§ 3.2 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)
My Lords, I beg to move that this Bill be now read a second time. The Criminal Justice (Scotland) Bill is a substantial measure which extends to 80 clauses and 8 schedules. It seeks to make a number of changes, some of them major, in criminal procedure and evidence in Scotland and in the treatment of offenders. It will be a major landmark in Scottish legislation on criminal law and in Scottish legislation generally. The last substantial Scottish criminal justice measure passed into law in 1963; and the present Bill bids fair to be the most important Scottish measure ever passed on the subject. There is, therefore, a substantial task before us in considering this Bill. I am certain that our discussions will be thoughtful, positive and constructive.
The Bill is in a very real sense only a part, though by far the most important 14 part, of a process of reform which has engaged Governments of both parties over the past few years. One short but significant reform was enacted as the Community Service (Scotland) Act 1978. This introduced a most useful new disposal for the courts—the power to require an offender found guilty of an imprisonable offence to carry out work for the benefit of the community. And it was largely because of the work done by our predecessors that we were able to introduce the Bail etc. (Scotland) Bill so early in this Session. That Bill should complete its parliamentary progress in another place tonight.
The Bill presently before your Lordships includes a large number of provisions similar to those included in the Criminal Justice (Scotland) Bill which the previous Government introduced last Session, and, I hope, many of the other measures it introduces will also be welcomed by the noble Lords opposite. There are, of course, matters in the Bill on which Government and Opposition may not necessarily be in full agreement, but we differ from noble Lords opposite on matters of detail, I fancy, rather than of major principle. Indeed, on the issue which it is suggested will give rise to most controversy in Scotland—the new police power of detention—our proposals differ only in detail from theirs, and both are firmly based on Thomson recommendations.
This Bill, like the previous one, draws heavily on the considered advice of several departmental committees of inquiry which have made recommendations at various times in the past eight years. We are all much indebted to the distinguished men and women who served on these committees for the considerable amount of work which went into the various reports. The most substantial body of work is contained in the three reports of committees chaired by the late Lord Thomson. The first and third of these, published in 1972 and 1977 respectively, make recommendations about procedure on criminal appeals: the second report, on criminal procedure generally, was published in 1975. The Emslie Report on penalties for homicide by a committee chaired by the distinguished judge Lord Emslie was published in 1972. The Scottish Council on Crime reported on fines in 1974, and its general memorandum of 1975 commented on the 15 problem of crime in Scotland in general. The Dunpark Report, on compensation by the offender to the victim, was published in 1977, as was the McElhone Report, on the worrying problem of football crowd behaviour, and the Bryden Report, on identification procedure, was published in 1978. It is sometimes cynically suggested that the only purpose of committees of inquiry is to bury important questions. This Bill gives the lie to that claim.
My Lords, I turn now to the Bill itself. It is complex and deals with a wide variety of issues. I do not, therefore, propose to test the patience of the House by examining every one of the clauses in turn. That is a task for Committee stage, and the purpose of each clause is set out in the Explanatory Memorandum. However, noble Lords may find it helpful if I were to identify the main parts of the Bill and the principal issues it contains. The first two clauses of the Bill relate to police powers and are derived from the recommendations of the Thomson Committee in its second report. An attempt has been made to suggest that the limited powers proposed are creating a Police State, and I will show your Lordships—and the noble and learned Lord, Lord McCluskey, will need no convincing on this point—that they do no such thing.
We place on the police the responsibility of investigating crimes and detecting the criminal with a view to prosecution. But, as the law of Scotland stands, they have no power, unless the evidence is so clear against a suspect that they can already arrest him, to pursue their investigation. Any person they approach for information, whether suspect or witness, can merely walk away. Of course, as the Thomson Committee recognised, life is not really like this—few crimes would be detected, if it were—and by persuasion, and, might I say, by bluff, investigation is carried out. But this is the unsatisfactory situation the Thomson Committee found. They did not say, as some have suggested, that the police were acting illegally, taking powers of detention they did not have. But they did say that it was undesirable that the police should have to rely on their present methods and that the position should be regularised.
16 Clause 1, therefore, allows a constable to require a suspect or a witness to give his name and address and allows him to ask a suspect for an explanation of the circumstances giving rise to the suspicion. He must remain in the constable's presence long enough for him to verify it. However, if this is not done without unreasonable delay (for example, by radio) the person need no longer remain with the constable. Failure to comply with a constable's request for the name and address is to be an offence.
Clause 2 provides that a police officer may detain a person for a period of up to six hours at a police station or elsewhere if, and only if, he has reasonable grounds to suspect that a person has committed or is committing an offence, and for the investigation of a suspected offence or of possible prosecution. The suspect may be detained only for a maximum of six hours or until he is cleared or arrested, whichever is the shorter time, and he cannot be detained again in respect of the same offence except on cause shown, on the authority of a magistrate. We consider it important on the one hand that the police be given adequate powers to investigate crime by questioning those who may be suspected of a crime but who may not have committed it, and against whom there is certainly not enough evidence for arrest and charge, and on the other we fully recognise that it is equally important that the powers of the police should be clearly set out in statute and the rights of the citizen properly safeguarded. To this end the clause contains further safeguards in that the suspect must be told the reason he is detained and records must be kept of the time, place and purpose of the detention.
Noble Lords may find it helpful when considering the need for this power of detention to compare it with the present position in England on the power of the police to question a person in custody. Although the circumstances are different in other respects, the police in England, unlike those in Scotland, may arrest a suspect for certain offences before they are in a position to charge him and question him even in minor cases. The suspect's replies will be admissible in evidence at his trial, although these are, of course, subject to certain safeguards. In Scotland the police may not arrest someone without charging him at the 17 same time. Once he is charged, his replies to questions would not be admissible as evidence at his trial. This clause therefore provides a very limited and circumscribed power for the police to hold someone in legal custody and question him. This is a necessary power recommended by the Thomson Committee: that a similar but much wider power is also found in England suggests that it is not the intolerable assault on civil liberties which some people have suggested.
The powers of the constable in relation to questioning, searching and fingerprinting are also set out in the clause and it provides that any fingerprints shall be destroyed if the suspect is either not charged with the suspected offence or cleared of it. Nothing in the clause puts a suspect under obligation to give any information other than his name and address and he is to be informed of this. The right to silence is therefore specifically protected.
Clause 3 states that a person who is either arrested or detained under Clause 2 shall be entitled to have a solicitor and another person informed without delay of his detention. No such right at present exists at this stage. Clearly there will be occasions where the very fact of a person's detention or arrest may "tip off" his accomplices, and delay in sending information of detention would be justified in such cases. The clause allows for such delay but the permissible delay is limited to that necessary in the interest of the investigation, or of the prevention of crime, or of the apprehension of offenders.
Clause 4 reflects a provision moved into the previous Government's Bill in Committee in another place, and deals with the dangerous practice of knife-carrying which leads to so many serious crimes of violence in Scotland. While the practice is illegal under the Prevention of Crime Act 1953, the police have no such power at present, as they have with firearms, to stop and search suspected carriers on reasonable suspicion of the offence. The clause creates the power. It is based on a recommendation of the Scottish Council on Crime, and, if any of your Lordships is in doubt about the case for the provision, I suggest that you read the very powerful case for the power 18 in pages 43 to 46 of their general memorandum.
Taking the provisions in Clauses 1 to 4 generally, I want to emphasise strongly from the outset that, despite the misguided assertions of various vociferous groups and individuals in Scotland, these are provisions limited both in nature and in time, and no more than are essential for the police in their functions of investigating and preventing crime. It is also important to see these provisions of the Bill in context and the noble and learned Lord, Lord McCluskey, did so admirably, if I may say so, when we considered the Second Reading of the Bail etc. (Scotland) Bill. The noble and learned Lord said on 6th November 1979, at column 708 of the Official Report:… one of the problems of preparing a comprehensive Bill is the problem of striking the right balance between measures designed to ensure the easier conviction of the truly guilty and measures designed to protect the legitimate interests of the accused and of those who fall to be punished for their guilt. One result of this process of cannibalisation of which I have spoken is that by the time we come to consider the Criminal Justice Bill which the Government will introduce we shall already have enacted I believe—in this Bill and in the Community Service by Offenders Bill—some of the measures which were conceived in the interests of accused persons. And it would be quite wrong for me or for anyone else to leave that out of account in assessing the overall balance of the forthcoming Bill. All three measures must be looked at together as part of one package in order to see whether or not the proper balance has been achieved".That is a fairly long quotation, but I respectfully agree with the noble and learned Lord that it encapsulates the attitude which should be taken to these various measures. I am sure that when these measures are looked at together they will be seen to safeguard the innocent citizen, make justice more effective and make it more likely that the guilty will be brought to account for their crimes.
Clause 5 derives from the previous Bill and is an enabling power, for use as resources become available, permitting the police to take drunk offenders to a detoxification facility, instead of arresting them. I have spent some time on Part I of the Bill because it has been suggested that they are unacceptable extensions of police powers, and because the Government attach great importance to these provisions. If I treat the rest of the Bill in less detail, it is not that it is less important—indeed, much of it may arguably 19 be more so—it is that public discussion has so far concentrated on the first four clauses. Part II of the Bill contains provisions intended to make a major and substantial reform of Scottish law in relation to procedure and evidence.
Clause 6 provides for the revival of judicial examination—an old but moribund part of Scottish procedure. It is the stage when a person arrested with a view to prosecution on indictment is first brought before a sheriff, but it has now become wholly formal (apart from the possibility of a bail application). The proposal by the Thomson Committee for fresh use to be made of the stage had two sources. The first was the evidence they received from prisoners that at present they felt cut off from the early stages of criminal procedure—they had no opportunity to "have their say" until the trial. The second is that, if there is an explanation to be given by the accused which—and I do not like using the word—disincriminates him of the crime with which he is charged, it is reasonable and desirable that he should give it formally at the earliest moment, so that, if it is confirmed, the charge can be dropped.
The effect of the provision is to permit the procurator fiscal, under the control of the sheriff, to put a limited number of questions to the accused to elicit whether he has any explanation which exonerates him, and also to put to him any statement purporting guilt he is alleged to have made to the police, so that he has an opportunity to challenge it at that stage. He has the right to a solicitor at that stage which is taken in chambers, and the right to silence is maintained since he has no obligation to say anything. In the converse, of course, common sense suggests that, if the accused has an innocent explanation he will make it at this early opportunity; so that a defence of, say, alibi produced at the trial, but not at judicial examination, must, unless there is reasonable explanation, be at risk of disbelief, and the prosecution and judge will have the right to comment on its late production.
Clause 7 of the Bill extends the jurisdiction of district courts by removing or amending some of the limits of the powers of district courts under Section 285 of the 20 Criminal Procedure (Scotland) Act 1975. This will enable the district court to take certain cases which at present can only be dealt with by the sheriff court, and thus help to alleviate the severe pressure under which sheriff courts presently labour.
The working group on identification procedure under Scottish criminal law which was chaired by Sir William Bryden, Q.C., called for a number of changes in procedure. Most of these are being implemented administratively, but Clause 10 of the Bill implements those which require legislation. They provide, first, that the legal aid scheme should be amended to provide for duty solicitors to attend identification parades to represent the interests of the suspect or accused; and, secondly, that an accused shall be entitled to have an identification parade held where the court considers it reasonable and where the prosecutor has not held a parade either on his own initiative or after a request by the accused.
Clause 12 and Schedule 4 are vastly technical but simple in effect. Scottish indictment trials have traditionally consisted of two diets, a first diet at which a plea is taken and preliminary matters, such as pleas of competence and relevance, are—or, rather, should be—dealt with, and then a trial diet, if a plea of Not Guilty is persisted in. But first diets have become largely burdensome formalities with the issues, even the accused's decision to plead guilty, postponed to the trial diet, with jurors, witnesses and so on assembled. Since no practical means have been devised of ensuring that the automatic first diet serves a useful purpose, the sensible course seems to be to abolish it, and place on those who wish to raise preliminary issues or to enter a plea of guilty a responsibility to do so. Schedule 4, therefore, makes provision for the replacement of the first diet by provision for raising preliminary issues. Incidentally, it implements a Thomson recommendation that there should be a preliminary appeal against the court's decision on a plea of competence or relevance.
Noble Lords will be aware that large parts of the Bill are intended to safeguard or advance the rights of the citizen against the State. In this respect, Clause 14 makes provision to tighten the 21 existing procedure for the prevention of delay in trials. Under solemn procedure, any trial should be started within 12 months of the accused's first appearance in petition; an accused is not to be in custody for more than 80 days without an indictment being served on him and not for more than 110 days unless his trial begins. This amends the 110 day rule", as the Thomson Committee recommended, so that it runs to the fixed date of the beginning of a trial and not the uncertain date of its conclusion.
No equivalent of that rule at present exists in summary procedure, but following the Thomson recommendation Clause 14 provides that no one is to be detained under summary procedure for more than 40 days after the bringing of the complaint in court unless the trial starts in that time.
Clause 15 is by way of experiment. The summary courts suffer from a problem of late changes of plea, often as late as the diet of trial itself, with court and witnesses assembled. It may well be that the accused, after his grant of legal aid, has made no attempt to meet the condition of his legal aid and to co-operate with his solicitor, but left things till the last moment. The clause empowers, but does not oblige, the court to fix an intermediate diet at which the state of preparedness of the defence and the accused's co-operation can be explored. We would like to see the provision operated selectively in one or two courts in order to test its effectiveness in ensuring the early investigation of the case the accused has to face, and the entering of pleas of guilty at that stage, rather than at the trial diet.
The Bill also implements the Thomson Committee's recommendation on no case to answer. At present it is competent for the accused at the end of the prosecution case to submit that the prosecution has failed to make its case and that he should be acquitted; but if the submission fails he cannot then produce evidence for his defence. It seems inherently unfair for the defence to be told, in effect, that there is a case to answer but that he may not answer it. Under Clause 19, therefore, he would make a new submission of "no case to answer" and if the court rejected it he would not be debarred from leading evidence afterwards.
22 Noble Lords will have noted recent concern about the long-established Scottish practice of requiring juries to be kept strictly secluded. This is a matter which the noble Lord. Lord Hughes, raised during our consideration of the Second Reading of the Law Reform (Miscellaneous Provisions) (Scotland) Bill. He was rightly concerned that a jury should not be driven to its verdict by pangs of hunger and thirst, but agreed that a provision which had remained almost unaltered on the statute book since 1587 might be allowed to rest a few months longer while the Government consulted interested parties and determined how best the law might be reformed. I am grateful to the noble Lord for raising the matter and for his tolerance in allowing us the time we needed to get the reform right.
