§ 2.47 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Mansfield.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Earl of LISTOWEL in the Chair.]675
§ Clause 1 [Suspect or potential witness may he required by constable to identify himself]:
Lord FOOT moved Amendment No. 1:
Page 1, line 15, leave out paragraph (b).
§ The noble Lord said: In opening this Committee stage of the Bill I should like to point out that there are a number of amendments in my name and in the name of my noble friend Lord Wigoder. My noble friend is, I understand, detained elsewhere but may be able to be here later in the afternoon. Before I embark upon the amendments in detail, I wonder whether it may be permissible for me to make a few general comments in order both to put our amendments in the proper context and to draw to your Lordships' attention the difficulty that we have experienced in preparing the amendments which we have thought appropriate.
During the Second Reading of the Bill the noble Earl, Lord Mansfield, on several occasions went out of his way to emphasise that Clauses 1 to 6 of the Bill, which are the clauses with which I and my noble friends are particularly concerned, derive from the second report of the Thomson Committee, which was published in 1975. As reported at column 14 of the Official Report of 15th January, 1980, the noble Earl said that he acknowledged that some of the matters contained in the Bill, in particular these early clauses, Clauses 1 to 6, would arouse controversy. However, he said this:
…our proposals differ only in detail from
the Bill which was introduced by the Labour Government in the last Parliament; and he went on to say:
…both are firmly based on Thomson recommendations".
Elsewhere, he reinforced that point. At column 15, for example, he said:
The first two clauses …are derived from the recommendations of the Thomson Committee in its second report".
Then, at column 17, dealing with Clause 2—that is the clause which gives these new powers of detention and interrogation to the police—he said:
This is a necessary power recommended by the Thomson Committee …".
§ I draw your Lordships' attention to that matter, if I may, because what the noble Earl did not tell us on that occasion was that in a number of ways, some of 676 them of very considerable importance, the Bill in fact departs from the recommendations of the Thomson Report. What is more important is that in every instance where it departs from the recommendations of the Thomson Committee it reduces or abolishes the safeguards which the Thomson Committee had considered essential for the protection of the rights of the subject; and some of these safeguards were safeguards which the Thomson Committee itself described as essential. In the course of our deliberations on this Bill this afternoon and this evening I shall be seeking to draw attention to the many occasions on which this Bill indeed departs from the Thomson Committee recommendations, either by whittling down the safeguards that the Thomson Committee proposes or, indeed, by abandoning them altogether.
In the course of the Second Reading debate the noble Earl also spoke in somewhat severe terms of some of the people who have expressed anxieties about this Bill, and, if I may, I would quote to the Committee the words he used at column 18:
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".
I have to say that when the noble Earl speaks in that way about the people who have expressed concern about Clauses 1 to 4 and the powers which are given to the police under them, not only is he disagreeing with the people whom he describes as a vociferous and misguided group but he is also disagreeing with the unanimous recommendations of the Thomson Committee, who made it perfectly clear that they regarded it as essential that the further powers which they sought to give to the police should have safeguards built in for the protection of the rights of the accused or the suspect.
§ I am taking leave to mention these general matters at the outset for three (I suggest) important reasons. The first of them is that, in my humble opinion, the first eight chapters of the Thomson Committee's Report are a singularly useful and cogent argument on the question which has perplexed us all for many years: 677 the question of where you draw the line between the powers to be given to the police and the rights of the individual. Secondly, I do not myself dissent from the general proposition that in some important respects the powers of the police both in Scotland and in England and Wales are less today than they ought to be—are not, indeed, adequate. We live in a changing world, and it would be an odd thing if, in this world of high technology and the rest in which we live, the powers which were given to the police 50 or 100 years ago were sufficient to deal with the problems of modern crime. Therefore, I do not dissent from that view; and I am certainly not one of those who joins in a general condemnation of the recommendations of the Thomson Committee.
§ The necessity to give additional powers to the police in the pre-trial period is all the greater because in Scotland, as I understand it, you cannot take anybody into detention without arresting him; and, as a result, unless you employ irregular means there is no way in which the police in Scotland can legally interrogate a suspect without first of all charging him—and then, of course, all the safeguards about cautioning and the rest come into effect. Therefore, whatever may be the situation in England and Wales, I am satisfied that, on balance, it is probably necessary that certain additional powers should be given to the police in order to enable them legally to interrogate people who are still in the suspect stage and who are not yet arrested.
Finally, I should like to say that I also readily accept the general premise on which the Thomson Committee recommendations are based. If the Committee would agree—and this will conclude what I have to say, I think, in general upon this matter—I would quote from the introduction to that part of the Thomson Committee Report dealing with the procedures before trial. This was the way in which they saw their task—and I am quoting now from paragraph 2.02 of Chapter 2 of the committee's report. There they quote with approval what was said by Lord Wheatley in a case in 1967, when he said:
While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration, and in so far as police officers in the
exercise of their duties are prosecuting and protecting the public interest, it is the function of the court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicabilities of the situation and discount completely the public interest".
They went on, on what is one of the major themes of the whole report, certainly so far as the early clauses of this Bill are concerned, to emphasise that what they were trying to do is something we have all been trying to do for a very long time, and that is to strike a fair balance between the duties of the police in trying to prevent and indeed to detect crime, on the one hand, and the rights of the individual citizen, on the other.
§ It is on this account that I and, I think, my noble friends feel very considerable concern when we find that the balance which was proposed and set out in the Thomson Committee Report—a balance which they arrived at after long consideration, and which they arrived at unanimously—has not been maintained in this Bill; and, indeed, that when the balance has been tipped, as it has been tipped, it has always in this Bill been tipped in favour of additional police powers and against the safeguards which the Thomson Committee thought were essential.
§ I draw attention to this general matter for a particular reason. Perhaps I may explain this difficulty to the noble Earl, whereupon, I am sure, he will appreciate it. When we came to the task of devising what amendments we thought were suitable to this Bill and to these clauses, there were two ways in which the matter could have been approached. One of them would have been to propose amendments which would put back into the Bill the safeguards which Thomson recommended and which have been omitted. That is what we have attempted to do in Amendments Nos. 10 and 20. Those are two examples of the way in which we have by amendments tried to put back in the Bill what Thomson recomended.
§ But we are faced with this situation. Supposing that the Government reject those amendments and refuse to put back these safeguards into the Bill or, if there were to be a Division on the matter, we were voted down, what else can we do except to propose amendments 679 to the text of the present Bill which would cut down the powers which are given under it to the police? On Thomson's own argument, unless those powers are cut down and if the safeguards which Thomson provided are not provided, then we shall have a Bill which is very different from that which the Thomson Committee intended. I apologise for the length of that introduction. I hope it may serve to shorten what I have to say at a later stage of the Committee.
§ I now turn to Amendment No. 1 and, with the leave of the Committee, I should like to speak also to Amendments Nos. 1 to 9 with the exception only of Amendment No. 2. All these amendments are directed to one simple point. In passing, I should like to express my thanks to the noble Lord, Lord Ross of Marnock, who has been good enough to make some detailed amendments to my amendments to make them more intelligible.
§ What does Clause 1 of the Bill provide? It provides a new power whereby where a constable—mainly, I understand, in the street—sees an offence being committed or considers that an offence has been committed, he shall have the power to do two things. He shall have the power to detain and make to stay with him any person he suspects of having committed that offence, and also he is empowered to require that person to provide his name and address and to give any explanation that he may have to offer upon the matter which has aroused the constable's suspicion. The clause then goes on to do something quite additional to that. It goes on to provide that not only may the constable temporarily detain a suspect but he may also temporarily detain anybody who he thinks may have useful information about the suspected offence; and that, roughly, is the person whom I would regard as a witness—a perfectly innocent person, on the face of it, but one who happens to have been present or who happens, in the constable's view, to be in a position to give some useful information. The constable is entitled to require that person to give his name and address.
§ It goes further than that; because he can not only require that the witness stays with him until the witness himself has been identified, but can use reasonable 680 force to restrain the witness and to keep him by his side. If the witness (this wholly innocent person, as it must be assumed) either fails to give his name and address or gives an inaccurate name and address or fails to remain with the constable "without reasonable excuse", as the Bill says, then, in those circumstances, not only does the witness commit an offence for which subsequently he can be fined but also he is open to immediate arrest and to be taken into custody.
§ At the Second Reading of this Bill I sought to use an illustration of how this power could be used. I took the case of a police constable who comes across a vehicle that he thinks to be parked in an improper place. Because this clause applies to any kind of offence whatever—from murder down to a parking offence—in those circumstances the constable could turn to somebody, perhaps some old lady, who happens to be standing about and who may have seen the way in which the car was parked, and say to her, "I want your name and address". She may give it or she may not. He can then go on to say, "Not only do I want your name and address but you are going to stay here until I have had the opportunity to verify that what you have told me about your name and address is true". As I tried to point out at Second Reading, there are two possibilities. One is that the person complies, in which case he or she stands around until the police constable thinks fit to release him or her or has had an opportunity to verify the accuracy of the statement of identity; or the person may say—and, surely, reasonably and properly so—"I do not want to stay around here. I do not want to get involved in this. I had nothing to do with it. I have an urgent appointment and I do not want to stay with you here for as long as you care to detain me". If the person says that, he is open to immediate arrest and could be taken into custody for no better reason than a failure to give the information of identity or a failure to stay with the constable while he requires it. Indeed, the constable can seize the old lady, using reasonable force, and say, "You are going to stay here until I choose to release you"
I do not think that the implications of this part of the Bill have been properly comprehended even by the Government
themselves. There was the other day a letter from Mr. Rifkind written from the Scottish Office in Edinburgh to the New Statesman in which Mr. Rifkind was highly critical of an article which had been written by a Mr. Ditton. In that letter he said:
Mr. Ditton is now in a position to see his own mistakes by examining more closely the provisions of the Bill but perhaps I ought to correct some of his more glaring distortions".
Then Mr. Rifkind goes on to say:
A potential witness could not be detained. All that the Bill allows a constable to do is to keep a witness with him for the purpose of obtaining without reasonable delay his correct name and address".
That is transparently inaccurate because if the person does not comply with the police demand that person can be detained and arrested. If there are any misunderstandings of the purpose of the Bill, and of this clause in particular, the misunderstandings are not confined to those who express concern about the Bill. It is perfectly true—I do not attempt to dispute this—that in general the powers which are given to the police under Clause 1 are not very different from those which were envisaged by the Thomson Committee. I concede that at once. I admit there may be circumstances—they are exceptional—where proper police inquiries may be frustrated by the refusal of a witness to give his own particulars and to allow those to be investigated and confirmed.
§ The Thomson Committee used only one illustration to justify what they were recommending so far as witnesses are concerned. They took the case of a commotion or assault taking place in a dance hall. They pointed out that on such an occasion it might not only be important to take the names and addresses of those suspected of the assault, but also helpful if the names and addresses of other people present were taken. I concede at once the validity of that. It would be helpful in such circumstances for the police to have this right to demand the identity of persons and to arrest them if they do not give it.
§ I would judge that in the vast majority of cases the police are in no way frustrated by a failure of potential witnesses to give information about their identity. I said on Second Reading—and I repeat it now—that in some 40 or 45 years' experience of 682 practice in the magistrates' courts in this country I can remember no occasion when the police have complained that they have been unable to perform their proper function by reason of the fact that a witness refused to identify himself.
§ The question I ask about this amendment is: is it really worth it to provide these draconian powers over witnesses of this kind—something we have never seen before in our criminal law history—incurring all the animosity and odium which that is likely to incur for the purpose of dealing with the very few exceptional cases where there is difficulty in identifying a witness? We in the West Country are fortunate in having a very distinguished chief constable, Mr. Alderson—not to be mixed up with somebody of a similar name in Manchester. One of the splendid things and triumphant successes which have met the chief constable of Devon and Cornwall is what he calls his policy of community policing. He has emphasised over and over again that the police cannot satisfactorily perform the duties which are their responsibility unless they have the confidence and the trust of the community as a whole.
§ What is the point of giving policemen powers to say to a wholly innocent person: "If you do not tell me who you are and allow me to check up, I am going to arrest you"? What is the purpose of doing something like that? I suggest that for a very small gain under this provision which I seek to remove we are going to do irreparable damage to the trust and confidence which should exist between the police and the public. I beg to move.
§ 3.15 p.m.
Lord CAMPBELL of CROY
I am sure that the Committee is very grateful to the noble Lord, Lord Foot, for having very helpfully, in moving his first amendment, given some background to the reasons for the amendments which have been placed on the Marshalled List by him and his noble friend Lord Wigoder concerning the first few clauses in the Bill. I was glad to hear him say—because this is something which is common to most of us, judging from the speeches on the Second Reading and other comments that have been made—that he recognises that some additional powers are needed by the police in Scotland. It is important that 683 that should be registered and that is something with which I agree. I also agree that it is an exceedingly difficult and delicate matter to find precisely the right balance in formulating the new powers and also then in managing to draft them in a Bill with the greatest clarity. So we have a difficult task in trying to make sure that the first five or six clauses in the Bill are as right as we can get them.
The noble Lord referred particularly to the Thomson Committee and to Clause 4. Another body, the Scottish Council on Crime, consisting of 24 very distinguished persons of great experience from all walks of life in Scotland and with the noble Lord, Lord Hunter—a prominent and well-known Scottish judge—in the chair, also submitted a report in its memorandum of March, 1975—
§ Lord FOOT
I wonder whether the noble Lord will permit me to interrupt. I said at the outset that my amendments were directed to Clauses 1 to 6, and that of course includes Clause 4. But the noble Lord may have realised that I have suggested no amendment to Clause 4 of this Bill. The powers of search under that clause are right and correct.
Lord CAMPBELL of CROY
I am very glad to have elicited that, because the noble Lord will find that he said in his remarks at one point "Clauses 1 to 4". That made me realise that he has clearly addressed himself to everything that has been produced by the Thomson Committee, but he may have not realised—as is stated in the Bill—that the Bill is founded on the reports of other bodies as well. I felt that I must say something on behalf of the Scottish Council on Crime, because I had the responsibility of bringing the council into existence and appointing it in 1972. It reported to the noble Lord, Lord Ross of Marnock, and he wrote a very polite foreword to the report and congratulated the council upon its work and commended it for the study of everyone concerned.
The contents of Clause 4 are very similar to the recommendation in that report—on page 46—which, after having considered the balance between the need for police powers of search and the question of intrusion into the freedom of the individual, came down very 684 definitely in favour of powers of search. Simply for the record, if for nothing else, because the noble Lord has referred to one report and also to Clauses 1 to 4, I thought that this should be mentioned as well.
§ 3.19 p.m.
§ Lord ROSS of MARNOCK
We are not dealing with Clause 4 at the present time; we are dealing with the Thomson Committee recommendations. I am very glad that the noble Lord, Lord Foot, mentioned the Thomson Committee. I set it up; but when I go to the Printed Paper Office I cannot even get a copy of the report. That is the paper on which the most important matters are dependent, and it will be pleaded by the noble Lord the Lord Advocate, or the noble Earl. Lord Mansfield, in support of what they say. My noble friends on this side and the other side of the Committee will have to take for granted that what they are saying is right, because the report is not available; it is out of print.
This is a major change in Scottish law and it may well lead to a change in English law as well if all these matters are acceptable to our noble friends. The point is that we are dealing with it for the first time. The other place has not dealt with it. They have broached another Bill which is not exactly the same as this, and so there has been some discussion. As a matter of fact, in the other place there was a Motion on the Order Paper complaining that this was being dealt with by your Lordships. If it is going to be dealt with by us, we ought to have had the benefit of the Second Report of the Thomson Committee. There are three reports and the one we are concerned with here is the second one, particularly as regards these particular clauses.
I want to deal purely and simply with the amendment before us to delete Clause 1. paragraph (b). I also have an amendment to that as well which follows through to page 2, subsection (2), and another amendment proposing an alteration to subsection (5). What I am concerned about now is not the power of detention in respect of someone who is reasonably suspected, which is a subjective judgment by one policeman. In fact, I wonder how the drafting of this is going on, because we start with one policeman 685 and then we talk about "the policeman". I presume it is that policeman who has got to do all this work on his own. That is what the law says and it is the law we are making, so I hope that somebody is looking at the drafting in respect of all this. But my concern is for, as the noble Lord, Lord Foot, said, the witness. This is new. What the Thomson Committee says in this area—and it is a shame that I should quote this Committee and no one can verify it—is:We recommend that the practice of inviting persons to the police station should be regularised".The police have no power to do this at the present time, but they are doing it. They go on:We are convinced that it will continue if the law remains unchanged".They will do it anyway, and it can be controlled only by being recognised and made subject to clearly defined limits. There is an argument in relation to that but that is a relation to detention. This does not apply to a witness.
What is going to happen to the witness? He must give his name and address and he must wait while the policeman verifies that name and address. It may well be that someone like an old-age pensioner mentioned by the noble Lord, Lord Foot, will have his pension book with him, but I do not know whether that is going to be verification. A motorist, of course, may have his driving licence; but it is not up to what they think is reasonable, it is up to "the policeman".
Then there is something in the drafting that a person has:…to remain with the constable during such time as the constable may find necessary—(i) to note that name and address and any explanation proferred;".Does that apply to the witness as well?-because the basis of holding a witness is that in some way or another he can help the police. But that explanation may take some time, and I can remember a number of cases where it has taken quite a long time. Even a fortnight ago a case came to my notice of a person who was awakened in the middle of the night and asked to go out and verify that it was his car. Having done so and having assured them that the car had not been broken into, opened and nothing taken away, he went back to bed and was awakened again and told that a report was wanted. The police wanted to 686 take the car away for fingerprints. It was only after some argument that they agreed he could take it to his local police station and not be deprived of it for three or four days. There is a tremendous amount of inconvenience involved in this; this is being done without power.
What will be the attitude of the police when they have this power? Is it necessary and is it desirable? It is fair enough to say perhaps that they should give their name and address. Most people would. But then the question of waiting arises. A person may be pressed in relation to business. It is not up to him whether he thinks his excuse is reasonable: it is up to the police. But the police can detain him, using force—and this is in the majority of cases at the present time where people are quite prepared to help the police. What will be the result of this? Not only can they use force but the man can be fined up to, I think, £50 and arrested on the spot. I think this is going a bit far. I do not know whether the noble Lord, Lord Foot, would agree with me, but my amendment leaves out this as it affects the witness and in respect of using force and of being liable to a fine and summary conviction.
When we come to the question of witnesses and co-operation for the police, I do not think we will get it by this kind of legislation. We have the obligation to put name and address, yes. But then you go to the question of allowing a policeman to use force to detain a witness, and then there is further fear in relation to a fine of £50 and immediate arrest—and remember, after all, that this is done. The witness cannot be compelled to give evidence in support of the police. In many cases the result of this treatment is that he will not give evidence in support of the police. I hope that the Lord Advocate will look at this from a practical point of view and think again, certainly about (2)(a), the amendment to subsection (2) and the insertion of "(a)"in line 23, page 2, which is limiting this to the question of the person detained on suspicion. I think the treatment of witnesses here is quite unjustified and will be counterproductive.
§ 3.27 p.m.
§ Lord GALPERN
I am sure that noble Lords will know full well that it is universally accepted that every police force 687 in the country is suffering from a deficiency in numbers, and it is generally recognised that if the police forces can be brought up to what is regarded as proper strength the incidence of crime would be substantially reduced. The most recent cutting I have of this aspect of the matter concerned the chief constable of Inverness, who said that due to their additional police presence the number of break-ins was beginning to show a significant decline.
If it passed into law, what effect will this clause have upon the utilisation of the members of a diminished police force? I can quite envisage a situation where, in one of the housing schemes, a gang of youths will get together—six, seven, eight or 10 of them—and one will create a bit of a disturbance to distract the attention of the policeman who is passing by; and all the other members of that group are potential witnesses, according to this particular clause. Therefore, the policeman is charged with the duty of going round all the other nine, taking their names and addresses, checking their identifications—and all this refers to a situation where housebreaking is going on, pre-arranged, in the same area while the policeman is busy confirming the names and addresses of all these witnesses at the same time as they have arranged for a housebreaking to take place when the policeman is no longer available.
The whole factor, in my opinion, rests on the fact that we should reject this particular clause or at least support the amendment of the noble Lord, Lord Foot, because it is going to deploy a diminished police force in doing work which is inimical to the best interests of the general populace. Therefore, I hope we shall be able to reject it this afternoon.
§ 3.30 p.m.
§ Lord GIFFORD
I have tabled my intention to move that the whole of Clause 1 be deleted, but since by far the most sweeping, innovatory and objectionable part of Clause 1 is covered by the various amendments which have been put down in the name of the noble Lord, Lord Foot, I think it is appropriate that the greater part, at least, of what I have to say about Clause 1 should be said upon the noble Lord's amendments.
688 I suggest to the Committee that the power given in Clause 1 to detain possible informants or possible witnesses to an offence constitutes one of the most immensely far-reaching powers of surveillance and control over our lives which has ever been given to the police in these Islands. It is wholly unwarranted, because when the request is made in reasonable circumstances to a citizen to give his name and address the citizen will normally give it, if he has information to give or is ready to be helpful. But if for some reason he is not ready to give his name and address—for example, because he thinks the request unreasonable, because he does not want to be involved, because he is a little drunk, because he is out with a girl friend or for whatever reason he may have in his mind—then it is not going to profit the police anything to have that name and address in their notebooks, because the citizen is not likely to be particularly helpful to them.
In the debate on the Second Reading of the Bill, I posed a number of questions and I make no apology for posing them again, in the hope that they may get some kind of an answer from the Government Front Bench, which they certainly did not get on Second Reading. First, what are the circumstances in which this power is to be exercised? Is it right that it can be exercised in respect of any offence, be it parking, be it illegal drinking after hours, be it obstructing the highway, be it on a picket line, be it selling newspapers or something of that kind? To judge from the drafting of the Bill, that is right.
Secondly, what has to be in the mind of the police officer before he uses this power? As drafted, the Bill says that this request can be made of anyone "who the constable believes has information". There is no requirement as to reasonableness on the part of the police; there is no requirement as to the seriousness of the information or as to the kind of information. It is a blanket power. It is no good the noble Lord who is to reply for the Government, saying that the power will be used only in reasonable circumstances, because if powers are given to police officers they will lawfully use them. The whole history of the granting of new powers short of arrest is that, in the event, they are used far more upon those who are innocent than upon those who are guilty. 689 One has only to look at the statistics of searches under the Misuse of Drugs Act powers, or at charges laid in consequence of the Prevention of Terrorism Act powers to know that any such powers given to the police inevitably impinge far more upon those who are wholly innocent than upon those who are at all guilty.
Then one moves on to the next question. How is this detention for verification to be effected? How long is it likely to take? What do the police have in mind for verification of someone's identity? What steps is it proposed they should take if a driving licence is produced—which may not be good enough for the policeman because it could be stolen—or if an address is provided which turns out to be a real address, but it may not be that the person before the police officer is, in fact, the person who lives there? There is only one sure way of ensuring that some verifiable proof of identity is provided, and that is to require people to carry identity cards with photographs upon them, as we do when we enter the Houses of Parliament. Is that the direction in which the police would have us go? Otherwise, I fail to see—and I ask the noble Lord who is to reply to tell us—how it is proposed that this detention for verification is to work.
Finally, I asked on Second Reading what was to become of the vast amount of information which could be obtained by the use of this power. All kinds of names and addresses could be put into police notebooks in consequence of the use of this power—all those who frequent a particular club where some disturbance has broken out, all those who were to be found on a picket line or all those who were attending some public meeting where there was some kind of an offence committed. We know well that the powers of the police to store information, and then to have it readily obtainable through the use of computers, is growing all the time. The police themselves say that detection is largely a question of having the right information at one's disposal. I challenge the noble Lord who is to reply to tell us that information about people's names and addresses, obtained in certain circumstances—if the police think it proper and useful—is not to be stored up on a computer and used to their detriment, if the need arises.
690 Before I sit down, I would address only one plea to my noble friends on the Front Bench. I urge my noble friend Lord Ross of Marnock and my other noble friends to support the amendments which the noble Lords, Lord Foot and Lord Wigoder, have put down. The amendments which have been put down by my noble friend Lord Ross do not go to meet the evil which he himself recognised was likely to flow from this new power. That is because, if the amendments of my noble friend Lord Ross alone were taken up, one would have a situation where the police could lawfully require a person to remain and to give his name and address, but they would not be able to use force or have any particular sanction if the person refused, which is rather an absurd position. It is much better that the whole reference to potential informants should be excised from this clause, if the dangers to which he and I have both adverted are to be avoided.
§ 3.38 p.m.
§ Lord McCLUSKEY
If I may respond from this Bench to what my noble friend has just been saying, and deal with matters generally. I think we are in some difficulty as a result of being asked to take nine amendments together when the merits of the amendments are simply not the same. First, owing no doubt to difficulties in obtaining copies of the report referred to, the matter is perhaps not yet as clear as it might be, and I hope by quotation from the second Thomson Report to make the matter clear. The Thomson Committee was set up in 1970 and deliberated for a total of some seven years, but after nearly six years it produced the second Thomson Report which is the one giving rise to this part of the Bill. It dealt with the detention of suspects, and that is largely covered by Clause 2. It dealt separately in Chapter 6 with the detention of witnesses, and I should just like to quote from Chapter 6 in the absence of copies of the report. It stated:We do not propose to alter the law so as to require a person to give a statement to the police, but we agree with most of our witnesses, including the Scottish Council for Civil Liberties, that there should be a legal duty on anyone the police reasonably believe to be a potential witness to give his name and address. Failure to do so or the giving of a false name and address should be a statutory arrestable offence691 That was the unanimous report of an extremely distinguished committee which contained a number of people who have never had any connection whatsoever with either the police or the prosecution service. On the basis of that unanimous recommendation, when we were in government we introduced provisions to allow the detention of a witness for the purposes outlined in this clause. It is right that I should say that. Those who look at the Bill which was introduced in the last Parliament by my honourable friends in another place will see that our powers were along these lines.
It has been said, and said with some cogency, that these powers can be abused. Your Lordships have been given the example of an elderly lady being arrested and of force being used upon her because she declines to give her name or because her name cannot be checked when a tragic offence has been committed. Of course, all things are possible. All powers given to the police are capable of being abused, but if we do not give sufficient powers to the police the absence of power causes a situation from which abuse can grow.
The whole thrust of the Thomson Report was this: let society make a judgment as to what is reasonable and proper in the circumstances; then let the law define the position—what the powers of the police shall be—and then let the courts ensure that those are the powers which the police have and that they do not abuse them. I have the utmost confidence that when the powers are sufficiently defined the courts will have no difficulty and no hesitation in ensuring that the police are kept within the limits of the powers which we in Parliament have defined. That is the intention of the Thomson Report. In my submission, it is an intention which we can accept. We can say: "Of course these powers can be abused, but they will not be". In case they are abused, I have put down an amendment suggesting that in three or four years' time Parliament should look again at these clauses so that if at that stage it is found that the powers have been abused they can be taken away.
There is only one difficulty with which I am left in relation to the first amendment. I am afraid that to some extent one has to look at the nine amendments separately. 692 The first amendment relates to the deletion of paragraph (b) in subsection (1) of Clause 1. I would invite your Lordships' attention to the wording there, which follows similar wording in Clause 1(1)(a). This wording permits a constable to require a person to stay with the constable in order that the constable may take a note of his name and address and verify the name and address. But where is it that the constable may exercise this power? If I may quote from the Bill:any…person whom the constable finds at that place…that is to say, at any place where an offence is being committed, the locus of the crime; that is all right—…or at any place where the constable is entitled to be …Now that is going very far. Certainly it goes further than our Bill proposed and it also goes further than the Thomson Committee proposed. Because where is a constable entitled to be? I live in a nice street in Edinburgh called Cluny Avenue. If a constable comes to my door, knocks on it and says, "A crime has been committed in your street; can I come in and speak to you?" I will certaily admit him into my house. He is then entitled to be in my house. If he finds my son, or my guest, or my son's guest, or anybody else in my house, then the constable, under this clause, is in a place where he is entitled to be. He could then demand the name and address of any person who is there and could require him to remain with the constable for long enough and he would be entitled to use reasonable force. I think that that is going unnecessarily far.
Our Bill suggested that the constable could exercise this power at the locus of the crime or in any public place. The only place mentioned in the Thomson Report is a dance hall, which is a public place. One would have thought that the Government might have been content with that rather than with the much wider power.
The other thing which is slightly odd about this is that there is no restriction about time. When a constable has reasonable grounds for suspecting that a person has committed an offence, which may have been committed six months before, and he finds any person in any place where the constable is entitled to be, he may detain that person. This is extremely 693 widely drawn. However, I suppose that the police can properly be trusted, in the light of my general observations, not to abuse this power, though it may be that the Government ought to look again to see whether it can be more tightly drawn in order that it may give effect to what the Thomson Committee recommended.
I would not, in the circumstances, support these nine amendments. However, I should like very briefly to express my views upon each of them once we come to each. I think that the noble Earl may find that it is necessary to do the same.
§ The EARL of MANSFIELD
Just to clear up a possible doubt, I believe that the noble Lord, Lord Foot, said at the opening of his remarks that he was not speaking to Amendments Nos. 2 and 3.
§ Lord FOOT
I was not speaking to Amendment No. 2 because that deals with another matter. However, while I am on my feet, may I say to the noble and learned Lord, Lord McCluskey, that the effect of my Amendments Nos. 1 to 9, excluding Amendment No. 2, is simply to remove altogether the witness from the exercise of these powers. That is the whole purpose of my amendments and that is the extent to which they go.
§ Lord HARRIS of GREENWICH
I should like to comment on this group of amendments which we are discussing. In moving them, the noble Lord, Lord Foot, made, as always, a moderate and reasonable speech. I do not think that on many occasions in the past I have differed substantially from the central thrust of the noble Lord's speeches on matters of this kind, but I am bound to say that today he did not carry me with him, largely for the reasons which have been given by the noble and learned Lord, Lord McCluskey. However, I very much agreed with what the noble Lord said about the chief constable of Devon and Cornwall, in the light of a particularly objectionable attack which has just been launched upon him. Anybody who knows anything about community policing in Devon and Cornwall—as does the noble Lord, Lord Foot, and I am glad to say that I know something about it, too—regards the statement which was recently made on this matter by an honourable gentleman in another place as particularly mischievous and as 694 bearing absolutely no relationship whatsoever to the facts.
I apologise for the fact that I am going fairly wide of this group of amendments, although a number of other speakers have already done so. I think that the issue before us today raises a matter of substantial importance and also questions of great difficulty. Indeed, the noble and learned Lord, Lord McCluskey, has alluded to one or two of these in the speech which he has just made. I accept that it is essential to give adequate protection to the criminal defendant or to a person who is in the kind of situation which is envisaged in Clause 1 of the Bill. The question, however, is how do we keep a reasonable balance between the rights of the accused and the need of society to ensure the conviction of the guilty? It is exceptionally difficult to get this balance right.
