§ '(1) A person arrested in England or Wales for an offence shall not, subject to subsection (4) below, be kept in police detention for more than six hours from the time of his arrest.
§ (2) Subject to subsection (3) below, a person who at the expiry of six hours after his arrest is in police detention and has not been charged shall be released at that time either on bail or without bail.
§ (3) Subsection (2) above does not apply to a person whose detention for more than six hours after his arrest has been authorised or is otherwise permitted in accordance with section 39 of this Act.
§ (4) In accordance with section 39 of this Act a magistrates' court may authorise the detention of a person for two further periods of not more than 12 hours each.
§ (5) A person to whom section 39 and subsection (4) above apply, unless at the expiry of 30 hours after his arrest is in police detention and has not been charged, shall be released at that time either on bail or without bail.'.—[Mr. Kaufman.]
§ Brought up, and read the First time.
150 3.33 pm§ Mr. Gerald Kaufman (Manchester, Gorton)I beg to move, That the clause be read the Second time.
§ Mr. SpeakerWith this it will be convenient to take the following amendments: (a) to the proposed new clause, in subsection (5) leave out '30' and insert '48.'.
No. 95, in clause 37, page 33, line 12, leave out
'subject to the following provisions of this section and to sections 38 and 39 below'.No. 96, in clause 37, page 33, line 14, leave out '24' and insert '6'.No. 108, in clause 37, page 33, line 41, leave out
'subject to subsection (5) below'.No. 109, in clause 37, page 33, line 42, leave out '24' and insert '6'.No. 110, in clause 37, page 34, line 1, leave out subsection (5).
No. 111, in page 34, line 9, leave out clause 38.
No. 114, in page 35, line 35, leave out clause 39.
No. 117, in clause 39, page 36, line 9, leave out '36' and insert '6'.
No. 119, in clause 39, page 36, line 11, leave out lines 11 to 32.
No. 121, in clause 39, page 36, line 40, leave out '36' and insert '6'.
No. 125, in page 38, line 18, leave out clause 40.
§ Mr. KaufmanThe Opposition regard the Bill—[Interruption.]
§ Mr. SpeakerOrder. I ask hon. Members to withdraw as quietly as possible or to remain and listen to the debate on this important new clause.
§ Mr. KaufmanThe Opposition still regard the Bill as unacceptable in most of its major provisions, but we regard the provisions regarding detention without charge as being at the heart of its damaging effects.
First, I should point out that we regard is as a serious discourtesy to the House that the Home Secretary is simply not troubling to take an interest in this legislation. No doubt he will have the impertinence to come to the Chamber tomorrow to move Third Reading, having attended only three hours of the 145 hours of debate in Standing Committee and having merely slipped in for a moment yesterday to try to gain kudos by announcing a concession that was in fact forced upon him by the Opposition. He has not troubled to be present now. We regard it as an affront to the House that the Minister whose name is on the Bill, who is responsible for it and who goes around boasting about it cannot be bothered to talk to the House about it or to listen to what is said about it.
§ Mr. KaufmanI shall give way to the Miniser of State, who once again wishes to curry favour with his right hon and learned Friend by producing some paltry excuse for the absence of the Home Secretary.
§ Mr. HurdI merely seek once again to correct the right hon. Gentleman's inaccuracies. My right hon. and learned Friend the Home Secretary took part in the Report stage yesterday and intends to do so today. Moreover, as the right hon. Gentleman has said, my right hon. and learned Friend will no doubt also be here tomorrow, so I do not think that there is any substance in the charge against my right hon. and learned Friend.
§ Mr. KaufmanThe question is indeed, "Where is he?"
§ Mr. David Ashby (Leicestershire, North-West)Come on, raise the tone!
§ Mr. KaufmanIt is impossible to raise the tone of any debate when Conservative Members are present. Nevertheless, having placed those comments on record, I shall now try to deal with a matter that we regard as at the heart of the Bill—the power to detain without charge.
My hon Friends from Scottish constituencies have been utterly astounded at the provisions of the Bill. Section 2 of the Criminal Justice (Scotland) Act 1980 provides:
Detention under subsection (1) above shall be terminated not more than six hours after it beginsand then goes on to explain what is involved. Unless our proposal is accepted, the Bill will allow detention without charge for 36 hours solely on the judgment of the police and between 36 and 96 hours on the judgment of a magistrate.It is important to keep constantly in mind the fact that we are dealing here with a person who has not been charged, who is innocent of any offence until proven guilty and who, indeed, may not even be charged. The Government are saying that a person who is technically —and probably certainly—innocent of any offence may, on the decision of the police themselves, be detained incommunicado for 36 hours without any relative, friend or legal representative knowing anything about it and without the knowledge of a magistrate. In other words, a person can disappear into police custody for 36 hours in exactly the same way as happens in the totalitarian states that hon. Members condemn.
Why are the Government doing this? They base their Bill on the Royal Commission report, and it is true that the report cites the Scottish precedent, but it does not agree with it, for somewhat recondite reasons. The Royal Commission report rejects the Scottish solution, and it certainly rejects, even more strongly, the Government's solution. Its proposal is in paragraph 3.104, which says:
persons suspected of an offence for which they have been arrested and detained must within 24 hours be released unconditionally, released on bail for further enquiries, charged and released on bail to appear at court, or charged and brought before a court that day, if there is a court available".Paragraph 3.105 says:We see the statutory requirement for reviews on arrival at the police station, at six hours and 24 hours, as providing formally the necessary and progressive measures of internal and external supervision of the police discretion to detain an arrested suspect.Paragraph 3.106 says:where a suspect has not been charged within 24 hours the police should be required to bring him before a magistrates' court sitting private".Therefore, the Royal Commission is quite firm that a 24-hour period is the maximum beyond which a detained person must not be kept without charge and without a magistrate being asked to prolong the detention.The Government's argument is that they are improving on the law as it stands. They can argue that, because the law is imprecise and there are different arguments about what the law, imprecise though it is, means. However, some would argue that the precision that the Government are seeking to import is less satisfactory than the imprecision of the law as it stands. The Government say that, for the first time, they are bringing in precision and everybody will know where they stand, and claim the 152 maximum of 96 hours as some kind of concession. because we now know that nobody can be detained beyond 96 hours without being charged.
However, this is no concession, because only a tiny fraction of people who are now detained beyond 96 hours without charge would be assisted. It is a concession in pretence, but not one in fact. The statistics provided by the Royal Commission report and elsewhere demonstrate that. Paragraph 3.96 of the report says:
about three quarters of suspects are dealt with in six hours or under and about 95 per cent. within 24 hours @ The detailed studies of police interrogation found none who were held for more than 48 hours.The report quotes a Metropolitan police survey for the East quarter of 1976, which is also quoted in a Conservative party document that I have. 'That survey shows that, in that period in the Metropolitan police area, 81,465 people were detained for up to 24 hours, which was 98.4 per cent. of the total. Some 1,309 were detained between 24 and 48 hours, which was 1.6 per cent. Some 20 were detained between 48 and 72 hours and four between 72 and 96 hours. The survey shows that the number of people who were detained for over 96 hours was nil. Another survey shows us that five persons out of 83,000 were held as long as 96 hours.There is a Government pretence that precision provides a concession, but the Government are in fact showing that the concession is meaningless because it will affect a tiny handful of people. According to the statistics, if they are still valid, it would have been necessary for the Metropolitan police to go to a magistrate to detain for longer than the 24-hour period, which the Royal Commission advocated, only 1.6 per cent. of those people whom they felt it appropriate to detain in that quarter.
3.45 pm
Far from assisting those detained — including the innocent, who, almost by definition, will be a considerable majority of the detainees — precision will not assist anyone but will make it possible for considerable numbers of innocent persons who are not charged to be held for up to 36 hours. The Minister of State will, no doubt, say that a person held for longer than 24 hours, is one who is to be detained on the say-so of a superintendent, if need be, and is suspected of having committed a serious arrestable offence. Everyone who has studied the legislation knows that the definition of a "serious arrestable offence" is farcical. It is sufficiently farcical as it stands and will remain fairly farcical even in the rewritten clause which makes a concession to the argument put forward by the Opposition in Standing Committee. The factors defined in clause 105 as a "serious arrestable offence" are as long as a piece of string. If a superintendent wishes to detain a person, "a serious arrestable offence" can be defined in a way to keep almost anyone, for almost any offence, detained without charge.
§ Sir John Biggs-Davison (Epping Forest)The right hon. Gentleman said earlier that he was surprised by what his Scottish colleagues told him obtained in Scotland. In what respects are the Scottish arrangements superior to those proposed in the Bill?
§ Mr. KaufmanIn a civilised democratic country, deprivation of freedom of an individual not charged with an arrestable offence ought to be massively the exception rather than the rule. The Scottish arrangement provides, as in the Criminal Justice (Scotland) Act 1980, which I 153 cited, that a person must be either charged or released after a detention of six hours, and that is why the new clause specifies that period.
Because the hon. Gentleman asked a serious question, I shall do what I can to provide him with a serious reply. I shall read out the objections that the Royal Commission put to the Scottish period of detention. I emphasise, as I said earlier, that I am not persuaded by the Royal Commission's objections, and the Government will certainly not be swayed by them. The Royal Commission stated:
We note the six hour detention period in the recent Criminal Justice (Scotland) Act 1980 but believe that rather different considerations are to be applied in that jurisdiction where arrest must be followed immediately by charge and where the police have very limited powers to release suspects on bail.If the Government say that they disagree with the six-hour period because of the differing arrangements in Scotland, we need to know why they regard the Scottish arrangements as inferior.When I discussed these matters with my hon. Friends who represent Scottish constituencies, especially the lawyers among them, they could not believe their ears when I told them of the arrangements proposed in the Bill, just as many people from democratic countries in Western Europe cannot understand why such arrangements are being proposed. The arrangements proposed in the Bill —for reasons that the Government have never begun to explain, let alone justify—go far beyond those in other democratic countries in the developed world. Therefore, the fact that the extension, on the say-so solely of a superintendent, from 24 to 36 hours depends on the definition of a serious arrestable offence is no justification.
We believe that the definition of a "serious arrestable offence" is too loose to justify such a draconian power. When I say "we" I am talking not simply about the Labour party, the National Council for Civil Liberties or other organisations that are "suspect" because they believe in civil liberties, but about organisations such as the Law Society. In the material that it has published in connection with the Bill, it strongly opposes the Government's proposal. The Law Society says that the time limits for detention in the Bill are excessive, that the magistrates court should have an opportunity to review detention at the 24-hour point, and that 72 hours should be the maximum permissible period of detention. I believe that that goes too far, but at least the Law Society agrees in principle with the Royal Commission, whereas the Government, who say that they based their proposals on that body, completely, in this instance, disregard it.
Why are we so worried? In a Bill that we regard as inherently unacceptable, why do we say that this provision lies at the very core of its unacceptability? The answer is that in a democratic society a person's freedom of movement must be denied him only in the most exceptional circumstances. Moreover, for the police to hold someone incommunicado for up to 36 hours deprives him of his right to silence—a right that lies at the very heart of an accused person's defence of liberty in a democratic society.
Some people may ask whether I am alleging that the police will torture that person while he is being held incommunicado for 36 hours. The answer is that I am not. People may ask whether I am alleging that the police will behave brutally towards that person, attack him and beat 154 him up. I am not alleging that either, although from time to time such allegations are made, and some of them sadly turn out to be justified. The police sometimes behave brutally towards those detained, but that is not the basis of my opposition to this proposal. I am opposed to it simply because if someone is held incommunicado for that length of time and if only the police have access to him, he may well confess to something that he has not done in order to put an end to the circumstances in which he is detained. The very worst sort of clear-up rate for crime is one based on confessions. People can be induced to make confessions in certain circumstances, whatever the safeguards. Moreover, if the police rely increasingly, with these additional powers, on the evidence of confessions, genuine investigation will take a back seat.
It should be at the core of policing and the investigation, prevention and punishment of crime that the police are required to produce evidence to prove beyond a peradventure that the accused has committed the crime. That is what the presumption of innocence rests on. If increasingly we are to have confession evidence, the police will resort to that more and more.
We need only consider a most notorious and lamentable case to realise to what confession evidence can lead. Timothy John Evans confessed to the murders which Christie committed. All the literature published about that case shows that at no time was any brutality inflicted on Evans by the police and that there was nothing which could be defined as coercion. He was a person of limited literacy and intelligence responding to questioning and confessing to crimes which he did not commit. He was executed for those crimes, although it was later discovered that he had not committed them.
