HC Deb 13 April 1994 vol 241 cc259-90 6.30 pm
Mr. Tony Blair (Sedgefield)

I beg to move amendment No. 4, in page 19, line 9, after '(1)', insert—

'The provisions of this section shall not apply to an accused—

  1. (a) in respect of the time prior to his being interviewed in the police station; and
  2. (b) unless he has been informed of his right to legal advice from a qualified solicitor, together with an opportunity to consult that solicitor in private.


Mr. Deputy Speaker

With this it will convenient to discuss also the following amendments: No. 250, in page 19, line 9, after 'proceedings', insert 'triable only on indictment'.

No. 251, in page 19, line 9 after 'person', insert '(other than a child)'.

No. 248, in page 19, line 9, after 'offence', insert 'or in any proceedings to commit an accused for trial'.

No. 253, in page 19, leave out lines 11 to 14 and insert— `(a) at any time when being interviewed at a police station or other premises in accordance with the provisions of the Police and Criminal Evidence Act 1984, and on being questioned by a constable in relation to an offence, failed to mention any fact relied on in his defence in those proceedings; or'.

No. 316, in page 19, line 19, after 'be' insert 'and provided that such questioning or charging shall have been tape-recorded in accordance with the provisions of the Police and Criminal Evidence Act 1984.'.

No. 247, in page 19, line 20, after 'applies', insert 'unless the court is of the opinion that it is not in the interests of justice in all the circumstances for that subsection to apply'.

No. 319, in page 19, leave out lines 21 to 34.

No. 31, in page 19, leave out lines 33 to 35.

No. 313, in page 19, line 34, leave out `(c)'.

No. 249, in page 19, line 34, leave out 'court or'.

No. 320, in page 19, line 36, at end insert 'provided that the evidence given in accordance with subsection (1) above is not by itself to be considered sufficient evidence that there is a case to answer.'.

No. 252, in page 19, line 44, at end insert— (5) Subsection (2) above shall not apply unless the accused was told in ordinary language prior to being questioned by a constable about the offence—

  1. (a) what the effect of this section would be if he fails to mention any such fact as described in subsection (1) above; and
  2. (b) his entitlement to consult a solicitor in private before being interviewed about the offence at the police station; and
  3. (c) the facts available to any constable at the time supporting the accused's involvement in the offence.'.

No. 246, in page 20, line 11, after 'occurred', insert '(a) by reason of the accused person suffering from mental disorder or mental handicap or was due to his capacity to understand the significance of or respond to questions being impaired for any other reason; or (b)'.

No. 314, in page 20, line 11, at end insert— `(7) Subsections (1) and (2) shall not apply unless the accused was told in ordinary language by the constable (when being questioned in the circumstances of subsection (1)(a) above) or by the charging officer (in the circumstances of subsection (1)(b) above) what the effect would be of his failure to mention any fact relied on in his defence in those proceedings.'.

No. 5, in clause 30, page 20, line 12, leave out from beginning to end of line 18 on page 21.

No. 309, in page 20, line 12, after '(1)' insert— 'At the trial of any person for an offence, the court or jury, in determining whether the accused is guilty of that offence, may draw such inferences from the failure of the accused to give evidence as appear proper.

(2) Subsection (1) above shall not apply where

  1. (a) the accused is a child; or
  2. (b) the accused's guilt is not in issue; or
  3. (c) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; or
  4. (d) the court, in the exercise of its general discretion considers the application of subsection (1) to be inappropriate.

3) Where the accused is unrepresented by counsel or solicitor the clerk of the court shall inform him in ordinary language what the effect of his failure to give evidence will be provided that

  1. (a) subsection (2) above does not apply, and
  2. (b) where the trial is by jury, the information shall be given in the absence of the jury.'.

No. 307, in page 20, leave out from (1) in line 12 to end of line 46.

Government amendment No. 333.

No. 231, in page 20, line 17, after 'evidence', insert 'or (c) it is not in the interests of justice in all the circumstances for the above-mentioned subsections to apply.'.

Government amendments Nos. 335 and 336.

No. 226, in page 20, line 21, after `defence,', insert 'and in the absence of the jury,' No. 228, in page 20, line 22, leave out 'will' and insert 'may'.

No. 227, in page 20, line 23, at end insert— '(aa) shall tell him the grounds on which the court is satisfied that he has failed to supply an explanation upon an important issue in the case; and'.

No. 230, in page 20, line 29, after 'thereupon', insert `after hearing representations from or on behalf of the accused'.

No. 229, in page 20, line 29, leave out 'shall' and insert 'may'.

Government amendments Nos. 337 to 339.

No. 308, in page 21, leave out lines 1 to 6.

No. 310, in page 21, line 6, leave out '(7)' and insert '(4)'.

No. 311, in page 21, line 9, leave out '(8)' and insert '(5)'.

No. 232, in page 21, line 9, leave out from 'applies' to the end of line 15 and insert only to proceedings where the accused person was first questioned about or charged with the offence after the commencement of sections 29, 31 and 32'.

Government amendment No. 340.

No. 312, in page 21, line 16, leave out '(9)' and insert '(6)'.

No. 254, in clause 31, page 21, line 20, after 'person', insert '(other than a child)'.

No. 245, in page 21, line 34, after 'person', insert 'while he is being interviewed at a police station or other premises under the provisions of the Police and Criminal Evidence Act 1984.'.

No. 244, in page 21, line 37, after 'applies', insert `unless the court is of the opinion that it is not in the interests of justice in all the circumstances for that subsection to apply.'.

No. 233, in page 22, line 3, after 'above', insert '-(a)'

No. 234, in page 22, line 4 after 'request', insert '; and (b) his entitlement to consult a solicitor in private before being interviewed about the offence at the police station; and (c) the facts available to any constable at the time supporting the accused's involvement in the offence.'.

No. 235, in page 22, line 10 after 'occurred', insert— `(a) by reason of the accused person suffering from mental disorder or mental handicap or was due to his capacity to understand the significance of or respond to questions being impaired for any other reason; or (b).'.

No. 236, in clause 32, page 22, line 12, after 'person', insert '(other than a child)'.

No. 237, in page 22, line 19 after 'person', insert while he is being interviewed at a police station or other premises under the provisions of the Police and Criminal Evidence Act 1968.'.

No. 238, in page 22, line 24 after 'applies', insert unless the court is of the opinion that it is not in the interests of justice in all the circumstances for that subsection to apply.'.

No. 240, in page 22, line 32, after 'above', insert '-(a)'

No. 239, in page 22, line 33, after 'request', insert 'and (b) his entitlement to consult a solicitor in private before being interviewed about the offence at the police station; and (c) the facts available to any constable at the time supporting the accused's involvement in the offence.'.

No. 242, in page 22, line 38, after 'occurred', insert— `(a) by reason of the accused person suffering from mental disorder or mental handicap or was due to his capacity to understand the significance of or respond to questions being impaired for any other reason; or (b).'.

Government amendments Nos. 355, 357, 360, 356, 358 and 359.

Mr. Blair

This is an important debate concerning the issue of the right to silence, as it called, which is pan: of the more general principle that a person has the right under British law not to incriminate himself. The prosecution must prove guilt, and there is a presumption of innocence -these are fundamental principles of our law.

It is not, of course, that the jury cannot know of, read about or see the accused's failure to speak or to disclose facts. They can, and juries will do so. The fact that someone has refused to speak is not inadmissible evidence, and juries know that it happens and no doubt bear it in mind.

However, the critical point is that, at present, the judge and the prosecutor cannot comment adversely upon that refusal to speak and invite the jury to draw adverse inferences of guilt. Under the terms of the Bill, they will be able so to comment.

Therefore, even if, technically, the right to silence remains, there will be in effect strong practical pressure on those who are accused to talk. That is a change in those fundamental principles of law. I do not say that fundamental principles of law can never change, but they should yield only if there is a clear benefit, and no detriment which outweighs the value of the principle.

Our conclusion, along with that of the Royal Commission on criminal justice, is that this has not been demonstrated, and that the case for changing the fundamental principles in this way has not been made. We go further, and say that it is more than merely a matter of high constitutional principle. There is a serious and substantial risk that, in the manner in which the Government have proceeded, we will not merely fail to convict more of the guilty, but that we are in danger of convicting more of the innocent. Those who are in primary danger from the changes will not be, as has been said, the professional and the hardened criminal, but they could well be the weak, the inadequate and the frightened.

It is self-evident to any sensible person that the circumstances in which people may be questioned and asked to disclose facts relevant to their defence, and indeed the justification for requiring them to do so, can vary enormously. There is the time when someone is first questioned by a police officer on the street, through to the police station, to the pre-trial review and finally to the trial at court.

I believe that the single most extraordinary feature of the Government's proposals—what makes them chilling in their degree of political, rather than judicious, motivation—is that they do not seek simply to abolish the right to silence in a limited or controlled way or under certain conditions. Rather, they abolish it completely, in all circumstances and without any apparent additional safeguards whatever. I would further say that they have been thoroughly disingenuous in their attempt to present their proposals as the development of thinking that has gone before.

Briefly—I know that other hon. Members wish to speak—I wish to recap a little of the history of the matter. The Home Secretary has relied heavily on the Criminal Law Revision Committee report of 1972 to justify his position. It is true that the committee did say more than 20 years ago that the right to silence should be restricted. However, even it referred to the matter primarily in terms of what is called the ambush defence; in other words, where the accused suddenly at his trial relies on different facts, catches the prosecution by surprise and gains some unfair advantage. I could well understand the frustration of police officers in those circumstances.

In 1981, a royal commission disagreed even with that restriction on the right to silence, and said that it should remain unrestricted. In July 1987, a previous Home Secretary—now the Foreign Secretary—began to inquire

again into the nature of the right to silence. Again, I would submit that the limits and the evil at which he wished to strike were clear and limited.

The right hon. Gentleman said: the question in my mind is not whether a suspected or accused person should have a right to remain silent through investigation and trial—he has that right and should continue to have it—but whether, when an accused person ambushes the prosecution by producing at his trial a line of defence which he has not previously mentioned to the police, the court should be precluded from drawing reasonable inferences." —[Official Report, 18 January 1988; Vol. 125, c. 687.]

He later set up a working party, which concluded that the problem was the last-minute ambush defence of the prosecution.

The royal commission, which was set up some time ago and reported in July last year, considered the right to silence and commissioned research on the subject. First, it came to the conclusion that there was insufficient evidence to support the claim that that right was relied on in many cases, or that it caused great problems with the administration of criminal justice.

Secondly, it decided by a majority to retain the right to silence, but dealt with the problem of the ambush defence by saying that there should be a greater and more mutual disclosure of the prosecution and defence cases. We would certainly agree. It is a sensible recommendation, and it goes a long way towards dealing with the ambush defence problem.

It is true that the minority of royal commission members disagreed with the majority's conclusions. It is important, however, to understand the terms in which the minority decided that the right to silence should be abrogated. I disagree with the conclusion—it is a matter of principle—but it is important to understand their limits set on the amount to which that right should be abrogated.

The report states: Those who support a modification of the right to silence"—

that is the minority— argue that such a step would not lead to a weakening of the protection provided for the innocent and vulnerable. The safeguards of PACE and its codes are already significant and might be extended, for example to allow suspects who are emotionally upset the opportunity to postpone an interview. Suspects may already ask for a second interview if they wish to retract or modify anything said earlier. Access to free legal advice is, in itself, a valuable safeguard … Much more use could be made of audio or video recordings"—

and so forth.

