HL Deb 11 February 1971 vol 315 cc249-62

3.25 p.m.


My Lords, I beg to move that the House do again resolve itself into Committee on this Bill. It is hoped to conclude the Committee stage proceedings by 7 o'clock this evening. If that does not prove possible, it has been agreed through the usual channels to adjourn the Committee stage at that time and to move on to other business.

Moved, That the House do again resolve itself into Committee.—(Lord Windlesham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 23 [Powers to search and obtain evidence]:

BARONESS WOOTTON OF ABINGER moved Amendment No. 9: Page 17, line 39, leave out paragraph (a).

The noble Baroness said: This Amendment seeks to remove from the Bill paragraph (a) of subsection (2), which gives a constable power to detain and search any person if he has reasonable cause to suspect that that person is in illicit possession of a controlled drug. This power was introduced into the Act of 1967 by my noble friend Lord Stonham, and I should like to quote what he said on that occasion—it is in col. 746 of the OFFICIAL REPORT for July 5, 1967: … the police everywhere should be given power to stop and search suspected persons and vehicles. The Government recognise fully that to extend police powers in this way is a serious matter, but we must balance the seriousness of the drugs problem against the potential for infringing individual liberty.

I agree entirely with my noble friend that this is a matter of striking a balance between the claims of individual liberty and the serious aspects of the drug problem. What I hope to persuade the Committee is that is is clear in the light of experience that the balance is struck wrongly by this clause which gives the police an unrestricted power to search any person, even in the absence of arrest, if the constable has reasonable grounds for suspecting that that person is in illicit possession of a controlled drug. The first problem concerns this right to detain. A right to detain seems to be creeping into our law. We are all accustomed to helping the police with their inquiries at one end of the scale, and to arrest at the other end of the scale. The law relating to arrest, or wrongful arrest, is well established, but this vague power to detain is not so well established, and I think it has rather sinister potentialities when it is a means of detaining in the absence of arrest. That is the first point.

The next point about this power concerns the question of search and of reasonable suspicion that a person is in possession of drugs. On what grounds can reasonable suspicion be established? It is not like the Road Safety Act. There is no nice easy test like a breathalyser that turns green, and it is not even like searching for suspected stolen goods. Under the Metropolitan Police 6s.ct in London, and similar local Acts in a number of other cities, the police search for suspected stolen goods. They are disposed to search people who are going about at night carrying rather bulky parcels. But if a person has some stolen jewellery which he has slipped into his pocket, how is "reasonable cause to suspect" to be established? In point of fact it cannot be, unless that person is known to have a record of stealing or of receiving stolen jewellery.

This is the real problem with drugs. It may be that the constable will see something passing; he may see something which he suspects is a syringe or a small package, and this may be late at night in an area where drug addicts are known to congregate. But those are exceptional cases, and people do not pass drugs in the street, for obvious reasons. What we come back to is that there is no real way of establishing "reasonable cause to suspect" unless a person is known previously to have been engaged in the drug business or to have been convicted of possession of drugs.

What happens in practice is something which was bitterly fought when it was proposed in gelation to the Road Safety Act; that is that the searches that are made are, in effect, random. At least they are random within a certain population. They are not totally random, and it is very unlikely that many of those present in this Committee this afternoon will be detained and searched for illegal possession of drugs. What happens is that random searches are made of people whose appearance is unusual. That means, of course, of a particular and a now very considerable section of people; those who have an unconventional, or perhaps I ought to say a pre-conventional, appearance in dress or hair style. This seems to me to be a very unfortunate situation. It is partly inherent in the nature of the situation that you cannot establish reasonable suspicion. Therefore if the police are to search at all they are inevitably driven to making these random searches of people of a particular kind of appearance. The result is considerable resentment by a large number of innocent persons who are subjected to these searches.

The Advisory Committee on Drug Dependence was divided as to the merits of retaining or doing away with this particular clause. However, they were entirely of one mind on one thing, and I should like to quote what was said by those who did not wish to do away with this clause: … those of us who object to statutory limitation"— that is to say those of us who do not wish to remove this clause, are prepared to say as strongly as the minority who favour it that dress and hair style should never in themselves or together constitute reasonable grounds to stop and search. So the Committee was of one mind that the searches should not be made on personal appearance. But if they are not made on personal appearance, how are they to be made, and what form are they to take?

