Commission's duty is to think of propriety. It is the Government's task to insert the reality afterwards. In two or three other particulars, the Royal Commission has strayed because of that.
I give only two further examples of things that I must pick out as unacceptable in one form or another to the Opposition. One is the deeply emotive subject—it is for that reason that I have left it to the final seconds of my speech—of reducing the age at which children can be compulsorily fingerprinted. I know that increasing crime is greatest and steepest among juveniles in the category recommended. However, in terms of the nature of society and the relationship between the police and the parents of the children who might be so involved, the idea of 13-year-olds being subject to compulsory fingerprinting is deeply offensive as it now stands. What is proposed is that the age should be reduced to a category of people whom I regard as children. This extension to children seems to me wrong.
An aspect of the report that I wholly endorse—it is supported by the Opposition with enthusiasm—is the general principle that it offers on the interception of telephone messages. The idea that there should be a statutory prohibition of telephone tapping in general and that it should only be allowed in special circumstances and with approval from courts of a sort seems right. However, having again enunciated a principle with which we agree, the Royal Commission's proposal for how it should be limited and how warrants should be obtained seems absolutely inadequate. It is a second example of the way in which the Commission has tried to balance what it thinks right with what it thinks the Government might accept. That is wholly wrong.
More important, in one sense, in the practicalities of the Royal Commission report, is what it would do, if implemented in toto, to the relationship between the police and the public. I repeat what I said at the beginning. All that has been recently proposed by the Opposition concerning the accountability of the police, police disciplinary procedures and the investigation of complaints, and the operation of the police force in specific circumstances, is based on the principle that law and order is best preserved in this country when there is a close and confident relationship between the police and public and the public essentially feel that the police are on their side. I do not believe that the implementation of this report would improve that feeling. Indeed, it would cause that feeling to diminish. Many of the proposals are therefore not proposals that we could accept in the House or anywhere else.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
I very much welcome the balanced approach that the Royal Commission has brought to this immense and difficult subject. It is important that the House should consider it 540 in the context within which the Commission was originally set up and in the context of what our people are looking to this House to place at the top of the agenda.
This is inevitably a dry and somewhat technical subject. It takes place, however, in the context of a massive increase in crime and public disorder. Crime has increased to what in the early 1960s we would have described as American levels. The number of crimes that are committed, the number of people assaulted and the amount of property stolen has reached a point where fear and uncertainty are the companions of many of our people, particularly the elderly.
The threats to public order, arising, in some cases, from ideological and political factors, from industrial considerations, from the spilling over of international tensions into the streets of our cities, and, most recently, rising from racial confrontations, have alarmed the British people. So, just as the previous Prime Minister set up the Royal Commission to tackle the problems of crime, public disorder and the balance that needed to be struck between the rights of the citizen and the needs of the police, today we have to recognise that all these threats—the crime, the violence and the public disorder—have become very much graver problems.
As a preliminary to my detailed comments, I therefore make one broad observation. It is that the public are far more concerned about getting on top of crime, about turning down the graph of public disorder and about catching and convicting terrorists than they are about a subject which the media and intellectuals have placed at the top of our agenda—complaints against the police.
I accept that public confidence in the police is not as strong as it was and as it needs to be. According to the opinion polls, for what they are worth, the police command only three times as much public confidence as the Civil Service, only three and a half times as much as local government, only four times as much as our nationalised industries, only five times as much as our trade unions and, I am sorry to say, only seven times as much as Members of this honourable House. Although public confidence in the police may have slipped, the level of that confidence is still such that many right hon. and hon. Members would do well to envy it.
The principal reasons for that slippage are not simply the problems of police insensitivity in dealing with young people and racial minorities. In many respects I agree that the police handle these problems less well than they used to. I am willing, as my right hon. Friend the Home Secretary is, to acknowledge that.
But the principal sources of slippage are different. They are, first, that the point of contact between the police and the public far too often is at the level of the motorist. There is no doubt that motoring offences damage relationships between the police and the public. Secondly, and perhaps more important, the public see the police as not succeeding in the battle against vandalism, muggings and attacks on elderly people. This is the principal area where public confidence in the police has slipped.
I turn to the details of the Commission's proposals, and I associate myself with the comments of both my right hon. Friend and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) in paying tribute to the enormous work and the wisdom which Sir Cyril Philips and his colleagues have brought to bear on this subject.
541 I begin with the section of the report dealing with police powers and specifically the proposals for a single statutory power for the stopping and searching of persons or vehicles.
The Police Federation, with which I have a connection, welcomes the suggestion that these powers be unified, codified and clarified, and it urges that priority be given to them when legislation is being considered.
The report recommends that the stopping of a person or vehicle should in all cases be recorded, giving details of the reason for the stop, and that a copy of that record should be made available to the person who has been stopped. On the surface, this proposal appears to introduce a heavy administrative and procedural burden on the patrolling police officer, very often in difficult circumstances of tension, or in the rain or on the highway. However, the federation does not contest the principle. It says only that it might be more appropriate to require the copy of the document giving the reason for the stop to be handed to the person concerned, not on the spot, where it happened—in some circumstances that might be too difficult—but at a police station nominated by the police officer, in a reasonable period.
§ Mr. Douglas Hogg
Is not it part of Metropolitan Police regulations that a note of all stops and cautions shall be delivered to the station officer and recorded in the station book?
§ Mr. Griffiths
That is the case.
I welcome the commission's proposals about the stopping of vehicles, but perhaps I might comment on its recommendation about road blocks. Over the past year concern has been expressed about the erection of road barriers to check on suspected terrorists and others. The federation thinks it right that there should be proper authority when a road block is put up. I do not believe it to be practical to require in every case that this should be over the signature of an assistant chief constable. He may not be available. In the federation's view, road blocks should be allowed to be placed in position by an officer of the rank of, say, chief inspector.
The commission proposes that the searching of vehicles be carried out only by a uniformed officer. I am sure that only a uniformed officer should have the power to stop a vehicle. But there will be cases—in criminal intelligence and State security matters, for example—where the search will need to be carried out by members of the CID. It would be difficult in every case for them to get out of civilian clothes and into uniform.
The federation supports the recommendations of the Royal Commission on the searching of premises. The commission has struck the right balance between recognising the need to maintain a means of entry without warrant for those necessary occasions which are apparent under the common law and the restriction to some form of written authority to enter where a search for specific evidence is the intention.
The Police Federation would be grateful for more clarification of the commission's proposals on surveillance techniques. The federation gave no evidence about this to the Royal Commission. It is not clear what the commission proposes.
The commission's intentions to both simplify and rationalise the powers of arrest are to be welcomed. I 542 listened carefully to the right hon. Member for Sparkbrook, and I go a long way with much of the thinking behind what he said. But I welcome the proposal in respect of what I have to call the awkward individual, who refuses to give his name and address. This has long presented an anomaly for the patrolling officer, and, because of it, injustices have arisen whereby the helpful offender who provides his bona fides may be punished, whereas the unhelpful offender can put off his day of judgment, sometimes forever. In some cases perhaps this leads the police, because they lack the power to detain in such cases, to act in a manner of which the House would not approve.
I come to the necessity principle. It is an exceedingly difficult matter to define. But I hope that the right hon. Member for Sparkbrook will not oppose it on principle. If the police are to exercise enhanced powers, it is reasonable for them to be required to show that they are necessary. The five criteria set out by the Commission for establishing the necessity principle are not new. In practice, they are applied today. But I suspect that the Commission could have included a sixth, which is the gravity of the offence, even though I accept what the right hon. Gentleman said about the difficulties of defining grave offences.
There is another proposal under this heading with which I do not agree. It concerns the detention of an arrested person for the purpose of clearing up other crimes. The police know from wide practical experience that frequently a person in custody or detained for one offence, who has evaded arrest for some time, will often wish to get the whole thing off his chest. He knows that the court may look sympathetically at someone who has been genuinely seeking to try to clear his conscience and admit his crimes. It is, therefore, illogical not to have the power to prolong the detention of a person for that purpose, when he is willing to assist. If a six-hour or 24-hour rule is rigidly imposed, the only alternative is for the police to release that person and immediately re-arrest him. That is illogical.
It is right to put the notification of grounds of arrest on a statutory footing, but this requirement will have to recognise exceptions—for example, if the prisoner runs away, is violent, unconscious, drunk or drugged or if the circumstances of his arrest are entirely obvious, such as being caught red-handed in front of witnesses, perhaps including police officers, as he removes goods from a broken shop window. I refer there to the case of the looter.
In such cases the shortest period that a prisoner or suspect should be able to be held by the police may have to be extended, as the commission proposes, and not reduced to six hours. The police believe that it should be extended to 72 hours. I do not think that the House would accept that. However, to impose a rigid six-hour or 24-hour limit, without taking account of special circumstances, would tie the hands of the police and impede the course of justice.
The police service—not only the Federation—is opposed to the commission's conclusions on the right of silence. I agree. No one wants a system that automatically implies guilt if a response is not given by a defendant or prisoner. No one could defend that. Nor should anyone be compelled to betray or incriminate himself. But our criminal justice system allows a judge to comment on the lack of co-operation shown by a defendant, and the jury is allowed to draw its conclusions from that. It would be a mistake to stop that practice.
543 The issue of tape recorders has been argued by lawyers for a long time. That will continue. At a seminar in Oxford, arranged between the police service and the Royal Commission and attended by many lawyers, we had the doubtful privilege of being shown video tape recordings of interrogations that had taken place in American police stations. It was not a convincing display. It suggested to me that once the police had obtained a confession they switched on the video tape to record it so that they were certain to get a conviction. I am not sure that that is the safeguard that video tapes were designed to achieve.
I am an agnostic on the principle of tape recording. I can see its advantages. However, it would be immensely expensive. It cannot be introduced piecemeal. There must be the same arrangements throughout the country. I am also conscious, as are both sides of the House, of the Watergate affair, where tapes were doctored. There must be careful safeguards, for example on editing, if tape recordings are introduced.
There is also an argument about police notebooks. We all know about the awful business of a young police officer using an indellible pencil, often in the rain, in the headlights of a car and, in difficult and dirty circumstances, writing an account of what happened. He may then be cross-examined in court by an able counsel, such as my hon. Friend the Member for Grantham (Mr. Hogg), and accused of having later amended his notes, thereby faking the record. That is unsatisfactory. In my view there are advantages in electronic notebooks for the police. The police should have access to a recording device in police cars so that when an incident occurs they can record their version of events and the evidence that they have obtained and ask the suspect or the injured person to record his views, too, if he wishes. There is much to be said for electronic notebooks for the police.
§ Mr. Douglas Hogg
My hon. Friend is not right. Most police notebooks are compiled in the comfort of a police station when both the defendent and the police officer have returned to the station.
§ Mr. Griffiths
My hon. Friend is right to say "most". That is not always the case. Frequently an argument arises about the difficult circumstances that I have described. Perhaps my hon. Friend forgets that when police officers and suspects appear before the courts, often some time after the event, they have been cleaned up, tidied up and everyone is in a cool frame of mind. However, in the circumstances of the moment, at times of riot, violence, theft or anger, it is a wholly different matter, far removed from the calm atmosphere of a court of law.
If we are to go down the road of tape recordings, we must do so in a national sense. It must not be a piecemeal operation. It must safeguard the point about doctoring of tapes. It must be balanced by electronic notebooks being made available to the police.
§ Mr. Ivan Lawrence (Burton)
What is the attitude of the Police Federation to tape-recorded interviews with suspects? For too long the principal objection to the introduction of what many of us think is the most significant contribution to the reduction of crime has been the attitude of the police.
§ Mr. Griffiths
I hope that my hon. and learned Friend will understand t lat, in the interests of brevity, I must refer him to the extensive evidence that the Police Federation 544 has put forward on that point. It certainly recognises the need to move with the times. The technology is available and should be used. However, the cost implications are serious. It is by no means an open and shut case.
I do not think that the House will agree to the fingerprinting of children at the age of 10. None the less, children are increasingly involved in crime, both as perpetrators and victims. That is a matter of deep regret. If a young thug or villain is under the age of 13, it is difficult to say that, having committed a crime, he should be excluded from the need of the police to obtain evidence to put before a court, if necessary by fingerprinting. This matter will involve a great deal of debate. I am certain that there should not be a national fingerprint bank, but from time to time there will be a need for the police to carry out blanket fingerprinting operations—for example, the case of the Yorkshire Ripper. It might have been helpful if a great deal more blanket fingerprinting had been carried out during that inquiry.
Part II of the report deals with the prosecution system. It is often alleged that the police have got themselves into the position of protecting their occupational privilege of being the only people who carry out prosecutions. That is not so. The DPP is involved. But I am agnostic on this matter. If the Association of Chief Police Officers wants to fight to ensure that the police are the only people who can bring public prosecutions, let it do so. It will be a matter of indifference to the ordinary policeman. However, the federation is concerned that if there is to be a separate prosecuting authority it ought not to lie within local police authorities. It should derive from a national authority, preferably the Attorney-General. The worst thing would be to move to the American system of district attorneys, where, to some extent at least, decisions on prosecutions may be influenced by local or even electoral considerations.
The police service welcomes the Royal Commission report and admires the balance that it has struck. Many police officers believe, as I think the public believes, that the investigation and detection of crime too often starts with the scales tipped against the police, rather than tipped in their favour.
We do not want the scales to be tipped in any direction; they should be balanced and fair. The commission's proposals to simplify and codify police powers have attempted to balance the scales and the Police Federation wishes the recommendations to be given priority in any legislation that my right hon. Friend the Home Secretary is able to bring to the House.
§ Mr. John Morris (Aberavon)
No one could accuse the Home Secretary or the Government of having a closed mind on the report. Indeed, on close examination of all the right hon. Gentleman's observations, one is amazed at the few conclusions that the Government have reached.
The only issue on which I am sure that the Government have reached a decision is the right of silence, on which they have accepted the commission's conclusion. On all the other matters, including automatic exclusion, tape recording, grave offences, the power of arrest, the power to stop and search and even a separate prosecuting system, no conclusions seem to have been reached. What has the Home Office been doing since the report was published earlier this year? It seems that none of the many consultations have had much effect on helping the 545 Government to reach even tentative conclusions. That is my summary, and I do not believe that I am being unfair, of the Home Secretary's non-speech.
I listened carefully to my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) and I had little quarrel with his remarks. However, I do not believe that he was right on the need to combine detention and charging at the same point. My right hon. Friend does not fully understand the problems that will arise.
However, I share my right hon. Friend's concern about extending fingerprinting to very young people. It is many years since I have attended, professionally or in any other way, a juvenile court, but I am sure that my right hon. Friend recognises that those courts are bursting at the seams and that crime has increased enormously.
§ Mr. Kilroy-Silk
I am surprised that my right hon. and learned Friend takes issue with our right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), who says that those who have not yet been charged should not be detained. Is he suggesting that a person who has not been charged with an offence, may never be charged and may not be guilty of having committed an offence should nevertheless be detained at a police station, perhaps for an inordinate length of time?
§ Mr. Morris
I certainly would not approve of detention for an inordinate length of time. I was merely seeking to draw the attention of my right hon. Friend the Member for Sparkbrook to the difficulties involved in charging a person at the moment he is detained. I know from professional experience that many investigations take a long time. What we need to do is to put the matter on a statutory basis so that people know their rights and there is regular and frequent application to the courts to protect people. Otherwise, it would be impossible to conduct most investigations. I merely draw that to the attention of my right hon. Friend the Member for Sparkbrook. He may wish to give further consideration to the practical difficulties that would arise. Apart from that, I have little quarrel with my right hon. Friend's excellent speech.
There were many criticisms of the report when it was first issued, but since its contents have sunk in we have all appreciated the enormous task carried out by the commission, its sterling work and its clear arguments.
The report provides a good basis for much legislation. That does not mean that I agree with every part of it—I profoundly disagree with some parts—but it has grasped the nettle of clarifying, rationalising and modernising the law.
