HC Deb 14 May 1984 vol 60 cc30-3

'Where any provision of this Act—

  1. (a) confers a power on a police officer; and
  2. (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,

the officer may use reasonable force, if necessary, in the exercise of the power.'— [Mr. Hurd]

Brought up, and read the First time.

Mr. Hurd

I beg to move, That the clause be read a Second time.

Mr. Speaker

With this, we may take amendment (a), leave out from 'use' to end and add 'such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.'. and Government amendments Nos. 15, 30, 42 to 45, 78 and 242.

Mr. Hurd

The new clause and the Government amendments deal with the concept of reasonable force, which is important not only in the Bill but in the law as a whole.

Various clauses give the police power to take action in the absence of a person's consent. For example, clause 54 allows fingerprints to be taken without consent in various circumstances. As a matter of common sense, it will be seen that the powers will not amount to very much if reasonable force cannot be used, if necessary, in their exercise. For example, it would obviously frustrate the fingerprinting power if the police could take no further action when a person put his hands in his pockets and refused to take them out.

There is no compulsory power in the Bill which ought not to be backed up by a provision permitting the use of reasonable force where, but only where, that is necessary in the circumstances of the individual case. The new clause avoids the need to include an identical provision in each clause that confers a compulsory power. If the House agrees to the new clause, provisions in the Bill allowing for the use of force may be removed, and we have tabled amendments to that effect. The new clause will accordingly simplify the drafting of the Bill.

The Opposition amendment would limit the use of force to cases where it is needed for the prevention of crime or the arrest of offenders or persons unlawfully at large. That formula is borrowed from section 3 of the Criminal Law Act 1967, but we do not believe that it is appropriate here. There are various contexts, other than those mentioned in the Opposition amendment, in which we believe that the use of reasonable force may be justified.

I have already mentioned fingerprinting under clause 54. Other examples involve entry to premises to execute a search warrant or the search of an arrested person when he is taken to a police station. In both those cases, the purpose of the search power may be to find evidence of crime, but in both cases there would be no direct relationship between the power and the prevention of crime at the making of an arrest. Indeed, in the case of actions under clauses 29 and 48, an arrest will, by definition, already have taken place. Therefore, the Opposition amendment would not apply and reasonable force could not be used.

For those reasons, we believe that the amendment is drawn too narrowly and would be too restrictive. It would be absurd if the police could not use force to enter premises to execute a search warrant, because the occupier had locked the door and refused to open it, or to search an arrested person whom there were reasonable grounds to believe was concealing evidence relating to an offence.

On Government amendment No. 15, subsection (8) allows the police to use reasonable force, if necessary, to carry out a search under clause 1. That would be subsumed in the new clause and, therefore, is no longer needed.

Clause 8(3) will be subsumed within the general provisions of clause 16, and amendment No. 30 therefore deletes it entirely. Amendment No. 32 is consequential on new clause 7. Amendment No. 43 deals with a slightly different point. The police will on occasions need to be accompanied by other persons when executing a warrant. For example, they may need the help of an expert to sort out exactly which of the records at which they are looking deals with the offence being investigated, or it may be sensible for a witness to accompany them to identify certain missing articles. The point is of general application and not confined to clause 8 alone, and therefore it would be sensible to apply the provision to all such warrants. Hence the deletion of clause 8(3) in favour of a general provision, contained in this amendment.

Amendment No. 43 does not give the police carte blanche to take along whoever they want when executing a warrant. The occupier's privacy must be respected and it will be for the magistrate or judge issuing the warrant to decide whether the presence of a third party is desirable in the circumstances.

Amendments Nos. 44 and 45 are consequential on new clause 7, as is amendment No. 78. Amendment No. 242 is also no longer necessary, because the new clause provides a general power to use reasonable force if necessary in exercising the powers set out in the Bill.

Mr. Bermingham

I rise to speak to amendment (a). The Minister has said that he considers that it is too narrow, because it restricts the use of force principally to those occasions when an arrest is being made, suspected persons who are at large are sought to be arrested or detained, or persons who have escaped lawful custody are sought to be arrested. The Government's new clause and amendments are far wider. Effectively, the Government have sought to overcome the decision in Collins v. Wilcock, which was reported recently in The Times, in which the court held that the police officer had no lawful authority to use force and the justification for it lay only in pursuance of certain definitive powers. One does not deny that there are occasions in the course of arrest or in the search of premises when an extremely limited amount of force can be justified.

However, the Government seek to extend the power so that almost anything that is done by a police officer carries with it the inherent justification of the use of a limited amount of force. This changes the whole basis of the concept of our policing, which has always been that a constable is nothing more than an ordinary citizen who does his job. However, if the new clause becomes part of the Bill, the constable will no longer be in that category, but will be a citizen who is allowed to use certain force in specific cases in pursuit of his occupation. The justification is that when fingerprints are being taken, premises are being entered or people are being sought or spoken to, force may be needed.

In the case of Collins v. Wilcock somebody was stopped in the street and he refused to answer the questions put to him by the police. He started to walk away, so the police officer took hold of him. Under the law at the moment, that person was entitled to walk away and the officer was not entitled to use force. The Government are now seeking to give the police officer the power to use force if a person refuses to answer questions, which is his inherent right.

4.15 pm

The Government's new clauses and amendments increase the use of powers far too widely. The Government accuse us of being too narrow, but their approach is far too broad. At the end of the day, we must have policing by consent. Often, fingerprints may be taken before a person is charged, and there may be no justification for taking the fingerprints. No complaint has yet been made about that procedure. The fact that this occurs without any great problem should not give rise to justification for the Government's attempt to increase the power of police. The use of force should be strictly limited, and that is what is behind our amendment.

The Government may say that our amendment is too narrow. We do not mind if it is broadened a little, but we do not want the floodgates to be opened, as the Government's proposals would do.

Mr. Maclennan

The new clause appears to meet an undertaking that the Government have given to the Police Federation to provide that if a constable is permitted by the provisions of the Bill to do some act without a person's consent reasonable force may be used if necessary in the circumstances. While we are not wholly opposed to what the Government have in mind, the new clause is not satisfactorily drafted and I prefer amendment (a), tabled by the hon. Member for St. Helens, South (Mr. Bermingham) and others. If he felt disposed to force a vote on it, we would support it.

When a police officer is permitted to use reasonable force, it is our view that the permission should be specifically tied to the provision in question. A blanket provision such as that proposed by the Government is too broadly drawn and is offensive, because it appears to give the police more general powers to use violence than is the present case.

Amendment proposed to the proposed new clause,

leave out from 'use' to end and add 'such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.'.—[Mr. Bermingham.]

Question put and negatived.

Question, That the clause be read a Second time, put and agreed to.

Clause added to the Bill.

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