Police and Criminal Evidence Bill

HL Deb 05 July 1984 vol 454 cc462-510

House again in Committee on Clause 24.

Lord Elton moved Amendment No. 82: Page 22, line 21, after ("be") insert ("readily").

The noble Lord said: I beg to move Amendment No. 82. This refers once more to the question of the address. As drafted, the Bill would require the police constable to go to very great lengths to discover whether or not the address was the correct address. He would have to search the electorial roll and so on. Plainly that is not what we intend in the Bill. So instead of saying, on page 22, line 21, that the address "cannot be ascertained by, the constable", we want to say "cannot be readily ascertained by the constable". It is very nearly a drafting amendment but not quite.

Lord Mishcon

I am not quite sure that it is just a drafting amendment. It really is an amendment that carries this matter much further, in the sense that it is not covering a situation where the name and address are not available. The qualification about not being readily available means that the police officer presumably need not take very much trouble to try to find out what the name and address is or to check it. The noble Lord the Minister knows the views expressed on this side of the House about the general tenor of this part of the Bill, but I think the Bill was much more acceptable in its original state without the insertion of the word "readily". I think that can cause a lot of trouble, with a police officer saying, "Well, it was not readily available and I interpreted "readily" as being the very second that I asked for it". I do not want to carry the argument to a facetious end and reduce it to an absurdity but at this moment I am wondering what would happen if the poor man stuttered.

Lord Elton

If the poor man stuttered I should hope the constable would treat him and his affliction with the respect that they deserved. The point is that paragraph (a) of subsection (3) as drafted will permit an arrest to take place if an offender's name cannot be ascertained by the constable concerned. We believe that this is too vague and is open to abuse on the part of offenders. I understand the noble Lord is anxious that there shall be no abuse on the part of the police. However, if an offender refused point blank to give his name on the spot, the officer would, in principle, as the Bill is now drafted, by a wholly unreasonable expenditure of time and effort, be able to establish it. He could discover if there was anybody in the district who knew him or—

Lord Mishcon

I apologise to the noble Lord for intervening. It is only because we are so anxious to get on. I suppose none of us wants to argue about semantics, but the noble Lord the Minister so appositely mentioned the word "reasonable" in his answer. If he had said that it was not "reasonably" instead of "readily", I would have thought that it might be more acceptable. If he would say that, having heard the brief discussion that has taken place before an attenuated Committee, there could possibly be consideration of the use of the word "readily" and other alternatives, or leaving the Bill where it stood, my noble friends and I would certainly not wish to waste further time.

Lord Elton

I shall, of course, look at this before the next stage if something like "reasonably readily" is what is in the noble Lord's mind. I never wish to encourage your Lordships to too much optimism when I take something away, but it would be unreasonable of me not to look at this again.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Aylestone)

If Amendment No. 82A is agreed to, I cannot call Amendment No. 82B.

[Amendment No. 82A not moved.]

Lord Elystan-Morgan moved Amendment No. 82B: Page 22, line 22, leave out from ("for") to the end of line 24 and insert ("believing that the name furnished by the relevant person is not his real name;).

The noble Lord said: I wonder whether Amendment No. 82E could be taken with this amendment since the same principle is involved. Page 22, line 28, leave out from ("for") to the end of line 30 and insert ("believing that the address furnished by the relevant person is not a satisfactory address for service;").

The first amendment relates to name, the second refers to address. The situation under Clause 24 at the moment is that the respective grounds for arrest in relation to name are that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name"; and in relation to address, for doubting whether an address furnished by the relevant person is a satisfactory address for service".

The Royal Commission report, dealing with this matter, at Chapter 3.86, set a rather different threshold. It stated that, for the arrest to be lawful, the officer must actually see the person committing the offence, and there then follow these words: and the person must positively refuse to give his name and address". That is a different stratum to that which appears in the Bill. The amendments, dealing with both situations in the same way, would state positively that the officer has to be in the state that he is believing that the name furnished by the relevant person is not his real name and believing that the address furnished by the relevant person is not a satisfactory address for service. That is a higher level of dubiety than that which appears at present in Clause 24. It is a lower level of dubiety than that recommended by the Royal Commission. It is, I think, about as readily poised between the two as one can get. On that basis, I hope that the Minister will accept it as a perfectly laudable compromise. I beg to move.

Lord Elton

Clause 24 as drafted permits the arrest of an offender if inter alia the police officer concerned has reasonable grounds for doubting whether the name he furnishes is his real name. The first amendment will allow him to make an arrest if he had reasonable grounds for believing that the person's name is not his real name. There is no difference between the effect of these different formulations of the same test that I can see in the relatively short time that I have been able to look at the amendment. They appear to mean the same. We prefer our drafting. I think that that is probably right. The noble Lord will, however, understand that this is at first blush.

Lord Elystan-Morgan

I wonder if I may put the matter in this way to the noble Lord the Minister. I would be highly embarrassed if I had to try to define this in mathematical terms as I have not even a caveman's understanding of mathematics. However, will the Minister accept that, on the Government's present wording, a 20 per cent. doubt would presumably mean that there was within the wording of the Act reasonable ground for doubting. But, before one can qualify for the situation that is described in the amendments, there has to be a state where the officer is believing that the name furnished by the relevant person is not his real name; in other words, that he says to himself, "It is something higher than 50 per cent." It is the difference between those two conditions that make the substantial and fundamental difference between the Government's wording and that of the two amendments. I would be grateful if the Minister would mull over this in the days between now and Report stage.

Lord Elton

Had the noble Lord asked me to come to a decision now I would have firmly said, No. I may well say the same at Report stage, but I will look at it between now and then.

Lord Elystan-Morgan

On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 82C, 82D, 82E and 82F not moved.]

Lord Mishcon moved Amendment No. 82G: Page 22, line 32, after ("person") insert ("from committing or attempting to commit the offence and thereby—").

The noble Lord said: If I can epitomise this amendment, it would be an attempt to make the arrest fit the crime, to copy Gilbert and Sullivan for one moment. I say that for this reason. The amendment would forge a link between the offence that is suspected and the action which the power of arrest is proposed to prevent. Without that, there would be created, in my submission, a new power of preventive arrest in relation to conduct that may in itself not be unlawful and which may have no relationship to the offence in question.

I should like to give a quick example. A man is taking part in a demonstration. It is a perfectly peaceful demonstration but nevertheless rather a bother to the police, possibly because of traffic considerations. The man drops some litter. The officer decides that this is a very good thing and that he will at least be picking up one of those in the demonstration. That will mean one less, and it will stop him causing him an unlawful obstruction of the highway. I do not wish to exaggerate by my example. But it is this sort of circumstance which makes it necessary, I repeat, to link the offence, as this amendment does, with the offence that is going to be committed and which the officer is stopping by the arrest. I beg to move.

Lord Trefgarne

Subsection (3)(d) is concerned with the prevention, for example, of injury or damage to property. It authorises the arrest of a person who is committing or who has committed or who is reasonably suspected of having committed an offence if the constable reasonably believes that it is necessary to prevent one of these consequences. The amendment proposed by the noble Lord seeks to relate these consequences back to the offence committed by the person concerned. I believe that this attempt to circumscribe the power of arrest more closely is neither necessary nor helpful. While, obviously, I would not wish to dwell on the point, there is an oddity in the amendment as drafted. By referring to the prevention of an offence, it implies that the offence has not yet been committed. But subsection(2) makes it abundantly clear that the power to arrest conferred by the clause arises only if an offence is already taking place or has already been completed. I would not want to rest my, argument on a point of drafting, particularly in these circumstances.

The point of substance underlying the amendment, which I suggest to your Lordships is mistaken, is that the consequences of an offence should not be regarded, as it were, free-standing of it. The power to arrest should be related to the harmful nature of the offence. In general, this would be so. In the case of a person committing the offence of being drunk and disorderly, it is in the nature of an offence that a risk arises of injury to other persons or damage to property which an arrest may be necessary to prevent. Similarly, in the case of the offence of vehicle interference, the continuation or repetition of the offence, if not prevented, would in all probability result in loss of property whether in the form of something in the car or the car itself.

I could offer other examples where everyone would agree that arrest was the sensible and practical course for an officer to take in the circumstances facing him at the time, but where the casual chain between the harm to be prevented and the offence committed previously is longer and more oblique than the amendment envisages. Therefore, I hope that the noble Lord will feel able not to press it.

Lord Mishcon

I feel that this deserves some further consideration. Certainly, I shall read very carefully what the noble Lord the Minister has said; but we have always to weigh the balance between the extreme examples that he can give and the fact that injustices of a grave nature can be committed. We cannot do it at this moment; I appreciate that. We cannot do it until we have considered what each of us has said. In the circumstances, I ask the Committee's leave to withdraw the amendment, but I hope that the Minister will look as carefully as I will at the things which have been said in the discussion.

Amendment, by leave, withdrawn.

8.1 p.m.

Lord Elwyn-Jones moved Amendment No. 82H: Page 22, line 35, leave out paragraph (ii).

The noble and learned Lord said: We are dealing here with grounds on which a person may be arrested. In Clause 24, on page 22, your Lordships will see the words: that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person— (ii) suffering physical injury". It seems a very odd circumstance on which to justify arresting him. Does it mean suffering physical injury by, or in the circumstances of, the arrest, or by self-maiming or some activity of that kind? Clearly, suffering physical injury is not an offence, and I submit that it should not and does not form reasonable ground for an arrest. Perhaps we could have an explanation of what, to me at any rate, seems at the moment wrapped in the inexplicable and the mysterious. I beg to move.

Lord Elton

Although paragraph (i) refers to a person, causing physical injury to himself', we think that a separate consequence of suffering physical injury is necessary. Let us consider the case of a person who is found committing an offence, not necessarily a very serious offence. An angry crowd gathers, and it is clear that the person is at risk of physical injury unless he is arrested and seen to be taken away to be dealt with under the law. We have also seen rather unpleasant television pictures—have we not?—of crowds outside police stations jeering at suspects and banging on the roof of the car as they are driven in or out of the station.

Such situations do arise on the street—not often, but from time to time—when a person is found committing an offence which inherently may not be very grave. If the offence is arrestable, then the officer can arrest the person under Clause 32, but, if it is not, then we believe that the power of arrest should be available in the offender's own interests if he is at risk of attack from the outraged local citizenry.

Lord Elwyn-Jones

A rescue operation giving rise to the possibility of arrest rather than protection creates a very interesting and somewhat difficult situation. I shall give further thought to this. I can well conceive that a drunk lying in the middle of the road, with traffic roaring round him, might be a circumstance. But, so far, I am not very impressed with the illustration that the noble Lord has given. I shall give thought to it, and in the circumstances I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

The next two amendments are printed the wrong way round. Amendment No. 83 should have been numbered 83A, and 83A should have been 83; so I call Amendment No. 83A.

Lord Elwyn-Jones moved Amendment No. 83A: Page 22, line 37, leave out paragraph (iv).

The noble and learned Lord said: This is a provision which creates as a reasonable ground for a constable to arrest a person the need, to prevent the relevant person— (iv) causing an offence against public decency". The old language used to be, an affront to public decency; I think that was the old phrase.

In my submission, an offence against public decency", is not a concept known in our criminal law. It is in very broad and very general terms, and I am afraid that at a time when allegations of entrapment are made, particularly on the homosexual scene, the use of the broad expression, causing an offence against public decency", as the description of a ground on which a person can be arrested goes far too wide and creates, as I say, a concept which previously has never been part of the criminal law. We should like further elaboration of that, because at the moment it seems to us to be a wide and excessive extension of the grounds for arrest for which a great deal of justification is required before we can introduce it as a new element in the criminal law. I beg to move.

Lord Hutchinson of Lullington

I should like to support this amendment. It seems to me that we are here entering a real disaster area, because, if I may say so, police officers are notorious—almost as notorious as judges—for not keeping in touch with what are called public mores, and they are very liable to be totally out of date as to what is indecency and what is not indecency. We are not talking here about an offence: we are talking about a police officer, not who has seen an offence but who is predicting that an offence of indecency is going to take place.

From all one's experience, what you are going to be faced with is couples in the park going rather too far, in the view of the police officer; you are going to have people in motor cars behaving in some sort of sexual way, which may offend one police officer and not another; you are going to have people relieving themselves in alleys off Piccadilly, which some police officers will consider indecent; you are going to have two ladies on a park seat being affectionate towards each other, which will be considered by some police officers to be appalling; you are going to have people outside lavatories behaving, because police officers think they are homosexuals, in some way which is indecent; you are going to have nudity; and so on.

On one occasion I appeared for a Member of the other place whose whole life was totally destroyed because it was alleged that he was up to no good behind some laurel bush in St. James's Park. In spite of the officer being discovered to have completely falsified his notebook, the man was nevertheless convicted of some minor offence of indecency, which many people would have thought was hardly indecent at all.

I have also, in my time, appeared for a distinguished professor who, on the beach, quite alone, was quietly camping and making his breakfast on his primus stove. He was absolutely undressed—nothing on at all. Unfortunately, there were two ladies from Darlington who were also having a holiday on the same part of the beach. They were so horrified that they went to a telephone box and rang up the Dorset police, who immediately arrested this unfortunate professor. I am afraid that those are the kind of circumstances within one's own experience where people's lives are absolutely ruined because some officer, some person in the executive, has taken the view that their behaviour is indecent. Indecency is something about which we all have different views and I ask the Minister to delete this part of the clause.