I agree with what my right hon. Friend the Member for Sparkbrook said about the balance and the package. We must look not at the general package or balance, but at the fairness to the individual and the community of each limb of the proposals. We cannot give with one hand, take away with the other and say that there is a general balance. That would be wholly wrong.
We have to consider two interests—that of the individual as a member of the community and that of the community, represented, in part, by the police. We need to ensure that neither the individual nor the community is unfairly prejudiced by any proposal.
We tend to take an ambivalent view of the role of the police, as does the commission. I do not say that with any disrespect. When there is a major crime we tend to start 546 screaming that something must be done, but when the police err we are the first to protest. We are right to do so, but there is a duality of approach, which the commission recognises.
No one has a monopoly of concern about law and order. The law exists to protect, in particular, the weakest members of the community—old ladies who are mugged, residents of housing estates that are vandalised, girls and women who are raped on the way home from suburban railway stations, children and young people. They all need the protection of law and order and it is not right for the Conservative Party or anyone else to claim a monopoly of concern. Law and order make our community civilised.
I do not blame the Home Secretary for not wanting to pursue a debate on the need for confidence in the police, but we must all recognise that the police can do their job properly only with the consent of the community. If an extension of police powers is proposed we should always consider whether it will increase, or detract from, the confidence that the community must have in the police.
We all know that over the years there have been far too many offences and indiscretions by the police. They have resulted in a loss of confidence, which we must all regret. The sooner that public esteem for the police, who are necessary to protect the weak in society, is fully restored, the better. That is a cardinal principle and it is against that background that we must look at the proposals.
I turn to some of the issues that have been raised. There is the need to have a code of practice for many of the activities involving the police and the individual. It is right to have that code on a statutory basis but what should be the scope of that code? I find difficulty in agreeing with the commission that it should be the role of the disciplinary processes of the police to ensure that the codes are carried out.
I do not think that the commission has answered the question of who is to guard the guardians in this respect. It will not increase confidence in the police if these matters are left to them. I say in passing—although this is not the occasion so to do—that fundamentally, despite the setting up in the last few years of a new procedure for complaints against the police, it is not seen by the public to be working.
I wrote an article in The Times more than a year ago on the need to extend the powers so that they would be covered by the Ombudsman or a body of that kind, because justice must not only be done, it must be seen to be done. I am firmly convinced that there should be a new police complaints procedure.
I returned to the Bar two and a half years ago after an absence of five or six years. I have noted that trials have become much longer since I started at the Bar nearly a quarter of a century ago. The commission has briefly touched on the point that our procedures are getting much longer. There should be another inquiry to examine what might be done to shorten trials. There has been a great deal of work inthe last few years on the shortening of the length of time before trials. This must continue. I regret that trials have become longer. It is unfair to the defendant.
I do not know whether reports have been published on the effectiveness of pre-trial reviews. Provided that trial judges have adequate time to consider the papers, and that both the prosecution and the defence ensure that there are more admissions of evidence—and many more of them—much could be done to ensure the shortening of criminal trials.
§ Mr. Douglas Hogg
I agree with the right hon. and learned Gentleman. Are there not two reasons for this occurrence—the prolixity of defence counsel and the obligation they feel to cross-examine at great length?
§ Mr. John Morris
I certainly would not dissent. In particular, prosecutors these days insist on making their closing speeches. I approve of and endorse the idea of having separate Crown prosecutors. I hope that the objectivity mentioned by my right hon. Friend the Member for Sparkbrook, which would be a help, will grow.
More work has to be done on existing procedures. The trial judge must have more time to consider the papers, and not come into court and be given papers that may be a foot high, and which both counsel have been studying for months. The judge is then expected to cut the matter down to a reasonable length.
With respect, I believe that courts have gone wrong concerning plea bargaining. In the old days, when judges were much more agreeable to seeing counsel, trials were shorter. The abhorrence of plea bargaining and the disincentive of judges to see counsel is a retrograde step in the interests of justice and the individual. I may be a lonely voice, and what I say may be contrary to what the courts have been doing.
I turn next to the idea of having Crown prosecutors. In most countries there is a division between those who investigate and those who prosecute. The difficulty today with prosecuting solicitors and counsel who appear on behalf of the Crown is that, despite their full awareness of their responsibility to the courts, frequently they have no authority, or limited authority, or only authority without recourse, to take the obvious steps. I have seen a lessening of the independence of Crown prosecutors.
If someone is regularly briefed to appear on behalf of a certain police authority and if there is great anxiety to obtain a conviction, it is not always easy to have that independence of the prosecutor—which I was taught was of fundamental importance—exercised in practice. One has seen far too many defendants being proceeded against when the evidence is weak and far too many prosecutors lacking in a robustness of view in this respect. It would be an important step, therefore, to restore the necessary independence and objectivity.
I would not agree with the commission that there should be any responsibility—other than perhaps for pay, rations or accommodation—on the part of any local "police and prosecuting authority". It should be a matter for the Director of Public Prosecutions. Obviously, he would have to set up a more regionalised authority, but ultimately the responsibility would be that of the Attorney-General. From my knowledge and experience, that is what I should like to see.
It will not he possible for me to deal with more than a fraction of the points arising from the report. If I do not deal with certain points, it is not because I do not attach importance to them. I should, however, like to mention the right of silence. I greatly welcome what the Home Secretary said in that respect. It was the only categorical point that he made in the whole of his speech, and I do not say that disrespectfully. If the right of silence were to go, it would be the beginning of the end, if not the end, of the accusatorial system that we have. Indeed, the burden of proof would be substantially altered.
In this context, I cannot agree with the Commission's idea of summarising part of an interview, or giving a 548 summary of an interview at the end of it, and then asking the accused for his observations at that time. If such a summary were played back to a jury, and the defendant had said nothing, it would have a psychological effect on the jury and adversely affect his chances of a fair trial. I hope, therefore, that that idea will not be pursued.
I know the difficulties of the Home Office as a small spending Department. Any increase in expenditure, however marginal it is in gross terms in relation to the whole of Government expenditure, looms large in the budget of the Home office. I have frequently seen the difficulties of the poor Home Secretary in having to argue with his colleagues in Cabinet for his widow's mite—for that is what it is in global terms.
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
§ Mr. Morris
I am glad to have the Minister's endorsement. I think that this is the background to the lack of decision in the Home Secretary's speech as to the items in the report that would involve public expenditure. But we live in a technological age, and the idea that we cannot have taped interviews with accused people because of the absence of soundproofed rooms, and matters of that kind, suggests that the members of the commission were living in cloud-cuckoo-land.
Those of us who represent constituencies far from here broadcast matters on the telephone from our own rooms in the House and from our own homes. I hope that those on the receiving end do not take it too badly. We do not have available to us here anything resembling soundproofing. I regard this point in the report as a red herring. I am sure that, if a tape recording were coupled with a transcript, there would be no difficulty in ensuring that what was said was properly and clearly presented to a court.
There is certainly a resource element, as one of my hon. Friends said in an intervention to the Home Secretary. We spend far too much time these days—I do not protest, I merely make the observation—on challenging "verbals" in court. Frequently there is nothing else to challenge. I was surprised to read the assessment in the report that so little time is taken in court in challenging verbals. I doubt that. I doubt those conclusions. My impression is not the same. I worry very much about how these statistics were reached and whether they are a proper basis for reaching a conclusion. If tapes were available, not only would an individual no longer be able to say that he had been "framed" in the rare cases—there may be more, but who can tell?—when the observations of an accused are put innocently or maliciously in the wrong context, but their presence would ensure that a person was not improperly convicted.
§ Mr. W. R. Rees-Davies (Thanet, West)
Does the right hon. and learned Gentleman agree that at present verbals are a fundamental cause of trouble in almost all criminal trials? I say that for two reasons. First, they take up an immense amount of time when counsel has to cross-examine and deal with them. Secondly, if there were no verbals and everything was recorded earlier at the police court, many more people might plead guilty to charges preferred against them because they would know that what they had said had been recorded, and their advisers would appreciate that there was no way of being able to cross-examine on what was a properly recorded confession.
§ Mr. Morris
That is also the tenor of my remarks. That is true where there is a tape recording and not only in cases where there is an allegation of framing. Also there is a greater chance of conviction, because there would be fewer contested cases. Certainly, when a jury heard hesitation, prevarication and the attitude of the accused on the tape when it was played back in court, there would be a greater chance of the guilty person not escaping his deserts.
Then there is the question of access to a solicitor. In a police station the parties are not equal. There should be a fundamental improvement in this regard. Practice, certainly in the Metropolitan Police area, so far as notices are concerned, has greatly improved in latter years, but it would help if, when a person is offered and either refuses or accepts a solicitor, he declares that fact in his own writing on a charge sheet and signs it. There would be much less argument if that happened.
I find it difficult to understand that, while the Commission goes along with the idea of access to a solicitor, there should be exceptions when grave offences are involved and reasonable grounds for believing that consulting a solicitor may cause delay resulting in risk to life and property, interference with witnesses, disposal of the proceeds of crime, or the escape of accomplices. My view is that the graver the crime, the greater the need for a solicitor to be present. To exclude an accused person who is in the difficult position of merely being in a police station from proper access to proper legal advice is to use much too broad a brush.
If delay means risk to life and property, I have some sympathy, but on the other points it is a reflection on the profession of solicitors. If there is any basis for that—I hope there is not—all those arguments could be met by having duty solicitors available who would be there to ensure that the interests of the accused were protected. In that way delay could be avoided. I hope that all those arguments by which it is sought to exempt the police from ensuring access to a solicitor in the case of a grave offence will be removed. Every person should have the right to have a solicitor present. That is a matter of the utmost importance, and would be a great step forward as regards freedom of the individual.
The next matter concerns the judges' rules. This is not the time to go into their history or how they came about. The problem is that judges have been too weak in excluding evidence where there is a failure to comply with either the judges' rules or the administrative directions. It is the lack of robustness that has brought the whole system into question. I am glad to see that Conservative Members who have great experience in this regard agree with me about that.
The Home Secretary left the matter somewhat open and appeared to lean towards the view that there should be exclusions. I am particularly attracted by the proposed Australian solution to the problem, which says that there should be an automatic exclusion of any illegally obtained evidence unless the prosecution can show that it should be admitted in the public interest—for example, as regards the triviality of the breach, the demands of the circumstances of the investigation, or the seriousness of the offence that is being tried. We do not want a criminal to get away on a technicality when the bobby has boobed. That would be quite wrong. It is important that the guilty person is brought to trial and convicted.
550 In the same way, the researches and comments on the researches have shown the adverse conclusion drawn by the commission to the effect that this kind of disciplinary effect on the police has not worked in the United States. That is now based on evidence which is not accepted by the critics of those conclusions. I shall not weary the House with what was said in the Criminal Law Review and other journals, but it appears that it would be quite wrong for the commission to have drawn a conclusion on what happened 16 years ago in one city in the United States. The research is not accepted by those who examined the matter. In my view we should have a much tougher and more robust attitude to the judges as regards judges' rules, and I am attracted to something on the lines of the Australian proposal.
§ Mr. Eldon Griffiths
I agree with the right hon. and learned Gentleman that the American experience of the exclusionary approach is no longer convincing. However, he will be aware that, in recent publicity about State security matters, inducements have been given from time to time to people to plead guilty to certain offences for the purpose of assisting the police and the security services in pursuance of justice. Does the right hon. and learned Gentleman want that to be made statutory? What would he do about the problem of inducements?
§ Mr. Morris
I was talking about inducements in connection with the accused. It is a wholly different matter when it comes to witnesses. I am talking about the voluntary nature of the statement. Inducements to witnesses are a wholly different matter. My experience is that these days juries tend less and less to place reliance on those who assist the police in these matters. That does not usually carry the case unless it is supported by other strong evidence. Witnesses and the accused are two entirely different matters.
One is concerned with the extent of the proposals about searches. I fully share my right hon. Friend's repugnance about the proposals for arrest. Great care will be needed before any step is taken in that direction, if we are not severely to damage community relations. The proposals regarding searches deserve careful examination. Where there is a major crime—a "Ripper", or something of that sort—there is a great demand that something should be done. I find it impossible to define a grave offence satisfactorily. The public might wear measures stronger than normal in extreme cases for short periods. Bad cases do not make good law, but one should not ignore that possibility—although I would not wish to see, without very great care being exercised, any extension of the infringement of the rights of individuals.
Time presses on. There are many other points with which we should deal. I hope that the Minister will deal, as the Home Secretary mentioned, with committal proceedings. I found the article about committal proceedings by Mr. James Morton in The Guardian many months ago very trenchant. It made a deep impression on me. The reason why so many cases get through to the higher courts today is that rubber stamping has become the order of the day in the magistrates' courts. I hope very much that the Government do not do away with the possibility of preliminary proceedings in magistrates' courts. What is needed is a more robust approach to weed out cases, in a robust and effective way, and not to pass the buck as happens so frequently today that it has become the rule rather than the exception.
551 Despite our criticisms, the Government should take heart and find the resources needed—they are very small—to carry out some of the proposals in the report. We would need to examine legislative proposals carefully, remembering all the time, as I have said, that fairness to the individual must be looked at against the basis of each proposal, and that the individual is also part of the community as a whole.
§ Sir Charles Fletcher-Cooke (Darwen)
Trial by confession—that is to say, trial by self-incrimination—is an abject jurisprudence. It is my contention that too many trials today depend purely on self-incrimination.
There are some interesting statistics in the report. They are private and not official statistics. Some of them have been criticised already. I draw attention to two statistics which I regard as very disturbing. On page 83 it is suggested by one researcher—who is evidently important enough to be quoted—that six out of 10 of those interviewed by the police make a confession or admission. That seems a high proportion indeed.
The other artistic, on page 97, is that more than three-quarters of the defendants who ask for solicitors to be present at their interviews are refused. Of course they should be refused if there is a grave danger of the course of justice being, impeded. That is true whether it is put in a statute or in any other way. But can it be conceivable that with more than three-quarters of the defendants who ask for a solicitor to be present there is in all such cases a danger of justice being seriously impeded? No.
The truth is that there is grave suspicion about what goes on in the interviews. That can be allayed—I think that everyone agrees about this—only by a proper recording of what takes place there.
This argument has been going on for about 18 years. Machinery for recording has been getting better and cheaper, and it is being adopted more and more throughout the world. Many of the objections which from time to time have been raised have been either dropped or shown from foreign experience to be unfounded. There was a time when people were frightened that sophisticated suspects would start to scream that they were being hit about and that this would appear on the tape recording even though nothing was being done to them. The experience in America is that that does not happen. In no case in any of the countries where tape recording is used has that occurred. It is a possibility. It would be completely ruled out if we could have video recording, and as that is beoming cheaper and cheaper I do not see why we cannot aim for that. But, even without it, it seems to be no sufficient reason or not introducing this reform to which everyone, generally speaking, agrees or at least concedes.
The other objection that there used to be—it has very largely been dropped—is that it would be incredibly boring to have all the conversations on the record, because in the first quarter of an hour or so it is, apparently, police practice to chat about football and other matters in order to gain the confidence of the suspect. I have no doubt that they do so—-and quite right, too. But there is no reason why those who have to administer the law should be relieved of a certain amount of boredom if for that price one can have an accurate record.
Then there is, I am told—that is why I asked my right hon. Friend about it—as a result of the Scottish experience, a feeling growing up that the accused will not 552 talk if there are machines on the table. All that I can say is that he is not obliged to talk anyhow, and the fact that he does not talk when there is a machine present but will apparently talk when a machine is not present casts serious doubts on the position today. I say no more about that.
The only serious argument that I have ever heard about this matter—apart from the expense—is that it is assumed, rightly I suppose, that if one has a system of recording questions and answers, questions and answers which are not recorded are thereby automatically excluded. There is the fear that suspects frequently blurt out, on their way to the police station in the car, in the crisis of the moment, confessions and admissions which, when they reach a more formal interview at the police station, they retract, or, at least, do not repeat, and that it is not right that those blurtings-out should be excluded. I see the force of that argument.
