Police and Criminal Evidence (Northern Ireland)

HC Deb 17 July 1989 vol 157 cc153-73 12.36 am

The Minister of State, Northern Ireland Office (Mr. Ian Stewart)

I beg to move, That the draft Police and Criminal Evidence (Northern Ireland) Order 1989, which was laid before this House on 15th June, be approved. The purpose of the order is to reform the law relating to the investigation and detection of crime, and to revise the law on evidence. In both structure and content, it is closely in line with the provisions already enacted and being successfully operated in England and Wales through the Police and Criminal Evidence Act 1984—or PACE as it is known—which was largely based on recommendations in the report from the Royal Commission on criminal procedure and the criminal law revision committee's 11th report.

In view of the broad affinity of the general criminal law in the two jurisdictions, those recommendations were also valid for Northern Ireland. We are therefore now introducing measures similar to those already adopted in England and Wales.

The detail of the order was covered in the explanatory document published together with the draft order last July, and a period of consultation followed. Therefore, I shall describe the content of the order only in general terms and simply highlight some of its more important provisions and draw attention to changes that have been made since the proposal was first published.

The powers currently available for stop and search are fragmented and inappropriate to meet the demands of modern policing. Accordingly, article 3 introduces new powers which will allow the police to stop and search persons and vehicles on reasonable suspicion for stolen goods, offensive weapons, and other dangerous articles. Those powers are accompanied by a range of safeguards to ensure that they are used fairly and responsibly, and with due regard to the rights of individuals who come into contact with the police.

Part III of the order deals with powers and procedures under which the police may enter and search premises and seize and retain property. The basic procedure is set out in article 10 under which the police may apply to a justice of the peace for a warrant to search for material which is relevant evidence of an offence. However, the police will not be able to use that procedure for certain categories of material held in confidence, which are to be given special protection. In those circumstances, the police must apply to a county court judge.

Those procedures are fully in line with those that apply under PACE, except that for Northern Ireland there is an additional ground on which the police may base an application for a search warrant rather than a production order and that is to protect, for example, sources of sensitive information in cases of serious fraud. Of course, that does not mean that the police will always obtain a warrant, because the decision whether one is granted will remain entirely a matter for the courts.

Part IV of the order again follows PACE by restructuring and clarifying the law on arrest. The most important change is that the more serious common law offences such as kidnapping, false imprisonment and conspiracy to defraud will now become arrestable offences as they are already in England and Wales.

Having outlined the new police powers that the order will introduce, I should now like to describe the arrangements set out in parts V and VI of the order which will regulate the detention and safeguard the rights of suspects in custody. The basis of the new system for the detention of suspects has three important elements. First, a number of police stations which can provide adequate interview and cellular accommodation for suspects must be designated by the chief constable. Secondly, at each designated station a custody officer must be appointed who will have independent responsibility for the welfare of suspects and the protection of their rights. Thirdly, the police will be required to take any suspect to one of the designated stations if he is likely to be detained in their custody for longer than six hours. This means that the suspect will come under the immediate protection of the custody officer and will have an opportunity to exercise the rights available to persons detained by the police.

The system itself operates on the necessity principle. In other words, the need for a suspect's detention must be independently reviewed at regular intervals by a senior police officer who at each stage must be satisfied that the grounds for detention continue to apply. In serious cases and where the suspect is detained without charge. he may be detained for 36 hours only on the authorisation of the police. If further detention is necessary, it must be authorised by a magistrates court at which the suspect will be entitled to legal representation. No one may be held in police custody on any authorisation for longer than 96 hours.

By placing a considerable responsibility on the police and on the courts to ensure that no one is detained for longer than is absolutely necessary, the new arrangements will provide a much more effective means of regulating the detention of suspects and of securing their rights. Part VI of the order deals with the questioning and treatment of persons in custody and gives a suspect rights to have someone informed of his arrest and to consult a solicitor privately. Any delay with regard to these matters must be authorised by a senior police officer, and even then for a period not exceeding 36 hours and only in cases involving a serious arrestable offence.

Article 60 provides for the tape recording of interviews with suspects. Trials will soon be carried out in Northern Ireland, and when they have been evaluated, the arrangements will be brought into operation as soon as practicable. Articles 62 and 63 incorporate the existing provisions from the Criminal Justice Act 1988 under which the police in Northern Ireland can take body samples. The main difference between these provisions and those which apply in England and Wales is that for Northern Ireland a swab taken from a suspect's mouth has been defined as a non-intimate sample and, accordingly, may be taken without consent. These powers have been available to the police for almost a year and the courts in Northern Ireland have found DNA evidence of value in cases already brought to trial.

Part VIII of the order provides for the issue of codes of practice, drafts of which I hope to publish shortly. These codes will complement the order by providing detailed rules and guidance to the police on the exercise of their powers, and will supplement the statutory safeguards both to the public and to suspects in custody.

Parts VIII and IX of the order deal with evidence. This is an extremely technical area of the law, but the overall purpose is simple. It is to clarify the nature of what may be admitted as evidence in court and to ensure the fairness of proceedings. The courts will be required to exclude any confession obtained by oppression or under circumstances that would adversely affect its reliability. It may also exclude evidence that would adversely affect the fairness of proceedings.

Article 81, relating to evidence through live television links, has been amended to cover initially only child witnesses and those in fear within Northern Ireland, but we have included powers to allow for extension in due course of live television evidence to such witnesses from Great Britain and outside the United Kingdom.

In part X, article 82 places a responsibility on the police authority, in consultation with the chief constable, to make appropriate arrangements for obtaining the views of the community on policing. This is particularly important in Northern Ireland, where it is vital to promote a wider understanding of the role of the police and to assist the police in appreciating the needs of the community. In order to enable their efforts to succeed, I hope that all responsible public representatives in Northern Ireland will give their support to this process.

Finally, I should point out that article 86 was added following publication of the proposal in order to enable a system of ordinary postal service of summons to be introduced for cases before magistrates courts in Northern Ireland, as already happens in England and Wales.

This wide-ranging order represents a considerable step forward in our efforts to tackle serious crime. Members of the Royal Ulster Constabulary do a most impressive job in difficult conditions, for which they deserve our respect and gratitude. These new powers will enable them to enforce the law more effectively, to bring offenders to justice and to protect the community that they serve. But with new powers comes added responsibility, and it will be important for the police to use their new powers properly and only as and when necessary. The most important factor in effective policing is the relationship between the police and the community. If the public can be assured that the police will act responsibly and impartially in the exercise of their powers, that will enhance the ability of the police to protect the whole community, to understand its needs and to uphold the rule of law.

