Police and Criminal Evidence Bill (Hansard, 2 July 1984)

HL Deb 02 July 1984 vol 454 cc7-77 7

§ 3.1 p.m.

§ Baroness Trumpington
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

§ Moved, That the House do now again resolve itself into Committee.—(Baroness Trumpington).

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The EARL OF LISTOWEL in the Chair.]

§ Lord Mishcon moved Amendment No. 28: After Clause 3, insert the following new clause:

§ ("Code of practice. .—(1) It shall be the duty of the Secretary of State to issue a code of practice in connection with the exercise by police officers of their powers and the duties under sections 1, 2 and 3 of this Act. (2) The provisions of section 64 of this Act shall apply to such code of practice.").

§ The noble Lord said: In the other place during the debate on this Bill there was a considerable amount of discussion in regard to the need for codes of practice. I do not think that it is necessary for me to enter into a long dissertation on the advantages of having a code of practice when you are dealing with matters such as stop and search, arrest, detention, and so on. I think that your Lordships would be happier to know that codes of practice existed, and that the Secretary of State was mandated to prepare such codes of practice, the drafts of which would be placed before Parliament.

§ There was considerable pressure for that in the other place. The result of that pressure was that the Secretary of State gave an undertaking to look favourably on the inclusion in the Bill of provision for codes of practice. It was not possible for that undertaking to be implemented by any suggested legislative provision 8 until this came before your Lordships' House. My noble friends and I therefore put down as an amendment Amendment No. 28, which is now before your Lordships. It will be seen that that amendment provides that the Secretary of State shall issue—it is going to be his duty to issue under this amendment— a code of practice in connection with the exercise by police officers of their powers and the duties under sections 1, 2 and 3 of this Act".

§ May I briefly remind your Lordships that Part I of the Act deals with "Powers to Stop and Search"; Part II with "Powers of Entry, Search and Seizure"; and Part III with "Arrest". After this amendment was put down the Government, following upon their undertaking, honourably put down Amendment No. 156. Your Lordships will therefore notice that as a result of the pressure, properly exercised and courteously acknowledged in the other place, and as a result as well of this amendment put down by my noble friend and I, Amendment No. 156 appears. Amendment No. 156: Clause 63, page 60, line 27, leave out from ("with") to ("the") in line 29 and insert—

(" (a) the exercise of statutory powers—

(i) to search a person without first arresting him; or
(ii) to search a vehicle without making an arrest;

(b) the detention, treatment, questioning and identification of persons by police officers;
(c) searches of premises by police officers; and
(d)")

§ May I therefore refer your Lordships to Amendment No. 156 and say briefly, while recognising that this is in some way in compliance with the undertaking, why it is the belief of my noble friends and I that that amendment is not as good as Amendment No. 28. Under that amendment there is in fact an amendment to the Bill at page 60, line 27. To follow this therefore one has to turn to page 60, line 27, and your Lordships will see that as a result of the amendment the words, detention, treatment, questioning and identification are left out, and the exercise of statutory powers comes into the Bill and it is limited to:

"(i) to search a person without first arresting him; or
(ii) to search a vehicle without making an arrest;

(b) the detention, treatment, questioning and identification of persons by police officers'; (c) searches of premises by police officers".

§ The first thing one notices about that amendment is that it provides that Clause 64 shall apply to these codes of practice, and that when the draft codes appear they will come before Parliament. But your Lordships will notice that the specific provisions that are laid down there omit various items. First of all we see reference to searching a person without first arresting him. What about a code of practice which deals with stopping a person before you decide to search him? Should there not be some code of practice relating to that, otherwise all innocent people are in danger of being stopped and having preliminary words uttered to them before a search?

§ There ought to be a code of practice about what you ought to suspect before you interfere with the lawful comings and goings of peaceful and honourable citizens. We also see provision for a search of a vehicle without making an arrest. There is nothing to do with stopping a vehicle without making an arrest. There is 9 nothing here, either, about the power of the police to enter and seize. Instead of that we have, searches of premises by police officers". There is nothing about a code of practice which says what ought to be the situation before a police officer enters premises and seizes property.

§ Therefore I turn back—I think it is the logical thing to do—to Amendment No. 28 and ask your Lordships to be good enough to direct your attention to the fact that our amendment covers the whole of Clauses 1, 2 and 3 and does not attempt to dissect the clauses or extract various items from them. It makes it quite inclusive of 1, 2 and 3 in respect of which important powers of the police there ought to be codes of practice. It is in those general terms that I bring the amendment before your Lordships for your consideration. I hope I have differentiated between this amendment and Amendment No. 156 to your Lordships' satisfaction. I beg to move.

§ Lord Gifford
I understand that we shall be addressing our minds to the Minister's amendment, Amendment No. 156, at the same time as we consider the amendment in the name of my noble friends. I should like to say how much I welcome the introduction of a code of practice. For the moment I do not take up the point exactly what form it should be, but I welcome in principle that there will be such a code. I should like to renew the plea that I made on the last Committee day that a first draft at least of that code might be with us before we leave our consideration of this Bill.
May I mention two considerations which I hope will be taken into account when the code dealing with stops and searches is being drafted. The first concerns the question to which we have had to turn our attention on a number of occasions already; that is the question of colour and of prejudice. Anyone who thought that some of us were scaremongering when we drew attention to the bias which has been shown in the exercise of the police forces' existing powers would have understood why we did it when the report of the Policy Studies Institute on this matter was published. In the section headed, "Colour as a criterion for stops", in the fourth volume of the report, the researchers of the PSI—who, let us remember, spent many weeks and months in the company of metropolitan police officers—described the attitude of three relatively experienced police constables as to their relationship with coloured people, in their thoughts about colour and the stop and search powers. One of them said that he would give this advice to probationers: How does an experienced policeman decide who to stop? Well, the one that you stop is often wearing a woolly hat, he is dark in complexion, he has thick lips and he usually has dark, fuzzy hair". The PSI reporters stated: This group of officers indulged in a great deal of racialist talk, but they also gave what they regarded as reasoned justifications for stopping black people. All three insisted that it was reasonable to stop any black people in cars because nine times out of ten they would have drugs". The report commented that 3 per cent. of stops led to an arrest or charge and a further 5 per cent. lead only to an offence being reported.
10 Finally, one of the police officers, living in a division containing areas of high and low ethnic concentrations, said: If I saw a black man walking through Wimbledon High Street I would definitely stop him. 'Course, down here it's a common sight, so there's no point". I hope that the code of practice will lay upon police officers the most stringent duties so far as these biased criteria for stopping people are concerned.
The second matter concerns the recording of the information which will be asked of the people who are to be stopped and searched, in pursuance of the powers conferred by Clause 1. It really is essential that no more information is extracted from the people who are stopped and searched and on whom nothing is found than is necessary for the proper discharge of police duties. I have in front of me a Metropolitan Police draft form which is described as being Form 124B, and is headed "Search Record". I understand it to be the type of form which it is proposed will be used to record the details of people who are stopped and searched. I note that it has only a line and a half of small space on which to record the grounds for the search. I note also that it requires the officer to record the date and place of birth of the person who is stopped in the street for the purposes of a search. If someone is stopped and searched and is innocent, he should be allowed to go on his way. In my submission it is not right that the date and place of his birth should be demanded by the police officer. The only purpose that I can think of for this being down on the form as being something which should be recorded is so that the facts of the stop and search can be recorded against any entry that might be made of that individual in the police computer, since the date of birth is an essential marking point to ascertain whether someone is on the police computer and, if he is not, he can be put on it. It seems to me that if that is being recorded, it is so that people who are innocent, but who are being stopped and searched, whether or not anything is found on them, should have that fact recorded and logged against them on the police computer. I hope that the code of practice will ensure that that practice, if it is contemplated, will not be carried out.

§ Lord Hutchinson of Lullington
I should like to support the suggestion that there should be a code of practice, and I welcome the Minister's amendment, but I would agree with the noble Lord, Lord Mishcon, that his amendment really fulfils the purpose much better than does the Government's amendment. This code of practice is perhaps as crucial as anything in the Bill. I am quite sure that the Minister is aware—in fact he has said so—that hitherto the powers of stop and search have been misused. In saying that in the last debate we had in Committee, the noble Lord said that if there is a defect, it does not lie in the definition in subsection (3). It will be remembered that the noble Lord, Lord Hooson, and myself put down an amendment to try to deal with the misuse by, first of all, limiting the powers of stop and search to an officer in uniform—that amendment has gone through—and, secondly, requiring the reasons for the suspicion to arise out of the circumstances of the stop itself. The noble Lord said that the defect did not lie in the definition because there must be some concrete basis for the police officer's beliefs relating to the individual 11 concerned. That, if I may say so, is the essence of the whole of the guidance which is to be given in this code of practice.
I should like to ask the Minister now, for the third time, the same question which hitherto he has not been able to answer: is it the view of the Government that if a police officer knows that an individual has a conviction of some kind for a criminal offence, that knowledge alone would found a reasonable suspicion? Both Ministers in another place during Committee said that that would be so. It is because of that that we feel the amendment we have put down, which now could find its sense in the code, is so crucial. As the Minister said, there must be some concrete basis for the officer's belief relating to the individual. By that does he mean that it will be open to the police to stop anybody on the street simply and solely because that person has some form of criminal record?
If that is not so, I ask the Minister to make it abundantly clear in the code that that does not found a reasonable suspicion? It is that, to which one can add the appearance of the person, the company he keeps, his proclivity (such as being a homosexual) and so on, that have given rise to all the worries and the hassle that this power has brought with it. I ask the Minister whether he can reply to that question and, whatever his answer, I hope that it will be in the sense that I have indicated—that he will make it abundantly clear in the code when it is drafted.
Will he also make it clear that when there is a stop of this kind the person stopped should be cautioned? It is just as important that he should be cautioned at that stage as when he reaches the police station, and as when he is arrested, which is now the law. The Government have introduced into the criminal law a completely new concept, that of detention, which has never before been recognised in the criminal law. There is now something called "detention", which is different from arrest, and the law at present is that if someone is arrested, he must be cautioned; that is, told of his right to keep silent. I would suggest that in the code it is equally crucial that the person should be cautioned when stopped because, for instance, it may be suggested that he has stolen goods in his pocket. What he says in relation to those stolen goods may be of crucial importance, and he should be warned of his rights at that stage.

Lord Inglewood
If it is still in order to address Amendment No. 28, I hope that I may do so very briefly and ask the Minister whether he can tell us more about the shape, form and length of these codes which will be laid before us soon, I believe, in draft. It is possible that they may be very short. They must be long enough, or they are not going to serve their purpose. On the other hand, if they are made too long they will not be read and learned and understood in the same way. In fact, if they are too long they will be self-defeating; and I think that that could easily happen. I am not sure how many of these codes are already in view. We have been discussing three of them under Amendment No. 28, and I think that there are more to come.
It may be of interest to your Lordships that I always try to compare police procedure in another country 12 with that in this country. Not so long ago, at the beginning of this year, an extremely intelligent and able German police officer who understands English as well as we do asked if I could send him not just a copy of the Bill but also of the amendments when it came to Committee stage. The opinion he expressed to me was that their men, who are trained over at least two years before they come out and do duty outside, would take about two years before they understood this Bill which we are now considering. I should like to think that when the Minister goes through this question of the codes he will give us his idea so that in due course we can discuss exactly where the golden mean may lie.

§ Baroness Macleod of Borve
It seems from the speeches we have heard already that both sides of the Committee are as aware as I am that this code of practice is vitally important, not only for the police but certainly for the younger people in society. They must know where they stand as well as the police knowing where they stand. It will breed confidence in the young people, about whom we are worried today. The noble Lord, Lord Gifford, made an allusion to a form. It seems to me that his idea that there should be one form for one lot of people and another form, asking for details of birth and address, for another lot of people is not really a practical idea. With respect, it seems to me that everybody should have the same form and that every police officer should have the same form to fill in. But I agree also that the code of practice, as such, must be as concise as it is possible for it to be.

§ Lord Renton
Although I have a great deal of sympathy with what has been said in favour of codes of practice dealing with these matters, I am somewhat surprised that we are dealing with this at this stage. Therefore, I assume that Amendment No. 28 is really a probing amendment. Your Lordships have agreed that Amendment No. 156, which is a specific amendment to the relevant clause, Clause No. 63, dealing with codes of practice, can be referred to now. But I would very much hope and expect that my noble friend on the Front Bench will say that these matters should be dealt with in a code under Clause 63, and not separately and at this early part of the Bill. As I am referring to Clause 63, may I humbly give notice that when we come to that clause I shall be suggesting that there should be a code covering the interrogation, arrest and treatment in the hands of the police of those suffering from mental handicap and mental illness.

§ The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne)
It may be convenient if I speak at the same time to Amendment No. 156. Several noble Lords have already referred to it. Amendment No. 156 has been tabled by my noble friend, and we shall come to it in due course. Both amendments serve the same purpose: to include in the Bill a requirement that the Home Secretary should issue a code of practice governing the use of powers to stop and search. My right honourable friend the Minister of State undertook to consider the case for such code following a suggestion made during Report in another place.
Having done so, both we and the Association of Chief Police Officers, which we have consulted on this suggestion, agree that provision for a code is desirable, 13 and we are grateful to those who have made this helpful and constructive proposal. A code will provide an opportunity to supplement the already detailed safeguards contained in the Bill and to provide guidance about the exercise of powers which, while necessary, must be exercised responsibly and with care if community relations are not to suffer. My noble friend Lord Elton undertook on the first Committee day that we would push forward as fast as possible with work on the code. I can now tell your Lordships that we shall publish a first draft of this code of practice before the Report stage in your Lordships' House, and copies will be available from the Printed Paper Office.
The draft will include, among other things, a guide to the police about the requirement of reasonable grounds for suspicion as a pre-condition for the exercise of these powers. This was in the mind of one noble Lord who spoke. It was, I think, accepted by your Lordships on the first day of Committee that the reasonable suspicion test was a key safeguard but that it was not susceptible to precise definition; but, as it was not susceptible to precise definition, great care had to be taken to ensure that it was not devalued in practice. We shall be sending copies of this draft code to the wide range of bodies which have commented on drafts of the other codes of practice for which the Bill provides. I should like to take this opportunity to stress that the stop-and-search draft is very much a first draft, and that we shall welcome constructive criticisms and suggestions from any quarter.

§ Amendment No. 156, standing in the name of my noble friend, has exactly the same effect as the new clause proposed by the noble and learned Lord, Lord Elwyn-Jones, and the others who have attached their names to this amendment. I hope that the noble and learned Lord will agree that the matter can be dealt with in Clause 63 and that a new clause is therefore not necessary.

§ The noble Lord, Lord Mishcon, in his opening remarks, referred particularly to the powers of search referred to in our amendment—that is, our Amendment No. 156—and I can confirm that these include the power to detain for the purposes of a search; and the code of practice will, therefore, as I said just now, cover that point.

§ Lord Mishcon
Before the noble Lord proceeds to embellish that remark, could I perhaps help him, I hope, by saying that it was not my point that the code might cover other things. It was my point that the statute must lay down what the code should or should not contain. I am sure that the noble Lord the Minister will bear in mind that there is also the power to issue new codes, and therefore the fact that a current code may, although it is not in the Act, cover something, an amended code may not do so. Therefore, it is necessary to be precise in the Bill.

§ Lord Trefgarne
I know the noble Lord has some anxieties on this matter. I was going to draw his attention to one of the three codes which have already been published in draft—I do not think the noble Lord has given full weight to that fact—and that is the code of practice for the searching of premises and seizure of property, which is another matter to which he referred later in his remarks. But our amendment does indeed 14 cover the seizure of property, and the noble Lord did express some anxiety on that point when he was speaking just now.
In the course of his remarks, the noble Lord, Lord Gifford, referred to the question of the date of birth being entered on the form when suspects were stopped for search under this provision. The noble Lord will be reassured to know that suspects are not required to give their date or place of birth when questioned under these provisions. The question may indeed be asked but the suspects are not required to give that information. I am not sure whether or not the noble Lord was aware of that point.

§ Lord Gifford
I intervene to say and to put on record that I am not reassured. My hope is that when the code is being considered the question will not be asked—certainly as a matter of routine—because it is the asking of the question which is offensive. Most people will not know that they are not required to answer it.

§ Lord Trefgarne
I hear what the noble Lord says. Nonetheless it is the case that suspects are not required to give this information, but I will take note of the observation of the noble Lord that perhaps that fact may not be immediately known to those who are stopped under these provisions.
But if I may revert to the remarks of the noble Lord, Lord Mishcon, I should add that the power to search does indeed include the power to detain, which is included in the Bill, and therefore the code must cover that particular aspect of the matter to which the noble Lord referred just now.
The noble Lord, Lord Hutchinson, asked me specifically whether a previous record alone would suffice as a ground for suspicion in this case. I can tell the noble Lord that a previous record alone cannot suffice, and the draft code will deal with this point.
The noble Lord, Lord Hutchinson, also suggested that we were providing some sort of novelty by means of this provision, but there has long been a power to detain short of arrest—for example, the power to stop and search under the Misuse of Drugs Act 1971—so the proposition that the power is a novel one is not, I think, quite correct.

Lord Inglewood
Will my noble friend make one simple matter clear? What does a police constable do with a man whom he is about to detain? What is the difference between that and arresting him? Where does the police constable put him if he is responsible for a man who is detained?

§ Lord Trefgarne
These are just the sort of matters that will be covered by the code of practice to which I have referred and which will be brought before your Lordships in due course. But I should have thought that it was fairly obvious that a suspect who was detained in this way would then be searched and only following the search would the constable decide what was the right way to proceed thereafter.

§ Lord Molloy
Would the suspect be allowed to protest and say that he did not want to be searched because he had not been accused of anything whatsoever?

§ Lord Trefgarne
No, my Lords. The purpose of this provision is of course to give the police constable the power to detain and to search, which is exactly the issue that we are discussing at this moment.
But, if I may revert again to the remarks of the noble Lord, Lord Hutchinson, when I said that this was not a novel power, it is not the present intention to require cautioning over and above what is included in Section 11 of the draft questioning code, which we believe to be sufficient for all purposes.
I hope that in the light of these explanations the noble Lord, Lord Mishcon, will not wish to press his amendment. I do believe that the Government have brought forward a proper response to the concern that has been expressed, and that response is contained in Amendment No. 156, to which we shall come in due course.

§ Lord Mishcon
I am sure that the noble Lord the Minister knows that I have the greatest respect for him and therefore if I say that the reply is rather woolly, he will not take that as a personal affront at all because it is not meant to be. But we are dealing with a very important matter and I am afraid that the noble Lord the Minister has not addressed his mind to what may be very imperfect observations that I have made, but the noble Lord has just not directed his mind to them.
As I understood the Minister, the code of practice is intended to cover Parts I, II and III of the Bill. Our amendment says that. The noble Lord the Minister says, "There is no difference at all between that, really; do look at our Amendment No. 156. We will cover all that in the code." In Amendment No. 156, instead of saying with great simplicity and clarity that the codes will cover Parts I, II and III, matters are singled out from Parts I, II and III. There is no point in the noble Lord, the Minister, opening his comments by saying, "Of course we cover stop and search". I ask him to stop and search for one moment his own amendment and he will find that there is no reference at all to stop—only to search. There is a reference to detention but not arrest. There is a reference to seizure of property in premises but not to entry into premises. There is also a question here of the whole of this matter being answered by the Minister by saying, "Wait until you see the code of practice and you will find that everything is in it, even though Amendment No. 156 does not say so." I have two points to make in answer to that and I shall make them very briefly.
First, statute ought to say quite clearly what codes of practice should cover. One should not just leave it to the fact that the code of practice might. Secondly, a code of practice may be before your Lordships next week or in a fortnight's time. The Secretary of State, whoever he may be in the future, has the right to prepare new codes of practice. It is perfectly correct that they will have to come before both Houses of Parliament but there will not be the possibility, as the Committee knows, to amend them when they come before Parliament. There will be only the power either to throw them out or to accept them. When the next set of codes do come, instead of our being bound to see the provisions in that code covering Parts I, II and III, we shall not be in that position because Amendment No. 156 does not say so. If the codes do not include these vital items in Parts I, II and III, Parliament will 16 have no power at all except to throw out the whole code of practice.

§ Lord Foot
Perhaps I may interrupt the noble Lord, Lord Mishcon, for a moment, because the Committee may be under a misunderstanding. The noble Lord has referred constantly to "Parts I, II and III", when I think he means Sections 1, 2 and 3.