The commission did not recommend that the right to silence be changed, and even the minority desired to do so only with additional safeguards in place. The Home Secretary and the Government tried to say that they were following the minority recommendation of the royal commission. It is important to point out, however, that that minority never contemplated abolition to anything like the extent that the right to silence would be abolished by the Bill.

For example, the minority did not conceive of the right being abolished prior to a suspect reaching a police station, which is a critical point, but envisaged that the right would be abrogated when the suspect was in the police station only if additional safeguards were in place.

Clause 29 of the Bill means that the right to silence is lost, even on questioning in the street. Whenever that issue has been raised, Ministers have said that there will be safeguards, because the Police and Criminal Evidence Act 1984 will apply.

The Secretary of State for the Home Department (Mr. Michael Howard)

indicated assent.

Mr. Blair

I see that the Home Secretary nods his head. However, it will not apply before a suspect is interviewed formally at a police station.

The notion that safeguards within PACE will control all the circumstances of the abolition of the right to silence is false. It will not do so. PACE will apply only once the suspect is being interviewed at the police station. Even then, the Bill does not require that people should know roughly the nature of the charges against them, that they should have access to properly qualified legal advice, or even that adherence to the conditions of PACE is a precondition of admissibility. There will be nothing like the safeguards suggested by the minority in the royal commission report.

6.45 pm

The danger of proceeding in such a way has been described again and again by many eminent Queen's counsel who are practising lawyers in the field and who prosecute as well as defend. Richard Ferguson, the chairman of the Criminal Bar Association, who is a Queen's counsel and was a Member of the Stormont Parliament in the 1970s, said: The Criminal Bar Association strongly opposes any diminution of the right to silence. It will not help to convict the terrorist or the sophisticated criminal. They will hide behind their solicitors advice or the lack of it to argue reasonable grounds for not answering questions. It will increase the possibility of a wrongful conviction of the weak, the inarticulate and the confused.

Surely, even if we differ on the question of principle—whether the right to silence should be curtailed, and I do not believe that it should—it is wrong to abrogate the right without establishing any safeguards against abuse, given past experience and the judgment of the royal commission. It is not in the interests of the accused, but it is also not in the interests of the people who will conduct the questioning.

If the right to silence is abolished before the accused reaches the police station, one risks a descent into the old nightmares familiar to people who practised law in the 1970s—the allegations of police brutality, verbals and false confessions. There would be trials within trials, which would prolong criminal cases and cause the problems that used to be caused before PACE.

Mr. Harry Greenway (Ealing, North)

I have listened with care to the hon. Gentleman. He has only mentioned the effect on the confused and the weak of removing the right to silence. What about stronger people, or people who might be expected to be stronger? What effect will it have on them?

Mr. Blair

Mr. Ferguson dealt with that very question. He came to the conclusion—it was also the view taken by the Criminal Bar Association—that the professional criminal will not be at risk. It seems to me that it is common sense that many professional criminals will try to rely on the right to silence. We must ask whether abolishing it will lead them to speak differently. The problem is that it is not the professional criminal who will be the most at risk but, as Mr. Ferguson says, the weak and the inadequate. It is irresponsible and dangerous to legislate without instituting safeguards.

The issue of principle is important here; I shall deal with it briefly, because it was well canvassed in Committee.

It is not as if there is any strong evidence that abolition will transform the criminal justice system—that is not even the Government's case. Indeed, I was astounded when I came across the Minister's words in Committee. He said: We are not looking"—

in making these changes— for recognisable changes in rates of conviction."—[Official Report, Standing Committee B, 1 February 1994; c. 401.]

I should have thought that that would be the one justification for the clause. Abrogation of an otherwise fundamental principle of British law can be justified in circumstances in which one could say that there is a fundamental problem that can be dealt with only in that way.

The views of Mr. Roy Amlot, a very distinguished Queen's counsel and prosecutor, are also pertinent. Many practising lawyers at the Bar were surprised at the strength of his opposition to the Government's case. Recently, he wrote in a letter to The Times: Despite many years, in the past, of prosecuting as Treasury counsel, I believe that such a move to emasculate the tight to silence is clumsy and unenlightened.

He goes on to suggest why abolition will not have the effect that the Government desire and why it is wrong in principle. In effect, he said—he has repeated that view since—that moves towards the abolition of the right to silence are moves towards the abolition of the presumption of innocence. That is a strong claim, but it is widespread. Such a step is wrong without sufficient cause, and it is in breach of she royal commission's recommendations.

There is something profoundly ironic about the fact that, although the royal commission was set up because of miscarriages of justice and concluded that an organisation must be set up to review such miscarriages and that the right to silence should not be abolished, the Government refuse to set up a miscarriages of justice review body, but have decided to abolish the right to silence. This is not merely wrong in principle; it is doubly wrong that it should be done in this way.

I hope that the Home Secretary will make a reasoned case, and not simply a political speech. Every previous Home Secretary who raised the issue did so with some awareness of its constitutional sensitivity and importance. That was very much the hallmark of the debate when the right to silence was abolished in Northern Ireland.

Whether removal of the right to silence is right or wrong, it is unquestionably deeply important. What concerns people more than practically anything else is that, in this case, the action appears to be being taken not after agonising thought and consideration but following a flick of political rhetoric at a party conference. We must hear a much more reasoned case tonight before taking such a step.

This is not the way to legislate. Indeed, it is not the way to do anything. In my judgment, if we abolish this fundamental constitutional protection without exercising very great care, our action will rebound, and not before long.

Sir Ivan Lawrence (Burton)

The decision to amend the right to silence in this way—in effect, to abolish it—was not the subject of a piece of political rhetoric that just came out of the air to impress an audience of Conservatives at a party conference. Indeed, this provision has for many years been on the brink of being introduced. For as long as I have been a member of the Bar, a number of very experienced lawyers have been thinking about the right to silence and urging its end.

I have been a practising barrister for 30 years, mostly as a defence lawyer, and I do not share the views of the hon. Member for Sedgefield (Mr. Blair). Nor do I share the views of the majority of members of the Criminal Bar Association or those of the majority of members of the Runciman Royal Commission. There is room for two views. I merely make the point that in this country a respectable body of opinion—I consider myself to be reasonably respectable—has for many years held that it is time to abort the right to silence. Many of the people who hold that opinion are in the judiciary and have therefore spent a lifetime hearing both sides of criminal trials. So the hon. Gentleman should not give the world the impression that my right hon. and learned Friend the Home Secretary pulled this proposal out of the air.

I appreciate and apply the "clear benefit and no detriment" guidelines set out by the hon. Member for Sedgefield. The "clear benefit" is the removal of an artificial nonsense. In ordinary life, the way in which a person responds to an allegation against him may indicate whether he is guilty or innocent, but in a criminal trial the situation is wholly artificial as the right to silence means that the accused person need not respond at all, either when he is being questioned by the police or at his trial. No adverse conclusion may be drawn from his silence. Over the years, jurymen have said to me, "I would have convicted that bounder because I am sure he's guilty, but I didn't do so because the judge said several times, 'You must not convict this man merely on the basis of a conclusion from his silence.'"

Mr. David Ashby (Leicestershire, North-West)

Will my hon. and learned Friend give way?

Sir Ivan Lawrence

When I have developed my argument a little I shall certainly give way to my hon. Friend, who I realise does not share my views.

There is another "clear benefit". Let me refer to something about which we are all massively concerned. Like the Runciman Royal Commission, we have spent a great deal of time considering miscarriages of justice. How did these arise? They were the result of dishonest statements by police officers, going back, as the hon. Gentleman said, to the 1970s—indeed, to the 1960s. I refer to the false confessions, the verbals. Why did police officers verbal and invent false confessions? Because they were frustrated by the right to silence. Just when they felt that they would be able to secure the evidence demonstrating a man's guilt, the rules of evidence and the rules of the court prevented them from asking the questions or getting the answers. [Interruption.] I do not for one moment justify any false activity. [Interruption.] I hope that Opposition Members will not be childish. For 30 years of my life, I have defended people pleading not guilty. I certainly do not defend any kind of police misbehaviour in connection with trials. However, I must make the point that if it is possible to remove the cause of such behaviour, there would be very substantial benefit in doing so.

Mr. Ashby

My hon. and learned Friend has cited the case of a juryman. Would not it be more accurate to say that that person was prepared to convict on the basis of suspicion? Does not the abolition of the right to silence and the comments to be made by the judge amount to the judge's saying, "Members of the jury, you may now give weight to what is a suspicion and nothing else"? My hon. and learned Friend has been in court time after time after time. Has not he said—indeed, I have heard him say—to juries, "You should not convict on suspicion. You should convict only on evidence"? Is not this exactly the point?

Sir Ivan Lawrence

Of course, but we are talking about changing the law so that such a point cannot be made.

Later in my speech, I shall make common ground even with the hon. Member for Sedgefield, although I shall be on the other side of the main line. We have had what is, in effect, an archaic and artificial distortion. We have had it for many years and for a very good reason: that we could not trust police officers always to make truthful statements. The right to silence represented some protection to an accused person in those circumstances. It was not a complete protection. The police could still verbal, but there was an inhibition deriving from the right to silence. The court could throw out an allegation that obviously did not fit all the sense or facts of the situation. Now that we have tape-recorded interviews, there is no longer the same justification for fearing a police verbal. Where there is tape recording of an interview it is practically impossible to invent a false confession. A copy of the tape is handed to the defence, who can ensure that the police have not engaged in any falsification of it. All experience indicates that since the introduction of tape-recorded interviews trials have progressed on the basis of the other evidence rather than that of any verbal admissions. If the tape contains a clear admission of guilt—a clear confession—defendants plead guilty more often than they used to. That, too, is a "clear benefit". If more of the guilty plead guilty and are convicted we avoid the other miscarriage of justice—the acquittal of the guilty.

Mr. Chris Mullin (Sunderland, South)

Every sensible person would probably agree that the introduction of tape recordings represented a big and long-overdue step forward. However, it is perfectly possible for a person to be intimidated before the tape recorder is switched on. It is perfectly possible for the police to rehearse with suspects what they will say and, perhaps, do a deal with them—to release or agree not to charge girlfriends, for example. It was in such circumstances that the Guildford confessions were obtained. All those confessions would have been obtained had there been tape recordings. I refer to a remarkable case in the west midlands, where one might expect to find the pioneers in this area. Three people were persuaded to admit on tape that they had committed the murder of PC Salt even though they could not possibly have done so. They were in due course released.

Sir Ivan Lawrence

The hon. Gentleman is a well-known and greatly respected campaigner for the rights of those acquitted of serious crimes. The Guildford case took place before the tape-recording of interviews—I believe that tape recordings should be used for terrorist offences, too—and before the Police and Criminal Evidence Act 1984, which substantially curtailed the freedom of the police and increased the powers of the courts to do away with any police activity that was suspect for the defendant.

I have no specific knowledge of the case that the hon. Gentleman mentions in Birmingham. However, what he is saying is attributable to police behaviour whether there is a right to silence or not. If police officers want to continue, without being provoked by frustration but for some other reason, to behave as the hon. Gentleman said, it will not matter whether the right to silence exists, so his point is irrelevant to the one that I am making.

7 pm

I have tabled a number of amendments and shall try to deal with them as quickly as possible. As I believe that we no longer need a right to silence because of the tape-recording of interviews, the trial will make more sense to a jury if we do away with the right to silence and rely on tape-recorded interviews. As the introduction of tape-recorded interviews is my reason for supporting the removal of the right to silence, it would be inconsistent and illogical if I were content to see a man lose the right to silence, having been interviewed without having his words recorded—hence amendment No. 316.

