HL Deb 05 July 1984 vol 454 cc412-59

3.50 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 LORD ABERDARE in the Chair.]

Clause 11 [Meaning of "items subject to legal privilege"]:

Lord Donaldson of Kingsbridge moved Amendment No. 64: Page 12, line 17, at end insert— ("; and () documentary or other records concerning a client who can be identified from them and which are made in connection with the giving of legal advice to the client.").

The noble Lord said: This amendment is rather more important than at first sight appears. My noble friend Lord Hunt, at my request because I could not be here on Monday, sat from three o'clock until eleven o'clock rehearsing this important amendment. When he opened his mouth he was immediately made to sit down and the Committee stage was adjourned. Therefore one of my colleagues has already spent a full day on this amendment, so I shall deal with it as quickly as I can.

The amendment is important because there is a tendency to treat legal privilege as something which belongs to organised law. In our opinion, legal privilege should go further than that. This amendment accepts that legal privilege is immune from the various methods of search which are being discussed at the moment. However, we are not satisfied, despite what was said in the other place, that absolute legal privilege will apply to bodies which are giving legal advice, very largely to the majority of people who need it—that is to say, to the petty criminal rather than to the serious criminal.

Increasingly in modern times, legal advice is not given by solicitors, still less by barristers. It is given by legal centres—for instance, by the Children's Legal Centre, which is prolific in its advice to families which get into various difficulties, by citizens' advice bureaux, and so on. The Children's Legal Centre acts under a waiver of the Law Society and may therefore technically come under the protection of Clause 11. However, we want to be very sure that it does.

Therefore I have put down the amendment to make it absolutely clear in the Bill that legal advice given to a client does not necessarily mean legal advice given by a firm of solicitors, or by the clerk of a firm of solicitors, to a client. This is a perfectly clear point which we want to be included in the Bill. Solicitors, I say with respect to my many friends who are solicitors, are a bit of a closed shop and bit exclusive. They like to give to their clerk more authority than they give to a fellow solicitor who is working for a charitable organisation rather than for a firm of solicitors.

The matter goes further than that. The nature of the inquiry and the advice given in such cases are invariably recorded in an efficient legal centre. Because such centres would contain things like a confession by a worried offender, who wishes he had not done it and who wants to know what he ought to do now, they could provide evidence for his conviction. So the argument that they are not evidence, in the sense that a dead body is evidence, will not hold up. They are given in the full understanding of confidentiality. If the confidentiality is breached, or is expected to be breached, it means that these myriad, rather unfortunate people who get themselves into trouble without being major criminals will be less and less anxious and more and more reluctant to engage the help of anybody. This is against the interests of all of us. It is also entirely unreasonable that the closed solicitor's shop should remain closed when one considers that the bulk of legal advice is nowadays given outside that shop and that the people who most need it will tend not to come for it unless it is acknowledge to be covered by Clause 11.

The Minister assured the Committee in another place that the personal records of advice centres would be covered in Clause 12. This is probably true, but I do not think it is good enough. If a member of NACRO, of which I am now president and of which for many years I have been chairman, should give advice to somebody who has got himself into trouble, he should certainly be covered by the provision of Clause 12. However, this is not the same as technical legal advice given by a body with technical legal advisers, in the form of solicitors or barristers, which should rank at exactly the same level as the advice given by Messrs. Sue, Grabit and Run, the firm that Private Eye speaks about.

I have said sufficient to make my objective clear. It is very important. If something of the kind is not done, it seems clear that, under Clause 19, personal records are not protected from seizure during a search for possible evidence of a crime. Therefore a constable may seize any article or item, except those which he has reason to suspect to be subject to legal privilege. Therefore the difference between a solicitor's advice to a client and that of the Children's Legal Centre, or any other legal centre's advice to a client, is absolute. One is totally privileged; the other is partially privileged. I believe this to be quite unreasonable. I do not believe that this is the Government's intention, but whether or not it is their intention the amendment should be inserted into the Bill. I beg to move.

The Parliamentary Under-Secretary of State, Home Office (Lord Elton)

In general, documentary or other records concerning a client which are made in connection with the giving of legal advice to the client will either already be protected by legal privilege, as defined in paragraphs (a) to (c) of subsection (1), or they will not constitute the substantial evidence of crime necessary to get an application for access to them off the ground.

So far as the first limb of that argument is concerned, it is clear that a tape recording of an interview between a solicitor and his client concerned with the giving of legal advice is protected by privilege, as is any note of the interview made by the solicitor. The term "communication" which appears in paragraphs (a) to (c) of subsection (1) already includes oral as well as written exchanges. This may go wider than the noble Lord's question, but it is important to have the explanation on the record.

Regarding the evidential threshold, there is likely to be a wide range of records in a solicitor's office which, while perhaps not themselves subject to legal privilege, might be of interest to the police but would not constitute admissible evidence of substantial investigative value to them. So, for example, the fact that such-and-such a person is currently a client of Mr. So-and-So may be a desirable piece of intelligence for the police to check over, but it is hard to see how it could constitute substantial admissible evidence of crime. So the police could not apply for access to a list of clients under Schedule 1. If they did, the solicitor would have an opportunity to argue his case before a judge as to why such an application should fail. The Bill simply does not provide for fishing expeditions of such a kind. That protection is in the Bill, and I do not believe that we need to duplicate it as is proposed. By the same token, that which is not evidence may not be seized in the course of a search conducted for other purposes. That is made clear in Clause 19.

As to what constitutes legal advice—and the noble Lord first addressed himself to this question—the legal advice does not have to come from a firm of solicitors. It can come from a law centre or from an advice centre of some kind. What matters, in the case he gave as an illustration, is that the member of NACRO should himself be legally qualified. The fact that he is a member or an employee of NACRO itself will not suffice on its own.

If I may return to the theme I was developing, it seems to us better for the definition of legal privilege in the Bill to follow that employed in the law of evidence. The question that arises about the desirability or otherwise of granting the police access to other forms of material which satisfy the evidential requirements in the Bill and which are not excluded material should he decided in the light of all the circumstances of the serious crime concerned by the judge, on the basis of his determination of the balance of public interest. This is the test required by Schedule 1(2), and I think it is to be preferred to an uncertain extension of the concept of legal privilege in the abstract which might flow from the noble Lord's amendment.

Lord Denning

May I just say a word? The words, items subject to legal privilege are well understood in law. In the civil law, we have a whole ream of cases which tell us that legal advice is privileged from disclosure, and that the assessing of legal evidence and the collecting of it is protected from disclosure. Our cases show the law on this matter exactly. It would be a pity to have a very wide and uncertain addition to the material, such as is proposed in this amendment. It will be much better to restrict the excluded material to personal records and to leave the clause as it is. I hope that this amendment will not be pressed.

Lord Donaldson of Kingsbridge

I certainly agree that the definition needs to be clear. One of my complaints is that it is not in the least bit clear—although it may be to a lawyer. For example, there is mention in subsection (1)(b) of, communications between a professional legal adviser and his client". Does that mean a solicitor's clerk? Will he be included? If he is, then if in the Children's Legal Centre there are six or seven solicitors or barristers giving advice, why should this provision not include one of their clerks? This provision does not seem to be in the least bit clear to a layman.

I do not know whether the Government can make this clear. If the privilege is to be restricted to a communication by a registered solicitor, then the Government should say so. If it is, then it meets half my case. It means that in the case of the Children's Legal Centre, which has a number of expert solicitors working for it full time, and of organisations such as Justice, which have barristers and solicitors working for them, the advice of the barristers and solicitors on behalf of which those organisations give advice will be privileged. But that is not clear to the ordinary layman. With his vast experience, the noble and learned Lord, Lord Denning, doubtless knows the answer but I am only saying that I do not. I am trying to find out what the answer is. It ought to be much more clearly put in the Bill.

Lord Elton

If I may answer the noble Lord's specific question, both barristers and solicitors are included because they are legally qualified people. I understand that solicitors' clerks are included also for this purpose because they give advice on behalf of the solicitor and therefore come under his professional responsibility.

Lord Donaldson of Kingsbridge

In the case of the Children's Legal Centre, its clerk will be doing exactly the same thing. Will he or will he not be covered? I wish to know the answer to that question; it is very important.

Lord Elton

I must have missed the noble Lord's question because I thought that I had just answered it. Will he please repeat it?

Lord Donaldson of Kingsbridge

The noble Lord made mention of solicitors' clerks. An organisation such as the Children's Legal Centre is not a firm of solicitors but it has solicitors in it, and it has a chief clerk. If that chief clerk gives advice, is it or is it not subject to legal privilege?

Lord Elton

In that case, it will depend on whether or not the clerk is himself a registered solicitor.

Lord Donaldson of Kingsbridge

But the solicitors' clerk is not a registered solicitor.

Lord Elton

The solicitors' clerk is giving advice on behalf of a solicitor who has a professional responsibility to discharge, and which is discharged on his behalf by the solicitor's clerk. The noble Lord is now asking whether somebody who gives advice on a body which consists in part of solicitors and in part of others is covered in the same way. The answer I think is logically no—and I believe that is also the right answer to his question.

Lord Donaldson of Kingsbridge

As I suspected, the situation is still not very clear. The chances are that one will have to find out whether the clerk in a legal centre was speaking as a direct result of a registered solicitor or as a direct result of somebody else giving advice. This does not seem to me to be the kind of point that laymen would think very clear; still less the kind of point which the sort of petty offender we are discussing would have the faintest idea about.

I will not press this amendment to a Division because I should like to discuss this matter with my noble friends. However, it seems that there is something lacking in the Bill; that the privilege of a man who is protected by his lawyer, for which he has paid, should be no greater than the privilege of a man who is being protected by a legal centre which he uses for nothing because he cannot afford to pay. There is a nasty element here which I do not like and I shall return to it on Report. I will not withdraw the amendment because I see that my noble friend is going to say something.

Lord Mishcon

I hope that what your noble friend is going to say will be useful. Is it not the case that the question of privilege is covered by the contractual relationship of the solicitor to his client? Therefore, if a clerk acts on behalf of a solicitor, is he not acting as the deputed person of the solicitor in regard to that contract? I believe that what was worrying the noble Lord, Lord Donaldson, was the question of legal centres and places of that kind. Is it not the case that the same contractual relationship would exist with the solicitor at the law centre or at the Children's Legal Centre, as the case may be? If that solicitor deputed a clerk or an assistant of his to advise, would that relationship not be in exactly the same area as the normal one of solicitor and client?

Lord Elton

The noble Lord has expressed more lucidly and with more conviction—and certainly with the benefit of his experience—that which I was trying to say. This matter depends on the contractual relationship between the solicitor and the client. When it comes to a law centre, such a centre is staffed, as I understand it, by legally qualified people on whose behalf the adviser will speak to the client. Since the noble Lord will be withdrawing his amendment, the only other observation I wish to make is that it is important that this point should be generally known. It is not necessary to have it spelt out in detail on the face of the Bill so that petty offenders can understand it because they will not be reading the Bill anyway. What we want to do is to establish that this point is clearly understood.

Lord Donaldson of Kingsbridge

I am grateful for what has been said and I will think about it. This point is a little more important than the noble Lord has suggested. It is important that there should not be any particular privilege extended to a "closed shop". We who are not lawyers have as some of our best friends people who are lawyers, but we do not like that feature of the law. We think it is quite ridiculous to pretend that it does not exist, and exist extremely powerfully. I am speaking for the innocent, sometimes, and the more often guilty, who are poor and ill-advised, and who should be encouraged to go to centres where legally competent people can give them advice.

I will not insist on the noble Lord saying anything, but I should like him to take this point away and look at it. Would the Bill be any worse if it expressed the point that I have made? It is clear that no ordinary petty offender would understand the law. It is clear that the Children's Legal Centre does not do so because it asked me to raise this point now. On withdrawing this amendment, I ask whether there would be any objection, and I ask the noble Lord to consider this very carefully to see whether, in the interests of justice for the underdogs, something should not be done.

Lord Elton

The noble Lord asked a direct question to which I can give a direct answer. As the amendment is drafted, the Bill would be worse. If the noble Lord has thoughts about other matters, he can either write to me or table an amendment at a later stage. But for the reason which he may now have forgotten, but which I adduced at the beginning of this debate, the amendment as it stands would weaken the Bill and that point was quite clearly made by the noble and learned Lord, Lord Denning.

Lord Donaldson of Kingsbridge

After all that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

4.10 p.m.

Lord Elton moved Amendment No. 65: Transpose Clause 11 to after Clause 9.

The noble Lord said: The purpose of this rather unusual amendment is to transfer Clause 11 to after Clause 9. When the Bill was introduced in another place "items subject to legal privilege" formed part of the category of "excluded material". As such, it was logical for Clause 11, which defines these items, to appear after Clause 10, which defines "excluded material". However on Report in another place the Bill was amended so that the items subject to legal privilege are no longer part of the category of "excluded material" but form a separate category in their own right. As a result it now makes more sense for Clause 11 to appear after Clause 9 rather than Clause 10.

In support of that, I should only add that if any of your Lordships have worked out, as I did before we started debating Clause 8, a sort of flow chart of how the thing works, it is quite obvious that the clause is in the wrong place now, and where we propose to put it is the right place. I beg to move.

On Question, amendment agreed to.

Clause 12 [Meaning of "personal records"]:

Lord Donaldson of Kingsbridge moved Amendment No. 66:

Page 12, line 32, at end insert— ("; or (d) to his education, training or similar activities involving counselling or assistance given or to be given to him.").

The noble Lord said: This is a rather simpler amendment, and it is an appropriate amendment. It is to ensure that excluded material in its definition does include, and therefore protect from the powers of search, personal educational records held by educational establishments and training agencies which concern pupils, students and trainees. It is perfectly obvious that these records are frequently extremely confidential, often have rude remarks about parents and other things of that sort, and it is clearly essential that they should be excluded.

