Lords Sitting of 9 July 1984

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter.

Road Safety: Blood Tests
Lord Underhill: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they propose to take following the conclusion of the six months' trial period during which motorists will have had the blood option as an alternative to evidential breath testing.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, the steps to be taken will depend on our assessment of the information which we are deriving from this monitoring. The six months' monitoring period is less than half way through, and it is too early to draw firm conclusions. We shall publish a report on the results.
Lord Underhill: My Lords, I thank the Minister for that reply. But will he not agree that in view of the adverse publicity which led to the extended blood option it is essential that public confidence be restored in evidential breath testing? Will the Minister give an assurance that, as the six months' period is up on 16th October, no action will be taken while Parliament is in recess? Will he also give an assurance that there will be no withdrawal of the blood option until Parliament has had the fullest opportunity to consider the final results?
Lord Elton: My Lords, I can confirm that the object of having this period of review is indeed to ensure that the public can have a justified confidence in the machinery being tested. As I have said already, it is too early to say what the results of this period of monitoring will be; but I can assure the noble Lord that the period will not be curtailed unless there is very clear evidence that it is not necessary to extend it.
Lord Ironside: My Lords, while I accept that the breathalyser is suitable for testing for alcohol, may I ask this question. Does the Minister not agree that in cases where the police suspect drugs it is very necessary to have a blood test? Therefore, I hope that he will bear this significant point in mind in making his assessment.
Lord Elton: My Lords, the intoximeter is designed solely to test for alcohol in the blood. The requirements for testing for drugs remain unaltered.

Widows: Maternity Allowance
2.40 p.m.
Baroness Macleod of Borve: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are aware that recently widowed pregnant women are unable to claim maternity allowance.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, a woman may draw a widow's allowance during the first 26 weeks of widowhood, followed by a widowed mother's allowance if she is pregnant by her late husband. She is not prevented from claiming maternity allowance, but only the amount of the more favourable benefit for which she qualifies is paid. In this case, it would normally be the widow's benefit.
Baroness Macleod of Borve: My Lords, I thank the noble Minister for his reply. May I ask whether he agrees with me that the people who are mentioned in this particular Question about the maternity allowance are very few? These people are young women who have not had their first baby but are pregnant and whose husbands have been killed or who have died from other causes. Would he agree with me that no woman under 40 is able to claim a widow's pension and that no woman who is pregnant with her first baby is able to claim maternity allowance until the baby is born?
Lord Glenarthur: My Lords. I certainly agree with my noble friend that only a very small number of people fall into this particular group. As my noble friend will know, this is a contributory benefit as opposed to a non-contributory one. I have some sympathy with the view which my noble friend expresses. But as she is aware, a review is being undertaken at the moment by the department (details of which were announced by my honourable friend the Parliamentary Secretary for Social Security on 18th May) which will encompass the maternity benefits and payments administered by the department and the maternity pay scheme administered by the Department of Employment. It will examine the scope for simplified administration and for making more effective use of the present resources. I am sure that my honourable friend will wish the review to consider the suggestion of the eligibility of widowed mothers for overlapping benefits, which I think is what my noble friend is looking for.
Baroness Gaitskell: My Lords, may I support my noble friend in her most sympathetic Question? To be widowed, to lose one's husband, is a very terrible experience.
Lord Glenarthur: My Lords, I entirely share the views which the noble Baroness expresses. That is why the review has been set up to look into this problem.
Barones Jeger: My Lords, I appreciate that this whole question is to be reviewed, and I am sure that the whole House welcomes that. However, can the noble Lord make it clear whether an expectant mother whose husband dies during her pregnancy is disadvantaged as compared with a woman happily not so bereaved? Is she disadvantaged compared with an unmarried, single mother so far as this benefit is concerned? Can the noble Lord assure the House that the union disputes at Newcastle are not causing any delay in the payment of benefits in these cases?
Lord Glenarthur: My Lords, regarding the last part of the supplementary question, I am not sure of the answer, but I will check and let the noble Baroness know. I know the dispute is affecting certain things but I do not know if it is particularly affecting those we are discussing. So far as the comparative rates are concerned, I do not think it would necessarily be right for me to give a table of the rates now, but I can certainly let the noble Baroness have them. However, the point is that it has always been the rule of our rather comprehensive social security system that there should not be two payments of benefit for the same purpose. The point that we are essentially talking about here is the beneficiary's maintenance. Where a person qualifies for two national insurance benefits such as widow's benefit and maternity allowance, both of which are intended for that maintenance, only the amount of the higher benefit is paid.
Baroness Macleod of Borve: My Lords, as president of the National Association of Widows, may I thank my noble friend for his sympathetic answers today? May I also ask whether he would take a message back to his right honourable friend to ensure, as I think he said he would, that this particular very small group of women should be considered in the future?
Lord Glenarthur: My Lords, I will certainly ask my right honourable friend to look into this matter. I am sure that he will read the exchanges. I am well aware of my noble friend's work for the National Association of Widows, and I am sure that he will bear all that in mind.

Nurses: Smoking and Stress
2.43 p.m.
Lord Airedale: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, since the report Health or Smoking? states that smoking among nurses is a cause for grave concern, they are satisfied that the working conditions of nurses do not give rise to undue stress.
Lord Glenarthur: My Lords, the Government are not aware of any undue stress produced by nurses' working conditions.
Lord Airedale: My Lords, I am obliged for that Answer. Is it not astonishing that those who are best placed to see the suffering caused by smoking-related
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diseases should themselves find it so hard to give up the habit?
Lord Glenarthur: Yes, my Lords, but is is not just a question of giving it up. There are those who take it up as well, and the reasons for that are fairly complex. There have been a number of reports on the matter, and I think there is general agreement. If I may quote from the introduction to a report in 1982 called Smoking Amongst Nurses in Newcastle, the first paragraph stresses:
"all are agreed that the considerations most likely to be effective in dissuasion are, first, the health risks; secondly, the cost; thirdly, the unpleasantness and social unacceptability of the habit".
It is a question of people being at a formative age when thay take up nursing and of being among others who smoke. That is probably the cause, rather more than stress, to which the Question refers.
Lord Molloy: My Lords, is the noble Lord the Minister not aware that the men and women who work in this great profession are under constant threat of emotional assault? They are not repairing motor cars, they are not carpenters or joiners: they are dealing with human beings, and this causes an additional amount of stress. There has been evidence that relief from this stress and emotional concern is to be found in smoking. Would the noble Lord not agree that it behoves all of us to make whatever contribution we can to help the nurses of Britain's National Health Service and to see that any strain that can be removed in their working lives is in fact removed and not allowed to return?
Lord Glenarthur: My Lords, I note the noble Lord's point, but the fact is that they are not under the stress from which the noble Lord describes them as suffering. More nurses have been employed over the years, as the noble Lord knows. I am well aware that there are certain parts of the nursing service which are stressful, such as working with patients in psychiatry, with patients in intensive care, and so on; but there is not the evidence to support the fact that they are taking up smoking because of stress, particularly in these fields.
Lord Ennals: My Lords, is it not a happy coincidence for non-smokers that the noble Lord, Lord Airedale, has asked this Question on the day when the London Underground has gone smokeless? In relation particularly to the nurses, is the noble Lord the Minister aware that the Royal College of Nursing and other organisations representing nurses are very worried about this problem? Is there more that he thinks his right honourable friend can do to ensure that nurses in training have an opportunity to have brought to their attention the grave dangers of smoking and the importance of their setting a lead for others?
Lord Glenarthur: My Lords, so far as the Underground is concerned, I am delighted; but that is a personal point of view. So far as discouraging smoking among nurses is concerned, the Health Education Council, which the Government fund, have taken a number of steps to discourage smoking among nurses and to develop their role in educating patients about the dangers of smoking, which I think was a

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point to which the noble Lord, Lord Molloy, referred. For example, last year they issued booklet packs to hospital and community nurses which gave facts about smoking and advice on how best to communicate advice and information. The HEC have also organised a series of seminars aimed at increasing the knowledge of nurses about smoking.
Baroness Masham of Ilton: My Lords, may I ask the Minister whether he would agree with me that it might be a good idea if surgeons were to invite nurses who are heavy smokers to come and watch operations for lung cancer on those people who have smoked and are dying from lung cancer?
Lord Glenarthur: My Lords, I have a feeling that, anyway, there are probably many nurses who take part in these operations who are smokers. But anything that can be done to reduce smoking for the benefit both of people who smoke and for the health service is to be welcomed.
Lord Kilmarnock: My Lords, would the noble Lord not agree that nurses' accommodation is an important part of their working conditions? Would he undertake to do all that he can to see that no nurses' accommodation is unnecessarily closed, thus thrusting them on to the open property market at a higher price?
Lord Glenarthur: My Lords, lots of factors give rise to stress. I am sure that, in the end, working conditions are more important than their accommodation, where people relax and probably smoke at will anyway; but I think the noble Lord's question is really a different one.
Lady Saltoun: My Lords, would the noble Lord not agree that if one is bullied and badgered not to do something, it just makes one want to do it all the more?
Lord Glenarthur: My Lords, bullying and badgering is one thing; encouragement is another.
Lord Henderson of Brompton: My Lords, is it not as well to remember, as the noble Lord, Lord Molloy, has reminded us, that there are male as well as female nurses? Is it not the case that in the report Health or Smoking? the Royal College seems to assume that all nurses are female, since it treats the question under the heading "Women and Smoking"? Is there evidence of any difference in the incidence of smoking as between male and female nurses? Also, in view of the fact that doctors who are addicted to tobacco have taken to snuff, according to a leading article in the BMJ itself in November last, would not nurses be well advised to follow the doctors, who are as much subject to stress as they are?
Lord Glenarthur: My Lords, I am afraid I do not have a breakdown of the respective figures as between male and female nurses. So far as snuff is concerned, I know the noble Lord's particular views on snuff, and there are others who support them. I am sure that the nurses will note his view.
Lord John-Mackie: My Lords, as regards going in for alternatives, would the noble Lord agree that a drop of Scotch is much more relaxing than the other two?
Lord Glenarthur: My Lords, I would, but I am not sure that everybody would agree with me.

Hospital Casualty Departments: Central London
2.50 p.m.
Baroness Masham of Ilton: My Lords. I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many casualty departments there are in hospitals in central London and what is the average time patients have to wait before they are treated.
Lord Glenarthur: My Lords, there are 11 hospitals with general accident and emergency or casualty departments within a three-mile radius of Charing Cross. Information on waiting times is not available centrally.
Baroness Masham of Ilton: My Lords, I thank the Minister for that reply, even though the second part of it was rather disappointing. Is he aware that there is tremendous pressure on the accident and emergency departments due to the enormous volume of people pouring into London every day for so many different reasons: for example, tourists or people going to work? Will he try to find out how many of these patients are genuine emergency cases and how many are those who do not have GPs or who cannot get hold of their GPs and just happen to feel ill?
Lord Glenarthur: My Lords, there are no departmental standards on what is an acceptable time for accident and emergency patients to wait. Clearly it depends very largely on the nature of the patient's condition and that can be assessed as a matter of medical judgment only by the doctor on the spot. One of the key jobs of the accident and emergency departments is to sort out the really ill patients, who must be seen without delay, from those who can safely wait for a little longer. It is the health authority's job to gear staffing to the workload of the department, but peaks in numbers cannot always be predicted and at these times some delays may be unavoidable. Certainly, it is a feature of the planning of the accident and emergency services that account is taken of the workload arising from the type of people to whom the noble Baroness referred, such as commuter influx, holidaymakers, and other casual attenders.
Lord Rea: My Lords, is the Minister aware that whenever surveys of the work of casualty departments have been carried out, it has been shown that between one-third and one-half of the total number of cases seen could more appropriately have been handled in a primal-y care setting? Does he not feel that the proper

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answer to the hard-pressed casualty departments is to improve primary care in inner cities, in particular in London, as suggested by the Acheson Report? That report contained 115 recommendations, which I think was probably more than could have been expected. One of the more important ones was the suggestion that older general practitioners should be encouraged to retire, so that younger and more enterprising doctors could take up posts in primary care in inner London.
Lord Glenarthur: My Lords, certainly the Acheson Report came up with a number of recommendations aimed at improving primary health care, reducing the inappropriate use of A and E departments, and improving communications between hospital and primary health care services. The report has been recommended to health authorities, and to family practitioner committees as well, as a basis for action on those recommendations which fall within their sphere of responsibility. Additionally, I ought to say that the Government have made available an additional £9 million in total over four years to improve primary health care services in inner cities.
Lord Ennals: My Lords, since the noble Lord has on a number of occasions indicated the attitude of the Government towards hospital waiting lists, does he not agree that it should be a responsibility of the Government to look at waiting times in accident and emergency units? Is he aware that the Association of Casualty Surgeons tells me that it is not unusual for patients to wait for up to five hours at St. Thomas' Hospital and three-and-a-half hours at King's College Hospital, and will not the situation become very much worse when the Middlesex Hospital and St Leonard's, Hackney, close very soon? Are there any other hospitals that are now at risk, and is this not likely to be a growing problem on which the Government really should take some serious action?
Lord Glenarthur: My Lords, the Government certainly take it seriously as a matter of policy, to ensure that there are sufficient facilities generally to cope with the problem. But it is not always right, as I think the noble Lord will appreciate, to lay down from the Elephant and Castle exactly how best a particular district health authority should meet problems in its area. The department's policy is that an accident and emergency department should normally serve a population of at least 150,000, but, as I said in answer to the noble Baroness, Lady Masham, this is not a rigid figure.
Lord Kilmarnock: My Lords, can the noble Lord the Minister tell the House how many small GP hospitals in the central London area have lost their casualty departments recently, and what alternative arrangements have been made?
Lord Glenarthur: My Lords, not without notice, I am afraid.
Lord Wallace of Coslany: My Lords, is the noble Lord the Minister aware that the accident and emergency service is facing severe problems and that
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this is an indication of the general malaise affecting the health service? Is he further aware that there is hardly a hospital in outer London and the South-East region which has not faced temporary closure of accident and emergency departments, thus throwing a tremendous strain on other hospitals which have to cope? This is not happening only at the moment; it has been going on for far too long, and it is an aspect of the health service that needs very urgent attention.
Lord Glenarthur: My Lords, the question on the Order Paper specifically refers to hospitals in central London, and I reject entirely the criticisms that the noble Lord makes of the destruction of the health service, so far as this and other matters are concerned. Over half-a-million more in-patients and day cases were treated in 1982 than in 1978; so that gives some weight to the argument.
Lord Ennals: My Lords, since the noble Lord said quite rightly, that this Question relates to central London, will he comment on the very imminent closure of the accident and emergency centres at the Middlesex Hospital and at St Leonard's, Hackney, and say whether any others are in danger? Surely this is absolutely relevant to the question which I put to him.
Lord Glenarthur: My Lords, I cannot comment specifically on the closure. What I can say about St Leonard's is that I understand that some demonstrators there are protesting at the change of use of the hospital, which was recently, agreed by my right honourable friend the Minister for Health. They are preventing certain staff from entering the hospital, and the authority is seeking to have them removed. But I have to say to the noble Lord that the change of use was agreed after full consultation and referral to Ministers. So far as other hospitals are concerned, I have no facts or figures on them, but I shall find out and let the noble Lord know.
Lord Molloy: My Lords, will the noble Lord the Minister at least consider that if there should be any closures of great hospitals in London, he might give an instruction to the RHAs involved that they should consult the representatives of the junior surgeons, the junior doctors, and the ambulance crews to make quite certain that the best of what is left is made available for casualty purposes?
Lord Glenarthur: My Lords I am sure that the regional health authorities concerned will always be willing to speak to the people to whom the noble Lord referred. As he knows, my right honourable friend the Minister of State for Health is also regularly in touch with the BMA, the junior doctors, and so on. But the fact remains that we are talking here about accident and emergency services only, and not about general hospital closures.
Lord Kilmarnock: My Lords, will the noble Lord investigate the point raised in the supplementary question I asked and let me have an answer in writing?
Lord Glenarthur: Yes, of course, my Lords.

Business
Lord Denham: My Lords at a convenient moment after 3.30 this afternoon, my noble friend Lady Young will, with the leave of the House, repeat a Statement that is to be made in another place on Mr. Umaru Dikko's abduction.
It may be for the convenience of the House if I announce that the Committee stage of the Police and Criminal Evidence Bill will be adjourned for dinner at approximately 7 p.m. for a short period and that during this adjournment consideration of Commons amendments to the Animal Health and Welfare Bill will he taken.

Police and Criminal Evidence Bill
2.59 p.m.
Baroness Trumpington: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MURTON OF LINDISFARNE in the Chair.]
Clause 29 [Arrest elsewhere than at police station]:
Lord Elton Lord Elton moved Amendment No. 92:
Page 24, line 36, at end insert—
(" (1A) Subject to subsections (1B) and (1C) below, the police station to which an arrested person is taken under subsection (1) above shall be a designated police station.
(1B) A constable who is attached to a police station which is not a designated police station may take an arrested person to any police station unless it appears to the constable that it may be necessary to keep the arrested person in police detention for more than six hours.
(1C) Any constable may take an arrested person to any police station if—

(a) either of the following conditions is satisfied—

(i) the constable has arrested him without the assistance of any other constable and no other constable is available to assist him;

(ii) the constable has taken him into custody from a person other than a constable without the assistance of any other constable and no other constable is available to assist him; and

(b) It appears to the constable that he will be unable to take the arrested person to a designated police station without the arrested person injuring himself, the constable or some other person.

(1D) If the first police station to which an arrested person is taken after his arrest is not a designated police station he shall be taken to a designated police station not more than six hours after his arrival at the first station unless he is released previously.").
The noble Lord said: In moving Amendment No. 92 I shall, with your Lordships' leave, speak also to Amendments Nos. 101 and 102, to the Motion, Whether Clause 34 shall stand part of the Bill?, and to Amendment No. 174. When, I set out what is in these amendments I expect the noble Lord, Lord Plant, will wish to speak to his Amendments Nos. 103 and 104, which seek to alter the provisions in one of the amendments. I hope that that reflects what the noble and learned Lord sees on the paper before him.
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Amendment No. 101: After Clause 33, insert the following new clause:
("Designated police stations.
.—(1) The chief officer of police for each police area shall designate the police stations in his area which, subject to section 29(1B) and (1C) above, are to be the stations in that area to be used for the purpose of detaining arrested persons.
(2) A chief officer's duty under subsection (1) above is to designate police stations appearing to him to provide enough accommodation for that purpose.
(3) In this Act "designated police station" means a police station designated under this section.").
Amendment No. 102: After Clause 33, insert the following new clause:
("Custody officers at police stations.
.—(1) one or more custody officers shall be appointed for each designated police station.
(2) A custody officer for a designated police station shall be appointed—

(a) by the chief officer of police for the area in which the designated police station is situated; or

(b) by such other police officer as the chief officer of police for that area may direct.

(3) No officer may be appointed a custody officer unless he is of at least the rank of sergeant.
(4) An officer of any rank may perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them.
(5) Subject to the following provisions of this section and to section 37(2) below, none of the functions of a custody officer in relation to a person shall be performed by an officer who at the time when the function falls to be perfomed is involved in the investigation of an offence for which that person is in police detention at that time.
(6) Where an arrested person is taken to a police station which is not a designated police station, the functions in relation to him which at a designated police station would be the functions of a custody officer shall be performed—

(a) by an officer who is not involved in the investigation of an offence for which he is in police detention, if such an officer is readily available; and

(b) if no such officer is readily available, by the officer who took him to the station or any other officer.

(7) References to a custody officer in the following provisions of this Act include references to an officer other than a custody officer who is performing the functions of a custody officer by virtue of subsection (4) or (6) above.
(8) Where by virtue of subsection (6) above an officer who took an arrested person to a police station is to perform the functions of a custody officer in relation to him, the officer shall inform an officer who—

(a) is attached to a designated police station; and

(b) is of at least the rank of inspector.

that he is to do so.
(9) The duty imposed by subsection (8) above shall be performed as soon as it is practicable to perform it.").
Amendment No. 174: Clause 111, page 96, line 15, at end insert—
("designated police station" has the meaning assigned to it by section (Designated police stations) above;").
These amendments contain a substantial amount of material, but as they hang so closely together it would only be confusing if I tried to take them separately.
Clause 34 of the Bill, as printed, introduces the very important new role of custody officer. This post has been devised in order to place a new and important emphasis on the treatment of detained persons. It provides a new element of direct personal accountability for those people's welfare and for safeguarding their rights. In order to make sure that that responsibility is discharged by somebody with no conflicting interests in the way in which the detained person is handled, subsection (3) of Clause 34 provides that the custody officer cannot be involved in any way

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in the investigation of the offence for which that person is detained.
That separation between the custodial and the investigative powers of the police seems to us to be an important safeguard of the interests of people detained at police stations. I believe that noble Lords will agree with us in that view and that they will also agree that the role of the custody officer is of considerable importance. It follows, therefore, that we must ensure that the scheme laid down in the Bill makes it possible for police forces to develop a sufficient number of regular custody officers of sergeant rank who are deployed where they are needed. We must also make certain that the requirements of the Bill are not so rigidly drawn as to affect detained persons adversely in other ways or to reduce the efficiency of the police in their normal work.
It appears to us on reflection and in the light of criticisms made in another place that the scheme in the Bill as printed is less than perfect in both of these respects. It does not take sufficient note of the fact that, while some police stations are large and busy establishments, with numerous officers attached to them and with a fairly constant traffic through the cells, others are entirley different. Rural police forces would have serious difficulty if they had to operate out of stations like that. I expect very many of your Lordships are familiar with police stations run by only two constables, or even only one, whose proper job is not to sit all day in the station houses but to get out among the communities for which they are responsible.
Under the Bill as drafted, the police would have only two choices: either they would have to take every arrested person direct to one of the major stations, often a great many miles away, or they would have to appoint a very large proportion of their rural personnel as custody officers. It seems to us on reflection that the first course would be immensely inconvenient for people who are arrested in country districts, who would have to travel 20 or more miles to attend a station for as little as a quarter of an hour before travelling back again, and that the second would almost certainly dilute the status of the custody officer below what we would all wish it to be, which in itself is also an important safeguard for people who are detained by the police. It is to overcome these difficulties that I now ask your Lordships to agree to add to Clause 29 the subsections printed in Amendment No. 92 and to replace Clause 34 with the new clauses printed as Amendments Nos. 101 and 102 on the Marshalled List.
The scheme which we now propose is embodied in these amendments, and it recognises the existence of these different sorts of police stations. The full provisions of the custody officer system will be provided in the larger stations. These will be designated for the purpose by the chief officer under the first new clause. An appropriate reference to designated police stations is added to the definition clause under the consequential Amendment No. 174. It is still required in the new scheme that a person normally should be taken to a police station with a custody officer; that is to say, to a designated police station. The new provisions in Clause 29, proposed in Amendment No. 92, however, lay down the
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circumstances in which an arrested person may be taken to a non-designated station where there is no regular custody officer. It also lays down that under no circumstances may he be held there for more than a maximum of six hours. Your Lordships may already have seen in Clause 38 that six hours is the longest that the Bill will permit a person to be held in police detention without charge before the decision to detain him must be reviewed by a senior officer. That is why we have pitched on that length of time.
The circumstances under which a person may be taken to a non-designated police station are, broadly, when the arresting constable's home station is a non-designated station or where the constable cannot get into a designated station because he is single-handed, cannot get help and cannot count on getting him there without injury. Whatever the circumstances, if he is not going to be released within six hours he has to be transferred to a designated police station where a custody officer will at once become responsible for him. For minor offences, very often, however, it will be simply a matter of unlocking the station, charging the person immediately or asking a few questions to establish, for instance, the degree of criminal intent in order to decide whether or not to prefer a charge. It is with some confidence that I ask your Lordships to agree to the changes I have so far described. Noble Lords opposite, in particular, have always been most critical of us when we have departed from the letter of the recommendations of the Royal Commission. This represents a return to that letter.
Amendment No. 102, which is intended to replace Clause 34, is therefore the most important of this group of amendments. The first five subsections provide for the appointment of at least one custody officer who must be of the rank of sergeant, at least, for each designated police station. The important features of these subsections, which are different from Clause 34, are that custody officers are to be specifically appointed as such and that those so appointed must be of at least sergeant rank. Subsection (4) does, however, permit other officers, who will sometimes be of a rank lower than sergeant, to perform the functions of a custody officer if he is not readily available. Subsection (5) retains in designated stations the strict division of investigative and custodial responsibilities at present prescribed generally in Clause 34(3). We would wish that separation to be preserved as far as possible, even during the brief sojourn of a detained person in a non-designated station. This, as the Royal Commission pointed out, can pose a problem. Subsections (6) to (9) address that problem.
Subsection (6) defines who is to perform the functions of the custody officer if an arrested person is taken to a non-designated station. If possible, it will be an officer not involved with the investigation; but if it is not, or if both officers were involved in the arrest, the distinction between custodial and investigative responsibilities may be suspended. This obviously carries risks. That is why the new subsections (8) and (9) provide new safeguards. Subsection (7) is a drafting convenience. Subsections (8) and (9) provide safeguards which apply when the officer who has taken an arrested person to a non-designated station has to perform the function of a custody officer. They require him to get in touch as soon as practicable with an

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officer who is of at least the rank of inspector and who is attached to a designated police station, and to inform him that it will be necessary for that constable to perform the functions of a custody officer. In practice, this will be done by telephone or radio. Your Lordships will note that the inspector must be informed before any action is taken to ensure that the senior officer is aware that a suspect is being detained at a non-designated station, and he can, if necessary, order the prisoner to be brought to the designated station, or send other officers to help. The requirement about immediate reporting goes beyond the safeguards recommended by the Royal Commission.
The institution of the custody officer is a major development in the ethos of policing. It is vital that the scheme is workable and practicable. As I have explained, Clause 34, as drafted, would cause difficulties. It would lead in a minority of cases to considerable inconvenience to the arrested person and to the depletion of local police cover. These amendments will meet this problem and at the same time introduce extra safeguards to counterbalance the increased discretion given to the police. The new scheme follows recommendations made by the Royal Commission, and I recommend it to your Lordships. I beg to move.
Lord Mishcon: I wonder whether the noble Lord the Minister would have some sympathy with me if I said that the list of groupings has only just arrived on our Bench. If, therefore, we err at any time, I hope the noble Lord will be kind enough to put us right, and to do it with his usual jovial manner and not in anger.
It is my hope that we can abbreviate these long proceedings by everybody behaving sensibly, as we always do: and if we find that an amendment can be taken conveniently, even if it is outside a grouping, then we will speak to it so that there will be one debate and not many debates. In that context, I refer immediately to Amendment No. 95B, which is an amendment to Page 25, line 12, and states as follows:
"Where there is delay as provided in subsection (5) above"—
and perhaps I may pause and remind the Committee of what subsection (5) says. It states:
"Nothing in subsection (1) above shall prevent a constable delaying taking a person who has been arrested to a police station if the presence of that person elsewhere is necessary in order to carry out such investigations as it is reasonable to carry out immediately".
Amendment 95B goes on to say:
"then the relevant time for the purposes of section 39 below shall be the time of the person's arrest".
In regard to Section 39., may I remind your Lordships that it deals with the question of the computation of the various times of detention which have to be authorised, first, by the police and, secondly, by the courts.
I am bringing that discussion in now because in general terms we on these Benches have no objection whatsoever to this amendment—provided it is clearly understood where and when the time starts for the computation I have just mentioned in regard to detention. Can the Minister concede now that Amendment No. 95B is one that he finds acceptable; namely, that where there is that delay in subsection (5)—and I repeat, that is only the delay necessary,
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"in order to carry out such investigations as it is reasonable to carry out immediately"—
then it will be agreed that time begins to run, since the police are being assisted in this connection, from the actual time of the arrest? Can he concede that it will not be from the time of the arrival at the police station—which may of course be long-delayed not only because of such investigations but also by virtue of a removal from one police station which is not a designated police station to a designated police station? If the Minister would clarify that matter it would save an awful lot of debate on Amendment No. 92 and would also save the Committee a debate on my later amendment. Therefore, I thought it only sensible to bring the discussion in now. If it helps the noble Lord the Minister for me to keep on talking then I can do so, even if it irritates your Lordships.
Lord Elton: I believe that I can save the noble Lord the embarrassment of irritation by sharing and sympathising with him over his difficulty regarding the groupings. We have a difficulty with the volume of amendments. I do see the relevance of what the noble Lord was saying. He was not addressing himself to this specific rubric of Amendment No. 95B but to the principle of when the detention clock starts. I can certainly say that we want to have a specific time for the detention clock to start and for that time to be clearly marked.
If I was to start debating whether that time should be the time of arrest or the time when the suspect's foot first crosses the threshold of a police station. I should be taking your Lordships away from the principal concept of the amendment, which is the concept of the custody officer being appointed as a specific position to be held by somebody of sergeant's rank and the equally important issue of there being a difference between those stations which can properly be the base of operations of a custody officer and those which could only so become at immense inconvenience not only to the police but also to suspected persons. I cannot therefore give the noble Lord the assurance that he wants in respect of the clock starting at point of arrest; but I should like to give my reasons—or for my noble friend to do so—when we reach that subject.
3.15 p.m.
Lord Mishcon: It is obvious that I am not abbreviating the proceedings as I hoped to do, and therefore I will not elongate them by protesting at the way in which the mind of the noble Lord the Minister is working in this respect. But can he at least tell the Committee, from when the clock begins to tick, if there is a taking of the accused to a police station which is not a designated police station from which he must be removed to a designated police station within six hours—then are six hours added to the time? Does the clock begin to tick from the time of the arrest or from the time of the arrival at the police station?
Lord Elton: As I understand it, the clock begins to tick upon arrival at the non-designated police station. The only provision I recall in the Bill for the pushing back of the hands of the clock, as it were, is where people are arrested a long way from home and have to he transferred from one police force to another and are not questioned under the first.
Lord Plant: I am somewhat bewildered at the moment. There are a number of amendments down to these two clauses. I am not clear whether we are now taking Clauses 29 and 34. Perhaps the noble Lord the Minister can help me.
Lord Elton: The amendments to which I spoke were Amendment No. 92 (which is the substantive amendment), Amendments Nos. 101 and 102, Clause 34 stand part, and Amendment No. 174. I think that I can help the noble Lord by saying that his Amendments Nos. 103 and 104 strike at the amendments that I have put on the Marshalled List and therefore this would be a very suitable time for him to say why he prefers his scheme to mine.
Lord Plant: I thank the Minister for that help. I also have down an amendment to Clause 29, but I will deal now with the subject which the Minister has just raised; that is, my Amendments Nos. 103 and 104 as amendments to Amendment No. 102.
As amendments to Amendment No. 102:
Amendment No. 103: Subsection (4), at end insert ("but that officer must be qualified for promotion to the rank of sergeant and acting as a sergeant under Police Regulatons.").
Amendment No. 104: Subsection (5), at end insert ("The custody officer shall be so employed and shall have no other duties and responsibilities so long as detained persons are at the station, save in any dire emergency.").
In addition to the Bill, codes of practice will place an enormous burden on the custody officer, who is bound by the constant threat of disciplinary proceedings where he is said to have made omissions arising from the operation of the new procedures. There may be occasions arising from the arrest and detention of just one person where no fewer than 50 entries are required on the custody record. The Police Federation and the other organisations of the police are not against the keeping of the records, and they are firmly of the opinion that when people are arrested and searched they should have a record from the police authority. But how anyone could contemplate that the task of making the various entries can be incidental to an officer's other responsibilities baffles the police. The Royal Commission, in Paragraph 3.112 recognised the scope of this problem by stating that where it is warranted,
"there should be an officer whose sole responsiblity should be for receiving, booking in, supervising and charging suspects".
If Parliament requires that these procedures are carried out, the police service must have the resources to do that task correctly. This means manpower, premises and finance. The subsections which need attention are those which state that each chief police officer shall designate certain police stations in his area for the reception and detention of arrested persons and that all persons arrested shall be taken to such stations.
That point has already been conceded by the noble Lord: but in the country areas, admittedly, it may not be practicable to take such persons to a designated station. At each station there shall be a police officer of the rank of sergeant, designated as custody officer, to perform the function directed by this Act to be performed by a custody officer for each period of police duty performed at that station. The Government have to a large extent admitted or agreed in their amendment that the custody officer should be
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of the rank of sergeant, but the police want some clarification on this point. The police say that no officer below the rank of sergeant shall be employed as custody officer unless qualified for promotion to that rank and acting as a sergeant under Police Regulations.
If we just accept the Minister's amendment one could have a probationer acting as a custody officer. I think that that would be wrong. In this important new area, I believe we ought to say to the Government that no custody officer shall be below the rank of sergeant, and that where no sergeant is available it should be a man who has qualified for promotion to sergeant under the Police Regulations. That would prevent a probationary officer doing this job.
The Minister says that we may have a station where there is no one qualified for promotion to sergeant. I would doubt that very much. In any case there would be senior officers in that police station who could act as custody officer until a man of sergeant's rank, or a man qualified to be sergeant, is in attendance. In addition, none of the functions of a custody officer in relation to a person who has been arrested for an offence shall be performed by an officer who is involved in the investigation of that offence at the time when the function falls to be performed.
I think that these amendments are justified. Such a system has obtained since 1967, when designated stations were set up to deal with "breathalyser procedures"—now "Lion Intoximeter" procedures. The codes of practice which I have already mentioned are obviously intended to modernise and improve the lot of a detained person. Not every station, more especially in the rural areas, possesses the staff or facilities to deal with prisoners in the ways outlined. It therefore seems logical to designate certain stations as "custody stations" to make the best use of resources. Many chief officers have already planned such designations.
The proposals already set out in another place recognise this, but seek to utilise lower ranks on occasions. In our view, this is grossly irresponsible on the part of the legislators. As I have said, the duties plus the responsibilities of the custody officer dictate that the position must be allied to a supervisory capacity. If there are within current police establishments not enough sergeants to carry out the tasks to be given by the legislation, the answer lies not within the police service but somewhere else.
We have to recognise the actual operational police situation where, due to sickness, leave, training and other commitments, a constable may be performing temporary duty as a sergeant. It is equally apparent that where no prisoners are at a station it would be most wasteful of resources for a police sergeant to be sitting twiddling his thumbs, and he must and should be employed usefully on other duties. However, the importance which legislation is to place on the care and custody of detained persons demands that, while that is necessary, the custody officer should have no other constraints save in the most dire emergency.
I think these are very important issues for the police service. More than that, they are important for the public, and I think that the Government should give further consideration to the points that I have brought

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out in relation to the amendment which has now been brought forward by the noble Lord. Perhaps if he replies I would then reserve what I have to say on Clause 29 until after that reply.
Lord Elton: Perhaps I can help the noble Lord, Lord Plant, further by pointing out that his Amendments No. 107 and 108 appear to be directed to achieve the same ends as his Amendments Nos. 103 and 104 to the amendment on the Order Paper, so we can expedite matters by taking all these issues on board at once. They are in fact the same issues.
I have the greatest respect for the noble Lord, Lord Plant and the advice that he gets. I accept the importance of the issues, but I should like to look first at his second amendment, which assumes that a custody officer cannot be expected to perform any other duties except in an emergency. In certain police stations it will indeed be necessary for the post of custody officer to be a full-time post. It is already the case that in the main police stations in cities and large towns there is an officer of sergeant rank employed pretty much, if not wholly, full time in supervising the detention in police custody of suspects.
The Bill will formalise and extend those responsibilities but in other cases it will continue to be quite possible, as it is now, for an officer to combine them with more general administrative and supervisory duties. In some stations it is wholly reasonable to expect a sergeant to be the appointed custody officer for the station but also to go out of the station to assist patrol officers as necessary. This does not need to involve an emergency, whether dire or not. It may simply be a matter of routine.
In contrast, this amendment would, by interfering with the freedom of chief police officers to deploy manpower to the most effective and efficient extent, either involve a very large and wasteful increase in the establishment of police forces, the additional numbers comprising sergeants acting as full-time custody officers where there were not enough people in custody to justify a full-time post; or it would force the chief officer to designate relatively few police stations, and vastly increase the distance people would have to go to be charged or questioned.
I understand the noble Lord's concern that officers shall not be asked to take on more onerous duties than can be reasonably expected of them, especially bearing in mind the responsibility involved and the disciplinary sanctions which attach to the codes of practice. On a number of occasions we have given an undertaking to the police service that we should be willing to consider applications for increases in establishment on their individual merits in cases where clear difficulties arose in practice. But we are not at all persuaded that any blanket increase in establishment is necessary.
To a large extent the duties of the custody officer represent a formalisation of current good practice; and a study of the requirements to record certain actions and events which are imposed by the Bill, and of the draft codes, reveals few which are not already part of good practice. We have now revised the codes of practice and put them into a form which will be easier to use, and there is to be a national form of custody
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record which will simplify the sometimes complex recording procedures which are now in effect in different forces. I cannot advise the Committee to accept the second amendment.
The first amendment is intended to debar a police officer of constable rank from acting as a custody officer unless he was qualified for promotion to sergeant and acting as such under the Police Regulations. We realise that this would be an inflexible requirement and would cause practical difficulties for the police.
It is right, and we accept it, that the custody officer at a designated station should he a sergeant, and the new clause ensures that this is so. But account has to be taken of the case where the custody officer is unavoidably absent. As I have already explained, he may be called out to deal with an incident or to assist the patrol officers under his supervision. In those circumstances, a constable may have to act as custody officer when the sergeant is away from the station. There can be no guarantee that that constable will be qualified by examination for sergeant rank. If no such qualified sergeant were available, the effect of the noble Lord's amendment would be to require the detachment of an officer to escort the arrested person to another designated station, which might well be some distance away, because he could not be kept without a custody officer. The waste of police resources in this way would be substantial and so would the inconvenience to the arrested person himself.
It is important to remember that there are some very experienced officers who, sometimes at their own wish, remain constables throughout their careers, but may well be qualified by that experience and by their personal qualities to stand in for the custody officer for a short period as needed, even though they have not passed the sergeant's examination.
I have to say to the noble Lord that his amendment would make the custody officer scheme unnecessarily and unacceptably rigid and expensive and would cause operational difficulties for the police. I hope that when he reads what I have said in tomorrow's Hansard he will, on reflection, see that we are well seized of the anxieties of the people with whom he has discussed this, and I hope that what I have said will suffice to reassure them.
3.30 p.m.
Lord Plant: I am somewhat satisfied with what the Minister has said. I want to make this part of the Bill as efficient as possible. I do not wish to see chief police officers using probationers on this type of work. I hope that the Government will look at this problem. I do not want unnecessarily to increase the sergeants' complement hut I do want to urge on—
Lord Elton: Perhaps the noble Lord will allow me to say, to expedite matters, that the question of a probationer constable seems to be slightly different. I will undertake to look at that although, of course. I cannot say what I shall come back with. The noble Lord wanted to exclude probationers as opposed to constables as a complete rank. That is a different matter which I shall look at.
Lord Plant: I am grateful for that intervention. I will very carefully read what the noble Lord the Minister said. I am sure that this is an issue which will be discussed on the police negotiating board or the advisory board, because I do not believe that the police service will be satisfied with some of the difficulties that certainly will arise with the police stations that are designated.
Lord Mishcon: I have one quick comment only to make, which I am sure the noble Lord the Minister has appreciated. The whole question of the custody officer depends, if it is to be effective, upon his independence and, if I may put this with all respect, his intelligence. One cannot provide for that in an Act of Parliament. However, one hopes that the Home Office will make it abundantly clear that it expects custody officers not only to be of the rank of sergeant but to be independent in the decisions and recommendations they make as custody officers, and, furthermore, that it is incumbent upon the police force to see that a person of some considerable intelligence is given this very responsible position. I repeat, one cannot provide for this in an Act of Parliament but the Committee may well be assured, in allowing this amendment to go forward, to a rather greater degree if the noble Lord the Minister would indicate that it is the intention of the Home Office to make this abundantly clear to the police forces.
Lord Elton: I have to say two things. First, the Home Office is always interested in good practice and it is clear that it is our intention that the role of the custody officer should be exercised by someone of independent mind and intelligence. Secondly, on the face of the Bill the requirements made on the custody officer make it very difficult for him to be overborne. If at any stage someone senior to him takes a decision which he feels needs to be called into question or which is contrary to what, in his judgment, he believes appropriate, he is required to take that concern to a person who is senior in rank to that senior person; so we are very much aware of the noble Lord's concern.
On Question, amendment agreed to.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 92A:
Page 24, line 36, at end insert—
("() Where the person to be arrested is a child or young person, a constable may not arrest him at school or other educational establishment or institution other than in exceptional circumstances where the constable reasonably believes that the arrest will be seriously obstructed if it is not executed at the school or other educational establishment or institution.").
The noble Baroness said: The purpose of this amendment is very clear: namely, to provide a greater safeguard than exists within the code of practice against police constables entering schools to interrogate or arrest children or young people. I cannot imagine there being many circumstances which make it essential for the police to invade the sanctity of a school to pursue young offenders. Indeed, our amendment has provided for any such exceptional circumstances where a young person is out of the control of the school authorities and the teachers—for instance, where he has run amok, become violent or is in possession of a knife or a weapon—which makes it impossible for the school itself to deal with the crisis.
However, we want to ensure that the police do not use the school premises just for convenience in pursuing a young suspect simply because they know he is at the school and, therefore, it is very much simpler to carry out their duties there. I can think of no factor which would be more disturbing for the staff and pupils of a school than the intrusion of a police constable. Indeed, there has been growing concern among education authorities that schools are being increasingly used for crime investigation. Surely, again, it must be agreed that teachers are already finding it difficult in some schools in some inner city areas and in some deprived areas to establish a relationship of trust and confidentiality with their pupils. Therefore, does it not seem of the utmost importance that that already rather fragile relationship between teachers and children in some schools should not be exacerbated by the intrusion of police into the schools.
Finally, not only do we feel that this safeguard is of such great importance to the interests of pupils, young people, teachers and parents that it should be taken from the code of practice and brought into the Bill itself, but we also feel that our amendment provides a greater safeguard since the code only refers to the presence of a head teacher as necessary for the investigation of a child. The presence of parents is not mentioned. The child or young person would thus be confronted by two figures of authority and would find the experience that much more intimidating. Therefore, in the interests of the school, the children and teachers we believe this is an important amendment. I beg to move.
Baroness Gaitskell: I think this is a very important amendment and I hope the Minister will agree. That is all I wish to say about it. It would be terrible if anyone voted against it.
Baroness Masham of Ilton: What exactly is "exceptional"? Is the pushing of drugs by children in a school "exceptional" or not "exceptional"? I am very worried that it may not be the exception now.
Baroness Ewart-Biggs: My view is that "exceptional" is what the school feels it cannot deal with. I should have thought that a school would like to deal with all crises occurring among its children in order to keep that relationship of trust and confidentiality between them and their pupils. I would say that a decision about drugs would be up to the school authorities themselves.
Baroness Trumpington: I am sure we are all very sympathetic to the idea underlying this amendment. As the noble Baroness pointed out, the administrative directions to the police appended to the Judges' Rules make it clear that a juvenile should not be arrested at school if this can possibly be avoided. There has been no change of policy in that regard. The point is now covered in the code of practice on detention. I refer your Lordships to page 23 of the code where paragraph 13(c) states:
"Officers are reminded that a juvenile should not be arrested at school unless this is unavoidable. In this case the head teacher or his nominee must be informed".