Although strict seclusion is right in principle, the complexity of modern trials has made some jury sittings longer and a prohibition on any contact with the jury which prevents the supply of food or sleeping accommodation seems unnecessarily harsh. Clause 24 of the Bill allows a judge to give such instruction as he considers appropriate for the provision of meals, refreshments and overnight accommodation for jurors. I have no doubt this will be widely welcomed.
Clause 25 redefines the term "officer of law" in the Criminal Procedure (Scotland) Act 1975 so that a civilian citation service could be used to serve documents such as citation for attendance at court. This provides a possibility of reducing the demand on police manpower in personal citation.
Clauses 26 to 31 deal with matters relating to evidence, and of these Clause 31 perhaps merits special mention. We in Scotland are proud of the general principle that no one can be convicted of a crime on the uncorroborated evidence of one witness. But the spectacle of traffic wardens solemnly patrolling in pairs to note the registration numbers of cars parked illegally is an absurdity; and the Bill would provide that, for those very minor motoring offences to which the ticket system applies, the evidence of one witness shall be sufficient for conviction should the case ever come to trial.
The first and third reports of the Thomson Committee made recom- 23 mendations for the reform of both the indictment and the much-criticised summary appeal procedure in Scotland. Clauses 32 to 36 and Schedules 2 and 3 provide for the reform of appeal procedures in solemn and summary cases on the basis of these recommendations but with modifications.
The noble and learned Lord, Lord McCluskey, will no doubt recognise the provisions on summary appeal, since they are based on amendments put down by the then Government to the previous Bill, but not debated before the election. Apart from the fact that the provisions include the Thomson improvements to the stating of the case in summary appeals, I would only note at this stage that the provisions face the difficulty of any appellate court, that it has not heard the evidence given at the trial by providing the court, as an alternative to upholding or dismissing the appeal, with a power to set aside a conviction and authorise a re-trial where all the evidence can be led. Re-trial is an innovation in Scotland, but it was recommended by the Thomson Committee for indictment appeals and extended to summary appeals by the previous Government's amendments.
Part III of the Bill deals with penalties and reforms the law in a number of respects. In particular it contains a number of provisions designed to reduce the use of imprisonment. The Community Service by Offenders (Scotland) Act and the Bail etc. (Scotland) Bill had as an object the reduction of the use of imprisonment, and the Bill includes several measures to continue that policy. Clause 40 would provide that a court could not imprison a person who has not previously been imprisoned unless he has had the opportunity to be legally represented at least for the proceedings between conviction and sentence. Clause 41 would extend the present legislation relating to first offenders, applying to all persons who have not previously undergone a custodial sentence, the provision that the court cannot pass such a sentence unless it has considered a background report on him from a local authority, and is satisfied that no other method of dealing with him is appropriate.
Clauses 46 to 50 of the Bill contain a number of provisions relating to fines 24 enforcement which are intended to improve the efficiency of the fines collection service and the reduction of imprisonment in default. The fines enforcement procedure in summary cases is to be applied to fines imposed on indictment and the Sheriff Court is to enforce High Court fines. Summary courts would be allowed to remit fines which they have imposed in whole or in part. Certain restrictions on the use of civil process where this would be appropriate to recover a fine would be removed.
In particular, Clause 49 revises the table of maximum periods of imprisonment which may be imposed on an offender who defaults on the payment of a fine of such and such an amount, to take account of the fall in the value of money, and will have some effect in reducing imprisonment in default.
I have already mentioned under Part I of the Bill the new power for a policeman to take a drunken person to a designated place to be "dried out" rather than to arrest him and lock him up in the cells. Clause 54 of the Bill is another aspect of the same policy of ultimately removing imprisonment as a punishment for drunkenness. It would abolish imprisonment as a direct sentence for statutory offences of drunkenness and increase the financial penalties for these offences.
The Bill includes new provision for custodial sentences for young offenders. We agree with our predecessors that the present three overlapping sentences of young offenders' institution, borstal and detention centre are unsatisfactory and wasteful of resources to no purpose, but we attach importance to the power of the courts to sentence young offenders to the brisk discipline of a detention centre such as Glenochil. The Bill therefore provides for detention centre sentences of between 28 days and four months, with a discretion in the court, in passing such a sentence, to order detention in a young offenders' institution where it considers a detention centre sentence inappropriate.
Clause 42 derives from the report of the Emslie Committee on the Penalties for Homicide, which was set up, like the Scottish Council on Crime, by my noble friend Lord Campbell of Croy when Secretary of State for Scotland. The origin of the committee was the concern 25 about the increase in the incidence of murder in the 1960s which has continued to this day. The committee recommended the continuance of the life sentence for murder. They described it as an "awesome sentence", with its liability, even on release after many years of imprisonment, to recall at any stage of the rest of life. But they considered that its punitive and deterrent effect could be enhanced if the judge's recommendation on the minimum period to be served, which is seldom made at present, were to be pronounced, with his reasons, in every case, unless there were exceptional reasons to the contrary. The Government agree, and they have the support of Scottish judges in their view.
Part IV of the Bill (which comprises Clauses 56 to 65) introduces a system of compensation by the offender to the victim. Such a scheme was recommended by the Dunpark Committee, although in a more complex form. The Government consider that the Dunpark proposals for a certification procedure to be used when compensation could not be readily assessed would be unnecessarily complex, but we accept the principle of the Dunpark Report that offenders should, where appropriate, be liable to compensate their victims. In too many cases it is abundantly clear that the victim of a crime has suffered financial loss but might face considerable difficulties in attempting to pursue a claim through the civil courts. Although the criminal court in sentencing may be aware that the offender could well afford to recompense the victim, it is at present unable to require him to do so. Part IV of the Bill therefore introduces a simple system (akin to that which already exists in England and Wales) which would enable criminal courts in Scotland to order offenders to pay compensation to their victims. Such a power will not affect the existing civil rights of the victim. I am sure, therefore, that this proposal will be warmly welcomed on all sides of the House.
Part V of the Bill will also be generally welcome; it implements the main recommendation of a working group set up by the previous administration and chaired by Mr Frank McElhone, then Parliamentary Under-Secretary at the Scottish Office. The problem of violence at or around sporting grounds (in particular football 26 grounds) concerns all of us; and the Government accept the view of the working group that alcohol abuse is a major contributory factor to football violence. Clauses 66 to 74 of the Bill would therefore allow the Secretary of State to designate sports grounds or events, and would make it an offence for any person to attempt to enter or be within any designated sports ground while in possession of alcohol or any container capable of being used as an offensive weapon, or while drunk. Similar provisions will also apply to supporters travelling to and from matches on private hire coaches.
Part VI of the Bill contains a number of miscellaneous and general provisions. I would refer particularly to Clause 75. Vandalism is one of our banes and blights in Scotland, damaging the quality of life in many of our housing areas and placing a financial burden on the ratepayer. In Scottish law at present it hides under the inappropriate name of "malicious mischief", and, indeed, is often not prosecuted as such but further concealed under some wider offence, such as breach of the peace. The statutory offence in Clause 75 would call a spade a spade, and, where the act was repeated, would show the previous convictions and let the court know the sort of person they were dealing with.
My Lords, this is a long, complex and important Bill. It includes a wide range of reforms of Scottish justice but running through the whole Bill is, I hope, the core of consistent approach to criminal policy. Every citizen should be entitled to expect from the State a system of justice which is fair. To be fair it must be efficient and reasonably swift: it must protect the innocent and punish the guilty. Its punishments must also be humane. All of these objectives are advanced in this Bill. I believe it offers a fair balance between the powers of the police and the rights of the individual, between justice and efficiency. It seeks to make imprisonment less common and more effective; to make criminal procedure cheaper and better for the individual as well as for the State; to justify and to enhance continued public confidence in the Scottish criminal justice system. It takes full account of the deliberations of a number of distinguished committees reporting over recent years and the representations and reflections to 27 which their reports gave rise. This Bill deals in a measured and carefully considered manner with some of the most difficult and controversial topics in criminal policy. I believe it does so constructively, fairly and successfully. I commend it to the House.
§ Moved, That the Bill be now read 2a.—(The Earl of Mansfield.)
§ 3.35 p.m.
§ Lord McCLUSKEY
My Lords, the House will be grateful to the noble Earl for his careful exposition of a long and complex Bill. It is not my intention to follow him through each and every clause. At this stage the House should be considering the principle of the Bill, and this Bill rests upon several disparate and unconnected principles. May I summarise them in order to introduce the points I seek to make. The principles, as I see them, are, first of all, that the police require new powers of detention and search. Secondly, that an accused person's right to silence in court ought to be restricted. Thirdly, that a number of largely unconnected changes should be made in relation to evidence, procedure, and sentencing in Scotland. Fourthly, that the appeal system should be improved and, in some respects, dramatically changed. Fifthly, that the court should be given power in Scotland to make compensation orders; and sixthly, that drunkenness and the throwing of bottles at, and associated with, sporting events—not just football events but sporting events generally—should be legislated against.
Before I turn to these particulars may I make some general observations. Some of the provisions in this Bill regarding police powers, evidence and procedure and penalties were contained in the Bill referred to by the noble Earl and introduced by the last Government. Others, particularly relating to appeals in summary causes and alcohol at sporting events, would have been introduced either in the course of the progress of that Bill or in further legislation. I want to make it plain that I shall not urge the rejection of any provision which we introduced or might have introduced. But the mere fact that on particular issues the two Front Benches have espoused a 28 particular provision does not of itself make it a good one.
For example, Clause 21 in this Bill is almost the same as our Clause 24, providing that a trial may proceed in the accused's absence in certain circumstances. We put that into our Bill without, I feel, very much enthusiasm, but at the request of the Lord Justice General. It was rejected with great enthusiasm by a substantial majority in Committee in the Commons, and those voting against it included the Ministers in the Commons who are now responsible for this Bill, and yet here it is again. I believe that no one would shed any tears if it were once again rejected.
The other example I must mention at this stage is the powers of detention. Public concern has grown about these powers, and I think that given the growth and expression of public concern the House and the Government would do well to give a careful hearing to these objections, and to see whether they can be met or satisfied at least in part. I repeat, the mere fact that we had similar powers in our Bill in respect of detention is itself no sufficient answer to the critics who opposed our Bill, and indeed to the arguments that they now advance.
May I make a second general point. I approach the whole exercise of legislating about Scots criminal law with mixed feelings. The law can be reformed to some extent by the courts; it can be reformed by Parliament. The courts in reforming the law tend to be slow and haphazard and to have a restricted competence to alter the law, but none the less the courts evolve changes in the law. Parliament comes along sovereign; it can act instantly. It is of course democratic and responsive immediately to public pressure, but it tends to react to particular situations and tends to rush through changes in the law which do not pay the same heed to the coherence, unity and genius of the law. One thinks, for example, of the Thorpe case in England, which produced a considerable clamour for legislation of one kind or another, and the Morgan rape case in England a few years ago which lead to the passing of the Sexual Offences (Amendment) Act 1976.
The general point is that in the field of criminal law reform we must beware 29 of a hyperactive legislature and always ask ourselves, "Is this legislation really necessary?", and I believe that is the proper test, even in relation to largely procedural matters of the kind with which we are dealing here. We do not want to introduce into Scots law so much legislation that we suffocate its genius, destroy its flexibility and rob of it of its simplicity. If we apply that test to this legislation—is it really necessary?—then I believe that some parts of the Bill fail to pass that test.
I come to the provisions of the Bill to which I wish to draw attention. The new police powers contained in Clauses 1, 2 and 3 are, I believe, necessary and justifiable though with some modifications. They are said to derive, and they do derive, from the report by the late Lord Thomson and his commitee, but that report provided that there should be certain safeguards for an accused in police custody; that is to say, that there should be tape recordings of what took place inside the police station. That is not in this Bill, and indeed it was not in our Bill, but it is important to notice that neither our Bill nor this one is in terms implementing the Thomson Report in relation to what happens inside police stations, and that is an important qualification we should bear in mind.
The new police powers however are, I believe, necessary because police investigations of a crime at or near the place where it occurred can be and sometimes are frustrated by the refusal of persons involved to assist the police willingly in their inquiries. What happens now—and one finds some reference to this in Thomson, and I have had considerable experience of the criminal courts in Scotland and this is my judgment—is that the police have a choice. They can let the suspect or witness go; they can arrest him on what may well prove to be inadequate evidence, a bad charge; or they can detain him against his will either on some technical charge or by means of some vague and imprecise threat, and I believe that is what happens at the present time and I believe furthermore that the courts in Scotland commonly turn a blind eye or at least a benevolent eye on police irregular pressures at that stage in their investigations, and I believe that happens in England as well. That is 30 done simply because it is realised that otherwise the proper investigation of crime will be frustrated. The Thomson Report recognised this and one finds it in paragraphs 3 (10), 3 (11), 3 (13) and 3 (14), and I invite your Lordships' attention to those paragraphs although I will not quote them in full.
The solution in my view is to regularise what is now permitted in practice if we regard it as acceptable, and then to enforce the new rules strictly. The police, the public and the courts will then all know where they stand. I recognise of course that occasionally a wholly innocent person may be detained against his will for a short period, but I believe that most citizens would accept that as a disagreeable necessity justified by the overriding public interest in the detection of crime and the avoidance of the present situation in which the criminal authorities and the courts tolerate from time to time police irregularities, thus, in my view, risking public confidence in the processes of the criminal law. So my principle here is this: let the law be clear, let it be adequate, and let it be enforced.
If a person is to be detained against his will, is it necessary to detain him, as the Bill proposes, for six hours? This is a person not arrested but simply detained on suspicion. I do not believe that period is necessary. He is not arrested, as I have said, and therefore his rights are extremely limited. Thus, this period of limbo, as it were, should be as short as is absolutely necessary. If he is willing to stay and help the police, then the statutory power is not necessary. So the kind of man we are talking about to whom this six-hour period applies is a person who is unwilling to assist the police in their inquiries. In that situation is it likely that he will answervoluntarily the questions the police want to put to him? Surely he will not, and therefore all the police can properly do is check his name and address and search him. Do they need six hours for that purpose? I believe not. He does not have to answer the questions; all he has to do is give his name and address and be searched, so why keep him in for six hours? What is the purpose of that long period? In my submission, the period we proposed in our Bill, of four hours, is ample in all cases.
