Police and Criminal Evidence Act 1984

HC Deb 27 July 1988 vol 138 cc444-63 5.52 pm

The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg)

I beg to move, That the Police and Criminal Evidence Act 1984 (Codes of Practice) Order 1988, a copy of which was laid before this House on 13th July 1988, be approved. This is a short debate and I should like to focus on five issues and then try, at the end of the debate, to deal with points made by hon. Members.

I wish first to emphasise the distinction between the codes of practice order which we are debating now and orders that will be laid subsequently under section 60(1)(b)of the Police and Criminal Evidence Act 1984. The code that we are debating is laid under section 67(5) of that Act and it is the code referred to in section 60(1) (a). The code regulates the manner in which the taping of interviews takes place. The code does not of itself make the taping of interviews mandatory. The taping of interviews is made mandatory by orders made under section 60(1)(b), none of which has yet been made.

Secondly, I should like to describe the Government's approach to taping. The Government have decided that the entire interview should be taped, but in the great majority of cases the courts will have before them a written summary of interviews. There will be a master tape. There will also be a second tape—the working tape—which will be the source of all copy tapes and any transcripts that may be ordered. In appropriate cases, which I anticipate will be fairly rare, transcripts will be available. This approach has been tested for two years in six trial areas, and the process was overseen by the national steering committee. The conclusions of the trial have been reported and show that our approach is practicable and beneficial.

Thirdly, I should like to consider the introduction of taping under orders that will be made under section 60(1) (b) of the Police and Criminal Evidence Act 1984. We intend to phase taping in over five years. We hope and intend that it should be standard practice by the end of 1991. By the end of this year, we expect taping to be prevalent throughout 10 force areas and to be used in all force areas. We anticipate that we shall lay commencement orders, if I may so describe them, in the coming Session.

Fourthly, I should like briefly to mention the effect of breaches of the code. There are two significant effects which the House would like to bear in mind. Non-compliance with the code constitutes a disciplinary offence. That is provided for in section 67(8) of PACE. In appropriate cases, non-compliance with the code could lead to the exclusion of all or part of the interview evidence. It depends on the exercise by the judge of his discretion.

Fifthly, I should like to consider terrorism and cases brought under section 1 of the Official Secrets Act 1911, which are those that concern espionage. Hon. Members will have noted that those categories of offence are exempted from the code. We do not intend, at least for the moment, that they should be subject to the taping requirements. There are two reasons which need to be mentioned. First, they were not the subject of any trials. That is not the substantive objection, however, which is that we fear that if the full tape was made and its contents became available to terrorist organisations it would compromise national security. We also fear that if an interviewee saw that the entire interview was being taped, that interviewee would be reluctant to proceed with the giving of information.

Mr. Gerald Bermingham (St. Helens, South)

What the Minister has just said will create considerable alarm among many practising lawyers because the implication is that, if transcripts of interviews in terrorist investigations are not made available to the defence, there must be some secreting of information about interviews. Moreover, the purpose of taping is to have a true and accurate record of what is said in an interview. Why should a terrorist trial, which is a criminal trial in another form, be treated any differently?

Mr. Hogg

I refer the hon. Gentleman to the provisions of paragraph 3.2 on page 2 of the code. He will see that only some terrorist trials are excluded from the scope of the taping requirement. In very broad terms, IRA and Northern Ireland related cases are excluded from the scope of the taping requirement, as are cases involving international terrorism. However, United Kingdom oriented terrorism, other than cases with a Northern Ireland dimension, are subject to the taping requirement. That should make the position factually plain.

On the specific point raised by the hon. Member for St. Helens, South (Mr. Bermingham), we must make a judgment about what is in the national interest. In the course of any interview between a terrorist of the kind to which the code refers, and to whom I am directing my remarks, and the interviewing officer, the interview will be prolonged. It is quite probable that the interviewee will disclose many matters which we would not wish terrorist organisations to know—for example, his sources.

Let us assume that there is a full tape recording of the interview which contains much sensitive material, in particular about sources, possible leaks or possible plants within, for example, the IRA. Our fear is that that tape could become known to a terrorist organisation. Although the vast majority of lawyers are wholly honest, we cannot exclude the possibility that some may deliberately, or under duress, be induced to give information to terrorist organisations. We must guard against that. In essence, that is the justification for the restriction to which I have just referred.

Mr. Alex Carlile (Montgomery)

Does the Minister agree that, in existing circumstances, if someone is interviewed for a terrorist offence, at the very least a contemporaneous record of the interview will be kept? The whole of that record will be disclosed to the defence lawyers unless there is misconduct on the part of police officers in concealing part of it or misconduct by the Crown Prosecution Service—which is most unlikely to happen. What distinction can be made between keeping a contemporaneous record and making a tape recording? Bearing in mind problems with regard to interviews in the Birmingham pub bombing case and other cases, does he agree that a tape recording is a much surer way of giving true evidence to the court?

Mr. Hogg

I asked myself that question. The answer is that the premise is not wholly sound. As the hon. and learned Gentleman will be aware, guidelines are issued by the Attorney-General which permit the editing of such information held in contemporaneous documents. That is more easily done than editing tapes.

The nature of contemporary records means that they are directed to things that are regarded as probative and relevant. Therefore, it is quite common for the contemporary written document not to be an inclusive record of the interview because those making the written record take the view that much of the "sensitive" material is not admissible, probative or relevant. Therefore, that material would not necessarily have to be included in the written account. If the defence counsel took a different view and wanted to bring before the court material not included in the written record, that would be possible through cross-examination. Although I often share the hon. and learned Gentleman's views, on this occasion I believe that he is mistaken.

Sir Eldon Griffiths (Bury St. Edunds)

My question is diametrically opposed to the points raised by the hon. Member for St. Helens, South (Mr. Bermingham) and the hon. and learned Member for Montgomery (Mr. Carlile). My hon. Friend the Minister is right to want to safeguard national security by some method of exclusion. However, the worst method of exclusion would involve editing tape. I am glad therefore that my hon. Friend has set his face against editing tape. If that were to happen, it would compromise the whole taping integrity that we are seeking.

