§ 3 p.m.
§ Report received.
§ Clause 1 [Suspect or potential witness may be required by constable to identify himself]:
§ The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield) moved Amendment No. 1:
Page 1, leave out lines 19 to 26 and insert—
(" ( ) The constable may require the person mentioned in paragraph (a) of subsection (1) above to remain with him while he (either or both)—
§ The noble Earl said: My Lords, with the indulgence of the House, I shall speak to Amendments Nos. 1, 2, 3 and 5 together. Before doing so, as this in fact is the first amendment or the first series of amendments to be considered in this long and somewhat complex Bill, perhaps I might be permitted to point out that these amendments represent the first part of the undertakings which were given by my noble and learned friend and I at the Committee stage of the Bill, to the effect that the Government's mind was by no means closed to suggestions which might be made by noble Lords in any part of the House and that we were very anxious to produce in the end a Bill which hopefully would receive from all parts of the House the greatest possible agreement that we could devise. I hope therefore, without being too presumptuous, that our deliberations may proceed on that basis. I have no doubt that there will be moments when entrenched attitudes will be taken up, but by and large I hope that these amendments will be seen to be a manifestation of the Government's goodwill over this matter which is, as I have said, a difficult and complex one.
§ These particular amendments fulfil an undertaking which I gave during our consideration of Clause 1 in Committee. I said then that, having heard the anxieties voiced by noble Lords both on Second 1156 Reading and in Committee, I accepted it was undesirable to subject a potential witness to the same compulsion as a suspect faces under Clause 1. However, we still consider that it is reasonable to reinforce the moral duty of a potential witness to identify himself to the police by making that a legal obligation, as indeed the Thomson Committee recommended.
§ Amendments I and 5, therefore—the others are essentially drafting points—remove the obligation on a witness to remain with a police constable while he verifies his name and address and notes any explanation that is proffered. There is therefore no penalty on a witness who fails to remain with a constable but if he fails, without reasonable excuse, to give his name and address when asked, he would be guilty of an offence and liable on summary conviction to a fine not exceeding £50. I recognise this may not go so far as some noble Lords might have wished, but we are concerned to try to balance the interests of the innocent bystander, on the one hand, who may wish to go about his business, with, on the other hand, the interests of society and its protection against crime.
§ The requirement for a potential witness to identify himself to a constable is a very minimal extension of the legal duties of the citizen. Noble Lords will, I am sure, accept that the imposition of such a requirement does not extend the moral obligations of the citizen at all. I therefore consider that we have now achieved a proper balance in this respect between the interests of the individual and the wider interests of society. I beg to move.
§ Lord ROSS of MARNOCK
My Lords, I think we are all very grateful indeed for what the noble Earl the Minister has said, and certainly I was very pleased at the attitude taken up both by him and by the noble and learned Lord the Lord Advocate. It showed a willingness to be flexible with which I have not hitherto credited Lord Advocates; but then, although my experience of them in another place was long, it may be that my experience here is going to be much more pleasant.
That being so, I was rather taken aback by what the noble Earl said just now about having reached a balance. I would ask: 1157 Do not let him make up his mind too quickly. At one moment he is offering to be flexible and to listen to everything that is said, and then saying that he himself is getting into an entrenched position. Certainly I am grateful for the changes that have been made, for the redrafting and particularly for the easing of the position of the innocent bystander who becomes a witness and who will not now be subjected to certain things, including the fact that the constable no longer has power to detain him. That overtakes one of the amendments that I have on the Marshalled List, No. 2. I regret that he has not gone as far as my Amendment No. 5, but we will come to that later. It may well be that in the course of time the Government will see the light there.