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Having said that, your Lordships will wish to know why we put this in the code and not the Bill. We are talking here essentially about a question of operational judgment. I think it would be going too far to provide that the effects of an error of judgment would be to render the arrest unlawful and, hence, resistance to the officer lawful. The fact that the amendment clearly will not do as it stands shows that it would be very difficult to regulate this matter in statutory form. It will not do because there may well he circumstances in which there is no particular reason to believe that it will be difficult to arrest a juvenile at home but in which there is a pressing need to arrest him at once—which brings in the point raised by the noble Baroness, Lady Masham of Ilton.
Such a situation might conceivably arise where serious assaults were in progress and the police were called. I remind the Committee of a recent incident in which schoolchildren, on their way to attack another school, were found to have a frightening armoury of weapons. Let us suppose that they had reached that school: under the terms of the amendment, it might not have been possible for the police lawfully to arrest them. We do not want, in effect, to deter the police from responding to appeals for help from the school authorities because of fear about their legal powers. It seems to me pre-eminently a question that can be dealt with as a matter of guidance to the police, rather than as a matter of law. That is achieved by the passage that I have quoted from the codes. On that basis, I hope that the noble Baroness will not press the amendment.
Lord Elwyn-Jones: This touches a matter of grave importance involving children and their relationship to schools and school staff. Perhaps we may further consider the matter, in view of its great importance. Sometimes a question of principle which is of fundamental importance must take precedence over even operational requirements. We shall think again about the proposal, and, if my noble friend agrees, in the meantime I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.41 p.m.
Lord Plant Lord Plant moved Amendment No. 93:
Page 24, line 37, leave out subsection (2).
The noble Lord said: At first reading this clause seems to be reasonable. However, your Lordships may be concerned about many inherent dangers that may arise from Clause 29(3). That subsection authorises a constable to release an arrested person after arrest, before he reaches the police station.
Baroness Trumpington: In the list of amendments that are to be taken together it states that the noble Lord w ill be speaking to Amendments Nos. 93, 94 and 95 together. I hope that he agrees.
Lord Plant: Yes, with this amendment I am speaking also to Amendments Nos. 94 and 95.
Amendment No. 94: Page 25, line 1, leave out subsection (3).
Amendment No. 95: Page 25, line 3, leave out subsection (4).
Subsection (3) authorises a constable to release a person after arrest before he reaches the police station.
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I am strongly of the view that once a person has been arrested, the grounds for that arrest need to be inquired into by a supervisory police officer. The only satisfactory way for that to be done is by an examination of the facts by the custody officer at a police station, as specified in Clause 34, which is to be amended. If the arrest is considered by the custody officer to have been unlawful or ill-advised, an apology can be made to the person concerned there and then by the custody officer.
Let me quote an example of our anxiety about this clause. A suspect may be arrested by a police officer who releases his prisoner without taking him to a police station. Some days later the man who was arrested may complain to the police that he was assaulted by the officer while he was in his custody. There may be no corroboration of the allegation because of the passage of time. That would leave the police officer and the complainant in a most unsatisfactory position.
We appreciate that the procedure of taking every arrested person to a police station as soon as practicable after arrest may in some cases add to the inconvenience of a person who is going to be released from custody, but we believe that that should be done in all cases. It is necessary for the protection of the police and the public alike. It is hard to understand why the Bill, after prescribing so many rigid safeguards in relatively minor matters, should appear to ignore that elementary safeguard in the most important of all police functions—the power of arrest.
When those arguments were considered in another place mention was also made of the possibility of corruption. It was sought to cover that and many other possibilities by requiring a note to be made by the arresting officer. As I have already said, the police organisations are anxious that in every case there should be a note made by the arresting officer, or someone else, at a police station. That is a naïve view in relation to corruption. If an officer realises that he has made a monumental error, or if he has accepted a bribe, he is hardly likely to record the fact.
I seek to protect the integrity of the police service and the confidence of the public in that service. Everybody should be aware that, if a constable exercises his power of arrest, that fact is inquired into as soon as possible at a police station. I therefore think that we should delete subsections (2), (3) and (4), which will be slightly amended by the noble Lord's amendment.
Baroness Trumpington: Subsections (2) to (4) require an officer who makes an arrest, but who then becomes satisfied that the arrested person is in fact innocent of any crime, to release him at once. This is by way of an exception to the general rule in subsection (1) that on arrest a person must be taken to a police station as soon as practicable.
We are well aware that there is concern among the police that the provisions of subsections (2) to (4) may lead to the possibility of corrupt practices, or at any rate allegations of corruption. We sympathise with those concerns: but we must balance this small risk—and I believe that it is small—against the undoubted interference with the liberty of the innocent

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citizen which would arise if the subsections were deleted, as the noble Lord, Lord Plant, has proposed.
Cases are bound to occur from time to time in which an officer makes an arrest quite properly on the basis of the information then before him, but it quickly becomes apparent—perhaps as a result of a radio message—that the person must be innocent. It could clearly cause considerable additional inconvenience to an innocent person if he were required to be taken to a police station before being released, and it might harm relations between the police and the community in general and that person's willingness to assist the police again in particular. We take the view that it would be wrong to oblige a police officer who had arrested someone to take him to the station before he could be released, no matter how certain was the officer that he had the wrong man, or how distant was the station.
While it would be wrong wholly to dismiss the noble Lord's worry about corruption, I must point out to your Lordships' Committee that in a number of police forces officers are already authorised to release an arrested person on their own authority, without having to bring him before the station sergeant. We are not aware of any problems that have arisen in practice, and we believe that the recording requirements set out in subsections (3) and (4) will minimise such risk as exists. Not only are we not aware of problems which have arisen in practice as a result of the operation of subsection (2) in certain forces; we are aware of problems which have arisen in other forces. The Police Complaints Board has had to consider a number of complaints from wholly innocent members of the public who very much resented having to go to the police station, and one can readily imagine the unnecessary embarrassment that they would feel.
I must point out to the noble Lord that on, I think, 2nd March of this year there was an article in the Police Review which cited certain examples rather based on what I have just been talking about. It said that it hoped the clause that we are talking about survives. I hope that the noble Lord will withdraw his amendment.
Lord Wilson of Langside: I find the Minister's reply to the argument of the noble Lord, Lord Plant, in support of the amendment a little unconvincing. I wonder whether she could elaborate on the circumstances in which it would be thought desirable for an officer who had exercised in the street this, his most important function, to change his mind and admit his mistake. What is the situation, too, in the event of the arrest being wrongful, which would give the arrested citizen a right to pursue an action for damages? Would this not leave a very unsatisfactory situation so far as any future action was concerned? Is the noble Lord, Lord Plant, not indeed right in saying that his amendments would protect the interests of both the police and the public?
Baroness Trumpington: In answer to the noble and learned Lord, Lord Wilson, if he reads Hansard I think he will see that in my original answer I have already answered the first point he made. In answer to his second point, I think I would he right in saying that the
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person concerned could bring a complaint against the officer.
Lord Boyd-Carpenter: Surely there is one circumstance, at least, which will occur to the Committee, in which the subsection is necessary. When a notorious crime is committed or an escape takes place, a description of the person sought is broadcast. It is always possible that a police officer may he mistaken in identification and arrest someone in the belief that he is the fugitive. If five minutes later, the police officer hears on his radio that the person concerned has been apprehended, he will obviously realise at once that he has made a mistake and he ought therefore immediately to release the person whom he has arrested. In those circumstances, to insist that the person arrested be dragged to a police station, perhaps some distance away, and then solemnly taken before a senior officer, would surely not only waste everybody's time, but could be derogatory to the person concerned. That person will have been seen to be under arrest for a longer period; he will have been seen, possibly by acquaintances, being taken into a police station, with all the embarrassing awkwardness that that causes. In those circumstances to insist that because an arrest has been made the whole procedure must be gone though, seems grossly unfair to the arrested person and a waste of everybody else's time. I hope my noble friend will resist the amendment.
Lord Mishcon: If I may say so, I agree with every word that the noble Lord, Lord Boyd-Carpenter, has said. I rise only to try to delete one subsection, but for a very different reason. I do so in the lamentable absence of the noble Lord. Lord Renton, who might—I have no authority to say that he would—have raised the same point. We are always anxious to economise in language in our statutes and to be as concise as possible. I ask the Committee to look at subsections (3) and (4), with which we are dealing. I cannot for the life of me see any reason why, instead of two subsections, there should not be one, which would read:
"A constable who releases a person under subsection (2) above shall record the fact that he has done so",
and which would then go on,
"and shall make such record as soon as is practicable".
There could then be added, if wished, the words, "after the release". To have two subsections for a matter of this kind is not very good draftsmanship.
Baroness Trumpington: I take the point. We shall study it in depth.
Lord Plant: Clearly, I am on a sticky wicket, and so I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Nigerian Ex-Minister: Abduction
3.53 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, with the leave of the House, I shall now repeat a Statement on the abduction of Mr. Umaru Dikko which is being made in another place by my right honourable and learned friend the Secretary of State for Foreign and Commonwealth Affairs. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement about the abduction of Mr. Umaru Dikko which will bring the House up to date on developments since the Statement by my right honourable and learned friend in the House on Friday. Police and other inquiries are continuing. I will make a further statement to the House later this week.
"As the House will know, a British Caledonian aircraft with its crew and passengers was unlawfully detained by the Nigerian authorities in Lagos from 5th to 7th July. We protested strongly to the Nigerian authorities both in London and in Lagos at this totally unjustified and unlawful act. Subsequently we have made a further strong protest about the conditions under which the passengers were held at Lagos airport. The plane was released at 14.00 local time on Saturday 7th July and arrived back in the United Kingdom at about 4.30 on the Sunday morning.
"I understand that air services between the United Kingdom and Nigeria are now functioning normally.
"Meanwhile, the police are continuing their inquiries into the abduction of Mr. Dikko and the attempts to smuggle people out of the country. I am advised that these have made some progress, but that they are not yet complete, not least because it has only just become possible for the police to start questioning Mr. Dikko. I understand that some criminal charges are likely to be brought quite soon. I appreciate, of course, that the House wishes to have the fullest and earliest possible information on these aspects. But it is important that any decisions that have to he taken should be based on the fullest available information, and should not interfere with or prejudice police inquiries. That is why neither I nor my right honourable and learned friend can make a definitive Statement on these aspects today and why I may have to decline to answer fully some of the questions which may be put to me.
"Nevertheless, it is already clear that if the police are to be able to complete their inquiries satisfactorily, they will need to interview members of the Nigerian High Commission staff. This need arises from the presence at Stansted airport on 5th July of at least one member of the Nigerian High Commission staff and vehicles from that high commission. The Nigerian High Commissioner has, accordingly, today been asked specifically to allow the police to carry out the necessary interviews, and told that we require a very early reply to this request.
"As the House will know, it is the duty of all persons enjoying privileges and immunities in accordance with the Vienna Convention to respect the laws and regulations of their host country. It is
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plain that the commission of acts of violence on British territory, and the plotting of the abduction of a person from the United Kingdom, is a matter of the gravest concern. Not least in view of the good relations which have traditionally existed between Nigeria and the United Kingdom, I am sure that the House will join me in looking for an early and positive response from the Nigerian High Commissioner. As I have already made clear, the Government will keep the House fully informed of further developments."
My Lords, that concludes the Statement.
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble Baroness, Lady Young, for repeating the Statement made in another place by the Secretary of State for Foreign and Commonwealth Affairs. We on this side of the House do not wish to embarrass or prejudice the continuing inquiries which are being made into this grave matter. Not surprisingly, some criminal charges are likely to be brought quite soon. I say "not surprisingly", in view of matters which are already publicly known. However, this makes imperative the request that we must not press unduly for precise particulars as to who is to be charged and what may be the nature of the charges. I venture to think that the whole House will endorse the decision of the Government to ask the Nigerian High Commissioner to allow the police to carry out the necessary inquiries with certain members of the Nigerian High Commission staff. As has been said, we know of the presence of at least one member of that staff and of vehicles from the High Commission at Stansted airport at the material time.
As has been said in the Statement, it is also right, that an early reply should be given to the communication from the Foreign Office. I venture to think that I am expressing the view of the House when I say that refusal of that request would be wholly unacceptable and, if I may say so, quite contrary to international comity. It is basic to the Vienna Convention, creating diplomatic privileges and immunities, that diplomats and their staffs should respect the laws of their host country. We have had bitter, recent experience on our own shores of acts of violence by those sheltering behind diplomatic immunity. Clearly, there must be a stop to this kind of activity. No country, or people, can allow this to happen, least of all to continue. We have traditionally had excellent relations with Nigeria and current events are deeply saddening to us. Many of us have excellent friends there. I shall not name any of them because I might merely embarrass them. We therefore greatly hope that there will now be a favourable response from the Nigerian High Commission to the request that has so reasonably been made.
Lord Hooson: My Lords, in view of the intemperate attack made on this country yesterday by General Buhari, and the fact disclosed to this House on Friday that no application had been made for the extradition of Mr. Dikko, it may well be that the general does not appreciate the great tradition of this country in these matters and that what we are objecting to particularly is the completely unlawful way in which the attempted removal of Mr. Dikko from this jurisdiction took

585
place. Is it not important that no kind of application was made by Nigeria for the extradition of Mr. Dikko, whatever the legitimacy or otherwise of the complaints against him? Is it not necessary to bring this home to the Government of Nigeria in view of the very good relations that this country has enjoyed with Nigeria in the past? Can the noble Baroness say whether there had been any informal approaches by the Nigerian Government to our Government—a sounding operation on extradition, as it were—or whether there had been no approach of that kind at all?
Baroness Young: My Lords. I should like to thank both noble Lords for their response to the Statement. I should like particularly to thank the noble and learned Lord, Lord Elwyn-Jones, for what he said in this very difficult situation. His remarks were very helpful in setting out the views in all parts of the House on this matter. I am grateful to the noble and learned Lord for not pressing me on the particulars of the case which I would not be in a position to give. I am grateful that he has endorsed the Government's request to the Nigerian High Commissioner to co-operate fully with the police in their inquiries on this matter. We hope that we shall receive an early response to this request that has been made by the Foreign and Commonwealth Office.
As the noble and learned Lord rightly says and as the Statement makes clear, it is the duty of those who enjoy diplomatic immunities to respect the laws and regulations of the countries which are their host country. The noble Lord, Lord Hooson, asked two points about this matter. We do not have an extradition treaty with Nigeria. In fact, we do not have an extradition treaty with any of the Commonwealth countries. The noble Lord also asked about informal talks. I can tell him that there have been no such informal approaches.
Lord Boyd-Carpenter: My Lords, can my noble friend tell us whether any explanation or perhaps apology has been offered by the Nigerian Government for the detention of the British Caledonian aircraft and its passengers?
Baroness Young: My Lords, the answer I think to that question is that there has been no further explanation. We are of course glad that there is now once again normal air traffic between the United Kingdom and Nigeria.
Lord Gladwyn: My Lords, will the noble Baroness agree that if, as I believe is the case, the Nigerian Government deny all responsibility for this outrage, it is up to them to do their best to discover who is responsible and, if possible, to bring them to justice? If, on the other hand, the Nigerian Government, by any means, implicitly or explicitly, admit responsibility, surely, it is for them to express great regrets and to say that so far as they are concerned it will never happen again.
Baroness Young: My Lords, the present statement of the Nigerian Government to the reaction of our calling in the Nigerian High Commissioner is that they have publicly denied any involvement in this affair at all.
586
Nevertheless, as we have asked the Nigerian High Commissioner if he will co-operate with the police in their inquiries, we hope that he will do so.
Lord Mishcon: My Lords, while not wishing to render a delicate atmosphere any more delicate, may I ask whether the noble Baroness can inform the House if any explanation at all so far has been given by the Nigerian Government as to why the crates were addressed to the Ministry of External Affairs?
Baroness Young: My Lords, I am afraid that I am not able to answer that question.
Lord Pitt of Hampstead: My Lords, I recall that some years ago Mr. Kwesi Armah was Ghanaian High Commissioner here, was subsequently charged with an offence that the Ghanaian Government wanted him charged with, and was tried at the Central Criminal Court. I remember that it was the noble Lord, Lord Hutchinson, who defended him. Cannot the Nigerian Government's attention be drawn to that, so that they can take similar action over Mr. Dikko?
Baroness Young: My Lords, I am not aware of the case to which the noble Lord. Lord Pitt, has drawn attention. I shall study carefully what he has said and draw it to the attention of my right honourable friend.

Police and Criminal Evidence Bill
4.7 p.m.
House again in Committee on Clause 29.
Lord Gifford Lord Gifford moved Amendment No. 95A:
Page 25, line 9, at end insert ("and if such delay does not exceed two hours").
The noble Lord said: This point has already been touched upon by my noble friend Lord Mishcon—
Baroness Trumpington: May I put it to the noble Lord that we are also, I hope, speaking to Amendment No. 95B?
Lord Gifford: That is so.
Amendment No. 95B: Page 25, line 12, at end insert—
("() Where there is delay as provided in subsection (5) above, then the relevant time for the purposes of section 39 below shall he the time of the person's arrest.").
Where someone has been arrested and is not taken immediately to a police station, the clock will not begin to tick until he does in fact get to the police station. If a police officer spends many hours in taking a person to various other places, the maximum time of detention will be considerably extended by that amount. That is undesirable. It will often be reasonable for a police officer to take a suspect to various places. I have known cases where a burglar has been in the company of police around the county pointing out the houses that he has burgled. I have known cases where hidden loot has been found through the suspect taking police to the spot where it was hidden. All that can take time. It should be done after someone has been taken to a police station under the authority of the custody officer. This provision

587
should only be for exceptional cases of short duration. That is why I have sought to limit it. If it is going to take more than two hours, the right course is surely to involve the custody officer, get the person to a police station and subsequently carry out the sort of investigation that I have described. This is an important matter, I beg to move.
Lord Mishcon: It might help if I deal immediately with Amendment No. 95B. I have already addressed the Committee on this matter. The short and I hope succinct point is that under subsection (5), there is a period allowed—not specified—in regard to the length of time for an investigation to be carried out before someone is taken to a police station. All that I am saying is that when that happens from the point of view of time of detention which is to be sanctioned by the police and then by the court, the clock should start ticking as from the time of arrest, rather than from the time of the arrival at the police station. I hope that the noble Baroness, in the very short time between when I made that point and she indicated something to the contrary, will have become converted.
Baroness Trumpington: I am speaking to both Amendments, Nos. 95A and 95B. On 95A, I should like to point out that subsection (5) permits delay in taking an arrested person to a police station if his presence elsewhere is necessary in order to carry out such investigations as it is reasonable to carry out immediately. The wording of the subsection is already drawn extremely tightly. As I have explained, delay is permitted only if the investigations may be carried out immediately. As an additional safeguard, subsection (6) requires the reasons for any delay to be recorded when the person is taken to a police station. I do not believe that it would be practicable to go further and impose rigid time limits on the delay, as the noble Lord suggests. For most cases, the type of investigation that the subsection covers should certainly be completed inside two hours, but some may take longer.
Like the noble Lord, Lord Gifford, I, too, could give examples. I should point out also that the noble Lord's amendment would mean that the detention would be unlawful if there was a delay of more than two hours in reaching a police station. I do not believe that arbitrary time limits would either assist the proper investigation of offences, or, in fact, serve any useful purpose as a safeguard. Therefore, I advise your Lordships to reject this particular amendment.
In regard to Amendment No. 95B, which my noble friend Lord Elton and the noble Lord, Lord Mishcon, have touched on already, I must repeat my noble friend's words that under Clause 39 the time limits on detention start from the relevant time, which for the sort of case we are discussing is defined to be the time a person arrives at a police station. The amendment proposed by the noble Lord, Lord Mishcon, would start the detention clock at the moment of arrest if delay does occur in taking the person to a station.
Of course, the noble Lord is quite right in saying that the person who is placed under arrest loses his liberty from that moment—I do not think that he actually did say that, but it is a fact—and not from the time when
588
he is taken to a police station. But it is important to remember that the Bill will impose wholly new time-keeping disciplines on the police. As the Committee will know, the only judgment of time that has to be made at present is whether or not it will be practicable to bring an arrested person before a court within 24 hours.
In contrast, the Bill sets out a detailed sequence of reviews and limits. In many ways, of course, it reflects current good practice in police stations, but the obligation it places upon the police to work with an eye to the clock, against the clock, is wholly new. Custody officers at police stations, particularly busy police stations, will have to exercise a continuing scrutiny of the progress of cases. I suggest that it would present serious practical difficulties if there were not a clear and agreed starting point for the detention clock to run.
Often the exact time that an arrest is made will not be known, particularly in the case of situations involving public disorder, and it would be thoroughly confusing if a number of persons arrested at the same incident and brought to a police station at the same time had personal detention clocks showing different times because some had been waiting in the police coach for longer than others following their arrest. The proposed amendment undoubtedly would lead to disputes about detention times which were not readily capable of settlement. For example, disputes could arise where the constable searched a person on arrest, under Clause 31. Was this for evidence, and, if so, was that part of the investigation which resulted in delay?
The amendment would also tend to undermine what we regard as the very important principle that the custody officer is personally responsible for the treatment of all persons detained at his police station, including the provision of reviews of detention at the appropriate time and the release of persons at the appropriate time. It is difficult to expect him to undertake this responsibility, which can, of course, have the severest disciplinary consequences if some part of the period of detention is outside his control, supervision and indeed knowledge.
Of course, in matters of this kind we should rightly be very chary of placing issues of administration above the liberty of the individual, but what I hope I have shown is that this is more than a matter of simple administrative convenience. The role of the custody officer is central to the safeguards underlying the detention scheme in the Bill, and anything which undermined the effectiveness of his control would be against the best interests of the detained person.
Moreover, in practical terms, in the great majority of cases the difference between the time of arrest and the time of detention is likely to be so small as to have no significant effect on the overall length of detention. In general, offences are committed locally and investigated locally. Nor, in reality, does this open up a large loophole in the regulation of detention. Subsection (6) requires an explanation of the reasons for delay to be recorded on arrival at the police station, and any abuse of the discretion will be readily checkable.
I do not accept that these provisions will tempt the police to abuse their powers in this area. If anything,

589
there would be a greater temptation to do so if impracticable and artificial restrictions were imposed in statutory form. The Royal Commission placed great weight on workability as a criterion of any legislative proposal, and I remind the Committee that the commission recommended quite clearly, in paragraph 3.102 of its report, that the time limit should begin to operate from the time of arrival at the police station rather than the time of arrest.
I cannot claim that this is a straighforward matter and that it is easy to strike the right balance between sensible operational requirements and the right of the individual, hut, overall, the practical benefits for suspects that the amendment would bring are so small, relative to the problems it would cause the police and the damage it would do to the effective performance of the custody officer's role, that I have to advise against the Committee's accepting this amendment. I am sorry that I have not been succinct.
Baroness Macleod of Borve: Very briefly, I should like to say that on this Bill we are all worried about the citizen who is detained. We are worried also about the police powers. It seems to me that we are in danger here of crossing every "i" and trying to dot every "t", or vice versa, to such an extent that I shall be as muddled as I have just been, and the police officer might be also. It is wrong to give the police so little flexibility that they will be endlessly time watching, watch stopping, etc. I think we have gone too far, and certainly I would resist this amendment.
Lord Gifford: The noble Baroness, Lady Trumpington, has made out a case based on convenience, but, with respect to her, she has missed the point. She says that new disciplines as to time are being imposed by the Bill. But the point is that far longer time is being asked for in this Bill for the detention of suspects. The Government want 96 hours; we have not yet come to that. Under this provision, someone can be detained for 96 hours plus whatever time it is going to take to make these reasonable investigations. Two alternatives have been put forward from these Benches. To my mind, the one that is put forward by my noble friend Lord Mishcon is the better one. I beg leave to withdraw my amendment in favour of his.
Amendment, by leave, withdrawn.
4.20 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 95B:
[Printed earlier: col. 586.]
The noble Lord said: We are speaking to this amendment. I do not want to get this out of perspective, and, with great respect to the noble Baroness, Lady Macleod of Borve, I think we are liable to do so if we follow along just a generalised path. I would agree with the noble Baroness completely—and I believe that all your Lordships would agree—that we are anxious not to inhibit the police; we are anxious not to prevent them or to impede them from carrying out the very difficult duties that they have to perform. We are equally anxious to help them in the proper prevention of crime. All that is common ground. What we are also trying to do is to ensure that, when there is a question of detention of somebody, that detention period is
590
properly governed not by inflexible rules and regulations, but by directives that are clearly given in the Bill as to how long a period there should be for detention before the police themselves, at a proper level of rank, can sanction an extension, and then after that the courts.
However, there is an absurdity—if your Lordships will forgive me for using that strong word—if we allow subsection (5) to stand as it is. I do ask the noble Baroness, Lady Macleod, with her usual breadth of mind, to look at this clause and to follow me in my argument even if she disagrees with it. The clause provides perfectly properly (and I am not quarrelling with the clause; my noble friends and I do not quarrel with it) that:
"Nothing in subsection (1) above shall prevent a constable delaying taking a person who has been arrested to a police station if the presence of that person elsewhere is necessary in order to carry out such investigations as it is reasonable to carry out immediately".
We are not objecting to that provision. If the officer has to carry out investigations and feels that he ought to do so before taking the person to a police station and that is convenient and sensible, then he ought to be able to do it and we say "Amen" to that.
But where we do not continue to say "Amen" is in this connection. You cannot have a situation where a police officer, perfectly understandably—he will not be acting wickedly—says to himself "Now look, if I take accused 'A' straight to the police station and then take him out afterwards in order to carry out the investigations that I want to carry out, the clock will start ticking as from the time I get to the police station. I feel that this investigation is going to take me a long time and I do not feel that I want to be bothered with going to the court on this case and trying to get an extension. So the sensible thing for me to do is not to take the accused to the police station right away but to carry out the investigations before taking him to the police station."
There is no limit to the time that those investigations can take and I do not ask for a limit for the time during which the investigations can take place. But they can take 24 hours. Indeed, they could take 48 hours. I know that I am dealing now with times which are not as a rule practicable, but under the Bill it could be so. We really cannot have administrative arguments because, for example, two or three people are arrested at different times and there are arguments about when the clock starts and whether we make it as from the time of the arrest and so on.
Those arguments are as nothing as compared with the sacrosanct principle that we are trying to build into this Bill that you cannot hold people for a length of time which is unreasonable without at least getting the sanction of the courts and nor can you hold them, before charging them, for longer than the absolute maximum limit. If you have that principle then you have to build fences round it to make sure that you cannot have incursions made into it which are completely unjust.
So, I repeat, we do not attack the investigation period before going to the police station. We do not attack the power to investigate before taking someone to a police station. We merely say: please do not make fools of this part of the Bill and those who are to carry it out by giving an option which is an all too obvious

591
one of having the investigations first and not after taking to the police station, because that automatically extends the time. We therefore say: please accept this amendment which makes the logical time the time of the arrest when advantage is taken, perfectly properly under sub-section (5), for the investigations to be carried out.
Lord Foot: I think it would be convenient if I intervened at this point before the Minister seeks to reply, because I want to deal with some of the remarks that the noble Baroness made in the course of our discussions on the previous amendment. I have already taken the opportunity of drawing to the attention of the Committee the astonishing ways in which some of the provisions of this Bill contrast with similar provisions in the Scottish Act of 1980. Here we have vet another example of how the Government dealt with the matter in one way in Scotland but now propose to deal with the matter in a quite different way in England and Wales. Under Section 2 of the Scottish Act of 1980 it is quite clearly provided that the maximum period for which a person may be detained under similar provisions to the ones which we are discussing here, is six hours. As the noble Lord, Lord Gifford, has said, we shall come to that later in the Bill.
However, I want to draw the Committee's attention to the fact that under the Scottish Act not only is the time of detention limited to an overall period of six hours which cannot in any circumstances be exceeded, but it is perfectly clearly laid down in Section 2 that the period starts to run from the moment that the person is originally detained. What has to be done under Section 2(4) is that:
"when a constable detains a person under [the original power] he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention: and there shall be recorded—

(a) the place where detention begins and the police station or other premises to which the person is taken;

(b) the general nature of the suspected offence;

and then paragraph (c) is the important paragraph—
the time when detention under subsection (1) above begins and the time of the person's arrival at the police station or other premises".
Under the Scottish Act none of the anxieties which were expressed by the noble Baroness just now about the working of this principle was foreseen. Indeed, these provisions which make the six-hour period start to run from the moment when the person is first detained—first arrested in our language—were actively commended to us by the representatives of the Government. Indeed, it was the predecessor of this Government—not a Labour Government—which actively and positively recommended this arrangement to us as being the appropriate arrangement. It was made on the recommendation of the Lord Advocate of the time and the representatives of the Government at the Scottish Office. In recommending it to the Committee or the House at that time they were only carrying through and responding to the recommendations which had been made by the Thomson Committee which led to the Scottish Act of 1980.
Later in our proceedings I shall again and again have to draw attention to the way in which the measures which are now being proposed for England and Wales
592
so starkly contrast with the arrangements under the Scottish Act. But in this case there can be no doubt. If the noble Baroness is right in saying that provisions of the kind contained in the Scottish Act would work with great difficulty in this country, perhaps she would be good enough to consult the Scottish Office and the noble and learned Lord the Lord Advocate to ascertain how this has worked out in Scotland during the last four years, and whether any of the difficulties which she foresees have, in fact, been encountered. She will not be able to do that now, and it would be unreasonable for me to ask her to do so, but it could well be, could it not, that between now and the Report stage some report can be made to your Lordships' House upon the way in which these matters have worked out in Scotland?
Lord Hooson: I think that my noble friend Lord Foot is performing a singular service to the Committee by drawing our attention to what happened in 1980 and to the provisions of the Scottish Act. It is correct that there are certain differences in Scottish procedure, to which we must have regard, but as these provisions have now been in operation for about four years they must have been monitored, and in the consideration of this Bill it would be extremely helpful if we had some information from the Government on the performance and the efficacy of the provisions in Scotland, with due allowance being made for the differences in Scottish procedure.
Baroness Trumpington: On the point which the noble Lord, Lord Mishcon, raised, there is no question of 96 hours entering into this situation. At page 24, line 34, of the Bill it says:
"where a person is arrested by a constable at any place other than a police station he shall be taken to a police station by a constable as soon as practicable after the arrest".
We are not dealing with the situation of 96 hours' detention in this context, and I believe that it is better that we leave the question of detention for 96 hours until we reach that point in the Bill.
The noble Lord, Lord Mishcon, gave various examples of his argument. Perhaps I may put a point to him. There has already been agreement over amendments with regard to the custody officer, and that matter provides another good example of the need for the detention clock to start on arrival at the police station. If a person kicks up a fight on arrest and the officer has to take him alone to a non-designated station, there may be quite a palaver before he can get to the station.
Lord Mishcon: I ask the noble Baroness to excuse me, but we are all conscious of the time and the number of amendments with which we have to deal. If she will forgive me for saying so, I am specifically dealing with subsection (5), where the police, before taking someone to a police station, want to carry out investigations. That is the sole point at which I direct this amendment, and it will waste a great deal of time if we deal with examples which are just not germane to the amendment which I am moving.
Baroness Trumpington: If the noble Lord had had the kindness to hear me out he would have realised

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where I was leading. Why should a violent person be better off time-wise than someone who submits meekly to arrest? In the interests of time, I want to get on.
Lord Mishcon: That is not subsection (5).
Baroness Trumpington: This is the matter with which we are dealing in the amendment moved by the noble Lord.
Lord Mishcon: I must interrupt for the last time. I hope that the noble Baroness, Lady Trumpington, will not think me discourteous because she knows that we all have the highest regard for her and that we never wish to be rude. I am dealing with subsection (5), which has nothing to do with a violent prisoner and absolutely nothing to do with someone who withstands arrest, detention or anything else. It is a question of where the police want to carry out investigations, and under subsection (5) they are permitted to do so before taking someone to a police station. That is the only case with which I am dealing. If the noble Baroness has been wrongly briefed on this matter. I hope that she will reprimand those concerned.
Baroness Trumpington: No, I was not wrongly briefed. The case is relevant because the investigation concerned might involve the search of the person for evidence. So I am perfectly right in what I said.
The noble Lord, Lord Foot, raised the question of the Scottish situation, as did the noble Lord, Lord Hooson. The Royal Commission was well aware of the position in Scotland, but in paragraph 3.102 it recommended that the clock should begin on arrival at the station. The Royal Commission on Criminal Procedure was fully aware of the six-hour limit in Scotland, but, as I have just said, it took the view, based on close study of the situation in police stations here, that such a limit would be quite unrealistically short. I think I have made all the points that I wish to make, and I shall not change my mind. It is up to the noble Lord.
Lord Mishcon: Indeed, it is. I think that the noble Baroness will regard me a little more kindly if later she looks at her brief and finds that it is a brief on Amendment No. 95A and not Amendment No. 95B.
Baroness Trumpington: No.
Lord Mishcon: Having said that, I think it is time that the opinion of the Committee was taken.
4.36 p.m.
On Question, Whether the said amendment (No. 95B) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 111.

DIVISION NO. 1

CONTENTS

Airedale, L.

Aylestone, L.

Amherst, E.

Birk, B.

Ardwick, L.

Blyton, L.

Attlee, E.

Boston of Faversham, L

594

Bottomley, L.

Lloyd of Hampstead, L.

Briginshaw, L.

Longford, E.

Brockway, L.

Lovell-Davis, L.

Bruce of Donington, L.

McNair, L.

Caradon, L.

Mar, C.

Carmichael of Kelvingrove, L.

Mishcon, L.

Chitnis, L.

Monson, L.

Collison, L.

Morris, L.

Cooper of Stockton Heath, L.

Nicol, B.

David, B.

Oram, L.

Dean of Beswick, L.

Peart, L.

Diamond, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L.

Elwyn-Jones, L.

Prys-Davies, L.

Elystan-Morgan, L.

Rhodes, L.

Ewart-Biggs, B.

Ross of Marnock, L.

Ezra, L.

Sainsbury, L.

Faithfull, B.

Seear, B.

Foot, L.

Serota, B.

Gaitskell, B.

Shaughnessy, L.

Gifford, L.

Simon, V.

Graham of Edmonton, L. [Teller.]

Soper, L.

Stallard, L.

Grey, E.

Stedman, B.

Grimond, L.

Stewart of Alvechurch, B.

Hampton, L.

Stewart of Fulham, L.

Hanworth, V.

Stoddart of Swindon, L. [Teller.]

Hatch of Lusby, L.

Hooson, L.

Stone, L.

Houghton of Sowerby, L.

Taylor of Mansfield, L.

Hunt, L.

Tordoff, L.

Hutchinson of Lullington, L.

Underhill, L.

Jeger, B.

Wallace of Coslany, L.

Jenkins of Putney, L.

Wedderburn of Charlton, L.

John-Mackie, L.

Wells-Pestell, L.

Kilmarnock, L.

Wilson of Langside, L.

Leatherland, L.

Winchilsea and Nottingham, E.

Listowel, E.

Llewelyn-Davies of Hastoe, B.

Wootton of Abinger, B.

NOT-CONTENTS

Alexander of Tunis, E.

Gormanston, V.

Allerton, L.

Gray of Contin, L.

Alport, L.

Greenway, L.

Auckland, L.

Gridley, L.

Avon, E.

Hailsham of Saint Marylebone, L.

Bauer, L.

Belhaven and Stenton, L.

Halsbury, E.

Bellwin, L.

Hayter, L.

Beloff, L.

Home of the Hirsel, L.

Belper, L.

Hylton-Foster, B.

Belstead, L.

Ilchester, E.

Boyd-Carpenter, L.

Kaberry of Adel, L.

Caithness, E.

Killearn, L.

Campbell of Alloway, L.

Kilmany, L.

Campbell of Croy, L.

Kinloss, Ly.

Chelmer, L.

Lane-Fox, B.

Clitheroe, L.

Lauderdale, E.

Cockfield, L.

Lloyd, L.

Colwyn, L.

Long, V. [Teller.]

Cottesloe, L.

Lucas of Chilworth, L.

Crathorne, L.

Lyell, L.

Cullen of Ashbourne, L.

McAlpine of West Green, L.

Daventry, V.

Macleod of Borve, B.

De Freyne, L.

Mancroft, L.

Denham, L.

Margadale, L.

Denning, L.

Marley, L.

Dilhorne, V.

Merrivale, L.

Donegall, M.

Mersey, V.

Drumalbyn, L.

Molson, L.

Duncan-Sandys, L.

Mottistone, L.

Ebbisham, L.

Mowbray and Stourton, L.

Eccles, V.

Murton of Lindisfarne, L.

Elliot of Harwood, B.

Northchurch, B.

Elton, L.

Nugent of Guildford, L.

Fanshawe of Richmond, L.

Onslow, E.

Gardner of Parkes, B.

Orkney, E.

Gibson-Watt, L.

Orr-Ewing, L.

Glanusk, L.

Pender, L.

Glenarthur, L.

Penrhyn, L.

595

Plant, L.

Stodart of Leaston, L.

Plummer of St. Marylebone, L.

Strathcarron, L.

Sudeley, L.

Porritt, L.

Swinton, E. [Teller.]

Portland, D.

Terrington, L.

Reay, L.

Teviot, L.

Reigate, L.

Teynham, L.

Renton, L.

Thorneycroft, L.

St. Aldwyn, E.

Trefgarne, L.

St. Davids, V.

Trenchard, V.

Saltoun, Ly.

Trumpington, B.

Sandford, L.

Vaux of Harrowden, L

Selkirk, E.

Vivian, L.

Sempill, Ly.

Westbury, L.

Skelmersdale, L.

Whitelaw, V.

Somers, L.

Wynford, L.

Stamp, L.

Young, B.

Stanley of Alderley, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.44 p.m.
Lord Elton Lord Elton moved Amendment No. 96:
Page 25, line 15, after ("1971;") insert—
("(aa) section 34(1) of the Criminal Justice Act 1972;").
The noble Lord said: Subsection (7) sets out various exceptions to the general rule in subsection (1) that an arrested person must he taken as soon as practicable to a police station. One omission from subsection (7), which this amendment rectifies, is a reference to Section 34 of the Criminal Justice Act 1972. This section empowers a constable who arrests a person for being drunk and disorderly or drunk and incapable to take him to what the 1972 Act describes as a
"place approved for the purposes of this section by the Secretary of State as a treatment centre for alcoholics";
in other words, a detoxification centre or "wet shelter".
I hope there will be general agreement that the police should continue to be able to exercise the discretion given to them in 1972 where this is possible. It is plainly desirable that methods other than criminal prosecution should be attempted, within reason and where practicable, in dealing with drunkenness offenders, and when we come to Clause 35 I shall have a word or two to say about experimental police cautioning schemes which are now in progress. For the purposes of Clause 29, however, I hope that I have already said enough to persuade your Lordships that the discretion in Section 34 of the 1972 Act should be retained. I beg to move.
On Question amendment agreed to.
Clause 29, as amended, agreed to.
Clause 30 agreed to.
Clause 31 [Search upon arrest for an offence]:
The Deputy Chairman of Committees (The Earl of Listowel): Before I call Amendment No. 96A I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 97.
Lord Elton Lord Elton moved Amendment No. 96A:
Page 25, line 32, leave out from beginning to ("may") in line 34 and insert—
("(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person").
The noble Lord said: With your Lordships' permission, I shall speak also to Amendments Nos. 97A and 97B.
Amendment No. 97A: Page 25, line 37, at end insert ("in any such case").
Amendment No. 97B: Page 25, line 38, leave out ("him") and insert ("the arrested person").
These are purely drafting amendments which seek to clarify the opening provisions of Clause 31 without altering their effect, and I invite your Lordships to support that editorial decision. I beg to move.
On Question, amendment agreed to.
[Amendment No. 97 not moved.]
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 97ZA:
Page 25, line 35, at end insert—
("and a constable earring out a search under this section shall, as soon as is reasonably practicable, make a record of the details of the search, including all items seized pursuant to the powers in this section.")
The noble Lord said: This is a simple amendment but one which is founded upon an important principle. As the Committee will be aware, Clause 31, which this amendment seeks to amend, is a clause dealing with the exercise of a power of search by a police constable other than at a police station. The effect of the amendment, if carried, will be that a constable carrying out such a search, "shall, as soon as is reasonably practicable, make a record of the details of the search, including all items seized pursuant to the powers in this section".
I suggest that there are three substantial and overwhelming reasons why the amendment should be accepted. First, the power of search is a substantial trespass upon human liberty and upon privacy. Many of the persons searched under these provisions will be people who are later not in any way proceeded against, of if proceeded against may well be later acquitted.
Secondly, the fact that it is not at a police station makes it all the more important that such a record should he kept. As those of us who practise in the criminal courts well know, when a person is searched at a police station there is the well known part of the charge sheet which is there reserved to record any property that is found upon him, but where a search under Clause 31 takes place outside a police station then it should be made clear in order to avoid any argument in future, that the strictest documentary proof should be made of that particular search.
Lastly, although we are dealing here with a case of a police constable searching after arrest, it is not a very different situation from the stop and search provision in Clause 3, where it is incumbent upon the officer to make a detailed record of each and every article that is seized. I beg to move.
Lord Elton: This amendment seeks to require a constable who searches a person under this clause to make a detailed record as soon as is practicable. I entirely sympathise with the principle underlying the amendment, but I believe that its requirements are already effectively covered in the Bill and the draft codes of practice.
So far as searches of persons are concerned, paragraph 4.3 of the draft code governing detention.

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together with Clause 52, require a list of property in the possession of a detained person, or taken from him on arrest, to be compiled on arrival at the police station. This will be noted in the custody record and the person is entitled to a copy during the 12 months following his release, under paragraph 2.4 of the code.
Searches of premises will be covered by Clause 19. Thus the occupier of the premises and the owner of the articles seized will be entitled to a record of what was seized within a reasonable time of requesting one under Clause 19(7) and (8).
Furthermore, Clause 31(9) ensures that articles which have been seized on the grounds that they may be used to injure persons or assist in an excape may not be retained once the person is released. Subsection (10) applies the provisions of Clauses 20 and 21 to all other seized articles. Thus the person from whom they were seized must be allowed access to them or a copy, unless this would prejudice the investigation, and their retention by the police will be governed by Clause 21.
That is rather a condensed recital of the provisions of the Bill and the code, but I hope it suffices to show that we intend precisely what the noble Lord desires.
Lord Elystan-Morgan: The only difference between the Minister and myself in this matter is whether the provision and the protection should be enshrined in the Bill, or whether it should remain in the code of practice. I believe that the argument I have put forward is a logical one. Under Clause 3 a person who has not been arrested, but who has been stopped and has had property taken from him, has the protection enshrined in Clause 3(6) of having a record made of the property taken. The question that I ask rhetorically is where another person—again, with the same presumption of innocence engulfing him—has not only been stopped, but has also suffered the further indignity of arrest and has been searched, can there in logic be any justification for drawing a distinction between this second person and the person dealt with in Clause 3? In my respectful submission it is wrong that such a distinction should be drawn. I accept everything that the Minister said about the code of practice. The only issue is whether it should be written into the Bill. Since Parliament has chosen, and accepted, that it should be so incorporated in Clause 3, why not have the same provision included with the more serious conditions of Clause 31?
Lord Renton: I wonder whether the noble Lord really has considered whether it is necessary and desirable for us to go into quite so much detail in our legislation, especially when a Minister has pointed out that the matter will be covered in other ways in circumstances where detail is expected. In view of the explanation that we have had from my noble friend the Under-Secretary of State at the Home Office, I consider that this is not the kind of detail that we should insist upon.
Lord Elystan-Morgan: I wonder whether the noble Lord has taken on board the point that I was making. It could be that the Government take the view that all these matters could be incorporated in the code of practice. But in relation to stop and search, a different decision was taken because it was considered that the
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stopping, searching and seizure provision was such an important matter that it should be written into the Bill. If that is so, the stopping, arresting, searching and seizure provision is even more important. The rhetorical question I ask of the noble Lord, Lord Renton, is: how can he draw a distinction between the two and the decision that has already been taken by the Committee on Clause 3?
Lord Renton: Several distinctions could be made. One is the enforceability of the provision and the consequences of not obeying it. I do not think that in this case we are likely to find that anything will he very consequential when no record is made as a result of the statutory provision rather than a record being made in pursuit of the code of practice. In any event, it would I assume, he a matter for police discipline. This is a mainly administrative question, concerned with the operation of the police forces. I should have thought that this is not the type of penal provision to put into a Bill of this kind.
Lord Elton: I am grateful to my noble friend, and I would add a couple of points. The first is that we want to beware of the danger of assuming that there are different orders of importance, or enforceability, in regard to matters which are in the Bill and in the code of practice, because as soon as your Lordships start to elevate pieces of the code of practice from the code into the Bill, you draw attention not only to their importance but also, in your Lordships' apparent opinion, to the lesser importance of things that remain in the code of practice. The inference from that is that the code of practice does not matter so much. That is something we should be on our guard against.
The noble Lord asked a rhetorical question of my noble friend and my noble friend gallantly and, if I understand the meaning of the word "rhetorical", superfluously answered it. I would add that historically the code of practice on stop and search, the provisions for which are in Clause 3, pre-date the decision to have a code of practice. I hope the noble Lord is seized of the point that the code of practice was invented after that clause was drafted. That is why it is there. I think it is quite proper to leave it there, and your Lordships have agreed that the clause should stand part. But that is why elsewhere in the Bill these points are put into the code of practice, which has the advantage of being enforceable by discipline, but not arguable in the courts. That means that it can be expressed in language which will he understood with ease by the police constable and also by the public, who will pray this code of practice in aid against the police if they feel that it has not been followed.
Lord Boyd-Carpenter: May I ask my noble friend a question which, unusually in this Chamber, is a genuine request for information and not a technique of dialectic? If a person who has been searched has a complaint that perhaps an article has been stolen or mislaid, and he desires to take civil proceedings against the police officer concerned, would his position in law be different if failure to keep a record was merely—I use the word "merely" deliberately—a breach of the code of practice, rather than a breach of the statute?
Lord Renton: It would be no different at all.
Lord Boyd-Carpenter: Let the Minister answer.
Lord Elton: I am quite content for my noble friend to discuss this with my other noble friend for a moment, if he wishes to do so, for obvious reasons. But the first reflection that occurs to me is that the theft by the constable, which is what it would be, would be a theft, whatever the state of the law in relation to the keeping of records.
Lord Boyd-Carpenter: My noble friend has misunderstood. It need not necessarily be a theft, but merely, through neglect in regard to a large number of articles, that one item is lost. If the article is lost, the person concerned sues the police constable for, presumably, some form of negligence in dealing with his property.
Lord Denning: May I —
Lord Elton: The noble and learned Lord sometimes comes to my aid and sometimes to my embarrassment. It is usually best to find out which before I speak.
Lord Denning: Let me say, in answer to what my noble friend said, that it would make no difference in the civil court whether it was in the code of practice or on the statute. It would be just the same. If the constable has acted wrongly he would be liable for damages, but otherwise he would be quite all right.
Lord Elton: Even if I did have a different view, after that your Lordships would not believe me.
Lord Elystan-Morgan: If I may venture to do so, I think that one can go further even in the criminal situation than what the noble and learned Lord has said in relation to a civil situation. I apprehend, and I shall be very glad to be corrected by the noble and learned Lord if I am wrong, that in relation to stop and search, the failure to make a documentary record would not invalidate the stop and search because it is something which belongs to a point in time later than the stop and search. Again, if this amendment were to be incorporated into Clause 31, in the criminal context it would in no way invalidate the arrest.
The Minister has made a powerful argument in saying that it is dangerous to elevate certain parts of the draft code by incorporation in the Bill itself. I believe the converse to be true. Where matters are matters which are utterly important to the very essence of human liberty, omission from the Bill itself when other comparable matters have already been included can give the public the wrong idea. Nevertheless, we feel that it would be wrong to divide the Committee on this matter at this stage. We shall probably wish to return to it later at an appropriate stage, and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton: I beg to move Amendment No. 97A to which I spoke with Amendment No. 96A.
[Printed earlier: col. 596.]
On Question, amendment agreed to.
Lord Elton: I beg to move Amendment No. 97B, to which I also spoke with Amendment No. 96A.
[Printed earlier: col. 596.]
On Question, amendment agreed to.
5.2 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 97C:
Page 26, line 1, leave out ("offence") and insert ("the offence for which he has been arrested or any offence closely connected therewith")
The noble Lord said: This, again, in our submission is a very important amendment dealing with an important matter of principle. The provision at the moment entitles a constable who has arrested a suspect outside a police station to search him first, for an article,
"which he might use to assist him to escape from police detention; or
(ii) which might be evidence"—
I stress the words,
"relating to an offence".
It in no way limits the search to an offence that is connected with the arrest that has taken place. That, I would respectfully suggest to the Committee, is strange for at least two reasons. First, it is strange in the light of the further power that is given to the same constable by subsection (2)(b):
"to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence",
Then there follow the words,
"for which he has been arrested".
In other words, the power to search property is circumscribed by the condition that it must be in relation to the offence for which he has been arrested. The power to search the person is completely open-ended.
My second reason for objecting is that, although it has been stressed in another place that that power of search upon arrest outside a police station does not enlarge the powers of the police, I would respectfully differ with the noble Lord the Minister on that matter. I believe that the answer to the issue lies in paragraph 27 of the Royal Commission's report on the investigation and prosecution of criminal offences in England and Wales—the part dealing with procedure. In paragraph 27 there is a quotation from the current fourth edition of Halsbury's Laws of England. It reads as follows:
"There is no general common law right to search a person who has been arrested but such a person may be searched if there are reasonable grounds for believing:

(1) that he has on his person any weapon with which he might do himself or others an injury or any implement with which he might effect an escape or,

(2) that he has in his possession evidence which is material to the offence with which he is charged."