§ Mr. Rees-Davies
I very much agree with everything that my hon. and learned Friend has been saying on this point. However, if every police officer carries with him a recording device, when the officer and the suspect are on their way to the police station, that machine will still be recording and, therefore, one can have a recording of everything that is said by the person who has been charged, not only at the police station but beforehand. That would be one way of dealing with it, would it not?
§ Sir Charles Fletcher-Cooke
Yes, I suppose so. It is a practical matter. The police seem to be carrying quite a lot of apparatus around with them already. I am not sure whether they can bear one more addition to the Christmas tree. At any rate, I am grateful for my hon. and learned Friend's intervention. It is a serious point. Even if it cannot be met, it does not seem to be so overwhelming that it should exclude the vital importance of taping or video taping the great bulk of interviews between those in authority and suspects. In this report, but not always in previous reports, finance seems to be the objection. I echo the words of the right hon. and learned Member for Aberavon (Mr. Morris). Although machines are getting cheaper all the time, trials are becoming more expensive. Therefore, the balance shifts with every minute. The expense of holding a trial within a trial that lasts two days is so great that many of our police stations could be equipped from the cost of that alone.
Last week I was engaged in a trial dealing with the Customs and Excise. There was a trial within a trial that lasted two days. There is no reason why Atlantic House—where the Customs and Excise conducts its interviews—should not be equipped with a recording machine or why that machine should not be paid for out of the two days that we wasted on a trial within a trial. Given the wages and salaries of all the court officials, counsel, the shorthand writer and the judge, that must have involved colossal expense. There is no reason why the Customs and Excise—at least as a start—should not have recording apparatus in its interview rooms. I have been told that we cannot have a piecemeal approach, but I do not see why we should not start with the Customs and Excise and with the Revenue to see how the system works. If recording apparatus was used, there would be practically no trials within trials or challenges.
§ Mr. Eldon Griffiths
I shall ask my hon. and learned Friend this question because of his vast experience, and not in order to contest his point. If, while a recording is 553 being made, the accused makes an outrageous aspersion or allegation about other persons or makes comments that could pervert the course of justice in other trials, should the tape be edited and who should do that? That is a practical problem.
§ Sir Charles Fletcher-Cooke
There is already editing of the record of interviews between counsel and with the leave of the judge. I see no difference in principle between the editing that is done of written statements and the editing of statements and questions and answers that are recorded by machanical means. There should be, and there is, editing. I shall give an example. Frequently there is inadmissible evidence in the questions and answers. It may not have been inadmissible originally, but as co-defendents have pleaded guilty since then the questions and answers must be edited. If they were not, that would be contrary to the rules relating to hearsay. Therefore, in those circumstances, editing—multilateral editing rather than unilateral editing—is acceptable. However, unilateral editing is a different matter.
I stress that the need for recording has become urgent, in the interest of the police as much as in the interests of anyone else. Perhaps unfairly, notebooks are becoming the objects of suspicion, if not derision. It is most uncomfortable and unsafe for the administration of justice if the police have to start with that burden when they give evidence from their notebooks. When the police reflect upon the matter—as I believe they are doing—they will welcome the introduction of recording machines.
I have asked about the results of the Scottish experiments. As usual, the Scots have been much quicker off the mark than the English. What conclusions have been drawn from the Scottish experiments? Although this matter does not directly involve his Department, I wonder whether my hon. and learned Friend the Minister will comment on that. Perhaps the Government could secure a speedy report on the Scottish experiment. Indeed, I think that the Minister has some documents with him. I should also like a report on the Home Office experiments that started about 10 years ago, but which we have heard little about. This issue must be tackled with the urgency that the administration of justice and confidence in the police requires.
On the whole, the report is good. I am pleased that it recommends the abolition of the practice of making unsworn statements from the dock. That is a relic of the days when the prisoner was unable to go in the witness box and give evidence on his own behalf. However, it has become an abuse, by which the accused can utter all sorts of uncontroverted and incontrovertible slanders against not only those in authority, but his own co-defendents. He cannot be cross-examined on behalf of those co-defendents and he may get away with frightful liberties. I see no reason why such an absurd anomaly should persist for another day.
§ Mr. Alexander W. Lyon (York)
I was a member of a Labour Party group that gave evidence to the Royal Commission and commented on the report. Therefore, I do not need to go into the minutiae of the recommendations in my short speech. Instead I shall concentrate on the fundamental flaw in the report, which has robbed it of most of its credibility.
554 The report arose from discussions that took place on a Bill in 1977. Several amendments had been tabled in Committee, including my amendment to establish a public prosecutor system and an amendment to provide a statutory code instead of the judges' rules. It seemed clear that by agreement with the Opposition of that time those amendments might have been carried. The then Minister of State, Home Office, arrived in Committee the following day to say that he had set up a Royal Commission and that it was, therefore, not worth continuing with the amendments. Therefore, they were not carried. Indeed, we all know how things are done in the House.
The result of the years of deliberation since then confirmed my deep prejudice against Royal Commissions. If the Committee had pursued its view we would have come to a sensible conclusion that could have been implemented long ago. The power of the House was negated by referring the matter to the Royal Commission. With all respect to the distinguished chairman, for whom I have great respect, he was trying to close a gap between opposing interests on the Commission and between his view of what was right and what he thought the Government would implement. It would have been better if we had made that assessment, and not the Royal Commision. We know enough about the issues that underly the report to make the decision.
Therefore, it would be wrong to implement the main provisions of part I of the report. I am completely in favour of a public prosecutor. I came to that conclusion after reading the report of Justice on "The Right to Silence" many years ago and I tried to push that prospect when I was a Minister, in a speech that caused much controversy in the police service. Since then, the police have been battling against it. However, they are battling against an inevitable tide. Throughout the world—with the exception of one or two Commonwealth countries—the police do not engage in the prosecution, because they investigate the case. There is a fundamental disparity between the responsibilities, which cannot be confused.
Where the public prosecutor system exists—I accept that it should not be like the American system, which includes electoral considerations—in Scandinavia, for example, the number of fought cases is reduced perceptibly by the public prosecutor's discretion in eliminating cases that never stood a chance of conviction and in eliminating bad evidence that might be contested.
That discretion is vital. I am opposed to building on the existing prosecuting solicitors' departments merely because that will cut the expense and because it is the British way. Prosecuting solicitors' have been trained over the years in a habit of mind which is completely different from what we want from public prosecutors.
A public prosecutor must be a figure of the same independence as a Crown court judge. I would insist that he should have the same qualifications as a Crown court judge. Initially it might be valuable if some Crown court judges were appointed public prosecutors. It is vital that public prosecutors are above any threat or constraint from the police or from the public. They must do their job completely independently. I would put them under the Attorney-General. They must have at least the independence of mind and power that procurators fiscal have in Scotland. I would go even further than that.
I differ from the Commission, which thinks that such a system can be tied to local control by police committees. I think that the committees must be given stronger powers 555 over the control of the police. To allay the anxiety of the police and everyone else that there could be political interference with prosecution policy in individual cases, it is vital that that policy should be separated into a public prosecutor department which is answerable to the Attorney-General. There should be no question of the police committees having any involvement in that area.
§ Mr. John Wheeler (Paddington)
I was warming to the hon. Gentleman's proposal with some enthusiasm. Surely the nub of the problem is that the Crown prosecutor must be totally independent. He must be politically independent and independent from any body or authority that might be concerned with the provision of the services of his office. Will the hon. Gentleman deal with that vital issue?
§ Mr. Lyon
The Crown prosecutor is so independent in all the countries where the system exists, except perhaps in the United States, which is often cited as a precedent for not adopting the public prosecutor system. For us the crucial example is Scotland. In Scotland the procurators fiscal are answerable to the Lord Advocate. No one has ever suggested that a procurator fiscal's decision has been taken on political grounds because he is answerable to a person who is in a political appointment. Judges are created and are answerable, in so far as they are answerable to anybody, to the Lord Chancellor. The Lord Chancellor holds a political appointment. We never have any difficulty about that. The Attorney-General knows perfectly well the difference between his political hat and his legal hat.
That sort of control over the acquiring of evidence in the sense that the local procurator would assess the way in which the evidence was taken and would be able to intervene if he thought that something was wrong would be more viable than that which is afforded by putting little bits of notes in notebooks and being answerable for them later during cross-examination.
There are a number of rules about writing things in notebooks. Reference has been made to the rules of the Metropolitan Police. Those rules do not stop the police failing to make notes or putting false notes in their books. Surely that practice cannot be taken, as apparently the Royal Commission took it, as a corrective to false evidence in the police service. It has not worked in the past and I do not think that it will work in future.
If we are to have codes for the reception of evidence, they must be backed by powers of exclusion that will lie in the hands of the judges. I would not go as far as the Americans and the so-called poisoned tree theory. There are occasions when, on the grounds of public interest, it is impossible to justify excluding evidence that may have been wrongfully taken but which would lead to a miscarriage of justice if it were excluded. Therefore, I settle for the Australian code, to which my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) referred. That code provides the proper balance.
The Commission is right to talk about a balance of police power. If the police have power, it means that they are able to use ii: to the detriment of the liberty of the subject. That is the nature of power. It means giving someone the right to interfere with the liberty of a subject on reasonable grounds. If we are to extend that power, that must be because we think that it is in the public interest that that should take place.
556 We all want to reduce crime. We all want to catch criminals. There is a case for saying that the powers of the police should be extended. However, because of the abuse of police power over the years—there is undoubted evidence of that—the people are suspicious about giving the police any more power. One of the matters that led to the creation of the Commission was the Confait case. I do not need to go into that case in any detail as it was recently the subject of a television programme. I hasten to say that it was not a very good one.
I took part in the consideration of the Confait case. It had a profound effect upon my conception of what we should be doing about police power. Even if we had had statutory codes on the taking of evidence, the police officer concerned in the case would still have got away with it. The officer twisted a question in the course of the interrogation so that a mentally handicapped child gave a wrong answer, on which the rest of the prosecution was built. He could have done that in the presence of a parent. The parent who heard about it later did not dispute it.
That official was able to use that power in that way and no one thereafter tried to reprove him for it. The apparatus of justice moved on and the prosecutor presented the case in such a way that the flaws in the evidence were concealed. The judge went on to say that because there was a confession, the confession must be right. Again, that concealed the disparity between the forensic evidence and the rest of the evidence. The failing was that no one was available with a sceptical mind at an early stage to say "We may have this wrong". That is where a public prosecutor would come in.
§ Mr. Christopher Price
My hon. Friend said that the policeman in charge of the Confait case might have got away with it. Although the officer in charge of that case is no longer with the Metropolitan Police, his deputy who took the confessions has recently been made head of the fraud squad. That illustrates the power of the police against the power of everybody else.
§ Mr. Lyon
I am grateful to my hon. Friend for that intervention. We are not concerned about a code containing a set of rules that will permit artificial examinations in the rarified atmosphere of the courts some months after the event. We are discussing how to get the police to do the right thing day by day and to lean against doing the wrong thing. In the end all those issues come back to the control of the police. If we had a police force that was daily seeking to do its duty and not to break the rules if—and it knew that if—it broke the rules, it would be in trouble, the minutiae in the report would not be necessary. We would be able to give greater licence to our police because we would be able to trust them.
I am saying not that we cannot trust the majority of the British police force, but that, from my long experience, we cannot trust some. We do not know whom we can trust and whom we cannot. That is the real difficulty. Because "Operation Countryman" came to nothing, and the head of it, who was a deputy chief constable elsewhere, was able to go away and say that he was stopped from getting to the truth by senior officers of the Metropolitan Police who are still in their positions, we do not know what is the depth of corruption in the Metropolitan Police. As we do not know that, we do not know whom we can trust, so we are bound to go for artificial rules that have all the difficulties of stopping us getting to who is guilty and may ultimately interfere with the acquittal of innocent people.
557 For that reason, before we go forward with any greater extension of police powers, we have to settle this crucial issue. Who is to control the police and how is that control to be exercised in a way that increases the chance of the guilty men being convicted and decreases the chance of innocent men being convicted?
The public prosecutor is the first stage, but the other, and crucial, stage is to increase the power of elected representatives on police committees so that a continuing watch can be kept over what goes on in the police force. I argue against it, but at the moment the representatives are said to have no statutory right to interfere in the policing operation in their locality. They are excluded by a chief officer who arrogates all that power to himself. Because he is unable to justify such action and because, by disposition, he is inclined to preserve such power for himself, he will try to defend his cause at all costs. It is concluded that the representatives are not sufficiently sensitive to what is going on in the locality.
The axiom for community policing is that because of the police's involvement in the locality, the locality has greater trust in the police and the police come to know more about the locality. In the end, policing is self-controlling by the fact that it is much more open to local opinion in the area. We must go that way. I would be willing to give greater powers in such a situation.
I end on a controversial note. Ever since I read Sir John Foster's dissenting report to the Justice committee on the right of silence and the report of my old tutor, Glanville Williams, in the criminal procedure committee on the right of silence, I have held the view that the theoretical arguments in favour of abandoning the right of silence are strong. If a man seems to know more about what happened on a particular occasion than anyone else and he is told that he need not say anything unless he wishes to do so, it is daft to say that one is trying one's best to find out what happened.
The theory of the British trial is that one is trying not to find out what happened, but to prove whether an accusation is true. However, for the interest of the public at large, one is trying to find out what happened. It would help if the man were willing to give an explanation at some stage. That right is much overrated. Most cases get to trial with an explanation by the accused. It is rare for him to rely on his right of silence.
If the police had carried out an investigation and came to a reasonable suspicion that the fellow had something incriminating against him, an explanation should be given. If he could take that not to the magistrate—the commission rightly rejected that—but to the public prosecutor; and if, before the public prosecutor decided to prosecute, he was able to ask the accused what he could say about the matter and if the evidence of what he said could be recorded, that would have a powerful effect in reducing the number of court cases and would get us nearer to the truth. When the man could give an explanation, that could be followed up, and when he had no explanation, later on there would not be a chance to concoct a story.
Only 5 per cent. of the cases in Denmark are fought because that system obtains there. If we had the same system, the savings in court time and in trial costs would be so immense that they would more than pay for the 558 recording equipment. It is important to balance the Home Office objection to tape recording against the saving in time.
I occasionally sit as a deputy circuit judge. Some years ago I was told that a fairly simple case cost about £4,000 a day to try in the Crown court. Goodness knows what it would cost at the Old Bailey. Even £4,000 a day would buy a lot of tape and video recorders.
§ Mr. Lawrence
The hon. Gentleman's concern for civil liberties is well known. Does he also agree that the right to silence as operated in our courts is often also a trap for the innocent?
§ Mr. Lyon
The right to silence is much over-praised by common lawyers who have been brought up on the system. The Royal Commission says that to do away with it would undermine our accusatorial system of trial, but I would not necessarily cry about that. It does not follow that because there has been that right, we must retain it for the future. The position was changed in 1898; I am sure that it can also be changed in 1981.
However, before making such a change we must ensure that it helps towards the necessary fairness between the public and the individual and does not increase the likelihood of convicting innocent men. I should be against it totally if it did that. However, I do not believe that that would be the case in the situation that I have described, where the power structure within the police force had changed. Therefore, I believe that that is the way forward, rather than that suggested by the Royal Commission.
§ Mr. W. R. Rees-Davies (Thanet, West)
I am delighted to follow the hon. Member for York (Mr. Lyon). Although I do not always agree with what he says, I agree with a great deal of what he said today.
I wish to deal briefly with the so-called right to silence. I endorse what the hon. Gentleman says. I am absolutely satisfied that it is out of date and should end. It came about in the previous century, when the accused person had no right to give evidence on oath. He remained silent, because the proceedings were entirely accusatorial and the Crown had to establish guilt beyond a reasonable doubt. It was not until 1907 that an accused person had the right to give evidence. It is now almost always assumed that he will give evidence. However, in the fairly long experience of criminal cases of myself and my chambers, we have frequently taken the view that it is best not to call an accused person to give evidence. We have often succeeded in obtaining acquittals, as the Crown was unable to establish its case beyond a reasonable doubt.
