VOLUNTARY ATTENDANCE AT POLICE STATION ETC. (Hansard, 15 May 1984)

§ Mr. Tony Favell (Stockport)
I beg to move amendment No. 304, in page 22, line 40, at end insert— '(c) As soon as a constable has reasonable grounds for believing the relevant person has committed or has attempted to commit an arrestable offence, the relevant person shall be arrested and, if at a police station, the custody officer informed.'. The amendment is designed to give a suspect who assists the police voluntarily the same rights as a suspect who has been arrested. It will come as a surprise to many hon. Members to learn that someone who goes voluntarily to a police station does not enjoy the same rights as someone who is taken there under arrest. The reason is that part IV of the Bill provides as follows in clause 31(1): A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act. One has to be arrested to enjoy the safeguards—many Conservative Members feel that they are very generous—contained in that part of the Act. It provides for the 278 custody officer who supervises the custody of those taken to the police station under arrest, and the draft code, to which no doubt my hon. Friend the Minister will refer, applies to a large extent to those who have been arrested.
I have no doubt that my hon. Friend will refer to clause 26 paragraph (a), which provides that the volunteer shall be entitled to leave at will unless he is placed under arrest". On the face of it, that appears to give adequate protection to those who voluntarily attend a police station, but that is not so. The normal law-abiding citizen, when approached by a police officer who says, "Will you accompany me to a police station?" will reply either, if he has had no experience of the police before, "Yes, certainly," in which case he will not get the protection of part IV, or he will say, "Do I have to?", to which the police officer may say, "I shall draw my own conclusions if you are not prepared to come along with me", in which case, equally, he will not get the protection of part IV.
The only people likely to get the protection of part IV are crooks and professional criminals, who are well aware of their rights, who refuse to go voluntarily and insist on being arrested. That appears to be nonsense. The person who is not aware of his rights will not get the protection of part IV until he is placed under arrest. That could take a substantial time. I am a practising solicitor. I have had recent experience of somebody who voluntarily went to a police station and did not emerge for five days. At the end of that period, he was found innocent. Someone else was prosecuted for the offence, and found guilty. An innocent man could thus go voluntarily to the police station and possibly not emerge for five days unless and until he demands to leave. On his having demanded to leave, the police constable places him under arrest and only then is he safeguarded by part IV.
Part IV contains important time limits. A person can be kept at a police station for 24, 36 or 96 hours. Those periods do not begin to run until a person is placed under arrest. That is totally wrong, because part IV should protect the innocent, the confused and the unintelligent, not the professional criminal who will undoubtedly take advantage of it.
The Minister will probably draw our attention to the draft code of practice. It provides some help for a person who is voluntarily at a police station. It states that if a person who is attending voluntarily is cautioned, at the time of the caution he should once again be given the opportunity to leave. If he does not take advantage of that offer, possibly because he thinks that he will be arrested—no doubt rightly so—he does not get the advantage of part IV and the time limits will not start to run.
My point is extremely important and I heartily recommend the amendment to the House.

§ Mr. Ashby
My hon. Friend the Member for Stockport (Mr. Favell) drew our attention to a most important loophole in the Bill. I urge the Government to do something about it.
It is monstrous that a person, whom we might term "a goody" should be in a worse position than a criminal who is trained and knows the law. The Minister should consider the matter carefully because it drives a coach and horses through the purpose of the Bill. It will allow the weak, the naive and those who are not worldly-wise to be badly treated.
279 I can conceive of the position in which after holding a person in custody for a considerable time, it will be said that he was not arrested but had come voluntarily. It will allow the unscrupulous and clever police officer—they do exist—to take advantage of a person, who is putty in his hands, bypass the Act and detain that person for longer than he should be detained. Therefore, I am bound to support the amendment.

§ Mr. Mellor
I appreciate that my hon. Friend the Member for Stockport (Mr. Favell) holds his opinion with great sincerity, but on examining the matter closely I am not persuaded that we should accept the amendment.
The purpose of parts III and IV is to deal with the vexed question of arrest and detention at a police station and, for the first time, to erect a comprehensive structure of safeguards to ensure that a person is not detained at a police station against his will, unless it is absolutely necessary to do so. My hon. Friend made it clear that this is a carefully planned and sophisticated system. It represents a major advance in civil liberties brought about by the Bill, and all hon. Members should welcome it. It is a major advance on the present position.
The question posed by my hon. Friend, however, is rather different. In effect, he is asking that a person who is not detained at a police station and can walk out at any time should be arrested so as to enjoy safeguards against detention. With the greatest respect, I cannot follow the logic of that, as the consequences of arrest would be to remove the one benefit which the person enjoys and which clause 26 clearly spells out—the right freely to walk out of the police station at any time because he is not under arrest but is there by invitation of the police.
In my view, that would not help the person at all. It would indeed sanctify a situation about which many people have grave reservations—that of going to a police station to assist with inquiries—if that class of person were drawn into the protection which by its very nature exists to protect the interests of people who cannot freely decide to leave the police station and go home.