31 What is rather more serious is this. Why in such a case, where the evidence even after the search of the man does not justify arrest, detain him for a second period? I direct attention particularly to Clause 2(3), which says that a person who has been detained for six hours can be re-detained at the end of that period, again without being arrested, simply on the authority of a justice. This is a wholly bad provision. I detect shades of South Africa here, and indeed of the police State, in allowing successive periods of detention on a mere magistrate's warrant. There are no safeguards for the detained person, for the non-arrested suspect, and even his lawyer and relatives may know nothing of his whereabouts and circumstances. In the other place when our Bill was being debated Mr. Rifkind in committee expressed himself as wholly opposed to such a power. I believe he was entirely right and I believe it is wrong to include this provision in this Bill. In any event, the authority of a mere justice is a wholly inadequate safeguard and in my submission this provision should go.
The other wholly unjustified power is contained in Clause 2(5)(c), which permits fingerprinting of detainees—that is, suspects who are not arrested—and in my view that is an unjustified interference with civil liberty. It is open to abuse, despite the proviso, and I beg the Government to reconsider that provision and withdraw what I believe to be a new, offensive and unnecessary power.
Clause 4, to which reference has been made, gives the police power to search in the street for weapons. It was not in our Bill, but it was put in the Bill in committee in the other place. I believe it is entirely unnecessary and I invite the Government to reconsider it. The opening words of Clause 4 require the constable to have:reasonable grounds for suspecting that any person has committed or is committing an offence under section 1 of the Prevention of Crime Act 1953"—which prohibits the carrying of offensive weapons in public. If one looks at the opening words of Clause 2, one sees that if the—constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment"—then the person may be detained. What is to stop a constable who believes a person 32 is carrying an offensive weapon from using his power under Clause 2 to have that person detained and then searched at the police station? Why create a special power of search in the street? This appears to be going too far and it is liable to lead to very bad relations between the police and the community if one allows the power of search in the street for weapons merely on the suspicion of a constable.
Many people are very worried at these extensions of police powers, whether they were contained in our Bill or are contained in this one. If they are to be given—whether in the Bill or limited as I propose—is there not a case for saying in the Bill that they should be given for a trial period and that at the end of that period the police, the public and the other interests can give their views? There should in my submission be provision for a review. That would encourage restraint by the police and encourage the growth of good practice in relation to the use of these powers. People say—I hope they are wrong—that these powers are liable to be abused. Let us give the police three years in which to demonstrate that they will not be abused, and at the end of that time let the matter come back before Parliament in order that both Houses may consider on an affirmative resolution whether or not the powers are to stand; and I would table an amendment to allow for such a review by Parliament after three years.
May I direct attention to Clause 6. It is the only one that I want to make a lot of in this procedure and evidence part of the Bill, but it is of great importance. It makes a serious inroad into the accused's right to silence. Hitherto an accused appearing in court had a right to put the Crown to the proof, a right to remain silent, and of course that right technically is not taken away by this new provision. At the present time, he has this right; he usually exercises it, at least until his trial when he opts whether or not to give evidence. It is in present practice, and has been for most of this century, highly unusual for a person to make a declaration at an earlier stage, although he was entitled to do so. As I say, under this new provision the accused's right to silence is technically preserved, but he will be brought before the sheriff, he will be asked questions by the prose- 33 cutor, and if he does not answer the questions, his failure to do so may be commented upon at his trial. That is a quite serious sanction for failure to respond, and accordingly there is pressure upon the accused to forgo his right to silence and to answer questions at this early stage.
I want to make three points about this. First, let us recognise what the clause does. It effectively diminishes in an entirely novel way the right to silence. Secondly, I wonder whether the profession in Scotland will make this work'? This is a serious question because much of the criminal work in Scotland is handled by a small number of solicitors. If each and every one of those solicitors chooses to advise each and every client to remain silent at the judicial examination, then is this comment by the judge going to be worth making? There is no point in saying at a particular trial that the accused did not answer the question when in fact one knows that no one ever answers such a question. Further, if the accused, on his solicitor's advice, answers no question, is it proper that a comment should be made about the accused? Why should the comment not be made about the accused's solicitor? This is a provision which can be made to work only if the profession in Scotland decide to make it work.
There is another point that is important. The right to question is extremely broad in the new Section 20A of the 1975 Act, and that breadth of questioning, combined with the right to bring the accused back again and again, turns the proceedings at this stage into inquisitorial proceedings, which is a dramatic potential revolution in our whole criminal procedure; and all this within a few hours of arrest. So this is important, my Lords, and it is important that the Government should think very carefully about whether or not they really want to proceed with this kind of provision.
I acknowledge that in the Thomson Report recommendations were made roughly along these lines, but again there were safeguards which this Bill does not contain. I see that the Lord Advocate has the Thomson Report before him, and he will find what he is looking for on page 43. He will find that Thomson recommended that the objects of judicial 34 examination should be threefold. The first was to afford the accused, at the earliest possible stage, an opportunity to explain himself. The second was to protect the interests of an accused who had been interrogated by police officers and who had given answers or made statements to the police. So two out of the three were conceived in the accused's interest. But the third is the one that gives rise to this provision, and it was to enable the procurator fiscal …… to ask an accused questions designed to prevent the subsequent fabrication of a false line of defence;for example, alibi. That is perfectly sound. If the accused wants to say that he was at his granny's or that he was watching a football match, let him say that at once and the police can investigate that story. But what Thomson went on to say was that there ought to be a number of limitations about the kind of questions that could be put. This Bill ignores that restriction upon the prosecutor's capacity to ask questions and gives the prosecutor an extremely broad remit, and he can ask about almost anything.
What the Thomson does in paragraph 8.17, on page 44 is to lay down a procedure with strict controls to prevent cross-examination at this early stage which may be within a few hours—72 hours probably—of the man's arrest. What has happened to this protective scheme? Is it to be spelt out in an Act of Adjournal? Reference is made in the Bill to Act of Adjournal, but that Act of Adjournal, may I point out, is one that is to be made by the Lord Justice General and the judges of the High Court in Scotland. It is not going to be seen by Parliament, and, accordingly, if a procedure is to be created to protect the accused, Parliament would have no right to review that procedure in the Act of Adjournal. I should like to know whether the Lord Advocate, or the Minister, has had discussions with the Lord Justice General and if so, can he tell us what this Act of Adjournal is to contain? Until this is known, we are being asked to buy a dangerous pig in an impenetrable poke. There are other questions in relation to this matter, but I believe that they can wait until the Committee stage.
I turn to Clause 14, which I particularly welcome, and I particularly welcome the extension of the 110-day period to the 35 start of the trial, but more particularly, in the interests of accused persons, I welcome both the provisions about avoidance of delay in criminal trials in Scotland and in criminal summary trials. This is a big step forward and I congratulate the Government upon implementing it, although it will undoubtedly cause some extra expense in the running of the service in Scotland.
I wish to draw attention to Clause 19. This is the clause which provides that the accused may argue that he has no case to answer. I am not very enthusiastic about it, but I recognise that the Thomson Report was in favour of it, and I am willing to bow to that judgment, although I think that this, too, is liable to put up the cost of legal aid in criminal cases in Scotland and that, I hope, has been noted in preparing the estimate of the cost-effects of the Bill.
I have already mentioned Clause 21, which in our Bill was Clause 24 and which was thrown out in the Commons Committee by a combination of two Labour MPs, one Scottish Nationalist, and five Tories, including Mr. Teddy Taylor, Mr. Nicholas Fairbairn, and Mr. Malcolm Rif kind; and I wonder what on earth it is doing back in this Bill. On that occasion Mr. Fairbairn said, as shown on page 387 of the report I have, that he could draft no amendment which in his opinion could avoid or cure the dangers of this particular clause. Well he certainly has not avoided the dangers, and I should be interested to know why the Government have done an about-turn, a complete mini U-turn, on this particular matter.
Clause 23 contains a nonsense, and I do not know where this comes from. Clause 23 provides that,In any trial each accused may challenge one juror … without giving any reason.At the moment we have a jury of 15, and each accused may object to five jurors, the so-called peremptory challenge. He gives no reason, he merely says, "Object", or, "Need not come", and the juror is asked to stand down. If the number of peremptory challenges is reduced to one, and accused persons want to object to more than one juror—whether they object to their age, their sex, their address or whatever; and a whole witchcraft goes 36 into the choice of jurors—defence counsel will have to come forward and say, "I object to this juror on cause shown" Then he has to present an argument to the court. How much time will that take, with the judge, half a dozen counsel, clerks, and jurors all sitting around, while there is a 10-minute argument on each of the jurors, about whether or not cause is shown? And what does "cause shown" mean? We do not know what it means in Scotland, simply because, having the peremptory challenge, we never needed to use the cause shown provision. At the end of the day, there is a right to challenge one juror, and so one might as well give the accused the right to challenge no jurors; and let us go over to a system of cause shown in all cases. This was designed I believe, to save money. It might save a few hundred pounds, or a couple of thousand pounds at the very outside. But the expense of lengthening trials in order to have cause shown objections will dwarf any saving of expenditure, and I ask the Government to abandon this as a piece of nonsense.
Clauses 32 and 33 relate to the appeals and I extend a general welcome to them, with one qualification, and I ask the Government to think carefully about this. I believe that the court, on appeal, should have the right in summary causes to allow a new trial; in other words, to quash the conviction and give the prosecutor perhaps two months, as this Bill provides, to come forward with another charge on the same facts. But I do not believe that that is a desirable provision in relation to jury cases. The reason for the distinction is quite simply this. If a case goes to jury trial it tends to get some publicity; if it goes to appeal it tends to get more; if a second trial is allowed—and it is going to happen very rarely—then it is going to get an immense amount of publicity. What chance is there, then, on the second occasion, of finding a jury without knowledge of the case from the previous trial and the appeal hearing? I believe there is very little chance. You will find sheriffs, of course, who can deal with cases in summary causes, because perhaps they do not bring the same kind of prejudice to bear. Certainly they will come with a professional judgment to the assessment of the evidence in the particular case. So I believe there is a fundamental difference between the right of reprosecu- 37 tion in summary and in solemn cases, and I believe that this provision requires more cogent justification than I have yet heard.
Part III of the Bill contains numerous detailed provisions about penalties. They were nearly all in our Bill, and I need not detain the House by looking at them in any detail. One of them, however, I must draw attention to, and that is in Clause 42, which gives effect to a recommendation by the committee which sat under the present Lord Justice General, Lord Emslie, and requires a judge, except in special circumstances, in the case of a murder, to recommend a minimum period that the person must serve. My Lords, that may be a provision one ought to leave to the judge's option, as it were, but to require him to do it seems to me to be going too far. How can a judge, at the time and in the circumstances of the trial, have any real idea what effect 10 years, 20 years or 25 years of imprisonment are going to have upon the accused person, who may at the time of the trial be aged 19 or 20? So I believe that that is something which ought to be looked at again.
Compensation by offenders is covered by Part IV of the Bill. I welcome that, and I have one or two amendments which I would hope to propose at the Committee stage. I need not detain your Lordships with them now except perhaps to say that I was never very happy with the Dunpark Report, which struck me as being, as the noble Earl indicated, an intensely bureaucratic-looking document, and I am glad that the Government have chosen a somewhat simpler path.
So we come to Part V, and I extend a general welcome to the provisions in Part V, which endeavour to reduce hooliganism and drunkenness at sporting occasions. It owes much, of course, to the McElhone Working Group. I occasionally go both to rugby and to soccer matches, and these occasions tend to be disfigured by drink, swearing and the throwing of missiles. This Bill includes provisions directed against the drink and the missiles, but not against the swearing. I should have liked to have seen a provision prohibiting the use of four-letter words, but then I realise that "goal" is a four-letter word, not to 38 mention "ball", so I accept that that is quite impracticable.
But I fear that the provisions in Clause 69, directed against the throwing of bottles and cans, are misconceived. The Government, in order to define the missile, have created the concept of "a controlled container". It is a very silly one. It includes not just a bottle and a can, but a hip flask; it includes a saucer and a jar of smelling salts (which I always take to a rugby match in case Scotland should score a try); it includes a fountain pen; it includes a tobacco tin; and it includes, probably, a box of chocolate liqueurs. What it does not include, however, is a gourd, or skin bottle, out of which Spaniards are wont to squeeze wine in a long, thin jet. So I foresee the terracing at Celtic Park being lined with thousands of supporters squeezing their gourds and directing their jets of Tartan Special, not only at their own eager mouths but in the general direction of their friends' mouths and the necks of Rangers' supporters. It is not, my Lords, a pretty prospect! I am tempted to say to the noble Earl, at the risk of some little ambiguity, "Chuck it, Mansfield", and settle for the less precise but more realistic expression:bottle, can or similar container, designed, or adapted or used for carrying alcohol, and having a capacity greater than six and two-thirds fluid ounces.This would allow the pessimistic spectator to carry a small hip flask for the quasi-medicinal purpose of comforting his soul when his team slides to defeat.
Finally, my Lords, I think there is a curious loophole in Clause 73, but at this late hour I shall not draw attention to it; I would hope to look at it in the context of the Committee stage. The noble Earl mentioned vandalism, and I want to conclude my review of the provisions of the Bill by looking at that. It is nonsense to include in the Bill Clause 75. The crime which is described in the Bill as "vandalism" is, as he said, now called "malicious mischief". All this Bill does is to change its name. At the moment, malicious mischief is a crime which is a common law offence and can be punished by substantial penalties indeed. What this particular Bill does, oddly enough, is to diminish the penalties for vandalism, because it lays restrictions upon the penalties which may be imposed. The 39 problem lies not in what you call the crime: the problem lies in its detection and the social conditions which have given and do give rise to it. The inclusion in the Bill in this form of Clause 75 against vandalism—and we are all against vandalism—is simply, in my view, a dishonest pretence, and it just will not work.
My Lords, the Bill contains many other provisions. It is not possible for this House to subject every clause and every provision to the kind of careful scrutiny that it deserves, and I regret that I myself am unable to be present for parts of the Committee stage; but I believe that this Bill, in part, has recently evoked serious and deeply-felt criticism. I do not agree with it all, but I have met with the leaders of those who campaign against the Bill. I do not agree with the noble Earl's description of them as "vociferous groups", and I hope that the Government, particularly at the Committee stage, will not dismiss their representations, and mine, as unworthy of notice. We all share, I believe, an identity of aim, which is that we must seek to achieve the public interest in the detection of crime. To allow these arguments to be advanced and heard, and because the Bill contains much that is worthwhile, I will not oppose the Second Reading.
§ 4.7 p.m.