§ Mr. KaufmanI was about to say something which the hon. Gentleman might have found gratifying, for I was intending to point out that, in the end, the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) gave Timothy John Evans a free pardon—though rather late in the day to do Evans any good, because he was by then in his grave.
§ Mr. MaclennanI wish to reinforce the point that the right hon. Gentleman is making about the dangers of evidence obtained in such circumstances. There is a much more recent case than that of Timothy John Evans, one that has given rise to considerable anxiety. Barry Foster has been detained in Rampton for over two years on the evidence of his own confession. Although it has become clear that the offence for which he was held was committed by someone else, the Home Office has still not given any explanation of the scandalous delay in dealing with his case. That reinforces appropriately and contemporaneously the point that the right hon. Gentleman is making.
§ Mr. KaufmanI am grateful to the hon. Gentleman for mentioning that case. There are others of which hon. Members will be aware. Therefore, we must provide safeguards. That is why the amendement says that detention shall be limited to six hours and that, after that, a magistrate shall have to authorise further detention in exceptional circumstances.
We build our case on a number of factors. First, the Government are disregarding the precedent set by their 155 legislation in Scotland. Secondly, they are disregarding the recommendations of the Royal Commission on Criminal Procedure, on which the Home Secretary claims the Bill is based. Thirdly, the Government are rejecting the advice and opinions of authoritative bodies such as the Law Society and the National Council for Civil Liberties. Fourthly, there is no justification for saying that it does not matter that only a superintendent has the right to justify the extra 12 hours' detention without charge before a case goes to a magistrate, because that can occur only where a serious arrestable offence has been alleged. The definition of "serious arrestable offence" in the Bill is so loose as to he no protection. Sixthly, we are particularly concerned about this issue because a person detained in such circumstances is denied the right to silence, and the police will therefore be tempted to resort increasingly to confession evidence, the worth of which is questionable, rather than to investigative evidence.
I repeat that, in a democratic society, no state organisation should be allowed to deprive an individual citizen of his freedom without the greatest possible justification, and if that justification cannot be provided, the period of deprivation of freedom ought to be reduced to the minimum consonant with proper inquiries. That is why we have tabled our new clause, on which I principally speak, and that is why I hope that the House will accept it
§ 4 pm
§ Mr. Gerald Bermingham (St. Helens, South)I welcome my right hon. Friend's new clause and ask him to accept the amendment to change the period of time to 48 hours. The amendment is tabled not in the belief that 48 hours is the appropriate time, but in an effort to find a compromise to the Government's almost draconian 96-hour provision.
Those of us who have been involved in the practice of law for a considerable number of years know that the average time that a person spends in a police station in the ordinary run of the mill case, as was shown in the survey referred to earlier by my right hon. Friend, is six hours. Indeed, that number of hours is on the high side and refers to the longer periods which the average man accused of an offence spends in detention after his arrest. There has been a growing tendency over the years for those who conduct the investigations, particularly when they realise that no pressure of time is on them, to extend the period. An investigation tends to come to a halt somewhere in the middle of that period, and nothing happens for many hours.
Every hour spent in a police station is an hour of pressure and sometimes leads to results which no hon. Member would wish to see occur. The matters that lie behind the 96-hour proposal in the Bill give rise to greater fears when one studies the situation with even the slightest amount of dispassionate interest.
We should begin by asking why a period of 96 hours is proposed. I and many of my hon. and right hon. Friends and, indeed, Conservative Members, who spent endless hours in the Committee, came out of it with as little explanation of why 96 hours was necessary as we had at the start of the Committee proceedings. I hope that at this almost 23rd hour—although another place may take a more realistic view in due course—the Minister will give us the opportunity to listen with some care to the reasons that lie behind the need for a period of 96 hours.
156 The survey to which reference has been made showed a total of five cases where anywhere near the 96 hours was required. Why is it necessary to make it the generality? Is it because we are to go further down the road that will take us away from investigation and towards interrogation as a basis for oral evidence in a court? It is within the memory of hon. Members who have practised for much longer than 10 years that in the last 10 years the sweep from investigation to interrogation has been most marked. That does nothing for the police service, and it does even less for justice.
It was interrogation that led to the horrific results in the Timothy Evans case, the Confait case and the Foster case. There is an almost endless list of cases in which, primarily as a result of interrogation, people were initially found guilty, but were proved by subsequent events to be innocent. This happens not only in big cases, but in a series of little cases too.
I recall a case in which a man was accused of a minor burglary in a shop. It was alleged that he had kicked in the window. He was questioned off and on for 15 to 16 hours. At the end of that time, on the inducement of, "You will go home tonight, Johnny, if you sign this," he signed a piece of paper, went home on bail, and had in fact admitted an offence. It was as the result of pressure of time and the fear that he would not go home that the confession was induced.
A number of other such cases have occurred. One of the most startling occurred recently in the Rochdale area, and if hon. Members care to read the Committee debates they will find that case described at some length. A man who had a low IQ, and who was known to be mentally retarded, was arrested for the alleged murder of a woman. Not only was he held in the police station overnight, but he was held incommunicado. By the time that anybody was able to get near him, despite the efforts of the mental health worker, social workers and other persons, he was at the point of confessing to the murder.
§ Mr. AshbyWill the hon. Gentleman confirm that in that case the person did confess? It was held that it was oppressive to have detained him for so long, and that confession was excluded by the trial judge. No other evidence could be put forward in the case, and he was acquitted.
§ Mr. BerminghamI am grateful for the hon. Gentleman's intervention, but he is confusing the Rochdale case with yet another case. The hon. Gentleman is referring to the Reading case, in which the confession was the only evidence, and that led to the exclusion of the evidence. In the Rochdale case the stage of charging was never reached—although I understand that the charge sheet was almost prepared—because somebody in the next town confessed to the murder. Another man was under arrest for some 36 hours into the investigation. In that case also it was time that was the source of pressure.
As I said earlier, the Government have been asked on numerous occasions to explain the need for the 96 hours. We have received one or two half-hearted explanations about the difficulty of forensic evidence. However, hon. Members with long experience of numerous murder cases from the very early stages, such as I have had, have rarely found, even where forensic evidence was awaited, that the charge has not been laid within 24 hours.
I refer the Minister to a question asked of the Prosecuting Solicitors' Society in evidence to the Select 157 Committee on Home Affairs. The question was asked whether, at the time that somebody was arrested, there ought not to be at least prima facie evidence against that person. That is crucial and that is where the problem begins to arise. A number of arrests take place purely on a hunch or guesswork. Thereafter, reliance is placed on interrogation in some way to substantiate the link between the various pieces of evidence that exist and the defendant who is to be interrogated. Indeed, I have heard it said on a number of occasions in my presence, "We believe that this is the man who has done it." After he has been interviewed that may well prove to be the case, but it is no basis upon which to found a judicial system.
§ Mr. Kenneth Hind (Lancashire, West)Many cases brought before the courts rely far too heavily upon the evidence of interview and admission during police interviews, rather than upon evidence which one would describe as primary or first-hand, which should be the substantive basis of any prosecution.
§ Mr. BerminghamI agree entirely with the hon. Gentleman. That trend has become the problem. It has arisen from a sense of expediency on the part of police forces. In the 1970s they were short of resources and manpower, especially skilled manpower. However, the pressure was on them continuously to secure results. The quickest and easiest way to secure results is to obtain a cop or a confession.
In discussing the criminal law, we are not always dealing with the mass murderer or the chap who robs a bank of millions of pounds. About 98 per cent. of criminal offences are trivial cases in the sense that they are non-indictable, or they are indictable matters which are subsequently dealt with by magistrates courts. If the evidence is that of linkage between the crime and the person to be arrested, it would be a good start if the person running the police station found that there was, to a large extent, a prima facie case against the accused.
§ Mr. Jerry Hayes (Harlow)Does the hon. Gentleman agree that if the police keep a man in custody without trial for up to 96 hours that will work to their detriment? If there is a confession at the end of the 96 hours—I suspect that in many instances there will be—no sensible and robust judge will say that there was not some oppression. That oppression will stem from the period that the man has been in custody and not from the police force itself.
§ Mr. BerminghamI am grateful to the hon. Gentleman for making that intervention. I agree with him entirely. What is the need for the 96-hour provision in any event? No justification for its inclusion in the Bill has ever been put forward. It has been found — there are a number of case studies to show this—that the longer a man is kept in custody and asked the same repetitive questions, the greater is his inclination to acquiesce and to give the answer that the interrogator wants to hear.
I am forced back to the same simple but salient point: what is the justification for the 96-hour provision? What is the need for us to develop a system that will have no equal anywhere in Europe? If the European Court of Human Rights examines our system, I suspect that it will condemn it, and rightly so. We shall be completely out of line with good practice anywhere else in the world.
§ Mr. BerminghamI note that the Minister shakes his head.
§ Mr. Robin Corbett (Birmingham, Erdington)The Minister is waking up.
§ Mr. BerminghamI have been waiting for many months for the Minister to explain why he needs and wants the 96-hour provision. Apparently only five sets of inquiries have lasted that long. That was revealed by the survey to which my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) referred. It seems that the bulk of cases were completed in six hours. In Scotland, all accused are charged within six hours if it is considered that there is a case against them. Perhaps the Home Office, the ministerial system or those who are behind all this have forgotten the simple and old-fashioned principle that the moment there is a prima facie case against someone he should be charged. That is how it should be.
I agree that there are times when the man who is being held in the police station may have committed other offences. If that is so, he should be charged and taken before the court before the other matters are dealt with. Any extra time that elapses in the police station slows down the whole process, because time is being wasted.
§ Mr. BerminghamIt appears that the Minister continues to disagree with me. If he wishes to intervene, I shall allow him to do so.
§ Mr. HurdBefore anyone could conceivably be kept in detention without charge for the maximum of 96 hours he would have to appear twice on separate occasions before a magistrates' court. He would have to be present and he would have to have legal representation. The police would have to satisfy the magistrates on two separate occasions of the need for further detention which is defined in clause 39. That is what the hon. Gentleman has omitted from his analysis. If he believes that the magistrates would agree to further detention if the police said, "We keep on asking him the same questions and he does not answer," it seems that he has a poor opinion of magistrates.
§ Mr. BerminghamIt seems that the Minister wishes to show that I have a poor opinion of magistrates. I have long experience of magistrates, and I know how easy it is to wrap up the facts to present a case, at a time when the defence is not in a position to provide a detailed analysis of what is being alleged, that will result in detention continuing. The person representing the prosecution will say, "This man is believed to have been concerned with the offence that is before the court and with numerous interrelated offences. There are important inquiries to be made and we are worried that witnesses will be interfered with. We are concerned that the accused might abscond."
Those of us who have been in practice have heard these arguments ad nauseam, especially during bail applications on the day after a person has been charged, when the first three-day remand or seven-day remand is being sought. That is the voice of practical experience. The Minister might say that it is the voice of practical cynicism, but I suggest that if the House accepts the 96-hour provision experience will show that the first extension to 24 hours will be fairly easily obtained.
I am not denigrating magistrates, because they are only as good as the information that they are given. Any good 159 advocate can wrap up allegations nicely in a packaged way that will appear to contain much more serious matters than turns out to be the case.
§ Mr. HayesThe hon. Gentleman says that any good advocate can wrap up a lay bench. With respect, I disagree with him. One does not have to be a good advocate to do that. It is easy to do so, especially when the police are suggesting, as they often do, that the offence is extremely serious. Does the hon. Gentleman agree that a defending advocate will be wasting his time in arguing against continuing custody unless he is before a stipendiary magistrate? The old-style committal is a classic example of my argument. The procedure is almost a complete waste of time when it takes place before lay benches.
§ Mr. BerminghamIt is clear that the hon. Gentleman has great experience of these matters. I accept what he says. I was trying to be rather kinder in presenting my argument, by referring to a good advocate. However, the hon. Gentleman is right. It is necessary only to suggest that the matter is extremely serious, that there have been a spate of burglaries and a number of robberies in the area and that it is crucial for the accused to remain in custody for 24 hours, and invariably the application will be granted.
