POWER OF JUSTICE OF THE PEACE TO AUTHORISE ENTRY AND SEARCH OF PREMISES (Hansard, 15 May 1984)

§ Mr. Hurd
I beg to move amendment No. 28, in page 9, line 24, leave out 'is not' and insert 'does not consist of items subject to legal privilege,'.

Mr. Deputy Speaker
With this it will be convenient to take Government amendments Nos. 32, 33, 40, 295, 31, 35, 36, 37, 41, 46, 47, 48, 49, 86, 218, 233, 234, 239 and 241.

§ Mr. Hurd
These amendments relate to the power of entry and search that part II of the Bill provides together with schedule 1. Some were designed to clarify the scope of the powers and exceptions from them, most notably in respect of legally privileged material, on which we had a discussion in Committee. These amendments ensure for such material absolute protection.
The amendments are also to meet the concern expressed in the Committee that certain probation service records might not be covered. Other changes provide additional safeguards in respect of powers of entry and search after arrest, in clause 18, to make clear that the required record of the search should be made in the custody record of the detained person. These changes and other incorporated into this group of amendments are either minor clarifications or they respond directly to undertakings that my hon. Friend and I gave in Committee.

§ Mr. Simon Hughes (Southwark and Bermondsey)
I beg to move amendment No. 29 in page 9, line 29, at end insert— '(1A) On the hearing of every such application a person entitled to grant entry to the premises and a person entitled to grant access to the evidence shall be given notice of the application and shall have the right to be heard and to be represented by solicitors and counsel unless on an application made ex parte by a constable the justice of the peace is satisfied that any of the conditions specified in subsection 2(a), (b) or (e) below applies'. The amendment deals with the entry powers in this part of the Bill, and in particular it would place a restriction greater than that presently proposed by the Government on the circumstances in which a constable can gain access for the purpose of obtaining evidence. As at present proposed, the provision for search warrants provides for an application to a justice of the peace. If he is satisfied that there are reasonable grounds for believing that a serious arrestable offence has been committed; and that there is material on premises specified in the application which is likely to be of substantial value … to the investigation of the offence in certain circumstances, a warrant can be issued. When this matter was debated in Committee, there was much support, although sadly not enough to win a majority, for the Royal Commission's view that such applications should be made before a judge rather than before a justice of the peace. If that does not command the support of the House, the second best option is that which we are seeking. Although we welcome the Government's concession in one of the amendments that have just been dealt with, amendment No. 295, which removes one of the categories on which the JP may grant a search warrant, when a person entitled to grant entry to the premises has unreasonably refused a constable entry", we should like the other, similar but more subjective, provision removed. The appropriate premise governing the powers of the police to enter premises, and to obtain, act upon and execute search warrants should be granted under compulsion only in exceptional circumstances. The old phrase is, "An Englishman's home is his castle." That right to possession should be infringed only with the most stringent safeguards. Whereas the conditions for which 264 provision is made in subsection (2)(a) and (b) are practical requirements, there should be a satisfactory hearing about the conditions set out in subsection (2)(c) and (d) before a search warrant is granted. Both parties should be represented at the hearing of the application. The burden of the amendment is that the application for search warrants would be made by the police, but must be considered inter partes, with both parties present, so that the recipient of the police visit can put his or her point of view and be represented.
If there is not proper representation, it is impossible to know the reasons pertaining in a particular application. Entry to premises will not be granted unless a warrant is produced. The Bill proposes that the reasons given for entry to premises, which may not be granted for any number of reasons, none of which is specified. will be sufficient to persuade a justice in a summary procedure to grant the application. We believe that if the policeman or policewoman believes that entry to the premises will not be granted, the reasons for that belief should be argued. No detriment in that case is caused to the police investigation, as there might be in other cases in which evidence is secreted. The conclusion will be that entry to the premises will not be granted. That must mean that the occupant or owner of the premises has already made that point clear. There should be a hearing about the reason for that.
The Royal Commission was clear that only as a East resort should the power to search be granted against the will of the person occupying the premises in question. That circumstance should allow the use of that power—we accept that it might sometimes be needed—only when the case has been argued before a magistrate so that it can be determined with both sides putting their point of view. That is a long-standing and correct principle of English justice, and it should apply in this case.