§ Mr. Favell
Will my hon. Friend give way?

§ Mr. Mellor
Perhaps I may first finish my explanation. Then I shall of course give way.
Clause 26 makes absolutely clear the rights of a person in those circumstances. The provision is declaratory and perhaps did not need to be there at all, but it is there to make the position clear beyond peradventure.
The code of practice makes it clear that if an officer who has someone at the station assisting with inquiries forms the view that the person may have committed the offence and is thus a suspect—he need not have reasonable grounds for believing that but merely only suspect it—he is obliged to inform the person by way of caution that he is not under arrest and to remind him that he is free to leave if he wishes and to obtain legal advice.
I appreciate that my hon. Friend has a specific case in mind, although he did not say that the case involved a Japanese national and thus may not have been entirely typical of the responses of a British citizen. Although, lamentably, not everyone is as aware of his rights as he should be, I do not believe that the House should legislate on the basis that a free-thinking citizen invited by a police officer to go to the police station is unaware that he has a perfect right to decline to do so or simply to leave if, having agreed to do so, he decides that he does not wish 280 to stay any longer. Nor can we legislate on the basis that a police officer would seek to inhibit the person from so doing. At that point, the officer must elect to move into the other part of the Bill by arresting or charging he individual, or by letting him go. Moreover, it is open to the relatives to apply for the person's return at any time or to go down to the police station and get him out.
Knowing of my hon. Friend's experience in these matters, backed up by that of my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby), if we can help in redrafting the codes of practice to see whether anything further can be said to clarify the position within the very rigid lines that I have set out where I believe that there are points of principle, we are certainly prepared to do so. Nevertheless, I believe that to take away the person's one crucial entitlement—the right to walk out of the police station—far from safeguarding the position, would not help at all.
My hon. Friend the Member for Stockport has listened patiently to my explanation. If I can assist him further by giving way, I shall certainly do so.

§ Mr. Favell
My hon. Friend has indeed assisted me a great deal. The drafting of the amendment, which is my own and not based on advice from elsewhere, provides that the person should be arrested so as to secure the safeguards under part IV because I saw no other short way of achieving that. If my hon. Friend is prepared to consider providing in the code of practice that the person should be cautioned and advised of his rights by the officer supervising his attendance at the police station—the drafting will no doubt be difficult, but it may be possible—and then given the same rights as a person who has been arrested, that would satisfy me.

§ Mr. Mellor
I am sure that there is a basis for proceeding in that way. I make it clear that I cannot accept the way in which my hon. Friend puts his case, because it is fundamentally wrong to assert that by arresting someone and thereby giving the police the power to detain him, and then setting in motion procedures whereby that detention has to be reviewed, one is giving him an advantage over the situation in which he can say that he is now off home and there is no legal entitlement of the part of the police to stop him going.
With great respect to my hon. Friend, his argument is flawed and his case is built on sand, on that point. If he wants me—given that we have already shown in the code of practice that we want to assist to clarify the position of someone who is in the station voluntarily—to explore ways to improve on that without following his suggestions, although we want to do as much as we can, consistent with the view that I have expressed, I should want to do so and would accept my hon. Friend's offer. In saying that I see that I have agitated my hon. Friend the Member for Leicestershire, North-West.

§ Mr. Ashby
The amendment says: As soon as a constable has reasonable grounds for believing the relevant person has committed or has attempted to commit an arrestable offence". There is a change from the voluntary attendance. That is the time when there must be an arrest. If my hon. Friend can put that in the code of practice, I shall be satisfied.

§ Mr. Mellor
I hear what my hon. Friend says, but I do not want to add to anything that I said in reply to my hon. Friend the Member for Stockport.

§ Mr. Favell
With that assurance from my hon. Friend that he will give further thought to the code, and his greater assurance, I beg to ask leave to withdraw the amendment.