§ Mr. AshbyDoes the hon. Gentleman agree that if the police are to ask for a further remand in custody prior to charging, the only reason that they can advance for making the application is that further inquiries have to be made? If they cannot advance that argument, there is no reason for the accused to be further remanded, and the police will have to charge. Does the hon. Gentleman agree also that the magistrates should then ask, "Inquiries of whom?" If the inquiries are not of the person who is in custody, there is no need to keep that person uncharged. The police can continue to make inquiries elsewhere without asking questions of that person. That is the danger, and that is where oppression lies. Does the hon. Gentleman agree with me?
§ Mr. BerminghamI agree entirely with the hon. Gentleman. If X is arrested and Y is thought also to be involved, the first application may be made on the ground that the police have another person, or persons, to interview. When entering police stations I have heard it said, "We have not charged him, but we do not want you to see him yet because we want to arrest 1, 2,3 and 4, with no names, no pack drill. If it is known what he has said or has not said, or if his presence here leaks out, the others might be put on guard." Where co-defendants are sought, there may be a tendency to delay charging and to keep the questioning going until the co-defendants are caught.
We go back to the principle that seems to lie behind all this. We have shifted the emphasis from investigation to interrogation. The longer we permit interrogation to continue, the greater danger there will be to justice at the end of the day. Those of us who were in practice 10 years ago know that it was a golden rule that a person had to be charged within 24 hours. That was a spur to speedy charging and appearance before a court. In those days there was the safety measure of the writ of habeas corpus, but that in itself has been whittled away and the courts are now remarkably reluctant to grant a writ of habeas corpus. It is for that very reason that the law needs to be explicit on this point.
§ Mr. KaufmanI want to go back a bit, because I think that it is necessary to get this on the record. The Minister of State intervened in my hon. Friend's speech to protest that the police would have to go twice to the magistrates to get the 96-hour period. 'What the Minister did not say was that that was not how the Bill was presented to the House of Commons. Originally, the police would have had to go to the magistrate only once. The second application was a concession to the case put forward by my hon. Friends for an amelioration of what was proposed. We accept that, just as we will accept any concession as being better than nothing, but we cannot begin to say that because the Government have made this concession we find the position satisfactory.
§ Mr. BerminghamI am grateful to my right hon. Friend for that intervention. I am aware that that was one of the smaller concessions that we achieved in the progress through Committee. When I say "smaller", it is smaller from the point of view of human beings.
I should like the Government to give a much greater concession by going back to the requirement for a charge to be made within 24 hours, but that is a dream which I do not think one can realistically expect. It is against that brckground that my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett) and I are seeking, in our amendment to the new clause to have a maximum of 48 hours. In research which I have carried out myself and which I have caused others to carry out for me we looked for cases or a group of cases 'which lay without the 48-hour period. We were hard-pressed to find examples where 48 hours would not have been adequate to bring charges, even of the most serious nature and involving the most serious and complicated form of forensic investigation.
I hope that the House will not be misled by any hon. Member who suggests that scientific and forensic evidence is always crucial and cannot be obtained within 48 hours. In reality, within 48 hours one will have enough of the gist of what the forensic evidence will be to establish a prima facie case. The actual details of the forensic evidence often may not become available until many weeks later.
At the heart of the whole matter must be a wish on the part of many of us to return the investigation system to being an investigation system and not an interrogation system, and to remove the waste of time that often occurs in many court hearings when argument goes on ad nauseam about oppression. We shall come later to the clause dealing with tape recordings, which will in its own way remove much of the problem that has existed hitherto over verbal evidence. In a civilised society, surely we should have an investigation system which removes all threats and problems of oppression. The only way that we can do that is by limiting the maximum period for which a person may be held without charge to 48 hours. It is for that reason that I hope the House will accept my amendment to the new clause.
§ Mr. Nicholas Lyell (Mid-Bedfordshire)I speak with an air of déja vu. While I have not joined my hon. Friends and Opposition Members in the most recent Committee stage, I did spend more than 100 hours—I forget how many score more—in the last Parliament going over the same ground.
Where I take issue with the right hon. Member for Manchester, Gorton (Mr. Kaufman) and the hon. Member for St. Helens, South (Mr. Bermingham) is that they forget 161 what an enormous advance the Bill, as drafted, is on the present position and how far it goes to correct the imbalances which have hitherto existed. I notice the hon. Member for St. Helens, South frowning. He may have been a member of the Standing Committee—I do not know; certainly he was not a member of the Standing Committee that considered the Bill in the last Parliament.
Under present law, there is no requirement for the police to make a record after six hours as to why they maintain someone in detention. There is no requirement, as is proposed in the Bill, to review that decision after the next nine hours and to review it every succeeding nine hours.
§ Mr. Berminghamrose—
§ Mr. LyellIf I may get under way first, I shall then gladly give way.
There is no requirement to go before magistrates to extend the period in detention, let alone a requirement to go before them after 36 hours and again after a further 36 hours. There is no absolute maximum of 96 hours. All these are improvements for the liberty of the subject and for the better discipline and control of what goes on in a police station which do not exist today and which will go a long way to correct the position.
The hon. Member for St. Helens, South, said that there is no evidence of cases going beyond 96 hours; I think that was how he put it. I am sure that in his long hours in Committee he had an opportunity of reading and no doubt carefully studying the evidence on which the Royal Commission came forward with its recommendation. I have not referred to that evidence for some months, so I may be forgiven if I do not get the chapter and verse right. I think it was in the third or fourth quarter of 1979, the relevant period when the Royal Commission was carrying out its work, that the Metropolitan police dealt with 230-plus cases which had gone over 72 hours. They did not seek to come forward and say that all those cases were monstrous. Those cases were a tiny proportion of the total number of cases. But this is where the argument of Opposition Members and of those of my hon. Friends, who tend occasionally to become frustrated with magistrates, falls down. I have been before magistrates courts on many hundreds of occasions and I know the same sense of frustration when one is an unsuccessful advocate.
§ Mr. Kaufmanrose—
§ Mr. LyellI can see that the right hon. Gentleman has the book, and has the advantage of me; I shall give way in a moment. There are real and practical reasons in a tiny minority of cases for going on. I shall give way now so that the right hon. Gentleman can make his point.
§ Mr. KaufmanIt is well to get this right. What the Royal Commission report said in paragraph 3.96 was:
a survey done for us by the Metropolitan Police between 1 October and 31 December 1979 showed 212 persons (0.4 per cent.) out of 48,343 held for 72 hours or more"—not 96 hours as I think the hon. and learned Gentleman was suggesting—before charge or release without charge.The information we have about as long as 96 hours comes from another survey, which showed that five persons were held for as long as 96 hours. I think the hon. Gentleman's memory, understandably, has failed him on this.
§ Mr. LyellI am grateful to the right hon. Gentleman, but he did not hear what I said. I said that 230-plus—in that I was wrong, because it was 212—were held for over 72 hours, not over 96 hours. Of course, I was dealing with the last quarter, and with the difference between 72 hours and 96 hours which the Royal Commission had in mind. The figure is over 72 hours and under 96 hours—or a maximum of 96 hours.
If the right hon. Member for Gorton leapt to his feet to justify 84 hours instead of 96 hours, there might be some validity in his argument. In a small but significant number of cases, the upper levels are reached. The right hon. Gentleman will remember the 91-hour Court of Appeal case when Lord Justice Goff made his judgment. In that case a person was taken into custody and his name was not verified until 91 hours later, despite massive efforts. We are talking about rare cases and the extreme margin. We must get back into balance.
§ Mr. KaufmanThe hon. and learned Member is arguing from statistics. It is as well to present to the House the available statistics. Metropolitan police figures for the third quarter of 1982 show that, of persons held without charge, none were held beyond 96 hours and only four were held beyond 72 hours. There is no tolerable statistical basis for the hon. and learned Gentleman's argument.
§ Mr. LyellWith respect, the right hon. Member for Gorton has destroyed his own case. We are talking about an absolute statutory maximum. Since 1979—including during 1982, when the measure was much in our minds —there has been a reduction in the number of people that the police find it necessary to detain for a long time. We all welcome that.
The Opposition do not seem to understand the pressure that will be put upon the police if they have to make a review every six or nine hours. They will have to record in writing the reasons for the detention and go to the justices, not only to put forward their argument but to give full opportunity for the person held in detention to be represented so that his side of the picture can be argued. All that must happen before they can detain a person over 36 hours and then for over 72 hours.
The Opposition, and some of my hon. Friends who are anxious about the matter, have the issue out of balance. We are discussing a broadly libertarian measure which is greatly to the benefit of the individual. The Confait case has been mentioned. I do not believe that our former colleague, Mr. Christopher Price, who was so closely involved in that case, would differ from me in that view.
§ Mr. James Wallace (Orkney and Shetland)The hon. and learned Member says that we must get this matter in proportion. Under section 2 of the Criminal Justice (Scotland) Act 1980, which deals with rules of detention, according to a written reply on 5 May 1983, the average length of detention is 2½ hours. Is the rate of detection in Scotland any less efficient than it is in England?
§ Mr. LyellTalk about arguing nonsense from statistics! The hon. Member establishes that most people go in and out of police stations rather quickly, which is also true in England. The vast majority of detentions are for fewer than six hours. We are dealing with fringe cases, comparatively. The Bill sets up a careful reverse pyramind of increasingly onerous tests which have to be passed 163 before a person can be kept in detention for a long period. That should be welcomed as right and proper. We are trying to achieve the right balance between fairness to the individual and civil liberties and the need to attack crime —often serious crime. The Bill strikes a fairer balance than that revealed in recent exchanges in the debate.
§ Mr. WallaceWe are discussing one of the most controversial aspects of the Bill. As the hon. and learned Member for Mid-Bedfordshire (Mr. Lyell) says, we must strike a balance between the public interest, which is to prevent and detect crime, and individual liberty. Our duty is to try to get that balance right.
Traditionally, Parliament has jealously defended the individual's right to liberty against all interventions and interferences. We must continue to do that. When a measure infringes individual freedom or liberty and the right of the individual to move about, we must examine it with great care and grant such intervention only if the case is made out. The alliance view is that the case is not made out.
We propose a 24-hour limit. We do that with some misgiving, but we recognise political reality and that some limit will be written into the Bill. We believe that 96 hours is grossly excessive, even with the safeguard of two appearances before a magistrates court.
Another fundamental right is that of silence. It is proposed that detention up to 96 hours can be permitted for the purpose of police questioning. That seriously undermines the right to silence, whatever the safeguards.
I have studied English law and for a number of years before being elected to the House I practised at the Scottish Bar. I am the first to acknowledge the differences between procedure in England and Scotland. One must be careful when making comparisons, but it is in order to make such comparisons when discussing this issue. We are not comparing two wholly dissimilar countries, but two jurisdictions in one kingdom and in countries with similar crime patterns. It is right that we should look closely at the way in which individual liberties are treated in different parts of the kingdom. There should be no great differences in the way that people are treated.
Under both systems, even after the passage of this measure, the concept of voluntary detention will still exist. Euphemistically, that is sometimes known as "helping the police, with their inquiries". Since the 1980 Act came into force in Scotland, the number of people in that category has been reduced.
Under the proposals, arrest in England would have to take place prior to detention. A person could be detained for questioning for up to 96 hours, but that questioning would cease immediately the prosecution believed that there was sufficient evidence for the prosecution to succeed. Without delay, the police would have to cease to question at that point.
Under the Criminal Justice (Scotland) Act 1980 there can be detention prior to or without arrest for up to six hours. When that measure was being discussed there was concern that we were allowing some form of statutory detention without arrest — hence the provisions for detention in that Act are edged with a number of safeguards. When the threshold of arrest is crossed in Scotland it must be accompanied immediately with a charge. That arrest must be subsequently justified by reference to that charge, even if it is a holding charge. On charge and arrest—
§ Mr. CorbettOr release.
§ Mr. WallaceIndeed. A person must be released after six hours if no charge is brought. On arrest and charge he must be brought before a court as soon as is practicably possible. Various rights to legal representation follow from that.
While the systems and the periods of time involved in arrest and charge differ, the important matter is the admissibility of evidence and statements—particularly confessions—by the accused person. In Scotland, there are three identifiable periods during an investigation when statements may be elicited. First, there is the preliminary investigation. Secondly, there is the period when the accused person has become a suspect. Thirdly, there is the period following arrest and charge. With very limited exceptions, any statement elicited after arrest and charge will be inadmissible and great care is taken by the courts with regard to statements elicited by the police after the finger of suspicion has been pointed at the accused. The law of Scotland, as developed in 1954 by Lord Justice General Cooper in the case of Chalmers v. Her Majesty's Advocate, may have been thought to have taken an extreme position in suggesting that any statement made by the accused after he had come under police suspicion would be inadmissible. That position has been eroded, but nevertheless the courts look very carefully at any statement made in the second phase because — as Lord Justice Cooper said in the case of Chalmers—the courts have a special duty to safeguard suspects when they are in police stations.
