§ 72 After Clause 47, insert the following new clause:
§ Right to have someone informed when arrested
§ " . Where any person has been arrested, other than under the Prevention of Terrorism Act 1976, and is being held in custody in a police station or other premises, he shall be entitled to have intimation of his arrest and of the place where he is being held sent to a person of his choosing."
§ AMENDMENTS TO COMMONS AMENDMENT No. 72
§ 72A Line 1, leave out from ("arrested") to ("and") in line 2.
§ 72B Line 5, leave out ("a person of his choosing") and insert ("one person reasonably named by him, without delay or, where some delay is necessary in the interest of the investigation or prevention of crime or the apprehension of offenders, with no more delay than is so necessary.")
§ 6.54 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 72, as amended by Amendments Nos. 72A and 72B. The clause as drafted was added to the Bill at a late stage and against Government advice. It seeks to give a person who is arrested in England or Wales—other than a person arrested under the terms of the Prevention of Terrorism Act—a statutory and unqualified right to have intimation of his arrest and the place of his detention conveyed to a person of his choosing.
The main reason why the Government objected to the clause was this. The subject matter of this clause is only one aspect of the police procedures in the investigation of crime and the questioning of suspected persons. It is an important point but it is only part of a much wider picture. This wider picture is now to come under review by the Royal Commission 517 which has recently been set up to look at pre-trial procedures as a whole. The Government did not consider it desirable, at a time when the Royal Commission has just been set up, to attempt to tackle one aspect of this remit in isolation in this way. We thought that the Royal Commission should be given the opportunity to take a broad view of the situation and to bring forward balanced and comprehensive proposals.
As for the clause itself, as drafted, it confers an absolute and unqualified right on a person in custody to have intimation of the fact of his arrest and place of his detention conveyed to any person of his choosing. This was to be done without reference to the wider implications of such an intimation. No one disputes that as a general rule, and in accordance with good police practice, an arrested person should be able to inform relatives or of course his solicitor of his arrest. But there are some cases where notification can have grave effects by way of the escape of the arrested person's criminal associates, the destruction of evidence or interference with witnesses.
The Association of Chief Police Officers has issued a statement underlining the serious implications which such an unqualified right could have for investigating officers in dealing with crime and thus for society. This is not a factor which it would be right to ignore. Perhaps I can give your Lordships two examples of the considerations which could arise. The police may be dealing with a gang rape. They may have arrested one of the gang but not the others. If early news of his arrest leaks out to the other members of the gang they may escape, and it may prove much more difficult to bring them before the courts. The second example is a kidnapping case where the police have arrested one of the kidnappers but not the others, and are not aware of the place where the victim is being held. Clearly in that situation premature news of the arrest could lead to harm—perhaps grave harm—to the victim, and the escape of the other kidnappers. I think, and I suspect that most of your Lordships would think, that considerations of this sort are pretty persuasive.
However, it was clear from the debate in another place that there was a considerable measure of support for the principle 518 underlying the new clause to which my right honourable friend the Home Secretary wished to respond. My right honourable friend has accordingly been giving further consideration to the question of how there should be some recognition of the principle set out in the clause as drafted in the period before the Royal Commission is able to complete its work. It is as a result of this consideration that the Government have put down the Amendments on the Order Paper.
These Amendments incorporate a number of changes. First, the exception referring to persons arrested under the Prevention of Terrorism legislation is removed, so that the clause applies to such persons as well as to those arrested under other powers. Secondly, it is proposed that the intimation should be sent "without delay"; by comparison no requirement as to the urgency of the intimation is included in the present clause. Thirdly, the intimation may be sent only to a person "reasonably named" by the person in custody. Fourthly, and perhaps most importantly, the Amendments have the effect of enabling the police to delay sending the intimation, if this is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, for so long as those considerations apply, but no longer.
I explained earlier some of the considerations which may make it necessary to delay intimation and we would propsoe to set out what we think is good practice and to give some examples of the need for delay in the circular which the Home Office will be sending to chief officers of police on the Bill when it comes into force. The Government believe that these Amendments have the effect of preserving the spirit of the clause while removing the risk that it will impose an unfair handicap on the police in the work which they do on behalf of all of us in preventing and detecting crime.
§ Moved, That the House doth agree with the Commons in the said Amendment, as amended by Amendments Nos. 72A and 72B.—(Lord Harris of Greenwich.)
The DEPUTY SPEAKER (Lord Der-went)
When we come to Amendment No. 72C it will not be moved, my Lords.
§ Lord HALE
In the light of that, my Lords, I feel that I must make a brief observation. My difficulty is that, when considering the criminal situation at the moment, this is an Amendment which as a young man I should have voted for unhesitatingly, without reservation and without inhibition of any kind. I say again that we have a metropolitan mind in this House, despite the type of assembly we are. We would not think twice about ringing up a solicitor at two o'clock in the morning and asking him to see a man's wife; what response one might receive is a different matter. People get arrested in Nether Wallop, Oswaldtwistle and in counties like Cumberland or mid-York-shire, where to put a reference to a solicitor is not such an easy matter.