If interviews are to be adduced in evidence, they must be tape-recorded. My view is fortified by the growing evidence that, in more and more cases, the accused is said to have confessed or made a statement that is inconsistent with his innocence before he reaches the police station where the tape recording machinery is. With the development of technology, I see little reason why police cars should not have voice-activated tape recorders, nor why police officers about to arrest somebody who may want to say something should not carry voice-activated tape recorders in their pockets. If somebody is alleged to have said something and it is not tape-recorded—incidentally, I agree with the hon. Member for Sedgefield that with no Police and Criminal Evidence Act protection there is no opportunity for him to call a solicitor before being interviewed—the evidence of any admission or statement that he has made should not be admitted in evidence. Those are my views and they are also the views of the Committee of the Society of Conservative Lawyers, which submitted evidence of that kind to the Runciman Royal Commission. That is my reason for tabling amendment No. 316.

I tabled amendment No. 319 because total nonsense is inherent in clause 29, which no one has yet explained to me as a mistaken view. The clause says, first, that a court may draw such "inferences" from the accused's failure to mention a fact relied on in his defence either at questioning before the charge or at the stage of charging. Secondly, it says that those inferences may be drawn in three situations: first, where the court is considering whether there is a case to answer—a prima facie case; secondly, where there is no committal proceeding because the case is a fraud being transferred by another procedure to the Crown court; and, thirdly, in a child assault case for which there are no committal proceedings because it is being transferred under the new procedure.

The nonsense is that, at the very stage when a submission of "no case to answer" is being made, the court can have no idea whether the defendant will rely on some fact for his defence because he does not have to disclose the details of his defence. So the clause asks the judge or magistrate to do something that he cannot possibly do. That is absurd.

If I am told that that is covered by the words in line 17: being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed

and that no court could say that the accused could reasonably be expected to mention those matters, I would reply that saying something nonsensical and then saying that what has just been said could not reasonably be expected to happen is double nonsense.

I may be wrong. I may have missed a simple explanation. But if I am right, it is odd that no one has spotted the absurdity before, because the Bill has gone through its Committee stage and has existed for months. I think that I know why that might have happened. Recently, I spent a week at a judicial seminar where judges are taught how to be better judges. Such seminars are part of the improvement procedures and the Judicial Studies Board has been organising good seminars. I took the opportunity to ask several people why they had not spotted the mistake and the High Court judges, circuit judges and the stipendiary magistrates all told me that they had not been sent the Bill to read.

It seems ridiculous that, when dealing with complicated, technical legislation, the Home Office does not automatically invite the class of person most able, by experience, to help in ensuring that the legislation makes sense to consider the legislation. The one person who told me that the Bill had been read by her department was the Director of Public Prosecutions. If my point is right, although it was read the mistake was not spotted.

My fourth amendment is No. 320. On the face of it, the Government seem to intend that an inference adverse to the accused can be drawn from silence and that that should be capable of being the only evidence against him before committal, for trial. No provision specifically states that silence is not enough to provide a prima facia case, that it can be added to other evidence to make such a case, but it cannot be relied on by itself. I expected to see such a provision in the Bill.

The Government may not intend that silence alone should make a prima facia case. I have heard my right hon. and learned Friend the Home Secretary say as much at Question Time. Unless my memory betrays me, that point was also made strongly by the Criminal Law Revision Committee when it recommended the abolition of the right to silence in 1973. Unless the Bill says that it is excluded, as it would be under amendment No. 320, a court somewhere might say, "We know that there is not much evidence in this case, but the fact that the man remained silent when we think that he should have said something is so suspicious and such a proof of guilt that we shall have this man committed for trial". If I am right, that point should be amended in the Bill.

Clause 30 deals with the accused's right to silence at trial. A judge should not have to put himself in the position of telling a defendant that he should go into the witness box, give evidence and be cross-examined, if an adverse comment is not to be made. That should happen only if there is no other way to get out of the predicament. It would be invidious for that to happen in front of a jury, but, even if it were done with the jury out of court, the accused may draw the conclusion that the judge is part of the prosecution rather than an independent arbiter of justice. The Lord Chief Justice has already spoken out strongly on that matter—more eloquently than I—and I hope that my right hon. and learned Friend will take that on board.

The simple alternative is that the judge says nothing. He leaves it to defence counsel and the defence solicitor to explain to the accused the consequences of not giving evidence. That is not a novel approach; it happens all the time. In normal circumstances, no judge needs to tell a defendant the consequences of his going into the witness box and saying that the prosecution witnesses are liars, cheats or frauds and that if he does so he may put his character before the jury. That is always left to the defendant's lawyers—his barristers and solicitors—and it should be the situation in this case. The lawyers should be trusted to tell the accused—if they do not there will be substantial grounds for appeal—that if he does not say anything an adverse comment may be made by the prosecution, the judge or both.

My amendments Nos. 307 and 308 delete the offending passages in the Bill and my amendment No. 309 rewrites this important clause, first, to encompass the good features of the provision and, secondly, to add another constructive suggestion which applies where the accused is not represented by a solicitor or barrister. In such a case, the accused may need to be told that adverse inferences may be drawn from his failure to give evidence. He should be informed of that fact not by the judge, but by the clerk of the court in the absence of the jury. If the accused person representing himself wants time to consider the position he should be given that time.

The measure is contained in subsection (3) of my new insertion. I hope that my amendment is more elegant than the confused jumble of words which appear in the present Bill, although it may not be. It is certainly less confusing and simpler. The remaining amendments relating to the clause—Nos. 310, 311 and 312—are consequential to that amendment.

Mr. Geoffrey Hoon (Ashfield)

In subsection (2)(c) of amendment No. 309, the hon. and learned Gentleman makes the proper point that when it appears to a court that the physical or mental condition of the accused makes it undesirable for him to give evidence the accused should be excused from giving evidence. But would not that formulation apply still more strongly in relation to an interview by police officers when the accused is first seen by those who are investigating the alleged offence? If the hon. and learned Gentleman is to be consistent in his approach to these matters, such words need to be inserted in the Bill at a much earlier stage. Clearly, when people are represented before the court they are less at risk in terms of their physical or mental condition than when they are first interviewed by police officers.

Sir Ivan Lawrence

I am afraid that I did not hear the first part of the hon. Gentleman's remarks. I am sure that what he says is sensible. My right hon. and learned Friend will have heard what he said and will take it on board. I am unable to agree or disagree with the hon. Gentleman's remarks; I was looking for the passage to which he referred.

Mr. Frank Cook (Stockton, North)

What about justice?

Sir Ivan Lawrence

I am not doing justice; I am merely making suggestions to improve the legislation.

Finally, I have an amendment to clause 31 which deals with the effect of the failure of the accused to account for objects and an amendment to clause 32 which deals with the failure of the accused to account for his presence elsewhere.

I can make my point very quickly. It reverts to the first matter that I addressed in my speech. The right to silence should be removed or modified only when the accused is protected by a tape recording of questions and his answers to them. That is in accordance with the provisions of the Police and Criminal Evidence Act which the House passed precisely in order to give that protection. Hence, I have tabled amendment No. 317 to clause 31 and amendment No. 318 to clause 32.

I am sorry if I have not pleased everyone. I have tried to be brief in my remarks. I hope that my right hon. and learned Friend will take into account the fact that, first, I support the general thrust of the legislation, but, secondly, I think that some improvements can be made to it to safeguard the interests of accused people in the way in which the House would wish to safeguard their interests.

7.15 pm
Mr. Maclennan

The hon. and learned Member for Burton (Sir I. Lawrence) spoke for 23 minutes and said that he had been brief. I promise the House that my speech will be substantially shorter because I have had the advantage of addressing these questions in the Standing Committee, unlike the hon. and learned Member. Although he found fault with the work of the Committee, most issues have been canvassed there extensively.

I did not wholly agree with the hon. and learned Member that there are two views about the merits of the right to silence. I think that there are many more views than that. It is not for us to pick and choose in the House the merits of individual lawyers. When we come to consider whether to take such a fundamental step as is encompassed in the Bill, we should listen to the views of those to whom the Government have entrusted the task of reflecting upon the matter.

This is not a Government who turn lightly or frequently to the device of establishing royal commissions. In fact, throughout the Government's term of office, it is notable that royal commissions have been resorted to rarely. The fact that that should have been the Government's approach in respect of miscarriages of justice shows that there was a very serious problem which could not be tackled effectively by the normal political devices of weighing the arguments that are canvassed in the heat of the moment.

Royal commissions are established in response to a serious public need for advice and we have before us the advice of two royal commissions which point broadly in the same direction. It is right to reflect on the oddity of establishing a royal commission focusing on miscarriages of justice—the reason for its existence was to tackle that problem—but yet not take fully on board or act upon its most serious core recommendation dealing with that question.

The royal commission was quite explicit and I think that it is worth reminding the House of the words that it used in coming to a majority conclusion—and it was not a narrow majority, but a majority of nine to two. Paragraph 22 on page 54 of the Runciman commission report states: The majority of us, however, believe that the possibility of an increase in convictions of the guilty is outweighed by the risk that the extra pressure on suspects to talk in the police station and the adverse influences invited if they do not may result in more convictions of the innocent. It recommends retaining the present caution and trial direction unamended. The report continues: In taking this view, the majority acknowledge the frustration which many police officers feel when confronted with suspects who refuse to offer any explanation whatever of strong prima facie evidence that they have committed an offence. But they doubt whether the possibility of adverse comment at trial would make the difference which the police suppose. I believe that to be the core recommendation of the royal commission about this matter.

Sir Nicholas Fairbairn (Perth and Kinross)

As a Scottish Member, the hon. Gentleman might know that that is already a law in Scotland under the Criminal Justice Act 1980. I do not know what he is complaining about. Why should it not apply to England?

Mr. Maclennan

I prefer to address the arguments that were deployed by the royal commission which had the opportunity of considering the laws of Scotland as well. I certainly intend to say something about the more germane experience in Northern Ireland, where the law has already been amended.

I have two concerns. First, I am anxious that the change of law adumbrated in the proposal will have an effect on the attitudes of the police to the significance of their efforts to extract comments from those who are apparently unwilling to give comments or explanations. I agree with the hon. and learned Member for Burton on the importance of the recording of evidence, but, unfortunately, the clause does not deal only with evidence that is capable of being recorded. It also deals with the possibility that the fact that no statement was made before an accused person was taken into custody may be the subject of adverse comment, which is quite unacceptable. Too much weight is being placed by the Government and the Home Secretary on the expectation that to change the law in the way suggested will make a significant difference to conviction rates. There seems to be very little evidence to support that.

In Northern Ireland, where the law has been changed, the evidence is that the vast majority of those charged with more serious offences—those brought under the prevention of terrorism legislation—remain silent. The courts in Northern Ireland have not found that the change in the law has led to a significant change in practice by those who might be regarded as hardened professionals.

My second anxiety was mentioned by the hon. Member for Sedgefield (Mr. Blair). It is likely to be the confused, the weak and the ill-advised who are the victims of the change in law. Those are the people who need the protection of a fundamental constitutional principle that has lasted a long time in this country. I do not find it easy to understand—I am genuinely puzzled—why a Government who proclaim their commitment to the basic

principles of law and justice should hack at the roots of something that is so deeply imbedded in our criminal justice system and has survived for centuries. I am talking about the principle that no one should be under pressure to incriminate himself in court.