Some people, I know, believe that the powers which are already available to the police—the noble Lord, Lord Gifford, confirmed this in the speech which he made—are both harsh and oppressive. Many others, including inevitably a very large number of people in the Police Service both in England and Wales and in Scotland, regard their present powers as seriously inadequate. It is only fair for me to say at the outset that I tend to lean towards the second of these two views. I hope that my own dedication to the cause of civil liberty is at least the equal of that of any other Member of your Lordships' House. However, I believe that there are significant dangers in allowing the situation to which I have referred to continue. In many respects, I believe that the powers available to the police are inadequate. The matter is dealt with in this Bill so far as Scotland is concerned, and of course the Royal Commission on Criminal Procedure is at the moment looking at the question of the powers available to the police in England and Wales.
Everybody who takes the view which I have just expressed would accept, I hope, that any change in the law of the kind which seems to be envisaged in this Bill must be justified by substantial evidence. I believe that so far as this Bill is concerned that evidence in most respects is available in the reports which have formed the basis of the Bill. I am bound to admit that I was a little puzzled, as 695 perhaps a number of other Members of your Lordships' House also were, by the letter which appeared in The Times today from the President of the Glasgow Bar Association, Mr. Desmond Queen. He wrote, if I may quote him:The incorporation of recommendations from so many committees in one Bill (arguably the most important piece of legislation on matters criminal in Scotland this century) causes justifiable concern. That concern—despite the reported remarks of Lord Mansfield—is vociferous but by no means misguided".I should now like to say two things about that letter in The Times First, why should there be any concern that so many recommendations of various committees should be incorporated in one Bill? It seems to me to be both right and sensible that this should have been done and, in any event, people really cannot have it both ways. Normally—and I am glad that we have here my noble and learned friend Lord Gardiner, who always takes a very keen interest in matters of this sort—the complaint is made, and sometimes justifiably, that recommendations made by committees are ignored by Governments. Now the complaint appears to be that recommendations are made and then are acted upon by Governments.
The second point made by Mr. Queen is that the concern to which he referred is vociferous. That does not surprise me in any way. I fear I am no longer surprised by the fact that many who regard themselves as radicals become Conservatives overnight when any proposal is made to change the criminal law. I was at the Home Office between 1966 and 1967 as personal assistant to the then Home Secretary, and I recall from that period of about 21 months the fierce row which was provoked by our decision to move away from the principle of unanimity in jury trials. I should tell the Committee that there was powerful evidence to justify that action. Not only were trials being aborted after weeks or months as a result of the refusal to convict, on absolutely overwhelming evidence, by a single incorrigible juror, but we also knew that a number of sophisticated criminals were becoming expert in tampering with juries. Nevertheless we found fierce opposition to that proposal. We were opposed both outside Parliament and within it.
696 The Committee has just heard a speech by the noble Lord, Lord Gifford, in which he said that the recommendations in this Bill are among the most far-reaching—I think he used rather more extravagant language than I am using—that have ever been put before Parliament. That is what was said about the proposals which we put forward to another place and to this House at that time. A former President of the Law Society said that our proposals were based on the insufficiently considered hunches of a few eminent men and arose from—and I quote—"a state of near hysteria". The civil liberties organisation said that the public confidence in the administration of criminal justice would be badly shaken if the principle of unanimity were abandoned. Then, The Times said:Confidence in the justice of criminal proceedings can only be impaired by the abandonment of a principle of unanimity in a society which has known no other for 600 years".In Parliament we were fiercely opposed by Members, perfectly justifiably according to their views: from Members on the Government side of the House and also from many Conservative lawyers. But I am glad to say that we received the doughty support of the present Lord Chancellor, the noble and learned Lord, Lord Hailsham of Saint Marylebone.
The change was made. I think it is only right to recognise what actually happened as a result of these changes, and it is highly relevant because exactly the same predictions of imminent doom are being made so far as this Bill is concerned. Did English justice as we knew it come to an end overnight? Of course not. All the wild predictions of disaster were proved to be almost entirely baseless. I know of no one who now seriously suggests that we should turn the clock back and return to the principle of unanimity. As I have said, exactly the same exaggerated claims are now being made both in Scotland and here; and, if I may say so, a fair illustration of that was the speech made by the noble Lord, Lord Gifford, in speaking on Clause 1 of this Bill. And I think they will prove to be equally misplaced. What is suggested so far as the overall proposals in this clause are concerned I consider to be generally sensible and worthwhile. I certainly would not at the moment wish to take any view on the 697 matters raised by the noble and learned Lord, Lord McCluskey, on the drafting of this clause, where indeed there may be some significant justification for the points which he has made.
In conclusion on this particular amendment, replying to the noble Lord, Lord Foot, if it is said, as I understand it was by the noble Lord, that in the whole of his experience as a lawyer in this country he has never known a case where a witness has refused to give his name, that only proves one thing and that is that presumably this power will not be used in Scotland at all and therefore no particular problem arises from it. But if I may say so to him, a very large number of police officers, in England and Wales and in Scotland, would in fact disagree with him. They would say that this is a significant problem, and I believe it is right to deal with it in this Bill. Broadly speaking, I think Clause 1 is about right and I certainly propose to support it.
§ Lord FOOT
Before the noble Lord sits down may I correct him. I said no such thing. I did not say that in the course of my experience as a lawyer I had never come across a case where anybody had ever refused to give his name and address. Of course I said nothing so stupid. What I said was that I could not recollect any case in which the police had complained that their proper activities had been thwarted by the refusal of a witness to give his name and address.
§ Lord HARRIS of GREENWICH
All I would say to the noble Lord is that I do know of a great deal of evidence that the police have been thwarted. I had a great deal of knowledge of this when I was a Minister in the Home Office for five years.
§ 3.58 p.m.
I had not intended to intervene at this stage. I was waiting with some expectation to hear what the justification was for this clause from the Government Front Bench, but no doubt we shall get that in due course. Basically all that I have heard are reasons why this power should not be granted, as against the general proposition that there are justifiable reasons for its being there. I intervene at this stage to indicate one 698 reason which in my personal experience could justify the inclusion of Clause 1(1)(b). That is an experience on the Bench which now extends to 26 years, so I can pray in aid a certain amount of experience of these matters.
The noble Lord, Lord Foot, was good enough to quote a passage from my judgment in the case of 1967, which was the basis, I think, on which Thomson proceeded and I would commend to the Committee the basis on which this House proceeded. As has been pointed out, the problem is defining with clarity and exactitude—and in this I agree entirely with the noble and learned Lord, Lord McCluskey, that it is a problem for the draftsman because I think it is only the principles which we can enunciate and it is for the draftsman in due course to give effect to these principles. But why can it be said that Clause 1(1)(b) is necessary when trying to strike this balance between the interests of the individual and the interests of the community?—because basically we must look at the functions of the police as people who are acting in the interests of the community and in the interests of the law-abiding citizens in the community.
Every rule of law in a civilised country encroaches to a certain extent on what have been called personal or civil liberties. Even the Ten Commandments do that. The antithesis of that is anarchy. I think it was properly pointed out by the noble Lord, Lord Foot, that as civilisation proceeds and society develops different considerations may have to be applied at different times. We have to consider this matter at a time when, unfortunately, there is an ever increasing growth of crime at all levels.
What are the difficulties that confront the police? They are many. But may I tell your Lordships that my experience, so far as witnesses are concerned as they have appeared before me in the courts of Scotland, is that the two chronic diseases are not heart trouble or lung cancer, they are myopia and amnesia. The police are constantly being faced with the difficulty of getting evidence—not evidence necessarily for a conviction, but evidence in relation to the offence that has been committed.
The other difficulty, again foreshadowed by the noble Lord, Lord Foot, is the unwillingness of people to get involved. This 699 is a tremendous problem. I remember presiding over a murder trial, and the murder took place in a public street in Edinburgh where a bingo session had just erupted. The place was full of people and a most brutal murder was carried out; the man died after being kicked and kicked by three young hooligans. Of all that mass of people the only person who intervened, and the only person who was prepared to come forward and give evidence, was a young married woman aged 21. The rest of the citizens just did not want to become involved. I think perhaps the main justification for Clause 1(1)(b) could well be that it will enable the police to involve at an early stage people whose names and addresses they know as witnesses and not let them just pass into the night because they do not want to become involved.
There are many other reasons, but I think we have spoken long enough on this matter. I think on principle this is justifiable, but whether further safeguards need to be built in is a matter for your Lordships' consideration, and I trust that the Government will have regard to what has been said in that regard.
§ 4.3 p.m.
§ Lord HALE
I only wanted to seek information. The discussion, and in particular the speech of the noble and learned Lord, Lord Wheatley, referred to very violent crime, and one can understand the argument in that connection. It is a great pleasure to hear his voice and see him here again. The noble and learned Lord, Lord McCluskey, twice referred to the place of the crime. I do not know what is the meaning of the word "crime" in Scottish law; I know it was always rather different from English law in all these connections. My noble friend Lord Foot, if I may be permitted to say so with sincerity, did say that this applies to every offence, even to breach of bye-laws if you have them. It applies to parking a car; indeed other speakers have described this as applying to parking of cars. I can well understand these powers in relation to the bombing in Birmingham and I would think that they would be very desirable. I think the clause could possibly need redrafting with regard to the one policeman when it comes to dealing with serious crime involving a substantial number of people; it cannot be done by one policeman.
700 The noble Lord who spoke with such distinction for the Home Office under the Labour Government referred, I thought rather irrelevantly, to the discussion on the majority verdict of the jury. That largely concentrated on the way it was sprung on the House. with assurances that it had the support of many anonymous judges. I remember the criticism. But I must make this one correction while I am. so rarely, on my feet; speakers on this side were complaining of not being able to know a word that the committee had said, because the report was out of print and had already apparently been secured by those concerned from the Library or from other institutions. We do not particularly support the bringing of a long report as an example of the wisdom that is to be incorporated in the first four clauses of the Bill, without being enabled to know what the wise men said about it. I do think that the question of what is a crime and the question of the necessity of some very considerable restriction on the exercise of the new power of arresting witnesses, which has been practised with great dissatisfaction in many other countries, are matters that should be carefully examined, and that is why I intervened before the noble Earl on the Front Bench rose to reply.
§ 4.6 p.m.
§ Lord WIGODER
It is common ground that the police at the moment have not got this power. It follows that to give them the power to detain, and if necessary in certain circumstances arrest, people who are not only wholly innocent of any offence but may not even have been witnesses to any offence, is a very substantial diminution of our existing civil liberties. That does not end the case against it, but we ought to recognise that that is a fact. Therefore, the question arises: what justification can be put forward to your Lordships for taking the action which is now proposed in Clause 1(1)(b) of the Bill?
So far, having listened to the discussion in the Committee, there has been only one attempt to justify this startling proposal, which came from the noble and learned Lord, Lord Wheatley. He postulated a situation in which there may be a number of youths gathering round when some offence of violence is being committed. The police arrive on the scene and they 701 cannot get any co-operation from the youths who are there. It is seriously suggested that if the police have the power to detain those youths and if necessary arrest them, they will suddenly find they have on their hands a whole series of willing witnesses who otherwise would not have been available. It is quite inaccurate to postulate anything of the sort. The straightforward fact is that in that situation all that the police will achieve is a good deal of between themselves and the bystanders they detain for this purpose, who may not have seen anything anyway. Those from whom they get the name and address will, when it comes to making a statement, if experience is any guide, with remarkable unanimity not have seen anything at all that went on. The suggestion that this proposal will enable to be brought forward witnesses who were otherwise not available, is really quite fanciful in the light of experience. If people want to help the police they will help the police. They should help the police. But it is idle to pretend that they can be compelled to help the police and to make statements assisting them in the way that this clause contemplates.
The only other Member of your Lordships' House who supported the Bill in its present form was the noble and learned Lord, Lord McCluskey. He had to because this clause was something he was prepared to bring forward himself in the last Parliament, and the only argument he can put forward is that he was prepared to do that and that it is in the report of the Thomson Committee.
§ Lord McCLUSKEY
Will the noble Lord allow me to intervene to say why I had to support this proposal? I argued, within Government, in favour of putting these provisions into our Bill. That is the reason I support them—from conviction, and not because I happen to be trapped, as it were, on the Front Bench with a published Bill. The reason that I decided at that stage to support their inclusion in the Bill was that I am humble enough to recognise that when a distinguished committee like the Thomson Committee makes these recommendations unanimously, then it is something that the Government ought to support. That is the reason I gave, and I also support the reason which the noble and learned Lord, Lord Wheatley, gave. However, it is not 702 because I am trapped on the Front Bench having to support something on which I am not persuaded.
§ Lord WIGODER
If I may say so, that is one of the saddest observations that I have ever heard fall from the lips of a distinguished Law Officer. To say that he felt obliged to support something because it appeared in the report of a distinguished committee is, in fact, to suggest that your Lordships should abrogate your duties altogether, and that any committee report must go through because the committee has reported it. I repeat that there has not been a single word so far uttered by the noble and learned Lord, Lord McCluskey, giving any reason in support of the proposal in the Bill, except that some other committee happens to recommend it. I suggest to your Lordships that he does feel himself trapped and that he does feel himself obliged not to support my noble friend's amendment. I can only hope that noble Lords who sit on the Benches behind him will realise the difficulty in which he is and will allow him on this occasion to go alone, from his Front Bench, hand in hand with the noble Earl, Lord Mansfield, into the Lobbies.
§ Lord DONALDSON of KINGS-BRIDGE
I should like to intervene to defend my colleague. The noble Lord, Lord Wigoder, said something which is not what we have just heard my noble and learned friend Lord McCluskey say. Surely it is important to stick exactly to what he said. My noble and learned friend on the Front Bench said that he supported this from conviction and was supported in his conviction by the fact that a distinguished committee agreed. I am no expert on this matter, but the noble Lord, Lord Wigoder, has entirely misrepresented what my noble and learned friend said.
§ Lord WIGODER
I am sorry, but I return to the observation as I am asked to do so. I entirely accept that the noble and learned Lord, Lord McCluskey, said just now that he supported this from conviction. However, that is not a reason, and I venture to suggest that the noble and learned Lord, Lord McCluskey, has still not given a single reason, a single logical argument, as to why he prefers what is in the Bill to the amendment of my noble friend Lord Foot.
703 There is just one other matter that I should like to raise at this stage before the noble Earl, Lord Mansfield, replies to this debate. I should like, very simply, to ask three questions to which I invite the noble Earl to reply. First, will he agree that there is no such power in English law and never has been? Secondly, will he agree that, although the English police force is not slow to claim additional powers, this is one power that it has not been very active in claiming? Thirdly, if that is right, what has gone wrong in Scotland? Is the noble Earl seriously saying that his fellow countrymen are in some way below standard in their sense of moral obligation when it comes to helping the police in their inquiries in matters of this nature? Or, if they have the same standards of assisting the police in Scotland as we do in England—and we can manage perfectly well without this power in England—will he explain succinctly why it is necessary in Scotland?
§ 4.14 p.m.
The Earl of SELKIRK
I do not stray from what the noble Lord, Lord Wigoder, has said, but only one person has attempted to justify it. May I, with great humility and deference, support the noble and learned Lord, Lord Wheatley; and, frankly, I do so for very similar reasons. I listened with great interest to the noble Lord, Lord Foot, who spoke in terms of great reasonableness, which was not quite the note he used when speaking on Second Reading.
The noble Lord, Lord Gifford, said that this power is wholly unwarranted. What is the power? It is the power, in the last resort, to compel a witness to give his name and address. Perhaps I may give a similar illustration to that given by the noble Lord. Many years ago I was concerned with a murder trial in Glasgow. The man had a penknife inserted into his jugular vein. The evidence was that the blood was out a yard from his neck. No one saw who did it. Of course, there was a reason for that. In those days there were bodies of people in Glasgow who were very violently antagonistic one to the other.
It may well be that since the noble Lord, Lord Galpern, has become the Lord 704 Provost, those practices have ceased. I do not know; it may be that the situation has wholly changed. However, there is a double reason. First, people will not want to come forward and give evidence against a body of people who are slightly violent in their way of life. Secondly, it is probably easier for them to give evidence if they are compelled to do so by the police and under the strain of possible arrest. I would not differ with the view that such a course needs careful guarding. I think that the noble Lord, Lord Ross of Marnock, is wrong in saying that a witness can be detained in terms of Clause 2. I do not think that he can be detained, but I agree that he can be arrested in the ultimate resort. However, I think that we are narrowing the circumstances, possibly with additional safeguards, when these powers may well prove to be absolutely necessary.
§ Lord BROWN
The remarks of the noble Lord, Lord Wigoder, about my noble and learned friend Lord McCluskey were unfortunate, but I do not rise to comment on that. I merely wish to point out that this debate has been characterised by a high degree of exaggeration. I should like to point out to the noble Lord, Lord Wigoder, who stated that any witness forced to give his name and address would be a useless witness, that many people looking at an event taking place—an offence or prospective offence—will not offer their names and will go away rather than risk the trouble of having to attend as a witness. But, having given their names, and having been asked to attend as a witness, they will behave like citizens. It is a gross exaggeration to suggest that anyone whose name is forcibly taken would necessarily be an unreliable or reluctant witness.
§ Lord FRASER of TULLYBELTON
I too had not intended to intervene at this stage, but stung by what the noble Lord, Lord Wigoder, said a moment ago about lack of support for the clause, I ought briefly to indicate my support. I agree very much with my noble and learned friend Lord Wheatley and with the noble and learned Lord, Lord McCluskey. One of the great difficulties about this region of the law seems to me to be that, if the police powers are inadequate, it is inevitably a temptation for them to exceed their powers and to act illegally. That is a serious 705 difficulty. I was a member of the Royal Commission on the Police, which reported in, I think, 1962. One of the lessons which I bore in mind from that was that if the police are not given adequate powers they are invited to exceed their powers, and that leads to all sorts of difficulties and objections.
It seems to me that broadly the clause is about right. There may be need for rather closer definition as to whether the power to detain a witness is to be available for any offence or whether it ought to be restricted to the more serious offences, and there may be some other restrictions. But, in principle, it seems to me to be about right.
I am sorry to have to differ, as I do rather pointedly on this, from the noble Lord, Lord Wigoder. But the scene he drew of a street brawl with a lot of youths who must have seen the murder or assault committeed is, I think, a scene which is all too common in some of the Scottish cities. At the moment of the assault or a few minutes after, the probability is that a good many of the youths are drunk or half drunk. If they see a policeman coming or a police car approaching, they will run off and be entirely unco-operative. If one can stop them and at least get their names and addresses there is some hope of following the matter up the next day when they are sober and one may find that they have something to say.
It has been suggested that this is a sort of draconian power to hold old ladies in the middle of the night on a cold street or to get people out of a bed to identify a motor car or some such thing. It is a little ridiculous. It is only a power to make sure that we have the name and address. If one can get people out of their beds there is a strong probability that one knows their address. I do not want it to be supposed that I am entirely uncritical in this whole area. I have suggested one or two amendments later to improve the Bill, but it seems to me as regards this matter that the clause is about right, and I should like to support it.
§ 4.20 p.m.
§ Lord RENTON
I too had no intention of intervening in this debate, but having heard the noble Lord, Lord Wigoder, I feel bound to remind him of a case in which I had the pleasure and advantage 706 of leading him at Hertford Assizes. The case concerned a punch-up at a dance hall on a Saturday night. He will recollect, as other members of our profession, whether on the Bench or still at the Bar, will recollect, that on such occasions the police are in a great difficulty. In the case in question they were lucky because they were called along pretty soon, and once they had established themselves at the exits from the dance hall they managed to prevail upon some of the other young people to help them with their inquiries.
But it seemed to me such a disadvantage to the police in those circumstances. It has seemed to me on many occasions since then, and I am sure to many Members of your Lordships' House, that the police have their hands tied behind their backs because neither in England nor in Scotland have they the power to ask even innocent bystanders for their names and addresses when they have reason to hope that they would be good witnesses. Therefore, I feel bound to support the main intention of Clause 1 of this Bill. I do, however, share the doubt expressed by the noble Lord, Lord Ross of Marnock, as to whether it is necessary to have the power to force these people to the police station once they have given their names and addresses. To that minor extent I would ask my noble friend to consider that particular point which is raised by the two simple amendments of Lord Ross of Marnock.
§ Lord WIGODER
Would the noble Lord, Lord Renton, correct me if I am wrong? I think I remember that case. The police did manage without this power and there was a conviction of the guilty people. Is that right?
§ Lord RENTON
Yes; and I explained how, by chance and by the police establishing themselves at the exits because they happened to have been called there soon enough, they got a number of the other young people who were present to give evidence. But one can imagine many similar circumstances in which they might have had no witnesses at all.
§ 4.22 p.m.
§ The Earl of MANSFIELD
May I preface my remarks on these amendments by saying that I have found this an interesting and fascinating debate, in which your 707 Lordships' Committee has been seen at its best. A number of different viewpoints on what is admitted to be a difficult subject have been brought forth. Before I go to the amendment I want to follow the noble Lord, Lord Foot, by setting the scene, so to speak, and saying that ever since this Bill has been published the Government have listened carefully to all the comments that have been made. In particular, attention has been paid to remarks made by noble Lords and noble and learned Lords on Second Reading.
The noble Lord criticised me for the content of some of my remarks in my Second Reading speech. I have no complaint about that. The point I want to make at this early part of the deliberations of the Committee is that the Government are not approaching these matters in any doctrinaire sense at all. I would further emphasise that our minds are not closed to suggestions for changes and possible improvement to the Bill. We are committed to the principles of the Bill. There is no doubt about that at all. But, as I have said, it is our intention to examine carefully indeed suggestions for modification and improvement which may be made by any noble Lord.
Turning to this debate, there has been reasonable unanimity that the powers which the police have, certainly in relation to suspects, are inadequate. I was going to say, "even the noble Lord, Lord Foot", but that would be offensive of me. If he had not said it, I was going to say to the noble Lord, Lord Foot, that if the police are not granted extra powers to enable them to carry out their work, what suggestions would he make? In fact, I have not been put in that position because the noble Lord, Lord Foot, and most noble Lords who followed him, conceded—and there was a remarkable measure of agreement—that in fact for years the police have been trying to clear up offences with, in effect, one hand tied behind their back.
I was powerfully reinforced in this submission to the Committee by the remarks of the noble and learned Lord, Lord McCluskey. Incidentally, I was glad to see him in his place after the weather conditions in Scotland had been reported to me. I think we are fortunate. I am also glad to see the noble Lord, Lord 708 Harris of Greenwich, whom I admired so much when he was sitting in this position in the Home Office in the last Government.
It is a difficult question. I readily concede that to get a police force which is able to go about its duties in a reasonably efficient way, and to reconcile that with the liberties and the freedom of the individual, is by no means easy. How, then, do we keep a reasonable balance except by setting up these various committees, or bodies, to inquire into the state of the law, to read their reports when they produce them, and, when there is parliamentary time, to seek to put some, or all, of their recommendations into force? If anybody complains about the number of different measures in this Bill— and I appreciate that it covers widely differing subjects—all I can say is that Scotland does not enjoy a great deal of parliamentary time. In the lifetime of this Government, particularly in the legal sense, we have enjoyed more than for some time. However, we have to take such opportunities as we can find and make of them what good use we can.
So far as these amendments are concerned—and I appreciate that the noble Lord, Lord Foot, was not speaking to Amendment No. 2—they seek, in effect, to remove a potential witness from the scope of Clause 1 of the Bill. If his amendments were agreed, a constable would not be entitled, or would not have the power, to require a potential witness to give his name and address, and would not have the consequential powers on that. I have listened with considerable care to the anxieties which have been voiced by noble and learned Lords in this matter of potential witnesses. I accept that it may be undesirable to subject a potential witness to the same compulsion as a suspect faces under Clause 1.
On the other hand, and balancing out in the way I have been trying to illustrate, I believe that a potential witness may reasonably be required to give his name and address to a policeman. Indeed, I would argue that he has a moral duty to do so if he is in a position to help. I see no oppression in reinforcing that moral duty by making it a legal obligation. This in fact was the recommendation of the Thomson Committee in its second report, on page 26, paragraph 6.02.
709 Having said that, in the light of the speeches made on Second Reading, the amendments tabled for consideration today and the anxieties which have been voiced, we have been considering, and will continue to do so, how these two objectives might best be met. If I say to the Committee that what I would like to do is to take the matter away and possibly redesign the clause to permit a constable to require a witness to give his name and address but not to require him to remain in the constable's presence, I hope that such a change would prove acceptable: to your Lordships.
The question of a sanction in the case of a totally uncooperative witness is a difficult one and one which deserves more thought: but on the understanding of what I have said so far—that the Government will bring forward amendments at a later stage—I hope I may ask the noble Lord, Lord Foot, to withdraw this and the other amendments at this stage. Before resuming my seat, I would say to various noble Lords, who have questioned whether it is right that these provisions should apply to any offence, that I have taken that point on board, too, and will examine it. I cannot give any promises or undertakings, but we will see what happens.
§ Lord McCLUSKEY
Before the noble Earl concludes on these matters, may I ask him what his provisional view is on the question of the time of the offence? As the Bill is drafted—and I direct attention to the opening words:Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence—that postulates that there may be an offence in the past, and there is no restriction as to the time. It is just conceivable that under the Bill a constable may use these powers to detain as a witness a person who might be said to have witnessed an offence or crime some six or 18 months before, so I hope the noble Earl will undertake to look at that point at the same time.
§ The Earl of MANSFIELD
This is the "give a dog a bad name" point, if I am not mistaken. I will certainly look at that.
§ Lord FOOT
I am enormously encouraged not only by what the noble Earl 710 has said in reply, but also by the way in which he has expressed himself as being willing throughout the passage of the Bill to look at the arguments which are advanced and that his mind is by no means closed. I regard that as a very considerable advance and a great concession, and I look forward to being able to conduct the rest of this debate in Committee on that basis.
I hope the noble Earl will agree that when I advanced my general propositions in the beginning and referred to these amendments, I was showing a sense of moderation and was not unwilling to recognise that there is a problem here. I was glad to hear the last words of the noble Earl when he indicated that he might be prepared to consider taking on hoard the proposal made by the noble and learned Lord, Lord Wheatley, that possibly one could insist on this right to obtain from a witness his name and address in cases of serious crime. I should not have thought it was beyond the powers of the draftsmen, if the Government were willing to make that concession, for some amendment to be framed in those terms.
I had intended to say something in reply to some of the other points that have been made in this debate, but in view of what the noble Earl has said I do not think I need do that. I wish only to correct two matters. May I make it perfectly clear that, so far as I am concerned, as I said at the beginning, I do not think the present powers of the police are sufficient? So far as suspects are concerned, I think there is a strong and cogent case for enabling the police to demand the identity of somebody who is thought to have committed certainly a serious offence, but the situation, as I hope I have explained, in the case of the witness is to our minds quite different.
The only comment I would make is in regard to some words spoken by the noble and learned Lord, Lord Renton, and I wrote the words down at the time. He said, speaking of the case in which he and my noble friend had been involved, that the police had no power to ask a person for his name and address. I am sure the noble and learned Lord said that inadvertently because today, whether we are in England, Wales or Scotland, the police have every right to address any sort of question they like to the public. What they do not have is the power to require 711 that the witness shall reply. I mention that only because I would not like this matter to be disposed of under any misunderstanding of that kind.
I shall be very happy to comply with the noble Earl's suggestion and withdraw the amendment. I hope the opportunity may be given to us on these Benches and to others who have taken part in this debate to consult with the noble Earl as to what amendments might be acceptable to the Government. With the leave of the Committee, I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.37 p.m.
Lord FOOT moved Amendment No. 2:
Page 1, line 19, after ("time") insert ("not exceeding half an hour").
§ The noble Lord said: This is a different matter and I wish to say at the outset that have inadvertently misled the Committee about my amendments; when I said at the outset that Amendments Nos. 1 to 9 were all concerned with the question of the witness, I overlooked the fact that I should have excluded Amendments Nos. 2 and 3. I apologise for that, but I do not think the noble Earl, Lord Mansfield, who understands the situation, will have been misled. I will therefore speak to both amendments, which are concerned with the proviso in Clause 1, at the same time.
The general effect of Clause 1 is that,
Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence
then he can require the name and address of the suspect, he can require any explanation the suspect has to give and he can require the name and address, as the Bill is now drawn, of any potential witness. It goes on to say that he can require that person, whether it be the suspect or the witness:
… to remain with the constable during such time as the constable may find necessary—
Following is the proviso with which I am here concerned:
Provided that the requirement to remain with the constable shall cease to apply if there is unreasonable delay in obtaining such verification".
§ My anxiety about that proviso is the uncertain terms in which it is phrased. What does "unreasonable" in these circumstances mean? Does it mean unreasonable delay from the point of view of the policeman? Is he negligent in getting on with it? Or does it mean unreasonable delay from the point of view of the person concerned, the person who may have an appointment, the person who has been stopped and told, "Stay here"?
§ Whether one looks at the matter from the point of view of the policeman, or from the point of view of the individual concerned, one may arrive at entirely different conclusions as to what a "reasonable time" is. Or does it mean—and this is another possibility—what would be regarded as unreasonable by the reasonable man? These are not lawyers' points, because as the noble and learned Lord, Lord Wheatley, reminded us only a short while ago, when one is dealing with citizens' rights. police powers and so on, one of the important points is that one should express oneself with precision so that everybody knows where he stands.
In my amendments I am proposing that at line 19 there be inserted a requirement that the person should remain with the constable for such time
not exceeding half an hour as the constable may find necessary.
§ Then, in my Amendment No. 3 it is proposed that we delete the whole of the proviso so that there is struck out the area of uncertainty as to what is reasonable and there is inserted a fixed period of time so that everybody knows where he stands.
§ I suggest that there are serious problems in leaving the matter in the vague way it stands under the proviso as drafted. In the past we have had bitter experience—have we not?—in Acts such as that relating to the breathalyser test of the appalling consequence which follows if one drafts legislation which is uncertain in its effect and which can be interpreted in a dozen different ways. Is not this proviso just such an error? Consider the position if it is to be said that at some point the delay in checking the identity of the individual becomes unreasonable. On any test which may be applied there must be a point up to which it is reasonable and thereafter is unreasonable. 713 What happens if a person is detained for a longer period than he thinks reasonable? Has he an action for false arrest or false imprisonment? If he has, the action presumably lies against the chief constable.
§ Whenever anybody stops a suspect or a witness and says, "Stay here while I check your identity and your particulars", it is surely unreasonable that the person stopped might at some later date be able to challenge that by way of an action for false imprisonment taken against the chief constable.
I only want to avoid the kind of difficulties which might arise, and I should like to remind your Lordships— or such of your Lordships as have had the opportunity of seeing the second report of the Thomson Committee—that their recommendation in this matter was rather different from the one which has been adopted by the Government. Their recommendation is contained on page 277 of the report. It is recommendation 8. They said:
No person should be detained elsewhere than in a police station"—
and that of course is the circumstance with which we arc concerned here—
for longer than is necessary for the following purposes:
a. asking for an explanation of suspicious behaviour"—
that is not material on this matter—
b. taking name and address of detainee and, where it can be done rapidly, for example by radio, verifying these".