Lord Auckland

I hesitate to intervene among so many legal experts, but I can see one aspect that leads me to think that the clause in the Bill is sound. As your Lordships know, in the precincts of London Bridge Station and other stations, one finds hawkers who are peddling video tapes and other things. Let us suppose that there are tapes of an indecent nature being peddled and a crowd gathers around the person selling them. There is surely likely to be an obstruction, particularly during the rush-hour with people getting to the station. Therefore, the clause in the Bill would, as I see it, enable the police to make an arrest where something which is indecent is being sold—be it video tapes or any other object. I wonder whether my noble friend the Minister can comment on this. I realise that this is a very legalistic aspect of the Bill, but I can see some validity here.

Lord Donaldson of Kingsbridge

There is a distinction between indecency and obstruction. The noble Lord has said that somebody, by selling something, whether it is indecent or not—even if it is cigarettes—is causing an obstruction. That is already some kind of offence, but there is nothing indecent about it.

Lord Mishcon

I was about to say that the noble Lord the Minister and I share many interests and one of them was in the Video Recordings Bill. I can assure the noble Lord that this would be an offence under that Bill when it becomes an enactment, and therefore there will be no difficulty in regard to it.

Lord Elton

The amendment which has been put forward by the noble Lord is addressed to the criterion of preventing an offence against public decency. Before dealing with that amendment, I should like to speak briefly to my own amendment to sub-paragraph (iv) which is Amendment No. 83, so that we can sweep them up together. Amendment No. 83: Page 22, line 37, leave out ("causing") and insert ("committing"). That amendment simply corrects an error. On Report in another place subsection (3)(d)(iv) was amended to replace the words "affront to" by "offence against". While one may cause an affront, one commits an offence. My amendment simply corrects that verbal slip.

I return to the noble and learned Lord's amendment and it may be of help if I go back briefly to first principles. The power of arrest has two grounds: first, to ensure that the offender is brought before the courts, which includes the gathering together of sufficient evidence for this purpose; and, secondly, to prevent further harm being done. Paragraph (d) is concerned with the second of these grounds. What this part of the clause does is to give the police powers to act in circumstances where they would be expected to act by the public and to employ basic concepts which both police and public can readily understand.

The amendment aims specifically to remove the power to arrest a person reasonably suspected of an offence where there are reasonable grounds to believe that an arrest is necessary to prevent an offence against public decency. There can he no question that this power is necessary. Supposing a man was "flashing" women shoppers in a local street. We would all expect the police to prevent this behaviour. Certainly if there were a police officer there I would expect him to ensure that more women were not upset in this way. Fears have of course been expressed that this gives the police a licence to arrest any person whose behaviour is unconventional. That is a fear which I think that your Lordships have voiced.

We amended the Bill on Report in another place to meet that point in response to helpful suggestions made by the Opposition. I think that these fears are groundless. First, the phrase, "an offence against public decency" means exactly what it says. It does not mean any behaviour which is merely disapproved of by the majority of the community; the behaviour must constitute a valid offence. Secondly, let me emphasise, at the risk of restating the obvious, that the arrest powers should come into play if the person is already reasonably suspected of an offence. Thirdly, powers of arrest already exist for most of the offences concerned. What the Bill does is to replace a haphazard collection of powers with a single, readily understandable power, and one, furthermore, which unlike the present powers can be exercised only in relation to future harm and not simply by virtue of the fact that an offence has already been committed. I would draw attention to subsection (5) which provides that this offence must be in circumstances in which members of the public: cannot reasonably be expected to avoid", the person concerned, for this power to become exercisable.

Lord Wigoder

Am I not right in thinking that paragraph (d) is intended where an offence has not yet been committed, and it is giving the police powers to arrest somebody before the offence has been committed? So if somebody is seen "flashing"—as the noble Lord has put it so vividly—at ladies in the street, that is committing an offence. What this clause says is that if somebody puts his hand on the top of his zip, a police officer is entitled to say, "I think that he is going to lower his zip and I then think that he is going to commit the offence" to which the noble Lord the Minister referred. Have I got this right or not?

Lord Elton

I think not. If the noble Lord looks at subsection (1) he will see that the first requirement is that the: constable has reasonable grounds for suspecting that any offence has been committed".—

Lord Wigoder

"or attempted".

Lord Elton

Yes. In other words it is not in anticipation of a first attempt. I see the man wrestling with cold fingers with his zip. That seems to me to be what the noble Lord calls up before us. There has to be some precursor to his expectation that an offence is going to be committed.

Lord Elwyn-Jones

With regard to the expression "flashing", which presumably means indecent exposure, that of course is already an existing established criminal offence and would be caught as such. But to deal with that and other situations under the umbrella—if that is not too delicate and kindly a word in the circumstances—of causing an offence against public decency, seems in my submission to be somewhat far-fetched.

I submit that the real mischief of this provision is that it imposes upon the constable a pure value judgment, and that in the circumstances of which we are speaking runs the risk of problems. I do not share the extreme language of the noble Lord, Lord Hutchinson, who in one fell swoop abused constables and judges with the same impartiality which of course is characteristic of his detachment in these matters. I do not share that view. But I submit that this provision attempts to establish a category of offence not known to the criminal law and it ought not to be introduced as a ground for effecting an arrest.

However fascinating and important this is—and I do not want to be flippant about it—it may well be that we can consider this matter perhaps at greater length at the next stage of our consideration of the Bill. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.19 p.m.

Lord Elton moved Amendment No. 83:

[Printed earlier: col. 468.]

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Elystan-Morgan moved Amendment No. 83B: Page 22, line 38, leave out paragraph (v).

The noble Lord said: The purpose of this amendment is to delete the fifth category in Clause 24(3)(d), which reads: clausing an unlawful obstruction of the highway". As the Committee will be aware, the constable is entitled to arrest if he has reasonable grounds for believing that arrest is necessary to prevent a person from doing what is in subparagraph (v); in other words, the constable is entitled to act in anticipation of an obstruction of the highway. My noble and learned friend Lord Elwyn-Jones, in relation to the preceding category of causing an offence against public decency, said that there was a danger that this would become very much a value judgment of the police officer concerned. I would pray in aid the same argument in relation to an anticipated unlawful obstruction of the highway.

We can think of dozens of occasions—can we not—when persons in a particularly innocent way will be obstructing a highway: for example, a queue outside a shop; a crowd waiting to go into a football ground; a smaller crowd of people listening to a parliamentary candidate when he has come along with his sound truck hoping to address one or two people who have gathered together. Indeed, the example that comes very readily to mind is that of half a dozen people lawfully picketing. Their picketing may be utterly unobjectionable but at the same time, if one wanted to be technical, one could say that they were obstructing the highway.

Without giving any more examples (and I can think of dozens), the point I seek to make is that there is conduct which, because of the good common sense of police officers, is tolerated day in and day out. and thank goodness for that. Were it not so, society would not be able to go about its lawful and normal business, but such conduct, which may be perfectly acceptable to one police officer, may, under this Bill, by the very whim and caprice of another police officer, be regarded as an arrestable condition.

My noble friends on these Benches take the view that this situation if too delicate to be included within the arrest provisions and that it would be wiser, more politic and less likely to lead to embarrassing situations in the future if this fifth condition in paragraph (d) were to be deleted. I beg to move.

Lord Renton

I wish to oppose this amendment and as I have not previously spoken on subsection (3) and in particular on paragragh (d), I should like to congratulate the Government on introducing a merciful provision which, admittedly, according to the judgment of the police, will enable them to save people the opprobrium of committing offences and having to be brought before the court for doing so.

Perhaps I may take the example that the noble Lord, Lord Elystan-Morgan, gave of pickets. We all know, and the police know, that if six pickets, and no more—or not many more—desire to picket, they are perfectly lawful in standing on the pavement in order to do their picketing. But if it appears abundantly clear to a police officer that they are about to try to supplement their picketing by obstructing the highway, by putting large objects there which would prevent the movement of traffic, then they should be encouraged to desist, and if they refuse to desist, the police are still left with the obligation to keep the highway clear.

If somebody refuses to co-operate in keeping the highway clear, surely the merciful preventive provisions of this paragraph of subsection (3) should come into operation. Therefore, I think that it would be wrong to delete subparagraph (v) of paragraph (d).

Lord Elton

The power to arrest, with which we are dealing here, is the power to arrest where there are reasonable grounds for believing that arrest is necessary to prevent an unlawful obstruction of the highway. There is, of course, nothing new about such a power. The offence of wilfully obstructing the highway has always carried a power of arrest.

This power, which is currently contained in Section 137 of the Highways Act 1980, is to be repealed by Clause 25(1) of this Bill. This provision, therefore, simply reserves the existing position, except to the extent that the power in the Bill may be exercised only where arrest is necessary to prevent a continuing obstruction. Of course, the present power is not limited in this way, so the power in the Bill is narrower than that which we now have. Plainly the police need a reserve power of arrest. Obstruction of the highway can disrupt a great number of people as they go about their business. If the police cannot persuade a person to move along voluntarily, they have no option but to arrest that person.

I would emphasise that the paragraph refers to an "unlawful" obstruction. The noble Lord, Lord Elystan-Morgan, quoted several forms of obstruction which appear to me to be perfectly lawful. Therefore, the paragraph incorporates the test contained in the 1980 Act itself. Originally, we had not thought it necessary to do so because the arrest power in the Bill, which replaces the existing one in the 1980 Act, only comes into play when a person is already suspected of an offence, and a person cannot be reasonably suspected of obstruction under the 1980 Act if he has a lawful authority or a lawful excuse. I believe that those words will particularly reassure the noble Lord, Lord Elystan-Morgan.

However, it is clearly right that a person who has committed an offence under the 1980 Act should not be liable to arrest if the obstruction that he is about to cause is on this occasion lawful. In response to criticisms made by Her Majesty's Opposition in Committee in another place, we amended the Bill to refer to unlawful obstructions. Therefore, I hope that what pleased the Opposition in another place may eventually please the noble Lord in this Committee.

Lord Elystan-Morgan

I have listened with interest to what the noble Lord, Lord Elton, has said and I shall certainly give the matter further thought between now and Report. Therefore, on that basis, I seek the kind leave of the Committee to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 83C: Page 22, line 42, at end insert— ("() for the purposes of subsection (3) above the constable shall inform the relevant person that he may nominate another person to accept service of a summons for him and may give that other person's addrss.").

The noble Lord said: If my analysis of the law of averages is right, the Government are able to concede one in about 70 amendments, and I believe that I have reached the stage now where my analysis of the law of averages has made me optimistic. The noble Lord made much of the fact, and rightly so, that anyone would escape arrest who was able to give a proper address where acceptance of service of a summons could be effected. The officer may know that, your Lordships may know that, but the poor person who is confronted with the questions about his name and address and how service can be effected will not know unless the policeman tells him. Therefore, this amendment simply says—and I hope that the Minister can accept it—that the constable concerned will: inform the relevant person that he may nominate another person to accept service of a summons for him and may give that other person's address". That is the simple amendment, simply moved, and I hope simply accepted. I beg to move.

Lord Renton

So that I may understand this amendment, I wonder whether the noble Lord, Lord Mishcon, would envisage these circumstances? Supposing I were the relevant person and I decided to nominate him as a person to accept service of a summons on my behalf, without ever having been in touch with the noble Lord and without knowing whether or not he would accept service. Would that be, in his opinion, a valid compliance with his amendment?

Lord Mishcon

The noble Lord puts a very proper question, but it should be addressed to the Government and not to Her Majesty's Opposition. The reason I say that is because the Bill provides that somebody can give an address for acceptance of service. I am merely saying that if that is a right given under the Bill the person concerned should, at least, be informed of it.

Lord Elton

Lord Mishcon's noble friend, the noble Lord, Lord Elystan-Morgan, may not have the understanding of mathematics of a caveman but it is quite clear that the noble Lord, Lord Mishcon, understands averages to some extent. We accept that there is a point of substance identified in Amendment No. 83C which requires the constable to explain to the person concerned the fact that the address of some other person may be adequate for the service of a summons, even when he has no suitable address of his own. It could perhaps happen that the arrested person did not realise that an alternative address would do. Though I have no doubt that in practice police officers would draw attention to the acceptability of an alternative, I accept that there is nothing to require them to do so in the Bill as drafted. I am not quite sure how we should meet that point. The noble Lord will recognise that we have had little time to consider that and we shall need to be careful of inhibiting police action in the sort of situation where the suspect makes off, or makes ready to do so, and there is no time to engage in any sort of explanation.

I remind my noble friend that the constable has to be satisfied that it is an address at which he can expect to be able to serve a summons. How he establishes whether the suspect is a life-long friend of the noble Lord, Lord Mishcon, or only a passing acquaintance or distant relation, I do not know. But the law should provide that where the noble Lord, Lord Mishcon, is happy to be in receipt of the summons—and who more appropriate?—then the person should have that possibility drawn to his attention. To that extent it looks as if there will be another very large number of amendments before we can accept anything else.

Lord Renton

I wonder whether my noble friend will be so kind as to explain. Is it for the constable to decide whether a person nominated to accept the summons will be willing and able to do so or must he be given some kind of assurance to that effect by the relevant person? This seems to me to be the relevant point.

Lord Mishcon

I am sure that the noble Lord, Lord Renton, will take it from me as in no way belittling the point he has made, but this matter should have been taken when we were dealing with the question of the ability to give such an address for service. That point has now passed. I am merely dealing with the fact that the Bill has now spoken in relation to that right and the person concerned should know of it. If I may be presumptuous enough to say so, no doubt the noble Lord will now raise this at Report stage when we may get clarification.

If the two Front Benches cannot agree on politics or philosophy and other matters, it is awfully nice to know that they can agree on mathematics and the analysis of averages. I am delighted that I was right in thinking that the turn has now been reached for an amendment to be accepted in principle, if not in the words used. In those circumstances I beg leave to withdraw.