§ Lord FOOT
My Lords, this debate has already taken a rather curious, although not perhaps an unexpected, turn. I should like to begin, if I may, by congratulating the noble Earl upon the comprehensive way in which he explained this massive Bill to us. I do not know that I would congratulate him so much on the blandness with which he proposed to this House what are, as I shall hope to show, major constitutional changes; but I feel we should all express our sympathy to the noble Lord, Lord McCluskey, for the task that he has had to perform this afternoon, because he has been in the difficulty, of course, that he has had to express concern and doubt about provisions which appeared in the Bill which was promoted by his own Government a year or so ago. Not since Agag has anybody had to walk so delicately as the noble Lord! As I understood it, what he was saying to the noble Earl over and over again was, "Will you 40 please reconsider the things which are incorporated in your Bill which appeared in our Bill, because we may both have got it wrong?". If I may take one particular illustration, the noble Lord, Lord McCluskey, suggested that the Government should consider inserting a clause in this Bill which would allow for it to have a three-year experimental period. May I ask him whether that provision appeared in his Government's Bill; and, if not, why not? What has happened in the last 12 months that makes it necessary that there should be an experimental period for this Bill, as compared to the Bill for which the previous Government were responsible?
My Lords, it is evident that we on these Benches are going to be the only people from whom there is going to come any real assault upon the major purposes of this Bill, and this afternoon I shall endeavour, I hope briefly, to explain to the House why it is that I and, I fancy, my noble friends take the view, which is indeed expressed in the first words of the Explanatory Memorandum, that this is a Bill,which makes a number of changes, some major, in criminal procedure and evidence in Scotland and in the treatment of offenders".I regard that as an understatement. I shall endeavour to satisfy the House that this Bill effects two major constitutional changes touching upon the rights of the individual in a democratic society under the rule of law. These two major alterations which the Bill proposes are, first, that it introduces this new concept of detention, something falling short of and different in its consequences from arrest and having wholly different consequences to arrest; and, secondly, that this Bill constitutes the first legislative assault upon what for centuries (not only in this country but in other countries and, particularly, in the United States) has been regarded as one of the basic rights of the individual in a free society; that is, the right of the accused faced with his accusers to remain silent and that that silence should not be held to his disadvantage or detriment. It is that bastion of freedom which we believe to have been breached by Clause 6 of this Bill.
Before I come to the reasons why we hold this view in regard to this particular clause—and I shall confine myself to 41 Clauses 1 to 6—may I make a general observation? This is a Scottish Bill. If it reaches the Statute Book it will create—and I do not suppose that the noble Earl will dissent from this—a new divergence between criminal procedures in Scotland, on the one hand, and in England and Wales, on the other. if this were a Bill which was being passed through a Scottish Parliament under a devolved system of Government, that might not matter very much; but, because devolution has been lost, this Bill must come through this Parliament at Westminster.
I do not know of any peculiarity or of any particularity in the Scottish situation which makes the proposals contained in this Bill for Scotland inappropriate to England and Wales; and it would be quite illogical to carry through these changes, if they are proper, appropriate and good things to do in Scotland and then not go on and introduce the same changes in the criminal procedure in England and Wales. Indeed, I feel sure that the English and Welsh police would take the view that, if their colleagues in Scotland are to be given these additional powers, it would be ridiculous for them not to be given the same powers. The problems of law enforcement in England and Wales are much the same as the problems in Scotland. Therefore, we are here today debating not only what ought to be done about law enforcement in Scotland but problems which are common to all parts of the United Kingdom.
That is something which makes it a little surprising that the list of speakers this afternoon is as short as it is. I would suggest that it is particularly unfortunate that we are not going to have any contribution from any Law Lord. I should have thought that these were matters which would have been of great concern to those noble and learned Lords; and, indeed, when we were discussing very much the same sort of thing in the Criminal Law Revision proposals of about three or four years ago, we heard on that occasion, and very eloquently, as I remember, from several Law Lords on the very subjects contained in this Bill.
I am confining myself to Clauses 1 to 6 of the Bill partly because I should be quite incapable, not being a Scottish lawyer, of saying anything particularly useful about some of the no doubt excellent and 42 unobjectionable proposals contained in the remaining part of the Bill. May I now turn to Clauses 1, 2 and 3. These are the clauses which give two new powers of detention to police officers. Clause 1, as the noble Earl has explained, gives the police powers to detain a person reasonably suspected of having committed any offence—and I underline the words "any offence"—and to detain any other persons whom they believe might be able to give information about that offence in order to obtain from them their names and addresses and to verify those names and addresses and, in the case of a suspect, to ask him for any explanation of the circumstances which have aroused the police officer's suspicions. It is an offence on the part of either the suspect or the witness to refuse to give his name and address or to give a false one.
Before I look at that more closely, may I make a preliminary observation? I hope that I do not fail to understand the arguments for some such power of what might be called temporary detention to ascertain the identity of a suspect or even of a witness. I appreciate that there are arguments in favour of giving the police some power of that kind. As things stand, at any rate in England and Wales—and I cannot speak about Scotland—unless a policeman happens to have a legal ground for arresting a suspect, if the suspect is wholly unhelpful and refuses to give any information the policeman may be powerless (as the noble Earl has said) to do anything about it. I admit readily that that must be a frustrating experience for the policeman and that it is not in the interests of justice. In the later stages of this Bill, in so far as any criticism of this clause comes from these Benches, I think it will be directed to consideration of whether the powers given to the police under this Bill are too wide and whether they can be narrowed. But when one comes to the situation of a witness in the street whom the police are given power under this Bill to detain if a policeman reasonably considers that that witness may be able to give any useful information, that is an entirely different state of affairs.
In order to illustrate that, I will give the House a simple illustration. Let us suppose that a policeman thinks that some individual has parked a car improperly. That is a circumstance that enables him to 43 exercise his detaining powers under this Bill because, in the case of any offence whatsoever, the policeman who has suspicions of that kind is entitled to exercise these powers. What if a policeman turns to some individual who happens to be standing around and demands of him that he gives his name and address? That is a situation which may perfectly well arise under this Bill. There are then two possibilities. If the individual concerned—this entirely innocent individual who happens to be a bystander—complies, then the policeman is entitled to hold on to him until such time as he, the policeman, can verify the accuracy of the information he has been given. Not only that, but the policeman is entitled to use reasonable force to hold on to him. I am glad that the noble Lord is looking at the Bill. I am sure I have it right.
The other possibility is that he does not comply and that the innocent, potential witness may say to the policeman, "I do not want to be involved in this", or, "I haven't any information which is relevant" If he does that, not only does he make himself liable to a fine of £50 for refusing to comply with the policeman's request but, what is more, he is liable to instant arrest and can be taken into custody. One of the things which have perplexed us in the whole problem of trying to abate the high rates of crime in this country over the years, and one of the most perplexing and difficult problems, is to try to build up a condition of confidence and co-operation between the police on the one hand and the public on the other.
Is it not that very confidence which is going to be endangered by measures of this kind? I hope it is necessary only to pose one simple question: Are powers of this kind, to be exercisable against wholly innocent people, either necessary or calculated in any way to nourish good relations between the public and the police? If I may respectfully say so, the question answers itself. So far as need is concerned, so far as it is necessary for the police to have these powers, I can only say that having had some 45 years' experience practising in the magistrates' courts of this country I cannot recall a single occasion when the police have ever complained to me that their legitimate activities have been thwarted by the unwillingness of a witness to give his name and address.
44 Is it really worthwhile to encourage all this animosity between the police and the public for so insignificant a gain as will be obtained by this particular measure?
I pass on to Clauses 2 and 3. This is a matter of very much greater consequence. Clause 2 provides:(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment"—I pause there to point out that any criminal offence which is properly called a criminal offence is punishable by imprisonment. The vast majority of offences are punishable by imprisonment. The clause says:(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations",take him to a police station and detain him for six hours. How those six hours may be extended has been explained by the noble and learned Lord, Lord McCluskey. A simple application on the telephone to a justice of the peace is sufficient to get a further authority to detain the man for the further six hours. He can be released in one moment and the next moment brought back again. All that the policeman has to satisfy the justice about is that he needs a further period of time. All he has to say to the justice over the telephone is: "I have not completed my inquiries. I need a further period of time in which to do so". It is going to be extraordinarily difficult—is it not?—in those circumstances for the justice to say anything other than, "All right, you have my approval for doing so". There is the basic period of six hours during which the person can be so detained.
What can happen during those six hours? In order to find out what can happen to the individual in such custody, one has to look at Clause 2(5). It provides:Where a person is detained under subsection (1) above, a constable may—45 That is what will happen; that is what will be going on during the six hours of limbo, as the noble and learned Lord put it.
- (a) put questions to him in relation to the suspected offence;
- (b) exercise the same powers of search as are available following an arrest; and
- (c) take fingerprints, palmprints and such other prints and impressions as the constable may, having regard to the circumstances of the suspected offence, consider appropriate:"
One of the most perplexing and difficult questions which people concerned in the criminal procedures of England and Scotland have been considering for very many years is how one can devise some procedure by which what happens when a suspect is in the hands of the police in the secrecy of the police station, whether he has been arrested or whether he is, as we euphemistically put it, "helping police in their inquiries", can be monitored. One of the problems to which the judges of this country have never failed to draw our continuing attention is the fact that many criminal trials are taken up very largely and for long periods of time with a trial within a trial because of the dispute as to what happened in the police station, and what was said and done there.
This clause provides no assistance in the resolution of that particular problem. All kinds of proposals have been made through different quarters as to how what goes on in a police station can be monitored. There has been the suggestion that tape recorders should be used; there has even been the suggestion that video-tape recorders should be used. There has been the suggestion that nothing that takes place in the absence of the accused's solicitor should be given in evidence. There have been suggestions that all the questioning and interrogations should take place in the presence of an independent person such as a justice of the peace.
The worst feature of this particular proposal is that it makes no contribution to lessening the difficulties from which we suffer at the moment; indeed, it exacerbates them. That is perfectly clear when one considers this. The person, while detained in the police station, is detained there in secrecy unless he can take advantage of the provisions of Clause 3. As the noble Earl has explained, that clause says:Without prejudice to section 19 or 305 of the 1975 Act (intimation to solicitor following arrest), a person who has been arrested and is in custody in a police station or other premises, or who is being detained in a police station or other premises under section 2 of this Act, shall be entitled to have intimation of his custody or detention and of the place where he is being held sent to a solicitor and to one other person reasonably named by him without delay or,"—46 And here we come to the words which make nonsense of it all—or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary".Who decides what delay is necessary? The police do. There is no authority which can supervise this procedure. The defence of the individual's right which the noble Earl said was provided by Clause 2(7) is quite empty. It says:A person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and a constable shall so inform him".What happens when a person is brought into a police station? Who is to say if the constable carries out his duty under the Act? He says to the suspect, "You are not obliged to tell me anything except your name and address. However, I have the right under the statute to ask you any questions I like. If you do not answer my questions, it is provided by law that I shall be able to report that."
Furthermore, it is open to the police constable to say: "You are not obliged to tell me anything except your name and address but you will no doubt bear in mind that I have the power to detain you here for another six hours and it is up to you to decide whether or not you will co-operate. If you are prepared to co-operate you may well be released before the six hours have expired". The evil here is this: you are setting up and introducing into our legal system a system of secret interrogation which is monitored only by the police themselves, and if we were discussing what goes on in totalitarian countries all over the world we should regard that as one of the worst features of such régimes. This is an invitation. Policemen are human beings and this procedure, whereby they can hold a man in secret custody and subject him to whatever interrogation they think fit, is an invitation to what we used to call in the old days "third degree". That is the evil, I would suggest, of a measure of this kind.
My Lords, I must hurry on, because I want briefly to refer to Clause 6. I should like, if I may, to read the relevant parts of it because I think they are self-explanatory. It is proposed that there should be a new section added to the 1975 Act. It says: 472A—(1) Subject to subsection (2) below"—I will refer later to what subsection (2) says—an accused on being brought before the sheriff for examination on any charge"—I understand that to be substantially the same thing as what we call committal proceedings in this country, when information is taken down as to what the charges are and evidence is produced in one form or another in support of those charges)—(whether that examination is the first examination or a further examination) may be questioned by the prosecutor in so far as such questioning is directed towards eliciting any explanation, denial, justification or comment which the accused may have as regards—(a) matters averred in the charge;".What will happen under that procedure? After the sheriff has listened to the evidence and after the charges have been read out and the evidence has been received, the prosecutor is then entitled to get up and examine the accused man upon any matter "averred in the charges". Is this not an absolutely unprecedented proposal? It means that off the cuff the accused, without legal advice and without knowing in advance what questions the prosecutor will ask, has got to answer the prosecutor's questions. When I say he has got to, there is of course a sanction if he does not, because it is subsequently provided that if he stays silent it will be open at his subsequent trial for the judge or the prosecutor to comment on the fact that he failed to give such an explanation at the time.
I would ask your Lordships to consider a complicated fraud case with 20 counts on the indictment. Under this provision—the noble Earl will correct me if I am wrong—without having to give any previous notice of the questions he intends to ask, the prosecutor can get up after the examination and can then examine the accused upon every count in the indictment. He can ask him where he was two years ago, who he was with, when he made the entry in the book of account, and so on. All these answers will be given off the cuff before he has any opportunity of consulting with a solicitor as to how his defence is going to be presented. All this is written down in a verbatim record and is passed eventually to the jury trial. I do not know that it is 48 necessary to say anything further about that.
The noble Earl, in introducing this Bill and speaking about these particular provisions, seemed to suggest that anybody who thought they constituted a departure from long-established traditions in this country and in Scotland was an alarmist or a person of no importance and no account. My Lords, is it alarmist for us to suggest that this is the most grave invasion of the rights of an accused to silence without prejudice to himself that has been made in this House, or in any other place, up to this time?
What it amounts to is this: the prosecutor will be allowed to examine the accused at that stage at such length as he chooses as to what defence the accused is going to put forward eventually and without any prior notice of the questions which the accused will be called upon to answer before, as I say, the accused has had any chance of obtaining legal advice. We are engaged, as the noble Lord said in his peroration, in a discussion of the age-old question of how in a free society you maintain a balance between the authority of the State on the one hand and the central rights of the individual on the other. I take the view that in this country, and indeed in Scotland, we have in the past solved that problem, or attempted to solve it, pretty well; but it is my belief and the belief also, I understand, of my noble friends on these Benches, that Clauses 1 to 6 of this Bill represent a quite unnecessary and quite unacceptable curtailment of those individual rights, and it is a curtailment which can only bring the criminal law and criminal procedures of the realm into disrepute.