As time has gone by, it has been found that in virtually no case can it be right for the accused person to maintain this undoubted right to silence. First, there are the lengthy troubles over what are commonly known as "verbals". In criminal cases lasting seven or eight weeks or longer, days are spent by defence counsel in cross-examining police officers to the effect that their evidence is false or, if not false, completely erroneous, but often with the suggestion that it is deliberately false. That cost is immeasurable. In some cases the cost must have been £50,000, and that is just for the time that is spent in the cross-examination of police officers at a long trial. The accused person then gives evidence to the effect that all the evidence which he is supposed to have given orally is false and he is cross-examined, often for days.
559 In this modern age, there is no way in which we can keep the system of the verbals. The trouble starts with the judges' rules. If the judges' rules are to be maintained in their present form, there must be, in my view, an absolute carrying out of the judges' rules. Judges must not be left with the discretion of permitting, none the less, a breach of the rules and at the same time permit the admissibility of that evidence. In three out of four long criminal trials over the past four years in which I have been engaged, there were clear breaches of the judges' rules. In every instance the judge, by using that discretion, admitted the evidence—notwithstanding the admitted clear breach of those rules—on the ground that he did not feel that there had been anything involuntary in the statements made; and the basis of the judges' rules is that confessions should be admitted only when they had been voluntarily given. In the end, the judge had to decide whether he believed the police officer or the accused and, having decided that he believed the police officer, he admitted the evidence, although there had been breaches of the judges' rules.
I am bound to say that I would have hated to be the judge on each of those three occasions when deciding whether to believe the police or the accused. I certainly had grave doubts in two or three of those cases about who was telling the truth. Such is the backcloth of the age in which we live.
We are now in the age of the video recorder. We have that technology now. There is no conceivable reason why it should not be introduced and it must be introduced immediately. The first stage, which should be introduced immediately, would involve properly recorded interviews of all that takes place either in the police station or elsewhere so that when the accused person is at the police station and he is charged there is a full record of the interview. I believe that it should be video recorded. The cost is said to be great, but it would be nothing when compared with the trouble and cost of the trials to which I have just referred where literally days are spent in the preparation of a case.
Certain members of the Bar are briefed because it is said that they are brilliant cross-examiners of police officers. It is well known that briefs are handed out because it is thought that certain people will be able to break down police evidence. That is quite wrong because they might be able to break down the police evidence in the eyes of the jury when the police officer was telling the literal and complete truth, which is the case in the majority of cases. Therefore, the recording of interviews is the first step we must take.
Secondly, there is no reason why every police officer engaged in the investigation of crime—I do not suggest that it should be every policeman on the beat, but all those in the CID, the fraud squad, and so on—should not carry his own electronic device. As my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) pointed out, the police now support this. It is a remarkable change to find that the carrying of such electronic devices might be acceptable to the police today. I am sure that that is right.
My main argument is that it is wrong to suggest that this would not assist the police. The greatest possible assistance would be to allow them to carry such devices so that when they arrest a person, or indeed when they stop a person and are considering charging him with an offence, the entire conversation between the police and the suspect will be recorded by the machine. At some stage, of course, it would be essential to edit that record. It would therefore 560 have to be returned to the station, recorded and filed and proper notes kept, just as notes are kept to the effect that, say, a car has been stopped. It would therefore be fully recorded and retained.
That would not only provide an extremely valuable record. As my hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) pointed out, when a police officer arrests a suspect with a view to charging him with, say, murder or some other serious offence., as is so frequently shown by the verbals, the suspect may blurt out some very damaging admission against himself, and it is amazing how often the same peculiar phrases come out. Juries, of course, tend to disbelieve them, yet sometimes they are true.
It is therefore important that when a police officer goes to arrest a person, whether in his own home or elsewhere, he should carry a recording device. He could thus record the fact that he made a proper entry because his own voice will come through. The knock on the door, the statement that the police are coming in and that they have a warrant to do so would all be recorded. The reply from the person inside and whether he refuses to allow the police to enter would also be recorded. In many unfortunate cases for the police nowadays they are accused of unlawfully breaking and entering premises and behaving appallingly. If such devices were carried, the police would have the answer to those allegations. When people talk about improving police discipline, I believe that one of the gretest advantages of video recorders and other electronic devices is that one would be monitoring the discipline of the police and hearing the voice of the suspect. I have therefore changed my earlier view.
I was called to the Bar as long ago as 1939. My father was a chief justice, my uncle was also a chief justice, and my grandfather was a lawyer. I mentioned that simply to show that I have could not have had a more terrible "common lawyer" background, I was brought up entirely as a common lawyer, believing utterly in the absolute right of silence. I was brought up entirely on the concept of the accusatorial system, but I have changed. In 1981, with all the devices available today, everything should be done to encourage every individual to give the earliest explanation for what is put to him. What is wrong with that? A man should not be told, "Keep quiet. Anything you say will be taken down and may be used in evidence". He thinks that this means it will be used against him. He should he asked "Will you please come to the station and be good enough to give an explanation of certain facts? We intend to see that this is recorded. If you like, you can ring up and get your solicitor to come along. We are prepared to wait until he arrives or to make the arrangement." The person would then be told "We trust that you will give a full explanation of the following matters". If it is a case of fraud, there may have to be a long series of written questions. That is usually the case and the person is asked to answer the questions one by one.
The person should be told "You are not obliged to make any such statement, but if you make no reply at all there is no reason why the judge should not comment on the fact that, having had a full and fair opportunity to reply to everything, you have chosen not to do so". that can be taken as evidence which the jury can consider. The jury may be given an explanation by the accused person about why he maintained his right of silence. He might even say "I have always been brought up to believe that this was the 561 proper thing to do". The jury may believe that this is a perfectly good reason. On the other hand, the jury may say that the person had a perfectly good opportunity to answer.
The test is the manner in which we deal with our own children. We do not say to them "Sonny boy, keep quiet. I warn you that you are not to say anything. If you do, I shall take it down and use it as evidence." We say to them "We want your explanation as to what you were doing." The only reason for these restrictions built up over the past 100 years is that they were needed at the time. There was no way in which a person could be forced to give evidence. Today, when evidence can be recorded, the situation has changed.
I hope that all hon. Members—there is a wealth of experience on both sides of the House—will advocate that we should go forward in those ways and will insist that the Home Secretary should adopt a system of recording that will be of great benefit to the public and the police. I believe that it will much improve the image of the police and their opportunity of convicting many more people.
§ Mr. Robert Kilroy-Silk (Ormskirk)
The hon. and learned Member for Thanet, West (Mr. Rees-Davies) will, I know, forgive me if I do not follow the legal niceties of his argument except to say that I oppose his fundamental proposition to abolish the right of silence. Like my right hon. and hon. Friends, I want the police to be effective and efficient. I want them to be provided with the appropriate resources and powers that will enable them to carry out their proper function of protecting the public and detecting crime. My constituents, like those of every hon. Member, wish to be protected from vandals, hooligans, robbers, muggers and rapists. They have a right to be so protected and this House has a duty to ensure that they are properly protected. At the same time, I want to see the fundamental rights and individual liberties of the citizen protected.
The word "balance" has been bandied about between the two Front Benches. There has been talk of the balance between the powers required by the police in the effective performance of their duty and the individual citizen's right to certain civil liberties. It is a difficult balance to strike. It is a fine and sensitive balance in what has become a highly controversial area, but one that has nevertheless to be struck. In my belief, the balance at the moment has swung heavily in favour of the police.
The police already have extensive powers, which they have abused and extended, as their testimony to the Royal Commission confirms. They admit that they have abused many of their powers on many occasions. All the paraphernalia that we see today, with the setting up of special patrol groups and the availability of plastic bullets, CS gas and water cannon, is taking the police into different terrain and away from that public co-operation and confidence on which they depend and without which they cannot be effective. The use made currently by the police of some of their powers to investigate and interrogate is in itself a denial of civil rights.
The Royal Commission did not propose an ending to the right of silence and rejected the suggestion that suspects might be held for up to three days at a time and the proposal for the finger printing of whole communities. Like my right hon. Friend the Member for Birmingham, Sparkbrook, (Mr. Hattersley) I endorse the rejection of 562 those proposals, but I find it surprising that anyone should have entertained them seriously in the first place. Had any one or more of those been accepted and recommended by the Royal Commission, we should be, if not already in a police State, moving down that dangerous and slippery slope leading inevitably to the establishment of such a state. It is not laudatory for the Royal Commission to have rejected those proposals. It would have been surprising if it had taken any one of them seriously, let alone the whole package.
Having said that and having said that the Royal Commission rejected what the Opposition regard as the more serious and extreme proposals, I must make the comment that the recommendations made by the Commission will swing the balance of power further to the police than it is at the moment. I believe that to be wrong. It is wrong for the police. The recommendations in themselves have no merit. Nor is there sufficient evidence or argument in their favour. More importantly, they will lead to a greater deterioration in police-public relations, which are so crucial and essential not just to the tenor and atmosphere of policing but to the way in which we conduct our everyday lives.
We see already a substantial and unfortunate erosion of public confidence in the police. It was demonstrated graphically by the events in Toxteth, Brixton, Moss Side and elsewhere in past months. I do not suggest, nor do I believe, that all those incidents had their origin exclusively in relations between the police and the public. However, I know from both my own area on Merseyside and, not least, my intimate contacts with Toxteth, that policing policies and what is regarded by the public there as the arbitrary use of the special stop and search powers held by the Merseyside police have a great deal to do with the bitterness and resentment felt by the public against the police and that that was an important contributory factor in the riots in Toxteth.
That is the way that we have gone already because of the insensitivity of some young police officers and, let it be said, some chief constables. It is also a consequence of the abuse of police powers. If we were so foolish as to follow the path recommended by the Royal Commission, I suspect—I should not want it to happen—that what we saw happening this year would be a mere foretaste of similar occurrences in the future.
The Royal Commission recognises that the police depend on public confidence in them as a force and in the essential fairness of the way in which they operate. For that reason alone, the commission's proposal to increase police powers is unacceptable. The arguments have been deployed by my right hon. and hon. Friends and by some Government supporters, but my own opposition includes the recommendations for stopping and searching both individuals and vehicles. Both the powers envisaged are extremely vague and very wide. They would cause both bitterness and inconvenience to individual members of the public—especially those who are innocent—who are subjected to those powers.
We must place the stop and search of vehicles and individuals in the context of Toxteth where, it is alleged, indiscriminate stopping of young blacks took place, often on trivial pretexts. The young blacks said that that was tantamount to harassment and was largely responsible for the hostilities in that area. I find it remarkable that the 563 Government warn to give the police that power when we have evidence of the way in which it has been abused and knowledge of the public's reaction to it.
We now have the public testimony of certain police officers about those whom they regard as suspicious individuals. Many hon. Members will have read of the accounts given at the police college of chief officers saying that they regard certain individuals with certain ethnic backgrounds, types of haircut, dress or donkey jackets as prima facie suspect individuals. We know that the police take an establishment view and regard the unconventional as suspect. However, we have never before had it placed on record. If that is the way in which police behave—it is in their evidence, not mine—we must not give them wider powers to exercise their prejudices and dogma. The evidence does not support giving such powers to the police.
The evidence shows that of those stopped outside the Metropolitan area on suspicion of carrying drugs, 75 per cent. are not charged. That means that 75 per cent. of those stopped were unnecessarily inconvenienced and, as a result, feel bitterness and resentment towards the police. Research carried out on behalf of the Royal Commission in the Metropolitan area of stops and searches under existing legislation showed that 88 per cent. of those stopped and searched, almost at random, were not subsequently charged. There is already a wide and great abuse of existing powers, to no real effect for the police but to the great detriment of the relationship between the police and the public.
The same considerations apply to the suggestion for the widening of powers of arrest. They are unnecessary for the reasons given by my right hon. Friend the Member for Sparkbrook. They are far too wide and vague.
Again, the same considerations apply to the proposals for entering and searching premises, often belonging to those known to be innocent, in the pursuit of evidence or the possessions of a suspect who it is believed has passed them on to innocent people. It is not right to give that power to the police, with all the trouble, inconvenience and hostility that it will arouse. The same considerations also apply to the wider powers of fingerprinting, taking body samples and detention of witnesses.
Most of the crimes that are solved in Britain are done so on the initiative of the public, not the police. The police detect little actual crime. They rely for their success rate, which is not very impressive, upon public information and co-operation. On those grounds alone, it is important to sustain and develop that co-operation.
I do not believe that the commission proposal that the police should have the power to detain witnesses for a supposedly grave offence, and compel them to co-operate, will either create a spirit of co-operation or lead to the results that the police anticipate.
§ Mr. Wheeler
Where do the police get their evidence, if it is not from the public? There is no other source. For example, in cases of burglary which are difficult to detect, the police are entirely dependent upon co-operation from the public.
§ Mr. Kilroy-Silk
The hon. Gentleman makes my point. Perhaps it does not need to be made, although, judging from some of the police's comments to the Royal Commission, it does need to be made and to be made forcibly. The hon. Gentleman is at one with me and, I 564 suspect, every other hon. Member. The police depend on the public and we should not give the police power to detain witnesses—not suspected persons or offenders—and compel them to co-operate. That is not the way to achieve the objectives that every hon. Member shares.
There is not a jot of evidence in research reports, the Royal Commission report or, as far as I know, anywhere else, to suggest that such powers are necessary. If it could be demonstrated that the police are not being as effective as they could in prosecuting crime and bringing criminals to book because of the absence of the proposed powers or that they were seriously inhibited in the performance of their functions as a result of the lack of those powers there might be a good case for introducing them. But that evidence does not exist. The available evidence, not least that commissioned by the Royal Commission, suggests that existing powers are sufficient and that there is no need for further powers.
It is unfortunate that the Royal Commission spent much time examining how police powers should be increased, but little time considering what safeguards could be imposed for the protection of the public. When the Commission refers to safeguards it leaves out any mention of effective sanctions for dealing with police abuse or malpractices, and merely suggests that such actions should be dealt with by the police's disciplinary procedures or by civil actions. Both options already exist and every hon. Member acknowledges that both are inadequate and ineffective.
That is why there is overwhelming support for a more rigorous and independent investigation of complaints against the police. The Royal Commission was guilty of a "cop-out" when it suggested that the abuses that may result from the additional powers should be dealt with by existing discredited methods.
I welcome the Royal Commission's comments about an independent prosecutor. I want the system to come under the Attorney-General and not to be locally controlled and it seems from the debate that there is agreement on that view. There is also overwhelming and convincing support from all parties for tape recording or video recording of the interrogation of suspects. There is no reason why the police should continue their opposition to a sensible and progressive reform that would do more for them than for anyone else.
It has always bothered me that the police never seem to recognise what is in their own best interests, although they are belatedly recognising that in relation to the complaints procedure.
I welcome and endorse the stricter proposals for surreptitious surveillance and the recommendation for an extension of the duty solicitor scheme.
Two other matters interest and concern me particularly. The first is the Royal Commission's comments on the cautioning system. It points out that it is unfortunate that there are such wide variations in cautioning practice in various police areas and makes a particularly useful recommendation for statutory implementation of a formal cautioning system.
The parliamentary penal affairs group made a recommendation to that effect after taking evidence from several police forces and seeing the unfairnesses, anomalies and injustices that arise because different forces operate the cautioning system in different ways.
565 The group's report on young offenders recommends to the Home Secretary that there should be a statutory cautioning system and greater uniformity in practice throughout the country. When the right hon. Gentleman met a deputation from the group on 11 November he agreed in principle with our arguments and seemed to endorse the view of the Royal Commission. At our request he has agreed to look at the good practice in, for example, the Hampshire and Essex constabularies. In Hampshire, for example, the view is taken that anyone under the age of 17 or over the age of 75 who has committed a first trivial offence and who admits guilt should not be prosecuted but cautioned.