§ It is perfectly apparent from that—is it not?—that what the Committee had in mind was that if the address could not quickly be verified, it was unreasonable that the person should be detained. The words of the Bill to which I have referred certainly do not match the intention of the Thomson Committee. Here again I am sure that the noble Earl will be moderately reasonable. I should be perfectly happy if he were to indicate at this stage that he is prepared to look at these words, too, to see whether some greater precision can be given to them. I beg to move.
§ Lord GALPERN
I take it that the noble Lord, Lord Foot, is proceeding on the basis of one detainee, or one witness. Let us suppose that there is a fight and there are 10 or 12 witnesses. How does 714 the noble Lord relate detention of no more than half an hour to the obtaining and then the verifying of the addresses of 10 possible witnesses?
§ Lord FOOT
Yes, the amendment says not exceeding half an hour; that would mean that the policeman would have to get on with it. But I see no great hardship in that; it does not take one more than half an hour to ask for a person's particulars. It may take one more than half an hour to check them, but, after all, why should the person be kept there indefinitely if there is some particular difficulty in checking his identity? Let us suppose that the person who is stopped is a visitor from the Channel Islands or the United States of America and he does not have with him anything with which to identify himself. Is it going to be suggested that it is reasonable to keep him there for such time as is necessary in order to communicate with the police in the United States or in the Channel Islands?
If the police know that when they ask for the name and address of a suspect or a witness they must get on with it and that, unless they have been able to verify the particulars within half an hour, they must let the man go, I suggest that that will he a perfectly useful discipline and will not be a serious interference with the job that the police have to do. I beg to move.
§ 4.47 p.m.
§ Lord McCLUSKEY
So far as the half hour period is concerned it is a somewhat arbitary period, and it may be rather difficult to deal with the matter in that way. But I follow the noble Lord, Lord Foot, in his drawing attention to the standard which was put forward by the Thomson Committee, though in a slightly different context. The context of paragraph 8 on page 277 of the report really relates to the detention of a suspect rather than to the detention of a witness, but 715 a fortiori it must apply to the witness because the witness is not suspected of anything at all. So one can see the propriety of that. I would simply remind the committee that when the Bill which we introduced was brought before another place it contained not the standard enshrined in this proviso, but the standard of necessity. The wording there in relation to the police power of detention was:for as long a period as is necessary for the constable to obtainthe name and address. Then under subsection (4) of Clause 1 it was provided that:The period mentioned in the said paragraph…shall include such time as is necessary for the verification by the constable of the name and address given to him, where such verification can speedily be obtained.That was certainly designed to cover the type of the case where the witness was living in the Channel Islands, or circumstances of that kind; or indeed the case where the witness gave an address but no telephone number: or indeed the case where the incident happened perhaps very late at night and the possibility of checking simply did not exist.
So I urge the Government when they are taking back the clause to consider whether one can depart from the very subjective standard which this proviso contains and go a little nearer towards the more objective standard which we put into our Bill. I would invite the Government to look at the matter in that sense.
§ Lord GIFFORD
I hope that the noble Earl when he replies to the amendment will answer the questions which I put a few moments ago. What steps is it envisaged will be taken by the police in a case where the person whose name and address is given either has no identification papers at all on him, or his identification papers are for some reason suspect? If the noble Earl is coming to the Committee asking for these powers to be approved, he must have information from those who say they are necessary—and, in particular, the police administration—as to what sort of steps are likely to be taken in order for this verification process to take place.
I am bound to say that, judging by the only similar process of which I have any experience in England, it could be many hours. It very frequently happens that 716 people are arrested for minor offences, taken to the police station and charged, and the only reason which holds up their being given bail is the verification of their address—the police need to be sure that the address they have been given is one which is genuine. People are sometimes detained for hours while a police officer goes round to the address given to verify that such-and-such a person lives there. To "verify", which is the word used, means to establish the truth of something, and in this case that cannot possibly be done without substantial inroads being made into the time and convenience of the people, whether they be suspect or witness, to whom this requirement has been addressed—unless or until, perish the thought!, there comes the day when all our physical features and attributes are on a computer, enabling the police instantly to verify whether we are the person we say we are. I hope that the question which I put to the noble Earl was not deliberately ignored by him, because I suggest it goes to the very root of the powers which are being asked for in this clause.
§ 4.52 p.m.
§ The Earl of MANSFIELD
The first Amendment spoken to by the noble Lord, Lord Foot—that is to say, amendment No. 2—would impose an absolute limit of half an hour on the time a suspect may be required to remain with a constable for the noting and verification of his name and address, or for the noting of any explanation proffered. I deliberately use the word "suspect" because of the undertaking I have given, and we can leave potential witnesses out of it for the purposes of this debate. The present proviso is that the requirement to remain with the constableshall cease to apply if there is unreasonable delay in obtaining such verification":and that proviso will of course be deleted by the second amendment.
I think it is important to look at the clause and to see what in fact are the constraints, as it were, on the police officer. The first one, at lines 19 and 20, is that the suspect isto remain with the constable during such time as the constable may find necessary—717 The second qualification is that, however necessary the constable may feel it is to conduct his inquiries, the duty to remain with the constable
- (i) to note that name and address and the explanation proffered; and
- (ii) to verify that name and address".shall cease…if there is unreasonable delay".So there are two matters to be considered in this. I have a certain sympathy—in fact, considerable sympathy—with the noble Lord, Lord Foot, but I suggest that his amendment would impose an undesirable rigidity on the provisions of the clause—and I shall come to my reasons in a moment.
The noble Lord, Lord Gifford, asks what steps will be taken in the verification process, and then goes on to ask about police computers and matters such as that. If I may say so, I think the noble Lord is taking a much more serious look at this whole matter than is really envisaged. This is the very first contact which a police officer is likely to have with a suspect, and he asks him his name and address and whether he has any explanation for certain facts. Whether any information would be forthcoming which it is likely or possible could be put into a computer—still less whether any sensible use, or indeed any use, could be made of such information in the future—I would have thought was a matter of very considerable doubt indeed. But, if I may say so to the noble Lord without being offensive, I really do not think he need concern himself too much about that part of our civil liberties. Personally, I think there are other ways in which I find the situation more worrying.
Now may I go on to the half-hour time limit, if I may so call it? The noble Lord, Lord Foot, seeks to impose an arbitrary time limit on a procedure which by its nature is likely to last for an unpredictable length of time—from a few minutes, where the address to be verified is that of a local person, to a period which may well exceed half an hour where the address is perhaps in a remote area, or when the hour may be very late. I put this forward diffidently, but I wonder whether noble Lords are not rather urban-orientated in their thinking about this. The suspect is not of necessity going to live within the purlieus of West End Central police station, or of its equivalent in Glasgow. We have some very scattered areas in the Highlands and Islands of Scotland, and I do not believe that in many cases it would be possible for the police to make the necessary inquiries, even with the use of a personal radio, and 718 to obtain such verification as the officer considers right, within the space of 30 minutes.
The Thomson Committee recognised this when (and I hesitate to refer to this) on page 13 of their report, in paragraph 3.18, the committee specifically turned down the idea of a rigid time table or time limit. In fact, the committee suggested and recommended that no time limit be set; and the result is that the clause as drafted specifically provides that a person will be required to remain with the constable only for so long as is required for him to obtain and verify the name and address—and, as I have said, there is the further safeguard that the requirement will lapse if there is unreasonable delay. The police have no power to detain a person in this way beyond the time they require to check these specified particulars. If we impose an arbitrary time limit, as this amendment seeks to do, in the rare case where an address is not verified within half an hour and there is good reason to suspect it to be false a constable might wish to take the person to a police station and detain him. That might be a justifiable exercise of the power in the case of a very serious suspected offence. There is no intention to allow the police unlimited time to verify a suspect's address. I submit to the Committee that a fixed time, such as half an hour, may be unreasonably long in trivial cases and could, I believe, remove the incentive to quick verification in some cases, although not in others.
I think that in the circumstances half an hour could be far too short or it could be far too long. I think, if I may say so, it should be left to the good sense of the police on the spot. Equally, in aswer to the noble Lord, Lord Gifford, as the report points out, matters of verification are in fact left to the sense and the experience of the police on seeing the appearance of the suspect; and I would suggest that in the vast majority of cases verification will be accomplished within a few minutes. I think that it would be unfortunate and wrong to fetter the power in this way. I would ask the noble Lord therefore, on reflection, to withdraw his amendment.
§ 5 p.m.
§ Lord FOOT
I will think while I am speaking. I appreciate that this is a 719 difficult matter and I do not underestimate its difficulties. If you fix a period of time, then the noble Earl says that that is rigid and so on. That is one peril, I agree. On the other side, if you leave it in the terms that it is in the proviso at the end of page 1, it introduces all the uncertainties as to the meaning of "reasonable". Earlier I asked the empty air what the words "reasonable delay" mean in these circumstances. Do they mean unreasonable from the point of view of the suspect or the witness; do they mean unreasonable from the point of view of the policeman; or unreasonable from the point of view of a reasonable man, what a reasonable man in all the circumstances of a particular case would consider reasonable?
I am not making a purely legal point because, as the noble Earl knows, soon after the passing of the Bill the courts will be asked to decide what these words mean. It is bound to happen. If it does not happen in the form of criminal proceedings it will happen in the form of civil proceedings, by somebody complaining that they had been kept in detention after the period of reasonable delay. It is bound to arise. I should like to know whether the noble and learned Lord would like to tell us what interpretation he would put on these words if, in the course of time, he is appearing for the Crown or on behalf of a private party.
There is a risk—and this argument has been advanced by people more knowledgeable of Scottish law than I am—that you might get different decisions about the meaning of "reasonable delay" in criminal courts from those in the civil courts. In that event, it is suggested, we shall have to brine back this Bill on this particular point in order to put the matter right.
§ Lord McCLUSKEY
Perhaps I may be allowed to intervene. The noble Lord said that he would think while he was talking, and perhaps my intervention will allow him to think about what he will do in relation to this amendment. I would ask him whether he can indicate whether he thinks it is the drafting that is at fault. The noble Earl has reminded us of the text on page 13 of the report which contains the standard of necessity and the provision that the verification is to be done "where it can be done rapidly". 720 These were two points put into the Bill which we introduced in 1978. For some reason, presumably quite deliberately, they have departed from this Bill. In particular, instead of having an objective test of what is necessary, the wording has become, in Clause 1(1):during such time as the constable may find necessary".The provision that we had in about rapid verification has gone altogether. I wonder whether the noble Lord, Lord Foot, would consider, if the noble Earl takes this away and looks again at the drafting, that it would perhaps meet his case.
§ The EARL of MANSFIELD
I shall certainly have another look. I do not hold out any undertaking to the noble Lord on this. I think that as far as unreasonable delay is concerned it is an objective test. Unreasonable delay in all the circumstances is to be the test to be applied. I should have thought that that was a sensible way of reading the clause; but I shall look at it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 and 4 not moved.]
Lord ROSS of MA RNOCK had given Notice of his intention to move Amendment No. 5.
Page 2, line 2, leave out ("or (b)").
§ The noble Lord said: In view of the undertaking given I do not propose to move my Amendments Nos. 5 or 9.
§ [Amendments Nos. 5 to 9 not moved.]
§ Clause 1 agreed to.
§ Clause 2 [Detention and questioning at police station]:
§ 5.7 p.m.
§ Lord FOOT moved Amendment No. 10:
Page 2, line 33, at end insert—
("() Immediately on the arrival of the person at the police station, the constable shall in the
presence of the person report the circumstances of the person's detention to the officer in charge of the police station for the time being and the officer in charge shall then decide whether the person's continued detention is justified. If he decides that it is not so justified, the person shall be immediately released and the subsequent subsections of this section shall not apply.").
§ The noble Lord said: We now come to Clause 2 of the Bill which, I think it will be generally agreed, is of considerably more substance than Clause 1 in that it creates an entirely novel procedure both for Scotland and England and Wales, whereby a person suspected of having committed an offence may be taken into custody, and may be taken into detention (which is something short of arrest), and may be detained for a period of six hours—and possibly more, as I shall hope to show in a minute—to be interrogated meanwhile by the police, with powers to the police to search him and to take fingerprints and the like.
§ This is the second example which I shall give of the way in which the Bill has departed from the recommendations of the Thomson Committee. In one instance, to which I shall come later, it departed in a very serious way; but serious enough, as I suggest, in this case. Because this represents a departure from what Thomson recommended, I have proposed to put back into the Bill the very recommendation which the Thomson Committee made as one of the safeguards for a person taken to a police station as a suspect. May I say In passing that because the intention of my amendment is to restore to the Bill what was in the committee recommendations, I hope that I may look to assistance and support from the noble and learned Lord, Lord McCluskey, who is so much impressed with the excellence of the report that was made.
The purpose of my amendment will be apparent if I read to the Committee the recommendation of the Thomson Committee as to what should happen when a person is taken into a police station as a suspect. It appears on page 15 of the Thomson Report, in paragraph 3.22; and it reads:
On arrival at a police station"—
and what has happened up to now is that a constable has detained a suspect, has gone through his procedure of asking for his name and address and is then of the opinion that he suspects this person of
having committed an offence, and is then authorised, under Clause 2, to take the person to a police station and there to go through all the procedures set out in Clause 2. The paragraph continues:
the detainee's position should be considered by the officer in charge for the time being of the station. It should he for him to decide whether to authorise the detainee's continued detention. He should do so only where such detention is in his view justified. The detainee should again be told the reason for his detention and this, as well as the time of his arrival in the police station, should be recorded. If there is sufficient evidence to justify the arrest of the detainee, he should be arrested and charged. I f neither arrest nor continued detention is justifiable, the detainee should be released. The time of release or charge should also be recorded.
The phrase concerning the intervention of the officer in charge of the police station for the time being has been omitted from the Bill as it now stands.
§ Under the Bill, it is the police constable who is to carry the responsibility for the whole of this procedure. It is he who is to make the original decision whether he has a reasonable ground for suspecting that an offence has been committed. It is then for the constable— and it may be an inexperienced constable— to take the man to the police station and, on his sole authority, go through all these things which are set out in subsections (4), (5), and (6): that is to say. to make the necessary note of the times of the detention and the purpose of tile detention, and so on. It is his business to inform the suspect of the purpose of the detention. It is the constable's business to question the suspect, to exercise the powers of search and to take fingerprints. All these onerous duties—very difficult duties to exercise, one might think—fall upon the shoulders of the single constable who happens to have made the original detention.
§ I suggest that really is imposing an unfair burden upon the single police officer concerned. I am not moving this amendment simply in order to protect the rights and safeguard the rights of the suspect, although it has that aspect of course and that no doubt is what the Thomson Committee had in mind when they recommended that one should get the imprimatur of the officer in charge at the police station. I suggest that it is desirable that that should be done, that somebody else should be brought in and that somebody else should be asked to consider the facts of the sitution and whether a person should 723 be detained for a period of up to six hours. It is only fair to the police officer concerned that that burden of responsibility should be shared with somebody else.
§ This amendment is almost precisely in the terms recommended by the Thomson Committee—I have simply reproduced their own language—and I hope it will be accepted by the Government. because it assists in the protection of the rights of the subject and also because I believe that it will be a valuable support for the police in the operation of a procedure which is not going to be easy in any circumstances. Therefore, I hope that it may be possible for the noble Lord to say that this is a part of the Thomson Committee's recommendations which can be put in the Bill. I beg to move.
§ 5.14 p.m.
§ Lord McCLUSKEY
The noble Lord, Lord Foot, asked for my support. The paragraph in the Thomson Committee's Report, paragraph 3.22, has my support, but I would not have thought it was necessary to put into the Bill a provision such as the noble Lord proposes. I simply think that it does not need legislation. Once a constable brings a detained suspect to the police station, the normal police procedure would be that the officer in charge of the station, or the officer in charge of the desk or, if it is a case which is already being investigated, the officer in charge of the case, in effect would take over. If the noble Lord looks at the construction of Clause 2 he will find that there is a careful distinction between the use of the definite article in relation to the constable in certain places and the indefinite article in other places in order to draw the distinction between the constable who has reasonable grounds and requires the detainee to go with him in the first place, and the other constables who might search or do other things as set forth in the subsequent clauses.
I would have thought one might well find that in certain areas where the police population is small there may be no officer in charge of the police station for the time being. It may be that the policeman who detains is the only person. I am entirely with the noble Lord, Lord Foot, in the spirit of his amendment. I am entirely with the Thomson Report. In 724 my judgment it is not necessary to put this into the Bill, and ordinary police practice would take care of exactly what the Thomson Committee recommended.
§ Lord WIGODER
May I ask the noble and learned Lord, Lord McCluskey, or the noble Earl, Lord Mansfield, whether one can in the circumstances safely talk about "normal police procedure" in a situation in which one is quite deliberately creating a wholly new power—-the power of detention—and therefore whether it might he better to incorporate this in the Bill in order to deal with what is a new procedure?
§ Lord McCLUSKEY
May I offer my answer? I hope that I shall not have to come in on this matter again. If an officer of the ordinary rank of constable brings to the police station a person under Clause 2 as a detainee and the sergeant on the desk, the officer in charge of the station or the chief inspector in charge of the case, says, "There is no need to keep him", I cannot imagine the constable insisting on keeping the detainee there. I am perfectly prepared to trust ordinary police practice, which I have seen at work at least at secondhand in many cases. I am sure it is not necessary to go to the lengths of putting this ill the legislation.
§ 5.17 p.m.
§ The Earl of MANSFIELD
There is a happy harmony for the moment so far as I am concerned with the noble and learned Lord, Lord McCluskey, in that I too am exercising my mind as to whether it is necessary to make a specific provision in the Bill. I am quick to say that I have some sympathy with the intention of this amendment, particularly as it is on a recommendation of the Thomson Report.
As the noble and learned Lord said, these procedures would be standard police practice. Under the Bill, responsibility for the detention of a suspect is placed on the police constable who first has reason for suspecting that a person has committed or is committing an offence and that police officer will be answerable for such detention. Again, there are sufficient safeguards for the suspect under subsection (4) which require the police constable to inform the suspect of the purpose of detention and to record the place, purpose and time of such detention. We 725 envisage that in practice the constable responsible for detaining the suspect will in the majority of cases consult with the officer in charge on arrival at the police station on whether the circumstances justify the continued detention of the suspect. Nevertheless, as I have indicated, I have some sympathy with the principle behind this amendment and if the noble Lord, Lord Foot, would be good enough to withdraw it I will look at the matter to see whether a suitable provision should be added to the Bill.
§ Lord FOOT
Of course, that is perfectly good enough for me. Before I seek leave to withdraw the amendment, may I remind the noble Earl and the noble and learned Lord that this recommendation was regarded by the Thomson Committee as sufficiently important to appear in the summary of recommendations at the end of the report? If this had been simply an aside on the part of the Thomson Committee, if they had thought that this was a matter of little consequence, I doubt whether it would have appeared in that solemn form among their positive recommendations. Again, of course, this was one of those cases when, as with all their recommendations, all the members of this high-powered Committee were unanimous in recommending that this should he inserted. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.20 p.m.
Lord McCLUSKEY moved Amendment No. 11:
Page 2, line 35, leave out ("six") and insert ("four").
§ The noble and learned Lord said: This is an amendment designed to restrict the period during which a person may be detained, from six hours to four hours. Of course, a number of the provisions in this part of the Bill, as I have already acknowledged, are similar to those contained in the Bill introduced by the Government of which I was a member at the end of 1978. In this regard, the period prescribed in our Bill was one of four hours, and I am simply urging that we return to what was proposed at that particular time. I want your Lordships to note this: that when a person is detained and taken to a police station for the 726 purposes set forth in Clause 2, that will he done under the provisions of Clause 2 when it becomes part of an Act. But under the present situation people go to the police station in a voluntary way and many people will no doubt continue to do so, including those who are suspected of a crime.
§ The existing voluntary system is not to be abolished; in fact it is not itself to be changed. Therefore one may conclude that those who want to assist the police, albeit that the police may suspect them, will still do so and Clause 2 will not need to be invoked against them. Against whom, then, will Clause 2 be invoked? It is hound to be invoked against those who are unwilling to assist the police with their inquiries. Very well. What happens to a person who is unwilling to assist the police? The constable having asked: "Would you come to the police station?" and having been given the answer, "No", then has to say, "Then under the provisions of Section 2 of the Criminal Justice (Scotland) Act 1980 (or whatever it becomes) I shall detain you".
§ What happens to the man when he arrives at the police station? He is unwilling; and he is informed by the police constable of his suspicions, of the general nature of the offence and of the purpose of the detention. There are certain records to he made of the place, the purpose of the detention, the time of the man's arrival and in due course, the time of his departure. The constable may put certain questions to him but he is obliged to tell the man that he need not answer the questions. Given that the man did not want to go to the police station in the first place, and given that is what Clause 2 is about, he is the very person who is not going to answer questions.
§ What else can he done? He can he searched, as set out in Clause 5. One asks oneself: how long will all this take in a police station with a suspect? I simply cannot believe that anything more than four hours is necessary. I wonder whether the Minister is prepared to accept that the person we are talking about in Clause 2 is a person who is unwilling to help the police and therefore, logically, is a person who is unlikely to answer the questions. In these circumstances, how can he justify six hours? I have no doubt that part the answer will be, "The Thomson 727 Report" and I can see the noble and learned Lord, the Lord Advocate, smiling at the thought that I shall be hanged on that.
§ There is one matter to which I should draw attention. The period suggested by the Thomson Report was six hours and I think that in the report they claim some reluctant support for that period by the Scottish Council for Civil Liberties. I am informed by the representatives of that body that they did not get themselves into that position. But I am also informed by another reliable authority present at the time that they got themselves into a rather confused situation and it was not at all clear what the position was. However, I understand that the Scottish Council do not lend support to the period of six hours.
§ I think one has to look at it and see, given the circumstances now set forth in Clause 2, whether six hours are likely to be necessary. I think the period is too long and I believe in fact it is liable to lead to very considerable inconvenience for some people. It may even lead to a certain slackness on the part of the police. If they feel they have six hours, they will simply use six hours, and I think there are good precedents in Scotland for placing time limits upon the activities of the criminal authorities, the criminal authorities then respond to them by getting on with the job quite quickly. I would have thought that was worth doing here and I beg to move my amendment, which would have that effect.
I should like to intervene here and to refer, as the noble and learned Lord, Lord McCluskey, suggested might be done, to the Thomson Committee's report in this matter concerning the substitution of four for six hours. The Thomson Committee—and I may say here that the noble Lord, before he went to the Bar, was an apprentice of mine in Edinburgh—considered that a period of up to 24 hours might be thought of. They then reduced that to 12 hours but revised their conclusions and said that six should be the maximum. That is what appears in the Bill.
The Thomson Committee were reinforced in this view by evidence and representations from the Scottish Council for Civil Liberties who, 728although averse to the principle of detention",felt it was necessary and that six hours was not too long. The Committee realised that, as the detainee would be a reluctant detainee, he might make use of his right of silence and that a period of six hours would, in normal cases, not be much too long. Therefore, I would suggest that your Lordships should abide by the recommendations of the Thomson Committee and maintain the period of six hours.
§ 5.28 p.m.
§ The Earl of MANSFIELD
In this context, of course, any maximum period specified must inevitably appear somewhat arbitrary and, as has now been said by both the noble and learned Lord, Lord McCluskey, and my noble friend Lord Kinross, this in fact follows the recommendation of the Thomson Committee. They gave careful consideration to the evidence they received on this matter and I should like to quote from the report, because this is a very important part of the Bill and it is also a part of the Bill about which some indignation has been expressed in some quarters. The report said, on page 16, paragraph 3.25:Various views were expressed to us on the maximum permissible period of detention in a police station. Some considered that it should be as long as twenty-four hours and there was a strong body of opinion in favour of twelve hours, but we have come to the conclusion that the period ought not to exceed six hours and we so recommend. This was the minimum period favoured by the police witnesses who considered that generally it would be adequate for their purposes. We are reinforced in this view by the evidence of the representatives of the Scottish Council for Civil Liberties who, although averse to the principle of detention, did not feel that, if such detention was necessary, six hours would be too long. We stress that this is the maximum period of detention and that we expect that in the vast majority of cases the actual detention will be for a shorter period.I want to emphasise that last sentence. The six hours is a maximum period, not a minimum or a mean. As the noble and learned Lord has argued, many detainees will arrive at the police station in an unco-operative frame of mind, which may well continue when they are questioned in the police station. But as any noble Lord who has had experience of clients will know, it very often happens that their status will change before the period has elapsed and I should have thought that this was a reasonable period in the circumstances.
729 So, as I have said, one has to come to an arbitrary judgment about this. When we did so, we preferred to retain the six-hour period presented by the committee for those cases where it may be required, and I hope noble Lords will agree that it is a reasonable balance between the maximum acceptable period and the minimum period required to serve the stated purposes of detention.
§ Lord McCLUSKEY
I am certainly not persuaded by that argument. think that the noble Earl is right in saying that these figures are arbitrary. Whether it is four or six they are, in a sense, plucked out of the air. For example, I notice that in England the police, in evidence to the Royal Commission, wanted a 72-hour period. In some countries, it is 90 days. Thank God, it is only six hours in the Bill, because if the noble Earl wants to keep it at six hours that is how it will end up. Perhaps I should simply maintain my protest. I shall not divide the Committee on this matter, because I do not propose to divide it on a matter of this kind where Thomson recommends one thing and my view is different. I must be consistent, if I cannot persuade the noble Earl, and say that we must accept the judgment of Thomson. However, I do not propose to withdraw this amendment.
§ Lord MONSON
I should like to support the noble and learned Lord's amendment and I am sorry that he is not pressing it. I am sure that most of your Lordships will, from time to time, have experienced the worry, and often acute anxiety, that is inevitable when a member of one's family, or possibly a close friend, has been expected to arrive by car, or even possibly by motor-cycle, but is an hour or more overdue. It is bad enough when the weather is good. How much worse it is when there is fog, black ice or frost on the roads. It is bad enough when the friend or relation in question is only an hour or two overdue. How much worse when he is three or four hours overdue, and how intolerable if he is as many as six hours overdue—
Lord CAMPBELL of CROY
I wonder whether the noble Lord will allow me to intervene. I am sorry to interrupt him. I think that he is referring to an amendment on this question which is in my 730 name, and appears at the bottom of page 3 of the Marshalled List. There are arrangements there for dealing with that very point.
§ Lord MONSON
I am very grateful to the noble Lord for his intervention. I was, in fact, coming to it. If one could be sure that the amendment of the noble Lord, Lord Campbell of Croy, would be accepted, then that would change the position. It is essential that access to a relation should be totally unfettered in any way. Even so, I am not entirely sure that the noble Lord's amendment would cover the situation, because, after all, many people are not on the telephone and sometimes telephones are out of order. But I quite agree that it would certainly improve matters. Failing that, I hope that the Opposition might press their amendment.
§ Lord McCLUSKEY
I have made my position clear. I am not going to press this one, simply because if the Government will not accept it I am not going to try to move against the Thomson Report. When it comes to the next amendment, the Government will find themselves in a different position, because I have Thomson with me and the Government do not.
§ On Question, amendment negatived.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of A binger)
I have to call your Lordships' attention to the fact that, if Amendment No. 12 is agreed to, I shall not be able to call Nos. 13, 14 or 15.
§ 5.34 p.m.
Lord FRASER of TULLYBELTON moved Amendment No. 12:
Page 2, line 39, leave out subsection (3).
The noble and learned Lord said: The purpose of this amendment is to delete subsection (3) from Clause 2 of the Bill. May I just remind your Lordships of what this is dealing with. The earlier part of Clause 2, with which we have been dealing, allows detention of a suspect at a police station for questioning up to a maximum period of six hours. That is what we have just been considering. Subsection (3) goes on to say:
Where a person has been released at the termination of a period of detention under
subsection (1) above in respect of a suspected offence, no power shall be exercised under that subsection in relation to that person in respect of the same suspected offence except on the authority of a justice, on cause shown".
I understand that to mean that a suspect may be detained in a police station for questioning for six hours. He may then be released and, if authority is obtained from a justice of the peace, he may be re-detained, as it were. Putting it very shortly, I think that the police should have one bite at this cherry, under this clause, and no more.
§ I believe I am right in saying that the next amendment, which stands in the name of the noble Lord, Lord Gifford, is designed to achieve the same purpose as my amendment by simply prohibiting the re-detention, and it does that by deleting the exception at the end of it. I am rather inclined to think that the noble Lord's way of dealing with the position is better than mine, but the point is exactly the same.
§ May I explain the reason for this? I have some difficulty in visualising when this provision could apply. I thought at first of the police detaining a man for six hours; the six hours were running out and they found that they did not have as much as they were hoping for and thought they could get, and were then going to ask for, an extension of another six hours or something of that kind. But I do not think that that is what is intended, because the provision applies only where the person has been released. So this subsection will not come into play until they have had one period of six hours, failed to get what they want and released him, and then wanted to detain him again on a warrant. That could amount to a kind of cat and mouse business.
It seems to me that that is not a procedure which we should encourage. If I understand it rightly, it is contrary to the Thomson Report which refers to this point in two places, at paragraph 3.15 and again at paragraph 3.25. The noble Earl, Lord Mansfield, earlier read the part of paragraph 3.25 headed" The duration of detention "and I should like to read the last two sentences. They state:
As soon as the purpose of the detention is served, the police will have a clear duty. They must either liberate the detainee or arrest him.
In any event he must be released within six hours of his arrival at the station, unless he is arrested and charged".
§ Although it does not say so in terms, it seems to me that the intention is clearly that he can be held for six hours under this provision, and then that is the end of that power. They can either release him or can arrest him, if they have enough to justify an arrest later on. This seems to me to be contrary to Thomson; it seems to me to be undesirable, and this is one respect in which the Bill has strayed rather too far in the direction of giving the police increased powers. I beg to move.
§ 5.39 p.m.
§ The EARL of MANSFIELD
It may shorten the deliberation of your Lordships if, at tins stage, I tell the Committee what is the Government's attitude to the view behind the amendment. I have a great deal of sympathy with the views expressed. As to the amendment moved by the noble and learned Lord, Lord Fraser, I would say only this. His amendment would delete subsection (3), which did not appear at all in the last Government's Bill, and the purpose of that subsection is to prevent the re-detention of suspects except, as it is written, "on the authority of a justice". Without it, the police could legally detain a suspect for an infinity of six-hour periods. This is quite unacceptable to the Government and, I hope, to most noble Lords. Therefore I would ask the noble and learned Lord to withdraw his amendment.
The noble Lord, Lord Ross of Marnock, together with his noble and learned friend Lord McCluskey, have proposed an alternative amendment which, in the circumstances, I hope they will not move. To allow for re-detention on the authority of a high court judge would have little or no practical effect, since high court judges could rarely be contacted when a six-hour period of detention proved to be insufficient.
I accept the principle of the amendments moved by the noble and learned Lord and those tabled by the noble Lord, Lord Gifford, and the noble Lord, Lord Ross of Marnock. I recognise that if this debate continued there would be strong feeling expressed in the House, with which in fact the Government agree. If, therefore, the noble and learned Lord is good enough to withdraw his amendment, I am 733 prepared to give an undertaking that the Government will table amendments at a later stage to prohibit re-detention in respect of the same suspected offence or any offence suspected to arise out of the same incidents.