I should like to raise the following point in connection with Amendment No. 1. There has been a change in the drafting. Part of the amendment now reads:…the constable shall exercise his power under this paragraph only where it appears to him that such verification can be obtained quickly ".Originally it was drafted as follows:…Provided that the requirement to remain with the constable shall cease to apply if there is unreasonable delay in obtaining such verification ".That has become subjective as far as the constable is concerned. It was fairly objective originally; so it is the constable who has to make up his mind about the time taken for verification. This is a hardening of attitude as far as the witnesses or the people who are detained are concerned. I hope the noble Earl will look at that again. I think we are giving far too much power to the constable involved. He has got to determine whether his suspicions are justified and whether enough time has passed in respect of verification. It is a small point, but an important one, as regards the attitude of the Government towards this. I think that where we can we should bend on the side of the people who are stopped and who probably start by being willing to co-operate but when they discover all that is involved in co-operation it might make life difficult. That is the only point I wish to make. I hope the Government proceed through the rest of the Bill with the same willingness to co-operate that they have suddenly shown here.
§ Lord FOOT
My Lords, may I join 1158 with the noble Lord in what he has just said in expressing the appreciation of the whole House for the way in which the Government have so far during the passage of this Bill shown the greatest moderation and willingness to listen to the arguments advanced. I am also greatly encouraged by what the noble Earl has just said about the fact that that is going to continue and that we have not necessarily reached the end of the road in these matters we have been discussing.
The noble Earl, when he was replying to my amendment at the Committee stage on Clause 1, concluded by saying three things. He said that the Government felt obliged, as they were at present advised, to stand firm upon transforming the moral obligation of a witness to give information—or, at any rate, his name and address—to a policeman, into a legal obligation. The noble Earl made it clear at that time that as he was then thinking, and as he obviously thinks now, he could not give way on that point. He went on to say that he would have regard to another matter to which he has not, I think, referred; that is, whether it might be possible to draw a distinction in the case of a witness between a serious crime and a minor offence. The noble Earl might be able to tell us what has been his thinking upon that point in the meanwhile.
Another matter which he undertook to look at again, and which he has now done, is the question of whether it is desirable or necessary to impose the same compulsions upon the witness as upon the suspect. I readily acknowledge that the noble Earl has come up with something which is certainly a relaxation of what appeared in the original Clause 1. Of course, it does not go very far, as I expect the noble Earl will be prepared to acknowledge, because there were four obligations on the witness under the clause as it was originally drafted.
The first power given to the police was the power to require the witness to remain with him while he verified his name and address. The second was that the police officer has the right to use reasonable force in order to make the witness comply. The third was that if the witness failed to give his name and address, or gave a false one, he would then be committing an offence. The fourth was that if the police constable reasonably supposed 1159 that he was committing an offence by failing to give his name and address, or by giving a false one, then the police officer has the right to arrest him there and then. Those last two remain and what has disappeared is the right of the police officer to require a witness to give his name and address, and the power of the police officer to ask a witness to remain with him; as well as of course, the corresponding power to use reasonable force to make him do so. I readily acknowledge that that is an amendment and a relaxation.
In the debate during the Committee stage, which the noble Earl said at the time had been a very useful one, various views were expressed as to how this clause might be mitigated and it was evident then that there were powerful arguments on both sides. I hope that the arguments which I advanced on that occasion come within that category. I took the view, on balance, and I adhere to that view now, that giving the police this power to demand the name and address, and, if it is not given, to arrest the witness and to bring him before the court as committing an offence, is undesirable, because it will increase the sense of alienation between the public and the police. But I am not going to argue that matter again.
However, I should like to say this by way of comment. I take the view, if the Government insist, as they are now insisting—and there are powerful arguments in favour of it—that a witness shall be subject to legal sanctions if he fails to give his name and address, or gives a false one, that there must be legal sanctions to back that up. If you make it a legal duty upon the witness to give his name and address, then I think, logically, that you cannot refrain from making the not giving of the name and address an offence and that you must go on to provide that there shall be a power of arrest. That is a matter which we shall be discussing in a minute upon the noble Earl's subsequent amendment.