The parliamentary penal affairs group feels that all those under 17 who admit guilt on a first minor offence should be automatically cautioned. That should also apply to a second minor offence. We want an extension of cautioning to adults. In an important sense, the Royal Commission endorses that. I should like the Minister to say what steps the Government have taken since the publication of the report entitled "Young Offenders—A Strategy for the Future"—and what his response would be to a much more uniform, statutorily based cautioning system.
With regard to the remand system, the Royal Commission expressed concern at the length of time that it takes for defendants to go to trial. It is a concern that has been expressed by the Lord Chancellor, the Home Secretary and many hon. Members in all parts of the House.
That concern has also been expressed in the report of July 1980 of the parliamentary penal affairs group entitled "Too Many Prisoners" and in the recent report of the Select Committee on Home Affairs on the prison system. There are far too many people, waiting for trial or on remand, who are going through our prison system and who ought never to have entered a prison in the first place. There were 58,000 in the last year, 44 per cent. of whom will eventually be found not guilty, or be given a non-custodial sentence. All of them, in effect, will have served a prison sentence. The May committee said that it was a scandal that ought to be ended.
However, even more important is the length of time for which people are held on remand awaiting trial. The Royal Commission alluded to the problem. There are today 900 people in prison awaiting trial who have been there for over 110 days. This would not happen in Scotland, where there is the 110-day rule—if a person has not been brought to trial by the end of 110 days he is released, the charges against him are dropped, and can never be brought again. If Scotland can introduce and sustain a system such as that, effectively and without any injustice either to the offender or the community, there is no reason why it cannot be done in England. It is indefensible that 900 men and women should be in prison in England and Wales who could not be held under the same conditions in Scotland.
§ Mr. George Cunningham (Islington, South and Finsbury)
Is my hon. Friend aware that the Home Office denies that it knows how many people are in custody awaiting trial for more than 12 months or for more than 18 months? I think that next week it will confess that it does not know how many people have been waiting for more than two years.
§ Mr. Kilroy-Silk
I am sorry, but my hon. Friend must be privy to different information from that which I have. The figure that I have just quoted is a Home Office figure. It is not one that I have assumed, or made up. Another figure was given in a written answer to my hon. Friend—that 50 people have been awaiting trial for over a year. It is wrong and indefensible that we cannot expand the court system, the pre-trial procedure, or do the variety of other things that need to be done, and which the Lord Chancellor in evidence to the Select Committee on Home Affairs agreed were necessary. Nor can these improvements be carried out more quickly or more effectively to stop this distasteful and unhappy period before someone is brought to trial. Even the guilty have a right to a quick and effective trial.
There is no reason why there could not be time limits on procedures such as there are under the speedy trials legislation in the United States which could be introduced if the Government had the will and the ambition not merely to reduce prison populations but to provide tolerable conditions for those on remand. This is important, because many of those held on remand are held in the most obsolete of our prisons under the most appalling conditions, many of them in overcrowded cells.
Whatever our individual views on specific recommendations of the Royal Commission's report, the most crucial factor is to get the relationship between the police and the public right. It is important to our constituents, but it is also important for our police. It will become even more important with the large and increasing numbers of young people, particularly black people, who at the moment are clearly alienated not just from the police but from the community as a whole. We shall not achieve that objective, or obtain a police force which is both effective and has the confidence of the public, if we go down the path recommended by the Royal Commission. I hope, therefore, that we shall not do that.
§ Mr. John Wheeler (Paddington)
I hope that the hon Member for Ormskirk (Mr. Kilroy-Silk) will forgive me if I do not take up entirely the arguments that he has presented. I should like to dwell upon certain aspects of the report rather than on the undoubted crisis in the prison service about which we are both deeply concerned.
Before I consider the commission's report, I should like to draw the attention of the House to a remarkable fact. This is a debate on issues of great importance to the country and to the criminal justice system, yet there is no one present from the Liberal Party. The Liberal Party is to initiate a debate on law and order next Thursday. Therefore, the House might have expected representatives of that party to be present today at this companion debate in order to consider aspects of the criminal justice system and criminal procedure. Their absence seems to me to require some explanation.
Before looking in some detail at the commission's report, it would be right to pay tribute to Sir Cyril Philips and his commissioners for the valuable work they have undertaken and for the character of their report. It is an extensive document. Every page is packed tight with issues of great importance; sometimes of controversy. But it is as well that those issues have been considered in detail and with care.
In considering the Royal Commission's report, the House has a great duty placed upon it—to protect the 567 liberty of the individual citizen and yet at the same time to ensure that the common concerns of all citizens with regard to protection from lawlessness are met. There is perhaps a contradiction here which only we in this House can resolve.
I should like now to comment on some key points in the report that I have identified as being of immediate concern to the House today. The first relates to the tape recording of evidence. I wholly agree with the tape recording of evidence. The electronics industry has expanded a great deal in recent years, and the nature and volume of the equipment now available no longer presents a barrier to pursuing the objective of recording evidence. The principle is a very acceptable one, and I hope that we shall proceed towards implementing it as soon as possible.
There are, however, some aspects of tape recording which give me some concern. The House cannot ignore the fact that there are substantial costs involved in supplying the equipment, in the storing of the tapes and in the soundproofing of rooms. I do not believe that the sound-proofing of rooms is a red herring. In looking around the police stations of this country over many years, I have noted that they vary enormously in quality. Some would easily lend themselves to the procedure; others would not. There is, therefore, a serious cost implication for the Home Office.
I consider that the best way to proceed would be for a pilot scheme to be established as soon as possible, perhaps in the Metropolitan Police area, and perhaps encompassing an entire Metropolitan Police district. That would mean that at least 10 major police stations would be brought within a tape recording project fairly swiftly. It would cover at least 250,000 people. We could then see what difficulties arose from the tape recording of evidence, and we could ensure that those difficulties were resolved before it was extended to the whole of England and Wales.
I have also some concern about the proposal for a detailed transcript of each interview. I doubt whether it is as practicable as one might suppose. The commission recommended that a short summary signed by the interviewer and the interviewee should be used instead of a transcript. I wonder whether it would be better to continue with the current standard procedure of keeping a note of the questions and answers, the note being signed by the person being interviewed. That would be a more accurate record of the interview than a summary at the end, and it would be a reasonable substitute for a transcript.
The commission proposed that a police officer of the rank of assistant thief constable or above—presumably in London that would mean a commander or a deputy assistant commissioner—should have the power to authorise the setting up of a road block, provided that the authorisation were in writing. Frankly, in my view, that recommendation is impracticable in certain crime situations, particularly when there is a requirement for urgency. Perhaps a good example is the recent Yorkshire "Ripper" case. When a body was found, road blocks were immediately set up by the constabulary services in Yorkshire. When there are terrorist incidents in London and elsewhere in England and Wales, one can envisage the importance of the police being able to act swiftly if serious crimes are to be dealt with.
The implication in the report is that the commission sees road blocks as being used for random checks on crime. I have been around the streets of London during the past 10 or 15 yeas at most extraordinary hours of the day and night in the pursuit of my public work. I have been 568 stopped only once at a road block. I cannot believe that there is a serious problem here. In my view, it would be a serious mistake to demand such a high degree of authority for setting up a road block, and it would inhibit the police from dealing with those urgent matters in which time is of the essence.
I have some reservations about the commission's proposals concerning appearance notices. If a person is stopped for an offence such as shop theft—commonly known as shoplifting—the commission suggests that he should be issued with an appearance notice. Then, instead of being taken to the police station and charged, the person would be required to attend the police station at a mutually convenient time specified on the appearance notice.
My experience is that people in that category of offence are often traumatically disturbed. The proposal might render a great disservice to some people. They would go away and be worried about the fact that they had to go back the following day. It might be their first involvement with the police, or even the first time that they had entered a police station. It could be a very dangerous situation.
The House has a duty to ensure that procedures are fair and that they protect the liberty of the subject. However, the House also has a duty to ensure that people are protected from any harm that they might do themselves in the circumstances that I have described. That is perhaps an illustration of the kind of problem that could arise if appearance notices were adopted. We should therefore think carefully about that proposal.
The other instance that the commission suggests in support of appearance notices is when police go to a suspect's house and invite him to attend the police station for questioning. If the suspect wants to turn up the next day at the police station and the police feel that he can be trusted to do so, because he will not abscond, destroy evidence or fabricate a story with other witnesses, an appearance notice is redundant. If he does not turn up, the police will fall back on their original power of arrest and they will use that whether or not the suspect was issued with an appearance notice. If the police do not feel that the suspect can be trusted, an appearance notice would not be used in any event. The appearance notice proposal is rather redundant.
The commission has proposed that detention of a suspect at a police station for more than 24 hours should require the consent of a justice of the peace in a closed court, and for more than 48 hours the consent of a justice of the peace in an open court. I am not opposed in principle to the restriction of the powers of the police over detention, but I believe that these proposals may be too rigid. For example, if a man were arrested in Scotland and he were required for an interview in London, most of the first 24 hours would be spent in travelling. My hon. and learned Friend the Minister of State knows of my concern about delays between London and Scotland in judicial matters. I wonder whether this illustration of travel somewhat inhibits this proposal.
The provisions would also be somewhat impractical in the case of a dawn raid on a large number of suspects, perhaps after a terrorist incident. It would probably take more than 24 hours for the police officers concerned to interview each individual.
Therefore, I feel that the law should remain about where it is—that an individual should be released, as charged, as soon as possible. In practice, this means not more than 48 hours, and my experience and understanding 569 of this is that in most cases it means within six hours. I wonder, therefore, whether there is a great need to move down this particular road.
Earlier in the debate the hon. Member for York (Mr. Lyon) discussed the proposal for a Crown prosecutor. I am quite attracted to that idea. There is nothing wrong in principle in the police service carrying out the investigation and reporting its findings to an independent person who then has to decide whether there should be a prosecution. My only reservation about this is the certainty that such a prosecutor would be wholly independent of the political machine. Surely there is here a great danger in having a national prosecution service that might at some future date be subject to some pressure about who should be prosecuted or about which type of crime should be prosecuted with vigour.
The present arrangement is that power is decentralised in 51 different constabulary districts. Therefore, there can be no oppression from one central source. Subject to that reservation, I incline towards the proposal. However, the character of our criminal justice system and the way in which we operate in Britain demands that the citizens themselves and all those engaged in the criminal justice process should play a fairly equal part. It is unfortunate if the learned professions, the solicitors and the barristers, are prevented from both prosecuting and defending. It seems that we might lose if we had certain learned members of the professions who merely prosecuted permanently and who had no experience of defending.
In the balance of checks and advantages in the present arrangements, in Britain we have this general arrangement. I would be loth to change too quickly into a more centralised, bureaucratic State system. We should reflect carefully upon such matters. However, I should certainly encourage the creation of solicitors' departments. I am concerned that solicitors' departments do not exist in a quarter of our police forces. With the present complexity of the law, it is essential that all police forces should have solicitors' departments. That should be achieved as soon as possible and before we consider seriously the question of a Crown prosecution service.
§ Mr. Christopher Price (Lewisham, West)
I am happy to speak after the hon. Member for Paddington (Mr. Wheeler), since we both have the distinction of not being trained lawyers. In debates such as this there is always a danger of their being so dominated by those who have deep experience of the system that another point of view will not be put forward.
I have been dragged into this subject only because of a case that has attracted almost as much notoriety as any other. I refer to the Confait case, which was mentioned in the introduction to the Royal Commission's report as being one of the elements that the commissioners had in the back of their minds when preparing the report. However, I wish that they had taken a little more notice of the social context. The Confait case demonstrated the inequality of an interrogation that takes place in a police station between an experienced police officer and an individual. In some cases the young person concerned may be aged under 18, and in others he may be mentally handicapped, although over the age of 18. In both cases they may have little 570 experience of such situations and few psychological or other defences. In addition, they may have little knowledge of their rights.
To some extent, the commission's findings worry me. Although it said it was worried about such miscarriages of justice, the chairman, or someone else, following a television programme that referred to my hon. Friend the Member for York (Mr. Lyon), said that the commission felt that such a miscarriage of justice was an aberration. It probably was unusual for a murder case. However, miscarriages of justice in petty cases that come before the magistrates' courts are probably not uncommon, where confessions or verbals are believed by the magistrate or jury. The police are not held in the high regard that they should be held because there are far too many miscarriages of justice.
My hon. Friend the Member for York was right. The nub of the debate is the extent to which the police behave themselves and the extent to which the public trust them. The fact that we had to have a Royal Commission—although I agree that that was not necessarily the right way to proceed—is partly a symptom of the gradual breakdown of the trust that once undoubtedly existed between the public and the police.
When the Home Secretary made a statement recently I made an off-the-cuff remark that the police should not investigate themselves because they might be thought in some instances to be a sort of masonic mafia. I used the word "masonic" in a generalised rather than in a specific sense. I have been deluged by letters that set out in chapter and verse the feelings of those who consider the police to be a conspiracy against them. The letters have been sent by those who read The Daily Telegraph, in which my remark was reported, and generally not from the readers of other newspapers. The confidence between the public and the police must be considered at the same time as we address ourselves to the commission's proposals.
The Royal Commission has decided to reject the concept of an exclusionary rule linked to the judges' rules. The present exclusionary rule is linked to voluntarism. It is worth remembering that the report of Sir Henry Fisher into the Confait case specifically recommended that there should be an exclusionary rule under which the courts should exclude evidence taken in particular circumstances—for example, from children, young people or the mentally handicapped when no independent person was present or when the words spoken in the police station were not subject to a tape recording or video recording. I beg the Minister to take that criticism especially seriously.
The thrust of the commission's report is "Trust the police. Make them write everything down. Make them work in a more orderly manner and then everything will be all right." I urge the Minister to accept that that goes against the balance of opinion throughout the country. Surely there is nothing like the discipline of knowing that even if a confession is obtained it will not be admissible in evidence. That is the only way in which we shall control the minority of policemen who seem to believe that all there is to investigating a crime is to bully a confession out of someone, to put it into evidence and then to move on to the next case. I hope that the Government will regard the exclusionary rule as an open issue rather than one which has been closed, as it were, by the majority view of the Royal Commission.
I add my support to those who advocate tape recording. However, I am extremely dubious that partial tape 571 recording will be any better than the present system. I attended a great many hearings of the New Cross inquest. The evidence was not tape recorded. The police introduced an independent witness to part of the interrogation. It was alleged that another set of interrogations had taken place without an independent witness. If we introduce tape recordings as a major safeguard, we must ensure that everything is tape recorded. If it is not, the element of the interrogation which is not tape recorded will be similarly subject to the time wasting in court alluded to by many hon. Members. I hope that when the Government assess the possibility of tape recording they will take a wide view. Hon. Members have said in the debate that the technology is such that a tape recoder can be carried almost anywhere.
I also hope that the Government will not be led astray by the complaints in the report and in previous Home Office reports on tape recording about the bogy of the cost of transcription. There would be no need to transcribe everything on the tapes. The idea that one will have to make a secretary transcribe everything is absurd. The fact that the tapes exist, that one copy will be with the defence, one with the prosecutor and one with the judge, will be in 90 per cent. of the cases sufficient to ensure that no transcription is needed. The truth will be there, someone will listen to it and thereafter no one will be disposed to argue much about it. Therefore, I hope that the Home Office will press on with tape recording.
The Minister of State will be aware that there has been a long saga about tape recording which has been going on for nearly 10 years. We are told that it is not the police who are obstructing it. If it is not them, I can only assume that it is the Home Office, which is doing so on the ground that it cannot do a swap between the cost of its Vote and the estimated saving on the Lord Chancellor's Vote in court time. I hope that that blockage will not hold up progress any more.
With regard to the independent system of prosecution, the greatest consensus in the debate is that it is in the interests of the police and of the individual who is charged that prosecution should no longer be in the hands of the police. I take the warning from the Royal Commission that one must not expect, just because one goes over to a system of having an independent prosecutor, that he will suddenly be a civil libertarian prosecutor. The experience of the procurator fiscal in Scotland show that some fiscals are almost more police than the police in their willingness to prosecute in the case of certain offences.