§ Lord McCLUSKEY
Before the noble and learned Lord replies, may I say that it is a most astonishing speech to which we have just listened. The noble Earl is absolutely right to do what he proposes to do, but I am astonished that we should have to wait until this stage to find out that he intends to do it. The need for what he now proposes to do is plain, and many of the amendments have made that plain. It was also made plain at Second Reading. Indeed, as the noble Earl will recall, I drew attention to the fact that his friend in another place, now one of the Ministers responsible for this Bill, Mr. Rifkind, denounced the earlier Bill because he thought that it contained a provision which allowed re-detention. I am surprised that the matter should have gone so far.
I make that point not least because the noble Earl said that in the Bill which was introduced by the last Government re-detention was possible. If that was possible, it was acknowledged by the then Lord Advocate as being possible, and he undertook to come back on Report with an amendment to put that matter right. So perhaps the noble Earl should have acknowledged that. However, in order to avoid any across-the-Floor warfare, as it were, I certainly accept that it is desirable that the noble Earl should take away the clause and look at it in this way, and I have no doubt that others will consider withdrawing their amendments.
There is, however, the point that is raised by Amendment No. 14 which stands in my name and that of my noble friend Lord Ross of Marnock: namely, to make it quite clear, when a person is detained in respect of one offence and released at the end of the six hour period, that once that six hour period has come to an end he cannot then be detained on an analogous offence or an offence arising out of the same circumstances. I wonder whether the noble Earl's undertaking to look at the drafting will cover the possibility that the police might seek to re-detain him on some allegedly related offence.
§ The EARL of MANSFIELD
I really cannot take any criticism from the noble and learned Lord so far as his allegation of tardiness in respect of the Government is concerned. When the Bill was given a Second Reading in your Lordships' House the Government were accused of South African tendencies, which I found a little bitter. As soon as we come to that stage of the Bill when amendments are expected to be made and I stop the debate and say that the Government are willing to make changes to the Bill, even then I am criticised. So there is nothing that I can do to please the noble and learned Lord, and I think that I shall stop trying. Having said that, my undertaking was meant to include the matters which they obviously wished to raise in the amendment which was tabled by the noble and learned Lord and the noble Lord, Lord Ross of Marnock.
§ Lord McCLUSKEY
May I remind the noble Earl of what Mr. Rifkind said in another place a year ago. He said that he hesitated to make comparison with other countries, but, for example, the notorious 90-day detention law in South Africa worked in this fashion. That was said by the Minister who is responsible for this Bill, and that is why I accuse the Government of tardiness in putting the matter right.
§ Lord FRASER of TULLYBELTON
I am not at all accepting the construction put upon this by the noble Earl. If we struck out subsection (3), I doubt very much whether the police would be entitled to re-detain. It is open to very grave doubt. However, that is not worth arguing about now, and with the leave of the Committee I shall withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 13 and 14 not moved.]
§ 5.45 p.m.
Lord McCLUSKEY had given notice of his intention to move Amendment No. 15:
Page 2, line 43, leave out ("justice") and insert ("judge of the High Court").
§ The noble and learned Lord said: Before I withdraw Amendment No. 15, may I mention something in reply to what the noble Earl has said. Of course I accept that there would be enormous 735 difficulty in getting a judge of the high court to deal with the extension. I put the matter in this way merely in order to draw attention to the fact that it would be extremely easy to get a justice to do it. That would be too easy. If it is to be done at all, it must be very, very rarely done. However, given the circumstances in which the noble Earl is proposing to look at the matter again, I do not propose to move this amendment.
Would it not be better to substitute a sheriff for a high court judge? There are plenty of precedents.
§ Lord McCLUSKEY
Certainly it would be better to substitute a sheriff, but we do not have to substitute anybody if the noble Earl proposes to prevent this happening at all.
§ Amendment, by leave, withdrawn.
§ 5.47 p.m.
Lord GIFFORD moved Amendment No. 16:
Page 3, line 5, after ("informed") insert ("in writing").
§ The noble Lord said: I am not one of those who seeks to delete Clause 2 root and branch, although at Second Reading I did express fears, which I still have, as to its operation. I am aware that when a police officer in England and Wales has reasonable grounds for suspecting that a person has committed or is committing an offence punishable at least by a substantial period of imprisonment, there is a power then to arrest without warrant. The consequences of that in English law are that a detention is permitted in practice for some 24 hours, sometimes over the weekend—and indeed even longer in many cases, up to two or three days—before a remedy of habeas corpus is in practice available. Now that the noble Earl has given the assurance that six hours mean six hours and cannot be renewed, I, as an English practitioner, see some attractions in having that fixed period, provided that there are adequate safeguards attached to it.
§ There is one small safeguard that I seek to introduce by this amendment; namely, that the information given to the suspect when he arrives at the police station should not be just merely oral 736 information; there should be handed to him some document in which there should be clearly given the reasons why he is being detained. Although the amendment does not expressly provide for it, one would hope that that document would also advise him of his rights and obligations in respect of detention.
§ What one has to bear in mind in any circumstances where people are taken against their will from their lawful business by the police is that they are immediately subjected to an alarming and, for many people, a quite bewildering experience. Cautions are often administered and things said by police officers and station officers which are not really understood, which do not immediately have an impact when they are spoken and which can be digested and thought about only over a period of time.
§ There are two reasons why I suggest that the requirement that information should be in writing is of benefit. The first is to ensure that the suspect understands precisely what the reason is and, if he is detained in a cell, can look at it and think about it and cannot be heard to say later on that in fact he was not given any information at all.
§ The second reason is that it is a safeguard against abuse. If a reason is given in writing, it can in due course be taken away after the suspect has been released. It can be shown to a lawyer and, if the reason stated is plainly indefensible, it can be made the subject of an action for false imprisonment. If the information is merely oral, it can be contradicted by the police officer later on, or it can be said to be given when in fact it was not given, or a better explanation can be cobbled together at a later stage in order to justify what may have been an unjustifiable arrest. So I hope it will not be a difficult matter to write into the Bill that there should be a document in addition to oral information. I beg to move.
§ 5.51 p.m.
§ Lord FOOT
Before the noble Earl replies, I should like to add a few words to that. I should have thought that the purpose of the noble Lord, Lord Gifford, is in fact covered here, because there is the requirement that when a person is so 737 detained there shall be recorded, among other things, the purpose of his detention. If it was so expressed that that had to be recorded in his presence, I think that would meet the purpose of the amendment. Nevertheless, I think there is an ambiguity in the words, "the purpose of detention". Does that mean that the police officer is to inform the suspect of the reasons for his having the suspicions he has, or does it mean that he has to inform the suspect, "We are detaining you in order that we may check on your identity" or "in order that we may keep you in isolation while we pursue our enquiries", or what? I think the words are ambiguous.
The other small matter, to which I would draw the Committee's attention, is right at the beginning of this subsection (4) which says,When making a requirement under subsection (I) above the constable shall"—do so and so, but when I come to look at Clause 2(1) I cannot see any mention of a requirement. I think there must have been a slight slip-up here in the drafting because in Clause 1(1) there is of course a requirement, namely, that the police constable can require certain things to be done, but one does not find any requirement in subsection (1) of Clause 2; one merely finds a statement of what the police constable is entitled to do vis-à-vis the suspect. I draw the attention of the Minister to that. I dare say that in the course of time it can be corrected.
§ The Earl of MANSFIELD
In relation to the drafting point mentioned by the noble Lord, Lord Foot, it is one which has been observed and will be rectified at a later stage, but for good or ill I have decided not to table such amendments at this stage.
Turning to the amendment, the clause so drafted requires the police to inform a person whom they are about to detain of the purpose of the detention and, while I suppose this could be done in writing, I expect that it will be done in the simplest way, by word of mouth, and this is in fact what the Thomson Committee recommended in their second report at paragraph 3.22. Noble Lords will note that the police are required to record, as well as the time and place of detention, its purpose under clause 2(4)(b). Thus a record in writing will be made and 738 retained. I should just point out to the noble Lord that even when a person is arrested and charged—a much more formal procedure altogether and one which represents the first step towards the bringing of proceedings—he is not at that stage given a written copy of the charges against him; the procedure then also is verbal. I, therefore, cannot accept that the police should be required to give written intimation of the purpose of detention to a detained person, and I hope that on reflection the noble Lord will withdraw his amendment.
§ Lord GIFFORD
I am not altogether happy with the reply given by the noble Earl. The noble Lord, Lord Foot, made a good point when he referred to the matters which have to be recorded, but the question then arises, at what stage do they have to be recorded? I fancy that, in the normal run of things, the record will generally be completed when the period of detention is over. I also apprehend that no copy of that record would be given as a matter of course to the detained person. It really worries me that a new power is being given to detain people. That power is only to be exercised in certain circumstances and is to be circumscribed by various rights given to the suspected person: the right not to have to answer questions, the right to have someone informed that he is there, and so forth.
Speaking generally, and I accept that this goes wider than the immediate amendment that I am moving, it seems to me that merely for that information to be given to the suspect by means of a stock phrase repeated rather like the caution at present, without much meaning necessarily getting across to the detained person, is not good enough. At some stage of this detention, or maybe before the questioning begins or before the fingerprinting begins, there should be some kind of written information, either as a matter of practice or as a matter of law. Without meeting me in the matter of this amendment, I wonder whether the noble Earl cannot give some thought to the question of an intimation in some form of written pro forma at some stage of the detention, so that the suspected person may know and may read where he stands. Can the noble Earl go any further in relation to that?
I am sorry that the noble Earl has not agreed to look at all into the question 739 which I asked him to do; whether, without tying himself down to this amendment, a written intimation at some stage of detention should not be given to a suspected person. Since he has remained in his place and has not given any kind of intimation I wish to press the Amendment.
§ On Question, Amendment negatived.
§ 5.59 p.m.
Lord WHEATLEY moved Amendment
Page 3, line 16, leave out paragraph (a).
§ The noble and learned Lord said: This amendment relates to Clause 3(5) paragraph (a) in relation to the questions which may be put to the suspect and detainee in relation to the suspected offence. It is not meant in effect to take this paragraph (a) out of the Bill but to get it put into a more definite form. May I say that this is a matter on which I have consulted my senior colleagues in the High Court, and particularly the Lord Justice General, and they are all in full agreement that further consideration should be given to this power.
§ We have to bear in mind that this is in relation to a person who is merely a suspect. To put that position in perspective, may I explain what the position is when a person has been cautioned and charged. I hope I am not doing him an injustice, but I thought I heard the noble Lord, Lord Foot, in his first speech, refer to the questions which may be asked after a person had been cautioned and charged. I may have taken him up wrongly. But may make the position in Scotland quite clear.
When a person is cautioned and charged and he makes a statement—he is not obliged to make a statement, but he may do—then the police have no power to ask him any questions on that statement, except to clear up some ambiguity which might be inherent in it. That is the law of Scotland, and that, of course, is a protection which is enjoyed by a person who has been cautioned and charged. One would not expect much more rigid rules to apply to a person who is merely being detained as a suspect. The position of a suspect and the questions that are permissible to be put to him have been defined over the years by the courts in Scotland. May I crave
your Lordships' indulgence to explain what the courts have laid down in regard to the questions that may be put to a suspect— and I am taking the more modern ones. In 1954 the Lord Justice-General, Lord Cooper, said in the case of Chalmers, which for a while was regarded as a Bible:
When the stage is reached where suspicion or more than suspicion is reached further interruption becomes very dangerous and if carried too far—for example, to the point of extracting a confession by what amounts to cross-examination—the evidence of that confession will almost certainly be excluded
Then later, in 1975, in the case of Jones v. Milne the court said this:
In each case it depends on the whole circumstances whether there has been unfairness on the part of the police. The mere fact that he is being asked questions by a police officer is not in itself unfairness, and if answers are to be excluded they must be seen to have been extracted by unfair means which place cross-examination, pressure and deception in close company".
That was followed in a more recent case in 1979. That is the position in common law.
§ Is it intended that the questions that may be put to a suspected offender in relation to the suspected offence be circumscribed by the restrictions which have been laid down by the courts at common law? We are not certain that the phraseology of this paragraph ensures that, and we would like the Government to look at that again. One has to bear in mind that at that stage, while provision is made under Clause 3 for a solicitor to be informed, it does not follow, and there is nothing in Clause 2 as it stands at present, that there will be any delay in asking questions of the suspect until the solicitor arrives. In that situation it is all the more important that the restriction on the questions that may be asked should be clearly defined. I return to the point that, where you are having this innovation into the hitherto rights of people, they should be clearly set out and clearly defined.
If it is intended that there should be a restriction along the lines of the common law laid down by the courts would it not be sensible to say so? If one looks at paragraph (b) immediately following it says.
… exercise the same powers of search as are available following arrest",
and these powers have been laid down by the courts, so we know what that means; it has already been defined by the courts.
It may be argued—I do not know how successfully—that, although the courts have laid down the restrictions in respect of the questions to a suspect person at common law, where you have simply the bald statement, "put questions to him in relation to the suspected offence", the power would extend beyond the common law powers because it is enshrined in statutory provision. Therefore, if it is the intention of the Government to restrict this to what the courts have already laid down in regard to suspects, why do not they say so?
§ If it is suggested that subsection (7) may provide some sort of answer to this, may I point out that subsection (7) is an omnibus provision which would cover questions which in law are either competent or incompetent, because whether the question is competent or incompetent the person is allowed to say, "I do not want to provide any answer to it Therefore. t do not think that necessarily provides an answer to the point I am making.
§ On this subject, to save time later on, because it is cognate to it, when you go on to Clause 6(2)(2) it is provided in the Bill that it is intended that a refusal to answer questions, except those under Clause 2(7), could be a matter of adverse comment by the prosecutor, and by virtue of an amendment to be moved—which may not be given effect to—by other co-accused or their representatives. This is a further step forward because at the present time if a person is cautioned and charged, and the form of caution is "You are going to be asked questions in connection with a particular offence. You are not obliged to give an answer but if you do give an answer it will be taken down and may be used in evidence", under our existing law when a person makes no reply to that caution and charge it cannot be the subject of inference of guilt that he made no reply, because he was exercising his right, of which he had been informed, that he need not answer the questions. What is proposed later on in connection with these matters is that a refusal to answer the questions could be a matter of adverse comment either by the court, or by one of the other parties if the amendment were to be accepted to that effect. It is difficult to see why in that situation the suspect should be in a worse position than 742 a person already accused and charged. Therefore, I invite the Government to think carefully on this and see whether the requisite restrictions could be inserted into the Bill in its final form to ensure that the right to question a suspect under the Bill does not in any way transcend the common law restrictions which have been placed on it heretofore. I beg to move.
§ 6.9 p.m.
§ Lord McCLUSKEY
Perhaps I may intervene briefly to say that I would support the noble and learned Lord in this amendment. I can do so quite shortly because I need add nothing to the reasoning he has put forward. Perhaps I may add just this, that when this same matter was covered in the Bill to which I have referred which was introduced under the last Government this provision was not contained in anything like this form. I think the effect of the drafting of the previous Bill was not to touch the common law. What the Bill said was that a constable might take a person to a police station for certain purposes, and one of the purposes was to enable the police to put questions to that person in relation to the offence. I think that way of drafting it left the police subject to the ordinary common law, and there could be no suggestion that they had been given some additional power under the statute. I would invite the Government, when considering the noble and learned Lord's reasons, also to consider whether or not they might go back to the kind of drafting in the previous Bill, which I think dealt with the point.
§ The LORD ADVOCATE (Lord Mackay of Clashfern)
I entirely accept, of course, the exposition of the common law that has been given by the noble and learned Lord, Lord Wheatley. The Government's intention is that that law should apply. It is a law relating to the admissibility of the evidence and there is no intention to seek to innovate upon that law in any way. Therefore, when the question arises as to whether or not a statement made by a suspected person in answer to questions is admissible in evidence, these rules would apply and there is no intention to alter that. When this provision was put together it was thought that that would be its effect. Personally, I cannot discern much difference, from this point of view, between the 743 present form of the clause and the form which it took in the earlier Bill—certainly that is our intention.
I am not sure that it is wise to attempt to state the rules of the common law in the statute, but we shall certainly consider the matter and I can assure the noble and learned Lord that the intention is not in any way to alter or affect the development of the common law; the intention is to leave it free to develop as it has done very rapidly over the last few years.
I find it rather difficult to follow one of the last points made by the noble and learned Lord, the Lord Advocate, about the inadvisability of trying to incorporate the common law into a statute, because that is exactly what is done in paragraph (b) immediately following. I shall leave that point with him for consideration. I am quite aware of the difficulty sometimes of getting exact definitions, but that is why we have professional draftsmen to help in the process.
As regards his first point, may I say that it does not matter what the Government intend: it is what the Government say that will determine how the court interprets. I cannot pre-empt any judgment by anticipating at this stage what would be the judgment of the court if it were argued that this gave a wider power in the statute, because of the general terms, than is already given by the courts at common law. It would be the court that would finally determine what this gives effect to.
If, as I understand it, the Government are of the opinion that it should be confined to the restrictions in common law to which I have referred, then why not do it and remove it beyond a peradventure? Of course, I should have said that I do not propose to carry the amendment further.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)
Does the noble and learned Lord wish to withdraw his amendment?
§ Amendment, by leave, withdrawn.
Lord McCLUSKEY moved Amendment No. 18:
Page 3, line 18, leave out from ("arrest;") to end of line 29.
The noble and learned Lord said: I beg leave to move Amendment No. 18, and I should like to speak to Amendment No. 19 at the same time. These amendments affect what may happen to a person who is being detained during the six-hour period in a police station. Under Clause 2(5) he may be asked certain questions, and that was the subject of the previous debate. He may be searched, and paragraph (c) says that the police may:
take fingerprints, palmprints and such other prints and impressions as the constable may, having regard to the circumstances of the suspected offence, consider appropriate".
Then there is a proviso that the record of these prints and impressions shall be destroyed immediately afterwards. There are a number of separate points here, but I think that they all come together in relation to the amendment which I propose, which is to delete paragraph (c)
First, I draw attention to the breadth of the provision. It says:
palmprints and such other prints and impressions as the constable may…consider appropriate".
Can the Minister tell us what prints he has in mind? Are they footprints voice prints or dental impressions? What other prints does the Minister have in mind? I am certainly fascinated by the phrase, "such other prints". Does it include photography? I draw attention once again to the recommendations of the Thomson Committee Report, paragraph 3.24. The Thomson Committee Report recommended that the police should be entitled
to obtain the detainee's fingerprints and to search him without his consent".
I realise that both the Government in their proposals and myself are differing, to some extent, from Thomson. The Government seem to be going much further and my amendment would remove "fingerprints" as well.
§ I make the point that here we are dealing with a person who, at this stage, is simply suspected, who is in prison for six hours and who may not have a solicitor present. The police will take his fingerprints without necessarily charging him with anything at all. In my submission that is a rather more serious invasion of his ordinary liberty than is justified, and I think that it will be widely resented if people who are suspected and not arrested have their fingerprints taken by the police.745
§ I notice that there is a proviso which says that if a decision is taken not to prosecute that person, then the various prints will be destroyed. The trouble with that is: who on earth will supervise the destruction? How do we know that those prints will, in fact, have been destroyed? I know, because I have seen them, that the police have "gossip" or "intelligence" files in which they record all kinds of information which is not, in law, evidence but which has come from different sources including, as I have said, just gossip, information, anonymous telephone calls and so on. Is it not likely that that kind of information will find its way into one of these banks of gossip or intelligence information?
§ However, there is another point here. We find in other parts of the Bill—and of course in the law generally—that if a power is given, if a duty is placed upon a person, and the person does not perform the duty, there is a sanction. What is the sanction here? If the police choose not to destroy the record of the prints, what happens? Is anyone able to be punished? Is anyone able to enforce it? I do not know. What do we do? I must ask the Minister: What is the sanction if the police do not carry out this particular duty? He may say to me that it is unthinkable that the police will keep a secret file. I do not find it unthinkable at all. I think that it is quite possible that the police might put on to their secret gossip and intelligence file this type of information. I want to know what machinery the Government have in mind for ensuring that the prints are destroyed, and what sanction there would be, if any, if the prints were not destroyed. However, in general, I would submit to your Lordships that to take the fingerprints of a mere suspect is to go too far.
I should also mention Amendment No. 19, because that, in fact, is designed to put the matter positively. It says that:
Nothing in subsection (5)(b)…shall authorise the taking of fingerprints or the doing of anything else where it would not otherwise be lawful".
In that regard we are following what the noble and learned Lord, Lord Wheatley, suggested to the Government in a different context. We are simply referring to the standard of the common law there by using the words:
where it would not otherwise be lawful".
So we simply want the ordinary common law to prevail and not to be invaded in this way. I beg to move Amendment No. 18.
§ Lord MONSON
I support a great many of the reservations expressed by the official Opposition about this Bill and, indeed, a great many of the Liberals' reservations. However, I am sorry to say that in so far as references to fingerprinting are concerned, I cannot support the noble and learned Lord, Lord McCluskey, in this pair of amendments. If I ever had the misfortune for any reason to be detained under this subsection, I should certainly object to my photograph being taken and put on file and to details about my hobbies, friends, business associates and my daily routine and so on being recorded. For if such a dossier ever fell into the wrong hands—not only those relatively innocuous ones mentioned by the noble and learned Lord, Lord McCluskey, but, at the risk of being melodramatic, into the hands, for example, of the IRA, the PLO, the Baader-Meinhof Gang, the Red Brigade, and so on—it could undoubtedly endanger someone in so far as it would help such organisations to locate and pinpoint somebody who wishes to avoid their attentions.
However, in my submission, fingerprints fall into a quite different category. The only people to whom fingerprints can be of any value are surely the police. The only way in which fingerprints can be of value to the police is if one has committed a crime. I cannot see how any law-abiding person can possibly object to their fingerprints being put on file. For that reason, I tend to support the Government on this amendment.
§ 6.21 p.m.
§ The Marquess of LINLITHGOW
May I make a suggestion? On the question of the destruction of prints, could not the prints be returned to the detainee on his being released? This has been done in terms of fingerprints and other confidential documents of those who had records against them from the Gestapo in the war. The British Intelligence took a great deal of trouble to hand those documents back to those who were still in a position to receive them. I do not see any reason why such a simple procedure as that should not get over the problem of making sure that the records have been destroyed.
§ Lord RENTON
I think there is a practical difficulty about the suggestion made by the noble and learned Lord, Lord McCluskey, that there should be a charge made by the police before fingerprints are taken. The practical difficulty, as I see it is this: the police may, in investigating the crime, have found some fingerprints, and they may well have a reasonable suspicion that the person whom they have in custody is the person whose fingers might fit the fingerprints. But they may be wrong. However, in order to find out whether they are right or wrong it surely should not be insisted that they should first make a charge. The making of a charge is a serious step. I should have thought that it is much better to let the police establish whether or not the fingerprints can be related to the person in custody before that person is charged.
Bearing in mind that at this stage in the proceedings we are dealing with a reluctant detainee, in my view the taking of fingerprints will be desirable because it could hasten the identification of a guilty detainee on the one hand or exculpate the innocent on the other. Secondly, may I again refer to the late Lord Thomson's report. The noble and learned Lord, Lord McCluskey, said something about what this report had to say in paragraph 3.24, but he did not say that the committee thought that the invasion of the person involved in fingerprinting—it was limited to fingerprinting—was so slight as to be outweighed by the usefulness of the information provided. In those circumstances, I cannot accept this Amendment.
§ The Earl of MANSFIELD
The effect of Clause 2(5) is to allow a constable first of all to question the suspect; secondly, to search him; and, thirdly, to take his fingerprints while he is detained at a police station. As I understand the amendment, what the noble and learned Lord objects to is the fingerprinting part of the process, on the basis that it is an unjustified interference with civil liberty. I do not altogether follow the logic. If somebody is going to be questioned and searched, I should have thought that his civil liberties had to a degree been interfered with and that, I think we are all agreed, is a necessary power for the police.
The powers which the police are to be given in relation to persons detained under 748 Clause 2(1) of the Bill have to be adequate and effective if this new procedure is in practice to replace informal (and unregulated) questioning, as is intended. The Thomson Committee recommended that the police should be given the power to fingerprint detained persons without their consent, and we consider such a power is necessary and justified in view of the very real assistance it can give to police investigations. It is also likely to reduce the period of detention in those quite common cases where fingerprints are an important clue to the identity of the offender.
The detainee will be fingerprinted and, depending on all the circumstances, may be released immediately while the investigations continue; or it may be possible and desirable to check the suspect's prints against those of the offender before the six-hour period has expired. Either way, the power will benefit people who have wrongly fallen under suspicion in such cases, since it will furnish a convincing proof of their innocence more quickly than might otherwise have been possible. The exercise of the power is subject to the safeguard—which I have been asked about—contained in the proviso to Clause 2(5)(c) that the record of the fingerprints must be destroyed immediately following any decision not to institute criminal proceedings, or, on the conclusion of proceedings, without any finding of guilt.
I have been asked a number of questions. The noble and learned Lord, Lord McCluskey, asked what sort of prints were involved. I am informed that in mind are teeth, feet, and the soles of shoes. It is obvious that on occasions such evidence could be vital in demonstrating guilt or innocence, depending on the circumstances of the suspected offence. I was asked what happens if the police act illegally, unjustifiably, and contrary to the section by failing to destroy the record of the prints and impressions, and so on, according to the words of the proviso. In almost any police activity if the police wish to cheat, break the rules or break the law, they can and will do so, and we must face that. The rights of the suspect in such circumstances of course lie both in a civil action and in the police disciplinary machinery. It would be idle of me to pretend to the noble and learned Lord that any further rights exist than do exist. But I should have thought that the circumstances in which the police would behave 749 in this way would, happily, be extremely rare.
My noble friend Lord Linlithgow suggested that the prints might be returned to a released detainee. I am informed that the return of what were apparently the prints would offer no greater guarantee than the clear and quite unambiguous direction to destroy the prints. The reason I say that is that if the police were determined to act improperly they could easily copy and retain those copies and then, in a way which would be thoroughly cynical, give the suspect back the originals telling him, in effect, that he had the only copies. In the circumstances, I hope your Lordships will accept that we are talking about hypotheses here which I, for one, do not accept, and will not happen except in the rarest circumstances. For the reasons I have given, I regret that the Government cannot accept this amendment.
§ 6.29 p.m.
§ Lord WIGODER
I am occasioned to rise by an observation of the noble Earl that we are all agreed that there should be a power of detention. I think it only right to say that that is not so. It ought to be stated that the Criminal Bar Association of England and Wales, which consists of the vast majority of members of the practising Bar who both prosecute and defend, have given evidence to the Royal Commission to the effect that there should not be any such power and that people should either be free or be arrested, and there is no need for any intermediate stage such as is proposed in the Bill, and that is certainly a view I support.
The only reason I mention that is because I find it difficult to see how it can then be said, as is now being said, that there should be a power of detention but nevertheless, as is being urged in the amendment, it should be restricted in the ways proposed. I suggest to those who advocate a power of detention that the discussion of this amendment perhaps indicates the dangers to which that power may give rise and that it is perhaps the force of the case put forward, for example by the noble and learned Lord, Lord McCluskey, that should lead those who think that way to rethink their position as to whether there should be a power of detention at all.
§ Lord McCLUSKEY
The noble Lord, Lord Monson, mentioned the possible desirability of putting prints on file, but that is not what this clause seeks to achieve. In fact it is the very reverse; if the person is not charged, the prints are supposed to be destroyed, so it is not a question of compiling a file of fingerprints which might be of use to the police. That is not the intention of the clause, though the clause might result in that in some cases.
I am not at all surprised by the noble Earl's answer to his noble friend Lord Linlithgow in relation to the impossibility of providing any effective method of ensuring that the prints were destroyed, because I believe that that is the answer; if the police chose to keep these prints, there is nothing one can do about that and if they purported to hand back the prints they would of course have copies.
I also acknowledge the force of what the noble and learned Lord, Lord Renton, said. I have never disputed and would not dispute as a practical matter that it could be of some value to the police to have these prints, and it is a question of balancing the one thing against the other. But I would remind the noble and learned Lord that if the person detained as a suspect has any previous conviction, the police will already have access to his prints because they will be kept by the Scottish Criminal Record Office. The only person whose prints they are interested in getting is a person who has no previous convictions, who is not charged with any crime and who is detained on the suspicion of a constable. In my submission that is quite an extreme sort of case and I reply to the noble and learned Lord, Lord Renton, that while I acknowledge that one could see some advantage, balancing that against the points I have sought to make, there is something to be said the other way.
The other point which has been rather glossed over is the point that arises in relation to the rest of the words. I may have misheard the noble Earl when he replied, but I understood him to explain that "such other prints" would relate only to the soles of people's shoes. I would not have thought those were prints of the same kind as fingerprints and palm-prints.
§ Lord McCLUSKEY
We have been referred to paragraph 324 of the Thomson Report, and this is what was said in that report on this matter:Where any form of medical examination or search of body cavities or removal of any portion of the body—for example, hair, nail clippings, etc.—is sought by the police, they must obtain the consent of the detainee".In my submission, when one gets to the stage of taking footprints, dental impres sions
§ and so on, one is getting into that kind of territory, and in my submission that kind of physical invasion of the person of a suspect who is not charged with any crime is going too far. In the circumstances I invite your Lordships to support the amendment.
§ 6.34 p.m.
§ On Question, Whether the said amendment (No. 18) shall be agreed to?