§ Mr. Hurd
Once again we are considering the matter of balance. As the hon. Member for Southwark and Bermondsey (Mr. Hughes) knows, an application for a search warrant under clause 8 may be made only where the police have reason to believe that substantial admissible evidence of serious crime is to be found on certain premises. The Bill introduced into Parliament in 1982 provided that in those circumstances the magistrate could issue a search warrant if he was satisfied by the police application.
Our predecessors were persuaded that it was right to confine the issue of a warrant to those circumstances in which it was not possible to rely on the consent or cooperation of the person thought to be holding the evidence. The Bill provides that the conditions for the issue of a warrant set out in clause 8(2) require the police to satisfy a magistrate that it would be too risky to rely upon consent. Such a position could arise where the person thought to be holding the evidence had a strong motive for getting rid of it if the interest of the police in it became known, or if it was impossible to rely on consent. The hon. Gentleman wants to interpose a new obstacle to the investigation of serious crime. That is what it would amount to if the police, having unsuccessfully sought co-operation, were prevented from applying at once for a warrant.
A hearing inter partes is absolutely right where questions of confidentiality arise. That is one reason for the provisions in schedule 1 and for the whole definition of "special procedure" and "excluded material". There, 265 there are competing considerations to be weighed, but where, under clause 8, there is no isssue of confidentiality, we believe that the public interest is that, subject to the magistrates' approval of an application, the material evidence should be secured as quickly as possible so that it may in due course be put before the court. For those reasons, and bearing in mind that it is a question of balance, I cannot advise the House to accept the amendment.
The hon. Member for Vauxhall (Mr. Holland), who is not in the Chamber, mentioned that the might raise again the discussion that we had on a previous new clause. As I may not have another chance of doing so, perhaps I should say that in the past few minutes I have checked what I said about the Heston-Francois judgment against the concern expressed by the hon. and learned Member for Montgomery (Mr. Carlile). Once again I must stress that as a result of that judgment the inherent judicial discretion to stay the proceedings is not undermined. In the judgment it was stated that the judge was not under any general duty to conduct a pre-trial inquiry. It was the court, not I, who said that unlawful procedure was probably deserving of the activation of the police disciplinary codes. I simply cited that view.
Of course, in an appropriate case—and I should not like to comment on this case — unlawful search and seizure could lead to a civil action by the accused against the police. In addition, following the amendments that have first been accepted, the Bill precludes the police from seizing in future, legally privileged material, in the course of a search. Government amendments strengthen that protection by making it clear that in no circumstances may the police obtain access to such material without consent, whether or not under the authority of a search warrant.

§ Mr. Alex Carlile
If the right hon. Gentleman is correct and a civil action is available when such circumstances arise, what is the remedy? Is it a remedy in damages? If so, what is the damage?

§ Mr. Hurd
I cannot say that, because it would depend entirely on the case. I said that in an appropriate case a civil action would be possible.
Thus, there are three possibilities. First, there is the inherent judicial discretion to stay the proceedings. It was incorrectly said that that was undermined by the Heston-Francois judgment. We believe that it is maintained. Secondly, there is the possibility of civil action in an appropriate case. Thirdly, there is the possibility of disciplinary proceedings, which the court commended in this case.

§ Mr. Simon Hughes
I have listened to the Minister, and we are grateful for the two amendments that have helped to improve the clause. However, we are not happy that a general power is being left with the police. Contrary to the royal commission's recommendation, it is not a power that is exercisable as a result of a hearing before a judge. In Committee hon. Members were concerned that the power might be used as a rubber stamp. I anticipate that several matters will be looked at together after the conclusion of this Report stage to see whether the balance tips in the right direction. We fear that it does not, but instead of detaining the House when there are other issues that may divide us later, I beg to ask leave to withdraw the amendment.