I believe that the order strikes a fair and proper balance between police powers and the rights of the individual, and I commend it to the House.

12.45 am

Mr. Kevin McNamara (Kingston upon Hull, North)

I apologise to the Minister and to the House for not being in the Chamber for the first minute of the Minister's dissertation.

The order has been largely inspired by the Police and Criminal Evidence Act 1984, but there are significant differences between the order and the Act, both in the content and in the manner in which the order has been introduced. Whatever one thinks of the merits of the 1984 Act, it was preceded by a long investigation, by a royal commission, and it responded to a clear need. In Northern Ireland there has been some concern that the order has not been shown to be necessary, and from what the Minister has said tonight, that appears to be the case.

The case for new legislation has not been adequately made. It is merely assumed that because similar legislation has been adopted in Great Britain it must also be necessary in Northern Ireland. Northern Ireland statutory provisions should take into account local conditions, and not simply be copies of legislation which may be inappropriate or unnecessary in the particular context of Northern Ireland. That principle is implicit both in the specific institutional arrangements for the government of Northern Ireland and in the legislative procedures through which Northern Ireland legislation is adopted.

When one compares the situation in Northern Ireland with that on the mainland, two major differences are immediately apparent. On the one hand, Northern Ireland has not experienced the substantial increase in crime over which the Conservative Government have presided elsewhere, and neither has the problem of the declining effectiveness of the police force become apparent. In the statistics published in the RUC Chief Constable's reports, the figures for indictable offences reported since 1981 do not show a strong thrusting upward trend, but fluctuations around a weak upward trend. By contrast, a strong upward trend is apparent in the detection rate, and that must be welcomed.

The Government have argued in the past that one cannot take a statistical approach to the problem. That may be so, but it is equally unwise to assume that the strengthening of police powers automatically leads to an improvement in crime statistics. The success of a police force depends, among other factors, on the degree of public confidence in it. Given the political situation in Northern Ireland, the Royal Ulster Constabulary enjoys remarkable success in dealing with non-paramilitary crime. We should acknowledge and understand that and be careful not misguidedly to make the job of the police more difficult by giving them excessive powers which might reduce public confidence. I believe that greater effort is needed to justify the Government's legislation.

Mr. Ivan Lawrence (Burton)

If I have followed the hon. Gentleman's line of thought correctly, he seems to be under the impression that the Police and Criminal Evidence Act in the United Kingdom is somehow boosting the police powers and restricting the powers of the individual citizen accused. In practice, that is the very opposite of what is happening in Britain, where the Act is proving to be a substantial protection for the individual person accused. In those circumstances, I should have thought that the hon. Gentleman would welcome the new measure for Northern Ireland.

Mr. McNamara

The hon. and learned Gentleman did not listen to what I said. I said that the Government had not made out the case for the order in Northern Ireland because the crime figures and the conviction success of the RUC, particularly on non-paramilitary crime, did not merit the powers given in other parts of the United Kingdom. The RUC is far more successful than other United Kingdom police forces. In any society one must be jealous of extending the powers of the police unless the case to do so is adequately made.

Many people in Northern Ireland will conclude that the Government made up their mind to pursue this course whether or not there was evidence to warrant it. Those of us who took part in the consultation phase will certainly have our suspicions as the order before us now is virtually identical to the draft presented more than a year ago. I commend the RUC and the police authority for setting out to establish the type of consultative system for community policy that was suggested by the Labour party. That system goes significantly further than the minimalist position set out in article 82 of the order.

In the recently published review of the Anglo-Irish Agreement there is a commitment in paragraph 9 to look at the harmonisation of criminal law in the two parts of Ireland. Perhaps the Minister will tell the House to what extent the order has been framed with that objective in mind.

We are concerned about the order and we shall look carefully at the way in which it is operated. We are particularly concerned about the differences between the order and the corresponding Act for England and Wales. Those differences are to be found, inter alia, in the procedures for DNA profiling, in the use of television links for witnesses and in access to special procedure material. The order perpetuates a substantial difference between Northern Ireland and Great Britain in respect of DNA profiling, which was introduced by the Criminal Justice Act 1988. The provisions for obtaining DNA samples in articles 53, 63 and 64 represent a somewhat disturbing departure from practice under PACE. Although we welcome technological developments in the fight against crime, confidence in the criminal justice system requires that such new technology should, initially, be viewed critically in order to enjoy eventual public credibility.

We are therefore concerned that mouth samples should be defined as non-intimate and therefore obtainable without consent. Several questions arise from this. There are serious questions about what constitutes an effective and useful mouth sample. If this is simply a question of taking a swab from between the lip and lower gum, as the former Minister of State suggested in the House in 1988, it is clear that the scientific community is divided over the validity of the claim that such a useful sample can be taken. If a scientific controversy exists, it would be over-optimistic to expect the general public to endorse the use of such methods.

In the continuing correspondence that I have had with the Secretary of State, he has made several claims that the Northern Ireland forensic science laboratory has been able to provide DNA profiles from mouth swabs. If that is the case, I hope that we shall see the early publication of those findings in a reputable scientific journal. The danger is that, without peer examination, DNA testing could fall into disrepute, depriving the RUC of a valuable instrument of detection.

The alternative scientific opinion is that, for a mouth sample to provide sufficient material for DNA profiling, it must take the form of scraping the inside of the mouth with a blunt instrument and not, as has been suggested by the former Minister of State, merely by a swab between the lip and the gum. Such a procedure would be extremely difficult to carry out in the absence of consent. Again the methods could fall into public disrepute. At the same time, police officers could find themselves at risk physically and at risk of being the objects of legal action for compensation as a result of injuries that would almost inevitably result from forcibly taking a swab by such means. I know that the standing advisory commission on human rights expressed similar anxieties about this problem in its 14th report.

A further element of worry concerns the destruction of samples and records of those who are not convicted. Article 64 compels the destruction of samples and fingerprints after the person to whom they relate has been cleared or has had proceedings against him dropped. That is unnecessary with DNA samples, as the testing process effectively destroys the samples as a matter of course, but this provision is seriously weakened by the fact that the information gained by such methods does not have to be destroyed. Information on people who have not been convicted in any court may be held on file as though they were convicted criminals. Such a procedure is unjust, and the standing advisory commission recommends that a statutory duty to destroy such records should be included in the order. We supported that view and regret that it contains no such provision.