The position is uncertain, but the criterion used by the courts is one of fairness. The court must decide whether the statement has been obtained fairly. A statement not obtained fairly would be inadmissible. The period of detention that we are considering is one in which he detained person has come under suspicion. Although there is some uncertainty in the law, one can say with great certainty that it would be almost unheard of for a Scottish court to entertain any statement made after 96 hours of police questioning.
When I compare the Scottish and English systems I do so not in a spirit of national one-upmanship but in a spirit of amity. However, some of the notes for guidance come as a shock to someone who has practised in the Scottish courts. We find that someone who has been arrested but not charged will be allowed brief outdoor exercise daily if that is practicable, and there are other provisions making arrangements for the provision of meals. Of course it is right that meals should be provided, but the provisions are a shock to someone who has not practised in the English courts.
As the hon. Member for St. Helens, South (Mr. Bermingham) has said, the function of the police should be investigation rather than interrogation. The function of the police is to investigate the case, not to press the accused into helping them to make the case against himself. We have heard examples of confessions which subsequently proved to have been wrongly elicted. People have been convicted on evidence consisting of little more than confessions which were subsequently shown to be wholly unfounded. One thinks of the Confait case. In that case, it appeared after investigation that the police themselves were not aware of the provisions for interrogating mentally subnormal people brought in for 165 detention. In some cases, questioning has not been carried out fairly. That being so, we find the provision wholly unacceptable.
I have described the system in Scotland because it was brought into operation by the Conservative Administration in 1980. One assumes that the system works. There have been no moves to alter it, and, indeed, Scottish Office Ministers are regularly prepared to defend it. I submit that no significant differences in levels of crime in Scotland and England have developed, and that the Scottish police forces are just as efficient as those in England. When the maximum period of detention in Scotland is six hours, I find it incredible that, in the neighbouring jurisdiction of England, a period 16 times as long is required.
For those reasons, alliance Members will strongly resist the Government's measure and, in order to mitigate the horror of the provision, will reluctantly try to replace it by a provision for a period of 24 hours.
§ Mr. Derek Spencer (Leicester, South)I believe that new clause 17 is totally misconceived. I base that judgment on my experience of 19 years as a junior, four years as a silk and four years as a recorder at the Central Criminal Court. The last two periods were concurrent, but consecutive on the first.
I am probably one of the few Members of this House who has participated in a case in which the defendants were kept in custody for more than 96 hours prior to being charged. In that case, the defendants were kept in custody for seven days. The circumstances of the case may perhaps serve as a pointer to the appropriateness of the rule in the Bill as drafted. There were six defendants, five of whom were from abroad. The exhibits exceeded 4,000 pages, and there were about 80 witnesses, most of whom had to be flown to this country. The case was one of conspiracy to defraud, and the action was seated variously in Vancouver, Quebec, the Channel Islands, the West Indies, and most of the commercial capital cities of western Europe. Had the fraud come to fruition, those responsible would have netted about $30 million. In the City of London, the case involved the fraudulent use of a merchant bank.
I do not think that Opposition Members have comprehended the scale and activity of certain criminal activities with which the courts have to deal at present and the onerousness of the task of the police in any inquiry into such crimes.
§ Ms. Clare Short (Birmingham, Ladywood)Will the hon. and learned Gentleman give way?
§ Mr. SpencerIt is not by chance that my right hon. and learned Friend the Home Secretary had to set up an inquiry into proposed changes in the trial of serious and complicated frauds.
§ Ms. Clare ShortWill the hon. and learned Gentleman give way?
§ Mr. SpencerWithout some changes in the law, we shall find it impossible to do justice in such cases. Such cases require an increasing amount of the time of the police and are putting the public more and more at risk.
Opposition Members refer to a dichotomy between interrogation on the one hand and investigation on the 166 other. I believe that they are making a great mistake. In any sensible police procedure, interrogation is part of legitimate investigation. The two walk hand in hand. In the ascertainment of justice, investigation and interrogation are not mutually exclusive. If the Opposition get their way, the public interest will be thwarted and legitimate and proper police inquiries will be rendered as nothing.
The hon. Member for Orkney and Shetland (Mr. Wallace) gave us his account of how things work in Scotland, but the Bill is a revolutionary measure. Opposition Members might laugh at that statement but in 20 years' time those of us who practise in criminal courts will look back on the Bill and find utterly incomprehensible many of the objections and far-fetched criticisms that have been launched against it. Anyone who compares what happens in criminal courts and how they administer the law at the moment with what the Bill proposes will find that the Bill introduces additional safeguards that are way beyond anything now experienced.
The right hon. Member for Manchester, Gorton (Mr. Kaufman) expanded on his inquiries of his Scottish friends. He did not advert for a moment on where his inquiries of his English lawyer friends led him because if he had he would have been bound to confess the extent to which the Bill introduces stages by which the police must go before magistrates. The Bill confirms restraints on police activities to a far greater extent than appertains at the moment. I am 110 per cent. against new clause 17 and completely support the framework of the Bill.
§ Mr. MaclennanI do not propose to go over again the ground that was ably covered by my hon. Friend the Member for Orkney and Shetland (Mr. Wallace) and by the right hon. Member for Manchester, Gorton (Mr. Kaufman). The Liberals and Social Democrats regard this part of the Bill as the most obnoxious. As the Government show no disposition to amend the Bill we shall be compelled to vote against it receiving a Third Reading as it seriously vitiates the rule of law and is a flagrant violation of human rights. It also interferes grossly with the right to silence. It is bizarre that the Home Secretary has absented himself from the debate.
§ Mr. HurdIf the hon. Gentleman studied the proceedings of the Standing Committee or the Royal Commission report he would find that the Royal Commission recommended no maximum limit for detention without charge. It is true that we have departed from the Royal Commission's recommendations in that regard—we have created a limit that does not exist at the moment and which the Royal Commission did not recommend.
§ Mr. MaclennanI give way to the hon. Member for Lancashire, West (Mr. Hind).
§ Mr. HindThe hon. Member for Caithness and Sutherland (Mr. Maclennan) has referred to an interference with the right of silence. The detention of someone for 96 hours does not interfere with that right because the person concerned can sit there and say nothing.
§ Mr. CorbettThe hon. Gentleman must be joking.
§ Mr. HindIn my 10 years' experience practising at the Bar I have represented professional criminals who have 167 been in a police station for longer than 96 hours and have said nothing except, "Yes, Sir," "Thank you," and "Can I have a cup of tea?"
§ Mr. CorbettWhy were they there?
§ Mr. HindBecause a matter was being investigated. It is nothing but nonsense to suggest that such detention interferes with the right of silence.
§ Mr. MaclennanIt is clear that I should not have given way, as I intended to deal with the Royal Commission's consideration of the issue.
§ Mr. KaufmanPerhaps I might observe that it would have been a service to the House if the hon. Member for Lancashire, West (Mr. Hind) had availed himself of his right to silence. I cannot understand why the Minister says that there is no recommendation on this matter in the Royal Commission report because at paragraph 3.104 it specifically recommends that anyone
arrested and detained must within 24 hours be released unconditionally".It also calls for reviews after six hours. I therefore do not know where the Minister got his information from.
§ Mr. MaclennanI agree with the right hon. Gentleman. I assume that the Minister is not deliberately trying to mislead the House because he is not that type of man. However, he is on such an extraordinarily sticky wicket that, no doubt, he will resort to any flannel to justify the indefensible.
§ Mr. MaclennanNo. The Minister might have chosen to intervene earlier. Several speeches have been made and some have been much more critical than mine.
I must express my indignation at the Home Secretary absenting himself from the debate. This matter is widely seen outside the House as the most unacceptable infringement of liberty in the Bill. It is not as though the Home Secretary is unable to be here. He has shown, by his popping into the Chamber for 30 seconds, that he is in the building but unwilling to hear the arguments. That is deplorable behaviour.
With regard to the proposals on the right of silence, experience has shown that people in police detention for any length of time are at a disadvantage and can and do confess to crimes that they have not committed and could not have committed. During the speech of the right hon. Member for Gorton, I referred to the case of Barry Foster. The Confait case is even better known and there are many others.
The Royal Commission considered the matter and put in hand a research study that was published under the title "Police Interrogation—The Psychological Approach. A Case Study of Current Practice." Commenting on that study, Mr. Marcel Berlins, the former legal correspondent of The Times said that perhaps the most striking conclusion was that the legal concepts of voluntary and involuntary confessions were almost meaningless. He also agreed with the researchers' view that everything that happens to a suspect from the moment he enters a cell block reinforces the authority of the police and puts the suspect in a weakened position when he is questioned. The research was carried out by Mr. Barrie Irving and Linden Hilgendorf of the Tavistock institute for human relations. They reviewed psychological literature and the theory and practice of interrogation.
168 The second report that the Royal Commission adopted was based on a six-month study of CID interrogation in Brighton. Justice, the British branch of the International Commission of Jurists, reported on two cases, which occurred between 1978 and 1981 concerning persons known as Binns and Coy ill, involving miscarriages of justice arising from prolonged interrogation. The hon. Member for Middlesbrough (Mr. Bell) referred to them in Committee and they were discussed in the BBC2 programme "Out of Court". It was shown that the convictions for the murder of the newspaper boy Clive Bridgewater were wrong and based on inadequate confessions. The matter is of the utmost seriousness but many of the arguments that I wished to advance have already been made.
I am astonished that the Government have not discharged the onus of demonstrating the case for such an extremely protracted period of detention as 96 hours without charge. That is quite out of line with international experience and is shockingly out of line with the experience in Scotland, as my hon. Friend the Member for Orkney and Shetland has said. I say "shockingly" because I assume that the Government collectively arrived at the decision that a six-hour period would be adequate in Scotland. For some unknown reason, perhaps because there are more illiberal Home Secretaries in England than illiberal Secretaries of State for Scotland, the matter is treated entirely differently south of the border.
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I hope, even at this late hour in the Bill's consideration, and certainly when the matter is being considered in another place, that those who have more experience of criminal legal practice in England—it is many years since I appeared in a criminal case—as well as the Lords of Appeal will turn their attention to the matter, joined by the many legal luminaries in another place who, I do not doubt, will be completely outraged by the provision and the thinness of the Government's argument in its support.
I have read the Committee proceedings carefully. The efforts of Ministers in Committee were devoted to nitpicking at the alternative proposals. They did not make a serious attempt to justify a period of 96 hours' detention. Nor have they attempted to justify it this afternoon, although we have been debating the matter for more than an hour.
§ Mr. LyellWould the hon. Gentleman care to deal with the speech made by my hon. and learned Friend the Member for Leicester, South (Mr. Spencer)? If the sort of international fraud to which my hon. Friend referred is not a serious case that should be dealt with seriously, what is?
§ Mr. MaclennanI thought that the speech from the hon. and learned Member for Leicester, South (Mr. Spencer) was craven and unpersuasive.
§ Mr. Greg Knight (Derby, North)There seems to be agreement on at least one matter—that the law relating to police powers of detention in England and Wales is vague, uncertain and needs to be updated. As I understand the position, under the Magistrates' Courts Act the police are under a duty to bring a person who is in their custody before the courts as soon as practicable.
Over the years, a form of general police procedure has grown up whereby the police take a suspect into custody 169 and put him through a long period of questioning before he is charged. What tends to happen is that the police employ a sort of softening-up period as a matter of practice. A person is arrested and left to his own devices for some time before being questioned. He is then interviewed by an officer. If the suspect decides, as is his right, to say nothing or not to admit the offence into which the officers are inquiring, he may well be further left to his own devices for two or three hours while the officers attend to other matters before being visited again.
My practice and experience in these matters shows that often the same quesions are asked for a second time. Why is that so? Because the officers wish to obtain a confession. Our existing law is defective because it does not define a period of time within which the officers need to bring that person to court. There seems to be agreement on both sides of the House that action should be taken to bring the discipline of time-keeping into detention by the police. The area of disagreement that has arisen is over the figures that should be used.