How on earth is the ordinary police officer conducting a taped interview to distinguish between terrorism which, although taking place within the United Kingdom, is connected with Northern Ireland and terrorism that involves the affairs of the United Kingdom but not Northern Ireland? That is an almost impossible distinction for an officer to make.

Mr. Hogg

I thank my hon. Friend for his support. I believe that trying to resolve the problem by editing tape is extremely undesirable.

We could approach the problem by taping a summary of the evidence which would be read over at the end of the interview. That summary would be taped. As the hon. and learned Member for Montgomery (Mr. Carlile) will recall, the Royal Commission on criminal evidence and procedure, which originally recommended taping inter-views, recommended taping a summary, not the entire interview. The Government have gone beyond the Royal Commission's original recommendation. We intend to explore methods of resolving the kind of difficulties to which both the hon. Member for St. Helens, South (Mr. Bermingham) and the hon. and learned Member for Montgomery have drawn attention without resorting to taping the entire interview.

I want to deal with the difficult point raised by my hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths). The definitions are included in paragraph 3.2 on page 2 of the code. I notice that my hon. Friend the Member for Bury St. Edmunds is holding a copy of the code. That paragraph is clarified to some degree by the notes to that section and will be further clarified by training and the circular that we intend to issue to the police service.

My hon. Friend the Member for Bury St. Edmunds will bear in mind the fact that the procedure will apply at a fairly senior level because we are talking about a small number of very serious offences. I believe that senior officers will readily be able to make the distinction. I accept that the definition in paragraph 3.2 needs reading several times to master its meaning. However, once one has grasped the meaning, its practical application will not be difficult.

Sir Eldon Griffiths

I apologise for intervening again. By raising the matter now, I hope that I can shorten my contribution to the debate.

My hon. Friend the Minister will be aware that, as a matter of practice, when a police interview of this type is being conducted, information emerges, much of which may be unknown to the police officer at the commencement of the interview. While the officer is pursuing inquiries related to a suspected terrorist offence affecting a Northern Ireland matter, during the interrogation matters pertaining to other types of terrorist offences may emerge. For example, information may arise about the middle east. We all know about Libyan arms going to Northern Ireland. Alternatively, matters may arise affecting this country, for example, the potential assassination of a Minister or a member of the royal family. No police officer can make that judgment at the commencement of the interview. However, the definition requires him to make that kind of judgment. That is impracticable.

Mr. Hogg

Plainly the House will listen with great sympathy to any point made on this subject by my hon. Friend the Member for Bury St. Edmunds. He has a wide experience of these matters. However, I think that he is wrong. I do not deny that one could construct a case in such circumstances. My hon. Friend has a fertile and imaginative mind and I have no doubt that he could do so. In the majority of terrorist cases, one has a shrewd idea of the nature of the offence and whether it is related to Northern Ireland or Libya or whether it is a United Kingdom-directed act of terrorism that is unconnected with Libya or Northern Ireland. It is a mistake to suppose that police officers embark on an interview without having a pretty shrewd idea of the nature and motives of the terrorist organisation that they are investigating.

I recognise that there may be a difference of opinion on this issue, but I hope that the Government's approach is right in principle and practicable in its application. That is my belief, but clearly the House will wish to consider carefully what my hon. Friend has said.

Mr. Tim Rathbone (Lewes)

Is it the Government's intention that people suspected of being involved in drug smuggling should be included in the category of international terrorism? No doubt there are strong links between those involved in drug smuggling and international terrorism. Many people—I would be one of them— would describe international drug smuggling as a form of terrorism because it cuts to the root of every community and some nations' ability to rule. If that did not occur to the Government when drawing up the rules, as my hon. Friend develops the application of the rules, will he consider whether they should embrace drug peddlers?

Mr. Hogg

I commend to my hon. Friend the text of paragraph 3.2 of the code of practice. A narrow meaning is there given to the word "terrorism". That narrow meaning derives from section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984. It is defined thus: 'Terrorism' means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear. The proper answer to the question asked by my hon. Friend the Member for Lewes (Mr. Rathbone) is that one must determine the primary purpose behind the offence. If it is drug smuggling, it is not a terrorist offence, even though by a process of seepage it may ultimately benefit a terrorist organisation. If the primary purpose and character of the offence being investigated is terrorism, the exclusion or inclusion applies. One must ask, "What is the purpose or character of the offence being investigated? I make a final point to my hon. Friend the Member for Lewes, and it is relevant to the question asked by my hon. Friend the Member for Bury St. Edmunds. The effect of a failure to comply with the code or rules is not fatal to the prosecution, nor should it result in the interviewing officer facing criminal proceedings. Either it could constitute a disciplinary offence, or it could trigger the exercise of a discretion by the trial judge to exclude all or part of the evidence. In the circumstances described by my hon. Friend the Member for Lewes, the discretion would not be exercised in favour of the defendant.

I have spoken for longer than I intended because a number of specific and technical questions have been asked. I hope that the House will forgive me for having spoken at such length. I intended briefly to introduce the code and to reply later to the specific questions asked by hon. Members.

6.14 pm

Mrs. Ann Taylor (Dewsbury)

Labour Members welcome the introduction of the code of practice, which should lead to better protection for the suspect and the provision of an accurate record of events during police interrogation. I agree with the Minister that the entire investigation should be taped. I hope that he will agree that problems would arise if, for example, an interview of a terrorist were to be partially taped.

Although we agree with the general principle of the order, a number of questions need clarification and we have some concerns. Our first concern, which the Minister rightly foresaw, is about the exemptions in the proposals. Interviews of suspects held under the Prevention of Terrorism Act 1974 or section 1 of the Official Secrets Act 1911 will not be recorded. I did not find the Minister's remarks on that matter very reassuring, and the points made by the hon. Member for Bury St. Edmunds (Sir E. Griffiths) and the hon. Member for Lewes (Mr. Rathbone) about the difficulties of interpreting paragraph 3.2 of the guidelines were valid. It will be difficult to prejudge the intentions behind a crime in the way that the Minister suggested.

