Confessions by mentally handicapped persons (Hansard, 29 October 1984)

§ Mr. Mellor
I beg to move, that this House doth agree with the Lords in the said amendment.
The purpose and effect of the amendment, which was moved by the Government and agreed to in another place after substantial debate and consultation, is to acknowledge the need for special protection for the mentally handicapped in the case of a confession made in the absence of an independent adult.
I hope that this move will be greeted warmly by right hon. and hon. Members on both sides of the House.

§ Mr. Eldon Griffiths
I should declare an interest in that I am chairman of a large international charity that provides sport and recreation for the mentally handicapped. I refer to the body known as Special Olympics. I have frequent contact with mentally handicapped persons. Equally, the House knows of my affiliation with the police service. Therefore, I feel capable of discussing this amendment from both the point of view of the mentally handicapped and from that of the police who frequently have the difficult and sometimes distressing task of interrogating those who, for one reason or another, are unable to look after themselves.
Over recent years, to my knowledge, police forces in the north, the midlands and the south, especially London, have given great assistance to mental handicap charities, particularly in competitive sport. What the police do for the more unfortunate members of our society is frequently ignored.
1035 5.45 pm
It is right that the House should take on board that this amendment, reflecting to some extent what Ministers said in Standing Committee, works by way of the draft codes of practice which are published with the Bill. The clause triggers off the procedures governed by the small red book which will become part of the operating practice of the police service.
It is a good clause. It has very laudable objects which the House should welcome. However, there are one or two inconsistencies. Let me read the relevant subsection of the amendment. According to subsection (1)(b) the court must be satisfied that the person who has made the confession is mentally handicapped and that the confession was not made in the presence of an independent person". I wish to know what that means and how it is to work. It is annex C of the guidance which determines exactly who is "an independent person." In annex C we are dealing with urgent interviews. I hope that the Minister is aware of what his own draft codes of practice say, although I note with some concern that he does not appear to have the relevant passage before him. If so, it is quite extraordinary.
The code of practice which the police service will operate and which is triggered by the clause says that, in the case of an urgent interview, If and only if an officer of the rank of superintendent or above considers that delay will involve an immediate risk of harm to persons or serious loss of or damage to property … an arrested juvenile or a person who is mentally ill or mentally handicapped may be interviewed in the absence of the appropriate adult. There is nothing there about the independent person. In the statute it is provided that the independent person must be there. In the code of practice we have a different provision.
The House is entitled to a proper explanation. Otherwise those who must apply the law will wonder which is the master brief. That is relevent, and I hope that my hon. Friend will address himself to it. He ought to clarify the position.
Moreover, it appears that to protect the mentally handicapped there will, in effect, be two separate screenings. There will be two methods by which the mentally handicapped will be protected from improper search for a confession. The first screening is the independent person; or, if there is not an independent person available and the matter is urgent, a certificate must be produced by a police superintendent. The second screening is the trial procedure, and that is outlined by the amendment. The court will have to be satisfied that the mentally handicapped person did not make a confession, save in the presence of an independent person.
The police will have to respect those two screens. However, what is not apparent are the circumstances in which the first of the two screens will apply. It is proper that the House should have an explanation of the precise circumstances in which the certificate of the superintendent is sufficient and the circumstances in which there must be an independent person present.
A further question concerns who this independent person is to be. There is no definition in the statute. I have worked with mentally handicapped people. At the weekend I attended a large meeting in Gloucester of 300 or 400 mentally handicapped children. I was impressed to see them competing with each other and enjoying themselves. We all wish to protect them. But it is very 1036 important that those who have charge of mentally handicapped people—their parents or others, people from the adult training centres or from MENCAP —know exactly what is the position if, for one reason or another, someone in their care comes into the custody of the police and is subjected to interrogation, as a result of which he or she makes a confession.
Who is the independent person who must be present, as the statute will require, in order for the confession to be regarded by a court as legitimate? Is it to be a magistrate? I would suppose not. That would be too complicated. Is it to be any—dare I say—Tom, Dick or Harry that the police or anybody else can dredge up from the streets? That would not be sufficient. The independent person must know something about mental handicap and the reactions of mentally handicapped people under the pressure of interrogation, with all the risks of a false confession being produced.
There is a further point on which the House should demand an explanation. Mental handicap is not simply one thing. It is an enormous range of different sorts of problems. On the one hand, is the child affected by Down's syndrome. Everyone knows the problems involved. There are other more severe problems that have behavioural consequences—psychotic problems, and so on. Simply to say in statute that the police must find an independent person is not sufficient. There must be a guarantee that the independent person at least has a clue about the clinical and behavioural aspects of the mental illness or handicap from which the child in question is suffering.
None of those matters is spelt out properly in the code of practice, but the police will be expected to apply it. Those matters are not spelt out in the Bill, and, as I have said, there is a distinction between what is said in the Bill and what is contained in the code of practice.
I know that the House wants to make progress. So do I. I have been involved in the Bill too long to want to hold it up on this account, but it is insufficient for the Government simply to come in with the notion of an independent person to guarantee that a confession shall be admissible in the courts without saying who that independent person shall be or at least what shall be his quality, calibre and character and the circumstances in which he will be regarded by a court of law as acceptable for the purpose of guaranteeing that a confession was properly obtained.

§ Mr. Mellor
With the leave of the House, I should like to speak again.
My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) has laboured mightily to find some points to make on the clause—

§ Mr. Eldon Griffiths
I did not labour mightily.

§ Mr. Mellor
Perhaps my hon. Friend will forgive me for saying that he is becoming a little querulous before the point at which he gave us notice that he would be querulous. I am sorry that he thought that I did not have with me the code of practice to which he referred. I did bring it with me through prescience that he would raise the points that he made in his speech.
The point is that, after we considered what was said in the other place about the vulnerability of mentally handicapped people, it seemed appropriate that we should make arrangements for the special protection of mentally 1037 handicapped people. There were difficulties of definition in some areas of mental illness—in fact, the concept of mental illness was removed from the clause. My hon. Friend will see from subsection (3) of the new clause that "mentally handicapped" is defined as meaning that a person is in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning". It is easier to determine the views of those qualified to deal with mental handicap than of those qualified to deal with mental illness, which can involve more subjective criteria.
In relation to the code of practice, my hon. Friend will be aware that all that is required under clause 73 is that the judge, in summing up, should issue a warning to the jury as to the special care that it needs in assessing a situation where for one reason or another—which may be a good reason; as set out in annex C to the code, or not such a good reason—the interview has been conducted in the absence of an independent person. Then the jury should be careful to look at other evidence before determining whether to convict. It is not an exclusionary clause. Therefore, in my respectful submission, the conflict between clause 73 and the code of practice does not arise, but in so far as it may be necessary to clarify matters in the code, I think that it is fair to say that I have made it clear, as has my right hon. and learned Friend the Secretary of State, that these are drafts and these matters can be looked at again so that there is the maximum correspondence between them.
An independent person is defined negatively in subsection (3) as being someone who does not include a police officer or a person employed for, or engaged on police purposes". It is necessary to have the concept of an "independent person" in relation to mental handicap. While my hon. Friend mentioned mental handicap in the context of children, it can apply to people of any age. It would not be appropriate, as in the case of a juvenile, to specify that it must be a parent when one may be dealing with someone of mature or advanced years. An independent person is someone who is not involved in the investigation of offences. As I said to the House, we are ready to engage in any further discussions that are necessary to deal with those questions in the code. I dare say that the definition of an "independent person" will be expanded in the fresh draft as a result of points that have been made to us.