§ Lord Mishcon
If Members will turn to the first three pages of the Police and Criminal Evidence Bill, they will see "Part I—Powers to Stop and Search"; "Part II—Powers of Entry, Search and Seizure"; and "Part III—Arrest". So what I was trying to do was to follow the nomenclature of the Bill itself. I hope that the noble Lord will not think that I have acted incorrectly or misleadingly in so doing.

§ Lord Foot
No, my Lords, but I am looking at the noble Lord's own amendment, in which he refers to "sections 1, 2 and 3". That is what I thought he was referring to in his remarks to the Minister.

§ Lord Mishcon
I think I am right in saying that by the time the Bill passes, it will in fact be "sections 1, 2 and 3", and it is only when the Bill is before Parliament that it becomes Parts I, II and III. So I am trying—

Several noble Lords
No.

§ Lord Mishcon
Is that wrong? My Lords, not for the first time I have dealt incorrectly with Parliamentary procedure and possibly it is a question of not having had the benefit, as other noble Lords have had, of sitting in another place. I have learnt my procedure in this House at very courteous hands and I apologise to the Committee if I have said something wrong on procedure. I was prompted to say that and obviously it is not accurate. All it really means is that it would have been better had this amendment said "Parts I, II and III", instead of "sections 1, 2 and 3".

Several noble Lords
No.

§ Lord Foot
Will the noble Lord understand that I am trying to help him? I am not being critical of him in any way. If he will look at his own amendment he will see that it refers to "sections 1, 2 and 3". Those are the present Clauses 1, 2 and 3. The effect of the noble Lord's amendment, as I understand it—and I entirely approve of it—is that the code of practice will be required to cover all the matters which are referred to in the present Clauses 1, 2 and 3. I entirely support what the noble Lord is saying about that but I think that in referring to Parts I, II and III he must have been bewildering the Committee because the Bill as a whole is divided into parts, and he cannot be referring to Parts I, II and III in this particular connection.

§ Lord Donaldson of Kingsbridge
With respect, I think he is; I think he is referring to Clauses 1 to 7, 8 to 16 and 17 to 21.

§ Lord Mishcon
In endeavouring to persuade the Committee that the noble Lord the Minister is confusing the Committee, in the course of those 17 remarks I have possibly confused your Lordships, for which I apologise. It is my intention absolutely definitely to be covering Parts I, II and III and, if my amendment is wrongly worded in calling parts "sections", I apologise to your Lordships. However, it is my firm intention to be covering Parts I, II and III.
Having said that, I hope I have made the point that the noble Lord the Minister has, by extracting from Parts I, II and III various matters which leave out other matters in Parts I, II and III, obviously put before your Lordships an amendment which, in my submission, is inferior to the amendment before your Lordships which I would ask you to consider as referring to Parts I, II and III.

§ Lord Trefgarne
I, of course, was replying to the amendment as I saw it on the Marshalled List, but I do believe there is a misapprehension in the mind of the noble Lord, and I confess that it may be that I have not sufficiently clearly explained the difficulties or, rather, the misapprehension in the mind of the noble Lord on this matter. I do firmly believe, for example, that it really is inconceivable to construct a power of search which does not include a power to detain, since nobody can search a person, or a vehicle for that matter, without stopping it first. Guidance about searching, therefore, has to include guidance about detaining in the first instance: in other words, I believe that Amendment No. 156, which we are discussing now, does confer adequate powers to meet the anxieties of the noble Lord.
Incidentally, he did draw attention to what he thought was a shortcoming in Amendment No. 156 about the searching of premises and the seizure of property, and before you can search premises you have of course to enter them. I can assure the noble Lord that of course this matter is very much part of the code of practice which I imagine the noble Lord will have already seen. I believe there is nothing between the noble Lord and myself on this matter, and therefore I hope that he will see fit to withdraw his amendment and to agree to ours in due course.

§ Lord Mishcon
It does appear that there is a certain amount of meeting of the ways here. The last thing in the world that I want to do, in endeavouring to meet halfway down the road and secure a betterment of the Bill, is to argue further at this stage. I think it may be a good idea if the noble Lord the Minister, with his customary diligence and courtesy, would look at what I have been trying to say. I will look at what he has been trying to say, and I hope that between now and Report stage it will be possible to bring before your Lordships something which is truly acceptable. In those circumstances I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 4 [Road checks]:

§ 3.35 p.m.

§ Lord Gifford moved Amendment No. 29: Page 6, line 18, leave out paragraph (b).

§ The noble Lord said: We now pass to Clause 4 and away from stops and searches to a very important 18 clause of the Bill which is entitled "Road checks". It is important, if for no other reason than that the power given by this Bill to allow police officers in certain circumstances to stop either all vehicles or vehicles selected by some criterion is likely to affect, albeit sometimes in quite small ways, more citizens than perhaps any other power given by this Bill.

§ The existing law on the powers of the police to institute road blocks or road checks, as they are called in this Bill, is very unclear. It is a murky area of the law which I hope the noble Lord the Minister will be able to help us to clarify. We have at the moment road blocks instituted over large sections of our country in connection with the miners' dispute. I was myself in Nottinghamshire last week and saw on every road leading towards any colliery a group of police officers stationed there in order to stop those whom they believed to be going to the colliery for the purposes of picketing. I heard of case after case of people prevented from going, not to picket, but about their lawful business as a result of these road blocks. I mention this not to raise that controversy but in order to draw your Lordships' attention to the difficulties arising in the existing law, because it would be my contention that there is not a power at the moment to set up road blocks at will around the country, and I certainly welcome any clause in this Bill which has the effect of clarifying the law and tying the circumstances down to identifiable criteria which we can all understand and accept.

§ The doubts arise in other fields as well. I have before me a letter written by the Metropolitan Police in answer to complaints raised by the National Council for Civil Liberties, who themselves had received complaints from citizens about road blocks in North West London, and I quote the answer of the commander: Authority to set up the road blocks was given by the divisional chief superintendent in order to increase public awareness of police presence in an area which was experiencing a high level of vehicle thefts. It appears therefore that the police believe they have the power to set up road blocks in a variety of circumstances which certainly many of us had no idea were legal at all and which I suggest are in fact not legal.

§ In those circumstances I turn to the specific provisions of the Bill, because it is my submission that that even the attempt to tie down the power to set up road blocks to specific circumstances has gone far too wide. If we look at Clause 4 we see that there are four separate types of people who can be the targets of a road check under the Bill. The first one is a person who has committed an offence, and later we learn that it must be a serious, arrestable offence. I do not seek to interfere with that power. We all know how valuable it is in cases where an offender such as Sutcliffe, the rapist, is at large in an area and everyone would wish road blocks to be set up in order to find him.

§ Much the same criteria apply to Clause 4(1)(d), a person who is unlawfully at large"— an escaped prisoner—and I make no proposal to delete that type of person. My Amendment No. 29 addresses itself to paragraph (b): a person who is a witness to such an offence". 19 My Amendment No. 30, which it might be convenient to take at the same time, addresses itself to paragraph (c) a person intending to commit such an offence". Amendment No. 30: Page 6, line 19, leave out paragraph (c). Amendments Nos. 33 and 34 are consequential upon those two amendments and I shall take them in turn. Amendment No. 33: Page 6, line 37, leave out paragraph (b). Amendment No. 34: Page 6, line 40, leave out paragraph (c).

§ So far as a witness is concerned, I find myself very puzzled. The police do not have the power by force to stop a citizen in the street to try to find out whether he has been a witness to an offence. They have the power to ask a question, and they have the power to ask for the co-operation of the public, which is how the public should be addressed. But what this Bill is seeking to introduce is a power forcibly to stop vehicles, in order to try to find a witness to an offence. It has to be a serious arrestable offence, but that is the only limit which is placed in subsection (4)(b), and that goes too far.

§ By all means let members of the public be invited to co-operate with the police; by all means let the numbers of passing cars which might have witnesses in them be taken and the owners in due course interviewed. But the power to interfere with traffic and to stop people going about their lawful business should be circumscribed and not made so wide as to include a search for vehicles.

§ The next paragraph which I seek to delete, paragraph (c) a person intending to commit such an offence", worries me even more. It is not a crime to intend to commit a crime. Attempted crime is an offence. Conspiracies when groups of people conspire together to commit a crime are an offence. But to have in your mind the intention to commit a crime is not a crime, and for the police to have powers to set up road blocks in order to find people who are intending to commit an offence takes us dangerously near to the thought-crime of George Orwell, when to have crime in your mind is to commit a crime and to make one the object of police attention—

§ Lord Molloy
There was a time in Nazi Germany when police were instructed in a similar way to look at the features of a person. If he had Semitic features he could be arrested.

§ Lord Gifford
I am grateful to my noble friend, and when we come to an amendment that I intend to move, which deals with the police being able to stop people selected by any criterion at all, I will take up his point. When we find out what circumstances the Bill envisages for the exercise of this power, our confusion and worry grows, because in Clause 4(4)(c)(ii), at the top of page 7 of the Bill, we see that in order to exercise power to set up road blocks to find people intending to commit an offence, the criterion has to be that, having regard to a pattern of crime in the area in which vehicles would be stopped if the road check was authorised, the offence"— that is to say, a serious arrestable offence— 20 is likely to be committed in that area during the period during which the road check would be authorised to continue". We have already seen in our consideration of Clause 109 how wide and lax the definition of "a serious arrestable offence" is. It seems to me that under this Bill as it stands road blocks could be instituted all around our cities, week after week, in order to find people who are intending to commit crimes, if "having regard to a pattern of crime" is the necessary criterion. It is an extraordinary criterion. If there is a spate of burglaries in Hampstead, of drug dealings in Notting Hill or of any other crimes of a type which occur daily or weekly in our cities, any officer in a case of urgency can set up a road block.
We need to exercise our powers of limiting this Bill in relation to this clause. Of course, there will be an element of discretion. Of course, the number of road checks set up will be recorded and the reasons for them given, and that is to be welcomed. But let us try to deal with the situation in circumstances which we all agree are proper, and those are the circumstances in Clause (4)(1)(a) and Clause (4)(1)(b), I submit that the others are not necessary. I beg to move.

§ Lord Denning
I hope that your Lordships will not accept these amendments. As regards paragraph (c), a person intending to commit such an offence", let us take the case where motorists start from the metropolis and intend to break into a house in Hampshire. The attempt to commit the crime does not start when they leave London. The attempt starts, and the crime starts, only when they enter the front gate or break the front door of the house in Hampshire. Therefore it is essential that there should be power to put on a road check if need be so as to stop those people who are intending to leave London on their escapade. That is the difference in the law between an attempt to commit a crime and the preparation for it, which is well known.
As regards paragraph (b), a person who is a witness to such an offence", quite often you might have a criminal who is escaping or who has a colleague who goes off from the crime. There is no evidence to implicate him in it, but he is certainly a witness to it, and it must be most valuable in finding the miscreants if you are able to have a road check to stop a person who is a witness to such an offence. He will probably not want to be found out and all you can be sure of is that he is a witness, but that should be sufficient. So I hope that your Lordships will not accept these amendments.

§ Lord Wigoder
I see the force of the argument put forward by the noble and learned Lord, Lord Denning, and I certainly would not want to do anything to weaken the protection to which owners of houses in Hampshire are entitled. At the same time, there is something in the point made by the noble Lord, Lord Gifford, that the wording, a person intending to commit such an offence is extraordinarily loose and may simply cover a person with a mental element of the intention of committing an offence at some indeterminate time in the future.
I wonder whether the point of both the noble Lord, Lord Gifford, and the noble and learned Lord, Lord 21 Denning, might be met if the noble and learned Lord the Minister would consider at a future stage some alteration to the wording, so that the Bill read either, a person about to commit an offence", or, a person on his way to commit an offence". Would that meet the point that the Minister is seeking to make, without giving rise to the objection raised by the noble Lord, Lord Gifford?

§ Baroness Macleod of Borve
I am sure we are all aware that up to now road checks have been completely unrestricted. This Bill is trying to make them more restricted, so that they cause less nuisance to the public at large. But we have to make it possible for the police to apprehend criminals, whether they are intending to commit a crime or whether they have already done so. My reading of the Bill is that if a robbery has been committed in a district, the witness who has taken part in the robbery must be able to be apprehended in a road check, if and when one is put up with the authority of the police. These amendments are very important, because the police must have flexibility to be able to apprehend anybody who they think is in breach of the law.

§ 3.50 p.m.

§ Lord Harris of Greenwich
It may well be that the suggestion made by my noble friend Lord Wigoder, that Clause 4(1)(c) could be improved at the Report stage is valid, but for the moment I should prefer to speak simply about Clause 4(1)(b) which is concerned with the power given to the police to stop a person who might be a witness to a serious arrestable offence. It seems to me that it is desirable to maintain some form of provision of this kind in the Bill, for a series of reasons, some of which have been given. The noble and learned Lord, Lord Denning, touched on some of those reasons.
Perhaps I may give another illustration which may have some validity. Let us assume that a child has been murdered and buried in a wood near a highway in a rural area. Tragically, there are, as we know, many such cases each year. If the police decide that a motorist who regularly passes that spot at seven o'clock in the evening or thereabouts could have some information which would be of help to them, it does not seem to me to be unreasonable that the police should have such a power. It would be very unfortunate if we were to delete it.

§ Lord Plant
I hope that these amendments will not be carried. They would deprive the police of a facility to trace witnesses. They would seriously hamper the investigative process. So far as crime is concerned, areas throw up certain patterns which need to be checked by way of road checks. How was the Yorkshire ripper caught? If these amendments had been in operation, he might never have been caught. We have to think very seriously before we take away from the police an investigative procedure which is very much in the interests of the community.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
The noble Lord, Lord Plant, has 22 referred to an amendment dealing with the pattern of crime. It is not among the group referred to by the noble Lord, Lord Gifford. On the other hand, it is in the group of amendments which it has been agreed by the usual channels should be taken now. I wonder whether the noble Lords opposite would like at this point to give their views on that matter.

§ Lord Mishcon
If we are invited to give our view on the pattern of crime, it will mean referring, will it not—I ask the noble Lord the Minister to help me on this point—to Amendments Nos. 35 and 36?

§ Lord Elton
Yes.

§ Lord Mishcon
If it is convenient to the Committee that Amendments Nos. 35 and 36 should be dealt with now, I shall do so with pleasure and, I hope, with brevity. Amendment No. 35: Page 7, line 1, leave out from ("that") to ("the") in line 3. Amendment No. 36: Page 7, line 4, leave out ("that area") and insert ("the area in which vehicles would be stopped if the road check was authorised"). I wonder whether your Lordships would be good enough to look at the top of page 7 of the Bill, where the most extraordinary and, your Lordships may think, extremely harmful words appear. They are: that, having regard to a pattern of crime in the area in which vehicles would be stopped if the road check was authorised, the offence is likely to be committed in that area during the period during which the road check would be authorised to continue". Are we to accept crime areas—areas where the pattern is such that rights are given which do not exist in other areas? If I may turn to the noble and learned Lord, Lord Denning, I would ask, is Hampshire to be designated as an area where a pattern of crime exists? I hope not, because I have the privilege of sharing that county with the noble and learned Lord and of loving it very much indeed.
I dare not treat this matter lightly because many of your Lordships—I look in particular at those who occupy with honour the Bench of Bishops in this House—are terribly concerned about the way in which relationships are being built up or destroyed in various areas. This would mean talking in terms of areas which are going to receive special treatment because there is a pattern of crime in those areas; therefore rights are going to be given.
When we on these Benches saw these words we decided, after a reaction which I hope your Lordships can imagine and which therefore I do not have to describe, that the best way to deal with the matter was to delete them and to improve them with a constructive amendment. The constructive amendment appears as Amendments Nos. 35 and 36. Therefore the words would be that, the offence is likely to be committed in the area in which vehicles would be stopped if the road check was authorised during the period during which the road check would be authorised to continue". In other words, we are saying that it is likely, from all the facts which the police know, that an offence will be committed in that area. There is no question of past pattern, future pattern, or present pattern. It is just that it is likely that an offence will be committed in that area. Therefore the power is given in those 23 circumstances. The suggested wording in these amendments is inoffensive. The wording which appears in the Bill as drafted is, to use an understatement, offensive.

§ Lord Molloy
I support both of the amendments of my noble friend Lord Gifford. When passing legislation I believe it to be fundamental that we should make certain that, so far as is right and proper, full assistance is provided to the police of our country in carrying out their difficult task. I do not believe that they can carry out that task on the banal assumptions of the noble and learned Lord, Lord Denning, that all criminals emanate from London and that all the victims are in Hampshire. That to me is a criminal absurdity. Those of us who have experience of other lands know that eminent judges have given eminent reasons which have then been twisted by well meaning people. Therefore one ends up with something which can be encapsulated in one word: racialism. You stop a person who might have witnessed something because he is black.

Noble Lords
No.

§ Lord Molloy
That is what some people are saying. It is one of the reasons why a thorough investigation was conducted by one of our noble and learned friends in this House. We should ensure that in no way do we detract from the confidence which ordinary people have in our police. We should always bear that fundamental point in mind.

§ Lord Elton
With that sentiment I do not for a moment disagree, but as to the question of racialism, the noble Lord is perhaps thinking of another amendment, not this one. So I am sure he will forgive me if I revert to the main theme which we have been discussing and pick up the point which my noble friend Lady Macleod of Borve so aptly made. I begin by saying that your Lordships will of course need to remember, in describing the appalling consequences that will flow from giving these liberal and unrestrained powers to the police, that not one of them is new, that everything that is in the Bill serves to reduce the powers of the police below what they now are. The power to stop vehicles is not in the—

§ Lord Molloy
The noble Lord the Minister asked me to give way, and I did so immediately. I had not finished what I wanted to say.

§ Lord Elton
I apologise for disappointing both the noble Lord and the Committee over what he has to say.

§ Lord Molloy
Knowing the noble Lord, I am sure that is true; but he rose in the middle of what I was saying, and because I do not believe in the practice of going on for another minute and then giving way I thought it right and proper to give way immediately. That is what I did. My point is that if one reads the report of the noble and learned Lord, Lord Scarman, one sees that there is evidence on this matter beyond all peradvanture. Let me take the case of the little boy of 16 who was arrested because he might have 24 witnessed something, because he was black and because his friends were black. I find that disturbing. We must not do anything that will detract from the confidence that ordinary people have in our police force. If this Bill became an Act, certain things could happen which would be injurious to the general public at large and detract from the good name of the police. It is in that respect that I support the arguments submitted by my noble friend Lord Gifford and the amendments which he moved so ably.

§ Lord Elystan-Morgan
Speaking for my own part, and I trust for those on these Benches, it would on the face of it appear that there was considerable force in the comments of the noble Lord, Lord Gifford, in relation to both Clause 4(1)(b)—that is, a person who is a potential witness—and Clause 4(1)(c); that is, a person intending to commit such an offence. If I may deal first with the question of the witness, it would appear to be the case that the police already have the power sought, under Section 159 of the Road Traffic Act 1972. That is a very wide power. It has never been defined, although the noble and learned Lord, Lord Denning, in 1964 in the case of Waterfield pointed out certain limitations to its use. But so far as I know—and I see the noble and learned Lord nodding his head in agreement—it would appear to be the case that there has never been any definition of that section's boundaries, and that they are certainly wide enough to cover the power of stopping a vehicle to establish whether there is a person who might be a witness to the type of offence referred to in Clause 4.
The second matter raised by my noble friend Lord Gifford is better founded in logic, in that he must be right when he says that there is no offence in the whole of our criminal law of a person intending to commit a criminal offence. One of course accepts readily what the noble and learned Lord, Lord Denning, says; that an attempt to commit an offence, which is of itself a criminal offence, can occur before the very last act in the chain occurs, provided that it is sufficiently proximate to the ultimate intention of the miscreant. On the other hand, the Minister may take the view—and this is really my purpose in speaking at this stage—that it might be right to place some limit on the powers of the police here, in that to allow to the police the power to stop vehicles in order to establish whether there is a person who has the intention to commit a criminal offence might be going too far.
I wonder whether some form of wording which would make Clause 4(1)(c) read as follows, a person setting about to commmit such an offence", might be nearer the mark. I do not pretend that that wording is perfect but the Minister may take the view that it leads properly in the right direction.
Finally, since I am on my feet, I will make one point in relation to Amendments Nos. 35 and 36 to which my noble friend Lord Mishcon has spoken. Does the Minister accept that in certain circumstances this qualification, which is a second limb to Clause 4(4)(c) in so far as paragraph (c)(i) is concerned may be too restrictive? In respect of a person who intends to commit an offence, the constable must have reasonable grounds for believing, first, that the offence would be a serious arrestable offence 25 and secondly, in sub-paragraph (ii), that, having regard to a pattern of crime in the area in which vehicles would be stopped if the road check was authorised, the offence is likely to be committed in that area during the period during which the road check would be authorised to continue". With the greatest of respect, I venture to suggest to the Minister that that may be unduly restrictive of the powers of the police in this particular regard.
Let me give an instance. Interpol, by information that has come to them suddenly, may pass on vital facts to the police operating in the area of Hampshire—since that county has already been chosen as an example. It may be a terrorist-type offence. Nobody would be able to say that it is in any way at all the type of offence that conforms with a pattern in the area. But as I understand it, the police would not be able to invoke the powers of Clause 4 in that regard. I therefore ask rhetorically the question: is the second limb of the pattern of events either necessary or desirable in this connection?