§ 4.38 p.m.
The Earl of SELKIRK
My Lords, I should like to thank the noble Earl, Lord Mansfield, for introducing the Bill in the way he has done. It is a complicated Bill, and my complaint is that it became available in Scotland only on 27th December. That means there have been less than three weeks in which this Bill could be examined. It is supported by eight reports, of which I have only had the opportunity of seeing six: perhaps one can see the others at another time. It is largely drafted by reference and it refers to some 10 other Acts of Parliament. I 49 should doubt very much if there is anyone outside the Crown Office who has checked all those references, except perhaps the noble and learned Lord, Lord McCluskey, who is capable of checking almost anything, I am sure.
The trouble about a Bill drafted like this is that it is really very difficult to be certain that one can follow what the clauses mean unless one has seen the basis on which they are founded. To give your Lordships one example, Section 54 deals with drunkenness, but it is not clear whether the Scottish Office is in favour of drunkenness or opposed to it. It is not clear whether the penalties for drunkenness are increased or diminished. I assume they are probably increased and I think that is what it says in the Explanatory Memorandum; but that is not part of the Bill itself. I think the time may come—I do not blame the draftsmen—when Acts of Parliament have to be made easier to read. They are not written purely for the benefit of learned judges, advised by learned counsel: they are written so that the public shall understand them and I think that the day may come when the whole basis of drafting has to be changed with that in mind.
What this Bill does show, I think, is the extraordinary complexity which crime has taken on at this present time. For several centuries we have always been able to begin criminal proceedings in 110 days. Now, however, new crimes are getting so complex, so sophisticated, that that is no longer possible.
I have no comments on the appeals procedure and evidence, except that I am very glad that the stated case has been dealt with. At the present time, the position is unsatisfactory and the new arrangements will meet what is really an urgent need. I am also glad that the criteria on appeal from the sheriff have been put on a new basis. I should like to ask one small question on this. I may be wrong, because it is a subject about which I do not know a great deal. It seems to me that the judge's notes on appeal will be handed to the accused. I presume this means that they will be made public—I do not know whether or not that is the intention—and if they are made public will they still be covered by privilege? Otherwise, 50 the judges will quite naturally be inhibited in what they say about certain witnesses.
Of course I am delighted, as I think everyone will be, about the provision of some compensation for the victims of crime. I had no idea how difficult this problem was till I glanced at the report on it. It is exceedingly complex, and one wonders whether this proposal will be particularly successful. I hope that compensation for victims will not come to be connected with imprisonment, which is an entirely separate matter. After all, it would defeat the purpose of compensation, if the result was that the committer of the violation was not sent to prison.
Can we not invent some other form of deterrent which would, at least, encourage people to pay for their offences? If I may make a random suggestion, just as we can take away a motorist's licence, why not take away the licence from someone owning a television set, so that he would not be allowed to have a television set until he had paid his fine? For a great many people, that would be quite a punishment.
I hope that the provision about sports grounds will be successful, but I wonder whether it will. As I understand it, most of these stadiums themselves have very large bars. Indeed, someone told me the other day that Arsenal has the biggest bar west of Hong Kong. I do not know whether or not that is true, but I believe it is fairly common practice. Unless those bars are controlled, it does not seem to me that merely preventing people from having alcohol on the way to a match will achieve very much.
The noble and learned Lord, Lord McCluskey, criticised the paragraph on vandalism. He may be right in law, but I should have thought there was a good psychological reason for bringing out the fact that vandalism has become a real threat. Other words, rather vaguely covering the subject, are not really quite so effective.
The report on homicide by Lord Emslie contained the most important point. In paragraph 25, he said:In short, in recent years there have been as many persons convicted of murder annually as there were convicted in an average ten year period between 1900 and 1949".51 That is the first half of this century. Ten times as many people are convicted every year as were convicted then. The seriousness of this is, first, that the detection of crime viewed as a percentage is much higher today than it was before the war. Something like 50 per cent. of serious crimes, or at least homicide crimes, are today resolved. Of course, the gross number of unresolved crimes is considerably greater, but the percentage of convictions is very much higher.
Secondly, the standard of living in this country has improved enormously since before the war. One has only to look at the number of motor cars—I believe that more were sold last year than ever before—at the holidays which are available to people, at the houses, at the clothing and at the welfare state generally. Yet the rate of criminal activity continues, with all kinds of new crimes—muggings, kidnappings, skilled assassinations and so on.
I do not know, and I do not think anybody knows, what this is due to. There is a certain dislike of authority. But one must recognise that one of the biggest factors in postwar domestic life is television, and when I looked at television fairly regularly I calculated that we had about four good fights every night. The curious thing is that the hero, the "goodie", the man of virtue was always stronger, cleverer and shot straighter than the other chap. That is not my experience of life, and the implication that the virtuous man should always be stronger could very easily be turned around to say that the strongest man is always virtuous. In fact, there are quite a large number of people, both in this country and outside it, who believe that strength gives you virtue and a right for your action. This is a very dangerous situation and it was mentioned by the noble Lord, Lord Foot.
It is all very well to argue about rights of freedom and rights against interference—indeed, there is a very interesting examination in Chapter 2 of the second Thomson Report—but there is no greater interference with the liberty of the individual than an assault or a committal of crime. If anyone comes into your house, steals your goods and ties you up, there is nothing quite so interfering to an 52 individual. I would say this to the Government. Unless we can take steps to reduce the rising number of crimes, we shall be failing in our duty. Crime is an invasion of the most serious character.
I agree with the noble and learned Lord, Lord McCluskey, that the rules about arrest should be regulated, should be clarified and should be enforced. That is what matters, and that is what divides a free society from a non-free society. It is one of the matters that we must look at. This is a very important Bill and we have the advantage of having in this House four ex-Secretaries of State and four noble Lords who have worked in the Crown Office. I very much hope that we shall be able to put the Bill into a shape which will be accepted and recognised as a step forward.
§ 4.48 p.m.
§ Lord WILSON of LANGSIDE
My Lords, I am bound to say that I share some of the concern expressed by the noble Earl, Lord Selkirk, at the outset of his speech, because this is a difficult Bill on which to make a Second Reading speech, for the simple reason that from its very nature there is no single principle underlying the provisions of this measure. I say that, but of course the noble and learned Lord, Lord McCluskey, made an extraordinarily effective Second Reading speech, with that facility and skill in advocacy which he so uniquely commands. If I may say so, I think that we are in the debt of all three Front Bench speakers who introduced and commented on this measure.
Whenever controversy breaks out in relation to matters pertaining to the criminal field, be it law and order, criminal justice legislation or what have you, as that controversy is presented in the media the arguments invariably tend to become polarised. The controversy which there has so far been in Scotland about this measure is no exception to that rule. There is, on the one hand, the school represented by the radical civil rights groups, who see the provisions of Part I of the Bill in particular, as a first step towards a police state—a view with which I gather the noble Lord, Lord Foot, had some sympathy. On the other hand, there is the view represented by those who support what is sometimes the police 53 point of view: that the police have to tight crime with one hand tied behind their back; and the hand which ties that hand behind the back of the police is always represented as being the hand of the law and the lawyers. The truth lies far from either of these points of view. I would not say that it lies exactly between the two, but far from either.
One could regard this Bill as the culmination of that chapter of legislation which sought to amend, reform and improve our Scottish system of criminal justice which began in 1949 with the Criminal Justice (Scotland) Act. With that in mind, there are two questions which I think the Government have to answer more effectively than they have so far done. The first—which was touched on by the noble and learned Lord, Lord McCluskey—is whether this Bill is really necessary. I ask this question not in the spirit of a carping critic or a petulant "aginner", of whom there are so many in Scotland, but as one seeking enlightenment from the Government. I ask them whether this Bill is really necessary and, secondly, whether it will contribute to the better functioning of our system of criminal justice. I pose those two questions for this reason. If this is the culmination of the chapter which began in 1949, we ought to consider the outcome of our efforts since the war to reform, amend and improve our system of Scottish criminal justice.
There was the 1949 Act to which I have already referred. There was the Prevention of Crime Act 1953, which has some bearing on the situation, even though it is a United Kingdom statute. There was the consolidation of our summary criminal procedure in the Summary Jurisdiction (Scotland) Act 1954. Then there was the Criminal Justice (Scotland) Act 1963, the first offenders Act, the Social Work (Scotland) Act 1968 and the Sheriff Courts (Scotland) Act 1971. The last two are not peculiarly criminal justice measures but they have an impact on the field. There was also the measure which introduced into Scotland the power to make community service orders.
What I would invite the House to do—I think it is relevant; I certainly hope it is—is to consider for a moment the change of scene presented in the courts in Scotland as a consequence of all these earlier 54 measures. Then we can consider what kind of contribution this measure is likely to make. In the High Court of Justiciary, the Supreme criminal court of Scotland, there were then 13 judges, or it may have been 15. There are now 20.
In the Crown Office in Edinburgh, there was then at the head of the prosecution administration in Scotland the Crown Agent and one legally qualified assistant. Now there is the Crown Agent, plus 10. Then there were four advocate deputes, of whom only one was a senior member of the Bar. Now there are 10, and six of them are senior members of the Bar. In the Scottish Office there was then a mere handful of men and women responsible for the Government side of the administration of criminal justice. Now there must be somewhere in the region of 40 plus.
In the Glasgow Sheriff Court—I use this merely as an illustration of the situation in the sheriff courts throughout the country, because it is typical; Glasgow is the largest and busiest of the courts in the country (and, some say, in Europe)—there were then eight sheriffs. There are now 20. The procurator fiscal in Glasgow conducted all the prosecutions with eight deputes. There is now the procurator fiscal and 47 deputes.
I mention these matters, the relevance of which may not be immediately obvious, because, as I see it, the Bill which is now before the House is the culminating step in the process which was produced by our earlier efforts. The question which I think the Government have now to ask themselves is whether in these circumstances the system is functioning more effectively and more efficiently than it did before we started on this road, and whether the functioning of the system today reflects that full and proper use is being made of those additional resources which have been put at the disposal of the system. I am bound to say that not everyone thinks that the answer to these questions is, Yes. But if the answer is not, Yes, should we not pause and ask whether we ought to continue further along this same road or perhaps consider the need for taking steps in different directions?
The second reason why I ask these two questions derives from my consideration 55 of Part I of the Bill. I am bound to confess that my approach to these provisions is a little different, as at present advised, from that of Lord Foot whose expressions of concern I heard with great interest. I am inclined to feel that, if the Government can satisfy us that these powers for the police are necessary, we should let them have them. if there is a reasonable prospect that the police will exercise them sensibly and properly and that they will render more effective the work of the police in preventing crime, I would be inclined to say, let the police have them. But to the extent that they are cosmetic or window dressing—changing names from one thing to another—do not let us waste time upon them.
I do not wholly share the views which I gather were expressed by the Thomson Committee in relation to police powers, so I am probably wrong; this I accept. However, I wondered about this when the noble Earl, Lord Mansfield, said that under the 1953 Act the police have no power to stop and search suspected carriers of offensive weapons. I had always thought that Section 1(1) of the 1953 Act gave them such power because subsection (3) provides:A constable may arrest without warrant any person whom he has reasonable cause to believe to be committing an offence under subsection (1) of this section, if the constable is not satisfied as to that person's identity or place of residence, or has reasonable cause to believe that it is necessary to arrest him in order to prevent the commission by him of any other offence in the course of committing which an offensive weapon might be used.If a constable arrests, he is immediately in a position to search. Accordingly, I wonder whether the noble Earl was right when he said—as he did say, I thought—that the police have no power to stop and search suspected carriers.
§ The EARL of MANSFIELD
My Lords, I wonder whether I may interrupt the noble and learned Lord to repeat what I did say: that unless the police arrest they have no power to search.
§ Lord WILSON of LANGSIDE
My Lords, I cannot see any problem arising out of that. If they have reasonable cause to believe, why should they not arrest? Surely that is the proper thing to do.
56 In conclusion, as regards the powers of the police in Scotland at the moment I find it difficult to believe that they are not adequate. They have extensive powers at common law and under statute to arrest without warrant. Their right to do so is rarely challenged, and I would take some convincing that in this context the Thomson Committee was right. As I have readily conceded, the Thomson Committee are more likely to be right than I am, but I hope the Government will go rather further than they have so far done in convincing this House that the Thomson Committee was right about this before they adopt these proposals. It was of course a very distinguished committee, but I imagine that in history distinguished committees have from time to time been wrong. So I hope that in the debates on the Committee stage, which of course will be the really crucial stage of this Bill, we shall hear less about the Thomson Committee and more about the reasons for the Government's finding it necessary to introduce these very wide and sweeping powers. As I have said, if they can convince us of that, then I think our inclination would be to say we should let the police have them. But to all these matters we shall want very convincing answers.
§ 5.3 p.m.
Lord CAMPBELL of CROY
My Lords, I am glad to follow the noble and learned Lord, Lord Wilson of Lang-side who, besides having been a Lord Advocate, after that undertook the reorganisation of the administration of the courts in Scotland in the early 1970s. He is well qualified to take part in the later stages of this Bill and the examination of it which he has urged upon the House. We are singularly fortunate in having the noble Earl, Lord Mansfield, to pilot the Bill through and to introduce it in the clear way that he did today. He is familiar with the law in Scotland and also in England. In that respect he follows a tradition set by at least one of his distinguished ancestors.
I feel constrained to make a contribution although I am the first speaker so far who is not a qualified lawyer. I have felt this because there are particular points in the Bill which are the result of initiatives which I took when I was Secretary of State for Scotland between 1970 and 1974. 57 I created two of the bodies which have made recommendations upon which clauses are based, including the most controversial part of the Bill, Part I. I leave to others the legal matters and procedure connected with the courts but I recognise that the Government will have been helped by the advice from the Thomson Committee on these matters.
I should like to put to the House some facts and I hope that I shall be forgiven if I produce them from personal experience, because I think it is incidents with which one has been concerned oneself where one knows the facts rather than cases which come to one from hearsay which illuminate matters of this kind. First, I should like to deal with Clause 42, on penalties for murder. The clause embodies the principal recommendations of the Emslie Committee. That was a body created and appointed by me in November 1970 and I am glad that the results of the wisdom and experience of that Committee are now to be put into effect. I am sure all those who know Lord Emslie will be delighted, as I was, with his peerage recently announced in the New Year honours and will welcome him to join our House as soon as that can happen.