It was put to the Committee that one of the arguments in favour of this clause was that it was necessary to protect young people from drug traffickers, and I could not agree more that that is a most important consideration. It was argued that while there were powers of search under other Acts in certain cities, they were not nationwide, and therefore they should be made nation-wide. At this point we are impaled on the horns of a dilemma, because if a search means stepping aside in a doorway and asking somebody to turn out his pockets, or asking some woman to turn out her handbag, that is one thing; but that is not going to catch the people who are trying to foist drugs upon young people. That is going to catch only the relatively unsophisticated young person who is foolish enough to go about with drugs in his pocket, or in her handbag.

Evidence was given to the Advisory Committee sub-committee on this matter by the Association of Chief Officers of Police of England and Wales, and the Chief Constables of Scotland Association jointly, in which it was stated: Experience has shown that drugs are concealed in body folds which a routine search of clothing, et cetera, would not reveal. One cannot carry out a proper search of a person for drugs in a street, for instance. In oral evidence a witness on behalf of these Associations said: People do not carry the drugs in their pocket in such a way that a casual search on the street is going to reveal them. That has gone out a long, long time ago. They are much more skilful about these things. They use the folds of the body, and the casual search in the street is most unlikely to reveal anything. I think it is fair to say that we understand that the practice of police forces varies, and that it is not customary, in the majority of cases, to carry out these very radical searches which involve going to the police station and stripping the person to be searched. But they are carried out in certain cases, and we are now in the dilemma that unless they are carried out we are not going to catch the important people; and if they are carried out and nothing is found, it is going to be extremely humiliating for innocent persons.

In point of fact, the great majority of the people who are detained and searched under this power turn out to be innocent. Constables honestly believe that they have reasonable grounds to suspect, but in the great majority of cases the "reasonable grounds" turn out to be not well founded. Indeed, the best record that was quoted to the Advisory Committee on successful searches came from Birmingham, where one in three were successful. In other parts of the country the proportion may be as little as one in 16. That means that there are a very large number of unsuccessful searches, which means, in turn, that innocent people are subjected to this process for a very small haul. In the great majority of cases the search reveals nothing—perhaps because it is done in a doorway; perhaps because the police are considerate and do not take the suspect down to the police station as they do not want to subject him to this humiliating procedure. In these circumstances, we are impaled on the horns of this dilemma: that a thorough search is humiliating for the innocent, and a casual search is not going to find more than a few unsophisticated people.

I think it really comes down to the fact that this was a piece of panic legislation. This power got into an Act where it did not belong: an Act which was primarily concerned with the matter of treatment of drug addicts. It was slipped into that Act in 1967 (we had done without it until then), in the rather panic-stricken, possibly hysterical, situation which prevailed at the time, and it has now been carried forward into this Bi11. I know that it has been carried forward with the approval of both the late Government and the present Government. But, after all, this Bill was drafted more than a year ago; time has gone by, and it is a fact that there have been considerable changes in the drug scene. Nothing is truer of the drug scene than that as fast as one door opens another one closes. We live in continual change, and I think our experience of this clause has been that it does not catch the big fish, and the few little fish that it catches are really not worth the effort and humiliation; particularly the humiliation of the innocent people who are subjected to search.

I know it will be said that the police value this power, and that is very understandable. The task of the police is to enforce the law as it is, and a right to search naturally makes it easier to find people in possession of drugs. But I come back to what my noble friend said when he introduced the clause into the Bill in 1967. This is a matter of balance, and while one appreciates that the police find this power useful because it helps them in their task, that is not necessarily the final consideration. One may sympathise with their point of view but at the same time feel that because a certain procedure facilitates the task of the police that is not the last word ever to be said about it. It is a question of balance between the effectiveness of this unlimited right of search, which proves in practice to be a random search, and the potential threat to individual liberty. I submit that in the light of the knowledge which we have gained since the Bill was drafted, the balance is struck the wrong way in the clause as it now stands. I beg to move.

3.42 p.m.