One point of hope arose from the Minister's remarks. He said that the guidelines will include those exemptions at least for the moment. That perhaps implies that the Government have an open mind on the issue, but I should have thought that if the Minister was seriously considering the matter he would make an announcement about possible field trials if that is why the exemptions are not being included at present.

Suspects questioned under the Prevention of Terrorism (Temporary Provisions) Act 1984 are held under draconian powers. They give much scope for abuse, yet the Minister said that suspects will have fewer safeguards. Suspects held under the Act are held for longer than other suspects and can be denied access to legal advice for 48 instead of 36 hours under the Police and Criminal Evidence Act. If the arrest and detention powers are exceptional, Labour Members would argue that the safeguards should be more, not less, stringent.

If the Minister is concerned about the sensitive nature of information likely to be contained in the interview of a suspect held under the Prevention of Terrorism Act or section 1 of the Official Secrets Act 1911, surely measures could be taken to protect that information other than by denying a safeguard on a blanket basis. As hon. Members who are legal practitioners said—they are always keen to speak in these debates—tape recordings will merely be a more efficient method of note taking. Surely there is more need for true and accurate records when problems arise under the Prevention of Terrorism Act than when they arise in normal trials. The Minister should have acknowledged that if there is discussion about the validity of interrogations difficulties may arise. The hon. and learned Member for Montgomery (Mr. Carlile) said that difficulties in the Birmingham Six and the Guildford pub bombing trials might not have arisen if there been tape-recorded interviews.

As well as the points of principle, there are practical but perhaps minor points that I hope the Minister will consider. One of the practical problems with the guidelines is the provisions for deaf people who are being interviewed and interrogated by the police.

We have been approached by the Royal National Institute for the Deaf, which is concerned about some of the implications for deaf people. Reading paragraph 4.4 of the guidelines, I can see potential problems. The RNID is particularly concerned about two matters. First, the profoundly deaf generally use sign language, and the RNID is concerned that there should be a proper recording of what the deaf person has said or communicated. Therefore, it is recommending that such interviews should be videotaped rather than tape recorded. Has the Minister considered that aspect, as videos are being considered for other purposes? We discussed the point in the Standing Committee on the Criminal Justice Bill.

In paragraph 4.2c. there is a requirement that any persons in the room during the interview should identify themselves, so any sign language interpreter would be required to do the same. The RNID recommends that the person be required to state the degree of his qualification, so that the suspect, or his or her representative, will have the opportunity to request a more qualified interpreter, should that be found necessary. There are many letters of qualification for interpreters, and, like anyone else, deaf people should have full confidence that what they are saying is being interpreted correctly.

Will the Minister consider whether the latest equipment for deaf people could be adapted for this purpose? All hon. Members have seen my right hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) use the technical magic box to read what is being said almost as soon as it is said. He can follow the proceedings of the House, and I wonder whether such equipment could be used when deaf people are being interrogated and interviewed by the police.

There are concerns, some of which relate to the access of solicitors to the taped interviews. Solicitors should be allowed to hear an interview or part of an interview that has taken place before they have had a chance to advise the client. For the solicitor and for the accused, it may be extremely important that the solicitor knows exactly what has taken place before his or her arrival and the advice of the solicitor may be dependent on hearing what has gone on. If tape recordings exist, it would seem sensible to allow solicitors access to them. There may be occasions when that would not be possible or practical—for example, if there were a kidnapping inquiry, or somebody's life was thought to be at risk if the interrogation did not continue swiftly. In those circumstances, it would be foolish to insist on the solicitor's right to hear the tape taking precedence over anything else. However, the norm should be established that solicitors should have access unless there are good reasons to the contrary.

Has the Minister considered allowing solicitors to take their own tape recorders into interviews? Obviously, solicitors will take notes, but if the proposed new method is to be used for the police, it could also be used by solicitors. That might increase confidence in the system and reduce requests for access to tapes later—a point that concerns the Minister.

The code does not allow access to the tape recording of interviews where the case is not proceeded with, or charges are dropped. I hope that the Minister will clarify why he does not intend to provide such access. It is important that he does so, because it might be useful to have a record, especially if allegations were made later about the conduct of the police during that interrogation. We also want to know what provisions there might be for the destruction of any tape recordings that are made when the suspect has been released or the charges withdrawn. I hope that; the Minister will be able to clarify these important points.

Field studies have shown that requests for full transcripts are infrequent, and, generally, the provision of a summary is sufficient for both sides, although there has to be agreement between both sides, because it is important that the defence and the prosecution agree the contents of any summary and that the drafting of such a summary is accurate. The police will have responsibility for that. What training will be provided to ensure that police officers required to carry out that aspect will have appropriate skills? The document—for example, in paragraph 4.5—sets out various points at which the police may take certain action. I do not quibble with the fact that there will have to be some discretion, but if there is discretion, there has to be training and there has to be some mechanism to ensure uniformity in the operation of these provisions.

I hope that the Minister will assure us that there will be full monitoring of the procedures once they are introduced, including the provisions in paragraph 3.3, which deal with the failure of equipment or the non-availability of suitable rooms. I hope that where such problems happen too frequently, there will be an examination and an investigation as I hope that there will be of any trend towards more interviews taking place outside police stations, with the result that they are not covered by these rules.

All these are significant difficulties. If the new rules are to operate properly, to improve the situation and give proper protection for the defence, they must be carefully monitored and we have to make sure that there are no loopholes that could undermine the intention behind the new rules.

I understand that the defence is to be charged— probably £5—for the acquisition of any transcript. Perhaps the Minister can explain the reasoning behind that decision, because it is part of the prosecution evidence. Moreover, in requesting a full transcript, I understand that the defence is required to notify the prosecution that it has done so. If the defence does that, it will be informing the prosecution that it intends to challenge the interrogation in some way, thus disclosing part, at least, of its case. That breaks with the principle that the prosecution has to prove its case and the defence need not show its case.