I think from what was said in Committee in another place the Government did say that confidential school records which identified pupils would as a rule constitute personal records under Clause 12 and would therefore be excluded material. The same objections apply to this assurance as to the one in the earlier amendment. The judges, when examining an Act, do not take any notice of what is said in this House or in the other place. I want to be sure that these clearly damaging, or potentially damaging, and confidential records are covered in Clause 12. If the noble Lord the Minister will assure me in the clearest possible way that they are, I shall be content. If not, I think something should be added to the Bill as I have suggested: that there should be a further subsection referring: to his education, training or similar activities involving counselling or assistance given or to be given to him".

I beg to move.

Lord Elton

I will indeed do my best to reassure the noble Lord, and I think I can do it perhaps by what I will try to make a brief explanation of how the system works. Your Lordships will know that the purpose of excluding certain kinds of personal records—the kinds already set out in Clause 12—from the scope of the new powers conferred by the Bill was to protect the ability of the caring professions and their counterparts to do their job. Ministers carefully explained on many occasions that it was very unlikely that their records would ever fall within the scope of these powers in the first place, since they would not constitute evidence of crime admissible in proceedings, whatever their value or interest as an investigative aid. It is now history that these reassurances failed to allay the anxieties expressed both within and outside Parliament; and accordingly certain categories of excluded material were established.

I think it is clear that personal records maintained by, among others, school teachers, university tutors and, for example, members of university careers advisory services already fall within the protection of paragraph (c) of the clause. Such persons certainly have responsibilities for personal welfare by reason of their office or occupation. It is worth noting that the Royal Commission expressly referred to teachers' records as falling within the scope of the power of search they recommended—that is in paragraph 40 of chapter 3—and so this is another respect in which the Bill as at present drafted does not extend the powers recommended by the commission as far as the commission thought proper.

There remains a range of records which might be maintained by other persons or bodies—perhaps a local education authority—which is not clearly covered by paragraph (c). We do not believe that it is necessary specifically to cover them. There are very many sorts of documents—educational records among them—to which in practice the new powers conferred by the Bill will simply not apply. They do not pass the evidential threshold created by paragraph 2 of Schedule 1; and, as has already been made clear, the Bill simply does not provide for the police to obtain an order for the production of a whole set of different individuals' records on the basis that among them there might be some piece of information which suggested that one of those individuals was responsible for a certain offence.

But there is no point in adding interminably to the categories of excluded material specified by the Bill: if we added educational records there would be no rational reason to resist the many proposals that have been made for other kinds of records to be, as Samuel Goldwyn would have put it, "included out". Clause 12 would have to mention statistical records, research records and all the other kinds of records that have previously been put up for membership of the Clause 12 club. This, I think, would be undesirable, whether or not the public interest in these particular circumstances was such as to justify an order. It seems to me that the position in the Bill is therefore what the noble Lord wants to achieve, and I hope that he will be reassured.

Lord Donaldson of Kingsbridge

I am not entirely reassured hut I do not think it is a matter to press at this stage. The truth is that it is an awful pity when you are bringing in a very controversial Bill of this kind to add unnecessarily to the controversy. The youth movement throughout is thoroughly nervous about the exposure—as they see it—of reports on them; there is a great deal of feeling about it. A lot of schoolteachers are unhappy about it, and it seems to me to be very unnecessary not just to put something in to put their minds at rest. Sooner or later, these things will come up and they will be settled in the courts and then there will be something to go on, but at the moment I think the situation is very difficult. However, I shall not press the amendment now. I will look at both amendments and see whether it is worth coming back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees (Lord Aberdare)

The Question is, Whether Clause 12 shall stand part of the Bill?

Lord Elwyn-Jones

To try to be helpful, I think we did discuss a number of these clause-stand-part amendments and there was an indication that a number of them would not be moved. Perhaps that may not be very helpful.

The Chairman of Committees

That is very helpful; thank you very much.

Clause 12 agreed to.

Clause 13 agreed to.

The Chairman of Committees

Clause 14, Amendment No. 67. Lord Campbell of Alloway?

Lord Elwyn-Jones

I think that falls with an earlier amendment.

[Amendment No. 67 not moved.]

Clause 14 agreed to.

Clause 15 [Search Warrants—safeguards]:

On Question, Whether Clause 15 shall stand part of the Bill?

Lord Houghton of Sowerby

May I ask a question on Clause 15? On page 14, paragraph 6(b) says, in connection with the service of a warrant, that the warrant shall identify, so far as is practicable, the articles or persons to be sought". In dealing with the Video Recordings Bill the other day we passed Clause 17, subsection (2), which said that a constable entering and searching premises may seize anything found there which he has reasonable grounds to believe may be required to be used in evidence in any proceedings for an offence under the Act. I assume that Clause 1 5(6)(b) of the Bill under consideration at present is superimposed upon Clause 17 of the Video Recordings Bill.

Lord Elton

The noble Lord is right, and he will find in subsection (1) of Clause 15: This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises", and so on.

Clause 15 agreed to.

4.20 p.m.

Clause 16 [Execution of warrants]:

Lord Elystan-Morgan moved Amendment No. 68: Page 14, line 32, at end insert ("reasonable")

The noble Lord said: Perhaps I may deal with Amendments Nos. 68, 69 and 70 together. Amendment No. 69: Page 15, line 10, at end insert ("and shall take reasonable steps to ensure that the premises are no less vulnerable to the unlawful entry of trespassers than they were before he had entered them.") Amendment No. 70: Page 15, line 17, at end insert— ("; and (c) whether any, and if so what, damage was done to the premises or to things in them during the search.")

These amendments belong very much to the same family. Their purpose is to give further protection to the owner and occupier of premises who has had those premises searched. The purpose of Amendment No. 68 is to ensure that where entry occurs upon premises other than at a reasonable hour such entry occurs only if the constable executing it has "reasonable" grounds for suspecting that the purpose of a search may be frustrated if entry were to take place at a reasonable hour. With great respect, it would seem to me that the word "reasonable" there is clarificatory of the main purpose of that subsection, and that it does not in any way weaken its general purpose.

The effect of Amendment No. 70 is to make it necessary in any event for the constable who has effected such a search to endorse upon the warrant the added information as to whether or not any damage has occurred on the premises concerned, and, finally, to leave a note in writing of such to the owner-occupier of those premises whether or not it has been requested.

The effect of Amendment No. 69 is to make it incumbent upon the police in executing a warrant to leave the premises in the same condition as that in which they found them. It has come to the notice of myself and many of my noble friends that some months earlier this year the Gas Board effected entry under the statutory powers into premises somewhere in England but failed to secure the premises when they left. When the unfortunate occupier returned from holiday he found that not only was he without a gas supply but his television set and other household items had disappeared for ever. The purpose of Amendment No. 69, which in my submission is a very laudable and proper one, is to place a specific duty upon the authority that effects entry—namely, the police force—to be responsible for leaving the premises in no worse a condition than they were when entered. I beg to move.

Lord Denning

I suggest there is nothing wrong in these amendments. The word "reasonable" would be implied by law, anyway, even if it was not written in, but it is just as well to write it in. Equally, the words, take reasonable steps to ensure that the premises are no less vulnerable would also be written in by law, but it is probably better to do that with the amendment and to have it on record. Therefore, to accept the amendments will do no harm, and they are only writing in what the law would in any case imply.

Lord Donaldson of Kingsbridge

On the question of the wording, I totally agree with the intention, and if the noble and learned Lord, Lord Denning, says it is all right then I am satisfied. However, normally the words, no less vulnerable to the unlawful entry mean "as vulnerable" or "more vulnerable". I cannot believe that that is the intention.

Baroness Phillips

Can my noble friend on the Front Bench further explain the example he gave? It was not clear to me whether the Gas Board operators actually removed the articles having made unlawful entry, or whether they made the entry with the police and then other things were removed. That was not very clear when my noble friend was illustrating his amendment.

Lord Elystan-Morgan

Perhaps I may clear that matter up now, so far as is possible. The example I gave was of the Gas Board effecting entry into a dwelling-house under statutory powers. It effected entry in order to disconnect the gas supply. It did so, but left the premises in a state where they were no longer burglar-proof. In consequence, it appears, of the perfectly lawful entry of the Gas Board, but also in consequence of its negligence in not leaving the premises burglar-proof, burglary did occur—not, of course, on the part of the Gas Board but by some other persons unknown—and a television set was taken, together with other items.

Baroness Phillips

I am still not clear. My noble friend said it was lawful entry. Is he saying that in the absence of the person who owns the house—I have not actually met this before, and this is what puzzles me—the Gas or Electricity Board can effect entry and cut off the supply?

Lord Elystan-Morgan

Yes. As I understand it, there are dozens of statutory powers which allow entry in various circumstances. It may well be the case, as the noble and learned Lord has already said, that there is a duty at common law, and under statute generally, upon those authorities exercising entry to leave the premises in a proper state; but as the noble and learned Lord said—and I am grateful to him—the Bill would lose nothing of its force and purpose if such a duty were to be spelt out specifically.

Lord Boyd-Carpenter

A point has been made, but the noble Lord, Lord Elystan-Morgan, has not answered it. Surely Amendment No. 69 does the opposite of what he intends. Surely what he intends is that the premises shall be left "no more vulnerable". To provide for a statutory duty to leave them "no less vulnerable" seems a rather brutal treatment of the occupier. It may be that I have misunderstood a possible Welsh interpretation.

Lord Elystan-Morgan

It is not a Welsh interpretation so much as a legalistic interpretation. In fact, all the amendment seeks to do is leave the premises in no worse a state than they were. There is no incumbency on the authority that exercises the power of statutory entry to improve the situation. On the other hand, it is the law that it must not make it worse.

Lord Boyd-Carpenter

With great respect, the noble Lord's amendment does not effect that.

4.29 p.m.

The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne)

At the outset, may I say that the example offered by the noble Lord, Lord Elystan-Morgan, about the official of the Gas Board ought not to be taken too far on these amendments, because Clause 16 does not apply to warrants executed by the Gas Board, and so on, but only by police officers. However, I think the noble Lord was not proposing that we take his analogy too far.

Subsection (4) introduces a new safeguard into the law governing the execution of search warrants. The subsection requires the warrant to be executed at a reasonable hour unless circumstances dictate otherwise. If, for example, the police have obtained a warrant under the Theft Act to search a safety deposit box at a bank for stolen jewels which it is thought are lodged there, it is plainly right that the warrant should be executed at the earliest opportunity that the bank is open for business. It would be perverse and unnecessary for the police to attempt to conduct the search at, say, 3 a.m., and I am sure that they would not, in practice, want to do so.

That is, of course, a straightforward case. A straight-forward case of another kind might occur when the police execute a warrant to search for explosives which it is feared will be used for the purposes of terrorism. They will obviously have to act with great despatch and to carry out the search, day or night, before the birds have flown.

Between these two extremes lies a wide spectrum of circumstances. Most criminals who conceal unlawful articles or evidence of crime on their premises are neither as reliable and accommodating as a bank or as elusive as suspected terrorists. It seems to the Government that the sensible test to apply to the actions of an officer charged with executing a warrant is not the objective test of reasonableness but rather the test in the Bill, which goes to the bona fides of his beliefs. We take this view for two reasons.

First, the officer might have no specific information relating to the individual concerned to go on. Let us take the case, for example, of someone suspected of handling stolen goods. The police, acting on information, obtain a warrant to search his premises. The police always try to execute a warrant when the occupier of the premises is present, for various reasons. He can witness the search; and, if the articles sought are found, he can be arrested there and then. If the police arrive at his house when he is not there, he will find out soon enough that they are after him and dispose of anything that he was carrying on him. It is therefore important from an operational point of view for the police not to turn up to execute a warrant too late in the morning, after he has gone out.

In the case that I have outlined, the officer responsible for the execution of the warrant may have an honest belief, based on police experience generally, that unless he conducts the search at, say, 6.30 a.m. the purpose of the search will he frustrated. It may be that on that occasion the officer turns out to be wrong, and the person would have remained in till 9 a.m.; or it may be that the police were already 10 minutes too late. It seems to me very difficult in such a situation of inevitable operational uncertainty to raise the level of the test required.

My second reason for wishing to resist the amendment is this. It would, I think, be unjust if a search was wholly successful, in the sense that stolen goods were recovered, but rendered unlawful by the simple fact that the police could not prove that they had reasonable grounds for believing it necessary to search at an hour subsequently held to be unreasonable. The police might be liable in damages, and that would be a result which, I suggest, does not accord with a commonsense view of such an occurrence.

There is room for more than one view as to whether we should put a provison such as this into the Bill at all, but I am clear that it would be going altogether too far to open up the possibility of rendering an otherwise successful search unlawful except in a case where the police were acting gratuitously or worse.

I come now to Amendment No. 69, to which the noble Lord, Lord Elystan-Morgan, also spoke. I fully agree with the noble Lord that the police should take reasonable steps to ensure that premises are secure after a search if the occupier is not present. The only difference between us lies in our approach. We felt that this point was best covered in the code on searching premises which the Home Secretary is required to issue under Clause 63. I refer your Lordships to paragraph 5.10 on page 56 of the red booklet containing these codes, which states: If premises have been entered by force the officer in charge shall, before leaving them, satisfy himself that they are secure either by arranging for the occupier or his agent to be present or by any other appropriate means". This seems quite clear and I believe fully covers the point. It also has the advantage of governing all searches, whereas the present amendment is limited to searches under warrant. Any officer who is in breach of the codes will be liable to disciplinary proceedings under Clause 64(8), and this will ensure that the code is adequately enforced. A further advantage of the provision in the draft code, as compared to the amendment, is that the requirement to leave premises secure is a general one. In contrast, an officer could comply with the terms of the amendment if the premises were unsecured when he found them and unsecured when he left them, which would not be a satisfactory state of affairs.

In our view, securing of premises is an operational aspect of searching which is and can be more appropriately dealt with in a code of practice. It does not go to the lawfulness of the search itself. In view of my remarks, I hope that the noble Lord will not want to press this amendment. Incidentally, I share the anxiety of my noble friend Lord Boyd-Carpenter about the wording of that amendment, but I have addressed myself to what I believe to be in the mind of the noble Lord.