I should like to add this. A Secretary of State for Scotland, in the same way as the Home Secretary for England and, I believe, Wales, has the duty to consider individual cases where parole and reduction of sentence arise or are being recommended. Those can be difficult decisions. Often the trial judge from the original trial is no longer alive, or if he is alive, being elderly he is in no condition to remember the particular case should there be any question of consulting him. Therefore I think it would be an improvement, as I understand the Bill proposes, for the judge to make a recommendation at the time of the trial or to state why he is not making such a recommendation. It will certainly help Secretaries of State in the future.
Then I turn to vandalism and the new statutory offence which it is to be made. I understand that cases will be triablƏ summarily. Some commentators in Scotland are contending that this addition is not necessary and, if I did not misunderstand the noble and learned Lord, Lord McCluskey, today, he also said that this can be dealt with by existing law. That 58 may be so, but I take a rather different view from that taken by the noble and learned Lord and on this I agree with my noble friend Lord Selkirk. The fact that a combination of various enactment s makes vandalism a crime in Scotland is not apparent to many of the kinds of people who in fact commit it. Very often they are youths who are not familiar with the law and who carry out these acts at short notice and thoughtlessly. I assume that the intention of this clause is to make it palpably clear that it is a crime wantonly to destroy property, whether private or public. I am sure examples occur to all of your Lordships, such as public telephones, compartments in railway trains, private cars and house and shop windows. If the making of such diabolical behaviour, a clear, separate and identifiable offence, is likely to reduce its incidence, then I am in favour of it.
Most people will have had personal experience of such things. The worst event that happened to me was when a Mini of mine, parked in darkness in a small Scottish town, was smashed—windows and windscreen—and overturned. The culprits were caught and they pleaded guilty. As I remember it they went to borstal, but of course there was no financial remedy for me because they had no assets. I was not driving the car; it was being driven by my daughter at the time and I am thankful that she and the girl who was with her were not in the car. I think that, if they had been, the attack would probably not have taken place, but one always worries about that eventuality. In fact, it was sheer vandalism. There was no question of there being any identification with me. I was a member of the Cabinet at the time but the culprits had no idea that it was my car and normally a rather old Mini is not associated with Cabinet Ministers.
But that is not the only case. I am afraid that later on yet another Mini of mine was smashed in the park outside Inverness Station. That marred an agreeable expedition so far as I was concerned, because I had gone from Inverness to Edinburgh to perform the formal opening, at the invitation of Mr. Peter Diamond, of the James VI and I exhibition at the Edinburgh Festival. Of course it was most disappointing to me to return by the night sleeper to Inverness and to find that my car and four others had been 59 smashed up. I suggest that if the culprits knew, and there was publicity for the fact, that this kind of damage was a crime, it would help. We must make an effort to reduce that kind of thing.
Now I come to public vandalism. I know that the noble and learned Lord, Lord McCluskey, was probably thinking in terms of the dilapidated council estate in some city where vandalism occurs but where the housing has already gone downhill. I take an extract from my local newspaper, the Northern Scot, of 22nd December, only a few days ago:Hooligans vandalise play area. A wanton act of vandalism may cause Moray District Council to review their policy making play provision for toddlers in their housing schemes. This warning came from the council's recreation department yesterday. It followed the destruction of a Wendy playhouse. The equipment was installed on Tuesday afternoon and was untouched at 8 p.m. that night, but by the following morning it had been ripped off its concrete base and badly damaged".There is no excuse for that kind of thing, and I do hope that the clause in the Bill and the other parts of it affecting vandalism will cure that disease.
I come to the most controversial clauses, Clauses 1 to 5. I do believe, and I agree with earlier speakers, that they deserve careful examination and changes may well be necessary to improve them. I am aware of the concern in Scotland about them. They propose in particular powers of detention and search. Certain bodies are attempting to oppose the whole Bill simply because of these clauses, and that is ridiculous with a Bill of 80 clauses where it is already clear that a large majority of the technical parts are broadly acceptable. These bodies are, first of all, the Scottish Council for Civil Liberties, and, secondly, the Campaign to Stop the Scottish Criminal Justice Bill. There has been correspondence in the Scottish Press.
It is less easy to take their case seriously when one sees, for example, a letter dated 20th December, when the Bill had only been published the day before, the 19th, and my noble friend has told us that it was not available in Scotland until the 27th. Even less can one consider seriously another letter appearing in the Scotsman on the 18th, the day before the Bill was published, and dated the 12th, a week 60 before it was published. That one starts with these words:I am deeply disturbed at the astounding lack of publicity towards the Scottish Criminal Justice Bill which, as it stands at present, poses a grave threat to the freedom of the individual if certain clauses in it become law".It is even referring to particular clauses a week before they were presented to Parliament, and of course clauses can be changed in that last week; I have seen it happen. It does, therefore, cause one not to take that kind of letter very seriously. There are all the signs of a deliberate preparation of objections and letters for those who are prepared to take part in the campaign; there was an attempt at orchestration which was an obvious failure in the case of the letter of 12th December. It is rather like the character from the Dick Emery show, the son who says to his father, "Did I do something wrong, Dad?" The answer is, yes, he sent the letter 10 days too soon in that case.
Now I come to the power of search for the police in certain circumstances. This is a recommendation by the Scottish Council on Crime and this, as my noble friend has reminded your Lordships, was a body which I created when I was Secretary of State in April 1972 to study possible remedies and give advice. I do accept, where search is concerned, that there is a gap in the police powers in Scotland. Where there is strong suspicion that someone is carrying an offensive or lethal weapon the police are not so well placed in Scotland as they are South of the Border. I recognise that we are all concerned with personal freedom, but that includes freedom from being mugged or coshed. It is too easy in Scotland for the criminal who wants ready cash or credit cards, and there are cases every day in Scotland and South of the Border of robbery with violence or thereat of violence. It is an unattractice and dangerous feature of ordinary life at the present day. We all know of incidents.
Why then is there this campaign? I would like to remind your Lordships that searches go on at present. I myself would not mind if I was searched twice a day if it would help in any way to reduce the amount of crime entailing violence or the threat of violence, in particular assaults on women in order to snatch their handbags. But I am searched! I 61 am searched on average about four times a week, and this is because my life entails my flying between the airports of Inverness, Glasgow, Edinburgh and London and some others. I have had to submit to this for about five years. In the last five years passengers have submitted with resignation, and I think good grace, to personal frisking and minute examination of their personal luggage. This is an invasion of privacy and it is only recent. It has none the less been accepted by the public, because hijacking has, regrettably, become a hazard that cannot be ignored. So also has the increase in mugging and other forms of robbery with violence. It really is no good the Council for Civil Liberties arguing that members of the public have entered into a contract with the airline and that makes the difference where airports are concerned. The large majority of the travelling public are simply going about their daily business and air is the appropriate form of travel for them. If you live in the Scottish Islands, for example, Lewis or Orkney, it is the only way of travelling at times, certainly during the winter months. Whether it is a housewife, a businessman, an electrician or a farmworker, he or she has to fly. The same applies to other parts of Northern Scotland and the West of Scotland. So to split hairs on theoretical differences between intrusions into personal freedom I believe is nonsense. I suggest to the council that they should spend more of their time in trying to promote freedom from mugging.
I have news for both the council and the Campaign to Stop the Scottish Criminal Justice Bill. In the whole history of aviation there has been no case of hijacking between Inverness and Stornoway; nor in the whole history of aviation has there been a case of hijacking between Glasgow and Inverness, or even between Inverness and London. None the less we all submit willingly to this search. It is not even the police who examine us. I am sure that the security services employed at the airports are trustworthy and efficient, but passengers know nothing about them. For all we know they could have been very recently taken from the local employment exchange and given a few hours' training. In my own case I cause a slight sensation, because I have this metal caliper strapped to one leg, whenever I have to go through 62 one of those detector barriers, because I cannot walk without it—I have to be in a wheelchair if it breaks—It makes a sound like a gong, and one or two of the security men who have read the novel The Day of the Jackal, or seen the film, examine the caliper with great interest, because of course it was a metal crutch in which the rifle was disguised in that story.
If doubts about invasion of privacy occur, may I for one serious moment give another example. Travelling from London to Inverness recently, I found a friend who was having a package examined. It contained the ashes of his mother which were being taken for burial or scattering in the home area in the North of Scotland. I went to see whether I could possibly help in case there was any distress arising. In fact, there was no distress, but none the less those ashes were searched in case they contained some lethal object. I give that as an example. We put up with all this because of the fear of hijacking, although it has never happened on any of these flights. Let us therefore accept a minimal degree of inconvenience which is minimal in comparison in order to help ward off the attack upon us with a blunt instrument or a hold-up with a gun.
Then there is the anomaly of the powers that the police already have concerning the protection of birds. The police can search people to see whether they have stolen eggs, because that arises from the legislation. Indeed, in another place I was responsible with others, including the late Lady Tweedsmuir, for putting through legislation which has reached the stage where the police can search for eggs. That is important legislation for us in Northern Scotland. Several pairs of ospreys are neighbours of mine and there are people who want to get the eggs of the peregrine and young peregrine falcons, not overlooking the golden eagle. Therefore, search is unnecessary, but it is an anomaly that a policeman can have that power of search and yet not have the power of search for a lethal weapon. I mention in passing that tomorrow, the 16th, is the centenary of the passing of the first legislation for the protection of birds. I understand that the Post Office is issuing stamps in order to commemorate the occasion.
I turn briefly to the question of detention. This Bill proposes six hours, but the last 63 Bill of the Labour Government proposed four hours. Both Governments agreed in principle that there is a gap here which needs to be filled. The police in Scotland can invite someone to visit the police station, but there is no reason why anyone should accept that invitation. A criminal, or an intending criminal, will not do so—he is a person who knows that he does not have to do so. Anyone in your Lordships' House would, of course, go to a police station on invitation and help, but someone with evil intentions would not do so.
I think that this matter needs careful examination because, for example, if someone who is expected home does not arrive for three hours and he is someone of organised methodical habits, and there is no message when he would normally have telephoned and put through a message, it can be extremely worrying, especially if he is elderly or ill. So, the discretion which the police have, not even to inform a member of the family nominated by the person who is being detained, is something that needs to be looked into. I think that I understand the reasons behind this point. For example, if one of the Kray brothers were detained in this way the police would not automatically get in touch with one of the other Kray brothers as the relative to be informed, because clearly that would be in the nature of a "tip-off". I think that this matter needs to be explained in the Committee stage. One often hears the phrase in news items, "A man is assisting the police with inquiries". However, that is invariably in England and Wales, because at present it is difficult for that situation to occur in Scotland.
My last point concerns football hooliganism. I am in favour of measures to reduce it, as your Lordships will know from what I have said in this House on previous occasions. However, I think that some clarification is necessary on Clause 68—clarification of what are the duties of the bus or coach driver who has football enthusiasts with him going to the match. Despite very obvious notices, warnings and visual checks, a situation can arise in which the driver notices that someone is taking a swig. Many of us in Scotland are born with a certain conjuring ability which could be the envy of the 64 Magic Circle. We can cause to materialise from nowhere a flask or a shaped half-bottle of spirit. What happens if, on the journey the driver sees somebody produce such a flask which no one knew was on board? Does he have to stop? Does he have to pull in if he is on the motorway? Those are the type of matters which need to be looked into, because the responsibility must he made clear and it must not be too heavy upon someone like the driver.
I should like to say that when I was Secretary of State for Scotland, I found that the police were, on the whole, doing a very good job, often in difficult circumstances. I should like to mention in particular the Inspector of Constabulary in Scotland, Mr. David Gray, who must have been doing that job for at least nine years, because I understand that he is still doing it, and I am sure that he has been helpful to successive Governments. I should also like to mention Sir David McNee who, at the time when I was Secretary of State, was chief constable in Glasgow, and is now head of the Metropolitan Police. It was clear to me that both of them were determined to protect and promote a law-abiding society, and also to root out every shortcoming and corrupt practice that there might be within the police. In later stages we must surely try to strike a balance between protecting the public more effectively than at present, and intruding unnecessarily upon the privacy of a free society.
§ 5.27 p.m.
§ Lord GIFFORD
My Lords, much of the Bill deals with the powers and the procedures of the Scottish criminal courts, a subject which an English lawyer is supremely ill-fitted to deal with or comment upon. But, Part I deals with the circumstances in which it is permissible for police officers to interfere with the liberty of the individual to go about without restraint. There are no reasons why different standards should apply in one part of the United Kingdom from another. On the contrary, there is every reason why the standards should be the same. What is more, these very questions about the powers of the police are the subject, at this moment, of keen debate in England in the context of the Royal Commission on Criminal Procedure.
Considerable research has been undertaken by that Royal Commission into the 65 very questions with which the Bill deals, research which I understand was absent from the deliberations of the Thomson Committee and research which bears on questions like the psychological effects of interrogation in police custody and upon the practicability of tape recordings, and which is to be published during the course of this year. In the context of that Royal Commission English chief officers of police are demanding the very kind of powers which are being put into practice for Scotland in this Bill; and many organisations and individuals are engaged on the opposite side of that debate. We await with great interest the outcome of the deliberations of that Commission.
It is most regrettable that there should be no kind of co-ordination between the development of public debate in England and the development of public debate in Scotland. One would wish to see a uniform code emerge with all the material which has been put into this debate in both parts of the United Kingdom being used. But we have the Bill before us, and I suggest that we must look at it within the wider context to which many noble Lords have addressed themselves.
The cry that the police need more powers to deal with criminals is becoming all too familiar. It comes, of course, from the spokesmen and chief officers of police. It is taken up whenever serious crimes are reported by the popular Press, and it is echoed by politicians of both parties, particularly, it would seem, when they are in Government. I suggest that it is a highly dangerous cry. It lulls people into believing that all the disturbing manifestations and problems of social unrest, vandals, football hooligans and others who have grown up as the products of a society rife with unemployment and bad housing, can somehow be put in their place and be made to go away by giving more powers to the police. I hope that I am as much against football hooliganism as any noble Lord, but I do not think that any amount of extra police powers can effect the motivation which leads to such crimes.
I believe that the police already have too much power in our society and that the people have too little control over the police. The police have the powers to gather and to store unlimited quantities 66 of information about us on their computers. The police have the powers to set up quasi-military special units with ultra-modern equipment, such as the special patrol group in London. The police have powers, through the use of radio equipment and motor vehicles, to swoop in large numbers at short notice on scenes of trouble and disorder. Our society is being policed less and less by consent and more and more by fear, and I can see no effective channels for the control of abuses.