§ 4.5 p.m.

§ Baroness Phillips
I find myself listening to this debate with an increasing air of astonishment. I wonder what kind of a world some of your Lordships live in. I am all for a code of practice for enforcement officers. I only wish that we could have a code of practice for the criminals; it would make life a great deal easier for many of us. I understand that one of the duties of our police force is to prevent crime as well as to detect crime and arrest crime. I will give your Lordships an example from my own area just a few nights ago.
A car which had been patrolling up and down the streets in the small hours was stopped by the police—not because the vehicle in question was obviously breaking any law but because the police were curious. When the car was stopped, the police found that it contained, not surprisingly, a great deal of stolen property. I only know of this because my next door neighbour's property was restored to him as a result. The police must have been acting on suspicion.
If we are to prevent crime, there is no other way than by acting with speed It is easy for us to sit here in this calm and detached atmosphere and discuss these matters, and it is easy for noble Lords who are lawyers and who are skilled in the art of changing words. As a magistrate, I have listened many times to pleas in court. I thought that I knew what crime was when I started hearing the case, but by the time a convincing barrister had finished, I was not quite so certain—which was obviously his intention.
But here we are making laws, We are making laws to protect innocent citizens. That is what we are making laws for. We are making laws in order that our enforcement officers may carry out their duties. It ill-behoves us to place any heavier restrictions upon the police. There is very little evidence that police powers are abused. The fact that any such abuses make news means that they occur only very rarely. I give this instance because we must be very careful before placing any restrictions upon our police force.

§ Lord Elton
I am most obliged to the noble Baroness—

Lord Inglewood
May I speak in support of the noble Baroness—particularly in respect of one point she made concerning the speed at which criminals move. If we are to have road checks, they must be set up instantly. It is not a question of a pattern that one can set out on paper. We must use men of experience who can move quickly and who can recognise offenders' strange ways and suspicious characters. We would not recognise them, but practised police officers recognise strange ways and characters, and can then check suspicious vehicles at the side of the road. Many criminals are caught in that way.
When speaking in the House of Commons in about 1829, Sir Robert Peel made that very same point. He observed that criminals were beginning to move around very quickly with the advantage that they had in those days. That goes to show that some truths remain from one age to another. We must be sure that we give our police the freedom to act; not to delay people for any great length of time but to move quickly in making such checks.

§ Lord Elton
Third time lucky! First, I should like to remind your Lordships of the comment made by the noble Baroness, Lady Phillips; that we are constructing laws for the protection of law-abiding citizens and at the same time trying to see that we do so in a way that does not lead to affront or tension between those citizens and the police. It is our intention to protect the innocent, but not necessarily, I would have thought, to protect the guilty from the operation of the police.
Secondly, I should like to remind the Committee that the power to stop a vehicle rests in Section 159 of the Road Traffic Act and it is entirely at large. Therefore, what we are discussing is not whether we are permitting the police excessive new powers but surely whether we are excessively diminishing the powers the police already have. With that in perspective, I hope, I should like to turn to the amendments proposed by the noble Lord Lord Gifford, which I think are intended to remove entirely the power to set up a road check for the purpose of tracing a witness to a serious arrestable offence or to apprehend a person who intends to commit such an offence.
One of the principles underlying the whole of this Bill is that coercive powers should be used only where it is necessary for them to be used; and then only to the minimum extent that it is necessary for them to be used. I accept that we would expect all responsible members of the public who can provide the police with information about an offence—particularly about a serious arrestable offence—to come forward with it voluntarily, so we must be cautious to compel people to do what is, after all, their plain duty as citizens. It was for this reason that we decided not to accept the recommendation of the Royal Commission that the police should have a power to detain witnesses in the immediate vicinity of a grave incident. Subsection (1)(b) will only permit a road check in order to trace a witness to a serious arrestable offence. Taken together with subsection (1)(a) and (c), it represents a restriction of existing powers. I believe those powers are needed, and particularly this one.
Your Lordships will recall a particularly frightful case last year in which a young boy was sexually assaulted in Brighton. In their attempts to solve this 27 crime the police set up road checks, not with any expectation of finding the offenders but simply to try to find witnesses. I, for one, am convinced that they were right to do so. The noble Lord's amendment would make it impossible for them to do the same in future. There are other ways of trying to get witnesses to a serious crime to come forward: notice boards by the roadside saying, "Were you here last Tuesday?", "Can you help?", and things like that. But in certain special circumstances a road check may be the most effective and practical way of finding witnesses. The experience of the police is that, in general, notice boards are not an effective means of communication. Often people do not know that they may be important witnesses simply because without talking to a policeman they may not understand the significance of something they have seen, or, indeed, of something they have noticed not seeing in a particular case.
The second group of amendments tabled by the noble Lord, Lord Gifford, seeks to remove the power to set up a road check in order to discover an intending criminal. The amendments of the noble and learned Lord, Lord Elwyn-Jones, moved by the noble Lord, Lord Mishcon, seek to leave that power intact but to remove its dependence on the existence of an observed pattern of crime suggesting that a serious arrestable offence is likely to be committed. The Royal Commission were quite clear in their report that there should be a power to set up road checks in these circumstances. They noted that the police sometimes find it necessary, where there is a spate of serious crime in a specific area, to mount such checks, and they expressly said that they saw the value of this procedure. They said that they understand and acknowledge the potential value of such a procedure to the police when a clear pattern of serious crime is observable.
The source of the power to set up the road check is, as I have already said, on the statute book already. I think those of us who live, or may live, in areas where there is a clearly detected pattern of crime would not agree with the noble Lord, Lord Mishcon, that it was in some way derogatory to have that recognised. If he was a turkey farmer in an area where turkey farming was common, and it was approaching Christmas, he would be quite clear that turkey rustlers are an amazingly expensive force battening on his trade; and if it was possible to apprehend a turkey rustler who had already lifted several lots of turkeys on his way to another with an empty car, he would welcome it. Of course, there are more serious crimes than turkey rustling. I only give that example, because I believe there are turkey farmers in Hampshire, which is a county which attracted the noble Lord's interest. There will always be outbreaks of serious crime in particular areas. If the affliction of an area by crime makes road checks necessary, then, in our view, they should be possible.
Nonetheless—and I turn to the amendment of the noble Lord, Lord Mishcon—the phrase "pattern of crime" in subsection (4)(c) has come in for a fair amount of criticism in the past few months. As I said, "a clear pattern of serious crime" was the phrase used by the Royal Commission as the basis for their recommendation, and with reason. Let us imagine, 28 not turkeys but a series of sexual assaults taking place in a particular area, or a series of robberies at building society branches. The police do not know who is responsible for them, but a pattern is discernible. There are reasonable grounds to suspect that another assault or robbery will take place in accordance with the pattern; and if a road check is established there is a chance that the offender will be found or, indeed, deterred.
On the noble Lord's amendments I should like to clear up one thing. The effect of Clause 4(4)(c)(ii) is to add a second restriction to 4(1)(c) checks. The first restriction is that the expected offence would be "a serious arrestable offence" if it was committed. That is in Clause 4(4)(c)(i). The second, which is the subject of the noble Lord's amendment, is not only that the commission of the offence is likely but that that likelihood arises, as the Royal Commission recommended, from an existing pattern of crime. It is this latter condition which he seeks to remove. Any expectation would do for him, not one based on a pattern of crime. That is in fact a weakening of the restrictive power, and I should like to know if it is what he intends before I further say what I think of his amendment. I think I have made it clear that the others do not commend themselves to us.

§ Baroness Gaitskell
May I ask the Minister a very short question? What is the matter with us? We seem to be frightening ourselves into fits since the stop and search debate. We are talking about things that we have known about all our lives. We have not been particularly frightened, only frightened occasionally. I do not understand anything that has been said this afternoon about this. It is absolutely incomprehensible. Why are we making such a fuss about this? What has happened to our country that we have to make such a fuss about this?

§ Lord Elton
May I try to put in a nutshell the answer to the noble Baroness? What has happened is a series of events culminating in the Brixton riots which led us to realise that, although the law was very strong and specific in dealing with crime, it allowed crime to be dealt with in ways which were sometimes counterproductive because they offended the innocent and thereby the public lost confidence in the police in certain areas and the work of the police was made more difficult. One of the areas we are now looking at is the power that the police already have to protect us from serious crimes and other things by means of setting up a road check. The purposes of these amendments bear on the new ground in the Bill. The new ground in the Bill is to restrict the use of those powers which already exist where they are used to find people, not things—whether witnesses, offenders or intending offenders. Noble Lords are anxious to restrict those more than the Government are; that is why we are so excited.

§ Lord Mishcon
I am most grateful to the noble Lord the Minister for that courteous intervention. May I make one observation before I say something specific in answer to the question that the noble Lord the Minister asked me?
I have said before, and it has been said by my noble and learned friend Lord Elwyn-Jones, that there is no 29 difference between the two Front Benches as to their ends. Both are in favour of law and order and it seems a most curious thing for any reasonable person even to discuss it. The only thing we feel that we must very carefully do—and the noble Lord the Minister said this for his Front Bench and for all his noble friends—is to make absolutely sure that we can keep as near as we can a correct balance between catching the criminal, which all of us want to do, protecting the public, which all of us want to do, and infringing upon the rights of citizens, without doing so where that infringement should not take place. It is against that background, I make it perfectly clear, that all the discussion will take place so far as my noble friends and I are concerned.
To go to the direct question which the Minister put to me, if I may be frank I am not very sure that it is right to take Amendments Nos. 35 and 36 with the amendments very properly raised, as he independently did, by the noble Lord, Lord Gifford. But these arrangements were put before us and we did not demur. Therefore, we are in the position that Amendments Nos. 35 and 36 are now being taken.
I was asked whether in this amendment we were really endeavouring to increase the rights of the road check by the police because we were interfering with the wording of (4)(c)(ii) at the top of page 7. My answer is this. I would prefer that reasonable grounds for thinking that a serious arrestable offence had been committed, or was about to be committed, should stand by itself rather than that the words should occur which do occur at the top of page 7 in paragraph (c)(ii). The Minister was very fair and endeavoured to give examples to the Committee of what might happen at Christmas time in regard to turkeys in certain areas. That is all very well and it sounds very feasible. If the words in this clause had referred to patterns of a specific crime, or of a certain quality or category of crime, I and my noble friends might have stomached it a little better than we do the actual wording of this clause. The actual wording is: a pattern of crime in the area". That means general crime. That means it is a criminal area; that it is a thug area. It is those words—

§ Lord Elton
Perhaps the noble Lord will allow me to intervene. He referred to a particular category of crime. He will find in subsection (4) that it must be "a serious arrestable offence".

§ Lord Mishcon
I am sorry, but that makes it even worse. If it is to be "a serious arrestable offence" for it to be "a pattern of crime" in an area, it really means that it is an area where not just trivial offences are being committed but the sort of area where serious arrestable offences are committed. That is the designation and the label of the area. That is the offensive part. My noble friends and I are not trying, in this amendment, to limit the powers of the police. What we are trying to do, in a Bill which is supposed to deal with police powers and criminal evidence, is to stop offensive words occurring in a Bill which will be interpreted by the police, regardless of codes of conduct, as "Well, we have the right to set up road checks in this area for a serious arrestable offence. Everyone knows—even Lord Scarman found there were difficulties in the area of Brixton—that this must 30 be the sort of area to which the noble Lord, Lord Elton, was referring in the remarks he made in Committee which we have so carefully studied. It is that sort of interpretation which can be put on it by the police and it is that interpretation that, very properly, can be put upon it by people who live in certain areas. It is on that basis that I find these words objectionable.

§ Baroness Trumpington
I live in a perfectly respectable part of England, near Margate and Ramsgate. Occasionally I go to Brighton on holiday. I consider there is a definite pattern of serious crime on such days as bank holidays when gangs of youths come down not only to those towns but to the small town of Sandwich which does not have its own police force. These gangs terrorise and commit serious crimes—certainly serious arrestable offences.

Lord Inglewood
I do not believe that efficient, experienced police officers are going to be so impressed by these words in the Bill, whether or not slightly changed. There is something called ways and means which is well-known in certain police circles. If they thought there was some crime which they were by way of detecting they would be after it.

§ Lord Elton
The noble Lord, Lord Mishcon, questioned the wisdom of grouping these amendments together. It might be helpful if I give now an undertaking to consider very seriously the amendment which he has in this group of amendments. I tried to explain at the conclusion of my last intervention that, in our view, it limits the limitation on the police. I shall not expand on that but we are content to consider it. Perhaps the Committee would now like to return to the noble Lord, Lord Gifford, who I know is anxious to enlighten the Committee with his views on what has transpired in the last 51 minutes.

§ Lord Gifford
I am anxious to be constructive in this debate which deals with an area of law which is confusing to many of us. Speaking for myself, I am not sure that the confusion about the existing law has been dispersed by what the Minister said. He said that this clause is not so much granting new powers to the police as restricting the unrestricted power which the police now have. I find that difficult to accept in view of the wording of Clause (4)(16) which states: Nothing in this section affects the exercise by police officers of any power to stop vehicles for purposes other than those specified in subsection (1) above". As I understand it, therefore, we are to keep all the powers that the police now have and add to them the powers in Clause (4)(1).

§ Lord Elton
That is not the case. We are to keep all the powers that the police now have for purposes other than finding people. The noble Lord will see in Clause 4(1) that: This section shall have effect in relation to the conduct of road checks"— they are defined in subsection (2) as the exercise of the power to which I have referred— for the purpose of ascertaining whether a vehicle is carrying"— four classes of people are then given. If the road check is for that purpose it is to be limited by the terms of 31 Clause 4. That is the limitation imposed. Previously, both the power to look for people and the power to do other things were all at large. Clause 4 now brings the power to search for certain classes of people within bounds. Therefore, it is a limitation on the power of the police. It does not claim to be a limitation on their power to stop vehicles for other purposes.

§ Lord Gifford
I am following carefully what the Minister says and I expect he will further enlighten us when we come to the amendment to delete Clause 4(16) and we might find out a little more about the other powers to be preserved intact. However, I still have this confusion. The noble Lord, Lord Elton, said that at the moment there is an unrestricted power to stop vehicles for reasons pursuant to the Road Traffic Act. But I do not understand that to be an untrammelled power to stop any vehicles for any purposes. According to the Royal Commission's statement of the law, paragraph 25, the existing law is: By Section 159 of the Road Traffic Act 1952, however, a police constable in uniform may require any person driving a motor vehicle to stop the vehicle, and this is a general power. The constable must be acting in the execution of his duty, that is to say his conduct must be authorised by statute or recognised at common law and not involve any unjustified use of the powers associated with the duty". It is not right to say that at the moment there is a general, unrestricted power. I gave certain examples in moving the amendment, and I still maintain that the police are not acting within the law. I gave the example of the mining communities today when the police set up a variety of road blocks.
However, I have listened with care to what has been said on the two subsections to which I referred. I think that different considerations apply to each of them. So far as witnesses are concerned, a number of noble Lords have referred to the desirability of asking potential witnesses whether they have noticed something relevant to the commission of a crime. That is not a power that I see giving rise to grave abuse. No doubt people would be pleased, if the power is properly used, and at any rate not excessively, to answer the question if they are stopped. I do not therefore intend to pursue that amendment.
I am far more concerned about Clause 4(1)(c)— a person intending to commit … an offence". The noble Lord, Lord Elton, gave the game away a bit when he said that it is necessary to apprehend people intending to commit an offence. There is no power to apprehend people intending to commit an offence. As I listened to the various noble Lords who gave examples of how they felt that this power would be useful, it seemed to me that all the examples could be taken account of by reference to Clause 4(1)(a), which deals with the apprehension of criminals.
The gang of robbers coming from London to burgle the house in Hampshire—to which the noble and learned Lord, Lord Denning, referred—would have committed the crime of conspiracy. Under Clause 109(5) a conspiracy to commit a serious arrestable offence is itself a serious arrestable offence. The gangs of robbers referred to by the Minister could be the subject of a road check if it was thought that they were going to commit a further offence. Indeed, the very reference to a pattern of crime in an area, which is 32 intended to justify this clause, means that we are looking for criminals—people who have committed crimes—and it is not necessary to have a special clause which talks about people intending to commit a crime.
The difficulty with a clause which gives the power to the police to look for people intending to commit a crime is that the police are then allowed to try to go into the motives and the future intentions of people driving around the roads, and then, one asks oneself rhetorically, do what? Since there is no power of arrest, they cannot arrest someone who is intending to commit a crime. One assumes that the only power that the policeman can exercise, if he has stopped somebody who he thinks is intending to commit a crime, is to tell him to go back to where he came from. That is exactly what is happening at the moment in the road blocks in Nottinghamshire. Whether or not they are intending to commit crimes or breaches of the peace, people are being told to go back home.
That leads us to the danger that the passage of traffic along the road of people who are in fact obeying the law but who the police think are intending to commit crimes will be impeded to a degree which is not warranted. Therefore we ask ourselves, is this power necessary? If it can be accommodated either by Clause 4(1)(a), or by some amendment to Clause 4(1)(c) which restricts it, as the noble Lord, Lord Wigoder, suggested, we shall be much more reassured and better off.
I hope that the noble Lord, Lord Elton, in addition to saying that he will examine the definition in Clause 4(4)(c)(ii) of "a pattern of crime", will respond not only to myself but to the noble Lord, Lord Wigoder, and, I think, my noble friend Lord Elystan-Morgan, by looking at this description of, a person intending to commit … an offence". Certainly I would be happy to withdraw the amendment if there is to be another look at this arm of the law and so long as we can keep open—and the Minister will keep open—the question of whether, a person intending to commit … an offence", is to remain without any change at all in this Bill. I do not know whether the noble Lord can help me on that.

§ 4.35 p.m.

§ Lord Elton
I can help your Lordships to this extent. What the noble Lord has now said seems to boil down to this. He will correct me if I am wrong. It seems to boil down to a belief that, if there is a pattern of crime, the people who are next going to fall into the projected pattern will be the same people who committed the crimes before. What he is really saying, I think, is that there is a power already under Clause 4(1)(a) to catch somebody who has committed an offence, and the assumption is that when the police are after the turkey rustler, it will be the same turkey rustler who took the last lot of turkeys. That may or may not be the case.
The same is equally true—is it not?—of the example which my noble friend gave of the swarm of young people who come down on motor bicycles, etc. to seaside resorts, create mayhem and sometimes commit very serious offences. Whether those individual young people were the same people who came last year, and whether they go to the same place as last year, is very much open to doubt. What the noble Lord 33 is saying is that, if the police expect that an event like this is going to take place and do not know that it will be caused by or composed of the same people, they will have simply to watch them go by or stop them for some other reason. But the purpose of this clause is to control the way in which the police stop vehicles to ascertain whether particular classes of people are inside or on them.
Therefore it seems to me a pity that the noble Lord should be prepared to deny the police the powers, which are preventive powers, to stop vehicles where they think serious crime is likely to be committed but they do not know that it has been committed in the past by the same people who are now in the vehicles. I think that that would be a mistake, and I hope that I have persuaded your Lordships of that.

§ Lord Gifford
Perhaps I am not making myself clear, but the noble Lord is not meeting the point that I seek to make. The point that I seek to make is that what is being given in this Bill is too wide a power. If it even risks being too wide a power, one must see whether there are in fact other powers which deal with the evils which are being contemplated. The gang of hooligans that the noble Baroness, Lady Trumpington, described, had undoubtedly committed, or will be suspected of having committed, conspiracies to contravene breaches of public order. So far as the turkey rustlers are concerned, they will be squarely within Clause 4(4)(a), because there will be grounds for suspecting—not for knowing for sure; that is not the criterion—that criminals are in the area, and whether or not it turns out that they are criminals does not matter.
A lot of concern has been expressed, not only by myself, about the potential ambit of this clause. The only question is whether we see what the Government's ultimate intention with regard to this clause is when they have examined it—or at any rate part of it—or whether we divide on this amendment now. I am prepared to see what the noble Lord finally comes up with when he has looked at the criterion in Clause 4(4)(c)(ii) to see what we are finally left with so far as this part of the Bill is concerned. But I ask the noble Lord to realise the potential evil of allowing the police to set up road blocks purely to find people who they think have crime in their minds is going very far and should be resisted.