The Home Secretary has discussed the subject in the House before. He did so when he was a junior Minister at the Department of Trade and Industry. He began the process of eroding the right to silence in a number of measures, including the Financial Services Act 1986. He has an understandable personal track record of having hacked away at the roots of the tradition of the right to silence.

The Home Secretary said in those debates that he was taking away the fundamental principle of criminal law—the right of someone not to incriminate himself. He said that in the Chamber and admitted that it was a fundamental principle. I should like to hear him advance stronger arguments when he replies to the debate on why he now believes it is right to deal with the matter, not in the narrower context of the Financial Services Act, the Insolvency Act 1986, the Building Societies Act 1986 and the Banking Act 1987, but across the board. The House expects the Home Secretary's explanations for such measures to go further than those that he has given to party conferences.

Some countries believe that the issue is one of high constitutional import—as the hon. Member for Sedgefield said—and is so important that it should be enshrined in a basic constitutional provision. The United States is a prime example. I believe that it is appropriate to enshrine something so fundamental to the protection of the innocent in basic law and I hope that we shall ultimately achieve that position. I recognise that that will require a substantial change—more than a change of Home Secretary within the present Government. I have had the opportunity of canvassing my views at some length on other occasions. I shall not, therefore, delay the Home Secretary any longer. I greatly look forward to hearing what he has to say on the subject.

Sir Nicholas Fairbairn

I have some slight experience in the courts, not only in Scotland, but in England and abroad. I have never comprehended the concept of the right to silence, which is not a constitutional right—

Mr. Richard Shepherd (Aldridge-Brownhills)

In Scotland.

Sir Nicholas Fairbairn

It is not a constitutional right anywhere.

In this country, before the end of the last century, at different dates in England and Scotland, the accused—as I would call him, others might call him the defendant—was not allowed to give evidence. He was an exhibit. The right to silence was necessary because he could not give evidence. If it was alleged that he had said something, he could not claim that he had not said it because he could not give evidence and say that he had not said it.

Mr. Richard Shepherd

I ask my question with diffidence, but was not that policy to demonstrate clearly that the burden of proof lay on the prosecution? It is for the prosecution to make, or demonstrate, the case and I may stand by my right to silence in the face of that demonstration. Therefore, the point made by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) is misjudged in this context.

Sir Nicholas Fairbairn

Not at all—the person accused was completely deprived of the ability to deny what anyone alleged that he had said because he was not allowed to speak. He was just an object on view.

Mr. Ashby

Will my hon. and learned Friend give way?

Sir Nicholas Fairbairn

No, I will not give way. I am not wrong. I know a little about the law. No doubt the hon. Member knows more—

Mr. Ashby


Sir Nicholas Fairbairn

I have defended one or two people and appeared in one or two courts in my day, but obviously the hon. Gentleman has much more knowledge than I do.

Mr. Ashby

Yes, I have.

Sir Nicholas Fairbairn

Let me speak about the right to silence. Every citizen on this globe is required to give evidence. He can be called back from Australia, New York or anywhere else and be forced to give evidence on pain of contempt of court. That is true of everyone except the one citizen whose evidence it is essential to hear—the accused. I always thought it was ludicrous that the one witness whose evidence was important should have the right not to be heard. One of my hon. Friends and Opposition Members said that the weak, being inarticulate and confused, might convict themselves. But hang on a minute—suppose that the witnesses compelled to give evidence were weak, inarticulate and confused. The accused cannot complain, "You can't call that chap—he's weak, inarticulate and confused." The jury must make their own judgments about witnesses, and the accused is the principal witness.

7.30 pm

I propose the restoration of the law in Scotland as it was until 1928. When a person was arrested, they immediately had to record their account publicly, before a magistrate—before they went to the Barlinnie school of schooling and invented a defence. Unfortunately, the present Lord Chancellor said that that must not apply unless the accused consented, so lawyers go before the court and the accused does not need to give an account.

The law of Scotland was so sensible and easy until 1928, because the accused had to go before the magistrate immediately, to give his account of events before he got to any lawyer who could invent an account for him. The right to silence is a fallacious concept, and it is utterly wrong that the principal witness should be given the absurd and historically misunderstood right to silence.

Let us consider verbals. I have known hundreds of cases in which the police alleged that the accused had said something that he denied saying. Nothing that is unrecorded before a magistrate or an independent person should be admitted in evidence. It is only too easy to claim that the accused said, "It's a fair cop—I took it because I needed to buy a house." If one wants the police to be trusted, the courts to be respected and the accused to have fair rights as to what he did or did not say, there is a simple equation: the right to silence goes, in exchange for the necessity that nothing that the accused is alleged to have said can be produced in evidence unless it was recorded by an independent person. That would be a fair solution.

I am sorry that my remarks were all about England, but I thought that I should intervene.

Mr. David Trimble (Upper Bann)

I will not comment on the situation in Scotland and the speech of the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn), but I will refer to the speeches of the hon. Member for Sedgefield (Mr. Blair) and the hon. and learned Member for Burton (Sir I. Lawrence), which proceeded on an entirely false basis. In this context, references to the right to silence are wholly misconceived. The Bill does not affect the right to silence properly so called, which is the privilege against self-incrimination and means that a person shall not be compelled to give evidence against himself. Nothing in the Bill in any way changes that. It affects only what some people loosely and inaccurately describe as the right to silence.

The Bill relates to inferences to be drawn from silence and to whether or not the judge can comment on an accused person's failure to say anything. Glanville Williams, probably the most distinguished academic lawyer in England this century, described as wholly unreasonable the rule that a judge cannot comment on an obvious and relevant fact that the jury may take into account. No one ever said that juries must take it into account.

Most of the comments made about the right to silence will give a completely false impression to anyone reading this debate. I was appalled that it was even suggested that the presumption of innocence was in some way affected by the Bill. It does not change that, or the requirement that guilt must be shown beyond reasonable doubt. Those matters are not involved.

I acquit the hon. Member for Caithness and Sutherland (Mr. Maclennan), but it annoyed me that no reference was made to the experience in Northern Ireland. The Bill's provisions are word for word the same as those in the Criminal Evidence (Northern Ireland) Order 1988, which has been in operation for six years. I appreciate that it is sometimes difficult to find out what happens in Northern Ireland, so I gathered together some judgments and placed them in the Library and sent copies to Opposition Members who I felt were in particular need of them. I also referred to the matter in Committee and I shall not repeat the remarks that I made there. If hon. Members want to learn more about the Northern Ireland experience, I refer them to speeches made in Committee and to the judgments placed in the Library. I am disappointed that even at this stage no effort has been made to refer to the Northern Ireland experience.

The hon. and learned Member for Burton is Chairman of the Home Affairs Select Committee. I appreciate that it is sometimes difficult to know about practices in Northern Ireland, but it was perfectly open to the hon. and learned Gentleman to investigate and to take his Select Committee to Northern Ireland. He could also have called evidence and discovered what has happened in Northern Ireland over the past six years—and why there have not been complaints by practising lawyers or the judiciary in Northern Ireland.

Reference was made to Richard Ferguson, a former Ulster Unionist Member of Parliament for Stormont, but he has been practising in England since before the 1988 order was implemented, so his comments should be taken with a pinch of salt.

Government amendment No. 336 is a response to Lord Chief Justice Taylor. Northern Ireland judges have operated the procedure about which Lord Chief Justice Taylor complains for half a dozen years without any difficulty. However, if that amendment will smooth the passage of the Bill through another place, the change is not terribly significant. It is not of great importance whether the accused is advised by his lawyer, the judge, other persons or other means: it is important that the accused be advised.

I told the Minister of State in Committee that if any of the Bill's provisions were changed, changes should immediately be made also to the 1988 Northern Ireland order. It would be wholly unreasonable for the House to alter the Bill in respect of England and Wales without immediately doing the same for Northern Ireland. I am glad that amendment No 360 will do that, even though it means using the Bill to amend a Northern Ireland Order in Council. I entirely approve, and I thank the Government for following our advice and making sure that changes will apply simultaneously in Northern Ireland.

Mr. Howard

It is a pleasure to follow the hon. Member for Upper Bann (Mr. Trimble). I agree with practically every word of his speech. I can assure him that, even were I not following him in the debate, I should certainly have referred to the Northern Ireland experience and to the fact that this legislation is very closely modelled on and, indeed, virtually word for word identical with the provisions of the Criminal Evidence (Northern Ireland) Order 1988, although from the speeches before that of the hon. Gentleman one would have assumed that we were discussing a wholly novel constitutional departure for the United Kingdom. In fact, as the hon. Gentleman clearly and powerfully pointed out, it is nothing of the kind.

This group of amendments relates entirely to clauses 29 to 33 of the Bill, which would allow proper inferences to be drawn from a person's silence in court or when asked certain questions by the police. As has been pointed out, they are often described as being concerned with the right to silence. Although that is a misleading description, I certainly accept that the matter—though not a constitutional innovation or novelty in the United Kingdom—is of considerable constitutional significance. The description is misleading, because nothing in the Bill would take away any person's right to remain silent if he so chooses either under police questioning or in court. Under our law, that right is not, of course, an absolute right, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) pointed out, referring to my track record. There are certain circumstances in which a person may be required to give answers—for example, when questioned by an investigator from the Serious Fraud Office exercising special investigation powers under section 2 of the Criminal Justice Act 1987, which built on the powers contained in the Financial Services Act 1986, for which I had some ministerial responsibility.

I confess that I cannot recall how the Liberal Democrats or their predecessors voted when those clauses came before Parliament, but no doubt the official Opposition did not comment on that during the debate because they fully supported the introduction of those powers and the removal of the right in those particular circumstances. Subject to those existing exceptions, the provisions in clauses 29 to 33 of the Bill will not compel any person to answer questions or penalise them for not doing so.

Sir Ivan Lawrence

If my right hon. and learned Friend is right in saying that the right to silence remains after these provisions—I agree that there is an element of a play on words—what kind of right is it when, if one decides to exercise it, one can be adversely criticised?

Mr. Howard

There is nothing inconsistent in the two propositions. What criticism may be made will depend on the circumstances in which someone remains silent. There is a clear difference between the proposition that is already enshrined in part of the law, which was pointed out by the hon. Member for Caithness and Sutherland and which I have just pointed out, which compels someone to answer questions in certain circumstances, and the entirely different situation in which no one is compelled to say anything, but they know that their silence can be the subject of comment depending on the circumstances. That is an absolutely clear distinction and was underlined with considerable force by the hon. Member for Upper Bann.

7.45 pm
Mr. Blair

The debate will proceed on a false basis if we have what I think in the end is a fairly semantic argument. No one has suggested that, technically, one is compelled to speak or that there is a legal obligation to speak, but if, when one has failed to answer questions, an adverse inference can be drawn, whatever the technical position the reality is that the right to silence has been interfered with. Quite honestly, the Home Secretary would do his case more justice if he admitted that and justified it rather than playing with words.

Mr. Howard

This does not touch on the fundamental arguments, which I am of course coming to. The hon. Member for Upper Bann was absolutely right in his analysis of the position.

Mr. Blair


Mr. Howard

It is not a question of technicality, but of the right approach to this fundamental matter. The hon. Member for Upper Bann was right, but I agree with the hon. Member for Sedgefield (Mr.Blair) that that does not affect the fact that there are fundamental arguments to be addressed, and of course I will address them.

