Clause 2 (Hansard, 4 May 1983)

§ Mr. Mayhew
I beg to move amendment No. 22, in page 3, line 23, leave out from 'may' to 'detained' in line 26 and insert 'use reasonable force if necessary to conduct such a search or to detain a person or vehicle for the purpose of such a search. (5A) The time for which a person or vehicle may be detained for the purposes of such a search is such time as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first'. The amendment amends the drafting of the present provisions in the Bill. I gave an undertaking in Committee to look again at the drafting of these provisions. I hope that the House will accept that the present version makes the Bill's intentions clearer.

§ Mr. Snape
I fear that I shall have to detain the House for a minute or two on this. We are in some difficulty, as we were in Standing Committee, because the amendment and the clause refers to the vexed question of stop-and-search proceedings in relation to motor vehicles.
I shall not rehearse the arguments that were dealt with at length in Committee, but the average driver normally feels some resentment at being stopped. The use of reasonable force in these circumstances therefore caused considerable concern in Committee. Again, we are in the realm of the subjective judgments of individual police officers. Reasonable force is difficult to define.

§ Mr. Mikardo
Ask them in Brixton.

§ Mr. Snape
Certainly one can imagine as aggrieved motorist in Brixton—or indeed in Barnet—perhaps in a hurry to get to work or to keep an appointment, resenting being stopped and someone's subjective definition of reasonable force being applied to prevent his completing the journey.
I hope that the Minister will answer one specific question. I may be asking him to dispense advice not strictly relevant to the clause, which may cause him deep pain and anguish as a very professional and successful legal practitioner. If a motorist is stopped on his way to work and subjected to the provisions of the clause, as a result of which he loses his job, misses an appointment or loses a substantial sum of money, will he have a case to sue the officer concerned if it subsequently turned out that he was innocent?
Notwithstanding the amendment, the clause seems to give the police wider powers than ever before. For that reason, I put on record our concern about the likely worsening of police public relations as a result.

§ Mr. Mayhew
The hon. Gentleman is absolutely right to seek clarification, as anything affecting the liberty of the subject is a matter of importance for Parliament.
As the hon. Gentleman knows, for many decades Parliament has from time to time conferred powers on the police to search premises and occasionally, people. The right to use reasonable force for the purpose of executing the search has always been conferred with that power.
359 What constitutes reasonable force depends always on the circumstances, but the kind of test applied is that of the degree of force necessary in the circumstances to permit the officer to carry out that which has been authorised, the circumstances envisaged being those applying at the time. Thus, it is a matter for the common sense of those who may later be called upon to review an action or decision and the common sense of the officer concerned.
As I said in Standing Committee, if the use of reasonable force were not permitted the effect would be to nullify the power granted. It would enable the person who is to be searched, and who might be a suspect, to nullify the whole purpose of the power by putting up some resistance. If that resistance could not be countered by such force as was reasonable in the circumstances, that would be the end of the matter and off would run the suspect. That would clearly be absurd.
A person who has fortuitously suffered loss because of the lawful exercise of a power has never been able to claim compensation. If, on the other hand, the power has been exercised in an unlawful manner and loss has resulted, a remedy is compensation. I trust that that deals with the matter that was raised.

§ Mr. Mikardo
Just because that has never been the legal position, that is no justification for it. We must be prepared to examine matters afresh. The people on whom force is most likely to be used are the innocent. If a chap is driving a car knowing that he has something in his possession that he should not have and a police officer stops him, he will not fight the officer.
The man who is likely to fight is the innocent person, who has never been mixed up in any crime at all and is going about his normal business, who becomes indignant about being stopped without, according to him, any justification. He will say, "Sheer off", or words to that effect. The officer will then get a bit rough and tough about the position. The innocent man may have his vehicle damaged or suffer loss by missing a train, an appointment or a business deal. Why on earth should he not have a reasonble claim to compensation?
The House is legislating a new Bill. If the House were to relate to what had happenend in the past, new Bills would never be introduced. We would rest on those already on the statute book. Why on earth, since we are changing the whole basis and extent to which the police may interfere with a citizen who is going about his lawful business, should the citizen not be entitled to compensation?

§ Mr. Mayhew
I do not think that we need to examine the scenario put forward by the hon. Gentleman, in the light of the requirements of clause 3. The hon. Gentlemam will remember, from the Standing Committee proceedings, that the officer must say who he is, what he is looking for, the object of the search is and why he is making it. H must state the grounds of his suspicion. Furthermore, he must tell the person involved that he is making a record of what takes place and that a copy of the record has to be made available. In those circumstances, the type of resistance that is envisaged is unreasonable.
I am able to answer the hon. Gentleman's question about compensation. At no stage during the Committee 360 proceedings or thereafter has anybody thought it right to put down an amendment to provide that compensation in those circumstances should be paid.
We must look on it as one of the obligations of a law-abiding citizen that, in the interests of law and order and the protection of people, one must take the risk that, from time to time, one may on proper grounds, be stopped and asked to undergo the search provided for by this part of the Bill. It is a light and quick search. In the case of an ordinary individual, it is simply the top coat. As Lord Scarman said in his report on the Brixton disorder, he was convinced that that was necessary to combat street crime. In those circumstances, I do not believe that we are imposing an unfair burden.