Lord Elton

Will the noble Lord just allow me to reassure my noble frend to save a future debate? The requirement rests in Clause 24(3)(c)(ii), which says, the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service". So it does depend on the constable and the constable will require training in what he should accept.

Lord Renton

If that interpretation is correct, one wonders why the amendment is necessary. However, I will not pursue the point.

Amendment, by leave, withdrawn.

[Amendment No. 83D not moved.]

On Question, Whether Clause 24, as amended, shall stand part of the Bill?

Lord Denning

May I raise one point on clause stand part, which concerns subsection (6), which says: This section shall not prejudice any power of arrest conferred apart from this section". When we discussed the corresponding subsection (8) of Clause 23 that had gone out. I wonder whether subsection (6) remains of any effect in view of Clause 25, which says that any power of arrest and so forth, shall cease to have effect". In other words, I am wondering whether subsection (6) ought not to go out in the same way as subsection (8) has gone from the other clause.

Lord Elton

I think that I would be wise, given the experience of those who drafted and the experience of he who criticises, to take leave to consider that point between now and Report.

Clause 24, as amended, agreed to.

Clause 25 [Repeal of statutory powers of arrest without warrant or order]:

On Question, Whether Clause 25 shall stand part of the Bill?

Lord Renton

This is another rather strange provision. It is a case of, in effect, a repealing method. It is an indirect and rather obscure repealing method. It is a non-textual repealing amendment of a great many previous provisions.

When we were discussing Clause 7 the noble Lord, Lord Mishcon, drew attention to Clause 7(2) which had a somewhat similar effect. I rose to support him in the plea that he made and we obtained a quick assurance from the Government that the point that we made would be considered between now and Report. I make the same plea in relation to this clause.

The concluding words are: shall cease to have effect". That is a well-established draftsman's euphemism for the expression "repeal".

As I have pointed out, there will be many previous repeals, including those in local Acts, which will take place as a result of this clause. It is tempting to say that the draftsman has contrived a short, simple method of enabling everybody concerned to disregard a large number of previous statutory provisions. But without turning to them—and they are very numerous—we do not know which they are; until individually they come to be considered in particular cases nobody is likely to list them or to turn them up. Therefore, I suggest that even though it means adding several pages to the repealing schedule of the Bill, it might be better to achieve this purpose in that way instead of in the way that is attempted in Clause 25.

Lord Mishcon

If the noble Lord, Lord Renton, will allow me to do so, I support everything that he says.

Lord Denning

I should like to support it, too. When in all these volumes we have statutes repealed, the people who compile the statutes can strike them out. That cannot be done simply. Someone has to go through it. It is what I said earlier on Clause 25. We have 15½ pages concerning powers of arrest. Are they to be repealed or not? I assume that they are to be repealed. If so, that ought to be carried out expressly so that all the people who compile statutes can strike those out of their books and have this simple clause instead.

Lord Elton

I can see the attraction of what my noble friend and the noble and learned Lord says. There are two approaches, are there not? One would be to do what we have done in the Bill which is to say that everything of this nature shall be struck out except that which is reserved in Schedule 2. Schedule 2 is a relatively short schedule and is easier for us to discuss. Or we could say that everything will be preserved except what is listed in Schedule 2 and we would have a very long schedule to discuss. The list, which has been referred to already in debate, is in fact printed in Appendix 9 to the Royal Commission's report.

The problem is less than one might have thought because the public general Acts affected are listed for repeal in Schedule 7, so the Acts that your Lordships are concerned about are the lesser Acts that are not public general Acts, and I see that there is force in the argument that the local Acts and the particular Act should be listed somewhere. As I have already said, we will take this on board before Report. I cannot, without advice, and I think without fairly considerable reflection, say whether there will be much that I can do, but what I want to leave in your Lordships' minds is the fact that, by reason of Schedule 7, the list of repeals which are not specifically referred to on the face of the Bill is not as long as otherwise would be the case.

Clause 25 agreed to.

Schedule 2 [Preserved powers of arrest]:

8.42 p.m.

Lord Trefgarne moved Amendment No. 84: Page 102, line 22, at end insert— ("1984 c. 00. Section 5(5) of the Repatriation of Prisoners Act 1984.").

The noble Lord said: On behalf of my noble friend, I rise to move this amendment, which will preserve the power of arrest conferred by Clause 5(5) of the Repatriation of Prisoners Bill, now being considered in Committee in another place. Your Lordships will recall that this gives a constable power to arrest without warrant an escaped prisoner. It is therefore similar in nature to the power of arrest conferred by Section 49 of the Prison Act 1952, which is already listed in the schedule. Powers to arrest escaped prisoners will not necessarily be covered by the general conditions for arrest contained in Clause 24, but it is plain that the police need power to arrest without warrant and without more ado persons unlawfully at large. If as we anticipate, the Repatriation of Prisoners Bill receives Royal Assent before this Bill, the power to arrest contained in it will be repealed by Clause 25(1) unless it is added to Schedule 2. This is the effect of the amendment.

I should like to take this opportunity also to give your Lordships some notice that Schedule 2 may require a small further expansion at Report. In particular, we have been looking again at preserving in their present form the powers of arrest for soliciting by prostitutes, since the general arrest conditions (and Clause 24(3)(d) is relevant) may not be wholly adequate to meet the enforcement needs of that particular offence. We may, therefore, propose their preservation subject to the views of the Criminal Law Revision Committee, which is now reviewing this whole area of the law. I ought also to mention the reference to the Prevention of Terrorism Act at the end of the schedule. I am afraid that the saving here will require a technical amendment, as will a number of later references to the terrorist provisions later in the Bill. These, too, will be brought forward on Report. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 26 [Arrest without warrant for fingerprinting):

Lord Mishcon moved Amendment No. 84A: Page 23, line 26, at beginning insert ("Subject to subsection (1A) below,").

The noble Lord said: I apologise for being slow to rise. As I understand it, this amendment is to be taken with Amendment No. 85D. Amendment No. 85D: Page 23, line 36, at end insert— ("(1A) The power of arrest conferred by this section shall not be exercisable unless the court by which the person was convicted has made an order authorising the taking of his fingerprints."). Your Lordships will see that in the first amendment there is a reference to subsection (1A), which is Amendment No. 85D, to which the first amendment makes the clause subject. It is the view of, I hope, many of us that it would be quite wrong to exercise the power here unless the court by which that person was convicted has made such an order. I beg to move.

Lord Gifford

I should like to support this amendment. As I understand it, Clause 26 introduces a new power to have the fingerprints taken of anybody who has been convicted of certain offences which are described as "recordable"; and no doubt the noble Lord the Minister will tell us what "recordable offence" is going to mean, because under the Bill it means only an offence to which regulations under this clause apply. What worries me is the concept that the mere fact of being convicted for an offence is sufficient not only to allow the police to take your fingerprints but to allow them to arrest you if you refuse to go along and have your fingerprints taken.

Surely the taking of fingerprints is not in order to feed the voluminous police computer and to make sure that everybody is included upon it, but in order to prevent crime and to detect criminals. If someone has been convicted of an offence who, in the view of the court. is not in the least likely to commit another offence and who should not have his fingerprints taken, then why should they be taken? In other words, the protection of a court order should be inserted in this clause.

Lord Trefgarne

I imagined that the noble Baroness, Lady Ewan-Biggs, might want to intervene on this point because it occurs to me that we might group together rather more amendments than did the noble Lord at the outset.

Lord Mishcon

I think it would be convenient to the Committee, this being a separate principle, for us to deal with this separate principle of the court order; and then we can go on to the other amendments and deal with rather different principles.

Lord Trefgarne

I am happy to proceed in that way if I may first extract my notes from the single speech that I had prepared for this occasion. Before I deal, on a later occasion, with the amendments of the noble Baroness, let me say a word about the fingerprinting amendments, which I think were uppermost in the minds of noble Lords. National police records of convictions are maintained on behalf of all police forces by the National Identification Bureau at New Scotland Yard, incorporating the National Criminal Record Office, as a common police service under Section 41 of the Police Act 1964. NIB records comprise records of convictions and the national fingerprint collection. The collection has two purposes. First, fingerprints found at scenes of crimes may be chacked against it; and, secondly, the record of convictions are distinguished one from another by fingerprints. This is so because fingerprints identify uniquely, and attempting to identify records by name and date of birth would lead to error and uncertainty, particularly since it is not uncommon for criminals to acquire aliases.

It is accordingly by means of fingerprints that the police are able to establish whether a person charged with a recordable offence has previous convictions for recordable offences, and, if so, what they are. They can establish whether or not the person concerned is wanted, perhaps under another name, or in a different force area, in connection with other offences; for example, if there is an outstandng arrest warrant against him. May I say in parenthesis, as to the phrase "recordable offence", about which the noble Lord, Lord Gifford, asked me, that the current list of recordable offences is contained in a Home Office circular, a copy of which, I understand, is in the Library.

It is also very important for sentencing purposes that the police are able, when they provide the court which has convicted an offender with information about the criminal record, to ensure that the information that they supply is accurate and relates to the right person. So not only is fingerprinting (which is not painful or, indeed, unpleasant) a key investigative aid, but a comprehensive fingerprint collection is an integral part of the whole sentencing process. It is essential from both points of view that the fingerprints of all those convicted of recordable offences are recorded. If not, the accuracy of the national criminal record system will inevitably suffer.

Turning to the amendments—and I hope I am now speaking to the right ones—Nos. 84B and 85E would limit the power of arrest conferred by Clause 26 to persons over the age of 16.

Lord Mishcon

I hope I am not confusing the noble Lord, but I must at once admit that if we did not want to take all these together we should have said so before. I do apologise, but it has occurred to us that it would he only proper to deal with them separately because there are amendments here which deal with the question of time and there are amendments which deal with the question of the principle in regard to an order of the court having to be obtained. It is solely that principle that I dealt with in very quickly moving Amendments Nos. 84A and 85D. That is purely the one dealing with an order of the court.

Lord Elton

I wonder whether I might clear the air on this matter before my noble friend returns with his unequalled ability to the issue to which the noble Lord, Lord Mishcon, has directed his attention. The list of amendments, as the noble Lord has freely admitted, was circulated and was agreed; there was an alteration made to accommodate the feelings of his noble friends. There has been a very considerable number of amendments going down in the last 48 hours—indeed in the last 24 hours—which puts us under fairly considerable pressure, If a grouping is agreed, the speaking notes are arranged to fit the grouping and the Minister at the Box then has the job of unscrambling and unknitting what he has done in order to assist your Lordships in dealing with particular points. So when the noble Lords seek to make it easier and clearer by separating the issues, the result is more like a plate of spaghetti than it was to start with. So if noble Lords would bear with my noble friend, if we can generally stick to the groupings it would be very helpful.

Lord Mishcon

We not only bear with him, we sympathise with him and we apologise to him. At the moment I am covered in sackcloth and ashes, if I may mix the metaphor which the noble Lord the Minister used.

Lord Elton

The noble Lord looks particularly handsome in them.

Lord Trefgarne

If I may just return to what I think is the amendment to which the noble Lord has drawn my attention, that is Amendment No. 85D, page 23, line 36, at end insert—

Lord Mischon

That is taken with Amendment No. 84A.

Lord Trefgarne

To be frank, I am afraid I am not able to unscramble my remarks in the way the noble Lord requests, but the noble Lord will not be surprised to hear that although I am not for the moment able to provide him with the most cogent arguments, the fact is that the Government are not able to accept the amendment.

Lord Mishcon

I wonder whether I can help the noble Lord. My noble friends and I repeat our expression of regret. We think that what we ought to do is to allow all the amendments to be spoken to together. Then the speech which the noble Lord, I am sure, was going to abridge in any event, will nevertheless cover all the points that are going to be made. I think that is the best way for dealing with it, and I am sorry if we have held up the Committee.

8.54 p.m.

Baroness Ewart-Biggs

If my noble friend Lord Mishcon is covered with sackcloth and ashes, I am even more so and I apologise for not being here at the beginning of the discussion on this group of amendments. I was attending to a maternal duty, perhaps your Lordships will forgive me doing that.

I should like to speak to Amendments Nos. 84B and 85E. Amendment No. 84B: Page 23, line 26, at end insert ("over the age of 17"). Amendment No. 85E: Page 23, line 36, at end insert— ("() If, in the case of a young person, the requirements of subsection (1)(a) and (b) above are satisfied and that person and/or his parent or guardian withholds consent to the taking of his fingerprints, a summons may be issued requiring the young person to appear before a magistrates' court and the said court shall be empowered to order that the fingerprints of the said young person shall be taken."). I promise you that I shall not make the long speech I had planned because I think the purpose of these amendments is very clear. It is to exempt young people from the police power of arrest without a warrant for fingerprinting and, instead, to substitute power to issue a summons to these young people requiring them to appear before a magistrates' court for fingerprinting instead.

This amendment also reflects the code of practice's definition of the appropriate consents which are needed for fingerprinting young people; namely not only a young person's consent but in addition that of the parent or guardian. This is included in these amendments and I think there is no doubt that the powers under this clause would encourage the attention to people with criminal records. It has already been acknowledged that it would be young people who would be more likely to be subjected to any kind of police harassment, especially if they had been known to the police beforehand. So it seems entirely desirable to keep young people and children out of police stations, as this amendment tries to do, and also to ensure that these young people retain the support and supportive presence of a parent or guardian.

