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Lords amendment: No. 192, in page 57, line 39, at end insert—
() Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause, in any proceedings against that person for an offence—
§ Mr. Giles ShawI beg to move, That this House doth agree with the Lords in the said amendment.
The amendment is important. It allows a refusal to give an intimate sample to be used by the prosecution as the basis from which inferences can be drawn, those inferences to be capable to amounting to corroboration.
Hon. Members will, I trust, forgive me if I explain at some length the rationale behind this amendment to a clause which deals with a sensitive and difficult subject—the taking of intimate samples. At present, refusal to provide an intimate sample may, if it has been possible to bring a case before the court, be referred to as part of the prosecution evidence. If the defendant exercises his right not to give evidence at the trial that is all that can be said. Even if he does give evidence and is cross-examined on why he refused, the prosecution has to recognise that he is entitled to refuse.
Hon. Members will recall that it was agreed by the House that the present position should be altered by providing that consent to the taking of an intimate sample must be in writing in accordance with one of the main objectives of the Bill, which is to move towards carefully recorded investigations and more formal opportunities for the accused person to exercise his rights. But the requirement for written consent creates the difficulty that it may encourage the guilty to refuse, secure in the knowledge that if they are eventually brought to trial they will be at no disadvantage for having refused to cooperate. Hon. Members will know that it is often in relation to offences of the greatest gravity, of which rape or sexual assault on a child are obvious examples, that the evidence obtained from an intimate sample is most likely to be relevant.
The problem is how to ensure, so far as can be done by acceptable means, that refusal of consent does not give the guilty a virtual immunity from prosecution where the case requires evidence of that sort. The House will recall that when that was discussed in Committee there was wide support from all parties for a provision suggested by the hon. and learned Member for Montgomery (Mr. Carlile) that refusal to give a sample without good cause should be capable of corroborating the prosecution case. That is exactly what the amendment provides, as agreed to in another place. That means that it would be for the jury to determine the weight to attach to a refusal, which we believe is the best way of providing for the wide variety of motives—some, of course, wholly innocent—which might be behind a refusal to provide an intimate sample.
896 The person asked for an intimate sample might be drunk and belligerent, or he might simply be afraid of the process.
If that were explained at any subsequent trial, the jury might attach little significance to the refusal. On the other hand, where it was thought that the suspect refused because he had something to hide, the jury would be allowed to take the refusal into account as evidence against him.
§ Mr. Douglas HoggIs there any requirement in either the Bill or the amendment that police officers should draw to the attention of the defendant the fact that a failure to give written consent could amount to corroboration?
§ Mr. ShawI cannot answer my hon. Friend's question now, but will do so in due course.
I should explain to hon. Members why the amendment refers in particular to the refusal to corroborate the prosecution case. As hon. Members will know, in general the English law does not require corroboration; if testimony is given by a single witness who is believed, that is generally sufficient. In all trials for sexual offences, however, which as I have said are amongst those where, typically, evidence from an intimate sample may be crucial, the judge is obliged to warn the jury that it is unsafe to convict solely on the evidence of the complainant. If the complainant's evidence is not corroborated, a charge of rape, for example, may well fail.
In those circumstances, it seemed to the Committee of this House, and to the Committee in another place, important that it should be open to the jury, if it thinks fit, to attach virtually the same weight to the refusal as it would to evidence from an intimate sample that directly implicated the defendant. I hope that the House will agree to the amendment.
§ Mr. AshbyWe have come a long way in this clause. In the early 1960s, when I was first called to the Bar, we had drunken driving offences. The new breathaliser laws were introduced by Barbara Castle, and I remember the uproar throughout the country because someone was being forced to give evidence against himself, which was contrary to the law as we knew it. Any refusal to give a sample was construed in the same way as this amendment will be construed—against the defendant. It was justified because there was a great deal of drinking and driving that resulted in accidents and deaths. It was thought to be a motoring offence rather than a serious offence that would involve the liberty of the subject.
This clause is to be used for criminal, not driving, offences and therefore involves the liberty of the subject. Hitherto, people had been allowed the right to silence. Hitherto, a defendant had been allowed to say to a police officer, "You make these allegations against me, so you must prove them." Now the police officer can say, "We want to take a sample from you and if you refuse to give one that can be taken as evidence against you and the jury can consider that evidence."
§ Mr. Douglas HoggMy hon. Friend has made an important statement—that a police officer can tell the defendant that a refusal wall constitute corroborative evidence against him. I was searching for that provision in the Bill, and if my hon. Friend can find it, that would be a great help.