What the Minister has said today will take us somewhat further and we welcome the general direction in which he is going. I have raised some important points with the Minister, and I hope that he will consider them before the full introduction of tape recording of interviews. I hope, too, that the Minister will think clearly about the exemptions that he is creating, because they will cause many difficulties. I hope that the Minister will tell the House that he has reconsidered those points and that he will accept what I have said about the need for careful monitoring if the system is to work successfully.

6.29 pm

Mr. Ivan Lawrence (Burton)

I am one of those legal practitioners who are keen to contribute to this debate because, since I first became a Member of the House, I have been asking Governments to introduce the sensible measure of tape recording interviews with suspects. I have re-read some speeches on this subject that are now 14 years old and I am pleased that I will be relieved of the burden of pressing this particular campaign so that I can consider others.

The wonder is that it has taken so long to introduce tape-recorded interviews. In June 1972 the Criminal Law Revision Committee recommended an experiment on the feasibility of such recordings. It was not until February 1975 that a committee was set up to consider the matter and it took nearly two years to decide what everybody knew—that it was perfectly feasible to have a tape recording experiment. In July 1977 the matter was relegated to a Royal Commission. The rest is history, but I believe that my congratulations to the Government should also include special congratulations to my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), who gave the process a big kick forward when he was Home Secretary.

I support the tape recording of interviews with suspects because I believe that that one measure, possibly more than any other, will improve the procedures of our criminal trials. It will ensure that more of the guilty are convicted and that fewer of the innocent are dragged through an unnecessary criminal trial only to be acquitted.

With tape recordings there will be less opportunity for the police to allege, falsely, a confession and there will be less opportunity for an accused person to allege, falsely, policy dishonesty. Because police officers will be less often challenged as liars and less often thought to be dishonest, their standing in the community will rise and so will their morale. It will be easier to recruit the best people to the police service. Fewer police officers will be tempted to be dishonest once we have nation-wide tape-recorded interviews and, as we know corruption often follows from dishonesty, in future years our police force will be even less corrupt and much more honest than some of the allegations that are made daily in our courts would suggest.

If the circumstances surrounding the making of a statement were less open to criticism, more people would plead guilty and more would feel obliged to shorten the length of their criminal trial. Therefore, it would take less time to try a case and trials would come on sooner after arrest. Witnesses' memories would have less time to fade and their evidence would become more reliable—fewer acquittals would occur as a result of that alone.

In short, crime will become easier to fight because the conviction of the guilty will become more certain and, therefore, there will be a stronger deterrent to crime. The money that is saved by shortening the process of our criminal procedures will more than outweigh the present costs of the system, without tape recording.

Since I first spoke about this matter, we have had the benefit of the field test by the Home Office research planning unit. That unit has published a report in the names of Carole Willis, John McLeod and Peter Naish. It is important to place on record the conclusions, to date, that have been drawn from the field tests throughout Britain. First, a higher proportion of suspects have become the subject of court proceedings. That, combined with the greater success of the police in bringing people to trial, is likely to mean that the process of convicting the guilty will become more efficient.

Secondly, there is no evidence that the police have been avoiding the use of tape recorders. On the contrary, the report suggests that they are more likely to carry out interviews at police stations which have them. That is welcome news to those of us who were once worried that the police would be the biggest obstacle in the way of tape-recorded interviews.

Thirdly, tape-recorded interviews tend to be shorter and there will be considerable benefits as a result of the police time that is saved.

Fourthly, there has been an increase in the number of admissions and confessions—some of us expected that. However, I understand from the figures that have been bandied about that, in the test case areas, the increase in guilty pleas is as low as 2 per cent. Perhaps my hon. Friend the Minister will say whether that is the definitive figure because 2 per cent. seems to be a much lower increase in the number of admissions and confessions than we had, I think, expected.

The fifth conclusion of the unit is that more information is vouchsafed by suspects about other offences they have committed. Sixthly, suspects that are not charged are released more quickly. Those of us who are concerned about the civil liberties of the individual innocent of a crime will greatly welcome that.

The seventh conclusion is that there has been no decrease in the quantity or quality of the information obtained from suspects. The opposite is true and there has been an overall improvement in the information gleaned from suspects. Its eighth conclusion is that there has been a reduction in the police time spent on such interviews; and, finally, there has been a small reduction in the average length of trials at both the higher and lower courts, presumably because there have been fewer challenges to the truth of such interviews. In future, challenges will be likely to relate more to the interpretation of the words used in the interview rather than to the dishonesty of the police officers taking part in it.

The conclusions of the Home Office research planning unit amply justify the Government's actions and the hopes with which those of us who pressed for tape-recorded interviews imbued the debate.

May I conclude by asking the Minister some questions and expressing two thoughts. What are the anticipated nation-wide costs of the installation of tape recorders in major police stations? What savings does the Minister anticipate from the shortening of criminal trials, given the considerable reduction in criminal trial expenses that will result? What action is being taken towards the next step, video-recorded interviews? I believe that one can now buy a video tape recording unit for about the same cost as the audio tape recording machines were themselves when we originally discussed this matter. As the price plummets, it must become more feasible and more sensible—even as a cost-cutting exercise—for police stations to have a video recording facility.

In common with other hon. Members, I have some doubts about why the benefits that would flow from tape-recorded interviews should be denied to those who are charged with or bring charges of terrorist offences. Has my hon. Friend's conclusion been reached on the advice of the Northern Ireland police and prosecution authorities or solely on the advice of the police? Upon what basis has my hon. Friend reached his conclusion? If that basis is not that convincing, I hope that he will reconsider his attitude towards future terrorist interviews.

My one regret is that we did not get all this moving earlier. If we had done so, there would have been less pressure to interfere with the established procedures of our criminal trials. Perhaps people would have been less worried about the abolition of the peremptory challenge of jurymen, and less desirous of the need to increase sentences by appealing to the Court of Appeal. One could go through a gamut of actions—almost panic-stricken actions—that the Government have taken to try to end the increase in crime. They have interfered with the traditional procedures of our criminal trials, yet they have been broadly resisted by those who know most about the functioning of our criminal system as a result of practising in the courts.