§ Lord Elton
I will be very brief, too, and I shall quote the noble Baroness, Lady Phillips, as closely as I can. What do we think we are about? We are not inventing a thought police. We are enabling them to take quick preventive action when they have good reason to believe that a serious crime is going to be committed in a particular area within a particular time. I think the Committee will mostly agree with me that they should be empowered to do that.

§ Lord Mishcon
May I make the position clear on Amendments Nos. 35 and 36 because I think it will help the noble Minister and the Committee. The noble Lord the Minister has given a very clear indication that he recognises, without necessarily conceding them, the arguments that have been put forward as to the use of words to which this amendment objects. In those 34 circumstances I am grateful to him. Therefore, I hope that something can happen between now and Report stage. It would be my intention when Amendments Nos. 35 and 36 are reached to say that they will not be moved in view of what the noble Lord the Minister has said.

§ Lord Boyd-Carpenter
If my noble friend examines Amendments Nos. 35 and 36 and if he discovers, as he has suggested he might discover, that the powers of the police would be increased as a result of the adoption of those amendments, may I express the hope that he will adopt them?

§ Lord Gifford
I, too, would wish to wait and see what happens with regard to Amendments Nos. 35 and 36 and to that part of the Bill before finally asking for any view to be taken about this part of the Bill. I beg leave—well, I will not beg leave quite yet.

§ Lord Elton
I do not wish the noble Lord to be encouraged to think that I shall be meeting him in any way on his amendment. I am not sure what that will make him decide to do now, but I cannot tell him that deciding to do nothing now will put him in what he will think is a happier position at Report stage.

§ Lord Gifford
I understand that and I have not taken anything that the noble Lord has said as any undertaking or assurance. However, I want to know what is the final form of this clause before commenting in the Committee on how acceptable it is. I beg leave to withdraw my amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 30 not moved.]

§ Lord Gifford moved Amendment No. 31: Page 6, line 24, after ("any") insert ("reasonable").

§ The noble Lord said: If the Committee pass on to Clause 4(2), we come to the nature of the power which is conferred once one of the grounds set out in Clause 4(1) exists. The power conferred is the exercise of the power conferred by the Road Traffic Act, that is to say, to stop a vehicle, in such a way as to stop all vehicles or vehicles selected by any criterion. My amendment seeks, I hope reasonably, to insert the word "reasonable" between "any" and "criterion".

§ Once there is a pattern of crime or once there is a suspected offender, whatever the ground may be, for a police officer then to have untrammelled, unfettered power to decide by any criterion in the world which vehicle should be stopped cannot be right. It would allow an officer to stop a vehicle on a criterion, however unreasonable, however biased and indeed—and I now come to what my noble friend Lord Molloy said—however racist the criterion may be.

§ I have already quoted live police officers from the PSI report expressing themselves in a racist way in the exercise of powers to stop. So we are not talking about something mythical or unlikely. The difficulty that "any criterion" imposes is that the citizen who is stopped and who believes that he has been selected according to a criterion which is biased or which is unreasonable, has then no right of redress. No doubt 35 he can go to the record. He can ask for the record which is provided under another part of the Bill, and find out why the powers were exercised in the first place. He may agree that the exercise of the power in those circumstances was in principle reasonable.

§ However, he may still want to say, "Why did you pick on me?" If the policeman's answer is allowed to be, "I do not even have to give the reason why I picked on you. I picked on you because of an unreasonable reason", or, "I picked on you because although there was nothing racial about the suspected offence, you were black", or "I picked on you because you were driving a Rolls-Royce and I do not like posh cars", or whatever unreasonable criterion it might be, that person would have no redress.

§ Some people are going to be inconvenienced. Some people are going to be delayed, or miss appointments, or be queuing up along the roadsides when these road blocks are exercised. That is inevitable. The people who are inconvenienced in that way need to know that the power is being reasonably exercised and, if it is not being reasonably exercised to be able to exercise their right to complain or bring a civil action. However, if the criterion does not even have to be reasonable then they are left without a remedy and, what is worse, the police are left with an arbitrary power to stop people because they selected the criterion without reference to what might be reasonable in the circumstances.

§ Of course, "reasonable" has a very wide meaning and in the long run would be interpreted by a judge or jury. It may be reasonable in some cases to stop every tenth car. It may be reasonable in some circumstances to stop every car. There may be choices which could then be judged in the light of the emergency which motivated the search. However, there must be some criterion of reasonableness.

§ In the exercise of most statutory powers, particularly when they are exercised by Ministers, the law demands that they should be exercised reasonably. It may be that one could make a case that a power has to be exercised reasonably. Maybe that is what the noble Lord the Minister will say. If that is right, let its put it in the Bill. Let us not have an open power to select by any criterion. Let us put in the word "reasonable", which cannot in any way hamper the powers of those police officers who use these powers for reasonable purposes in reasonable ways. I beg to move.

§ Lord Somers
I cannot understand this widespread horror at a motorist being stopped by a policeman. If I were driving along the road and were stopped by a policeman, the only feeling that I should have would be anxiety to be of some use. The only regrets that I should have would be if eventually I found that I was not of any use. Surely the only person who can regret being stopped by a policeman is the man who has something to hide from the police. I cannot understand this idea that if the police stop a motorist in their effort to combat crime—which, incidentally, is growing to be a very serious matter in our society today—it should give any offence at all.

§ Lord Elton
If the noble Lord, Lord Gifford, would bear with me, the principal concern which he expressed, and one upon which he said I might be able 36 to reassure him, was whether by some other provision in the law the conduct of the police in a case like this had to be reasonable, and if so he would still wish it to be in this Bill. So I may be able to curtail this debate by directing him to subsection (4) which makes the authorisation of a road check under subsection (3) the responsibility of a police officer of at least superintendent rank—and I see that others would wish it to be higher. That is in subsection (3). Subsection (4) makes it necessary for him to have reasonable grounds for suspecting that a serious arrestable offence has been taken. So the mechanism wanted is there. "Reasonable grounds", which is the requirement the noble Lord wanted, are on the face of the Bill. They are not, as it were, in the hand of the constable on the road; they are in the hand of the authorising officer in the station. He may feel that that is a more experienced, senior and responsible hand.
As to the question of people taking it amiss if they are stopped, the noble Lord, Lord Somers, is right in almost every respect. However, some people do feel that they are being picked on. It is the extent of that feeling which has led to the tabling of this Bill and many amendments to it. I only say that inevitably there are going to be what appear to be surprising decisions as far as the people stopped are concerned. For instance, since the noble Lord chose a case where the colour of a person's skin was important, if a black male prisoner escapes from, let us say, Parkhurst or Albany, it is not unreasonable for a police constable to stop a tractor and a trailer in the district if it is driven by a white female. It will suffice for the person to know that a convict has escaped and that the police are looking for him. In view of the fact that the reassurance that he wants is on the face of the Bill, I wonder whether I need address myself any longer to the noble Lord.

§ 4.50 p.m.

§ Lord Gifford
I hope that the noble Lord the Minister will continue. If what he says is right—and it is—that would be a reasonable criterion for stopping the man. My question is, why should not "reasonableness" be contained in the Bill? It is not enough to say that the officer has to have reasonable grounds to believe that an offence is going to be committed or has been committed. It may be as clear as day that there is a serious arrestable criminal in the vicinity, but we need to extend the criterion of reasonableness to the judgment of who is stopped. I fail to see so far why that should not be done. There is no harm in it. It would give that protection and provide an answer to anyone who chooses to complain that he was picked on. If he was unreasonably picked on, should he not have redress? Will the noble Lord explain why the amendment is not acceptable?

§ Lord Elton
I am not entirely certain that I follow the noble Lord. I think that what he says is that the Bill provides that the purpose of the road check should not be frivolous, but must be based on reasonable grounds. He then says that the constable must have reasonable grounds for the basis on which he picks an individual vehicle to stop. He asks us to put this into the Bill out of a fear, I think, that constables may stop only black drivers or Rolls-Royces. I find it difficult to imagine 37 the constable would stop only black drivers if he was aware that a crime had been committed but not aware of the ethnic appearance of the person who committed it. Equally, I would be puzzled if, knowing that a crime had been committed by a white person and that that person was driving a car and would be visible, he should then stop cars driven by black people. However, as no constable can actually see who may be on the floor of a car until it has been stopped, I do not honestly see that the noble Lord's amendment would advance his case.

§ Lord Molloy
What the Minister says flies completely in the face of the Scarman report. We cannot in the early part of the year laud that report and then have this Police and Criminal Evidence Bill which throws it all to one side.

§ Lord Elton
I really must ask the noble Lord to give way. This Bill is very largely a response to the Scarman report. I doubt whether the noble Lord can have read the Bill, if he has not seen the provisions in it. All that we are arguing is whether it is a sufficient response. It is not a rebuttal. It does not cast the report aside. It is a measured and important piece of legislation designed to reassure people on exactly the grounds that Scarman showed they needed reassurance.

§ Lord Molloy
I cannot imagine the ordinary people of this country being enamoured of the Minister's argument that he is opposed to the word "reasonable"; and he is opposed to that word. There have been many debates in this Chamber when Members on this side have charged the Government that their inclusion of the word "reasonable" is not explicit enough, is not sufficiently explanatory, whereupon the Government have courageously gone on record and have stated what they mean in that instance by being "reasonable". Let them do the same now. Any Government should do that. I see nothing wrong in having the word "reasonable" put into the Bill. I shall tell the Committee why. A number of senior police officers to whom I have spoken tell me that they do not want what they call draconian or massive powers, but want at all times to appear to be really reasonable in the exercise of their very responsible duties. I am simply supporting my noble friend Lord Gifford—

§ Baroness Macleod of Borve
May I suggest to the noble Lord that he is being completely unreasonable?

§ Lord Molloy
I am sorry, but I missed what the noble Baroness said.

§ Lord Elton
My noble friend said that the noble Lord himself was perhaps being a thought unreasonable. I wonder whether I may just ask the noble Lords, Lord Gifford and Lord Molloy, to take account of this further consideration. The precise effect of the amendment may not be exactly what is intended. Subsection (2) places restrictions on the use of the Road Traffic Act power. The effect of the amendment would be to remove them from unreasonable cases of its use. If that is so, perhaps the noble Lord will spare us pursuing it further and consider between now and Report stage whether he has got it right.

§ Lord Molloy
I wish to make this point. If I was almost totally opposed to everything that the Government had done, I would let them leave it as it is, so that I could go outside and argue that the Government and their Front Bench are opposed even to anything that contains the word "reasonable". I do not want to do that. I want this Government who, in the general sense, are also my Government, to be able to say that they are at all times sensible and reasonable in the wording of legislation. I believe that the overwhelming majority of senior police officers would welcome the term "reasonable" simply because it is a well-known term in British jurisprudence which, by and large, we all applaud.

§ Lord Gifford
I do not want to raise controversy in the debate. I have so far accepted the integrity of the noble Lord, Lord Elton, in seeking by this Bill to redress the grievances which gave rise to the Brixton disorders and which are monitored in the PSI report. It is totally in that spirit that I move the amendment. In asking the Committee to accept that the requirement of reasonableness adds something to the Bill, and adds something that it needs, I go no further than to repeat a couple of quotations from the PSI report which indicate how some officers select whom to stop. It is the criterion of whom to stop that we are dealing with.
The first quotation concerns three experienced police officers: All three insisted that it was reasonable to stop any black people in cars because nine times out of 10 they would have drugs". That means to say that if there was a suspected drug peddler—there could be a serious arrestable offence involved if there was substantial gain—whose colour was unknown, these officers would go round stopping black drivers only. It would be unreasonable, and there should be a redress.
The second quotation was: If I saw a black man walking through Wimbledon High Street, I would definitely stop him". No doubt, the same officer would also stop him if he was driving through Wimbledon High Street and there was an alert out that a serious burglar of unidentified colour was in the area. Again, it would be unreasonable and, I am sure, contrary to the code of practice. But there would he no redress because the law allows that officer to select by any criterion.
I believe, further—

§ Lord Elton
The noble Lord has been kind to me in interrupting. The point is that the code of conduct is enforceable by the disciplinary code, and so there is, in fact, a redress.

§ Lord Gifford
That raises entire questions of whether the disciplinary code is enough. I want the complainant to be able to have a redress if the criterion for his being stopped was unreasonable; if he was stopped, let us say—because these are the examples I have given—on a racist criterion. The amendment is to Clause 4(2) which provides that the power to stop vehicles can be exercised for the purposes of this clause in such a way as to stop either all vehicles—one accepts that this may be necessary in some cases—or vehicles selected by any criteria. All that I seek to do is to insert "reasonable" into those criteria.

§ Lord Elton
I must detain your Lordships' Committee for a moment longer to elaborate on what I have said. The effect of Clause 4(2) is to de-limit those parts of the powers of the Road Traffic Act which operate under this clause. At the moment the power operates on all stops of all vehicles or vehicles selected on any criterion. The noble Lord would have it operate only on those which were selected by any reasonable criterion and not by any other. So the amendment is defective. However, I cannot dissuade the noble Lord.

§ Lord Mishcon
I wonder if I can be of some assistance, and if I am not, then at least I shall have wasted only one minute. A considerable time has been spent on what I am sure is an important amendment. Would the noble Lord the Minister consider the words: in such a way as to stop all vehicles or vehicles selected by any criterion necessary at all? Would he not think that the subsection could read: For the purposes of this section a road check consists of the exercise of the power conferred by section 159 of the Road Traffic Act 1972? Then we do not have to worry about anything other than the fact that the law exists as set out in the Road Traffic Act 1972 and will be so exercised in the course of these provisions. I should have thought that that might be a sensible way in which to deal with the matter.

§ Lord Elton
That is not a solution that is on the Marshalled List and it is one that I would be prepared to consider.

§ Lord Foot
I wonder if I could try to come to the assistance of the Minister because I think that he is right about this and that a lot of what has been said on this side of the Committee is incorrect. As I understand it, if we look at Clause 4 we find in subsection (1) the circumstances in which the clause shall have effect. As I understand it, subsection (2) is an attempt to define a road check. It says that a road check is: the exercise of the power conferred by section 159 of the Road Traffic Act"; that is, the power to stop vehicles of any kind in any circumstances. It goes on to say that a road check is the exercise of that power when it is done, in such a way as to stop all vehicles or vehicles selected by any criterion". If one reads the words: vehicles selected by any criterion in this way: "vehicles selected by a criterion", one finds that a road check is defined as, first, a check to stop all vehicles or, secondly, a more limited check—that is, a check of certain types of vehicles or vehicles selected according to a more limited criterion. As the Minister has already pointed out, one then goes on to find that subsections (3) and (4) amply set out the fact that that power can only be exercised on the authority of a superintendent, and the superintendent can only exercise the power at all as long as he is satisfied that it is reasonable to do so. That seems to me to be perfectly sensible and reasonable and I 40 cannot understand why we have occupied however long it may have been discussing a matter of this nature.

§ Lord Gifford
If the noble Lord tells me that my amendment is defective then I feel that it is my duty to find out why, although at the moment I am bound to say that I cannot see why the Bill should not contain a clause or a limitation on the power to select what vehicles to stop, which imports a requirement of reasonableness. Nothing that the noble Lord has said has indicated to me that he is prepared to allow that criterion of reasonableness. We shall come back to this matter. I shall find out whether this amendment is defective and if it is I shall put an effective one down at the Report stage. I beg to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 5.5 p.m.

§ Lord Elwyn-Jones moved Amendment No. 32: Page 6, line 26, leave out ("superintendent") and insert ("assistant chief constable").

§ The noble and learned Lord said: Along with amendment No. 32 it may be convenient also to discuss Amendments Nos. 37, 37A—if the noble Lord, Lord Inglewood, has no objection—and Amendment No. 39. Amendment No. 37: Page 7, line 10, leave out ("superintendent") and insert ("assistant chief constable but not below the rank of inspector"). Amendment No. 37A: Page 7, line 10, leave out ("Superintendent") and insert ("Inspector"). Amendment No. 39: Page 7, line 38, leave out ("superintendent") and insert ("assistant chief constable").

§ Clause 4(3) of the Bill confers on a police officer of the rank of superintendent or above the power to authorise in writing a road check. It is an important power. The police already and currently use their powers to stop vehicles where a person whose arrest is sought in connection with a serious offence may be known to be moving in a particular area. That power already exists. The Royal Commission, upon whose report so much of this Bill is based—or ought to have been based—recommended in paragraph 3.31 that such road blocks: should be confined to particular types of serious crime and should be regularised by the introduction of a measure of supervisory control". The supervisory control that they were initially contemplating was the requirement of the authorisation of a magistrate's warrant.

§ The commission took very seriously, and quite rightly, the importance of the setting up of road blocks. Road blocks can obviously seriously disrupt the community and the movement of traffic upon the roads and, of necessity, the effect of a road block holding up a stream of traffic inevitably means that a large number of innocent people are disturbed upon their way or upon their business. Therefore, the setting up of road blocks is an infringement of a person's liberty to go about his business.

§ Therefore, it was for reasons of concern that the power should be under proper scrutiny that at any rate consideration was given not to the giving of the power to a police officer of certain rank but indeed to a magistrate's warrant. That, however, was ultimately 41 rejected by the Royal Commission for a reason which certainly appeals to me; namely, that the police in such a matter should take responsibility for an operational decision of that kind. That, if I may say so, is a sensible conclusion.

§ But the Royal Commission proposed that the decision with regard to setting up a road block should be by a police officer of rank not less than assistant chief constable. That is a measure of the importance that the power should not be used excessively—I shall not use the ugly word "abused"—when a person whose arrest is sought in connection with a grave offence is believed on reasonable grounds to be moving in a particular area. The Royal Commission's recommendation is quite specific and quite unambiguous upon this matter and we think that it is right to adhere to it.

§ There seems to us to be also practical reasons why the power of decision should be in the hands of an assistant chief constable or, of course, the chief constable himself. As the Bill stands, it will be possible for road checks to be set up on many parts of the same police area at the very same time. Let us take as an example Lambeth. Lambeth has four divisions—Brixton, Clapham, Kennington and Streatham—with a superintendent in charge of each. Under the clause as it stands it would be possible for superintendents in each of those divisions to set up checks without knowing that there are checks already in place in the other divisions. If a development of that kind took place, road movements in the whole of this considerable area would be brought to a wholesale halt. Therefore, in our view—and it was certainly the strong view of the commission, expressed in very clear terms—it would be more prudent and, indeed, more effective if the decision as to road blocks came from the level of chief constable or his assistant, who have an overall view of the requirement of the situation and of the area. It is because of the recommendation by the Royal Commission that this amendment ought to commend itself to the noble Lord the Minister, and it is because of its practicability and its reasonableness that I move it.

§ Perhaps I should say in passing that the amendment of the noble Lord, Lord Inglewood, proposes to lower the level at which road checks should be authorised. I imagine that he has in mind the argument of availability of inspectors as distinct from superintendents, and, least of all, as distinct from assistant chief constables. However, I submit that the importance of this decision and its possible practical effects point to the wisdom of the recommendation of the Royal Commission itself that this should be a decision of the assistant chief constable. I beg to move.

Lord Inglewood
I should like to respond to what the noble and learned Lord opposite has just said. I have tabled my amendment to replace the rank of superintendent with the lower rank of inspector on purpose. However, I am not quite sure that I have the words in the right place later in the Bill. It appears to be the wish of the noble and learned Lord opposite to raise the level at which authority can be given to set up a major road check. I believe that was the noble and learned Lord's point. He mentioned Brixton, where blocks might be sited to cover a large area. That 42 situation would be entirely different from quite a small check, especially if, say, an important terrorist or other criminal was being sought.
One of the most important aspects in this case would be speed. The moment there is reason to check traffic in this way, a block must be set up at once. The next most important point is that a more senior officer should have a chance to assess whether or not it is reasonable, and for how long the check should be maintained. I must not describe any personal experiences, but perhaps I may be permitted just one sentence. Not very long ago I went to Germany, and the Germans gave me the opportunity, all on my own, with an officer the rank of sergeant and two juniors, immediately to set up such a check. We decided the criteria to be selected. We never heard a single word from anyone, and after ensuring that the check was happily proceeding, we closed it down.