The importance of this amendment is made even greater—and I am certainly not going to do anything but touch on this aspect—through the fact that later in this Bill the age of fingerprinting has been lowered from 14 to 10 years. This change is opposed by the probation services, and the members of the Royal Commission were divided on this particular issue of lowering the age for fingerprinting from 14 to 10. I think this adds great weight to the amendment, and I should like to do no more than commend these two amendments.

Lord Trefgarne

In the hope that I have now the right words to put before your Lordships, may I confirm that these amendments would limit the power of arrest conferred by Clause 26 to persons over the age of 15. But as I have explained, it is necessary for the records maintained by the National Identification Bureau to contain the fingerprints of all people with convictions for recordable offences, whatever their age. It follows that it is therefore necesary that the reserve powers of arrest conferred by the clause should apply to all such persons.

In an ideal world where juveniles did not commit offences, there would be no need for Clause 26 to apply to them. But unhappily juveniles, even where children and not young persons are concerned, commit offences, and sometimes very serious offences indeed. The proportion of those found guilty of or cautioned for indictable offences who are aged between 10 and 14 has run for some time at about 10 per cent. Such a high proportion is alarming and I believe it underlines the continuing need for the power recommended by the Royal Commission.

The great majority of the indictable offences concerned are offences of burglary, theft or handling—the very offences where fingerprint evidence may be directly relevant and useful. If we want the police to be able to detect re-offending by youngsters involved in such crime and to put them before the courts in their own interests, as well as those of society at large, it is essential that anyone who is convicted of a recordable offence has his fingerprints on record.

I am sure we all wish to see the proportion of young offenders drop and where possible children kept out of the criminal justice system; but it is important to bear in mind that children do no acquire criminal records by having their fingerprints taken. They acquire records and are to have their fingerprints taken because they commit offences. Even if fingerprints were not taken, criminal records would still have to be kept by the police for various purposes. Fingerprinting simply ensures that these records are accurate, and indeed the knowledge that his fingerprints are on record may help to discourage a juvenile from committing a further crime. This I believe is an important point.

We are of course aware, as the noble Baroness has explained, that Amendment No. 85E is intended to provide an alternative to the arrest procedure applied to the over-15s in which a child under this age could be required to attend court following conviction, so that the court could consider making a fingerprinting order. Leaving aside the technical point that the power of magistrates to order fingerprints to be taken under Section 49 of the Magistrates' Courts Act 1980 is repealed in Schedule 7, we are firmly of the view that the procedure envisaged by the noble Baroness would not serve any useful purpose. It would only do so if we wanted to confer a discretion which the magistrates could exercise or decline to exercise.

However, the fact is that it is the Government's view that there is no scope for the exercise of discretion in these circumstances. If someone, whether a juvenile or not, is convicted of a recordable offence, then a record must be made and his fingerprints taken for this purpose. This should be an automatic procedure, as otherwise the criminal records system of this country will remain incomplete and inaccurate. To ensure that he is not arrested, all a convicted person has to do is to co-operate in providing his fingerprints. The need for compulsion only arises if co-operation fails. I have dwelt on the considerations that apply to adults and I will not therefore consider them further, but I would ask your Lordships not to proceed with these amendments.

Baroness Macleod of Borve

May I intervene briefly to say that I agree entirely with what my noble friend has said? With my perhaps limited experience over 30 years of trying to judge juvenile crime, such crime, as my noble friend has said, is increasing enormously. Juveniles are led by the adults; they are pushed through windows by adults. These are young people whom we have to arrest. We have to bring them before the courts in their own interests and in the interests of the country. If we do not stop them from committing crimes and we do not try to deter them perhaps by some suitable punishment, we shall be laying ourselves open to more and more adult crime. So I entirely agree with my noble friend.

Baroness Ewart-Biggs

There was one point that I wanted to raise. I thought our amendment used the words, "over the age of 17", and not, "over the age of 15".

Lord Trefgarne

I am aware that two ages have been mentioned. I believe there has been some confusion over that point in the printing of this particular amendment. If it is 17 that the noble Baroness has in mind, I am happy to be corrected.

Baroness Ewart-Biggs

Perhaps there was an error in the printing, but the final age was certainly meant to be over the age of 17. Of course I do agree that there is a lot of crime among young people. Of course we have to accept this; the statistics show it; the courts know it; and there is no doubt about it. But many of us worry a great deal about the way in which young people can be alienated totally from the police and the fact that this can actually create a criminal instinct in them. I think that if you take a young person to a police station and take his fingerprints he may feel part of a television series and it may actually bring him further into that area of crime than might happen if he were taken with his parents to a magistrates' court to be dealt with in that way. That is why we have put down this amendment. Many organisations are involved with young people—the probation service, the Children's Legal Centre and others—are very anxious that these young people should be kept somehow with a supportive person such as their parent, guardian or whatever, and away from the police court environment. I am disappointed that the Minister has treated this without any kind of understanding of this amendment.

Lord Mishcon

I only wanted to add just a very few remarks indeed. I am not quite following the noble Lord the Minister, unless we are saying in this Bill that the police are right and we are right and we know about every conceivable case of young people who come before the courts and who have committed offences and that the juvenile magistrates who are dealing with the offence are secondary to our consideration and the police consideration and our legislative powers. All that my amendment and that which my noble friend has moved asked for is this: that there should be no power of arrest in regard to the taking of fingerprints unless the court that convicted the young person, which would know all about the offence and all about the background of that person, made the order. It may very well be that the order will be made in 99 per cent. of cases: so be it. I am thinking of the 1 per cent., and that 1 per cent. might indeed stop—because the court would want to do it—that young person from thinking that he or she was now in the gallery of convicts (I am not trying to be dramatic) having had his or her fingerprints taken and been arrested. All I am asking for is the sanction of the court that knew all about the case from start to finish. That must be right.

Lord Trefgarne

I hear what the noble Lord says, but I do have to say that I think we are dealing here not only with the 99 per cent. to which the noble Lord referred but, as effectively as we can, with the 1 per cent. too, not only in the interests of maintaining police records, to which I have referred, and not only in the interests of ensuring that we get a better conviction rate, or whatever, but in the interests, too, of those who are convicted in these matters.

I am persuaded, I must say, that a complete, accurate and up-to-date record of the kind I have referred to, which is provided for by the fingerprinting arrangements which appear in this Bill, is better not only in the interests, as I said earlier, of a better detection rate and of keeping down the very sharp rise, to which my noble friend Lady Macleod referred, in juvenile crime and in other crime too, but also in the interests particularly of the young people concerned who are so much in the mind of the noble Baroness, Lady Ewart-Biggs. I am persuaded, therefore, that these amendments would not be effective in that particular way and I do hope that your Lordships will not wish to persist with them.

Lord Mishcon

I will detain the Committee no longer, but we are really saying that we know better than the courts we set up which try these young people. I think that is a very sorry state of affairs.

Baroness Ewart-Biggs

I beg leave to withdraw Amendment No. 84A.

Amendment, by leave, withdrawn.

[Amendment No. 84B not moved.]

9.8 p.m.

Lord Trefgarne moved Amendment No. 85: Page 23, line 27, at end insert—"(aa) has not at any time been in police detention for the offence;").

The noble Lord said: This clause empowers the police to arrest a person within one month of conviction for a recordable offence defined in the clause, if he refuses a request to go to the police station in order that his fingerprints may be taken. As is explained in the notes on this clause, our intention is that where prosecution has been by way of summons and no custodial sentence is given, the police should nevertheless be able to obtain fingerprints. These are needed for future investigations and to prove convictions in any future court proceedings.

On Report in another place, it was pointed out that the clause would, in fact, permit an arrest to take place even if the person had previously been in police custody in connection with the offence. If he has indeed been charged with the offence, the police will already have had an opportunity to take his fingerprints by virtue of Clause 58(3). If, through oversight on the part of the police, this opportunity to take his fingerprints has been missed, we do not believe that the person should be put to the inconvenience of attending a police station at a later date. It was not his fault that fingerprints were not taken at the right time, and we accept that he should not be liable to arrest for this purpose. This amendment prevents the Clause 26 power from being used by the police to remedy their own failures. If your Lordships agree to it, it will only be possible to arrest a person if he has not previously been in police detention for the offence in question. I beg to move.

Lord Gifford

One can only welcome this amendment. It introduces a flexibility into the procedure which was singularly lacking when the Minister replied to the amendment of my noble friend Lady Ewart-Biggs. Besides welcoming it, I rise only to ask one question about this procedure and it may be that the noble Lord will not be able to answer it immediately.

When a person goes to court, will some arrangement be made so that, if he is liable to have a police officer call at his house some time later within the next month to arrest him if he does not go to the police station, some effort is made to notify him that this is going to happen? I can see all sorts of confusion and conflict arising if people have no idea that this power exists, but a month after the whole case is opened find someone knocking at their door and saying, "Come down to the police station on pain of arrest". Surely, since the person is appearing in court, some arrangement can be made whereby he can be notified at court that this is likely to be happening to him. I wonder whether now or at a later stage some thought can be given to this point.

Lord Trefgarne

The noble Lord has made a good point. Perhaps I can consider whether the prisoner should be notified at the stage of the court hearing, or in some other way, and come back to the noble Lord at a later stage.

Lord Hutchinson of Lullington

Perhaps I may raise a point now, instead of addressing the Committee on clause stand part, which I intended to do. What we cannot understand is why the fingerprints are not taken at the time when the offence is dealt with. What we find so offensive is that, in any period during the next four weeks after an appearance in court, anybody—including children from 10 years of age—can be approached by the police, arrested, taken to the police station and forcibly fingerprinted. That may arise in a situation where the penalty imposed was nothing at all to do with custody. Everybody is concentrating on children, and quite rightly so, but it will apply to anybody. Someone will attend court, will be convicted, will be put on probation, will be given an absolute discharge, or will be fined £5. He will then go home and three weeks later there will be a bang on the door by two police officers, who will take that person off to the police station to have him fingerprinted.

The noble Lord the Minister said that to have your fingerprints taken is not unpleasant. Once again, there is a curious lack of reality—I say so with the greatest respect—in so many replies that come from the Government Front Bench. Of course, to have your fingerprints taken does not hurt physically, but it is the most appallingly undignified situation which you have to go through. You are taken into the police station, you are sat down, the equipment comes in, you place your thumb and so on; to the ordinary person who has not had a custodial sentence it is an appalling trauma and an exceedingly undignified situation. The Government have got into this mess because they have removed the Section 49 provision, which made it incumbent upon magistrates to decide whether a person should have his fingerprints taken. In my opinion, it was a perfectly straightforward and excellent system whereby the magistrate said, "You will have your fingerprints taken, but not until I say so. I shall decide". The police are now going to decide.

Surely this clause is an administrative convenience for the police. If they fail to take fingerprints at the right time, they are empowered to go and arrest people so that their fingerprints can be taken later. Therefore, I ask the Minister to explain to the Committee why arrangements cannot be made for fingerprints to be taken at the time of conviction. If they are not taken at that time, that should be the end of it. People should not be harassed afterwards.

Lord Trefgarne

I believe that, generally speaking, fingerprints will be taken at the time that the noble Lord suggests, but we have to make provision for the situation in which an offender may disappear from the court before the police can speak to him. Once he has left the dock, I am told that the police have no power to detain him unless a specific power is provided which enables them to do so. We are talking about a situation in which a man has left the court and has declined to accept the invitation to have his fingerprints taken. Therefore, the power to arrest him is provided. I do not believe that having one's fingerprints taken is quite so awful as the noble Lord suggests. I have had my fingerprints taken, and I am told that my noble friend Lord Elton has had his fingerprints taken, too. It is neither painful nor inconvenient.

In my case and that of my noble friend, it was done because there had been a robbery in our homes and our own fingerprints had to be dissociated from those of the light-fingered burglar. This happens a great deal on a routine basis, and there is nothing to fear from it. It is very much in the interests not only of law enforcement but also of the prisoners themselves, in order to avoid confusion for them at a later stage, that their fingerprints should be taken. I hope your Lordships will agree that this special power, to be exercised only in the particular and narrow circumstances to which I have referred, is appropriate, and that therefore the clause should stand part of the Bill.

Lord Donaldson of Kingsbridge

I am not satisfied with that explanation. I do not think it matters in the least that one should have one's fingerprints taken. It is not nearly so traumatic as my noble friend has suggested. If it is, they have earned it. But the police have got to do it at the right time. What is very damaging is when the police come back three weeks later and ask for a trial in public. That is what we ought to stop, and I am absolutely opposed to it being allowed to happen. I do not mind if, after conviction by the magistrate, the police say, "Before you go, come down and have your fingerprints taken". What is monstrous, however, is the knock on the door. This is easily avoided. If the police know that they have got to do it, they will do it; so we must insist upon it.

Lord Auckland

As this is a very important part of the Bill, I wonder whether my noble friend the Minister could answer two brief questions. First, if a child has his or her fingerprints taken, can the parents or the guardians insist upon being present at that time? Secondly, I wonder whether my noble friend can say what happens to the fingerprints after they have been taken, assuming that there is no case to answer. Presumably the fingerprints are destroyed. I wonder whether my noble friend can confirm that that is the position.

Lord Donaldson of Kingsbridge

Fingerprints are taken only on conviction.

Lord Trefgarne

The noble Lord, Lord Donaldson of Kingsbridge, has provided my noble friend with the answer to his second question. We are referring to the taking of fingerprints after a conviction has been achieved. As I said just now, the moment that a case has been disposed of the police have no further powers of detention so far as the prisoner is concerned. He can then leave the dock, and if he is not given a custodial sentence then away he goes. He might choose to leave very quickly, and I should not blame him. In general, the police will try to ensure that the fingerprints are taken before a prisoner leaves the precincts of the court, but on the few occasions where that is not possible because the man has left too quickly, the police should be entitled to ask him to come back and have his fingerprints taken. If he refuses to do that, he should be able to be arrested, as I have already said.