Perhaps the success so far—and, I hope, the continued success—of tape-recorded interviews will have this one effect: that it will slow down any movement that my right hon. and hon. Friends may think they observe in the country to interfere with the traditional right to silence. As the House may know, I am not opposed to some limited interference with that right, but I hedge that with this qualification: before we do anything as drastic as that, we should see whether the procedures that my hon. Friend is introducing with this measure are successful. If they are, we need not disturb the traditional procedures which have served this country so well over many years.

I end by offering my congratulations, thanks and best wishes to my hon. Friend for the success of this measure.

6.40 pm

Mr. Gerald Bermingham (St. Helens, South)

I shall follow on from where the hon. and learned Member for Burton (Mr. Lawrence) left off. I, too, have an interest in these matters. It occurs to me that there is no rhyme, reason or logic about excluding one type of criminal trial from taping.

A terrorist offence in Northern Ireland or in the United Kingdom is given a criminal trial. When someone is accused of a terrorist offence, the defence is served with all the documents relating to the interviews, usually in the form of contemporaneous notes. In some cases, nothing is said in an interview; in others, a great deal is said. If the Minister implied in answer to my intervention that, in the past few years, when interviews have been taped, they have been carefully and selectively edited, that is an appalling admission. Surely he did not mean that. If not, why should things change merely because the method of recording has changed from contemporaneous notes to tape? Perhaps the Minister will say a little bit more about that in due course.

I want to make one or two points of a practical nature. My first is a cri de coeur about the tapes themselves. There was recently a move to change the sort of tape that is used. I pray that that will not happen. The tapes that were used in the experiments were the sort that can be put in a Walkman or a car radio. Sometimes interviews are several hours long and, having to travel long distances to court, many a lawyer has done so listening to the tape of an interview, perhaps looking for some discrepancy between it and the summary that he or she has been given. Perhaps the client has said that he did not imply this or that, and gave an explanation. If an interview lasts for three hours, it takes three hours to listen to it—a practical point.

Sometimes, when tapes are required to clarify a point, and they are of the type that can be used in Walkman sets or car radios, prosecution and defence counsel can sit in the car park and play the relevant part of the tape, thereby eliminating the need for an adjournment and speeding up matters. So I pray that the Home Office will see sanity and stick to the current sort of tape.

The hon. and learned Member for Burton also referred to my second point. Trial surveys have shown that the length of interviews decreased when tape recording was used naturally and logically. When a contemporaneous note is written down, it takes an awfully long time to complete. Asking questions and receiving answers orally is naturally quicker. But another problem has arisen; it is admirably demonstrated if one listens to the tape of an interview. I refer to the number of superfluous questions which are asked in the course of an interview. A number of senior police officers have told me that the police service would like a little assistance with the costs of training detective officers in the methods and procedures of using tape. I hope the Minister will assure the police authorities that such training will be available and that its costs will be met. Training a police officer to ask questions quickly saves a considerable amount of time: the interviews become succinct and to the point. Most cases are simple and straightforward, and, with a little teaching, considerable savings can be made.

I want to draw one more matter to the Minister's attention. I have already mentioned it to him privately and warned him that I would do so again tonight. Following the decision in the case of Alladyce which, when there is a breach of the code, leaves discretion to the judge under section 78 of the Police and Criminal Evidence Act 1984, will the Minister consider the wording of present codes, particularly as they relate to interviewing techniques?

It is becoming apparent that, while we have sought to cure one great ill—allegations and counter-allegations about interviews—another has begun to develop. It is nicknamed "the Scotch allegation", because it first broke out in Scotland, where they were a little ahead of us in interviewing techniques. I refer to the supposed confession, made either at the moment of an arrest, or on the way to the police station, or in conversation in the police station before formal interview. As the code is drafted, any interview in a police station must be recorded either by contemporaneous notes, which the defendant is shown and asked to sign, or by way of tape under the new code. It never ceases to amaze me that, when a conversation has taken place and been recorded in a police officer's notebook as soon as he reaches the police station, and it is said to contain some confession, it is beyond the wit and wisdom of police officers to present that written record to the suspect, to tell him that that was what he had said in the car, and to ask him to sign it. That would at least go halfway to overcoming what are increasingly becoming time-consuming arguments in the courts. Will the Minister take that on board? There is clearly a loophole in the current code of practice. It could easily be tidied up, and all of us would benefit from that in the long term.

It has often been said that tape recording of interviews will go a long way to eliminating the courtroom banter and barrage of allegation and counter-allegation about what has been said. This has been a long time in coming. Let us hope the order will be brought into effect quickly and that, throughout the length and breadth of the country, tape recording will become the norm rather than the exception.

6.48 pm

Sir Giles Shaw (Pudsey)

I join other hon. Members in broadly welcoming the thrust of the code of practice and the order. I want to say two things about them, one of which my hon. Friend the Minister will understand, knowing of my previous interest in this matter.

I had hoped that the process would be relatively quick once the system was established and tested and the Government had made up their mind, as I had little doubt they would. I am rather sorry that my hon. Friend has told us that it will take another five years before the new system is properly distributed throughout the police service. I ask him to think again about that. Why will it take another five years? There are fewer stations now. Custody stations have been established, and that must have reduced the potential number of interview centres. The Crown Prosecution Service has also been established. Why should this take so long if the change is funded? Surely my hon. Friend, probably aided and abetted by the Lord Chancellor, will be most anxious to provide additional funds so that the courts' time is not wasted and we enjoy the efficiency that I am sure the new system will produce.

My second point has to do with exemption. I am not entirely happy with what my hon. Friend the Under-Secretary said was the reason for it. We have had real benefits from moving to tape recording. My hon. and learned Friend the Member for Burton (Mr. Lawrence) was right to list them and the conclusions of the test area panel that was set up by the Home Office.

Northern Ireland was not one of those test areas—no doubt for fairly good reasons. It is saddening that there should be further disparity between the police and court procedures that are available in the Province and those that are available in other major centres of significant criminal activity. The more that such disparities exist, the less welcome they will be to many people who believe strongly that the rule of law is the way to fight terrorism and that it is the only method by which to argue the popular case against terrorism, even in the Province of Northern Ireland.