I come now to Amendment 70, to which again the noble Lord referred. I agree completely that a formal record should be made of any damage caused by the police in effecting entry to premises which they search or in conducting the search itself. Allegations are made from time to time that the police cause unnecessary damage, and it is clearly desirable that in the event of a complaint or a claim for compensation there should be a way of establishing what may have been damaged by the police, to be distinguished from damage caused before they came or after they left.

I suggest, however, that the point is already adequately covered in the draft code of practice for the searching of premises, and does not appropriately belong in Clause 16. I draw your Lordships' attention to paragraph 7.1 viii of that code, which requires a record to be made of any damage caused and the circumstances in which it was caused. I ask your Lordships to note that this requirement applies to all searches, whether made under the authority of a warrant or not, so that the draft code already goes further than the terms of the amendment.

I do not think that anything will be gained by adding this requirement to Clause 16(9). The point of that subsection, which requires warrants to be returned to the issuing court to show whether the object of the warrant was found, is to enable magistrates to obtain feedback about the use to which their warrants are put and so to assist them in scrutinising future applications. If it appears that officers at a particular station obtain warrants but rarely find anything when they search, I would expect that the magistrates would wish to explore fairly rigorously the case for a warrant on the next occasion that one is sought. However, whether or not any damage is caused is extraneous to this process of feedback, and will not assist the magistrates and their clerks in the quality control, if I may call it that, of applications. I hope therefore that the noble Lord will feel free not to press that amendment either.

4.37 p.m.

Lord Elystan-Morgan

We very greatly appreciate the full and detailed answer given by the Minister, although for our own part we should not have sought to demand such intricate detail upon each and every matter raised.

May I apologise to the noble Lord, Lord Boyd-Carpenter? I have now realised that there is indeed a printer's error in the second line of Amendment No. 69. It should read, "no more vulnerable", and not, "no less vulnerable". I am sure that that is due only to my own unfair hand in having prepared the manuscript in the first instance and that the fault lies entirely with myself.

We are disappointed that the Minister has taken such a negative attitude. It is true that those matters are either covered by the code of practice or, as the noble and learned Lord, Lord Denning said, are already implicit in the terms of the Bill. But since one is dealing with a substantial interference with private rights and privacy, we genuinely believe that it would have strengthened the purpose of this part of the Bill to have spelled them out in the Bill itself. In our submission, there is a difference between something that is a firm, specific statutory obligation and something that is referred to in the code of practice.

However, we do not seek to divide the Committee upon these matters but reserve our right to raise them again at the appropriate stage on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 69 and 70 not moved.]

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Inglewood

May I make one very brief comment on the first sentence of Clause 16? When the Committee last met, an amendment of mine was sandwiched between two amendments from the other side of the Committee and there were cross-currents of conversation about a Division and about dinner, and my amendment was lost in the middle. I should just like to make this point again, and I can do so very properly on the first sentence of Clause 16.

Some of the functions to which we have been referring require great responsibility, and considerable powers are given to all constables and every constable, irrespective of their very limited service, which can be all too brief.

There was a brief reply from the Minister, in which I think he said he thought it was more appropriate to put this in a code rather than to amend the Bill. I am not sure that he is right. I should like the Minister to look at this again because this has come up for the second time in our discussions on the Bill and I should like to feel that it might be considered again. I certainly hope it is not overlooked.

Lord Trefgarne

I hear what the noble Lord says. At this moment I do not think I can go further than my noble friend did when he replied to my noble friend's earlier consideration of this point. Perhaps he will allow me to study what he has said and see if there is anything further I can tell him.

Clause 16 agreed to.

Clauses 17 and 18 agreed to.

Clause 19 [Seizure of articles]:

Lord Mishcon moved Amendment No. 71: Page 18, line 12, after ("privilege") insert ("or excluded material.").

The noble Lord said: I say this with a smile to the Front Bench opposite. I propose very pithily to move this amendment even though it may be an important amendment. Maybe the speed with which I do it will be an encouragement to others, not only in moving amendments but also, if I may say this most humbly, in answering them, because we have a long way to go.

Having said that, I refer the Committee to the fact that Clause 19 deals with the question of seizure. We have up until now been dealing with the question of search, and the power of search and the warrant in regard to a search. In regard to seizure, the present law as I understand it, which is summarised in the Report of the Royal Commission on Law and Procedure at paragraphs 34 and 35, is that the police can seize evidence in the home of someone who has been arrested or while carrying out a warrant.

Under this Bill the power of seizure is indeed extended. The situation under Clause 19 is that a constable is allowed on to premises. Then in certain circumstances, with the consent of the occupier if he is there, under the power conveyed by a search warrant or after making an arrest, he can seize any items except, as the Committee will see, items which are covered by legal privilege.

He can do that if he suspects, under subsection (4), that there are reasonable grounds for believing—not merely suspicion but reasonable grounds for believing—that the item has been obtained in consequence of the commission of an offence and it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

The peculiar position is that the Government in drawing up this Bill have recognised that there is an overriding public interest in protecting the confidentiality of medical and social work records in regard to the general search power. However, that exclusion does not appear in this clause when it comes to the question of seizure. There is a very serious lacuna here.

If I may say this in conclusion of my submission—and I hope that bears out the promise I made at the outset of my remarks—there is a very recent case which has been brought to our notice. Only some weeks ago at a health centre in Birmingham two uniformed officers entered the premises with the receptionist's consent as they were investigating an offence of criminal damage to the centre. They asked to have the medical records of two suspects in order to establish that those individuals had visited the health centre on the night in question. They were refused that by the receptionist. Under this Bill the police would not be able to obtain a search warrant for those records. However, under Clause 19, once they had got in there they could seize them. I repeat that this appears to be an undesirable lacuna and I ask the Committee to support this amendment.

Lord Elton

I will try not to exceed the noble Lord's six minutes in his admirably brief introduction. The clause, as drafted, will ensure that the police may not seize items subject to legal privilege found in the course of a lawful search which is also evidence of an offence. This amendment seeks to extend this protection to excluded materials. But the same considerations of the confidentiality of an accused's defence do not arise in this sort of case and I remind your Lordships that it is only legally privileged material which for this reason has a special status under the rules of evidence. Excluded material may now he seized by the police in the course of the search of an arrested person's premises and may now be admitted in evidence in criminal proceedings. It will continue to be admissible after the Bill is enacted. It may indeed constitute crucial evidence at a trial. So the amendment would curtail existing and useful powers. It has to be remembered that the fact that material may be excluded does not mean that it is or should be absolutely protected from coming into the hands of the police. I remind the Committee that excluded material may be obtained by the police under the second set of access conditions in Schedule 1 if there is already provision for its seizure.

With the exception of items subject to legal privilege, the clause will indeed allow the police to seize evidence of offences even though that evidence may constitute excluded or special procedure material. If, in the course of a lawful search, the police came upon such evidence it would be arbitrary and unrealistic to expect them to leave such an article alone. For example, if the police had obtained a warrant under the Misuse of Drugs Act 1971 to search a social worker's house for controlled drugs and in the course of that search properly happened upon excluded material constituting evidence of serious crime by one of his clients, then in our view it would be right for them to continue to have power to seize it subject to the conditions in the clause. Indeed it is not clear what purpose would be served by preventing this. That does not mean that once the police have entered the premises they may search at will for any evidence.

Lord Mishcon

In order to shorten the debate, I wonder whether the noble Lord would give way. This is the very point that was raised in another place. With great respect it has no relevance, because there is not the slightest doubt that unlawful drugs are among items which can be seized under the present law. Here we are dealing not with drugs and things of that kind but purely and simply with the records of social workers and doctors. As I said, it was an error made in another place and I had hoped it would not be repeated here.

Lord Elton

The principle which I am addressing is this. The Bill sets out very clearly and very strictly the grounds on which the police may have access to search for something. It also sets out very clearly and very strictly the extent to which it may be searched. For instance, if the police are looking for stolen video recorders, they cannot go rummaging through correspondence and documents. Judging by the haste at which the noble Lord was wishing to move earlier, I had not realised he was waiting for support of any sort.

Lord Mishcon

I was not. I was just so happy that the noble Lord, Lord Houghton of Sowerby, had found another way of amusing himself this afternoon, that is all!

Lord Elton

If I may remind the noble Lord, what I said earlier is that the warrant in that case would be for drugs. If they therefore found something else, then if it was admissible and relevant evidence, it would be perfectly proper for them to be able to take it. The noble Lord took my example the wrong way round. He thought that my example was of a policeman who was looking for papers and had picked up drugs. I have specified a case where the policeman was looking for drugs and found papers which were evidence of a serious crime committed by one of the clients of the persons whose premises he was at that time searching. The noble Lord is suggesting that, although they are admissible evidence, they should not be capable of being seized.

Lord Mishcon

I am suggesting that, if they are in the records of social workers or in the records of doctors, they should not be seized. They will not even be capable of forming part of a search under the provisions of the Bill. I have put the arguments as well as I can. This is regarded by us as a serious point. If the Minister is not able to concede that it is a serious point and that social workers and doctors are so worried about this lacuna, I would obviously wish to seek the opinion of the Committee.

4.50 p.m.

On Question, Whether the said Amendment (No. 71) shall be agreed to?

Their Lordships divided: Contents, 104: Not-Contents, 109.

Airedale, L. Cooper of Stockton Heath, L
Amherst, E. David, B. [Teller.]
Ampthill, L. Dean of Beswick, L.
Ardwick, L. Denning, L.
Attlee, E. Diamond, L.
Aylestone, L. Donaldson of Kingsbridge, L.
Balogh, L. Elwyn-Jones, L.
Banks, L. Elystan-Morgan, L.
Beaumont of Whitley, L. Ewart-Biggs, B.
Beswick, L. Ezra, L.
Birk, B. Foot, L.
Boston of Faversham, L. Gaitskell, B.
Bottomley, L. Gallacher, L.
Briginshaw, L. Gifford, L.
Brimelow, L. Gladwyn, L.
Brockway, L. Graham of Edmonton, L.
Bruce of Donington, L. Grimond, L.
Buckmaster, V. Hale, L.
Burton of Coventry, B. Hampton, L.
Caradon, L. Hanworth, V.
Carmichael of Kelvingrove, L. Hatch of Lusby, L.
Hooson, L. Rea, L.
Houghton of Sowerby, L. Roberthall, L.
Hughes, L. Rochester, L.
Hutchinson of Lullington, L. Sainsbury, L.
Irving of Dartford, L. St. Davids, V.
Jacques, L. Scanlon, L.
Jeger, B. Scarman, L.
Jenkins of Putney, L. Seear, B.
John-Mackie, L. Sefton of Garston, L.
Kennet, L. Serota, B.
Kilmarnock, L. Shackleton, L.
Llewelyn-Davies of Hastoe, B. Simon, V.
Lloyd of Kilgerran, L. Stallard, L.
Lockwood, B. Stamp, L.
Longford, E. Stedman, B.
Lovell-Davis, L. Stewart of Alvechurch, B.
McCarthy, L. Stewart of Fulham, L.
McNair, L. Stoddart of Swindon, L.
Mayhew, L. Stone, L.
Meston, L. Strabolgi, L.
Milford, L. Strauss, L.
Milverton, L. Taylor of Blackburn, L.
Mishcon, L. Taylor of Mansfield, L.
Molloy, L. Tordoff, L.
Monson, L. Underhill, L.
Morris of Grasmere, L. Wade, L.
Peart, L. Wallace of Coslany, L.
Pitt of Hampstead, L. Wells-Pestell, L.
Plant, L. White, B.
Ponsonby of Shulbrede, L. [Teller.] Winchilsea and Nottingham, E.
Prys-Davies, L. Wootton of Abinger, B.
Airey of Abingdon, B. Hailsham of Saint Marylebone, L.
Alexander of Tunis, E.
Allen of Abbeydale, L. Halsbury, E.
Alport, L. Hanson, L.
Atholl, D. Harmar-Nicholls, L.
Auckland, L. Harvey of Prestbury, L.
Avon, E. Hood, V.
Belhaven and Stenton, L. Hornsby-Smith, B.
Bellwin, L. Hylton-Foster, B.
Beloff, L. Inglewood, L.
Belstead, L. Ingrow, L.
Berkeley, B. Ironside, L.
Boyd-Carpenter, L. Kilmany, L.
Caithness, E. Kinnaird, L.
Cameron of Lochbroom, L. Lane-Fox, B.
Cathcart, L. Long, V.
Clitheroe, L. Lucas of Chilworth, L.
Cockfield, L. Luke, L.
Coleraine, L. McFadzean, L.
Cork and Orrery, E. Macleod of Borve, B.
Craigavon, V. Mancroft, L.
Craigmyle, L. Margadale, L.
Cullen of Ashbourne, L. Marley, L.
Dacre of Glanton, L. Maude of Stratford-upon-Avon, L.
Daventry, V.
De Freyne, L. Mersey, V.
De La Warr, E. Molson, L.
Denham, L. [Teller.] Mottistone, L.
Dilhorne, V. Mowbray and Stourton, L.
Drumalbyn, L. Northchurch, B.
Eccles, V. Nugent of Guildford, L.
Ellenborough, L. Orkney, E.
Elliot of Harwood, B. Orr-Ewing, L.
Elton, L. Pender, L.
Faithfull, B. Plummer of St. Marylebone, L.
Fanshawe of Richmond, L.
Ferrier, L. Porritt, L.
Fortescue, E. Portland, D.
Fraser of Kilmorack, L. Pritchard, L.
Gainford, L. Rankeillour, L.
Gardner of Parkes, B. Reay, L.
Glenarthur, L. Reigate, L.
Gormanston, V. Renton, L.
Gowrie, E. Renwick, L.
Gray, L. St. Aldwyn, E.
Gridley, L. Saint Oswald, L.
Sandys, L. Tranmire, L.
Savile, L. Trefgarne, L.
Skelmersdale, L. Trumpington, B.
Strathspey, L. Vaux of Harrowden, L.
Suffield, L. Vivian, L.
Swansea, L. Westbury, L.
Swinfen, L. Whitelaw, V.
Swinton, E. [Teller.] Windlesham, L.
Terrington, L. Wise, L.
Teviot, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.58 p.m.