Mr. Harry Greenway

I am very interested in this and I am grateful to my right hon. and learned Friend for giving way. Will he explain to me the circumstances in which a judge will make comment or in which inferences can be drawn from someone's silence? At what point in the proceedings could that happen? I ask my right hon. and learned Friend to address himself to this point. It is said that criminals will know criminals, that people with a criminal record and people with criminal tendencies will be nailed by the removal of the right to silence, and that that is a substantial justification for it. Will my right hon. and learned Friend address himself to that and to the effect of the removal of the right to silence on the vulnerable, the weak and inadequate, and also intelligent people, who can also be intimidated by the circumstances of being questioned? It is not just the vulnerable who will be affected.

Mr. Howard

To answer the first part of my hon. Friend's question directly, in normal circumstances comment would be made at the end of the trial. It would be open to the prosecution to suggest that an adverse inference could be drawn from the defendant's silence. It would be open to counsel for the defendant to explain away that silence. It would be open to the judge to make such comment as he thinks fit. It would certainly be open to the judge to comment that, in all the particular circumstances of the case, the jury might well decide that it was not appropriate to draw any adverse inference from the exercise of the right to silence by the defendant. And in the end—this is the absolutely crucial point—it will be for the jury to decide what weight to attach to, and to what extent it is appropriate in the particular circumstances of the case to draw any inference from, the silence.

Dr. Robert Spink (Castle Point)

Will my right hon. and learned Friend explain what are the circumstances in which a defendant could use the right to silence without it carrying an adverse inference for the defendant? That would help to explain my right hon and learned Friend's case, with which I agree entirely.

Mr. Howard

There is such an infinite range of circumstances that it is difficult to pick out particular examples, but it might well be the case that, in a particular set of circumstances, if someone was feeling unwell, was confused or not in a position to give a proper account in answer to questions that were put to him, the judge might say to the jury—though it would always be a matter for the jury—"You may well think that, in all the circumstances of this case, having regard to what you have heard, it would not be right to draw any adverse inference from the silence of the accused in this case." But in the end, having heard all the evidence, it is a matter that the jury would be entitled to take into account.

The matter derives its origins quite apart from the criminal law review committee, to which the hon. Member for Sedgefield referred: although clauses 29 and 30 of the Bill are, for all practical purposes, exact replicas of the draft clauses in the Criminal Law Revision Committee's report, the provision finds its origin in the Criminal Evidence (Northern Ireland) Order 1988. That order was made in October 1988 and came into effect in December 1988 and, as we heard from the hon. Member for Upper Bann, it has operated to good effect and without difficulty since then. When the order was introduced, my predecessor—my right hon. Friend the Member for Witney (Mr. Hurd), now the Foreign Secretary—gave an undertaking that the legislation on this subject would be introduced for England and Wales at the earliest opportunity after the report of the working group that he had set up had been received.

There is therefore a respectable history to the matter. It is not something that has been plucked out of the ether by me or by the present Government. It is true that a minority and not a majority of the royal commission recommended that changes of this kind should be made, but it is also true—no one has yet commented on this significant fact—that a majority of the judges who gave evidence to the royal commission were in favour of such a change.

We propose simply to remove the artificial and outdated restrictions which prevent a court or jury from hearing about a person's silence and taking it into account in reaching a verdict. Indeed, our proposals have accurately been described by my hon. Friend the Member for Woodspring (Dr. Fox) as a freedom of information Act for juries.

Mr. Ashby

I have been following the debate with great interest and a number of very important points have been made. However, I do not entirely agree with my right hon. and learned Friend. What concerns me and a number of others is that when someone is arrested there is always a great deal of confusion and the person may be wholly innocent and completely astounded. Indeed, I can think of an incident that happened only a couple of weeks ago that would give rise to such a situation. If we are going to start playing around with the burden of proof—I agree that we are talking not about the right to silence but about the burden of proof—should it not be within the confines of the Police and Criminal Evidence Act 1984 and relate only to tape-recorded interviews?

Mr. Howard

I shall deal with that point in a moment when I speak in detail to the amendments, but, in answer to that question, I can say that, first, the proposals do not amount to a change in the burden of proof; it will still be for the prosecution to establish the burden of proof in every case. Secondly—this is the critical point—there may well be circumstances in which someone is confused, as my hon. Friend described, in a way that should properly be taken into account in assessing what inference should be drawn from his silence and what weight should be attached to it. That is precisely what will happen; it is precisely how the silence will be taken into account and it is precisely the type of factor that the jury will be left to decide.

There has been some questioning of the extent to which the change will make a difference. The findings of the Royal Commission on criminal justice contained the following paragraph: In the view of many police officers, a significant number of suspects, by refusing to answer questions, seriously impede the efforts of investigators to fulfil their function of establishing the facts of the case. The initial aim of these suspects may be to avoid being charged but, if this is not successful, they may subsequently fabricate a defence which will not be revealed until their trial, at which point it may be impracticable to investigate and detect the fabrication. Alternatively, they may remain silent, offer no explanations, and yet try to discredit the prosecution evidence or intimidate witnesses or victims in order to deter them from giving evidence. By such means, some criminals are, in the view of the police and many others, taking advantage of a feature of the criminal justice system left over from a past era when there were far fewer safeguards to protect the defendant than there are today".

The royal commission also found that it was part of the experience of police officers that although most people who are arrested do answer questions inviting an explanation of evidence against them, a considerable number of experienced or professional criminals do not".

A recent survey by the Association of Chief Police Officers found that offenders with five or more previous convictions were more than three times as likely to remain silent in police stations than those with no previous convictions.

Mr. Mullin

Does the Home Secretary agree that the category of people most likely to claim the right to silence at present are police officers charged with conspiring to pervert the course of justice?

Mr. Howard

I would not agree with the hon. Gentleman on that point, but, of course, any changes that we make would apply equally to that category of defendant in which the hon. Gentleman has a particular interest and to any other category of defendant, so it may yet be that, on reflection, we shall have the support of the hon. Gentleman in the Lobby tonight.

Mr. Mullin

Every cloud has a silver lining.

Mr. Howard

A minority of the royal commission concluded that it would be right to change the law so that inferences could be drawn from an offender's silence in relevant circumstances. The Government agree with that minority view. We believe that it is reasonable to expect an accused person to offer an explanation of circumstances that appear to be incriminating and that if he does not do so there is no reason why a court or jury should be prevented from taking account of his silence when considering the strength of the case against him.

Mr. Hoon

The right hon. and learned Gentleman has repeatedly talked about the jury being able to reach a decision in the light of the defendant's failure to give evidence. What has he to say about the direction that a judge should give in such circumstances? At present, if a defendant chooses to exercise what has been described as the right to silence, the judge will indicate to the jury that it is a perfectly proper constitutional position for the defendant to adopt. Under the rules proposed by the Home Secretary, what indication is the judge supposed to give to the jury? Does the Home Secretary accept that, if under the proposals, the judge gives a direction to the effect that the right to silence has been exercised, in most jury trials it will be tantamount to an indication from the judge that he is extremely unhappy with the defendant's case? Will not that lead many juries to conclude that they should convict?

Mr. Howard

I certainly do not agree with the hon. Gentleman's final point and I am surprised that he made it. Although his experience of the courts might be a trifle more recent than mine, I am sure that he will share my experience that juries are at least as likely to reject such indications from judges as they are to accept them. However, by way of a direct answer to the hon. Gentleman's question, the position is this: as a result of the Government's amendment to which I am about to refer, the jury will have seen explained to the defendant the fact that, if he chooses to remain silent, an adverse inference could be drawn from his silence. The jury will then be told by the judge in his summing up that it is open to them to draw such an inference, but that the nature of that inference and the weight that they attach to it will depend on the circumstances of the case. As with every other circumstance of the case, the judge will be able to express his view to the jury, but he will tell the jury—as he is presently obliged to do in relation to every other circumstance—that, in the end, it will be for the jury to form their own view and for them to decide. Therefore, the matter will be treated in precisely the same way as every other relevant circumstance and every other relevant piece of evidence.

I deal now with the Government amendments to clause 30, which has already been described pretty accurately by the hon. Member for Upper Bann. Government amendments Nos. 333 to 340 and 355 and 356 would make a minor change in the procedure while leaving the basic effect of the clause unchanged. They deal with concerns that have been expressed by the Lord Chief Justice. Contrary to many reports, he has consistently supported the principle of drawing inferences from silence, but has expressed concerns about the procedure that is presently embodied in clause 30.

The amended clause, like the present one, will ensure that the court can draw proper inference from the accused person's silence in court, but, instead of calling on a defendant to give evidence, a judge or magistrate would satisfy himself in the presence of the jury that the defendant was aware of his opportunity to give evidence and the possible consequences of not doing so. Lord Taylor told me that he was content with the changes that the Government amendments would make to clause 30. As the hon. Member for Upper Bann said, amendments 357 to 360 would effect equivalent changes in the corresponding Northern Ireland legislation.

Before I finish, I shall deal briefly with some of the other amendments. With regard to amendments Nos. 249 and 250, it is surely entirely illogical to limit provisions to proceedings triable only on indictment. Rules that are just when a serious offence is being tried cannot be unjust when a lesser one is being tried, or vice versa.

I welcome the support of my hon. and learned Friend the Member for Burton (Sir I. Lawrence) for the main thrust of our proposals, but, with reference to his amendments Nos. 319 and 313, I disagree with the proposal that inferences under clause 29 should not be drawn at the committal or transfer stage. It is important that the court sees the whole prosecution case when deciding whether there is a case to answer. The amendments would allow "ambush" defences at committal without allowing any inferences to be drawn as to their veracity, in view of the fact that the same line of defence could have been advanced at an earlier stage.

8 pm

I believe that the amendments that would impose compulsory safeguards, such as tape-recording or access to legal advice, before any inference could be drawn are unnecessary. The police are required to observe the safeguards laid down in the codes of practice issued under the Police and Criminal Evidence Act 1984 whenever they interview an arrested person. There is no special need to make the application of clauses 29 to 33 depend on the observance of those safeguards, as proposed in amendments 237, 245 and 253. I believe that it should be for the courts to decide a defendant's guilt or innocence on the weight of the evidence put before them, and to draw such inferences as appear proper, as they would for any evidence obtained by the police.

Mr. Blair

The Opposition amendments and the amendments tabled by the hon. and learned Member for Burton are designed for the same effect—to place safeguards so that in effect such inferences can be drawn only at the police station—but is the Home Secretary not aware that his proposal would go wider than that, and deal with the time before the suspect arrives at the police station, before the Police and Criminal Evidence Act safeguards come into effect

Mr. Howard

I was about to deal with that precise point, with reference to amendments Nos. 252 and 314. I disagree with the proposition that inferences should be restricted to the period after cautioning. Sometimes it can be sensible to draw an inference from what a suspect says or does not say when first encountered by the police in suspicious circumstances. Courts will be able to draw inferences only from a failure to mention a fact that the defendant could reasonably have been expected to mention.

That approach is entirely similar to the idea that a person's comment at that stage should be taken into account. That was another recommendation of the royal commission, which led to its further recommendation, which we accept, that any such admission should be put to the suspect at the beginning of the first tape-recorded interview.

Finally, amendment No. 320, tabled by my hon. and learned Friend the Member for Burton, would provide that an inference drawn from silence under clause 29 could not by itself provide that a person had a case to answer. My hon. and learned Friend said that he had not been given a satisfactory explanation of why the amendment was unnecessary. It is unnecessary because clause 33(3) already provides: A person shall not be committed for trial, have a case to answer or be convicted of an offence

on the basis of an inference from silence alone.

My final recommendation to the House is that the amendments tabled by my hon. and learned Friend and by the Opposition are not necessary, and should be rejected. I invite the House to accept the amendments in my name and to reject any others that may be put to the vote.