I hope that, as my hon. Friend the Minister has previously suggested—a matter to which the hon. Member for Dewsbury (Mrs. Taylor) referred—he will tell the House that the matter will be subject to review. The fewer the disparities that exist, the greater will be the chance for a system of common justice and common police practice throughout the United Kingdom. That will be in the best interests not only of the Province and the rest of the United Kingdom, but of the reputation and probity of the police force.

Mr. Seamus Mallon (Newry and Armagh)

Is it not ironic that, following Lord Justice Bennetts investigations at Castlereagh and Armagh holding centres, he recommended that interrogations should be videotaped and tape recorded? Now we find that despite that recommendation what will happen in the north of Ireland will derogate from what is happening elsewhere.

Sir Giles Shaw

I hope that my hon. Friend the Minister will take due note of that intervention. It is eloquent evidence to be weighed in the balance when he makes his decision.

The overall benefit of what my hon. Friend has offered the House is considerable and I congratulate him on bringing in the order.

6.53 pm

Mr. Seamus Mallon (Newry and Armagh)

I am aware that there is pressure of time on all of us, so I shall confine myself to one point. A debate on the Northern Ireland order will follow in the next Session of Parliament, but it is essential that we consider the matter that was raised by the hon. Member for Pudsey (Sir G. Shaw) and by almost all other hon. Members who have spoken.

I refer to the exclusion of terrorist trials from the order, which is of great import. Where separate series of legislation operate in the north of Ireland and in England and Wales, there is bound to be an overlap. There can never be a clear distinction between, on the one hand, the Police and Criminal Evidence Act 1984 and, on the other hand, the Prevention of Terrorism (Temporary Provisions) Act 1974 and the Prevention of Terrorism (Temporary Provisions) Act 1984. They will, of necessity, overlap and it is impossible to make a clear distinction between them. Serious problems will arise after people have been apprehended under the emergency legislation or the Police and Criminal Evidence Act. We shall have a difficult time because of that.

The central point, which has been made ably by other hon. Members, is that the protection of this code of conduct is being denied to those who need it most—those who are arrested under the Prevention of Terrorism (Temporary Provisions) Act or the Prevention of Terrorism Act, which represent the greatest derogation from the normal legal practices in the rest of western Europe.

It is essential that we should consider those matters briefly and I ask the Minister to do so. I hope that if he has discussions with his Northern Ireland counterparts he will at least consider that point.

In Northern Ireland 90 per cent. of the incidents of stop and search take place under emergency legislation. Sixty per cent. of detention, questioning and custody cases take place under the emergency legislation. Well over 50 per cent. of cases involving the search of premises take place under the emergency legislation. We have only to look at the problems that arise from the interrogation of suspects and at Lord Justice Bennetfs report and the millions of pounds that have been paid in compensation to see the need for such protection.

The explanatory document which accompanied the Northern Ireland order says: The police are under a duty to observe these codes and non-compliance will constitute a disciplinary offence. It would not be stretching it too far or using poetic licence to say that under the emergency legislation the police are not under a duty to observe those codes, and non-compliance would not constitute a disciplinary offence. Human nature being what it is, there must surely be a tremendous temptation to any police service not to abide by the highest rules and codes of conduct by which they would operate under a different piece of legislation. The police are presented with a choice between wearing two hats—whether to be the good cop when pursuing a case under the Police and Criminal Evidence Act or a not-so-good cop when working under the emergency legislation. That is the difficulty that the police face. Human nature being what it is, if a policeman is not under a duty to observe the codes and if non-compliance is not a disciplinary offence, he may not obey them and he may act differently in those two situations.

Let me deal with another matter and put it into the practical terms of Northern Irish life. If a person sitting here stole £1 million he would be dealt with under a different piece of legislation from a young boy of 16 years of age who was suspected—nothing more—of complicity in an offence that came within the terms of the emergency legislation. That young boy would not have the benefit of the codes of practice that the man sitting here would. That cannot be right. That does nothing for the difficult situations in which the police have to operate. It does nothing for the person who has been arrested and interrogated. Nor does it help the position of the courts. Without parity between the two sections of legislation there could be two different approaches, not just by the police service but by the court service, and that would be dangerous.

My last point highlights a difficulty and an anomaly. One of the greatest problems in Northern Ireland at present is a type of Mafia racketeering. That has now reached endemic proportions and it is difficult to say whether it is a criminal offence to be dealt with under the Police and Criminal Evidence Act or whether it occurs within a paramilitary organisation and should be dealt with under the emergency legislation. It will take the wisdom of Solomon to make such a distinction. Living, as I do, close to the areas where it takes place, I know that there is no known way in which that distinction can properly be made.

If I were a racketeer making millions of pounds a year, as some of those people do, not connected in any way with any paramilitary group, but acting for my own greed, I would have the protection of the codes. In a different set of circumstances, that protection would not apply. That will create a difficult, if not impossible, situation for the police, the courts and everybody else who has to deal with the situation. I hope that in the intervening period the Minister will impress upon his colleagues in the Northern Ireland Office that if we are not to make a nonsense of this in Northern Ireland, we should have a statutory code of practice for every type of offence.

6.59 pm

Mr. Tim Rathbone (Lewes)

I welcome the code of practice. It is an important part of the original Act. I shall make three short important points. First, I shall reiterate my concern about the identification of a terrorist act. The hon. Member for Newry and Armagh (Mr. Mallon) mentioned racketeering. Racketeering, and drug trafficking, which is another form of racketeering, can be part of a terrorist activity. Terrible complications will arise from the form of words used in the code of practice. I, like others, ask my hon. Friend the Minister to continue to include that in his review.

My hon. Friend the Minister will be aware that the original Act placed considerable additional burdens on our police force and the order establishes further the operations of that Act. The taping of entire interviews, even if it reduces the length of interviews or the time that police officers spend in interviews, the provision of transcripts where necessary, the provision of summaries, the training that will be required and the supervision necessary to ensure that the code is complied with, will all place considerable extra work on our police forces.