§ Lord Elwyn-Jones
Perhaps I could draw the noble Lord's attention to the provisions of Clause 4(5) of the Bill, which, in an urgent situation, allows an officer below the rank of superintendent, without specification—

Lord Inglewood
I have already said that I did not think my words were in the right place, and I had that subsection in the back of my mind.

§ Lord Elwyn-Jones
I was merely drawing the noble Lord's attention to the fact that the emergency scene is covered by Clause 4(5) of the Bill.

§ Lord Denning
My noble and learned friend has referred to the metropolis; I want to refer to Hampshire. In Hampshire we have a chief constable, a deputy chief constable and an assistant chief constable. They deal with the whole county and have their own provinces of jurisdiction. However, the north of Hampshire covers an enormous area, and the superintendent lives just at the top of the hill beyond us. He keeps jolly good control over everything; he can deal with everything. He is much the best person to decide whether or not there is to be a road check. We should not bother the chief constable about it but leave it to the superintendent.

§ Lord Harris of Greenwich
I think that there are, indeed, practical arguments relating to this amendment, as the noble and learned Lord, Lord Elwyn-Jones, suggested in moving it. But in fact they are practical arguments which are in the opposite direction to the one which the noble and learned Lord favours. Following the point made by the noble and learned Lord, Lord Denning, I want to deal with a particular problem which would arise if the rank was that of assistant chief constable. There are 13 police forces in England and Wales which have only one assistant chief constable, and a deputy chief constable and chief constable on their establishments; all the other forces have more than one assistant.
I should like to deal with this practical problem. It is impossible to assume that a chief constable will always be in his own force area. He obviously will not be; he may be at a meeting of ACPO in London; he may be at a regional conference of chief constables. 43 His deputy may be on holiday. Therefore, there would be only one officer of the rank of assistant chief constable or above who, in terms of this amendment, would be authorised to make this decision. I am bound to say that in a large police force area, such as the county of Suffolk, the sheer difficulty of a junior officer getting hold of that officer, who may be 70 miles away from his force headquarters, and of explaining to him the circumstances in which he believes it is necessary to introduce some form of road check would, in certain circumstances, create very serious problems indeed.
Therefore, I believe that it would be a mistake to pass this amendment, notwithstanding the point that the noble and learned Lord, Lord Elwyn-Jones, made, perfectly correctly. that the Royal Commission indeed recommended it. That is undoubtedly true. However, for the reasons that I have given, I believe that to limit ourselves in this way would not be advantageous; it would create massive practical problems in implementation. For that reason, I very much hope that the amendment will not be pressed.

§ Lord Plant
I support the noble Lord, Lord Harris, in opposing this amendment. The three police trade unions are well content with the word "superintendent". It would be a great inconvenience to forces where there is only one assistant chief constable if ACCs were given these powers instead of superintendents. For reasonable management it is right and proper that the word "superintendent" should remain. The Police Federation is quite content with that. I do not believe that it would wish to have "inspector" instead of "superintendent" inserted in the Bill, unless many more inspectors were to be appointed. The superintendents' association is quite happy, and the Association of Chief Police Officers would, I think, be gravely concerned if this amendment was carried. I shall oppose it.

§ Lord Elton
The noble and learned Lord has moved this amendment in view of the large powers embraced within Clause 4. I have already explained to your Lordships that they are not new powers and that Clause 4 embraces only those where the search is for people, and I shall not tread that ground again. It is also necessary to remember that there are two circumstances in which a road check may be needed. One of them is the circumstance of urgency, as my noble friend Lord Inglewood has mentioned. In those circumstances, the decision must be taken immediately as near the spot as possible, and a road check set up as soon as notice of a murder, a child abduction, or whatever, with the suspect proceeding in a particular direction, reaches the officer in charge at the moment. Therefore, I do not think that Amendment No. 37 in the name of the noble and learned Lord will work, because one cannot tie an instant decision to a particular and senior rank by saying, "not below the rank of inspector" in subsection (5). For practical reasons, I think your Lordships will agree that that will not work.
That brings us simply to the question of whether or not a superintendent is a sufficiently senior rank for the purposes of this clause. I listened to what the noble 44 Lords said, and I also listened to the cogent arguments of those who disagreed with them. I almost wonder whether it is necessary for me to add to them. It seems to me that the rank of superintendent is a senior rank, and it carries day-to-day responsibilities which are at least commensurate with the matter we are now talking about. Whatever rank in practice one selects, if the chief officer starts getting complaints, whether from his police authority or from members of the public, that the power to check vehicles is being irresponsibly or too frequently used in any area, it is the chief officer who is going to take steps, so he will be alerted very early.
There is of course a further provision in Clause 5 which will enable the police authority itself to see how many road checks are occurring and why, and with what results. It would be a rash chief constable who allowed his divisional superintendents to expose him to warranted criticisms there. With the greatest respect, I think that the noble and learned Lord may feel, on this occasion, that he has probed far enough to find that he should not go further.

§ Lord Elwyn-Jones
I am not sure that I have. We set up a Royal Commission to investigate this and other matters. That Royal Commission, over a period of years, heard massive evidence, and on the police front they heard witnesses from the following police organisations: the Association of Chief Police Officers; the Police Federation of England and Wales; the Police Federation of the Sussex Police Joint Branch Board; and the Police Superintendents' Association. I have no doubt that all those witnesses spoke about these matters—whether they dealt directly with this particular point of course I cannot say—and we have in their conclusions the benefit of the evidence that they have taken.
We cannot hear the evidence here. Some noble Lords who have put the case for the police authorities have put it rightly and properly, but the advantage the Royal Commission had was that it heard the submissions of evidence to support their conclusions. We will be ill-advised to depart from the recommendations of the Royal Commission in the consideration of this Bill unless there are powerful reasons for doing SO.
As at present advised—perhaps some new advice will come from heaven on this matter any moment now—I am disposed to invite the noble Lord to think again about this. I do not know whether he would be willing, in the light of the attention I have drawn to the extent of the evidence that the Royal Commission heard in this field—I will not say on this very point—to in turn think again before giving a final negative to the amendment.

§ Lord Elton
I only want to intervene on a point of theology. I regret that I never have advice from heaven, and I am told very often that where I get advice from is closer to purgatory as the night goes on. The noble and learned Lord asks us to take a course which was rejected twice in the other place. It is not a new departure. The reasons against it seem to me to be cogent and persuasive and to come from all round the Committee. Therefore I leave the noble and learned Lord with no comfort as to my view.

§ Lord Elwyn-Jones
I am quite impenitent about having raised this matter. It was in the Royal Commission, and we should only depart from the Royal Commission's recommendations on the clearest possible occasions. I shall think again about this. For the moment, I shall withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 33 to 37A not moved.]

§ 5.25 p.m.

§ Lord Elystan-Morgan moved Amendment No. 38: Page 7, line 32, leave out ("seven days") and insert ("48 hours").

§ The noble Lord said: I can move Amendment No. 38 shortly. Once authorisation has been given by the senior officer—

§ Lord Elton
I rise only to be helpful, if I may, to ask the noble Lord whether he is also speaking to Amendment No. 40? I think that that is his intention.

§ Lord Elystan-Morgan
Yes, the two go together. I am most obliged to the Minister for his assistance. Amendment No. 40: Page 7, line 41, leave out ("seven days") and insert ("48 hours"). The point is a short one. Once the senior officer—in this case the superintendent—has decided that there should be such a road check, then by virtue of subsection (11) of Clause 4 he shall specify a period, not exceeding seven days, during which the road check may continue". Then so far as subsection (12) is concerned, it reads: If it appears to an officer of the rank of superintendent or above that a road check ought to continue beyond the period for which it has been authorised he may, from time to time, in writing specify a further period, not exceeding seven days, during which it may continue. The arguments in favour of the amendments, which seek to substitute a period of 48 hours in both cases for the period of seven days, are as follows. First, the Royal Commission does not seem to have envisaged that a road block should ever be maintained for the length of period referred to in subsections (11) and (12). Secondly, one remembers the type of exercise that is involved in relation to Clause 4, which is the apprehension of a person who has committed a serious arrestable offence: a person who is a witness to such an offence; a person intending to commit such an offence; or a person who is unlawfully at large". I am sure that the Committee would accept that there is broad common sense in the supposition that if results are to be fruitful they are likely to be fruitful in the first 24 hours, and at the most within 48 hours.
Road checks are serious interferences not only with private liberty but with the convenience of ordinary people. As the Minister has said time-and-time again this afternoon, this part of the Bill deals with restricting powers which are already existent in our law. It is on that basis that the Minister has invited the Committee to consider this very clause.
That being so, it would be right to limit the exercise of this power, which at the moment means that a superintendent can say that it shall be there for seven days and can, ad infinitum, prolong it by seven day renewals. It is right that that should be severely 46 circumscribed. The practicality of the powers that have been granted to the police by this clause would in no way be impaired. I beg to move.

§ Lord Boyd-Carpenter
The amendment may well have considerable relevance in respect of road blocks set up in urban areas. But as I listened to the noble Lord I was inclined to think that he was overlooking the kind of situation which has frequently arisen in the past few years in the remoter country districts. The noble Lord and your Lordships will recall that there have been several cases recently of dangerous and desperate men—murderers, kidnappers and the like—who have taken to the woods and who have been hunted over considerable areas of country for periods longer than 48 hours. We should be unnecessarily handicapping those who have to deal with this very difficult situation, if we were to restrict the period of the road blocks in those cases to 48 hours, albeit that there is, as has been pointed out, the power to renew. The power to renew is there and it is a good thing, but it seems unnecessarily bureacratic.
There are situations when it is quite plainly necessary to hold blocks for some days, and, hopefully, those are in areas where the amount of traffic held up is little, where there are roads serving a stretch of fairly wild country or, in particular, woods. I feel that the seven-day rule, though it may not be necessary in many cases, sensibly takes account of those.

§ Lord Plant
I oppose this amendment very shortly. Let me give an example of something that has happened not once but on many occasions. Prisoners have escaped from Dartmoor, fog descends on the moor and it is foggy for four days. If there is a road block which has to be lifted after 48 hours, do the police allow the escaped criminals to go free?

§ Lord Elystan-Morgan
It may save time if I intervene. I think the noble Lord is labouring under a misapprehension that at the end of 48 hours the powers contained in this clause come to an end. They do not, because they can he prolonged under subsection (12) for another 48 hours, and another 48 hours, ad infinitum.

§ Lord Plant
This Bill is supposed to make things easier for the police; it is supposed to codify police instructions to make the issue reasonably straightforward for the police to follow. I think we are making things a little more difficult and confusing. If I believe that "seven days" is right, I cannot agree to "48 hours". Admittedly one can extend the period of 48 hours. If we can extend it ad infinitum, then I must ask what is wrong with "seven days"? I ask the Minister whether this Bill will apply to Northern Ireland? If it does, the IRA will feel that things are looking up. But I oppose the amendment.

§ Lord Elton
I am obliged to my noble friend and to the noble Lord, Lord Plant, for putting the practicalities before us. We are not dealing with a draconian power or a new power, therefore I think the sensitivity as to its duration is perhaps not entirely necessary. The noble Lord, Lord Plant, is correct that it would mean the renewal of an approach to a senior 47 officer every 48 hours rather than once a week, and senior officers have a very great deal to do.
We must remember that road checks may be continuous or intermittent. Therefore, a power to have a road check for seven days may amount to a small interference in the freedom of traffic to circulate. We must also be aware that circumstances change and the fog does come down and lifts on Dartmoor.
There is the other aspect of this which comes again to the matter we were discussing a moment ago about the expectation of a serious crime being committed. Here the power to renew does not seem to me to get us out of the difficulty that the noble Lord, Lord Plant, has put before his noble and learned friend Lord Elystan-Morgan. The justification for the use of the power must be that a serious arrestable offence is expected to take place within the period during which the road block continues. If it did not happen in the first 48 hours, the justification for the road block would have, as it were, fallen, so the curtailing of this period is difficult in that respect as well. I think that my noble friend has been eloquent on this, and I hope that the noble Lord will not pursue it.

§ Lord Elystan-Morgan
May I take the Minister's last point first, when he seeks to argue that, if the period of 48 hours were substituted for the period of seven days, that would appear to be the maximum period in the operation of Clause 4(4)(c) (ii). In other words the words, during the period during which the road check would be authorised to continue". means the first period that will be authorised. I am sure that the Minister is putting a heavy gloss, an unwarranted gloss, upon those words. It would seem to me that the period during which the road check would be authorised to continue would be the period that the officers have in mind when they set it up. They may have several renewals in mind at that time.
For all the admiration that I have for the Minister's powers of argument, and indeed for his balance, if I may say so—my admiration for the exercise of his fairness and judgment is considerable—I am afraid that on this occasion I am not impressed by the attitude he has taken. Why was seven days chosen? It is a purely arbitrary figure. What virtue has seven days over two days? If it was one final period of time, and no renewal, I could understand that one would say seven rather than two. But what is the difference between a renewable seven and a renewable two? The Minister may say that two is arbitrary. Was it the Book of Genesis that led the Government to choose seven days rather than 14 or 28 days? With the greatest respect to the Minister, I do not think that the case for seven days has been made out.
Since we are dealing with the precious issue of human liberty, and since there is a question here of infringement upon the privacy of ordinary individuals, tens and hundreds of thousands of individuals perhaps in a year, I ask the Committee to consider that 48 hours may be more appropriate than seven days in this context. However, that is not a matter upon which I am prepared to go to the stake because the renewability factor means that one can renew 48 hours 48 as often as one likes, making the same period in the end. Nevertheless, I should be grateful if the Minister would, between now and Report stage, give the matter further thought. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 39 and 40 not moved.]

§ Lord Gifford moved Amendment No. 41: Page 8, line 10, after ("entitled") insert—

("(a) to be informed of the name of the constable who has stopped him and the police station to which he is attached;
(b) to be informed of the purpose of the road check; and
(c)").

§ The noble Lord said: Clause 4(15) deals with the rights of the driver who is stopped at a road check. It is the only clause which deals directly with those rights. It limits those rights to the right to obtain a written statement on application within 12 months from the date one is stopped. The written statement would be a statement of the purpose of the road check. I have no quarrel with that so long as the written statement of the purpose of the road check is not just a form of words. I wonder whether the noble Lord, Lord Elton, can help on that: whether the written statement which is to be given would just be the form of words set out in Clause 4(1), or whether it would give some detail of the purpose of the road check.

§ However, my amendment seeks to increase those rights in two ways: to require the police officer who stops the driver, first, to tell the driver his or her name and the police station from which he or she comes, and, secondly, to inform him of the purpose of the road check. In other words, what the amendment seeks is what I am sure we would all wish to hear if we were stopped at a road check, that is a police officer courteously saying "Excuse me, my name is Sergeant Dixon, of Dock Green Police Station. We are checking to see if there are any witnesses in the car to a serious crime which took place", or whatever the purpose may be.

§ If the officer does not give that information the driver, first of all, does not know who has stopped him, which can be serious if the stop is carried out in an officious way. The noble Lord, Lord Elton, said a short time ago that it would be a disciplinary offence to stop someone on the basis of a purely racist criterion. It would only be redressed if the person aggrieved knew who it was who had stopped him. So far as the purpose is concerned, the public are surely entitled to know, if they are being stopped, broadly speaking the reason why and what is the purpose, and not just to have an officer looking into their car or looking at them without being told anything of the reason why. So it would seem that those rights would be valuable.

§ There is no provision for a code of practice, as I understand it, as far as road checks are concerned, so that any provision would have to be built into the Bill. When we dealt with the powers of stop and search we saw that the people who are going to be stopped and searched had those rights. People who are stopped and searched in the street will be entitled, according to the Bill, to be informed of the name of the constable who is stopping them and will be entitled to be informed of the reasons for the stop. If that is the right to be given to those who are suspected of carrying stolen or 49 prohibited articles, how much more should it be given to drivers who are not suspected of anything and who are going to be the object of these road checks? It would very much conduce to good relations between drivers and the police if this information had to be given. I beg to move.

§ Lord Elton
May I remind your Lordships first that we are looking at the power to check and not to search. If the police constable were to wish to look inside the vehicle and search, then, under Clause 2(2), the requirements that the noble Lord seeks will already bite. We are only talking about a road check. Even if what the noble Lord wanted done only took 15 seconds, that is an extra quarter of an hour delay for the traffic with every 60 stops, if my arithmetic is right. Therefore, I have to ask myself whether this is a sensible thing to do or a necessary thing to do. Establishing the officer's name would only be useful if the person stopped wanted to pursue a complaint that he had exceeded his powers. But the stopping of a car at a road check does not require or imply any reasonable suspicion of that car.
If the road check has been properly authorised then the constable cannot have exceeded his powers in stopping the car. If the check has not been properly authorised, then a requirement of the kind proposed (which only arises in the case of an authorised check) would not be of much value; so that, as far as the purpose of the check is concerned, it would be good police practice when stopping a vehicle for the officers to explain to the driver the need for the road check there and then. It may simply be, "Have you seen a runaway horse?"—and no further explanation may be needed. I think it is better to rely on good practice than to require this rather elaborate procedure to be gone through when on so many occasions it will be unnecessary and will cause delay.

§ Lord Gifford
I do not intend to press this matter but I am anxious to know how these powers (which are now more closely defined) will be exercised. Will there be any guidelines, short of a code of practice, as to how the public will be addressed or is it to be left completely to the discretion of the police constable exercising the stop? A check implies that there is going to be some communication between the police officer and the driver. One would have thought that there ought to be in normal circumstances some explanation given to the member of the public. I am wondering whether any kind of guidelines, even if there is not going to be a code, will be applied to this power.

§ Lord Elton
We deliberately framed the drivers' entitlements in terms of a written statement and not necessarily of a copy of the superintendent's authorisation which must set out the grounds. This is because in the case of serious crime such as terrorist crime it may be desirable not to let out too many clues as to what the police expect and where.

§ Lord Gifford
One would have to see how this operates. For the moment, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 5.45 p.m.

§ Lord Elystan-Morgan moved Amendment No. 42: Page 8, line 14, leave out subsection (16).

§ The noble Lord said: The amendment I seek to move in this matter is not moved out of any feeling of hostility towards subsection (16) at all but out of a deep and abiding desire for information on this matter. It is a probing amendment on this basis. The Government in another place—and we have heard that refrain echoed several times today by the noble Lord the Minister—have said that the power in Clause 4 to set up road checks is a restrictive power in that it reduces the power which the police already have under Section 159 of the Road Traffic Act 1972. Yet the clause specifically, by subsection (16), preserves what appears to be wider powers. I should be very grateful, as I am sure would many noble Lords, if the noble Lord the Minister would explain to the Committee what other powers are saved by subsection (16) additional to the powers that are already set out in the clause.

§ My noble friend Lord Plant says that this is a codifying clause simplifying the law as far as police officers are concerned. If that is its motive, then, with the greatest respect, I fear that it will not succeed in that particular purpose. Nevertheless, if it be the case that this subsection does not add anything to the other powers contained in the clause, then there is no reason why it should remain in the statute.

§ Recently, in the context of the miners' dispute, the Government have stated that the police have extensive common law powers to stop vehicles. As I understand it, there are two sets of powers in relation to the stopping of vehicles. One is the common law power which enables any constable—or, indeed, for that purpose, any citizen—to act, using such force as is reasonably necessary, to prevent the commission of a crime. Secondly, there is the power in the statute that we have heard so much about this afternoon under Section 159 of the Road Traffic Act. Therefore, it is out of a feeling of uncertainty that I would respectfully ask the Minister to define exactly what wider powers, if any, are contained in subsection (16). I beg to move.

§ Lord Elton
Subsection (16) of Clause 4 makes it clear that its provisions are without prejudice to the ability of the police to stop vehicles for purposes other than the arrest of wanted persons or the tracing of witnesses to crime. There is a wide range of circumstances in which the police may wish to obstruct roads, and therefore to stop vehicles, for which the restrictions set out in Clause 4 are not appropriate. These circumstances range from the obstruction of a road that has been flooded to preventing vehicles from completing their journeys in order to prevent a breach of the peace.
The Royal Commission did not intend the restrictions they recommended to apply to the public order powers of the police. Indeed, they recognised that those powers were outside their terms of reference; and your Lordships will know that they are at present under review. But those powers are clearly necessary. They are also clearly not readily susceptible of statutory definition. Certainly they cannot be brought within the framework of the Bill, if only 51 because the whole basis of Clause 4 is the restriction of road checks to the prevention or detection of serious arrestable offences, whereas breach of the peace as such is not an offence under the general criminal law. It would of course make no sense to provide that, since the common law powers of the police cannot be brought within the scope of the Bill, they should therefore cease to exist—not that I think that that is what the noble Lord proposes. But Clause 4 accordingly preserves the common law powers of the police, which have proved their value in a wide range of circumstances. I think that that is probably the substance of what the noble Lord was asking.