When this matter was discussed in the other place, the Minister said, when questioned: I want to give … an assurance that our practice will be to destroy both samples and DNA profiles … We should prefer to keep the legislative provisions in line with those applicable to the rest of the United Kingdom"— but not, of course, in the case of intimate mouth swabs— and to achieve the objective by administrative means."—[Official Report, House of Lords, 22 July 1989; Vol 499, c. 1659–60.] What administrative means have been taken to ensure that such profiles have been destroyed when a person has not been convicted in any court? What regulations apply to the keeping of profiles while awaiting an action in court? Will the regulations appear in the code which is shortly to be published?

Another worrying difference between Northern Ireland and the rest of the United Kingdom in the order is the use of live television links for witnesses. We recognise that there are circumstances in which the use of such facilities is desirable, particularly for children under the age of 14—there have been some horrendous cases recently in which it has been necessary to protect the child from having to relive recent experiences under the eyes of the perpetrators of foul crimes—but we are deeply suspicious of the other provisions in the order. The inclusion of another ground for giving evidence by television is designed to allow witnesses, who would otherwise not do so because of fear, to present their testimony in court. I believe that that is a dangerous extension of the use of television. It seems blatantly obvious that Northern Ireland is being used as a testing ground for this innovation. Whatever the merits of such a development, if such exist, the use of Northern Ireland for legal experimentation of this kind is offensive to many people in the Province.

I do not believe that this extension of televising witnesses is a positive innovation. So long as the adversarial system of justice prevails, witnesses have to be subject to effective examination and cross-examination. Witness demeanour under questioning has long been recognised as a vital part of the evidence, as many judicial summings-up have made clear. A television performance cannot provide the authenticity of the court room—no studio link can equal the ordeal of the witness box.

There is also a serious problem of logic in the Government's case. If the witness is intimidated by spectators or by the defendant, the presiding judge has the right to clear the court. Overtly threatening behaviour in court is also likely to constitute a criminal offence in its own right, as well as being contempt of court. It is accepted by all, I think, that potential witnesses have been intimidated in the past, especially by paramilitary organisations. The problem, however, is one of guaranteeing the security of the witness before and after the trial. It is difficult to see how the use of television can overcome this problem.

It is also to be noted that article 81 differs from the article in the original proposal in so far as it gives a power to the Secretary of State to enable this latter category of witness to make use of television links. It is not clear whether the article is designed to allow the Secretary of State to intervene in individual cases and in individual trials, as he did on the right to silence in the Winchester case, or whether it is a general rule-making power. In either case, it is unacceptable. If such matters are to be introduced, they should be left to be decided by the courts.

The power being given to the Secretary of State is astounding. It seems—unless the Minister corrects this when he winds up—that the Secretary of State may by order (a) direct that this Article shall apply—(i) to a witness falling within head (i) or (ii) of paragraph 1(b) who is in Great Britain or (ii) to any witness who is outside the United Kingdom". That gives enormous scope. Does it mean outside the whole area in which the Queen's writ runs? What sort of protection will there be, for example for a defendent and defendant's counsel, to enable them to know the nature of the proceedings by which a witness is being examined by television? How can we be certain that in some far distant land, a witness will not be rehearsed by someone, out of the range of camera, in the sort of answers to be given to the questions being put to him or her? This is a serious and dangerous extension. I am surprised that members of the legal profession have not expressed more concern about it, but the House at least should examine it carefully.

In other matters the police can show that serving notice of their intention to seek a production order would seriously prejudice an investigation. In England, they have the alternative of applying to a court for a search warrant. In England and Wales, the search warrant applies only to the investigation in hand, but in Northern Ireland, there is another dangerous extension. We are being asked to extend the scope of this power so that it covers other investigations. As that would potentially cover investigations that have not even commenced, it seems an all-embracing power, better suited to a repressive than to a reforming Government.

We have still not had a convincing response from the Government about why this great extension of the police power of discovery of documents should be necessary in Northern Ireland, but not in the rest of the United Kingdom.

Finally, the codes of practice promised by the draft order must be dealt with. It is obvious that the key to the implementation of the order lies in the codes of practice. So I am disappointed that, apart from the one dealing with the taking of samples, they have not yet been published in so far as they are to apply to Northern Ireland. Given that the order is not a simple copy of the 1984 Act, one cannot assume that the respective codes of practice will be the same.

The codes of practice, whatever their as yet unknown contents, are somewhat undermined by the reliance on the RUC as their sole enforcer, since violations will be disciplinary matters dealt with by the chief constable, or by those acting for him. Although I do not doubt the determination of the RUC to police itself effectively, enforcement of the codes must not only be rigorous, but must be seen to be so.

The damage done to confidence in the RUC by the Stalker affair remains to remind us strongly and harshly of this principle. Given the status of the RUC, people whose rights are violated under the terms of the codes have no personal redress. Although RUC officers may be punished, the victim cannot directly obtain redress for a mere breach of the codes. Therefore, although the codes may be effective managerial instruments within the force, the citizen does not see them in that light.

It is not enough to say that the code of practice may be used as evidence in civil actions. They should also be statutory. This would help to overcome one of the major problems that has been apparent in the operation of the Police and Criminal Evidence Act 1984, which deals with England and Wales. There has been widespread criticism that the sections of the legislation relating to the rights of suspects has not been sufficiently respected and that the judicial interpretation of the Act as to the status of the code has somewhat watered down the safeguards. By giving statutory effect to the codes of practice, the Government would give a clear sign that the extension of the powers of the police is to be paralleled by the protection of the rights of the citizen—rights that were laid down in the Act.

In this respect, there is another difference between Northern Ireland and England and Wales. In England and Wales, suspects arrested under emergency legislation are covered by the codes of practice. In Northern Ireland, that will not be the case. In cases of serious terrorism and crime in Great Britain, interviews will be recorded, and the defence will have access to the tape recordings. In Northern Ireland this will not be the case. With even a minor infringement of the Northern Ireland (Emergency Provisions) Act in the Province, tape recordings will not be available to the defence, while in a major drugs case, in which there might be just as much horror and wealth, with as many frightening matters, the tape recording will be accessible to the defence. That is a serious deficiency.