I am sorry that my hon. and learned Friend the Member for Leicester, South (Mr. Spencer) is not in the Chamber to hear my remarks. I thought that he would conclude his speech by saying, "There rests the case for the prosecution." He mentioned an extreme example, at one end of the spectrum of crime. Many officers deal on a day-to-day basis with the other end of the spectrum, where an unsophisticated person is taken into custody—someone who may have never been into a police station before. He is left to his own devices for several hours and then interviewed by the police. He may decline to admit the offence, in which case he is left for a further period. At that point the questioning invariably prompts the accused person to ask the police, "If I admit the offence and make a statement, which you keep asking me to make, what will happen? Can I go home to my family or have bail?" Of course, the answer is given in the affirmative.
Opposition Members have given examples of the danger, which increases with every hour that is spent in custody, that that unsophisticated person is likely to make an admission, not because it is true, but because he wishes to get away from the oppressive surroundings of a police station.
If we are interested in justice and not merely in increasing conviction figures—and I believe that most hon. Members are interested in justice—it is right to treat the matter very seriously. That is why I am attracted to the amendment. One must ask why a person who has not been charged should be kept in police custody for the length of time that has been referred to, especially by my hon. and learned Friend the Member for Leicester, South and my hon. Friend the Member for Lancashire, West (Mr. Hind).
Some hon. Members say that when the police keep someone in custody for a long time it is the case that, as his surroundings have been oppressive and the police have continued to question him for several hours, his confession will be inadmissible and he has nothing to worry about. In practice, that is not so. Do police officers record every question, even when they ask a question two or three times? My experience suggests they do not.
What happens? A police officer records in his notebook those questions to which the answer gives some importance to the question. Often advocates who represent 170 defendants in court are faced with a police notebook which has questions running to two or three pages. If the police are asked whether those questions were the only ones to be asked, they reply that the questioning lasted for only a matter of minutes. Yet when the police are asked how long the person was in custody it is found that he was kept for as long as six hours or so.
Many questions are not recorded when the replies are in the negative. It is difficult for a defendant, when he is ultimately taken to court, to challenge the way in which he was questioned when, for example, two police officers before that magistrates court or Crown court say that no pressure was put on the man to make the statement. They may say that the questions were asked properly and that he was given the opportunity of making a telephone call if he wished to do so.
It is very difficult to convey to the court the mental pressure which the defendant may have been under in those circumstances. With respect, some hon. Members underestimate that factor. We should be interested in obtaining justice and ensuring that only the guilty are convicted. I welcome the fact that the Home Secretary has decided that the police should keep proper records of time spent in custody, but I believe that the proposed time limits are not sufficient, and for that reason I shall vote in support of the amendment.
§ Mr. Stuart Bell (Middlesbrough)I am grateful for the opportunity to follow the hon. Member for Derby, North (Mr. Knight). He made a strong and cogent speech, including a courageous declaration as to how he intends to vote. I should like to have been able to say something similar after the intervention by the hon. and learned Member for Leicester, South (Mr. Spencer). It is an important and valuable experience for the House to hear views on the Police and Criminal Evidence Bill especially on new clause 17, from a member of the Bar, who has been a junior, who has taken silk, and become a recorder.
However, there are dangers in using anecdotal evidence. I had a fleeting image in my mind of Lord Justice Birkett at the Nuremberg trials in 1945, dealing with Hermann Goering, Rudolf Hess and similar individuals. No doubt if he had expressed his views on new clause 17, they would have been similar to those of the hon. and learned Member for Leicester, South. They would have been coloured by his experience. It was clear that the views of the hon. Member for Leicester, South were coloured by a complex fraud case in which he had been involved. Of course, we are not dealing with complex fraud cases, when it is open to the police to charge and detain those suspected of being involved in the crime. The point is that we are dealing with those who are incarcerated, but at the end of the day are released.
We are not dealing with those who will be charged, detained, and brought to trial for serious arrestable offences. We are trying to defend the individual who walks into a police station seeking to help the police with their inquiries. He is faced with a new bureaucracy, which begins with the custody officer, and then proceeds to the review officer and the superintendent. There is a whole host of codes of practice for treatment, questioning and identification of the person suspected of the crime. We are dealing with the sort of person to whom the hon. Member for Derby, North referred, who at the end of the day walks free from detention.
§ Ms. Clare ShortLet us be clear on the point about complex fraud cases. Does my hon. Friend agree that the police often spend six months or more investigating complex fraud cases and that the point is that they should not arrest until they have evidence? If they have evidence, they should then charge. The case to which the hon. and learned Member for Leicester, South (Mr. Spencer) referred does not justify people being held in detention without charge for long periods
§ Mr. BellI am grateful for my hon. Friend's intervention. I shall let her and the House into a secret. As a practising barrister, I was involved in a complex fraud case. The investigation went on for 18 months to two years, during which time evidence was collected. After that time the police swooped, detained and charged. They did not detain and charge before they had the evidence. That is the procedure in a court of law of which I have had experience.
Reference has been made to the proceedings in a Crown court. I have been impressed by the vigilance of judges in Crown courts and of the officers involved in detaining and charging people, who ensure that they have maximum civil rights. There is no possibility of detention without charge for 96 hours.
In Committee the Minister of State said that about 22,000 persons a year were detained without charge by the police for 24 hours or more, but the number of suspects who were not charged or who were released after 36 hours was much smaller. The figure was only a few hundred. However, the Minister did not tell us how many of those who were charged after 36 hours were brought to trial. The fact is that we are dealing with a small number of people who are likely to be charged and with a larger number of people who will not be charged, but will walk free.
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The point that we made in Committee, which I repeat now, is that the period of 96 hours is the maximum. I accepted the Minister of State's sincerity when he said in Committee that the normal detention period under the Bill would be 24 hours. He said that only in exceptional circumstances, to meet exceptional needs, would detention go beyond that time. However, we should like to draw the attention of the House and the country to the fact that the so-called maximum of 96 hours might become a minimum, which will be cloaked by a series of spurious defence mechanisms designed to protect and preserve the civil liberties and rights of the citizen while he is in custody. I have already referred to the custody officer, the review officer and the superintendent. That is the bureaucratic mechanism. However, no part of the Bill, however lengthy the clause, can hide the fact that none of those aspects inspires confidence.
§ Mr. Eldon Griffiths (Bury St. Edmunds)The hon. Gentleman is putting the argument, as a matter of anticipatory anxiety, that the maximum of 96 hours could become a minimum. At the moment there is no maximum at all, but detention is prolonged in only very few cases. That being so, why does the hon. Gentleman believe that the police service would use 96 hours as a minimum period? I do not believe that the hon. Gentleman has any evidence for that charge.
§ Mr. BellWe are dealing with the Police and Criminal Evidence Bill, which puts on the statute book the right of the police to hold for 96 hours —
§ Mr. GriffithsThere is no limit at the moment.
§ Mr. BellThere is a limit, after which the case must be brought before a magistrate. We have the rights of habeas corpus. There is a host of rights that protect the individual. Now we are putting on to the statute book a 96-hour period. There is a legitimate fear that that might become a minimum rather than a maximum period.
During that 96 hours, the suspect may be brought before a magistrate. The hon. Member for Harlow (Mr. Hayes) said that unless there is a stipendiary magistrate, one falls back on a lay magistrate. Those with experience of the magistrates courts know that one cannot be entirely sure whether the lay magistrates will just accept the thesis and dossier of the police and automatically rubber-stamp the decision to keep the person in custody for much longer.
We do not wish to prolong the debate by referring to all the points that were made in Committee, which are familiar to members of the Committee, but once again we have returned to the balance. We are always discussing the balance between the citizen's fundamental rights and the powers of the police, that reassure the public and help to reduce crime. We accept that balance. We repeat what we have said many times, that we are not anti-police and that we are for the principles of law and order. We wish the police to have the appropriate powers to go about their business, seek out crime and arrest those who might be involved or are likely to be charged for what are known as "serious arrestable offences".
However, at the same time we do not want the balance to be tilted too far against the rights of the citizen. The Minister of State and the Home Secretary will probably say that the balance is right, which was the view expressed in Committee. We say that it is not right. It tilts against the citizen and in the favour of the police. That is likely to have consequences for the police in future. Drop by drop, the cup is filled. It will be a cup full of bitterness for the police as more citizens fall within the net of this measure and are detained for 96 hours. I refer particularly to those who walk out of the police station free, and return home to their families. Little by little the word will spread throughout the country that the police hold people for 96 hours without charge. That will be to the detriment of the police, our concepts of civil liberties and our country as a whole.
§ Mr. Christopher Hawkins (High Peak)In fairness to the Government, we should accept that this part of the Bill is an improvement on existing circumstances. The question is whether the improvement goes far enough. It should go further. Therefore, I am sympathetic to the new clause and urge the Minister to accept it.
The Minister is aware of my reservations on the issue because I have been in extensive correspondence with him about it. It saddens me to rise to speak against a Bill introduced by my party, especially as the Bill is important and necessary. However, I cannot accept that if I were arrested at 11 pm on grounds of mistaken identity, I could be held tonight, tomorrow and tomorrow night without my family knowing where I was, and before anyone needed to go to a magistrate for permission. I cannot, then, accept that happening to other people, either. By then most families would be out of their minds with worry. Even six hours is too long. In that time I may well confess to something that I had not done to get out of custody and let 173 my family know where I am. That is not acceptable in a free, democratic country. Therefore, I ask the Minister to think again.
§ Ms. Clare ShortI rise briefly to clarify the underlying reasons why the Opposition are unhappy about the extended period of detention.
I visited Turkey this summer to attend two trials. One involved people arrested for advocating disarmament and the other concerned people arrested for organising normal trade union activity. Many people there told us that the police practice of picking up a person, holding him for a long time and beating a confession from him was widespread. I am not suggesting that it is as bad as that in Britain. When we discussed why it was so bad in Turkey, the apologists for the regime said that the normal traditions of policing had broken down, and that there was no tradition of investigating crimes and finding evidence before arresting and charging an individual.
I fear that we are beginning to go down that road. The original concept of British law and of the principle of the right to silence was that a citizen was free to go about his normal business and could not be arrested and deprived of liberty unless there was clear evidence against him. In the Bill, we are witnessing a shift of principle of deep significance. It provides that if the police suspect that a person is involved in an offence, they can pick him up, and hold him for questioning for four days. Evidence from cases which we now know went wrong, and from psychological research, shows that if people are detained for a long time, they will confess to deeds of which they are not guilty. That will happen if the Government make 96 hours a provision in the law.
The Government claim that they are not taking new powers, but simply rationalising and tidying up current practice. That is a dangerous argument. They surveyed practice, found what was the longest time that an individual had been held, and wrote it into the law as an acceptable time for every case. Inevitably, the provision to hold suspects for four days will become the norm. We shall know that in a year's time. I am certain that that will happen.
The Government are saying to the police, "Come on, it is now legitimate to arrest people and hold them for questioning for a long time." By making the change, the Government are undermining a fundamental principle of British law: that no one should be deprived of his liberty unless there is evidence that he is guilty of a crime.
The Government's pretence of rationalising current practice is far from accurate. I speak strongly in favour of the new clause. The public are uneasy about the provision, especially my constituents. All hon. Members must know of arrests, for example, of a member of a constituent's family, members of which telephone in a panic, and of people being held in police stations for up to 12 hours. When they are held overnight, it throws the whole family into consternation. Compulsory detention fills people with fear and trembling, yet we are readily talking of holding people for four days. That is a major diminution of our liberty, which is dangerous and will lead to a reduction in the quality of policing. We are inviting the police to pick up a person on a vague suspicion, question him, and frighten him into making a confession. That is a bad move.
§ Mr. Eldon GriffithsBearing in mind the anxiety of both sides of the House to reach a conclusion, I shall speak more briefly than I would otherwise have done. All hon. Members who served on the Committee will agree that, whatever his conclusion, the speech of the hon. Member for Caithness and Sutherland (Mr. Maclennan) was wholly devoid of serious study and homework. His speech betrayed an all too typical absence of conscientious homework.