§ Their Lordships divided: Contents, 57; Not-Contents, 108.753
|Ampthill, L.||Hale, L.||Pitt of Hampstead, L.|
|Aylestone, L.||Henderson, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Bacon, B.||Houghton of Sowerby, L.|
|Balogh, L.||Hutchinson of Lullington, L.||Recdliffe-Maud, L.|
|Blease, L.||Jeger, B.||Rhodes, L.|
|Blyton, L.||Kaldor, L.||Ross of Marnock, L.|
|Boston of Faversham, L.||Kilbracken, L.||Stedman, B.|
|Burton of Coventry, B.||Kilmarnock, L.||Stewart of Alvechurch, B.|
|Cledwyn of Penrhos, L.||Kirkhill, L.||Stewart of Fulham, L.|
|Collison, L.||Lee of Newton, L.||Stone, L.|
|David, B.||Llewelyn-Davies, L.||Strabolgi, L.|
|Davies of Leek, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Taylor of Blackburn, L.|
|Davies of Penrhys, L.||Taylor of Gryfe, L.|
|Donnet of Balgay, L.||Lovell-Davis, L.||Underhill, L.|
|Elwyn-Jones, L.||McCluskey, L.||Wallace of Coslany, L.|
|Gaitskell, B.||Milner of Leeds, L.||Whaddon, L.|
|Galpern, L.||Murray of Gravesend, L.||Willis, L.|
|Glenamara, L.||Noel-Baker, L.||Wilson of Radcliffe, L.|
|Gordon-Walker, L.||Oram, L.||Wootton of Abinger, B.|
|Goronwy-Roberts, L.||Peart, L.|
|Abinger, L.||Ferrers, E.||Macleod of Borve, B.|
|Airey of Abingdon, B.||Ferrier, L.||Mansfield, L.|
|Alexander of Tunis, E.||Forester, L.||Margadale, L.|
|Allerton, L.||Fortescue, E.||Marley, L.|
|Amory, V.||Galloway, E.||Massereene and Ferrard, V.|
|Auckland, L.||Geoffrey-Lloyd, L.||Mills, V.|
|Avon, E.||Gisborough, L.||Monson, L.|
|Balerno, L.||Glasgow, E.||Morris, L.|
|Bellwin, L.||Godber of Willington, L.||Mottistone, L.|
|Bradford, E.||Gowrie, E.||Mowbray and Stourton, L.|
|Brownlow, L.||Grantchester, L.||Murton of Lindisfarne, L.|
|Caithness, E.||Greenway, L.||Newall, L.|
|Campbell of Croy, L.||Gridley, L.||Norfolk, D.|
|Carr of Hadley, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Northchurch, B.|
|Chelwood, L.||Nugent of Guildford, L.|
|Clifford of Chudleigh, L.||Hanworth, V.||Onslow, E.|
|Cockfield, L.||Harmar-Nicholls, L.||Orkney, E.|
|Cork and Orrery, E.||Hawke, L.||Orr-Ewing, L.|
|Cottesloe, L.||Henley, L.||Perth, E.|
|Craigavon, V.||Hereford, V.||Renton, L.|
|Crathorne, L.||Hives, L.||Rochdale, V.|
|Cullen of Ashbourne, L.||Hornsby-Smith, B.||Romney, E.|
|de Clifford, L.||Hunt of Fawley, L.||St. Aldwyn, E.|
|Denham, L. [Teller.]||Killearn, L.||St. Davids, V.|
|Drumalbyn, L.||Kilmany, L.||Salisbury, M.|
|Ellenborough, L.||Kimberley, E.||Sandys, L. [Teller.]|
|Elles, B.||Kinross, L.||Selkirk, E.|
|Elliot of Harwood, B.||Lauderdale, E.||Sempill, Ly.|
|Fairfax of Cameron, L.||Long, V.||Sharples, B.|
|Faithful, B.||Lyell, L.||Spens, L.|
|Falkland, V.||MacAndrew, L.||Stradbroke, E.|
|Falmouth, V.||Mackay of Clashfern, L.||Strathspey, L.|
|Swansea, L.||Ullswater, V.||Westbury, L.|
|Teviot, L.||Vaux of Harrowden, L.||Wilson of Langside, L.|
|Tranmire, L.||Vernon, L.||Wise, L.|
|Terfgarne, L.||Vickers, B.||Yarborough, E.|
Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 19 not moved.]
§ 6.44 p.m.
§ Lord FOOT moved Amendment No. 20:
Page 3, line 29, at end insert—
("() All questions put to the person under paragraph (a) of subsection (5) above and all answers made by him to such questions shall be recorded on tape and no evidence of such questions and answers shall be admissible in evidence in any subsequent proceedings except as recorded on the tape and the transcript thereof.")
The noble Lord said: In my few opening remarks at the start of the Committee stage I said that I hoped to be able to demonstrate to the Committee, as we proceeded with our discussions, that the Bill has departed in important respects from the recommendations which were made by the Thomson Committee in their second report. I should like to read to the Committee my amendment because I think that its effect will be made plain simply by doing so:
All questions put to the person under paragraph (a) of subsection (5) above"—
that is the paragraph we have been discussing, relating to the right of a police officer to interrogate the suspect when he is in detention—
… shall be recorded on tape and no evidence of such questions and answers shall be admissible in evidence in any subsequent proceedings except as recorded on the tape and the transcript thereof".
§ In my view this is certainly the most important amendment which I and my noble friends are placing before the Committee. It will be observed that we had intended later in the Committee stage to move to leave out Clause 2 altogether. Let me say at once that if this amendment is carried and is to be put into effect, I for one at any rate will not move that Clause 2 be left out. Perhaps for a few moments I may explain the position of myself and my noble friends—certainly my noble friend Lord Wigoder—on this matter. We are very suspicious of the whole conception of this detention of a suspect, 754 which is an innovation into the law not only of Scotland, but of England and Wales, too. However, having said that, if we are to have this power of detention at all, our major concern is that there should be adequate safeguards to see that the ordinary and basic rights of the individual are not infringed during the period of detention. I think that some of us would go further than that. Some of us would say, "Let's scrap the whole idea of detention". For myself, if we could have the safeguard contained in this amendment, I should be content to allow the new system of detention to be put into operation with a view to seeing how it will work out.
§ In passing, I should like to explain why we took the attitude we did on the last amendment, which was taken to a Division. Most of my noble friends, I think, abstained, as I did. We did that because we thought that if there is to be a system of detention at all—although we do not like it—with the idea that there can be an investigation either to clear the man or to arrest him, it only makes sense to allow the police during that period of detention to make such inquiries as asking him questions, asking for his fingerprints, and indeed searching. If none of those things can be done, there does not seem to be any purpose at all in having the system of detention. That was the reason why I think most of my noble friends abstained from voting in the last Division.
§ Before I go on to deal with the matter of recording interviews on tape, may I remind the Committee of what the clause does and of the situation in which it puts the suspect. First, it provides that a suspect can be detained for up to six hours in a police station, and that during that time he can be interrogated and searched, and the like, and his fingerprints can be taken. Further, although the police are required to inform his solicitor, and indeed one other person, of his being there, there is no right to have the solicitor there or for the solicitor to interview him while the period of detention is running. It is right (is it not?) for me to say that that condition of 755 detention, in those circumstances, amounts to keeping the suspect incommunicado; and during those hours in which he is in detention the only people who keep any record of what goes on, what is said, and what is done, are the police. That, of course, is the situation which obtains in this country today, and indeed to some extent, I believe, in Scotland, in the sense that where a suspect can be induced to go to a police station or can be induced to answer questions, although he has the right to walk out if he wants to, he may not know about it. That is what happens today, and suspects are interrogated although there is no legal right to detain them for that purpose. What is now being proposed is that that should be turned into a legal power, and that that power should be vested in the police.
§ This situation of a suspect being held in a police station incommunicado has given rise (as I think anybody who has any experience of the criminal law, certainly in England and Wales, will know) to enormous difficulties and, as I believe, to very considerable evils. In the first place, under our present arrangements there is no method of monitoring what happens and what is said and done. The only record is the record which is kept by the police; and whenever that record is subsequently challenged—in, for example, a later trial—then some very unpleasant things happen. First, you have a trial within a trial. You have the allegation of the police as to what was said by the accused or the suspect while he was in their custody; that evidence may be challenged by the accused; and you have a trial within the trial, in the absence of the jury, in order to try to find out where the truth lies and simply what actually happened. That matter can be resolved—because there is no objective record of what took place—only by the judge deciding whether the witnesses for the police or the witness for the accused (and that, of course, is only himself) is the more credible witness of truth. There is no objective way whatever available to the courts in that situation to ascertain where the truth of the matter lies, and what really happened in the interrogation.
§ I do not need to urge this, I know, upon the noble Earl, Lord Mansfield, because he will be well aware of the fact (which has been a matter of complaint 756 in the English courts, indeed, for decades now) that so many criminal trials are held up in order that you can have this wholly unnecessary investigation as to what went on in the police station; because if you had an objective record of it, then all that trial within a trial would be quite unnecessary. Another evil of the system is this. It is an invitation to the dishonest policeman, or perhaps the over-enthusiastic policeman, to "doctor" the evidence of what was said by the accused or the suspect—to "put in the verbals"—and if you do have a dishonest policeman or an over-enthusiastic policeman who "doctors" the evidence it is almost impossible in the nature of things for the accused man to demonstrate that that has happened.
§ Looking at it from the point of view of the police, in my experience nothing is more unattractive than what happens when the police come forward and give evidence that the accused man made a confession while he was in their custody under interrogation, and the accused challenges this and says that the police have made it up, it is fraudulent and it is dishonest. What happens then is this—and counsel for the accused has no escape from it. If his instructions are that the evidence of the police is untrue, then he has no alternative but to cross-examine the police officer to suggest that he has been telling lies and to suggest, indeed, that he has tried to pervert the course of justice. That is the obligation which falls upon counsel if he is instructed to that effect; and nothing is more deplorable for the morale of the police than to have a perfectly honest policeman go into the witness box and then have to suffer a grilling at the hands of experienced counsel, all to suggest that the evidence he has given has been invented and is untrue. That is a very grave evil, and many people, over a long period of time, have been anxious to try to find some way in which those evil things could be avoided in our criminal practice.
§ All these evils arise simply because we have never found a way, or have never been willing to find a way, of having an objective record of what is actually said in the police station—the questions addressed to the suspect and the answers which the suspect gives. We are now introducing legalised detention for the main purpose of interrogating the suspect. 757 Surely this would be the very moment to introduce into the law of Scotland—and, I hope, later, into the law of England—the objective record of what takes place in those circumstances. I am going to crave your Lordships' leave to make one or two quotations, which are a little long, from the Thomson Committee's report upon this question of tape recording, because the Thomson recommendations for the use of tape recording as a safeguard for the suspects, and indeed as a safeguard for the police, were not made as recommendations which were advisable or might be helpful; they were made as recommendations which the Thomson Committee said were essential if these new powers of detention were to be given to the police. It will perhaps shorten things if I make one or two quotations from the Thomson Committee's report, putting the matter in their own words, because those words will be more effective, perhaps, than anything I could say.
The first quotation that I would wish to make is on page 33 of the Thomson Committee report, where, under letter c., it says:
Interrogation of suspects in police stations must be recorded on tape. We deal with this more fully in paragraph 7.21. Tapes cannot easily be provided for questioning which occurs outside a police station. Our object is to provide a safeguard for persons being interrogated in the privacy of a police station and also to protect the police against unjustified allegations. We therefore do not suggest that interrogations conducted elsewhere need be recorded on tape";
but in the privacy of the police station, they say, it is imperative that it should be recorded on tape.
The next quotation comes from page 36 of the report, and is a little longer. It is under paragraph b., which is headed
Answers made to police questions by a suspect".
This is where they argue the case. They say:
In paragraph 7.13c. we recommend that interrogation of suspects in police stations must be recorded on tape. We carried out a practical experiment with simulated interrogation of a suspect by police officers and found the result to be technically satisfactory. While we accept that there will of course always be difficulties with inarticulate suspects or with those who use unfamiliar dialects, the quality of reproduction was sufficiently good to satisfy us that it is practicable to obtain on tape an adequate record of interrogations. Furthermore we confidently expect that the availability of more sophisticated equipment will improve the standard of reproduction
and that with training the technique of interrogation by police officers will also improve, so that vague or ill-expressed statements are not allowed to go unexplained. The cost of tape recording"—
this was written in 1975; I dare say it has gone up since then—
is not prohibitive, the models of tape recorders which we used being marketed at £25—£75. (We understand that a feasibility study is being carried out in England and Wales) … The presence of a tape recorder may upset some persons, but on balance we consider that the vast majority of persons will be reassured by knowing that anything that is said will be accurately recorded. The fact that the police know that the interview is being recorded on tape will tend to reduce the chances of interrogation being conducted with any impropriety. We think that tampering is unlikely but to reduce that possibility we recommend that the tape be sealed and placed in the custody of the procurator fiscal as soon as possible after the conclusion of the interrogation
That is a long passage, but I may, perhaps, conclude with one more reference which is on page 37. This is a very striking conclusion to which the committee came. They asked themselves the question as to what will happen if the tape broke down. Should you then allow some other record to go into evidence? They came to this conclusion. They said this in paragraph 7.23:
It is appreciated that our proposals rely to a large extent on the effectiveness of tape recorders. We realise that all or part of a police interrogation may not be recorded through failure of a tape recorder. The question arises whether or not an account of any unrecorded interrogation given by a police officer from memory and notes made at the time or immediately afterwards, should be admissible in evidence. We consider that it should not be admissible, as we feel strongly that particularly accurate recording of interrogation in a police station is essential as a safeguard to all the persons concerned".
§ Nobody can be left in any doubt that this very highly qualified committee considered this matter with the greatest care and made their own investigations and their own inquiries. There can be no possible doubt that that committee came to the conclusion that, if you are going to have a system of detention of suspects in a police station, it is essential that there should be an objective record by way of tape.
§ When the committee expressed themselves in terms of that kind with such assurance on this matter, saying, in effect, that they thought that the whole system of detention would be imperilled if you did not have the objective record, I am left wondering how it comes about that it 759 is not included either in this Bill or in the Bill previously produced by the Labour Party. We on these Benches are the people who, on this occasion, can claim that we are upholding the Thomson Committee. It will be interesting to see whether the noble Earl will be able to satisfy this committee that there is some valid reason why that important proposal of the Thomson Committee should not be made the law of the land. I beg to move.
§ 7.3 p.m.
The Earl of SELKIRK
I wonder whether the Government would tell us, roughly, how they view the evidence which will be collected during the period of detention? My objection to the amendment of the noble Lord, Lord Foot, is contained in the words in the amendment: "answers shall be admissible in evidence". It has never occurred to me that every word that was said during a police inquiry during detention should be admissible in evidence. I have never for a moment thought that that would be the case. I may be wrong, but I had always assumed that if the accused makes a declaration, that is then brought up in due course in the judicial examination which takes place later. But that anything could be quoted or that, indeed, the tape recorder could be used to bring evidence throughout the trial subsequently, I thought would be absurd. I had thought that only a part of it—or probably none of it—would be available as evidence later. Can the noble Lord say how he views that? I should not have thought that the evidence in this period would be admissible, except in very exceptional circumstances. The normal thing is for the accused to make a declaration if he wants to do so. I may be wrong; but this is how I read the Bill.
§ Lord FOOT
I do not know whether I ought to try to answer this now or to give way. I understand the situation to be this. If under the new procedure a person is interrogated at the police station in the way that I have described and a record is made, then, under the provisions of the Bill as its stands, that record will be made by a police officer who would be expected to write down in his notebook the questions asked and the answers given by the accused at the interrogation. In any subsequent trial, all 760 that evidence as to what was said on one side or the other, the questions and the answers, would all be admissible evidence. The noble Earl shakes his head, but that is what the Bill provides. Perhaps we can leave it to the noble Earl, Lord Mansfield, to tell me that I have got it wrong.
If the noble Earl is able to refer to page 36 of the report, it is clearly set out there by the Committee that there is going to be this system of interrogation and that a record of it, of one kind or another, must be kept. Whether it is kept by a police officer in his notebook or by way of a tape recorder, in either event, it is all admissible in evidence.
§ Baroness MACLEOD of BORVE
May I ask the noble Lord for clarification on this? Does he envisage that all detainees in every police station should have all their conversations taped, whether at the end of the conversation that man is allowed to go free or whether he is charged? Furthermore, what would happen if the detainee did not speak the language and somebody had to take it all down in Greek or Cypriot and then translate it? Further, if the detainee was then allowed to go without being charged, would the noble Lord envisage that tape being destroyed?
§ Lord FOOT
I am hesitant about speaking about the present state of Scottish law. If the noble Baroness is asking me to do that, I should be reluctant to accept her invitation. The noble Baroness asked what would happen in the case of somebody who did not speak the language. I take it that there would be an interpreter available. That would be the case even if the only record being made was the record made by the police officer in his notebook. There would be an interpreter, and on the tape there would appear the question asked in English, the translation of it into Turkish or whatever, the answer given by the accused in that language and then the interpretation of it by the interpreter back to the police officer. I do not know that there is any difficulty in that. The other question the noble Baroness asked has escaped my mind.
§ Baroness MACLEOD of BORVE
It was whether in the noble Lord's view, if the detainee is then released and the conversation has been taped, that tape should be destroyed.
§ Lord FOOT
I am not sure that I have any formed view. I do not know that the Thomson Committee made any recommendation on that score one way or the other. I do not think that the problem is a real one because at the present moment if the record is made by a police officer in his notebook, he does not, if then the suspect is released or is subsequently acquitted, tear up his notebook. The record is still there. The situation would be no worse under the tape recording procedure than it is at the present moment under the procedure of recording it in a policeman's notebook.
§ Baroness FAITHFULL
May I ask the noble Lord for clarification on another point? Is it suggested' that if there is a tape that that tape is accepted as final? I have dealt with a number of detainees who are perhaps mentally disturbed or overwrought. They will say things and then will say afterwards: "I did not really mean that". Is it suggested that what is on tape is final, even if somebody says—as has often been said to me—"But I did not really mean it; I was in a fuss"?
§ Lord FOOT
I am sorry that I should be regarded as such an authority on this matter, which I certainly am not. When one looks at Clause 6 of the Bill one finds there that provision is made, among other things, that a person who has been charged with an offence is then brought up before the sheriff for a judicial examination. It is at that stage, according to Clause 6, that questions can be put to the accused man by the procurator fiscal, in particular inviting his comments with regard to any confession that the man was alleged to have made when he was being tape recorded. So he is given the opportunity at that judicial examination under the Bill to offer any explanation that he wants to offer as to why he said what he did, that he was confused, muddled or what.
That part of the judicial examination is one which I should be prepared to accept because there is considerable virtue in the suggestion that where an allegation is made that a person has made a confession, one should not have to wait for the trial some weeks or months later to learn that he is questioning the confession; one ought to be able to find out reasonably soon after he has made the alleged confession whether or not he is sticking to it.
§ 7.13 p.m.
§ Lord ROSS of MARNOCK
It is becoming more and more obvious we are at a disadvantage by the fact that we do not have copies of the Thomson Report, in order that we may read in full what their evidence is. As I understood it, the noble Lord, Lord Foot, suggested that there were experiments going on somewhere. Frankly, I would rather wait to see the result of these experiments before I put this into the statute. It can be introduced as far as I know without any statutory reform at all.
I am not quite so thrilled about the inevitable accuracy of tape recorders, especially if they are going to be operated by people who may not be all that experienced with them. Remember, this will imply that they will have to be available in every single police station up and down the country. I do not know how long it is going to take us to achieve that situation. I cannot see the Government bending over backwards and saying, "Yes, you can have money for this". From my own personal experience and the experience of others that I have heard about regarding tape recordings, they can be "doctored". It is no use the noble Lord shaking his head about that. If ever I am asked to do a tape recording, the first thing I say is: "For how many minutes?" and they get that number of minutes because then they do not cut the tape up and put it back together. It is the simplest of things. The other day I was doing a programme on Scottish radio—the BBC, by the way—when, inveterate smoker as I was, I suggested: "Would it be all right if I lit a cigarette? Would the noise of my cigarette lighter be heard?" They said, "It is all right, we will cut that out".
So I do not think that it is all that much of an assurance for anyone concerned. I wonder whether persons will be more likely to make a statement if it is tape recorded or if it is recorded in the normal way. There are many people who might well be frightened of it and decide not to do it, who are frightened of the implications of it as well. I know it would be to an advantage; it may well be to an advantage because so many allegations are made, there is so much controversy, about statements. It would probably have an advantage not only because of 763 what is said and what questions are asked, but how they are asked. I can see that advantage. Bearing in mind that the Thomson Committee suggested that there should be experiments, I should like to know whether these experiments have been concluded, whether they have been satisfactory and so on. I would rather wait for that than put this into the statute and have some assurance later on about the efficacy of this and introduce it administratively.
§ 7.16 p.m.
§ Lord HUTCHINSON of LULLINGTON
I should like to support the noble Lord, Lord Foot, on this, and in everything he has said as to the enormous waste of time in criminal trials taken up with the disputes about what is or what is not said in police stations. The trouble about this suggestion for legalised detention is that it has opened a whole new area for the increase in this vast waste of time in criminal trials. Surely the reality of what is going to happen is that someone will he detained for up to six hours and during that period they will make an alleged confession, possibly to an extremely serious offence. Under this clause that person should have been cautioned before he was questioned. He comes out of the detention eventually and sees a solicitor. The first thing he will say—and he may well be right—is: "I was never cautioned". We all know that the caution in fact goes by the board; we all know that people are not cautioned, and whether or not one is cautioned can never be proved. It is the word of the police officer against the detainee. So there will be endless disputes about whether or not the caution was administered and whether this confession would be admissible.
This was foreseen by the objections which the noble Lord, Lord Wigoder, mentioned, of the Criminal Bar Association of England and Wales, when they were against this idea of detention. They have been fighting ever since the proposals of the Criminal Law Revision Committee many years ago for the introduction of tape recording. All those of us who practise in the criminal courts know of the waste of money and time over the endless disputes about what goes on in police stations. That is unacceptable. 764 The only possible solution to the problem is to introduce tape recordings.
It is perfectly possible to make recordings secure against tampering. They can be put into the custody of an official; they can be locked up and the microphone can be taken out so that the machine itself cannot be got at. We have been into all that in the Criminal Bar Association. There is no problem about security at all. The whole joy of a tape recording is that it in fact records what happened, and the result will be that in innumerable cases defendants who have made confessions will plead guilty and the disputes will not take place. On the other hand, if there has been some misconduct by the police it will be there to be heard.
On the question of experiments, I hope the noble Earl will not fall back on that excuse for not supporting this amendment. Experiments and experiments and experiments have been going on now for ages at the Home Office and we never hear the result. The cost of introducing a tape recorder into each police station is minute and there is absolutely no reason whatever for not having tape recorders in police stations, other than the fact that the police do not want them there. That is not necessarily because they are going to be in any way dishonest but because they feel they wish to question defendants and detainees in a way which may not be a method which should be heard about in court. Such a method could, they might feel, lead to the discovery of crime and to the discovery of other crimes and other criminals, and getting on to a good sort of level with a criminal in a way which cannot be covered by the Judges Rules and the way that lawyers, solicitors and others might want things done.
That is the only objection to tape recorders. There is no technical objection at all. There is no reason why the tapes should be doctored. There have been innumerable experiments and we do not hear the results. I should like to lend my support to this amendment. It is a golden opportunity for the Minister at last to achieve a breakthrough. If he is not prepared to support this amendment it will be most interesting to hear what objections there still are to the introduction of tape recorders in these circumstances.
§ 7.23 p.m.
Since the parallel or simile of taking statements has been introduced in considering the position of suspects who are detained, although that is not a proper equipartation because the situation is different, I think it is right that I should inform your Lordships of the present position in Scotland with regard to the taking of statements from a person who has been cautioned and charged—because it has been suggested that that can lead to a great deal of injustice. I am not saying that there cannot be improprieties. Whatever you legislate for, there is always the liability of some police officer going beyond the score.
As regards the taking of statements from a person who is cautioned or charged, he is first duly cautioned and the words of the caution are written down. If he is then prepared to make a statement, the statement is taken down. It is read over to him at the end and he signs both the fact of the caution and the nature of the caution. He then signs the statement at the end and by doing so, at least prima facie, he is accepting that as a correct record. I know there may be deviations in certain respects but there is a further precaution which is now the practice of the police in Scotland—it has been in operation for some time—and which has reduced quite considerably, though not entirely, the objections to the manner in which a statement is taken. When a person has been cautioned and charged, the investigating officers have to hand the matter over to an independent officer of the police force who has not been concerned in the case at all; and so the statement is taken by that independent police officer. In the result, the number of objections we have had regarding the manner in which statements are obtained has been reduced quite considerably, though I must say in all fairness they have not been entirely removed.
Therefore at the present time we have a position where less and less objections are made, but that does not preclude—this point has been made previously—a person at the trial challenging the propriety of the statement on the grounds that it was improperly obtained. If that happens, then you have an inquiry into the matter at the trial and a decision is made on the following grounds, because normally 766 it is what we call "a trial within a trial". The jury are removed, the objection is taken, evidence is led in support of it and, if need be, any counter evidence. If the judge is satisfied that no reasonable jury could hold other than that a statement was unfairly obtained, he can refuse to allow the evidence to be admitted before the jury. On the other hand, if there is a question of dispute, it is left to the jury to decide on all the evidence whether or not there was unfairness. If the jury decide that there was unfairness, they will pay no regard to the statement. If there was no unfairness they will have due regard to the statement. If there was unfairness they will put it out of their minds.
I thought it was right that I should inform the House of the position in case people were under a misapprehension that there was something more lax in the procedure than there actually is.
§ 7.27 p.m.
§ Lord RENTON
I was surprised to hear from the noble Lord, Lord Foot, that the Thomson Committee said there should be no alternative to tape recording; and his amendment is based upon that assumption. However, I suggest that there are six good reasons why there should be an alternative to tape recording. Some of them have been mentioned already. They are these: first, there is the possibility of tampering with the tapes. That can be done not only by, so to speak, "rubbing out" parts of the record but also it can be done by a policeman who perhaps was not too particular or perhaps even over-zealous by arranging that a part of the record he did not like, especially if it was in his own voice, should be rubbed out and then he could insert what he wanted to put there. That is the first reason: the possibility of tampering with tapes.
The second reason is the complete failure of the machine and, alas, that can easily happen, as has been acknowledged. It can happen not only because of a failure of the machine itself but because of a power cut. Thirdly, there is the problem of inarticulate speech or, to put it another way, incomprehensible pronunciation which is capable of more than one interpretation when played back. If a jury is listening to evidence in a trial, in a vernacular used in another part of the 767 country, I can well see that the trial within a trial will become a most confused and complicated affair. The fourth reason has already been mentioned by my noble friend Lady Macleod, and it applies when foreigners are giving evidence which has to be interpreted. Whether or not we are lawyers, we all know that interpretations do not always exactly represent what the person being interpreted wished to put across. So there is another possible cause of confusion.
The fifth possibility—of course I readily concede that you can get this already through the police officer taking his notes—is the intrusion of incriminating material or the person in detention unintentionally giving away the fact that he has previously been convicted. That will then be on the tape.
The sixth and last point I wish to mention—and with respect I think it is the most important of all—is this: not every person in detention will feel confident that they can make a statement straight into a machine. I am not sure I would always feel confident myself; and they might feel much happier if they could slowly dictate what they wanted to say to a police officer, on the understanding—which every good police officer will allow—that if a mistake is made when dictating it can be corrected when the written record is read back and before it is signed by the person in detention. That seems to me to point necessarily to the fact that we should not give the tape recorder a monopoly, as has been proposed by the noble Lord.
§ Lord WIGODER
In the course of that catalogue of the deficiencies of tape recording, the noble Lord, Lord Renton, might have added a seventh which is frequently used by police officers to try to justify their opposition to this method of recording interrogations. Police officers say that there is nothing to stop a particularly wicked criminal, in the middle of a tape recording when there is a perfectly innocent conversation going on, from suddenly shouting out, "Officer! Stop kicking me in the face". That goes on the tape recording and, furthermore, say the police, the suspect will then bang his face on the table very hard, breaking his own nose, and then insist that a doctor should be called in in order to justify it. 768 The absurdity of that merely goes to show the length to which police officers will attempt to argue a case against any form of tape recording. In my respectful submission to your Lordships, the points that the noble Lord made are not really a valid ground for saying that therefore notebooks are a preferable method.
§ Lord WIGODER
No, indeed. We are not discussing the absolute virtues of tape recording. Everyone accepts that accidents may happen with tape recordings. Of course, there might suddenly be a power failure. Of course, a witness might be somewhat incomprehensible talking in his own dialect. So he will be to the police officer. Presumably, the same defect arises if the police officer is writing in a notebook. Of course, the defendant might inadvertently give away his previous convictions on the tape recording. But then, of course, at the trial that part of the tape recording would be eliminated, just as it is cut out of the police officer's notebook when it arises. So one can go through all the points made by the noble Lord, Lord Renton, in criticising tape recording.
§ Lord RENTON
Will the noble Lord allow me to intervene? With respect, I think he has missed the point I was making. I was making the point that the tape recorder should have no monopoly. By all means, we must have tape recorders used. There is a place for them. They are now established practice. But to say that no other method should be used, even when the person in detention may prefer it, seems to me to be quite unjust.
§ Lord WIGODER
It seems to me that the answer to that is really that one must compare the merits and demerits of tape recording, with the merits and demerits of the only alternative that we know of, which is that police officers should write down to the best of their recollection—it may be several hours after an interview—the best that they can remember about it.
We all play this game in courts. The noble Lord, Lord Renton, has played it as often as the noble Lord, Lord Hutchinson, or I have. It is solemnly suggested by police officers that, at the end of an interview, they are capable of taking a notebook and writing down verbatim 769 exactly what has been said. The noble Lord, Lord Renton, knows that he could no more write down accurately what I have just said, than I could write down accurately what he has just said, and yet this game goes on ceaselessly in our courts.
Not only that, but the opportunities for dishonesty, if police officers wish to be dishonest, are infinitely greater if notebooks are used than they ever could be if tape recording is used, even allowing for the point that the noble Lord, Lord Ross, made, that it may conceivably be technically possible for a dishonest police officer to tamper with a tape recording. So it might be, but it is infinitely easier for a dishonest police officer to tamper with his notebook if he wants to, when he is writing down his record of an interrogation. I suggest that the noble Lord, Lord Hutchinson, and the noble Lord, Lord Foot, are right in saying that this is an opportunity to get rid of an obsolete and inaccurate system, and to replace it by something which will be an enormous improvement.
If I may deal with one point made by the noble and learned Lord, Lord Wheatley, he suggested that we should wait indefinitely—because it will be indefinitely, if the police have any say in the matter—but then, eventually, we might introduce this reform by administrative measure. If I misunderstood the noble and learned Lord, I apologise. But I want to point out that it would not be possible to introduce the substance of this amendment by any administrative measure, because this amendment provides quite specifically that, in future, tape recording would be the only admissible form of evidence in this situation. I hope your Lordships will feel that this is a sensible amendment, which follows a sensible recommendation by the Thomson Report, and is one which the Committee should support.
§ Lord AIREDALE
I have one very small point. The noble Lord, Lord Renton, mentioned interpreters. I should have thought that the tape recorder was of double value in the case of interpreters, because interpreters misunderstand and, sometimes, get it wrong, and if the suspect says, "I am afraid the interpreter got it wrong or did not understand", the whole thing will be down on the tape and it can be checked.
I think that the noble Lord, Lord Wigoder, has made the point which definitely decides me against the amendment, that lawyers who specialise in getting criminals off the hook will certainly tell their man in general terms, "Always make an awful row in the police station and say ' Stop beating me '."
§ 7.37 p.m.
§ The Earl of MANSFIELD
This has been a wide-ranging and not unentertaining debate. If I needed any convincing on a personal level that tape recorders were probably not altogether satisfactory, this debate would have done just that. I wonder whether I may take the Committee back to the amendment and, most importantly, to Clause 2, because I do not think that all noble Lords are fully aware of what it actually provides. What I can say is that the amendment would give immediate effect to the recommendation of the Thomson Committee, that the interrogation of suspects in police stations must be recorded, and would make it virtually impossible to bring this clause into operation until installation of equipment had taken place in every police station. That is the first point.
The noble Lord, Lord Foot, very properly read out the recommendation of the Thomson Committee at paragraph 7.13.c. The recommendation is that:Interrogation of suspects in police stations must be recorded on tape".But the report goes on to say:Tapes cannot easily be provided for questioning which occurs outside a police station. Our object is to provide a safeguard for persons being interrogated in the privacy of a police station, and also to protect the police against unjustified allegations".In the light of the later remarks during the debate, they would seem to be in need of protection.