It would seem that the Government here are going much further than the common law powers which a police constable has at the present moment. The purpose of the amendment is to limit the constable's powers to those which are extant at the moment. I beg to move.
Lord Elton: Clause 31 deals with searches of a person and the premises or vehicle he was in at the time of his arrest. Under subsection (2)(a)(ii) the police have power to search an arrested person for evidence relating to an offence. This reflects the obvious need for the police to check there and then for articles which bear on the arrest and which could otherwise disappear on the journey to the police station. The police have had bitter experience of evidence being thrown out of the windows of police cars or tucked under the seat.
As drafted on introduction to another place, this provision permitted a search only for evidence of the offence for which the person was arrested. Subsection (2)(a) was amended in another place to refer to any offence rather than the offence for which the person had been arrested. Before I deal with the amendment of the noble Lord, I should briefly explain the purpose of the two amendments to this clause in my name on the Marshalled List, Amendments Nos. 98 and 99. These amendments are consequential and should have been made in another place. Clearly, if your Lordships accept the amendment proposed by the noble Lord, my amendments would not be appropriate and, equally clearly, if your Lordships reject his amendment, my amendments will be desirable.
The amendment proposed by the noble Lord, Lord Elystan-Morgan, would partially reverse the change made in another place. If your Lordships accepted it, a search would be permitted only for evidence of the offence for which the person was arrested or a closely connected offence. The amendment made in another place removed the restriction that the purpose of the search must relate to the offence for which the arrest took place. This was seen as being an artificial restriction. The slight broadening of the description of the offence proposed by the noble Lord does not really remove that artificiality. It merely modifies it. If a constable reasonably believes that a person he has arrested has on him evidence relating to an offence, there is no reason why a search for it should have to wait until the police station when there is a risk that the person may try to dispose of the evidence on the journey—which he may of course have a very strong incentive to do. If, for example, an officer arrests someone for burglary and he replies to the caution in a way which suggests that he may be concealing evidence of another more serious offence, then the case for a quick search is both obvious and compelling.
This amendment would impose a restriction which would serve no useful purpose. Subsection (4) already requires reasonable grounds for suspicion that evidence will be found, and it will therefore not be lawful for an arresting officer to search routinely or randomly simply on the off-chance that something may be found. I suspect that that may be the anxiety that is behind this amendment. Similarly, subsection (3) permits a search only to the extent necessary to find what is reasonably believed to be there. These do seem to us adequate safeguards which will ensure that this power will not be abused.
I acknowledge that the Royal Commission did not recommend the extension of the powers of search on arrest which the clause confers. Equally it did not recommend the extension proposed by the noble Lord himself. So if we are to extend these powers, I would
602
have thought that it would be more logical to extend them to evidence of any offence rather than the evidence of connected offences, given that there is a protection against what I think is commonly known as the "fishing expedition" for anything useful.
Lord Renton: It seems to me that if this amendment were accepted and a person had been arrested on a charge of burglary or theft and a police officer were making a search for that purpose, the police officer would he precluded from following up a suspicion which could easily arise that the person concerned might have some drugs on him. It would be very restrictive and quite unreasonable if, in those circumstances, the police officer was not also allowed to search for the drugs.
Lord Elystan-Morgan: I doubt, with the greatest respect, whether the noble Lord, Lord Renton, does make a valid point there. His power to search for drugs—I believe I am right—would be contained in Section 23 of the Misuse of Drugs Act 1971. If I am wrong on that matter I am sure the noble Lord the Minister will correct me, but I think there is a clear power to search for drugs and it is a very general power. In fact, I am rather sure that it is a power which the noble Lord, upon reflection, will remember because he and I were on a Committee on that Bill in another place.
Lord Renton: If the noble Lord will allow me, have we not to be careful that we do not create a conflict between two statutes, which we could be doing if we accepted the amendment?
Lord Elystan-Morgan: My argument, with great respect, is that we are creating a conflict between two subsections. A person is arrested in a place other than a police station: let us imagine he is arrested in his own front room. Under Clause 31(2)(b) there is the power of search so far as the premises are concerned—and I quote the words—
"relating to the offence for which he has been arrested".
It is limited to that particular scope. But so far as the person of the suspect is concerned, as the wording of the clause now stands, there is no limit. Why should there be a limit in relation to the very house he is in when arrested—and it envisages that because it says:
"enter and search any premises in which he was when arrested"?
Why should there be a limitation upon searching the place but no such limitation in relation to searching the person? If the purpose of the limitation was, as I apprehend it was, to safeguard the privacy of the premises, then my argument is that it is infinitely more important to safeguard the privacy of the person of the individual himself. That, surely, must be sound and healthy logic. It is therefore in relation to their own logic and their own decisions that I ask the noble Lord the Minister to reconsider this matter. I appreciate that in the amendment, as I have drafted it, I have in fact out of my innate generosity widened the position somewhat and said:
"the offence for which he has been arrested or any offence closely connected therewith".
That, in my submission, goes only a bare inch beyond the recommendations of the Royal Commission and

603
preserves the spirit of them; but, having drawn that distinction in relation to the premises, why should not the same distinction be held to operate in relation to the person of the suspect himself?
Lord Elton: If I can join in this, it is quite true that the part of the Bill the noble Lord referred to only permits the search of premises for evidence of an arrestable offence or arrestable offences connected with or similar to that offence. But that part of the clause deals with entry to premises whereas what we are talking about is the search of a person. Other innocent persons may be inside the premises—and, as the noble and learned Lord, Lord Denning, has already reminded us in Committee on this Bill—the Englishman's home is his castle and therefore rights of entry without permission should be very carefully circumscribed. That is why there is a distinction between the two requirements. If the noble Lord were to push the logic of our position to the extreme, I suppose the proper response to what I think is an agreed view—that it should be right for a policeman to be able to search somebody he has arrested for evidence of a different offence if he then has reason to suspect that he may have committed one, or been associated with it—would require that we should extend that power to the Englishman's home as well. That I would regret, and so I hope that your Lordships will be content to leave the Bill as it is.
Lord Denning: May I just say that when you are searching a person it is very different. You have to go round his clothes, through his pockets and so on. Suppose it is an offensive weapon you are looking for and you happen to find something which is obviously stolen when you go through his pockets; surely you ought to be able to search for that or to take it away. Searching a person is a different thing from searching premises. I would be against the amendment.
Lord Elystan-Morgan: I feel very chastened and would not seek to disagree with the noble and learned Lord. I hope that someone, someday—perhaps the noble and learned Lord himself—will coin an aphorism to the effect that the Englishman's body is at least as sacrosanct as his own house.
In so far as drugs are concerned, the position was as I suspected: it is governed by Section 23(2) of the Act of 1971 and therefore there would be no need to rely upon this power at all, because any person reasonably suspected of being in possession of a controlled drug could be searched by a constable in those circumstances.
I am disappointed. I hope and trust that the Minister will read what has been said in this very short debate and will reflect further upon it. But in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.16 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment 97D:
Page 26, line 9, at end insert—
("() The power to search conferred by subsection (2) above is not to be construed as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves.")
The noble and learned Lord said: In the place of my noble friend Lord Gifford, I beg to move Amendment No. 97D, which does no more than confer the same protection as is conferred in Clause 2(9) in the case of the stop and search provisions of the Bill. In the interests of time, I do not think I need add any more to that submission.
Lord Boyd-Carpenter: It is a slightly comic list, nonetheless, that the noble and learned Lord has produced, presumably in the interests of decency. If his jacket can he removed, why not his hat? Why not his boots? Gumboots or a scarf are very often used for storing articles such as drugs. It is a very, very arbitrary list even if there were anything in the principle, which I rather doubt.
Lord Elton: Perhaps I may say, in the interests of brevity, that my noble friend clearly does not recall the difference between hats and jackets which we established, I think, on the second day of Committee. I will not bore him with that now, but I will just say that in principle we are agreed on this amendment, which is a corollary to Clause 2(9). I am sorry that I cannot elicit the enthusiasm for my noble friend that I always have to have for my pronouncements at this Box. We are obliged to the noble Lord, even in his absence, and will come forward with something at the next stage.
Lord Elwyn-Jones: It only goes to show the inbuilt resistance the noble Lord has against any proposition of mine. I am sorry to say that about my old friend,Lord Boyd-Carpenter.
Lord Boyd-Carpenter: It only shows how the noble and learned Lord's power of misjudgment has grown upon him with the years. He should know from long experience that I have a profound respect for his views. That is why I was so intrigued to know why he had forgotten his hat.
Lord Elton: Would the noble and learned Lord be so kind as to allow me to come forward with something very similar, but not exactly the same, at the next stage?
Lord Elwyn-Jones: On the strength of that specific, with-or-without-hat assurance, I would ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 97E:
Page 26, line 36, after ("privilege") insert ("or excluded material").
The noble Lord said: I think I am right in saying—and I am sure the noble Lord the Minister will assist me on this—that this is the debate on excluded material which we dealt with last time and, I think, divided on. That was on the basis of an amendment which dealt with the exclusion of welfare reports and similar documents. I think that having been defeated, very narrowly I believe, on that amendment, it would be much more sensible if I said, "Not moved".
Lord Plant Lord Plant moved Amendment No. 98:
Page 26, line 39, leave out ("any offence such as is mentioned in that paragraph") and insert ("an offence").
The noble Lord said: I am concerned about the effect of Clause 31(3). In my view, it very much reduces the powers of search upon arrest outlined in Clause 31(1), 31(2)(a) and 31(2)(b). Clause 31(1) has already been carried, as amended by the noble Lord, Lord Elton, and it retains the phrase "on reasonable grounds". Clause 31(3) puts the onus of decision on the constable and creates an impossible dilemma. He cannot carry out a search unless he has reasonable grounds for believing that the person to be searched may have concealed on him an article for which a search is permitted under that paragraph. If the officer does not suspect that such an article is being concealed, he may not even search.
However, if it transpires that the prisoner has managed after arrest to conceal or to get rid of incriminating evidence, the officer and the police force will be criticised, presumably because the officer stuck rigidly to the provisions of this Bill. He did not suspect, so he did not search. I draw attention to the comments about the arrest of the Yorkshire Ripper and the alleged concealment of incriminating evidence. In 1983, a young constable arrested a youth on a minor charge. He put the youth in the back of the police car without searching him. On the way to the police station, the prisoner stabbed the officer with a small knife that he was concealing and only the skill of the surgeon saved that young officer's life. He never suspected for a moment that the youth was concealing a weapon or would offer violence. If under this clause he had searched the suspect, even though he did not suspect concealment of any article empowering him to search, he would have been in breach of the clause. I am sure that your Lordships—
Lord Elton: I wonder whether the noble Lord will forgive me for intervening, but I am getting a little confused. If he is speaking to Amendments Nos. 98 and 99—I think that No. 98 was called—then we dealt with this issue in a Government amendment which has been agreed to. If he is speaking to No. 97, we passed it on the Marshalled List. So I am not quite sure what the noble Lord is about.
Lord Plant: I am speaking to Amendments Nos. 98 and 99.
Lord Elton: I thought that the noble Lord supported us in amending the Bill in this sense with a Government amendment a moment ago.
Lord Plant: I was not aware that I supported the Government on this one. Otherwise it destroys my case. I had almost finished and I want to get this on the record, because it is a very important clause for the police. We have tied one hand behind their back and I do not think that we ought to tie two—
Lord Elton: I am so sorry, but will the noble Lord tell us whether he is speaking to Amendments Nos. 98 and 99, because I spoke to them and he agreed to them? They appear, misleadingly perhaps, under his name.
Lord Plant: Yes, I am speaking to Amendments Nos. 98 and 99.
Lord Elton: May I save the noble Lord some work, because this is what we want to achieve. It appears under the noble Lord's name, but I have spoken to it previously. We have agreed to the first leg of these amendments and, having spoken to them, I can merely say that I beg to move Amendment No. 98 and then say that I beg to move Amendment No. 99. We shall have it in the Bill and the noble Lord will be happy.
Lord Plant: I thank the noble Lord.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 99:
Page 26, line 41, leave out ("any such") and insert ("an").
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 99A:
Page 27, line 5, at end insert—
("(iii) on police bail subject to a duty to attend at a police station; or")
The noble Lord said: May I be very brief about this amendment, which I hope speaks for itself. It deals with the provision which is subsection (9), which says:
"Anything seized…may be retained so long as is necessary in all the circumstances; but retention of anything so seized is not to be taken to be necessary when the person from whom it was seized—
(a) is no longer—
(i) in police detention; or
(ii) in the custody of a court; or"—
and then this amendment would tidy it up by adding:
(iii) on police bail subject to a duty to attend at a police station; or"
I hope that the amendment is acceptable. I beg to move.
Lord Elton: This amendment has been prompted by the concern that we may have overlooked the need for the police to be able to retain for a forensic examination articles taken from a person on his arrest, who is then released on police bail. This concern may not be fully founded, because subsection (9) is concerned only with articles seized under subsections (7) and (8)(a); that is, articles which may be used to cause physical injury or to assist in an escape. They do not include articles needed for forensic examination. There will be articles seized and retained because they might be evidence. Such articles will be subject not to subsection (9) but to subsection (10), which applies Clauses 20 and 21 to these articles. Your Lordships will see that, in particular, Clause 21(2)(a)(ii) will permit their retention for forensic examination. I think that, at first glance, this part of the Bill looks as if there is a lacuna, but on closer examination there proves not to be. I am glad to have placed that assurance on the record.
Lord Mishcon: I am most grateful for that assurance. May I make absolutely sure under the magnifying glass that the lacuna no longer exists, and reflect upon the matter between now and the next stage? In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 100:
Page 27, line 10, at end insert—
("(11) Nothing in this section shall be taken to affect the power conferred by paragraph 6 of Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1984.").
The noble Lord said: I do not wish to embarrass or antagonise the noble Lord, Lord Plant, but I think that there has been a mistake in the printing of the Marshalled List. If he looks at an earlier edition, he will find that this amendment stood under my name. The inference of that must at least be a reassurance to him, because I am very much in favour of it. I have spoken to it already, and I beg to move.
On Question, amendment agreed to.
Clause 31, as amended, agreed to.
Clause 32 agreed to.
Clause 33 [Limitations on police detention]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 100A:
Page 28, line 13, leave out ("at a police station").
The noble Lord said: I should be grateful if I might be allowed to deal with Amendment No. 100B as well.
Amendment No. 100B: Page 28, line 15, leave out ("at that station").
The same purpose is sought to be achieved by both amendments, and their purpose, in brief, is to ensure that where a constable arrests an individual and, under Clause 29(5), delays in taking him to a police station, the custody officer will still be generally responsible for that person. It was envisaged that the arresting officer would inform the custody officer that he had somebody in custody and was proceeding to, for example, the scene of the crime to further the investigation. If these amendments are carried, the custody officer would then have the duty of reviewing the grounds for detention. I beg to move.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): I believe that the noble Lord has put his finger on a good point here, although there may be some difficulty with the amendment as he has tabled it. If he will agree to withdraw it, I will undertake to have the matter looked at and, maybe, have a proper amendment brought forward at a later stage.
Lord Elystan-Morgan: I am extremely grateful, and, on those terms, I am delighted to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 100B not moved.]
Clause 33 agreed to.
Lord Elton Lord Elton moved Amendment No. 101:
[Printed earlier: col. 568.]
The noble Lord said: this is one of the substantive amendments to which I spoke at the beginning of this afternoon with Amendment No. 92. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 102:
[Printed earlier: col. 568.]
The noble Lord said: The same remarks apply to this new clause. I beg to move.
The Deputy Chairman of Committees: I shall now call Amendment No. 103 as an amendment to Amendment No. 102. Lord Plant? Amendment No. 103 is not moved.
[Amendment No. 103 not moved.]
[Amendment No. 104 not moved.]
Amendment No. 102 agreed to.
Clause 34 [Custody officers at police stations]:
[Amendments Nos. 105 and 106 not moved.]
5.31 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 106A:
Page 29, line 4, after ("is") insert ("or has been").
The noble Lord said: I beg to move Amendment No. 106A. I shall do so very briefly. The purpose of the amendment is to ensure not only that the custody officer is an officer who is not currently involved in the investigation of a matter but that he has not been involved at an earlier stage. As the Committee can well imagine, it may be that at the commencement of inquiries Officer A is substantially involved in a certain aspect of the case and that some days later he drops out of it completely. The amendment would have the effect of saying that since Officer A has been so intimately connected with the case, he is not an appropriate officer to be a custody officer. I hope I am not being over rash in my optimism that this is wholly in line with the concept of the independence of the custody officer. On that basis, I beg to move.
Lord Elton: This amendment is meant to ensure that the custody officer is entirely independent of the processes of investigation. I have some sympathy with the suggestion. It has been pointed out that the Royal Commission recommended in paragraph 3.112 that the custody officer should be independent of the investigations, but they also recognised that in some stations this will not be possible, for practical reasons. In the smaller stations there will simply not be sufficient manpower available to ensure that in every case the custody officer is and always has been independent of the investigation of the offence.
The noble Lord's amendment does not recognise this fact. If the sergeant who is acting as custody officer is called out to deal with an incident, there may be no practical alternative but that another officer takes over as custody officer, notwithstanding that he may have arrested somebody who is in custody at the station. However, the subsection, as drafted, makes it clear that whoever acts as custody officer must not be involved in investigative work at the time when he is fulfilling his custody officer functions under the Bill. This will ensure that the important principle of the separation of custodial and investigative responsibilities recommended by the Royal Commission is given effect to, to the maximum extent that is practicable. There is a balance to be struck

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between the need for effective safeguards and the need for the responsible use of scarce resources, and I believe that the scheme adopted in the new clause I have proposed achieves that proper balance.
Lord Elystan-Morgan: This is not a matter upon which we on these Benches would be prepared to go to the stake. However, the noble Lord the Minister has been kind and gracious enough to accept that the principle which the amendment seeks to serve is laudable. I am sure that he in turn will accept that although there are situations where it would be impossible for an officer who had been earlier involved not to be a custody officer, if somebody is to perform that role, those situations would occur only in a very small minority of cases. I am wondering whether the Minister would be prepared, in the light of what has been said, to consider as a compromise that the spirit of the amendment should be accepted but that there should be a proviso that in those circumstances where it is wholly impracticable for the officer who has been earlier involved to be disbarred from being a custody officer, he should not be so disbarred. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 107 and 108 not moved.]
On Question, Whether Clause 34 shall stand part of the Bill?
Lord Elton: I would ask your Lordships not to accept that Motion because of the alternative clauses which your Lordships have agreed to put into the Bill.
Clause 34 negatived.
Clause 35 [Duties of custody officer before charge]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 109:
Page 29, line 13, leave out ("the relevant police station") and insert ("each police station where he is detained after his arrest").
The noble Lord said: On behalf of my noble friend, I rise to move Amendment No. 109. At the same time I should like to speak also to Amendment No. 111.
Amendment No. 111: Page 30, line 31, leave out from ("1980") to end of subsection (11).
These are purely drafting amendments which I hope will he welcomed as both simplifying and abbreviating the Bill. Clause 35 lays various duties on the custody officer at the relevant stations, the definition of this expression appearing in subsection (11). On reflection, we do not think that it is necessary to introduce into the Bill the new term of art, "relevant police station". All that needs to be said is that the duties in relation to an arrested person which are assigned to the custody officer by Clause 35 should be carried out by the custody officer at each police station when the arrested person is detained. It does not matter where the person was arrested or whether he is subsequently taken to more than one police station. The duties are the same in each case. I therefore beg to move.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 109A:
Page 29, line 13, after ("shall") insert ("inform the said person of his right to remain silent in respect of any question put to him").
The noble Lord said: Equally briefly, I hope, but importantly, I beg to move Amendment No. 109A.
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The clause we are dealing with now is an innovation so far as United Kingdom law is concerned, in that it introduces the possibility of questions being asked of an accused without incorporating the most valuable privilege that we have always had: the right of the accused to remain silent. All of us may have views about whether or not it is right to comment adversely at a trial on the fact that an accused has remained silent. There is no doubt about what the law says at the moment. It may very well be that Parliament in its wisdom will decide, either now or at some future stage, to alter that legal position. However, about one thing there is no doubt: the right to remain silent exists and the duty of the prosecution to prove their case beyond reasonable doubt still exists. It is not for the defendant, unless the statute casts that duty upon him, to prove his innocence.
In those circumstances, your Lordships may well think that the primary duty of the officer who is in charge of the detention, the custody officer, should be to inform the accused of his right in law to remain silent. That duty ought to be incorporated in the Act that we are about to pass, if it has the approval of Parliament. I beg to move.
Lord Hutchinson of Lullington: May I ask the Minister whether it would be convenient for the Committee to take also Amendment No. 109C, Amendment No. 109B and Amendment No. 110, so that we could speak to all four amendments?
Amendment No. 109C: Page 29, line 23, leave out ("or to obtain such evidence by questioning him.").
Amendment No. 109B: Page 29, line 23, after ("to") insert ("seek to").
Amendment No. 110: Page 29, line 24, at end insert ("in the presence of a solicitor.").
I should like to speak also to Amendments Nos. 116 and 119, which go conveniently with Amendment No. 110.
Amendment No. 116: Page 36, line 42, at end insert ("in the presence of a solicitor;").
Amendment No. 119: Page 38, line 40, at end insert ("in the presence of a solicitor:").
It would seem that Amendments Nos. 109A, 109C, 110, 116 and 119 all deal with the question of the right to silence at the time of arrest. I suggest that, if convenient, it would be shorter to deal with those amendments together, rather than separately.
Lord Trefgarne: I must confess that I was not prepared to do that, but I agree that, it would be a good thing to try, at least. If the Committee will bear with me while I condense my six speeches into one, then I will do my best.
Lord Mishcon: Quite honestly, I wonder whether that is the logical way to proceed. I entirely agree with what has been said by the noble Lord, Lord Hutchinson of Lullington, but would not the Minister have to hear the case for the various amendments before he deals with them?
Lord Trefgarne: Indeed.
Lord Mishcon: If the Committee approves of our dealing with all these amendments together, with everybody being so keen to get a move on and not

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waste time, then I am perfectly happy to speak to Amendment No. 109B. It may be necessary to take separate votes on the amendments—I do not know—but I am absolutely happy with the idea of speaking to Amendment No. 109B, for which I have some responsibility. In respect of Amendment No. 109B I immediately make the point that if Parliament determines that this provision should be enacted, then there is surely a defect in the wording of line 23, part of which states:
"to obtain such evidence by questioning him".
That cannot be proper. The detention cannot be authorised to obtain evidence, but only to seek to obtain evidence by questioning a suspect.
The same kind of criticism applies, I think, in respect of Amendment No. 109C. The purpose of this amendment is to delete the power to obtain evidence by questioning a suspect. It covers the same point I made in reference to Amendment No. 109B.
5.43 p.m.
Lord Hutchinson of Lullington: In supporting Amendments Nos. 109A and 109C, I will also say what I have to say in proposing Amendment No. 110. As has already been said, these amendments cover an absolutely crucial point in what happens when a person is taken to a police station. This is the vital moment. This is the moment when a person comes under arrest, the moment when he loses his liberty, the moment when he is in a police station alone, and the moment when he has nobody to speak for him and nobody to whom he can turn. He is in a strange environment and at a great disadvantage, of course. Therefore, it is a crucial moment.
The amendment which seeks to ensure that at that moment such a person is informed of his right to remain silent is doing no more than telling that person what is his fundamental right. As the Royal Commission insisted on a number of occasions, if there is a right and a person has a right, then it is crucial that he be told of it. With the greatest respect, that would seem to be so obvious that surely there can be no argument at all against ensuring that a person is told of his rights at that crucial moment.
The curious point about this Bill is that, although provision is made for ensuring that a person is told of the grounds for his detention, for ensuring that he is told that he may have a solicitor, and for ensuring that he is told that he may have a friend informed of where he is, there is no provision for him to be told of the far more crucial right to remain silent. I submit to the Committee that this is an omission from the Bill which should surely be put right.
I now come to the vital matter of the wording of Clause 35(2), which is covered in the next amendment. Amendment No. 109(c) seeks to omit the words,
"or to obtain such evidence by questioning him".
I would ask the Committee to consider this matter with great seriousness: The words which are in the Bill at the moment are these:
"If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary"—
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Then one or two reasons are given. Then comes the crucial one:
"to obtain such evidence by questioning him";.
That is, to obtain sufficient evidence to charge the person by questioning him.
The logic of the situation is that the custody officer has the arrested person in front of him, and therefore it is the duty of the custody officer to say to that person, "You need not say anything unless you wish to do so"; that is, to caution him. Two seconds later, the custody officer says to that same person, "I cannot release you on bail. I cannot charge you at the moment. But I am telling you that I am keeping you in this police station under detention because I consider it necessary to obtain evidence by questioning you."
If the arrested person says in reply, "But you have just told me that I am under no obligation to say anything, and I do not intend to say anything", then is not the inevitable logic of the situation that the grounds for keeping that person any longer in detention have gone? Surely there cannot be those grounds any more. The grounds in the Bill as drafted are,
"to obtain such evidence by questioning him".
If the person has been told that he need not be questioned, and if he says, "I don't intend to give any answers", then the custody officer has no grounds for keeping the person in detention under Clause 35(2).
I submit that this subsection is attempting to get around the right to silence. It is attempting to say, "Oh, yes, this person is in the police station, he is under arrest, and he does have to be cautioned under the code. But having cautioned him, we intend to keep him detained in order to obtain enough evidence by questioning him". I would suggest that that is a flagrant breach of the spirit of the right to silence. Indeed, it does not make any sense. Therefore, I would strongly support the amendment, which says in terms: leave out the words,
"or to obtain such evidence by questioning him".
As far as Amendment No. 110 is concerned, which is to insert the words "in the presence of a solicitor" after those words, if the submission that I have made to the Committee does not convince your Lordships then the words remain and the custody officer has this power to say to someone, "No, you shall be detained, you shall not be released, because I intend to obtain evidence by questioning you". This amendment then says that if there is to be that questioning it should only be done in the presence of a solicitor. If you are going to have a breach of the spirit of this fundamental right, the right of silence, then surely the right of the person to be legally advised of this extraordinary situation should be upheld.
I would say to your Lordships that, as noble Lords know, hours and hours of time are taken up in criminal trials with trying to establish in court what happened in the police station when the person was not represented by anybody and was in the hands of the police. On the one side, the defendant makes allegations against the police; on the other side, the police say that the defendant made observations, confessions, remarks—and the two things are fought up hill and down dale because there is nobody there who can in fact speak on behalf of the defendant. It is

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the police on one side and the defendant on the other. Although it may appear that one is trying to say something which is for the accused person as against the police, that is not the true position because if the defendant has a solicitor present then all these allegations of impropriety, all these hours which are spent saying, "The police did this, the police did that", will go because the solicitor will have been present, he will have heard what was said, and he will be able to give evidence about it which will clearly indicate whether these things are being made up.
Therefore, I would submit that not only is this provision illogical, not only is it a great breach of the fundamental principle, but if it remains it should remain only so long as there is a solicitor present.
Lord Denning: This part of the Bill is probably the most important of all because it is introducing a new concept into our English law of police detention. Hitherto there has been no right whatever of the police to detain any person for questioning.
The point came up acutely in the Houghton case. The facts were these. Over £2½ million was stolen, I think from Heathrow. There was a reward of £125,000 offered for information leading to the arrest of the offenders. A man called Houghton, hoping to get that reward, got in touch with the police and gave information as to who were the culprits. The police saw him and suspected from what he told them that he was himself implicated, but they did not arrest him at that time. They made inquiries because of the statements which he had made. Then, on Saturday, 3rd July, as a result of what they had heard, they in fact detained him.
They detained him at the police station. They did not charge him; they detained him for questioning. The police officers could hold him and say that it was perfectly right and lawful for them to do that. They held him for nearly four days, from Saturday 3rd July to Tuesday the 6th, and just before the four days expired he made a statement amounting to a confession that he had himself been concerned in handling the goods. The police wanted all that time to complete their inquiries because there was still half a million pounds in bullion or notes outstanding.
In those circumstances, in the Court of Appeal Lord Justice Lawton made observations about the conduct of the police in this case. He said that the man ought to have been brought before the justices on the Monday after the Saturday, as he should have been. He might have been released on bail. The police suspected—and on the facts known to them they had good reason for doing so—that had he been released he would have tried to get possession of the half a million pounds or so—that was still missing. Further, there was a danger that if Houghton had been allowed visitors while at the police station he could have got them to collect the money for him and put it in a place where the police could not get it. A solicitor could have been an innocent channel of communication for this purpose.
It may be that the police should have powers to detain for inquiries in such a case. They have not got them now. Parliament may have to decide whether they should have them. The courts cannot do so. There is the important question for your Lordships
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today: whether there should be power to detain for questioning in such circumstances. It is a very difficult question, if I may say so, but most important, because the efforts of the police may be hampered. I do not say that the man himself should necessarily be warned, or have a solicitor, and so on, but it is a most important question for the police in the course of their investigations, and I wonder which way we should come down.
It seems to me that in the search for, if I may say, the wrongdoers, in the search for discovering offences and offenders and bringing them to justice, the power to make inquiries of people who know the facts may be of the very first importance. Even though the man may be suspected, nevertheless if inquiries are properly and carefully made—remembering there is a custody officer who will be in charge and will investigate the matter—it seems to me that on the whole (and this is a most important point of principle for your Lordships) it would be right for the common law to be altered and for there to be a right to make inquiries by questioning a suspected person, such as the police do at the moment, but giving him all proper safeguards.
I do not say he should be warned and told that he has a right to silence, because a right to silence is a very misleading expression. A man has not a right to silence. What he has is a privilege against self-incrimination. He is not bound to incriminate himself, but he has not, in law, a right to silence as such. That is often misunderstood. He has a privilege against self-incrimination. The first thing an innocent man wants to do is to tell the truth and say that he is innocent. I am afraid it is often the guilty person who says, "I am not going to say anything". The right to silence has often been invoked when it is really not justified. As I said, it is only a privilege against self-incrimination.
I do not see why it should he in the presence of a solicitor. It is not going to be his solicitor. It may be a good thing or not, but is the solicitor to be present to monitor it, to see, or interrupt, the police and so on? That is another question. On the whole, if I may say so, it is a very near thing against the amendments and to support the Bill as it stands.
6 p.m.
Lord Elton: The noble and learned Lord has been most helpful and brought us to a fairly wide passage in the Bill. I hope your Lordships will think that it is proper to deal with the amendments so far spoken to—the first three of the group spontaneously suggested earlier this afternoon. I respond to the noble and learned Lord by saying, first, that we recognise that the idea that it is lawful or proper for the police to detain a person whom they have arrested for an offence, in order to question him before he is brought before a court on a charge is a relatively recent development in criminal procedure. Until well into this century questioning was simply not part of the duties of the police at all. The courts repeatedly held that the police should not do the questioning. They held that that was a matter for themselves, and nobody else.
However, I think the noble and learned Lord will accept that the duties of the police have changed over the years and that the courts have shown themselves willing to interpret the law governing detention without charge in a way which reflects the

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development of modern criminal investigation departments. The formal turning point came, I believe, in 1964 when the Judges' Rules were revised to allow the police to question an arrested person about the offence for which he had been arrested. Last year your Lordships' House confirmed, in the case of Mohammed-Holgate v. Duke, that detention for this purpose was permissible and it is, therefore, now an established and recognised fact that detention provides an opportunity for the police to convert the "reasonable suspicion" that suffices for an arrest into the "sufficient evidence" to justify the institution of proceedings.
In that respect the Bill does not introduce a new principle into the law, though it is a principle I readily accept your Lordships will wish to test. It places on a formal and statutory basis an interpretation of the powers and functions of the police which the courts have themselves adopted for the past 20 years. I do not think that we could reverse that. I do not think that, on reflection, your Lordships would wish to.
The case, therefore, is not that questioning produces confessions: though it is certainly true that many interviews result in confessions and that confessions are likely to he associated with pleas of guilty, which are welcome to the police for a variety of practical reasons. The justification for questioning under conditions of detention is, rather, that the police have a duty to check the suspect's story and investigate the facts which may either incriminate or clear him. I am very much aware of standing at this Dispatch Box and being tested about false admissions of guilt that have occurred in the past, as well as about people who have confessed correctly to crimes which they have committed. The suspect's story may be a denial of the alleged offence, or a confession to it, but in either case, therefore, corroboration must be sought. Often the confession marks the effective beginning of an investigation, rather than the end of it.
If the police were not given a reasonable opportunity to check the story of an arrested person, then charges would undoubtedly be preferred against very many people questioning of whom would have cleared them of suspicion. To release anyone on his own unverified story—which would be the only alternative—would not, I think, be considered by your Lordships as assisting us in controlling crime. That is why I think that the words,
"or to obtain such evidence by questioning him";
need to remain in the text of the Bill where they are.
I return to the wide theme to which the noble and learned Lord addressed himself; that is, to acknowledge the very serious nature of what is done to a suspect when he is detained in a police station. Your Lordships will be aware of, and will shortly be testing, the elaborate series of safeguards which have been built around that person for as long as he is not charged. I shall not go over them in detail, but we start with the constable exercising his judgment in arresting the suspect. He brings him to the station where the case is immediately put to a sergeant. Within six hours it goes to an inspector, and within another nine hours to a superintendent. After 36 hours it goes to the courts. All the codes of conduct that we have
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discussed, time and again, relate to the treatment of the suspect while in detention.
I mention this as directly relevant not to the first of the group of amendments (Amendment No. 109A) but to the general anxiety which the noble and learned Lord properly seeks to leave in your Lordships' minds as you judge these amendments and come to a conclusion. I am grateful to the noble and learned Lord for putting that anxiety in your Lordships' minds because it is proper to do so, and although it makes my job more difficult, it makes the job of Parliament more efficient. I am grateful to him also for saying that in the light of that anxiety, he nonetheless feels that the Bill as drawn is correct.
Unless your Lordships wish me to do so, I think I need not speak directly to Amendments Nos. 109, 109A and 109B because they are taken care of in the general precepts which I have adduced. However, I shall speak to them if your Lordships so wish.
Lord Mishcon: When the noble and learned Lord, Lord Denning, stands up and makes a speech on a matter of this kind there is no Member of your Lordships' Committee who would not wish to listen to every word he says and, in the course of listening, rather wonder at the ability of anybody to have such a memory that, without even looking down at a note, he can give the exact dates of a case and say that it was on a Saturday, on a Monday, and on a Tuesday. I am lost in admiration for the way that was done.
Having said that, one would also—
Noble Lords: Oh!
Lord Mishcon: I am not going to say what your Lordships think I am going to say. Having said that, one equally listens with rapt attention when the noble and learned Lord says that this is a very narrow point which one must look at extremely carefully. After a great deal of reflection, he finds that he just jumps down, or falls down, on one side. I see that the noble and learned Lord is good enough to indicate his assent to that analysis of his state of mind which was so frankly expressed to us.
If the noble and learned Lord has to concentrate so much upon this principle and comes down only narrowly on one side or the other, it would be very wrong of any of us not to take that as our guiding principle in coming to a decision on a very vital matter. Let us go three-quarters of the way down the road that the noble and learned Lord trod with such care and such elegance. Let us take it for granted that Parliament should now decide, as Lord Justice Lawton indicated would have to be its duty, that there should be a right of detention for interrogation. Let us go down that road that far. Is it right that we should go a further length in altering the law, as Parliament will be required to do, and, further than that, say that we do not even ask that the investigating officer or the custody officer should tell the man concerned what are his rights?
It is all very well taking the different classifications of the innocent and the guilty. The noble and learned Lord would be the first to agree with me, I am sure, that that is a generalisation which one should not take as being the literal guide to our consideration of this

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particular matter. There are many innocent people who are very nervous when they arrive at a police station. There are a great number of innocent people who, out of sheer nervousness, answer in all the wrong ways the questions that they are asked. There are a great number of people, we have found in our experience as lawyers—and your Lordships as readers of newspapers will have found—who make the most extraordinary confessions, as they just feel that they want to get out of the police station and back home as fast as they can. It is not always the gentle policeman who asks the question in a perfectly courteous and simple way. Sometimes a question is put very directly; sometimes in the loneliness of that police station the question is put very aggressively.
What we have to secure at the least is that the person detained is told: "I am going to ask you some questions. It may be better for you to answer them, or it may not. But I am telling you of your right. You can tell me, if you want to, that you do not intend to answer them". That is his right.
Lord Elton: I hate to interrupt the noble Lord's oratory. When he is moved by the content of what he is saying he has a style, and he has a very good and impressive flow now. But I think I ought to remind your Lordships of this. The code of practice will be subject to parliamentary procedure and is tied into the Bill by disciplinary proceedings. That means that, if the custody officer or anybody else breaches the code, he will be subject to punishment. In Section 11 the code provides that an arrested person must be cautioned, at the very latest, at the point of arrest; that is to say, before he even comes to the custody officer, as is suggested in the amendment. That is earlier than the amendment proposes. In addition, he must be cautioned in full before being questioned or inteviewed on any occasion. He must be reminded that he is under caution if there is a break in the questioning: and if there is a substantial break, the caution must be repeated in full. The time and place at which cautions are given must be recorded in the custody record, and so on. I think that the safeguard which the noble Lord wants in this respect is stronger in the Bill than in the amendment.
Lord Mishcon: The noble Lord the Minister is kind to intervene if he thinks he is helping me or helping the Committee, but I do not honestly feel that he is. I say that first of all because we keep hearing about a code of practice. It is easily altered and will come before your Lordships' House from time to time by the procedure that we know of, if ever it is altered. Secondly, the noble Lord referred to a caution. What does the caution say? It says that you need not say anything, but anything you do say may be taken down and given in evidence. That is all very well. Those are words which are expressed from time to time. They are not very clear in their meaning. They certainly are not as simple as somebody being told in ordinary language, "You need not say anything if you don't want to".
I feel that we are doing something extremely wrong when we reflect upon changing our law, as the noble and learned Lord just felt that we ought to—and I repeat the words, "just felt—without in the same
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legislation (not in any code of practice but in the legislation itself) writing into the change of law the safeguard to which the individual is entitled; namely, a clear statement of what his legal rights are.
It is all very well to talk of the guilty person being the one who does not want to speak. It is not always—and I repeat that statement—it is not always the person who is guilty who needs that warning. The person who is guilty is most likely, in the examples that we have been giving, to be the sort of rogue who will know what his rights are in any event, has most likely been up against the criminal law before and has had all the advice that his lawyers may have seen fit to give him. That is not the person about whom I am frightened in regard to this warning. He will know his rights. I am frightened about the nervous person who ought not to be subjected to that without a clear indication of what his legal rights are.
I conclude by using the noble and learned Lord as the basis of my plea to the Committee. The Committee does not have an assured Lord Denning, as it has often had. I have heard his words addressed to amendments of mine: "I ask your Lordships not to agree with the noble Lord's amendment". There have been a few terse sentences after that, and the noble and learned Lord has sat down because he has been very certain of himself. But the noble and learned Lord says in regard to this amendment, "I have had to give it every consideration. It is a very narrow point. I think I am right in coming down on one side, but it is a very narrow point". If we go with the noble and learned Lord on a point which is so narrow, at least let us see that the safeguard which he knows ought to exist is in the Bill.
Lord Hooson: I should like the guidance of the Committee on this matter. The noble Lord, Lord Elton, did not deal with Amendment No. 110 in his reply, and I should like to speak to that.
6.17 p.m.
Lord Elton: I wonder whether it would be better to speak to Amendment 110 later. We have quite a lot on board already. The noble Lord, Lord Mishcon, has returned to an issue to which we spoke briefly on a previous amendment, but which was not fully raised hitherto, and that is the relative importance of the code of practice and the Bill. The noble Lord will correct me if I am wrong, but I understood him to be saying that here is a right so important that it should not be left in the code of practice; it ought to be put on the face of the Bill.
Both at Second Reading and throughout our Committe proceedings noble Lords have—perhaps inadvertently—belittled the codes of practice for which Clause 63 provides. I repeat this fortissimo, having said it whatever there is between fortissimo and piano on the musical scale (I have forgotten) at the earlier stage. I believe that noble Lords misdirect themselves in that. What underlies their approach is the belief that the inclusion of a provision in the statute rather than the code enhances its status and the likelihood of its observance. The noble Lord, Lord Hutchinson, said as much on Second Reading. He said:
"the point that I was making was that it was in the code but not in the Bill, and that what is in the code will he disregarded".