Finally, on this matter of the possibility of drawing a distinction between the minor offence and the serious crime, I am bound to say, if the Government have had difficulty in finding a way of introducing a distinction of that kind, of finding a way in which you can by statute define the difference between a serious 1160 offence and a minor offence for these purposes, that I appreciate that difficulty and it may be incapable of solution. But I should be interested to hear from the noble Earl what he has to say about that, and what is the Government's thinking upon that matter.
§ Lord GALPERN
My Lords, the amendment seeks to amend Clause 1. The marginal note states,Suspect or potential witness "—in the singular—may be required by constable to identify himself".I can easily see how a constable could handle a situation when there was a single witness. But let us assume the practicalities of what is a common occurrence. There is a disturbance in a disco hall and the police have been asked to appear and to investigate it. There is bound to be far more than one witness. I should be obliged if the noble and learned Lord the Lord Advocate could indicate how a constable would deal with such an incident in a disco hall, where many witnesses are involved. Furthermore, such an incident would mean that the period of detention which the police would require could extend to quite a long period, until such time as all the witnesses had given their names and addresses, had had them verified and had their comments on the situation noted, as the constable is required or permitted to do. Therefore, while the single witness is all right, how would the amendment apply in the situation that I have just illustrated?
§ 3.18 p.m.
§ The Earl of MANSFIELD
My Lords, perhaps I may reply very briefly. The noble Lord, Lord Ross, made the point that, to him at any rate, the amendment gives more power to the individual police officer who comes across a situation and is expected to deal with it. I think that he mentioned the phrase "subjective test". Of course, inevitably, the test must be subjective whether one takes the clause as originally drafted, or as it is under the amendment which I have moved. The duty upon the officer is now not to exercise his power, unless it appears that verification can be obtained quickly, and I should have thought that means, in plain English, that the boot is now on the other foot.
1161 Whereas before there was a question of undue delay, which might prevent the officer from exercising his power, now he is not allowed by the words of the amendment to exercise his power unless such verification can take place quickly. I should have thought, quite contrary to what the noble Lord, Lord Ross, has said, that this is something in favour of the accused person and the suspect, and not something which detracts from their rights.
The noble Lord, Lord Foot, put a number of points. May I take the most important, which is the distinction which he would have liked to see written into the Bill as between serious crimes and minor offences. Again, if one takes the situation which, in a way, was postulated by the noble Lord, Lord Galpern, of an officer who comes upon a scene which may well be one beset with a number of people and a situation in which he does not know at that stage how it is going to develop and what will emerge from it, this is very different from the situation in which an officer comes across a motor car that is parked in a dangerous place, contrary to the Road Traffic Act. There the officer has got to apply the tests —and they are subjective—as quickly as he can.
The Government have given consideration—and I can say earnest consideration—as to how one could make some sort of a distinction between what might be a minor offence and what could turn out to be a serious crime. We do not see that there is a distinction which can be drawn which can fruitfully be put into a statute. I think that on reflection most noble Lords will agree that it is impossible to do so in a satisfactory way which will not lead to a great deal of difficulty for police officers who have to carry out their duty—and not least the suspects who are going to be the subject of it.
The noble Lord, Lord Galpern, has not, if I may say so, totally comprehended the effect of my amendment. In the case of potential witnesses, verification is now out. There is no question of them having to remain in the presence of the police officer until verification takes place. Their duty is to give their name and address, and that is all. There are sanctions—I quite agree that there are sanctions, and these the noble Lord, Lord Foot, referred to— 1162 if they fail to carry out that obligation, which I think most noble Lords are agreed is a moral obligation and which under the terms of this Bill and as a direct recommendation of the Thomson Committee, we are making into a legal obligation.