§ Lord Elystan-Morgan
I am very grateful to the noble Lord the Minister for his reply. I am not in any way surprised by anything he said. In fact, my noble and learned friend Lord Elwyn-Jones and other noble and learned friends indeed thought that that must be the legal position. But I asked the question, perhaps rather mischievously, on the basis…of what the noble Lord said about an hour ago when he said that he worried whether this clause would have the effect of, excessively diminishing the powers the police already have. With the greatest respect to the noble Lord the Minister, I do not think that there can be any question of diminishing the powers which the police have. The Bill clarifies in a certain limited area those powers, but it does not diminish them and of course it does not restrict the other powers which are saved by subsection (16). For those ample reasons, I beg leave to withdraw gracefully.

§ Amendment, by leave, withdrawn.

§ Clause 4 agreed to.

§ Clause 5 [Reports of recorded searches and of road checks]:

§ 5.52 p.m.

§ Lord Elton moved Amendment No. 43: Page 8. line 24. leave out ("set up") and insert ("authorised").

§ The noble Lord said: This is a drafting amendment which will bring the wording of subsection (1) into line with that of subsection (3) and Clause 4. I beg to move.

§ On Question, amendment agreed to.

§ Lord Gifford moved Amendment No. 44: Page 8, line 35, at end insert— ("(c) the nature of the charges preferred in each such month in consequence of arrests in each category specified in paragraph (b) above.").

§ The noble Lord said: Clause 5 of the Bill deals with the various kinds of record that need to be made public about the matters which we have been considering. I am sure that it is part of the Government's case for the powers that are being taken by this Bill that the information about how they are being exercised year by year will be made available to the public as a matter of statutory requirement.

§ Subsection (2) deals with the information that has to be given about searches and requires that the total number of searches should be reported in the various reports and that the numbers of people arrested in 52 consequence of searches should be reported. I seek by this amendment also to require details not just of the arrests but of the charges preferred. I do so for the reason that in a great number of cases where the existing powers of stop and search have been used, people have been arrested in consequence of the search not because they have anything illegal on their person but because they are alleged to have obstructed the police in the exercise of the power that has been given; or to have assaulted the police; or to have committed some offence which is not an offence that they would have committed if it had not been for the approach of the police officer.

§ One needs therefore to separate those charges from charges which flow directly from the object of the statute—charges of carrying stolen goods: carrying an offensive weapon; or carrying goods which are for the use of theft. Therefore this amendment would enable us to monitor how successful these powers really are; in what proportion of cases, area by area and year by year, are people who are really guilty being stopped and searched and what proportion of people did not have any prohibited or stolen articles upon them. I beg to move.

§ Lord Elton
The purpose of publishing information is to make the broad application of the powers subject to independent scrutiny. The relevant information here is the number of arrests, and the clause already provides for that. What charges, if any, are brought following an arrest is, in a sense, an incidental question. After an arrest is made, various things can happen. It may be decided that a prosecution shall not after all be brought but that the person shall be dealt with by way of a caution; or that the person is to be summonsed rather than charged, and the summons may be issued in the calendar year following the arrest so that the prosecution could not be picked up in the relevant annual report; or that the person is to be charged but charged with an offence not related to the search itself.
I think that the noble Lord is anxious to test his thesis that a high proportion of arrests relate not to the possession of unlawful articles but to obstructing an officer in the execution of his duty or to assault—that is, that the arrest is generated by the search itself and by the resentment it causes. I am not sure that I read the mind of the noble Lord correctly but I think I do.
Research into the use of stop and search does not in fact support this thesis and, even if it were true, it would not prove that the powers were unnecessary or, indeed, that they were being misused. For example, the fact that a certain proportion of persons searched for drugs may be found to have stolen articles, or vice versa, does not show that either power is not useful, and since there is a strong relationship between drugs and theft—very often the latter pays for the former—it would not be surprising if the powers did overlap in this way. So statistics of the kind that the noble Lord proposes would not provide a useful means of checking on the exercise of powers of search. The statistics would be of some interest but not of practical benefit and, if there were a need for them, they could be collected on an occasional basis by research based on sampling from time to time. Moreover, there 53 would be serious practical difficulties in requiring information about charges to be included in annual reports.
I have already referred to the difficulty relating to delay in the issue of the summons. More significantly, police filing and record-keeping procedures could not generate the information required without a very substantial exercise in collation, for which resources do not exist. There is one set of records which relates to the operational use of stop and search. These records terminate with the act of arrest. In the event of a prosecution, another set of records is opened. In principle, and with enough computer power, these different records can of course be matched, but I am advised that in practice this exercise would soak up a lot of additional police and clerical time which cannot, frankly, be spared and which would not, as I have tried to show, be usefully productive. So, while I sympathise with the interest of the noble Lord, I do not think I can help him on this.

§ Lord Gifford
I will consider carefully what the noble Lord has said but, before I withdraw my amendment—which I intend to do—I wonder whether he could help me about one matter, and, if he cannot help me immediately, he may be able to help me by writing. If someone is stopped by a police officer and is searched, and in the course of the proceedings—whether at the time of the stop or at the time of the search or at some time a little later—there is some obstruction, and the suspect is finally arrested for obstructing the police and not for anything which is found on him—let us say that nothing is found on him—would that be an arrest in consequence of the search? It may be that my fears can be allayed by being informed that it would not be an arrest in consequence of the search but would be an arrest in consequence of the behaviour of the individual. If that were the case, it might be that the Bill as it stands would provide for the information that we want.

§ Lord Elton
I think it would be best if I were to write to the noble Lord in answer to that question.

§ Lord Gifford
I quite understand that, and I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 6 p.m.

§ Lord Elystan-Morgan moved Amendment No. 45: Page 8, line 38, after ("check") insert— ("() about the numbers of vehicles stopped in each of them; and () about the duration of each of them;").

§ The noble Lord said: The necessity pressed by law upon the Commissioner of Police for the Metropolis and every chief constable to prepare and publish an annual report on the operation of his force is, in my submission, a very important constitutional phenomenon. It enables the possibility of public scrutiny upon various policies carried out by chief constables and it is a very substantial and necessary constitutional check upon the operation of a police force. Indeed, in Clause 5 the Government have legislated that every such annual report, among other things, so far as a road check is concerned, shall 54 include information (a) about the reason for authorising each road check, and (b) about the result of each of them. That, of course, could be a very full report but it might be something very, very scant.

§ To say that a road check has been conducted upon a certain road for a certain period, and that the result was blank, might not convey any useful or significant information so far as the ordinary subject was concerned. It is for that reason that the amendment proposes that there should be contained in that report a statement about the number of vehicles stopped in each such check, together with the duration of each check. I appreciate that a line has to be drawn between overwhelming detail that would place a wholly unnecessary burden upon a chief constable on the one hand and, on the other hand, such scant information as would not in any meaningful way convey to the public exactly what had happened. In my submission, this amendment would achieve a medial position between those two extremes, and it is on that basis that I commend it to your Lordships. I beg to move.

§ Lord Boyd-Carpenter
I should be very grateful if the noble Lord opposite would explain how the figure of the number of vehicles is necessarily to be arrived at as a matter of practicality. If you put a road block on a road that carries major traffic, very soon a very considerable accumulation of traffic builds up. Equally, once this is known, a number of vehicles that have been stopped there for a little time either turn round if they can, back away or in one way or another escape on to a side road. How police manning a road block when there is a large accumulation of vehicles held up by that road block are to provide the figure that the noble Lord suggests they should provide seems to me to be very difficult. Frankly, it seems to be a case of "think of a number".

§ Lord Elton
I was wondering whether the noble Lord has an answer. But while he is considering—

§ Lord Elystan-Morgan
I certainly would not quarrel with the noble Lord, Lord Boyd-Carpenter, if in fact an approximate figure was to be calculated by the officers concerned. What I think is very important, however, is that there should be in that report something which gives an indication of the totality of the interference with private liberty that is involved. I would urge on the Committee that the sort of data which gives some indication of that factor is in fact the number of vehicles involved. If the noble Lord can think of a better criterion I will gladly accept it, of course. It is not a question of trying to make a nuisance of oneself so far as the police are concerned, but of conveying meaningful information that gives some idea of the scale and nature of the operation.

§ Lord Boyd-Carpenter
The noble Lord's amendment does not, of course, say anything about an approximate calculation; it asks the police to provide the number of vehicles. We rightly expect of the police, when they are under a statutory obligation to supply material, to supply accurate material. With respect, to say, "Oh well, that is not really what I mean; they can think of a number" does not seem to me to justify this amendment.

§ Lord Elton
I always try at Committee stage to look at principles as well as practices. The noble Lord wants something more precise about the use of this power, but since the purpose of his inclusion of it in the Bill is to exercise some supervision of the police it seems to me a little questionable—although this is not on the Marshalled List, what he has suggested is in our minds—to give the duty of making an approximation of the use of the power to the person exercising the power. This does rather reduce the value of the control itself.
We are—are we not?—in this Bill (and it is impossible not be to be aware of it) contributing very considerably to the amount of paperwork and the bureaucracy that the police have to carry out. Therefore, we have to test proposals such as this very closely. I am not certain that what the noble Lord proposes, in either form, will really enable the public to reach a view as to whether a road block was necessary or properly carried out. The essence of the road check is that the police do not know which car contains the person they are looking for. If they did, of course, they would stop only one car. Therefore, it is a matter of totally fortuitous circumstances whether he is in the third, the 30th or the 300th car which they check. It may well be that he will be found early, late, or not at all. So I do not see that the number of cars that have to be stopped at a particular check is of great significance, and it would be quite wrong to infer that because a small number of cars were stopped in one road check that was in some sense better justified than a case where 300 or 400 extra cars were stopped. The same argument, of course, applies to the duration of the check because the police may be fortunate in putting the block on and immediately finding their man or woman, or they may be unfortunate in not finding him or her for perhaps three days or seven days.
Finally, I would not wish to impose on the police for this very doubtfully effective purpose the duty of counting every vehicle that they check. I think that would be to add unreasonably to their duties. Of course, it is a fact that I regard this power as a less alarming one than, apparently, the noble Lord does.

§ Lord Mishcon
I wonder whether I might be allowed to make just a very short contribution. It is not just a question of supplying information for the use of the motorist concerned. As I understand the position, there are separate authorities who are interested in congestion of traffic. There are separate authorities or organisations representing motorists which have a view as to whether road blocks and road checks are really being systematically and sensibly arranged and ordered by the police.
This sort of information, whether it is precise or approximate—and I do not quite see the difficulty, if you have a road block, of counting the maximum number of vehicles caught by the road block—is very vital information for various purposes other than the one closely limited by the provisions of this clause. What one would be able to do as a result of seeing this information is to argue: "You know, a terrific amount of congestion has been caused. We have looked at the instances where this has occurred. It was needless. It lasted for too long and the number of vehicles was so 56 huge". Without this information none of these representations can be made.

§ Lord Elton
I sympathise with the noble Lord's concern which he has made clearer to us, but I wonder how often he has been held up in one of these immense queues, because I cannot recall having been held up in one. It is not a matter of general complaint; it does not surface annually in the complaints made to the Police Complaints Board or, so far as I know, to the individual police authorities. It seems to me that the noble Lord is perhaps trying to provide a check upon something which does not need checking in the terms that he has stated. I do not think that the Automobile Association is always complaining about the length of queues produced by police road checks. I have not heard that.

§ Baroness Phillips
I would ask my noble friend on the Front Bench whether he would extend this argument to the number of times that one is held up while demonstrations go down streets. If the motorists were to say that they did not want that, they would be described as extraordinarily obstructive, very difficult and undemocratic. I can recall many occasions—one not too long ago—when I had been endeavouring to get to a very reasonable function but when it took me twice as long to get there as the trip had usually taken and when, finally, I had to walk, because a group of people living in this country were demonstrating over something that they did not like about the government of the country from which they had come—a matter about which we could do nothing at all. In our country we pride ourselves on the fact that we are liberal and allow anyone to demonstrate. But I suggest that if we are to keep records of the number of times that we are held up, it will be equally relevant to keep records of the number of times that we are held up because of road diversions, which often happen quite quickly and on the spur of the moment.

§ Lord Mishcon
I appreciate the progressive intervention of my noble friend, but it could very well be that it is most interesting for the police—and they usually compile them—to have statistics as to the number of people in a demonstration. I always notice that the numbers seem to differ between those given by the organisers of a demonstration, who talk in many thousands, and those given by the police, who talk in as many hundreds. Nevertheless, we are always interested to know that. I am sure that one day somebody will argue—I hope not effectively—that, because of the interference with transport, demonstrations should be limited, should go off main roads, and so on; but without these statistics one cannot do anything.
May I, in answer to the noble Lord—and I am not taking this any further—point out that it is all very well to say that some of us may have been delayed, or none of us has been delayed, by a road block, to our inconvenience; but it is quite obvious that if road blocks take place there will be people who are inconvenienced. I remember so vividly what happens in Brighton on a bank holiday. If we are to have road blocks on a bank holiday because Brighton is to be known as a pattern of crime area, I assure the noble Baroness that there may well be objections by 57 motorists; but you cannot argue if you do not have the facts.

§ Lord Hooson
I should like to say from these Benches that we find it difficult to get steamed up about road blocks. There are many important matters in this Bill that excite our interest, and this whole matter ought to be put into perspective. Road blocks are not often introduced into this country, and when they are it is usually in a very serious situation. The Government have probably got it about right. We could spend a great deal of time on the details, but there must be a limit to the amount of bureaucracy that we place on the shoulders of the police; and I should have thought that on this part of the Bill we ought not to take it any further.

§ Lord Elystan-Morgan
Chastened by those words of the noble Lord, Lord Hooson, we on these Benches certainly do not regard this as a matter of the utmost importance. I accept that there is a great deal of force in what the Minister said in that, by and large, road blocks have been conducted for decades in the United Kingdom without there being any great public outcry about them. But it is the Government who, in Clause 5(3), make it incumbent upon a chief officer of police to report about these matters. If they were matters so utterly unimportant as the Minister might suggest, then there would be no reason for subsection (3). It is he and his honourable friends who have put in subsection (3), and it is on the basis of subsection (3) that we on this side suggested that there might be more meaningful information put in. I cannot strengthen my case without the sin of further repetition, and I do not intend to do that; nor do we intend to divide at this stage, though we might just about return to it on Report. On that basis, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?

§ Lord Foot
Before we leave this clause, I wonder whether I may put a question to the Minister about subsection (3). I agree with what he said just now about its not being very informative for the public to be told how many vehicles were stopped, or the duration of the road check, but the two matters referred to in this subsection—that is, the reason for authorising each check and the result of each of them—are matters in which the public would be extremely interested. What I do not fully understand is what is meant by the words "the result of each". Do they mean that, if a road check is set up and nothing comes of it, it has to be stated that the road block was ineffective? That is not necessarily so. Do they mean that if somebody is arrested or some information is obtained by the road check, that is what is supposed to be given as a result of the road check, or what? I should like to know what the Government have in mind when they talk about "the result of each".

§ Lord Elton
Of course, a chief constable can say only what he knows, and if the result has been something which he does not know, such as the prevention of a crime which he was not to know was in preparation, 58 then he will not be able to put it in his report. But if a person is identified or a crime is solved, then obviously he will put that in the report. I do not doubt that the noble Lord, Lord Mishcon, would want him to say, "Lord Mishcon was made late for his dinner as well", if that was the result; but that is not what is meant by the Bill.

§ Clause 5, as amended, agreed to.

§ Clause 6 [Statutory undertakers etc.]:

§ 6.17 p.m.

§ Lord Mishconmoved Amendment No. 46: Page 9, line 2, at end insert ("if he has reasonable grounds for suspecting that an arrestable offence has been or is intended to be committed".)

§ The noble Lord said: In Clause 6 there is a reference to statutory undertakers and I hasten at once to tell your Lordships that my understanding is that it does not refer to the Treasury. The statutory undertakers are police employed by statutory authorities; namely, the transport authorities and various other authorities which have police whom they administer. The extent of this clause is seen in, for example, subsection (3) which reads any person appointed under the Special Constables Act 1923 to be a special constable within any premises which are in the possession or under the control of British Nuclear Fuels Limited shall be deemed to be a constable deputed by a public department". We are now dealing not with the police employed upon criminal matters in the normal course, not with the Metropolitan Police, and not with the police employed by county authorities.

§ Under this clause, the constables employed by the statutory undertakers may, stop, detain and search any vehicle … in the premises of the statutory undertakers through a designated exit. There the provision ends. Especially because one is dealing with this class of constable, for whom I have nothing other than respect, but not with the constable whom we are normally dealing with under this Bill, your Lordships may well think that before such constables are given this power to stop and search vehicles, then at the very least within the wording of this amendment they must have, reasonable grounds for suspecting that an arrestable offence has been or is intended to be committed".

§ I stress the fact that in this amendment I have not said, "serious arrestable offence". I have said, "arrestable offence". I have not said that a crime has been committed; there have to be reasonable grounds for suspecting that a crime has been committed. I have even gone so far as to use that dreadful word, "intended" which was referred to earlier this afternoon. Therefore I have given the broadest possible power, within certain limitations, to the constables we are dealing with—the employees of the statutory undertakers. But there must be some stop upon the all-pervasive power of constables employed by statutory undertakers to stop and search vehicles. I beg to move.

§ Lord Denning
I hope your Lordships will not accept the amendment. When I was very young I prosecuted many cases on behalf of the railway company. Their 59 constables are first rate. As constables, they have to take the oath. I wrote a police manual for them when I was very young. We must remember that with vehicles going in and out of the great goods depots of London there is bound to be colossal pilfering. Nobody knows the extent of it; it runs into millions of pounds. How is one to check it? The police officer at the gate of the depot cannot say that he has reasonable cause to suspect each vehicle. He has to make a random check. This is the only way to enforce discipline: not because you think that everybody is necessarily criminal but because you have to make a random check of certain vehicles in order to see that all is going well. The power which is given in the Bill seems to me to be just about right. No qualification of it is needed.

§ Lord Boyd-Carpenter
May I ask my noble friend the Minister about the words in the clause at the point at which it is proposed to add the amendment. It appears to limit the power of the constable to stop and search to cases where a vehicle leaves by a designated exit. If a vehicle were to leave other than by a designated exit—by a back door, by pushing down a fence or by some other irregular means of egress—surely there would be a still stronger argument for stopping and searching because it would seem, prima facie, quite likely that an offence was being committed. I cannot see the point, although there is no doubt a perfectly good answer, for limiting this power to cases where the leaving is by a designated exit.

§ Lord Renton
Would my noble friend agree that his argument would apply especially in those cases where the exit was marked, "No Exit"?

§ Lord Harmar-Nicholls
I, too, hope that these words will not be added. If they were included they could interfere with good management. The example given by the noble and learned Lord, Lord Denning, is very clear. Another example would be hotel kitchens where, as part of good management, it is expected that people will have their bags looked at before they leave the hotel kitchen, otherwise all the staff in that kitchen are held responsible for any shortages which may arise. As the noble and learned Lord, Lord Denning, said, the random check is accepted. It is sensible. If you have to suspect that somebody is a thief before you provide the necessary precautions in order to make certain that the hotel kitchen is properly run, it will be to the disadvantage of everybody concerned. These words would I believe cut across what is normal practice, which is part of the test of showing that it is reasonable and sensible.

Lord Inglewood
Am I not right in thinking that the powers contained in Clause 6 are all new powers? There is no reason for getting pressure up about this. The power to stop, search and detain is a power which has existed for such undertakers for a very long time.