The Government's reason for this is that it might be possible for someone to gain access to the tape recording and tease out of it some information that might be of value to the terrorist. I understand that, but if terrorists are as skilful and well trained as we are told they are, in their own de-briefing by their associates, whether it takes place before or after conviction, the evidence of where that information to the security forces came from will be as evident to them as it would be in a tape recording. Even if that were not the case, it should have been possible for the Government to find some method by which application could be made to the courts for deletion of the parts of the recording that have specific signs of the source of the intelligence that led to the arrest and questioning. That is a fundamental weakness in the way in which serious terrorist crime is tackled in Northern Ireland.

What status will the codes of practice have in the operation of the independent police complaints commission for Northern Ireland? Will the commission be able to use the codes of practice as a measure to determine whether a complaint is justified? Is it to be the mean or will they he able to go beyond it in carrying out their duties?

The position of the individual police officer must also be considered. What safeguards will be enshrined in statutory provisions to ensure that police officers are themselves fairly treated under the terms of the codes? Given the fact that the RUC, like many large organisations, has not been free of industrial relations difficulties, the need to ensure a commitment to the codes on the part of each officer also requires that safeguards be introduced for the officers themselves. For both the sake of the individual police officer and for public confidence in the police, it is essential that complaints are dealt with openly, effectively and rapidly.

In terms of safeguards for both suspects and police officers, I welcome the introduction of the provision requiring the tape-recording of interviews, as far as it goes. However, we have already pointed out some of the difficulties that may arise in that case. The visual recording of interviews is not included; nor are suspects arrested under the emergency legislation. We know that closed-circuit television already exists in interrogation centres, but that system has its failings. There is only a monitoring, not a recording, of what goes on. There are inevitably times when the screens will not be monitored, and that is what may have happened in the disturbing Gillen case. It is important, therefore, to have an adequate video recording of what takes place. That is not an expensive measure, but I believe that it will present the Government with a great opportunity to remove all the credibility from periodic complaints about the ill-treatment of suspects in custody. The complaints are sometimes founded on fact, but often they are not, and they are often used by the paramilitary forces to discredit the police and their work.

The Minister will be aware that there is a continuing and wide-ranging debate in Northern Ireland on human rights, and it is one that I welcome. One of the positive aspects of the order is that it provides for statutory rights where none previously existed, and we welcome that. I am sure that the Minister will agree, however, that we should be giving more attention to providing statutory protection for human rights in Northern Ireland. We shall not have time to go into that debate tonight, but I am sure that it is one to which hon. Members will wish to return again and again in the near future.

1.11 am

Mr. Ian Gow (Eastbourne)

There is agreement between my right hon. Friend the Minister of State and the hon. Member for Kingston upon Hull, North (Mr. McNamara) about one matter, and that is the importance of the order.

I begin my remarks by reminding the House of an astonishing paradox. Not one Member of this place representing a constituency in Great Britain would have tolerated for one moment a measure of this importance, comprising 90 articles and seven schedules, being passed into law with only one and a half hours of debate in the House and one and a half hours in another place.

The hon. Member for Kingston upon Hull, North, the shadow Secretary of State for Northern Ireland, made some fair comments about the order, and it would have been right in normal circumstances for his reservations to be tested by the tabling of amendments to proposed legislation. The Minister would have had the opportunity to reply to the speeches of Opposition Members and of his hon. Friends. I protest to my right hon. Friend the Secretary of State about legislation in this form for one part of the United Kingdom which none of us would accept for our own constituents if it applied to them.

My right hon. Friend the Secretary of State and his predecessor have agreed in the House on many occasions that they do not like legislation in this form. They agree with the criticism of it, yet nothing is done. We go on year after year denying to the representatives of the people of Northern Ireland and to Members of this place the normal legislative procedures that we accept without reservation when they apply to Great Britain.

My right hon. Friend the Minister of State was correct when he said that the largest part of the order is based upon the Police and Criminal Evidence Act 1984. I welcomed that Act, as did almost all my right hon. and hon. Friends. Although the Act has been operative for only a short time, I believe that the central principle enshrined in it has been beneficial in England and Wales. The provisions in that Act have proved sensible in giving additional powers to the police and in giving additional protection to the innocent. Why has there been a delay in introducing this legislation to that part of the United Kingdom known as Northern Ireland?

I find myself in respectful disagreement with the shadow Secretary of State. It is one of those astonishing paradoxes that, if we leave aside the evil of terrorism, on the basis of non-terrorist crime Northern Ireland is the most law-abiding part of the United Kingdom. It might be said that, therefore, that the case for legislation for Northern Ireland similar to that for England and Wales is not so strong because it is more law-abiding. I advance that argument only to dismiss it. Although the levels of non-terrorist crime in Northern Ireland are lower than in any other part of the kingdom, even there crime is still a serious problem. The provisions in the order will assist the police and will protect the innocent citizens in Northern Ireland.

I warmly approve of the contents of the order and congratulate my right hon. Friend on his speech. I hope, however, that he will take seriously the criticism about this means of legislating.

1.16 am

Mr. William Ross (Londonderry East)

I listened with considerable interest when the Opposition spokesman the hon. Member for Kingston upon Hull, North ( Mr. McNamara) put a case for leaving the law in Northern Ireland as it stands, on the basis that, apart from terrorism, we are a law-abiding society. To follow that case to its logical conclusion would mean dividing the United Kingdom into blocs—those that were law—abiding and those that were not—with different laws for different places. That is the practice in Northern Ireland, but it cannot be defended, because, so far as is possible, the law should be the same throughout the United Kingdom.

As has already been pointed out, the order covers some 90 pages, so it might appear to any disinterested and impartial observer that this important matter is being dealt with in a rather cavalier fashion. International crime is increasing and there are particular problems with crimes such as serious fraud. The appearance of a certain person in court in Northern Ireland earlier this year arising out of the De Lorean affair should convince anyone that there needs to be an updating of the law, especially in respect of serious fraud.

There is a gap that needs to be filled, and insofar as the order strengthens the law it should be welcomed by every law-abiding citizen. There is a necessity periodically to reform and update the law in Northern Ireland and throughout the United Kingdom. It cannot be left for ever as it stands. We have only to look at the list of repeals to realise that many go back more than 100 years. It is therefore appropriate that we should consider these matters rather more frequently.