So far as what I might call the multitude of potential witnesses are concerned, if one reads the clause in plain English and says that the lesser includes the greater—in other words, for "witness" read "witnesses" or for "suspect "read" suspects"—then I think the noble Lord will perhaps agree that the clause is reasonably worded. I quite agree that there may well be practical problems in one individual officer asking a large number of people for their names and addresses when he comes across a scene which may well prove to be unpleasant. Nevertheless, the power is there in the clause for him to use.
I quite agree with the noble Lord, Lord Foot, that one regards the imposition of a legal duty on somebody who might become a witness with a great deal of hesitation before one writes it into a Bill, but in the circumstances this is something which has not been done without, as I have said, a lot of thought and a lot of consideration and with, as I have also said, the blessing of the Thomson Committee. In these circumstances, I can only commend the amendment to your Lordships.
§ On Question, amendment agreed to.
§ The Earl of MANSFIELD moved Amendments Nos. 2 and 3:
§ Page 2, line 2, leave out ("or (b)")
§ line 5, leave out ("the said paragraph (a) or (b)") and insert ("paragraph (a) or (b) of subsection (1) above ")
§ On Question, amendments agreed to.
Lord FOOT moved Amendment No. 4:
Page 2, line 9, at end insert ("; and the constable shall inform the person mentioned in paragraph (b) of subsection (1) that
§ The noble Lord said: My Lords, this is a small matter but perhaps not entirely unimportant. Under subsection (3) of Clause 1, it is provided that where a constable is exercising these powers to 1163 require a person to give his name and address and so on—whether he is exercising that power against a suspect or whether he is exercising it against a potential witness—it is required of him that he shall inform that person, whether it be witness or suspect, of his suspicions; that is, the suspicion that an offence has been committed or is being committed, and that, secondly, he shall tell the witness or the suspect of the general nature of the offence which he thinks has been or is being committed. In addition to that, in the case of the suspect only he is required to tell the suspect why he is requiring the suspect to stay with him.
The question which I have raised in the amendment is this. The object of those requirements seems to me, in common sense, to be this: it seems to be desired that where a policeman asks somebody for his name and address and so on the person asked for that information shall know what it is all about. If that is right, I should have thought that the police constable, in the case of the witness, ought then to be required to go on to tell the witness two things, the things which are set out in my amendment. The constable should inform the person mentioned in paragraph (b) of subsection (1)—that is, the potential witness—that:
(a) the reason for his requiring the person's name and address is that the constable believes that the person has information relating to the suspected offence "—
that is, he should tell the potential witness that he wants his particulars because he thinks he may be a useful witness; and, secondly, he should inform the person concerned that:
(b) it is an offence for such a person to fail without reasonable excuse to give his name and address or to give a false name or address ".
I seek to put that in only in order that we shall not have the situation arising where a witness fails to give his name and address because he does not understand that he is under any obligation to do so. We are, after all, changing the law of the land from what it is has been for, goodness knows! countless decades in the past, certainly so far as England is concerned, that an ordnary individual is not under an obligation to give a policeman any information if he does not want to do so. We are changing all that and introducing this new legal duty. It seems to me to be only a reason-
able precaution that the person who is now asked to give his name and address because he may be a witness should be informed of the reason for it.
§ That is all I have to say about the amendment. However, I wonder whether I might, with the leave of the House and, indeed, with the leave of the noble Earl, raise a new matter. The matter which has occurred to me in the time that has elapsed between the Committee stage and now is this. As I have already said, under subsection (3) a police constable in these circumstances is required to go through a certain routine. He has got to give the suspect information about his suspicions and the general nature of the offence which he thinks has been committed.
§ The question I want to raise with the noble Earl is this: supposing that the police constable—and very often of course he will be acting in conditions of some disturbance—fails to comply with those requirements; supposing he fails to tell the suspect or the witness what his suspicions are, or fails to tell either of them the general nature of the offence which he thinks is being or has been committed, what is the result? Does it mean that then everything that happens subsequently is invalidated?