It is an important extra safeguard to make sure that the court's time is not wasted and that cases shot through with holes never get to court. It is a safeguard that the police know, when they are interrogated, that their evidence will have to go through that sieve. I hope that the Home Office will not be affected by a sense of amour propre, of wanting to keep a few more functions in that Department, in coming to a conclusion on the issue. The prosecutor must come under the Attorney-General.
I hope that the Home Secretary will consider how sensible it is that criminal justice should remain with the Home Office while civil jurisdiction goes to the Attorney-General. Perhaps that is too wide a question and will bog us down. The Attorney-General is now responsible for the Director of Public Prosecutions, and if we go to a wider public prosecutor system he must be responsible for that, too.
Nor do I believe that there is anything in the argument that if we went to a public prosecutor system we might 572 endanger the political independence of the prosecution. The people who were charged after the Brixton and Southall riots and the Blair Peach murder have little confidence that the prosecution system that took them into the magistrates' courts and to an almost guilty verdict is independent. A prosecution system that was taken away from the police would be manifestly less politically motivated.
I do not wish to end on a sour note. Sir Cyril Philips and his commission have been criticised for their report. I believe that, particularly in the social context, they got wrong in many respects the judgment and balance between the liberty of the individual and the need to prevent crime. However, the report is an important compendium of law reform. I hope that the Minister will tell us what legislation the Government intend to introduce and within what time scale.
§ 1.6 pm
§ Mr. Ivan Lawrence (Burton)
Echoing the last point made by the hon. Member for Lewisham, West (Mr. Price), I hope that the Royal Commission report does not lie where most Royal Commission reports lie—on the shelf, to accumulate dust year after year.
One example of how unpopular lawyers are in the House is that other hon. Members stay away in droves whenever we have a lawyers' debate, but the hon. Gentleman is a little unfair if he believes that those of us who have been thrown up from the interstices of the legal profession will favour the system. It is clear from what has been said in this fascinating debate that we are substantial critics of the system. We frequently ally ourselves with the most unlikely company on the Opposition Benches.
I welcome the report. I thank Sir Cyril Philips and his commission for their sturdy work. They have thrown light in obscure corners, brought the subject to our active attention and, I hope, stimulated the Government to action.
Although most of us have doubts, according to our lights, about certain parts of the report, the hon. Gentleman went further than most of us would go. He said that, on balance, the report was not all that good. I believe that, on balance, it is constructive and helpful, even though I have some substantial criticisms.
It is no fault of the Royal Commission—although this may be inscribed on its epitaph—that it has held up all reform in the criminal legal system for practically five years. Governments set up Royal Commissions to avoid making difficult decisions. For example, there is the splendid and much supported demand that the prosecution in the magistrates court show the defence the statements that it will rely on. Nothing could have speeded up the magistrates' court trials more. However, each time that I asked Attorney-General and Solicitors-General about such a change, I was told that we should wait to see what the Royal Commission had to say. In practice, the alteration has been made all over the place, but the Government's failure to take positive action was blamed on the Royal Commission. Some of us believed that reform of law and order was urgent enough years ago, but it is far more urgent and necessary now then it was then.
I wish to concentrate upon those aspects of the report which bear upon the reduction of lawlessness. The crime rate in this country has risen constantly. We now live, unfortunately, in a very frightened society. People are afraid to go out into the streets because of fear of 573 lawlessness. The Conservatives were elected to do something about that. Therefore, the last thing that should happen as a result of the publication of the report is that the Government do nothing about it. They must do a great deal about it in order to satisfy those who sent us to this place in the belief that a Conservative Government would act to reduce crime and take positive action with regard to law and order.
The importance of criminal procedure in that context is not immediately obvious to people, which is perhaps why the House is comparatively empty, but to reform criminal procedure is to take a substantial step towards the reduction of crime. In the long term, we shall not achieve a more responsible and less lawless society until our education system and the responsibilities of the family, the media and the Church are brought more closely to bear on raising a generation of children who have more respect for authority. In the short term, however, it is the job of the Government to deter crime. They can do that by spending a lot of their resources on preventing crime and removing the opportunities for criminality. To some extent, that has been extensively done by recent Governments. But much more must be done.
The Government also have a responsibility to ensure that villains are caught. The Conservative Government have taken a substantial step in that direction by increasing the attractiveness of the police force and stimulating recruitment so that there are now more policemen on the beat than there have been for some time. One hopes that the catching of criminals will thus be a substantial deterrent to criminality in the future. But it is no use catching villains if, once caught, they are not convicted, just as it is no use convicting villains if, once caught and convicted, they are not properly punished and deterred from future crime and if others are not also deterred from committing crime.
With regard to punishment, the Government are in great difficulties due to the massive prison population and current beliefs about treatment which, whatever else they do, do little to deter crime. In terms of convicting the guilty, however, the Government can and must do something, partly as a result of what the Royal Commission recommends, but also partly as a result of what it does not recommend. In our system, half of those who plead not guilty are acquitted. I know of no other country where the acquittal rate is so high. If that is so, there must be something wrong with our system. It is difficult to believe that what is wrong with the system is that countless innocent people are arrested, charged and dragged through the process. One would certainly much prefer to believe that most of those who are arrested and charged are in fact guilty.
Nothing could be more useful in securing the conviction of a larger proportion of those who are guilty than the two matters that have been most spoken of today—the amendment or removal of the right to silence and the introduction of tape recorded interviews. In my speeches on other occasions, I set out my grounds for believing in both of those developments. Indeed, I sent one of my speeches to the Royal Commission as my evidence on the matter.
It is the experience, I believe, of many who practise at the Bar—it is certainly my experience—that nothing has contributed more to the acquittal of the guilty, that nothing 574 has done more to contribute to injustice to the innocent, that nothing has done more to contribute to the disrepute in which the police too often are held and that nothing has done more to waste public time and money than adherence to the right to silence. It was recommended for abolition when the Criminal Law Revision Committee reported early in the 1970s. There was, however, massive opposition, and there still is, though I suspect that the opposition has been much reduced of late.
The basis of the opposition to the abolition of the right to silence is that such a step would destroy an important bastion of the liberty of the individual and that it would make the conviction of the innocent more likely. I accept neither of those criticisms. If it is thought to be the only safeguard against malpractice by the police, which was the basic objection given by the Bar Council to the Criminal Law Revision Committee, one can, unfortunately, point to the large number of police officers in the London area who have been convicted, suspended or sacked in the last few years notwithstanding the safeguard against malpractice by the police that is claimed for the right to silence.
If an innocent man or a guilty man takes advantage of his right to silence and says nothing, there is nothing in the right to silence that will stop a police officer inventing an admission. It has always astonished me that anyone should think that the right to silence has been a safeguard against malpractice, certainly so long as there are no tape-recorded interviews.
§ Mr. Christopher Price
Does the hon. and learned Gentleman agree that if the right to silence is to go there must be a substantial quid pro quo on the other side? One of them must be that anyone forgoing the right to silence must have legal advice before saying anything.
§ Mr. Lawrence
Yes, I accept that. There is need for many other safeguards.
The right to silence is now a myth. It hardly exists. What the suspect says to a police officer before he is reminded of the right to silence is admissible. A police officer is not bound to caution a man or to remind him of the right to silence until he has enough evidence to charge him. If, after he is reminded of the caution, he says anything, he can be asked why he did not explain everything. What he says to witnesses other than police officers is admissible against an accused person. If his defence is an alibi, he has to give it. If he says nothing in court, there is nothing to stop the judge from commenting adversely on the fact that he has not given evidence. The right to silence has mostly gone. It is a mythological throw-back in the minds of some members of the Bar that does not justify perpetuation.
I believe that the right to silence is too often a trap for innocent people. A person is deterred from explaining his innocence at the earliest opportunity and later it often becomes more difficult to establish it. Once the process of investigation has begun, the system is very reluctant to stop the wheels turning, whereas a man who gives his innocent explanation at the earliest stage, having been encouraged to do so, may never be charged and dragged through the system. The right to silence may sometimes be a trap for people who have hidden behind it, because modern juries do not believe that a man sheltering behind his technical rights is necessarily an innocent man. So there are cogent reasons for saying goodbye to the right to silence, and it is a serious defect of the Royal Commission's report that it recommends no change.
575 There has been almost unanimous agreement in the House that it is time that tape recordings of interviews with suspects were introduced. The cost objection has been seen to be minimal. It is clear that the costs of barristers', solicitors', ushers' and everyone else's time have been escalating and that the cost of producing the various equipment, thanks to massive technological competition throughout the world, has been falling. However valid the cost argument may have been seven or eight years ago, it is valid no longer.
There never was a valid objection to tape recording on the basis that a man might be deterred from saying anything, which is what we used to be told by the police. That implies that the caution did not stop him. In practice at the Bar most of us wondered why the caution did not stop a man from saying something, and frequently the only logical conclusion was that he had not been cautioned. So both the theory and the practice in the objections to tape recording seem to have suffered a blow in recent times.
In my view, if the tape recording system were introduced, it would do more than anything to restore the high regard of the police in the public eye. They would then be less subject to challenge. Being less subject to challenge, they would be more confident in the witness box. They would be less often accused of dishonesty. They would be less often found dishonest because it would not be so easy to defeat the system of tape recording by dishonesty. A great blow would be struck for the forces of law and order if we had tape-recorded interviews.
My observation on the Royal Commission's approach is that it is hopelessly feeble and in some regard silly. It is silly to think that a useful contribution would be made by requiring a police officer to summarise what was said on tape for use in court later. That does not go to the root of what is objectionable. What is objectionable is to have an accused person coming before the court and saying "I never said that or anything like it, and if only the interview had been tape recorded you would have seen that I did not." I hope that my hon. and learned Friend will tell the House what is happening in Scotland where police interviews are recorded. I have reason to think that so far the results of the tests being made there are quite satisfactory.
I make three final observations. First, Members of Parliament are the guardians of liberty. I am sometimes accused of taking a Right-wing view about law and order. But I am very conscious that all of us here are guardians of the liberty and the protection of the individual against the forces of the State. That being so, we must give urgent attention to such matters as the right of a solicitor to be present at all times. That right appears to exist in the judges' rules, and it is abused right, left and centre. That abuse must stop. Everyone ought to know his rights. They should be clear. They should be available. They should be codified. They should be in statute form. They should be enforced. In my view, many of the problems in our system of criminal trials have arisen because judges have been weak and have not enforced the judges' rules. Everyone would be able to see that a codified system was fair, and I congratulate the Royal Commission on its conclusions in that regard.
Equally the individual is better protected with a Crown prosecution service. All the old arguments have been seen to collapse. We have a prosecution service when it suits us. The office of the Director of Public Prosecutions is such a service in serious cases. If it would strengthen 576 public confidence and the confidence of lawyers to have the police removed from the prosecution process, I for one should support it, and I agree with what the Royal Commission said about it.
Secondly, there has been a great deal of common ground in the debate. That must be a good basis for action. Often it is difficult to reach conclusions from debates because of conflict. We are all agreed now, however, that there is a platform for speedy action.
Finally, if we succeed in convicting more of the guilty through reforms of the criminal procedure system, we shall probably have a larger prison population. Therefore, the conclusion that we shall have to build even more prisons becomes inescapable. It is time to give urgent thought to that aspect of the problem and the other problems that arise from the reform of the criminal procedure system.
§ Mr. Michael Meacher (Oldham, West)
The hon. and learned Member for Burton (Mr. Lawrence) overestimates the degree of consensus about the report. However, I concur that the report should not lie on the shelf and that certain parts of it should be implemented. We may disagree about which parts. I hope that he will forgive me if I do not follow him in his discussion about the use of tape recorders and the right to silence. I wish to make two different points.
Like other hon. Members, I believe that there are some important and much-needed improvements in procedure recommended by the Royal Commission report, which should be welcomed. I wish to give full weight to them, but also wish to be strongly critical of other proposals. I welcome the proposal that the police should record the reasons for stops and arrests. However, the proposed necessity principle criteria that are supposed to justify the widening of the powers of arrest are so wide that they allow the police to justify almost any arrest. I doubt whether they will allay the increase in public resentment.
The commission was right to recommend that electronic surveillance, including telephone tapping, should be regulated by statute and that each and every use should require a magistrate's warrant. That is a long overdue reform. I agree with the commission's criteria that that practice should be restricted to use only in serious crimes, when other methods of investigation have been tried, where it is expected that the evidence gained may be conclusive, and where the person subject to surveillance is represented by the Official Solicitor.
The commission was right to reject the proposal to abolish the right to silence. I do not wish to delve into that matter as it is a lengthy and involved argument. The commission was also right to reject compulsory fingerprinting for whole communities and the proposal to detain an uncharged suspect for 72 hours before bringing him before a magistrate's court. I must tell the hon. Member for Bury St. Edmunds (Mr. Griffiths) that I believe we should reject that proposal not simply because it would not carry the House, but because it is fundamentally undesirable and wrong.
I support the proposal for a statutory local prosecuting service designed to separate the investigatory from the prosecution function of the police. However, that is spoiled by the suggestion that it should be supervised by a combined police and prosecuting authority. That might 577 undermine its independence. I welcome the proposal for a duty solicitors scheme to give reality to the right to legal representation.
Having said all that quite sincerely, I must say that the net effect of the report is to swing the balance further in favour of the powers of the police. The hon. Member for Bury St. Edmunds, who represents the Police Federation, is wrong to describe it purely in terms of a rationalisation of the powers of the police. The commission recommends moves towards increased police powers and away from the civil rights of the individual, to a degree which cannot be justified and for which an adequate case is not made.
That applies most notably to the proposals to widen the power of arrest. It is proposed that someone who is reasonably suspected of having committed an offence that could be punished by a term of imprisonment—of any length and not limited to five years or more as at present—will be liable to arrest without a warrant and to detention for up to 24 hours.
Traditionally, the deprivation of liberty, for even a temporary period, has been rightly seen as a serious matter. The Royal Commission suggests that arrest without a warrant could be justified even for offences for which the penalty may be only a fine. That view should be rejected.
More worryingly, it is proposed that when a grave offence is suspected the police should be able to obtain an indefinite number of 24-hour extensions, subject only to their being able to persuade a magistrate in private hearing. That will lead to long and gruelling interrogation sessions as a matter of routine, which would be disturbing in the light of the precedents of persons confessing after long hours of detention to crimes that they did not commit.
I agree with my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) that far-reaching additional police powers, such as intimate search, taking body samples, denying access to a solicitor, temporary detention in the vicinity of a crime and surreptitious surveillance should not be prescribed without an identification of the exact circumstances in which they may apply. The commission proposes only an illustrative list of offences. If that is adopted it will lead to a serious deterioration in the relationship between the police and the public, especially if increased powers of detention for questioning are implemented against those in respect of whom there is not sufficient evidence to justify arrest.
The central defect of the report concerns the exclusionary rule and the utter inadequacy of the methods proposed to enforce suspects' rights. There were a number of well-publicised cases of police abuse of interrogation procedures in the early 1970s and a number of what were rearded as unsafe convictions based on insufficient evidence. They led to the blocking of the implementation of the Criminal Law Revision Committee's 1972 recommendations for a number of major relaxations in the admissibility of evidence.
My hon. Friend the Member for Lewisham, West (Mr. Price) was involved in the events that led to the quashing of the Confait convictions in 1975. They led to the Fisher inquiry in 1977 and to the setting up of the Royal Commission, yet, after all that, we have been presented with a report that would not prevent a repetition of the Confait abuses. That is its central weakness.
578 The commission relies primarily on police disciplinary systems to enforce the recommended new code of interrogation practice. It believes, correctly I am sure, that civil actions will be used only rarely. The judges' rules and the administrative directions already lay down certain regulations on the questioning of suspects, and these rules are already part of the general orders of the Metropolitan Police. A breach of them is an offence under the disciplinary code but that did not prevent the Fisher inquiry from finding that the rules were frequently broken and that the crucial right to contact a solicitor was often not observed by the Metropolitan Police.