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Those were his words at col. 474 on 4th June.
I do not want to spend too much time arguing about status symbols, but I cannot allow the impression to remain unchallenged that the code provides a lesser degree of authority and one that can be treated in an slipshod way. Police officers will disregard the requirements of the code at their peril. Clause 64(7)—
Lord Mishcon: I am sure that the noble Lord the Minister in his courtesy will give way if we are to have a logical debate, and I am sure that he will try to change his tune to one of moderato if I implore him to do so. It is no consolation whatsoever to any accused that a disciplinary charge may be brought against an officer in due course, arising out of fact that the officer has acted incorrectly and in breach of the code. If, however, it is in an Act of Parliament that something has to be done, and if it is not done then certain consequences follow, that is something that protects the accused. I repeat that it is no consolation at all that an officer has had a stripe removed, or whatever it may be, after all the damage has been done.
Lord Elton: I acknowledge the force with which the noble Lord has spoken but not so much the force of what he has said. The way in which constables, sergeants and the ranks above behave is determined by the orders under which they work and the regulations by which they are bound to abide. We are looking at a code of conduct enforced by the chief officer of police through all the subordinate ranks down to the custody officer and the police constable. The effect of that code of conduct is to require the suspect to be given the caution at an earlier stage than is suggested. There is not much more that I can say on that matter.
The choice between the Bill and codes is essentially a matter of judgment. We take—and I would remind the Committee that the Royal Commission took—one view and the noble Lord opposite takes another. However, I should like to urge one point. This only arises because this has been made an issue. In itself, the question of the Bill versus the code is not so important but if the Committee agree to these amendments you will in effect be telling the police service that certain provisions are so important they are not to be trusted to the code. It seems to me that these amendments really come, therefore, to a self-fulfilling prophecy.
Lord Airedale: Has the noble Minister not thought of it in this way? Learned counsel for the defence is addressing the jury and says, "This police officer has breached the code of conduct". That will make some impression upon the jury. However, if he says, "This police officer is in breach of an Act of Parliament", that will make a different impression and a more serious impression upon the minds of the jury.
Lord Elton: We must not go on on this, for too long. On that I would merely say that the noble Lord will remember that the code of conduct will have the authority of Parliament because it will be published under parliamentary authority and subject to parliamentary reversal. It is not called an Act but it is the will of Parliament.
Lord Hutchinson of Lullington: Before my noble friend replies to this, I should like to take up something which has been said by the noble and learned Lord, Lord Denning. He pointed out that the right of silence means the privilege against self-incrimination. That is precisely what I had urged upon the Committee earlier: that if you say to a person in custody, "It is necessary to keep you in detention to obtain by questioning such evidence as is sufficient to charge you", that is trying to breach that person's privilege against self-incrimination. That is precisely what these words do.
I know that in a moment the Committee will have to decide two separate things. First of all, they will have to decide whether that person is to be told, in terms, of his right to silence or his privilege against self-incrimination. That is the first matter. The second matter is whether these words should remain in Clause 35(2) of the Bill:
"to obtain such evidence by questioning him"—
just after the custody officer has told him of his rights and his privilege against self-incrimination.
With the greatest of respect to the noble and learned Lord, Lord Denning. I would say this in reply to his observation—and has one not heard it enough throughout the years of listening to judges in criminal courts?—that the innocent person will wish to speak at once. What on earth relevance has the fact that an innocent person may wish to speak at once to the question of whether you tell a person of his right?
May I take, for example, one criminal offence on the roads with which anybody in this Chamber is liable to be charged at any moment. You knock somebody down in your motor-car and kill him. The suggestion is that you were driving recklessly and you are possibly going to be charged and very possibly put in prison. I would suggest that every single noble Lord in this Chamber, when approached by the police for an account of what happened, would say, "I want time, please, to think this through. I would like to have legal advice as to my position. When I have had time and I have had legal advice I will give a complete statement of my position, which was that I was driving perfectly properly and I was not in any way criminally or negligently responsible for this accident. But I am not going to embark on that statement now, by myself, in a police station, without time and advice".
If that is the view of the Committee here, why on earth should it not be the privilege of the person who is charged with other criminal offences? In some people's views, to kill someone with a motor-car happens to be a "respectable" criminal offence. It is an appalling criminal offence. One has heard over and over again this phrase, "why should there be a right to silence?—because every innocent person will immediately explain his innocence and will want to talk". That is not an attack on the behaviour of the police or the behaviour of the accused, but an attack on the privilege of the right to silence. That is what the attack is on.
However, if I may say so that is not in issue in this vital question which we are deciding. What is in issue is that that right has been accepted and endorsed by the Royal Commission, accepted and endorsed by the Government throughout the passage of this Bill in

621
another place. It is not in issue. If you are entitled not to say anything, whether you be innocent or guilty, then you should surely be allowed not to say anything and be told of your rights. I am sorry for taking up extra time. In reply to the Minister, on this question of the fact that it is already in the code and so it need not be in the Bill, at paragraph 4.116 the Royal Commission said this about this matter:
"We have already recommended that the rules that affect the liberty of the citizen or the invasion of his privacy, that is those on arrest and detention …should be incorporated in primary legislation".
Then a few lines later their Report says:
"The rules which will regulate the facilities to be provided for and the treatment to be accorded to suspects in custody and the code of practice which will govern the conduct and recording of interviews should he contained in subordinate legislation".
I would suggest that that is the fundamental difference between these matters. These crucial matters of the citizens rights should be in primary legislation. All the rules and regulations as to how you treat someone in custody, in what cells you keep them, how their statement should be taken, giving them food and drink, informing their friends and so on and so forth—of course, those matters should go in a code. The crucial, critical matters of principle—and there is no greater principle than this one in the whole of this Bill—as the Royal Commission say, should surely be in primary legislation.
Lord Elton: I cannot leave so many points unanswered, hut I will try to be brief. The noble Lord quotes from the Royal Commission. I quote from them also.
"The rules which will regulate the facilities to be provided for and the treatment to be accorded to suspects in custody and the code of practice which will govern the conduct and recording of interviews should be contained in subordinate legislation. This should be made by the Home Secretary, with cunsultation as appropriate, and subject to the approval of Parliament by affirmative resolution, which will give flexibility to amend aspects of detail if experience or changing circumstances require it".
That is exactly the process that we have been going through with the codes of practice. They have been amended in consultation following debate in another place and they will be implemented eventually by a parliamentary procedure.
The noble Lord, Lord Hutchinson, says that those who wish to speak should be able to do so and the police should be able to take evidence. It is clear therefore that the power to do so should remain on the face of the Bill and should not be removed from it. There is no difference between us as to what ought to happen. All that we are bickering about is the machinery by which it should be brought about.
The difference between us is whether or not it should repose within the code of conduct or be put on the face of the Bill. I believe that experience will show that there are aspects of this which we shall not have got right at the first instance, and that your Lordships will wish the Home Secretary at a future date to come back to Parliament with alterations to the code of practice. He will then not be waiting like a Canadian lumberjack at the head of the river with a great log jam ahead of him, waiting for parliamentary time, because it can be done in the simple procedure appropriate to subordinate legislation. I believe that the safeguards in the Bill are better than those proposed.
6.32 p.m.
Lord Foot: I intervene briefly because I should like to say a word or two before the noble Lord, Lord Mishcon, concludes the debate. There is one matter which will probably be agreed in all parts of the Committee. It is, as my noble friends have said and as the noble and learned Lord, Lord Denning, has said, that this is the crucial part of the Bill. The question of the right to silence is a crucial part of the crucial part. I was a little disturbed to hear the noble Lord the Minister talk about this debate as bickering. That is a very odd phrase to apply to the discussion of what has always been regarded as one of the basic rights of the individual.
Lord Elton; With respect, I always regret it when I choose a word that gives the wrong impression. I said "bickering" because what we are talking about is the relatively unimportant aspect of how what we all want to achieve should be achieved. We would be arguing furiously if the rights of the individual were in doubt.
Lord Foot: I shall not be particularly troubled about particular words that the noble Lord used. I should like, however, to say something about what was stated by the noble and learned Lord, Lord Denning. He reminded us that it has been considered by Lord Justice Lawton that the time may have come when we should introduce into the law of this land the right of interrogation of the suspect when in custody and when in detention. I should like to say a word or two—again, I am doing this at the risk of repeating myself—about what was done in Scotland in 1980. This is an interesting aspect of what the noble and learned Lord, Lord Denning, was talking about. It is true that the Scottish Bill went some way down what the noble Lord, Lord Mishcon, has called the road that the noble and learned Lord has spoken about. The Scottish Bill set out what was to happen to a person on being detained in a police station. It stated:
"Where a person is detained under subsection (1) above, a constable may put questions to him in relation to the suspected offence".
So the Scottish legislators did decide to go some way down the road towards interrogation of a suspect in detention. But they went on to do something else. A little further down in the same section they provided that:
"A person detained under subsection (1) above"
that is a person detained in a police station as a suspect
"shall be under no obligation to answer any question other than to give his name and address, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises".
That was the safeguard that the Scottish legislators thought was absolutely essential if we were to go any way down the noble and learned Lord's road. Not only that. If one looks back in the same section to the things that the police are obliged to do, one finds this:
"At the time when a constable detains a person under subsection (1) above,"
and it then states the various things that he must do and the various things that he must record. One of the things that he must record is,
"the time when the person is informed of his rights in terms of subsection (7) below."

623
That is the subsection which I have quoted which says that he must be informed that he is under no obligation to do anything other than to give his name and address.
Of these amendments that we are discussing or are about to discuss, I would, on balance, be mainly in favour of the amendment which we are currently discussing. The real solution is that it should be written into statute at a very early stage that, before anything else is done by way of interrogation or asking questions, the suspect shall be informed precisely of his absolute rights. It would be deplorable to my mind if we were, in the course of passing a Bill of this kind, to provide any lesser protection for the rights of the subject than now exists in Scotland. There is a strong argument on a matter of this vital importance in trying to bring the Scottish and the English law into agreement.
We are making at this stage of this long Committee debate one of the most important decisions that we shall he asked to make throughout the Bill. I hope that we shall bear in mind what we have been talking about almost from the beginning—that this Bill very rightly seeks to set out and codify what shall be the powers of the police in the very difficult job that they have of trying to maintain the law and enforce the law; but, equally, as the noble and learned Lord. Lord Scarman, said on Second Reading, we are concerned to ensure that proper safeguards are provided to protect the individual against any abuse of the powers we give to the police. It is that issue that we are discussing here. In my belief and my submission, the balance between the one and the other is rightly drawn in the terms of this amendment.
Lord Elton: I should like to make it clear that I do not intend to make a whole series of further speeches. The noble Lord, Lord Foot, has given an able and persuasive speech about Amendment No. 87, which was not moved. Your Lordships will therefore forgive me if I do not reply to that. Everything that I have already said has been relevant.
Lord Boyd-Carpenter: We are on an important point—I agree entirely with the noble Lord, Lord Foot, about that—but it is a narrow one. It is the point as to whether the provision of warning as to the right of silence, which it is generally agreed should be given, should be embodied in the code of practice or in the statute. That is the point, as I understand it, that your Lordships have been discussing for some time now. It would help me in making up my mind if we could follow the procedure that my noble friend Lord Elton will remember we followed somewhat unconventionally on an earlier amendment where a similar point arose, though on a less important issue. On that occasion, as my noble friend will remember, I raised the question, genuinely seeking information, as to whether, if the provision in respect of making a list of property found on an accused, were embodied only in the code of practice and not in the statute, it would make any legal difference to subsequent proceedings.
624
That matter was resolved, I think with the agreement of all of us, by reference to the noble and learned Lord, Lord Denning, who speaks with such vast authority on these matters. I wonder whether we could apply a similar principle and ask for the view of the noble and learned Lord, Lord Denning, on this point. If the warning is embodied in the code of practice, as my noble friend Lord Elton wants to see it, if there is a breach of it, and this comes out at the hearing of the case, would that be as sufficient a ground for upsetting the decision in the case as would be a breach of a similar provision incorporated in the statute?
Lord Elton: With great presumption, may I put into the noble and learned Lord's mind the provisions of Clause 64(7), which states:
"A failure on the part of any person to observe any provision of a code of practice issued under this Act shall not of itself render him liable to any criminal or civil proceedings but in all criminal and civil proceedings any such code shall be admissible in evidence, and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."
In case the noble and learned Lord had not seen that, I thought he should know about it before he answered.
Lord Denning: I think that is the answer.
Lord Hutchinson of Lullington: May I say to the noble Lord, Lord Boyd-Carpenter, that I am sure he has heard of the Confait case, in which there were convicted of murder and arson a number of young people who supposedly had made confessions. Sir Harry Fisher was asked to carry out an inquiry into that. He found that some of the provisions in the Judges' Rules, which, in fact, were the equivalent of the code which is now attached to this Bill, only, of course, in a different form—hitherto the Judges' Rules have been the code that everyone has had to follow—were not known to the police. One of them was not known to the lawyers in the case.
He found that it was because of that lack of knowledge that this appalling miscarriage of justice had taken place. As your Lordships may know, he has made a recommendation that if, in future, any defendant is not told of his right to have a solicitor, then any confession which follows will automatically be excluded. That was the supreme example of the difference between something that is in a statute and something that is only in a code, which then was the Judges' Rules.
Lord Elton: The supreme irony of the position is that it is because of the Confait case that we are all standing here debating this question. The code of conduct was designed to meet these conditions. The provisions of the Bill meet them specifically. I feel that probably we have heard enough on this to be able to come to a conclusion.
Lord Mishcon: I am taking the hint, and I shall be extremely brief. The noble Lord, Lord Boyd-Carpenter, put a very pertinent question, and the noble and learned Lord, Lord Denning, in giving a brief answer, may decide that he wishes to elaborate

625
upon it; I do not know. But the answer that I am venturing to give—I know that the noble and learned Lord will correct me if he thinks that I am wrong—is that there is a great deal of difference between a code of practice, even if one looks at Clause 64(7), and an enactment in a statute.
The code of practice under Clause 64(7) is in precisely the same position as a highway code; it has as little, or as much, effect as that. One cannot charge anybody with a breach of the code of practice—there is no criminal offence—but it can be referred to in the course of the proceedings; that is all. But if it is a breach of an Act of Parliament—if one starts off with an illegality under an Act of Parliament—all that flows from it is most likely illegal.
Therefore, the answer from this Dispatch Box to the noble Lord, Lord Boyd-Carpenter—it is a very much more humble answer than the one that comes from the noble and learned Lord, Lord Denning, or from the Cross-Benches, on a matter of this kind—is, in all humility, "The world of a difference". That is why, on such a crucial issue, if the Committee is agreed, as the noble Lord the Minister says is the case, of course there ought to be a warning, and the only difference is: should it be code of practice, or should it be the law enacted in statute?
I am going to utter one sentence, and one sentence only. The noble Lord the Minister let the cat out of the bag. He quoted from the commission's report (he thought in his favour), by talking about subordinate legislation, and then saying that it had the desirability of flexibility. How right he was! It is flexible; it can be altered just when one wants, with Parliament approving. The one thing that I want to be inflexible is the right, imprinted in our law, to silence and the right for somebody to be told that before he is questioned by the police. To me, that is inflexible, and therefore I ask the Committee to decide which course it wants to adopt.
6.45 p.m.
On Question, Whether the said amendment (No. 109A) shall be agreed to?
Their Lordships divided: Contents, 86; Not-Contents, 99.

DIVISION NO. 2

CONTENTS

Airedale, L.

Ewart-Biggs, B.

Allen of Abbeydale, L.

Foot, L.

Attlee, E.

Gladwyn, L.

Aylestone, L.

Graham of Edmonton, L.

Beaumont of Whitley, L.

Grey, E.

Birk, B.

Grimond, L.

Boston of Faversham, L.

Halsbury, E.

Bottomley, L.

Hampton, L.

Brockway, L.

Hanworth, V.

Bruce of Donington, L.

Hatch of Lusby, L.

Carmichael of Kelvingrove, L.

Henderson of Brompton, L.

Chitnis, L.

Hooson, L.

Collison, L.

Hutchinson of Lullington, L

David, B.

Jeger, B.

Dean of Beswick, L.

Jenkins of Putney, L.

Denington, B.

John-Mackie, L.

Diamond, L.

Kilmarnock, L.

Elwyn-Jones, L.

Kinloss, Ly.

Elystan-Morgan, L.

Lindsey and Abingdon, E.

626

Lloyd of Hampstead, L.

Serota, B.

Lovell-Davis, L.

Shackleton, L.

McIntosh of Haringey, L.

Shannon, E.

McNair, L.

Simon, V.

Mayhew, L.

Somers, L.

Merrivale, L.

Stallard, L.

Meston, L.

Stamp, L.

Milner of Leeds, L.

Stedman, B.

Minto, E.

Stewart of Alvechurch, B.

Mishcon, L.

Stewart of Fulham, L.

Monson, L.

Stoddart of Swindon, L.

Morris, L.

Stone, L. [Teller.]

Napier and Ettrick, L.

Taylor of Gryfe, L.

Nicol, B.

Tordoff, L.

Northfield, L.

Underhill, L.

Oram, L.

Wallace of Coslany, L.

Peart, L.

Walston, L.

Pitt of Hampstead, L.

Wedderburn of Charlton, L.

Ponsonby of Shulbrede, L. [Teller.]

Wells-Pestell, L.

Whaddon, L.

Prys-Davies, L.

Wilson of Langside, L.

Rhodes, L.

Wilson of Rievaulx, L.

Ross of Marnock, L.

Winchilsea and Nottingham, E.

Seear, B.

Sefton of Garston, L.

Winstanley, L.

NOT-CONTENTS

Airey of Abingdon, B.

Lane-Fox, B.

Allerton, L.

Lawrence, L.

Alport, L.

Long, V.

Auckland, L.

Lucas of Chilworth, L.

Avon, E.

Lyell, L.

Bauer, L.

McAlpine of West Green, L.

Belhaven and Stenton, L.

Macleod of Borve, B.

Beloff, L.

Mancroft, L.

Belper, L.

Mar, C.

Belstead, L.

Margadale, L.

Boyd-Carpenter, L.

Marley, L.

Brabazon of Tara, L.

Mersey, V.

Brougham and Vaux, L.

Molson, L.

Bruce-Gardyne, L.

Mottistone, L.

Caithness, E.

Mowbray and Stourton, L.

Campbell of Alloway, L.

Munster, E.

Carnock, L.

Murton of Lindisfarne, L.

Cockfield, L.

Northchurch, B.

Coleraine, L.

Nugent of Guildford, L.

Colville of Culross, V.

Onslow, E.

Cork and Orrery, E.

Orr-Ewing, L.

Cox, B.

Pender, L.

Craigavon, V.

Penrhyn, L.

Daventry, V.

Plant, L.

Denham, L. [Teller.]

Plummer of St. Marylebone, L.

Denning, L.

Dilhorne, V.

Reay, L.

Donegall, M.

Reigate, L.

Drumalbyn, L.

Renton, L.

Eccles, V.

Renwick, L.

Ellenborough, L.

St. Davids, V.

Elliot of Harwood, B.

Saltoun, Ly.

Elton, L.

Sempill, Ly.

Faithfull, B.

Sharples, B.

Gardner of Parkes, B.

Skelmersdale, L.

Gibson-Watt, L.

Stanley of Alderley, L.

Glanusk, L.

Stodart of Leaston, L.

Glenarthur, L.

Swansea, L.

Gormanston, V.

Swinfen, L.

Gowrie, E.

Swinton, E. [Teller.]

Grantchester, L.

Trefgarne, L.

Greenway, L.

Trenchard, V.

Gridley, L.

Trumpington, B.

Hailsham of Saint Marylebone, L.

Vaux of Harrowden, L.

Vickers, B.

Harmar-Nicholls, L.

Vivian, L.

Home of the Hirsel, L.

Westbury, L.

Hylton-Foster, B.

Whitelaw, V.

Kaberry of Adel, L.

Wise, L.

Kilmany, L.

Wynford, L.

Kinnaird, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.54 p.m.
[Amendment No. 109C not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 109B:
[Printed earlier.]
The noble Lord said: Amendment No. 109B is really an improvement by way of wording but with a definite principle behind it. Perhaps the noble Lord the Minister would indicate his views on that and I can then take a certain course.
Lord Elton: I should like to put on the record the options that we have about this amendment. The introduction into Clause 35 of the words "seek to" does appear to be unnecessary and possibly to reflect a misunderstanding of the syntax of the provision which is already teleological in form. The purpose of detaining someone is to obtain evidence, not simply to seek to obtain it, in precisely the same way as the purpose of raising one's arm in class is to catch the teacher's eye, not to seek to do so. The teacher can of course decline to interrupt the lesson but it would be syntactically very odd to say that it is necessary to raise one's arm in order to seek to catch his eye. Indeed the enterprise would be pointless if one knew that failure was certain. The subsection as drafted has the virtue of carrying the clear implication that the legal justification for continuing detention—and this is where I come to a matter of interest—for the purposes of questioning is related to the probability that he will co-operate to the extent of answering.
Far from the right to silence being undermined by these provisions, this leg of the subsection ensures that continued detention for questioning is not justified when there is plainly no intention on the part of the suspected persons of providing the evidence sought. That would indeed be to run the risk of suspects being worn down by repeated questioning which is at the heart of the concern over the right to silence. Our fear is that if the test were merely that detention was necessary to seek to obtain rather than necessary to obtain, we should be approaching the situation which the noble Lords opposite quite rightly fear. I hope that I have judged my reply to an agreeable length for the purposes of the Committee.
The Deputy Chairman (Lord Alport): The situation is slightly irregular. I was not aware that the noble Lord, Lord Mishcon, was actually moving that amendment. As he has done so, perhaps I should put the procedure right by saying:
Amendment proposed, page 29, line 23, after "to" insert "seek to".
Lord Mishcon: I am most grateful. I wonder whether the noble Lord the Minister would accept it from me that the word "obtain" as against the words "seek to obtain" obviously predetermines a result. If he thinks that I am incorrect in my use of language, let me tell him that I am in good company since this, after a lot of consideration, is a recommendation of the Law Society by way of amendment. I think that having told the noble Lord that, he would wish to take it with some seriousness and give consideration to it. If the noble Lord will do that, then I am perfectly happy to withdraw.
Lord Elton: I am happy to undertake to do that.
Lord Mishcon: And I am happy in those circumstances to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: I think that we have probably reached the appropriate moment where we should have the temporary adjournment of this stage. In moving that the House do now resume, I think that it would be helpful to your Lordships to know that we shall not resume this Bill before 7.45 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Animal Health and Welfare Bill [H.L.]
6.58 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[References are to (Bill 119) as first printed for the Commons].
1 After Clause 3, insert the following new clause:
("Removal of restriction on powers as to infected places. 1981 c. 22.
. Section 17(4) of the Animal Health Act 1981 (power to declare defined part of port or aerodrome an infected place restricted to the Ministers) shall cease to have effect.").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 1. I should also like to speak at this stage to Amendments Nos. 13, 14 and 15.

COMMONS AMENDMENTS
13 Schedule 2, page 19, line 45, at end insert—
("1981 c. 22. | Animal Health Act 1981. | Section 17(4).").
14 In the Title, line 3, leave out ("and").
15 Line 4, after ("and") insert ("declarations as to places infected with a disease and").
Lord John-Mackie: My Lords, I am rather at a loss to find where the Commons passed Amendment No. 1. I have looked through both the Committee stage and the Report stage and I cannot see Amendment No. 1. It may be due to my lack of knowledge of procedure, but I cannot find Amendment No. 1 passed by the Commons anywhere.
Lord Belstead: My Lords, I take it that the noble Lord, Lord John-Mackie, means that he does not know whether it was passed in Committee or on Report or what is the appropriate column number.
Lord John-Mackie: Yes.
Lord Belstead: I am very sorry but I do not have that information with me. If the noble Lord would give me a moment or two I think it is possible that a little advice will come to me and I will be able to tell the noble Lord whether Amendment No. 1 was passed in another place in Committee or on Report. Perhaps the noble Lord will bear with me for a moment while I explain why I now move that this House doth agree with the Commons in their Amendment No. 1. I hope that at the end of my remarks I can then answer the noble Lord's question.
This amendment and the related amendments refer to new Clause 4 which provides that subsection (4) of Section 17 of the Animal Health Act 1981 shall cease to have effect. The repeal is effected by a reference in Schedule 2 and in the Title. These changes—which, to answer the noble Lord, I am advised were put into the Bill in another place in Standing Committee B on 12th June at column 15—are designed simply to streamline the means by which certain animal health control measures are taken. The subsection originates in ancient legislation going back as far as 1894 and the procedure imposed by the subsection has been cumbersome and could impede the taking of necessary measures quickly to prevent the spread of disease.
Perhaps I may give a topical example. As the House may very well know, all the outbreaks of Newcastle disease in poultry, which this country has been suffering for some months—except for one outbreak, for which investigations are complete—have been linked to raw materials in certain stores at the port of Liverpool. At the present time, as the law stands notices restricting the movement of such material from those stores require the signature of an authorised person from each of the agricultural departments of the United Kingdom. The repeal which I am now suggesting to your Lordships will simplify and speed up the department's ability to take any necessary action by making it possible for the notice to bear only one signature, normally that of a Ministry veterinary officer. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment—(Lord Belstead.)
Lord John-Mackie: My Lords, I think we would all agree that this is a very necessary amendment because of that unfortunate incident when Newcastle disease was linked to a feeding stuffs place in Liverpool, and we thoroughly agree with the noble Lord in what he says. I am sorry to say that I still cannot find where the Commons passed this amendment at column 15. I have the Hansard here, but I shall take it for granted that it is there somewhere. Perhaps I am going blind in my old age.
On Question, Motion agreed to.

COMMONS AMENDMENTS
2 Clause 5, page 3, line 43, leave out from beginning to ("provision") in line 9 on page 4 and insert ("For section 3 of that Act (regulations for securing humane conditions of slaughter) there is substituted—

"Regulations for securing humane conditions of slaughter

3.—(1) The Ministers may make regulations for the purpose of securing humane conditions and practices in connection with the slaughter of birds to which this Act applies.

(2) The regulations may—

(a) specify conditions to be observed in connection with the confinement and treatment of any such
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birds while awaiting slaughter and in connection with the slaughter of any such birds;

(b) prohibit the slaughter of any such birds or any activity connected with their slaughter—

(i) on premises to which the regulations apply, or

(ii) by methods or in circumstances of any description specified in the regulations,

except under and in accordance with the terms of licence under the regulations;

(c) require occupiers of premises to which the regulations apply to secure that the provisions of the regulations are complied with on the premises;

(d) make different provision for different cases;

(e) provide, in the case of any contravention of any provision of the regulations, for the creation of offences and their punishment on summary conviction with a fine of an amount not exceeding that specified in the regulations.

(3) The regulations may include.".")
3 Page 4, leave out lines 20 to 25 and insert—
("(4) The amount that may be specified under subsection (2)(e) of this section is an amount not exceeding level 3 on the standard scale.
(5) Subsections (2) and (3) of this section are without prejudice to the generality of subsection (1) of this section.
(6) The Ministers shall, before making any regulations under this section, consult with such persons or bodies as seem to them representative of the interests concerned.
(7) The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
Lord Belstead: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 2 and 3. If I may, I shall also speak to Amendments Nos. 10, 11 and 12.

COMMONS AMENDMENTS
10 Schedule 1, page 17, leave out lines 24 to 30.
11 Page 17, leave out lines 45 to 47.
12 Schedule 2, page 19, line 23, leave out ("3(1)").
Amendments Nos. 2 and 3 are designed to replace Section 3 of the Slaughter of Poultry Act 1967 by which Ministers are enabled to make regulations for the purpose of securing humane conditions and practices in connection with the slaughter of poultry and the treatment of poultry awaiting slaughter. The new power may look very different from the existing one—and by that I mean the one which was in the Bill when it left your Lordships' House—but the purpose of the Commons amendment is to clarify doubts over the extent of the powers, particularly as they apply to places where poultry are sold live to the intending consumer, who then slaughters the bird himself before taking it home. Slaughter in these circumstances may not readily he interpreted to fall within the definition of "slaughter for commercial purposes", since it could he argued that the commercial transaction has been completed before slaughter takes place. These amendments therefore give Ministers power to make regulations which apply to slaughter in any circumstances. Therefore, these amendments have tightened up the rules.
I should like to make it quite clear that we do not intend to use this power to apply controls over people killing poultry in their own homes for their own or their families' consumption, and I give an assurance that we shall make this clear in the regulations. Nor do the Government intend to apply controls to slaughter in the circumstances which are excluded under Clause

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4; that is slaughter by veterinary surgeons, slaughter for an experiment under the Cruelty to Animals Act, and for disease control purposes. Again, the regulations will make this clear. Our intention is simply to control the conditions under which slaughter for commercial purposes or slaughter on premises where birds are sold or under the control of the person selling the birds, can take place. The new section leaves untouched the licensing provisions in Clause 5 of the Bill as printed.
There is one other point that I should like to add, which was raised by the noble Lord, Lord John-Mackie, when the Bill went through the House. Subsection (2)(b) and (d) will enable us to make exceptions in appropriate cases from any of the provisions in the regulations. I hope that this will be an assurance to the noble Lord, who sought special provision to be made in respect of slaughter for sale at the farm gate. The Government will give careful consideration to any requests for special treatment when the time comes to make the regulations, though I must emphasise again that our first concern must be for the birds' welfare. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Belstead.)
Lord John-Mackie: My Lords, I thank the noble Lord for explaining this amendment. It is a very necessary one because there is always a great deal of worry over the wholesale slaughter of poultry in the large slaughter houses. I note in the Commons debate on the amendments that that worry was raised. There is no doubt that automatic stunning can miss birds here and there and that inspection is sometimes a little lax. I am sure that tightening up will help to relieve people's minds of that worry and reassure them that the welfare of the birds is looked after. I am glad that this will not affect various items, including the one I mentioned when we discussed this matter at the Report stage, of farm slaughtering for the farmer's wife's own use or of a few birds for sale. With that, we support the amendment.
I have just noticed where I made my mistake or someone has made a mistake. The amendment says, "After Clause 3" but elsewhere it says, "new Clause 2" It is little wonder that I was mixed up in the amendments.
Lord Houghton of Sowerby: My Lords, I believe that the new version is an improvement on the previous one. However, I note that we are now legislating very much in arrears. The Report of the Farm Animal Welfare Council, upon which this Bill is based, was issued in 1982 and I hear that very rapid changes are taking place in the handling of birds in this particular industry, that mass production is being accompanied by mass slaughter and that the mechanisation of some operations in the handling of birds has advanced a considerable stage since the Farm Animal Welfare Council conducted its own investigations several years ago. Therefore, the power to make regulations here is not only comprehensive, but it gives the Minister an opportunity to make sure that what he is doing is up to date.
I believe that that is very important. If one is not pretty speedy in implementing recommendations of
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this kind, one can be left behind. This is a lesson to be learnt in connection with the more recent report on the slaughter conditions of red meat animals. However, on this particular clause I approve of the range of matters which may be the subject of regulations. My final observation is that we are building up a considerable promissory note on regulations and codes of practice. There is much work still to be done. Indeed, it must be done before the Act is really effective. That is the long and short of the matter. I hope that the department are busy preparing the regulations and also the codes of practice, otherwise there will be another gap between the authority given to the Minister and his use of it.
I remark on the Minister's repetition of the phrase, "The interests of the birds must come first". I entirely agree with that, but the interests of the birds have to come first as early as possible, otherwise there is a good deal of suffering likely to go on while fresh regulations and codes of practice are being prepared and introduced.
Lord Belstead: My Lords, I think I ought to reply to the noble Lord, Lord Houghton, who has taken a close interest in this Bill. When the noble Lord talks about legislating in arrears and having to keep up, I think it is right for me to say that perhaps that is not wholly fair. The power to regulate in slaughter houses is in the 1967 Act and was used in 1971 when the regulations on the slaughter of poultry under humane conditions were made. We are now in the process of amending those regulations. Therefore, I think it is fair to say that the Ministry is keeping up with the needs of the time.
On Question, Motion agreed to.

COMMONS AMENDMENTS
4 Clause 7, page 5, line 43, at end insert ("to which regulations under section 3 of this Act apply").
5 Page 6, line 8, leave out ("for commercial purposes").
6 Page 6, line 14, leave out ("for commercial purposes").
7 Page 6, line 18, leave out ("for commercial purposes").
7.12 p.m.
Lord Belstead: My Lords. I beg to move that this House doth agree with the Commons in their Amendments Nos. 4, 5, 6, and 7. These amendments are to ensure that the powers of entry for authorised local authority or Ministry officials in Clause 7 will be available in those premises where slaughter is controlled under regulations made under Section 3 of the 1967 Act. As I explained in introducing the Government's last group of amendments, it was necessary to draft the powers more widely so that we might be sure that all slaughter in commercial premises or for commercial purposes fell within the scope of the Bill. It was particularly necessary to make clear that any slaughter after sale, whether by the seller or his employee, the purchaser or any other person, was covered.
I believe that these amendments ensure that the powers of entry are now available to all premises where this kind of slaughter takes place—and rightly so. However I assure your Lordships that when we come to make regulations under Section 3 we intend to exclude from their scope slaughter by individuals at home for consumption by themselves and their

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families. Power of entry will not therefore be available in those circumstances.
Moved, That this House doth agree with the Commons in the said amendments—(Lord Belstead).
On Question, Motion agreed to.

COMMONS AMENDMENT
8 After Clause 7, insert the following new clause:
("Enforcement of 1967 Act.
. For section 6 of that Act (power to proceedings) there is substituted—

"Execution and enforcement.

6.—(1) Every local authority shall execute and enforce in their area the provisions of this Act and of regulations under section 3 of this Act.

(2) In particular, every local authority shall, for the purpose of securing the execution of those provisions, make arrangements for the supervision by persons having such qualifications as may be specified in the regulations of any premises in their area to which the regulations apply.
(3) Arrangements under subsection (2) of this section shall comply with such directions as the Ministers may give from time to time.
(4) This section does not authorise a local authority in Scotland to institute proceedings for any offence.".").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 8. This new clause fulfils an earlier undertaking which I gave on behalf of the Government that we would introduce an amendment to this Bill in response to the Farm Animal Welfare Council's recommendation that the local authority official veterinary surgeon should be made responsible for welfare in slaughterhouses.
The way in which this new clause works falls into two main parts. First, it replaces the power in Section 6 of the Slaughter of Poultry Act 1967 for local authorities to institute legal proceedings for contraventions of the Act itself or of regulations made under it with a duty on local authorities to execute and enforce the legislation. Secondly, Amendment No. 8 requires local authorities to arrange for the supervision of slaughter premises by officers holding qualifications approved by Ministers and to comply with directions given to them by Ministers concerning the arrangements for supervision.
We intend to use these powers to require local authorities to make the official veterinary surgeon responsible for welfare in all licensed slaughterhouses. However there are a great many small unlicensed slaughterhouses where the law does not require official veterinary surgeon supervision: local authorities are generally responsible for public health and hygiene in these places and we intend therefore to enable them to use the appropriately qualified staff—for instance, environmental health officers and poultry meat inspectors—to supervise both health and welfare in those slaughterhouses. Indeed, these officers may be asked to cover welfare in licensed premises also, in addition to the official veterinary surgeon. We will be consulting carefully to ensure that the officers we approve are appropriately qualified to supervise
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welfare, and that local authorities are not faced with unreasonable new commitments.
It will not have escaped your Lordships' attention that we are taking powers to give directions to local authorities on their arrangement for supervision. I have already said that we shall be directing them to give responsibility to the official veterinary surgeon in licensed slaughterhouses; we will also he able to give directions as to the checks to be undertaken by the responsible officials and as to periodic veterinary inspection of premises not supervised by an official veterinary surgeon. Here again we shall need to ensure that the directions we give to local authorities will provide welfare benefits without making unreasonable demands on local authorities.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Belstead).
Lord John-Mackie: My Lords, I am sure that everyone in the House would agree with the noble Lord and thank him and the Government for giving us this amendment and tightening up and making sure that there are sufficient inspectors. Of course the veterinary inspector is the important one, as there is no doubt that inspecting is the key to animal welfare. I am sure that the interest of my noble friend Lord Houghton here should be satisfied, as should the welfare bodies which have pressed for this for a long time.
Lord Houghton of Sowerby: My Lords, speaking for myself I am grateful that the Government have carried out the promise that they made when the Bill was going through your Lordships' House that before the Bill became law they would introduce a plan to implement Recommendation 37 of the Farm Animal Welfare Council. This naturally pleases the British Veterinary Association, who have sent a note to some of us to express pleasure at seeing the several recommendations made in the Commons, particularly the undertaking given by the Minster that local authorities will be asked to utilise suitably qualified services to have a look at the smaller places that are not suitable for licensing but where slaughter may take place: sometimes the terrible things are done in the smaller rather than the larger establishments.
Of course, this is enforcement, and is not this really the basic problem that we have in this whole field of the application of regulations and codes of practice for the benefit of living things, birds and animals, which go through commercial and other handling for the purpose of serving mankind? This amendment imposes upon local authorities a firmer duty than they probably felt they had before to make full use of these qualified services and have regular inspections and a presence while material operations are in progress.
It is a pity that local authorities are so grumpy just now with the Government and with all forms of statutory obligation. They are probably not in the best of moods to accept new and firmer obligations to undertake tasks of this kind. I know that the expenditure does not fall wholly on the local authority. Nevertheless, there are duties to be done and administrative work in connection with their own side of the matter.

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I am afraid that this question of enforcement will come up again, probably in an even more imperative form, when we consider the latest report of the Farm Animal Welfare Council on the conditions in slaughterhouses of red meat animals. The council is making 100 recommendations, in contrast to only 37 here for poultry. First and foremost is enforcement. A good deal of the enforcement is not based upon new requirements, but on what should be being done now. It is from the failure to carry out this enforcement responsibility fully and satisfactorily that a good many of the unsatisfactory features in slaughterhouses arise. I am sure that the Government are fully conscious of this.
I turn to another side of the matter. Enforcement depends first on local authorities using powers that are given to them. The powers that are given to them under this Bill and under regulations drawn up by the Government will be subject to the annulment procedure if we do not like them. But another part of the responsibility rests upon the veterinary officers themselves.
I read with great interest in the current issue of the The Veterinary Record an article written by a man I know well, an Englishman in the United States, Dr. Michael Fox. I quote the heading of his article:
"Towards a philosophy of veterinary medicine".
This is the part of the matter which the veterinary surgeons themselves have to develop. He said:
"Until very recently, virtually no emphasis has been placed in the veterinary curricula on the moral and social dimensions of veterinary medicine…The practice of veterinary medicine is taught as though it were value-neutral".
This was a comment made by another writer in 1981; but we are entitled to expect now from the veterinary profession a full appreciation of the task that vets are given to do.
It is not enough, in my submission, for a veterinary surgeon just to observe objectively and to have an attitude towards his job which is devoid of the moral and emotional aspect of what he is engaged in. The public are relying, in this unpleasant field of activity and in the treatment of animals, on somebody to be the custodian to some extent of the public conscience. People want to feel satisfied, without having to go into these establishments to see for themselves—they would not be very satisfied if they did—that some responsible, qualified person is taking care, as far as is ever possible, of the welfare of the animals that are undergoing this unpleasant experience.
It is no good just having expertise; it requires more than that. It requires an understanding which medical doctors used not to have in the way that they have today. There was a time when medical practice related to human beings was value-neutral. It was almost like that when people were not getting much help from the medical profession about conditions in which ill-health and disease occurred; and the wider sense of responsibility of the medical profession is something which should be extended to the veterinary profession. That is already afoot.
I am just uttering a few encouraging words to the profession and for the awareness of your Lordships' House on this aspect of the matter. Just to provide a
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vet is not enough: that vet must have an awareness of the animal world in which he is operating and have an attitude towards animal welfare which reflects, in the fullest measure possible in the circumstances, the growing attitude of the public about the treatment of animals. This sense of public conscience about the treatment of animals is growing deeper and wider all the time, and this should be reflected in the attitude of those with the qualifications and responsibilities which are provided under this clause.
Lord Belstead: My Lords, I have followed the noble Lord, Lord Houghton, most closely and in my picking up a point or two from what the noble Lord said it is right for us to bear in mind that veterinary surgeons are obliged by the terms of their membership of the Royal College to promote and protect the welfare of the animals and birds in their care.
The noble Lord said—and I quite understand why—that just to have a skilled vet is not enough. It is right for us to bear in mind in the final stages of this Bill that the Farm Animal Welfare Council laid great stress in its poultry slaughter report on the need to ensure that people who slaughter poultry are properly trained, are competent and are fit for the job. It considered that licensing is an important aspect of providing that assurance. That, again, is another plank in the platform of trying to meet the points which the noble Lord is putting to the Government on this Bill.
Finally, I turn to the words the noble Lord spoke about local authorities. Although local authorities are responsible for enforcement, do not let us forget again that the Ministry veterinary surgeons also make regular visits to all slaughterhouses, both poultry and red meat, and advise both staff and local authority officers on welfare matters. I understand the point which the noble Lord is putting to me about avoiding placing substantial new burdens on local authorities at a time of financial stringency.
We believe that we can provide effective welfare control without making unreasonable demands on local authorities. I give an assurance that before issuing directions we will be consulting the local authority associations.
On Question, Motion agreed to.

COMMONS AMENDMENT
9 Clause 8, page 7, line 5, after ("issue") insert ("modification, suspension").
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 9. This amendment will permit licences and approvals in connection with artificial breeding to be altered without the necessity of first revoking them and then issuing amended ones. It will also be more appropriate and convenient upon occasions to suspend, rather than revoke, such licences and approvals. This really is a technical amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
10 to 15 [Printed earlier.]
Lord Belstead: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 10 to 15, if your Lordships will allow me, because all these amendments are consequential on the amendments to which I have already spoken.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Belstead.)
On Question, Motion agreed to.
Lord Skelmersdale: My Lords, I beg to move that the House do now adjourn during pleasure until 7.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.31 until 7.45 p.m.]