I shall offer the House two practical considerations. First:
Police are called to a house where a man has killed his wife and attempted to kill himself. He is alive, but has serious injuries. At present the person would be taken to hospital under arrest and kept under guard until released".He has most certainly been arrested, but as he is seriously injured, it would be quite impossible, indeed it would be inhuman, for the police to implement the new clause if it were included in the Bill.The second case is this:
A serious house fire took place. The living room was severely damaged. It was a scene of rubble, water and smoking debris. The husband was found alone in the house … His wife was not present. When he was asked the whereabouts of his wife he replied that she was visiting her sister for a few days but it was suspected by the police that he had murdered her and tried to burn the body in the house. He was arrested and detained in custody. We searched the garden for her body except for an area close to the house where the fire debris was piled. The debris was thrown through the window by the fire service".—[Official Report, Standing Committee E, 16 February 1984; c. 1204.]The superintendent in charge of the case wrote:I gave instructions to leave that debris untouched until it could have been examined by forensic scientists. When given clearance to remove the rubbish, 48 hours had elapsed, and then on searching the ground beneath that pile, her body was found. It was impossible to move quicker without destroying the evidence but that man was none the less detained for three days before he was charged.If the new clause had been law, it would have been impossible for that murderer to have been convicted.I share the anxieties of hon. Members about the possibilities of unfair detention. Nevertheless, according to the police, they would find it impracticable to bring to justice serious criminals if the new clause were passed as it stands.
Clause 37 actually limits the period for which an arrested person may be detained without charge. It imposes a limit that does not currently exist. In practice, it will apply to all but the most serious cases the 24-hour limit on detention without charge on police authority, which currently applies only to those cases not judged by the police to be serious. Therefore, far from following the hon. Member for Birmingham, Ladywood (Ms. Short) down the road to the Turkish police state I must point out that the Bill actually limits rather than extends the ability of the police to detain without charge. That is the view of the Royal Commission and it is what is achieved by the Bill.
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If it is desired to authorise detention beyond the initial 24 hours, clause 38 provides various mechanisms for extension. To obtain a warrant for further detention, application must be made to a magistrates court. The hearing in the magistrates court is inter partes and the person concerned, legally represented, may show cause why he should not be held. In contrast with the Royal 175 Commission proposals, there is thus an absolute limit on detention without charge without a magistrates court dealing with the matter.
Clause 36 provides complex requirements for reviews in connection with police detention and I welcome those requirements, as I believe did every member of the Standing Committee.
It has been alleged today that the Government are somehow creating a new power of detention for four days. As every member of the Standing Committee knows, we are talking about a very small number of extremely serious cases and detention for that period could occur only if a court of law had decided at an inter partes hearing that it was necessary. I recognise the difference between that and the provisions in Scotland, but at present the law of England provides no limit. The Bill provides a limit for the first time. The Government deserve credit for imposing that limit, not attack for allegedly removing civil liberties.
§ Mr. AshbyI am grateful for the opportunity to speak at this late stage in the debate.
My hon. and learned Friends the Members for Mid-Bedfordshire (Mr. Lyell) and for Leicester, South (Mr. Spencer) both described the Bill as revolutionary. Certainly it illustrates the frightful mess that our criminal law has been in for so long. It is sad, indeed, that we should wait until 1984 to try to regularise matters already regularised in other countries.
I agree with the right hon. Member for Manchester, Gorton (Mr. Kaufman) that this is the most important part of the Bill. In any other country it would be a major constitutional point. It is sad that we have had so little time to debate a subject which in many countries would be enshrined in the constitution. It is also sad that so few Members are present. In most countries, decisions on a matter of this kind would require a two thirds majority, or even a two thirds majority of the electorate. I do not think that I have put that too high.
The excuse made for the 96-hour limit is that at present there is no limit at all. In fact, however, we have habeas corpus, which has been settling at around 48 hours in Sherman v. Apps and other cases. I believe that the Magistrates' Courts Act 1980 repeats that. Therefore, there have been safeguards, but that is not the real point. It is argued that there has been no fixed limit and that we must now accept 96 hours as second best and lump it.
This matter goes to the very heart of civil liberties and individual rights. When, at long last, we come to debate it and to make a decision, surely we must get it right. The issue of freedom and the right not to be imprisoned was dealt with as long ago as 1215 in Magna Carta. We have come a very long way since then. If it could be dealt with as long ago as that, surely we can deal with it properly in this day and age—and is not 48 hours a proper period?
The argument falls into two parts: first, the strict constitutional aspect in relation to civil liberties and the rights of the individual; and secondly, the evidential point so squarely raised by my hon. Friend the Member for Harlow (Mr. Hayes), when he pointed out that judges could hold that 96 hours was oppressive in any event. In the case of Hudson in 1981, it was indeed held to be oppressive. What frightens me is that once 96 hours is enshrined in legislation, judges will no longer regard it as oppressive. If that is what the law says, they are likely to admit whatever takes place within that period. I am sure that that will be the result.
176 Like my hon. and learned Friend the Member for Leicester, South, I have been practising for a long time—
§ Mr. Alfred Dubs (Battersea)The hon. Gentleman is better.
§ Mr. AshbyI am very grateful to the hon. Gentleman. Perhaps he will tell that to my solicitors.
I have had experience—professional experience only, I hasten to add—of what happens in police cells. I imagine that very few hon. Members have ever seen a police cell or what happens there. How many have seen people taken into custody and searched? Detainees' belts and shoe laces are taken away, albeit for their own protection. They have no writing paper or books. They are put in a narrow room without any outside window or natural light. They are then simply kept there and time goes by. They have no watch or clock and thus no idea of how long they have been there. In almost every case with which I have had to deal, defendants have told me that they could not say at what time they were questioned or when something happened.
The complete sense of timelessness, with the feeling that nobody wants them and nobody can do anything for them, saps the will of those so detained. In the case of Priestley, it was said that oppression
imports something which tends to sap and has sapped that free will before a confession is voluntary.Any kind of detention is an oppression— a necessary oppression—but 48 hours is quite enough. Beyond that length of time statements can have no evidential value. Juries will be asked to accept statements which anyone with experience of these matters knows to be valueless. Barristers will be made mealy-mouthed about it, referring in court to statements and confessions made after 50 or 60 hours of detention, when in their heart of hearts they know that such statements are utterly valueless. I am bound to have to deal with such a case if the Bill is not amended, and I shall do so with great distaste.It has been argued that the measures are needed because criminals are so much cleverer these days. Two hundred years ago Voltaire said that is was better to risk saving a guilty person than to condemn an innocent one. Sir William Blackstone, that great English common lawyer, said:
It is better than ten guilty persons escape than one innocent suffer.I wonder what has happened to the heart of our criminal law, which has always been that it is better that a guilty man should go free than that an innocent man should be convicted and condemned. This provision will make it more possible that an innocent man could suffer. It is striking at the heart of our criminal law, and is bad for that reason if for no other.We shall be told that this will affect only a small minority of cases, but we are dealing with absolutes and we cannot detract from that. As Martin Luther King said in 1963:
Injustice anywhere is a threat to justice everywhere.This is a threat to justice everywhere, and I shall vote with. the Opposition.
§ Mr. DubsI congratulate the hon. Member for Leicestershire, North-West (Mr. Ashby) on an excellent exposition of the case against the Government's proposals, and I endorse everything he said. It may help the House if I say that although we should like to see new clause 17 177 accepted, we also accept in principle the amendment in the name of my hon. Friend the Member for St. Helens, South (Mr. Bermingham) which also seeks to limit the length of the period in custody suggested in the Government's proposals.
The speech by the hon. Member for Leicestershire, North-West was a clear exposition of the case, and also reflects the widespread unease about the Government's proposals felt on both sides of the House, even if it has not been expressed in many speeches today, although there were some welcome contributions to that effect from Conservative Members. I sense that if this widespread unease were to be fully reflected in the Division Lobbies in a few minutes, it would be quite a shock to the Minister and his colleagues. That unease may not be fully reflected, because some Government Back Benchers will probably put their loyalty to their Government above their unease. I hope that it will be otherwise, because I am satisfied that, if there were to be a free vote of the House, there would be a majority against the Government's proposals to have 96 hours in detention without charge as the future basis of our criminal law, as expressed by the Bill.
Any hon. Member who has talked to constituents or others who have been detained without charge, even for a much shorter period than the suggested one, will know what a shattering experience it is for ordinary people. A woman came to visit me who had been detained for only two hours and who was shattered by the experience. It is an unusual individual who does not have that feeling of depression and unease and who is not shattered by such an experience of being held in custody even for a short period, yet here we are talking about holding people in custody for up to 96 hours.
I looked at the Bill to see what justification there could be for this departure from our civil liberties. The Minister may say that such a long detention period will be used only occasionally, but I take the view expressed by the hon. Member for Leicestershire, North-West that if the House passes legislation saying that 96 hours is the period permitted, it will hardly be surprising if the courts and the police say that if Parliament says 96 hours, that must be the period. There will be a dramatic increase in the number of individuals held for a longer period than they are now.
I take the wording of clause 38(1)(a) to be the justification for this proposal, as it gives two reasons for holding people for so long. One is to "secure or preserve evidence" and the second is
to obtain such evidence by questioning him".Let us examine the first one. The hon. and learned Member for Leicester, South (Mr. Spencer) talked about a complicated case of fraud and used that to justify holding people for longer than 96 hours—he mentioned seven days. We all know how complicated fraud cases may be, but to suggest that therefore it follows that people should be held in custody for as long as it takes the police to do all their investigations suggests that people should be held for 14 days or even longer. That should be unacceptble to the British people with our tradition of civil liberties—a tradition that is being eroded by the passage of this Bill.5.45 pm
The second justification is
to obtain such evidence by questioning him.To me, there is a real chill in those words. We all know, and if we do not know we should, that a period of sustained 178 questioning results in people who are innocent agreeing to sign a confession because they cannot stand the coercion of prolonged interrogation. That is a reasonable and understandable human reaction and it would take an unusual individual to withstand such pressure.Of course in most instances, and perhaps in all instances, the police will question individuals because they believe that the individual is guilty, but that is not the same as the individual being guilty, and the police are quite frequently mistaken in that belief. However, if they persist in such questioning, it is not surprising, given the provisions about which we are talking, that some individuals give in, say that they cannot take it any more and agree to sign anything that is put to them. We know that this happens because a number of cases were quoted in the House and in Committee in which individuals reacted in precisely this way.
§ Mr. CorbettWill my hon. Friend accept that even if the provisions of the draft code of practice on detention are strictly observed, it is possible that individuals detained in this way may be questioned for up to 13 hours a day?
§ Mr. DubsThat is so, and we have our reservations about the ability to enforce the code of practice if the individual who is being questioned feels that a police officer is not sticking to it. Even the code as it is contains the problem to which my hon. Friend has referred.
There is a likelihood that people will be held for questioning for a length of time. There have been a number of cases that show that people give in to such questioning. A few years ago a constituent of mine called Errol Madden was involved in a case that is so well known that I can probably just mention the details in passing. He was arrested because the police believed that he had had in his plastic bag a number of items that had been stolen from a shop. He was held in the police station not for 96 hours but for a shorter period, and was persuaded to sign a confession that he had stolen those goods.
When Errol Madden got out, it was revealed that he had in his pocket all the time receipts from the shop where he had legitimately bought the goods. There can be no other interpretation of that incident except that the individual concerned, Errol Madden, found the intimidation of questioning by the police such that he signed a confession rather than have it continue. In essence, that is our reason for being so concerned about the Government's proposal and that is why we wish to shorten the period for which people can be held in detention without charge.
I understand that informally some police forces, perhaps in London some police districts, have provisions whereby, purely under internal arrangements, they do not hold people in custody for nearly as long as the Bill suggests. Will the Minister say a little about those arrangements? If the police themselves — I have discussed this with them on a number of occasions—believe that, whatever powers they have under the law, they wish to limit the length of time that anybody can be held for questioning, that suggests that the police, although perhaps not all of them, do not believe that this power is necessary or desirable.
It will be a sorry day for the House and for the country if we pass a Bill and a set of provisions that allow us to do something that is unparalleled among Western countries and democracy. It will be a sorry day when we say that civil liberties need not count for much any more. 179 Under this Government and this Bill, we shall do something that will make us a country to be scorned and abused by other countries, because we will have sadly let down the tradition of civil liberties in which many of us believe.
§ Mr. HurdDetention without charge is a serious matter and a serious erosion of civil liberties, and therefore it is right that the Government in preparing the Bill and this House in debating it should take time to have a long and serious discussion on this matter. I believe that every hon. Member who has spoken in the debate is agreed that the present law is, to a considerable extent, vague and unsatisfactory.