Your Lordships earlier agreed to an amendment, at my suggestion, to provide that in certain cases the police are not entitled to go and arrest for this purpose. I hope, therefore, that your Lordships will agree that this improved clause should now stand part of the Bill.

Lord Hooson

I wonder whether the noble Lord the Minister could deal with this question, since clearly we are all troubled by this provision. Have magistrates the right to say, on a conviction, "You will have your fingerprints taken and then you will be released"? In fact, they can postpone sentence by saying, "If an application is made, the fingerprints will be taken immediately". They can postpone sentence until the fingerprints are taken.

Lord Trefgarne

I do not believe that magistrates have the power to do that, but perhaps I can make further inquiries and, if I am wrong, let the noble Lord know.

Lord Hooson

I am sorry to prolong this, but Clause 58(6) reads: Any person's fingerprints may be taken without the appropriate consent if he has been convicted of a recordable offence". Why does that not cover the situation? If there is that power under Clause 58(6) to obtain the fingerprints of anyone who has been convicted of a recordable offence, then why is this other power required?

Lord Trefgarne

Taking fingerprints is one thing but one has actually got to get hold of the chap first, and that is what we are talking about.

Lord Hutchinson of Lullington

But he is in court. He has been tried. It is not a question of his disappearing. Once he has been convicted, Clause 58(6) immediately comes into effect. There is no need for Clause 26. This is a matter of some importance.

Baroness Faithfull

Perhaps I may comment from my practical experience of what used to happen when I was working in court. The accused was informed of what would happen (a) if he was found innocent, and, (b), if he was found guilty. If he was found guilty then, with his solicitor present, he was told that he would be required to have his fingerprints taken.

I remember only one occasion when the person left without having his fingerprints taken, and that was a misunderstanding. There was really no difficulty. I think that we are making a tremenous haroosh over something that in practice is quite easy to administer. It is much more a case of the administration than the principles involved. What is important is that the person is told his rights before the case is heard. He must be told that if he is found guilty, he will be required to have his fingerprints taken. If the fingerprints are not taken directly afterwards, then he must be told that the police will have to call at his house later. In fact, that never happened in my experience because practically all of those concerned remain to have their fingerprints taken.

Lord Trefgarne

In order to assist the noble Lord, Lord Hutchinson, and myself for that matter, perhaps I may add that Clause 58(6) applies only at a police station and not at a magistrates' court. We are therefore left with the position where someone convicted of an offence may seek to leave a magistrates' court, quite legitimately, immediately following the conclusion of the proceedings in his case. It is that kind of circumstance which we seek to encompass by this measure.

Lord Donaldson of Kingsbridge

There is no difficulty whatsoever in following what was said by the noble Baroness, Lady Faithfull, but we are speaking of children, after all, and if the police want the child's fingerprints then they can ask the magistrates to say to the young person concerned, "Before you go, you will go downstairs with the police and have your fingerprints taken". What is the difficulty there? The difficulty arises through inefficiency. I do not see why the really damaging business of having a policeman knocking on the door at the home of a child's family should be excused by police inefficiency.

Lord Trefgarne

Knocking on the door is of course avoided if the person concerned responds to the invitation to return to have his fingerprints taken.

Baroness Macleod of Borve

On the other hand, surely it is almost impossible, I would have thought—perhaps those words are too strong—to convict anybody, for instance of robbery or of taking a car, without the fingerprints matching. One must take the fingerprints first.

Lord Donaldson of Kingsbridge

But it does not say that.

Lord Brougham and Vaux

The noble Lord opposite says, "It doesn't say so"—but if he will read Clause 58(3), he will see mention of, The fingerprints of a person detained at a police station".

Lord Wigoder

Perhaps the noble Lord the Minister will kindly explain so that I may follow his argument why he says that Clause 58(6) applies only to a police station.

Lord Trefgarne

My reading of Clause 58 relating to the taking of fingerprints at a police station is where it says in subsection (3): The fingerprints of a person detained at a police station may be taken without the appropriate consent"— and it then goes on with the other paragraphs. I do not want to pretend to be the world's greatest interpreter of these matters but that is my reading of it. If I am mistaken then I will happily withdraw.

Lord Hutchinson of Lullington

If the Minister is mistaken then there is no need for the clause about which we are concerned, and so this is therefore of crucial importance. There is no need for this clause if Clause 58(6) means what it says. I see nothing about a police station in it although I have read it through three or four times.

Lord Gifford

The noble Lord has been good enough to say that I pointed out one matter in this long rigmarole which might be capable of improvement. In view of everything which has been said, I wonder whether the noble Lord will not recognise that the whole thing is capable of improvement and needs looking at again, and that the points raised should be returned to on Report, when the Minister can tell us what his further views are.

Lord Trefgarne

I have to confess that my interpretation of Clause 58 has been less crisp than it should have been, and perhaps I could therefore be permitted to consider this matter further and come back to it at another stage.

The Deputy Chairman of Committees

The Question is, That Amendment No. 85 be agreed to? As many as are of that opinion will say, "Content"? … To the contrary, "Not-Content"? … The "Contents" have it.

On Question, amendment agreed to.

Lord Elton

I think we are under a—

The Deputy Chairman of Committees

No; the amendment in front of the Committee is Amendment No. 85. If the noble Lord will recall, the Committee went off at a tangent to discuss whether the clause should stand part.

Lord Elwyn-Jones moved Amendment No. 85A: Page 23, line 32, at beginning insert ("unreasonably").

The noble and learned Lord said: We are here dealing, as we have been dealing for a little while, with fingerprinting after conviction. The Bill provides for the arrest of a person at his home, or wherever he may be, and for him to be carted back to the police station for the mere purpose, not of further investigation of a crime or of an offence, but for bringing national police records up to date. Those are undoubtedly important, but I should have thought that they were not matters of urgency. Time is not of the essence of the matter, and it ought to be possible to make reasonable arrangements that the fingerprinting should be done by appointment to the mutual convenience of all concerned.

Since the first Bill the Government have agreed that the request should be made at a reasonable hour. What I submit is needed is a provision which excludes the possibility of arrest for someone who is willing to be co-operative but cannot drop everything suddenly to go to a police station when the police may arrive totally unannounced. It may be, for example, that the person concerned is attending a dangerously ill member of the household, or is involved with a child or a baby in circumstances where the child cannot be left unattended.

These amendments which I move—and it is convenient to deal with 85A and 85B together—will go towards preventing this power being used thoughtlessly or as a form of harassment to drag someone to the police station at what may be a particularly difficult time when there is no urgency for crime prevention or detection, or anything of the kind. I would expect most police forces to do just what is being asked of them, but this is to ensure that at any rate that will be the practice. It establishes a standard of how this matter of keeping the records should be dealt with, and I hope that these amendments will now be agreed by the noble Lord the Minister.

Lord Airedale

May I—

Lord Trefgarne

I wonder whether the noble Lord, Lord Airedale, would allow me to reply, because I am actually proposing to say that I very much accept the spirit of these amendments, and I am grateful to the noble and learned Lord for drawing this matter to our attention. We agree that a person should not be liable to summary arrest if he refuses perhaps for a very good reason such as a prior appointment, to go to police station at once, provided that he attends within a reasonable period thereafter. In practice, I am confident that the police would not apply the clause so inflexibly and would be able to come to a reasonable agreement with reasonably reliable people.

I accept that, even though some people can prove very difficult to get hold of once, let alone twice, if they are wanted for something, the matter of arrest should not be left entirely to the discretion of the police officer concerned. Therefore, I undertake to bring forward a Government amendment at a later stage to introduce a greater degree of flexibility into the clause so as to protect from immediate arrest the person who might not be able to comply immediately with the police request—something more akin to a period of grace as in the production of a driving licence might be preferable. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Elwyn-Jones

I thank the noble Lord for that most understanding—

Noble Lords

Order‡

Lord Elwyn-Jones

I am so sorry.

Lord Airedale

If the Minister is to look at this paragraph again, will he please consider my humble submission that it does not describe what the Government actually have in mind? The "reasonable hour" is attached to the constable's request and is not attached to the going to the police station.

If the constable rings up at two o'clock in the morning and says, "Will you please come round to the police station at ten o'clock this morning and have your fingerprints taken", he is making a request at an unreasonable hour. However, do not the Government have in mind that it is the going to the police station that must not happen at an unreasonably hour? Do they not have in mind the situation where the constable arrives at two o'clock in the morning and knocks up the chap concerned to tell him he must go round at once and have his fingerprints taken? I am suggesting that the "reasonable hour" is wrongly attached to the making of the request and ought to be attached to the going to the police station.

Lord Trefgarne

I shall certainly see that the noble Lord's point is taken into account.

Lord Elwyn-Jones

I am most grateful for that addition to my submission. Clearly one wants this to be done by amicable arrangement. It is a post-conviction state and I am quite sure that the Minister can come up with a sensible and amicable arrangement and not exasperate what is already a potentially difficult situation. In those circumstances, subject to the undertakings given by the Minister, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 85B not moved.]

9.33 p.m.

Lord Elwyn-Jones moved Amendment No. 85C: Page 23, line 36, at end insert— ("() A person arrested under this section shall be taken to the police station nearest to the premises where he was arrested and shall have his fingerprints taken immediately upon his arrival at the police station and shall be released immediately thereafter.").

The noble and learned Lord said: This amendment is, I think, self-explanatory. It calls for a person arrested under these provisions to be taken to the nearest police station to the premises where he was arrested and shall have his fingerprints taken immediately upon his arrival at the police station and released immediately thereafter.

This is another easing of the situation to provide the maximum of agreement and the minimum of discord. I beg to move.

Lord Trefgarne

I do not dissent at all from the spirit of this amendment, which is that if a convicted person has to be arrested to have his fingerprints taken, this interference with his liberty should be kept to the absolute minimum. I hope to persuade your Lordships, however, both that no amendment to the Bill is necessary and that this particular amendment might on occasion simply prove impracticable.

Let us suppose that a person has been convicted of a recordable offence and escapes with a non-custodial penalty. The police ask him, at a reasonable hour, to provide his fingerprints. He refuses, and is arrested. The power of arrest conferred by Clause 26 is limited to the power to take him to a police station and there take his fingerprints. Neither the clause itself nor other provisions of the Bill, whether in Part III or Part IV, allow the police to detain him for any other purpose. It follows that, if the power of arrest is exercised—and, of course, it is worth stressing again that we would hope and expect persons to co-operate with police requests—it will be the arresting officer's duty to secure the fingerprints as soon as is reasonably practicable. This, I suggest, is already the clear meaning of the clause.

Turning to the amendment, your Lordships will readily see that it takes no account of what may or may not be reasonably practicable. It directs the officer to take the person to the nearest police station. But that police station may be closed, or fully stretched because it is dealing with the aftermath of an affray, or it may be not the best place to go to in the circumstances for any of a dozen reasons. It may be sensible for the person to be taken to some other station instead. This is, of course, not a licence to the police to take a person arrested under Clause 26 to any police station in the country: the provisions of Clause 29(1) will apply so that an "as soon as practicable" requirement will exist.

Again, with the best will in the world, there can be no guarantee that the arrested person can have his fingerprints taken immediately on arrival at the police station. The fingerprint equipment may, for example, be in use for some other person, and a certain limited wait may be inevitable. The amendment is cast in terms which I suggest are too inflexible. I hope that in the light of those difficulties, the noble and learned Lord will not seek to press the amendment.

Lord Elwyn-Jones

I venture to submit that the discussions that we have had in the past hour point to the need to review completely Clause 26 and the provisions regarding arrest without warrant for fingerprinting. I hope when that review takes place—and I think it is implicit in what the Minister said that the matter will be reviewed—the whole scope of this part of the Bill will be considered with the object of limiting discord and the difficulty between police and subject, and what is more important perhaps even the difficulty for the families of those who will be disturbed and affected by the knock at the door at night, very often for a post trial fingerprinting process. In those circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85D and 85E not moved.]

On Question, Whether Clause 26, as amended, shall stand part of the Bill?

Lord Airedale

May I just make a short point about the definition of "recordable offence" in subsection (4) at the top of page 24? It says: In this Act 'recordable offence' means any offence to which regulations under this section apply". It is the word "apply" which I do not understand. The power to make the regulations is in subsection (2), and it uses the expression: such offences as are specified in the regulations". I do not understand why the definition does not follow the word "specified" and say: In this Act 'recordable offence' means any offence specified by the regulations under this section". I do not know why the word "apply" comes in. I do not really know what it means.

Lord Hooson

Together with my noble friends, I gave notice that we would oppose the Question, That the clause shall stand part of the Bill? But in the light of the observations of the noble Lord, Lord Trefgarne, at the Dispatch Box in response to the noble and learned Lord, Lord Elwyn-Jones, it is clear that the Government are going to look at this provision in its entirety again—do I understand that to be correct?—and will be coming back at the Report stage having reconsidered the clause.

Lord Trefgarne

I have not gone so far as the noble Lord suggests. I gave certain assurances to the noble and learned Lord, Lord Elwyn-Jones, which did not encompass the whole provision. They were specific assurances. But I can say that we are willing to have another look at the clause, particularly to see whether we can make more explicit the principle that an arrested person must be fingerprinted and released as quickly as is practicable. On that basis, I hope that the noble Lord will allow the clause to stand part of the Bill.

Clause 26, as amended, agreed to.

Clause 27 [Information to be given on arrest]:

Lord Elystan-Morgan moved Amendment No. 85F: Page 24, line 15, at end insert— ("() As soon as practicable after an arrest the person arrested shall be provided with a written statement of the date and time of his arrest and the ground for the arrest.").