The normal object of what we are discussing, in times when crime was not the menace it is, arose quite simply. When I was in practice 50 years ago I was surprised at the number of my clients who were arrested at just before midnight when they were away from home; it was almost standard practice. All they wanted to do, as most of them were charged with offences which might affect their honour, probably with no question of security arising, was to telephone their wives to let them know what had happened. Probably the wife was sitting up anxiously and he had been arrested with some damsel at an Oddfellows' dinner or possibly even at a Frothblowers' feast. Probably at about 3 o'clock in the morning he was asked whether he would like to sign a statement and, because he wanted to go home to his wife, he signed it and then he could be released on bail by an officer of the rank of inspector. That often happened and indeed it was the practice. It worked, although it may not have been very desirable, and in those days the need to have the right to communicate with one's home was surely a reasonable one.
Now we are dealing—my noble friend Lord Harris of Greenwich showed he appreciated this when he accepted offences under the special Act dealing with terrorism—with a different state of affairs. Today one cannot really ask the police, who are trying to round up a gang using explosives 520 and other terrorist methods—some of whom, probably the nucleus, are still in London while some of whom are on the train to Liverpool, perhaps en route for Southern Ireland—to allow messages to go out conveying information. Clearly the people on the train would be the first to be informed that an arrest had been made and clearly they would be assisted in their getaway.
If a police officer in these days of organised gangs was told, "I have been arrested and I demand my right under section so and so and I want somebody informed" and the officer says, "Who do you want to inform?" and the man replies, "My twin brother" and the officer asks, "What is your name?" and the man replies "Kray", then the policeman—he might not know anything about the main arrest, being, say, an attendant at the police station cells—could be in considerable difficulty. He could be informing a gangster's brother, who is perhaps already under suspicion and whom the police are hoping to find, and that could result in crime being committed to suppress evidence or aid the getaway. It becomes a very serious matter to consider and something which, if possible, one should not make mandatory. Lord Harris explained the reason for the drafting of the Amendments and those reasons are perfectly obvious. Indeed, part of them I have already expressed.
I think there is more than one objection to the Amendment No. 72C, standing in the name of the noble Lord, Lord Wigoder, but if, as I understand, that Amendment is not to be moved, I need not mention them. I would point out, however, that apart from anything else, it is not a good thing for the police to select a solicitor if one does not have a solicitor. I read the noble Lord's Amendment and I felt that in his effort to deal with these possibilities his proposal would make the Commons Amendment almost unenforceable. I do not suggest that was his intention and I quite understand the difficulties of drafting an Amendment of that kind and leaving a discretion. However, I have reluctantly come to the conclusion that in the present circumstances the police should have a discretion in dealing with gangster crimes, with mass conspiracies and so on. I could have wished that the provision was made a little more explicit, but it is not always a good thing to make legislation too 521 explicit. In the circumstances, therefore, I shall not dissent from my noble friend. I felt I should express my reasons for having altered my mind about some things that years ago, in a different situation, I should have been much more in sympathy with.
§ 7.10 p.m.
§ The Earl of MANSFIELD
My Lords, I do not suppose that any noble Lord will be out of sympathy with what the movers of this Amendment wanted to achieve, but I am bound to point out that I think they have gone about it in a very silly way, and that silliness has not been altogether cured by the Amendment which the noble Lord, Lord Harris, asks us to accept. I suppose that there are three reasons why somebody in police custody wishes to communicate with the outside world. First of all, and most innocently, he wants to tell his family where he is. Secondly, and innocently or not, he wants to make some form of preparation for obtaining legal advice. Thirdly, and much more sinisterly, he wants to get word to his fellow criminals that, so far as he is concerned, "the balloon has gone up", and, so far as they are concerned, they must either make good their escape or at any rate try to get rid of the stolen property, the swag, the evidence or whatever it is which may in the near future make life even more uncomfortable for the man in custody.
My Lords, if such a man's reason has either of the first two of the aims that I have enumerated, then I have no doubt that under the existing Judges' Rules the police will do everything they can, at least at the proper time, to comply with the arrested person's wishes. Obviously, if he merely wants word sent to his family, they will send it. If he wants the services of a solicitor, in my experience the police will probably wait until dawn the next day, but they will convey to the solicitor of his choice, or indeed to any solicitor on the legal aid panel, that his services are required. If the police think that the purpose of communication is less innocent, then they will do everything they can to obstruct the relaying of the message, by whatever means, until they think that the danger is passed or their inquiries are complete. I say all this because I think that this is a very silly Amendment, and I think that it is particularly silly because it 522 brings the police into an area where they can be criticised unfairly when they are merely trying to carry out their already very difficult job, which is to clear up crime.