Under section 43 of the Magistrates' Courts Act 1980 a person arrested without a warrant and detained in custody must be brought before a magistrates court as soon as practicable. [Interruption.] I was not expecting applause so early in the proceedings. Recent judgments in the courts have made it clear that, under that Act, two points are clear. Some Opposition Members may disagree with them, but they are a part of the existing legislation. First, the courts conclude that detention without charge is acceptable to enable the police to conduct inquiries. Secondly, the courts accept that there is no rigid time limit for this process.
Again, I must make the point, which becomes blurred as people, understandably, oppose particular provisions in the Bill—yesterday, I made this point about road checks —that we are not giving the police fresh powers in this clause. We are seeking to clarify, regulate and, to some extent, reduce the powers the police already have. For the first time, there will be an absolute time limit on detention without charge, and a process of systemaic reviews before the maximum time limit is reached. That process of systematic reviews will include two appearances before a magistrates court— [Interruption.] I concede the point that the right hon. Member for Manchester, Gorton (Mr. Kaufamn) is keen to make—that when we started this round of the Bill, there would not necessarily have been two appearances, but now there are. We agreed that in Standing Committee.
Twice, before there can be any question of detention for 96 hours, the police must come before the magistrate in the presence of the detained person and the detained person's lawyer, and twice the magistrates court must be satisfied, in terms of clause 39, that further detention is necessary. Those new elements are high hurdles and tight safeguards. For that reason, I do not agree with the conclusion reached by some hon. Members that the result of this process is likely to be an edging towards 96 hours as the average.
I accept the sincerity of the indignation of the hon. Member for Caithness and Sutherland (Mr. Maclennan), but the adjectives with which he was so free were absurd. His main indignation was against the maximum of 96 hours. He was wrong— I do not blame him for that, except that he persisted in the error—about the Royal Commission's statements. The right hon. Member for Gorton tried to rescue the hon. Gentleman, but without success. I tried to inform the hon. Gentleman that, under the Royal Commission's proposals, warrants for further detention would, in cases of necessity—only in those cases—be renewable by a magistrates court at 24-hour intervals. The Royal Commission's report contains no recommendation on an overall limit. The hon. Member for 180 Caithness and Sutherland repudiated that point with further adjectives. We are imposing an overall limit. It is too long a limit, in the hon. Gentleman's view, but it is an improvement on the present position and, with respect, on the Royal Commission's recommendations.
I ask the hon. Members for St. Helens, South (Mr. Bermingham) and for Middlesbrough (Mr. Bell) to accept one point crucial to the Government's case on this matter. The deduction made from their suggestions is that the police should prefer charges early, as soon as there is a prima facie case. That implies—I believe that both hon. Gentlemen, who have listened to the debate in Standing Committee, would accept this point—the prosecution of many people whom further inquiry might show to be innocent and the prosecution of many guilty people on perhaps insufficient evidence.
§ Mr. Berminghamrose—
§ Mr. HurdIt is crucial for the House to understand that, once there is a charge, questioning comes to an end. I shall return to that point when I consider the detail of 96 hours' detention.
§ Mr. KaufmanIf the right hon. Gentleman is allowed to continue unchallenged in his statements about the Royal Commission's recommendations, he will be doing a disservice to the record. The right hon. Gentleman is proposing up to 36 hours' detention without application to a magistrate or up to 96 hours' detention after two applications to a magistrate. That is what the Bill is stating. It is true that the Royal Commission did not impose an upper limit on detention without charge after application to a magistrate. In a way, the Royal Commission's statements were even more stringent. In paragraph 3.104 the Royal Commission stated:
persons suspected of an offence for which they have been arrested and detained must within 24 hours be released unconditionally, released on bail for further enquiries, charged and released on bail to appear at court, or charged and brought before the court that day".The Royal Commission went much further than putting an upper limit. It imposed four possibilities, in three of which the person must be released and in the fourth of which he must be brought before the court on the same day.
§ Mr. HurdThe right hon. Gentleman has conceded the point on which I sought to correct the hon. Member for Caithness and Sutherland—the Royal Commission, in talking of the necessity for renewable warrants of detention, imposed no maximum limit. That was the sole point on which I took issue with the hon. Gentleman, and on which he wrongly said that I was mistaken.
§ Mr. MaclennanWill the right hon. Gentleman allow me to intervene?
§ Mr. MaclennanOn a point of order, Mr. Deputy Speaker.
§ Mr. MaclennanI am grateful to the Minister for now giving way. He will recall that I gave way to him once. — [Interruption.] The Home Secretary has no business to interfere. He was not even in the Chamber at the time. He has absented himself throughout the debate in a most disgraceful fashion. He should make his partisan points elsewhere.
181 The point I addressed to the Minister of State was that the Royal Commission had not set an upper limit of 96 hours. I said to the Minister—he has still not dealt with this point —that he had not discharged any onus for claiming a specific 96-hour upper limit. I have refreshed my memory on what the right hon. Gentleman said on that point. He said:
Any period must be chosen arbitrarily". — [Official Report, Standing Committee E, 16 February 1984; c. 1242.]The Minister then went on to make it perfectly plain that he had no reason whatever for choosing 96 hours.
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§ Mr. HurdIf the hon. Gentleman reads paragraph 3.106 of the Royal Commission's report, he will see that everything that I have said on that matter today is strictly accurate.
In Committee I made a considerable speech in which I justified the 96-hour period, and I shall seek to do that again now. The new clause requires that the first independent review of detention by the court should take place after six hours, and not 36 hours as provided in the Bill. It is important to be clear that even a 36-hour review is a substantial improvement on the present situation. That time period is the end point of a series of progressively more demanding and more independent reviews of the need for detention by the police. Under the Bill, when an arrested person is first brought to a police station his case must be considered by the custody officer—[nterruption.] I must go through the issues, because the debate has not included much discussion of them.
If the arrested person remains uncharged after six hours, the case must be reviewed by an officer of at least inspector rank, who must be unconnected with the investigation in progress. Thereafter, detention without charge must be reviewed every nine hours until the person is released or brought before a court. By the 24-hour point, an officer of superintendent rank must have reviewed the case, and whereas under the present law detention beyond 24 hours is possible in any case which appears to the police to be serious—which is clearly a subjective test—under clause 38, the superintendent must, in order to authorise continuing detention, apply the objective test of whether the offence under investigation is a serious arrestable offence.
Thus there is a whole framework of supervision and review, which is intended to ensure that detention is controlled, and that inquiries are conducted, in the words of clause 38, "diligently and expeditiously". It is worth quoting from the Royal Commission's report when dealing with the suggestion of either a four-hour or six-hour period. The report pointed out that those who suggest such a limit—and it is suggested in the new clause—
do not appear to have based their proposals upon any close study of police work in this country but to be using proposals from elsewhere".Perhaps a quarter of all cases involve detention over six hours. A survey in the third quarter of 1982— which has already been quoted—showed that in the Metropolitan police district about 83,000 people were detained for more than six hours. Thus, the effect of the new clause would be that the London courts alone could expect an extra 80,000 or so applications for warrants of further detention each year.182 The House will agree that that would place a massive new burden on the courts without any specific advantage in return. The Magistrates Association has recently confirmed to us again its view that the 36-hour review is the right and practicable point for the courts to become fully involved in a review of detention.
§ Mr. Berminghamrose—
§ Mr. HurdI have already given way several times, and I think that the House is anxious that the debate should come to a conclusion. As usual, the hon. Gentleman has had a fair whack.
I return to the question of the absolute limit. I have spent a little time on the successive reviews of detention, because without understanding them it is impossible to understand the Government's case for the Bill. The Bill imposes a general limit of 96 hours on detention without charge. The new clause would reduce that to 30 hours. We took the view that the Royal Commission's judgment that it should be possible for the courts to renew detention at any time, as necessary, was wrong and that an open-ended scheme of detention could not command public confidence. We chose 96 hours — and I was rightly questioned about this—on the basis of actual cases, and on a judgment about the length of time in which it would be reasonable, in the light of experience, to require investigations to be concluded. We are certainly talking about only a few cases, but they are nevertheless very important.
One point is occasionally overlooked. Many hon. Members who question this provision talk as though it was simply a matter of the police sitting in a police station asking the detainee questions, and multiplying the pressure in the hope of obtaining a confession. But that was not a characteristic of the cases that we looked at when drafting the Bill. Those cases were concerned with investigations. In investigations, there is an interplay between the external investigation of alibis, for example, and the questioning of the suspect. Unless the external investigation of possible witnesses and alibis and the questioning of the person being detained can proceed, those who are probably guilty of very serious offences may be allowed to go free.
The hon. Member for Caithness and Sutherland said that I had not made out my case in Committee. However, in Committee I cited cases, which I shall not go through again, as many hon. Members heard me mention them. Last year, there was a drugs case in Manchester. Four people were held in custody for 66 hours because complicated forensic examination was necessary. If they had been released after 30 hours, they would probably have escaped the consequences of their crime. In 1981 there was a case involving armed robbery in Aylesbury. Several people were arrested. A mass of alibis was produced and it took a long time to check them all. Those involved were held in detention for 72 hours. There was also a case in Marlow in which witnesses to the alibis were themselves involved in crime. That case took a long time to clear up. Some of those arrested were held for three days, and others for two days.
§ Mr. Frank Dobson (Holborn and St. Pancras)I am not a lawyer and have not been subjected to the arguments in Committee, but surely if the police are simply investigating alibis, they can charge people, and if the alibis prove to be correct, they can drop the charges.
§ Mr. HurdThe hon. Gentleman has not been listening Most investigations include both the external investigation of, for example, alibis, and the questioning of the person held. Once a person is charged, the questioning must stop Therefore, in many cases the investigation would collapse. Hon. Members must ask themselves whether they are prepared to see investigations occasionally brought—as we are talking about a very small number of cases—to an arbitrary end, because the person detained has had to be released and so all questioning of him must be brought to an end.
We came to the conclusion that the time period should not be open-ended and that there should be a cut-off point. However, I hold to the view that if we reduced the period to less than 96 hours, the number of people guilty of very serious offences against whom no action could be taken would be increased to an unacceptable level. That is why, after much thought and renewed consideration by different sets of Ministers, we came to the conclusion that 24 hours should be the limit for detention without charge to be authorised by the police, containing within that 24 hours a series of reviews and an increasing series of difficult tests; that the case should go to a magistrates court at the 36-hour point—we have now accepted that there would have to be two sessions at the magistrates court, inter partes, with lawyers present—and that there should then be an absolute maximum of 96 hours.
In the light of real experience of policing in this country, and of the balance between safeguards for the individual and the needs of justice, we believe that those three pillars of this part of the Bill are justified, and should be retained.
§ Question put, That the clause be read a Second time: —
§ The House divided: Ayes 181, Noes 250.