§ Mr. AshbyThe provision is not in the Bill. My hon. Friend raised a point with my hon. Friend the Minister 897 earlier about an officer warning a motorist that refusal to give a sample could result in that being used as evidence against the motorist, but that point does not appear in the Bill. However, it is contained in a printed form which police officers have as part of their administrative duties. The form sets out the formula through which they have to go when somebody is breathalysed under the Road Traffic Acts. I foresee that, as a result of the Bill, the form that the police use at the station will be a complex but readily understood document that will go from one stage to the next. I hope that it will contain some formula along the lines of the station sheet for motoring offences. The arrested person will have to give a sample, but if he does not it will be construed as evidence against him.
That is the simple way to do it and I expect that the Home Office will produce such a document. Legislation is not needed for such a form, but I hope that one will be incorporated. There must be a personal station sheet that will have such directions for the police officer, custody officer or whoever is responsible. The officer will be able to go through the formula from one stage to the next, so no mistakes will be made. There has been much talk about the complexities of this Act, but I think that in practice there will not be so many complexities if the Home Office considers carefully, as no doubt it will, the way to provide the best kind of station sheet, and one that will be uniform for everyone.
We are taking a serious step with this clause. It touches on a fundamental point to do with the way in which British justice is administered. No man should have to give evidence against himself. Some of the offshoots of British law, such as American law, enshrine such a right in the constitution. If this clause were enacted in the United States of America, there would be a furore.
§ Mr. Douglas HoggIs not my hon. Friend in a dilemma? On the one hand he said that this is a profound move that greatly diminishes the rights of the individual, while on the other hand he says that it is sufficient, by a procedural device, to introduce the principle that refusal to give a sample will be corroborative evidence. If there is such a profound change, should there not be a statutory requirement, if not in this Act at a later stage, to bring to the notice of a defendant the fact that refusal will be used as corroborative evidence?
§ Mr. AshbyMy hon. Friend should be addressing that question to the Minister, and I am not the Minister. If it was considered in 1967 that such a provision did not require a legislative basis, there will not be any more need for it in 1984 when we have seen so much erosion of our rights and civil liberties. It is now becoming accepted practice that failure to give evidence can be taken as evidence against someone. I suppose that I must accept that at the end of the day, but I hope that the House will be fully aware of what it is being asked to accept. It must understand that it is being asked fundamentally to change the criminal law.
§ Mr. Michael Howard (Folkestone and Hythe)Does my hon. Friend think that justice is the more likely to be done if the amendment is agreed to or if the existing law continues?
§ Mr. AshbyI accept the amendment, but if the House is to accept it, it must do so with its eyes open.
§ Mr. Douglas HoggThe amendment represents an important change in the law and it is one which I welcome, subject to the proviso that I have just made to my hon. Friend the Minister of State. In the generality of cases, intimate samples will be taken only when the person concerned is accused of a serious offence; for example, rape. We have been reminded that the consent must be in writing. It would be intolerable if a suspected person could frustrate the process of the law by refusing to give consent without there being any sanction attached to that refusal. It would be especially intolerable in cases such as rape, where there are frequently very few witnesses, and sometimes only the complainant, and, as a matter of principle, the complainant's evidence must be corroborated.
Once the requirement of consent is introduced the individual is being given the opportunity, unless we accept the amendment, of frustrating the main thrust of the Bill. Therefore, I welcome the proposition that a refusal to give consent should be treated as corroborative evidence. That is extremely sensible. I for one have never believed in the rule of silence. If a defendant refuses to give evidence, that, too, should be corroborative.
I am concerned that there is nothing in the Bill or the amendment to bring this important exception to the individual's attention. My hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) knows all about the 1967 legislation, but not everyone who appears in a police station has that knowledge. Moreover, my hon. Friend relies on the pro forma document, but those who appear in police stations are often confused, drunk or in some other way incapable. I would not expect them to read the pro forma document, and in the confusion of the moment the police officer might not make the requirement absolutely clear.
If we are to change the law in such a marked way, the consequences of not giving consent should be brought to the attention of the person required to give it. I am not going to stand in the way of the passage of the amendment, but I shall be greatly comforted if the Minister will say that he regards my point as important, that he will reflect upon it and that if necessary he will consider what legislative steps can be taken in another place or on another occasion to meet it.
§ Mr. LawrenceMy hon. Friend has told us that he has never believed in the rule of silence. I must welcome his voice back to the Chamber, he having drifted in and out of Hades. Now that he is no longer a Whip, he is making substantial contributions to our debates.