There are various differences in the law. One is in respect of the powers of entry, search and seizure and the additional protection given to the source of information. That is one of the parts of the order where there is a different attitude even to what we describe as ordinary crime in Northern Ireland. Terrorism has permeated that society to such an extent that there are certain dangers which are not evident to the same extent on this side of the Irish sea. Sources of information, for example, are particularly vulnerable if identified, and must be protected. I personally welcome the extra protection that the order provides.

A problem arises in respect of the timescale for implementing such changes. The Minister said that the Police and Criminal Evidence Act became law in 1984, whereas the provisions before the House will not take effect until next year—six years after the Police and Criminal Evidence Act 1984. That is six years too long. Every sensible, law-abiding citizen, and every right hon. and hon. Member, wants to see the guilty persecuted or prosecuted—personally, I do not mind which, though I think that they should be clobbered. But the guilty have been getting away with it for six years, which is unacceptable in any society.

The Police and Criminal Evidence Act 1984 could easily have included Northern Ireland, and it should have done so—especially if there are to be other differences between Northern Ireland and British Law. How much wiser and better informed right hon. and hon. Members would be if points of relevance to Northern Ireland had been argued in Committee and on the Floor of the House during the passage of that legislation. That Bill offered a golden opportunity to increase understanding among right hon. and hon. Members of conditions in the Province, but it was deliberately passed up by the present Administration for reasons of their own.

If the order is to be effective and to have beneficial consequences, it is essential to ensure sufficient manpower. I understand that the police have one or two reservations about that aspect. One assumes that there will be a need for a custody sergeant in every police station, who will perform a very important function. I am curious to know whether the number of sergeants in the Royal Ulster Constabulary will be increased by 60 for that purpose, or whether the duties of custody sergeant will be lumped together with the responsibilities of existing station sergeants. We should like a categorical assurance that any increase in manpower will be funded by central Government. There may also be downstream conse quences in respect of the constables on duty at stations where suspects are held. That aspect, too, should be clarified.

There may be difficulties in relation to officers holding the rank of inspector and above. They are deeply involved in the preparation of cases, all the way down the line. They will need additional training and to be fully informed of the consequences of the order. Time and money will have to be spent on the re-education and retraining of senior officers, but no extra manpower or money has been made available for that purpose.

Paragraph 7 on page 4 of the "Explanatory Document" points out

it is important that the resources and training of the police are sufficient". Will that apparent commitment be fulfilled?

As to television evidence, this is one of those rare occasions when I find myself agreeing with the hon. Member for Kingston upon Hull, North. I cannot understand how an individual can be cross-examined at the far end of a television camera in the Irish Republic, Canada, Australia, or France. I should like an explanation of how that arrangement will work in practice. This is another apparent instance of a spillover of terrorist involvement. Will the individual appear on a television screen in court, to be identified by the evil, wicked people against whom he is giving evidence, or by their friends? If so, he will immediately be in mortal danger, and the fact that he is only an image on a television screen will not help him.

I do not share the misgivings expressed about the collection of DNA material. Innocent people will have nothing to fear from providing that which will clear them, and the material will be sought only when the police have material with which it can be compared.

I am sorry that we have such a short time in which to discuss the matter, for much more needs to be said—and can be said. Finally, can the Minister tell us how the public views on policing will be obtained? I have thought about that already—would it not have to be through the various police liaison committees that already exist?

1.25 am

Mr. Seamus Mallon (Newry and Armagh)

I am very much aware that other hon. Members wish to participate. Suffice it to say that I share the view that legislation such as this is rushed through in such a way that hon. Members must abandon the substantive elements of what they wished to say and proceed to the broader points.

Some hon. Members have asked why the legislation should apply in the north of Ireland: was there not a case for a rather different approach? The Government's explanatory document gives the reasons, and I think that they are worth examining. The document states:

The protection and safeguarding of suspects' rights under all circumstances is particularly important in Northern Ireland, where allegations have been made in the past…Accordingly…it would be of considerable benefit to both the police and the public if arrangemens governing the questioning and treatment of persons in custody were more clearly defined and placed on a statutory footing. I welcome the reference to a statutory footing, which we never see again in the legislation. I also welcome the information that it is to apply to all suspects' rights—which is immediately contradicted, not only in the legislation but in the explanatory document. Before we even open the order, we see the inherent contradiction based on a statement made in the Government's own explanatory note. That is typical of their position on the issue.

One paragraph in the document is headed "Parity with England and Wales".

It tells us why the Government want such parity: The Government firmly believes that everyone in the United Kingdom should be equally protected under the law". Giving five instances, it tells us why, and shows us how, those in the North of Ireland will not be protected on equal terms under the law to people in England and Wales.

The Government cannot be allowed to have it both ways. Either there are special circumstances in the north of Ireland requiring a special type of legislation in relation even to the criminal law, or there are no such circumstances and there should be full parity. That is the dilemma in which the legislation puts us—and the rather silly position in which the explanatory document, on close reading, puts the Government. It is no position on which to base a criminal law that will be with us for a long time.

The most fundamental weakness is this: where the protection of the codes of conduct is most needed—in relation to the Northern Ireland (Emergency Provisions) Act 1978 and the Prevention of Terrorism (Temporary Provisions) Act 1984—it simply does not apply. Yet we are told: the protection and safeguarding of suspects' rights under all circumstances is particularly important.

On DNA testing, we are told that we are to have parity with England and Wales. I make no virtue of parity because I am not making a case for it, but when a Government state that all people in the United Kingdom must be treated equally and that parity is sought, it should apply and there should be no contradictions in succeeding sections.

One could ask what makes ordinary crime in Northern Ireland so different from ordinary crime in England, Scotland and Wales that we must have four or five substantial differences in the same piece of legislation. What is the difference between a person who robs a shop in Northern Ireland and a person who robs a shop in Birmingham? I believe that there is no difference. Those anomalies and contradictions show that we are running into danger. We had hoped that the ordinary criminal law that applies to people who are not involved in terrorism would blur the edges of the harsh, repressive legislation in the Prevention of Terrorism Act and the Emergency Provisions Act. Unfortunately, it has gone the other way.