186| Division No. 298] | [6.8 pm |
| AYES | |
| Abse, Leo | Clay, Robert |
| Alton, David | Clwyd, Ms Ann |
| Anderson, Donald | Cohen, Harry |
| Archer, Rt Hon Peter | Coleman, Donald |
| Ashby, David | Concannon, Rt Hon J. D. |
| Ashdown, Paddy | Conlan, Bernard |
| Ashley, Rt Hon Jack | Cook, Robin F. (Livingston) |
| Ashton, Joe | Corbett, Robin |
| Atkinson, N. (Tottenham) | Corbyn, Jeremy |
| Banks, Tony (Newham NW) | Craigen, J. M. |
| Barnett, Guy | Crowther, Stan |
| Barron, Kevin | Dalyell, Tam |
| Beckett, Mrs Margaret | Davies, Ronald (Caerphilly) |
| Beith, A. J. | Davis, Terry (B'ham, H'ge H'l) |
| Bell, Stuart | Deakins, Eric |
| Benn, Tony | Dewar, Donald |
| Bennett, A. (Dent'n & Red'sh) | Dixon, Donald |
| Bermingham, Gerald | Dobson, Frank |
| Blair, Anthony | Dormand, Jack |
| Boyes, Roland | Dubs, Alfred |
| Bray, Dr Jeremy | Duffy, A. E. P. |
| Brown, Gordon (D'f'mline E) | Dunwoody, Hon Mrs G. |
| Brown, Hugh D. (Provan) | Eadie, Alex |
| Brown, Ron (E'burgh, Leith) | Eastham, Ken |
| Bruce, Malcolm | Ellis, Raymond |
| Caborn, Richard | Evans, John (St. Helens N) |
| Callaghan, Rt Hon J. | Fatchett, Derek |
| Callaghan, Jim (Heyw'd & M) | Faulds, Andrew |
| Campbell, Ian | Field, Frank (Birkenhead) |
| Campbell-Savours, Dale | Fisher, Mark |
| Canavan, Dennis | Flannery, Martin |
| Carter-Jones, Lewis | Foot, Rt Hon Michael |
| Clark, Dr David (S Shields) | Forrester, John |
| Clarke, Thomas | Foster, Derek |
| Foulkes, George | Oakes, Rt Hon Gordon |
| Fraser, J. (Norwood) | O'Brien, William |
| Freeson, Fit Hon Reginald | O'Neill, Martin |
| Gourlay, Harry | Orme, Rt Hon Stanley |
| Hamilton, W. W. (Central Fife) | Park, George |
| Hardy, Peter | Parry, Robert |
| Harman, Ms Harriet | Patchett, Terry |
| Harrison, Rt Hon Walter | Pavitt, Laurie |
| Hart, Rt Hon Dame Judith | Pendry, Tom |
| Hattersley, Rt Hon Roy | Pike, Peter |
| Hawkins, C. (High Peak) | Powell, Raymond (Ogmore) |
| Haynes, Frank | Radice, Giles |
| Healey, Rt Hon Denis | Randall, Stuart |
| Hogg, N. (C'nauld & Kilsyth) | Redmond, M. |
| Home Robertson, John | Rees, Rt Hon M. (Leeds S) |
| Howell, Rt Hon D. (S'heath) | Richardson, Ms Jo |
| Howells, Geraint | Roberts, Allan (Bootle) |
| Hughes, Dr. Mark (Durham) | Roberts, Ernest (Hackney N) |
| Hughes, Robert (Aberdeen N) | Robinson, G. (Coventry NW) |
| Hughes, Roy (Newport East) | Rogers, Allan |
| Hughes, Sean (Knowsley S) | Rooker, J. W. |
| Janner, Hon Greville | Ross, Ernest (Dundee W) |
| John, Brynmor | Ross, Stephen (Isle of Wight) |
| Jones, Barry (Alyn & Deeside) | Ryman, John |
| Kaufman, Rt Hon Gerald | Sedgemore, Brian |
| Kennedy, Charles | Sheerman, Barry |
| Kilroy-Silk, Robert | Sheldon, Rt Hon R. |
| Kirkwood, Archibald | Shore, Rt Hon Peter |
| Knight, Gregory (Derby N) | Short, Ms Clare (Ladywood) |
| Lambie, David | Short, Mrs R.(W'hampt'n NE) |
| Lamond, James | Silkin, Rt Hon J. |
| Leadbitter, Ted | Skinner, Dennis |
| Leighton, Ronald | Smith, C.(Isl'ton S & F'bury) |
| Lewis, Ron (Carlisle) | Smith, Cyril (Rochdale) |
| Lewis, Terence (Worsley) | Smith, Rt Hon J. (M'klds E) |
| Litherland, Robert | Snape, Peter |
| Lloyd, Tony (Stretford) | Soley, Clive |
| Lofthouse, Geoffrey | Spearing, Nigel |
| Loyden, Edward | Steel, Rt Hon David |
| McCartney, Hugh | Straw, Jack |
| McDonald, Dr Oonagh | Thomas, Dafydd (Merioneth) |
| McGuire, Michael | Thomas, Dr R. (Carmarthen) |
| McKay, Allen (Penistone) | Thompson, J. (Wansbeck) |
| Mackenzie, Rt Hon Gregor | Wallace, James |
| Maclennan, Robert | Wardell, Gareth (Gower) |
| McNamara, Kevin | Wareing, Robert |
| Madden, Max | Weetch, Ken |
| Marek, Dr John | Welsh, Michael |
| Marshall, David (Shettleston) | White, James |
| Martin, Michael | Williams, Rt Hon A. |
| Mason, Rt Hon Roy | Winnick, David |
| Maxton, John | Woodall, Alec |
| Maynard, Miss Joan | Wrigglesworth, Ian |
| Meacher, Michael | Young, David (Bolton SE) |
| Michie, William | |
| Mikardo, Ian | Tellers for the Ayes: |
| Millan, Rt Hon Bruce | Mr. James Hamilton and |
| Mitchell, Austin (G't Grimsby) | Mr. Lawrence Cunliffe. |
| Morris, Rt Hon J. (Aberavon) |
| NOES | |
| Adley, Robert | Biggs-Davison, Sir John |
| Aitken, Jonathan | Blaker, Rt Hon Sir Peter |
| Alexander, Richard | Bonsor, Sir Nicholas |
| Alison, Rt Hon Michael | Boscawen, Hon Robert |
| Amery, Rt Hon Julian | Bottom ley, Peter |
| Amess, David | Bottomley, Mrs Virginia |
| Arnold, Tom | Bowden, A. (Brighton K'to'n) |
| Aspinwall, Jack | Braine, Sir Bernard |
| Atkins, Rt Hon Sir H. | Brandon-Bravo, Martin |
| Atkinson, David (B'm'th E) | Brinton, Tim |
| Baker, Nicholas (N Dorset) | Brittan, Rt Hon Leon |
| Baldry, Anthony | Brooke, Hon Peter |
| Beggs, Roy | Browne, John |
| Bellingham, Henry | Bruinvels, Peter |
| Bendall, Vivian | Buchanan-Smith, Rt Hon A. |
| Bennett, Sir Frederic (T'bay) | Buck, Sir Antony |
| Benyon, William | Budgen, Nick |
| Berry, Sir Anthony | Bulmer, Esmond |
| Biffen, Rt Hon John | Burt, Alistair |
| Carlisle, John (N Luton) | Holt, Richard |
| Carlisle, Kenneth (Lincoln) | Hooson, Tom |
| Carlisle, Rt Hon M. (W'ton S) | Hordern, Peter |
| Carttiss, Michael | Howard, Michael |
| Cash, William | Howarth, Gerald (Cannock) |
| Chapman, Sydney | Howell, Rt Hon D. (G'ldford) |
| Chope, Christopher | Howell, Ralph (N Norfolk) |
| Clark, Dr Michael (Rochford) | Hubbard-Miles, Peter |
| Clark, Sir W. (Croydon S) | Hunt, David (Wirral) |
| Clarke, Rt Hon K. (Rushcliffe) | Hunt, John (Ravensbourne) |
| Cockeram, Eric | Hunter, Andrew |
| Colvin, Michael | Hurd, Rt Hon Douglas |
| Conway, Derek | Jessel, Toby |
| Cope, John | Johnson-Smith, Sir Geoffrey |
| Cormack, Patrick | Jones, Robert (W Herts) |
| Corrie, John | Jopling, Rt Hon Michael |
| Couchman, James | Joseph, Rt Hon Sir Keith |
| Cranborne, Viscount | Kershaw, Sir Anthony |
| Crouch, David | King, Rt Hon Tom |
| Currie, Mrs Edwina | Knight, Mrs Jill (Edgbaston) |
| Dicks, Terry | Knox, David |
| Dorrell, Stephen | Lamont, Norman |
| Douglas-Hamilton, Lord J. | Lawler, Geoffrey |
| Dunn, Robert | Lawrence, Ivan |
| Dykes, Hugh | Lawson, Rt Hon Nigel |
| Eggar, Tim | Leigh, Edward (Gainsbor'gh) |
| Emery, Sir Peter | Lennox-Boyd, Hon Mark |
| Evennett, David | Lester, Jim |
| Eyre, Sir Reginald | Lewis, Sir Kenneth (Stamf'd) |
| Fairbairn, Nicholas | Lilley, Peter |
| Fallon, Michael | Lyell, Nicholas |
| Farr, John | McCurley, Mrs Anna |
| Favell, Anthony | Maclean, David John |
| Fenner, Mrs Peggy | Major, John |
| Finsberg, Sir Geoffrey | Malins, Humfrey |
| Fletcher, Alexander | Mather, Carol |
| Fookes, Miss Janet | Mawhinney, Dr Brian |
| Forman, Nigel | Maxwell-Hyslop, Robin |
| Forsyth, Michael (Stirling) | Mayhew, Sir Patrick |
| Fowler, Rt Hon Norman | Mellor, David |
| Fox, Marcus | Merchant, Piers |
| Franks, Cecil | Meyer, Sir Anthony |
| Fraser, Peter (Angus East) | Miller, Hal (B'grove) |
| Freeman, Roger | Mills, Iain (Meriden) |
| Gale, Roger | Mills, Sir Peter (West Devon) |
| Galley, Roy | Molyneaux, Rt Hon James |
| Gardiner, George (Reigate) | Monro, Sir Hector |
| Gilmour, Rt Hon Sir Ian | Moore, John |
| Goodhart, Sir Philip | Morrison, Hon C. (Devizes) |
| Goodlad, Alastair | Neubert, Michael |
| Gorst, John | Nicholls, Patrick |
| Gow, Ian | Onslow, Cranley |
| Gower, Sir Raymond | Ottaway, Richard |
| Grant, Sir Anthony | Page, John (Harrow W) |
| Greenway, Harry | Page, Richard (Herts SW) |
| Gregory, Conal | Parkinson, Rt Hon Cecil |
| Griffiths, E. (B'y St Edm'ds) | Pattie, Geoffrey |
| Griffiths, Peter (Portsm'th N) | Pawsey, James |
| Grist, Ian | Peacock, Mrs Elizabeth |
| Ground, Patrick | Powell, Rt Hon J. E. (S Down) |
| Grylls, Michael | Powell, William (Corby) |
| Gummer, John Selwyn | Powley, John |
| Hamilton, Hon A. (Epsom) | Proctor, K. Harvey |
| Hamilton, Neil (Tatton) | Pym, Rt Hon Francis |
| Hanley, Jeremy | Raffan, Keith |
| Hannam, John | Raison, Rt Hon Timothy |
| Hargreaves, Kenneth | Rifkind, Malcolm |
| Harvey, Robert | Robinson, Mark (N'port W) |
| Haselhurst, Alan | Rossi, Sir Hugh |
| Hawksley, Warren | Rost, Peter |
| Hayhoe, Barney | Rowe, Andrew |
| Hayward, Robert | Rumbold, Mrs Angela |
| Heathcoat-Amory, David | Ryder, Richard |
| Henderson, Barry | Sackville, Hon Thomas |
| Hickmet, Richard | Sainsbury, Hon Timothy |
| Higgins, Rt Hon Terence L. | Sayeed, Jonathan |
| Hind, Kenneth | Scott, Nicholas |
| Hirst, Michael | Shaw, Giles (Pudsey) |
| Hogg, Hon Douglas (Gr'th'm) | Shepherd, Richard (Aldridge) |
| Holland, Sir Philip (Gedling) | Shersby, Michael |
| Sims, Roger | van Straubenzee, Sir W. |
| Skeet, T. H. H. | Vaughan, Sir Gerard |
| Smith, Tim (Beaconsfield) | Viggers, Peter |
| Smyth, Rev W. M. (Belfast S) | Wakeham, Rt Hon John |
| Soames, Hon Nicholas | Waldegrave, Hon William |
| Speller, Tony | Walden, George |
| Spencer, Derek | Walker, Bill (T'side N) |
| Spicer, Michael (S Worcs) | Waller, Gary |
| Squire, Robin | Ward, John |
| Stanbrook, Ivor | Wardle, C. (Bexhill) |
| Stanley, John | Watson, John |
| Steen, Anthony | Watts, John |
| Stern, Michael | Wells, Bowen (Hertford) |
| Stevens, Lewis (Nuneaton) | Wells, John (Maidstone) |
| Stewart, Allan (Eastwood) | Wheeler, John |
| Stewart, Andrew (Sherwood) | Whitfield, John |
| Stewart, Ian (N Hertf'dshire) | Whitney, Raymond |
| Sumberg, David | Wiggin, Jerry |
| Tapsell, Peter | Winterton, Mrs Ann |
| Taylor, Teddy (S'end E) | Winterton, Nicholas |
| Temple-Morris, Peter | Wolfson, Mark |
| Thomas, Rt Hon Peter | Woodcock, Michael |
| Thompson, Donald (Calder V) | Young, Sir George (Acton) |
| Thompson, Patrick (N'ich N) | Younger, Rt Hon George |
| Thornton, Malcolm | |
| Townend, John (Bridlington) | Tellers for the Noes: |
| Tracey, Richard | Mr. Tristan Garell-Jones and |
| Twinn, Dr Ian | Mr. Ian Lang. |
§ Questions accordingly negatived