We therefore do not suggest that interrogations conducted elsewhere need be recorded on tape".I do not know whether—and I hope that I am not being offensive to the noble Lord, Lord Foot—he divined the significance of that remark on the part of the committee. Clause 2(1) lays down the circumstances in which a person can be taken to a police station or other premises and, subject to various provisions, de- 771 tamed there. So that the clause, in circumstances to which I shall come back later, envisages that suspects will not be taken to a police station.
The report of the Thomson Committee recognises that there would be difficulties in implementing the recommendation and suggests that these may be readily overcome. As my noble and learned friend explained at the Second Reading of the Bill, it was thought, following the discussions with the police and other interests, that the difficulties—not just the technical difficulties but the difficulties which were envisaged by some of the speakers in this debate—would be substantial. So it was decided that an experiment should be conducted by the two police forces of Tayside and Central at Dundee and Falkirk. That experiment is going on now and is expected to last at least a year.
One noble Lord said that the cost would be minute. It is right to say that so far the cost has been very far from minute. In order to obviate some of the dangers of tapes being doctored, if I may use the expression, it was thought proper that each machine should make three tapes simultaneously, one to be sealed and sent to the procurator fiscal's office, one for use by the police and one for the suspect, if eventually he was arrested, and his legal advisers.
The machine therefore is far from the little cassette thing with which my teenage daughter makes the night air hideous with her cassettes. It is complicated. Perhaps I can tell your Lordships that the eight sets of equipment in Dundee and the four sets of equipment in Falkirk have between them cost no less than £37,000. The noble Lord, Lord Ross of Marnock, put his finger on it: there is a very definite resource question here over the use of tape recorders.
It does not end there. If you have these machines, it also happens that persons must be trained to use them; you do not just turn on the machine and it goes playing merrily away. I appreciate that this does not pose insuperable difficulties; of course it does not. But not only do people have to be trained to use them; someone also has to be on duty at the police station 24 hours out of 24 hours who is able to work 772 the thing and deal with any suspect who may be brought in. That is just an indication of some of the difficulties. I see the noble and learned Lord, Lord Hutchinson of Lullington, looking at me with a faintly cynical smile, but I can assure him that the difficulties are not merely in the mind.
May I turn now to the question of suspects. I appreciate the concern of noble Lords that the arrangements for the questioning of suspects should incorporate suitable safeguards. We unreservedly endorse the Thomson Committee's objective of providing safeguards not only for persons interrogated at the police station but also for the police who, as I have already indicated, may face unjust or malicious accusations of improper practice. If the operational difficulties can be overcome, it is eminently sensible that tape recorders should be brought into use and that at least their use should be examined to see whether their operation is feasible.
There is one matter which I should like to draw to your Lordships' attention, and I think that here it is, if I may say so, the urban English mind coming out. In many cases in Scotland it is envisaged that suspects will be detained in places where there is no police station. There are many places in Scotland where there is no such thing—for miles and miles and miles. In those circumstances, there is a local officer, with a car. It is envisaged that in circumstances such as these t'-'e suspect will be detained, possibly in some place such as a village hall, while inquiries connected with the case are made. If this amendment were accepted, it would therefore be impossible for Clause 2 to be implemented in very large parts of the rural areas of Scotland because, as I say, the facilities simply do not exist, and it might take a great deal of time and be physically impossible to take a suspect to a place where a tape recorder happened to be set up.
I hope I have demonstrated that if this amendment were accepted by your Lordships the effects would be very far-reaching, probably more far-reaching than perhaps the noble Lord, Lord Foot, had any idea of. Other noble Lords and noble Baronesses have pointed to the difficulties which are inherent in the use of these machines. I am not going to say anything 773 else at this stage about the admissibility of evidence. However, if tape recorders were brought into operation in all cases in police stations and if for any reason they broke down, I suggest that it would be quite wrong for suspects' answers necessarily to be excluded. On all those matters the noble Lord's amendment is of course silent.
I hope I have said enough to show that this is not an amendment which the Government can accept, although I am sympathetic to the ideas which lie behind it in so far as they relate to fairness both to the accused and to the police who have to deal with the matter. For the moment, however, I cannot advise your Lordships to accept this amendment.
§ 7.47 p.m.
§ Lord FOOT
In that case, in a moment, I shall ask my noble friends to support me in the Division Lobby, but first may I make a few brief replies to some of the things which have been said, in particular by the noble Earl. He says that it will not be practical to introduce tape recorders into police stations until they can be introduced into every police station. I see no reason for that. If you have a police station which is ill-equipped and does not have a tape recorder and if you continue to record as we have been recording up to now, by a policeman taking it down in writing, that would make the situation no worse than it is today. But in all the police stations where you have a recorder you will have the advantage of the objective record which a tape recorder involves.
The noble Earl says that in Scotland there are some places where there is not a police station. All this was thought of by the Thomson Committee. The Thomson Committee recognised throughout that there are certain stages. There is the moment when a man is first detained by the police, when conversations take place and when words are said which cannot be recorded on a tape recorder because they are outside the police station. The Thomson Committee recognised this at once. As the noble Earl will remember, the committee provided that statements made by a suspect should be divided into various categories.
They dealt first with anything said to the police by a person who is not a suspect. That is, the police are just asking general 774 questions. Those questions are ones which the policeman simply records in his notebook. He records just the gist of what is said to him. The next category deals with questions and answers between the police officer and the suspect outside the police station when he is originally detained. Because there is no tape recorder there, they provided that what the policeman should do is to write down in his notebook what the suspect says and invite the suspect to sign it. But from the moment when they get to the police station, which is the moment when the man is being held incommunicado and therefore unable to communicate with anybody else, the committee said that if there is going to be interrogation it should be recorded on a tape.
After that they went on to deal with the sort of thing that happens when a person has been charged. Then a different system comes into operation—the system that we have at the present moment, whereby a person is charged with the offence, he is told that he need not say anything if he does not want to, but that anything he does say may be given in evidence, and it is then up to him as to whether or not he wants to say anything. Similarly, if, instead of answering questions under interrogation, a person volunteers to make a statement, then Thomson provides that the same procedure shall operate as operates today: the tape recorder is dispensed with, the paper is produced and the caution is read out to the person, and he is then invited to sign the caution as having been read to him. He then makes his statement, and either he or the policeman writes it down, at the end of which time he is invited to sign a statement, saying: "I have read this over and I do not want to make any alterations"—or if he does want to make any alterations, to make them.
All that has been considered by the Thomson Committee and, having considered it, they have said that the most sensitive moment of all is when the man is held in private in a police station and the only people who know what is said, what questions are asked and what answers are given, are the police and the man himself; and they said that in those circumstances the man is at a hopeless disadvantage. I was absolutely staggered to hear the noble Lord, Lord Renton, speaking about the dangers of tampering with the machine. 775 Who will tamper with the machine? Certainly not the suspect or the accused—he will not have the opportunity of tampering with it. The only people who would have the opportunity of tampering with the machine—even if one could not invent a machine with which it was impossible to tamper—would be the police. Does the noble Lord suggest that if there are policemen so corrupt that they are prepared to tamper with the machine; that those policemen are not equally capable of writing down lies in their own notebooks and producing them as evidence later on?
Another thing which horrifies me about the discussion we had is this—and I do not direct this so much at the noble Earl. At the beginning I was speaking about justice and about how one gets a fair trial, of how one ensures that wicked policemen do not invent stories, and how one can try to ensure that wicked crooks are not able to get their counsel to "grill" an honest policeman. That is all I am concerned about, as to whether we can introduce some fairness into the whole system. I do not know any legal authority in the land who has not deplored the way in which proceedings are carried on in our criminal courts at the present time. When I hear used arguments such as the one about cost used by the noble Earl, some astronomical sum for setting up this experiment in Dunkirk—
§ Lord FOOT
Falkee and Dunkirk, or wherever it was! Has the noble Earl considered what the cost is in this country and in Scotland of all the trials within trials that go on? The noble Lord, Lord Hutchinson, will correct me if I am wrong, but sometimes a trial within a trial can go on for days, and even for weeks at a time. What about all that expenditure of public money?
§ The Earl of MANSFIELD
I am sorry to interrupt the noble Lord in the full flow of his peroration, but Old Bailey arguments really do not obtain in Scotland where it is quite a rare occurrence to have that sort of trial within a trial. I think the noble Lord's vast experience is not wholly applicable North of the Border.
§ Lord FOOT
I do not know how they manage in Scotland. Am I to understand that there are no policemen in Scotland who ever attribute to an accused person something that he has not said? Am I to believe that in Scotland there is never an occasion when an accused person wrongly accuses the police of having tampered with the evidence? If that is the case, then of course you do not have any trials within trials in Scotland; but I should be surprised if the situation in Scotland was so different from what it is in this country.
Then we have the argument that persons must be trained. All these matters were dealt with by the Thomson Committee in the quotations which I read out at the beginning. All the questions of cost, tampering, persons being trained and so on were all considered, and were considered to be subjects which could be dealt with perfectly satisfactorily.
Although I am not at all sure that it will be a useful exercise at this time of night, I will certainly invite my noble friends in a moment to go into the Lobby on this matter, although naturally we cannot expect to be successful. But if this amendment is rejected then it is for consideration whether, at a later stage in the debate on this measure, we should seek the complete elimination of Clause 2.
§ 7.57 p.m.
§ On Question, Whether the said Amendment (No. 20) shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 94.777
|Airedale, L.||Grey, E.||Rochester, L.|
|Avebury, L.||Hale, L.||Seear, B.|
|Banks, L. [Teller.]||Hampton, L.||Simon, V.|
|Barrington, V.||Hooson, L.||Tanlaw, L.|
|Beaumont of Whitley, L.||Houghton of Sowerby, L.||Taylor of Mansfield, L|
|Craigavon, V.||Hutchinson of Lullington, L.||Wade, L.|
|Denbigh, E.||Kilbracken, L.||Wigoder, L.|
|Evans of Claughton, L.||Lee of Newton, L.||Winstanley, L.|
|Foot, L. [Teller.]||Robson of Kiddington, B.|
|Abinger, L.||Geddes, L.||Northchurch, B.|
|Alexander of Tunis, E.||Gisborough, L.||Nugent of Guildford, L.|
|Amherst of Hackney, L.||Glasgow, E.||O'Neill of the Maine, L.|
|Ampthill, L.||Godber of Willington, L.||Orkney, E.|
|Auckland, L.||Gowrie, E.||Orr-Ewing, L.|
|Avon, E.||Gridley, L.||Perth, E.|
|Balerno, L.||Hanworth, V.||Renton, L.|
|Bellwin, L.||Harmar-Nicholls, L.||Rochdale, V.|
|Belstead, L.||Hawke, L.||Romney, E.|
|Bethell, L.||Henley, L.||St. Davids, V.|
|Bradford, E.||Hives, L.||Saint Oswald, L.|
|Brownlow, L.||Hornsby-Smith, B.||Salisbury, M.|
|Campbell of Croy, L.||Inglewood, L.||Sandys, L. [Teller.]|
|Cockfield, L.||Killearn, L.||Selkirk, E.|
|Cork and Orrery, E.||Kilmany, L.||Selsdon, L.|
|Cottesloe, L.||Kinross, L.||Sempill, Ly.|
|Crathorne, L.||Lauderdale, E.||Sharples, B.|
|Cullen of Ashbourne, L.||Linlithgow, M.||Stradbroke, E.|
|de Clifford, L.||Long, V.||Strathspey, L.|
|Denham, L. [Teller.]||Lyell, L.||Swansea, L.|
|Drumalbyn, L.||MacAndrew, L.||Teviot, L.|
|Dundee, E.||Mackay of Clashfern, L.||Tranmire, L.|
|Ellenborough, L.||Macleod of Borve, B.||Trefgarne, L.|
|Elliot of Harwood, B.||Mansfield, E.||Ullswater, V.|
|Exeter, M.||Margadale, L.||Vaux of Harrowden, L.|
|Faithfull, B.||Marley, L.||Vernon, L.|
|Falkland, V.||Merrivale, L.||Vickers, B.|
|Falmouth, V.||Mottistone, L.||Westbury, L.|
|Ferrers, E.||Mowbray and Stourton, L.||Wilson of Langside, L.|
|Forrester, L.||Murton of Lindisfarne, L.||Wise, L.|
|Fortescue, E.||Newall, L.||Yarborough, E.|
Resolved in the negative, and amendment disagreed to accordingly.
§ 8.4 p.m.
Lord FOOT had given Notice of his intention to move Amendment No. 21:
Page 3, line 35, after ("address") insert ("or to allow himself to be searched or otherwise dealt with in the terms of subsection (5) above").
§ The noble Lord said: I am not going to move Amendment No. 21, or, later, Amendments Nos. 22 and 23. Perhaps I should explain that this was always regarded by us as a matter of small importance and I do not think that it is really worth while to pursue the matter at this hour. Therefore, with the leave of the Committee, I shall not move Amendment No. 21.
§ [Amendments Nos. 22 and 23 not moved.]
Lord McCLUSKEY moved Amendment No. 24:
Page 3, line 35, at end insert ("and there shall be recorded the time when he was so informed, the identity of the constable informing him, the terms in which he is informed and his response, if any, thereto, and he shall be invited to sign the record.").
§ The noble and learned Lord said: I can deal with Amendment No. 24 extremely 778 briefly. Subsection (7) of Clause 2 requires there to be a warning given to the person detained under subsection (1) that he is under no obligation to answer any question other than his name and address, and the constable shall so inform him. I should simply like to see that that matter is recorded. Indeed a record has to be made of certain other matters under subsection (4), and I should have thought it would be logical to make a record of the relevant matters here. The relevant matters are, I believe, the time when the caution and the warning information were given and the identity of the constable who so informed the detained person, the terms, just as in the case of any ordinary caution, and the response.
§ Then there is a separate provision which goes along with it, that the detained person shall be invited to sign the record. The reason is that that would ensure that the record was made at the time and, that it is a contemporary record. I believe that in principle this is sound. It is the only check one would have. One recalls that the person's solicitor is not going to be present, and this would at least show that he acknowledges that he was given a warning by the particular constable in particular terms and at a certain time. 779 I should have thought the Government would have little difficulty in accepting that as a record that ought to be made. I beg to move.
§ Lord MACKAY of CLASHFERN
We are sympathetic to the principle that the police should record the time when the caution in terms of subsection (7) is given and the identity of the officer who gives it. This will serve to ensure that a particular officer is assigned responsibility for telling the detained person of his rights and that he is told at the proper time. However, we are doubtful of the value and practicability of recording the other details mentioned in the amendment. I shall certainly undertake to bring forward an amendment dealing with the first two matters. We remain doubtful with regard to the value of the rest, for the reason that these matters are fairly stereotyped in nature and we cannot see any particular virtue in inviting somebody to sign the record in the circumstances that are likely to obtain in this situation. I hope that with what I have been able to say the noble and learned Lord will be satisfied.
§ Lord McCLUSKEY
I am grateful to the Lord Advocate for what he has said. I do not think it goes quite far enough. May I invite him to consider this: if a record is made of the matters he has mentioned and the suspect is invited to sign that record, will that not be of advantage to all parties, because it cannot then be argued at the man's trial that he was not given the warning. If he has signed the record it is evidence against him. Also it ensures that the warning is given at the time, recorded at the time and signed at the time. I should have thought that that would remove the possibility of unnecessary disputes about whether or not the warning was given. If the noble and learned Lord would undertake to give that further thought I should be quite happy to leave it like that.
§ Lord MACKAY of CLASHFERN
Yes, I am happy to do that. I wanted to make clear what we have in mind at the moment and not to be too encouraging, but certainly we will consider it further.
§ Amendment, by leave, withdrawn.780
§ 8.10 p.m.
§ The EARL of SELKIRK moved Amendment No. 25:
Page 3, line 35, at end insert—
("(8) Where a person has been released at the termination of a period of detention, he may request that he be medically examined.").
§ The noble Earl said: I beg to move Amendment No. 25. It is becoming rather common form nowadays to criticise the police. Indeed, it has been said that there is a smear campaign in that direction. I must say that even the noble and learned Lord, Lord McCluskey, in the course of his Second Reading speech, made some rather wild and extravagant remarks.
§ The purpose of the amendment is simply as follows: After a man has been in detention he can demand a medical examination; that is to say, if he feels that he has been in any way physically wrongly treated, he can straight away say, "I should like to be examined". That means that afterwards he cannot tell an exaggerated story to the police, papers or any other source, saying how brutally he had been treated in police hands. That is all there is to it. I should be very glad if the Government would consider whether they think that such a provision is necessary, or whether there are other means by which such a requirement can already be met. I beg to move.
§ Lord McCLUSKEY
I should like to make a few comments about this matter. I accept, of course, that in the vast majority of cases that have come to my attention, allegations made against the police are without any reasonable foundation, at the very least they tend to be wildly exaggerated. I am sorry that my remark should fall into that same category in the eyes of the noble Earl. But I believe that his amendment does have the following value: it does protect the police against this kind of allegation. It too often happens that a person, after leaving the police station—whether he has gone there apparently voluntarily or has been arrested, but subsequently released—turns up a day or two later before his own doctor or some other doctor, exhibits the odd bruise or whatever, and alleges that it was done by the police. I believe that the Government might be sympathetic towards the notion that the person should be medically examined if he requests it at the time. 781 If he does not request it, then his failure to request it when he subsequently alleges that he was injured in police custody is a matter of comment before the court.
§ Lord MACKAY of CLASHFERN
Although I entirely understand the point of view that my noble friend has put forward in support of this amendment, I should like to point out that there are substantial difficulties. When a person is released from detention he is, of course, free to go about his business and, if he wishes, to go and have a medical examination as soon as possible. There is no need for the police to be involved. I would respectfully agree with what the noble and learned Lord, Lord McCluskey, has said about complaints against the police. I have succeeded him in having to look at these complaints and my experience, by and large, is very much the same as his, although so far it is over a much shorter period.
The provision of medical resources and so on that would be involved in this would be very substantial and they would have to be on call—they would have to be available without much advance notice because unfortunately the police would not be able to say when this particular situation would arise. There is also the difficulty that examination at the end would not, of itself, conclude the matter, because there might be a question about what the state of the man was at the beginning. Indeed, it is the comparison between what he was like when he went into detention and when he came out that is really important. Although examining at the end is possible, examining at the beginning is a little more difficult. Therefore, although, as I say, I very clearly understand the matters which my noble friend has raised, I fear that we do not consider it practicable to accept the amendment.
The Earl of SELKIRK
I think that it is a question which the police should be asked. They should be asked whether they would like this. I am grateful to the noble and learned Lord, Lord McCluskey, for what he said. I do not think that the difficulties which my noble and learned friend the Lord Advocate put forward are very substantial. Doctors can be obtained fairly easily and in very few cases would this question be asked. 782 I am only saying, "Please think again". I shall not press the amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3 [Right to have someone informed when arrested or detained]:
§ 8.15 p.m.
Lord CAMPBELL of CROY moved Amendment No. 26:
Page 3, line 42, leave out ("reasonably").
§ The noble Lord said: I beg to move Amendment No. 26. We have now reached Clause 3 which concerns the right to have someone informed when arrested or detained. That was the point which the noble Lord, Lord Monson, was speaking on at an earlier stage in our proceedings today. In the same way as I am, I think he must be concerned about the question of notification of his or her whereabouts when a person is being detained. It could cause great worry or even distress if someone seems to disappear for several hours without explanation, especially if it is in the evening or late at night, and if it is somebody who is elderly, who is regular in organising his life and who normally would not be late coming home or for an engagement without sending a telephone message or otherwise making contact.
§ So my object is to probe the meaning, in the first place, of the word "reasonably" which my amendment seeks to leave out. It could simply be there to dispose of eccentricity, mischief or frivolity—for example, the detained person demanding that the Prime Minister, the Queen or some well-known personality with whom he is not acquainted, should be informed. I recognise the problem if that is the sole reason. But, if that is so, I would point out that the police cannot always be certain. The detained person might, indeed, be a friend or related to a pop star or a well-known actor on stage or television. Now and then there could be a genuine request.
§ So, my purpose is to probe what the police action would be on receiving a request that someone be informed as well as the solicitor. The question of the 783 discretion which the police have to delay arises on the next Amendment, so I shall not pursue that now although clearly it is related to the procedure about which I am asking.
§ I recognise, as I mentioned in my speech on Second Reading, that we do not want a provision in the Bill to become a means whereby a criminal could tip off, through the police, another associate or associates in the offence, if it is eventually established that an offence has occurred. To put it at the extreme it could be a question of tipping off a gang that would then go off into hiding or abroad.
§ However, as this is a Committee stage I shall not speculate any more, because I think that at this stage it is better for me to ask my noble and learned friend whether he can explain what is intended by this word and then perhaps the Committee can comment upon the purpose of the word.
§ Lord MACKAY of CLASHFERN
My noble friend has, of course, anticipated the reason which led to the insertion of this word. The purpose is to prevent the detainee asking that intimation be made to some well-known figure with whom the detainee has no connection whatever. The way we thought to achieve this is to require that the power should be reasonably exercised by the detainee. Of course, if one person named by the detainee is rejected as being occasioned by eccentricity, mischief or frivolity, then it would be possible for him to nominate someone else. It appears necessary to us to protect the situation against abuse of this power and that is the reason for the word and we think that this is the best way to achieve it.
§ Lord McCLUSKEY
I think that the noble and learned Lord, the Lord Advocate, might have added that there is a good precedent for this provision. I cannot recall the precise section, but there is a section of one of the English Criminal Justice Acts which uses these words. It would be interesting to know, if I am right about that, whether their use of the word "reasonably" has given rise to any problems in the English context.
The other point that I should like to make is that most of the solicitors who 784 are likely to be so informed, will be solicitors who are in regular practice, who will be accustomed to operating this kind of thing, and I should have thought that they do not number very many. In fact, in Scotland most of the solicitors who are experienced in criminal matters would be likely to inform the relatives themselves. There is nothing in the Bill to stop the solicitor who is informed from telephoning the man's wife or mother, or whoever it may be, and that might be a sensible way to do it. I should have thought that the noble Lord, Lord Campbell of Croy, would recognise that, whether or not the solicitor was an experienced criminal lawyer, it is likely that, having received a message and knowing that there is no restriction on him passing that message on to the wife or other relative of the person detained, he might do so. I think in all the circumstances that the provision in the Bill is a reasonable one.
§ Lord MACKAY of CLASHFERN
The provision of Section 62 of the Criminal Law Act 1977 is in these terms. I am glad that it was the noble and learned Lord, Lord McCluskey, who said that it was a good precedent coming from the law of England, but I certainly accept that it is perfectly reasonable that we should follow it.
§ Lord MONSON
Although I am extremely sympathetic to the amendment moved by the noble Lord, Lord Campbell of Croy, as he might imagine, I see the force of the arguments from the two Front Benches. Even if the words, "a relative", were substituted for the words "one other person" I can well see that the counter-argument would be that then a Mr. Kray who is detained might inform his brother—or brothers; I am never quite sure how many there are—that the police were on his tail and it would be wise for him to get away. I see the force of that argument. If this amendment is not pressed, I very much hope that more attention will be given to the subsequent amendment, which is an important alternative.
Lord CAMPBELL of CROY
I am grateful to receive that explanation. I also recognise that it is the immediately following amendment—the question of the police having discretion to delay— 785 which will really cover the example of the Kray brothers, which indeed I gave in my Second Reading speech, and that this is the best way of carrying out the purpose, which I think is agreed, that one should avoid frivolous requests for information to be conveyed.
I do not go along entirely with the noble and learned Lord, Lord McCluskey, because if somebody asked me to get in touch with a solicitor, I am glad to say that I have very few dealings with solicitors and I would find it difficult. It would have to be the one who dealt with my will some time ago in Inverness, and he would not have the faintest idea where my wife was or how to get in touch with other members of the family, and that might apply to people who are not dealing with solicitors every week. I accept now that this is probably the best way in which this difficult description of the "other person" can be protected, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.23 p.m.
Lord FOOT moved Amendment No. 27:
Page 3, line 43, leave out from first ("delay") to end of line 3 on page 4.
The noble Lord said: The purpose of this amendment has already emerged, but may I just say exactly what it affects. Under Clause 3:
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 …".
My amendment would have the effect of cutting out the words which follow upon that:
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".
§ This is a pretty empty matter at best because this clause does not give the suspect or the arrested person the right for his solicitor to come to see him. It does not do anything of that kind. It merely confers upon him the right to have a solicitor notified that he is in the police station, where he is, and the right to have some other person notified to the same effect; but neither of them is entitled to 786 come to the police station and interview him at that stage. In those circumstances, I can see no justification for permitting the police to delay even that intimation of the fact that he is at the police station "in the interest of the investigation". Those words are almost meaningless, are they not? How easy it is for a police officer to say, "No, I don't think it is in the interests of the investigation to comply with this rule, and so I don't propose to tell anybody that you are here".
Further than that, there is a question which I should like to ask the noble and learned Lord the Lord Advocate. It says at the beginning of the clause that this is:
Without prejudice to section 19 … of the 1975 Act".
This is the Criminal Procedure (Scotland) Act 1975. That section provides:
Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person, and informing him of the place to which such person is to be taken for examination".
§ That is judicial examination.
There appears to me, on the face of it, to be a conflict there, because at the beginning of this clause it says that this clause applies, as does Section 19, where a person
has been arrested and is in custody in a police station or other premises …".
As I understand the law in Scotland, once you are arrested you have to be charged. Therefore, it follows from that that under Section 19 as soon as you have been charged the police are obliged to notify your solicitor that you are there and that his professional assistance will be required. This of course says, on the contrary, that in exactly the same circumstances the police can, if they want to, delay the information to the solicitor that the accused is in custody if it is "in the interest of the investigation".
§ To my reading of it, Section 19 appears to say one thing, that you must tell the solicitor immediately that the man has been charged and is going to be brought up for examination; but this clause seems to say, "No, you can delay that as long as you like, as long as the policeman considers it is in the interest of the investigation". I might not have comprehended the matter, 787 but if the noble and learned Lord could explain it to me I should be obliged.
This clause, as it is drawn, is to some extent a qualification, certainly of what was recommended by the Thomson Committee. What the Thomson Committee said in their Summary of the controls on detention at paragraph 3.27 on page 16 was:
The exercise of the power of detention will be subject to the following controls:
I need not worry the Committee with a and b, but c says this:
If the detainee so requests, information of his detention shall be sent to his solicitor, and to a friend or relative".
§ There is nothing in Thomson to suggest that the police ought to be allowed to delay passing the information to the solicitor if they think that it is going to interfere with their investigations. Here we have another example of the way in which the Government's Bill qualifies the Thomson Report, and of course qualifies it to the disadvantage of the detained person. If the noble and learned Lord could explain the legal point to me, and if he could deal with this question as to whether he really thinks that the words I am asking to be left out carry the matter very much further. I should be obliged.
§ 8.30 p. m.
§ Lord MACKAY of CLASHFERN
I will try to deal with the legal point first. Sections 19 and 305 of the 1975 Act deal with the situation following arrest, and by that time, according to our understanding of the position, the police would have to have sufficient evidence to charge the person. That is the difference between our law and the law of England—that arrest and charge are more or less simultaneous; and the proper justification for arrest is that one is in a position to charge, so that by that stage the investigation has at least reached the stage of having sufficient evidence available to the police.
The opening words of Clause 3 are designed to preserve that situation and to make it clear that we are not in any way impinging on the rights of an arrested person. On the other hand, in constituting the rights of a detained person, the general principle has been to follow Thomson in this matter. But it has seemed to us that there may be situations in which an intimation to the solicitor or 788 someone named by the detainee will have the effect of acting as a tip-off. That may not happen very often, but it is a risk, according to our information; that if, for example, a member of a drug smuggling gang or something of that sort is detained, it will be apparent that something has happened to bring to the attention of the police the activities of the gang. If the person detained is able immediately to insist that even some relative or friend should be informed immediately, that will alert the person, the other member of the gang, to the fact that the police have caught up with them, and that may lead to disposing of property or other action to defeat the ends of justice.
We have tried to draw the power to delay the intimation as narrowly as we can, consistent with the object we are seeking to achieve; and I hope, in the light of that explanation, the noble Lord will feel there is a point here that we are trying to safeguard, and we have safeguarded it to the minimum extent necessary to allow the matter to be intimated without prejudice to the investigation. Only so far as necessary—to prevent interference with the investigation or the prevention of crime or the apprehension of offenders—will this delay be allowed. And if the police did delay, they would require to justify the delay on one or other of these grounds. I respectfully submit that that is a reasonable restriction and one which is in the interests of achieving the kind of balance all of us are seeking.
§ Lord McCLUSKEY
I listened carefully to what the Lord Advocate said, but there is one point where he left the matter rather grey. Does what he said about the possibility of a tip-off apply to the right of a person in detention to have his solicitor informed? The noble and learned Lord said, when he came to that part, that some person named by the accused might be informed in this way and that would result in a tip-off. Does that apply to the solicitor as well? Is that what the Lord Advocate is saying?
§ Lord MACKAY of CLASHFERN
I am saying that it could apply to the solicitor. That may be a matter for the judgment of the police, and I would not want to suggest that it may ever apply to a solicitor; it may or it may not. It is a matter for the judgment of the police. 789 There are solicitors and solicitors, and it may be necessary for the police in some circumstances to exercise a judgment on this matter in a situation with which they are faced. Of course, it is only if they can justify it as necessary in the interests of one or other of the stated causes that this would operate. So far as a solicitor is concerned, they would have to justify it in relation to the solicitor as well as to the named person and be able to substantiate that there was a risk, if the solicitor was informed, that it would affect the investigation, and I can certainly envisage circumstances in which that might be so.
§ Lord McCLUSKEY
While we are on this point perhaps I could take it a little further. The Lord Advocate says there are solicitors and solicitors, which is a truism and I suppose we are to take some inference from that. But there are policemen and policemen, and some policemen simply do not trust solicitors who are accustomed to appearing in criminal causes, and they may build up over the years a good deal of resentment against solicitors, more particularly against those solicitors who tend to be reasonably successful.
I feel that to leave the matter purely to the judgment of the police in relation to the solicitor is perhaps to create difficulties. Although I can see the force of the argument which has been presented, I wonder whether this is a matter on which the Law Society of Scotland might be consulted. I know they have views and they have been good enough to provide some of us with copies of their views. Indeed, I understand they propose to put forward an amendment—the amendment is not yet specified—and I think this is a matter on which the Government might want to take their advice before they proceed with this provision in relation to the solicitor.
§ Lord MACKAY of CLASHFERN
The situation would be that the power to postpone notification would be circumscribed by this particular restriction and therefore the police would require to justify the delay to anyone who was entitled to question the whole procedure, 790 including of course the disciplinary authority, a civil court if a civil action was appropriate, and possibly also a criminal court if a complaint was made in relation to the proceedings in the criminal court itself. There are other possible ways in which the matter might arise, but those are the principal ones that occur to me. I do not know that I am prepared to accept that policemen will necessarily have a bad relationship with solicitors who happen to be successful. I am sure the noble and learned Lord, Lord McCluskey, has defended many people successfully, and I am sure his relationship with the police is excellent.