I find it difficult to understand the logic of my noble friend's argument. I listened to her very carefully, and towards the end of her speech she said that no sooner have we shut one door than another one is opened. In other words, she means that no sooner have we shut one door to the trafficker than he finds another one. At the same time, she is asking the Committee to weaken the powers of the police. We all recognise that the police, when dealing with this particular crime, have a very difficult duty to perform. They have not had a great deal of practice, and they are called upon to sum up an individual and make a decision on whether the evidence is such that they are warranted in examining him.

May I put this point to my noble friend? She does not dissent from the fact that to-day a policeman can suspect a person of carrying stolen goods and can examine him. If such a persons is charged and found guilty, he can be given a suspended sentence or be sent to prison. If he is sent to prison he will suffer incarceration, which is very unpleasant, and his reputation will be temporarily or even permanently damaged. That is the penalty which is imposed for carrying stolen goods. But in the case of drugs an individual can carry something which, if he consumes it himself and acquires a habit, will harm him permanently. In addition to that, if he is carrying drugs it means that he has certain goods which will harm a great many other people. Therefore, he is a public danger; he is a menace to the public. He will not be the only one to be damaged, and his offence is so serious that the community is now called upon to protect itself from him.

On other occasions I have read the relevant reports, and on Tuesday I read the report from the International Narcotics Control Board. This, by the way, is an answer to the noble Lord who asked me whether there was any evidence. The International Narcotics Control Board stated that there is evidence that the individual who consumes cannabis deteriorates and finally takes heroin. That is the background of the whole picture. The Bill gives permission to the police to stop and examine somebody who is carrying this evil drug; and in my opinion the position to-day is so serious that, far from trying to weaken the power of the police, we should do everything possible to strengthen it.

3.47 p.m.


This Amendment concerns one of the most difficult and sensitive areas of the Bill, affecting as it does the whole issue of civil liberties. It is the issue on which I felt bound on Second Reading to enter a personal reservation, while indicating the general support of noble Lords on this side for the main principles and provisions of the Bill as a whole. As my noble friend Lady Wootton of Abinger reminded us, the basic issue here is whether the powers of the police originally introduced in the earlier Act to stop and search anyone anywhere, when they had reasonable grounds to suspect them of being in unlawful possession of drugs, are wider than is really necessary for their admittedly difficult task of controlling and containing drug addiction and trafficking.

It is quite clear from the last speech that on this issue there will be different and strongly held views on what is the right balance between the police powers of law enforcement and individual liberty. I am in agreement with my noble friend Lady Wootton of Abinger. Having studied at some length and in very great detail the careful and thorough report of the sub-committee of the Advisory Committee on Drug Dependence, under the able chairmanship of the right honourable Member for Ashford, I find myself in support of the minority view, which my noble friend has argued so cogently that I feel I should not detain the Committee further to-day by repeating the arguments. In brief, I am in favour, as she is, of reverting to the normal powers of arrest used by the police for all other kinds of suspected offences, rather than the continuation of the random stop and search powers which this paragraph would continue to provide. I do not believe that this would necessarily weaken the powers of the police and I object to a specific provision of this kind affecting only drugs.

In taking this view, one must accept that the judgments involved here are essentially personal ones. Part of my judgment, in addition to considering the Deedes Committee's report, stems from my own experience as a magistrate. I also accept that both this Government and the previous Government agreed with the majority view of the Deedes Committee, although there were admittedly divisions of opinion during the Committee stage in another place which cut across political frontiers. I can only add—and I would say this specifically to my noble friend Lady Summerskill—that those of us who take a view opposed to hers on this issue are as genuinely and sincerely concerned with the need to control drug misuse in all its various manifestations, particularly among the young, as those who favour the stop an dsearch powers. But it is our belief that the continuation of these exceptional procedures will have an alienating and divisive effect, particularly on the young; and the dangers to civil liberties which are involved are such that militate against the very objectives we seek.