My hon. Friend the Minister said that the practice will be phased in over five years, hoping that it will be standard practice in 1991. However, it is expected to be used to some extent by all police forces by the end of this year. He mentioned five test areas where the practice is presently being carried out. I wonder whether one of those is within the Sussex police force area. As he will be aware, the Sussex police force is under considerable strain. In a recent written answer he mentioned that the Sussex police force had requested seven additional officers in the current year. He inadvertently misled the House because the request was for 27. The request for seven was a hangover from last year and the force requested an additional 20 this year. It could be said that the Sussex police force is now 27 officers under strength.

The difficulties it faced were well illustrated by the report of the chief constable for Surrey on violence in rural areas. Sadly, the report has not been available to the House. For some reason it has been suppressed. The chief constable has been instructed not to publish it or make it available. My hon. Friend the Minister should rescind that instruction because the report would be of great interest to many hon. Members.

Mr. Michael Marshall (Arundel)

My hon. Friend knows that he speaks for all Sussex Members in outlining the difficulties. For example, at the recent mayor-making ceremony in Arundel we were unable to have any traffic control by policemen for the parade of Scouts, Brownies and other worthies because the police were being diverted to other duties due to shortages.

Mr. Rathbone

Absolutely. Some of those police will be operating the provisions of the Act and it is important that they should do so. That is why I raised that point.

I plead with my hon. Friend the Minister to reconsider the question of terrorism and to look into the application of the Act by the police and the burdens that will fall on them. Once again, I plead with him to increase the Sussex police force by the number requested.

7.4 pm

Mr. Alex Carlile (Montgomery)

I join in the welcome that has been given to the code. The sooner universal tape recording is available, the better. I agree with the hon. Member for Pudsey (Sir G. Shaw) who said that five years is an unnecessarily long time for the introduction of tape recording throughout all police areas.

I shall begin with two practical points. First, the tape recordings appear to be causing no real difficulties in the courts. However, the summaries are causing difficulties. There have been cases in which issue has been taken as to the accuracy of the summary as a reflection of the gist of the tape recording, or at least its most relevant parts. There is a need for officers to be trained in pre-cising tape recordings. Anybody who has tried their hand at sub-editing knows that it is extremely difficult to sub-edit prose. To sub-edit a long and often boring recording of question and answer is a difficult task. Officers need special training to ensure that court time and their own time is not wasted in controversies as to the accuracy of the summary.

Secondly—this is another practical point and a simple one—I wish to put in a plea that the playback equipment should be standard throughout all police force areas. I understand that, largely, that will be so but that there are a minority of areas using a different form of playback equipment. If lawyers at all levels are to have a fair chance of considering in full the tape recordings before trial, they will have to purchase equipment that will play back the recordings in a way that will make them easy to hear. The nature of the tapes means that on some ordinary commercial tape recorders it is not always easy to hear clearly the recording of the interview because of the second track that can intervene in a rather disturbing way. Therefore, solicitors' offices and barristers' chambers will have to buy the appropriate equipment. In the provinces and in London, barrister' chambers and solicitors' offices may be dealing with numerous police areas and it is important that there should be standard equipment in use.

I shall deal with the exceptions. On section 1 of the Official Secrets Act, I am sure that the Minister will recall the Cyprus spy trial. It was the longest spy trial there has ever been in England and Wales. The main issue was the accuracy and fairness of alleged confessions obtained by military police. If for security reasons edited summaries had been produced, if there had been tape recordings, there would have been a failsafe. The judge would have been able to hear the tape recordings to ensure that the summary was accurate. I should have thought that in circumstances such as that a great deal of time could be saved and, on balance, the public interest would be served if a tape recording was available.

In relation to terrorist offences I suggest that there is an even more overwhelming argument for the use of tape recordings. With the Brighton bombing, the Guildford pub bombing and other less celebrated cases in the general area of terrorism there have been challenges to the accuracy and fairness of interviews carried out. Convictions have rested substantially upon the view taken by a jury of interviews that were not tape recorded. Much of the continuing controversy in relation to at least three terrorist cases is dependent largely upon the view taken of police interviews. Necessarily, the interviews will be recorded contemporaneously in any event. It may be that editing will later be carried out as to what goes before the jury. However, it is not for the police to decide what it is in the public interest to edit. Now that we have an independent prosecution service and serious cases are handled at a senior level, surely there is an overwhelming argument for the entire interview to be recorded and for the Crown Prosecution Service, if anyone, to decide the nature of any editing that should take place.

Sir Eldon Griffiths

It is certainly not for the police to edit but it could well be up to the police to exclude material because of evidential factors in a terrorist issue.

Mr. Carlile

I do not agree with the hon. Gentleman. It is not for the police to make them. It is for the Director of Public Prosecutions to make them.

If it is possible to devise a means whereby we can be sure of what was said, we should employ that means. We have that means. It is relatively inexpensive and it is being introduced in relation to all other offences, except terrorist offences and offences under section 1 of the Official Secrets Act. There is a strong logical argument for applying the same standards to the most serious offences. I ask the Minister to think again over the next few months while the tape recording equipment is being introduced into the vast majority of police stations. I suspect that the judges would greatly welcome the introduction of tape recordings in relation to all offences and that the public interest would be served thereby.

7.10 pm

Sir Eldon Griffiths (Bury St. Edmunds)

I too welcome the measure because it honours the undertaking given to those of us who soldiered in the vineyards of the Police and Criminal Evidence Act Committee. I also welcome it because it is a case in which technology goes to the aid of justice. I pay tribute to my hon. and learned Friend the Member for Burton (Mr. Lawrence) for the campaign that he and others fought for the measure to be introduced. I freely concede that many police officers were originally sceptical about it, but they have been convinced by the practical experiments that have taken place. It is now overdue that we should make the practice universally available. I associate myself with the comment of my hon. Friend the Member for Pudsey (Sir G. Shaw) in asking whether the process must take five years. I suspect that I know some of the answers and I shall allude to a couple of them.

Mr. Douglas Hogg

I am responsible for the confusion. It is my fault and I apologise. We expect the practice to be in place by the end of 1991, five years from the beginning of 1986.