Mr. Blair

We will press the amendments to a vote, first because we do not believe that the Home Secretary has adequately justified the abolition of an important fundamental principle of British law—a constitutional principle upon which people are entitled to rely. Our second reason is that the Government proposal, without any proper safeguards, will go far further than anyone has ever recommended on the abolition of the right of silence.

It may be argued that the phrase "the abolition of the right to silence," is not technically accurate, but if people are to be at risk of an adverse inference being drawn if they do not speak, they will in fact be under pressure to speak, whatever the technical position may be. The question is whether that is right. To abolish the right to silence with no proper safeguards, which goes further than even the minority report of the royal commission, is not only wrong in principle but foolhardy and the House will regret it. We should therefore reject the proposal tonight.

Mr. Richard Shepherd

I believe that I am the only non-lawyer to speak on this group of amendments. I do so with the greatest diffidence, as hon. Members will understand, but I want to make clear what my perceptions of my country are. English law has always had at its heart the right to silence.

Lawyers may say that I am misappropriating that term, but it is fundamental to my perception that no inference may be taken from silence. I know that an extension has been made into fraud cases, and that that is now under challenge in the European Court. We shall see whether that law will stand that test.

Instinctively, as a Conservative, I would argue that the burden of proof for such a significant change lies with those who wish to initiate that change. I have not heard any arguments which conclusively demonstrate why the change is imperative. Therefore, as a Conservative, I stand by that right, and I say that the case has not been proven. I would go with the three royal commission reports on the matter, which we seem so eager to set aside.

I call out passionately for conservatism in such matters. When I think of my view of my country—that is all that we can express on such occasions—I think of Sir Thomas More's innocence protested by his silence. I see that principle march through our history; I watch how the world is changing fervidly; I see the same principle instituted in the constitution of the United States, drawing on our own experience. Are we so lightly to set it aside for the sake of the exigencies of the present, and our current fear of rising crime?

That rule has stood us well in good times and in bad. In the placidity of the 1950s, no one argued that we should do away with it. In the turbulence of other times, no one insisted that we should do away with it. We should have more confidence in our systems. In my view, the Government have not demonstrated the burden of proof that, in the face of the royal commission reports, we should make such a change.

Question put, That the amendment be made: —

The House divided: Ayes 256, Noes 283.

Division No. 202] [8.07 pm
Abbott, Ms Diane Berry, Roger
Adams, Mrs Irene Betts, Clive
Ainger, Nick Blair, Tony
Ainsworth, Robert (Cov'try NE) Boateng, Paul
Allen, Graham Bradley, Keith
Alton, David Bray, Dr Jeremy
Anderson, Ms Janet (Ros'dale) Brown, Gordon (Dunfermline E)
Armstrong, Hilary Brown, N. (N'c'tle upon Tyne E)
Ashby, David Bruce, Malcolm (Gordon)
Ashton, Joe Burden, Richard
Austin-Walker, John Byers, Stephen
Barnes, Harry Caborn, Richard
Barron, Kevin Callaghan, Jim
Battle, John Campbell, Mrs Anne (C'bridge)
Bayley, Hugh Campbell, Menzies (Fife NE)
Beith, Rt Hon A. J. Campbell, Ronnie (Blyth V)
Bell, Stuart Campbell-Savours, D. N.
Bonn, Rt Hon Tony Cann, Jamie
Bennett, Andrew F. Carlile, Alexander (Montgomry)
Benton, Joe Chisholm, Malcolm
Bermingham, Gerald Clapham, Michael
Clark, Dr David (South Shields) Jackson, Glenda (H'stead)
Clarke, Eric (Midlothian) Jackson, Helen (Shef'ld, H)
Clarke, Tom (Monklands W) Jamieson, David
Clelland, David Janner, Greville
Clwyd, Mrs Ann Jones, Ieuan Wyn (Ynys Môn)
Coffey, Ann Jones, Jon Owen (Cardiff C)
Connarty, Michael Jones, Lynne (B'ham S O)
Cook, Frank (Stockton N) Jones, Martyn (Clwyd, SW)
Cook, Robin (Livingston) Jones, Nigel (Cheltenham)
Corbett, Robin Jowell, Tessa
Corbyn, Jeremy Kaufman, Rt Hon Gerald
Corston, Ms Jean Keen, Alan
Cousins, Jim Kennedy, Charles (Ross,C&S)
Cox, Tom Kennedy, Jane (Lpool Brdgn)
Cunningham, Jim (Covy SE) Khabra, Piara S.
Cunningham, Rt Hon Dr John Kilfoyle, Peter
Dafis, Cynog Kinnock, Rt Hon Neil (Islwyn)
Dalyell, Tam Kirkwood, Archy
Darling, Alistair Lestor, Joan (Eccles)
Davidson, Ian Lewis, Terry
Davies, Bryan (Oldham C'tral) Lloyd, Tony (Stretford)
Davies, Rt Hon Denzil (Llanelli) Llwyd, Elfyn
Davies, Ron (Caerphilly) Loyden, Eddie
Denham, John Lynne, Ms Liz
Dewar, Donald McAllion, John
Dixon, Don McAvoy, Thomas
Dobson, Frank Macdonald, Calum
Donohoe, Brian H. McFall, John
Dowd, Jim McKelvey, William
Dunnachie, Jimmy McLeish, Henry
Eagle, Ms Angela Maclennan, Robert
Enright, Derek McMaster, Gordon
Etherington, Bill McNamara, Kevin
Evans, John (St Helens N) McWilliam, John
Ewing, Mrs Margaret Maddock, Mrs Diana
Faulds, Andrew Mahon, Alice
Field, Frank (Birkenhead) Mandelson, Peter
Fisher, Mark Marek, Dr John
Flynn, Paul Marshall, David (Shettleston)
Foster, Rt Hon Derek Marshall, Jim (Leicester, S)
Foster, Don (Bath) Martin, Michael J. (Springburn)
Foulkes, George Martlew, Eric
Fraser, John Maxton, John
Fyfe, Maria Meacher, Michael
Galbraith, Sam Meale, Alan
Galloway, George Michael, Alun
Gapes, Mike Michie, Bill (Sheffield Heeley)
Garrett, John Michie, Mrs Ray (Argyll Bute)
George, Bruce Milburn, Alan
Godman, Dr Norman A. Miller, Andrew
Godsiff, Roger Mitchell, Austin (Gt Grimsby)
Golding, Mrs Llin Moonie, Dr Lewis
Gordon, Mildred Morgan, Rhodri
Graham, Thomas Morley, Elliot
Grant, Bernie (Tottenham) Morris, Estelle (B'ham Yardley)
Griffiths, Win (Bridgend) Morris, Rt Hon J. (Aberavon)
Grocott, Bruce Mowlam, Marjorie
Gunnell, John Mudie, George
Hain, Peter Mullin, Chris
Hall, Mike Murphy, Paul
Hanson, David O'Brien, Michael (N W'kshire)
Harvey, Nick O'Brien, William (Normanton)
Hattersley, Rt Hon Roy O'Hara, Edward
Heppell, John Olner, William
Hill, Keith (Streatham) O'Neill, Martin
Hinchliffe, David Parry, Robert
Hoey, Kate Patchett, Terry
Hogg, Norman (Cumbernauld) Pendry, Tom
Home Robertson, John Pickthall, Colin
Hood, Jimmy Pike, Peter L.
Hoon, Geoffrey Pope, Greg
Howarth, George (Knowsley N) Prentice, Ms Bridget (Lew'm E)
Howells, Dr. Kim (Pontypridd) Prentice, Gordon (Pendle)
Hoyle, Doug Primarolo, Dawn
Hughes, Kevin (Doncaster N) Purchase, Ken
Hughes, Robert (Aberdeen N) Quin, Ms Joyce
Hughes, Roy (Newport E) Radice, Giles
Hutton, John Randall, Stuart
Illsley, Eric Raynsford, Nick