The trend was very forcefully and fearfully described recently in a lecture by Professor Stuart Hall, part of which was published recently in the Guardian of 5th January. He began his lecture with these words:We are now in the middle of a deep and decisive movement towards a more disciplinary and authoritarian kind of society.It is in that context that we should scrutinise a Bill which seeks to give new powers to the police. When we look at the Bill we find that the very first clause contains a frightening new power: to require, by force, the furnishing of a name and address by anybody, suspect or not, who a policeman believes may have information about an offence. The situation, which has pertained in England and in Scotland up to now, was summed up by the Lord Chief Justice, Lord Parker, in the case of Rice v. Connolly in 1966, in these words:It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest.When people are witness to some outrage or to some accident, they do help the police. They help the police because they choose to, and not because they are compelled to. To introduce compulsion into the giving of assistance to the police changes the whole relationship between police and public. Its effect on the public is that they no longer feel that they are helping of their own civic goodwill, but are answering some request from authority. The effect upon the police is that instead of asking for assistance, they are able to compel and require assistance. Human nature and the experience of police 67 powers tell us that the more powers the police, or anyone else for that matter, have, the more arrogance and high-handedness there will be in the use of those powers.
With regard more specifically to the proposals of Clause 1, there seem to me to be three burning questions. First, in what circumstances may the police require a non-suspect to furnish his name and address? The answer seems to be: in the widest possible circumstances, whenever a constable believes that a person has information; there is not even the requirement for reasonable cause, and it is in relation to any offence at all. Secondly, how will this possibility of detention for verification of name operate? Respectable people who carry bankers' cards or driving licences and suchlike will, of course, be all right, but the rest will no doubt have to hang about until some form of check can be made on some kind of record. No doubt it is envisaged that eventually we shall all be on some kind of record into which the local police station will be wired. It is a short step from there to the requirement that we should all carry identity cards so that we can answer these requests for names and addresses.
Thirdly—and perhaps most pertinently—what use will be made of the information which is thus required? It will no doubt be stored in the police computer. The request can be made of all the people at a public meeting at which a tomato has been thrown; all the people who frequent a club at which some offence has been committed. There is absolutely no safeguard as to what will be done with the records that are thus amassed about the people who are asked these questions. My plea would be to delete Clause 1 from the Bill, at the very least in so far as it affects people who are not suspects.
Then we come to Clause 2, the power of detention for questioning short of an arrest. As the noble Earl said, I am aware that the law of Scotland is different from the law of England; but the information I have been given is that it is not so different, that there are huge areas where there are similar powers of arrest in Engand and in Scotland. Be that as it may, the remedy would be to modify the powers of arrest in Scotland rather than to create 68 a new power which, I suggest, is an invitation to the police for abuse, an invitation to gather people in, after an offence has been committed, on a vague suspicion that they may in some way be involved; and thus subject them to the indignities of search and finger-printing and to the hazards of an interrogation, without the slightest safeguard being provided for them.
The safeguard that they are allowed to have a solicitor or relative informed is not a safeguard at all; as the noble Lord, Lord Campbell of Croy, said, at best it is a courtesy to the relatives, because there is no provision for the solicitor to be present during the questioning once he has been informed. Nor is there any provision for the verification of the questions and answers by the modern method of tape recording, which was recommended by the Thomson Committee and which is now being further researched by the Royal Commission. This omission seems to be a classic example of what happens to official committees. When Governments come to enact legislation, they always leave out the recommendations which protect the individual and put in the recommendations which protect authority, particularly when the protection of the individual leads to the expenditure of money.
I had waited for this debate to consider the question of Clause 6 and its apparent major inroad into the right to silence, thinking that perhaps there was some peculiarity of Scottish criminal procedure which explained why it was being introduced. There seems to be none. I find myself much persuaded by the arguments of my noble and learned friend Lord McCluskey and my noble friend Lord Foot that Clause 6 does, indeed, represent a dangerous departure, again not subject to any of the sort of safeguards which, for instance, pertain in the much more developed continental system of inquisitorial justice, where the answering of questions before a magistrate is part and parcel of a careful system of investigation.
No doubt the Bill will go through, especially as the colleagues in the other place of my Front Brench seem to have sold the pass on so many of the Bill's provisions. It will go through because the powers behind the Government seem to be stronger than the politicians who make tip the Government. There should, 69 in the light of today's debate, be introduced some standing order which requires that no measure which has been opposed by the Conservatives and is then introduced by them, and introduced by the Labour Party and then opposed by them, should ever be allowed to go through to the statute book. It would be a defence of the people against the power of those who stand behind the elected Government. But the Bill will not go through before those who oppose it have made the most strenuous efforts to whittle down the powers it contains, to introduce safeguards, and to resist the temptation to say, "Well, it does not really matter because it is only the Scots who are going to suffer". I take the view that human rights must be defended against attack wherever the attack may fall, because it so easily could be our turn next.
§ 5.42 p.m.
§ Lord TEVIOT
My Lords, normally it is customary in your Lordships' House to pass cursory comment on the speaker who has just spoken. I feel that I need to pause for one or two minutes before I go to the text of my speech. The noble Lord, Lord Gifford, spoke of an almost Utopian situation. He wants to see the police with great powers, and everything else, and the arguments he produced are very credible. But with the nature of the mid-three-quarters of the 20th century, and the awful things that we are surviving, in the main, that situation is not credible. I support a Government which submits proposals to free the individual. Nevertheless, I suggest to my noble friend that he follows the questions that the noble Lord has put to us.
Now I go on to my own speech, which is very short. I shall address my remarks solely to Part V of the Bill, which deals with sporting events, control of alcohol, et cetera, which Part I do not think has been dealt with in great detail so far. For this purpose I am wearing an old hat. Some of your Lordships may know that I was once a bus driver. I fully understand and appreciate the intentions behind these clauses concerned with public transport, but I am worried about certain of the implications and regulations to be imposed on coach operators and drivers. I am aware that some of the ground has already been covered by representations 70 made by the Scottish Council of the Confederation of British Road Passenger Transport, but nevertheless there are some matters that need further consideration.
Under Clause 66 the Secretary of State for Scotland will be able to designatea sports ground or a class of sports ground; (b) a sporting event, or a class of sporting event, at that ground or at any of that class of groundfor the purpose of Part V of the Bill, and thereby impose certain controls on alcoholic consumption. Clause 67 of the Bill goes on to penalise persons who are in possession of alcohol on public service vehicles which would convey them to such designated sporting events or grounds.
So far, so good, my Lords. But it is Clause 68, which imposes penalties on coach operators and their employees, or agents, which I should like my noble friend to reconsider. The operator, either by himself or by his employee or agent, may not permit alcohol to be carried on the vehicle. The clause implies that the coach operators may be exonerated from penalties if they are able to prove that they took all the necessary steps to prevent alcohol being carried on this vehicle. But, alas!, the driver is not able to do so presumably unless he can prove that he never received instructions from his employer. But that is a rather dog-in-the-manger situation which I shall only mention at this point but will come back to in Committee.
I am able to talk from personal experience, which is slight in this respect but varied, because for some six years I was employed as a driver and conductor on stage services. In the parliamentary summer recess of 1968 I was employed by three different coach operators to observe driver fatigue under provisions made in the controversial Transport Bill of that year (which became an Act) in the part which concerned drivers' hours. One's function as a driver of that particular vehicle was to transport passengers on behalf of one's employer as well as to act, if one can still use the word, as servant to those people one was actually carrying. It is true to say that while carrying out those duties as a driver one had to see that a certain amount of law and order was observed, in that no one passenger, or passengers, should be allowed to be a nuisance or a disturbance to others. 71 But one's real function was to take people where they wanted to go at the appointed time, and above all safely, which meant that one had to keep one's eyes on the road.
Therefore, I submit that it is unfair to place the driver in an intolerable position whereby he is physically or verbally supposed to stop such people carrying alcohol on their persons, for example in a hip flask or other container. I ask, is this driver or his employer supposed to search the passengers' possessions, or to make a search of their clothing before they board the vehicle? Your Lordships will know that it is quite possible for people to secrete a half bottle of whisky at least, or other spirit, in an overcoat, or in a hip flask in their trousers. It would be extremely difficult to make this type of search, and could be classed as an infringement of personal liberty even if it was deemed desirable in this instance. My noble friend Lord Campbell dwelt upon this matter, but I think it was on arms and not quite this position. I must also mention that the noble and learned Lord, Lord McCluskey, talked about going to rugger matches, and referred to taking a hip flask for that purpose. I hope he does not travel by public transport. A good driver who has had some experience should be able to maintain a rapport with his passengers, but there could well be circumstances which are entirely beyond his control. When they occur a driver is in a lonely position when an offence turns sour.
Furthermore, I should like to know how operators are to be informed of these designated sporting events. I gather that there are 900 operators in Scotland. For instance, there may be occasions in addition to inter-Scottish traffic when coaches have travelled from England and Wales, and on some occasions for great distances. Are these people supposed to disgorge their alcoholic containers from their persons into Gretna Green litter baskets, or wherever, when they cross the Border?
My Lords, in conclusion, I submit that as these provisions stand they are unworkable, and I would ask my noble friend and the Government to think again. The McElhone Report states in paragraph 39 that the existing law is insufficient to 72 control persons who are carried in passenger service vehicles from indulging in unsocial behaviour due to over-consumption of alcohol, and they wish to strengthen the arm of bus operators and drivers who are doing such a good job. That is absolutely right. I wish to further underline that the provisions proposed, for reasons I have already stated, do not do this, but further aggravate what is already a difficult position. After all, the police do have the requisite authority to deal with these situations.
§ 5.50 p.m.
§ Lord DAVIES of LEEK
My Lords, I apologise for intervening at this stage, not having put my name down to speak, but I shall be very brief because I wish to refer exclusively to Clause 68. Cutting out the legal language, because I am not a lawyer, though I have some understanding of analysis and semantics, this provision simply says that if the holder of a public service vehicle licence permits alcohol to be carried on the vehicle—the holder and, as the case may be, the employee or agent shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200".That is as clear as sunlight on a beautiful summer morning. But subsection (2) then says:Where the holder of a public service vehicle licence is charged with an offence under subsection (1) of this section by reason only of the actions of his employee or agent, it shall be a defence for him to prove that the alcohol was carried on the vehicle without the holder's knowledge and that he exercised all due diligence to prevent such carriage".In other words, if I own 10 buses in South Wales or Stoke-on-Trent I can easily say I had no idea that any alcohol was being carried on my buses. In other words, there is one law for the owner of the vehicle and another for the poor bus driver. My reasonable question to the excellent Lord Advocate is whether the Transport and General Workers' Union and the bus people were invited to discuss this matter.
In my view this law is unworkable. New Year's Day in Scotland is a wonderful time. Some dear old duck goes to the supermarket and buys three bottles, puts them in her basket and takes them on the bus. Will the anchorage of the law be brought to bear on that poor old lady who is taking liquor home to celebrate 73 Old Year's night? If the law is applied, that must be done and that seems to be making a fool of legislation. Or consider the situation when some of us come up from South Wales to a great rugger match at Murrayfield. Those on the bus are travelling with the expectation of seeing an excellent game against the Scots, who may beat us next season anyway. Is there liquor on Welsh buses when we come up from the valleys? What will happen to us when we get to the Border? Is there to be one law for the Welsh and another for the Scots? What about the freedom of the individual?
The more one looks at this provision in depth the sillier it becomes. I say that meaning no insult to the Lord Advocate, but the drafting of this needs much more care. Perhaps the noble and learned Lord will explain Clause 68. Will he, between now and Committee, reconsider the matter and in the meantime give the House some information on the subject? I am happy to support the remarks of the noble Lord, Lord Teviot, on this matter.
§ 5.53 p.m.
My Lords, I too apologise for speaking without first putting my name down, but there are a few points to which I feel I must refer, and the first follows what was said by the noble Lord, Lord Davies of Leek. I live very near the Scottish Border on the English side; differences in the legal system are important to us, and I should like my noble and learned friend to say that the Government are conscious of this.
There has been a certain amount of talk about drinking on buses, but what about drinking on trains? People go to football matches in trains as much as they go in buses. Last year I went to Carlisle railway station on a day when special trains were running through—I contacted British Transport Police because I wanted to see what the problem really was. What I saw was disgusting; broken windows, men lying in the corridors, and as soon as a train stopped at the station the doors were opened and people rushed into the station canteen and from almost every train there were one or two arrests of people trying to grab sandwiches without paying. Will 74 this Bill protect us from that? If not, there is room in Committee for provision to protect us from those things.
Secondly, I wish to refer to the stop, search and detain provisions in the Bill, although they are referred to under rather a different name. They have been set out in the Metropolitan Police Acts for a very long time. Most of the country has not had them, although the powers are included in some Private Bills and some of the bigger cities have them. Not long ago I was out at night with a police constable in one of the larger English towns where these provisions do not obtain. I asked the officer, who was in his middle twenties and with some service, whether it made any difference to his feeling of confidence and ability to do his job in a town where these legal powers did not apply as against the city where he had previously done duty. He replied that he did not think it made any difference to him; he thought that when dealing with people on the street there were ample powers in the more general legislation.
I do not often agree with the noble Lord, Lord Gifford, but I did on this one occasion and I am glad to say so. As I think is known, I have spent hundreds of hours, not just occasional evenings, with police on duty in the last few years and I was therefore interested in what was said by the noble Lord opposite about policing by consent and policing by fear. The police themselves in this country are never tired of saying how they police by consent, because otherwise they would not be able to do their job. In fact, there is a mixture of consent and fear in the way they carry out their duties. I am sure that any noble Lord who has been out with even the best intentioned and most reasonable and honourable police constables in the evening will agree with this. From time to time one comes on a group of lads making a row. The constable may say, "I think we should have a few words with them," and when he stops his vehicle a sense of fear on the other side is felt; and I am sure that is general throughout our larger cities. I do not say one can get over it, and I do not even know whether this Bill will make it much worse, but I am sure that at present it is wrong to say that policing is all done by consent because part of 75 it must, by the nature of the duty, include an element of fear.
Similarly, it is all wrong to give the impression that the police are accountable for everything. Of course they are accountable to the courts, as we all are, but there is a good deal in any police system which is not accountable and never will be. It is therefore important for us to ensure that we have as good a police force as can be devised. I would not want to exchange ours for any other that I have seen, but that does not disguise the fact—I have said this before—that we should do all we possibly can to revise the weaker points and do what we can to make a good force better.
§ 5.57 p.m.