This new clause does not say how the intimation of the arrest is to be sent, or by what means; nor does it say what is to happen if it is not sent or if it is not sent without delay. One is bound to ask the noble Lord, Lord Harris, because he is in charge of the Bill: suppose that at some later stage, at a man's trial, his counsel gets up and indignantly says that notification of arrest was delayed, what is then to happen? It will merely prejudice the matters which the jury will have to consider and it will not really do the accused person any good. All in all, one can see that, at best, this Amendment is going to cause trouble for the police, and, at worst, it is going to cause miscarriages of justice.
§ Lord MONSON
My Lords, while I accept the validity of the arguments set out by the noble Lord, Lord Harris, against the Commons Amendment as it stands, essentially desirable though I think the Commons Amendment is—and here I must disagree with the noble Earl, Lord Mansfield, because I think there have been a couple of cases of abuse recently—may I put two questions to the noble Lord? First, is it not the case that in Scotland a detained person has an unfettered right to communicate with another person of his choice? Secondly, who is to be the judge of whether someone is or is not "reasonably named", to use the rather curious phraseology employed in the Amendment of the noble Lord, Lord Harris?
§ 7.14 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I will deal, if I may, with the various points which have been raised. I think we were clearly presented with a difficult situation, to which the noble Earl, Lord Mansfield, has drawn our attention. As we are proceeding in a very harmonious way, I will not make any comment about what actually happened in terms of a Division on this matter which took place in the House of Commons, but the noble Earl may have observed on looking at Hansard that there were not many 523 members of his Party who went into the Lobby against it. But the point I would put to the noble Earl is this. These issues, of course, are put at criminal trials now; and, of course, there are the Judges' Rules. It is often alleged that a person has not had the opportunity to consult his solicitor, to notify his relatives or something of this sort, and that becomes something of an issue. In certain circumstances, of course, if it can be argued that the police have behaved harshly and oppressively, no doubt it may affect the attitude of the judge to the admissibility of any statement which might have been made. Issues of that sort have been raised in the past, and they will be raised in the future as well, no doubt.
But, my Lords, so far as this particular clause is concerned, there is no penalty section. It is a declaratory statement of the situation. It will have an effect on the police, and, as I have indicated, we will deal with this matter by means of a circular when the Bill is in fact published. As I indicated, I think that the Association of Chief Police Officers were seriously disturbed about the Amendment as passed in another place, and I very much hope that they will take a different attitude to this Amendment. Certainly, if a policeman behaves unreasonably there are steps which can be taken; and we have now a complaints procedure against police officers who in fact violate the disciplinary code of their force. So that is one way in which action could be taken if—and, I repeat, "if"—a policeman has behaved harshly and oppressively. But, as the noble Earl has pointed out, as indeed I did when I spoke a few moments ago, the fact of the matter is that in a number of cases it could raise very dangerous issues indeed were the police to be compelled immediately to notify someone nominated by an accused person, simply at the bidding of that man. I gave two examples, but there are many others which could be cited to demonstrate the difficulties which could arise were the police to be compelled to do that, even though they thought it could seriously damage the interests of justice.
So far as concerns the noble Lord, Lord Monson, he raised one particular point. I will, if I may, deal with the Scottish point in a letter to him. It is a complicated matter. It is not quite as he suggested, but I will gladly tell him about the situation. 524 I think it can probably be more sensibly dealt with in correspondence. The point he raised with me concerned the rather curious phrase—and I entirely agree with him—aboutone person reasonably named by him".The reason for that is this. We of course considered the possibility of putting in a long list of people, but where does that list stop? Do you say "the spouse"? What about the common law wife? Does she go in, or does she not? What about other members of the family, assuming he is a single man? If you have a long catalogue of people, it makes something of a nonsense of the situation; and, apart from anything else, there is always the risk that you will leave somebody out.
There is also another risk, that an accused person who has an absolute right to have his whereabouts communicated to somebody may name, to take an example, the Archbishop of Canterbury, or somebody of that sort. It would be an absurdity if the police were under a compulsion to notify the Archbishop of Canterbury or the President of the United States, or somebody of that sort, because of the language of the Statute. Therefore, we have said "reasonably named" simply in order to deal with this particular problem. I think it makes more sense than any alternative form of words.
§ The Earl of MANSFIELD
My Lords, before the noble Lord sits down, would he confirm that Section 19 of the Criminal Procedure (Scotland) Act 1975 reads:Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person …"?Would the noble Lord agree that, mutatis mutandis, the same section applies to both summary and non-summary offences, as I might call them? Would he further agree that, in a way, that clears up the matter raised by the noble Lord, Lord Monson? I say this for the record now.
§ [Amendment No. 72C not moved.]
§ Amendment No. 72, as amended, agreed to.