Ingram, Adam Reid, Dr John
Rendel, David Strang, Dr. Gavin
Robertson, George (Hamilton) Straw, Jack
Robinson, Geoffrey (Co'try NW) Taylor, Mrs Ann (Dewsbury)
Roche, Mrs. Barbara Turner, Dennis
Rogers, Allan Tyler, Paul
Rooker, Jeff Vaz, Keith
Ross, Ernie (Dundee W) Walker, Rt Hon Sir Harold
Rowlands, Ted Wallace, James
Ruddock, Joan Walley, Joan
Sedgemore, Brian Wardell, Gareth (Gower)
Sheerman, Barry Wareing, Robert N
Sheldon, Rt Hon Robert Watson, Mike
Shepherd, Richard (Aldridge) Welsh, Andrew
Shore, Rt Hon Peter Wicks, Malcolm
Short, Clare Wigley, Dafydd
Simpson, Alan Williams, Rt Hon Alan (Sw'n W)
Skinner, Dennis Williams, Alan W (Carmarthen)
Smith, Andrew (Oxford E) Wilson, Brian
Smith, C. (Isl'ton S & F'sbury) Winnick, David
Smith, Llew (Blaenau Gwent) Wise, Audrey
Soley, Clive Worthington, Tony
Spearing, Nigel Wray, Jimmy
Spellar, John Wright, Dr Tony
Squire, Rachel (Dunfermline W) Young, David (Bolton SE)
Steel, Rt Hon Sir David
Steinberg, Gerry Tellers for the Ayes:
Stevenson, George Mr. Ray Powell and
Stott, Roger Mr. Neil Gerrard.
Ainsworth, Peter (East Surrey) Congdon, David
Aitken, Jonathan Conway, Derek
Alison, Rt Hon Michael (Selby) Coombs, Simon (Swindon)
Allason, Rupert (Torbay) Cope, Rt Hon Sir John
Amass, David Couchman, James
Arnold, Jacques (Gravesham) Cran, James
Arnold, Sir Thomas (Hazel Grv) Currie, Mrs Edwina (S D'by'ire)
Atkins, Robert Curry, David (Skipton & Ripon)
Atkinson, David (Bour'mouth E) Davies, Quentin (Stamford)
Atkinson, Peter (Hexham) Davis, David (Boothferry)
Baker, Rt Hon K. (Mole Valley) Day, Stephen
Baker, Nicholas (Dorset North) Deva, Nirj Joseph
Baldry, Tony Devlin, Tim
Banks, Matthew (Southport) Dickens, Geoffrey
Banks, Robert (Harrogate) Douglas-Hamilton, Lord James
Bates, Michael Dover, Den
Batiste, Spencer Duncan, Alan
Beggs, Roy Duncan-Smith, Iain
Bellingham, Henry Dunn, Bob
Bendall, Vivian Dykes, Hugh
Beresford, Sir Paul Eggar, Tim
Bitten, Rt Hon John Elletson, Harold
Bonsor, Sir Nicholas Evans, David (Welwyn Hatfield)
Booth, Hartley Evans, Jonathan (Brecon)
Boswell, Tim Evans, Nigel (Ribble Valley)
Bottomley, Peter (Eltham) Evans, Roger (Monmouth)
Bowden, Andrew Evennett, David
Bowis, John Faber, David
Boyson, Rt Hon Sir Rhodes Fabricant, Michael
Brandreth, Gyles Fairbairn, Sir Nicholas
Brazier, Julian Field, Barry (Isle of Wight)
Bright, Graham Fishburn, Dudley
Brooke, Rt Hon Peter Forman, Nigel
Brown, M. (Brigg & Cl'thorpes) Forsyth, Michael (Stirling)
Browning, Mrs. Angela Forsythe, Clifford (Antrim S)
Bruce, Ian (S Dorset) Forth, Eric
Budgen, Nicholas Fox, Dr Liam (Woodspring)
Burns, Simon Fox, Sir Marcus (Shipley)
Burt, Alistair Freeman, Rt Hon Roger
Carlisle, John (Luton North) French, Douglas
Carlisle, Kenneth (Lincoln) Gale, Roger
Carrington, Matthew Gallie, Phil
Carttiss, Michael Gardiner, Sir George
Cash, William Garel-Jones, Rt Hon Tristan
Churchill, Mr Garnier, Edward
Clappison, James Gill, Christopher
Clark, Dr Michael (Rochford) Gillen, Cheryl
Clifton-Brown, Geoffrey Goodlad, Rt Hon Alastair
Coe, Sebastian Goodson-Wickes, Dr Charles
Colvin, Michael Gorman, Mrs Teresa
Gorst, John Merchant, Piers
Grant, Sir A. (Cambs SW) Mills, Iain
Greenway, Harry (Ealing N) Mitchell, Andrew (Gedling)
Greenway, John (Ryedale) Mitchell, Sir David (Hants NW)
Griffiths, Peter (Portsmouth, N) Moate, Sir Roger
Grylls, Sir Michael Molyneaux, Rt Hon James
Gummer, Rt Hon John Selwyn Monro, Sir Hector
Hague, William Montgomery, Sir Fergus
Hamilton, Rt Hon Sir Archie Moss, Malcolm
Hamilton, Neil (Tatton) Needham, Richard
Hampson, Dr Keith Nelson, Anthony
Hanley, Jeremy Neubert, Sir Michael
Hannam, Sir John Newton, Rt Hon Tony
Hargreaves, Andrew Nicholls, Patrick
Harris, David Nicholson, David (Taunton)
Haselhurst, Alan Nicholson, Emma (Devon West)
Hawkins, Nick Norris, Steve
Hawksley, Warren Onslow, Rt Hon Sir Cranley
Hayes, Jerry Oppenheim, Phillip
Heald, Oliver Ottaway, Richard
Heathcoat-Amory, David Page, Richard
Hendry, Charles Paice, James
Hicks, Robert Patnick, Irvine
Higgins, Rt Hon Sir Terence L. Patten, Rt Hon John
Hill, James (Southampton Test) Pattie, Rt Hon Sir Geoffrey
Hogg, Rt Hon Douglas (G'tham) Pawsey, James
Horam, John Peacock, Mrs Elizabeth
Hordern, Rt Hon Sir Peter Pickles, Eric
Howard, Rt Hon Michael Porter, Barry (Wirral S)
Howarth, Alan (Strat'rd-on-A) Porter, David (Waveney)
Howell, Rt Hon David (G'dford) Portillo, Rt Hon Michael
Hughes Robert G. (Harrow W) Redwood, Rt Hon John
Hunt, Rt Hon David (Wirral W) Renton, Rt Hon Tim
Hunter, Andrew Richards, Rod
Jack, Michael Riddick, Graham
Jackson, Robert (Wantage) Robathan, Andrew
Jenkin, Bernard Roberts, Rt Hon Sir Wyn
Jessel, Toby Robertson, Raymond (Ab'd'n S)
Johnson Smith, Sir Geoffrey Roe, Mrs Marion (Broxbourne)
Jones, Gwilym (Cardiff N) Ross, William (E Londonderry)
Jones, Robert B. (W Hertfdshr) Rumbold, Rt Hon Dame Angela
Jopling, Rt Hon Michael Ryder, Rt Hon Richard
Kellett-Bowman, Dame Elaine Scott, Rt Hon Nicholas
Key, Robert Shaw, David (Dover)
Kilfedder, Sir James Shaw, Sir Giles (Pudsey)
King, Rt Hon Tom Shephard, Rt Hon Gillian
Kirkhope, Timothy Shersby, Michael
Knapman, Roger Skeet, Sir Trevor
Knight, Mrs Angela (Erewash) Smyth, Rev Martin (Belfast S)
Knight, Greg (Derby N) Soames, Nicholas
Knight, Dame Jill (Bir'm E'st'n) Speed, Sir Keith
Knox, Sir David Spencer, Sir Derek
Kynoch, George (Kincardine) Spicer, Sir James (W Dorset)
Lait, Mrs Jacqui Spicer, Michael (S Worcs)
Lang, Rt Hon Ian Spink, Dr Robert
Legg, Barry Spring, Richard
Leigh, Edward Sproat, Iain
Lennox-Boyd, Mark Squire, Robin (Hornchurch)
Lidington, David Stanley, Rt Hon Sir John
Lightbown, David Steen, Anthony
Lilley, Rt Hon Peter Stephen, Michael
Lloyd, Rt Hon Peter (Fareham) Stewart, Allan
Lord, Michael Streeter, Gary
Luff, Peter Sumberg, David
MacGregor, Rt Hon John Sweeney, Walter
MacKay, Andrew Sykes, John
Maclean, David Tapsell, Sir Peter
McLoughlin, Patrick Taylor, Ian (Esher)
McNair-Wilson, Sir Patrick Taylor, Sir Teddy (Southend, E)
Madel, Sir David Thomason, Roy
Maitland, Lady Olga Thompson, Patrick (Norwich N)
Malone, Gerald Thornton, Sir Malcolm
Mans, Keith Thurnham, Peter
Marland, Paul Townsend, Cyril D. (Bexl'yh'th)
Marlow, Tony Tracey, Richard
Marshall, John (Hendon S) Tredinnick, David
Martin, David (Portsmouth S) Trend, Michael
Mates, Michael Trimble, David
Mawhinney, Rt Hon Dr Brian Trotter, Neville
Mellor, Rt Hon David Twinn, Dr Ian
Vaughan, Sir Gerard Wilkinson, John
Viggers, Peter Willetts, David
Waldegrave, Rt Hon William Wilshire, David
Walker, A. Cecil (Belfast N) Winterton, Mrs Ann (Congleton)
Walker, Bill (N Tayside) Winterton, Nicholas (Macc'fld)
Waller, Gary Wolfson, Mark
Wardle, Charles (Bexhill) Wood, Timothy
Waterson, Nigel Yeo, Tim
Watts, John Young, Rt Hon Sir George
Wells, Bowen
Whitney, Ray Tellers for the Noes:
Whittingdale, John Mr. James Arbuthnot and
Widdecombe, Ann Mr. Sydney Chapman.
Wiggin, Sir Jerry