§ Lord MONSON
Following on the exchange between the noble and learned Lord, the Lord Advocate, and the noble and learned Lord, Lord McCluskey, it seems that the only justification the Government have for rejecting the amendment is fear of a few bent solicitors. The police obviously already have the power to delay informing anybody else almost indefinitely because of the retention of the word "reasonably" in Clause 3. Is not the existence of a tiny handful of bent solicitors a small price to pay for the freedom of the individual? I should have thought that was far more important. If by some mishap the amendment is not accepted, will the Lord Advocate indicate whether the Government may be prepared to accept at a future stage an amendment to Clause 2(4) to provide that not only should the time of the detainee's arrival at and departure from the police station be recorded, but also the time at which his solicitor was informed? That would at least help us to monitor how this is working in practice.
§ Viscount HANWORTH
I take a slightly contrary view to that of the noble Lord, Lord Monson. With the increasing seriousness of crime, we really have to take some measures which otherwise we would not wish to take. I think it has been sufficiently publicised to allow us to realise what is happening in the courts today; the criminal is unfortunately favoured, for one reason or another, to an extent which is limiting the effectiveness of justice. I therefore wholly support the Government in what they are trying to do.
§ Lord HUTCHINSON of LULLINGTON
I take exactly the opposite view 791 and I would go along with the noble Lord, Lord Foot, that sometimes during this discussion one tends to forget that what we are all trying to do here is to achieve some form of real justice in the administration of the criminal law. Surely the Lord Advocate will realise and know (and the noble Earl certainly does know because I know he knows) that the police use—certainly in England and from what has been said, the same thing obviously happens in Scotland—this "get-out" phrase in the Judges' Rules, which is repeated here, about refusing to allow arrested people to have a solicitor. Always one hears the routine reply when they get into the witness box, "I did not allow him to have a solicitor for one, two, three, sometimes four days because", exactly as the Lord Advocate said, "there might have been some interference in the investigation". That can never be sorted out in court. If the police officer says that, it has to be accepted, and the result is that the Judges' Rules, which in England very clearly lay down that everybody is entitled to a solicitor once arrested, are in fact rendered completely nugatory. That is the reality of the situation.
Once again here is an opportunity to try to do something about this, and to do it, as the noble Lord, Lord Foot, says, in order that we should have an orderly, correct and admirable system of justice. I am sure that that is what is wanted in Scotland as much as in England. Here is the old formula being repeated once again. It goes on year after year and, as a result, all the efforts to provide for people to have representation and to bring to an end the argument about what really happens by ensuring that there is someone to advise the defendant so we know where we are, will once again be rendered absolutely useless.
§ Lord WILSON of LANGSIDE
I wonder whether the noble and learned Lord can help me further on this point. If indeed he said, as I understood him to say, that the provisions of Clause 3 may apply to the case of a solicitor, how can it be said in that event that these provisions are without prejudice to the provisions of Sections 19 and 305 of the 1975 Act?
§ Lord MACKAY of CLASHFERN
I sought to explain earlier that Sections 19 792 and 305 apply from the moment of arrest onwards. If I may answer the noble Lord, Lord Hutchinson of Lullington, I would say that if this provision is enacted the situation in Scotland will be much better than it is in England in that the provision applies for only six hours at the most. Once the six hours have passed, the person is arrested, and then Sections 19 and 305 come into operation, and there cannot exist the situation which can apparently arise under the Judges' Rules in England of a person being arrested with no information sent out. I would venture to submit that we are making a very considerable improvement from that point of view, and I hope that noble Lords will feel that this particular provision—a very restrictive provision so far as the police are concerned—will be allowed to stand for the minimal period.
The Earl of SELKIRK
I wonder whether I may push the question which the noble Lord, Lord Wilson of Langside, has raised, and with great daring say that the particular word in Section 305 of the 1975 Act is not "arrest" but "apprehend", but "apprehend" surely covers detention just as much as arrest. Therefore the words "without prejudice to Section 305" mean that the rules of Section 305 apply just as much to detention as they would to arrest. In those circumstances I do not quite see how, without further amending Section 305, one can leave the matter with the necessary delay as dominating the warning and the coming of a solicitor. I find it very difficult to see whether the noble and learned Lord intends that there should be a complete difference. If he does, I think he will find that Section 305 deals with both sides—that it deals with apprehension as well.
§ Lord MACKAY of CLASHFERN
This is a matter which no doubt is susceptible of considerable argument, but I would point out that Sections 19 and 305 were enacted against the background of the then existing law and the only power of apprehension that exists in the law of Scotland, apart from that in Clause 3, is the power of arrest. I shall be glad to look at the matter again, but certainly my understanding of the position is that Sections 19 and 305 apply from the time of apprehension under the law, apart from Clause 3, and from then on the rights 793 will be constituted under Sections 19 or 305. Until that time Clause 3 would operate and would have the effect that I have mentioned. Certainly that is the intention.
§ Lord MONSON
Can the noble and learned Lord say whether in principle the Government would be prepared to consider favourably an amendment to Clause 2(4) on the lines that I suggested, so that after a year or so one would be able to gauge how the legislation was working in practice?
§ Lord MACKAY of CLASHFERN
think I said on Second Reading that the Government would look carefully at any proposals for improving the Bill, and the kind of proposal that the noble Lord, Lord Monson, has suggested would certainly be looked at, but from what he has told me I cannot at the moment say that I would do more than that.
§ 8.45 p.m.
§ Lord FOOT
May I first pursue the legal point? Although the noble and learned Lord has endeavoured to explain three or four times, I still do not see how he reconciles Section 19, or Section 305 for that matter, with this particular clause. I do not know whether this is either the time or the place to enter into an argument on legal interpretation of a statute, but I am still satisfied that Clause 3 is wrong. Let me go over the matter again. Section 19 deals with the case of any person who has been arrested on any criminal charge. That is the person we are dealing with—a person who has been arrested and, because he has been arrested, has been charged. It is at that moment that Section 19 says that the police must immediately notify his solicitor.
Let us look now at Clause 3. Let us leave out the words "without prejudice". We are dealing here with a person who has been arrested and is in custody at a police station or other premises. Now, pausing there, we see that that is exactly the same man as the man referred to in Section 19. He is a person who has been arrested and, because he has been arrested in Scotland, he must have been charged. He is exactly the same person; yet under Section 19 he is entitled to have his 794 solicitor notified immediately, but under this clause his rights are that he,shall be entitled to have intimation of his custody or detention and of the place where is being held sent to a solicitor"—here I leave out the reference to the other person—"… without delay Immediately after stating "without delay" which of course means exactly the same as "immediately" in Section 19, the clause goes on to emasculate the provision by saying in effect, "Oh yes, but at the discretion of a police constable any delay is acceptable—any delay that the policeman thinks necessary in the interests of his investigation".
I do not know why I should be very worried about the amendment because in my opinion the whole of Clause 3 is a charade. It does not give the man any real rights, but simply the right to have his solicitor notified that he is in the police station. What good is that to him if he cannot consult his solicitor? There is no provision here that he is entitled to see his solicitor or to speak to him, but only the right to have the solicitor notified—rung up while in bed at three o'clock in the morning and told that a client is in custody. The solicitor may perhaps say, "Can I come and see him?" and the reply will be "No, you can't. You have no right to see him".
So the whole thing is a charade. Why, then, go to the absurdity of saying that even that minimal right can be denied the man if it happens to suit the purpose of a police constable to do so? I think that this is a nasty little clause and the sooner it is wholly got rid of the better. However, in view of what has been said, unless the noble and learned Lord wants to make any further reply, I do not think that it is worth pursuing the matter, and so I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Search for offensive weapons]:
§ 8.50 p.m.
Lord WHEATLEY moved Amendment No. 28:
Page 4, line 5, leave out ("has committed or").
The noble and learned Lord said: Clause 4 deals with the right of a constable who,
has reasonable grounds for suspecting that any person has committed or is committing an offence under section 1 of the Prevention of Crime Act 1953
to search that person without warrant. Apart altogether from the general question, with which we will deal in the next amendment, this relates to the situation where, according to the clause, the constable has reason for suspecting that the person" has committed or is committing an offence under the 1953 Act. That Act provides that it is an offence for a person to have with him in any public place an offensive weapon. I can understand the purpose behind this when it refers to "has committed" an offence contrary to the 1953 Act if it means that he has, just immediately before the apprehension, committed such an offence; and, so far as that goes, I would be quite prepared to go along with it.
§ But as the clause is worded there seems to be no restriction in time as to when that previous offence was committed. Accordingly, it would seem, as I read it, unless I can be persuaded otherwise, that it would not matter whether the police officer had reasonable grounds for believing that the person suspected had committed the offence contrary to the 1953 Act a day before, a week before, a month before, a year before or five years before. Accordingly, if that construction is correct, or if there is some doubt about it, it would mean that any police constable who knew that a person had already been convicted of an offence under Section 1 of the 1953 Act would have the right to search that person.
§ I do not think that is what is intended—I hope it is not what is intended—but as the clause is framed at the present time it is capable of that construction. I would see no justification for allowing a police constable to stop and search a person in terms of this clause simply because he knew that on some previous occasion the person had been guilty of an offence under Section 1 of the 1953 Act. Accordingly, I would invite the Government to take this away and think about it; because if the answer be, as has been suggested to me, that it means "has recently committed" an offence, then I do not think that the 796 clause as framed would confine it to those narrow limits. I beg to move.
§ Lord McCLUSKEY
Perhaps the Lord Advocate would allow me a few words before he replies. First, I would certainly support the noble and learned Lord in this amendment, and indeed apologise for not having had time to join my name to it. I can add nothing to that particular argument, but there is another point and that, I believe, is this. The noble and learned Lord referred to his view that if the accused person had very recently committed an offence under the Prevention of Crime Act 1953 then he could understand the provision. But the way this is worded, "has committed or is committing", indicates, I suspect, that when one is talking about a person who has committed a crime one is talking about a person who is no longer committing it, because if he is still committing it then he is caught by the words" or is committing an offence under".
Therefore, if he is a person who has in the past (whether it is the ancient past or the very recent past) committed such a crime but is a person who is no longer committing it, then what is the warrant for searching that person? The search is not going to discover him in possession of an offensive weapon, because he is a person who has at some stage committed the offence but is no longer committing it. I would humbly suggest that that is a further reason for the Lord Advocate to take this matter away and look at it. Both of these grounds—the one advanced by the noble and learned Lord, Lord Wheatley, and the one I have sought to add—are grounds that I would have put forward for leaving out Clause 4, although I believe there are others.
§ Lord MACKAY of CLASHFERN
Certainly we are prepared to look at this again. The construction that we had put upon this matter so far was that the constable had to be in a situation of having reasonable grounds for suspecting, and no more; that is to say, he is in a situation of mere suspicion, and not of having evidence, for example, that the person had been convicted of an offence. But perhaps more importantly, the clause read as a whole, we would have thought, carries with it the implication that the search would either confirm the suspicion or 797 rebut it, and if that is right then it is apparent that "has committed" must be sufficiently close in time to the time of the search to make that a reasonable possibility. Of course, the difficulty in this situation is that Section 1 of the Prevention of Crime Act prohibits the carrying of offensive weapons in public, so all that one has to do to stop committing the offence is not to get rid of the offensive weapon but to move into a private place. Some phrase of this kind is, therefore, necessary to make the power reasonably effective; but certainly we will look to see whether we can improve the drafting of the clause.
§ Amendment, by leave, withdrawn.
§ 8.56 p.m.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Lord McCLUSKEY
Clause 4 is a clause which the Government have put into this Bill but which was not in the Bill as introduced by the previous Government, and I want to advance the reasons why this power of search for offensive weapons in these terms was not included in our Bill and why, in my submission, it should not be included in this Bill. The first arguments I was going to present are arguments which have already been dealt with in the discussion on the amendment which the noble and learned Lord, Lord Wheatley, put forward, and to which the Lord Advocate has just responded. I pass over them, because if the Bill contains this clause on the next occasion on which we see the Bill then we must consider the wording at that time. But there are some quite general points.
First, what this clause envisages is an invasion of personal liberty—a search in the street, or it may be, from what the Lord Advocate has just said, in some private premises, not in a public place. In my submission this clause gets the balance wrong. It is liable, in my view, to upset good police-community relations. It is certainly a power in the police which disturbs the Law Society of Scotland, and 798 perhaps I might read the memorandum on this which they have published, in which they say:The Council"—that is the Council of the Law Society—is deeply divided. By a very slender majority of 15 to 13 they approve the clause as a useful preventative of crime, but the Council is still very worried about this clause indeed. The minority believes it will poison the relationship between the police and the public: that a citizen has a right to be protected against unreasonable search; and that it will result in discrimination by the police against a certain section of the population, namely, the young".Whatever the voting, in my view those are powerful reasons, and ones which the Government should certainly take into account.
There is another particular point, and it is this. There is always a risk that a policeman who is unscrupulous may "plant" evidence upon a suspect. In my experience, I have known two or three cases where I am morally certain that that has happened. It is certainly very frequently alleged but, I am happy to say, I believe it is seldom true; but it is much easier to plant evidence, to put false evidence, on the person who is suspected and to do it in the street than in a police station when there are many policemen present. It would require a great conspiracy to plant evidence on someone in a police station. It can be done by sleight of hand in the street.
Clause 2 allows a person to be taken to a police station and detained; and he can be searched, with certain safeguards, at the police station. In my view, it would be better to leave the matter to rest upon the provisions of Clause 2 and have the search carried out in the police station where the possibility of planting evidence is much smaller, albeit it is very small even in the streets, although that is a possibility. In the circumstances I would ask that this clause be deleted from the Bill.
Before the noble Earl replies I should like to say something on this. I think that in balancing the arguments for and against—which, it may be, is a very fine skill—it must be borne in mind that there are arguments in favour of allowing this power. May I say from my experience that the most formidable argument is that a very large 799 number of assault cases that we are getting in the courts at the present time in Scotland—ranging from simple assault to assault with severe injury, assault with permanent disfigurement or disablement or assault with danger to life through to attempted murder or murder itself—have, in the vast majority of cases, the use of an offensive weapon in that assault.
It has become common practice for many people, as the cases show, to walk in the streets not for the occasional day or week but often for months—and always armed with a knife, a razor, a dagger or something like that. The excuse is usually given that nine months or 12 months earlier the person himself had been the victim of an assault and so was carrying a weapon in self-defence. I have heard that time and time again in court. The great problem with these people who are carrying weapons, particularly as they often are, I am sorry to say, associated with alcohol, is that sometimes without any provocation or sometimes with the slightest provocation the knife comes out and into the body of the victim.
Often, the difference between a serious assault with a weapon of that nature and murder has nothing to do with the person who carries and uses the knife. The difference between serious assault and murder is often due to the combination of three factors. First, the trajectory of the blow. An eighth of an inch difference in the trajectory can mean the difference between the weapon entering a vital organ and causing death or just missing that organ and not resulting in death. The second factor is quite often, in cases of that nature, the proximity of the assault to an infirmary or hospital where surgical care can be provided at a very early stage after the assault has taken place. One has examples of that. The third is that, even with the facilities being available, it is the surgical skill of the surgeon that often saves a life which might otherwise have been lost.
I recall one particular instance in a trial over which I presided which, I think, illustrates the three points that I have made. The assault took place within 100 yards of the Royal Infirmary in Glasgow. The knife went right through 800 the victim's heart. In my ignorance at that time, I thought that that was almost bound to be with fatal result. But it was found possible to get the victim the 100 yards to the Royal Infirmary. He was put on the operating table and, by what I regarded at the time (and still regard) as a surgical miracle, the surgeon saved his life despite the fact that the knife went right through and out at the back. But the degree of culpability of the person who wielded the knife was the same whether the facilities were available or whether the attack had happened on the outskirts of Glasgow and by the time the victim had been got to the Royal Infirmary he would have been dead.
There exists this large incidence of people going about carrying offensive weapons and using them, either at the drop of a hat or with slight provocation or, sometimes, after severe provocation. Therefore, something must be done to try to rid our country of what I regard as a scourge of people walking about the streets with weapons in their possession and prone to use them in the circumstances to which I have referred. That, in my opinion, is a very strong argument in favour of the clause as we have it at the present time. Again, one would like to see all the appropriate safeguards because it is a further invasion of rights. None the less, I think that the problem is so serious that serious measures are required to counter it. For that reason I would support the clause.
§ Baroness MACLEOD of BORVE
Having heard the noble Lord, Lord Wheatley, as a judge in Scotland, I hardly dare rise to my feet; for he has said so eloquently what I as a humble magistrate outside London feel very deeply; namely, that the possibility of being found in possession of an offensive weapon might ultimately deter those who carry them. As we all know, offensive weapons can be anything from a razor blade to a penknife, a flick knife, a kitchen knife, to a piece of tubing, steel or rubber—practically anything that can hurt somebody else. In Scotland as well as in England, I am aware that many young people commit crimes because they have in their possession those offensive weapons which give them the courage to go out and hurt, maim and, sometimes, murder other young people.
801 If it is of any consolation to the noble Lord, we have the same problem in this country. I am more keen perhaps about this clause of the Bill—because I hope it will be implemented more than it is now South of the Border—than any other clause in the Bill. I also have had a young man appear before me, and when handed the implement with which he has maimed somebody and I have said, "Why do you have it?", he has said, "I have it to defend myself". That is always the excuse. Lives are taken because too many people—mostly young— are allowed to congregate together when they have offensive weapons in their possession.
I want this part of the Bill to be implemented in Scotland. It might in the end be a deterrent because the police know very well that the young people come out of, say, a dance hall or a football match, or almost anywhere, and then violence can break out after a drink if they have an offensive weapon in their possession. This clause is important and I hope my noble and learned friend will oppose the rejection of Clause 4.
§ 9.9 p.m.
§ Lord WILSON of LANGSIDE
The arguments in favour of the new provisions of Clause 4 are those which have been stated so forcefully and pointedly by the noble and learned Lord, Lord Wheatley, and the noble Baroness. But is the difference proposed to be brought into effect not in practical terms more apparent than real? The clause commences by saying:Where a constable has reasonable grounds for suspecting that any person has committed or is committing an offence under section 1 of the Prevention of Crime Act 1953 (prohibition of carrying of offensive weapons in public) the constable may search that person …".What is the position under Section 1 of the Prevention of Crime Act 1953 if the constable is in that situation? The position simply is that the constable has power to arrest that person. Having arrested him, he may then search him either in the street according, as his Judgment suggests, as appropriate, or in the police station to which he then has power to take the arrested person. What this clause suggests is that if the constable is in that situation—exactly the same 802 situation as entitles the constable to arrest the person, search him in the street or at the police station—he can search the person on the spot. What does that add to the reality of the situation? Is this what we want the police force to do? Is it what the police want to be able to do themselves?
I ask these questions quite genuinely because I would have some doubt as to whether constables on the beat particularly want a power to be able to search in the street, on the spot in these circumstances. At present there is a certain discretion; there is power to arrest and, if the situation is dangerous, the policeman then searches. If it is not dangerous he takes the arrested person to the police station and the search is carried out under the supervision of a senior officer. With that situation in mind, I wonder whether this clause adds anything in practical terms to giving real powers to the police to make a more emphatic impact on this problem to which the noble and learned Lord, Lord Wheatley, and the noble Baroness have referred.
§ 9.13 p.m.
§ Lord ROSS of MARNOCK
This is a matter that concerned me as Secretary of State way hack in 1968, 1969 and 1970. We were under considerable pressure—particularly from the police in Glasgow—to give them this power. They felt it would solve the problem that the noble and learned Lord, Lord Wheatley, mentioned. I have heard the case that he put forward about the proximity to a hospital, an infirmary, meaning the difference between life and death. No one has a better record of supporting the police than I have; but the more I thought about this, the less I liked it. This does not come from the Thomson Committee, although one might have had the impression, reading the memorandum that it did. The Thomson Committee only made a comment in passing. It said that one of the problems relating to a power of stop and search for offensive weapons is a fear that this will lead to police harassment of young persons, particularly where such persons have a police record. I think it would lead to difficulties not only with those with a police record but with many others as well, who are quite 803 innocently in a group; and it does not necessarily follow that giving this power would achieve the desired effect. I entirely agree with the noble and learned Lord, Lord Wilson; he and I have discussed this more than once before. This strikes me very much as rather like the vandalism clause to which we shall come later. It will not really advance us to any great extent from the position we are in at present, but in that advancement it may create very considerable difficulties with the police vis-à-vis the young people whose co-operation they really want.
We have to appreciate that the present law, which was referred to by the noble and learned Lord, Lord Wilson—the Prevention of Crime Act 1953, which applies equally in England and Wales—makes it an offence to carry an offensive weapon without lawful authority or reasonable excuse and empowers a police officer to arrest without a warrant a person (here are the same words again)whom he has reasonable grounds to believe has such a weapon".Doing the search on the street might be a considerably dangerous thing from the point of view of the police, because everyone who spoke about this in those days when I was Secretary of State (and I have heard it since) are talking about gangs of people. I can assure your Lordships that it might be easier to arrest people and take them to the police station than to do it on the spot; and it might lead to very considerable trouble indeed.
It has been suggested that all this comes from the Scottish Council on Crime. That council was set up by the noble Lord, Lord Campbell of Croy, and they reported in my day. This is why I had to consider it again when I later became Secretary of State in 1974—it is interesting that although we had all the trouble in 1967, 1968, 1969—and the pressure from the Conservative Opposition at that time, when they became the Government they did not introduce this particular power. They set up a Scottish Council on Crime, and I do not think there is any doubt at all about it: I looked at it very carefully and at their recommendation. Their recommendation is not the one that is being legislated for, because they thought 804 it should be introduced for a trial period of perhaps five years. They thought it might be of advantage; so we are not getting either what Thomson said or exactly what the Scottish Council on Crime said, and, to my mind, it does not take us very much beyond the Prevention of Crime Act 1953.
I have listened to one or two phone-in radio programmes on this, and the impression has been given—particularly by one gentleman who later on I discovered, just by listening to him, had not even read the Bill—that this is going to solve all the problems about mugging and all the problems about assault. Is it? You do not need an offensive weapon at all in relation to some of the crimes referred to by the noble Lord, Lord Wheatley. It is fists, it is punching, it is feet and it can be weapons that could not be construed as "offensive weapons". At the present time, so far as the football crowds are concerned, throwing coins can be a very dangerous thing. Is everyone who has coins in his pocket going to be construed as having an offensive weapon? Four coins between your fingers can be a very considerable offensive weapon.
May I just correct the noble Lord, Lord Ross: I was referring to serious crimes when I said that a large proportion of serious crimes of assault were committed by the use of offensive weapons.
§ Lord ROSS of MARNOCK
Yes, but not always in the public highway. Many of them concern domestic situations where knives and such things are very much handier. I think that, if we look at statistics in relation to that, we discover that not all serious crime takes place in this particular way; and to give people the idea that this power will somehow wipe out this—it is just not going to happen.
I can remember the outcry when, I think, Barbara Castle, when Minister of Transport, introduced into a Bill the question of random spot checks for drunken driving. There was an outcry. It was said that this was an invasion of the liberty of the subject. I could make a speech about some of the accident cases I have seen concerning drunken 805 driving and the effect of them. We thought so much of the liberty of the subject that the police were restricted in how they would use that power. Even what power there is has not proved to be a deterrent. The long-term deterrent effect has worn off.
I am sure that it would be quite wrong to expect a tremendous reduction in crimes of violence simply from this provision. It is suggested that people do not mind being searched at airports, but everyone is searched at airports. The difficulty is that it is not everyone who will be searched on the street. You can search anybody on the street and you will find offensive weapons. You will find them in my pocket. I carry a steel comb which could be a very considerable offensive weapon. I ask your Lordships to remember the description of an "offensive weapon" in the 1953 Act:… any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him.Umbrellas are offensive weapons. I carry on the end of my keychain a small knife, decorated with the name of a whisky firm whose product I do not use. But it can be a penknife, it can be a screwdriver and it can be a very effective offensive weapon. The same argument applies to a small pair of folding scissors.
We must also remember the possibility of abuse. If these things are found in the hands of someone with whom the police have had trouble in the past, but who is not going to cause offence, they can be construed as "offensive weapons" under the 1953 Act. This is not far-fetched. A lot of people are worried about this, not least some of the committees which have looked at the matter. There will not always be a sound basis for selecting some of those who are stopped. This will be random. It will not apply to everybody, but it may well be quite inoffensive people who are stopped. I do not think they will like it. I do not think there is a noble Baroness here who would like to be stopped in a supermarket, and who would say, "Yes, I shall be delighted to be searched". The attitude of people towards those who do these things would change, and it would not help the police in any way at all if there were an unco-operative public. Further 806 more, unjustifiable complaints of police abuse would certainly increase. So I certainly hope that noble Lords will not pass this clause.
I have thought loud and long on the matter. It is not a matter of anything that I feel about the police, abuse or anything like that. But it is a fact that, in the last resort, the police will depend for their effectiveness on co-operation with the public. If an aggressive attitude arises from this, it will affect the police. Give them a new power and it will affect their attitude, as well as the attitude of the public. It will be to the detriment of co-operation. That is why I am very strongly opposed to this clause.
§ 9.24 p.m.
§ Lord MONSON
I had not intended to speak on this clause, but an experience of mine might be of value in assessing the merits of this clause. Rather more than 30 years ago, I was running in Hammersmith Broadway together with a Gibraltarian friend, with suitcases in our hands, in order to catch a Green Line bus to go back to school after half-term. Just as we were about to board the bus we were stopped by a young policeman who ordered us, in brusque tones, to open our suitcases. When we naturally objected he said, "Either you open them here or I will take you along to the station". When I asked him why he wanted to see our suitcases and not those of the others standing in the bus queue, he said, "Haven't you heard? There have been some Stern gang attacks in London recently"—at that time some Israeli terrorists belonging to the Stern gang had set off the odd bomb, though nothing to compare with what has happened recently.
I did not think then, and I do not think now, that the policeman seriously believed that we were members of the Stern gang, even though my Gibraltarian friend had dark, curly hair. I think that he was bored, that he had nothing better to do and that he simply wanted to exercise his power over a couple of teenagers who were perhaps five years younger than himself. So we duly opened our suitcases.
807 What I remember most about the incident was not the fact that we missed our bus, or the difficulty we had in explaining our lateness to our housemaster—who was totally disbelieving, as might be expected—but the grins, the giggles and the elbow nudging of the other people in the bus queue. If everybody in the queue or in the street had been searched it would have been a different matter—but it was as humiliating as could be. It annoyed me then, and even to this day it has to some perceptible degree altered my feelings towards the police.
If such an incident rankles with me after 30 years, how much more must a similar incident rankle with the sort of people who are traditionally suspicious of or hostile to the police? What use is it to catch perhaps one person who is searched out of 100 who might be carrying an offensive weapon, if the other 99 are turned against authority from then onwards? That is why I agree totally with what the noble Lord, Lord Ross of Marnock, has just said.
§ Lord MOYNE
I should have been very worried about this clause, thinking of the skean-dhus which people wear very freely in Scotland, often in their stockings, but I think it is perfectly safe. It is only if the police have reasonable grounds that they can carry out this search. When the Minister replies he might like to say a word about that, but I think it is perfectly safe.
§ 9.28 p.m.
§ The Earl of MANSFIELD
This has been a fascinating mini-debate but, if I may say so, I think that we are in danger of reading into this clause what is not there. If I may deal first with what was said by the noble Lord, Lord Ross of Marnock, whatever troubles he had with his honourable friend over the matter of drunken driving and whether there should be spot checks with breathalysers, nobody is suggesting that there should be spot checks for offensive weapons. If I may draw his attention to the first part of the clause, it says:Where a constable has reasonable grounds for suspecting …".808 So if the noble Lord proceeds down his favourite shopping street with his steel comb and his little knife, he is not going to be in any greater or worse danger of anything y virtue of this clause than he was before. I hope that the noble Lord realises that. This clause does not confer on the police the right to impose spot checks.
Secondly, most noble Lords agree, I think, that violence in our society is increasing to a worrying degree, especially in the urban areas. The habit of young people in particular of carrying offensive weapons has now become a very serious problem indeed. I submit that the power given to the police in this clause is no more than is necessary to tackle a problem which, as I have described, has become particularly serious and particularly common among young people. At present, the police can arrest and charge somebody whom they see brandishing offensive weapons openly in a public place, but unless they see the weapon they have no power of arrest and no power of search to find it.
If I may again take issue with the noble Lord, Lord Ross of Marnock, this was a measure which was recommended by the Scottish Council on Crime and in a much wider form I suggest, contrary to what he said, than it was recommended by the Thomson Committee in paragraph 3.18. where it says it concluded that,a rigid time limit was not desirable where short periods of time were concerned, and that it would be sufficient to provide that no person should be detained elsewhere than in a police station for longer than is necessary for the following purposes—and then there follow a., b., and c., which reads:searching outer clothing or baggage for stolen goods, tools of crime, or weapons".It seems to me that the committee was recommending precisely this sort of provision. My own party has been consistent in Opposition in suggesting a power such as this on the part of the police and, as I have said, it has been recommended in one form or another by these two bodies.
I do not know what it is that the noble and learned Lord, Lord Wilson of Langside, was complaining about. It seems to me that it is very much better, cleaner and 809 quicker for the police—for instance, outside a football ground or a dance hall or somewhere like that—to have the power in proper cases to search in the street rather than have to lug somebody off—if I may use that word—down to a police station. The noble and learned Lord, Lord McCluskey, conjured up a picture of the police, ever dishonest, with armfuls of offensive weapons which they would be ready in some way to plant on suspects whom they searched in the streets as opposed to the police station, where, he said, it would be more difficult because it would then become a conspiracy. I do not know whether the police in Glasgow and such places go out laden with offensive weapons ready to plant on somebody; I should have thought they had better things to do. But if they were so minded I suggest that it would be much easier to arrest somebody under the 1953 Act and then to plant something on them in the police car on the way to the police station than to try to do it in an open street where everybody can see, but I am sure that I must have misunderstood his point.
When people carry illegal offensive weapons they take care to keep them hidden, especially from the police, and at the moment so long as they do so they are safe from arrest and search, but it is these weapons which are carried hidden and ready for use which are responsible for what I regard as the highly unacceptable level of stabbings, murders and attempted murders which disfigure Friday and Saturday nights in Scotland, all of which, if I may respectfully say so, were so well pointed out and illustrated by the noble and learned Lord, Lord Wheatley.
Stopping to think of the matter logically, we heard from my noble friend Lord Campbell of Croy on Second Reading about the necessary measures which take place at airports. I will not go into that now, but the police already have similar powers to stop and search in the street in respect of things like birds' eggs and drugs; water bailiffs have power to search for salmon roe in comparable situations. If the preservation of rare birds is important—and I believe we all agree that it is—surely the preservation of life is equally so.
I do not believe that in carrying out these powers—and indeed I should not 810 miss out the power to search for illegal drugs—the Scottish police have either abused their powers or suffered a loss of public sympathy as a result of having them. I reject the assertion made by the noble Lord, Lord Ross, that in giving this power to the police it will in some way destroy their generally good relations with the community. No one body is more aware of the need for good relations with the public than the Scottish police force, and from my knowledge of them they work extremely hard to maintain their links with the community and indeed their acceptance by the community. I would have thought, and submit to the Committee, that their standing with the public is more likely to be enhanced if they have powers such as these because they will be seen to be more effective in protecting the ordinary citizen from violent armed gangs such as appear all too frequently in the conurbations. I hope that the Committee, if called upon to do so, will regard this clause as an essential strengthening of the protection of the citizen against crime and violence and I would ask the Committee to have no hesitation in reading it into the Bill.