There is almost a hidden curriculum in the Police and Criminal Evidence Order. Rather than softening the edges of the emergency legislation, the emergency legislation is encroaching on the ordinary criminal law. In this piece of legislation, as in many others, bets are hedged because of the parallels between the criminal law and the emergency legislation. That is dangerous to confidence in the law. One could ask why are there differences in the application of DNA testing. Why are there differences in the law relating to the seizure of materials under the Prevention of Terrorism Act? If a person is held under that legislation here, he has the protection of the codes of conduct, but if he is 20 miles away across a piece of water he does not have that protection. Surely that is not parity, sense or justice. We have to examine the hidden curriculum as well as the detailed elements within the legislation.

I am aware that others are waiting to speak, so I shall dispense with many of the points that I would have made had we been dealing with normal legislation. We must be careful that the leakage between the two sections of law is monitored very closely. It is not bringing us back to normal; it is removing the normalisation of the ordinary criminal law. That inexorable movement towards emergency law becoming part of the criminal law must worry anyone who studies the legislation.

Finally, I must mention a point made by the hon. Member for Londonderry, East (Mr. Ross). How does one instigate and implement statutory consultation with something or someone called "people"? That is stated in the explanatory document and in the legislation. I wait with great interest to be told how one can have statutory consultation with people. They are not defined as those who are elected or those who carry out a certain function, but are simply people. Such a woolly, imprecise definition has caught the eye of people in the north of Ireland because they have seen for a long time that what the Government mean by "people" are those who happen to agree with them on any specific issue at any moment.

1.34 am

Mr. Alex Carlile (Montgomery)

Like one or two other hon. Members here tonight, I was a member of the Standing Committee on the Police and Criminal Evidence Bill. My feeling tonight is more than merely a rather uncomfortable one of deja vu. I agree very much with what was said by the hon. Member for Eastbourne (Mr. Gow). I remind him of the additional point that the Standing Committee had 59 sittings—the record number, I believe, held by any Standing Committee for any Bill passed by the House—quite apart from the discussions that took place on the Floor of the House. No hon. Member for Northern Ireland was a member of that Committee and Northern Ireland issues were not discussed in any detail. It is astonishing that in the middle of the night we should be having a debate as short as one and a half hours to deal with matters of such substance.

Having watched the progress of the Police and Criminal Evidence Act 1984 over the past five years, I welcome the introduction of at least some of its provisions into Northern Ireland. Although judicial application of the code on the detention, treatment and questioning of prisoners has been inconsistent, by and large it has been of benefit to the innocent and can rarely be said to have helped the guilty to escape conviction. That is a beneficial advance.

However, I agree with hon. Members from Northern Ireland that there is no sound basis for distinguishing between people who are being detained and questioned under the emergency provisions and those detained and questioned for ordinary crimes. They are all entitled to the same treatment. We do not set out to apply different standards to the way in which they are asked questions by the police.

I want to deal with two specific issues, both of which were mentioned in some detail earlier in the debate. The first relates to mouth swabs. I ask the Minister a simple question. Why is the mouth an intimate orifice in Liverpool, but not in Belfast? Why is the same person not subjected to the forcible removal of a sample from his mouth in Liverpool, but is subjected to it in Belfast? It is completely illogical. If the Government's real wish, as it appears to be, is to legislate to permit the taking of intimate samples by force, they should say so and allow the matter to be debated honestly.

Clearly, the Government have decided to allow in Northern Ireland only the taking of an intimate sample by force. I would go further and ask the Minister whether the Government have considered the effect of article 3 of the European convention on human rights in this context. Is it not the case that the United Kingdom Government run a severe risk of forcible searches of an intimate orifice, such as the mouth, being regarded as degrading treatment by the European Court of Human Rights and, therefore, contrary to article 3? I hope that the Minister will tell the House that that point has been considered and what advice he has received.

Why do the Government feel that they need a provision to allow the forcible taking of oral swabs, as proposed in the order, at all? Do they not think that article 62(10) is sufficient? If a person is asked to give an intimate sample, as defined by the order and under the Police and Criminal Evidence Act 1984, and refuses, the court can draw an inference of guilt from that very refusal. That is something that we have been practising in the courts of England and Wales since the Police and Criminal Evidence Act 1984 received the Royal Assent and came into effect. Why is it not good enough simply to have the same provision in Northern Ireland?

The forcible taking of oral swabs is a hostage to fortune. It will be difficult for the police to operate. There will be accusations of unnecessary violence in the taking of samples and police officers will be injured in taking those samples while, in evidential terms, the Government will probably gain next to nothing.

My second detailed point relates to video links, a matter that has already been discussed by the hon. Member for Kingston upon Hull, North (Mr. McNamara). There is a substantial difference between the permissible video-link evidence in England and Wales, and what is proposed in this order. In England and Wales the video link can be used only for the evidence of children under 14 in certain specified cases and—although I have not heard of a case in which it has been used as yet—in certain circumstances if a witness is outside the jurisdiction.

What seems to be envisaged now for Northern Ireland is that any witness who feels afraid may give his or her evidence by video link. But what is the test of fear to be? It is not even phrased as "well-founded fear". It seems an entirely subjective test. Judges will be entitled to allow evidence to be given by video even if a witness has genuine but ill-founded fear.

The immediacy of the court room is important. It is helpful to judges and to juries, where there is a jury, to see the witness's demeanour and reaction to questioning—the way in which the witness deals with the questions, and the pauses before an answer is given—but it simply will not be possible to have that immediacy if video links are used widely. Of course they are justified for children because of other emotional considerations, but it is important that we resist them where they are not necessary. We must remember that adult witnesses may be giving evidence of the minutiae of a case. It is difficult to deal with plans, documents, computer data and so on when one is asking questions via a television camera of someone who may be remote.

In addition, I suspect that the use of video links, as envisaged in the order, would encourage the self-interested so-called "accomplice" or "supergrass", who may feel that he can gain personal advantage by giving false evidence and who will feel secure in doing so if the residual provisions of the order are brought into effect and he can give that evidence using a changed identity from a television studio in some distant part of the world. These provisions will not necessarily mean that the evidence will be more reliable. Indeed, there may be a significant temptation for the witness to give even less reliable evidence, but to seem more credible.

In the practicable circumstances of a court, it is not always as easy as some imagine to detect, even of a witness who is actually standing in the court, whether he is telling the truth or he is telling lies. It will be very much more difficult to detect the lies of someone who is merely a face on a television monitor, giving evidence in the comfort and security of a studio many miles away.