The commission's proposals concerning the admissibility of evidence are equally disturbing. The commission's new standards will be lower than those which exist under the Northern Ireland (Emergency Provisions) Act 1978. Section 8 provides that evidence will be admitted unless the defence proves that it was obtained by torture or by other degrading or inhuman treatment. This has led to widespread doubts about the validity of a number of convictions that may have been obtained in Northern Ireland by these methods. The European Commission of Human Rights and other similar bodies has pressed for a return to the old common law rules.
At least in Northern Ireland the judges have retained, and asserted, the residual powers to exclude evidence that is not contrary to section 8 but that might, nevertheless, be unreliable or unacceptable. Yet the commission proposes that this judicial power to exclude improperly obtained evidence, instead of being strengthened should be abolished. That is despite the Fisher report on the Confait case, which recommended the automatic exclusion of any statement obtained where a suspect's rights were wrongly denied, or of any uncorroborated statement of a young or mentally handicapped person unaccompanied by an adult.
I am aware that the exclusionary rule applies in only a minority of cases, but that is irrelevant. The prospect of losing what they might regard as vital evidence is a strong inducement to the police to stick to the code. Evidence obtained in breach of that code may well be unreliable and should not be used as a basis for conviction. However, the discretionary waiving of the exclusionary rule in major public interest cases on the Australian model is something that needs further consideration.
I am not satisfied by the view of the Royal Commission that it is sufficient for a police officer to summarise orally the main points of an interview at the end, and for the suspect to comment. This is not the same as tape recording the whole interview and, as many hon. Members have said, the case against tape recording is unconvincing.
If we are to extend police powers it is vital to have a more effective complaints system. If the existing police powers are already allegedly abused, we must be careful if we extend those powers. It is not enough, as the Royal Commission proposes, for the most serious cases to be investigated by special police officers. The Home Office working party has already rejected that proposal.
I am aware that the Home Secretary has shown that he accepts the mounting public demands for an independent element to be introduced. We shall have to wait and see how rigorous the Home Secretary's proposals to protect these essential principles prove to be. They must incorporate the broad principle of an independent police ombudsman, preferably on a regional basis.
Although the report contains a number of important and very welcome points, in my judgment the Royal 579 Commission has not made out the fundamental case that is required of it if its proposals are to be fully accepted, namely, that greater police powers to arrest and detain will increase the accuracy and efficiency of detection and prosecution.
I therefore believe that the basic case for changing significantly the balance between the rights of the individual on the one hand and the powers of the police on the other has not been made out.
My first conclusion is that the powers of arrest should not be widened. The case made in the report does not justify it. Secondly, evidence that has been wrongly obtained should continue to be excluded from use in prosecution. Thirdly, the code of practice concerning the rights of persons interrogated should be externally enforceable, in particular by means of tape recording. The objections on ground of cost, amounting to £6½ million—which everyone here agrees is in no way a prohibitive charge—and on the ground of acoustics, are objections that could be overcome.
Only if those principles are accepted and endorsed by the House will fears be quietened that practices that are often employed in the investigation of offences—and which can result in a serious denial of the rights and liberties that a free society should never withhold from its citizens—are not being used. Surely that must be the overriding principle in assessing the report.
§ Mr. Douglas Hogg (Grantham)
As the Front Bench spokesmen wish to start their speeches shortly, I propose to make my remarks in fairly summary form. I hope that the few remaining hon. Members present will forgive me. I see that the hon. Member for Islington, South and Finsbury (Mr. Cunningham) is ready to forgive me. Therefore, I shall be brief.
I must first voice a complaint, on behalf of Back Benchers, that it is a trifle eccentric that the Opposition should have deployed, effectively, three Front Bench spokesmen. I am delighted that the hon. Member for Islington, South and Finsbury is to reply to the debate, and I was delighted to see the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). I was, however, less pleased to see the right hon. and learned Member for Aberavon (Mr. Morris) who spoke for 30 minutes and was, in effect, the third Opposition Front Bench spokesman. That would appear to me to diminish the rights of Back Benchers. That practice should not be encouraged. It is all the more lamentable when one notes that the right hon. and learned Member for Aberavon has gone away and not returned.
I am sorry that the hon. Member for York (Mr. Lyon) is not present. I heard him voice the somewhat bizarre proposition that, if he were able to subject the police service to what he was pleased to call greater political accountability, he would be prepared to give it greater rights. I regard that as rubbish, for two reasons. First, I do not know what the hon. Gentleman means by "greater political accountability". It appears that I owe the right hon. and learned Member for Aberavon an apology because he has just returned to the Chamber. Secondly, even if one were able to make the police more politically accountable, that would not enhance civil rights. The way to protect the civil rights of the individual is to enshrine them in law and cause the courts to supervise them. Political accountability does not touch on that issue.
580 The hon. Member for Ormskirk (Mr. Kilroy-Silk) mentioned the right to stop and search. I have an advantage in this matter in that, having been a special constable, I have exercised that right. I do not say that I enjoyed exercising it, but I did exercise that right. I am certain that the police must have a right to stop and search. It is right that that general power should be enshrined in one statute rather than in a myriad of statutes. My objection to the power is not the existence of the right, but the way in which it is exercised. If police officers exercise that power with courtesy, as I always tried to do, much of the anxiety voiced by the hon. Gentleman should be dissipated.
Because of the lateness of the hour, I shall deal with the Royal Commission's report in summary form, and I know that hon. Members will forgive me. First, there is the matter of taping, and in particular video taping. One of the great paradoxes in the criminal law is that a free and voluntary confession is almost the best evidence that one can get. Unfortunately, when that evidence is incorporated in verbal statements, it is seldom accepted by juries in London and, I suspect, in other great metropolitan cities. We must find a system which will validate the recording of those oral admissions.
I believe that the Royal Commission is too cautious. I hope that we shall adopt, and that the police authorities will implement, the modest reforms in paragraphs 4.27—that police officers make a summary which is recorded. However, I hope that we shall press forward urgently with a programme of fully recorded major interviews.
I agree with what the hon. Member for Lewisham, West (Mr. Price) said about cost. I suspect that tape recording is not as expensive as the Royal Commission suggests. My suggestion is that a defendant should have an automatic right to a sealed cassette recording—precisely the same as that which is available to the prosecution. In the majority of cases I am sure that it will not be necessary to transcribe the contents of the tapes. The defence solicitor is likely to listen to the tape and, unless it contains very bizarre things, be content merely to listen to it and advise his client accordingly. It is an important step forward, and I hope that we do not allow it to disappear.
Then there is the right of silence. I agree with the report that no change should be made in the law governing the right of silence between the time of arrest and the time of charge. During that time people are in a confused state of mind, even if they are innocent. I should not wish to impose on them an obligation to speak. Nor would I wish to draw an adverse inference from a refusal to speak. Therefore, I would preserve that part of the law.
However, we could make some useful changes in connection with the right of silence after charge. I should like the House at some stage to consider the suggestion that a defendant should be obliged, after charge and, indeed, after committal, to state in broad terms the nature of his defence by way of a written statement. There is a precedent for that in alibi notices. In my view, it is right for a defendant to say "My defence is that I was not there. I did not know that it was stolen. I struck the blow in self-defence. It was not me; it was the hon. Member for Oldham, West (Mr. Meacher)." In broad terms, that is what he should do. That would have two advantages. First, it would prevent a late development in the defence. 581 Secondly, it would identify the issues before the court. People could then concentrate on the issues and not waste time on the trivia.
I must be careful in what I say about unsworn statements because, as the House knows, a case has incorporated this practice fairly recently. In my view, it is a highly undesirable practice. It is an anachronism and we should do away with it. A Criminal Justice Bill is to come before the House. I hope that my hon. and learned Friend will consider incorporating in that Bill a provision that the unsworn statement from the dock is done away with.
I welcome the development of independent Crown prosecutors. It has one characteristic of enormous importance. When one decides not to prosecute, one is exercising a discretion; and it is important that that discretion should be exercised in as uniform a manner as possible throughout the country. An independent Crown prosecutor is one way of achieving that.
However, there is one proviso. I hope that there will not be an extension of the standing prosecuting counsel. The right hon. and learned Member for Aberavon nods. I am concerned about the practice of Treasury counsel at the Old Bailey. It is undesirable to have standing prosecuting counsel. There are two reasons for that. First, they become prosecution lawyers and acquire the mentality of the prosecution lawyer. I think that that blinds their judgment. Secondly, judges are selected from among them. The danger is that one gets prosecution-minded judges selected from prosecution-minded banisters. So, please, let us have no more standing counsel. Incidentally, as I am feeling vitriolic, what about getting rid of the Treasury counsel system at the Bailey?
I make two final points. The first concerns access to legal advice. What I am about to say will not command universal acceptance. I disagree with the Royal Commission's report on this matter. I would not extend the right to see lawyers before an interview. I am conscious of the proposals in paragraph 4.91—that, in the great generality of cases, defendants should see their lawyers before interview. I am against that. I would not enlarge the present practice. I think that most lawyers would advise their clients to say nothing at all, and the public interest would not thereby be served. But my point of view must be taken in the context of the other comments that I have made concerning recording and video tapes, because I believe that they remove some of the perils that exist from defendants not having access to their lawyers.
I also make a short point about the voluntariness of statements, referred to in paragraph 4.70. We have an anachronism here. The Royal Commission has rightly highlighted the artificiality of excluding statements and admissions because defendants had a certain formula of words put to them. In my view, the court is concerned essentially with the credibility of any particular statement. That depends not on the formula of words used, but on the effect that the actual words, whatever they may be, might have had upon the defendant. In the end, that is a jury question. I would therefore leave that essential question to the jury, and remove from the judge, save in exceptional cases, the right to exclude.
I apologise to you, Mr. Deputy Speaker, and to the House for having gabbled my speech. That was because I wanted to allow the Front Bench spokesmen full time.
582 I also apologise for one part of my observations about the right hon. and learned Member for Aberavon. I criticised the fact that he was the third Front Bench speaker. That is a matter for him and his party. I think that it was fair criticism. But he has now returned to the Chamber, and I would not wish anyone to suppose otherwise.
§ Mr. George Cunningham (Islington, South and Finsbury)
I am very grateful to the hon. Member for Grantham (Mr. Hogg) for concluding his speech as quickly as he did and leaving time for the winding-up speeches.
The purpose of this debate was to allow as many hon. Members as possible to express their views. Therefore, it is right that the winding-up speeches should be relatively brief—all the more so because, as I think that the Minister agrees, it is an impossible sort of debate on which to wind up. There is certainly no time for me to deal with all of the very important aspects of the subject matter of the Royal Commission. I intend to limit my comments to a few general issues and one or two of the specific issues in the report.
There had been great concern for a long time about the subject matter of the report before the Royal Commission was set up in 1977. There had been dissatisfaction with the operation of the judges' rules, and about the fact that people were held, sometimes incarcerated under lock and key, when they were supposed to be helping with inquiries; dissatisfaction with the unenforceability of the judges' rules; and dissatisfaction with the fact that England, unlike almost every other country, did not have an independent public prosecutor system. Those were only three of the main subjects of dissatisfaction, so the setting up of the Royal Commission was welcomed, subject only to the concern that people felt that it would have the effect, as mentioned earlier, of restraining and deterring minor improvements, on which people might have been all agreed, while the Royal Commission was coming up with its report.
We are indebted to the Royal Commission for the fact that it has come out with the report relatively quickly, by Royal Commission standards. It would be curmudgeonly if I were to say—although I am afraid that I have something of this in my mind—that it might, in some respects, have come out with the report too quickly. There are one or two aspects on which it could have taken a bit more time and helped us a great deal more.
My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) and my hon. Friend the Member for York (Mr. Lyon) have asked me to apologise to the House for the fact that they were unable to remain until the end of the debate.
As regards the proposal that there should be an independent public prosecutor, it is clear from the debate that there is virtually unanimous support for the basic idea. In the past, the police, at all levels, have been suspicious of, and often downright opposed to, the idea. However, we have seen—especially in recent weeks—representatives of the police adopting a more forthcoming attitude than in the past to a number of reforms that many of us think important.
There are certainly enough chief officers of police now who believe that the introduction of a public prosecutor system in England and Wales—thus bringing us into line with the rest of the world—would not mean that we believe 583 that the police are not to be trusted on such work. We believe that they are to be trusted, subject to some qualifications, on police work. In the rest of the world, prosecution is not normally police work. I hope that the Minister will be able to tell us that he will take on board the almost unanimous expression of view in the House that that reform should take place. That unanimous approval refers to the basic idea of taking responsibility for prosecution away from the police. There is not unanimous approval—indeed there has been almost unanimous condemnation—of the idea of that public prosecutor being under a local prosecution authority. Most hon. Members wanted the public prosecutor to be under the aegis of the Director of Public Prosecutions and, therefore, ultimately of the Attorney-General. We support that idea.
The notion that the introduction of a public prosecutor service involves enormous cost must not be accepted too glibly. On the face of it, why should it? The same work has to be done, the same investigation has to be carried out and the same prosecuting work has to be done. It would be done by different individuals, but why should that result in great expense? I hope that the Home Office will not allow other bits of Whitehall—particularly just around the corner from it—to persuade it that there is a mighty cost that should deter us from going ahead with the notion now.
The Minister will know that the Police Federation organised a seminar at Oxford—indeed he knows, because he was present—on the Royal Commission. On the second day of the seminar one of the Scottish procurators, I think the fiscal from Glasgow, firmly pointed out that the idea that the service in Scotland is vastly more expensive than the arrangement that we have in England and Wales, is rubbish. If that continues to be an effective point within Home Office walls, it is high time that it consulted Scotland first and, secondly, the Attorney-General. He will probably have information to suggest that that is not correct.
Part I of the Royal Commission report is less easy to grasp, because it is a mass of interrelated but separate individual points the power of arrest, the power to search persons, premises and vehicles, the power to stop and search, rules on the treatment of people in police stations, the recording of statements, the admissibility of evidence made in breach of statements, telephone tapping authority and so on. Each of those could attract a debate on its own. We shall have to consider how we take the whole package further after this debate is over.
In some ways, the Royal Commission report is very odd. It could be said that it raises more questions than it answers. It could also be said that the most critical thing that has been written about the report was written by the Home Office. The Home Office's consultation document issued in the summer, packed as it is with questions, implies—I think rightly—that the Royal Commission has landed us with more questions than we had in our minds before. It is in that respect that I wonder whether—I ask why—the Royal Commission did not feel obliged at least to redraft the judges' rules. Whatever form they are to take, whether they are to appear as a statute, a statutory instrument or a continuing informal document, whatever form the instrument takes, somebody will have to draft the rules. I must say that in 1977 I assumed that one of the tasks that we had given to the Royal Commission was that of drafting the new judges' rules or the replacement of the judges' rules.
584 The second general point on the report is about the concept of balance. I do not find the first chapter of the report which deals with this slightly metaphysical, in its eyes, concept of balance helpful in reaching a decision about the individual proposals. For example, when I come to the question of the control of telephone tapping, who is to authorise it and so on, I do not find this first chapter, which says that there must be a balance, actually helping me in reaching a decision as to where that balance should lie with regard to that particular activity. That point was made by my right hon. Friend the Member for Sparkbrook (Mr. Hattersley) at the beginning of the debate.
So we have to address ourselves to the individual recommendations in the report, recognising that whatever the Royal Commission says in that first chapter there is not there a principle which points the way clearly to the conclusion that we have to reach on the individual matters that we come to.
Reverting to the judges' rules and their substance, the fact is that at the moment the judges' rules are a dog's breakfast. They are ironically the only bit of quasi-law which has actually been written by the judges, of course. The judges constantly criticise Parliament for producing badly drafted laws. Yet the only bit that they have actually been allowed to do themselves is worse than any statute that I have ever seen. Indeed, it was discovered in 1977 that the judges' rules were actually contradictory as between one paragraph and another, and that was corrected by the Home Office and the Lord Chief Justice getting together and issuing a correction. It was at that point that I discovered that what I had thought to be the judges' rules with the apostrophe after the "s" had apparently become the judge's rules with the apostrophe before the "s". That is no way in which quasi-law should be issued.