Lord Elystan-Morgan moved Amendment No. 72: Page 19, line 1, after ("shall") insert ("within 28 days").

The noble Lord said: I should be grateful if I could also deal with Amendments Nos. 73, 74 and 75.

Amendment No. 73: Page 19, line 1, leave out (", if so requested by a person showing himself") and insert ("provide to any person who appears to him").

Amendment No. 74: Page 19, line 7, leave out ("provide that person").

Amendment No. 75: Page 19, line 8, leave out subsection (8).

In brief, the purpose and the effect of these four amendments would be to strengthen the safeguards which are already given in Clause 19 to a person whose goods have been seized in the course of a search. As the Bill is now drawn, the provisions of Clause 19(7) are briefly as follows: that an officer carrying out a search shall if requested by a person who appears to be the occupier of premises upon which goods have been seized, provide a record of what has been seized within a reasonable time of a request for that record.

The effect of the amendments would be that such a record would be provided within 28 days of such a search, whether or not a request was formally made for it. Again, the view that we take is that in this case the interference with private liberty and with the rights of property and privacy is so considerable that in any event the onus should be upon the police to leave a clear record as to what has been taken, so that there be no dubiety and no argument in the future as to exactly what took place. Upon that basis, I beg to move.

Lord Trefgarne

As drafted, subsections (7) and (8) require the police to provide within a reasonable time of a request to do so, a record of property which they have seized. These amendments seek to require the police to provide such a record irrespective of whether or not it is wanted, and to impose a time limit of 28 days within which such a record must be supplied. I must confess that I do not see why the police should be required to provide a record which it may be nobody wants. Of course, in any event, for police purposes they will make a record of property seized, and paragraph 7(1) of the draft code of practice for the searching of premises will formally require them to do so. So a record will exist, irrespective of whether the person from whom the property was taken wants one. If he does want one, and that is surely right. If, for whatever reason, he does not want a record, I do not see what useful purpose is served by nevertheless requiring the police to provide such a record.

As to the time within which such a record must be provided, I am sure that, as a rule, 28 days would be more than sufficient. However, occasionally it is necessary for the police to seize very large quantities of property—many thousands of documents comprising the records of, say, an allegedly fraudulent company, or a warehouseful of allegedly obscene material. In these exceptional cases it may simply be impracticable to provide a comprehensive record within 28 days.

The Bill must cover all cases, the exceptional just as much as the standard. For that reason I do not think it would be wise to attempt to impose a time limit in the way proposed by the noble Lord. Subsection (8) requires the record to be provided within a reasonable time, and I would suggest that this approach is to be preferred. What is a reasonable time will depend on the individual circumstances of the case, but if a person is aggrieved by delay in providing the record it will be open to him to apply to the courts for an order requiring its provision. For these reasons, I hope the noble Lord will not press his amendment.

Lord Somers

The noble Lord has said that the objection is that the record may not be provided, whether or not the occupier desires it. If the amendment is put into context, the subsection will read: An officer seizing anything under this section shall, within 28 days, if so requested by a person". So the request still stands.

Lord Elystan-Morgan

I am very grateful to the noble Lord for his intervention. In addition, I think the point can be made that it would appear that the Royal Commission, in chapter 3.46 of its report, envisaged that a receipt would be given in any event. I must say that it seems to us that if careful documentation has to be kept of articles that are seized—clearly that is the situation; the police officer would not be doing his duty were he not to do that—nothing would be lost by leaving such a receipt upon the premises or somewhere where the occupier has access to it. To say the least, it is courtesy, and it avoids all manner of argument about these matters.

After all, these are powers which are inroads into the liberty of the individual, and it is only right that they should be balanced by the most careful documentation on the part of the police when they exercise those powers. In the circumstances, we hope that the noble Lord the Minister will not persist in his Molotovian negative attitude towards these amendments, and will give them generous further reconsideration.

Lord Trefgarne

I have explained two of the difficulties which I see. First of all, the record that the noble Lord is requiring, which he refers to as good housekeeping, will be kept. The code of practice requires that that should be so. Secondly, that can be made available, if so requested by the person concerned. But the further difficulty is that the noble Lord has set a limit of 28 days, and that imposes serious difficulties in the sort of case I have described; for example, where thousands and thousands of documents might have been seized and it might be very difficult indeed—impossible, perhaps—to prepare within the 28-day period that the noble Lord has stipulated in his amendment the sort of record he requires. Naturally, I am willing to arrange for these things to be considered further, but I would not want the noble Lord to be under any misapprehension that in some way we were likely to change our view on this matter.

Lord Mishcon

Before the noble Lord sits down, I should like to ask one quick question, if he will allow me to put it to him. Does he really believe that, however complicated a fraud case may be, the police would not prepare, within a period of 28 days, a schedule of the documents and books they had seized? We are talking only about scheduling them; we are not talking about examining them.

Lord Trefgarne

I must confess that I have heard of particular cases where literally thousands and thousands of documents have been seized. Certainly I envisage that the police would wish to list those documents. I must maintain my position that that might be very difficult within the 28-day period that the noble Lord has stipulated.

Lord Gifford

I have also heard of cases where solicitors have had the greatest difficulty in finding out, on behalf of their clients, what has been seized after a search warrant has been executed. I accept that there may be the need for a middle way here, that there may be an exception permitted in the case of very voluminous documents, but I hope that the Minister's consideration will take into account that in a normal case 28 days should be quite enough and ought to be inserted in the legislation.

Lord Boyd-Carpenter

It seems to me that a 28-day period could be wholly unreasonable in certain circumstances. What the amendment would require within that period is a recording of what has been seized, involving, as I read it, a description of every document that has been seized. Suppose there was an enormous fraud case, of which, alas, we have had one or two examples in recent years. I myself have seen packing case after packing case loaded with documents. Although it is perfectly true to say that the amendment would not require people to study them, each document would have to be looked at individually to be listed, and in my view at least that would impose a quite intolerable burden on the police. I can see no reason whatever for imposing this time limit, and I hope my noble friend will resist it.

Lord Mishcon

I wonder whether I may be allowed, again very briefly, to help the noble Lord, Lord Boyd-Carpenter, if he thinks I am being of assistance. All that is required is to count the number of receipts, for example, and to say, "Bundle containing 500 or 540 receipts". Then you say, "Bundle of correspondence passing between", and then you say what the dates are—between such-and-such a date and another date. It is done in every solicitor's office almost every single day, in the very largest of actions, by way of a list of documents in discovery. To leave the position where the police have got to decide whether or not it is reasonable to take three months, six months, nine months or a year, and to leave people without knowledge of what documents have been seized from their premises, is a gross travesty of justice.

Lord Boyd-Carpenter

With respect to the noble Lord, there is all the difference in the world between the handling of documents for discovery in a solicitor's office when one is proceeding in an orderly and lawful way to the hearing of a case, and dealing with documents which have just been seized in a case of suspected fraud. One may find that there are 540 documents in a package, the top of which are receipts; but it does not follow that the remaining 538 documents are receipts at all. They may be totally different. Indeed, anybody who anticipates that he is likely to be facing fraud proceedings and police action for fraud may very well leave his documents in a state of deliberate confusion, quite apart from the state of confusion in which some people leave their documents anyway. It is no conceivable answer to say that when one is preparing for trial in a solicitor's office and one has a bundle of receipts, one just counts those receipts. In this case one would have to look at each document and look at it closely to see whether it was a receipt or something else.

Lord Hutchinson of Lullington

This is a very serious matter. Over and over again in long fraud cases the police go into the office of the defendant or the defendant company and, as has been said, they seize every document that they can lay their hands on. As a result, immediately a fishing expedition starts. Those people who have lost the documents do not know what they are or which have been taken. The police sometimes keep those documents for a period of up to two years—they search through the documents and build up a case, or try to build up a case. The result is that one has no idea what is going on, where the documents are or of what they consist. This really is an opportunity to bring order into this matter and to be even-handed about it. Of course the police have to take documents, but there must be some control over what they have taken, and they must notify the defendant of what they have taken within some period which must be laid down; otherwise it will not happen.

Lord Trefgarne

That is all very well, but what I am being asked to agree to is a proposition which, from the point of view of the police, is wholly unreasonable. How can it be the case—and this is what the noble Lord, Lord Hutchinson, is asking me to accept—that the police, having seized a large quantity of documents which the noble Lord on his own admission has said might take as long as two years to examine—

Lord Hutchinson of Lullington

With great respect, I said that they might keep them for two years, which is quite a different matter.

Lord Trefgarne

How can it be the case that as regards a large quantity of documents which must clearly take many months to examine—I put it no higher than that—the police should be required to give an accurate list of what has been taken within 28 days, which is exactly the effect of one of the amendments which we are now considering? I ask your Lordships to accept that the best way is to adopt the provisions provided in the Bill which give the police a reasonable time in which to conduct their examination of the documents, to prepare a list and to provide it to the person from whom the documents or other items have been received within a reasonable period of time. To impose the type of limit that the noble Lord is suggesting would I believe tie the hands of the police in these types of cases, particularly the type that I have described.

Let me remind your Lordships of the other example which I gave. The police might have seized a warehouse full of allegedly obscene material. Clearly they would need to examine each and every item of that material to make sure that everything that they had seized was allegedly obscene, because there may in the same warehouse be quantities of material which were of no interest to the police in that context. I believe that the proposals contained in the Bill, without the amendments proposed by the noble Lord, are the best that we can devise in the circumstances and I hope that your Lordships will see fit to agree to them.

Lord Denning

I should like to make one short comment. In the big case, Rosminster, there were 13 van loads of documents taken from the premises. I think that 28 days would be much too short in which to make a record of all those documents. I am not sure that "reasonable time" is not best, as is already in the Bill.

Lord Elystan-Morgan

In my respectful submission, there are two issues here. The first is the question of whether or not the written record should be provided in any event. Upon that matter I very respectfully suggest that there seems to be unanimity in the Committee, or certainly a broad understanding, that that is as it should be.

Lord Denning

I would agree with that.

Lord Elystan-Morgan

I am most grateful to the noble and learned Lord. The second issue is whether or not it should be left to a reasonable period or 28 days. I wonder whether the Minister would consider the proposition that I am going to put forward as a not unreasonable compromise. I have not the slightest desire to embarrass the police or to frustrate them in their lawful pursuits in any way at all. Would the Minister be prepared to consider as regards that second issue that the general time limit shall be 28 days? That, I should have thought, would accommodate 98 per cent. of cases. The provision would read something like: within 28 days unless in the circumstances it shall be impracticable so to do". That would concentrate the mind of the officer upon the general duty and also absolve him from the absolute necessity of providing the list within 28 days in exceptional circumstances.

I should like to pray in aid what has been said by my noble friend Lord Mishcon and the noble Lord, Lord Hutchinson; namely, that it is not a detailed record that is required, but such record as will enable the occupier to know broadly what has been taken from the premises. Like many lawyers, I have been frustrated in many cases where a year after the seizure has taken place solicitors and counsel have no idea of exactly what has been taken. It is an important matter and I very much hope that the Minister will be prepared to give it further consideration.

Lord Trefgarne

The noble Lord has now departed somewhat from what he was originally proposing and I acknowledge his flexibility in doing that. However, I am not now clear how what he now proposes differs from what we already have in the Bill. But maybe I could take the matter away and study what the noble Lord has said, and if it is thought fit perhaps return to the matter at another stage.

Lord Elystan-Morgan

I am very grateful, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 73 to 75 not moved.]

Clause 19 agreed to.

Clause 20 [Seized articles: access and copying].

5.17 p.m.

Lord Gifford moved Amendment No. 76: Page 19, line 35, leave out ("by") and insert ("to").

The noble Lord said: I can move this amendment very shortly, and I do so out of a sense of puzzlement. Clause 20(3)(b) provides that an officer must, at the request of an owner of a document, "photograph or copy it". Subsection (4) says that when it has been photographed or copied, the photograph or copy shall be supplied by the person who made the request". It does not seem to me to make sense. My amendment inserts the word "to" instead of "by". I beg to move.

Lord Trefgarne

I grovel before your Lordships because of this inadvertent slip. I am happy to accept the amendment.

On Question, amendment agreed to.

On Question, Whether Clause 20, as amended, shall stand part of the Bill?

Lord Gifford

I should like to raise a short point on Clause 20. It is a valuable clause because it provides certain rights to those whose documents have been taken, which they did not have previously—that is to say, it provides access to them and enables them to be photo-copied or photographed. However, in subsection (6) the rights which have been given, as happens in other parts of the Bill, are in danger of being taken away or rendered virtually useless by a very general provision that there is no duty to grant the rights if there are: grounds for believing that to do so would prejudice the investigation". I recognise that in some cases it would not be right to give someone access to a document. The most obvious case, for example, would be where a document was an official secret or where there were other documents of that kind. So I have not sought to amend the clause. But there must surely be some guidance given as to the circumstances in which this exceptional discretion should be exercised, because it may easily become absolutely standard for an officer to say to a solicitor, "I am not giving you access to these documents because it will prejudice the investigation".

I looked for help to the code of practice and found absolutely none at all. Paragraph 6.9 of the code of practice merely repeats verbatim the words of the Bill. I would ask the Government to consider putting at any rate in the code of practice some guidance or some rules as to how the police should exercise the discretion which they have been given.

Lord Trefgarne

I hear what the noble Lord says. I am not exactly certain what additional guidance could be prepared that would meet the noble Lord's anxieties, but perhaps he would allow me to consider that point too and see whether we can come up with something to include in the code of practice.

Lord Gifford

Perhaps the noble Lord will even consider the giving of some general reasons. There are certainly a number of cases where access might be refused without reasons and it would be very difficult to challenge. If that could be considered, that would be one way of meeting my concern.