In this context I would ask the noble Lord, Lord Windlesham, if he would tell the Committee, when he replies to the discussions on this particular Amendment, what administrative action the Government have taken or are planning to take about the unanimous conclusions of the Deedes Committee report. I am particularly concerned with Recommendation (ii), which suggests: If the stop-search powers are retained, detailed statistics should be kept of the use made of them for examination by H.M. Inspectors of Constabulary … I should also like to know what discussions Her Majesty's Government have had with the Police Force on Recommendation (v) of the Deedes Committee; the unanimous recommendation that The police should accept—and senior officers should accept the need for enforcing—the principle that particular modes of dress or hair style should never by themselves or together constitute reasonable grounds to stop and search. Thirdly, I am particularly interested in the action which has followed Recommendation (viii); namely, The powers of stop and search should not distinguish between different illegal drugs. Progress in implemeting these unanimous and important recommendations of the Deedes Report could go some way to allay the concern that has been expressed in many quarters about the operation of the random stop and search powers, and would reassure those of us who are concerned about their continuation. I hope the Committee, in considering the noble Baroness's Amendment, will deal with it unemotionally. It concerns a vital issue of civil liberties, going far beyond the question of our individual views about the use or misuse of drugs.


My noble friend Lady Wootton has quoted remarks I passed in 1967, when your Lordships accepted this particular provision. As usual, she has quoted them with the utmost fairness, and I do not propose to dispute her selection, because what I said then I would say to-day. I have not changed my mind about this in any way at all. Nor do I give way to my noble friends in their feeling for those who may be detained and searched in this way. I was aware of their feelings in 1967, and took them fully into account before I said a word. Indeed, I can say now that I well recall how astonished I was that this particular proposal excited so little opposition. I thought then, and I hope they will think now, that this question of balance largely depends on the view that one takes of the police and the way that they conduct their affairs. I do not accept from my noble friend that these searches are at random, and that the only people detained and searched are those with long hair and a scruffy exterior. Indeed, it may well be that they are in the majority because they are among the people who most handle these drugs. I do not say that this is the case, but it may be the case. But they are not stopped for reasons of their appearance. For a constable to have reasonable suspicion he must act on more than the physical aspects of the person he stops. The police have information, and they act on that information. That is a reasonable ground for suspicion.

Although it is now more than three years since this measure was passed, I have not so far heard any allegations that the police have exercised their powers arbitrarily or brutally or inhumanely. In fact, I do not recall any complaints under this section. A measure of this kind is, I think, distasteful to all of us. In many ways it is an infringement, and on the surface an unjustifiable infringement, of individual liberty. But I happen to have met some of the people who are the end product of the drug-pushers' activities and, knowing of the really frightful tragedies (among young people, too; people under twenty) ending in horrible deaths, I find it comparatively easy to say that we were right in passing that provision in 1967.

However distasteful it is to grant the power of search and detention without warrant, we must have regard to the difficulties of tracing and catching the traffickers in drugs; and when, in considering a Bill of this kind, we decide on the penalties and perhaps somewhat airily agree that they should be ten years or fourteen years, we must not in the same Bill flinch from giving the police the powers to catch these people. If we advocate and justify the end that we have in mind, then we have to give the police the means to carry it out. I say—and I, too, have discussed this with the police and with the drug addicts; with all parties to the transaction—that this power in the Bill is right, and should be retained. I hope that the noble Lord will resist the Amendment.

3.58 p.m.


I should like to support the Amendment of my noble friend Lady Wootton and in doing so say that I am very concerned at the discussion on a great many of these Amendments which have been put forward, because on the whole the opposition to them has not been based on the merits of the particular Amendment—the debate has always been turned into an attack on those of us who are allegedly supposed to be "soft on drugs". This is not only grossly misleading and a gross misrepresentation of what is being said, but is ignoring what to my mind is a far wider problem. There is in my mind, and I think in the mind of those who are supporting this Amendment, no intention at all of trying to facilitate the use of drugs or of trying to hinder the police in the exercise of their duty; but on the question of the difficult balance between civil liberty and the powers of the police, I find that I have to come down on the side of the police having the powers to arrest but not to stop and search.

I would say—and I hope that my noble friend Lady Summerskill will take particular note of this—that in the evidence of the Law Society (which I do not think is a body that one could describe as being "soft on drugs") their witnesses expressed support for the sugestion that the power to stop and search should be withdrawn and replaced by a power to arrest and search. They favour arrest followed by a search at the police station, rather than arrest and search in the street. This seems to me to be pretty powerful support for this particular Amendment, and I hope that the Minister will consider putting in an Amendment on the Report stage in line with that of my noble friend Lady Wootton and with the recommendations of Professor Glanville Williams and other people distinguished in their own right who are anxious to deal with the drugs problem and also to preserve human liberties.