The noble Lord said: As the Committee will be well aware, very often the lapse of time between the date of a person's arrest and the date of trial will be very long indeed—perhaps six months, nine months or 12 months, and sometimes beyond that. At the trial exactly what was said as to the reason for arrest, and exactly what point in time the person's stay at the police station ceased to be voluntary and he was actually arrested, may be crucial issues. As it is part of good police practice to keep the closest documentary record of these details, it seems to us on these Benches that it would not be adding in any way to the burden of the police to make the provision that is suggested in this Amendment No. 85F part and parcel of Clause 27. The provision has this effect, as it says: ("() As soon as practicable after an arrest the person arrested shall be provided with a written statement of the date and time of his arrest and the ground for the arrest.").

The amount of labour added to police duties is in our submission very small indeed. The amount of time saved in the courts by way of argument, counter-argument and disputation as to exactly what happened in relation to those crucial facts can be very considerable. I beg to move.

Baroness Trumpington

I hope that the noble Lord, Lord Elystan-Morgan, will forgive me if I say that underlying this amendment I think there is a danger of assuming that more paperwork automatically means more or better safeguards. I do not accept that there is very little work involved in what he suggests. Certainly recording is a device which is resorted to frequently in the course of this Bill as a means of ensuring that the police are accountable for their actions and that there are clear avenues for the citizen to challenge those actions where powers have been inappropriately used. However, in the case of the present proposal, I have to tell the Committee that it would be unnecessary as well as impracticable.

Let us first take the normal situation in which an arrested person is taken to a police station. If he is then detained there, Clause 35(4) of the Bill and paragraph 3.9 of the code already require the custody officer to make a record of the grounds for detention in the custody record. Paragraph 2.6 requires all entries into the custody record to be timed. Under paragraph 2.4 of the code a copy of this record must be provided if requested within 12 months. The person will of course already have been informed of the grounds for arrest in accordance with Clause 27(3). These safeguards are wholly adequate. Quite frankly I see no reason why an additional written statement of the grounds for arrest is needed. This would really create additional, unnecessary work for the busy police.

There are then the cases in which a person is released before his arrival at the police station under Clause 29(2), or the custody officer decides that there are insufficient grounds on which to detain him. In these cases there will be no custody record. However, the person will have been informed orally of the grounds for arrest under Clause 27 and the arresting officer will have to make an entry in his pocket book of the circumstances of the arrest and record the release under Clause 29(3). If the person subsequently wishes to make a complaint or institute proceedings, then the notebook will be available to the investigating officer or subject to production in court if needed—it is these last two words that are the key.

There is no need at all to require officers to duplicate their pocket book entries at the time, just on the off chance that they might subsequently be wanted. I therefore hope the noble Lord will withdraw his amendment.

Lord Elystan-Morgan

I am mildly disappointed that the noble Baroness has not, with her usual charming good sense and balance, been able to accept the content of this amendment. In my submission, it seems abundantly clear from what the noble Baroness has said that there will be occasion, in each case, for the information that is referred to in the amendment, that is a statement of the grounds for arrest, a statement of the date of arrest and the time of arrest, to be entered in some document or another. It seems to me utterly unbelievable that those entries would not be made somewhere. All that it necessitates, surely, is that a carbon copy be given to the defendant. Such a copy having been given to the defendant and a copy thereof retained by the police officer, how can there be an argument when the matter is raised in issue at the trial, perhaps over a year later, as to exactly what happened in relation to those three matters?

I hope very much that in the coming days the Government will think again about this matter. It really is a plea for a very simple entry that will not substantially add to the very considerable amount of documentation that this Bill makes incumbent upon police officers. At the same time, it would make the administration of justice very much simpler so far as those issues are concerned. In the circumstances, since the hour is late and the population of the Committee not that considerable, we do not seek to press the matter to a Division. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Plant moved Amendment No. 86: Page 24, line 16, leave out subsection (5) and insert— ("(5) The above subsections shall not have effect where the person to be arrested or some other person by his conduct makes it impossible for the constable to so inform him.").

The noble Lord said: This clause appears to be a statement of the principles laid down by the courts in the Christie v. Leachinsky case, previously mentioned by the noble Lord, Lord Hooson. In my view, the Bill is in error in attempting to transpose a lengthy judgment into such a brief clause. I am aware of the considerable anxiety about this clause expressed to me by experienced police officers. Very often, arrests can be interrupted by the violent behaviour of the person being arrested. It is a common occurrence in some areas for arrests by the police to be interfered with by other people in the vicinity.

Clause 27 appears to me to have been based on the assumption that all arrests are conducted in an atmosphere of calm enabling the due legal procedures to be complied with, without hindrance from anyone. This clause extends the law as it is now and appears to be saying that an arrest is not a lawful arrest until the person has been told the reason for it. The current law empowers the police to rearrest persons who have escaped from lawful custody and also places upon bystanders both responsibilities to assist the police and prohibitions against interference with an arrest. A police officer needs to be sure that an arrest is lawful from the time that he decides to use his legal powers of arrest and simply tells a person that he is being arrested. If, for example, an officer tells a person that he is being arrested and is then immediately assaulted, resulting in the escape of the prisoner, the question arises, "Has the officer been assaulted in the execution of his duty or not?" Apparently, if the officer was assaulted and the prisoner escaped before the officer had the opportunity to inform him of the reasons for his arrest, the arrest is not lawful.

I appreciate that Clause 27(1) uses the words, as soon as practicable after his arrest". My concern is that this could be rendered ineffective by subsection (3). I believe that the clause should be redrafted in order to cover the question of escape from lawful custody before the arresting officer has had the opportunity to inform the prisoner of the grounds for arrest and also the question of an assault on a police officer acting in the execution of his duty in such circumstances. An important provision of Christie v. Leachinsky has been omitted from the clause. This could be remedied by a new subsection (5).

In another place, the Government acknowledged the strength of the argument and amended the clause then under consideration by inserting the present subsection (5). This has only half closed the door. The High Court recognised many years ago the scope of the problem by clearly stating the words in this amendment in its judgment. The clause as it now stands is a recipe for delicate and protracted legal argument. The police service finds this disappointing. The primary purpose of the Bill is to clarify and simplify police powers. In this instance it palpably fails to do so.

I recognise the necessity for safeguards for the public, but I seek equal safeguards for police officers; and that can be understood readily. Because of High Court cases where people have been discharged on a technicality, it is better that subsection (5) be redrawn in the words of my amendment, which says: The above subsections shall not have effect where the person to be arrested or some other person by his conduct makes it impossible for the constable to so inform him". I beg to move.

Lord Denning

My noble friend Lord Plant is quite right. Under the case of Christie v. Leachinsky, no arrest is lawful unless the accused is told as soon as practicable of the grounds for the arrest, so that he can, if need be, take steps to get himself released. That was said in 1943, in an appeal case. I should have thought that the clause as it stands sufficiently states the legal requirements, and that really there is no need for my noble friend's amendment. If his conduct made it impossible for the constable to inform him, the court would hold that it was not practicable. Although I agree with the whole sentiment of what my noble friend has said, I think it is unnecessary to have this amendment to make it clearer.

Lord Donaldson of Kingsbridge

With great deference to the noble and learned Lord, Lord Denning, I feel that so much of this Bill has not been terribly helpful to the police that, when they want something which is as clearly right as is this amendment, we should support it. I am very happy to do so.

9.52 p.m.

Baroness Trumpington

This clause requires an arrested person to be informed of the fact of, and grounds for, arrest as soon as practicable after the arrest. The only exception to this rule is covered by subsection (5), which states that this information need not be given if it is not possible because the prisoner escapes before this can be done. If this rather odd subsection were not in the Bill, the police officer could be accused of a breach of conduct for not having fulfilled his duty. This amendment would replace the subsection by a more general reference to the conduct of the arrested person or others making impossible the giving of the information.

I do not see the need for such a provision. One can envisage situations where the giving of this information has, in the circumstances, to be delayed. As the noble Lord, Lord Plant, has already mentioned, an obvious example concerns a person who violently resists arrest. The police officer cannot be expected to give him information at the same time as he is struggling with him. But the clause already allows for this. Subsections (1) and (3) state quite clearly that the information only has to be given as soon as is practicable after arrest. In the circumstances I have described, it would not be practicable to give the information at the time of arrest.

However, I see no reason why it should not be given later, when the man has been subdued or has quietened down; that is, when it is practicable. But the effect of the amendment proposed by the noble Lord, Lord Plant, would be to remove this right entirely if the information cannot be given immediately following arrest. That cannot be right. The only circumstances which should relieve the constable entirely of the obligation to provide this information is when the person is no longer available to receive the information; that is, when he has escaped. That is what subsection (5) provides, and I hope that the noble Lord. Lord Plant, will withdraw his amendment. At the same time, may I thank the noble and learned Lord, Lord Denning, for dealing with the case of Christie v. Leachinsky, which I should not have had a clue how to answer.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

[Amendment No. 87 not moved.]

Clause 28 [Voluntary attendance at police station etc.]:

[Amendment No. 87A not moved.]

The Deputy Chairman of Committees (Earl Cathcart)

In calling Amendment No. 88, I should inform your Lordships that if it is agreed to I cannot call Amendments Nos. 89, 89A or 89B.

Lord Hutchinson of Lullington moved Amendment No. 88: Page 24, line 27, leave out paragraphs (a) and (b) and insert—("he shall be informed at once that he is—

1. (a) entitled to leave at will unless he is placed under arrest;
2. (b) under no obligation to answer any questions other than to give his name and address;
3. (c) entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told that he is at the said police station or other place;
4. (d) entitled, if he so requests, to consult a solicitor privately at any time;
5. (e) under arrest if a decision is taken by a constable to prevent him leaving at will;

and in the case of the matters mentioned in paragraphs (a), (b), (c) and (d) above he shall be so informed both orally and in the form of a written notice signed by the constable and endorsed with the date and time when it is given to him.").

The noble Lord said: Some amendments are more important than others, and I submit to the Committee that this is an important amendment. Your Lordships will see that the amendment is to Clause 28. The moment at which it is suggested that this information should be given to the person concerned is the moment when a person for the first time gets into the police station.

Lord Elton

Will the noble Lord give way? I wonder whether the noble Lord could help your Lordships and me. As I understand it, the agreed list of groupings ran from Amendment No. 87A to Amendment Nos. 88, 88A, 89, 89A, 89B, 89C, and 89E. The first of those was not moved. It would be helpful if we knew whether the other amendments are going to be spoken to, which is what we are at present expecting.

Lord Mishcon

Can I help by saying that so far as I am concerned I shall be speaking to Amendment No. 89A. I shall not be moving Amendment No. 89B. I shall be speaking to Amendment No. 89C and I will also be speaking to 89E. Amendment No. 89A: Page 24, line 29, at end insert ("and shall be so informed in writing"). Amendment No. 89C: Page 24, line 32, at end insert— ("and he shall be treated not less favourably than a person detained pursuant to Part IV of this Act."). Amendment No. 89E: After Clause 28, insert the following new Clause—

("Detention in police building.

. Where a person is present in a part of a police building not open to the public, he shall be deemed to have been arrested and kept in police detention after a period of 6 hours from his arrival at the police station and the provisions of Part IV of this Act shall apply accordingly.").

Lord Hutchinson of Lullington

I was saying that the very first moment when a member of the public enters a police station is a crucial moment. He may enter the police station as a result of an arrest which comes earlier (and that is dealt with under Amendment No. 87A) or he may enter a police station because he is there—to use the hackneyed phrase—to assist the police with their inquiries. But at that stage he goes from outside into the precincts of a police station. I would suggest that that moment is the most crucial moment. At that moment it is vital that a person should be told of his rights.

Once he is in the police station—and this is pointed out in the Bill—if the police officer in the police station decides that he is not going to be allowed to leave the station, then he is under an obligation to tell that person that that is the situation and at that moment he then becomes under detention and his freedom is at an end. But up to that moment he is in the police station voluntarily and he is, on the face of it, assisting the police with their inquiries.

The code at the moment deals with this situation at page 2 paragraph 1(b) where it says: Although certain sections of this code apply specifically to persons detained at police stations, those there voluntarily to assist with an investigation should be treated with no less consideration and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station". So that is dealt with in the code of practice. It is also dealt with in the code of practice at page 18, where it says at paragraph 11.4: If a person is not under arrest when a caution is given, the officer concerned should say so. If he is at a police station, the officer should also tell him that he is free to leave if he wishes and remind him that he may obtain legal advice if he wishes". So at the moment those matters are in the code of practice.

However, the most crucial principle which there is in relation to the freedom of the individual, and the principle on which the whole of our criminal law is based, is the right of silence. This was looked at by the Royal Commission yet again and the Royal Commission decided that it was right and proper that the right of silence should be respected and that previous suggestions—particularly in the Eleventh Report of the Criminal Law Revision Committee —that in certain circumstances it should in some way be curtailed, should not be followed. So the right of silence is still enshrined in our criminal law.

When a person enters a police station in this country he has only one right because we have no written constitution and we have no fifth or fourth amendments, or whatever they may be, and that right is the right to silence—the right to be protected from self-incrimination.

In my submission, it is absolutely crucial that on entering a police station one should be told of this fundamental right. The curious thing is that, although under this particular Bill one may be told of other rights when one enters a police station—for instance, under Clause 27(3) one is told that the person arrested is to be informed of the ground for the arrest (we have just dealt with this) at the time of, or as soon as is practicable after, the arrest—no provision is made in the Bill for informing the person in the police station of a far more important right, the right to silence.