Police and Criminal Evidence Bill
House again in Committee on Clause 35.
Lord Hooson Lord Hooson moved Amendment No. 110.
[Printed earlier: col. 610.]
The noble Lord said: I beg to move this amendment, which has already been spoken to by my noble friend Lord Hutchinson of Lullington before the adjournment. At the end of his remarkable Second Reading speech, the noble and learned Lord, Lord Scarman, advised us to look to the safeguards in this Bill, and implied that many of the powers were necessary. With that approach I entirely agree.
The noble and learned Lord, Lord Denning, in his speech before the adjournment when we were discussing the previous amendment, spoke of this power which is given in this part of the Bill to detain for questioning when there is insufficient evidence to bring a charge, as a new power. He referred to the views of Lord Justice Lawton in a very well-known case, who suggested that this power might be necessary. This Committee has now agreed that those powers are necessary; but I think it is very important that we should look to the safeguards.
The noble Lord, Lord Elton, earlier referred to two matters which I think should excite our attention. That is, in the history of the role of the police in criminal proceedings, the noble Lord adverted to the fact that it was only in comparatively recent times that the police themselves had done the investigating and the interrogating. Previously, they were not concerned with that role. The noble Lord particularly pointed to the amendment to the Judges' Rules in 1964 as a landmark along that route. I would submit to this Committee that the police now dangerously rely on—to quote again the noble Lord, Lord Elton—the commencement of the inquiry rather than the conclusion.
I think it is a dangerous practice for the police to rely so much on admissions and confessions. The noble Lord, Lord Hutchinson of Lullington, was absolutely right to point out that a great deal of the time of the criminal courts these days is taken up with the
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question of how reliable are what are called "the verbals", that is, the admissions made when accused people are being interrogated.
It appears to me that if the noble and learned Lord, Lord Denning, comes down, after a great deal of thought obviously, on the side of the new power being given to the police—this extraordinary power to be able to keep a person in custody when there is not enough evidence to charge him or her with an offence—and he came down, narrowly as it seemed to me from his speech, in favour of this power, then we have to do what the noble and learned Lord, Lord Scarman, advised us to do: not so much to question the power as to look to the safeguards. Surely, one of the most important safeguards is the right to have a solicitor present.
It seems to me that when one is concerned with the sophisticated criminal, or the habitual criminal, one does not have to tell him what his rights are, because he knows. Those of us who are emphasising the civil rights aspects of this Bill, while not contesting that the police need very wide and considerable powers, are concerned with the protection of the innocent and, surely, it is the right of any person to have a solicitor present. What is the objection? We all acknowledge that he has the right; but, apparently the presence of a solicitor is to be observed in the breach rather than in the observance.
Why are we afraid of the solicitor being present? There could be a limit on what the solicitor could do. In fact, various matters are dealt with in Clause 56 and there are two important amendments—No. 146 in the names of my noble friends and myself, and No. 146A in the names of the noble and learned Lord, Lord Elwyn-Jones, and his friends—which try to deal with the restrictions that there might be on a solicitor who was called in in these circumstances.
What we are concerned with is that a solicitor should be present; not that he would be allowed to interfere with the interrogation. He could certainly give preliminary advice as to what were the accused rights. Although I have talked about the accused, the person has not been accused; it is the person being interrogated—the suspect. The solicitor could certainly tell him what were his rights, which we all acknowledge he has the right to know, though we differ as to the means by which that knowledge should be imparted.
We agree largely that, because of the development of modern crime—and we can think of the crime where there are a number of participants and a number of suspects; some of whom might be innocent, some of whom might he guilty—the power of interrogation in these circumstances is needed. All I am saying is that it is very important that the safeguards should be there. This Amendment No. 110 and Amendments Nos. 116 and 119 simply add the same safeguard at different stages of the interrogation. After all, we are concerned with the right to detain a person in order to try to obtain evidence from him by means of an interrogation, when there is not at that time sufficient evidence to charge him at all. We are concerned in the first amendment with the situation up to 24 hours; in the second amendment up to 36 hours; and in the third amendment up to, possibly, 96 hours. Who is to

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say that, in these circumstances, a suspected person should not have the right to be interrogated in the presence of a solicitor? I beg to move.
Lord Plant: Can the noble Lord, Lord Hooson, inform the Committee what he means by "in the presence of a solicitor"? He does not say "in the presence of his solicitor". Does he have in mind that it will be a resident police station solicitor?
Lord Hooson: No. I would say that normally it should be in the presence of his solicitor; but if his solicitor is not available, it should be a solicitor.
Lord Denning: I wondered about that myself. "In the presence of a solicitor" does not mean that it is his solicitor. Will it be a police solicitor, just as there is a police doctor, and is there always to be a solicitor on hand in every police station when a man is brought in? The solicitors' profession could not staff it. I am wondering whether this is a practical proposition.
Lord Elwyn-Jones: It would clearly be a solicitor under the instructions of the accused in detention. I should have thought that that was pretty self-evident from the context. As the noble Lord, Lord Hooson, said, we are dealing here with a situation where a suspect who has not been charged is in a police station in the custody of the police. He may have been there for 24 hours, 36 hours or, in certain cases, 96 hours.
What a contrast there is here in the proposals of the Bill with what is said about maintaining the right of silence in court. There in court the accused is in the presence of his solicitor or his counsel, with the press listening avidly and watchfully. What protection he has there! But what greater protection does he not need alone in a police station, for hours or nights in the police cell with question after question? I am bound to say that, at any rate, there is frankness in the language, because he is being held, as the Bill provides, for questioning. There is no gainsaying that that is the purpose of the exercise.
The curious contradiction we have here, with the reluctance of the Minister to concede the imperative importance of the suspect being able to see a solicitor and to have the benefit of his advice, one sees in the Notes for Guidance at page 32 in the draft codes:
"Access to a solicitor may not be delayed or denied on the grounds that he may advise the person not to answer any questions or that the solicitor was initially asked to attend the police station by someone other than the detained person, provided that the detained person then wishes to see the solicitor.".
There is affirmatively stated the right of the suspect to have access to a solicitor. That access may not be delayed or denied on the grounds that then follow.
This is an absolutely fundamental part of that balance which we must seek to strike in this Bill, between the right of the police to investigate crime and the right of the citizen to enjoy his liberty. Whether that is called a right to silence or a right against self-incrimination is a matter of words. There is little difference between the two. But the right to silence is something for which we have fought, so far as the courts are concerned from the days of the Star Chamber on. This is of crucial importance and what is
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sought in this amendment is some sort of equality between the two situations.
But before he is charged and is merely under suspicion, where the accused is being held for questioning in the hope that evidence will be discovered through the process of that questioning, is a critical scene in the seriousness of the approach of the Government to the rights of the subject. This we regard as an absolutely critical issue, and to place that as a mere element in the Notes for Guidance, when it ought to stand out loud and clear in the Bill, is a derogation of the duty of the Government to protect the rights of the subject.
Lord Monson: I listened with great interest to what my noble and learned friend Lord Denning said about the right to silence and the fact that this right is evidently not a wholly unqualified one. Of course, one must accept his argument on this matter. But although his argument may well invalidate Amendment No. 109A—and, clearly, the Committee decided narrowly that it did so invalidate it—surely it does not in any way invalidate the series of amendments that we are considering at this moment, which I wholeheartedly support.
Lord Donaldson of Kingsbridge: If I were arrested and detained in a police station and I thought that the conditions were liable to confusion, I should say, "I shall not answer any questions without my solicitor being present". We are trying to make this right available, which it is supposed to be, to everybody. How can there be any objection to it?
Lord Elton: I congratulate the noble Lord, Lord Donaldson of Kingsbridge, on the briefest complete speech we have had during this Committee stage. I cannot, I am afraid, equal his record. May I begin by accepting what the noble and learned Lord, Lord Elwyn-Jones, has suggested we should do: take the amendment to mean what we take the context to make it mean rather than what it does mean, because one of the odder things that it means, as drafted, is that whether or not you want a solicitor to be present you have to wait until the solicitor is present before you can answer an questions. I shall not address myself to the unintended results; I shall assume that what is intended is that an arrested person may be detained for the purposes of obtaining evidence by questioning him only if the questioning takes place in the presence of a solicitor, if he wants it.
Moving on from there, and accepting that we must also take it from the context that the solicitor must be the solicitor whom the arrested person has requested, or whom the arrested person has heard has arrived in the police station and says he wants to consult, we turn to a more basic and important issue which is at stake here: that is, whether it should be possible to question, in conditions of detention, a person who does want legal advice but who has not got it.
Let me first describe the position which the Bill will give us without the amendment. The Bill and the associated codes of practice will very substantially strengthen the right of access to legal advice and make it effective in practice as well as on paper. First, Clause 54 establishes for the very first time a statutory right of

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access to legal advice which may only be suspended in certain very restricted circumstances. The Bill also makes provision for the establishment of duty solicitor schemes under the Legal Aid Act, so that detained persons who want legal advice, at whatever time of the day or night, will be able to obtain it. Section 6 of the draft detention code of practice also requires each detained person to be informed at the outset, both orally and in writing, of his right to legal advice. It also requires the police to ask him, if he does not want to take up his right, to waive it in writing. The code goes on to make it clear that a person may have his solicitor present at an interview, and that only actual misconduct on the solicitor's part will allow the police to require him to leave. These are formidable new safeguards.
The amendment seeks to go further, however. It would prevent the police from detaining a person for the purposes of questioning him and at the same time interfering with his right of access to the solicitor. The trouble is that on occasions—on rare occasions—it may he both right and necessary for the police to do both these things. Suppose, for example, that a person is arrested on suspicion of involvement in a kidnapping and that there are real grounds for fearing that access to a solicitor or anyone else would result in the murder of the victim. The need to question the person is evident and urgent. There can be no doubt about that. Nor can there be any doubt about the need to keep him temporarily incommunicado.
In principle, of course, there is a strong case for an unqualified right of access to legal advice. Such a right exists in many other Western countries. Many bodies which gave evidence to the Royal Commission argued for such an unqualified right and their arguments, like those of the noble Lord, carry great weight. But the Royal Commission did not feel able to accept these arguments, any more than we do, in the light of the practical consequences for the investigation of serious crime. Clause 54 basically gives effect to the commission's recommendations; namely, that while there should be a statutory right of access to legal advice, the present discretion to delay access to it should be retained, even though more strictly regulated, and also placed on a statutory basis.
I should like to ensure at once that there is no misunderstanding on one important point. The only reason for delaying access to a legal adviser concerns the risk that he would, either intentionally or, as in the example I have already given, and much more frequently, inadvertently convey information to confederates still at large which would undercut the investigation in progress and possibly imperil life. It is these considerations alone which lie behind subsections (5) to (9) of Clause 54. What a suspect's legal adviser says to him can never be a ground for delaying a consultation between them. Delay can be authorised only on the basis of what the legal adviser might then do, once the consultation has been completed. Annex B to the draft detention code—the noble Lord quoted it—makes it quite clear that access to a solicitor may not be delayed on the grounds that he may advise the person not to answer any questions, so the provision in Clause 56 enabling the police to delay such a consultation is not designed in order to restrict the giving of legal advice; it is simply a special
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case of the provision in Clause 54 enabling the police to hold a suspect temporarily incommunicado.
The arguments are all set out very clearly in paragraphs 4.86 to 4.93 of the commission's report and there is not a great deal which I can add to them. The question of whether the right of access to legal advice should be absolute or not is, as the commission said, a finely balanced one, but I believe that the balance tips quite clearly in favour of the Bill as drafted. I would not place too much emphasis on the existence of a small number of dishonest solicitors. There may or may not be dishonest solicitors. I would be surprised if there were not, but I would not wish to repose much on it. It is certainly true that if the police suspect a solicitor of obstructing the course of justice they should acquire the evidence on which to act, whether by way of a prosecution or complaint to the Law Society.
But even if every single solicitor were of unquestionable honesty, there would still he a need for a provision under which access to legal advice could be delayed. The reason is that damage can be done by accident and unwittingly, as well as by design. If a suspect asks a solicitor to pass on an innocent sounding message to his wife or to a friend, the solicitor may thereby cause stolen property to be concealed, accomplices to evade capture or witnesses to be incapacitated. The passing of such a message need involve no misconduct on the part of the solicitor: it may not even involve carelessness. Just a simple message. "Tell the wife I paid the gas bill" can be a tip-off which completely undermines the investigation of a crime.
I hope I have made it clear that the reason for which this provision is in the Bill as drafted is a serious reason. I Would conclude only by saying that the establishment of duty solicitor schemes will reduce still further the already very small proportion of cases in which access to legal advice is denied or delayed. Whatever may have been the practice some years ago, it is now an uncommon event. In a survey conducted in all stations in the metropolitan police district for the three-month period August to October 1982, it was found that in the case of 1,031 persons detained without charge for between 24 and 48 hours—that is, for more than 24 and less than 48 hours—requests for access to legal advice were refused on only six occasions. Nearly half of the 29 persons detained for 48 hours or more asked for legal advice, and this was refused on only one occasion. The fact of the matter is that those who want legal advice are prevented from receiving it only exceptionally at present, and Clause 54 regulates this discretion even more tightly.
Lord Elwyn-Jones: Before the noble Lord leaves this matter, does he agree with the notes for guidance which I read out:
"Access to a solicitor may not be delayed or denied on the grounds that he may advise the person not to answer any questions or that the solicitor was initially asked to attend the police station by someone other than the detained person, provided that the detained person then wishes to see the solicitor".
That is not qualified in any respect in paragraph B2A. Does the noble Lord agree with it?
Lord Elton: I think so. There is access to a solicitor. I shall not read it out again. The noble and learned Lord read it right.
8.10 p.m.
On Question, Whether the said amendment (No. 110) shall be agreed to?
Their Lordships divided: Contents, 62; Not-Contents, 73.

DIVISION NO. 3

CONTENTS

Airedale, L.

McNair, L.

Ampthill, L.

Mayhew, L.

Attlee, E.

Milner of Leeds, L.

Beaumont of Whitley, L.

Monson, L.

Bernstein, L.

Morris, L.

Birk, B.

Mountevans, L.

Chitnis, L.

Nicol, B.

Collison, L.

Northfield, L.

Craigavon, V.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L.

Donaldson of Kingsbridge, L.

Prys-Davies, L.

Elwyn-Jones, L.

Rea, L.

Elystan-Morgan, L.

Rhodes, L.

Ewart-Biggs, B.

Serota, B.

Foot, L.

Shackleton, L.

Glenamara, L.

Simon, V.

Graham of Edmonton, L. [Teller.]

Stedman, B.

Stewart of Alvechurch, B.

Grey, E.

Stewart of Fulham, L.

Hampton, L.

Stoddart of Swindon, L.

Hanworth, V.

Stone, L.

Hatch of Lusby, L.

Taylor of Gryfe, L.

Hooson, L.

Taylor of Mansfield, L.

Houghton of Sowerby, L.

Tordoff, L. [Teller.]

Howie of Troon, L.

Underhill, L.

Hutchinson of Lullington, L.

Walston, L.

Jeger, B.

Whaddon, L.

John-Mackie, L.

Winchilsea and Nottingham, E.

Kilmarnock, L.

McGregor of Durris, L.

Winstanley, L.

McIntosh of Haringey, L.

Winterbottom, L.

NOT-CONTENTS

Abercorn, D.

Harmar-Nicholls, L.

Airey of Abingdon, B.

Hylton-Foster, B.

Allen of Abbeydale, L.

Inglewood, L.

Auckland, L.

Kaberry of Adel, L.

Avon, E.

Killearn, L.

Bauer, L.

Kilmany, L.

Belhaven and Stenton, L.

Kinloss, Ly.

Bellwin, L.

Kinnaird, L.

Beloff, L.

Lane-Fox, B.

Belstead, L.

Lawrence, L.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lucas of Chilworth, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Caithness, E.

Mar, C.

Carnock, L.

Margadale, L.

Cork and Orrery, E.

Masham of Ilton, B.

Cox, B.

Mersey, V.

Craigmyle, L.

Molson, L.

De La Warr, E.

Munster, E.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Denning, L.

Norfolk, D.

Donegall, M.

Plant, L.

Drumalbyn, L.

Reay, L.

Eccles, V.

Renton, L.

Elliot of Harwood, B.

Saltoun, Ly.

Elton, L.

Skelmersdale, L.

Faithfull, B.

Stanley of Alderley, L.

Ferrier, L.

Swinton, E. [Teller.]

Gardner of Parkes, B.

Tranmire, L.

Glanusk, L.

Trenchard, V.

Glenarthur, L.

Trumpington, B.

Gray of Contin, L.

Vaux of Harrowden, L.

Greenway, L.

Vickers, B.

Gridley, L.

Westbury, L.

Hailsham of Saint Marylebone, L.

Wise, L.

Wynford, L.

Halsbury, E.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.18 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 110ZA:
Page 29, line 30, after ("record") insert ("on the prescribed form").
The noble Lord said: I shall be grateful if, with this amendment, I may speak also to Amendments Nos. 110ZB and 110ZD.
Amendment No. 110ZB: Page 29, line 31, at end insert—
("(4A) In this section "prescribed" means prescribed by regulations made by the Secretary of State by statutory instrument. Such regulations shall provide that the record shall contain information about reviews of police detention under section 38, limit on period of detention without charge under sections 39, 40 and 41, right to have someone informed under section 54 and access to legal advice under section 56 and a statutory instrument containing any such regulation shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
Amendment No. 110ZD: Page 29, line 35, at end insert ("and other matters set out on the prescribed form.").
The Government say, with pride, and, I readily admit, with some justification, that in Clauses 35 and 36 of the Bill they have created certain conditions which safeguard, or go part of the way to safeguard, the position of a detained and suspected person. However, for the suspected person in custody there is a limited value to safeguards, unless those safeguards are spelt out to him.
I appreciate that this is ground which, in part, has already been heavily harrowed in previous debates on this matter, and the Committee has been reminded by many noble Lords of the miserable loneliness of the suspect in a police station when being interrogated. It is something that has been commented upon by the Royal Commission. It was commented upon by Sir Henry Fisher in his historic report. Mr. Michael Zander has written about it on many occasions and it must indeed be a situation well known to everybody who in some way or another is associated with the administration of criminal justice.
The purpose of these amendments is to see to it that certain rights are spelt out specifically to people in custody. It may well be that those people are totally innocent of any criminal offence at all. It may well be that they are people who have never been in a police station before: most, certainly, will never have been in custody on any previous occasion. In many cases they will have no idea whatsoever of the intricate structures incorporated in this Bill by your Lordships and the other House. Short of clairvoyance or telepathy there is no way in which they could be aware of their rights. In many other cases they will be vaguely aware of what rights they have but so petrified will they be by fear and apprehension that that may well be the last thing that they will be thinking about at that particular time. A man who has been in custody for five hours may be much more concerned with whether somebody has let his wife know where he is and when he is likely to be coming home than thinking about particular subsections of this Act.
Therefore, the rationale behind these amendments is that if a citizen has rights, and these are fundamental rights of human liberty, then he should have the right

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to be specifically informed of them. The scheme set out in the amendments is that grounds for detention should be written out by the custody officer on a prescribed form and that that prescribed form should also contain information as to reviews of detention, limits on periods of detention, the right to have someone informed, and to have access to legal advice. At the same time as informing the individual of the grounds of detention the custody officer should also inform him of his rights under the Bill and hand him a copy of the form setting out the grounds of detention and his rights.
I wonder if the House would allow me to make this additional point. We do not on all occasions universally applaud the procedures in the United States of America but in this particular matter, where an individual is brought to a local police station, the first question of the officer in charge of the station to the arresting officer is, "Have you read him his rights?" If this has not been done then the individual is read his rights as to legal advice and all the other matters.
We are all too well aware of situations where innocent but tired, frightened, disorientated persons from time to time have confessed to grave crimes which they have never committed. Sometimes these matters can be put right by the Court of Appeal (Criminal Division). Sometimes, as in the Confait case that we know of so well, the matter can be corrected by the unusual course of setting up a high-powered inquiry. Sometimes the Home Office itself—and I speak with some experience as a former Under-Secretary of State dealing with these matters many years ago—is able to correct the situation by setting up its own inquiries. But in many, many cases the miscarriage of justice will never be expunged. We owe it to the standards of British justice to seek, on this occasion when the whole matter is so brought under the microscope, to create a system that expunges the possibility of error as far as we are able to bring about such a result. We on these Benches genuinely believe that this amendment will go a long way towards bringing about that just and happy result. I beg to move.
Lord Elton: The noble Lord's amendment strikes out Clause 35(4)(i). The purpose of Clause 35(4) is to require the custody officer to make a note on the custody record when a person who has not been charged is by him authorised to be kept in detention. I said at the outset that I think the noble Lord is seeking to achieve what he wants to achieve from the wrong direction because what he wants to achieve for the person detained, is a written notice of his rights; and what he is seeking to do is to convert the custody record into such a written record for the prisoner to have to hand all the time. The noble Lord will forgive me if I address myself not to the substance but to the intention of this amendment.
The intention of this amendment is that a prisoner shall be told of his fundamental rights when he is in detention in a police station at the earliest opportunity. I have to refer him once more to the code of conduct. At page 5, paragraph 3.2, he will see:
"The custody officer must inform him of the following rights and that they need not be exercised immediately:
(i) the right to have someone informed of his detention in accordance with section 5 below; (ii) the right to legal advice in
646
accordance with section 6 below; (iii) the right to consult this and the other codes of practice.
3.3 The custody officer must also give the detained person a written notice setting out the above three rights, the right to a copy of the custody record in accordance with paragraph 2.4 above and the caution in the terms prescribed in paragraph 11.2 below. The custody officer shall ask him to sign the custody record to acknowledge receipt of this notice.
He will therefore actually have a written statement and it will moreover be endorsed on the custody record because the detainee will be asked to sign the custody record as an acknowledgement of receipt of the statement of his rights. I hope that that is what the noble Lord wanted to achieve.
Lord Elystan-Morgan: The noble Lord, Lord Elton, says that he will have a record of his rights. With the greatest respect to the noble Lord and indeed to those police officers who will be carrying out these duties, I think it would be more accurate if the House were to say to itself that he may have such a record.
The point has been made in the Royal Commission's report and by many learned legal authors with regard to the Judges' Rules. It is put in this way: that a police officer who does not learn the Judges' Rules syllable by syllable is a fool; but the police officer who carries out the Judges' Rules day by day, syllable by syllable, is an even greater fool. That is a well-known saying among police officers. The reason for that is that they know that, when massive breaches of the Judges' Rules are proven in court—it is surprising how candid police officers under cross-examination very often are: they know exactly what the rules are and they readily admit that there was a breach—the learned judge will very often say to the jury, "What you have to decide is whether in fact he told the truth". The jury will dismiss from its collective mind the whole question of the Judges' Rules. Indeed, before that stage, when, in the absence of the jury, a trial within a trial has been held in order to determine the admissibility of a confession statement, the judge will turn to counsel and say, "What do you say about the breach of the Judges' Rules? Do they really go to the question of voluntariness?" Many judges will regard the Judges' Rules as being an interesting manifestation of a perfect system of police interrogation, but little more than that.
May I, against that background, take issue with the noble Lord the Minister. He has already quoted from Clause 64(7), which sets out the status of the codes of practice. The relevant words here, in my submission, are:
"in all criminal and civil proceedings any such code shall be admissible in evidence, and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question".
I repeat the words:
"if any provision of such a code appears to the court … to be relevant".
It may well appear to many courts that these provisions will not be all that relevant; they will not be given a higher status than the Judges' Rules.
It is for that reason—and I am sorry to repeat myself in relation to what I said on an earlier amendment—that we say that these rights are so

647
important, and these safeguards so necessary, that they must be written into the Bill itself.
On Question, amendment negatived.
[Amendments Nos. 110ZB, 110ZC, 110ZD not moved.]
8.33 p.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 110ZE:
Page 29, line 40, at end insert—
("() In the case of an arrested juvenile, he shall be informed by the custody officer of the grounds for his detention and the written record shall be made in his presence and the presence of any person who is required to be informed of his detention under section 55 of this Act or, in their absence, an adult person who is not a police officer.").
The noble Baroness said: What I should really like to do is to move Amendment No. 110ZE and, for the convenience of the Committee and also for the benefit of moving on, speak to nine further related amendments of which I gave notice to the Government Whips' Office and which all refer to exactly the same principle.
Baroness Trumpington: May I ask the noble and learned Lord, Lord Elwyn-Jones, whether this is the bunch of amendments to which he referred just now? I ask because, if so, that was the first that we had heard of them on the Front Bench of this side of the Committee. I am afraid there was not time for my noble friend to put them together, so I am afraid I had to turn down the request.
Lord Elwyn-Jones: I follow that, but after the intimate conversation we had together I learned from my noble friend that, in fact, the Government Whips' Office was informed some days ago of this intention. In the interests of the speed of completion of matters it would be convenient for these amendments to be taken together. However, I see expressions of dismay, if not disappointment, in the direction to which I am not, apparently, allowed to look according to the rules of your Lordships' House. But if they could be dealt with together it would be a great saving of time—and, if I may say so, time is beginning to be of the essence.
Lord Elton: Perhaps I can help. Not being a usual channel I may get it wrong, but in practical terms it might be helpful. If the noble Baroness adduces the general principles now, when she comes to the particular amendments she can speak to them briefly. I propose to answer only to the two Amendments Nos. 110ZE and 111ZC which were agreed. I think the noble Baroness will find that I have different answers to her different amendments, so she will be well advised to keep them apart.
Baroness Trumpington: Perhaps I should apologise for not having the necessary information.
Lord Elwyn-Jones: I did not, either, but all is well. Let us continue.
Baroness Ewart-Biggs: I did my best to hurry things on. I shall speak to the principle which embraces all these amendments. The amendments concerned are
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Amendments Nos. 110E, 111ZC, 114ZA, 114ZB and Amendments Nos. 116A to 116E.
Amendment No. 110E: Page 30, line 22, after ("him") insert ("and any person who is required to be informed of his detention under section 55 of this Act").
Amendment No. 111ZC: Clause 36, page 31, line 39, at end insert—
("() in the case of an arrested juvenile, he shall be informed by the custody officer of the grounds for his detention and the written record shall be made in his presence and in the presence of any person who is required to be informed of his detention under section 55 of this Act or, in their absence, an adult person who is not a police officer.")
Amendment No. 114Z4: Clause 38, page 35, line 9, at end insert—
("and
(c) in the case of an arrested juvenile, any person who is required to be informed of his detention under section 55 of this Act and who is available at the time of the review or who can be made available within reasonable time.")
Amendment No. 114ZB: Page 35, line 13, after ("solicitor") insert ("and any other person referred to in subsection (11(c) above").
Amendment No. 116A: Clause 40, page 27, line 25, insert after ("person") ("and in the case of an arrested juvenile, any person who is required to be informed of his detention under section 55 of this Act of the same matter, and").
Amendment No. 116B: Page 37, line 34, at end insert ("or
() in the case of an arrested juvenile, any person who is required to be informed of his detention under section 55 of this Act.")
Amendment No. 116C: Page 37, line 38, insert after ("solicitor") ("and any other person referred to in subsection (5)(a) above.")
Amendment No. 116D: Page 37, line 42, after ("detention") insert ("and in the case of an arrested juvenile, any person who is referred to in subsection (5)(a) above.")
Amendment No. 116E: Page 38, line 7, after ("him") insert ("and in the case of an arrested juvenile any person who is referred to in subsection (5)(a) above").
After I have spoken to the principle, the Minister can then respond in part. The principle is of fundamental importance, and especially important for the cohesion of the family as well as the well being of juveniles. The purpose of the amendments is to ensure that the police are under a duty to keep parents, guardians, and so on—in fact, any of those people mentioned in Clause 55—informed of a juvenile's detention and the reasons for the detention, and, in certain circumstances, allow them to make representations about the continued detention.
Not only does this accord with the general movement towards greater parental responsibility for their children, but it also provides greater safeguards about lengthy, unnecessary detention of juveniles—time during which juveniles can begin to feel extremely alienated from the police, if they have done nothing wrong, and which brings a risk of objectionable behaviour from them, together with a general feeling of fear.
I know that the Minister will say that the essence of all these amendments has now been included in the revised code of practice, and, of course, we are very pleased that this should be so. Nevertheless, we feel very strongly that the only way to recognise the special status of children and young people is to take this important duty of the police out of the code and to put it into the Bill itself. There has already been discussion about this on another issue, but I would argue very strongly that this is a matter of principle which should be within the statute and not in the code of practice.
There is no doubt that the Government have shown their determination to enhance the principle of parental responsibility. To mention this very briefly, this was reflected in what the noble Lord, Lord

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Trefgarne, said during the passage of the Criminal Justice Bill, when, in the context of a provision in that Bill making parents more responsible for their children's fines, he said:
"The family is the first and foremost influence for good or ill on a child's development. It is of the highest importance that parents execise their influence for good, and they must be supported in this by the law. The responsibility which parents have is one of the weightiest of the citizen".
The noble Lord says that the responsibility of parents should be supported by law. The purpose of these amendments is to do exactly that: to make parents feel, and, indeed, to help them to be, responsible for their children by keeping them in contact with every stage of a child's detention and what happens thereafter.
I do not think I need say anything else except that it is a very important issue for the family as a whole when one thinks of the anxiety caused to parents when they do not know where their children are. I am told that there are many cases where parents have not been informed and where there does not seem to have been any particular good reason why they should not have been. Sometimes it would even look as if it was more convenient for the police not to inform them. I know that one argument put forward is that some parents would not be in the least bit interested in knowing that their children are in detention. But I would say that that argument merely condones the irresponsibility of certain parents rather than requiring and urging them to be good parents. I beg to move.
Lord Elton: The sympathies of the noble Baroness with the young are shared on both sides of the Committee. I sympathise with the purpose underlying her amendments, which I take to be to ensure that parents, guardians or other persons with specific responsibilities for the welfare of an arrested juvenile are told at the earliest practical moment not only of the facts of and grounds for detention, as is required by Clause 55, but preferably at the same time as the juvenile himself is told. But when we come to practicalities I do not find it so easy to follow her plan.
There is the practical difficulty which the amendments recognise but do not deal with satisfactorily. For instance, what is to happen if the parents are not at the police station when the detention is authorised? That of course is likely to be the case. I think that it would be wrong for the juvenile not to be informed of the grounds for his detention until the adult arrived. Unfortunately, it is well known that the police often experience great difficulty in getting the parents of arrested juveniles to come to the police station. Some of them simply do not want to know. One may regret that, but one cannot legislate as if it was not the case.
The noble Baroness suggested that another adult who is not a policeman would do. But just any old adult who happens not to be a policeman does not seem to us to be particularly practical and certainly does not provide any safeguards. It is like drawing a passing dustman in to be a witness to an impromptu wedding. It could be any person who happened to be in the station or passing at the time. I do not see that that is an effective solution.
I point to the fact that in the draft detention code, as
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the noble Baroness agreed, at paragraph 3.6 there is a requirement that that information should be given to the arrested juvenile in the presence of his parents if they are already at the station at the time; and if they are not, it must be given to them when they arrive. I do not see that in practical terms it is possible to go further than that. We should then be legislating for people who, sadly, do not always exist.
Baroness Ewart-Biggs: I do not think that the point the Minister has made is a very good one. If we adjust the law to suit irresponsible parents, they will then be more irresponsible; but if we create law which requires parents to be more responsible, there is more hope that they will be. It is not a case of informing just anybody. The young person could say whom he wanted to be informed. He may have a friend, or there may be a guardian. It is not a case of informing just anybody in the street of the child's detention.
Lord Elton: The noble Baroness says that that is not the case, but it is what she has in her amendment. If she means something else, it would be interesting to know what.
Baroness Ewart-Biggs: I am saddened that the Minister has not responded in any way to what I see as a very important part of trying to keep the cohesion of a family and to make parents relate to the problems of their children, which is the purpose of this amendment. However, perhaps we may think about the proposal and put it forward in another way later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 110A:
Page 30, line 4, leave out ("informed that he may be liable to prosecution and").
The noble Lord said: With this we may discuss Amendments Nos. 110B and 110C.
Amendment No. 110B: Page 30, line 6, at end insert—
("() Where—

(a) a person is released under subsection (7)(b) above; and

(b) at the time of his release a decision whether he should be prosecuted for the offence for which he was arrested has not been taken,

it shall be the duty of the custody officer so to inform him.").
Amendment No. 110C: Page 30 line 7, leave out ("charged") and insert ("dealt with under subsection (7) above").
Subsection (7) places a duty on the custody officer, in a case where there is sufficient evidence to charge an arrested person, either to charge him or to release him with a warning that he may be summonsed. As drafted, the subsection gives the custody officer no other options. There are however two such options which the Bill ought to provide. First, there is the situation in which it is clear that no prosecution should or will be brought. I do not think I need say much about that. It might happen, for example, that the custody officer takes the view that no useful purpose at all would be served by proceeding to the prosecution of a mentally ill person who has been arrested, quite lawfully, for the theft of a milk bottle.
The second option which the subsection does not at present recognise is the formal caution used as an alternative to prosecution, on which we have of course

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only recently published a report. We think, as did the Royal Commission, that the caution is a valuable procedure whose use should be encouraged so far as possible
The first two amendments in this group provide for these two options. They make it clear that if a person is not to be charged then he must be released and told if a prosecution may still take place. They therefore permit the person to be released after a formal caution has already been administered.
The third amendment is consequential. Subsection (8) permits a person who is unfit to be charged to be detained until he is in a fit state. Clearly if a person is arrested dead drunk he may have to be detained for his own protection; but equally clearly it would be a pointless charade to try to charge him if he was incapable of understanding the significance of what was said to him. The amendment provides that such an unfit person may be detained until he is in a fit state not necessarily to be charged but to be dealt with in any of the four ways I have described in introducing the first two amendments in this group. It may be, for example, that he is to be cautioned. A number of experimental cautioning schemes for adult drunkenness offenders are now in progress, and it is of course desirable that the Bill should not, inadvertently, cut the legal ground from under their feet. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 110B and 110C.
[Printed above.]
The noble Lord said: I have spoken to these amendments. I beg to move them en bloc.
On Question, amendments agreed to.
8.47 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 110D:
Page 30, line 8, at end insert ("but shall be examined as soon as possible by a medical practitioner who upon the conclusion of such an examination shall certify whether he is in a fit state to be kept in custody or not.").
The noble Lord said: The purpose of the amendment is further to safeguard a person who may well be in such a medical condition that he should not be at a police station at all. It would legislate for the situation where such a person is in a police station and is unable to be charged. In the words of Clause 35(8):
"If the person arrested is not in a fit state to be charged, he may be kept in police detention until he is".
As noble Lords will be well aware, the background to this is that every year a significant number of persons die in police custody. Since Britain is a country which highly values human life and greatly appreciates the principle of human liberty, searching questions are rightly asked in every such situation.
In many cases there will be no blame on anybody at all. People die almost everywhere—on railway stations football grounds, buses and other places, including in police stations. In many of those cases there is a feeling that, had greater care been taken to see that a medical examination took place at an early stage, death may well have been avoided.
Although the draft codes contain specific directions on such matters, we believe that the amendment would take the matter slightly further in a justifiable direction. We believe that it is a necessary provision and that it would greatly strengthen this part of the Bill. In conclusion, may I quote what is said in the third report from the Home Affairs Committee, Deaths in Police Custody. It is at page 93 of that report:
"A police officer cannot and should not be expected to assume the responsibility of knowing the presence or absence of illness of injury, the more so where alcohol complicates the overall clinical picture. Many infirmities are known to mimic alcohol and/or drug intoxication."
Therefore, it is in the light of such a necessary development that we tender this amendment to the Committee. I beg to move.
Lord Donaldson of Kingsbridge: Of course, I support this. The important point here is that if the Government had taken the slightest notice of the advice that experts have been giving them for the last 15 years, the man who arrives in a police station dead drunk would not be there at all: he would go to a drying out centre where he receives proper attention. This question has been fiddled about with by Governments for years and they are still trying it out. Here is a very good illustration of its necessity. It is quite unreasonable to expect a policemen to tell the difference between a man who is drunk and a man who is ill. Such a person should be admitted into a place where this can be done automatically. Recommendations have been given in detail again and again and very little action has been taken on them.
Lord Elton: Sadly, a number of people do from time to time die in police custody. I was not aware that any of them had died because the police had thought they were drunk when in fact they were ill. May I quote—because the noble Lord referred to it and I shall refer to it, and I think it would be best that the Committee should know what I am referring to—from the code of practice, paragraph 10:
"If a person brought to a police station appears to be suffering from physical or mental illness or is injured or is incoherent, or somnolent, or is thought to be a drug addict or otherwise to need medical attention, or if a detained person is injured or taken ill, or appears to be ill, the custody officer must immediately call the police surgeon, or, in urgent cases, send the person to hospital or call the nearest available medical pracitioner. This applies even if the person makes no complaint and whether or not he has recently had medical treatment elsewhere".
It goes on to say in the next sub-paragraph:
"If it appears to the custody officer or he is told that a person brought to the police station under arrest may be suffering from an infectious disease of any significance he must take steps to isolate the person and his property until he has obtained medical direction as to where the person should be taken"—
and so on. It continues:
"If a detained person requests a medical examination, the police surgeon must be called as soon as practicable. He may in addition be examined by a medical practitioner of his own choice and at his own expense".
So there is ample provision for medical cover. I quite understand the concern which lies behind the amendment. In many cases where a person is not fit to be charged it would be right to have him examined by a doctor, and that is provided for.
The draft code provides in unavoidable detail for

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this provision. The amendment goes a step further and requires the police to call a doctor in each and every case where a person is unfit to be charged. Here I think we get into unnecessary questions of practicality. If a person is plainly unfit to be charged because he has lost his temper and is struggling violently with officers trying to restrain him, the sensible course is to defer the charging procedure until he has cooled down to the extent that he can take in what is said to him, particularly the caution. It does not seem to us necessary to have to call in a doctor automatically, if that or something like it happens and if no injury is sustained in the process.
I repeat that I understand and sympathise with the reasons behind the noble Lord's amendment. I would also remind the noble Lord, Lord Donaldson—I am sure he has not forgotten—that we are experimenting with work shelters at the moment. It is a fascinating subject. When I was at the Department of Health and Social Security I had an interest that equals my interest now. However, I shall not pursue it or the difficulties which we are finding in the experiment. The fact is that we are aware of drunkenness. We are introducing a scheme of cautioning for drunkenness to try to keep these people out of police stations. I believe the medical requirements are already adequately provided for.
Lord Elystan-Morgan: The instance given by the noble Lord the Minister, of a person who is not fit to be charged because he is in such a temper, I feel does not really meet the substance of this amendment. Subsection (8) is dealing with a different situation. Although it is accepted that there are three substantial paragraphs in the draft code of practice legislating as to when a doctor should be called, none of those deals with a person who shows outwards signs of drunkeness. It does not really meet the case of the person who is comatose, stinking of drink but in fact suffering from a substantial brain condition, or perhaps from a fractured skull. I beg the Minister to look again and to see whether this matter can be dealt with in greater detail so as to meet those particular cases. In my respectful submission, they are cases which lead to a number of deaths in police custody every year. On that basis I am very prepared to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees (Lord Ampthill): Amendment No. 110E.
Baroness Ewart-Biggs: I have already spoken to this.
Lord Elton: I think the noble Baroness would be advised to move Amendment No. 110E.
Baroness Ewart-Biggs: Not moved—
Lord Elton: Such a contribution from the noble Baroness is so rare, I would not want to miss one.
Baroness Ewart-Biggs: The Government have had a group of three amendments of which No. 110E was one.
Baroness David: Move it.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 110E:
[Printed earlier: col. 648.]
The noble Baroness said: I will move this amendment.
Lord Elwyn-Jones: So generous is the Opposition that we are willing to look even a gifthorse in the mouth, but only for a moment or two.
Lord Elton: If the noble and learned Lord looks a gifthorse in the mouth for too long it will say, "Nay"! As the noble Baroness explained at an earlier stage, subsection (10) refers to decisions under Section 5 of the Children and Young Persons Act 1969, which has not been brought into force. Clause 55 already requires the parents of an arrested juvenile, or in certain cases other persons, to be informed of his detention, the reason for it and the place of detention. I agree that it would be reasonable for them to be provided with the additional information required by the amendment if Section 5 were to be brought into force. The Government are therefore able to accept this amendment in principle, but the drafting requires a little further thought. I hate to add that little codicil, but I hope the noble Baroness will be content with the intention behind my words.
Baroness Ewart-Biggs: I am extremely grateful to the Minister, naturally, and thank him very much indeed, and beg leave to withdraw the amendment.
Noble Lords: No.
Lord Elton: If the Committee would permit me, I think I ought to speak because I think the rule book says if the Committee say, "No", we have to vote. As I understand it, we would then put a faintly defective amendment into the Bill and we would have to amend it at the next stage. What I am offering to do is to provide a Government amendment with the same effect as the noble Baroness intends. I can only do that if she withdraws her amendment.
Lord Elwyn-Jones: In view of the undertaking given by the Minister, we ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 111.
[Printed earlier: col. 609.]
The noble Lord said: I spoke to this amendment with Amendment No. 109. I beg to move.
On Question, amendment agreed to.
Clause 35, as amended, agreed to.
Clause 36 [Duties of custody officer after charge]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 111ZA.
Page 31, line 19, leave out sub-paragraph (ii).
The noble Baroness said: The purpose of this amendment is to prevent the police merely detaining juveniles after charge on the basis of their own good. Of course, we appreciate that this is not a new power which is being incorporated in this Bill. The power already exists in the Children and Young Persons Act 1969. However, we are concerned that such a power can be exercised solely on the subjective thinking of a single police officer. We are concerned that the retention of the subsection might increase instances where a young person is detained beyond the end of the interview simply because, as is sometimes the case now, the police do not believe that he is telling the truth, so it is in his own interest to remain there until, presumably, they are satisfied that he will tell the truth.
If the Bill does not permit this for adults, I really see no justification for applying it to juveniles. Moreover, if it is considered necessary to detain an arrested juvenile after charge for his own and others' protection, then the police will already have the power to do so under Clause 36(1)(a)(ii) of the Bill. This clause which covers both adults and juveniles allows a power of detention to a police officer who,
"has reasonable gounds for believing that the detention of the person arrested is necessary for his own protection or to prevent him from causing physical injury to any other person or from causing loss of or damage to property".
Surely, this must adequately cover what are the only justified reasons for detention in this context. I beg to move.
9.1 p.m.
Lord Elton: Subsection (1)(b)(ii) which the amendment would omit is intended to continue the effect of Sections 28 and 29 of the Children and Young Persons Act 1969. The provisions work like this. If a juvenile is charged with an offence, he may be retained in custody pending his production before a court on the charge if such detention would be in his own interests. In this event, the juvenile must be transferred to the custody of the local authority pending his court appearance unless he is too unruly for this to be appropriate. The provisions of Clause 36(1), (7), (8) and (9) do no more than continue the effect of the 1969 Act.
In particular, the 1969 Act clearly authorises the detention, normally in local authority custody but sometimes necessarily in police custody, of a juvenile who has been charged with an offence if such detention is necessary in his own interests. This is deliberately wide language, and the Bill repeats it. The provisions of the 1969 Act do not apply only to medical cases. They apply also to cases in which a juvenile has no satisfactory home to go hack to or where he is a very long way from home. Your Lordships will have many emotive examples in mind.
Let me quote one that is quite a frequent occurrence. The example, I think, bears out the need for the reserve power in the 1969 Act. It is that of a boy from Carlisle who decides to play truant and gets on to the London train without a ticket. This happens quite often. He is arrested by the British Transport police. They charge him with an offence. His parents do not want to come to London to collect him. In these circumstances, the police cannot clearly be required to
required to
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release him on to the streets with nowhere to go. It is necessary to provide for his detention until his production in court later that day or the following day. I hope that that has convinced the noble Baroness that we need the power for the protection of the young people in question.
Baroness Ewart-Biggs: The Minister has given an example of this juvenile running away from home and coming to London and whose parents do not want to collect him. Surely, however, this juvenile is in need of some other kind of care and protection, not detention in a police station. Is detention really necessary for a young person who needs some other kind of care?
Lord Elton: These arrangements cannot be made instantaneously. It is often necessary for the police to detain a person in custody until he has somewhere else for him to go.
Baroness Ewart-Biggs: I am not totally convinced that the best place for a young person in need of care is a police station. However, I would like to think that it is only a temporary measure, as the noble Lord says. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 111ZB:
Page 31, line 32, after ("of") insert ("and a copy handed to").
The noble Lord said: I can move this amendment in short compass. As your Lordships are aware, under Clause 36(5), it is incumbent on the custody officer to keep a record of the charge and, at the same time, to inform the person charged of the grounds for his detention. Invariably, when such records are kept they are made upon carbon sheets so that three or four copies will always be available. All that the amendment asks is that a copy should be handed to the person charged. It seems, in my submission, to be nothing more than a courtesy and common sense and might avoid a great deal of argument, perhaps many months later.
Lord Elton: I knew that it would happen. Are we talking to Amendments Nos. 1 10ZC and 111ZB together? That is what I am about to do. Your Lordships can ignore any bits that you do not think apposite. I think, however that this is right. The amendments would require the custody officer to give detained persons a written copy of the grounds for detention before and after charge. Clauses 35(5) and 36(5) require that this information be given to the detained person orally. I should remind the Committee that paragraph 2.4 of the draft code of practice on the treatment and questioning of suspects entitles a detained person or his legal representative to obtain a copy of his custody record on his release or within 12 months thereafter. The grounds for detention will be recorded there under paragraph 3.9.
Paragraph 3.3 expressly requires the custody officer to inform persons of the right to a copy of the record on their release both orally and in writing. Solicitors will also no doubt advise their clients of their right to a copy of the record. If a person wants a copy of his record and therefore of the grounds for detention, he

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will have every opportunity to get one. I am not sure that I see the purpose of going beyond these provisions in the way that these amendments propose. It would require the police to go to the trouble and expense of producing copies in order to give them to people who may have expressed no interest in seeing one. That would be a misuse of resources. The person must be told by word of mouth. I think that that is a significant safeguard. I do not see the necessity of adding to it on paper.
Lord Elystan-Morgan: The point would not be improved if I were to repeat again the arguments that I deployed in moving the amendment. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 111ZC:
[Printed earlier: col. 648.]
The noble Baroness said: I have spoken to this amendment in principle but I should like to emphasise to the Minister the point that I made previously. This amendment states that there should be,
"the presence of any person who is required to be informed of his detention under section 55 of this Act or, in their absence, an adult person who is not a police officer".
That is the point I was making—that there should be an adult in attendance on a young person under detention, in order to avoid lengthy detention. I beg to move.
Lord Elton: I think this is the survivor of the original group, and that I have already spoken to it. I will not weary your Lordships by giving again our reasons for not accepting it.
Baroness Ewart-Biggs: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull moved Amendment No. 111A:
Page 31, line 43, leave out from first ("so") to second ("make") in line 1 on page 32.
The noble Baroness said: This amendment is allied to some extent to some of those moved by the noble Baroness, Lady Ewart-Biggs, but it is perhaps a much stronger amendment. Clause 36(7) of this Bill states:
"Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (I) above, the custody officer shall, unless he certifies that it is impracticable to do so"—
Then we ask to delete a number of words, with the subsection going on to say:
"make arrangements for the arrested juvenile to be taken into the care of a local authority and detained by the authority, and it shall be lawful to detain him in pursuance of the arrangements".
The object of this probing amendment—at this stage it is a probing amendment—is an effort to take juveniles out of the penal system so far as is possible and practicable. It is not always possible; it is not always practicable. In regard to unruliness certificates, I shall hope to speak to that subject on the Question that Schedule 6 stand part.
Her Majesty's Government have recognised the need for keeping children and young persons out of the
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penal system. We are grateful and glad to see in the consultation document on cautioning by the police, which has just been issued, that the first sentence of that document states, concerning juveniles:
"It is recognised, both in theory and in practice, that delay in the entry of a young person into the formal criminal justice system as represented by the institution of criminal proceedings may help to prevent his entry into that system altogether".
I must underline that statement in the consultation document and say that once a juvenile enters the penal system it is extremely difficult to deflect him afterwards.
Furthermore, in the debate on 28th June 1982 on the Criminal Justice Bill, in moving Amendment No. 48 I suggested that juveniles on remand should not be sent to adult prisons or penal institutions. In Hansard of 28th June 1982, at col. 69, the noble Lord the Minister, Lord Trefgarne, said:
"This new clause seeks to do something which the Government are already committed to trying to achieve. We are therefore wholly in sympathy with the intention behind it, which is to bring to an end the remand to prison of juveniles".
Later on in the debate I wanted to clarify the situation and I asked the noble Lord, Lord Trefgarne, if I was to understand that it was the Government's policy in the long run to have enough accommodation so that juveniles on remand for criminal offences were not sent to prison. The noble Lord, Lord Trefgarne, said, "Yes, most certainly".
We have now come to this Bill. I am fully aware that there is the question of cost. It must be remembered that now no child under the age of 15 goes to a penal institution; no girl goes to a penal institution; but boys of 15 and 16 are remanded to penal institutions and kept in police stations.
The prison service, the police service, and the social services are hard pressed. If those services are hard pressed and there is a question of cost, then surely on balance the needs of the young people should be considered. My noble friend Lord Elton in answer to the noble Baroness, Lady Ewart-Biggs, said that something had to be done about a child. Let me say in answer to my noble friend that every social service department in this country should have—and I would suggest does have—a night service and a day service—in fact, a 24-hour service. Many is the night that I have been woken at one, two or three o'clock in the morning because of a child at the police station. The police would ask me to come down and fetch the child rather than (a) keep him or her in the police station or (b) move the child to a penal institution. I believe that that is how it should be. I do not think that children should be remanded or kept either at the police station or in penal institutions.
Of course it will be said that this will be expensive for social services departments. But where is the expense to lie? Is it to lie with the police? Is it to lie with the prison service (which is overcrowded in any case), or is it to lie with the social services? At the end of the day I suggest that this is perhaps the moment at which Her Majesty's Government should consider exactly what are the principles which they themselves are putting forward and have stated in the new consultative document.
I do not know whether I should also speak to Amendment No. I 1113; perhaps it would be better if I

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dealt only with Amendment No. 111A at this stage. My plea to Her Majesty's Government—and I underline that this is a probing amendment—is that young persons should, as far as possible and practicable, be kept out of the penal system and they should be dealt with by the social services department. I beg to move.
Lord Elton: By way of preface, let me say that if the noble Baroness is woken tomorrow morning at the hours of one, two, or three o'clock regrettably it will be likely to be by the Division bell and not her telephone! The Government fully accept the objective which my noble friend seeks to achieve by her amendment. It is extraordinary how probing amendments seem to succeed in this place. We are prepared to accept the amendment. It is clearly far better for arrested juveniles, so far as is practicable, to be transferred into the care of a local authority instead of being held in a police station.
When my right honourable friend the Minister of State dealt with a similar amendment at the Committee stage of this Bill in the other place, he gave an undertaking to consider the matter further to see how best to deal in this Bill with the concept of certificates of unruliness. We have been working towards an amendment of our own. We have been giving particular attention to what, if my noble friend's amendment is accepted, would be the unrepealed part of the provision, defining the residual circumstances in which an arrested juvenile need not be transferred to local authority care. I am afraid that it has not been possible to have such an amendment ready for your Lordships' Committee to consider today. But that amendment would certainly have included the change which my noble friend now proposes. Therefore, while we may wish to propose some further changes at the next stage of your Lordships' deliberations on this Bill (which your Lordships should know would be of a minor drafting nature and would certainly not be intended to undermine the purpose of this change), in the meantime I am happy to commend to your Lordships the amendment which my noble friend has moved.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 111B:
Page 32, line 4, at end insert—
(" () Subsection (7) above shall not authorise a local authority to detain an arrested juvenile in accommodation provided for the purpose of restricting liberty unless it appears that—

(i) he is charged with an offence imprisonable in the case of a person aged 21 or over for 14 years or more, or

(ii) he is charged with an offence of violence, or has previously been convicted of an offence of violence and in either case it appears that any accommodation other than that provided for the purpose of restricting liberty is inappropriate because he is likely to abscond from such accommodation, or to injure himself or other people if he is kept in any such accommodation.").