I think it is quite absurd to say that one can always find an objective reason for being suspicious about a person. Let us be frank. Policemen are human beings; they have prejudices like the rest of us. They will sometimes encounter a person whose appearance is abhorrent to them; and although that person is entitled to his own taste in clothes and appearance and although it may be unfair to that person, it is. I think, stretching matters too far to say that the policeman should not stop that person when he quite genuinely—and I repeat, genuinely—believes him to be, because of his appearance, the sort of person who is probably carrying drugs.

With great respect to my noble friend Lord Stonham, who said that this is not done at random, I suppose it depends upon how you define "at random"; because I have personal knowledge of young people who have come out of a dance hall and who have been stopped by the police and searched. Indeed, in some cases the same people have been searched on successive weekends, although nothing was found on them. I suppose that this was on the principle that, as all penguins look alike, so do all people with long hair. Although it was explained to these young people—and I tried to do so myself—that the police were only exercising their duty and that perhaps people who had been concealing drugs had come out of that dance hall in the past, I am afraid I did not get very far. They were convinced that, in their own words, this was just an excuse for the police "giving us I a going over".

It seems to me that anything that alienates young people from the Establishment even more than they are alienated at the moment (and in this context the police represent the Establishment) cannot really help in this problem. After all, what are we trying to do? Are we trying to use draconian measures or are we dealing with a problem which is part of a culture, a problem which is more social than criminal and, in fact, is often more of a social than a medical evil? It is true, as Lord Stonham said, that the effects of escalation into hard drugs by some people is absolutely horrifying; but from experience to date, this does not apply to the majority of young people who may have experimented at some time with cannabis.

So far as the analogy with stolen goods is concerned—and the noble Baroness, Lady Summerskill, put this forward—surely the point is that people who are stopped by the police on suspicion of carrying stolen goods are stopped late at night or early in the morning and when they are carrying a case or a bag which may indicate that they have something with them to which they are not entitled. I think that the nearest analogy to the stop and search business is the case of the suspected persons. Those of us who are magistrates will agree that we find this an extremely difficult and unpleasant type of case and that we go to great lengths to make certain that we are convinced that it was right to arrest the person in that case. But the person has been arrested and brought before a court; he or she has not been stopped and searched.

One of the answers given to us is that if the search has been wrongfully carried out or the police cannot show that there were reasonable grounds, the person has civil redress. How many young people or teenagers either know of these rights in the first place or, if they do, are prepared to take on these people whom they believe to be against them anyway? I feel that stop and search in a Bill of this type is counter-productive and indeed in the long run is going to do more in some ways to encourage the transport of drugs, because it acts as a challenge to a number of young people who think it all rather daring. By deleting this paragraph your Lordships would take that away. Making it a power of arrest—with search, if you like—makes it clear. It would also be a clearer indication to the police of what their powers are and would result in more thought and consideration being given to the circumstances before the police arrest.


In rising to support my noble friend, there is one particular matter to which I should like to draw attention. I do not know whether the Minister will be able to give some opinion on it. The matter concerning me most here is that mentioned by my noble friend Lady Birk. I have read of many cases where a large number of people, fifty or a hundred, on leaving some public place have all been searched by a police constable. When searches of that nature take place, I do not see how it can be said that the police constable had reason to suspect that all those people might have been carrying drugs. In the words of the present subsection: If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug …"— he may search that person"— the word "person" is in the singular— and detain him for the purpose of searching him". I am wondering whether that means that the constable in question must have reason to suspect that the drugs are being carried by a particular person and that the constable is not enabled to search a large number of people simply because they are in a particular place at a particular time, with a particular kind of hair style or in a particular kind of dress. If the noble Lord could give an assurance that these suspicions have to be directed at one person or at a specific person, it would remove some of the apprehensions I feel about this clause. But as it seems to me that a completely new and deplorable principle is being brought into British law, virtually for the first time, on what may not be at all a serious offence, and that a constable is thereby being permitted to search without a warrant, I shall in any case follow my noble friend into the Division Lobby.

House resumed.