§ The LORD ADVOCATE (Lord Mackay of Clashfern)
My Lords, I wish at the outset to express my gratitude to all noble Lords who have taken part in this debate for the constructive suggestions they have offered. This Government are deeply and fundamentally committed to the liberty of the individual. It is fundamental to that liberty that the individual should have a reasonable expectation of being free from crime, and the proposals made in the Bill, particularly those in Clauses 1 to 6, are intended to assist in protecting the freedom of the individual against crime.
As noble Lords will appreciate, I am not in a position to talk about the law of England and Wales or to make comparisons between the two systems in any detail. I noticed however that the noble and learned Lord, Lord McCluskey, said that from his experience of the criminal courts in Scotland, such powers as are proposed in these clauses—I am thinking particularly of Clauses 1 and 2 and not of Clause 6—were necessary, whereas the noble Lord, Lord Foot, explained that with 45 years of experience in the courts of England and Wales, such powers were not necessary. I do not think Lord McCluskey's experience extends quite to 45 years, but it is certainly very extensive.
§ Lord FOOT
My Lords, all I was saying was that in the course of my experience in the magistrates' courts of this country I had never come across a case where the police had complained in any way that 76 they were not able to fulfil their duties because some person was unwilling to identify himself. That was the limit of the comment I made.
§ Lord MACKAY of CLASIIFERN
My Lords, that is the point I am seeking to make—that among those with experience of practice there is apparently a difference of opinion about what seems to be necessary. One of the reasons for that may be related to the provisions that apply in England and Wales with regard to arrest. I noted, for example, that the noble Lord, Lord Gifford, suggested that if powers on these lines are necessary, it may be right to consider amending the provisions with regard to powers of arrest. We have tried to consider the matter as best we can in the light of the Thomson Committee Report, which was a very deep and varied consideration of the problem, and we have sought to follow the proposals that they have made in regard to this matter.
The Thomson Committee was set up a considerable time ago by the noble Lord, Lord Ross of Marnock, who was then Secretary of State, in association with the noble and learned Lord, Lord Wilson of Langside, who was then the Lord Advocate and we have every confidence that they would choose people of competence and people who represented a very wide spectrum of Scottish life. Indeed, I believe that the people they actually chose demonstrated that we were right, if we had such a judgment.
The noble and learned Lord, Lord McCluskey, suggested that when faced with a problem of this kind one has to consider, first, whether the powers are necessary. My submission to your Lordships is that in the light of both the evidence as canvassed in the Thomson Report and the experience of those who practise in the courts—and here I need go no further than cite what the noble and learned Lord, Lord McCluskey, has said—such powers are necessary. Secondly—and this, too, is important—these powers must be adequate. It is no use making a provision which does not properly meet the need that one is setting out to meet. Going only half way towards meeting what is required is inviting continuation of the present trouble, and I would endorse the criterion that the noble and 77 learned Lord has set out: that the powers are required to be adequate.
So far as that is concerned, it is interesting to see that all those who gave evidence to the Thomson Committee thought that six hours was a period that could he justified. The Scottish Council of Civil Liberties, who in this matter would, I think, be in favour of reducing such periods to a minimum, while against the principle of having the powers at all—and I want to make that quite clear—thought that if they were to be granted, six hours was a reasonable time. In the light of all the information we have thought that six hours was an appropriate period.
It is also necessary that the powers should be clearly defined. The present situation is not clear, as Thomson found, and as the noble and learned Lord's experience demonstrates, and we are seeking to set out clearly the powers that the police should have in this matter. The purposes of the examination are set out, and of course we shall be glad to consider most carefully any suggestions of noble Lords for improving the way in which the powers are expressed.
Next I should like to mention the question of tape recording; and perhaps this is an appropriate time to say that we must always learn from other experience. Reference has been made to the Royal Commission on Criminal Procedure in England and Wales and the work that they are doing. Of course, account will be taken of any information that is forthcoming as the situation develops, and perhaps that explains why today some people do not have the same view as they might have expressed six or eight months ago. So far as tape recording is concerned, the Government's attitude is that this is a matter which requires investigation, and shortly after the Government took office an experiment was set up, at a total cost of £37,000, so far as the actual equipment is concerned to see whether this is practicable. The experiment is being carried out by the Tayside and Central Police Force at Dundee and Falkirk police stations. We will monitor the experiment closely and consider the results very carefully. Of course, it does not follow that it would require legislation to make this practice the norm; that could be done by administrative action if 78 the tape recording procedure proves to be practicable.
May I now turn to the matter of judicial examination. The situation is that judicial examination has formed part of the law of Scotland for a long time, but probably because of the right of an accused person to give evidence on his own behalf it has not been much used since the turn of the century. The proposals in Clause 6 are intended to revive judicial examination, particularly for the purpose of giving an accused person an opportunity at the earliest possible time to state his position with regard to the matters in issue, as well as to consider any extra-judicial confession alleged to have been made by him.
It is proposed that the procedures should be governed by an Act of Adjournal, and an Act of Adjournal can be changed from time to time in the light of experience. Perhaps some of the criticism of this proposal made by the noble Lord, Lord Foot, is met by the idea that the Act of Adjournal will set out the questions which the prosecution will be allowed to ask. We certainly have it in mind that the form of the judicial examination should be fairly clearly set out, and it is certainly the intention that it should be brief. There is no intention to have a prolonged examination, but rather an examination on reasonably clear lines, which would be fairly brief, and it is intended also to give the accused person an opportunity as soon as possible to state his position on the major matters——
§ Lord FOOT
My Lords, I am sorry to interrupt the noble and learned Lord again, but may I ask him this: If, as he suggests, the object of the new Section 20A of the 1975 Act is to give the accused the opportunity of giving an explanation to the court, why does he not give that explanation in reply to questions from his own advocate? Why is he required to answer the questions of the prosecutor?
§ Lord GIFFORD
My Lords, can the noble and learned Lord tell us that by the Committee stage your Lordships will be given some details of the questions which it is proposed should be asked at the judicial examination?
§ Lord MACKAY of CLASHFERN
My Lords, as noble Lords appreciate, the 79 intention would be that the actual questions would be formulated in an Act of Adjournal which would be made by the court, but I certainly hope that we shall be able to give noble Lords a fairly clear indication of the type of question that we have in mind the prosecution would ask. The prosecutor would ask it simply because that seems to be the most convenient way in which the matter should be handled. The court would be in charge of the proceedings and at that stage the accused person would be entitled to legal representation, but of couse he might not desire to avail himself of it.
§ Lord McCLUSKEY
My Lords, this is an important matter, and if the Lord Advocate will forgive me for intervening, I should like to ask him to address himself to the question I asked. In particular, are we to be allowed to see the Act of Adjournal? As he knows, under the 1975 Act, the Act of Adjournal to be prescribed to deal with this matter is to be prepared by the judges. It does not require the consent of the Secretary of State; it does not require to be seen by either House of Parliament. But will the House in fact see the Act of Adjournal? Before we conclude our deliberations on this Part of the Bill shall we be allowed to see the Act of Adjournal in draft? In other words, before we pass this measure shall we know what questions are to be allowed to be asked?
§ Lord MACKAY of CLASHFERN
My Lords, I can certainly bring before your Lordships what I envisage the Act of Adjournal will be dealing with, and perhaps your Lordships will feel that one way of handling the matter would be to circumscribe the power which the court would have in the Act of Adjournal. That would be one way of dealing with the matter, if it commended itself to your Lordships. But in this area I think it is important to retain flexibility, and that is the reason why it was thought best to have this matter in an Act of Adjournal, the court holding the balance and being able to adjust that balance in the light of experience. As I said at the beginning, these are matters in which all of us learn. I do not think anybody has a reasonable claim to the fountain of all knowledge on these matters. We learn; 80 and, in the light of that learning, I think this procedure could be improved.
My Lords, those are the main matters with which I should like to deal with regard to this Part of the Bill. Some suggestions have been made that the powers to stop people and search for offensive weapons already exist; for example, that if Clause 2 is enacted the later power is not required. Surely this goes against the idea that one wants to affect the liberty of people as little as possible. If simply stopping them and searching them quickly on the street is sufficient, why have to take them to a police station, why have to arrest them? This is the purpose of this clause, to make it possible to search without going any further, and I would respectfully suggest that that is an improvement. To give the police a range of powers, none of which they would use unless it was necessary, is in our view the proper way to handle this matter. If they have adequate powers, then the temptation to abuse those powers is thereby greatly reduced. We would also suggest that the power to fingerprint is a very useful one, in that it may lead very quickly to a checking of the situation. A person under suspicion, once you have his fingerprints, may well prove not to be a suspect at all; and the sooner the matter can be checked, the better. So powers such as these are, I would submit, very reasonably given.
My Lords, perhaps I may now go on to mention one or two of the other matters which have been raised in relation to later provisions. So far as the compensation orders are concerned, I gather your Lordships welcome these. My noble friend Lord Selkirk wanted to make it clear that imprisonment would not be associated with these orders, and that the primary way in which they would be enforced would be by civil process. It is provided that civil process, civil diligence, will be available for the enforcement of compensation orders and fines, and in the Bill it is proposed to remove the difficulty. In the present law, if one uses civil diligence then the other method is incompetent, and conversely. We are seekine to remove that so as to make it easier to use civil diligence for the enforcement of these matters.
I now come briefly to Clause 68, which has aroused a certain amount of interest 81 in various quarters of the House. The clause applies only in relation to sporting events which are designated by the Secretary of State, and therefore, I think, would not apply to the lady going to the supermarket on New Year's Day to buy something for that day, if the supermarket were open. The clause is founded on making it an offence to permit alcohol to be carried; and the word "permit", as the noble Lord, Lord Davies of Leek, said, seems to be as clear as the sunlight—and I am glad that he finds it so. The confusion arises from subsection (2), and the reason for subsection (2) is that it might be suggested that an employer "permitted" through his employee; in other words, that the employer would be held as permitting something to be done if the employee whom he had put in charge of the vehicle permitted it. The intention of subsection (2) is to give the employer a defence in that situation.
So far as the employee is concerned, however, the employee would be liable only if he permitted the alcohol to be carried, and that would imply not only knowledge on his part but some acquiescence on his part in the carrying of the alcohol. Perhaps I could say that, in the consideration of these matters by the McElhone Committee, both the operators and the trade unions involved were consulted. The Transport and General Workers' Union, I think, were specially referred to, and were consulted at that stage. But here, as with the rest of the Bill, we shall of course be glad to give the most careful consideration to any suggestions for improvement that any noble Lord may have.
My Lords, I now turn briefly to the matter of appeals. The situation with regard to appeals is, I think, regarded as generally acceptable, from what I understand. The noble Lord, Lord McCluskey, suggested that retrial in indictment proceedings is inadvisable. We appreciate, of course, the difficulty in indictment proceedings, but the intention behind this is that this is a possible way for the court to deal with a doubtful case. If a case is doubtful as a result of a previous trial, it may be better to incur the difficulty that there is in a second trial rather than to leave the conviction standing. It is in that narrow sort of case that it seems to me that the court might regard retrial on 82 indictment cases as an option they should take.
§ Lord McCLUSKEY
My Lords, if the Lord Advocate would again forgive me for intervening, he will recall that in one or two cases in Scotland in the last few years there has been a contempt of court by a newspaper or a television broadcasting station which has said something about a trial before it has taken place. In at least one of these cases the High Court, in considering the contempt proceedings, has given an indication to the Lord Advocate of the day that he might not proceed with the trial simply because of the risk of prejudice. Given that the risk of prejudice might prevent a trial from ever taking place in these circumstances, does the Lord Advocate not accept that there is such a risk, a similar risk, in the kind of situation envisaged by the Bill?
§ Lord MACKAY of CLASHFERN
My Lords, so far as I know, the court in Scotland has never actually prevented a Lord Advocate from proceeding. I think the matter may be the subject of debate in a particular case soon, and therefore I do not propose to say anything more about it than that. But I would suggest that the situation in which you have a very narrow case which causes concern is a very difficult one, and we suggest that one option that should be open to the court (it will take account of all the circumstances in deciding whether or not to adopt it) is to set aside the conviction, allowing the Lord Advocate to re-indict if so advised. Of course, the court would first of all decide whether it should do that, but the Lord Advocate would also have to consider whether, notwithstanding that he was given that right, he should exercise it. I would envisage it being exercised in only very rare circumstances, but we believe it is an advantage to have this power in the court and to leave the court its discretion in deciding whether to use it.
My Lords, my noble friend Lord Selkirk asked a question about the judge's notes. The proposal is that the judge's report should be available to both sides, because it is felt that there is something unfair about the judge's report going straight to the appeal court without the accused person having a right to see it. Therefore, it 83 would be available to both sides; but that would in no way, in our view, affect its privilege. It would still be privileged, in the same way as a judge's pronouncement of judgment would be privileged.
§ Lord MACKAY of CLASHFERN
Certainly, if it is referred to in the course of the debate, it would become public, my Lords.
Now, taking account of all these matters, which I am sure will all be carefully considered by your Lordships when we come to the Bill in Committee. I would commend this Bill to the House as being a reasonable measure carefully adjusted to preserve the balance between the individual and the need to prosecute and convict the criminal; and I hope that the House will see its way clear to giving the Bill a Second Reading.
The noble and learned Lord, Lord Wilson of Langside, raised some questions about the resources now available to the Crown. All I can say about that is that they seem to be very necessary. I am doing my best to use them to the best advantage, but the flow of cases we have to deal with differs quite a lot from the flow of cases in the early days to which he referred. Initiatives have been taken to try to reduce the flow by looking at alternatives to prosecution, and a committee under the noble Lord, Lord Stewart, is considering that matter very carefully at the moment.
§ Lord WILSON of LANGSIDE
My Lords, before the noble and learned Lord sits down, may I ask him to go back to the question of the right of search? I understood him to suggest that the right to search given in particular in relation to the prevention of crime was simpler and therefore should be preferable to the more formal process of arrest. Am I not right in thinking that so far as arrest is concerned the advantage from the individual citizen's point of view is that he has a clear remedy in the event of the arrest being wrongful? Would it not be more difficult to establish a wrong in the event of a casual search by a police constable in the street?
§ Lord MACKAY of CLASHFERN
My Lords, I would think not. But in any case the wrong would be greater if the citizen had to be arrested and taken to the police station. That would be my view of the matter. I would suggest that, if all that the police wanted to know was whether their suspicion that a man was carrying an offensive weapon was correct and they could search him on the spot and discover one way or the other whether it were true—and, if it were not true, no further proceedings were necessary—that is preferable to having to carry him off to the police station to have all that done. I would suggest that that is a reasonable justification for these proposals.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.