The noble Baroness said: I must be guided by my noble friend the Minister on this amendment because I am not sure that it fits into the Bill as it deals with the way in which children in a social services department are dealt with in secure accommodation run by the local authority. I shall continue to speak unless my noble friend stops me.
What I simply wanted to point out was that there is a slight difficulty in that when children are remanded to secure accommodation in the care of the local authority, certain rules are laid down. These rules have not been laid down for children held at a police station and, therefore, should not the same rules apply? Here again it is a probing amendment. I am not sure that it should be included in the Bill, but I shall be guided by my noble friend the Minister. I beg to move.
9.20 p.m.
Lord Elton: I think I should say that this is a useful time for an exchange to be put on the record, but I cannot commend the amendment as such to your Lordships. Again, we entirely share the concern which has been expressed. Resort to secure accommodation to restrict the liberty of young persons who are in the charge of local authorities should clearly be confined to those cases where it is necessary. The general restrictions on the use of secure accommodation are now to be found in Section 21A of the Child Care Act 1980 and the Secure Accommodation (No. 2) Regulations 1983. However, when the 1983 regulations were drawn up it was thought best to exclude certain categories of cases, and one such category was that of arrested juveniles.
I have a condensed history, of how these powers came to be as they are, but I do not want to extend too much what I have to say. Recently my noble friend was kind enough to give warning of her conclusion—I am making the great mistake of trying to leave bits out, and not being certain where, having leapt into the dark, my foot will next land on the ground. I have to ask my noble friend not to press her amendment (other than the procedural one) for two reasons. The first is that if the amendment is intended to bring the position of arrested juveniles into line with that of remanded juveniles—an intention which the Government would share—I fear that it fails to do so. Certainly the position of young offenders within the category described in the amendment would be the same; that is, those who are charged with offences normally carrying imprisonment for 14 years or more, or with offences of violence, or who have previously been convicted of an offence of violence and who satisfy the other criteria set out in the amendment.
However, youngsters on remand may also be held in secure accommodation if they meet the conditions specified in Section 21A(1) of the Child Care Act 1980. Those conditions are—and I paraphrase—that it appears that the young person either has a history of absconding and is likely to abscond again if he is not kept in secure accommodation; and, if he absconds, his physical, mental or moral welfare is likely to be at risk; or he is likely to injure himself or others if he is not kept in secure accommodation.
The effect of including the amendment in this Bill rather than applying Section 21A(1) through an amendment of the regulations would, however, be that these primary grounds for resort to secure accommodation would not apply in the case of the general run of arrested juveniles. This would mean that arrested juveniles were in a significantly different position from remanded juveniles which would, I believe—and I think that my noble friend agrees with me—be wrong in principle.

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The second point may perhaps be more significant. It is this. In general, restrictions upon the use of secure accommodation are prescribed in the Secure Accommodation (No. 2) Regulations 1983, coupled with Section 21A of the Child Care Act 1980.
I now pick up the point which my noble friend generously put at the head of her speech. In our view the most sensible way to achieve the objective which I think we all seek—that is, to bring the position of the arrested juvenile into line with that of the remanded juvenile—is to amend the 1983 regulations. This whole area of the law does not need the additional complications which result when provisions dealing with similar but individual matters are liberally sprinkled throughout the pages of the state book. If your Lordships agree, therefore, we shall prepare the required amendment to bring arrested juveniles within the scope of the regulations as soon as possible.
At the same time we propose to bring under the regulations another group of cases in which the use of secure accommodation is not at present subject to restrictions. These are cases of young people who have been detained by police officers in a place of safety, under Section 28(4) of the Children and Young Persons Act 1969. I think that that proposal will also be welcomed by the Committee, and I hope that with those undertakings my noble friend will feel that her work is being done without the amendment.
Baroness Faithfull: I should like to thank my noble friend the Minister for his assurances, and I shall read in Hansard what he has said. I am most grateful to him, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36, as amended, agreed to.
Clause 37 [Responsibilities in relation to persons detained]:
Lord Elton Lord Elton moved Amendment No. 112:
Page 32, line 10, leave out ("subsection (2)") and insert ("subsections (2) and (4)").
The noble Lord said: This amendment corrects a simple drafting oversight. While the custody officer at a police station should clearly be responsible for the welfare and treatment of those detained there, equally clearly he cannot, and should not, be personally responsible for what happens to a juvenile who is then transferred under Clause 36(6) to the care of a local authority pending his production in court on a charge. It is for the local authority concerned to ensure that he is properly treated, adequately cared for, and produced in court the next day. The amendment makes it clear that the custody officer's remit does not extend to local authority accommodation, and on this commonsense basis I commend the amendment to your Lordships. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 113:
Page 32, line 23, leave out ("the offence for which that person was arrested") and insert ("an offence for which that person is in police detention")
The noble Lord said: Subsection (2) provides for the case where a person in custody at a police station is in
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the charge not of the custody officer, but rather of the officer responsible for the investigation in progress. This may happen where a suspect is taken to an interview room to be questioned, or perhaps taken outside the police station to be present at a search of premises. In these circumstances the custody officer cannot control what happens to the suspect, and it is therefore clearly right that not he, but the officer in charge of the investigation, should carry responsibility for the suspect's treatment. Subsection (2) so provides.
The trouble with subsection (2) as drafted is that it assumes, wrongly, that a person in detention is always detained in connection with the offence for which he was originally arrested. But of course this is not always the case. A person may be arrested on suspicion of rape, but in the process of clearing himself of that suspicion he may reveal that he has been indulging, for instance, in burglary. The amendment simply recognises this possibility and makes it clear when it is that the custody officer's responsibility is passed to the investigating officer, irrespective or the original reason for the person's arrest. I beg to move.
On Question, amendment agreed to.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 113ZA:
Page 32, line 40, at end insert—
("and
() It shall be the duty of the local authority to ensure that the arrested juvenile is treated in accordance with the duties and responsibilities imposed on the local authority under section 18(1), (2) and (3) of the Child Care Act 1980 in respect of children in their care.")
The noble Baroness said: May I move this amendment briefly and in a spirit of inquiry? I should like to ask the Minister about the treatment of young people. There is at present a lacuna in the law regarding the treatment of juveniles who have been arrested and detained by the police and then transferred to the custody of a local authority. While in police custody young persons would benefit from the safeguards provided under this Bill and the code of practice as regards their treatment while in detention but once they are passed over to the local authority, in the care of which they would not be considered to be, there is no statutory provision governing how they are to be treated while with the local authority.
The purpose of this amendment is to ensure that the local authority is under a duty to apply the welfare principle of Section 18(1), (2) and (3) of the Child Care Act to this particular category of young persons. Perhaps the Minister will say whether this is unnecessary and whether the safeguard already exists. I beg to move.
Lord Elton: I understand the concern that has been expressed about the absence of any specific reference in this Bill to the conditions that are to apply when an arrested juvenile is in the charge of a local authority pending his first appearance in court. If it happens that an arrested juvenile cannot be transferred to a local authority, but continues to be held in a police station, his detention there would be subject to the terms of this legislation, under a code prepared thereunder, but a local authority would not be bound to observe a code.

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When the Government were faced with a similar amendment in another place it was thought inappropriate to attract to arrested juveniles the provisions in Section 18 of the Child Care Act. Those provisions were drafted to deal with a situation involving children and young people who are in the care of a local authority for much longer periods of time. In such cases it is, naturally, very important that particular significance should be attached to the need to safeguard and promote the welfare of the juvenile and to ascertain, and give due consideration to, his wishes and his feelings. The position of the arrested juvenile is quite different. As an arrested juvenile he is with the local authority for a relatively short time, perhaps no more than a few hours, or a day or so, and normally no more than 72 hours. In such circumstances the Government doubted the need to attract the provisions of Section 18.
In addition, we were concerned that the amendment which was down in the other place sought to attract only subsections (1) and (2) of Section 18 and not subsection (3). Sub-section (3) is very important. Its effect is that the local authority is not bound to give first consideration to the welfare of the juvenile or to give due consideration to the wishes and feelings of the juvenile if to do so would be contrary to the interests of public protection.
Because it also attracts subsection (3) the amendment that has been put down by the noble Baroness, Lady Ewart-Biggs, is infinitely better than that tabled in another place. Your Lordships will not be surprised that that should be so. As to the need for such an amendment, we are sympathetic with what the noble Baroness seeks to do, but the detailed drafting of the amendment requires some technical attention. It may be preferable to tackle the matter in a different way. Therefore, if the noble Baroness is prepared not to press the amendment today, we can see how best the required objective might be achieved and come forward with our own proposals at the next stage.
Baroness Ewart-Biggs: I am grateful to the Minister for such a very positive response and I look forward to seeing what he brings forward. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37, as amended, agreed to.
Clause 38 [Review of police detention]:
Lord Monson Lord Monson moved Amendment No. 113A.
Page 33, line 24, at end insert ("(or failing that the most senior officer available)").
The noble Lord said: With the leave of the Committee I wish to speak at the same time to Amendment No. 113B, which is consequential.
Amendment No. 113B: Page 34, line 3, leave out from ("questioned") to end of line 5.
The purpose of the amendment is to provide that a review of detention may, in exceptional circumstances, be carried out by an officer of lower rank than that of inspector. Obviously it is desirable that, wherever possible, the review should be carried out by
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someone of the rank of inspector or above, but there are bound to be occasions when nobody of that rank is available. One thinks of police stations in rural areas, for example, or even of police stations in urban areas when an emergency of an unusual gravity is afoot; for example, the Harrods bomb explosion, the Libyan Embassy siege, or perhaps an incident involving violent mass picketing. In those circumstances it is surely better that a sergeant, for example, should carry out the review than that the review should not be carried out at all. I beg to move.
Lord Elton: The clause before your Lordships, Clause 38, requires an officer of at least inspector rank to review the detention of an uncharged person within six hours, and thereafter at nine-hourly intervals. The first of these amendments would permit an officer below the rank of inspector to perform this duty if no other officer was available. As a corollary to that weakening of the safeguards, the second amendment would delete the provision in subsection (4)(b)(ii), which permits a review to be postponed, if an officer of the rank of inspector is not readily available.
We are therefore debating a balance of safeguards. Our proposal is that reviews of detention before charge must always be performed by an officer of the rank of inspector or above. Since senior officers may be called away from a police station for a variety of urgent reasons, some of which the noble Lord has adduced, or may arrive later than expected, we have had to acknowledge that it may be necessary from time to time to postpone the review if such a senior officer is not readily available when the review falls due.
The noble Lord, Lord Monson, approaches the problem from the opposite direction. In his view the holding of reviews at the intervals laid down in the clause is more important than the rank of the officer who performs the task I suppose that is a matter very much of judgment, whether the balance of advantage lies in sticking firmly to rank and allowing a measure of leeway over time, or vice versa. Our view, however, is that the balance struck in the Bill is the better one. The scheme is progressive in the sense that the longer detention lasts, the more senior, the more demanding and the more independent the review. Amendment No. 113A would interrupt that sequence.
I think I might be able to share the view of the matter of the noble Lord, Lord Monson, if there were a risk that reviews had to he postponed often and for lengthy periods. But I remind your Lordships that, as a result of the Government amendments to Clauses 29 and 34, any period of detention exceeding six hours will have to take place at a designated police station; that is, at a station with the facilities and complement to cater for the detention of suspects. In these circumstances, it is unlikely that an inspector will be unavailable for any lengthy period, and I certainly do not envisage the possibility that an entire review might have to be dropped out altogether.
We are talking about having to cater for temporary absences to attend to pressing operational matters, or where there are a very large number of suspects concurrently detained and a certain amount of queueing cannot be avoided. I think it is better to settle for this than to open up the possibility that a junior officer could act as a review officer. Your Lordships

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will remember that there is already the let-out on the custody officer, where, unavoidably, his duties may have to be discharged by somebody who is not a sergeant. I become a little anxious when we start having the next stage up being performed by somebody who is not an inspector. It is a narrow balance, but I think we have got it right and I hope that the noble Lord will agree.
Lord Monson: I am not entirely happy about what the noble Lord, Lord Elton, has said. Suppose that for some reason or other the first review cannot take place until 10 hours after the person is detained. Would the subsequent review then take place nine hours after that, or could the noble Lord give an assurance that as a quid pro quo for the long delay before the first review takes place the second and subsequent reviews could be speeded up? If the noble Lord were able to give that assurance, I would be much happier about withdrawing this amendment.
Lord Elton: Looking at the Bill, I am not certain that I can give that assurance because we have in subsection (3):

"(a) the first review shall be not later than six hours after the detention was first authorised;

(b) the second review shall be not later than nine hours after the first;

(c) subsequent reviews shall be at intervals of not more than nine hours".

I think the noble Lord has given me food for thought as to what might happen if there was a delay longer than intended. Perhaps we can both consider this between now and Report.
Lord Monson: I am grateful for what the noble Lord has said, and with that assurance I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 113B not moved.]
Lord Elton Lord Elton moved Amendment No. 114:
Page 34, line 26, leave out ("(5)") and insert ("(6)").
The noble Lord said: Clause 38 provides for the periodic review of a person's detention. Subsections (7) to (9) impose duties on the officer conducting the review, these duties being defined by reference back to the custody officer's duties under Clause 35. While subsections (7) and (8) apply subsections (1) to (6) of Clause 35 in this way, subsection (9) applies only subsections (1) to (5). This was an unintentional slip which this amendment corrects. If a custody officer does not have to inform a person of the grounds for his detention at the time it is authorised because the person is, say violent or in urgent need of medical attention, it must be right that the review officer does not have to, either. I beg to move.
On Question, amendment agreed to.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 114ZA:
[Printed earlier.]
The noble Baroness said: I have already spoken to the amendment bringing in the principle of this amendment as part of the batch that I moved earlier. The principle, if I may remind the Minister, is to ensure that the police are under a duty to keep parents, guardians or any adult other than a police officer informed of a juvenile's detention. I will therefore not repeat what I have said already. I beg to move.
Lord Elton: The noble Baroness has not repeated what she said. I do not think there is much point in my repeating what I said, since I have nothing new to say.
Baroness Ewart-Biggs: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114ZB not moved]
Clause 38, as amended, agreed to.
Clause 39 [Limits on period of detention without charge]:
9.41 p.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendments Nos. 114ZC and 115A:
Page 35, line 21, at end insert—
("(1A) Subject to subsections (2) (3) and (4) of this section, an arrested juvenile who is not under investigation for a serious arrestable offence shall not be kept in police detention for more than 6 hours without being charged.").
Page 36, line 27, at end insert—
(" () An arrested juvenile who falls within subsection (1A) above who at the expiry of 6 hours after the relevant time is in police detention and has not been charged shall be released at that time either on bail or without bail.").
The noble Baroness said: I beg to move Amendments Nos. 114ZC and 115A together. I feel that the justification for both these amendments lies in the fact that there are really very strong arguments for making a special case within this Bill for juveniles. I do not think it has been stressed enough during either the Second Reading or the Committee stage so far that many of these new powers will mainly affect young people. It will be young people who will suffer more from the new stop and search powers and they will come within the law more often through these proposed new powers.
It is not my intention to try to shield young people from the law, as all statistics show that there are more young people who are committing crimes, but I think these amendments are important for the purpose of safeguarding those juveniles who are not suspected of serious arrestable offences, for the following reasons. First, it was shown in a survey made in Hillingdon and in other reports about young peoples' reactions to stop and search powers and so on that the average law-abiding young person has a great respect for law and order until he or she has been subjected to stop and search or has been in custody. Then he or she feels alienated, and that all-important relationship between the young person and the police deteriorates. So, clearly, the longer the young offender is kept in police detention the more likely is that relationship to deteriorate.
Secondly, six hours is a very long time to be in a police station under investigation. Indeed, as has already been said, it is the limit under the Scottish system for anyone to be held for investigation. The longer a young person is subjected to this frightening experience the more likely he or she is to feel hostility, on the one hand, or, on the other hand, to say just anything in order to be released. The young offender can find himself in real trouble, either for making a false confession incriminating himself or for behaving badly towards the police. As has already been said during this Committee stage, adult suspects become very anxious when kept in custody, and I would say that this is even more the case for young people.
I do fear that the balance, which has been mentioned often during this debate, whereby the police are given sufficient powers to enforce the law without alienating the community has really not been held so far as young people are concerned. When people talk about this Bill being instrumental in alienating a whole generation of young people, I find it extremely worrying. Therefore I should like to ask the
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Minister to think very carefully and to look very seriously at these two amendments that I have put down. I beg to move.
Lord Elton: I think we have to think very carefully about this issue, because the purpose of the limits on detention before charge is to ensure that the police have adequate time to investigate offences while protecting the detained person. Regrettably, many crimes are now committed by persons under 17. Many of these will be serious without constituting serious arrestable offences. The fact that it is a young person who is suspected will not make the investigation simpler. Precisely the same amount of time may be needed to complete the investigation as if it had been committed by an adult. In fact, I cannot see that the age of the offender makes any difference to the complexity of the case. The fact that all kinds of additional safeguards for juveniles are required by the draft codes of practice is likely to mean that the investigation will take more time rather than less, compared with an adult. If the police cannot, other than in wholly exceptional circumstances, begin interviewing an arrested juvenile before his parents or some other responsible adult have come to the police station, it is not difficult to see how a couple of hours could slip away before the investigation could even get off the ground and that would leave very little time, if the noble Baroness's amendments were accepted.
That leads me to say that we have to accept that very serious crimes are often committed by rather young people. In all these cases, the correct way to achieve the necessary balance in this area is to ensure that proper safeguards are provided, not to impose time limits which are likely in some cases to be quite unrealistic. I am sorry that I cannot be more encouraging. I know that the noble Baroness's heart is conspicuously in the right place, but I am afraid that she is setting about this in the wrong way.
Baroness Faithfull: I wonder whether I may ask my noble friend the Minister this question. If a young person is likely to need to be remanded for more than six hours, or even for less than six hours, is it possible for him to be held by the local authority rather than to be detained in the police station for that length of time? I have to confess that this has often happened to me in the past, whether rightly or wrongly, and it seems to me that this would meet the point of the noble Baroness.
Perhaps I may also say that statistics show that the highest crime rate is with the 14s, 15s and 16s and as they grow older they commit less and less crime. At that stage, one does not want them to go into the penal system at all if one can possibly help it, and one does not want to hold them at police stations. Is it not within the realms of possibility that the local authority could hold those children, pending the police making inquiries?
I have to confess that the police and I together used the place-of-safety orders. It was possible for a place-of-safety order to be used which prevented a child from being held in the police station. In fact, the child was held by the social services department and in that way the request of the noble Baroness could be met. I wonder whether circumstances have now changed.
Baroness Macleod of Borve: The circumstances have changed a very great deal, in that some of the children that I have in mind would run away. They would not be seen from here to the other end of Southend. They could not be held, even if they were put in a remand centre in the charge of a very responsible local authority. They would walk out and would not be seen again until they were apprehended many hundreds of miles away. It is very important that the police should be able to follow the offence through, and that is very difficult if they have to let the child go because they are unable to keep him for more than six hours. To impose a time limit would be wrong and restricting to the police.
Lord Elton: I am obliged to both of my noble friends for raising this point and I absolutely endorse what my latter noble friend said about time limits. But I would direct the former of my noble friends, Lady Faithfull, to Clause 36(7), which we have just discussed:
"Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies that it is impracticable to do so … make arrangements for the arrested juvenile to be taken into the care of a local authority and detained by the authority, and it shall be lawful to detain him in pursuance of the arrangements".
It then becomes a question of whether the authority is capable of detaining him. That makes it a question of whether suitable accommodation is available near enough to the place where the investigations are being conducted, but there is nothing in the Bill to prevent this from being done.
Baroness Faithfull: I thank my noble friend the Minister. Through him, may I say that there are many young persons who will run away. I have known young persons to run away from police stations. I would rather that they were taken to secure accommodation within the local authority. My experience is that however great absconders they may be, children can be held in secure accommodation run by the local authority. I believe that this is how it should be. If it is not, we should work towards it.
Lord Donaldson of Kingsbridge: May I, from these Benches, say that I fully support the noble Baroness?
Baroness Ewart-Biggs: I should very much like to thank the noble Baroness, Lady Faithfull, for her support and for her suggestion. I completely agree with her that the purpose of many of these amendments is to keep young people out of the penal system. We know that once they have entered it, the road to future crime seems to be more assured. I still believe that my six-hour limit is correct. Very many juveniles who are not hardened criminals will have said everything that they have to say during the six-hour period. By then they will be in a thoroughly confused, and possibly alienated, state. If six hours is a sufficiently long period under the Scottish system, I believe that it should apply also in England. May I thank the Minister for his reply. I should like to think about the matter and consider whether to bring something back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.54 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 114ZD:
Page 35, line 42, leave out from ("arrested") to end of line 43 and insert ("was arrested.").
The noble Lord said: As your Lordships know, Clause 39 provides that for the purpose of calculating periods of detention, time will run from the relevant time, which in nearly all cases will be the time of the suspect's arrival at the police station, following arrest. As the clause now stands, it prescribes three starting points from which calculations of time should be made, depending upon where the suspect has been arrested. The first is if a person has been arrested in a police area within England and Wales. Where no inquiry has been made into an offence, time runs from the time when a person arrives at a police station in a police area where the offence is being investigated or, at the very latest, 24 hours from the person's arrest.
The second period of time is where the person concerned was arrested outside England and Wales. Time will start to run from the moment of his arrival at a police station in a police area within England and Wales where the offence is being investigated. The third period of time is that which covers all the other cases, which in effect means that in the majority of cases where the arrest takes place in the police area where the offence is being investigated, time will run from the time of arrival at the first police station to which the suspect is taken after arrest.
We respectfully hold the view that time should run from the time of arrest. Indeed, one bears very much in mind the words of the noble and learned Lord, Lord du Parcq, in Christie v. Leachinsky, when he said that arrest was the beginning of imprisonment. Therefore, we say that time should run from the very moment when arrest takes place in the police area in which the offence is being investigated. We say that time should run from the moment of arrest.
However, we acknowledge that this could lead to serious difficulty in certain cases where the arrest has to be made outside a police area where the investigation is taking place. In those instances where an arrest has to be made outside the police area—perhaps at some considerable distance away or even in another part of the United Kingdom—serious inconvenience to the investigation might result from an obligation to bring a person arrested before a magistrates' court for authorisation of further detention at a time 36 hours from the time of arrest.
However, we can see no good reason why time should not run from the time of arrest in one third of the cases set out; namely, where the arrest takes place in a police area where the offence is being investigated. We accept that this solution is far from ideal but it will deal no doubt with the vast majority of cases, and the suspect in such cases will have the benefit of the protection of a detention provision immediately upon arrest. Where a serious arrestable offence has been committed and further time is needed for the investigation of that offence, the police will of course be able to make application to the magistrates' court for a warrant of extended detention. I beg to move.
Lord Elton: The noble Lord is of course quite right to point out that a person who is placed under arrest loses his liberty from that moment and not from the time when he is taken into a police station. Nevertheless, I hope that I can explain to the Committee why the Government concluded that it was necessary for the detention clock to be started at the later point, even in the generality of straightforward cases to which the noble Lord referred.
The first point to make is that the Bill will impose wholly new time-keeping disciplines on the police. As the Committee will know, the only judgment of time that at present has to be made is whether or not it will be practicable to bring an arrested person before a court within 24 hours. In contrast, the Bill sets out a detailed sequence of reviews and limits. In many ways, it reflects current good practice in many police stations; but the obligations it places on the police to work with one eye on the clock and against the clock is wholly new.
Custody officers of police stations—particularly busy ones—will have to exercise continuing scrutiny on the progress of cases. It would present serious practical difficulties if there were not a clear and agreed starting point for the detention clock to run. Often, the exact time when an arrest is made will not be known—particularly in the case of situations involving public disorder. And although Clause 43(2) provides for a degree of approximation in relation to times, it would be thoroughly confusing if a number of persons arrested at the same incident and brought to a police station at the same time had personal detention clocks showing different times because some had been waiting in the police coach, following their arrest, longer than others.
The proposed amendment would undoubtedly lead to disputes about detention times which were not readily capable of settlement. Disputes would arise where persons were interviewed under caution but without being arrested. The amendment would also tend to undermine what we regard as the very important principle that the custody officer is personally responsible for the treatment of all persons detained at his station—including the provision of reviews of detention at the appropriate time and the release of persons at the appropriate time.
It is difficult to expect the custody officer to undertake that responsibility—which can of course have the severest disciplinary consequences—if the point at which it starts is outside his control, supervision and indeed knowledge.
In matters of this kind we should, rightly, be very careful about placing matters of administration above the liberty of the individual. But this is more than a matter of simple administrative convenience. The role of the custody officer is central to the safeguards underlying the detention scheme in the Bill—anything that undermines the effectiveness of his control would be against the best interests of the detained person. Moreover, in practical terms in the great majority of cases the difference between the time of arrest and the time of detention is likely to be so small as to have no significant effect on the overall length of detention.
In general, offences are committed locally and investigated locally. In the majority of cases the
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arrested person is taken speedily to the nearest police station. Clause 29, to which the Committee has agreed, allows for delay only where it is necessary to carry out immediate investigation into the offence concerned. Nor does Clause 29 in reality open up a large loophole in the regulation of detention. Subsection (3) of that clause requires an explanation of the reasons for delay to be recorded on arrival at the police station, and any abuse of the discretion will be readily checkable. The Royal Commission placed great weight on workability as a criterion of any legislative proposal.
Those are our reasons for opposing the proposals in this amendment. Having recited them, I should like to remind your Lordships of two further points. The first is that an identical amendment was rejected in another place. The second—which may carry rather more weight with noble Lords opposite—is that the Royal Commission itself recommended explicitly in their report that the time limit should begin to operate from the time of arrival at the police station rather than the time of arrest. We are in such good company, and with such good reason, I hope the noble Lord will not persist.
Lord Airedale: The Minister may be quite right in saying that in the majority of cases the time of arrest and time of arrival at the police station are not very different. But what about those other cases where the time may be very different? Suppose there is a disturbance and the police start arresting people and putting them in the police vehicle, and then the police have to remain at the place of the disturbance until they can quell it. Some of those people may be in that vehicle for a considerable time. Then there is the journey to the police station—and those two times are sometimes going to be some considerable distance apart. What we are dealing with here is a general principle that a person shall not be kept for more than 24 hours in detention without being charged. This is for the protection of the person, and not for the convenience of the police. The person does not care tuppence whether he is in a black maria or at the police station. It is just as bad for him. It may be worse for him to be in the vehicle than at the police station.
I should have thought that this principle ought to be strictly held to in the interests of the person for whose benefit it is laid down: that 24 hours without being charged means 24 hours from the time you are arrested.
Lord Elton: We were dealing with the generalities of cases, and the noble Lord has brought in a particular case. For the first part I should say that it is not the custom of the police to keep people penned up in vehicles for great lengths of time until it is convenient for them to move them. They certainly do have to wait until they have a sufficient number of people to move. That is why I said that there could be confusion if a batch of arrested people arrived at the police station, all in connection with the same offence, and had different individual custody clocks running, each one differing by a few minutes.

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The second consideration I ask the noble Lord to bear in mind is that indeed we are concerned principally with the protection of the rights of the arrested individual, who does not care tuppence about administrative convenience but does care fourpence, I would say, about whether or not the system works. The linchpin of the system is the custody officer. The noble Lord is suggesting the custody officer should have perhaps a dozen or fifteen people, each with a custody clock running a minute behind or in front of the next chap, all of whom have to be dealt with, as it were, at 60-second intervals at each stage of the review.
The third thing to bear in mind is that the custody officer, upon whom the person in whose sympathy the noble Lord is engaged entirely depends for the protection of his citizen's rights, would be asked to operate a system over the start of which he had absolutely no control and possibly no knowledge. The man would come in with a label saying, "10.331/2". Those are practical considerations but they have practical results.
Lord Elystan-Morgan: With the greatest respect, we on this side of the Committee do not take the same rosy view of the situation as does the Minister. Of course, in most cases the object of the exercise will be to take the suspect along to the police station as soon as possible.
Lord Elton: May I reinforce the words of the noble Lord? It is not merely the object of the exercise, it is a requirement under Clause 29(1). It is a legal requirement. It is not a question of when it is handy, convenient or fits in with the policeman's tour of duty. It is his duty to take him "as soon as practicable".
Lord Elystan-Morgan: I appreciate that. I was perhaps doing less than justice to the wording of that provision; although as I understand it there is no absolute sanction if there is a breach of that provision. I accept that in most cases—in the vast majority of cases—the suspect will be taken along speedily to the police station. However, there will be other cases when that will not happen, even when there is no question of taking the suspect outside the area in which the offence has been committed.
I give an example. Often police officers will turn up with a warrant for arrest and search in relation to stolen goods. Half a dozen officers will be searching the house. A detective-sergeant will be conducting an interview with the suspect. From time to time goods will be brought down to the back kitchen where the officer and the suspect are. The goods will be found in all parts of the house. As each item is brought down there will be a separate little interview regarding that particular item. It may be that the totality of those interviews will run to a couple of hours. That often happens in receiving cases. In those circumstances, is it right that the clock should begin to run only from the time that that person is taken to the police station?
We believe that there are some very real cases—albeit a minority, but often serious cases—that are outside the ambit of protection offered by Clause 29. Therefore, we beg the Minister to give this matter his urgent reconsideration.
Lord Elton: I have only one thought to add to your Lordships' minds at this stage, because I think I have made our position clear; that is, the faint irony of the position that the noble Lord has so often said that the code of practice does not give sufficient guarantee and that there should be a provision on the face of the Bill, but now that we have it on the face of the Bill in Clause 29(1) he is not satisfied by that either. I hope your Lordships will support me and not him in the Division which I think he is about to call.
Lord Morris: I am concerned that Clause 29(1) does not lay a duty on the police constable to take the arrested person to a police station as soon as practicable. It certainly does not say that. All it says is that,
"he shall be taken to a police station by a constable".
Is there any distinction between that wording and a specific laying down of a duty on the constable so to do, or have I totally misinterpreted this subsection?
Lord Elton: If the noble Lord has experience of police constables having arrested someone and handing him over to a person who is not a police constable to take him to the police station I shall be very interested to hear of it. The duty is quite clear that the person has to be taken with all practical speed to the police station and he has to be taken by a policeman.
Lord Elystan-Morgan: I am sure that I do not disappoint the noble Lord the Minister when I say that we have no intention of pressing the amendment to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114ZE not moved.]
10.9 p.m.
Lord Plant Lord Plant moved Amendment No. 114A:
Page 36, line 16, leave out ("at a police station").
The noble Lord said: Clause 39 quite properly seeks to limit the period a person is to be detained without charge and sets out various circumstances from when the period of 24 hours begins to run. This is clearly linked with Clauses 40 and 41. Looking closely at these provisions from a practical point of view, there are areas where problems can easily arise and which appear to have been overlooked by the drafters of the Bill.
For instance, police may be called to a factory where a burglar has fallen through the roof and is found lying unconscious. They may be called to a house where a man has killed his wife and has attempted to kill himself. He may be alive, but have serious injuries. At present such people would be taken to hospital under arrest and kept under guard until released. Clearly they would have been arrested, but it would be impossible to carry out the functions laid down in the Bill. The Bill must cater for those circumstances. It must not be left to the ingenuity of the police to circumnavigate the inflexible time limits in the Bill.
That argument found favour in another place and the clause was amended. Subsection (5), on page 36, is entirely new. If it is read together with Clause 111, which defines police detention, it appears that in the situation postulated above the period in hospital will fall outside detention for the purposes of the Bill. However, the noble Lord, Lord Elton, now proposes an amendment to Clause 111 on behalf of the Government. If it is accepted by the Committee, that would nullify the efforts already made by the Government to cater for the eventuality.
My argument has been clearly expressed. The gap which I seek to plug is the one where a person is taken directly to hospital from the scene of a crime, suffering from serious injuries. Subsection (5), read together with Clause 111, as it is proposed to be amended, would have the effect that a wrongdoer, who was unable to communicate for four days, unconscious and under police guard at a hospital, would fall within the provisions of the Bill for review of detention, release, and so on, after 96 hours. Such a situation is patently absurd. The Bill caters for the situation where a prisoner is taken to hospital from a police station. I suggest that, through a drafting error, the case of an injured person taken directly to hospital has been overlooked. To remedy that omission, the words, "at a police station", on page 36, at line 16 should be deleted. I think that we should do that in the true spirit of this revising Chamber. I beg to move.
Lord Elton: The noble Lord has referred to an amendment which I think has been taken off the Marshalled List, but we are nonetheless grateful to him for drawing attention in this amendment to an oversight on our part. It may, indeed, happen from time to time—not I hope more than very occasionally—that a person who is detained at a police station and is then taken out of the station for some reason falls ill or may be injured in an accident. If he has to be taken to hospital, it is I think clearly desirable that any time he spends there does not count towards the total limits on detention, in the same way as time spent in hospital does not count under subsection (5) as drafted if he is taken ill or injured inside the police station. If that were not the case, the police could find that they had run up against the buffers of 24 or 96 hours, as appropriate, without having had any opportunity to interview the suspect or otherwise investigate the offence.
I should therefore like to commend the principle of this amendment to your Lordships. I am sure the noble Lord will understand that we should like an opportunity to bring forward a Government amendment at a later stage to meet the point that he has helpfully identified. It may well be differently drafted, since it is, I think, likely that we shall want to build into the clause the requirement for the relevant custody officer to be informed of such a development, and there is no provision for that in the amendment. In the light of that undertaking, I hope that the noble Lord will feel free to withdraw his amendment.
Lord Plant: Yes; I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 115:
Page 36, line 22, leave out ("such time") and insert ("time while he is in hospital or on his way there or back")
The noble Lord said: This is a purely drafting amendment which replaces the expression "such time" in subsection (5) by a longer, but what is thought to be a clearer, form of words. The trouble with the expression "such time" is that it refers back to the time during which a person in hospital is being questioned, whereas of course what is meant is the time during which he is in hospital but is not being questioned. This is what my amendment clarifies. I beg to move.
On Question, amendment agreed to.
[Amendment No. 115A not moved.]
Clause 39, as amended, agreed to.
Clause 40 [Authorisation of continued detention]:
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 116:
[Printed earlier: col. 610.]
The noble Lord said: This amendment was spoken to with Amendment No. 110. As I imagine that the answer will be as unsatisfactory now as it was then, I do not propose to pursue it, but I should like to ask one question. It says here that,
"the detention of that person without charge is necessary to secure or preserve evidence … or to obtain such evidence by questioning him".
If he says, as he is entitled to, on arrest, that he is not going to answer any questions, or certainly not without his solicitor, is he entitled to be kept for 36 hours while nobody asks him any questions and he does not answer any? It seems rather foolish. I beg to move.
The Deputy Chairman of Committees (Viscount Simon): Amendment proposed:
Page 36, line 42, at end insert ("in the presence of a solicitor;").
Lord Donaldson of Kingsbridge: With respect, I am waiting for an answer. I am not going to press it. I am waiting for an answer.
Lord Elton: The noble Lord has formally moved his amendment.
Lord Donaldson of Kingsbridge: I am so sorry.
Lord Elton: Confusion reigns. I understand that the noble Lord has spoken to Amendment No. 116. He has moved Amendment No. 116. He has not spoken to amendment No. 119 which I expected him to do, which is a remarkably similar one.
What I am trying to grasp and I have not quite got is the question which the noble Lord has asked me specifically, because I had a wider answer than is necessary. The answer to his question, I can tell him, is that it will depend upon the circumstances and it will differ from time to time. I do not think that is going to give him much comfort.
Lord Donaldson of Kingsbridge: It is no comfort, but I will not pursue it now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs: I beg to move Amendments Nos. 116A to 116E. These amendments are part of the group of related amendments which I spoke to in the first place. They bring the duty of the police to keep parents—
Lord Elton: Would the noble Baroness give way? I am told she has not. I was going to ask whether that is what she meant, because she said she was moving Amendments Nos. 116A to 116E. As I understand it, the ones in between have already been taken with Amendment No. 114ZA. If I am right in that, the noble Baroness is speaking for a second time to some of them. I do not in the least mind what happens now because she has only to move one of them, anyway.
Baroness Ewart-Biggs: The Minister is quite right. I therefore only move Amendment No. 116A.
[Printed earlier: col. 648.]
The noble Baroness said: This amendment is still related to the other group of amendments which has the same aim of bringing the duty of the police to keep parents informed of the detention of their young people within the Bill and out of the code of practice. I beg to move.
Lord Elton: I can say at once that we agree with the principle underlying the amendments. Paragraph 16.2 of the draft detention code makes clear that parents must be permitted to make representations to the superintendent. I agree that the parents should then be informed of the superintendent's decision. I have no doubt that this would happen automatically, but we shall ensure that it is mentioned explicitly in the next draft of the code.
Similarly, paragraph 3.6 of the code makes clear that the parents of the detained juvenile must be informed of his right to legal advice as soon as they arrive at the station. We shall amend the code to ensure that, if present, they will be reminded of this right if the superintendent authorises detention under Clause 40. I hope that this specific undertaking will enable the noble Baroness to withdraw the amendment.
Baroness Ewart-Biggs: As I have previously stated, I am grateful to the Minister that this point has been included in the revised code of practice. It would, however, be our preference to see it in the Bill, rather than in the code of practice. I can see that the Minister is rot at all keen on that, and so we shall probably ponder gloomily upon it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 116B, 116C, 116D and 116E not moved.]
10.24 p.m.
On Question, Whether Clause 40 shall stand part of the Bill?
Lord Elwyn-Jones: This Question gives rise to examination of the provisions for detention without charge for the purposes of questioning a suspect. These provisions, in our submission, make a massive inroad into private liberty. The governing principle of common law is that a man is entitled to his liberty and may, if necessary, defend his own freedom by force; a good, notable statement of what the common law provides as a governing rule. We submit that the provisions in the Bill for detention without charge on suspicion for the purposes of questioning by the police are a massive interference with the right to keep silent; that is to say, the right of a suspect not to incriminate himself—a right that has existed since the days of the Court of Star Chamber. In our submission, this is in many ways the most serious aspect of the parts of the Bill with which we are in total disagreement.
The combination of long periods of detention, lack of timous legal advice and interrogation by police officers will render it almost impossible for suspects to stand on their right to silence. In his report into the wrongful conviction of Lattimore, Salih and Leyton in the Confait case, Sir Henry Fisher, drawing upon a decision of Lord Justice General Cooper, in the case of Chalmers in 1954, uttered persuasive words that I do not think have been mentioned in the debates on this Bill up to now, but which are of such sufficient importance for me to quote from them at a little length:
"In the eyes of every ordinary citizen, the venue"—
that is to say, the police station,
"is a sinister one. When he stands alone in such a place confronted by several police officers, usually some of high rank, the dice are loaded against him, expecially as he knows that there is no one to corroborate him as to what exactly occurred during an interrogation, how it was conducted, and how long it lasted. If under such circumstances cross-examination is pursued with the result, though perhaps not with the deliberate object, of causing him to break down and to condemn himself out of his own mouth, the impropriety of the proceedings cannot be cured by the giving of any number of formal cautions or by the introduction of some officer other than the questioner to record the ultimate statement. In the ordinary case, as many decisions now demonstrate, that statement if tendered in evidence at the trial will not be treated as possessing that quality of spontaneity on which our law insists, and its rejection, when tendered in evidence may, and sometimes does, wreck the prosecution".
Your Lordships will recollect that that arose out of the Confait case, in which innocent young men were all convicted of murder on the basis of confessions obtained in the fashion summarised in that report by Sir Henry Fisher.
The period proposed for the power of detention—up to 96 hours—is far longer than that allowed in any jurisdiction based upon the law of this country. At this time of night I will not give examples from the jurisdictions in Australia, New Zealand and other countries. It is a price far too high to pay for the only limited benefit that could possibly emerge from such a very long term of detention for questioning without charge. We submit that in this connection it is very significant that not only are these provisions bad in principle and an intolerable infringement on the rights of the subject but they are not effective and for all practical purposes will serve little use in the battle against crime.