My hon. Friend is saying that there must be more provision in the Bill to warn someone that corroboration might be created if he refuses to consent to give a sample. Is he not tilting at a windmill? A person must be warned if it is an offence to refuse to give a sample, as in the drink-driving legislation. The amendment states:
Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause".Surely it would be the best possible cause for establishing grounds for a refusal if an ignorant person were not told that if he refused to give the sample some harm might befall him. Furthermore, the amendment goes on to say, not that that refusal is an offence, but that the courtmay draw such inferences from the refusal as appear proper".899 Is there not, on the face of the amendment, an adequate deterrent to a charge being based upon the failure to allow the intimate search, when it is clear that such a charge will not prevail because of the absence of good cause and because of the court's discretion to deal with the matter as is proper in all the circumstances?
Mr. Deputy SpeakerOrder. The hon. Member has addressed the House once on this subject. He cannot do so twice.
Mr. Deputy SpeakerIf that was an intervention, I hope that the hon. and learned Member for Burton (Mr. Lawrence) will not inflict a speech on the House. More than once tonight, I have reminded hon. Members that interventions have been overlong. I had assumed that the hon. Member for Grantham (Mr. Hogg) had concluded his remarks.
§ Mr. HoggMr. Deputy Speaker, I specifically gave way to an intervention. I was on my feet and I gave way.
§ Mr. LawrenceMr. Deputy Speaker, I take this opportunity to apologise for delivering what you thought was a speech. Often my interventions are much longer than my speeches, and I profoundly apologise.
Mr. Deputy SpeakerI accept the hon. and learned Member's apology. I shall, however, certainly bear his remarks in mind when he seeks to catch my eye in the future.
§ Mr. HoggThat sounds remarkably like a threat. I am grateful to my hon. and learned Friend for his kind words to welcome me back. His point has much force, but I counter it by saying that if we introduce a piece of legislation which imposes penal consequences—however the amendment is viewed, it imposes a penal consequence because it gives rise to the existence of corroborative evidence where there previously was none—then, as a matter of principle and of justice, the consequences of the omission must be brought to the attention of the person who is asked to provide consent. That is desirable, and I hope that my hon. Friend the Minister of State will reflect on what has been said on this issue.
§ Mr. Derek Spencer (Leicester, South)My hon. and learned Friend the Member for Burton (Mr. Lawrence) made an intervention which appeared to be a speech. If I make a speech which appears to be an intervention, I hope that there will not be any objections.
I am surprised at how long the defendant's right to obstruct the course of justice by refusing to provide an intimate sample has survived in our law. I think that any outside observer would be amazed to learn that that measure has not been laid to rest before now. I therefore welcome the amendment. Although my hon. Friend the Minister of State appears to be impressed by the arguments of my hon. Friend the Member for Grantham (Mr. Hogg), I hope that, on more mature reflection, he will not allow himself to be persuaded by them.
If we accept my hon. Friend's suggestion and reach the stage where a defendant has to be warned that failure to supply an intimate sample is capable of being regarded as corroboration, where does the argument stop? In justice, 900 should the defendant not be warned also that if he tells a deliberate lie that is capable of being corrobation? Should he not be dissuaded from indulging in all sorts of other conduct which under present law is capable of being regarded as corroboration? On mature reflection, my hon. Friend the Minister may come to the conclusion that the amendment as drafted amounts to sufficient justice and may be well advised to leave it exactly where it is.
§ Mr. Giles ShawWith the leave of the House, Mr. Deputy Speaker, may I respond to the cogent point of my hon. Friend the Member for Grantham (Mr. Hogg) with support from other of my hon. Friends?
I make no apology for describing the amendment as important. The debate has made that abundantly clear. My hon. Friend the Member for Grantham asked whether the person from whom the sample was requested was to be informed of the possibility that a refusal would be put in evidence. That is not plain on the face of the Bill, as my hon. Friend pointed out. I can give him the reassurance that he seeks. We intend to include this reference in the next draft of the code of practice. It will require the police to warn a suspect of the consequences of refusal.
The suggestion that a warning be prescribed came not just from my hon. Friend the Member for Grantham but from the Lambeth police community consultative group which has made a substantial and praiseworthy contribution to the improvement of the Bill. I give my hon. Friend the assurance that he seeks, and I assure the House that if it accepts the amendment, as I trust it will, it will be accompanied by at least a definition that the corroborative quality of the refusal will be notified to the person making it.
§ Question put and agreed to.
§ Lords amendments Nos. 193 to 196 agreed to.