Therefore, although I welcome the introduction of many of the protections—I agree with what was said earlier by the hon. and learned Member for Burton (Mr. Lawrence) in an intervention—I invite the Government to look closely at the two issues that I have raised. They may be the issues that will give rise to the controversies and the litigation by which this order will be judged.

1.44 am

Ms. Marjorie Mowlam (Redcar)

Several specific points have been made in this debate. In view of the time, I shall not repeat them, but it is important to emphasise the underlying assumptions on which they were based. They were based on the need to balance giving the police necessary powers and protecting civil liberties—a balance that was referred to by many hon. Members this evening.

The Minister emphasised that the new powers must be used impartially and responsibly to protect civil liberties. In relation to Northern Ireland, that dimension is very important, particularly as concerns have been voiced about the operation of the Police and Criminal Evidence Act 1984 in England and Wales, in that in some senses it favours the police. That would be a specific problem in Northern Ireland because it is very important to keep the balance between the police and the public to ensure that they work closely together. The hon. Member for Newry and Armagh (Mr. Mallon) stressed that, as PACE affects Northern Ireland, it is non-emergency legislation and is general criminal law. It is therefore very important that the balance between police powers and civil liberties is seen to be kept.

In that context, I wish to concentrate on a point that has not been emphasised so far. One of the important features of PACE is that it guarantees a suspect's right of access to legal advice. The Minister has already outlined the circumstances in which there would be a delay in access to a lawyer. He referred also to the nature of the limited range of serious arrestable offences when access would be allowed only on the authority of a superintendent. The guarantee of a suspect's right of access to legal advice is clearly a great improvement on the pre-PACE legislation, and we welcome that. An important point in relation to PACE as it affects Northern Ireland is that the guarantee of legal advice is only of value if it is implemented.

The guarantee of legal advice in the Police and Criminal Evidence Act 1984 was implemented through the setting up of 24-hour duty solicitor schemes under which anyone suspected, arrested and taken to a police station could obtain advice from the police duty solicitor. The important point about PACE in England and Wales is that part of the 1984 Act required—and "required" is an important word—the Law Society to establish police duty solicitor schemes.

Section 54 of the Police and Criminal Evidence Act 1984 affecting England and Wales sets up legal advice, and another section establishes legal aid for persons at police stations. The Northern Ireland PACE establishes access to legal advice in section 59. It would be useful if the Minister could explain why legal aid for persons at police stations is missing from PACE Northern Ireland. Without that provision, we face the problem that the principle of legal advice is in the legislation but no mechanism with which to achieve it. Perhaps the Minister can explain in relation to that crucial and fundamental aspect of PACE how we can have the principle on the face of the legislation, but have no mechanism to achieve it.

Clearly there are difficulties in Northern Ireland and I do not want to under-estimate them. There are problems with the Law Society in Northern Ireland because it is not organised on a regional basis, as it is on the mainland. Smaller local associations would make it difficult to liaise. The demographic and geographic factors militate against a statutory scheme. However, there must be some kind of scheme or people may be entitled to legal advice but unable to get it.

I understand that there are only two experimental schemes working in that respect at present—one in Belfast and the other in Craigavon; no doubt, hon. Members will correct me if I am wrong. There is no basis for a statutory scheme to operate on. It would be useful if the Minister could tell us what stage consultations on a statutory scheme have reached. It would be useful if he could clarify at the same time whether the statutory scheme would apply to people who go voluntarily to a police station as well as to those who have been arrested.

I agreed with the comments made by the hon. Member for Londonderry, East (Mr. Ross) about the need to clarify the definition of a designated centre. I understand that the RUC has not yet decided which police stations should be designated. The hon. Member for Londonderry, East suggested that every police station would be a designated station. That is not made clear in the explanation to the order. It would be useful to know that.

Solicitors in Northern Ireland may resist a duty solicitor scheme on the grounds that they have spent years building up a client base in a difficult environment and are not prepared to share it with a duty solicitor. It is crucial for the Minister to clarify that or there may be no chance to plan and inform people of the changes necessary to make the fundamental principle of PACE work.

Since PACE was introduced in England and Wales, it has increased threefold the demand for legal advice services. I hope that the Minister has taken that into account and is planning for the increased demand for legal advice services. If he has not, then clearly the structure of advice available will not work effectively in Northern Ireland. We need to know the scale of the preparations that the Minister has made. There is also the matter of finance. As we know, many solicitors in England and Wales find legal advice financially unattractive. It would be useful to know what provision the Minister has made to make that problem less crucial in Northern Ireland.

That is an important matter, because if one puts alongside inadequate legal advice the provisions about the right to silence, one finds that advice at the police station becomes even more important for a suspect. I am sure that the Minister is aware that solicitors on the mainland may well offer advice by telephone. That is a special problem in Northern Ireland, where a solicitor may need to go to a police station to advise a client specifically about the implications in court of the right to silence.

Perhaps the Minister will outline the practical implications of omitting section 60 of PACE in England and Wales from the Northern Ireland legislation. Without legal aid for people at police stations, suspects may well find it impossible to get legal advice, without which PACE in Northern Ireland is of limited value. If suspects are denied that fundamental right, and the right to remain silent, we are in a serious situation. As I said earlier, the protection of civil liberties and the granting of necessary powers do not need to be mutually exclusive. If the fundamental principle of PACE Northern Ireland is not implemented by this legislation, at best it is legislation of limited value and at worst it is meaningless. That point must be addressed.

We wholeheartedly support the need for proper, sensible policing practices and the police must be supported in that respect. As it stands, the legislation will potentially damage rather than enhance the principle and prospect of bringing the police and the public closer together.

1.53 am

Mr. Ian Stewart

In the time that is available I shall endeavour to respond to as many as possible of the points made in the debate. Some hon. Members have asked specific and technical questions of some detail and I shall respond in writing if I do not have time fully to reply to them now.

Mr. William Ross

Not for the first time, the Minister is following a long catalogue of Ministers who have stood at the Dispatch Box during the years that I have been here and said, "I will write to the hon. Gentleman." When they do, they simply respond to the point that the recipient of the letter has made, even though the interest in the subject goes much wider. When the Minister sends a letter will he cover all the unanswered points made by all those who took part in the debate?

Mr. Stewart

That is an interesting comment and I shall consider it when reading the Official Report of the debate.