Sir Eldon Griffiths

I am much obliged to my hon. Friend. His comment coincides with my inevitably limited experience of this matter. The police service is installing the equipment as rapidly as it can in most parts of the country and, for the most part, it has become an enthusiast in doing so.

The House should be under no illusions that, although there is much benefit for the system of justice and for the police service, the measure lays new burdens upon the police. I make no apology for saying to the House that we are asking police officers to make available facilities that, in many cases, they do not have. In many of our bridewells, suitable rooms are not available and it is an expensive and difficult business to provide them when the police have many other priorities. We ask the police to do a great deal in dealing with burglary and rape. These additions will inevitably take police officers off the beat. They will spend less time interviewing, whether or not the interviews are recorded—that is the gain—but no one should be under any illusions that it is not an additional burden upon the police service.

All of the requirements of the code enter at once into the police discipline code and any infraction can be used to bring a police officer before his senior officer. Many of the matters involved are fairly technical. The police must be properly trained, not only to use the equipment, but to make the difficult summaries. The hon. and learned Member for Montgomery (Mr. Carlile) was right when he said how difficult it is to take the unexpurgated language contained in an audio recording and translate it into a summary that will be acceptable to people with the perception of my hon. and learned Friend the Member for Burton and of the hon. and learned Gentleman himself. However well the police do the job, it will be challenged in many cases because it will be convenient for the defence to make that challenge. I want to underline what a difficult task we lay upon young police constables. They will be asked to do the job of translaling thousands of words of often extraneous and not totally audible matter into summaries that will satisfy a court of law.

The loading of the police service with paperwork is becoming a major problem. I am glad that the task forces set in motion by no less a body than the Audit Commission are now trying to reduce the paperwork in which the Metropolitan police are drowning. The west midlands force has made a good start in reducing the paperwork. The force orders of the Metropolitan police run to about 18,000 pages. I may need to be corrected; it is possibly 13,000 pages, but it is of that order of magnitude and police officers are supposed to operate within that environment. All that lays more problems upon them. They must have the necessary training and number of staff. Against that background, it is a bad time for the official side of the police negotiating board to be attacking the pay of the young police officers who will have to do the job.

I wish to conclude, as many other hon. Members have done, by addressing the extremely difficult problem of derogating from the code of practice in respect of terrorism and official secrets. I declare some interest in that matter as I have had some experience of police officers having to conduct interviews with terrorist suspects. I hope that hon. Members, particularly those who are not lawyers and do not practise in the criminal courts, are under no illusions about the difficulties of conducting an interview with a suspected terrorist, particularly one who may be a hardened practitioner who knows how to handle an interview, in some cases better than the police officer himself.

I hope that the House will be under no illusions about what it is really like to conduct an interview with an alleged rapist or with someone who has been charged with interfering with a child. We had a debate on that matter some weeks ago. Police officers conducting such interviews about sexual molestation of children or the rape of women, and doing so on an audio recording, will find it an exceedingly difficult task. They already find it a difficult task, but reducing those interviews into a summary for a court of law is an exceedingly difficult task.

The Government have thought about the question of terrorism and have got it right in principle, but not in detail. A police officer, particularly a special branch or CID officer dealing with terrorist cases that cost lives, and perhaps experienced in the mutilations that arise from terrorist action, would be in breach of his duty if he permitted the tape recording to continue when he sees that, as a result of an interview, material would be available that would either exclude further intelligence that the police are pursuing or, if it were made available to the defence lawyers, could aid the very terrorist whom he is seeking to catch and convict.

I am totally opposed to dealing with the problem by editing the tape. That would make nonsense of everything that we are seeking to do, but it must be right in certain circumstances that a police officer can shut off the tape if it is beginning to trespass into those areas that could cause further loss of life. The Government are therefore right to derogate from the generality of the order in respect of terrorist offences. The same goes broadly for the Official Secrets Act, although I am sure that that point will be further debated when we come to the Official Secrets Act reform.

I find myself parting from the Government in respect of the exact method by which they have sought to define the matter that can be excluded from taping. It is too difficult for a police officer, as he proceeds with an interview, to have to decide whether the matter that he is pursuing is terrorism connected with Northern Ireland, international terrorism or domestic terrorism connected with the United Kingdom, in which case his interview must continue. It is to make too many different distinctions for many police officers. I hope that my hon. Friend the Minister will take further advice. He should examine further the definitions before he asks the police to practise them.

7.20 pm

Mr. Douglas Hogg

I have only two minutes in which to respond to those who have spoken. I hope that the House will forgive me if my replies to individual hon. Members are not especially full.

Like other hon. Members, I do not like a disparity between classes of offence. However, having considered the matter carefully, and bearing in mind the views of the Royal Ulster Constabulary and the Northern Ireland Office, I am satisfied that we are right to make the derogation. We must recognise that the sort of information that becomes available in the course of an interview following a terrorist offence can do much to damage national security.

The hon. Member for Dewsbury (Mrs. Taylor) talked about the deaf. As I am short of time, I shall respond quickly to the issues that she raised. The issue is covered in part by the fourth clause of the code. Deaf people have a right of access to an interpreter. I do not believe that it is necessary for the interpreter to state his or her qualifications, if only because a bad interpreter will be of no use to anyone, not least to the police. Solicitors can use their own tape recorders when interviews take place, but I would not encourage the practice.

I say to my hon. Friend the Member for Lewes (Mr. Rathbone) that we believe that the net effect on police manpower will be beneficial. The hon. Member for St. Helens, South (Mr. Bermingham) talked about interviews in cars. He has a point, and we shall consider it when amending code C. I undertake that we shall consider the arguments that he has advanced.

There are serious training considerations. There will be monitoring by the inspectorate. Monitoring, too, is a serious matter——

It being one and a half hours after the commencement of proceedings on the motion, MR. DEPUTY SPEAKER, pursuant to the Order [22 July], put the Question.

Question agreed to.

Resolved, That the Police and Criminal Evidence Act 1984 (Codes of Practice) Order 1988, a copy of which was laid before this House on 13th July 1988, be approved.