§ Lord WILSON of LANGSIDE
The noble Earl said, if I heard him aright and understood him aright, that the powers which a constable has under Section 1 of the Prevention of Crime Act 1953 to arrest a person depend on his seeing the person in possession of the weapon or seeing the weapon which the person is alleged to be in possession of. Surely that is not right. Surely the powers of arrest conferred upon a constable in terms of Section 1 of the 1953 Act are very much the same as the powers given to a constable to search; the grounds are substantially the same. Surely that is so.
May I just add this? The noble Earl seemed to suggest that I was complaining about something. I do not know how I shall vote as yet if this amendment is pressed to a vote. I do assure him that I was genuinely seeking enlightenment as to whether the Government really thought that, in practical terms of keeping order on the streets, this provision added anything effectively to the powers of the police.
§ Lord McCLUSKEY
This matter must be brought to a conclusion, and I only rise to remind your Lordships that the vital difference between the power conferred by Clause 4 and the power conferred by Clause 2 is that the search under Clause 4 may take place in effect on the street or anywhere other than a police station. It is really that point of difference which is of great importance here. I would accept, of course, that there are arguments in favour of this power, but one must balance those against the arguments against it. No one dismisses the arguments put forward in favour of this particular power. It is just that in our view they are outweighed by the arguments against it.
§ Finally, I did not conjure up a picture of policemen with armfuls of weapons. I said that it can happen. I have known it to happen; I am morally certain it has happened in several cases in which I have been involved. Simply to avoid the risk of evidence of this kind being planted on the street, I believe it is better that this kind of search should be carried out in a police station. It is for these reasons that I press my Motion.
§ 9.39 p.m.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Their Lordships divided: Contents, 83; Not-Contents, 33.811
|Abinger, L.||Forester, L.||Moyne, L.|
|Airey of Abingdon, B.||Fortescue, E.||Murton of Lindisfarne, L.|
|Alexander of Tunis, E.||Fraser of Tullybelton, L.||Northchurch, B.|
|Amherst of Hackney, L.||Gisborough, L.||Orkney, E.|
|Ampthill, L.||Glasgow, E.||Orr-Ewing, L.|
|Balerno, L.||Godber of Willington, L.||Perth, E.|
|Bellwin, L.||Gowrie, E.||Renton, L.|
|Belstead, L.||Gridley, L.||Rochdale, V.|
|Bradford, E.||Hanworth, V.||Romney, E.|
|Brownlow, L.||Henley, L.||St. Davids, V.|
|Carr of Hadley, L.||Hives, L.||Saint Oswald, L.|
|Cathcart, E.||Hornsby-Smith, B.||Sandys, L. [Teller,]|
|Cockfield, L.||Inglewood, L.||Selkirk, E.|
|Cork and Orrery, E.||Killearn, L.||Sempill, Ly.|
|Crathorne, L.||Kilmany, L.||Sharples, B.|
|Cullen of Ashbourne, L.||Kinross, L.||Stradbroke, E.|
|de Clifford, L.||Lauderdale, E.||Strathspey, L.|
|Denham, L. [Teller.]||Linlithgow, M.||Swansea, L.|
|Drumalbyn, L.||Long, V.||Trefgarne, L.|
|Elliot of Harwood, B.||Lyell, L.||Tweeddale, M.|
|Exeter, M.||MacAndrew, L.||Ullswater, V.|
|Fairfax of Cameron, L.||Mackay of Clashfern, L.||Vaux of Harrowden, L.|
|Faithfull, B.||Macleod of Borve, B.||Vernon, L.|
|Falkland, V.||Mansfield, E.||Vickers, B.|
|Falmouth, V.||Margadale, L.||Westbury, L.|
|Ferrers, E.||Merrivale, L.||Wheatley, L.|
|Ferrier, L.||Mottistone, L.||Yarborough, E.|
|Foot, L.||Mowbray and Stourton, L.|
|Blease, L. [Teller.]||Hooson, L.||Peart, L.|
|Boston of Faversham, L.||Howie of Troon, L.||Ponsonby of Shulbrede, L.|
|Brooks of Tremorfa, L.||Hutchinson of Lullington, L.||Ross of Marnock, L.|
|Collison, L.||Jeger, B.||Stewart of Alvechurch, B.|
|David, B.||Kirkhill, L.||Stewart of Fulham, L.|
|Davies of Leek, L.||Llewelyn-Davies, L.||Stone, L.|
|Elwyn-Jones, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Taylor of Blackburn, L.|
|Galloway, E.||Underhill, L.|
|Galpern, L.||Lovell-Davis, L.||Whaddon, L.|
|Gladwyn, L.||McCluskey, L.||White, B.|
|Gordon-Walker, L.||Monson, L.||Wilson of Langside, L.|
|Resolved in the affirmative, and clause agreed to accordingly|
§ 9.48 p.m.
§ Lord McCLUSKEY moved Amendment No. 29:
After clause 4 insert the following new clause: Continuation in force of sections 1, 2, 3 and 4.
. Sections 1, 2, 3 and 4 of this Act shall continue in force for the period of three years beginning with the date of the passing of this Act and shall then expire unless Parliament by affirmative resolution of both Houses otherwise determines.
§ The noble and learned Lord said: At this late hour I do not propose to press this matter to a Division, nor to take a long time to explain it. The background to this proposed new clause is this: a good many people, both inside and outside this House, have expressed concern at the possibility that these new powers to be conferred upon the police by Clauses 1, 2 and 4 particularly of this Bill are powers that may damage good police community relations, and are powers that are susceptible to abuse. In support of that I would refer to, among others, the Scottish Council on Crime who, when recommending a stop and search power of a kind in some ways similar to what is contained in Clause 4, specifically suggested that the power should be granted for an experimental period. In my submission that is something which your Lordships should seriously consider.
§ The Law Society of Scotland themselves, as I indicated earlier, are deeply divided about some of the powers contained in these clauses. I believe that this is something which the Committee should take on board. If we decide to grant the police these extra powers, with all the dangers that serious students of the matter have considered to exist, why should we not review them after a period of time?
§ The noble Lord, Lord Foot, on Second Reading asked whether such a provision appeared in the Bill which was introduced by the Government in 1978, and he asked what had changed since then. There was no such provision in the Bill at that time, but things have changed to some extent. First, the powers now granted in these clauses are significantly greater, in my judgment; and secondly, there was not nearly the same criticism of these powers until now. In particular, I did not see any strong opposition from the Liberals, 814 among others, to these powers when they were put forward in our Bill.
§ However, we must judge the thing on its merits and I believe it should be possible for Parliament to come back to this matter after a period of time. As I say, I do not propose to press this to a Division tonight because, in the light of the arguments, I believe there is something to be said for the view that the period should not be three years, as the amendment suggests, but five years, as the Scottish Council on Crime suggested in relation to the search for weapons power. Accordingly, having heard the Government's reply and listened to any other contributions which may be forthcoming, I propose not to press the matter.
§ Lord MONSON
I support the amendment. If the suspicions of the Bill voiced from the Labour, Liberal and Cross-Benches, and even to some extent from the Government Benches, turn out to be so much eyewash, the Government have absolutely nothing to lose by accepting the amendment because they will get their affirmative resolutions through in three or five years' time with no difficulty whatever. If, on the other hand, the suspicions turn out to be justified, then everybody would wish these clauses to be deleted from the Bill. I therefore cannot see any reason why the amendment should not be accepted.
§ The EARL of PERTH
I should like to know from the noble and learned Lord, Lord McCluskey, whether at a later stage of the Bill, perhaps on Report, he proposes to move a similar amendment but with a five-year period. I ask that because in my view there is a good deal to be said for such an amendment. I do not understand in the way that many other noble Lords do, all the legal arguments that have been used today on the various clauses; but I am aware of the disquiet there is in regard to these powers. A letter appeared in The Times today in which the President of the Glasgow Bar Association said the Government as a whole did not have the time to give to this very complicated matter. He can say that, but that is a recipe for putting off any Bill indefinitely, and to that extent I would not I go along with him. However, it would be 815 helpful, certainly to me, to know, perhaps at a later stage, if the reasons for not accepting the amendment were not satisfactory, whether the noble and learned Lord or the noble Lord, Lord Ross of Marnock, intend to table a similar amendment, so that we might have another chance—I could table one myself but I would rather not do so; it comes with much more authority from the other Benches—to consider the matter afresh.
§ Lord McCLUSKEY
Perhaps I might briefly respond to that question. Subject to hearing what the Minister has to say in reply to what I have said, it would be our intention on Report to put down an amendment on these lines, extending the period however to five years. We do not think, on reconsideration, that three years is long enough to test the matter; I suppose one would need to have the measure in force for some time and have a number of cases come before the courts, and then it might be possible to make a better judgment. However, we undertake to return to this matter on Report.
§ 9.54 p.m.
§ The EARL of MANSFIELD
The noble and learned Lord, Lord McCluskey, I do not suppose will be very surprised if I tell him that I am unable to support his amendment. Although there has been a certain amount of modest heat in our debate, and I have no complaint about that, the Government at any rate do not regard the provisions contained in Clauses 1 to 4 as what I might term dramatic innovations. The noble and learned Lord said that the powers taken now are significantly greater than they were in the Bill published by the last Government. That of course is a subjective matter of opinion, but at any rate we rather regard these measures as designed to regulate existing practices, and we do not believe that any useful purpose would be served by providing for a review of their operation. Indeed, one can say that a provision for a review might be positively unhelpful.
Why do I say that? These measures have been the subject of public debate and official consideration at least since the first and second reports of the Thomson Committee; that is, since 1975. The debate has become hotter and more keenly 816 contested, as is natural when matters fell to be considered in Parliament with the previous Government's Bill and now this Bill. In our view, the provisions in Clauses 1 to 4 have the best chance of operating most effectively, and in the interests of all sections of the community, if once they have become law, the controversy falls away. That, I suggest, is less likely to happen if people are continuously trying to find debating points with which to attack or defend these measures in the sure knowledge that within a period of three years, or within whatever period specified, the assessment of the effects of the measures is likely to be a matter of debate, but at the end of it still a matter for subjective judgment.
The noble and learned Lord was quite right to say that the Scottish Council on Crime suggested a five-year trial period in regard to the power in Clause 4. So far as I have been able to establish, no reasons were advanced in argument, and I would point out that the Thomson Committee did not suggest any such trial period.
If Clauses 1 to 4 go well, so to speak, and are not misused by the police—and that is my confident prediction—I think that public debate will fall away. In any event there is always the sanction of public opinion, and in a democratic society police cannot be immune from such. Secondly, if individuals are aggrieved, they have their remedies through the courts and certainly they will comment in public on the general operation of these clauses if they find them unsatisfactory. Finally, and most importantly, Parliament retains the ultimate sanction of repealing the measures at any time. I know it will be said that it is always difficult to find time—and so it is; but Parliament is continuously producing new legislation, and if exceptional circumstances were to be such as to justify a repeal, change or amendment of all, or any, of these measures, I am quite sure that Parliament would find time to take the necessary action.
As the noble and learned Lord said—although he slid away from the point—it was not in his mind to have such a power, or if it was, he rejected it at the time his Bill came to the other place, and I suggest 817 that it is quite unnecessary, and indeed contrary to good legislation, for us to legislate on an "if and but" basis (as it were) in the criminal field.
§ Lord MONSON
Does the noble Earl not agree that when this House voted to abolish the death penalty, about 12 years ago to the best of my memory, it was the Conservative Party who proposed and voted for a five-year trial period?
§ Lord McCLUSKEY
The answer to the question is, Yes, and I should have thought that the noble Earl might have been able to give it. Of course, there are other precedents as well for this kind of provision. I do not want to take this matter at great length tonight, but the noble Earl says that the Government do not regard these powers as dramatic innovations. The point is that other people do. The Government ought to take account, as they professed they would, of other people's views on this matter; and this is one way of doing so.
Secondly, as the noble Lord, Lord Monson, has pointed out, in response, 818 in effect, to what the noble Earl was saying, the noble Earl says, "My confident prediction is that all will go well". I hope he is right, and it may well be that the critics of the Bill are entirely wrong. But if everything goes well, there is nothing whatsoever to lose by having this provision in the Bill and having the matter debated again in Parliament in five years' time.
There is another point that I mentioned on Second Reading and I ought to repeat now, and that is that if one takes a period like this, particularly a period of five years, as we propose to deal with on Report, and the police know that Parliament is looking to see how they behave during those five years, then they will take considerable care not to abuse the powers at all; during that period of five years good police practice will go up and it will endure beyond the five-year period. I believe that these are good reasons, and I believe the Government have nothing whatsoever to lose by accepting an amendment of this kind. In the confident expectation that if I cannot persuade the noble Earl we might persuade the House on Report, I will return to the matter then. In the meantime, I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.819
§ Clause 5 [Constable may take drunken person to designated place]:
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ 10.3 p.m.
§ Lord FOOT
Would it be proper and appropriate for me to intervene at this moment to ask the Government what their intentions are for the continuation of this debate? I do that for this reason. There are no amendments down to Clause 5, and the next clause upon which we are going to embark is Clause 6. I think it will be agreed on all sides of the Committee that that is a clause of first importance, and it does not seem possible that we could give proper consideration to all the amendments that have been put down to it, in particular, if I may mention it, the first amendment to Clause 6, which is in the name of the noble and learned Lord, Lord Wheatley. It would be impossible for this Committee at this time of night to give proper consideration to that clause, and I would therefore ask the Government whether they think it would be appropriate to adjourn this debate now and resume it upon the next convenient day.
§ The Earl of MANSFIELD
I have been taking counsel through the usual channels, and so on, and in a way it is difficult for me to put an estimate on how long our labours are likely to take on any particular stage of this Bill. But we have been getting on very slowly, if I may say so. I would not dream of blaming any noble Lord for that; they are important matters that we have been discussing. I think the feelings of my noble and learned friend and me are that we should continue for another clause or two, anyway.
§ Clause 5 agreed to.
§ Clause 6 [Judicial examination]:
§ The DEPUTY CHAIRMAN of COMMITTEES (Earl Cathcart)
If Amendment No. 30 is agreed, I cannot call Amendments Nos. 31, 32, 33, 34, 35 or 36.
§ 10.5 p.m.
Lord WHEATLEY moved Amendment No. 30:
Page 5, leave out lines 17 to 40.
§ The noble and learned Lord said: The purpose of this amendment is not to exclude the procedure envisaged in the proposed new clause, Clause 20A, but merely to find out exactly what is intended by the Government in relation to the range of questions that may be asked on this occasion. By way of prefix, may I remind your Lordships that at this stage of the proceedings an accused person is appearing not on indictment but on petition, and the charge in the petition may not be the same charge as that which ultimately appears in the indictment. I think that is a matter which we must take into account, and perhaps it lends even more force to the care we must take regarding the restrictions that may have to be placed on the questions that are asked at this judicial examination.
The proposed new Clause 20A says:
Subject to subsection (2) below, an accused on being brought before the sheriff for examination on any charge … 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 …"—
and you then have (a), (b), (c) and (d): (a) being the "matters averred in the charge"; (b) being an alleged extra-judicial confession; (c) being any declaration that has been made and (d):
, in the case of a further examination, anything said by the accused (including what is said in any declaration) in the earlier examination or examinations".
§ I cannot conceive that, as at present framed, that would restrict the questioning merely to clearing up any ambiguities. If it is intended merely to go to that length of allowing the prosecutor to clear up any ambiguities, I think the Government must look carefully at the wording that has been used to see whether it so limits. It seems to me that that would allow the questions to extend quite beyond the clearing up of ambiguities, with particular reference to matters referred to under heads (a), (b), (c) and (d).
§ If it is thought that further definition and clearer definition is required it may be suggested that there are two ways of doing this. One is to confine at least the general principles governing the restriction on questions to the Bill itself. The other may be by a process which may be unfamiliar to noble Lords from other 821 parts of the United Kingdom, by an Act of Adjournal, which is something passed by the judges in relation to procedural matters. It is one thing to ask the judges, with their close experience of procedure, to do things of that nature which relate to procedure. But this goes deeper than that. This goes to the basic question of law as to how far the prosecutor is allowed to ask questions.
§ So far as I see, the person who is the subject of this questioning does not have the right to have his solicitor present at this time. There is no provision in the clause for his solicitor to be present at this time. In that situation, I think that it would be of paramount importance that we should put into this clause—and it should be in the clause and not done by way of Act of Adjournal—a provision defining and stating at least the broad general principles to indicate the range of questions which may be asked and beyond which further questioning would be impermissible. If any further procedural matters are to be drawn into that, that could be done by way of Act of Sederunt.
§ I ask this of the Government in view of the fact that this is an innovation and a procedure with which some people, perhaps including some judges, are not very happy. None the less, if it has to be brought in, it must be couched in such terms as to preserve what would be the fundamental right of a person in that position not to be coerced into making admissions in explanation of what he may have said at some previous time, for that would offend against the principle of questions which can be put to a suspect to which I referred in the discussion of an earlier amendment. I beg to move.
§ Lord McCLUSKEY
If I may address myself to this amendment, it is, as the noble and learned Lord has indicated, a probing amendment, and a good many of the other amendments have that same character. If this amendment were allowed, that would cut out the amendments standing in the name of my noble friend Lord Ross of Marnock, and myself, Amendments Nos. 31, 33 and 36. Therfore, I ought to address myself to the broad question as to what kind of questioning is allowed here. I am not sure that I agree with the noble and learned Lord about whether or not a solicitor has a 822 right to be present. It may be in the context of the 1975 Act into which this is placed that the accused has a right to have a solicitor present. What is obscure is the role of the solicitor once he is present. That is a very important matter which requires to be explained.
If I may deal first with the matter generally, in the Thomson Committee's report, from which this proposal ultimately springs, there is considered the historical background of judicial examination. The historical background takes us back into the 19th century. Until 1898 an accused person in Scotland did not have the right to give evidence in his own defence. Against that background, what right he had was a right to emit a judicial declaration at an early stage. That declaration could be put in evidence at his trial. When in 1898 he was given the right to give evidence in his trial, the context changed entirely. At a slightly earlier date, the process of judicial examination, which had a kind of inquisitorial character to it, totally disappeared. There is nobody alive who has any experience at all of operating that historical system. I do not believe that that historical precedent in the 19th century in this totally different context is one that has any validity at all in determining whether or not it should be introduced in 1980.
The Thomson Committee, having considered the arguments, came to the conclusion (and I refer to page 42):We consider that revival of judicial examination in the form which we propose below will operate fairly to a certain effect.I will not describe in detail the form proposed, but it included strict control by the sheriff. That is in paragraph 8.12 of the report on page 42. I ask the Government: What has happened to that? There is no shadow of it in this clause.
Secondly, the Thomson Committee did not envisage that the accused would be brought back time after time. Is the effect of the new clause which is proposed to be put into the 1975 Act not to allow the accused to be brought back again and again? If he is brought back, it would appear from reading the new Clause 20A(1)(d) that in fact he can be brought back, questioned and re-questioned about matters dealt with on any earlier examination. That is entirely contrary to what 823 the Thomson Committee recommended. It is something which must be looked at very seriously indeed.
The objects are the next matter to which I turn. When the Thomson Committee made this recommendation, they had three objects in mind. One was to afford the accused at the earliest possible stage an opportunity of stating his position. The third one was to protect the interests of an accused who had been interrogated by police officers and had given answers. He was to be given the opportunity to comment upon what the police said he had stated. Two of the reasons were conceived in his favour. The other one was to enable the procurator fiscal to ask the accused questions designed to prevent the subsequent fabrication of a false line of defence: for example, an alibi.
When one looks at the matter fairly closely, one finds to all intents and purposes that that is all that the Thomson Committee had in mind: to prevent the fabrication at a subsequent date of a false alibi. One has a great deal of sympathy with that. If, in relation to a crime said to have been committed on a particular day, at a particular time and in a particular place, you can get an accused within 48 hours and say: "Were you there or were you not?", if he says, "I was not", he is then asked "Where do you say you were?" and he gives a reply, that matter can be investigated. At the moment we are in the position that it may be months later that the accused comes forward and says he was in a certain pub or at a certain football match; and there is no way that that matter can be properly investigated. So, behind the Thomson Committee's recommendation on this, there is a rationale which makes perfectly good sense.
When we turn to the Bill we find a very alarming situation indeed: the prosecutor may ask questions about matters averred in the charge and, as the noble and learned Lord has pointed out, the charge at that stage is one which has been formulated by the fiscal and not one formulated or revised by Crown counsel in the light of the evidence. The matters in the charge frequently change between that stage and the stage when the accused appears on indictment.
824 Going back to the Thomson Report, we find that they listed on page 44 a specific number of questions of a kind that might be put to the accused: they should not be leading questions or involve cross-examination techniques; there should be no reiteration of a question which the accused has refused to answer, and so on. Your Lordships can see this in the report, once it becomes available. But not one hint of it appears in the Bill.
The only thing that appears in the Bill is that there may be an Act of Adjournal of the kind to which the noble and learned Lord, Lord Wheatley, referred. That would fall to be made under Section 282 of the 1975 Act and it would not come before this House for review. It would not even go to the Secretary of State. It would not go to the Lord Advocate, in the sense that he would have no right to veto it or to put into it provisions that were not there. It would be left entirely to the judges. Of course, one trusts them implicitly, but the noble and learned Lord himself has pointed out the difficulties involved in their undertaking this task. I would submit that this is properly a task in which Parliament is interested, and we ought to see something of that. The noble and learned Lord the Lord Advocate indicated on Second Reading that he might consider an amendment of this Bill to allow the Act of Adjournal to be brought before Parliament, and I hope to hear from him today that he intends to do that.
The point which worries me most deeply about this is that in the words which this amendment would delete, and which the clause now contains, the right to silence is being virtually taken away. The questioning is at large and the Act of Adjournal remains a mystery. If the questions are to be of the kind which the Thomson Committee recommended—questions which were not cross-examination questions but questions designed to bring out facts which may be within the accused's knowledge and to avoid the fabrication at a subsequent date of a false line of defence—I should have thought that the proper person to put those questions in the interests of justice is not the prosecutor but the presiding judge. That, of course, gives these proceedings something of the character of a continental inquisitorial process. I am not entirely happy about 825 that but I think we are going to have to go some way along this road. Why give the prosecutor the right to question, and apparently him alone? You certainly deny the right to the accused's solicitor and, to my mind, that is deeply worrying.
I think we must have answers on these things, and it may well be that, as the noble Lord, Lord Foot, has pointed out, it is difficult to deal with all these matters tonight. I regret that I have found it necessary to speak at such length on the matter, but unfortunately my own commitments will prevent my being here on the next occasion when this matter is discussed. I am, however, deeply concerned about the total departure from the explicit recommendations of the Thomson Committee and about the fact that the prosecutor can put these questions to the accused and that Parliament has no control as to the content of the questions which may be put to an accused person at that particular stage.
I want to mention one other matter which is of great importance. When one looks at a subsequent part here—and I have to mention it for completeness—one sees what happens if an accused person declines to answer these questions. There may be comment at the trial, but who may make that comment? Under the Bill—and I am looking at the top of page 6—… it shall be permissible for the prosecutor or for the judge presiding at the trial to comment upon any failure by the accused to answer at examination; and they may also comment upon any inconsistency between what was said by him at examination and what is said by him (or on his behalf) at his trial.As I read it, the way that is worded the defence cannot comment at all. There is certainly no provision that they can comment, and the defence counsel or solicitor who is acting for a co-accused, and who may have a great interest, cannot comment. So one has an extraordinary clause which dramatically changes the whole way of investigating crime in Scotland, at a stage when the charge has not been seen by Crown counsel and not been approved, and the rights of the defence solicitor and counsel at the examination and trial respectively are simply not written into the Bill. We do not know what the judges will do. This is a serious matter and I hope that the noble Earl will be able to give us some satisfaction. 826 I am very worried about this, and unless we get satisfaction we shall have to move, at least on some occasion, to remove this clause from the Bill.
§ 10.21 p.m.
§ Lord FOOT
I find myself in agreement with practically every word that the noble and learned Lord has just spoken, and I am confirmed in my belief that it is a great pity that we should be embarking upon a debate of this importance at this hour of night. The noble and learned Lord has made it perfectly clear that this clause raises matters of very considerable principle and importance. If one looks at the Marshalled List of amendments, one finds that a variety of methods have been proposed for the amendment of this clause. The noble and learned Lord, Lord McCluskey, has been speaking not upon his own amendment, which is No. 31, but upon the amendment of the noble and learned Lord, Lord Wheatley, and we are still waiting to know what he will have to say about that. Then one finds that I and my noble friend Lord Wigoder have suggested Amendment No. 32, and we are proposing further amendments, Nos. 34 and 35, which are of a different character from those proposed by the noble and learned Lord, Lord McCluskey. Then we find Amendment No. 33, which is proposed by the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Ross. All these matters, if we are to get this right, ought to be debated at length and with proper consideration.
This is a matter upon which I hesitate to speak, because it is peculiarly important to Scottish law and I cannot pretend to be an authority on that. But, as I understand it from my reading of the Thomson Committee's report, this clause is reactivating the old system of judicial inquiry, which in recent times has become something of a formality in Scottish law. As I understand it, a procedure of judicial examination is being reactivated and the clause suggests what should be the subject-matters with which such judicial inquiries should be concerned. The noble and learned Lord, Lord McCluskey, has rightly pointed out that the Thomson Committee recommended in detail what kind of questions ought to be permissible at an inquiry of this kind.
827 He has also pointed out, perfectly correctly, that there is no sort of resemblance between the terms of the clause—as to what questions can be asked—and the recommendations of the Thomson Committee. It is wholly unsatisfactory, I suggest, that, rather than being set out in the clause, the sort of questions which can be asked should be referred to and prescribed by an Act of Adjournal, which I understand to be a purely administrative Act.
As they appear in the clause at the moment, the words appear to be so wide that the procurator fiscal, in performing his task of asking questions, could ask almost anything in the world. I pointed out at Second Reading that if it is open to the procurator fiscal to ask questions directed towards eliciting any explanation, denial, justification or comment which the accused may have as regards matters averred in the charge, it is difficult to think of any kind of question, whether by way of cross-examination or otherwise, whether by way of leading question or otherwise, which it would not be open to the procurator fiscal to ask.
As the noble and learned Lord has also said, if, as the noble Earl, Lord Mansfield, told us in the Second Reading debate, the object of this clause is to give to the accused the opportunity to explain any confession or semi-confession that he may be alleged to have made, then why is not the task of examining upon that given either to his own solicitor or to the sheriff? Why should that task be given to the procurator fiscal rather than to his own representative or to the sheriff who is there to see justice?
We are at a very great disadvantage. I do not support the amendment which was moved by the noble and learned Lord, Lord Wheatley, to cut out altogether this new Section 20A, because obviously that achieves very little. My present thinking is that the amendments standing in the name of the noble and learned Lord, Lord McCluskey, are those which are best suited to meet the problem with which we are faced. However, I think it is unfortunate that we should have embarked upon a debate of this consequence at this late hour and in such a thin Committee.
§ 10.28 p.m.
§ Lord MACKAY of CLASHFERN
As I understand it, the situation is that the noble and learned Lord, Lord McCluskey, will not be able to be with us on the next occasion when the Committee considers this matter, and the same applies to the noble and learned Lord, Lord Wheatley. Therefore, we were anxious that the Committee should have the benefit of their views upon this clause before we sought the adjournment.
The situation, so far as Government intention is concerned, is to adopt the Thomson recommendations. The question is: What is the best machinery for carrying that out? Could I say, first of all, that Thomson, considering the matter, decided that the procurator fiscal was the best person to ask the questions, and we have adopted that decision. The accused's solicitor would have the right to be present, by the way in which the clause is framed, and the intention is to restrict the questioning in the manner which Thomson proposes.
The main restrictions to which the noble and learned Lord, Lord McCluskey, referred are contained in the Thomson Committee's second report at paragraph 8.17 under the heading Procedure at the judicial examination. That was the reason why it appeared to us, for reasons which I sought to explain at Second Reading, that there was much to be said for having the procedural restrictions in the Act of Adjournal with the possibility of flexibility and the possibility that they might be improved with experience. However, in view of the intervention of the noble and learned Lord, Lord Wheatley, and the expressions that have fallen from other noble Lords on the matter, the Government intend to reconsider this matter and to endeavour to bring forward amendments which will bring into the Bill itself these restrictions. This will forgo some degree of flexibility, but on the other hand it may help to reassure noble Lords of the restrictions which we want to put upon this particular operation.
From what has been said I think it is apparent that there is value in this proposal. The Thomson Committee reached it unanimously and we want to achieve the value of the proposal without any of the damaging effects which have been thought to flow from it in some quarters. 829 So I hope that, although the hour is late, the Committee will be able to agree that we can, in effect, leave this clause over for further consideration, on the understanding that the Government will bring forward amendments with the design that I have sought to set out.
§ Lord McCLUSKEY
For my part I am content with that and will not move any of the amendments standing in my name to Clause 6, nor will I oppose Clause 6 standing part of the Bill.
When I first addressed your Lordships on this amendment I tried particularly to confine myself to the bare bones of the argument because of the lateness of the hour, and it would be inconsistent if I went back on that at this even later stage of the evening. So, having regard to the undertaking given by the noble and learned Lord the Lord Advocate about the manner in which he will deal with the matters referred to by me in regard to this amendment—and may I just add something that I omitted to say previously, that the Lord Justice General as head of the Court is very much in favour of it being done by way of the Bill and not by way of Act of Adjournal and I hope the Government will bear that in mind as well—I beg leave to withdraw the amendment. May I add that I do not think I shall be able to be here next week because of my judicial duties.
§ Amendment, by leave, withdrawn.
§ Lord DENHAM
In view of what has been said, perhaps at this stage I may ask whether the remaining amendments to Clause 6 are likely to be moved?
§ Lord McCLUSKEY
The amendments standing in my name and in the name of my noble friend Lord Ross of Marnock will not be moved.
§ Lord FOOT
I am also anxious to co-operate in this matter and, in view of what has been said, I shall not be moving my amendments. But I should just like to ask one question in passing and before we adjourn. I take it that the fullest opportunity will be given at a later stage to consider all the possible solutions there are which have been offered and put forward for the amendment of this 830 clause? If it is possible for the noble and learned Lord to give me that assurance then I shall be entirely satisfied.
§ Lord MACKAY of CLASHFERN
Your Lordships may take it that I shall do my level best to secure agreement on this clause, and anything that is possible to achieve that will be done by me. I think the noble and learned Lord, Lord Fraser of Tullybelton, also has an amendment to this clause.
§ Lord FRASER of TULLYBELTON
I shall not move my amendment, on the basis that the undertaking given also applies to that.
§ [Amendments Nos. 31 to 38 not moved.]
§ Clause 6 agreed to.
§ House resumed.