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A survey conducted for the Royal Commission on Criminal Procedure in 1979 showed that less than 0·43 per cent.—in other words, less than one-half of 1 per cent.—of arrested persons were held for more than 72 hours; so that the lengthy periods may affect comparatively few people. However, as a judge has said of the figures: "The percentage may be tiny but we are concerned with people, not percentages". Lord Justice Donaldson, in the case of In Re Sherman and Apps, was the author of that very wise statement.
The fact that so few people are detained for so long—in the metropolitan police area, in the last quarter of 1983, no one, in fact, was detained for 96 hours—raises the whole question of the necessity for that detention and shows that certainly it would not be an unbearable burden for the courts to have more judicial control over the detention. Our submission is that these excessive provisions are unjust and inequitable and an interference of an intolerable character with the liberty of the subject, but with the additional disadvantage that for practical purposes they are ineffective.
There is much more that could be said about this part of the Bill, but in many ways it goes to the crux of the criticism that has been made against the Bill that here it has far and away exceeded the powers necessary for the police, and done so in a way that, if this becomes the law, will be the source of great mischief and of great conflict between the citizen and the police, and in so far as we are concerned with the battle against crime, will be counter-productive.
Lord Hutchinson of Lullington: As far as we on these Benches are concerned, our view is firmly that if this power, which earlier this afternoon was endorsed by the Committee—this power to interrogate persons in police stations when they have not been charged, in order to get them to incriminate themselves, so that they may provide evidence against themselves—is to be granted to the police, then that interrogation should be carried out only if the person has a legal representative. That is our view and as that matter has not been accepted by this Committee we are root and branch against this clause which enables people to be kept not only for 24 hours but for far longer periods.
This is yet another example in the Bill of first bestowing an unobjectionable right upon the individual and then, a little later in the Bill, adding a provision which in reality destroys what has been granted. We have seen it stated that: "you shall be entitled to legal advice": "you shall be entitled to have a friend told if you are incarcerated in a police station"; and "you are entitled to have a solicitor at an interview". All those rights can be delayed, taken away and refused. It is laid down that a contemporary note shall be taken of an interview with a police officer. That can be deferred. It is laid down in the Bill that the intimate samples can be taken only by doctors, but then you find that they can, in fact, be taken by police officers. Here the principle is laid down that: "you shall not be kept in a police station for more than 24 hours": but when you turn over the page you find that that also has been taken away from you and the period can be extended for up to 96 hours.
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I am afraid that that is what has happened in this Bill over and over again. In my submission it is a mockery of the civil liberties side of the Bill. There are so many good things in it. So many things have been done which needed doing. So many good principles have been established and so many rights given, only to find over and over again that at the crucial moment they are taken away and once again we have what we have been fighting against year after year—you have to caution people; you have to give them their rights; and then you find that they are taken away in some section of the Judges' Rules, in some judgment by some judge, and so on and so forth. Here was the opportunity once and for all to establish these rights so that they cannot be removed. Once again we find the provision that the 24 hours are to be extended in this way. We are totally against this clause.
Lord Denning: I hope that your Lordships will let this clause stand part of the Bill. It is certainly a most important provision. We are altering the common law; but this concept of police detention is, to my mind, essential in modern society in order to be able to investigate cases properly and eventually to bring the accused to justice. These investigations cannot be satisfactorily conducted if the man is allowed out. There is the danger that he will get in touch with accomplices or even innocently through a solicitor that he may get his hands on the money which has already been stolen. These new provisions are subject to many safeguards. All the reviews are by a custody officer or by a superintendent—as here—and others, and eventually by the courts. It is an important new provision, but it seems to be essential in modern society for our protection against criminals.
Lord Monson: I wonder if the noble Lord, Lord Elton, could tell us whether the Government have given any consideration to the possibility of paying compensation to innocent individuals who have been detained for long periods of time and who have then been released without any criminal charge being preferred against them. If some such provision were inserted into the Bill, Clause 40 might be a little less objectionable than it is at present. Is there not some provision in the Prevention of Terrorism Act for paying compensation to innocent people detained under similar circumstances?
Lord Elton: I listened with some surprise to the noble Lords who moved and seconded—if that is the right term—the Motion and with some relief to the noble and learned Lord, Lord Denning. Clause 40 is the clause which extends the power to detain from 24 hours to 36 hours and immediately afterwards brings it into the purview of the court. So when the noble Lord, Lord Hutchinson of Lullington, says, "Here is a secure right which is swept away when you turn the page", he is himself sweeping away the magistrates sitting in court, because he said that it was swept away and the person could be kept in detention for up to 96 hours. I must have misheard him and I shall revert to Clause 40, about which we are supposed to be talking.
Lord Hutchinson of Lullington: I am so sorry, but I thought that we were dealing with Clause 40.
Lord Elton: So did I until I heard what the noble Lord said. He gave us a sort of pastiche of the Bill, saying that every time he found reassurance it was swept away on the next page. His catalogue went on, perhaps unintentionally, beyond Clause 40 to the provisions up to the 96-hour point. As the noble and learned Lord, Lord Denning, has said, the fact is that there is a need for police detention, and your Lordships have recently agreed on a Division that there is such a need. The Bill is concerned with the securities that apply to the detention.
The security extends from the moment of arrest. I have already recited it and therefore I shall only recapitulate it very briefly. At every stage there is an increase in the rank, seniority and experience of the person reviewing the question whether the detained person should he longer detained. We start with the custody officer who is a sergeant; we go on very shortly after that to the review officer who (if the person is not already charged) is an inspector; and with Clause 40 we arrive at a superintendent. The questions which the superintendent has to ask before he can authorise continued detention are numerous, pertinent and important, and reference has not been made to them.
The first question is: is this offence for which the person is to be detained a serious, arrestable offence? That brings in all the safeguards which we discussed in that distant first day of the Committee stage. He has to decide before that whether the detention is, in fact, necessary to secure or preserve evidence relating to an offence for which the person is under arrest, and if it is not, then the person has to be released. He has to ask himself whether the investigation is being conducted diligently and expeditiously, and if it is not the person has to he released. Only at that stage can he decide that the person should stay from 24 to 36 hours—that is 12 hours longer in which the police can pursue inquiries which may be of an immensely tortuous and difficult nature. Alibis will be produced which will have to be checked, and as we said in an earlier debate confessions may even be entered into which prove to be false, so a person may wrongly admit to a crime which he did not commit and it is necessary to check out that admission in order not to bring the inquiries to what would be an entirely fruitless result.
However, I do not think that I need go on longer because the noble and learned Lord has summed it all up for noble Lords with more authority and more experience than ever I could muster. I think it would blow a hole in this part of the Bill. It would be bad for justice and it would not protect the fundamental rights of the British people. It would merely make it more difficult for the police to bring to book those who so often and so malevolently threaten those rights by criminally assaulting them.
Lord Monson: Could the noble Lord answer my question about the possibility of compensation for innocent people detained for long periods of time and subsequently released?
Lord Elton: The answer is that if the detention has been lawfully carried out then the answer as to whether there would be compensation available must be no. The fact that a person might in the end prove to be innocent does not, I am afraid, entitle him to a cash handout.
10.41 p.m.
Lord Wigoder: The noble Lord the Minister has set out in very reasonable terms what are the safeguards provided by Clause 40. What he has not said in simple terms is what is the point of Clause 40. The reason for that is, I suspect, that if he were to be candid with your Lordships' Committee the reason for Clause 40 is the simple proposition that the longer you can keep a man in custody the more likely he is to crack. That is the simple proposition behind the whole of Clause 40, is it not?
Is it not a fallacy to believe that you are in fact going to get a genuine confession out of somebody if you can keep him in custody for longer and longer periods? The idea that the noble Lord the Minister has put forward that the point of Clause 40 is that you should keep somebody in custody for very long periods in order to be able to prove that his confession is false is standing logic entirely on its head. Is not all experience that the people who will make confessions after being kept in custody for 36, or 48, or 96 hours are not the professional criminals, but the inadequates in a police station who, after being interrogated for hours on end, are going to make confessions which turn out to be totally untrue? In those circumstances is not Clause 40 as it stands going to do far more harm than good?
Lord Elton: The noble Lord is doing me less than justice if he thinks that I am pleading that we should keep people in police custody an extra few hours before they come to the magistrates' courts in order to make them crack. I thought I might have said enough to convince your Lordships but clearly I have not. When you come to the magistrates' courts and the suspect is present with his solicitor, it is necessary to display a good deal of the hand of the investigating police. In some cases that can prejudice the success of the inquiry. There is a use to be had out of the extra hours that Clause 40 permits.
I shall not ask your Lordships to read yet again the provisions of the code of practice for keeping people in detention and the requirement there is for breaks for refreshments, and eight hours' sleep, and all the other conveniences for the suspect. We are not talking about the third degree, and bright lights in the eyes, and saying, "When did you last see your father?" until the person breaks down. We are talking about a carefully controlled process.
But there are other considerations. The requirement to hold an inter partes review at 24 hours would place a substantial new burden on the courts. In only a minority of cases, perhaps a quarter, would the 24-hour point fall when the court is normally sitting. If the police were forced to make applications for warrants for further detention in advance of that point, the total number of applications would be even greater than the 22,000 that the 24-hour point now leads us to suppose there would be. Many cases would undoubtedly arise in which the police, for good reason, would apply for a warrant where a detention without charge for more than 24 hours turned out in the event to be unnecessary.
Nor would these 22,000 extra cases be distributed evenly throughout the country. They would be concentrated in the major towns and cities where pressures on the courts are already substantial. Other

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cases in the list would have to be delayed at short notice. In many cases expensive special sittings of the courts would have to be arranged.
Those who would actually have to operate these arrangements, the magistrates' and the justices' clerks, have made it clear that large numbers of additional hearings would present substantial difficulties for them. The additional costs would be formidable. The difficulties would be particularly acute where a number of persons have been detained in connection with a single offence, or set of offences, and were all separately represented.
I hope that your Lordships will take due note of the fact that the Magistrates' Association has confirmed its view that the 36-hour review is both the appropriate and the practicable point for the courts to become fully involved in the review of detention. The advancement of the inter panes review would automatically reduce the period under Clauses 54 and 56, for which, exceptionally, delay of notification of arrest would be authorised. I hope your Lordships will also take careful note that it has been accepted by the Criminal Bar Association that on occasions even 36 hours might be too early. The case it had in mind concerned a kidnapping in which it was essential for the victim's safety that the fact that one member of the kidnapping gang had been arrested was not disclosed. The risks would clearly be even greater if the period were reduced to 24 hours.
If the point of application was not 24 but 36 hours as we propose, the numbers of applications would be very considerably reduced. I hope I have shown that we are not proposing this in order to grill people until they break, but to keep them under carefully regulated conditions. We are supported by the Magistrates' Association, the magistrates' clerks and the Criminal Bar Association in what we think to be the right level. I have, as it were, shrugged off the imputation that the noble Lord laid upon me that we were simply wanting to turn the bright lights on the suspect until he broke.
Lord Mishcon: I wonder whether I may follow immediately on the peroration of the noble Lord the Minister. I shall do so with much greater power if he is kind enough to listen to what I have to say.
I start by saying that I do not think this a subject which ought to be dealt with emotionally, although most of us may feel emotions about it. We ought to be able to deal with it rationally and with some clear thought. The noble Lord listed the number of associations in favour of Clause 40. I know how much the noble and learned Lord, Lord Denning, regards with respect the views of the Law Society, into whose problems he was kind enough to look when he was Master of the Rolls with great assiduity and with a great understanding of its experience.
Let me announce here and now that the Law Society is absolutely against Clause 40. It is against Clause 40 having reviewed the matter in its appropriate committee, which consists of lawyers who are skilled and experienced in matters of criminal law and practice. I am authorised by the Law Society to make that position abundantly clear.
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I said that we should approach this rationally and I shall try to do it in summarised form. Listening to the noble Lord the Minister—who has a powerful advocacy at his command and I sometimes think he is a great loss to the profession to which I have the honour to belong—one would never believe that as recently as 1980 there was a Magistrates' Courts Act. That Act provided that:
"On a person's being taken into custody for an offence without a warrant, a police officer not below the rank of inspector, or the police officer in charge of the police station to which the person is brought may, and, if it will not be practicable to bring him before a magistrates' court within 24 hours after his being taken into custody, shall, inquire into the case and, unless the offence appears to the officer to be a serious one, grant him bail".
Subsection (4) of that Section 43 reads:
"Where a person is taken into custody for an offence without a warrant and is retained in custody, he shall be brought before a magistrates' court as soon as practicable."
That was in 1980. One would not have thought, having heard the noble Lord the Minister—and, if I may say so with deference, the noble and learned Lord, Lord Denning—that Scotland decided in 1980 that six hours, as we have been reminded many times, was the maximum period for which somebody could be detained.
This section has been looked at by our courts. Again I am dealing with recent history. In 1980 it was looked at in the case of R. v. Hudson. The Court of Appeal held that "as soon as practicable"—those are the words in subsection (4) which I have just mentioned—meant something similar to the 24 hours mentioned in subsection (1). On the facts of that case, they said that the defendant should have been brought before the court at the very least within 48 hours of his arrest. In Rex v. Holmes, which I know my noble and learned friend Lord Elwyn-Jones quoted because that is the ex parte Sherman and Apps case in 1981, subsection (4), to which I have just referred, was said to be unequivocal and imperative in its terms; and, on the authorities, points unmistakably to a period of 48 hours as being the maximum period of detention, whether that is by the police, by the courts or by anybody else. So that is 1980 and 1981. What has changed?
Lord Elton: I will tell the noble Lord what has changed. What has changed has been the code of conduct. What has changed has been all the rest of the provisions in the Bill. That is what has changed.
Lord Mishcon: When the noble Lord the Minister becomes passionate, I know that I must be right because only the fact that he is in some difficulty would lead such a calm personality into such passionate utterances.
What has changed, we are told, is that we have got a code of practice, and what has changed are the provisions of the Bill. I am not quite sure whether I understand that. Since we are criticising the provisions of the Bill it does not seem to me to be such a magnificent point to say that what has changed are the provisions of the Bill. We are just deciding whether or not the provisions of the Bill should be changed.
What are we really dealing with? We are dealing with 24 hours of detention. Who is the person who can extend it to 36 hours? Not an independent person at

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all. Still the police—it is the superintendent of police. That is not an independent judgment. It is still the police. Without in any way being in the slightest degree critical of superintendents of police and inspectors of police who, by and large, are the greatest body of people that any police force in the world has—I immediately say that—let us be realistic; what busy superintendent of police is going to say on a report being made to him, "Please, we require up to 36 hours; we have gone for 24. Could you please give us another 12 hours?"—what superintendent of police in what type of case is going to say, "No, I am not satisfied. I disagree with the inspector in charge of the case. Release him at once"?
Let us be realistic. At the end of 24 hours, what is to stop a magistrates' court being able to look at the question of the freedom of the subject? That is what we are talking about. When the noble Lord the Minister starts talking about overcrowding the list and overburdening the magistrates, may I remind him that his own case was that the evidence before the Commission and the evidence before everybody else is that no more than 1,309 suspects were brought during the third quarter of 1982—that is 1.6 per cent. No more than that number were detained for more than 24 hours without charge. What a ridiculously small percentage of cases would come before the magistrates throughout the kingdom if we said, "No more than 24 hours, and it is the courts that must decide if a detention is to last longer than that". Clause 40 does us no credit at all.
Lord Elton: I think the noble Lord was quoting me. If he was quoting me, he was quoting my figures from the Metropolitan Police. The national figures would be about 22,000. That is a crowd on the list.
Lord Mishcon: I am talking about the metropolitan area which we all know is the one, quite obviously, where there is unfortunately, a concentration of crime. I am talking about the concentration. It would not be much for the courts of the metropolis to deal with—I know the noble Lord the Minister was trying to defend areas where there is a pattern of crime, and I was trying to tell him that I thought that that was not a very judicious or a very diplomatic course. But obviously we are talking in terms, throughout the kingdom, of something that would be a very small burden indeed upon the magistrates' courts.
What is the advantage of having revised figures in Clause 40? The advantage is—and I say this quietly and not with the passionate voice of the noble Lord the Minister a moment ago—that what we would be doing is doing our job. For the first time we are making laws in regard to this and getting out of what the Phillips Committee decided was the pretty awful mess of our then laws of detention. We would be acting justly; we would be acting with proper regard to the liberty of the subject. This Chamber has always been a guardian of that liberty. It has the opportunity of doing it now in voting against this clause.
Lord Elton: In reply, I will tell the noble Lord only one thing. When I speak with passion I speak with passion because I believe that I am right. The noble Lord asks your Lordships to bring 22,000 cases into
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the lists, which are already choked and which already result in people being kept in prison on remand, in custody, for longer than we should wish. He wants to add 22,000 cases to that list and to prejudice the police inquiries by revealing in court the direction of their inquiries twelve hours earlier than necessary, all on the ground that he does not trust police superintendents to use the law as it is set down in Clause 40.
Lord Mishcon: The noble Lord the Minister is going now from passion to rhetoric, from rhetoric to drama, and from drama to a misrepresentation of what I said, although, I know, innocent—I repeat; although, I know, innocent. The noble Lord the Minister can waggle his head. I said, "although, I know, innocent"; and I have made it perfectly clear that I have nothing but admiration, as have all my noble friends, for the police force and their various officers. I have nothing against the superintendents. I did not suggest that they would break the law. I said that from a practical point of view we all know that it is scarcely likely that, being asked to extend for twelve hours, they would refuse. That is a perfectly human, polite remark to make, and it must not be distorted.
10.58 p.m.
On Question, Whether Clause 40 shall stand part of the Bill?
Their Lordships divided: Contents, 68; Not-Contents, 46.

DIVISION NO. 4

CONTENTS

Airey of Abingdon, B.

Greenway, L.

Allen of Abbeydale, L.

Hailsham of Saint Marylebone, L.

Avon, E.

Bauer, L.

Halsbury, E.

Bellwin, L.

Home of the Hirsel, L.

Beloff, L.

Kinnaird, L.

Belstead, L.

Lawrence, L.

Brabazon of Tara, L.

Lindsey and Abingdon, E.

Brougham and Vaux, L.

Long, V.

Bruce-Gardyne, L.

Lucas, B.

Caithness, E.

McAlpine of West Green, L.

Campbell of Alloway, L.

Mar, C.

Carnock, L.

Margadale, L.

Cockfield, L.

Masham of Ilton, B.

Coleraine, L.

Minto, E.

Cork and Orrery, E.

Morris, L.

Cox, B.

Mottistone, L.

Craigmyle, L.

Murton of Lindisfarne, L.

Crathorne, L.

Orr-Ewing, L.

De La Warr, E.

Plant, L.

Denham, L. [Teller.]

Renton, L.

Denning, L.

Saltoun, Ly.

Dilhorne, V.

Skelmersdale, L.

Donegall, M.

Stanley of Alderley, L.

Drumalbyn, L.

Swinton, E. [Teller.]

Elliot of Harwood, B.

Trefgarne, L.

Elton, L.

Trenchard, V.

Faithfull, B.

Trumpington, B.

Ferrier, L.

Vaux of Harrowden, L.

Gainford, L.

Vickers, B.

Gardner of Parkes, B.

Whitelaw, V.

Gibson-Watt, L.

Wise, L.

Glanusk, L.

Wynford, L.

Gowrie, E.

Young, B.

Gray of Contin, L.

687

NOT-CONTENTS

Ardwick, L.

McNair, L.

Attlee, E.

Meston, L.

Beaumont of Whitley, L.

Mishcon, L.

Bernstein, L.

Monson, L.

Birk, B.

Mulley, L.

Collison, L.

Nichol, B.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Donaldson of Kingsbridge, L.

Elwyn-Jones, L.

Rea, L.

Elystan-Morgan, L.

Rochester, L.

Ewart-Biggs, B.

Simon, V.

Foot, L.

Stedman, B.

Graham of Edmonton, L. [Teller.]

Stewart of Alvechurch, B.

Stewart of Fulham, L.

Grey, E.

Stoddart of Swindon, L.

Hooson, L.

Taylor of Gryfe, L.

Howie of Troon, L.

Tordoff, L.

Hutchinson of Lullington, L.

Underhill, L.

Jeger, B.

Walston, L.

John-Mackie, L.

Wigoder, L.

Kagan, L.

Winchilsea and Nottingham, E.

Kilmarnock, L.

Kirkhill, L.

Winstanley, L.

McIntosh of Haringey, L.

Resolved in the affirmative, and Clause 40 agreed to accordingly.
Clause 41 [Warrants of further detention]:
11.6 p.m.
Lord Elton Lord Elton moved Amendment No. 117:
Page 38, line 34, after ("relates") insert—
("(a) has been furnished with a copy of it; and
(b)").
The noble Lord said: It may be convenient to your Lordships if I speak at the same time to Amendments Nos. 118. 120, 123 and 127, which appear in my name on the Marshalled List:
Amendment No. 118: Page 38, line 34, at end insert—
("(2A) The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented, but wishes to be so represented—

(a) the court shall adjourn the hearing to enable him to obtain representation; and

(b) he may be kept in police detention during the adjournment.").

Amendment No. 120: Page 39, line 34, at end insert—
("(7A) The person to whom the application relates may be kept in police detention during the adjournment.").
Amendment No. 123: Page 41, line 1, leave out subsections (18) and (19).
Amendment No. 127: Page 41, line 28, leave out ("(12), (13), (18) and (19)") and insert ("(2), (2A), (12) and (13)").
All of these are essentially drafting amendments. The purpose is simply to restructure the clause so that it follows more closely the actual sequence of events. The only change of substance occurs in Amendment No. 118. Your Lordships will note that the present subsection. (18)(b), bestows a discretion on the court to adjourn to permit the person to receive legal advice. It has always been our intention that the court should adjourn for this purpose if the detained person wants legal advice but has not yet had the opportunity to receive it. Amendment No. 118 now says precisely this. In such circumstances, the court will be required to adjourn to permit the detained person to obtain legal advice. I hope your Lordships agree that this is a small but important improvement to the clause.
I wonder whether it would be appropriate for me to anticipate Amendments Nos. 121C and 124.
Amendment No. 121C: Page 40, line 10, leave out ("be on oath and shall").
Amendment No. 124: Page 41, line 4, after ("copy") insert ("of the information submitted in support of the application').
I believe that they both have merit and I should like to undertake to bring forward further amendments at a later stage to deal with them. I do not intend to surprise the noble Lord, Lord Mishcon, by saying this, but they are grouped and they strike at the same part of the Bill. Furthermore, the noble Lord is after the same objective as are the Government
Lord Mishcon: That is very helpful. I believe that the noble Lord knows, although I should like to make it clear, that these are amendments recommended by the Law Society. I am delighted that the noble Lord feels that they are worthy of his consideration and that they may be accepted.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 118:
Page 38, line 34, at end insert—
(" (2A) The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented, but wishes to be so represented—

(a) the court shall adjourn the hearing to enable him to obtain representation; and

(b) he may be kept in police detention during the adjournment.").

On Question, amendment agreed to.
[Amendments Nos. 119, 119A, 119B, 119C, 119D and 119E not moved.]
Lord Elton Lord Elton moved Amendment No. 120:
Page 39, line 34, at end insert—
("(7A) The person to whom the application relates may be kept in police detention during the adjournment.").
On Question, amendment agreed to.
[Amendment No. 120A not moved.]
Lord Elton Lord Elton moved Amendment No. 121:
Page 40, line 2, leave out from ("hours") to end of subsection (10).
The noble Lord said: It may be for the convenience of your Lordships if I speak also to Amendments Nos. 125, 126, 121A and 121B.
Amendment No. 125: Clause 42, page 41, line 12, leave out from beginning to ("if") in line 18 and insert—
("(1) On an application made by a constable and supported by an information a magistrates' court may extend a warrant of further detention issued under section 41 above").
Amendment No. 126: Page 41, line 20, leave out from ("justified") to ("shall") in line 22 and insert—
("(2A) Subject to subsection (2B) below, the period for which a warrant of further detention may be extended shall be such period as the court thinks fit, having regard to the evidence before it.
(2B) The period").
Amendment No. 121A: Clause 41, page 40, line 3, leave out ("96") and insert ("48").
Amendment No. 121B: Page 40, line 3, leave out ("96") and insert ("72").
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I should point out that if Amendment No. 121 is agreed to, then the Chair will not be able to call Amendments Nos. 121A or 121B.
Lord Elton: I am grateful to the noble Lord for that intervention. The Committee will realise that other noble Lords will be speaking also to amendments which touch the same part of the Bill—and it is a central and important part. The Bill imposes a general limit on detention without charge of 96 hours. In certain circumstances, where a person is arrested in one part of the country and has to be transferred to another, the total time in police custody may exceed that figure; I shall deal with that point in a moment. But the introduction into law of an overall limit is a new safeguard against unnecessarily prolonged detention. It introduces certainty into an area of the law which the courts themselves have held stands badly in need of clarification.
Why 96 hours? Any figure is arbitrary to a certain extent, but our position, unlike that of the Royal Commission, was that there must be a concrete starting point and there must be some time limit on the power of the courts to extend police detention.
We considered that a scheme of detention that was open-ended—as the Royal Commission proposed—would not command public confidence. We chose 96 hours after considering the practical experience of the police and Customs and Excise in dealing with complicated and difficult cases involving major crime. We looked at cases in which prolonged detention had occurred and posed the questions; Could the investigation have been concluded more quickly? If so, how? We satisfied ourselves that in some cases, 96 hours would be necessary and we provided for that in the Bill accordingly.
On Report in another place, the Government's amendments were accepted, which limited the length of time for which any individual warrant or extension of a warrant could authorise detention to 36 hours. All the amendments I now move are consequential to those changes. The first removes superfluous words from subsection (10). The latest time a warrant may be issued is, by virtue of subsection (4), 42 hours after detention commences. The warrant may authorise detention for at most a further 36 hours. The Committee will see that such a warrant cannot therefore authorise a period ending later than 96 hours, and subsection (10)(b) is not needed. Similarly, all warrants issued under Clause 41 will necessarily expire less than 96 hours after the relevant time. Amendment No. 125 merely reflects this, while Amendment No. 126 improves the drafting of subsection (2).
If my Amendment No. 121 is accepted, I understand that Amendments Nos. 121A and 121B may not be called. No doubt the noble Lord, Lord Mishcon, will inform us whether he wishes to debate these amendments now or leave the points to be raised on the Question whether Clause 42 shall stand part. For the present, I simply beg to move my own amendment.
Lord Mishcon: I think that the latter course suggested by the Minister is the sensible one.
On Question, amendment agreed to.
[Amendments Nos. 121A and 121B not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 121C:
[Printed earlier: col. 687.]
The noble Lord said: In view of what the noble Lord the Minister was good enough to say, I do not propose to move this amendment.
[Amendment No. 121C not moved.]
Lord Elton Lord Elton moved Amendment No. 122:
Page 40, line 13, leave out ("grounds") and insert ("general nature of the evidence").
The noble Lord said: Subsection (12) specifies the information which must be given by the police in support of an application for a warrant of further detention. Among these, paragraph (b) mentions, "the grounds on which that person was arrested". On reflection, we consider that this left matters too vague. This amendment will replace it by "the general nature of the evidence on which that person was arrested". I hope your Lordships will agree that this is a better and more precise indication of the evidence which must be adduced in support of an application. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 122A and 122B not moved.]
Lord Elton Lord Elton moved Amendment No. 123:
[Printed earlier: col. 687.]
The noble Lord said: I spoke to this amendment with Amendment No. 117. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: Amendment No. 124 in consequence falls. I should perhaps explain that if Amendment No. 123 is agreed to I am unable to call Amendment No. 124. I cannot call Amendment No. 124.
Clause 41, as amended, agreed to.
Clause 42 [Extension of warrants of further detention]:
Lord Elton Lord Elton moved Amendments Nos. 125 and 126.
[Printed earlier: col. 688.]
Lord Elton: I spoke to Amendments Nos. 125 and 126 with Amendment No. 121. I beg to move.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 127:
[Printed earlier: col. 687.]
The noble Lord said: I spoke to this amendment with Amendment No. 117. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 42, as amended, shall stand part of the Bill?
Lord Mishcon: I promise the Committee to be very short in regard to this and I especially did not speak on Clause 41 stand part because I thought it much more sensible and I know the noble Lord the Minister will allow me to deal with the essential points of Clauses 41

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and 42 together. The whole point of our submission is that these periods are too long; that it is unnecessary to have as long a period as 96 hours; that the maximum should be 72 hours, and your Lordships have already heard the view that we have endeavoured to place before the Committee about the necessity of the courts coming into the matter at the end of 24 hours. On that latter point, your Lordships have divided.
I merely want to record our point of view. I have an idea that at this time of night it would not be very sensible to take this matter further, having had the debates we have, but the Committee will now be well aware of the view that we take of these provisions of the Bill. We accept them in principle. We think that the detail is wrong and it is a very important detail in regard to the number of hours.
Lord Hutchinson of Lullington: May I ask the Minister one question without taking up any more time, other than to say that we support what has just been said here? The question I want to ask arises from an article which appeared in The Times last Thursday, written by the Minister in another place, which was entitled, "Why we are sticking on 96", possibly a rather ill-advised article. What he said there is this:
"What happens in a long investigation? The police will certainly not put questions again and again until the suspect is prepared to make an admission, true or false. The Bill's procedures will simply not allow this. Any questioning after he has been brought before a court will require his cooperation. He will have an absolute right to see a solicitor, and to have him present during questioning".
Can the Minister explain, if that is what is so proudly being put forward for the last hours of interrogation from 24 to 96 hours, why the same privilege is not given to the person being interrogated during the first 24 hours?
Lord Denning: I say only one thing. In the case to which I referred earlier—that of Houghton—it was very nearly 96 hours. Unless there had been 96 hours there would not have been any ascertainment of the criminal or his eventual sentence. The 96 hours would seem to be about right.
Lord Elton: That is a sufficient answer to the noble Lord, Lord Hutchinson—
Lord Donaldson of Kingsbridge: It is a very interesting remark and we are all glad to have heard it, but is has nothing to do with the question asked by my noble friend.
Lord Elton: There are two issues here. One is whether 96 hours is too long and the other is whether there should be an application to the courts at 24 hours rather than 36, if I understood the noble Lord—
Lord Hutchinson of Lullington: The noble Lord the Minister has not understood. What has been said in the article is that during the period from 24 hours to 96 hours the person being interrogated will have the presence of a solicitor as of right and, therefore, the idea that he will be questioned over and over again in order to get a confession out of him is entirely misplaced. All I am asking is, if that is his absolute
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right for the last 48 hours of his interrogation, why should it not be an absolute right during the first 24 hours?
Lord Elton: I am obliged to the noble Lord for penetrating the obscurity which gradually descends around me at about this time of night. I reply to the noble Lord first—although he was not first to the box, as it were—by repeating what I said earlier. There are serious considerations why it may not be desirable to have a solicitor brought in to a suspect at an earlier stage. The mere fact of his arrival in the station and talking to the suspect may in itself be a signal which vitiates any further inquiries by the police and may, in fact, have very serious consequences—for instance, for a kidnapped victim. It is that sort of situation we wish to guard against. We think that it is necessary to provide 36 hours for that sort of situation to be met. If it cannot be met in that time then there is very great trouble, but we believe that there should be a safeguard at a fixed point. That is brought in at 36 hours when we also bring in the magistrates.
The noble Lord, Lord Donaldson, looks as though he wants me to go on with that point. I was about to go on to the next point about the 96 hours, but does the noble Lord wish to raise a point about the solicitors?
Lord Donaldson of Kingsbridge: As the noble Lord knows the Bill and the amendments so well he will realise that there is Amendment No. 146 which is our attempt to deal with this situation.
Lord Elton: I would rather not try to take that on board at this stage. Coming to the 96 hours, it was really for the noble Lord, Lord Mishcon, that I thought that the noble and learned Lord had provided a sufficient answer. I have a series of cases noted here of investigations which have taken considerable periods—some of them over 96 hours—but we think there should be an absolute limit and 96 hours captures virtually the whole range.
There are serious, complicated, conspiratorial offences, offences involving large numbers of people and movements over large distances and cases involving forensic inquiries which could not be properly disposed of in a lesser time, and it is for that reason that we have gone to that point.
I detect from what the noble Lord has said that he is merely putting a marker on the record, and I suspect that he will deploy his artillery at a later engagement. I think I shall reserve my fire for that occasion, too.
Lord Mishcon: I am sure that all the Members of the Committee will be relieved to hear that the fire is being reserved until the next occasion and will not go off at the present moment. Having said that, may I add a sentence? I know that the Government always feel that in their pursuit of these matters, and especially of what they call law and order—although there is no difference between us on the necessity to keep law and order—they are following public opinion. The noble Lord, Lord Hutchinson, referred to a recent article in The Times. May I refer the noble Lord the Minister to the Sunday Times of 8th January 1984? It recorded a recent MORI poll which showed that 65 per cent. of

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those questioned said that the police should not be able to detain suspects for more than 24 hours without charging them. As I know that the noble Lord always has regard for public opinion, will he between now and the Report stage meditate upon what I have said?
Lord Elton: It is not altogether necessary, because I have meditated already. I have reflected on the questions that were asked of the people who gave the answers to which the noble Lord has referred. If he reads those questions, I think he will agree with me that perhaps the figure is not such a condemnation of Government policy as he might care to say. I have all this written out at much greater length, and I have the reference here, but I shall not refer to it.
Clause 42, as amended, agreed to.
Clause 43 [Detention before charge—supplementary]:
11.27 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 127A:
Page 41, line 31, leave out ("this Part") and insert ("sections 41 and 42").
The noble Lord said: This amendment is consequential upon a previous amendment that I moved. I can deal with it very quickly indeed. In Clause 43(1) "magistrates' court" is defined for that part of the Bill. In fact, that definition does not apply to Clauses 44 and 47, and it is thought that the provision should restrict that definition of "magistrates' court" to Clauses 41 and 42.
Clause 43(2) provides:
"Any reference … to a period of time or a time of day is to be treated as approximate only";
and one asks what that means. In Clause 44(2) an obligation is placed upon the police to bring a detainee, after his having been charged, to court,
"not later than the first sitting after he is charged with the offence".
The first sitting could be a domestic or juvenile court. We assume that what is intended is that in that event the bench should reconstitute itself as an adult court.
I move this amendment as a probing amendment to obtain answers to those questions. I do not think it fair to ask the noble Lord the Minister to answer them now. As it is only a probing amendment, perhaps the most convenient course is that the Minister, having read what I have said in Hansard, may decide to write to me. On the other hand, he may do nothing of the kind and he may accept my amendment. I beg to move.
Lord Elton: The noble Lord must begin to get the message that those amendments which we are prepared to accept are those which he puts forward in the most hesitating, timorous and temporising manner. I am perfectly happy with this. There is no need for him to make excuses. We will accept it.
Lord Mishcon: I am most grateful. The only point is, I get so nervous when the noble Lord the Minister does something exceptional. The moment the message came over that he was going to accept it, it put me into a great nervous tension.
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Detention after charge]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 128:
Page 42, line 2, leave out ("36(6)") and insert ("36(7)").
The noble Baroness said: On behalf of my noble friend Lord Elton I beg to move Amendment No. 128. This amendment will correct a misprint in the Bill. If the Committee will refer back to Clause 36, on page 31, they will see that it is subsection (7) and not subsection (6) which makes provision for the transfer of juveniles to the care of the local authority. The amendment changes the reference to that subsection. I beg to move.
On Question, amendment agreed to.
Clause 44, as amended, agreed to.
Clause 45 [Bail after arrest]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 128A:
Page 44, leave out lines 21 to 39 and insert—
(" (a) where the person arrested is to be released on bail on his entering into a recognizance without sureties, it shall not be necessary to take him to a police station, but if he is so taken, he shall be released from custody on his entering into the recognizance; and
(b) where he is to be released on his entering into a recognizance with sureties, he shall be taken to a police station on his arrest, and the custody officer there shall (subject to his approving any surety tendered in compliance with the endorsement) release him from custody as directed in the endorsement.")
The noble Baroness said: Subsection 8(b) amends Section 117 of the Magistrates' Courts Act 1980, to permit what is known as doorstep bail. At present, if a magistrate issues a warrant for a person's arrest, which is endorsed for bail, the constable executing the warrant is required by Section 117(3) of the 1980 Act to take the person to a police station before bail can be granted and he can be released. This is inconvenient for both the person named in the warrant and the constable executing it. Clause 45 replaces Section 117(3) with a provision which permits the police officer executing the warrant to grant bail on his own authority without taking the person to a police station if the bail does not involve sureties.
Where sureties are involved, it is desirable that the person should continue to be taken to the police station so that prospective sureties can be contacted and their suitability assessed. However, in a straightforward case where a person is granted bail on his own recognisance there is no reason why this matter cannot be dealt with on the person's own doorstep, hence the term "doorstep bail". I beg to move.
On Question, amendment agreed to.
Clause 45, as amended, agreed to.
Clause 46 [Remands to police custody]:
Lord Mishcon Lord Mishcon moved Amendment No. 128AA:
Page 45, line 8, at end insert ("and he shall not be questioned by police while in such detention unless an application to do so has been granted by the Magistrates' Court.")
The noble Lord said: Clause 46 amends Section 128(7) of the Magistrates' Courts Act 1980. That act gives a magistrates' court power to remand a person into the custody of a constable for a period not exceeding three clear days, which really means five days in all. The amendments made to Section 128 by this clause have the effect of limiting that section by specifying that the purpose of such detention by the police is for the purpose of inquiries into other offences. The police's responsibility in relation to detained persons will also apply to a person detained following a remand into police custody by the magistrates' court, though there is to be no periodic review by the magistrates' court.
There is a danger that in the event of a holding charge being preferred, the defendant could be brought before the magistrates' court at, say, 26, 48 or 60 hours and remanded into police custody for three clear days. Thus could the detention limits and 36- to 72-hour reviews by the magistrates' court be circumvented.
It is not the fact that we seek the removal of this power, because in some parts of the country and, I am told, especially in Yorkshire, the opportunity afforded by local detention following the first appearance is used for solicitors to take instructions from the defendant. However, the power clearly needs hedging about in order to avoid the possibility of abuse such as that to which I have referred. We suggest that since the court has given the defendant into police detention, the court shall have to give its permission for any police questioning at this stage, and the role of the court would therefore be no less than it is before charge. It is on this that the amendment is based. I beg to move.
Baroness Trumpington: The provision in the Magistrates' Courts Act 1980 allowing three-day remands to police custody is of great help to the police in facilitating the investigation by the police of further offences thought to have been committed by a person charged with an offence, and frequent use is made of the provision by the courts in appropriately serious cases, as the noble Lord, Lord Mishcon, has mentioned.
I understand the concern that has been expressed about the possibility that the provision might allow the police to circumvent the limits on detention contained in the Bill, but I would suggest that this concern arises from a misunderstanding of the purpose of those limits. The time limits on detention before charge are intended to ensure that a person who would otherwise be at liberty is not detained indefinitely by the police for the purposes of an investigation. Different considerations altogether apply once a person has already been charged with an offence brought before a court in accordance with Clause 44 and the court decides to withhold bail. In such a situation, the only question is whether he is to he remanded to prison custody or police custody.
Once the decision to withhold bail has been made—and it is of course made according to the criteria contained in the Bail Act 1976 and not by reference to the provisions of this Bill—I really do not see why the court should not be able to remand the person to police custody, rather than to prison, if it is
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considered that this is needed for the investigation of other offences. No issue about time limits on detention arises, because if he spent three months in prison on remand, he could be in custody for that period without being charged with the further offences which the police were investigating. If the court does remand to police custody, this will be to assist in the investigation of other offences. Thus, any application to be permitted to question the prisoner would be automatically granted. A remand to police custody implies that the court considers questioning is necessary. I therefore see no reason to add the provision suggested by the noble Lord's amendment.
Lord Mishcon: I wonder whether the noble Baroness would agree that if the application would automatically be granted, there would be no harm in conceding the amendment. However, in view of the fact that she appears to have taken a line at the moment that the amendment is not necessary, I wonder whether I can ask her to review again what I have said, based on information and briefing given to me by the Law Society. I hope that she will at least look at the matter again so that we may avoid possibly having to deal with it next time.
Baroness Trumpington: The noble Lord and the Law Society do not dispute the fact that the facility for remands to police custody is still in common use, and is very useful to the police in appropriate cases. Clause 46 builds new safeguards and protections into the procedure. I cannot advise the Committee to accept an amendment which would in practice add nothing to those safeguards but would merely increase the attendant bureaucracy. The amendment would indeed be very odd because the police would not need the court's consent to question the person if he were remanded to prison rather than police custody. I see no reason for such an anomaly, and I therefore cannot advise your Lordships to accept this amendment.
Lord Mishcon: I asked the noble Baroness whether she was prepared to consider what had been said which she may not have realised beforehand, in view of the fact that I was representing the views of the Law Society. If she will kindly intimate that consideration will be given to my remarks, I shall take a certain course.
Baroness Trumpington: I shall kindly intimate.
Lord Mishcon: It is kindly accepted. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 agreed to.
Clauses 47 to 50 agreed to.
Clause 51 [Abolition of certain powers of constables to search persons]:
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne)The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne) moved Amendment No. 128B:
Page 47, line 19, at beginning insert ("Subject to subsection (2) below,").
The noble Lord said: I should like also to speak to Amendment No. 128D:
Amendment No. 128D: Page 47, line 25, at end insert—
("() Nothing in subsection (1)(a) above shall affect paragraph 6(2) of Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1984.").
Clause 51 repeals all provisions in existing enactments and abolishes all common law rules authorising the search of a person by a constable at a police station. The effect of these two amendments is to make a saving for the power of search in paragraph 6(2) of Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1984 in so far as that power may be exercised at a police station. No comparable power is available, I am told, under the provisions of Clauses 52 and 53. With that short explanation, I hope that your Lordships will see fit to agree to these two amendments. I beg to move Amendment No. 128B.
On Question, amendment agreed to.
11.40 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 128C:
Page 47, line 21, leave out ("of a person by a constable") and insert ("by a constable of a person in police detention").
The noble Lord said: This amendment limits to the case of persons in police detention the repeal of existing powers to search persons at police stations. The purpose of Clause 51 was to make it clear that all searches of persons detained at police stations would in future have to be conducted under either Clause 52 or, exceptionally, Clause 53. The particular purpose of paragraph (a) was to make it clear that Clause 52 replaced the powers of the police to search detained persons under common law. However, I am afraid that we have now realised that the terms of paragraph (a) are a little too sweeping. As drafted, the paragraph precludes the use of powers of stop and search at police stations.
However, this was never the intention. Indeed, since Clause 2(9) imposes new restrictions on the removal of clothing in public it may be that from time to time, if a person is thought to be carrying, say, drugs, and the police officer considers it necessary to remove the person's headgear for the purpose of a search, the nearby police station is the best place for this to be done. This amendment will permit this by making it clear that the powers to search conferred by the Misuse of Drugs Act 1971 and other, similar legislation are repealed, so far as police station searches are concerned, only in the case of a person in police detention at the police station; that is to say, a person who has already been arrested. I hope your Lordships will see fit to agree to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 128D:
[Printed above.]
On Question, amendment agreed to.
Clause 51, as amended, agreed to.
Clause 52 [Searches of detained persons]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 128E:
Page 47, line 37, leave out from ("officer") to ("and") in line 38
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and insert ("has authorised his detention and has reasonable grounds for believing that a search—

(a) will produce evidence relevant to the offence for which the person is detained; or

(b) is necessary to establish that the person does not have on him any article which could be used to cause injury to himself or others or which he might use to assist him to escape from police detention")

The noble and learned Lord said: Clause 52 deals with searches of detained persons. As it stands at present, the formulation in the Bill would enable a search of a person to be carried out for administrative purposes, so that the police could have a complete list of the suspect's property. It is suggested that that process may be necessary to avoid allegations of police planting, but we are not satisfied or clear that the effect of the draft, as it stands, would achieve this purpose.
The amendment which I move would restrict police searches, first, to cases where detention has been authorised; secondly, to cases where evidence of the existence of either weapons or articles useful for escape are reasonably believed by the police to be on the person. This is more or less the common law position at the moment; that is to say, a power to search where it is necessary for reasons related to the investigation or to a person's safety. It is a reasonable amendment which I hope the Minister will accept. I beg to move.
Lord Trefgarne: Subsection (2) permits a person brought to a police station under arrest to be searched to the extent that the custody officer considers necessary to enable him to ascertain the property the person has on him. This amendment would narrow the scope of this power and also seek to base it upon an objective test. May I deal with that point first? In our view the correct test in these circumstances is the bona fides of the custody officer's belief rather than the existence of reasonable grounds. We are fully aware that the Bill modifies the present common law in this respect, as the note on the clause explains.
When a person is brought to a police station under arrest it would be most unlikely that the custody officer has reasonable grounds for believing that he has on him any specific article. The custody officer may well never have seen him before and know only what the arresting officer has told him. As I am sure the noble and learned Lord will confirm from his own practical experience, the standard practice is for the custody officer to ask him to empty his pockets so that a record can be made of his property. A search does not necessarily take place and, indeed, the draft code of practice provides new safeguards against unnecessary strip searches.
As the note on the clause explains, we take the view that it is essential for the custody officer to know what property a person has on or with him from the outset, and that while in some circumstances he may not consider that a full search is necessary, he should have the discretion to order a search on the basis of something less than reasonable grounds. The situation is, therefore, quite different from a stop-and-search under Clause 1 where reasonable grounds are an essential safeguard. In this situation, where the police have a clear responsibility to guard the person and for his well being, a lesser test is appropriate.
There have been too many cases where evidence has been secreted and too many cases where detained

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persons have injured themselves or attacked officers for us to seek to limit the ability of the police to search those in their care and custody. The present common law, which requires the existence of reasonable grounds related to the likelihood that a person is concealing articles which would constitute evidence or be used as weapons, imposes too severe a test for custody officers, particularly custody officers at busy police stations at busy periods. It is not, I think, observed in practice for very good reasons. The police will err on the side of caution by searching, and rightly so. They will be all too well aware of cases in which articles have been found taped to the body or hidden between the toes or stitched to clothing. The restrictions on intimate search contained in Clause 53 make it all the more important that the discretion to search under Clause 52 is not impaired. I hope that, with those considerations in mind, the noble and learned Lord will see fit not to press his amendment.
Lord Elwyn-Jones: At this hour I do not wish to press the amendment. I shall examine carefully what the noble Lord has said. There ought to be as many reasonable limits as are possible to limit searches of a person, whether in custody or not. I had hoped that our sensible amendment would meet the real needs of the situation. But we shall look at it again. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 129:
Page 48, line 18, after ("effects") insert ("including watches and spectacles").
The noble Lord said: We understand that it is not uncommon for police in circumstances of this nature to take away watches and spectacles. Subsection (7) says:
"A custody officer may only retain clothes and personal effects under this section—
(a) if the believes that they may be used by the person arrested—

(i) to cause physical injury to himself or any other person;

(ii) to damage property;

(iii) to interfere with evidence; or

(iv) to assist him to escape from police detention".

We want to include watches and spectacles so that every police constable knows that he has no right to take the spectacles or watch from a man or woman unless there is a specific way in which that man or woman might do damage to himself or herself or fall within the other categories given here.
The truth is that a person—a man or woman—who wears spectacles, as many of us do, knows how dependent he is on them, and it is a deliberate cruelty to take them away without a proper reason. We would not have put this amendment down if we had not heard that it was frequently done. This is not first-hand knowledge—it is entirely secondhand. But if it is frequently done, it ought not to be done. If we put these words into the clause the police constable or the police officer will have to make it perfectly clear how a man's spectacles were going to be used dangerously or how a man's wrist watch was going to be used as an offensive weapon. I think that this should have some effect on stopping the malpractice. Therefore, I beg to move.
Lord Trefgarne: As the noble Lord, Lord Donaldson, has said, subsection (7) of this clause sets out the criteria that must be satisfied before the custody officer may retain the clothes and personal effects of a person detained at a police station. The subsection makes it clear that such articles may not be taken and withheld from a detained person as a matter of routine, still less as a kind of punishment. I am sure that your Lordships' Committee will readily recognise however that the police frequently have to deal with dangerous or disturbed individuals who simply cannot be allowed to keep potential weapons with them when they are placed in cells.
The amendment moved by the noble Lord would introduce a specific reference to watches and spectacles into this subsection. I appreciate the underlying concern of the noble Lord, and I agree with him that watches and spectacles should not be taken from a detained person except in the circumstances envisaged in the subsection. The need for spectacles is obvious; watches too take on a new importance as a result of the system of timed reviews of and time limits on detention introduced in Part IV of the Bill. The codes of practice too are concerned with timings—of meal breaks, refreshment breaks, and so on. The Philips Royal Commission themselves made a point of noting that other than in exceptional circumstances a person should not be deprived of this watch. However, I hope to persuade the noble Lord that such articles are already covered by the present wording of the subsection and that his amendment is therefore not needed.
Watches and spectacles are pre-eminently "personal effects". If I were asked to give an example of what was meant by the expression "personal effects", watches and spectacles would be among the first articles to come to mind. It would of course be possible to include in Clause 52—or perhaps more appropriately in the detention code of practice—a specific reference to watches and spectacles, as has been proposed. But would this not raise the question of other kinds of articles? Should there not then be a specific reference to hearing aids, wedding rings, worry beads, rosaries, and a wide range of other items? I believe that once one starts trying to mention particular articles it becomes very difficult to know where to stop. For this reason I hope that the noble Lord will, on reflection, accept that there is little, if anything, to be gained by amplifying the reference to "personal effects" in the way he has proposed, but perhaps something to be lost in terms of brevity and clarity. In view of my assurance that watches and spectacles are personal effects, I hope that the noble Lord will feel able not to press his amendment.
Lord Donaldson of Kingsbridge: It is perfectly clear that watches and spectacles are personal effects; it is perfectly clear that they are covered by this clause. So far as I know, this clause has not existed until now, but there seems to be no doubt that this is something which is done on many occasions when it ought not to be done. I believe that it is important to overstate rather than to understate it in order to stop a malpractice. I shall go back and look at the evidence which, on the whole, as we have heard, is all over the place. Some

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of it may be refutable. However, if it is true that this has been done frequently without reason—and I believe that that is the case—then I think that I shall have to return to it on Report, because I do not think that the matter should be left. It is a means of persecution and it is not fair to leave means of persecution in the hands of people who may abuse them. This applies not only to the police but to anybody else anywhere. Therefore, I beg leave to withdraw the amendment but I reserve the right to come back on it.
Amendment, by leave, withdrawn.
11.54 p.m.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 130:
Page 48, line 19, leave out ("believes") and insert ("has reasonable grounds for believing").
The noble Lord said: I have tabled this amendment because I am simply wondering why subsection (7)(a) uses a different expression from the one which is used elsewhere in the Bill in relation to matters of this sort. We think that the subsection should read:
"if he has reasonable grounds for believing",
which is the normal phrase used in the previous clause, to which we spoke earlier, and throughout the Bill. The phrase "if he believes" seems to be slightly weaker. This is only a verbal question and I have no desire to press the amendment, but I should like the noble Lord to look at this. In this Bill it is unusual to use "believes" instead of "has reasonable grounds to believe". I beg to move.
Lord Trefgarne: I am prepared to make a long speech advising the noble Lord not to press this amendment, but perhaps I could just rely on a little personal experience in this matter. As the noble Lord will recall, I had some responsibility for deranged people when I was at the Department of Health—and indeed the affairs of one or two deranged soldiers come across my desk from time to time. I think that these are proper provisions. However, I am prepared to consider the matter further if the noble Lord will withdraw his amendment. If there is anything I can add I shall certainly write to the noble Lord.
Lord Donaldson of Kingsbridge: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 130ZA:
Page 48, line 28, at end insert—
("() (a) The clothing of an arrested juvenile may only be removed without the appropriate consent if an officer of at least the rank of superintendent authorises it.
(b) An officer may give an authorisation under paragraph (a) above if he has grounds for believing that the arrested juvenile may have concealed on himself an article which:

(i) could be used to cause physical injury to himself or others; or

(ii) might be evidence of the offence for which he has been arrested.