Amendment accordingly negatived.

Amendment proposed: No. 316, in page 19, line 19, after 'be' insert `and provided that such questioning or charging shall have been tape-recorded in accordance with the provisions of the Police and Criminal Evidence Act 1984.'—[Mr. Michael.]

Question put, That the amendment be made:—

The House divided: Ayes 257, Noes 286.

Division No. 203] [8.20 pm
Abbott, Ms Diane Cousins, Jim
Adams, Mrs Irene Cox, Tom
Ainger, Nick Cunningham, Jim (Covy SE)
Ainsworth, Robert (Cov'try NE) Cunningham, Rt Hon Dr John
Allen, Graham Dafis, Cynog
Alton, David Dalyell, Tam
Anderson, Ms Janet (Ros'dale) Darling, Alistair
Armstrong, Hilary Davidson, Ian
Ashby, David Davies, Bryan (Oldham C'tral)
Ashton, Joe Davies, Rt Hon Denzil (Llanelli)
Austin-Walker, John Davies, Ron (Caerphilly)
Barnes, Harry Denham, John
Barron, Kevin Dewar, Donald
Battle, John Dixon, Don
Bayley, Hugh Dobson, Frank
Beith, Rt Hon A. J. Donohoe, Brian H.
Bell, Stuart Dowd, Jim
Benn, Rt Hon Tony Dunnachie, Jimmy
Bennett, Andrew F. Eagle, Ms Angela
Benton, Joe Enright, Derek
Bermingham, Gerald Etherington, Bill
Berry, Roger Evans, John (St Helens N)
Betts, Clive Ewing, Mrs Margaret
Blair, Tony Faulds, Andrew
Boateng, Paul Field, Frank (Birkenhead)
Bradley, Keith Fisher, Mark
Bray, Dr Jeremy Flynn, Paul
Brown, N. (N'c'tle upon Tyne E) Foster, Rt Hon Derek
Bruce, Malcolm (Gordon) Foster, Don (Bath)
Burden, Richard Foulkes, George
Byers, Stephen Fraser, John
Caborn, Richard Fyfe, Maria
Callaghan, Jim Galbraith, Sam
Campbell, Mrs Anne (C'bridge) Galloway, George
Campbell, Menzies (Fife NE) Gapes, Mike
Campbell, Ronnie (Blyth V) Garrett, John
Campbell-Savours, D. N. George, Bruce
Cann, Jamie Gerrard, Neil
Carlile, Alexander (Montgomry) Godman, Dr Norman A.
Chisholm, Malcolm Godsiff, Roger
Clapham, Michael Golding, Mrs Llin
Clark, Dr David (South Shields) Gordon, Mildred
Clarke, Eric (Midlothian) Graham, Thomas
Clarke, Tom (Monklands W) Grant, Bernie (Tottenham)
Clelland, David Griffiths, Win (Bridgend)
Clwyd, Mrs Ann Grocott, Bruce
Coffey, Ann Gunnell, John
Connarty, Michael Hain, Peter
Cook, Frank (Stockton N) Hall, Mike
Cook, Robin (Livingston) Hanson, David
Corbett, Robin Harvey, Nick
Corbyn, Jeremy Hattersley, Rt Hon Roy
Corston, Ms Jean Heppell, John
Hill, Keith (Streatham) Murphy, Paul
Hinchliffe, David O'Brien, Michael (N W'kshire)
Hoey, Kate O'Brien, William (Normanton)
Hogg, Norman (Cumbernauld) O'Hara, Edward
Home Robertson, John Olner, William
Hood, Jimmy O'Neill, Martin
Hoon, Geoffrey Parry, Robert
Howarth, George (Knowsley N) Patchett, Terry
Howells, Dr. Kim (Pontypridd) Pendry, Tom
Hoyle, Doug Pickthall, Colin
Hughes, Kevin (Doncaster N) Pike, Peter L.
Hughes, Robert (Aberdeen N) Pope, Greg
Hughes, Roy (Newport E) Prentice, Ms Bridget (Lew'm E)
Hutton, John Prentice, Gordon (Pendle)
Illsley, Eric Primarolo, Dawn
Ingram, Adam Purchase, Ken
Jackson, Glenda (H'stead) Quin, Ms Joyce
Jackson, Helen (Shef'ld, H) Radice, Giles
Jamieson, David Randall, Stuart
Janner, Greville Raynsford, Nick
Jones, Ieuan Wyn (Ynys Môn) Reid, Dr John
Jones, Jon Owen (Cardiff C) Rendel, David
Jones, Lynne (B'ham S O) Robertson, George (Hamilton)
Jones, Martyn (Clwyd, SW) Robinson, Geoffrey (Co'try NW)
Jones, Nigel (Cheltenham) Roche, Mrs. Barbara
Jowell, Tessa Rogers, Allan
Kaufman, Rt Hon Gerald Rooker, Jeff
Keen, Alan Ross, Ernie (Dundee W)
Kennedy, Charles (Ross,C&S) Rowlands, Ted
Kennedy, Jane (Lpool Brdgn) Ruddock, Joan
Khabra, Piara S. Sedgemore, Brian
Kilfoyle, Peter Sheerman, Barry
Kinnock, Rt Hon Neil (Islwyn) Sheldon, Rt Hon Robert
Kirkwood, Archy Shepherd, Richard (Aldridge)
Lawrence, Sir Ivan Shore, Rt Hon Peter
Lestor, Joan (Eccles) Short, Clare
Lewis, Terry Simpson, Alan
Livingstone, Ken Skinner, Dennis
Lloyd, Tony (Stretford) Smith, Andrew (Oxford E)
Llwyd, Elfyn Smith, C. (Isl'ton S & F'sbury)
Loyden, Eddie Smith, Llew (Blaenau Gwent)
Lynne, Ms Liz Soley, Clive
McAllion, John Spearing, Nigel
McAvoy, Thomas Speller, John
McCartney, Ian Squire, Rachel (Dunfermline W)
Macdonald, Calum Steel, Rt Hon Sir David
McFall, John Steinberg, Gerry
McKelvey, William Stevenson, George
McLeish, Henry Stott, Roger
Maclennan, Robert Strang, Dr. Gavin
McNamara, Kevin Straw, Jack
McWilliam, John Taylor, Mrs Ann (Dewsbury)
Madden, Max Turner, Dennis
Maddock, Mrs Diana Tyler, Paul
Mahon, Alice Vaz, Keith
Mendelson, Peter Walker, Rt Hon Sir Harold
Marek, Dr John Wallace, James
Marshall, David (Shettleston) Walley, Joan
Marshall, Jim (Leicester, S) Wardell, Gareth (Gower)
Martin, Michael J. (Springburn) Wareing, Robert N
Martlew, Eric Watson, Mike
Maxton, John Welsh, Andrew
Meacher, Michael Wicks, Malcolm
Meale, Alan Wigley, Dafydd
Michael, Alun Williams, Rt Hon Alan (Sw'n W)
Michie, Bill (Sheffield Heeley) Williams, Alan W (Carmarthen)
Michie, Mrs Ray (Argyll Bute) Wilson, Brian
Milburn, Alan Winnick, David
Miller, Andrew Wise, Audrey
Mitchell, Austin (Gt Grimsby) Worthington, Tony
Moonie, Dr Lewis Wray, Jimmy
Morgan, Rhodri Wright, Dr Tony
Morley, Elliot Young, David (Bolton SE)
Morris, Estelle (B'ham Yardley)
Morris, Rt Hon J. (Aberavon) Tellers for the Ayes:
Mowlam, Marjorie Mr. Ray Powell and
Mudie, George Mr. Gordon McMaster.
Mullin, Chris
Ainsworth, Peter (East Surrey) Fabricant, Michael
Aitken, Jonathan Fairbairn, Sir Nicholas
Alison, Rt Hon Michael (Selby) Field, Barry (Isle of Wight)
Allason, Rupert (Torbay) Fishburn, Dudley
Amess, David Forman, Nigel
Arnold, Jacques (Gravesham) Forsyth, Michael (Stirling)
Arnold, Sir Thomas (Hazel Grv) Forsythe, Clifford (Antrim S)
Atkins, Robert Forth, Eric
Atkinson, David (Bour'mouth E) Fox, Dr Liam (Woodspring)
Atkinson, Peter (Hexham) Fox, Sir Marcus (Shipley)
Baker, Rt Hon K. (Mole Valley) Freeman, Rt Hon Roger
Baker, Nicholas (Dorset North) French, Douglas
Baldry, Tony Gale, Roger
Banks, Matthew (Southport) Gallie, Phil
Banks, Robert (Harrogate) Gardiner, Sir George
Bates, Michael Garel-Jones, Rt Hon Tristan
Batiste, Spencer Garnier, Edward
Beggs, Roy Gill, Christopher
Bellingham, Henry Gillen, Cheryl
Bendall, Vivian Goodlad, Rt Hon Alastair
Beresford, Sir Paul Goodson-Wickes, Dr Charles
Biffen, Rt Hon John Gorman, Mrs Teresa
Bonsor, Sir Nicholas Gorst, John
Booth, Hartley Grant, Sir A. (Cambs SW)
Boswell, Tim Greenway, Harry (Ealing N)
Bottomley, Peter (Eltham) Greenway, John (Ryedale)
Bowden, Andrew Griffiths, Peter (Portsmouth, N)
Bowis, John Grylls, Sir Michael
Boyson, Rt Hon Sir Rhodes Gummer, Rt Hon John Selwyn
Brandreth, Gyles Hague, William
Brazier, Julian Hamilton, Rt Hon Sir Archie
Bright, Graham Hamilton, Neil (Tatton)
Brooke, Rt Hon Peter Hampson, Dr Keith
Brown, M. (Brigg & Cl'thorpes) Hanley, Jeremy
Browning, Mrs. Angela Hannam, Sir John
Bruce, Ian (S Dorset) Hargreaves, Andrew
Budgen, Nicholas Harris, David
Burns, Simon Haselhurst, Alan
Burt, Alistair Hawkins, Nick
Carlisle, John (Luton North) Hawksley, Warren
Carlisle, Kenneth (Lincoln) Hayes, Jerry
Carrington, Matthew Heald, Oliver
Carttiss, Michael Heathcoat-Amory, David
Cash, William Hendry, Charles
Churchill, Mr Hicks, Robert
Clappison, James Higgins, Rt Hon Sir Terence L.
Clark, Dr Michael (Rockford) Hill, James (Southampton Test)
Clifton-Brown, Geoffrey Hogg, Rt Hon Douglas (G'tham)
Coe, Sebastian Horam, John
Colvin, Michael Hordern, Rt Hon Sir Peter
Congdon, David Howard, Rt Hon Michael
Conway, Derek Howarth, Alan (Strat'rd-on-A)
Coombs, Simon (Swindon) Howell, Rt Hon David (G'dford)
Cope, Rt Hon Sir John Hughes Robert G. (Harrow W)
Couchman, James Hunt, Rt Hon David (Wirral W)
Cran, James Hunter, Andrew
Currie, Mrs Edwina (S D'by'ire) Jack, Michael
Curry, David (Skipton & Ripon) Jackson, Robert (Wantage)
Davies, Quentin (Stamford) Jenkin, Bernard
Davis, David (Boothferry) Jessel, Toby
Day, Stephen Johnson Smith, Sir Geoffrey
Deva, Nirj Joseph Jones, Gwilym (Cardiff N)
Devlin, Tim Jones, Robert B. (W Hertfdshr)
Dickens, Geoffrey Jopling, Rt Hon Michael
Dorrell, Stephen Kellett-Bowman, Dame Elaine
Douglas-Hamilton, Lord James Key, Robert
Dover, Den Kilfedder, Sir James
Duncan, Alan King, Rt Hon Tom
Duncan-Smith, Iain Kirkhope, Timothy
Dunn, Bob Knapman, Roger
Dykes, Hugh Knight, Mrs Angela (Erewash)
Eggar, Tim Knight, Greg (Derby N)
Elletson, Harold Knight, Dame Jill (Bir'm E'st'n)
Evans, David (Welwyn Hatfield) Knox, Sir David
Evans, Jonathan (Brecon) Kynoch, George (Kincardine)
Evans, Nigel (Ribble Valley) Lait, Mrs Jacqui
Evans, Roger (Monmouth) Lang, Rt Hon Ian
Evennett, David Legg, Barry
Faber, David Leigh, Edward
Lennox-Boyd, Mark Scott, Rt Hon Nicholas
Lidington, David Shaw, David (Dover)
Lightbown, David Shaw, Sir Giles (Pudsey)
Lilley, Rt Hon Peter Shephard, Rt Hon Gillian
Lloyd, Rt Hon Peter (Fareham) Shersby, Michael
Lord, Michael Skeet, Sir Trevor
Luff, Peter Smyth, Rev Martin (Belfast S)
MacGregor, Rt Hon John Soames, Nicholas
MacKay, Andrew Speed, Sir Keith
Maclean, David Spencer, Sir Derek
McLoughlin, Patrick Spicer, Sir James (W Dorset)
McNair-Wilson, Sir Patrick Spicer, Michael (S Worcs)
Madel, Sir David Spink, Dr Robert
Maitland, Lady Olga Spring, Richard
Malone, Gerald Sproat, Iain
Mans, Keith Squire, Robin (Hornchurch)
Marland, Paul Stanley, Rt Hon Sir John
Marlow, Tony Steen, Anthony
Marshall, John (Hendon S) Stephen, Michael
Martin, David (Portsmouth S) Stewart, Allan
Mates, Michael Streeter, Gary
Mawhinney, Rt Hon Dr Brian Sumberg, David
Mellor, Rt Hon David Sweeney, Walter
Merchant, Piers Sykes, John
Mills, Iain Tapsell, Sir Peter
Mitchell, Andrew (Gedling) Taylor, Ian (Esher)
Mitchell, Sir David (Hants NW) Taylor, Sir Teddy (Southend, E)
Moate, Sir Roger Temple-Morris, Peter
Molyneaux, Rt Hon James Thomason, Roy
Monro, Sir Hector Thompson, Patrick (Norwich N)
Montgomery, Sir Fergus Thornton, Sir Malcolm
Moss, Malcolm Thurnham, Peter
Needham, Richard Townsend, Cyril D. (Bexl'yh'th)
Nelson, Anthony Tracey, Richard
Neubert, Sir Michael Tredinnick, David
Newton, Rt Hon Tony Trend, Michael
Nicholls, Patrick Trimble, David
Nicholson, David (Taunton) Trotter, Neville
Nicholson, Emma (Devon West) Twinn, Dr Ian
Norris, Steve Vaughan, Sir Gerard
Onslow, Rt Hon Sir Cranley Viggers, Peter
Oppenheim, Phillip Waldegrave, Rt Hon William
Ottaway, Richard Walker, A. Cecil (Belfast N)
Page, Richard Walker, Bill (N Tayside)
Paice, James Waller, Gary
Patnick, Irvine Wardle, Charles (Bexhill)
Patten, Rt Hon John Waterson, Nigel
Pattie, Rt Hon Sir Geoffrey Watts, John
Pawsey, James Wells, Bowen
Peacock, Mrs Elizabeth Whitney, Ray
Pickles, Eric Whittingdale, John
Porter, Barry (Wirral S) Widdecombe, Ann
Porter, David (Waveney) Wiggin, Sir Jerry
Portillo, Rt Hon Michael Wilkinson, John
Redwood, Rt Hon John Willetts, David
Renton, Rt Hon Tim Wilshire, David
Richards, Rod Winterton, Mrs Ann (Congleton)
Riddick, Graham Winterton, Nicholas (Macc'fld)
Robathan, Andrew Wolfson, Mark
Roberts, Rt Hon Sir Wyn Wood, Timothy
Robertson, Raymond (Ab'd'n S) Yeo, Tim
Roe, Mrs Marion (Broxbourne) Young, Rt Hon Sir George
Ross, William (E Londonderry)
Rumbold, Rt Hon Dame Angela Tellers for the Noes:
Ryder, Rt Hon Richard Mr. James Arbuthnot and
Sackville, Tom Mr. Sydney Chapman.

Question accordingly negatived.

Amendments made: No. 208, in page 19, leave out lines 21 and 22 and insert— '(a) a magistrates' court, in deciding whether to grant an application for dismissal made by the accused under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial);'

No. 209, in page 19, line 32, at end insert— `( ) the court, in determining whether there is a case to answer;'

No. 210, in page 20, line 11, at end insert— `( ) In relation to any time before the commencement of section 36 of this Act, this section shall have effect as if the reference in subsection (2)(a) to the grant of an application for dismissal was a reference to the committal of the accused for trial.'.—[Mr. Maclean.]

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