Clause 20, as amended, agreed to.

Clause 21 [Retention of seized articles]:

Lord Gifford moved Amendment No. 77: Page 20, line 1, leave out from beginning to end of line 5 and insert— ("An article which has been seized under section 19 above may be retained for as long as is necessary in all the circumstances—").

The noble Lord said: Clause 21 deals with the length of time during which, and the reasons for which, articles which have been seized can be retained. Once again, the complaint that I make is that a provision of such elasticity has been inserted that it gives very few rights to the person who owns the documents which have been seized. Subsection (1) of Clause 21 says: an article which has been seized … may be retained so long as is necessary in all the circumstances". I suggest that that provision is too wide.

In moving this amendment I should like to speak to Amendments Nos. 78 and 79. Amendment No. 78: Page 20, line 6, leave out ("an article may be retained"). Amendment No. 79: Page 20, line 11, leave out ("an article may be retained"). These amendments would enable the clause to read as follows: An article which has been seized under section 19 above may be retained so long as is necessary in all the circumstances", and then we continue: for the purposes which are now set out in subsection (2); that is to say, either for evidence or for forensic examination or if there is a need to establish its lawful owner.

I am not too sure what other purposes are envisaged in Clause 21. It seems to me that the purposes set out in subsection (2) are quite comprehensive enough, and it is in the spirit of trying to get some kind of certainty as to the reasons why the police can hang on to documents that I move this amendment. I beg to move.

Lord Trefgarne

Subsection (1) of this clause permits the retention of seized articles for as long as is necesary in all the circumstances. Subsection (2) then refers in particular to articles which might be needed for the purposes of evidence at a trial for an offence or for forensic or other investigation or, if they are reasonably believed to have been obtained as a result of an offence, in order to establish the lawful owner. By running these two subsections together, these amendments would prevent the police from retaining articles seized under Clause 19 for any other purpose.

We believe that it would be unsafe to circumscribe the generality of subsection (1) in this way. For example, an article might be retained for use as evidence at a trial, and still be needed for the purpose of appeal proceedings. If these amendments were accepted, however, the police would be obliged to return it as soon as the trial was over.

Another example of the need to retain subsection (1) in its present form is provided in the case not where a person is convicted and appeals, but where he is acquitted or indeed not prosecuted at all. Suppose, for example, that a person is acquitted on a charge of dealing in a controlled drug, which the police originally seized under Clause 19. None of the conditions in subsection (2) would apply, but it would clearly be contrary to public policy for the police to be obliged to return the drugs to him. Such a situation might also arise where a person who was to be charged with murder was found to have a small quantity of cannabis in his possession. It might be decided in the circumstances that no useful purpose would be served by a prosecution for this offence; but again clearly the police should be empowered in law to retain the cannabis pending its destruction.

These examples show that there is a wide range of possible circumstances which subsection (2) does not cover, and that it would accordingly be dangerous to treat subsection (2) as exhaustive rather than merely illustrative of subsection (1). I therefore cannot advise your Lordships to agree to these amendments.

Lord Gifford

As regards controlled drugs, I accept the position, although I am concerned that the rights of the police are left so vague. Certainly so far as drugs and appeals are concerned, I should have thought that it would be possible to include those purposes in the Bill. However, I shall read what the noble Lord has said, and I hope that he too will seek to bring some certainty into these purposes at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 and 79 not moved.]

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 [Arrest without warrant for arrestable offences]:

Lord Elystan-Morgan moved Amendment No. 79A: Page 21, line 2, leave out from ("1980)") to the end of line 4.

The noble Lord said: In moving this amendment, I should also like to speak to Amendments Nos. 79B and 80A, as they really deal with the same point.

Amendment No. 79B: Page 21, line 5. leave out subsection (2).

Amendment No. 80A: Page 21, line 23, leave out subection (3).

As I understand it, under Clause 23 of the Bill five categories of arrestable offence are created. The first category contains offences for which the sentence is fixed by law. The second category, which is the general category, is the category of offences which carry a penalty of five years or more of imprisonment. Thirdly, under Clause 23(2) there are listed five other groups of offences. Fourthly, subsection (3) refers to conspiracy to commit any of the offences in those five groups or any attempt to commit any of those offences or inciting, aiding, abetting, counselling or procuring any such offence.

The last group is the group referred to in subsection (8) of Clause 23 which refers to any power of arrest conferred apart from this section". I apprehend that there is a pot pourri of various statutory powers which constitute the subject matter of that subsection.

As regards the five groups which are listed in subection (2) and as regards the offences of conspiracy, attempting to commit an offence, inciting, aiding, abetting, counselling or procuring in relation to them, which is contained in subsection (3), we on these Benches venture to suggest that it would not essentially weaken this provision for those to be excluded. On the face of it, it may well seem that that is a bold assertion to make, bearing in mind the subject matter of the various provisions.

Perhaps I may deal very quickly with them. Subsection (2)(a) refers to offences under Section 1(1) of the Customs and Excise Management Act 1979. I understand that those include many minor offences, and by and large they are offences which could be said to be minor in character. Subsection (2)(b) refers to offences under the Official Secrets Acts 1911 and 1920 which are not arrestable offences. Again, there is a wide range of offences, some of them fairly trivial.

Subsection (2)(c) refers to offences under Sections 14, 22 and 23 of the Sexual Offences Act 1956, Section 14 being particularly concerned with indecent assault on a woman, which I believe I am correct in saying carries a maximum penalty of two years' imprisonment. Many noble Lords have taken the view for a long time that that is an offence which should carry seven or 10 years' imprisonment, so that the cure to that provision is to up the penalty rather than to include it in subsection (2).

In relation to paragraph (d)—that is the offence of taking motor vehicles or other conveyances without authority, or going equipped for stealing—the same might be said, that the maximum penalties in respect of both those offences could carry five years' imprisonment and upwards. Paragraph (e) reads: Offences under section 1 of the Public Bodies Corrupt Practices Act 1889 (corruption in office) or section 1 of the Prevention of Corruption Act 1906 (corrupt transactions with agents)"— which I believe carry a maximum of two years' imprisonment.

In relation to those matters in the fifth category I venture to suggest that those are cases where there will be weeks or often months of patient research and investigation by police forces. In those circumstances arrest under warrant, as opposed to arrest without warrant, might be a perfectly practicable course.

Therefore on that basis, and with the purpose in mind of seeking to make the clause a much more simple instrument than it is at the moment, it is our contention that subsections (2) and (3) could be excised from the provision without weakening it in any way, provided that the upping of the penalties to which I have referred takes place at a fairly early future date. I beg to move.

Lord Trefgarne

Clause 23 defines what is meant by an "arrestable offence" and delineates the powers of arrest that attach to such offences. However, the fact that arrestable offences carry with them certain arrest powers is only one of the distinguishing features of this category of offences.

Your Lordships have already agreed that Clause 10 should stand part of the Bill and Clause 10(9) defines "arrestable offence". Certain of the more important investigative powers with which the Bill deals may only be exercised if a suspected offence is a serious arrestable offence. For example, the power to authorise road checks, to obtain a search warrant under Clause 8, to detain a suspect without charge for more than 24 hours or to take a body sample for forensic examination may only be exercised if the offence is a serious arrestable offence. Your Lordships will recall that to qualify as a serious arrestable offence the offence must clearly be, first of all, an arrestable offence. The question whether the offence is arrestable is, so to speak, the first hurdle which must be cleared before questions concerning the consequences of the offence are concerned. I hope that this introduction has helped to show the importance of the concept of "arrestable offence".

I turn to the amendments proposed by the noble Lord which seek to remove from this category those offences described in subsections (2) and (3). As is explained in the note on this clause, we have not followed the Royal Commission's recommendations regarding arrestable offences. The Royal Commission proposed that all offences which should be punished by imprisonment on first conviction should be arrestable. In our view this would be far too wide and would catch a large number of offences for which neither the arrest nor other powers belonging to this category are really needed. Instead we have proposed that offences which may be punished by more than five years' imprisonment should be arrestable—broadly speaking, this follows the present law—together with certain offences punishable by a smaller term of imprisonment and the corresponding inchoate offences. The latter offences are set out in subsection (2) and subsection (3) ensures that the inchoate versions of these offences are covered. It is this class of offences which the amendments proposed by the noble Lord seek to delete. As I have explained, the consequences of accepting these amendments would be that the investigative powers reserved to arrestable, and therefore serious arrestable, offences would not be available to help solve such crimes.

I have in front of me a detailed analysis of all the different categories of offence to which the noble Lord referred in his opening remarks, but I hope that I have said enough to make it clear why the offences described should be arrestable and that on reflection the noble Lord will not want to press his amendments.

Lord Elystan-Morgan

We certainly do not intend to press this matter to a Division. I am again disappointed by the rather negative attitude taken by the Minister. I am sure it is my own fault that my efforts have failed to touch that stream of pure charity that we know lies somewhere within the character of the noble Lord the Minister.

Lord Trefgarne

I wonder whether the noble Lord would allow me to make one intervention before he withdraws his amendment, as I think he intends to? I apologise, for I omitted to make one important observation when I was speaking just now.

Owing to an oversight in the drafting of the Bill as introduced, attempts and conspiracies to commit the offences listed in subsection (2) were not ipso facto arrestable in the same way, though they clearly should be. This oversight was corrected during Report in another place when subsection (3) was added. This must be right. The offences of attempting or conspiring to commit an indecent assault on a woman or to procure a girl under 21 for example, need the same enforcement powers as the substantive offence and this subsection shows that the inchoate offences associated with the offences designated as arrestable are themselves arrestable. I apologise for omitting that important point.

Lord Elystan-Morgan

I thought that my amendment had touched that stream of pure charity, but such was not to be the case on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79B not moved.]

The Deputy Chairman of Committees (Lord Airedale)

I have to tell the Committee that there is an error in the printing and that Amendments Nos. 80 and 80A are printed in the wrong order, so I now have to call Amendment No. 80A, but I understand that that is not being moved.

[Amendment No. 80A not moved.]

5.38 p.m.

Lord Trefgarne moved Amendment No. 80: Page 21, line 23, at beginning insert ("Without prejudice to section 2 of the Criminal Attempts Act 1981,").

The noble Lord said: Most of the offences in Clause 23(2) are indictable. Accordingly, attempts to commit them are arrestable by virtue of Section 2(2) of the Criminal Attempts Act 1981. Because some customs and excise offences are purely summary, that provision will not bite on them. Hence the need for Clause 23(3)(b). But we do not wish to cast doubt on the Criminal Attempts Act, and so this saving is desirable. I beg to move.

On Question, amendment agreed to.

Lord Elywn-Jones moved Amendment No. 80B: Page 21, line 36, at end insert— ("and shall in the event of such an arrest ensure that the arrested person is given into the custody of a constable as soon as possible.").

The noble and learned Lord said: Clause 23(4) provides that: Any person may arrest without a warrant—

  1. (a) anyone who is in the act of committing an arrestable offence;
  2. (b) anyone whom he has reasonable grounds for suspecting to be committing such an offence.".

The amendment I move adds at the end: and shall in the event of such an arrest ensure that the arrested person is given into the custody of a constable as soon as possible.".

As your Lordships will have heard and seen, that subsection specifically preserves, rightly in our view, the power of an ordinary citizen to make an arrest without a warrant. In the case of an arrest made by a police officer, the Bill and the draft code of practice make the subsequent procedure quite clear. As yet, at any rate, the Bill does not appear to lay down the procedure to be adopted following a citizen's arrest.

It is our view that it would be sensible to fill that gap and, for the sake of completeness, to state the general obligation on the citizen who has carried out an arrest—not an event which is likely to happen in the daily lives of many of us. He should be required to hand over the suspect to a constable as soon as possible. These arrests, in the main, are carried out by store detectives and they form quite an important part of the total number of arrests, especially in such courts as the Marlborough Street Magistrates' Court, where many of those present have earned an honest guinea before now in the consideration of these cases. I move this as what I submit to be a sensible and necessary amendment.

Lord Trefgarne

I am grateful to the noble and learned Lord for raising this point. I agree with him that there does appear to be a case for placing the existing common law regarding what should happen following a citizen's arrest, on a statutory basis. Given all the protections that we have provided in the case of police powers, it does seem strange to rely upon the common law in the case of a citizen's power. But we must be careful. There may be very good reasons why a person arrested in this way should not be handed over to the police. It may be an instance of an officious store detective whose decision to arrest would be immediately countermanded by a more senior member of staff. It may be a case of simple mistake, either of identity or about the supposed criminal act, where all concerned realise within a very few minutes that they have arrested in error, and so on.

Clause 29(2) recognises that a constable who has arrested a person may subsequently realise that the grounds for arrest no longer exist. It would be a pity if we denied similar flexibility in the case of a citizen's arrest. I undertake to look at the point raised by the noble and learned Lord's amendment and to seek to meet it at a later stage, if we can do so without undermining the possible and proper use of sensible discretion. I do not promise that we shall be successful but I hope that, in the light of the undertaking that I have given, the noble and learned Lord will feel able to withdraw his amendment.

Lord Renton

May I ask my noble friend whether the statement that he has just made is a reflection of existing—indeed of well-established—practice; because if that is so it does not seem necessary that we should legislate to cover the point?

Lord Elwyn-Jones

My Lords, I respectfully agree with the Minister on this. I think that we ought not to rely on the common law to deal with the duty of handing over the arrested person to the police. This ought to be included in the Bill. I am bound to say that in the hypothetical case of a more senior person in the store countermanding the arrest by a junior person, I should have thought that the shop could regulate that and either let the man go or let the senior official in the case take the responsibility of handing over the subject to the police. But, as the noble Lord has undertaken to examine this and recognises the need to fill this gap, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elystan-Morgan Moved Amendment 80C: Page 22, line 7, leave out subsection (8).