We need a code which lays down how people are to be treated in police stations and we also need a law as to whether breaches of those conditions should result in the inadmissibility of the evidence. It is not the case at the moment that we do not allow the law to cover any aspect of how a person is treated in a police station. If a policeman assaults a prisoner, that is a breach of the law. So the old, superficial argument—"This is not an area where statute should intervene"—never was accepted in any real sense at all, and it is high time now that we brought statute fully into that. And we need to ensure that that code is enforceable both by disciplinary and criminal sanctions and by the rules on admissibility. Our view, as my right hon. Friend has said, is that there should be a presumption that evidence obtained by breach of the rules should not be admissible unless there are special circumstances of public interest which persuade the court that it should overrule that principle in the individual case.
The hon. Member for Grantham (Mr. Hogg) has rebuked my hon. Friend the Member for York for making a point which I propose to make in slightly different form. I think that the hon. Gentleman is being unfair to my hon. Friend. I would put the point like this, that there is a trade-off between the extent to which we have effective supervision of the activities of the police and the extent to which we require to lay down detailed law and regulation as to their powers.
I am not thinking in terms of control of the police by local police authorities, the Home Office and so on—the higher-level issues of control of the police. I am thinking much more of control of the chap who does the questioning 585 at a lower level. I am thinking particularly of the activities of the inspectors of constabulary who ought to be in practice what they are in theory—the Home Secretary's eyes and ears in the police stations. It is pushing it a bit far to formulate it in that way, but they are his representatives to watch over the police.
If we had a more effective inspector of constabulary service so that policemen knew that there was that service of the Home Secretary, watching over their shoulders a good deal, I do not think that we would need to lay down in so much detail in advance of particular circumstances exactly how we wanted the police to behave. In other words, we could have powers that would be more widely defined because the actual use of those powers would be more effectively supervised by people other than the police themselves.
That may well require that the inspectors of constabulary become in their personnel and habits less a sort of branch of the police force than they are at the moment. It would certainly require that the inspectors of constabulary acquired powers in relation to the Metropolitan Police similar to those that they have in relation to the police outside London.
I am sorry that the Royal Commission said so little about police training. That was not really part of its remit, but it is so relevant to the extent to which we can trust the police that I think that it should at least have made that point stronger so that more effort can be put into police training and so that it can be more sensitive and more prolonged, to avoid some of the abuses that take place at the moment.
As regards telephone tapping, it has been suggested by one or two hon. Members in the debate, for example my hon. Friend the Member for Oldham, West (Mr. Meacher), that the Royal Commission proposal to bring authorisation of telephone tapping under the control of the magistrates courts would be an acceptable arrangement. I must say that I think that the effect of that would be to multiply enormously the number of telephone taps throughout the country. At the moment there is only one person legally authorised to authorise those taps—that is the Home Secretary. So he knows at least how many he has authorised.
If that power were given to magistrates all over the country, magistrates in some places would say: "Well, we have not authorised any telephone tapping since last January. Is it not about time that we authorised some more?" They would at least not be opposed to authorising some more because they felt that they had a large number of previous occasions on which they had done so. By all means we must bring the telephone tapping operation under statutory control with some sort of right of appeal in it, but not, I plead with the House, under the control of magistrates courts.
Detention for questioning is, of course, an area in which the English, as so often, can learn something from Scotland. They could have learned more from Scotland before Scotland changed its law quite recently. I am always amazed at how unfamiliar English lawyers are with Scottish law. I, being not familar with either, am perhaps in a better position.
The Criminal Justice (Scotland) Act 1980 which gave the police far greater powers in Scotland than previously allows detention for questioning for a maximum of six 586 hours. In Scotland until then the practice was that when someone was arrested, he had to be charged immediately at the police station. He was not questioned before that took place. There is now a period in which the police can question before they need to charge. Six hours—that is all. Not 24 hours.
I am not aware that there is rampaging crime in Scotland to a greater extent than England or that crime is unpunished in Scotland to a greater extent than in England. If that works in Scotland and if that is a more severe arrangement than previously in Scotland, why on earth should it not happen south of the border? At the very least we should make no extension of the powers for detention without charge and coming before the magistrates' court in England until we have seen whether any terrible consequences arise north of the border from the more restrictive practice there.
Finally—I apologise for romping through what I have to say, but we wish to hear from the Minister—what I want to hear from the Minister is where we are going from here. [Interruption.] I see that the Minister is asking the same question. He is the last speaker in the debate, so we wish to have his answer.
First, it is clear from the debate that there is virtually unanimous approval of the notion of a public prosecutor system for England and Wales. Secondly, although I have not touched on this point, there has been, I believe, unanimous support in the debate across the House for the notion of recording interviews, although there may be disagreement as to whether it should be sound and video or only one of them. On that as on the first issue, the notion that they are not possible because of cost has been kicked out of the door. There is no defence there.
Thirdly, there has been deep concern, although not across the House, that the balance that the Royal Commission set itself as its objective has not been achieved to an extent that finds favour on the Opposition Benches. If legislation were to be introduced which endeavoured to set the balance at the point of the fulcrum that the Royal Commission has found, it would be extremely controversial. However, that leaves agreement on the first two matters, and it is particularly on those two that we wish the Minister to tell us exactly where we are going to go.
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
We have been debating a most important report, distinguished alike by the quality of its analyses and the skill with which its recommendations have been formulated, presented and, indeed, published.
My hon. and learned Friend the Member for Burton (Mr. Lawrence) lamented the fact that so few hon. Members were present. He said that that was a measure of the unpopularity of lawyers; when they make speeches, others stay away in droves. I prefer to say that it is only lawyers who come to the House when matters of real importance, pith and moment are debated.
A great many people have paid tribute to Sir Cyril Phillips and his colleagues on the Commission. I, too, pay tribute to them. It is not surprising to anyone familiar with the English way of arranging our affairs that this is the first comprehensive review of criminal procedure for over 100 years. I would not hazard a guess as to when we shall have another. Therefore, we were right, contrary to what the right hon and learned Member for Aberavon (Mr. Morris) 587 said, to take a substantial time to inform ourselves by consultation of the views of a wide variety of individuals and organisations on the many questions raised by the Royal Commission.
I take the point made by the hon. Member for Islington, South and Finsbury (Mr. Cunningham) that the report raises a great many questions. One can get something like this right if one makes up one's mind in a hurry, but one is less likely to do so than if one takes a sensible and measured time for consultation. The hon. Gentleman referred to the judges' rules. It is common ground that they are in urgent need of revision, but I do not recall that when they were last revised the process was distinguished by a great deal of public consultation.
Many hon. Members insist that there is much that is controversial in the report. Therefore, before we come to concluded views it is right to take the opinion of the House. I have been asked where we are going from here. We wish to consider carefully what has been said today. It is interesting that on a matter on which we have already expressed a concluded sentiment—the maintenance of the right to silence, as it is understood—there has been disagreement from two of my hon. and learned Friends and from the hon. Member for York (Mr. Lyon). If that fundamental matter is capable of giving rise to controversy, it must be right for the Government to take a serious look at all the recommendations before coming to a conclusion
§ Mr. Mayhew
I am sorry, but I cannot give way to the hon. Gentleman. I have a great deal of ground to cover in a short time. I have done my best to allow other hon. Members to speak.
I was disappointed that the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) began his speech by complaining about the formulation of the concept of balance which formed the subject of the first chapter of the report. I believe that what the Commission is saying is that a balance must be established—a structure of rights and responsibilities that is fair to the community and to the police whom the community employs to do its dirty work. It must also be fair to the individual who comes within the purview of the police and who comes under the temporary authority of the police inside the police station. That is all that is being said.
The right hon. Member for Sparkbrook is right to ask where the fulcrum should be put. No one disagrees with that. The Commission says that it has placed the fulcrum at a point which achieves fairness on both sides. My hon. Friend the Member for Paddington (Mr. Wheeler) made that point when he spoke about the necessity for balance.
The right hon. Member for Sparkbrook referred to the considerations of cost. I absolutely accept that when considering any of these proposals—we must not forget that the Commission presented them as a package—we must look not at individual or isolated costs but at the net cost, taking into account any net savings which can be expected in, say, the case of tape recordings. If it be the case that there will be net savings in terms of court costs and the time taken on arguing out trials within trials it is fair to take such savings into account when considering the immediate cost of installing tape recording equipment.
I accept the view expressed by many hon. Members that it is important that the confidence placed in the police by 588 the public should not be diminished by anything put forward in the report or any changes proposed as a result of the report. The hon. Members for Ormskirk (Mr. Kilroy-Silk) and for Lewisham, West (Mr. Price) both made that point and I agree. I say this, however, to those who have dwelt upon this aspect of the matter in a tone rather critical of what has been proposed, certainly in terms of the powers of the police. The fundamental support for public confidence in the police arises from the ability of the police to catch criminals and bring them to justice. If, for one reason or another, that is diminished or lacking the public will say that the police are not succeeding. The argument was advanced earlier that one of the problems is that the police are not being seen to deal with mugging and vandalism. We must therefore ensure that the structure of rights and responsibilities which we establish provides the central foundation for confidence in the police. I believe that that consideration was very much in the mind of the commission.
There has been criticism of the proposals for detention after arrest. The hon. Member for Ormskirk said that no evidence was laid before the commission that police investigations were being impeded. He referred to research study No. 7. I do not believe, with respect, that he gave a correct summary of the research study. The research study showed that a considerable majority of offences are self-detecting, in that the investigating officer first identifies the suspect by, for example, seeing the offence or being told who the suspect is by the victim or witnesses, but in relatively few cases is the officer led to the suspect by forensic evidence—tip-offs and so forth. But the study does not deal with the investigative work that takes place after the suspect has been first identified or arrested. There is evidence that, especially with certain types of offence—for example, company fraud—the police are hampered by difficulties in obtaining evidence on which to prosecute. The hon. Gentleman said that if there were evidence, contrary to what he believed to be the case, he would look at the Royal Commission's proposals in a different light. For the reasons that I have given, I suggest that he should do so.
The right hon. Member for Sparkbrook dismissed a great part of the proposals in part I because, as I understand it, he believes that it is never right to detain anybody before he has been charged. The common law, the existing law, has for a long time permitted such detention. Indeed, it would be completely impracticable if it were otherwise, as the right hon. and learned Member for Aberavon pointed out. Unless the police are able to detain people for a reasonable time, which in practice is limited to about 48 hours as we apply the law at present, I believe that impossible handicaps would be imposed upon the police given the system of jurisprudence in this country.
§ Mr. Mayhew
Indeed, as the hon. Gentleman reminds us, Scotland has had to come back from a position in which it was not possible, after the arrest, to ask any questions at all. It is significant that in that instance the concept of temporary detention had to be invented. It does not make a great deal of difference whether a person is detained under a system known as temporary detention or one of detention proper.
On the subject of voluntariness I believe that it was right for the Government, even though we had not had the 589 views of the House, at least to give the House a general indication of our attitude towards certain broad areas covered by the report. The right hon. and learned Member for Aberavon wondered what on earth we thought we were doing. That is a most unfair criticism. Having consulted a very elaborate red book in the summer, we stated that we stood firmly by the principle of voluntariness. I believe that that is absolutely right, for the reason given my hon. Friend the Member for Grantham (Mr. Hogg). What we are actually seeking to do and what the law has always sought to do is to ensure that such evidence as is given about what a person has said appearing to confess his guilt should be evidence that can safely be relied upon by the court. Therefore, the concept of voluntariness has always been applied, and it is absolutely right that we should hold to that concept, as my right hon. Friend the Home Secretary made clear in opening the debate.
Therefore, notwithstanding the rather artificial state in which case law now is, I believe that there would be great difficulties in moving so far away from that concept in the direction suggested by the Royal Commission. It is interesting to note what was said about that in the debate. Many hon. Members have taken the view that it is not sufficient to rely upon police disciplinary structure and rules to enforce the rules which would replace the judges' rules. The hon. Member for Lewisham, West and my hon. Friend the Member for Grantham both spoke about that, and I believe that there is substantial force in that argument.
I believe that it is necessary to retain an exclusionary rule. Voluntariness should be held to as the guiding principle. There is much to be said, however, although we have no concluded view on this, for a principle whereby, if the rules have been broken, the norm shall be exclusion but the discretion should remain for the judge, for stated reasons, to explain why in an exceptional case the evidence shall, none the less, be admitted. That is one of the difficult matters that we shall have to consider.
My right hon Friend also stated that we held to the principle of the right to silence. Unfortunately, I missed the speech of my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies), but I have been given a full note of it. I can see why it may be said that this is now a matter of antiquarian interest. I do not believe that it is.
I believe that if one holds to the basic principle of English criminal law that the burden rests upon the prosecution and that it is not part of the obligation of an accused person to establish his innocence, the right to silence, as it is understood today, which means that one may not be criticised in the course of a trial for not having made any response or said anything during the investigative part of the proceedings, is a concrete and an important expression of that principle. I would be very sorry if we were seriously urged to depart from it, although I take the point that there may be grounds for making a distinction between the investigative part of the proceedings and the judicial examination.
Judicial examination means the trial. The judge is able to comment on the fact that someone has not given evidence. It is a very different matter to say that only the guilty take advantage of the rule that says they do not need to answer the questions put to them by a police officer. As my hon. Friend the Member for Grantham remarked, we 590 should never forget the unknown and uncertain atmosphere that confronts someone taken to a police station or the great disparity of advantage—the difference between advantage and disadvantage—between the two parties, that is to say, the police, who are properly investigating an offence, and the suspected person who is there. I believe it is common ground that the judges' rules should be given some statutory authority, probably in the form of a code of practice with statutory validity.
I wish, however, to turn to the issue of tape recording. My right hon. Friend was positive about the Government's approach, the first time to my knowledge that any Government have stated that they accept the principle of tape recording. Now it remains to be seen how best we can advance towards its application. Today, many police officers are in favour where previously they were against. I am certain that this is right in principle and that it should be implemented as soon as practical means can be found.
I have been asked by my hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) about the Scottish experiment. I have the answers. Broadly speaking, they cut both ways. There is some indication that police officers have not been questioning people in police stations but have been doing so at home or in police cars. On the other hand, there is no general indication that the principle of tape recording is proving impracticable. I shall write to my hon. and learned Friend about the matter. I agree entirely with the points made by my hon. and learned Friend in favour of the experiment. I agree with what he says about a start perhaps being made in fairly static conditions such as major statements in Customs and Excise and Revenue investigations. I agree with my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) who said that he was an agnostic and that the police were far less opposed to the idea than had previously been the case.
I have great sympathy with those who call for the abolition of unsworn statements from the dock. I believe that they are widely abused. Whether it would be possible to take an early opportunity to legislate in that respect is uncertain. I hope, however, that what I say is sufficient indication of my personal attitude.
As to prosecuting authorities, the Government will take seriously to heart the strong expressions of support for the concept, at any rate, of a prosecuting authority and a national, rather than a locally controlled or locally responsible prosecuting authority. We believe, as my right hon. Friend said, that, in the first instance, and, as he said, at the minimum, there should be an extension of the county prosecuting solicitors' departments. It is right, in my view at any rate, that prosecuting solicitors should have responsibility for the fundamental decisions connected with the running of a prosecution. I have great sympathy with the view that, in the case of a prosecuting solicitor, the client is the community and should be the community. That has been taken on board, but I am sure that no hon. Member expects me to say what the outcome will be.
We have had a debate of great intellectual fascination and high quality. Several of the issues that we have discussed are indicators of the relationship that exists between the State and the individual. We must never forget that the individual looks to the State and its law enforcement agents to protect him from the criminal, because very often he cannot protect himself——
§ It being half past Two o'clock, the motion for the Adjournment of the House lapsed, without Question put.