§ I raise this question because the noble Earl may remember that under the Road Safety Act in this country there has been a whole host of cases where it has been held by the courts that certain processes have been invalidated by the failure of a police constable to go through the necessary procedures, to put the right questions, and so on. The questions which I should like to ask the noble Earl, if it is appropriate for me to do so at this stage, are these. If the police constable does not comply with those requirements, has the person then who fails to give his name and address, or whatever it may be, committed an offence at all? Again, if the police constable fails to comply with these routine procedures is the subsequent arrest invalid? If it is invalid has the person who is purported to have been arrested a right of civil action against the chief constable, or whoever it may be, for wrongful arrest?
§ I raise this matter at this very late stage because I am anxious that this new procedure should work. I do not want to 1165 see it break down but I am also anxious to see that under this Bill we do not create some of those very considerable difficulties that have arisen particularly under the Road Safety Act. I am sorry that I have not given the noble Earl earlier notice of this, but I shall be interested to hear if he can make any observations about it. I beg to move.
§ The Earl of MANSFIELD
My Lords, it may be helpful if I intervene at this stage because the noble Lord may be pleased to know that he is pushing at an open door. I am grateful to the noble Lord for having put forward this amendment. If your Lordships look at the Marshalled List you will find that the amendment is starred; I do not say that in any sense of reproach, but the fact that it is so recent has meant that the draftsmen have not been able to give the amendment quite the consideration which they would like. Therefore, I am not now in a position to accept the amendment because there are doubts and difficulties about the quality of the draftsmanship.
Having said that, may I say that the Government accept the principle that a witness should be told why his name and address is required, and that it will be an offence to fail to give his proper name and address. What I propose to do is to consider, in consultation with the draftsmen, how provision can best be made in this clause to give effect to this principle. Therefore, in the light of this undertaking, which will lead to some sort of an amendment to the Bill at a later stage—whether in this House or in another place, I will not at this stage specify—I hope that the noble Lord will withdraw his amendment.
I will just respond to the questions that he put to me. As a practitioner himself the noble Lord will know the effect on one's mind of being asked off the cuff questions which may have difficult legal consequences. As I read the clause, if the constable does not go through the proper procedures and does not carry out the requirements of what will become the section, then if the witness fails to comply he will not be guilty of a criminal offence. I think that must be so. But I would point out that if he does give his name and address, and if at the end of the day he is in a position where he is able 1166 to help by making a statement or giving evidence or whatever it may be, he will to that extent have helped the administration of justice.
§ The Earl of MANSFIELD
My Lords, I think that, too, matters here and again I am diffident about giving this sort of reply except that I have the consolation that when the moment comes sheriffs—and indeed judges—will look at the statute and not at Hansard. What I will say about suspects is this. So far as criminal proceedings are concerned the same will apply. If the statute has not been complied with he will not be guilty of an offence. But in Scotland we have this further check or balance, if I may so describe it, that the procurator fiscal who is responsible for the prosecution of these cases, if it appears to him that the procedures have not been complied with, I should think at least in the case of a witness and very probably in the case of a suspect, will not allow the prosecution to go further forward. That is the sort of way in which procurators fiscal behave in my admittedly brief and somewhat humble tenure of the Scottish bench. I hope that will satisfy the noble Lord.
§ Lord ROSS of MARNOCK
My Lords, can the noble Earl make one point clear to me? The only obligation upon the potential witness is to give his name and address, I gather, and there is no obligation on him to make any explanation at all. The explanation arises only if he himself willingly gives one?
§ The Earl of MANSFIELD
Yes, my Lords, that is right. Will the noble and learned Lord the Lord Chancellor put the question?
§ The LORD CHANCELLOR
The Question is that Amendment No. 4 be agreed to. As many as are of that opinion will say Content; to the contrary, Not-Content?
§ The Earl of MANSFIELD
My Lords, I apologise—I am totally out of order. I invited the noble Lord, Lord Foot, to withdraw his amendment and he has not done it.
§ Amendment, by leave, withdrawn.