§ Baroness Trumpington
Subsection (1) deals with the search powers which are necessary to prevent and detect crime in the premises of statutory undertakers—as the noble Lord, Lord Mishcon, said, in the premises of railways, docks or harbours. The 60 powers conferred by the clause will be exercised only by constables employed by the statutory undertaker, such as the Port of London police or the British Transport police, and will not affect the general public. They will be used to ensure that stolen goods are not smuggled out in goods vehicles by allowing regular checks to take place. I am most grateful for the words of the noble and learned Lord. Lord Denning, who justifies the present state of the Bill.
As is explained in the note on this clause, in order to deter and limit theft in premises such as railways and docks where substantial quantities of goods are stored and handled, it is conventional for a system to be employed under which the details of the authorised movement of any goods are entered on a pass given to the driver of the goods vehicle carrying them. All vehicles leaving the premises, or designated warehousing area within them, are then liable to be checked by the undertaking's police force to establish whether the goods on them match the pass. If, in answer to my noble friend Lord Boyd-Carpenter, the vehicle tried to leave through an undesignated exit, the power under Clause 1 would apply and there would be reasonable suspicion. I hope that answers my noble friend's point.
I do not believe it is necessary that such searches should require reasonable suspicion that the individual vehicle concerned is carrying stolen or prohibited goods. Clause 6 accordingly differs from Clause 1 in not incorporating the reasonable suspicion test as well as in extending beyond public places. However, I ask noble Lords to note that the power which it confers is confined to vehicles. If a constable employed by the relevant undertaking proposes to search any person in the vehicle, the test of reasonable suspicion must be satisfied and the search must be recorded in accordance with Clause 3.
There is clear precedent for such powers in the form of Section 27(2) of the Aviation Security Act 1982. This provides for the searching of vehicles leaving the cargo areas of certain airports. The important point about this power is that it does not depend upon reasonable suspicion of the individual concerned. The amendment proposed by the noble Lord, Lord Mishcon, would impose a reasonable suspicion test in the form of a requirement that there be such suspicion that an arrestable offence has been or is intended to be committed. But it is of the essence of the Clause 6 power, like that under the 1982 Act, that regular and random checks should take place. In their very nature, reasonable suspicion will not usually be present. The checks are preventative, not investigative.
This measure in the Bill is new, which is why, in answer to my noble friend, I have gone into it in rather more detail than probably I needed to do. In view of this explanation, I hope that the noble Lord will not press the amendment.

§ Lord Boyd-Carpenter
I hope my noble friend will take her explanation a little further. As I understand it, if the vehicle which is suspect is coming out by the back door, to use a colloquialism, my noble friend's argument is that the powers under Clause 1 arise. Clause 1 deals with the exercise of powers by ordinary police constables whereas the clause we are discussing provides powers for the constables employed by the 61 statutory undertaking. I do not want to waste the time of the Committee by pressing this point further, but I suggest to my noble friend that she and her noble friend ought to look at the words, "through a designated exit" in Clause 7 and see not only whether they serve any useful purpose but whether they are not perhaps positively dangerous.

§ Baroness Trumpington
In answer to my noble friend I would point out that in Clause 5(1) he will find that one has to have reasonable suspicion, and the taking of a lorry through a back door would seem to me to be grounds for reasonable suspicion and for stopping and searching the vehicle.

§ Lord Boyd-Carpenter
Perhaps my noble friend will reconsider whether the words "by a designated exit" are necessary and, if they are not, will consider removing them at a later stage. With reference to my noble friend's comment about Clause 5, in that clause one is concerned with an ordinary policeman and not with a constable employed by a statutory undertaker. With respect, my noble friend has not answered my point.

§ Baroness Trumpington
I have now been given a translation. Statutory undertakers' constables may exercise the power because they are constables, as I thought I had said before. They can exercise the power to stop and search because they are constables, as well as being railway or port authority constables.

§ Lord Boyd-Carpenter
Can my noble friend then explain why the words "by a designated exit" are in the Bill? If she is right on that point, then that is wholly unnecessary verbiage.

§ Lord Elton
It is simply a question that Clause 1 contains a specific power where an offence is suspected, and Clause 6 contains a random power which is not given to constables generally, but is given to constables in this particular circumstance. The random power applies to the designated exit because the constable can then stop a vehicle leaving on a random basis. If the vehicle is leaving from a "No Exit" exit, then he does not need that power because he already has ample grounds for suspecting an offence.

§ Lord Renton
Would it not be enough to say, before it leaves a goods area included in the premises of the statutory undertakers"? That is all one needs.

§ The Lord Bishop of Bath and Wells
I only want to say, apropos nothing in particular, that none of the undertakers with whom I have dealings employs constables. Thank heaven they do not, because we are told quite enough what to do without their having the law behind them.

§ Baroness Trumpington
As I said, this is a new measure and we are quite prepared to look at that part of the clause again, if the Committee wish.

§ Lord Mishcon
When the noble Baroness was courteous enough to answer my speech, I heard from 62 this side of the Dispatch Box the remark, "My turn has come". May I congratulate her? I want to tell her here and now that the answer she gave me as to why the words in question were omitted from the Bill was a very satisfactory one. I heard the point and it has sunk home. From that point of view, I can well understand why the words have been omitted and I shall be happy to say something in a moment about applying for leave.
Only so that the debate will be complete on this matter, I should myself like to contribute to the point made by the noble Lord, Lord Boyd-Carpenter. I shall do it in a different way and, therefore, probably quite wrongly. Before I do so, I recall that the noble and learned Lord, Lord Denning, was reminiscing that in years gone by he prosecuted for the railway police. I also have the uptmost admiration for them because for a period of many years I happened to be their legal adviser. I, too, had precisely the same high opinion of them as did the noble and learned Lord.
In regard to the point made by the noble Lord, Lord Boyd-Carpenter—and I bring this forward only so that it may be dealt with subsequently, in general consideration, I should have thought that if a vehicle is seen leaving by a non-designated exit, there would be reasonable grounds for suspecting that a crime was about to be committed, or had been committed, and therefore it would not require any power under this statute. Any ordinary civilian could himself stop the vehicle and call for an arrest: it would not call for any special power in those circumstances. I throw that point into the arena so that it may be gathered up together with the others. No doubt we shall hear about it at some later stage, but meanwhile I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 6 agreed to.

§ Clause 7 [Part I—supplementary]:

§ 6.35 p.m.

§ Lord Mishcon moved Amendment No. 47: Page 9, line 28, leave out subsection (2).

§ The noble Lord said: I am delighted to preface my remarks by saying that this is a probing amendment and therefore I ask for the Committee's sympathy in the course of the probe. We are faced with a subsection which I venture to believe will not meet with the approval of the noble Lord, Lord Renton, whom I would ask merely to resume his seat in order to see whether or not he supports me. If he decides not to support me, then I will give him leave to depart from the Chamber immediately.

§ The words which face us by way of legislation and which the police are supposed to understand, which laymen are supposed to understand, and which your Lordships are supposed to understand, are these: (2) There shall also cease to have effect— (a) so much of any enactment contained in an Act passed before 1974, other than"— and I assume, from that point of view, that we have to go back to the beginnings of Parliament—

"(i) an enactment contained in a public general Act; or
(ii) an enactment relating to statutory undertakers, as confers power on a constable to search for stolen or unlawfully obtained goods; and

63 (b) so much of any enactment relating to statutory undertakers as provides that such a power shall not be exercisable after the end of a specified period. What kind of research are your Lordships required to make in order to be satisfied that you know what you are passing when this subsection gets into an Act of Parliament? I venture to tell the Committee that I have myself tried to undertake a little research. I finished up somewhere around the middle of the eighteenth century, but felt that I had still not completed my labours.

§ This clause cannot stand as it is, I should have thought. But as I said, this is a probing amendment, and it may be that we shall have explained to us two points: first, what this wording means; and, secondly, why this provision cannot be explained more simply and clearly.

§ Lord Renton
I am deeply grateful to the noble Lord, Lord Mishcon, not only for drawing our attention to this rather strange subsection, but also for intercepting my departure from the Chamber in order to attend a public function—which, alas, I have to do tonight. I hope that my noble friend on the Front Bench will take careful note of what the noble Lord has said. It is a very strange provision, and indeed subsection (2)(a) seems to be a roundabout way of doing what is normally done in a statute law revision Act. It is a very unsatisfactory way because we do not really know what we are doing. It would be only one of those computers—on which. I am happy to say, many statutes are now recorded—which could give the answer to this: and I do not believe that the computer would find it easy.

§ Baroness Trumpington
I rise to try to serve as an interpreter. Subsection (2) distinguishes three categories of enactment conferring on constables powers of stop and search: public general Acts, Acts relating to statutory undertakers as defined in subsection (3), and other Acts. As to public Acts, the subsection has the effect of preserving powers of stop and search, other than those listed for repeal in subsection (1), which are either obsolete or superseded by Clause 1. As to statutory undertakers, the subsection provides that powers of stop and search conferred in relation to statutory undertakings should continue in force without limit of time. Some, but not all of, such powers are at present so framed that they lapse after a certain date unless re-enacted.
For example, the powers of stop and search in relation to railway premises conferred on the British Transport Police by Section 54(3) of the British Transport Commission Act 1949, which have been periodically re-enacted, are now in force until 1985. Subsection (2) provides that all such powers now in existence should no longer need periodic renewal, and I think that that is a very good principle. As to Acts promoted by local authorities, subsection (2) repeals powers of stop and search conferred by all such Acts passed before 1974, which are, in any event, due to lapse (unless re-enacted) on 3rd December 1984 by virtue of Section 269(9) of the Local Government Act 1972. The powers of stop and search conferred by local Acts passed since 1974, which relate to 64 Merseyside and the West Midlands, are repealed by subsection (1).
This amendment would delete this repeal provision. As far as statutory undertakers are concerned, the powers of stop and search have always been re-enacted and are provided for specific purposes. They have proved their usefulness, and I really do not see why we should insist that they be re-enacted from time to time. I believe that we can now be satisfied, for example, that the powers of stop and search exercised by the British Transport police to which I have already referred are necessary and will remain so for the foreseeable future. All these powers will in future be subject to the safeguards contained in Clauses 2 and 3.
So far as other private Acts are concerned, the existing powers are replaced by the powers conferred in Clause 1. They are no longer needed and I would advise your Lordships to agree to their repeal as is provided by this subsection. Following my remarks, I hope that the noble Lords whose names are attached to this amendment will agree to withdraw it.

§ Lord Renton
I venture to suggest that, despite that painstaking explanation which my noble friend has been so good as to give to your Lordships, it really comes to this. It would be much simpler to repeal the various measures which the Government suggest do not need to remain on the statute book. We have already got a very lengthy repealing schedule, as is usual in cases like this, and to add another page, or even two pages, to its length would not matter greatly. But, if she can tell us that the various measures are already contained in the repealing statute, let us make that clear in this subsection.

§ Baroness Trumpington
May I just say that on drafting grounds we are willing to look at this matter again?

§ Lord Mishcon
I hope I shall not appear discourteous if I add the words, "So I should hope!" I do ask leave to withdraw in view of the fact that the noble Baroness the Minister has said that this drafting is going to be looked at again.

§ Amendment, by leave, withdrawn.

§ Clause 7 agreed to.

§ Clause 8 [Power of justice of the peace to authorise entry and search of premises]:

§ The Deputy Chairman (Lord Ampthill)
Before calling Amendment No. 48: I should point out that, if the Committee agrees to it. I cannot call Amendments Nos. 49 or 50.

§ 6.43 p.m.

§ Lord Elystan-Morgan moved Amendment No. 48: Page 10, line 4, leave out subsections (1) and (2) and insert— ("(1) A constable may for the purposes of criminal investigation obtain access to material which is likely to be relevant evidence, other than material which consists of items subject to legal privilege, by making an application under Schedule 1 below and in accordance with that Schedule.").

§ The noble Lord said: I should be very grateful if I may speak in relation to Amendments Nos. 50, 53, 54, 55, 56, 57 and 58 at the same time as dealing with Amendment No. 48.

§ Amendment No. 50: Page 10, line 4, leave out ("a justice of the peace") and insert ("a person empowered to exercise the jurisdiction of a circuit judge")

§ Amendment No. 53: Clause 9, page 10, line 38, leave out subsection (1).

§ Amendment No. 54: Page 11, line 7, leave out from ("material") to end of paragraph (c).

§ Amendment No. 55: Schedule 1, page 99, line 11, leave out ("special procedure").

§ Amendment No. 56: Page 99, line 13, leave out ("special procedure").

§ Amendment No. 57: Page 99, line 17, leave out ("special procedure").

§ Amendment No. 58: Page 99, line 18, at end insert— ("and (v) that it does not consist of items subject to legal privilege or excluded material").

§ Lord Elton
May I ask the noble Lord whether it is therefore his intention not to speak either to Amendment No. 59 or to Clause 14 stand part, just so that I do not get lost?

§ Lord Elystan-Morgan
Not on Clause 14 stand part, but certainly in relation to Amendment No. 59. I am grateful to the Minister. That should be added to that fairly lengthy list that I threatened to deal with. Amendment No. 59: Page 99, line 32, leave out ("or special procedure material").

§ Lord Elystan-Morgan
I can assure the Committee these amendments are not as complicated as they seem. I think that they can be summarised in this way. The main amendment is Amendment No. 48. The effect of accepting Amendment No. 48 would be to impose in two situations the very careful provisions of Schedule 1 to the Bill. This deals with the special procedures, first, in relation to the authorising of entry and search of premises, and, secondly, as is already the case in the Bill in relation to the powers that are contained in Clause 9 of the Bill—that is, access to excluded material and special procedure material. Certainly, that is so so far as special procedure material—that is, the second part of Clause 9—is concerned.
If Amendment No. 48, which is the wide-net provision, were to be carried, Amendment No. 50 would not he necessary. Amendment No. 50, however, is a more modest alternative to Amendment No. 48 and would make it necessary, before even a power of entry to premises was granted, for an application to be made either to a circuit judge or to a recorder or an assistant recorder. The other amendments are all consequential upon Amendment No. 48.
The powers of entry that are contained in Clause 8 are a very serious invasion of privacy. This has been readily accepted by the Royal Commission, and indeed so much emphasis did the Royal Commission place upon this particular matter that, in Chapter 3.42, the Royal Commission recommended in these terms: A compulsory power of search for evidence should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences. The seriousness of the intrusion could also be marked by making the issuing authority a circuit judge. It is on that basis that we put forward these amendments. The special procedures are carefully 66 drafted to ascertain that they only apply within those highly justifiable circumstances that are defined in Schedule 1. I shall not go into the detail of those. Furthermore, one very important aspect as noble Lords will know, is that, where the special procedure applies, it is necessary for notice to be given to the person who is the owner or the occupier of the premises—in other words, that the application should be inter parses. Where the special procedure does not apply, then of course the application can be made without notice being given and without, indeed, the owner or occupier of the premises being aware of such application being made.
The position under Clause 8 as it now stands is that the application to enter premises to search for the most intimate material is to be made not to a circuit judge but to a justice of the peace. Secondly, that application, as I understand it, does not have to be made in open court but can be made quite privately.
Let me assure the Committee that I in no way seek to minimise the tremendous contribution made to the administration of justice by our lay magistracy nor, indeed, to cast the slightest doubts upon the competence and the integrity and the standing of that lay magistracy, which we know is responsible for the disposal of something like 96 per cent. of all criminal cases that come before our courts.
But the case that we put forward from these Benches is this. There are circumstances where a private conversation—for that is what we envisage it could well be—between a police officer and a justice of the peace is not the appropriate tribunal for deciding grave and weighty matters which are involved in the provisions of Clause 8—namely, the question whether private premises should be searched in the terms envisaged by this particular provision. The Royal Commission appreciated the importance of it. The Royal Commission, which I am sure had as much respect for the magistracy as any body could have, dealt with a not dissimilar situation, or at least a comparable situation, in Chapter 3. paragraph 33, of its report. There is dealt with the question of whether or not an application should he made to a magistrates' court before a road block is set up. We have just been dealing with that in Clause 4. The report reads: One of our number takes the view that in relation to this and a number of other powers the police should be required to obtain the authorisation of a magistrate's warrant, so that the use of the power could not become too common. The police should not be able to undertake such activity on their own authority and without outside scrutiny. There then follow these words: The rest of us consider that for operational matters such as this the magistrates can do little other than endorse a policy request". That is not to say that magistrates would be acting other than with total integrity in the matter. But the point is made by the Royal Commission that there is a danger that a magistrate, sitting alone and in private, would say to himself, "Well, this police officer is a decent chap. I have known him for many years. He is a competent fellow. He knows what he is talking about. He wants to exercise these powers and I do not see why I should not allow him so to act". In short, that is the case against allowing the matter to be decided, privily almost, by a justice of the peace.
67 The alternative is that the special procedures should be invoked: we say that in Amendment No. 48. If the Committee were to say, "No, those are too elaborate"—and we see no reason why the Committee should say that—then Amendment No. 50 is the alternative. Amendment No. 50 stipulates that all applications should be made to, a person empowered to exercise the jurisdiction of a circuit judge". It has been deliberately drafted in that way so that it enables the applications to be heard not just by a circuit judge, but also by a recorder or an assistant recorder; with both of those of course exercising the full jurisdiction of a circuit judge. Therefore, in our respectful submission, there is no paucity of persons who could hear such applications. They deal with grave and weighty matters. They involve massive trespasses upon private liberty. There are some very subtle, complicated and convoluted issues to be considered.
I ask the Committee to bear in mind for a moment the matters that are dealt with in Clause 8(1). The justice of the peace would have to be satisfied that, a serious arrestable offence had been committed". That, in my submission, involves the consideration of some very weighty matters of law. Secondly, he must be satisfied, that there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence". Again, that can be a very complicated task. Indeed, it might involve some understanding of what lawyers call "similar fact evidence".
Thirdly, he must be satisfied, that the material is likely to be relevant evidence". In relation to that one has to read subsection 3, which states: 'relevant evidence', in relation to an offence, means anything that would be admissible in evidence at a trial for the offence". Is it right that an ordinary justice of the peace, however well versed in the usual matters dealt with by him in his normal jurisdiction, should have to decide such complicated matters of admissibility, as can so often arise in this respect?
There is endless detail which I could go into. There are many examples that I could tender for the attention of the Committee, but I do not do so because I think that the Committee is well aware of the principle which is here at stake. There is no power of appeal and no provision for challenging the decision of the magistrate under Clause 8. That, we say, is in itself a very considerable weakness, especially bearing in mind that in our law the most trivial decision of a magistrate is normally challengeable by way of appeal in the Crown Court. But there is no appeal here and, in any event, very probably appeal machinery, as such, would not be appropriate because by then the goods will have been seized and the police will be party to that information. We say that if the recommendation of the Royal Commission, solemnly considered before it was made, that the decision should be that of a professional judge is conceded, then that would be a proper substitute for appeal machinery. I beg to move.

§ Lord Hooson
The force of the argument of the noble Lord. Lord Elystan-Morgan, arises from the fact that the whole of Part II is so badly drawn up. It is very complicated and very difficult. How on earth a constable or a justice of the peace is to understand it, I do not know. I shall come to that argument presently on the Question whether the clause shall stand part. My noble friends and I considered it virtually impossible satisfactorily to amend this part of the Bill: that is, Clauses 8 to 14.
I am bound to say that I prefer the amendment tabled by the noble Lord, Lord Elystan-Morgan, and his noble friends, rather than to leave the clause as at present drafted. Let us look at the power of entry in Part II, under the heading. Powers of Entry, Search and Seizure", and simply take Clause 8(1)(d). We see that the magistrate has to consider, that it does not consist of items subject to legal privilege. excluded material or special procedure material". Therefore, to what does the magistrate have to address his mind? He has to address his mind to the definition of "excluded material", which is in Clause 10. He has to consider Clause 11, which is headed: Meaning of 'items subject to legal privilege' ". He has to consider other matters—the meaning of "special procedure material", and so on. He has to consider whether the application can be properly made to him, or whether it ought not to be made to the circuit judge. The whole matter is far too complicated. It is complicated enough for a circuit judge. It will be very difficult for the ordinary lay magistrate to follow if he is to discharge his duties correctly and properly. Therefore, I have to say that as this part of the Bill is drawn up at present there is a great deal to be said for the amendment.