The noble Lord said: This is a probing amendment. It is stimulated by a feeling of doubt as to exactly what might be encompassed by subsection (8) of Clause 23. As I said in relation to an earlier group of amendments, that is the fifth category of offences which are arrestable under Clause 23. It would appear from a perusal of the part of the Royal Commission's Report on the Investigation of Prosecution of Criminal Offences in England and Wales dealing with procedure that there is a very formidable list. The reason for raising the matter by way of amendment is this. One of the main objectives of this legislation, and a very laudable objective, was to seek to codify and to bring greater simplification into the law. We well appreciate that total simplicity cannot be accomplished and achieved in legislation of this sort. But it appears that the net result, if Clause 23 becomes law, will be to leave the situation in a far more untidy state than it is at present.

It is, therefore, in the hope that the Minister can, first, give the Committee some indication of the scope of the offences involved—I do not ask for the most minute detail and I am sure that the Committee would not thank me were Ito do so—and, secondly, consider whether it is necessary to have this provision at all. I beg to move.

Lord Denning

May I say a word on this? In common law, there was a power of arrest in regard to felonies but not in regard to misdemeanours, and that difference was almost impossible to disentangle. You could arrest for stealing more than 40 shillings, you could arrest for stealing a sheep or be hanged for it, but you could not be arrested for a misdemeanour such as obtaining money by false pretences, fraudulent conversion and the like. If you went further into the differences between felonies and misdemeanours, you would remember the Tolpuddle Martyrs. All they did was to administer an unlawful oath, and they were guilty of a felony and not only arrested but sent off to Botany Bay, transported for seven years. That is the difference between felonies and misdemeanours and no one could ever tell the difference except by looking up the books at the time to know whether there was a power of arrest or not. We have got almost to the same stage now.

It ought to be fairly easy to know for what offences you can arrest and for what you cannot. What we have got is a new phrase in our English law, "an arrestable offence". We had all that discussed some time ago. All we know about an arrestable offence is that it is something for which you may be sentenced to more than five years. Then we also have all the attempts and the conspiracies, one can be arrested for that. And then, not only that, but we have those which are in (2)(b). But the most comprehensive list of all is in subsection (8): This section shall not prejudice any power of arrest conferred apart from this section". If you want to know what those are, the best place you can try—but I do not know if it is complete—is 15½ pages of this report of the Royal Commission, with about ten offences on every page. You can count them up—goodness knows how many there are. No one knows or can know really what is a power of arrest or not unless he searches through all of these things.

I do not say that there is anything wrong with subsection (8). All these powers of arrest have been granted by Parliament no doubt in its wisdom. I should not like any of them to be taken away, and these added new ones are all perfectly good.

But why cannot something be done—perhaps a handbook, perhaps a code, something—so as to have a list of the offences which are arrestable offences—it is an awful definition. Why cannot we have a book, a schedule, or whatever it may be, just setting out in one list what are arrestable offences? Then we can pick out the serious ones and put a tick against those. At all events, we should have something to go by. I only suggest there should be some clarification like this on the statute book.

Lord Foot

I am tempted to follow the noble and learned Lord who has just spoken. He was rightly complaining of the enormous complexity of the law upon arrest and detention. I would only seek to remind him that four years ago we discussed all these matters in connection with Scottish law. If I may say so, we made a very much better job of it than has been made by this Government in this Bill. If one cares to look at the Criminal Justice (Scotland) Act 1980, one will see that the whole matter of arrest and detention which is dealt with in this Bill in—I have not counted them—about 18 clauses, or two parts of the Bill, are dealt with in the Scottish Act in two clauses only.

There is one clause which deals with what the Scots call detention and we call arrest. That is Clause 3. There is one clause, Clause 3, which deals not only with arrest but with detention in a police station. Clause 3 deals with the right to have someone informed when arrested or detained, as we have in this Bill. The whole matter of arrest and when a policeman is entitled to make an arrest was dealt with in the Scottish Act in one sentence. It is in the first lines of Clause 2, which says: Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—(a) into the offence; and (b) as to whether criminal proceedings should be instigated against the person, detain him and so on, and take him to a police station. Those few lines set out the matter perfectly clearly. Every constable knows precisely when he is entitled to make an arrest and when he cannot make an arrest. All the verbiage which we have in this particular clause that we are discussing is dismissed and got rid of. The law is set out in the plainest and simplest terms.

I cannot help thinking that it was a very great pity that when the Government were framing this Bill they did not pay closer regard to what had been done for Scotland in 1980. I think that the opportunity will come during the course of these discussions to point out some other features of the Scottish Act which provide an interesting contrast with the terms of this Bill; in particular, of course, the fact that in Scotland you cannot hold anybody as a suspect in a police station, without charging him, for more than six hours. Under this Bill, as we know, you can in extreme cases hold a person in detention without charge for a period of 96 hours. But I should be out of order in discussing that at this stage.

It seems to me a great pity that the opportunity has not been taken on this occasion to codify the law—I agree it is most important that we should set out what the law of arrest and detention is: I think that is a most valuable contribution—and it is a great pity that we were not able to devise simpler language in which to express these very important matters.

Lord Renton

The assimilation with Scottish law to which the noble Lord, Lord Foot, has referred could be to a very great extent achieved by deleting the words in the last line on page 20, namely, "for a term of five years" and by deleting subsection (2) on page 21. It does not seem as though it would be very difficult.

I think that the noble and learned Lord, Lord Denning, and Lord Foot have drawn attention to something which really would be desirable, namely, a simplification of the English law with regard to the power of arrest. So that, as the noble and learned Lord has pointed out, those who have the duty to arrest—and even upon the citizen there may be a duty to arrest—will find it easier to know whether they have the power or not. I hope that the words of the noble and learned Lord and of Lord Foot will be heeded.

5.54 p.m.

Lord Trefgarne

I believe I can go a little way to reassuring the noble and learned Lord, Lord Denning, and the noble Lord, Lord Foot, and perhaps also my noble friend Lord Renton. The 15 pages full of powers of arrest in the red book which the noble and learned Lord showed to us are all in fact repealed by Clause 25 of this Bill, in favour of a general arrest power in Clause 24.

On the question of the similarity between our arrangements and those that apply in Scotland, raised by the noble Lord. Lord Foot, the law on arrest in Scotland is, I am told, still somewhat obscure and, indeed, the subject of great argument among Scottish lawyers. The position under Scots law seems to be that there is a common law power to arrest for almost any statutory offence. I am not entirely certain that we want anything quite so sweeping South of the Border. Having said that, the thin trickle of the milk of human kindness from this side of the Committee is about to become a torrent. I am happy to accept the amendment.

A noble Lord

A Daniel has come to judgment.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 [General grounds for arrest]:

Lord Trefgarne moved Amendment No. 81: Page 22, line 10, after ("offence") insert ("which is not an arrestable offence").

The noble Lord said: On behalf of my noble friend Lord Elton, I beg to move this drafting amendment.

Lord Renton

Although this is a drafting amendment and we are told that that is so, it does once more point to the need for the kind of simplification in the law to which reference was made on the previous amendment. I think that we should bear that in mind when considering this purely drafting amendment.

Lord Trefgarne

I apologise if I skated rather lightly over this amendment, in the interests of speed, when I moved it. a moment ago. But the purpose of the amendment is to make it clear that Clause 24 is only concerned with non-arrestable offences. Clause 23 bestows adequate powers of arrest to deal with arrestable offences, and this clause need not apply to them. It is for that reason that I ask your Lordships to agree to it.

Lord Hooson

Should we not discuss Amendments Nos. 81 and 81A together? Amendment No. 81A: Page 22, line 10, after ("offence") insert ("punishable by imprisonment"). If we accept Amendments No. 81 and 81A the provision would read: which is not an arrestable offence punishable by imprisonment". Therefore, the words are really alternative words and it would seem to me that as a matter of procedure we should consider both amendments together.

Lord Trefgarne

I am happy to discuss these amendments together if that would be the wish of your Lordships.

Lord Elton

As I understand it, my noble friend moved Amendment No 81 and that has been put to your Lordships for debate. The noble Lord, Lord Hooson, is perfectly in order to speak to his own Amendment No. 81A. If my noble friend has moved Amendment No. 81, the Chair has not put Amendment No. 81. If the Chair now puts Amendment No. 81, the noble Lord will be perfectly in order in speaking to both Amendments Nos. 81 and 81A and we shall all be back on the track.

The Deputy Chairman of Committees (Baroness Wootton of Abinger)

The Question is, That Amendment No. 81 be agreed to?

Lord Hutchinson of Lullington

I should like to speak to Amendment No. 81A. This, having regard to what has already been said about the powers of arrest, is another attempt to clarify the confusion which arises in this Bill over powers of arrest. The amendment seeks to insert the words "punishable by imprisonment", so that the clause will read: Where a constable has reasonable grounds for suspecting that any offence punishable by imprisonment has been committed". The situation here is that, as we have seen already, the powers of arrest that have been dealt with in the previous clause are powers which are considerable. The Bill preserves and extends the powers, as we have seen, under the Criminal Law Act. It adds all the offences under Clause 23(2); it preserves the statutory powers of arrest under Schedule 2 and the common law powers of arrest; and it adds the powers of arrest under Clause 26 for the purpose of taking fingerprints, which we shall come to later. So your Lordships will see that already there are very substantial powers of arrest in this Bill. It is essential that your Lordships should appreciate that all the offences that really matter, so to speak—offences such as wounding, assaults, public order offences, thefts, receiving, taking and driving away cars, housebreaking implements, drugs, firearms, the Official Secrets Act, immigration, breaches of the peace and so on-are covered. Then suddenly, this clause provides a great extension of the powers of arrest because it is giving powers to arrest for any offence—any offence known to the law in certain ircumstances—whenever it appers to a constable that to serve a summons would be impracticable or inappropriate because of certain conditions which are set out in the clause.

Therefore we have here, in addition to all the powers of arrest that we have seen, this extra power of arrest in relation to any of 10,000 offences in the criminal law, which is a restricted power of arrest covering all offences—offences which are so trivial that they carry at the moment no penalty of imprisonment, such as, for instance, dropping litter in the street, or perhaps urinating in the street, or picking a wild flower which you are not allowed to pick, and trivial matters of that sort. I would suggest to your Lordships that this is a very important amendment because, I would submit, this power is far too extensive as it is.

What are the conditions? They are set out in Clause 24(3) (a), (b). (c), (d) and (e). I will not go through them all, but they are basically that the constable has reasonable grounds for doubting whether a name furnished by the person concerned is his real name and for doubting whether an address furnished by the person concerned is satisfactory for service. Then there are five different headings which could be called "preventive arrests". These are that the constable should have reasonable grounds for believing that the arrest is in the circumstances necessary to prevent various things happening: not that he sees an offence committed, but that he can predict that certain offences, he has reasonable cause to believe, may take place. Those are set out in (i) to (v), and they include causing injury to himself or to any other person, causing loss or damage to property, causing an offence against public decency and causing an unlawful obstruction of the highway. These are all matters we shall be looking at more closely in a moment.

One must say in passing that it is difficult to see what possible criteria there can be in an officer's mind for this extension of the powers of arrest. Take the perfectly simple case of having doubt as to whether the address given is in fact a genuine address or is a reasonable address for the purpose of serving a summons. Take the case of a police officer who stops somebody for a trivial offence in the street and says, "Can I have your name and address?", and receives the reply. "My name is Robinson and I live at an address in Durham." The man may be asked whether he has a telephone number, and he says, "No, I don't have a telephone; I am living with some friends up there." How on earth is a police officer going to decide whether he has reasonable grounds for doubting the address or the name, in those circumstances, in relation to trivial offences?

Your Lordships will appreciate, for instance, that this power has never been given to the police before. There are thousands and thousands of trivial offences: one can give examples quite easily. The justification for this power is that people can snap their fingers at a police officer in the street if they are stopped for some trivial offence, and they can give a false name. That has been the situation in relation to trivial offences for hundreds of years. Your Lordships will appreciate, for instance, to take one offence which, in London, goes on day in and day out—travelling on the railway without having paid the proper fare—that people are stopped on the way out of railway stations day in and day out. Nobody dreams of arresting a person in those circumstances. What happens is that in fact the inspector or the police officer in the street do take measures to verify the name and address, if they can, on the spot, by asking for some relevant paper—a driving licence, or whatever it is they may have in their pocket.

I would suggest to your Lordships that this power of general arrest for any trivial offence that you like to name is a power (and we are looking, are we not at all the powers in this Bill: on the one hand, whether they are necessary to the powers of the police, and, on the other hand, whether they are powers which are open to abuse) which, if given to the police all over the country, is open to abuse because it would be the easiest thing in the world, once you are armed with this power, to go up to anybody in the street about whom you may have some information, or who may be a nuisance, and say, "I doubt whether this is a proper name or address; you had better come along to the police station while we verify it". Then you can arrest the person, take him to the police station and keep him in custody for periods while an inquiry is made. That is, I would suggest to the Committee, really an objectionable procedure, and one which is very much open to abuse.

May I say, finally, that the Royal Commission was split on this matter. There were those who were in favour of some power of this kind, but they were very careful about it. They said that if such a power was to be granted it should be granted only on the basis that it should be used only on very rare occasions; that the officer must in fact see the offence committed; and that there must be a specific refusal to give the name or the address. So careful were they that they added that they would expect that, in those circumstances, the person stopped would write in the officer's notebook the name and address that he was giving. So a minority of the Royal Commission were strongly against this power. Those who were for it, were for it only with these very strict limitations. The second amendment is one which properly limits this power, whereas the first amendment leaves it far too extensive.

6.10 p.m.

Lord Hooson

I rise to support my noble friend Lord Hutchinson, but, looking at the procedure, surely Amendment No. 81A should precede Amendment No. 81, because the words "punishable by imprisonment" should precede the words "which is not an arrestable offence", since it is conceivable that the Committee may accept both amendments. It would therefore be logical for Amendment No. 81A to be taken first.