Therefore, we suggest in the amendment that immediately a person enters a police station he shall be informed at once of those matters to which I have already referred as being in the code. I suggest that they should not be in the code; they should be enshrined in the statute, because there is no more important right.

Therefore, a person should be informed that he is entitled to leave at will unless he is placed under arrest; that he is under no obligation to answer any questions other than to give him his name and address; that he is entitled to have a friend or relative informed if he wishes; that he is entitled to consult a solicitor privately if he wishes. He is also entitled to be told that he is under arrest if a decision is taken by a constable to prevent him leaving at will. If your Lordships think it right and proper that this amendment should be passed, all those matters would be enshrined in the Bill.

I would suggest that there can be no reason for not telling a person what are his rights if he has them. As I ventured to point out at Second Reading, for some reason, although there is this absolutely basic and fundamental right, nowhere in the Bill is that right spelt out. I suggest that this is the time to spell it out. I beg to move this amendment on that basis.

Lord Mishcon

It may be for the convenience of the Committee and, I very much trust, for the convenience of the noble Lord the Minister, if at this stage I speak to Amendments Nos. 89A, 89C and 89E. I have already said that the rest of the amendments in this group, which have my name and those of my noble friends attached to them, will not be separately moved.

I am so glad that the noble and learned Lord, Lord Denning, is in his place at this moment. It would from my point of view be very reassuring to hear him confirm, if he wishes to do so, my own reference to the law as it now stands and the law as it will be if this Bill is passed and if Clause 28 stands part of the Bill without amendment.

I say at once that I support everything that the noble Lord, Lord Hutchinson, has said. We shall not be moving our own separate amendments, but supporting his.

There is a phrase which has grown up in police bulletins and news items which is unknown to the law. That phrase is, "Mr. X is helping the police with their inquiries". There is no right of detention known to the law at present for the purposes of inquiries being made. Indeed in the case of R. v. Lemsatef, a 1977 case, Lord Justice Lawton stressed that it must be clearly understood that neither customs officers nor police officers have any right to detain somebody for the purposes of getting help with their inquiries.

The draft code of practice, which has been referred to, deals with the treatment and questioning of suspects. It sets out the rules which apply to these persons and envisages that some of them will be cautioned. That means that, presumably, there will be three categories of suspects, as I call them. There will be the person who is detained; there will be the volunteer and there will be the cautioned volunteer. It is at this stage that I say—I am authorised to do so—that the Law Society is extremely apprehensive about the clause as it at present stands. The Law Society is behind the amendment to which I am speaking.

The situation is that the Law Society and those who think similarly as criminal practitioners in law would like to see the end of the category of those who "help the police with their inquiries". But it looks as though this Bill will, in the end, contain a right of detention so that inquiries may be made. I am looking at the position on that basis. I am saying to the Committee that upon that basis—bearing in mind the present state of the law as it has been for a very long time—if we are introducing this right into our law, we have to do so with the utmost care.

There are three provisions which in our view ought to be inserted. The first is—this has been spoken to already—that those who attend voluntarily at a police station to help the police with their inquiries should be informed immediately upon arrival and in writing of their right to leave at will unless they are placed under arrest. That must be a right that is clearly spelt out.

There is not the slightest doubt that people who find themselves in this position find themselves in a position, very often, not only of acute embarrassment (which we should not be so concerned about) but, where they think that they have to say that they are properly deprived of their right to leave, they have to put up with conditions where their family at home may be extremely worried; and the result of that is that very often it is not the truth that comes out but the fearful reaction of people who want to get out of this atmosphere as fast as they possibly can. That is what we have to be careful about if we are giving this right.

So I turn to the second provision which must be inserted. The declaration must be there in the statute, and not just in a draft code, that a person who attends voluntarily, whether cautioned or not, shall be treated "not less favourably"—and that is what the draft code says—than a detained person. And when we get to Clause 56 of the Bill—I am not going to anticipate it, but it is relevant to say it now—it should be clearly said in that clause that they are entitled to legal advice.

The third and last thing to which I need to refer your Lordships by way of a provision is this. A time limit must be set on the presence of these people without their being arrested. If they are still helping the police with their inquiries six hours after arrival at the police station, they are in need of the protection of the detention provisions. They should be deemed to have been arrested and detained after that period of time.

To distinguish those who are, in fact, suspected of crime from those who attend police stations for other purposes, we would propose that a person present for six hours in a part of the police station not open to the public shall be deemed to have been arrested and taken to the police station. That should be clearly put into this Bill; and the detention provisions will then apply accordingly. I hope that your Lordships will have seen that I have spoken now to Amendment No. 89A, and given my reasons for it; to 89C, and given my reasons for it; and, lastly, I have just spoken to 89E and given my reasons for that.

Lord Hooson

I speak to Amendment No. 88, and I agree entirely with the noble Lord, Lord Hutchinson of Lullington, that this is one of the most important amendments to this Bill. In our criminal law we are concerned with the eventual aim of convicting the guilty and protecting the innocent. We are all agreed about that aim. But we do it in a civilised way in a civilised society. It seems to me that Amendment No. 88A contains four rights which everybody would agree are the rights of any person who is asked to attend at a police station. That is, he is entitled to leave at will unless he is placed under arrest; he has no obligation to answer any questions; he is entitled to have somebody know where he is; and he is entitled, if he so requests, to consult a solicitor privately at any time. We are all agreed that these are the rights of a person who is asked to go to a police station. Why on earth are we afraid that he should be informed of those rights? This question seems to me to be elemental.

On Second Reading I related the story of what happened to a friend of mine a man of totally good character against whom nothing could be said. He was taken to a police station and interrogated on the suspicion that an offence had been committed—an offence which had never been committed at all, and of which he was completely cleared the following day. When he related his experiences, I said to him, "Did you know what your rights were?" He said, "It is all very well for you lawyers to say this, but when you are in that kind of atmosphere—and I thought that my dearest had died, as she actually had—your reactions are very different".

Also, as anybody who has any practical experience knows, whether through sitting on the bench or as an advocate in our criminal trials, so much of the argybargy in trials is concerned with what happened in the interviews before the actual arrest was made and the charge was brought. That is, there is so much argument about the verbals—whether the man was cautioned or not, whether he was told what his rights were—in this amendment there is a provision for the matters mentioned in paragraphs (a), (b), (c) and (d), which are the fundamental rights that are referred to; he shall be informed both orally and in the form of a written notice signed by the constable and endorsed with the date and time when it is given to him. That would mean there would be certainty as to what had happened in the police station.

If a man is a sophisticated criminal or an habitual criminal, he knows what his rights are, he does not have to be told, it is surplusage to go through them with him. But what is important is that the innocent person knows, that the person who is not accustomed to going into a police station knows, what his or her rights are.

Now it is agreed, as I understand it, that many of these matters should be included in the code but why should they not be enshrined in an Act of Parliament? We have always prided ourselves in this country on the basic rights of silence, that a man should not incriminate himself. Many criticisms have been made from time to time, but every investigation has resulted in the end in people coming down in favour of the maintenance of that right.

Let me remind your Lordships of the importance of this matter. When a person is, to use the euphemism, "helping the police with inquiries" and he is in the police station, that does not count. The time that he spends there may be two or three days until he is actually arrested, and it is only then, of course, that the time begins to run against him for detention. That is when the 24 hours begins. So that the practical effect of this amendment is very, very important. I hope that your Lordships will give all possible support to this amendment.

Lord Denning

I should like to support these amendments in one or other form. We all know the phrase, "he or she is helping the police with their inquiries". We all jump to the conclusion at once, "Oh, the police have found the man", or "They've got him". That is the inference which we draw from the statement that A or B is helping the police with their inquiries.

The right way to make inquiries, if it is to be really a voluntary statement, is to see the man in his house or his private room or something of that kind and make the inquiries of him there. Then it is voluntary enough. But to say to him, "Are you willing to come along to the police station?" or "Will you come along to the police station?", is halfway to making an arrest. When he has got to the police station, the ordinary person can half feel he is under arrest, even though the police are said to be making inquiries. Then is the time to make it quite clear to him that he is there voluntarily and that he can leave at that moment if he likes. This virtually means in many cases that he is under suspicion. In those circumstances he ought to be told, "Well, you can have a solicitor, if you like; you need not say anything", and so forth. In other words, give him all the protection which should surround a man who is under suspicion, because that is why he is there.

A clause like this put into the statute will ensure the protection of the individual. When he is there for making inquiries, he really ought not to be treated as a suspected person. I would support these amendments in one or other form.

10.20 p.m.

Lord Elton

It will not be possible for me to answer the speeches as briefly as I might have wished, because noble Lords attach great importance to them and they have spoken to them in some detail. As it is now drafted, Clause 28 makes it clear that anybody voluntarily attending a police station is free to leave at any time unless he is placed under arrest. To this extent it is simply declaratory of the present law; but the clause goes further than that by requiring the police to inform the person that he is under arrest, not just if he tries to leave and is prevented from doing so, but as soon as it is decided that he would be prevented if he did try. So there is no chance of his being in detention in ignorance, as it were.

All these amendments seek to expand the simple provisions of the clause by requiring the police to provide persons voluntarily attending a police station with certain information. No. 88 would require such a person to be informed both orally and in writing, of his right to leave at will unless placed under arrest, that he is not obliged to answer any questions other than to give his name and address, and that he is entitled to have a friend informed of his whereabouts and that he is entitled to consult a solicitor privately at any time.

In addition, No. 88 would impose an enormous administrative burden on the police. The first half of the starred amendments tabled by the noble and learned Lord, Lord Elwyn-Jones, repeat ideas put forward by the non-starred amendments I have mentioned. A great many people attend police stations voluntarily for all kinds of reasons. They include, for example, victims of burglary attending to identify property and victims of assault attending to identify a suspect or to provide a statement. I think the noble Lord, Lord Mishcon, has picked up the point that I have referred to two amendments he did not speak to, but it was only en passant.

As I say, people of many sorts attend police stations voluntarily for many reasons. If these amendments are accepted, the first thing that must happen would be that a policeman would inform them, orally and in writing, that they were entitled to leave at will unless placed under arrest. Is that the way to treat a shaken victim or a hesitating and irresolute witness to a crime? Such people need encouragement to come to the police, and this is particularly likely to be so in the case of victims of rape and sexual assault. It is easy to see how a statement of the right to leave as soon as they arrived could produce entirely the wrong impression.

Similarly, the large volume of paper that would be produced by the voluntary attendance forms would be entirely disproportionate to any good it could achieve. Such a procedure would be rather affronting, I think, and extremely upsetting to victims of crime who actually come to assist the police, to be told at once: "Very well, my dear; of course you can go away again if you like. We will not stop you. You have a right to see your solicitor and get advice. You are not under arrest, but if we do arrest you then you cannot leave".

I agree it is very important indeed that any person who is at a police station voluntarily as a suspect should be fully aware of his position and of his right to leave. There we are on closer ground. That is to ensure that he is there voluntarily and not under a disguised compulsion. We have now amended the draft detention code of practice to strengthen precisely this safeguard, and the noble Lord, Lord Hutchinson of Lullington, drew attention to Section 11 of the draft. I will not repeat what it requires: all those requirements in paragraph 11.4 and all those in 3.8.

However, I should emphasise that the code requires the caution to be given as soon as there are grounds to believe that a person has committed an offence. You do not even have to wait for them to be reasonable grounds. If there are any grounds for thinking that the person has committed an offence, then he must be told so and the person must be cautioned and must also be told—exactly what the noble Lords want in their amendment—that he is free to leave the police station if he wishes as soon as he is a suspect in the eyes of the police. The right to leave is a most fundamental right. As I have explained already, it is fully dealt with in the code of practice, and I do not really see the need for the person to be handed a little card stating this right, together with the date, the time, and the name of the constable concerned, as I think the noble Lord, Lord Donaldson, was going to suggest.

I am in a difficulty in that I do not want to refer to the amendments that were not moved, but I do want to be certain of referring to the amendments that were moved. The noble Lord, Lord Donaldson, has proposed paragraphs (c) and (d) and I just wonder whether that is the amendment to which the noble Lord, Lord Hutchinson of Lullington, spoke. Indeed it is, but it appeared under the name of the noble Lord, Lord Donaldson. So I am speaking to one that has been moved. May I comment, therefore, on the other provisions contained in that amendment?

Under the proposed paragraphs (c) and (d), the person would be informed of his right to have someone informed of his whereabouts and to consult privately with a solicitor. Section 11 of the draft codes requires a person voluntarily attending a police station to be reminded that he may obtain legal advice if he is cautioned. The same point is made in paragraph 3.8 of the code and paragraph 6.1 states, Any person at a police station"— that means whether he is detained or is attending voluntarily— may consult and communicate privately, whether in person, in writing or on the telephone, with a solicitor of his own choice". Paragraph 6.2 makes it clear that this right may only be suspended in the cases set out in Annex B on page 31 of the booklet. Your Lordships will note that it does not permit suspension unless the person is in detention in connection with a serious arrestable offence. Finally, the note for guidance at the bottom of page 2 states that those voluntarily attending a police station enjoy an absolute right to obtain legal advice or to communicate with anyone outside the police station.

Paragraph (b) surprised me somewhat. It implies that a person who is not under arrest is under an obligation to provide his name and address to the police. I appreciate that the clause refers to persons voluntarily attending a police station who might be expected to have no objection to providing their name and address. However, they are certainly under no obligation to provide a name and address if they do not wish to do so. We object to the use of the phrase "not obliged to answer questions".