§ Lord Denning
I hope that your Lordships will consider this amendment with much sympathy. It is a fundamental principle of our law, as has been said by Lord Coke, that, an Englishman's house is his castle", not to be entered into by any authority, except by a proper warrant. Your Lordships may not remember the great case of the general warrants of 200 years ago when the Secretary of State ordered the King's messengers to go into the house of John Wilkes and seize all his private papers. They took them all away in a sack and his pocket-book filled the mouth of the sack. That is what the King's messengers did then.
In a great judgment Lord Camden declared that these general warrants were completely unlawful, and it was a power completely abhorrent to our English laws that a person should enter a man's house and seize his papers in that way. That has come down the centuries, but how it has been invaded!
What is clear now is that a search warrant should be issued only on judicial authority. That has been maintained in many statutes. I have to say that there is power given in statute after statute for a search warrant on application by a constable to a magistrate. Indeed, those warrants are given in cases where there are stolen goods, drugs and explosives—prohibited articles. In the appendix to the Royal Commission 69 report there are 10 pages concerning search warrants under various statutes that can be given by the magistrates on application for searches to be made for such prohibited articles. That is by a magistrate.
What the Royal Commission was considering was the further step—not in order to look for or to seize prohibited articles but to search for relevant evidence, such as the murder weapon, the blackmailer's notes, or, it went on to say, for fraud or deception in company accounts, and the like. That is relevant evidence, which is very different from prohibited articles. In that respect the Royal Commission said that we must be very careful, and we ought to have the judicial authority of a circuit judge before that is done. It makes that perfectly clear.
The Royal Commission drew attention to the large category which I mentioned: The existing powers are mainly confined to entry and search for items which it is an offence knowingly to possess (we refer to these as prohibited goods): for example, stolen goods, drugs, firearms, and explosives. We reaffirm the principle of the present law that such powers are justified and should be retained". We find that preserved by the very last subsection here. All the existing powers are retained. Clause 8 is dealing with the exceptional powers to search for relevant evidence, such as I mentioned before—company documents, murder weapons, or the like.
This is what the Royal Commission says about that: A compulsory power of search for evidence should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences. The seriousness of the intrusion could also be marked by making the issuing authority a circuit judge". Let me give an illustration which we had in the courts only three or four years ago. A statute gave to the revenue authorities a power to search for documents which they thought might be evidence of a tax fraud. That was the wording of the statute. Without any notice to the company—this is the Rosminster case—or the individuals, they mounted a military-style operation by which 70 or more civil servants went to the company's premises, ransacked them and took 13 vanloads of documents to their own premises to search and ransack through them. That was not done by any warrant issued by a magistrate. It was on an application to a circuit judge. It happened to be the Common Serjeant of the City of London. An application was made to him and he granted it. In the Court of Appeal we held that that was invalid, but the House of Lords held that that was right because the statute permitted it—only because the statute permitted it.

§ Clause 8 is really only an extension. It is not really stating the whole law. It is filling in a gap which existed before. I should have thought that the right thing was to fill in gaps for exceptional circumstances. The proper course is, as the Royal Commission said, to make application to a circuit judge for that purpose. It is all the more important when, as has been said, it is so complicated.

§ The person hearing the application has to consider whether it is an arrestable offence. He has to consider all these details. An ordinary magistrate is not the sort of person whom you would expect to do that. He may have his clerk with him, but this is such a complicated procedure that it ought not in this case to be a 70 magistrate. I would suggest that it should be a circuit judge, his deputy, or another alternative, as the case may be.

§ In other words it would be a good thing not to have this special procedure—we are coming on to that—but this is an exceptional class of search. It is a search not for offending documents or prohibited goods but for evidence. It will often be, I am afraid, a search of documents and papers to see whether there is any incriminating stuff there; or, on the other hand, whether there is any excluding material. All that should be dealt with not by an ordinary magistrate but by a circuit judge, as the Royal Commission recommended.

§ 7.7 p.m.

§ Lord Harmar-Nicholls
We have had very sound advice from our legal colleagues. The point ought to be reinforced by the Committee noting the fact that one does not need legal training to see that Clause 8 is putting much too onerous a burden on the average magistrate. One has only to read it to know that. If it is necessary to consider all the evidence that is set out in the clause before permission is given for the search, the person considering all the intricacies should be someone who is more competent than the normal magistrate. The noble and learned Lord, Lord Denning, said that no doubt the magistrate would have his clerk beside him: but the clause as it stands does not include even that protection. It says that the magistrate sitting alone in his own house can make the decision. We do not even have that protection.
I merely want to say to my noble friend that, in the light of all that we have heard, I feel that Amendment No. 50 at least should be included. I do not know enough about the matter to comment on whether we should have Amendment No. 48. But on the evidence that we have heard—my noble friend points to her watch; yes, I can tell the time. I am perfectly capable of doing that. I think that the issues involved in this clause need the support of more than one side of this Committee. That is what I wish to do, in the absence of any other noble Lord making that contribution.
Amendment No. 50 would seem to be the minimum that should be included in the Bill if this sort of burden is to be put on anybody who is to make the decision that the evidence calls for.

§ Baroness Macleod of Borve
I wanted to say a word or two, but before my noble friend replies, let me say only this. May I ask him, please, not to refer to "ordinary magistrates", as other Members of the Committee have done? We are not ordinary.

§ Lord Harmar-Nicholls
Unusual.

§ Baroness Macleod of Borve
We are not unusual either. We are hard-working, unpaid people, who have very many years of experience behind us.

§ Lord Elton
I am obliged to both my noble friends for giving both perspectives on this issue. I do not hold it against either of them that they have intervened.
Noble Lords have rested part of their case on the complexity of Clause 8, which requires a magistrate to 71 consider whether the material for which a constable seeks a search warrant is sought under circumstances where it is reasonable to suppose that a serious arrestable offence has taken place (and that is not a difficult matter); that the material on the premises specified in the application would be of substantial value to the investigation of the offence (and that is not a difficult matter); and that the material is likely to be relevant evidence (that is not a difficult matter). All those aspects are points to which the magistrates are accustomed to addressing themselves.
There is a further requirement that the magistrate shall decide whether or not the material falls into any of three categories which are described in subsequent clauses of the Bill—accurately listed by the noble Lord, Lord Hooson. If they do, they will proceed no further because it is no business of theirs. If they do not, there is requirement on the magistrate to consider whether any of the conditions under subsection (2) apply. Those are really conditions which say that it is necessary to proceed by a warrant and that no other method will do.
So although I accept that there is intricacy in the provisions, I think that the Committee will agree with me that the only intricacy lies in the interpretation of the three categories with which a magistrate is not empowered to deal. Those categories are set out in clauses to which we shall shortly address ourselves, which are listed, and to clauses dependent on them. I say that by way of preface because I do not think that now is the time to embark on an exposition of the way the whole of the part of the Act works. I do not think that that would be too difficult but it is not the appropriate time. With regard to that objection to the Bill as it is drafted, it merely lies on me to say that if there are complexities they lie after Clause 8. It will be proper for the Committee to try and set them right in those clauses.
I therefore have to turn to the principal issue which the noble and learned Lord, Lord Denning, with his usual and incomparable lucidity, introduced with a name which I am happy to assure him is familiar to historians as well as to lawyers. That is the case of Wilkes. It was indeed a watershed if it was not also a turning point—whether or not the two can be combined I do not know. However, I think it stood in a different order of importance from the issues which we are now considering.
I know that the noble and learned Lord may not agree with me but I will ask him to bear with me for a moment. The amendment before the Committee seeks to provide that applications for search warrants under Clause 8 are heard by circuit judges or their equivalents rather than magistrates. The rest of the amendments go further and provide the protection at present given only to special procedure material to any evidence, provided it is not exluded or legally privileged. This was of course the recommendation as I acknowledge, made by the Royal Commission in paragraph 3.42 of its Report; and the Committee will know that in the case of material which is held on a confidential basis we agree with the Commission that the possibility of interference with contractual or ethical obligations requires a hearing at judicial level.
72 We believe however that where considerations of confidentiality and hence of public policy do not arise, there is no need for the kind of safeguards, including the involvement of the judiciary, contemplated by the Commission. Indeed, serious anomalies would arise if the new power to search for evidence were divorced from existing powers of search under a magistrate's warrant. Parliament has entrusted the power to hear search warrant applications to the magistracy for over 100 years. Magistrates are people of great experience. Existing provisions enable magistrates to issue warrants to seize a wide range of unlawful articles and evidence of a wide range of offences. But it is by now well known that there are gaps in these provisions. For example, there is provision for the issue of a warrant in relation to offences of criminal damage but not to offences against the person. This is because the law has developed piece by piece, and as legislation has been introduced powers of search under warrant have been included as and where they have been considered necessary. In the case of the major offences of violence and dishonesty either there has never been such legislation (and the offences remain at common law); or the basic legislation precedes modern conceptions of the role of the police in investigating crime and the growth of organised crime, and the opportunity has not been taken when offences have been redefined and new offences created to hold a systematic review of the investigative powers necessary for effective enforcement.
It is agreed that there are gaps in the law and that the Bill can and does fill them. But it does not provide the new departure, the as yet untested power that some of its critics appear to attribute to it. The power for the police to enter and search the premises of someone not suspected of any involvement in crime is already on the statute book and already in use. It is provided in the Theft Act 1968, which recognises that stolen property may be secreted on the premises of people completely unimplicated in the crime in question. The noble Lord may say, "That is a power to search for the proceeds of crime. I am concerned with evidence". In that case, I must refer the noble Lord, for instance, to the Misuse of Drugs Act 1971, 13 years ago. That gives a power to search for evidence whether or not the owner or occupant of the premises is involved in the crime. Therefore if the argument in favour of the amendment is to be that it is the novelty of the power which I think I heard the noble Lord, Lord Elystan-Morgan, describe as a massive trespass on the private individual, if it is the novelty of that power that justifies the amendment, then of course the justification must fall.
However, let me re-assure the Committee by another example. Section 6 of the Criminal Damage Act 1971 empowers a magistrate to issue a search warrant in respect of anything which has been used to cause criminal damage, which might easily be an article which a suspected offender had borrowed from and returned to a third party with no knowledge of the offence. So the fact that Clause 8 is cast in terms of evidence of crime, and a huge range of things could in certain circumstances constitute such evidence, is no reason itself to depart from the principle that the normal issuing authority for search warrants is a magistrate, bearing in mind also the considerable new 73 safeguards imported into the procedures for applications for and the execution of search warrants by Clauses 15 and 16 and the draft code of practice. If the amendment were accepted it would result in strange anomalies so that, for instance, the police, on a magistrate's warrant, would be able to search a casino for evidence of an infringement of the Gaming Act but they would require a judge's warrant to search the same casino for evidence that the staff had burnt down a rival establishment.
The arguments against these amendments were aptly and cogently summarised by the noble Lord, Lord Mishcon, when we considered a similar amendment during Committee stage on the Video Recordings Bill. The noble Lord then pointed out that Parliament was either right or wrong to give a magistrate the right not only to convict of quite serious offences but also to send citizens to prison. That right was given as a result of our faith in their judgment and impartiality. Parliament was either right or wrong about that. As the noble Lord said, if Parliament was right about that, then is not a magistrate able to be trusted to make a decision about the question of search of premises? The noble Lord considered that it was right in the case of video recordings, and I hope that, with his assistance already so ably if unsuspectingly given, I can persuade your Lordships that it is also right in this case. If I am wrong—if he fails—I shall welcome him in the Division Lobby if the Bell rings.
Let me add this argument which the noble Lord also advanced. The right of search will often be useless if it is long postponed. Normally it is of value if expeditious action follows. While it may and should be perfectly easy to find a magistrate to hear an application, it may not be very easy to find a circuit judge as a matter of urgency.
These are powerful arguments which in my opinion apply to this Bill even more strongly than they did to the Video Recordings Bill where of course they were very much better put. Here we are dealing with evidence of serious crime. The points made by the noble Lord on that occasion helped persuade the Committee that a magistrate should be empowered to issue search warrants under the Video Recordings Bill, and I hope that they will be equally efficacious on this occasion.

§ Lord Mishcon
The noble Lord the Minister has been most courteous in his reference to my utterances. He might as well inform the Committee that, on that occasion, he differed from me.

§ Lord Elystan-Morgan
The noble Baroness, Lady Macleod of Borve, with great charm, mildly chastised me and a number of other noble Lords who had used the term "ordinary magistrates". We did so as mere lawyers, drawing a distinction between stipendiary magistrates and those who do not belong to the stipendiary magistracy.
I shall not try to meet every argument made by the Minister. They were clever arguments. They were technical arguments. But, in my respectful submission, they did not meet the principle. That was dealt with by the noble and learned Lord, Lord Denning, who appreciates that a principle of massive worth. a principle that involves the whole issue of 74 human liberty and the sanctity of privacy, is at stake. I do not think that I need say more, other than to remark that I was enthralled and inspired by the speech of the noble and learned Lord and that it has made us all the more determined to press this matter to a Division. I shall therefore seek to move Amendment No. 50. The other amendments to which I have spoken will not be moved. I beg leave to withdraw Amendment No. 48.

§ Amendment, by leave, withdrawn.

§ Lord Inglewood moved Amendment No. 49: Page 10, line 4, after ("constable") insert ("with not less than four years' service").

§ The noble Lord said: We are still dealing with Clause 8—a sensitive part of the Bill. This amendment could have wider applications than in the narrower sense it has as now printed. It limits certain jurisdiction of less experienced police constables. I should like my noble friend the Minister to consider whether a check such as I suggest is appropriate. The tasks of a young police constable are accepted by everyone to be difficult. It is always hoped when a young police constable is out on duty that there can be dual manning, but it is not always possible. I can assure noble Lords that I shall take no longer than noble Lords opposite, and that my remarks will be brief.

§ However, dual manning is not always possible, and a young constable may be called upon to exercise his full powers from the first half-hour. We have the shortest training period in Europe, while police duties are becoming more exacting. When dealing with searches of private property, the problems can be extremely complicated. A precedent exists whereby a young man, up to the end of his two-year British probation period, has certain checks on his jurisdiction. If we look further afield we see that there are other European countries where similar checks apply. I should like the Government to consider whether it might not be possible to limit the powers of the very young constables and to have such matters handled only by older, or experienced, constables. I beg to move.

§ Lord Elton
I am sure your Lordships will agree that the application should not be made lightly. Your Lordships have already made that clear. The power to enter and search the premises of someone who may himself be innocent of any involvement in crime is a necessary, but also coercive, one. I do not disagree that only experienced officers should decide that an application for such a warrant be made. However, I am not sure that my noble friend is right in the way that he seeks to bring it about. The fundamental safeguard is that of the scrutiny of the application by a magistrate. If a premature or unnecessary application is made, then the magistrate may, and should, dismiss it. But the question of which officer makes an application can properly be dealt with, as an essentially operational matter, in the code of practice for the searching of premises which the Home Secretary will be required to issue under Clause 63.
The search code printed in the booklet already available begins on page 50. Paragraph 1.4 states that, No application for a search warrant may be made without the authority of an officer of at least the rank of inspector (or, in a case of 75 urgency where no officer of this rank is readily available, the senior officer on duty). No application for a production order under Schedule 1 to the Police and Criminal Evidence Act 1984 may be made without the authority of an officer of at least the rank of superintendent". Clause 64(8) states that an officer who breaches the codes will be liable to disciplinary proceedings.
My noble friend will see that this is a more restrictive provision than what he proposes. And the requirement that an application for a search warrant must be authorised by an officer of at least inspector rank applies not only to applications for warrants under Clause 8, but to all warrants. I hope that provides him with the reassurance he wants.

Lord Inglewood
I am glad that my noble friend accepts the principle. I have not heard it debated in the Chamber previously, on other Bills. At this stage I beg leave to withdraw my amendment. However, should I see any further opportunity on this Bill or later, I may raise the matter again.

§ Amendment, by leave withdrawn.

§ Lord Elystan-Morgan moved Amendment No. 50:

§ [Printed earlier.]

§ The noble Lord said: I beg to move.

§ Lord Elton
In two minutes, I want to clarify one point because the noble Lord, Lord Elystan-Morgan, courteously but effectively, swept aside everything that I had said. The noble Lord remarked that I was concerned with clever technicalities, that what mattered was the major issue and that the major issue was something new and terrifying. I listened with the greatest respect to the noble and learned Lord, Lord Denning. It seems to me, however, that the new issue is that we are about to take away from magistrates a power that they have had for 100 years in cases where there are serious arrestable offences. If that is really what the noble Lord asks us to do, I am sure that I shall have little difficulty in persuading your Lordships to disagree.

§ Lord Elystan-Morgan
The Royal Commission on this matter had no hesitation, having heard ample evidence all round. I doubt very much whether by this amendment we are in any way circumscribing the powers that magistrates already have. The ordinary power to issue a warrant to search for stolen goods, to search in relation to drugs under the Misuse of Drugs Act 1971, to search in relation to firearms—all those powers will remain. Clause 8 proposes a power to snoop for evidence on private property. We say that that power should never be used until a judge has considered all the highly complicated and convoluted issues that are bound up with that matter. I see that the noble and learned Lord. Lord Denning, wishes to speak again. I am glad to give way.

§ Lord Denning
I should regret it if any of the existing powers of magistrates were taken away. I assumed that all existing powers remained absolutely intact by virtue of subsection (4), which states: The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred". 76 Surely, that retains every existing power in all the statutes which have been given to magistrates down the years. I should very much regret any impairment of the powers of magistrates. I have the greatest respect for all that they have done. It is only because this is what I regard as an exceptional new power that I suggest that the application should be to a circuit judge.

§ 7.29 p.m.

§ On Question, Whether the said Amendment (No. 50) shall be agreed to?

§ Their Lordships divided: Contents, 67; Not-Contents, 68.

DIVISION NO. 1
CONTENTS
Airedale, L.	Jenkins of Putney, L.
Amherst, E.	John-Mackie, L.
Ampthill, L.	Kilmarnock, L.
Ardwick, L.	Lloyd of Kilgerran, L.
Attlee, E.	Lockwood, B.
Aylestone, L.	McGregor of Durris, L.
Barnett, L.	McIntosh of Haringey, L.
Beaumont of Whitley, L.	Masham of Ilton, B.
Blease, L.	Meston, L.
Bottomley, L.	Milner of Leeds, L.
Brockway, L.	Mishcon, L.
Brooks of Tremorfa, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Monson, L.
Cledwyn of Penrhos, L.	Napier and Ettrick, L.
Collison, L.	Northfield, L.
Craigavon, V.	Pitt of Hampstead, L.
Darcy (de Knayth), B.	Ponsonby of Shulbrede, L. [Teller.]
Dean of Beswick, L.
Denning, L.	Rhodes, L.
Diamond, L.	Rochester, L.
Donnet of Balgay, L.	Shackleton, L.
Elwyn-Jones, L.	Stallard, L.
Elystan-Morgan, L.	Stedman, B.
Foot, L.	Stewart of Alvechurch, B.
Gifford, L.	Stewart of Fulham, L.
Gladwyn, L.	Stoddart of Swindon, L.
Graham of Edmonton, L. [Teller.]	Stone, L.
	Taylor of Blackburn, L.
Harmar-Nicholls, L.	Taylor of Mansfield, L.
Hatch of Lusby, L.	Tordoff, L.
Hooson, L.	Underhill, L.
Houghton of Sowerby, L.	Wallace of Coslany, L.
Hunt, L.	Winchilsea and Nottingham E.
Hutchinson of Lullington, L.
Jeger, B.	Winterbottom, L.

NOT-CONTENTS
Abercorn, D.	Denham, L. [Teller.]
Atholl, D.	Digby, L.
Auckland, L.	Dilhorne, V.
Avon, E.	Drumalbyn, L.
Belhaven and Stenton, L.	Eccles, V.
Bellwin, L.	Elliot of Harwood, B.
Beloff, L.	Elton, L.
Belstead, L.	Faithfull, B.
Boyd-Carpenter, L.	Gibson-Watt, L.
Brabazon of Tara, L.	Gisborough, L.
Brougham and Vaux, L.	Glenarthur, L.
Cairns, E.	Gridley, L.
Caithness, E.	Hailsham of Saint Marylebone, L.
Campbell of Alloway, L.
Cathcart, E.	Halsbury, E.
Chelwood, L.	Hornsby-Smith, B.
Coleraine, L.	Hylton-Foster, B.
Colwyn, L.	Inglewood, L.
Cork and Orrery, E.	Killearn, L.
Cottesloe, L.	Kilmany, L.
Craigmyle, L.	Kintore, E.

Lane-Fox, B.	Plant, L.
Lindsey and Abingdon, E.	Plummer of St. Marylebone, L.
Long, V.
Lucas of Chilworth, L.	Rankeillour, L.
Macleod of Borve, B.	Sharples, B.
Marshall of Leeds, L.	Skelmersdale, L.
Maude of Stratford-upon-Avon, L.	Sudeley, L.
	Swinfen, L.
Merrivale, L.	Swinton, E. [Teller.]
Mersey, V.	Trefgarne, L.
Middleton, L.	Trumpington, B.
Moloson, L.	Vaux of Harrowden, L.
Munster, E.	Whitelaw, V.
Orkney, E.	Wise, L.
Pender, L.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ 7.37 p.m.

§ Baroness Trumpington
I beg to move that the House do now resume.

§ Lord Denham
On the Motion that the House be resumed, it should be said, for the benefit of noble Lords who are interested in this Bill, that we shall not resume the Committee stage before 8.30.

§ Moved accordingly, and, on Question, Motion agreed to.

§ House resumed.