I want to speak very briefly on this point and remind your Lordships that in the famous case of Christie v. Leachinsky in 1947, Lord Simonds said: The liberty of the subject and the convenience of the police are not to be weighed in the scales against each other. This must be right and I suspect that this power has been drafted so widely to deal with virtually anti-social behaviour or what is regarded as possible anti-social behaviour.

Let us consider for a moment what "arrest" means. Arrest is a deprivation of liberty and it is a very serious matter. Also, if this Bill is passed, someone can be detained without recourse to any senior officer for 24 hours and kept incommunicado, the finger prints of the person arrested can be taken and so on, and is that all to be allowed for any offence, however trivial? When one drops litter in the street, is that consequence to follow?

If one knows that an offence has been committed and one sees a dozen young men in the vicinity who are all rushing in the direction of a cricket match or a football match, and the officer regards them all as relevant persons, are they all to be subject to arrest for a relatively trivial matter? Surely the power under this clause is far too wide and we should limit it in some way. The most effective way of limiting it is surely to put in the words "punishable by imprisonment". It does not matter how short that sentence may be; there should, at least, be some level to the offence. This amendment moved by my noble friend would meet the bill.

Lord Donaldson of Kingsbridge

To clarify the situation, it seems to me that we have to vote against Amendment No. 81 before we can vote for Amendment No. 81A. Is that correct?

Baroness Phillips

I should like to follow what has just been said. We have been listening to two noble and learned Lords and I do not have that privilege, but I should like to suggest that it is unfortunate to keep referring to a trivial offence. It may be trivial to the person who is not concerned with the offence, but when I have been sitting as a magistrate I have found that offences which were described as trivial were certainly not trivial to the victim. If the noble Lord wants an example, I suggest we consider "causing loss of or damage to property". In the Central London courts, we used frequently to see that two or three young people, generally young men, were arrested, because they were hanging around Piccadilly Circus station, Oxford Street or Westminster Abbey in order to rob people—and, indeed, they did rob people. I always thought that this was one of the best methods of preventing an offence and it seems to be covered by this clause. It may or may not be trivial to be robbed of your purse, your wallet or your handbag, but anybody who has experienced it would certainly not regard it as trivial—

Lord Hooson

Will the noble Baroness give way? She appreciates, does she not, that if one attempted to rob somebody it is punishable by imprisonment for a very long term?

Baroness Phillips

These people have not been seen to be attempting to rob. That is the whole point. I thought the noble Lord was referring to paragraph (d).

Lord Hutchinson of Lullington

There is still a power of arrest, if there is an attempt to rob.

Lord Denning

May I speak in regard to Amendment No. 81A? I should like to take the illustration which my noble friend Lord Hutchinson took of travelling on a railway without having previously paid your fare and with intent to avoid payment of the fare. I have prosecuted in hundreds of those cases. Under that Act, there was a power of arrest if the man failed to give his name and address and a similar provision has been put in many statutes in regard to what might be called trivial offences. In other equally trivial cases there has not been such a power. I have met it in the course of my experience. In some cases, you have a power of arrest if someone does not give his name and address, and in other cases you have not. At all events, the law ought to be made uniform in regard to all these trivial offences.

I would not confine it to offences punishable by imprisonment. The case I took, of the man travelling on the railway without paying his fare, is not punishable by imprisonment. Obviously, the sensible course if someone has not paid his fare is for the inspector or the police constable to ask him, "Will you give me your name and address?" If he refuses to give them, it is his own fault. People give all sorts of names and addresses and there ought to be a remedy, rather than that a man, having committed an offence, should go scot-free with no one knowing where he is. I should like to suggest that the principle of this clause is right. It would limit the power much too much to confine it to offences punishable by imprisonment, so I suggest that this amendment be not accepted.

Lord Trefgarne

I am grateful to the noble and learned Lord for his support for the line with which I hope to persuade your Lordships. The amendment moved by the noble Lord, Lord Hutchinson, and supported by the noble Lord, Lord Hooson, would limit the power of arrest under this clause, as the noble Lord said, to offences which are punishable by imprisonment. It is perhaps ironic that it is precisely these offences which the Royal Commission recommended should be arrestable offences, and so subject to the greater arrest powers contained in Clause 23: that is in paragraph 383 of the report. I appreciate the concern expressed by the noble Lord, Lord Hooson, and I think the noble Lord, Lord Hutchinson, too, that the powers of this clause should not be used in the case of trivial offences. However, I believe that the noble Lords are wrong, both on the question of principle and in the way they have attempted to define which offences are serious.

Two principles underlie this clause: first, that the police should be equipped with the powers necessary to enforce the law; and, secondly, that the citizen should not be deprived of his liberty, except when this is absolutely necessary. For the type of relatively minor offences which are the noble Lord's main concern, the usual way for the police to proceed should be, as at present, by way of a summons. Indeed, the Bill ensures that this is the expectation more often than at present. But in some circumstances this will be impracticable and inappropriate. If the law is to be enforced and society protected—and this, I think, was in the mind of the noble Baroness, Lady Phillips—the police must have the power of arrest in these circumstances. There is no sense in Parliament agreeing that something should be a criminal offence if there is no way that the police can enforce this decision. To this end, we have adopted the necessity principle proposed by the Royal Commission. An arrest may only take place if one or more of the conditions set out in subsection (3) apply.

I should emphasise that subsection (1) makes it quite clear that arrest must only be used if service of a summons is not feasible. Arrest is a corrective power which we hope will not be needed, but the power should be available if circumstances justify its exercise. Nor should we forget that the citizen will be further protected by the safeguards contained in Clauses 27 and 29 which we shall shortly be considering. These will ensure that a person is aware under which of the conditions set out in subsection (3) he has been arrested. If the fact of arrest leads him to decide to provide the information required under paragraphs (a) to (c) of the subsection, Clause 29(2) will ensure that he is released promptly. The clause will provide the police with the necessary power to see that the law is obeyed, but it also, for the first time in our law, lays down the principle that the police may arrest a person only where this is necessay.

Finally, I should point out that a wide range of offences which are not punishable by imprisonment are nevertheless far from trivial. For example, operating an unlicensed sex shop is not punishable by imprisonment. The power of arrest for such an offence on failure to give a name and address, which is bestowed by paragraph 24 of Schedule 3 to the Local Government (Miscellaneous provisions) Act 1982, will be repealed by Clause 25. We believe that it should be replaced by Clause 24. Similarly, your Lordships will recall that the offences created by the Video Recordings Bill are not imprisonable. The power of arrest for these offences, which Clause 18 of that Bill bestows if a name and address are not given, will be repealed by Clause 25 of this Bill and we intend that it should be replaced by Clause 24.

Opinions will differ, but in my opinion these are definitely not trivial offences. The police should have the power to arrest for these offences, if service of a summons is inappropriate or not practicable. I therefore urge your Lordships to reject this amendment. I hope that your Lordships will at the same time accept the earlier amendment which I put before the Committee.

Lord Hutchinson of Lullington

Does the noble Lord—

The Deputy Chairman of Committees

The Question is that Amendment No. 81 be agreed to. We have to take Amendment No. 81 first.

Lord Trefgarne

If the noble Lord, Lord Hutchinson of Lullington, wishes to put further points to your Lordships, I believe that it would be appropriate for him to do so before the Question is put.

Lord Hutchinson of Lullington

The noble Lord the Minister said that the Government had adopted the Royal Commission's necessity principle. May I ask him whether he agrees that the Royal Commission supported this power only with the very strict reservations which I have already enumerated: that the power should be given to a police officer only if he saw the offence being committed and if there was a refusal to give the name and address.

Lord Trefgarne

I cannot claim that we have adopted every word and syllable of the Royal Commission's proposals, but we have gone a little way along the line which they suggested, in the manner I mentioned earlier.

The Deputy Chairman of Committees

The Question is that Amendment No. 81 be agreed to, I have to point out that if Amendment No. 81 is agreed to, it will mean a slight modification of the wording of Amendment No. 81A. Amendment No. 81 reads: Page 22, line 10, after ("offence") insert ("which is not an arrestable offence")".

6.25 p.m.

On Question. Whether the said Amendment (No. 81) shall be agreed to?

Their Lordships divided: Contents, 103; Not-Contents. 76.

Airey of Abingdon, B. Cox, B.
Auckland, L. Craigmyle, L.
Avon, E. Cullen of Ashbourne, L.
Belhaven and Stenton, L. Dacre of Glanton, L.
Beloff, L. Daventry, V.
Belstead, L. De La Warr, E.
Birdwood, L. Denham, L. [Teller.]
Boardman, L. Denning, L.
Boyd-Carpenter, L. Drumalbyn, L.
Broadbridge, L. Eccles, V.
Brougham and Vaux, L. Elliot of Harwood, B.
Bruce-Gardyne, L. Elton, L.
Buckmaster, V. Faithfull, B.
Caithness, E. Fanshawe of Richmond, L
Cameron of Lochbroom, L. Ferrier, L.
Campbell of Alloway, L. Fraser of Kilmorack, L.
Cathcart, E. Gainford, L.
Cockfield, L. Gardner of Parkes, B.
Coleraine, L. Glenarthur, L.
Colville of Culross, V. Gormanston, V.
Colwyn, L. Gray, L.
Cork and Orrery, E. Gridley, L.
Grimston of Westbury, L. Mowbray and Stourton, L.
Hailsham of Saint Marylebone, L. Napier and Ettrick, L.
Newall, L.
Halsbury, E. Northchurch, B.
Hanson, L. Nugent of Guildford, L.
Harmar-Nicholls, L. Orkney, E.
Hood, V. Pender, L.
Hornsby-Smith, B. Portland, D.
Hylton-Foster, B. Rankeillour, L.
Inglewood, L. Reay, L.
Kilmany, L. Reigate, L.
Kinnaird, L. Renton, L.
Kinnoull, E. Renwick, L.
Lane-Fox, B. St. Davids, V.
Lindsey and Abingdon, E. Saltoun, Ly.
Long, V. Savile, L.
Lucas of Chilworth, L. Skelmersdale, L.
McAlpine of West Green, L. Somers, L.
McFadzean, L. Stamp, L.
Macleod of Borve, B. Strathspey, L.
Mancroft, L. Swinfen, L.
Margadale, L. Swinton, E. [Teller.]
Marley, L. Tranmire, L.
Marshall of Leeds, L. Trefgarne, L.
Maude of Stratford-upon-Avon, L. Trumpington, B.
Vaux of Harrowden, L.
Mersey, V. Vickers, B.
Milverton, L. Vivian, L.
Molson, L. Westbury, L.
Montague of Beaulieu, L. Whitelaw, V.
Mottistone, L.
Airedale, L. Jeger, B.
Amherst, E. Jenkins of Putney, L.
Ardwick, L. John-Mackie, L.
Attlee, E. Kilbracken, L.
Avebury, L. Kilmarnock, L.
Aylestone, L. Lockwood, B.
Balogh, L. Longford, E.
Beaumont of Whitley, L. Lovell-Davis, L.
Bernstein, L. McGregor of Durris, L.
Beswick, L. Mayhew, L.
Birk, B. Meston, L.
Bottomley, L. Milford, L.
Briginshaw, L. Mishcon, L.
Brockway, L. Molloy, L.
Caradon, L. Monson, L.
Carmichael of Kelvingrove, L. Pitt of Hampstead, L.
Collison, L. Plant, L.
Crowther-Hunt, L. Ponsonby of Shulbrede, L. [Teller.]
Dean of Beswick, L.
Diamond, L. Prys-Davies, L.
Donaldson of Kingsbridge, L. Roberthall, L.
Elwyn-Jones, L. Scanlon, L.
Elystan-Morgan, L. Seear, B.
Ewart-Biggs, B. Sefton of Garston, L.
Foot, L. Stallard, L.
Gallacher, L. Stedman, B.
Gifford, L. Stewart of Alvechurch, B.
Graham of Edmonton, L. [Teller.] Stewart of Fulham, L.
Stoddart of Swindon, L.
Grey, E. Stone, L.
Grimond, L. Tordoff, L.
Hampton, L. Underhill, L.
Hanworth, V. Wade, L.
Hatch of Lusby, L. Wells-Pestell, L.
Hooson, L. Wigoder, L.
Houghton of Sowerby, L. Winchilsea and Nottingham, E.
Howie of Troon, L.
Hughes, L. Winstanley, L.
Hutchinson of Lullington, L. Winterbottom, L.
Jacques, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.33 p.m.

Lord Hutchinson of Lullington had given notice of his intention to move Amendment No. 81A:

[Printed earlier.]

The noble Lord said: We took the view that this amendment and the previous amendment ought to have been on the Marshalled List in a different order—the other way around. But having regard to the vote that has just been taken, I propose not to move this amendment but to return at Report stage with a reasoned amendment which will take account of the new words which have been inserted.

[Amendment No. 81A not moved.]

Lord Gifford moved Amendment No. 81 B: Page 22, line 20, after ("name") insert ("or address").

The noble Lord said: In moving this amendment, I will speak also to Amendments Nos. 82C, 82F, and 83D: Amendment No. 82C: Page 22, leave out lines 26 to 27. Amendment No. 82F: Page 22, line 30, leave out ("a satisfactory address for service") and insert ("his real address"). Amendment No. 83D: Page 23, line I, leave out subsection (4). These amendments appear in different parts of the Marshalled List but they form a group of amendments which are designed to cover something of the same point as that raised by the noble Lord, Lord Hutchinson of Lullington, but to present to the Committee a different solution for the grievance that he raised, and one which I hope will be more broadly acceptable to the Committee.

The amendments focus on the Bill's provisions concerning people who have committed a summary offence and who do not have, in the Bill's terms, "a satisfactory address". So far as the Bill is concerned, as the noble Lord, Lord Hutchinson, pointed out, it provides that where someone not only refuses to give their address, or not only gives an address which the constable believes is a false one, but gives an address which the constable believes is not satisfactory, then the person may be arrested. A satisfactory address is defined at the top of page 3 of the Bill as one that it appears to the constable the relevant person will be at for a sufficiently long period for it to be possible to serve him with a summons". The service of a summons can take months, and we are talking therefore about an address which has a permanence of something like six months or more.