It seems to me that the draft code and the Bill together provide the reassurances that your Lordships want, and that your Lordships have not distinguished between those people who really must not be greeted either with a large amount of bureaucratic paperwork, or with the suggestion that they must feel quite free to leave because they have not yet been arrested, and those seem to me to be the central considerations regarding these amendments.

Lord Donaldson of Kingsbridge

On the last point, it is worth noting that Clause 28 begins, Where for the purposes of assisting with an investigation". Those are the people that we are talking about. We are not talking about people who are coming to say that they have had an accident or have been raped. We are talking about people who are there to assist in investigations, which does not go the whole way to meet the noble Lord but goes some way.

Lord Elton

I entirely accept that. It applies to the people about whom we are most concerned, who are the victims, and to the witnesses who may be rather frightened at turning up at a police station. To be greeted with the reassurance that they have not yet been arrested, so they will not be kept there, is not the best way to treat them.

Lord Mishcon

May I ask the noble Lord the Minister why he concentrates repeatedly on the draft code of practice in regard to matters that are essential to the liberty of the subject, instead of having them in an Act of Parliament? Why is the draft code of practice the holy place in which this should be writ, instead of what should be the Bible itself, which is the Act of Parliament?

While I am on my feet, may I ask the noble Lord—not that I want to extend these proceedings at all—why, especially as they are amendments approved by the Law Society, he has not dealt with Amendments Nos. 89A, 89C and 89E? I am sure that he will do it very briefly, but I know that he will want in courtesy to answer them.

Lord Elton

As to the noble Lord's first supplementary question, it seems to us that the Act of Parliament should state the law and that it should be explained and its implementation should be regulated by the code of conduct, which I suspect may be more freely available and much easier to understand for people interested than the Act of Parliament itself.

As to the other matter, I regret that I stopped speaking at the point where I thought your Lordships would be more interested in hearing somebody else's voice without realising that I had not picked up the noble Lord's point regarding the Law Society. The noble Lord drew attention to the Law Society's concern that the Bill and the code together distinguished three categories of person in police stations: the detained person, the cautioned volunteer and the plain volunteer. This, he suggests, is a return to the concept of persons detained to help the police with their inquiries, which the court criticised in the case of Lemsatef and which your Lordships and the papers have echoed ever since. No such concept is entailed. The Bill recognises only one category of detention: those who have been arrested on suspicion of an offence, to whom the Bill attaches a network of safeguards. These the code underpins. Persons are either detained in the right of arrest and so informed at the police station or they are not so informed because they are not so detained.

Lord Wigoder

May I ask the Minister to be kind enough to summarise his argument by a simple answer to two questions which I want to put to him. Let us leave entirely on one side for the moment the question of whether these matters should be contained in the code of practice or in the statute, because that is a separate argument. May I ask the Minister to look at the rights set out in paragraphs (a), (b), (c), (d) and (e) of Amendment No. 88 and to say whether, with the possible exception of the words "other than to give his name and address" in paragraph (b), he agrees that those are the rights which a person possesses if he is voluntarily at a police station.

Lord Elton

Yes.

Lord Wigoder

Secondly, will the Minister be kind enough to tell me which of those rights he agrees that, in one form or another, a person voluntarily at a police station should be informed of and which he says that person should not be informed of?

Lord Elton

The noble Lord asks a shrewd question. It is clearly right that a person detained in a police station should be aware of his rights. The noble Lord will be aware, as he has been prompted by noble friends or noble allies, of the extent to which the police are required both to protect those rights and to inform the person in the police station of those rights.

It is difficult to summarise what I have already said. It seems to me that the noble Lord's amendments do not distinguish between those people who are in a police station helping the police with their inquiries because they are victims and those who are helping the police with their inquiries because they may become suspects. But since they immediately trigger the information he wants as soon as they become suspects, the noble Lord is concerned only with those who are not victims and who are helping the police with their inquiries as suspects. The answer to the noble Lord's question, therefore, rests in Hansard.

Lord Hutchinson of Lullington

I think all noble Lords who know the noble Lord the Minister will surely agree that in response to this amendment he has been at his most disappointing. I say that with the greatest possible respect. We have heard the noble and learned Lord, Lord Denning, with all his experience over all these years, say in terms that these amendments enshrine the protection of the individual in this country when that person enters a police station. That is the situation. The noble Lord the Minister has been saying that this procedure would embarrass people, and that it would frighten people who are in the police station and not under caution but there simply to help the police. But in the Minister's own code, at page 2, it states in paragraph 1(b): Those who are there voluntarily to assist with an investigation should be treated with no less consideration and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station". It says that in the code of practice. There is nothing there about how frightened or upset people would be to be told that they have these rights.

Lord Elton

Will the noble Lord give way? The difference between the code of practice and the Bill—and he has brought it to the forefront of the argument—is surely this: if it is in the Bill that somebody must be told then—willy-nilly—they must be told. But if it is in the code of practice that they have these rights, then it is up to the perceptive police constable or the station sergeant to decide whether the old lady who has just been "mugged" ought to be told upon reception that she has a right to leave the police station if she has not been arrested. It is a matter of discretion. The amendment on the Marshalled List does not give that discretion, and I think it is mistaken.

Lord Hutchinson of Lullington

The simple fact is that people should have these rights—and one can see no reason whatsoever for not enshrining them, as the noble and learned Lord, Lord Denning, has suggested, in this Bill. This is one of the most crucial points in the whole Bill and having regard to the observations which have been made by noble Lords, I will test the views of the Committee.

10.37 p.m.

On Question, Whether the said amendment (No. 88) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 35.

DIVISION NO. 3
CONTENTS
Airedale, L.	Hutchinson of Lullington, L.
Ardwick, L.	John-Mackie, L.
Attlee, E.	Kilmarnock, L.
Beaumont of Whitley, L.	Masham of Ilton, B.
Beloff, L.	Mishcon, L.
David, B. [Teller.]	Monson, L.
Dean of Beswick, L.	Pitt of Hampstead, L.
Denning, L.	Plant, L.
Diamond, L.	Ponsonby of Shulbrede, L.
Donaldson of Kingsbridge, L.	Renton, L.
Elwyn-Jones, L.	Stewart of Alvechurch, B.
Elystan-Morgan, L.	Stewart of Fulham, L.
Ewart-Biggs, B.	Stoddart of Swindon, L.
Foot, L.	Tordoff, L.
Gifford, L.	Underhill, L.
Graham of Edmonton, L.	Wigoder, L. [Teller.]
Hooson, L.

NOT-CONTENTS
Airey of Abingdon, B.	Gardner of Parkes, B.
Avon, E.	Glenarthur, L.
Bellwin, L.	Gray, L.
Belstead, L.	Hornsby-Smith, B.
Brougham and Vaux, L.	Long, V.
Caithness, E.	Lucas of Chilworth, L.
Cameron of Lochbroom, L.	Macleod of Borve, B.
Campbell of Alloway, L.	Margadale, L.
Cathcart, E.	Marshall of Leeds, L.
Cockfield, L.	Mottistone, L.
Coleraine, L.	Portland, D.
Cork and Orrery, E.	Skelmersdale, L.
Craigmyle, L.	Swinton, E. [Teller.]
Crathorne, L.	Trefgarne, L.
Denham, L. [Teller.]	Trumpington, B.
Eccles, V.	Vaux of Harrowden, L.
Elton, L.	Whitelaw, V.
Ferrier, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 88A, 89, 89A, 89B, 89C not moved.]

10.44 p.m.

Baroness Ewart-Biggs moved Amendment No. 89D: Page 24, line 32, at end insert— (" (2)(a) where a child or young person voluntarily attends any such place as mentioned in subsection (1) above for the purpose of assisting with an investigation, such persons as are required to be informed under section 55 of this Act, shall be informed of his whereabouts together with the reason for his attendance at that place, without delay. (b) any procedure involving the participation of a child or young person, whether as a suspect or witness, shall take place only in the presence of the appropriate adult mentioned in paragraph (a) above.")

The noble Baroness said: This amendment is particularly in the interests of young people and their parents. Everything that has been said on previous amendments applies even more, but I should like briefly to remind your Lordships that the code of practice includes the safegard that, save in certain circumstances, children and young people under the age of 17, whether suspected of a crime or not, shall be interviewed only in the presence of a parent or guardian. In the case of a child or young person in the care of local authorities a representative of that authority should be present, or, in their absence, some other responsible adult who is not a police officer. Clearly this requirement is shown by the words, whether suspected of a crime or not". and should include circumstancss in which a child or young person is being questioned while assisting with an investigation.

The purpose of the amendment is to ensure that the duty of the police to inform the parent or guardian, and so on, is immediate, and, secondly, that the safeguard referred to in the code of practice is brought into the Bill itself—a request which was made in the previous amendments. The amendment is also to ensure that the child or young person's attendance is truly voluntary and that anything the child or young person says, any statement that they make, should be in the presence of an appropriate adult.

I believe that the amendment will find favour with the Government because surely it is part of this growing ethos that parents should be involved and responsible for their children and that they have a right to know where their children are. I think the Minister will agree that a considerable length of time can be spent helping police with their inquiries. During that time a parent might undergo very great anxiety. Therefore, this amendment is very much in the line of trying to keep parents involved with their children and to feel responsible for their children.

There is no doubt that parents do worry a lot. I know that the Children's Legal Centre receives innumerable calls from parents who are anxious as to where their children are. The amendment would ensure that the children should be safeguarded and that their parents should be absolved of that worry. I beg to move.

Lord Donaldson of Kingsbridge

From these Benches we fully support the amendment. I can see no possible reason why it should not be accepted. I think I need say no more.

Lord Elton

I must start by thanking the noble Baroness for putting her finger on a gap that has crept unintentionally into the protection which the Bill and its associated codes of practice provide. When my right honourable friend the Minister of State replied to a similar amendment in Committee in another place he was able to draw attention to the codes of practice on the detention, treatment and questioning of suspects by the police. He pointed to provisions ensuring that the questioning of juveniles should not take place in the absence of an adult except in an emergency, whether or not the youngster is suspected of a crime.

I fear that in the revision of the code which has taken place since the Bill was considered in another place, and which has been generally welcomed, this extension of the safeguard to juveniles not suspected of crime has been left out. That was not intended and I can assure the Committee that it will be put back in the next revision.

In the case of the draft identification code our revising zeal has not had that result. Paragraph 1.8 provides for the presence of parents in the case of a juvenile who attends a police station either to identify a suspect on a parade or to be identified himself, which meets the second part of the amendment. In either case the parent must obviously have been informed in order to be there.

The noble Baroness has argued for the inclusion of those provisions in the Bill rather than the codes of practice. But the point is that the codes are able to take account of the fact that there may be some instances in which the parents are not available to attend, or, indeed, to take an extreme example, in which their presence could even be undesirable. Take, for example, a case in which a child complained to the police about sexual assaults on him by a parent; the police would under the amendment at once have to inform the parents, although it might be vital for the interview with the child to remain confidential. The codes are capable of taking account of such circumstances, whereas the amendment would fetter the police too tightly to allow for such contingencies, however rare.

I hope therefore that the noble Baroness, subject to my undertaking on the first leg of her amendment, will be content to withdraw it.

Baroness Ewart-Biggs

I am very grateful to the Minister for being so responsive to the first part of the amendment, but I am rather disappointed about his response to the second part. As I say, we should like to see that provision enshrined in the statute. It would make one feel very much safer about the matter.

I do not really agree with the Minister when he says that sometimes a parent is not available. It is not only the presence of a parent that we are asking for. We are asking for the presence of any appropriate grown-up who is not a police officer. The Minister also said that there are occasions when it is better that a parent should not be there. That is really condoning a parent not being a responsible parent. Our whole outlook is that the law is there to support parents so that they can be more responsible.

I am disappointed that the Minister will not accept the second part of the amendment, but perhaps it would be right for us to think about the matter and consider whether it is something that we should bring back later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

[Amendment No. 89E not moved.]

Clause 29 [Arrest elsewhere than at police station]:

Baroness Trumpington moved Amendment No. 90: Page 24, line 34, after ("person") insert (" (a)")

The noble Baroness said: On behalf of my noble friend I speak to this amendment, and it may be convenient if I speak also to Amendment No. 91.

Amendment No. 91. Page 24, line 34, after ("constable") insert— ("; or (b) is taken into custody by a constable after being arrested by a person other than a constable;")

Subsection (1) provides that, subject to the other provisions of the clause, a person who has been arrested by a constable must be taken to a police station as soon as is practicable after the arrest. This will ensure that the rights and safeguards set out in Parts IV and V of the Bill come into play as soon as is practicable.

While subsection (1) is satisfactory for the normal run of arrests where the arrest is made by a police officer, it does not cater for the case where the arrest is made by a member of the public, whether a householder who arrests a burglar in this living room or a professional store detective. Clause 23 preserves the existing power of a citizen to arrest for an arrestable offence. I think it is clear that the duty imposed on the police by subsection (1) should apply just as much in the case where an arrested person is given into their custody as in the case where they made the arrest in the first place. The amendment will ensure that that is so. I beg to move.

Lord Elystan-Morgan

We on these Benches accept that these two amendments are very useful in that they deal with small lacunae. We therefore welcome them.

On Question, amendment agreed to.

Baroness Trumpington moved Amendment No. 91:

[Printed above.]

The noble Baroness said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Denham

I think I rather seek the guidance of the Committee here. The next amendment on the Marshalled List is Government Amendment No. 92, but I think it is probable that other amendments in the name of the noble Lord, Lord Plant, will be discussed at the same time. As we are very nearly at 11 o'clock this might be a convenient place at which to break. If that has the general agreement of the Committee, I beg to move that the House do now resume.

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

House resumed.