I was glad to hear the general welcome from the Opposition, from my hon. Friend the Member for Eastbourne (Mr. Gow), from the hon. and learned Member for Montgomery (Mr. Carlile) and from other hon. Members for the order.

I have been asked about the time that the order has taken. Although the Police and Criminal Evidence Act was enacted in 1984, it was not until 1986 that it was fully introduced in practice. We followed that with a careful examination of the way in which the PACE proposals would fit into the legal system of Northern Ireland which, although closely comparable with that of England and Wales, is not precisely the same and, therefore, had to be considered in detail. Then a year ago we published the draft order, with the explanatory document. We felt that it was right to allow proper time for consultation, especially as a number of technical questions of the sort asked tonight were raised. Then, without further delay, we introduced the order. I have asked the RUC, through the police authority, to implement the provisions of the order with effect from the beginning of next year, which I am assured will be possible. In the interim, we shall be publishing the draft code. There will be time for consultation on that, so that the formal code can be issued before the matter is fully implemented next year.

The hon. Member for Londonderry, East (Mr. Ross) mentioned resources. The introduction of PACE was taken into account in the setting of the finances for the Royal Ulster Constabulary in the current financial year, and the necessary training of the personnel involved, which for general purposes covers most of those in the RUC and those with specific responsibilities, will take place in the later months of the year. Those who are involved, such as custody officers and inspectors, will, under the terms of the order, have new responsibilities. Up to now, they have had responsibilities of a different sort under the existing arrangements. More formal and specific responsibilities are being laid upon them, but they are not necessarily extra. That is a change very much for the better. After being so fragmented, the provisions are now more organised and formal. Inspectors, sergeants and ordinary members of the RUC believe that it will be a more effective system and one which they will be glad and ready to operate.

The hon. Member for Redcar (Ms. Mowlam) said that the balance was important. I am glad that she picked up that point, because it is necessary to see the order not only as setting out the formal powers of the police to be used in the circumstances that have been described, but to ensure that the rights of a suspect and of the individual are fully recognised.

We will, of course, want to monitor the progress of the provisions. I assure the hon. and learned Member for Montgomery, the hon. Member for Kingston upon Hull, North (Mr. McNamara), who made a number of specific points, and other hon. Members who have spoken, that we will certainly want to see how, in practice, the measures in the order are implemented.

I agree with the hon. Member for Redcar that there should be proper access to a lawyer for a suspect who wants it, although they do not all wish to have such access, by any means. Many of them believe that they can do better on their own. However, for those who wish to have access to a lawyer, the number of solicitors readily available in Northern Ireland is much greater than was the case in England and Wales when PACE was introduced. I shall consider carefully the points that the hon. Member for Redcar made about that. It is not that Northern Ireland does not need a statutory scheme and that England and Wales do. In England and Wales there were special difficulties and, without legal aid provisions, there was a problem regarding ready access to a pool of solicitors. For that reason special provisions were made.

The hon. Member for Redcar also asked about the designation of police stations. I would expect one station in each division to be designated, perhaps more. The number of designated stations has not been settled at this stage, but obviously they must be available in all areas of the Province.

A number of hon. Members drew attention to the differences between the provisions of PACE for England and Wales and those of the order. The hon. Members for Kingston upon Hull, North and for Newry and Armagh (Mr. Mallon), among others, touched on that. The overwhelming body of the order is almost exactly parallel to the legislation for England and Wales, apart from such technical matters as are required to adjust for the differences between the two jurisdictions.

There is room for a difference of opinion as to whether the televising of evidence from witnesses should be extended to those who may be in fear of intimidation. I accept that Opposition Members have doubts about that, and it will be for the courts and the judges to decide. We will try to ensure that, as far as possible, court room conditions are replicated.

Mr. McNamara

The Minister said that it will be for the courts to decide about the televising of evidence, but the order says that the regulations will be made by the Secretary of State. Who will do it—the Secretary of State or the courts?

Mr. Ian Stewart

The hon. Gentleman is referring to the extension of the televising arrangements to those outside Northern Ireland and those outside the United Kingdom. Those provisions are still some way off and there are no current proposals for their implementation.

I was referring to the extension of the televising of evidence—it was described as a dangerous extension—to those witnesses in fear. Unfortunately, intimidation in Northern Ireland is a prevalent factor that must be taken into account. We have engaged in widespread consultation and it is the clear view of the Government that it is right to make that extension in the case of Northern Ireland.

Other differences that have been mentioned are simply developments on the processes embodied in PACE. The hon. Member for Londonderry, East welcomed the extended power under part III of the order. That is an improvement on the position in England and Wales. The fact that reasons will not have to be given if they prejudice not only the particular investigation but other investigations offers a protection to the forces of law as suspects will not be alerted in ways that may make the proceedings in that or other cases difficult to follow up. Such developments represent an advance.

A different change relates to mouth swabs. The order describes them as non-intimate, whereas in the original PACE legislation they were described as intimate and therefore to be done only with the permission of the suspect. The main reason for the difference is that there has been significant improvement in DNA techniques since PACE. It is now possible to take swabs from the mouth, which can be of value for DNA purposes, without any great intrusion on the individual. They can be taken simply between the lip and the gum. It does not require force. The samples can be valuable, in comparison with other DNA evidence, as part of the case against suspects who may be guilty, or in establishing someone's innocence. That is an important part of the purpose behind the technique.

Mr. Roy Beggs (Antrim, East)

Is the Minister saying indirectly that the same legislation will be introduced in England and Wales?

Mr. Stewart

The hon. Gentleman will have to ask my right hon. Friend the Home Secretary about that. When we considered the DNA provisions in the order for our purposes in the light of present scientific knowledge, we concluded that mouth swabs did not involve scraping or unwarranted intrusion into intimate orifices of the body and could be done simply and in a matter of seconds from between the lip and the gum and prove of value.

I do not have responsibility for these provisions in England and Wales, and I do not know when they will next be reviewed, but the same provisions may have been made in the original legislation—

It being one and a half hours after the commencement of proceedings on the motion, MR. DEPUTY SPEAKER put the Question, pursuant to Standing Order No. 14 ( Exempted Business).

Question agreed to.

Resolved, That the draft Police and Criminal Evidence (Northern Ireland) Order 1989, which was laid before this House on 15th June, be approved.