It must immediately be obvious that there will be all kinds of people who will appear to constables not to have satisfactory addresses for service. To introduce one very broad category, there is the example of tourists. If someone's address is given as an hotel or as a camping site and they are foreign, it will be plain that they do not have an address at which they will be resident for a sufficiently long period of time to be served with a summons. As I understand it, the expectation under the Bill is that tourists who commit summary offences—which may be parking offences, litter offences, offences against by-laws in parks, and all kinds of other offences—will be arrested and kept overnight in custody, and then brought before a magistrates' court the next morning. All that is not possible at present unless the person concerned refuses to give his name and address.

Another large category is that of young people living on their own who may not have very permanent lodgings. They may have come to London or another big city and be unable to specify a person to accept service of a summons on their behalf. They may not want to give the address of their parents; or they may have separated from their parents; or they may have no parents. They, too, are likely to be kept in custody overnight for any offence, however small it may be—such as parking on a double yellow line.

My amendments seek to remedy and limit that state of affairs by deleting all the references to a satisfactory address for service and by substituting in Clause 24(3)(c) a provision that the constable can arrest if he has reasonable grounds for doubting whether an address furnished by the relevant person is his real address". If the constable believes that it is a false address, he can arrest. But if he is satisfied that it is a real address, even if only temporary, then he cannot arrest. That is in line with existing law.

I have read through the 15 pages of the report to which the noble and learned Lord, Lord Denning, referred a short while ago, where there are powers of arrest for a number of summary offences. They are set out in Table 9.3. In nearly every case the powers are given if the person fails to give his name and address, or refuses to give his name and address, or refuses to give them to the satisfaction of the constable. None of the existing powers of arrest include this new power to arrest if the address is temporary—if it is a genuine address but a temporary one. That is a new extension to the present law and I hope that the Committee will think long and hard before accepting that it should be introduced into the law.

They will. I hope, as will your Lordships when you think about this consider what was said about this point by the Royal Commission in its report at paragraph 3.86. It is of importance to know exactly how the Commission put this: Where there is no power of arrest without warrant for an offence, generally the police are able to proceed by way of summons, or by application for a warrant to arrest (the provisions for which we recommend should be retained). But where a person refuses to give his name and address and the police do not know it, that person can in effect prevent the law from being enforced because it is not possible to serve a summons upon him. Two of us take the view that this problem is not such as to justify making available the power of arrest, that is the power to deprive a person of his liberty, for offences which cannot carry a prison sentence. The majority accepts that this may be a very rare occurrence, but considers that the police should have some means available to them of dealing with the situation when it arises, since otherwise the law can be openly flouted". Accordingly, it recommends that if a police officer actually sees an offence being committed for which he has no power of arrest without warrant, and if he does not know the offender and the offender positively refuses to give his name and address or an address where a summons may be served upon him, the officer should have the power to arrest for the offence concerned.

The recommendations of the Royal Commission were limited to a general power of arrest under certain conditions where there had been a refusal to give the name and address. The effect of my amendments is to take the matter a little wider than the Royal Commission in favour of the police. Their effect would be to allow the police to arrest if they did not know and could not ascertain either the name or the address of the person. That is the effect of Amendment No. 81 B. And it would allow the police to arrest if the officer had reasonable grounds for doubting whether an address furnished by the relevant person was his real address; in other words, if the police officer thought it might be a false address. That would duplicate the existing provisions where there are powers of arrest for summary offences.

It would not introduce this very dramatic and very considerable extension of the law where a great number of people cannot show to a police officer that they have not only a real address but a real permanent address. It puts every tourist and every young person in transit or travelling in danger of being arrested for very minor offences which could and should be dealt with by way of summons. Therefore, I ask the Committee to recognise that they should accept these amendments and not allow this big extension in the way which the Bill provides. I beg to move.

Lord Elton

In view of our exchanges on the last piece of business, I just wonder whether the noble Lord, Lord Hutchinson of Lullington, is interested in speaking to his two amendments to Clause 24 which, I think, are Amendments 82A and 82D which strike in the same ground.

Lord Hutchinson of Lullington

I do not intend to move them.

Lord Elton

Then I hope what I say is not unduly extended by the undue anticipation that the noble Lord was going to move his amendments.

Paragraphs (a) to (c) of subsection (3) set out the first three criteria which permit an arrest to take place under this clause. Fairly briefly, they are that the person concerned fails to provide his name and address where a summons may be served or if it is reasonably believed that the name and address given are false. If I can first deal with the case where it is reasonably believed that information provided is inadequate for the service of a summons, whether because the name is false or because the address will not do for the service of the summons, concerning Amendments 82A and 82D. which in fact I am now invited to pass by—and I shall endeavour to do so, but it does make it difficult not to avoid leaving out things your Lordships will want to hear but I will try to save time and leap straight to the point—there is nothing new in principle about the power provided. There are large numbers of offences which at present carry a power of arrest if a person reasonably suspected of committing that offence fails to satisfy a police officer as to his name and address. Noble Lords will see the full list in Table 9.3 of Appendix 9 to the Royal Commission's Law and Procedure volume.

All that the clause does is to apply to all offences a necessary and, in our view, sensible reserve power which is currently confined to a haphazard collection of offences. Furthermore, the test is an objective one. The clause provides that the police officer must have reasonable grounds to doubt the correctness of a name and address or the length of time for which a person will be staying at an address he had given before the arrest power became available. Groundless doubts will not be sufficient; so a person will not be required to prove his name and address to a police officer; the onus will be on the police officer to show grounds for disbelief. There is, therefore, no question of people having to carry passports or other identifying documents.

Existing powers of arrest or a failure to give a name and address cause no particular problems in practice. Exactly the same point arises in relation to addresses. An offender should not be able to escape arrest by the simple device of nominating Fairyland or Queer Street as an address for the service of summons—unless, of course, he actually lives there.

This takes us on to the concept of "a satisfactory address for service" which is attacked in the amendments proposed by the noble Lord, Lord Gifford. But all his amendments appear to me to do is to widen considerably the power of arrest under the clause. As presently drafted, a person does not have to provide his own address, only one where service of a summons can be accepted on his behalf. This is the concept of "a satisfactory address" which the noble Lord's amendment would delete. The clause simply reflects the rules for serving a summons contained in the Magistrates' Rules. In place of this the noble Lord proposes that the suspect must give his own address to avoid arrest. By limiting the suspect's discretion, this must increase the possibility of an arrest taking place.

That is the abstract concern, but the concrete concern is this. The provision that is proposed would discriminate against homeless people, because a homeless offender under the noble Lord's amendment would have to be arrested. At present, of course, he could give the address of (say) his social worker, and this is a fairly normal procedure. I could continue at some length, but I think that that is at the nub of the noble Lord's concern and I will see how he responds to that.

Lord Gifford

I am very grateful to the noble Lord the Minister for giving me the chance to ask one or two questions. I accept that if a person has no address at all, provision in the Bill may have to be made, but the noble Lord has not, I think, addressed himself to the other consequences of the Bill which the amendment does in fact seek to rectify. If someone has a real address at, let us say, a local inn where he is staying as a tourist, under the Bill he could be arrested because it was not a satisfactory address for service. First of all, am I right in saying that that is so, and that it is a new power given which does not exist at the moment? Under my amendment he could not be arrested because he gave his genuine address, which is good enough under the existing law. Is there not a very radical departure under the Bill, which the Royal Commission did not recommend? Will the noble Lord the Minister explain to the Committee whether or not I am right in saying that the Bill does extend the law very considerably?

Lord Elton

I hope I can satisfy the noble Lord. If we can take the case of a suspected offender, he does not have to give a conventional, permanent address. The address can be that of a hostel where the person is staying, for example, or even a hotel if the person is staying there for any substantial period. The constable will ask him how long he is going to be there. The Thames Valley police have even suggested that Greenham Camp is a suitable address, although that seems to me to take what the noble Lord, Lord Gifford, might regard as a more optimistic view of the future than I do. The extension of the law promoted by the noble Lord is designed specifically to deal with the inability of the police to prosecute travellers such as gipsies for offences—particularly serious motoring offences—which they commit. I do not think it is designed to do that but it would have that effect.

The tourist can of course give his own home address. He does not have to give the address where he happens to be at the time if he does not want to. If he is only there for a couple of nights he can say to the constable, "How long ahead do you want to know where I will be?" The tourist can then tell the policeman. If in fact the man is moving house or going to be away for six weeks during the period when the summons may be delivered at another address, it seems reasonable that he should be able to give the address so that the summons can be served at the address where he will be and not at what one might call his registered postal address.

Lord Airedale

The Minister continues to say that the person must be at the address for a sufficient period, or words to that effect. But what about the well-to-do tourist who is accused of some summary offence and is spending that night in a hotel in Park Lane and leaving Heathrow at four o'clock the next day for Rome? The noble Lord, Lord Gifford, is right. That person is liable to spend the night not in his hotel in Park Lane but in the police station. What is the sense of that?

Lord Elton

Your Lordships are making very heavy weather of what I regard as a fairly simple point. The person can perfectly well give his home address if he wants to do so. If there are forwarding arrangements, as long as the constable is satisfied that the person will get the summons, that is all this is for. It will enable the constable not to arrest somebody for giving an unsatisfactory address simply because it happens not to be his home address.

Lord Airedale

If his home is in the United States, is that all right?

Lord Elton

I understand not; but I imagine, equally, that one would have to exercise discretion as to how far one pursues a trivial offence in order to bring to book a foreign visitor who is about to return to a foreign country.

Lord Gifford

The point is that there is a danger that police officers will pursue tourists, particularly the not so well-to-do tourists, over offences of this kind —parking offences, driving offences, dropping litter, or whatever it may be. Tourists will find themselves spending nights in the cells. We deplore this happening in other countries where tourists are arrested for trivial offences concerning driving, and so on. It will happen here under this Bill. I hope the noble Lord will appreciate our concern and agree to look again at the clause. I am not saying that my amendment has it absolutely right—the noble Lord made a point about homeless persons—but the position of tourists and transients is completely changed by this Bill in the way the noble Lord, Lord Airedale, and I have said.

Lord Boyd-Carpenter

Is the argument of the noble Lord, Lord Gifford, therefore, that the tourist who commits, say, a serious offence should get away scot-free?

Lord Gifford

Not serious, because all serious offences would either be arrestable under Clause 23 or they would come under the various important provisions in Clause 24(3)(d). The noble Lord will see that for all kinds of offences which involve injury, damage to property, offences against public decency and obstructions of the highway a person can be arrested irrespective of the permanence of the address. There are a number of offences which the noble Lord may have in mind which will fall within those provisions. The present law is that for offences which are not relatively serious—for example, parking offences, dropping litter, picking wild flowers or breaching by-laws—a tourist can be booked and summoned only if it is possible, and it may be that the tourist will go free. The Minister has not told us of any great scandals taking place where tourists cannot be served with summonses. It may be that there are. This is a point of principle to which we are seeking to address ourselves in this amendment.

Lord Boyd-Carpenter

Disregarding for a moment the degree of seriousness of the offence—and I agree that the more serious offences are covered—there are some offences which some of us might think were reprehensible. The noble Lord should face up to this. If he presses his amendment he is proposing, in the case of the other sort of offences, to give complete immunity to a tourist simply because he is a tourist. I am very much against that.

Lord Elton

My noble friend has put the point, very succinctly, which I was going to make myself at greater length.

Lord Boyd-Carpenter

I am sorry.

Lord Elton

No, I am much obliged to my noble friend for speeding up the business of the Committee and bringing us to a consensus. The noble Lord, Lord Gifford, referred to the offence of obstructing the highway. I presume he is aware that it is now an arrestable offence and that a foreigner can now be arrested for it. The other point I should have made to the noble Lord, and which he may be aware of, is that one cannot serve a summons abroad anywhere. Therefore, my noble friend is right. Either the foreigner who gives a foreign address has to remain in this country to receive the summons, and thus be brought to justice, or he must be let go. The noble Lord's amendment would mean that he would always have to be let go.

Lord Gifford

That is the present position. With great respect, the noble Lord is misleading the Committee when talking about obstructing the highway. Obstruction of the highway is a ground for arrest under paragraph (d) of the general arrest conditions. I am not seeking to interfere with that. All kinds of other serious offences are arrestable, whether or not it is a foreigner or a tourist who commits them. The point I am asking the noble Lord to look at again is whether it is necessary to put tourists under the possibility, or probability, of being arrested for offences which all noble Lords would regard as trivial because there is not a satisfactory address for service. That is a matter which is totally new.

Lord Mishcon

Perhaps I can briefly assist the Committee in this way. The noble Lord the Minister will I think understand that there is concern about this matter and the treatment of tourists and less well-off people. In the circumstances, will he consider between now and Report not just the amendments but the possibility—I do not say that this will commend itself to everyone—of an insertion in the code of practice that the power of arrest in regard to these matters will be exercised only with due discretion and would not cover trivial offences of the nature that my noble friend has very properly brought before the Committee? If the Minister will give that assurance I have an idea that my noble friend Lord Gifford, in view of what he has said, will take a certain course.

Lord Elton

The noble Lord is always anxious to help, and I am grateful to him for it; but, with the greatest respect. I think that the boot is on the other foot. The noble Lord, Lord Gifford, has put forward an amendment which would have the effect of protecting the wealthy foreigner or tourist and imperilling the homeless and the vagrants. This seems to be so out of tune with his own position in politics and with what the Bill seeks to achieve that it is for him to reconsider rather than the Government.

Lord Gifford

I am upset that the noble Lord does not seek at all to meet the point made by myself and by the noble Lord, Lord Airedale. We shall have to return to it at a later stage, when I hope the noble Lord the Minister will look at it. I accept the suggestion that there may be an improved way of meeting the point that I seek to make, and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Trumpington

I think it would be convenient if I announced to the Committee that before resuming the House we shall not return to the Committee stage of this Bill until a quarter to eight. I beg to move that the House do now resume.

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

House resumed.