(c) The clothing of an arrested juvenile may only be removed in the presence of a person required to be informed of his detention under section 55 of this Act, or in their absence, another adult who is not a police officer, save where the arrested juvenile specifically requests that this be done in private.")
The noble Baroness said: The purpose of this new clause is to ensure that a juvenile can be strip searched only in exceptional circumstances. It also requires that an officer of the rank of superintendent should authorise the strip search in the cases of appropriate consent being withheld. Such authorisation should only be given where there are grounds for believing that the juvenile has concealed on himself articles which could cause physical injury to himself or others, or might be evidence of the offence. The amendment also requires the presence of an adult other than a police officer unless the young person asks that this should not be so.
I have already spoken about the general principle of ensuring the presence of an adult at a police station in the case of young offenders, and in this case such a presence seems even more necessary as a safeguard from abuse of this power. There have been cases reliably reported that strip searches have been used as a way of humiliating and harassing young people. Through making such searches possible only in exceptional circumstances, or in the presence of an independent grown up, then the risk of offending and alienating young people who have been brought in only on suspicion would be avoided. I beg to move.
Lord Trefgarne: The noble Baroness may not be surprised to hear that this amendment presents us with some difficulties. I share the noble Baroness's concern that the protection given to juveniles in police custody should be increased, and in various ways the Bill and its codes of practice all achieve this. But I cannot commend the amendment. It is not only impracticable but also unnecessary. It is impracticable because it would require the authority of a superintendent before clothing could be removed. There would have to be a superintendent permanently on duty at each police station in the country on hand to endorse the custody officer's decision to get a 16 year-old to take his jacket off, for example. Whether or not a search is necessary, and if so how thorough it should be, are bread and butter decisions for the custody officer and are properly his responsibility.
It is only when the question of an intimate search arises that a superintendent needs to be consulted and the Bill draws the line there for reasons which are obvious. The amendment is also impracticable in requiring a search involving the removal of clothing to take place only in the presence of a parent or other responsible adult unless the juvenile concerned asks otherwise. Clause 55 of the Bill, and paragraph 3.6 of the latest draft of the code of practice for the detention of persons by the police, require the parent or guardian of an arrested juvenile to be informed as soon as practicable of his detention and asked to come to the police station.
However, it may take some time for them to arrive and we also know that the police quite frequently find that the parents are out working or adopt, I am sorry to say, a "couldn't care less" attitude and refuse to come to the police station. The police would then have to get in touch with the social services department or some other responsible adult.
All of this takes time. We cannot, for example, expect the police to refrain from searching a juvenile

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with a record of violence, and known to have a habit of carrying a knife, until an independent adult can be found. Perhaps I have said enough to explain some of the difficulties. I could go on longer but I hope that the noble Baroness will be satisfied.
Baroness Ewart-Biggs: The amendment includes a provision that juveniles should be strip searched in exceptional circumstances, and they would be if the police suspected that they were carrying something, or that they were guilty of some previous crime. The rest of what the Minister said just showed that it would take rather a lot of trouble and it would not be very convenient. I feel that this is a bad reason for not taking a great deal of care and keeping those young people, who are not guilty of any offence but who are drawn in through the extra powers in this Bill, out of a police station. It is disappointing that the noble Lord has this negative approach. I beg leave to withdraw the amendment, and we shall think about it before Report stage.
Amendment, by leave, withdrawn.
Clause 52 agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 130ZB:
After Clause 52, insert the following new clause:
("Information to he provided to persons in police detention.
.When the custody officer authorises a person who has not been charged to be kept in police detention in accordance with section 35 he shall inform the person both orally and in writing—

(a) that he is entitled to refuse to answer any questions which are put to him;

(b) that he is entitled to have someone notified of his arrest in accordance with section 54 below: and

(c) that he is entitled to consult privately with a solicitor in accordance with section 56 below and to be accompanied by a solicitor during all police questioning.")

The noble Lord said: I move this amendment and speak also to Amendments Nos. 143 and 143A:
Amendment No. 143: page 52, line 38, after ("be") insert ("informed at once that he is")
Amendment No. 143A: page 52, line 39, at end insert—
("() It shall be the duty of the custody officer to inform a person of his rights under this section, both orally and in writing, at the time that he authorises the person's detention in police custody.")
Briefly, and before the noble Lord the Minister tells us, may I say that these provisions are all in the code of practice; indeed, at paragraphs 3.2 and 11. All we are saying is what we have said before, namely, that these matters are so vital for the suspect to know about in relation to his rights that it is our view that these matters should be in the Bill and not in any code of practice. That succinctly puts the point. I beg to move.
Lord Elton: The noble Lord has said, in effect, that what he said was right. I can only repeat what I said before, that what he said then was wrong. I have here a fairly impressive series of arguments. I will condense them. I will remind the noble Lord that police officers will disregard the requirements of the code at their peril because of Clause 64(7). I will remind the noble Lord that the approach adopted by the Government is almost exactly that proposed by the Royal Commission. I quote from paragraph 4.116:
"It will be necessary to use primary legislation for certain purposes, for example to alter the laws on evidence to effect the
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change we propose in respect of the voluntariness rule and some of the proposals that we shall be developing later in this section on how evidence obtained in breach of the rules is to be treated".
But the report goes on to say:
"The rules which will regulate the facilities to be provided for and the treatment to be accorded to suspects in custody and the code of practice which will govern the conduct and recording of interviews should be contained in subordinate legislation".
There is an air of familiarity about that. I recall that I have reminded your Lordships of it before. I see no purpose in repeating it. We both have our positions on the record. I am quite sure that ours is the right one.
Lord Mishcon: May I say, most modestly, that we are equally sure that ours is the right one. There is no point in repeating all the arguments. They have been advanced before; they are on the record and I think at this stage, therefore, the sensible thing for me to do is to ask for leave to withdraw. The noble Lord the Minister knows our views perfectly well.
Amendment, by leave, withdrawn.
Clause 53 [Intimate searches]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 130ZC:
Page 49, line 5, leave out from ("person") to ("may") in line 6 and insert ("whose detention in police custody has been authorised by the custody officer").
The noble Lord said: I should be grateful if with this I could speak to Amendments Nos. 132A and 136A:
Amendment No. 132A: page 49, line 11, at end insert—
("() An intimate search of a person in police detention may be conducted only—

(a) if it has been authorised in accordance with subsection (1) above: and

(b) if the appropriate consent is given.")

Amendment No. 136A: page 49, line 18, leave out from ("practitioner") to end of line 23.
The effect of amendment No. 130ZC would bring the Bill into line with the recommendations of the Royal Commission at paragraph 3.116 by requiring that the proper order should be, first, to decide whether or not there are grounds for detaining the person and, then, to decide whether an intimate search should he carried out. To do it in the other order smacks of Alice in Wonderland—sentence first and verdict thereafter.
The last two amendments would remove the most objectionable features of the clause, as we see it, namely, that it enables intimate searches of the most private body orifices to be conducted against a person's will by a non-medically qualified constable, who, under Clause 110, would have the right to use reasonable force in that exercise.
Lord Elton: I think it might save time later, although it may appear to waste it now, if I asked the noble Lord to stick to Amendment No. 130ZC, because we shall have quite separate debates on Amendments Nos. 132A and 136A and I shall be giving quite different answers to them.
Lord Elystan-Morgan: Certainly I accept that. I beg to move.
Lord Elton: Speaking only to Amendment No. 130ZC, I can tell the noble Lord that we accept the principle of this amendment. We believe that the right way to meet the point is by an adjustment to the definition of "police detention" in Clause 111 to incorporate the notion that such detention must have been duly authorised in accordance with Part IV of the Bill. This same point arises in relation to a number of the other clauses in Part V and we shall arrange to make these amendments at a later stage. We are grateful to the noble Lord for bringing it to our attention.
Lord Elystan-Morgan: Since I assume, there-fore, that it is not the amendment in its present form that will be accepted but the spirit of it, I am happy indeed, in those circumstances, to beg leave to withdraw.
Amendment, by leave, withdrawn.
Lord Plant Lord Plant moved Amendment No. 130A:
Page 49, line 9, after ("court") insert ("or which may be evidence of a serious arrestable offence committed by him or another person").
The noble Lord said: I have this amendment down, No. 130A, and I see that the noble Baroness, Lady Masham of Ilton, has put down Amendment No. 131. I am in some difficulty because I naturally support the amendment of the noble Baroness as well as my own. If I thought that the amendment of the noble Baroness was going to have greater success than mine, I would naturally withdraw mine, but I have had no reaction from the Government Front Bench. I think I ought to probe the Government by moving my amendment. If it is lost, I shall certainly support the amendment of the noble Baroness, Lady Masham.
We must consider an amendment to this clause to permit the police to search for evidence. The Bill allows an intimate search only for weapons or articles which could be used to cause physical injury, but if in the course of such a search some article of evidence is found, it may be seized. That is clearly inconsistent. Police experience teaches us that the variety of articles retrieved in the past from body orifices is legion, and to mention them all would be repetitious.
The use of body orifices as a place of concealment of incriminating evidence is more common than the general public may realise. A recent random sample among some provincial police forces during 1982 and 1983 revealed that more than 100 articles were removed from body orifices; articles as diverse as drugs, £200 in notes, a radio transmitter, explosives and a detonator. Another fear of the police service is that, on the passage of the Bill, it will very rapidly become common knowledge among the criminal fraternity that there are no powers of intimate search and body orifices will undoubtedly become a more common hiding place.
The need to conduct intimate searches, which the police accept, as so many others, is distasteful, is essential in combating ingenious and inventive criminals. Under the Bill as it is now presented, the following scenario is possible. A valuable jewel is stolen and is secreted in a body orifice by the thief. He is subsequently arrested on suspicion of theft and he
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says, "I stole it. I have it in my body. You can't search for it, and I shall deny that I ever said this." There is no evidence and the thief walks free under the Bill as it is worded at the moment.
My amendment would go some way towards putting this right. Some of these arguments did not find favour in another place, although the cynics might say that the argument was won but the vote was lost. Since that time, an amendment to Clause 2 to include "hat" under stop and search procedures has also not found favour. The importance of the rejection of these two amendments cannot be too strongly emphasised. The effect of the Bill as it stands can in all truth cause it in some places to be labelled the "drug pushers' charter".
I will not now develop all the difficulties about drugs, the entry of drugs into this country, the pushing of drugs and the evil people who do it. I am sure the noble Baroness, Lady Masham, would put this much more ably than I can.
Another vital aspect of the powers of intimate search which cannot be overlooked is the deterrent effect. The fact that it may be exercised is sufficient in the vast majority of cases to cause the offender to disgorge the articles. This is a very recent case. A female member of a professional team of jewel thieves operating in the West Country was arrested with her male companions after the theft of valuable jewellery. The stolen items were not on the persons of any of them. After certain enquiries, a detective told the woman that he believed she had secreted rings in her vagina and that he was making arrangements for a woman police officer to conduct a search. Almost immediately, two valuable rings were removed by the woman thief.
This is by no means a unique example and it shows the deterrent effect of the power of the police to authorise intimate searches. The police service urges strongly that your Lordships have a clear duty to the law-abiding public of this country to make the power available for intimate searches to be made in closely controlled circumstances. I beg to move.
Lord Renton: I should like to support the noble Lord, Lord Plant, who has fully explained the reasons for this amendment. It seems to me that the clause as it stands misses a necessary opportunity and I do hope that what the noble Lord has said will be heeded. While I am on my feet, I should like also to say that I think the amendment in the name of the noble Baroness, Lady Masham, has a great deal to commend it.
12.12 a.m.
Baroness Masham of Ilton: It might be useful for the Committee if I perhaps spoke to my amendment now, and then we could hear what the Minister has to say and the noble Lord, Lord Plant, will know what to do. I speak to Amendment No. 131:
Page 49, line 9, after ("court") insert ("or that he may have concealed on him controlled drugs")
Clause 53, as it now stands in the Bill, is not at all clear so far as drugs are concerned. This is a most sensitive clause, dealing with intimate searches. The All-Party Committee on Drug Misuse, who are

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concerned Members of both Houses of Parliament and from all sides, feel that the pushers of controlled drugs may find a very convenient loophole in this Bill if it becomes an Act of Parliament in its present form.
I have been told by the police that this Bill could become a drug pushers' charter. Up and down the country there are many worried, frustrated and horrified parents who have become aware that their children are on dangerous drugs such as heroin. There are worried health authority members who know that their resources are stretched and their expertise and facilities to cope limited. There are concerned teachers who, like parents, see young people ruining their lives; and there are housing authorities spending large sums of money to provide systems so that residents of housing estates have cards and barriers to try to keep the drug pushers out. There are young people seeing their friends die or succumb to addiction.
To me, the drug pusher is like the serpent who tempted Eve with the forbidden fruit in the Garden of Eden. The victims are often weak, adventurous or bored, and the pushers are greedy, cunning and evil. This growing affliction is becoming nationwide. We should protect our young people with legislation which would help to catch more of the ever-increasing number of pushers.
The customs officers have more ways of doing this than the police drug squads will have. At the moment, I am told, the morale of the police over this matter is not high. This is just what the drug barons want: low morale among the drug squads. It seems that we take a softer line over drug-smuggling than most other European countries. Pregnant women have been found taking drugs into Spain as they did not have to go through the X-ray. They will exploit any avenues. I think I am correct in saying that one can get over a kilo of heroin in the vagina. There are all sorts of ways of hiding things, in contraceptives and other devices. This is a convenient way of travelling with forbidden goods around the country.
In the case of heroin, surely the aim of prevention is of paramount importance as there may never be a cure once a person is addicted. The addict so often becomes a pusher himself, or turns to crime to get the necessary funds to procure his drugs which he cannot live without. No wonder that, for so many different reasons, many people are concerned over this escalating problem!
Since the Misuse of Drugs Act 197 I. the police have had the power to search people for drugs. If this Bill which is before us overtakes that bit of legislation, what are we doing? Are we not taking away an existing power—and now, of all times, when there is a drug epidemic? With this unclear legislation in Clause 53, we should ask ourselves: is heroin, or any other dangerous drug,
"an article which could be used to cause physical injury to himself or others"?
We all know that drugs like heroin do harm to the person who takes them, and also to others, but are they not substances? How would the police stand in court should an action against them be taken? It might open the way for technical arguments about the physical
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harmfulness of different drugs. Unless controlled drugs are clearly written into this Bill, there will be ever-mounting concern and frustration. It seems illogical to provide the power to conduct intimate searches by the customs service, which they now have, while denying it to police officers who have the responsibility of restricting the availability of controlled drugs which have evaded discovery by customs officers. I am keen that these searches should, whenever possible, be done by medical people; but we are discussing these amendments shortly.
There are many parents with teenage children who are desperately worried. There are parents of young children dreading the time when their children grow up to be teenagers, all because of this dreaded drug pestilence. If your Lordships do not agree to the spirit of this amendment, you may be giving the drug pedlar the chance of laughing in the face of the police and going on his lethal way: or the innocent suspect may be detained and held for long periods. Neither seems an acceptable solution. We are considering protecting life and health. The Royal Commission on Criminal Procedure recommended that intimate body searches should be given legal authority with the necessary safeguards. This amendment adds to Clause 53 controlled drugs which may have been concealed. The noble and learned Lord, Lord Denning, has given me permission to say that he supports this amendment.
Baroness Elliot of Harwood: As a member of the committee which the noble Baroness, Lady Masham, mentioned and which has just been set up, I had very little knowledge of this horror which is now striking us, and I am absolutely appalled by what is being discovered in our studies of this very disagreeable subject. I hope that the Government will take this opportunity to do something really strong and vital to stop it. The methods are a different matter which we can discuss later, but the fact that the drugs are now so prevalent in this country and so easy to get hold of is really shocking, and I hope that the Government will take the opportunity to do something in this Bill.
Lord Donaldson of Kingsbridge: I should be prepared to support both of these amendments if we had already passed our Amendment No. 133 and Amendment No. 134, moved by the noble Baroness, Lady Masham, but without them it is difficult.
Baroness Macleod of Borve: I agree entirely with the amendment of the noble Lord, Lord Plant. It is a wider amendment than the one proposed by the noble Baroness, Lady Masham of Ilton. On the other hand, she has covered perhaps a different but equally important point. As a former member for quite some time of the Parole Board, I know that a great many drugs, besides large quantities of jewellery and other articles, are brought into this country illegally in this way. Something has to be done to deter—and it is to be hoped to stop—this method of bringing drugs into the country. With the escalation in the use of drugs, I hope that the Government will accept these amendments. They might go some way towards deterring those who are using this method of bringing drugs into the country. Even the small amount of drugs that, by

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accepting these amendments, we might prevent from getting into the hands of the public will be of use.
Lord Monson: I am afraid that I cannot support my noble friend Lady Masham of Ilton in her Amendment No. 131, in that I believe that her amendment goes much too far, in so far as it includes soft drugs, like cannabis and amphetamines, as well as hard drugs. No question of punishment by imprisonment is normally involved in the possession of soft drugs; the offence is punishable by fine. To turn to the amendment moved by the noble Lord, Lord Plant, I believe that the power of intimate search proposed by the Bill is deeply distasteful to most people in this country. I feel that the majority of the public would prefer a tiny minority of criminals to escape justice rather than that these disturbing powers should be extended.
The Earl of Halsbury: I cannot agree with my noble friend Lord Monson on the subject of the difference between soft and hard drugs. The amendment speaks about "controlled drugs". The amendment says nothing about the difference between what is hard and what is soft. The words of the amendment should stand.
Baroness Gardner of Parkes: I wish to take up the point made by the noble Lord, Lord Monson. People find that these searches are distasteful. None of us would wish unnecessary searches to he carried out. Nevertheless, it is most important that the power for these searches should exist. To that extent I support the amendments moved by the noble Lord, Lord Plant, and the noble Baroness, Lady Masham of Ilton.
Earl Attlee: I personally am against intimate body searches, for various reasons; but, I am far, far more against anyone and anything to do with drugs. Therefore I have pleasure in supporting the noble Baroness, Lady Masham of Ilton, in Amendment No. 131.
Lord Renton: For the sake of clarity, may I point out that both of these amendments could be made. It is not a question of Amendment No. 130A being broader and therefore of including Amendment No. 131. Both amendments could be made.
Lord Elton: Your Lordships have argued persuasively about a matter upon which I share your Lordships' strong feelings. I should like it to be clear at the outset that neither I nor Her Majesty's Government are under any illusions about the gravity of the threat posed by drugs, hard and soft, to the fabric of our society. But let us analyse this for a moment. Under Clause 53, as drafted, the only circumstances in which a person in detention may be intimately searched without consent are those in which such a search is necessary to avert an immediate risk of injury, whether to the detained person himself or to those responsible for guarding him. That is what I call the protective power of search. The amendments would broaden this power. Amendment No. 130A would permit investigative, intimate search, the object being not to prevent injury but to obtain evidence of
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serious crime, and Amendments Nos. 131 and 132 would permit a search specifically for controlled drugs.
Your Lordships will know that when we reviewed the Bill's provisions during last summer we came to the conclusion that it was very difficult to justify the retention of the power in the previous Bill to search for evidence of a serious arrestable offence. We were clear that it was right and necessary to retain the power to search a person in custody for protective purposes; that is to say, to look for and remove an article which he or she could use to injure himself or herself or the police officers dealing with him or her. But after taking the most careful account of the serious criticisms expressed by the medical profession and many other groups, and reviewing the available evidence about the value of the power to the police in investigative terms, we came to the conclusion that, on balance, it was right to narrow the scope of this clause of the Bill.
It was a question of balance; and we were fully aware of the fact that a consequence of this decision would be that some evidence now available to the police might he lost. Against this, it was clear that the existence of the power, rarely used though it might be, involved placing at risk the confidence in the police of many sections of the community.
The starting point for consideration of this matter is, I suggest, that intimate searches themselves carry a risk of inflicting injury; and we are looking at questions of life and health, particularly in the case of pregnant women, in considering whether intimate bodily searches ought to be permitted for purposes beyond those of protecting the life of the people concerned. Therefore, it is highly desirable that if they have to be carried out at all, they should be carried out by a doctor. We shall be considering in later amendments the question of whether midwives should also he included, but the main point is that a medically unqualified person might cause serious injury in trying to remove articles concealed in a body orifice, particularly if the person concerned is not only unwilling to be searched, but physically resists.
The clear view of the medical profession is that a doctor should not carry out an intimate search without the consent of the individual, unless it is necessary to deal with an immediate and substantial risk of injury. If we are saying that this ought to be done by doctors, then we must listen to what the doctors say about to whom, and under what circumstances, it should be done. Indeed, we understand that some doctors would not be prepared to undertake compulsory intimate search even in those circumstances, which is of course a reason for retaining the reserve police power in subsection (8), which is intended to protect life and is for no other purpose.
It seems clear that doctors would not be willing to undertake searches without consent if the object of the searches was only to obtain evidence of crime. The effect of these amendments would in practice be that investigative intimate searches would have to be carried out by police officers. I hope that the noble Baroness and the noble Lord, Lord Plant, will carry that image in their minds.
A provision in the Bill which allowed intimate searches for this reason would have to be supported by clear proof that the evidence thereby obtained was

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vital to the prosecution of serious crime; so vital that it outweighed the risk to the health of the detained person (who might not be guilty) which an intimate search carried out by medically unqualified personnel would carry. While a number of cases have been brought to our attention by the police, I have to say that they do not constitute the proof that is required. Of the cases in which an intimate search yielded evidence of crime, there were few in which the loss of that evidence would have been critical to the prosecution case.
We recognise that there is a cost here in terms of the ability of the police to prosecute serious crimes. As I have said, in some cases evidence will be lost. We take very seriously the point that once it becomes known in the criminal world—and several noble Lords have referred to this—that there are strict limitations on the ability of the police to search body orifices, the temptation to secrete these drugs and other illicit articles will be that much greater. I fully acknowledge the force of the arguments on that point. The last thing we want to do is to encourage greater use of such secretion, hut I suggest to the Committee that it is not the case that criminals will be able to hide what they like with complete impunity.
In the first place, the retention of a foreign body in a body orifice, in particular, the mouth or rectum, for any period is not very easy to accomplish, and more natural methods of recovering a concealed article than a search are available and can continue to be employed. When the offence in question is a serious arrestable offence—which is what the amendment of the noble Lord. Lord Plant, envisages—it will be open to the police to apply for an extension of detention if this is considered necessary to allow nature to take its course, resulting in the expulsion of the concealed article.
What I have said so far applies also to the amendments proposed by the noble Baroness. These amendments go very wide. They would in principle permit an intimate search in order to recover a minute amount of cannabis, as the noble Lord, Lord Monson, has pointed out. I do not think that that is what the noble Baroness intends. The clause as drafted already provides for an intimate search where there is a real risk that concealed drugs might be taken, and thereby place life or health at risk. Of course, it has to be accepted that in some cases of the suspected concealment of dangerous drugs by dealers this will not be the case. But again it does not follow that nothing can be done. How a police surgeon or other doctor deals with a person thought to be concealing dangerous drugs in his body must be a matter wholly for his own clinical and ethical judgment; but I imagine that doctors will certainly wish to explain the serious health risks that are involved with a view to persuading the person concerned to agree to the removal of the article. It is only the final step of a compulsory search that the Bill precludes.
May I make it clear that the Government remain firmly committed to dealing as vigorously as possible with trafficking in dangerous drugs. The provisions of Clause 53 will not affect the ability of Her Majesty's Customs and Excise to undertake the intimate search of suspected drug smugglers at ports of entry into the
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United Kingdom. I hope that this will be a matter of reassurance to my noble friend Lady Macleod of Borve, because her thrice reiterated concern was with stopping these things coming into the country. The same protection will be available against the drug smuggler coming into this country after this Bill is passed as there is now, because it is not our intention that the repeal of the existing powers to conduct an intimate search contained in the Bill should be applied to customs officers under Clause 107. I think that that will probably take account of the noble Baroness's kilo of heroin. That is a very large quantity, likely to be in the first consignment, and it would be broken down to something a great deal smaller thereafter.
Our view of this difficult and delicate matter, which took account of the wide concern expressed about intimate search by many bodies and individuals, was overwhelmingly endorsed in another place. Our decision was, in the end, based on a fresh appraisal of the risks to the health of detained persons from search carried out by unqualified personnel as compared with the investigative benefits likely to flow from those searches. We concluded that, on balance, the power to carry out an intimate search solely for investigative reasons could not be sustained.
I should like to put that briefly into a wider context. The origin of this Bill was in part the Confait case and in part (was it not?) all the difficulties which led to a widening gap of sympathy between the police force of this country, on the one side, and the fringe of society, on the other. In these amendments we are concerned with searching for drugs of any sort that are controlled drugs, and that would in fact mean allowing unqualified people to search distressed females, wrongly suspected of carrying controlled drugs. The prevalence of that activity would be bound to undermine one of the principal intentions of the Bill, which is to restore the confidence of all people in the police.
Those are the reasons for which I have to ask your Lordships not to look so kindly on these amendments, which are founded on a concern which is real and. I think, passionate, and which it is apparent I share. We have to measure the benefits to society of two, here, sharply conflicting courses of action. I believe that it is right to restrain our hand from reaching for this power for which it yearns to deal with the drugs danger, because I believe that the dangers and the damage that would flow from it would be greater than those it would prevent.
Lord Plant: The noble Lord does not convince me in the slightest. He has made a long speech containing some statements which I should like to contest at some length, but at this hour I do not propose to do so. The noble Lord said that doctors do not wish to do this distasteful investigation. I accept that, but doctors are servants of the state. If we in Parliament write this into the Bill, they must undertake this duty if we so direct. Why should the police have to do it? They have had to do it up to now and they do not like it.
Lord Elton: Will the noble Lord tell the Committee how he proposes to force the doctors to do something to patients they do not want to do?
Lord Plant: I can only say that the information I get is that there are plenty of doctors prepared to help the police in this direction. The BMA does not represent all doctors.
Lord Elton: Will the noble Lord be kind enough to consult the BMA and other doctors' organisations, because he will obtain a different impression?
Lord Plant: I am advised by the three police trade unions that they have sufficient information from the doctors that they would be prepared to undertake this duty. They have not talked about this to midwives, which, of course, is something different. I still maintain that people who are employed by the state have to do rather difficult things.
The noble Lord said that it was perfectly all right for the Customs and Excise officers to do this search; or do they ask doctors to do it, who will be welcome to do it?—because the Government have said that in the Customs and Excise this investigation will be done to prevent drugs coming into this country. Therefore, at the ports we can have this investigation but when it comes to a person being picked up—perhaps following a tip-off after he has skipped through at Dover or Newhaven—and taken to a police station, he cannot be searched. It is cloud-cuckoo land so far as I am concerned.
I have not been convinced by what the noble Lord said. The noble Lord has said that the Government will vigorously oppose drugs coming into this country and being peddled on the streets, but they have a palsied hand when it comes to writing a definite clause into the Bill. The average citizen in this country will wonder greatly where is this vigorous attitude on the part of the Government to protect him.
We want confidence in the police but I do not believe that the Government will inspire that confidence if they continue to oppose this simple amendment. I should he perfectly prepared to withdraw my amendment in favour of the amendment of the noble Baroness, Lady Masham, but I feel that I ought to divide the Committee on my amendment to see what support the people of this country have.
The Earl of Halsbury: I am a trifle disturbed by the rather free use that the noble Lord the Minister was making of the word "investigative". There are ultrasonic methods of object detection which make intimate searching of an investigative character quite unnecessary. It is perfectly possible scientifically to establish that there is an object in whatever orifice of the human body it may be. The question of investigating to find out does not arise except by a simple method of applying ultrasonic means of object detection which are used in many cases in medical science for examining, for instance, the outline of tumours in the body, and so on.
The question for the BMA would then be whether a doctor would be prepared to remove a foreign body the retention of which would be contrary to the health of the patient. That would present an entirely different aspect from the standpoint of the medical profession and one to which they might very well consent. It would be very helpful if, bearing in mind what I have said, the noble Lord the Minister would agree to put
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this matter into cold storage while he takes a second look at it and perhaps put all these amendments together and bring them back on Report with a clearer picture of what is scientifically possible to remove the necessity for investigative search. There need be no search. There can be investigation, but not by the method of search. Thereafter, the question of removing a concealed object from a body orifice would not be an investigative matter.
Lord Elton: The amendment in the name of the noble Lord, Lord Plant, is entirely a matter of investigative search, as I understand it. It is a search for evidence. What the noble Earl has said is that there are scientific means of detecting some foreign objects that may be concealed within a person. He has asked me to ascertain what the position of the medical profession might be on the question of having them removed. I cannot anticipate what the answer to that might be. He has also suggested that the matter may be—I do not think that he said put on ice, which sounds rather uncomfortable under the circumstances—I forget what the phrase was—
The Earl of Halsbury: I think I did say that.
Lord Elton: I make no comment on that.
The noble Lord, Lord Monson, has in fact made it quite clear that if noble Lords were disposed to proceed down that path they would be very well advised to consider whether the amendment of the noble Baroness, Lady Masham, is not much more widely drafted that she would intend. I do not think that she intends searches for very small quantities of soft drugs. There is a distinction between soft and hard drugs, and there is a distinction between cannabis and heroin. I do not suppose that this matter is to be brought to a conclusion this evening, and of course we shall all wish to consider what others have said.
Lord Renton: I supported the noble Lord, Lord Plant, earlier with great sincerity. But having heard what has been said, especially by the noble Earl, I wonder whether I may make a plea to the noble Lord, Lord Plant, that we should all be given an opportunity to consider this matter further and to come back to it again at a later stage.
Baroness Masham of Ilton: I wish to say what I decided, before the others spoke, that I would do with my amendment. On Friday of this week the other place will be debating the subject of drug misuse. I have the greatest admiration of the Minister, but over this matter I think that he is being soft and feeble. I have to say it. I think that the lobby of the BMA was not very wise. It lobbied another place. I think I am right in saying that only half the doctors in this country are members of the BMA. After this little debate at 20 minutes to one in the morning, and the debate in another place, I think that the BMA may change its mind. I know that throughout the country there are many very concerned doctors who are beginning to understand what heroin addiction really is.
I should like the Minister to think very carefully about what it is like for young people to be in the last stages of heroin addiction. If he thinks that we are

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worried about little bits of cannabis, that is making an enormous mountain out of a molehill.
Lord Elton: I must intervene to try to put the noble Baroness right, because I have clearly misled her. There are matters to be balanced within this Bill. Your Lordships are here to balance these matters. There is no point in losing benefits from the Bill in pursuit of other benefits. The noble Baroness is pursuing something in such wide terms that I feel she is actually going to lose a great deal out of the Bill unnecessarily. Her concern is with heroin, cocaine and other things like that. If she is going to sweep up cannabis, she is going enormously to increase the number of the people who are searched intimately—inevitably, I fear, unless there is a great turn-round among the medical profession, by unskilled, or at least unqualified, people.
As a woman she will know what an offensive thing that is. Many of those people will be innocent of carrying any form of contraband at all, anyway. As a mother, the noble Baroness will know how deeply that will offend the people to whom it is done and how it will turn them for a lifetime away from law and order and the police. I cannot believe for one moment that that is what she wants.
If the noble Baroness wants to make the point about hard drugs, she cannot cast all this goodwill overboard at the same time. She would be quite wrong to pursue this now. If she was to come back with another amendment at another stage, having hopefully persuaded the BMA to change their tune, of course it would he a different question. However, the Committee would be quite wrong, and she would be wrong to pursue her amendment as it stands at the moment.
Baroness Masham of Ilton: I thank the noble Minister for that because I think that he and I truthfully want the same thing. I think it would be very wise of us to look at what everybody has said and come back at Report stage. That is what I intend to do. I thought that he might say that he might come back at Report stage with a Government amendment, because I think that is really what would be best. It would be best for the country.
Baroness Airey of Abingdon: If I may say so, noble Lords have spoken entirely about a drug this evening. I should just like to mention for one moment the question of poison. I do not know whether it has been established how Goering came to hide poison in some manner and for so long as a prisoner at Nuremberg. If someone can hide poison for themselves, they could hide poison for someone else.
Lord Elton: We shall be dealing with poison later. That is definitely something with which one could do considerable harm to somebody, and therefore it will be covered within the terms of the Bill. The noble Baroness urged me to come back to the House. It is extraordinary how everyone wants the Government to do their drafting for them on matters with which the Government do not actually agree. Of course, we shall read the debate with very great care. However, I just
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want to leave the Committee with this in mind, because some of your Lordships have ladyships and some of you have daughters. All of you must realise how deeply offensive it is to be searched in the sexual orifices of the body by somebody whom you do not respect and who does not respect you, who believes that you have committed a crime which you have not committed, when you cannot reach your mother and nobody has told you that this is likely to happen, when it was not part of growing up or the facts of life.
If this was let loose, as it were, in every police station in the country, as it would be under the amendments if they were not redrawn, then the police would themselves regret the damage this did to the otherwise considerable benefits which this Bill will do for them in improving their relationships with the community. I have probably said enough. Now I think we all have enough to think about.
Lord Plant: I would not want to press this Committee to a Division. I would hate to see the Government defeated at this early hour of the morning. Therefore, I give the opportunity to the Government Front Bench perhaps to ponder on what has been said from both sides of the Committee on this issue and perhaps to come back at a later stage, and we might also discuss it in the interim period.
Amendment, by leave, withdrawn.
[Amendment No. 131 not moved.]
12.48 a.m.
Baroness Masham of Ilton Baroness Masham of Ilton had given notice of her intention to move Amendment No. 132:
Page 49, line 10, after ("it") insert ("or they").
The noble Baroness said: As Amendment No. 132 is a technical amendment to Amendment No. 131, it is not moved.
[Amendment No. 132 not moved.]
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 132A:
[Printed earlier: col. 704.]
The noble Lord said: May I now move Amendment No. 132A and speak to I 36A at the same time.
[Printed earlier: col. 704.]
As the Committee will recollect, I was about half-an-hour ago, in my impetuosity, going to speak to these amendments with Amendment No. 130ZC. The effect of the two amendments is that if accepted by the Committee they would remove what we on these Benches regard as the most objectionable feature of this clause, Clause 53. That is, in certain circumstances it allows police officers, who are wholly unqualified, to make these intimate searches in the private orifices of the body and they are empowered by Clause 110 to use reasonable force so to do. It is believed that these amendments would remove the objection which the British Medical Association had to carrying out searches of persons who did not agree that those searches should be carried out.
It is true that there will still remain a minority of persons who will refuse to have searches carried out by doctors. In those circumstances, it seems that if the

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general provisions are to remain then they themselves will bear the responsibility for having these searches conducted by persons who are not medically qualified. I beg to move.
Lord Elton: I speak to Amendment No. 132A. This amendment would mean that no one could be subjected to an intimate search without consent. This would entirely defeat the object of the power to search, which, I remind your Lordships, is restricted to circumstances in which an intimate search is necessary to prevent death or injury. I shall be brief because the argument is simple. Let us take the case of the woman with a background of suicide attempts who was arrested on three separate occasions in 1981 for drunkenness offences. Each time a search revealed razor blades hidden in her vagina. The noble Lord's amendment would mean that such a person, suicidal and under the influence of drink, could not be searched until she had given her consent. This would not be a protection for the detained person, but quite the opposite.
It is essential to remember the whole time that Clause 53 is all about protection, whether of the detained person himself or herself or of others at the police station at the time. If your Lordships wish to see an increase in the number of deaths in police custody and violent assaults on police officers, this amendment provides a way for it. I am sure that this is not what the noble Lord intends. It is necessary to have this reserve power; otherwise, there will be more deaths.
Lord Morris: In considering this amendment, I beseech my noble friend to take seriously, as I think he intimated but which I should like confirmed, the wise words of the noble Earl, Lord Halsbury, with regard to the state of the art with ultra-sound techniques and modern X-ray techniques, because then the whole subject of search would go out of the window. It would become a problem of removal rather than of search.
Lord Elton: Of course, it is important to keep up with the state of the art. To have an X-ray machine in every non-designated station is not within the bounds of possiblity. There may be cheaper means which would be useful. These are often matters that have to be dealt with quickly when there is someone who is suicidal and who has concealed about them the means of self-destruction. It is important not to have to take them away to a distant place that has special machinery. But I have the point on board.
Lord Elystan-Morgan: These are extremely difficult questions. The noble Lord the Minister mentions the case of the person who does not submit to a search. Assuming, therefore, that no doctor would carry out that search, it has to be carried out by a police officer. The noble Lord gave the instance of a woman who had secreted razor blades into her vaginal orifice and who was suicidally inclined. I should not like to be a senior police officer who had to decide in that case which was the lesser of the two evils: either to carry out a search knowing there there was a high risk of injury and perhaps of death by the very fact of the search itself, or, on the other hand, to run the risk of not carrying it out. The instance the Minister has given bears out the very dilemma.
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I would make only this point. Parliament, from time to time, when it has had to interfere with the human body for a certain specific purpose, has gone out of its way to make sure that such interference would be by way of a properly qualified medical practitioner. One has only to think of the Road Safety Act 1967 and the taking of a blood sample for the purpose of ascertaining the level of alcohol in the blood. It would not have been impossible to have trained police officers to carry out that basic exercise, but Parliament did not for a moment contemplate that. The situation that we have here probably makes it necessary that searches should not be carried out save by properly qualified medical practitioners.
Lord Elton: Suppose they are not available. Do noble Lords suppose that the late David Martin would have agreed to have had his mouth searched and the knife found in it, or that he would have refrained from using it if it had been left in his possession?
Lord Elystan-Morgan: Without going into the greatest detail at this early hour in the morning, I would suggest to the Minister that there are other powers that could have been invoked. Indeed, there are common law powers that could have been invoked in those circumstances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Winstanley Lord Winstanley moved Amendment No. 133:
Page 49, line 16, at end insert—
("() An intimate search of the genital or anal orifices shall be by way of an examination by a registered medical practitioner.")
The noble Lord said: This amendment arises from the continued presence in this Bill of procedures allowing police officers to perform intimate body searches without consent in certain circumstances. I think I can say that during 40 years of medical practice there is no human orifice into which I have not peered at some time: thus, perhaps I can claim that my advice on intimate body searches is every bit as authoritative as was the advice of the noble and learned Lord, Lord Denning, on certain legal matters in connection with the Bill; and I hope that my professional advice on this matter will perhaps be heeded to the same extent.
I really have to echo some of the words which the noble Lord, Lord Elton, used when speaking to an earlier amendment. An intimate body search is not just a simple matter of inspecting an orifice. It is much more a matter of exploring the cavity to which the orifice leads. I assure your Lordships that that is a very different matter, which requires a certain amount of competence and experience, and, as the noble Lord, Lord Elton, very rightly said, carries with it certain risks and certain possible dangers; and in certain circumstances, in certain medical conditions, could carry very special dangers.
For a variety of reasons, I do not dispute for a moment the occasional need for such examinations of body cavities, but I share the view expressed so clearly by the British Medical Association. Perhaps I could tell the noble Baroness, Lady Masham, that it represents rather more than 70 per cent. of doctors, and not half. It is also the view of the General Medical

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Council, and, incidentally, was the view of the Royal Commission on Criminal Procedure, from whose report this particular Bill arose. The noble Baroness quoted the Royal Commission, but she did not go on to say that the Royal Commission said that intimate body searches should be done by qualified people, by doctors.
I have noted, of course, the amendment to my amendment, which is down in the names of the noble Baronesses, Lady Masham, Lady Macleod and Lady Ewart-Biggs, but I myself would regard that amendment to my amendment as entirely acceptable. What I am concerned about is that people carrying out these examinations should have the necessary experience and expertise. I am satisfied that, in the case of a female patient, a certified midwife would have that expertise, and on many occasions does perform those kinds of examinations professionally.
But what I am rather concerned about is why the Government resist this requirement that these examinations should be done by doctors. The noble Lord, Lord Elton, has given us some hints, and perhaps I can answer some of the points which he made in relation to an earlier amendment. No doubt he may have other objections, and later we shall come to those. First, it has been said that it might be difficult to get a doctor. Well, it might. But what on earth do the police surgeons do nowadays? I remember the time when police surgeons spent thousands of man-hours examining people—it was a very lengthy business—in connection with the old drink and driving procedure—a procedure which is now gone: that work is no longer done. At a later stage the police surgeons spent a great deal of time taking blood, also in connection with the legislation to do with blood alcohol levels. There is not very much of that done now. Surely there are doctors available to do these examinations, and if they are available they ought to be asked to do them.
In answer to an earlier argument, the noble Lord. Lord Elton, implied that, on ethical grounds, doctors might well object to doing these examinations without consent. We are not dealing here with the drug question; that is a separate matter which perhaps we shall he exploring on another occasion. We are dealing in particular with examinations performed in an emergency. Perhaps there is danger to the life of a member of the public, or of the person, or of the police, and an examination of a body cavity is carried out as a matter of urgent necessity.
I know that there have been arguments and discussions about this, but I am advised that the considered view of the British Medical Association's Ethical Committee and also the considered view of the General Medical Council—and I am very sorry that the noble Lord, Lord Richardson, is not with us and perhaps could have confirmed this point—is that, in the kind of circumstances which are envisaged in this Bill and which were explained so clearly a few minutes ago by the noble Lord, Lord Elton, doctors would not refuse to carry out these urgent examinations. Indeed a doctor who did refuse so to do might be regarded as being ethically and professionally negligent in having exposed people to danger by not doing it. But that is another matter.
Another argument might well be that this power to carry out this type of search without consent is a power that would very rarely be needed. If it will be needed very rarely and very rarely used, why have it? I do ask noble Lords to remember that it is inevitable—and I think that the noble Lord. Lord Elton, himself mentioned this—that an examination, a humiliating experience of that kind (and the noble Lord has said that it could be a humiliating experience) would of necessity from time to time be carried out on an innocent person. In addition, we must bear in mind, especially when we are considering matters to do with terrorism, that an immigrant lady from some eastern country in which terrorism is rife might be a very vulnerable person. Many of those people will be insecure people.
Has the Home Office learned nothing from the experiences of what happened at Heathrow in relation to examinations to establish virginity and other matters to do with wives coming into this country? That episode did our country a great deal of harm. If I may say so, it did not do a lot of good for the immigration service of the Home Office. It cast very serious doubts upon it. I believe that if the police—I am not talking about doctors—as police constables possess this power to carry out those kind of examinations without the consent of the patient, it could be very damaging in itself to police relationships and to attitudes towards the police by these vulnerable and perhaps insecure people.
I honestly do not believe that the police want this power. The noble Lord, Lord Plant, apparently said that they were all clamouring for it. That is not my experience from talking to police officers and police constables, both male and female, who have said that it is not a power that they want. This morning I talked to a very senior police officer indeed, and his view in relation to this particular matter—the sudden hiding of a weapon or something that could be a great danger—was that he felt that this was the type of matter which was now dealt with on a kind of ad hoc basis and would be dealt with by a policeman, Bill or no Bill, power or no power. It was his view that to try to put into statute law an elaborate code to provide for an emergency event of that kind really leads one down a very dangerous path indeed. I hope that we shall not retain in this Bill a power that gives the police the right to carry out examinations of that kind by force—because that is what it amounts to.
I do not want to go on any longer; we have had a long discussion on this matter. It is utterly clear that there are so many aspects to it and we shall need to return to it. We shall certainly need to return to the drugs question. I do not want to go into that now because we have passed it. But I certainly share the view that has been expressed that we must do everything possible to trace drugs and to make sure that they are not brought in improperly, whether they are brought in in body cavities or otherwise.
I merely say that the possession of a power by police constables to carry out intimate body searches by force without the consent of patients could be very damaging to the police and not helpful to the police. It is a power that would not have to be used very often. I believe that the medical profession and

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midwives—as has been suggested—could provide this service where it is necessary, and, if it is necessary, that is the way in which it should be done. I beg to move.
Baroness Masham of Ilion Baroness Masham of Ilion moved, as an amendment to Amendment No. 133, Amendment No. 134:
At end insert ("or, in the case of such intimate searches of women, either by a registered medical practitioner or by a registered midwife.").
The noble Baroness said: I believe that it is far more acceptable to anyone who may for some reason have to undergo an intimate search to have a trained medical person to do this. They do the job in a routine, practised way. Amendment No. 134 adds to Amendment No. 133 a registered midwife in the case of intimate searches of women. I believe that registered midwives could do this examination of the genital orifices of women just as well as a medical practitioner.
As we all know, many pedlars of drugs are women and I am still hoping that drugs will be included. The women might come from countries where an ethnic group's religion desires an examination of a female to be carried out by a woman. There would be more chance of getting a female if midwives were included. Many nurses, even if they are not working as midwives, hold the certificate of registration of midwifery, and midwives are generally more senior nurses. I think that ordinary SRNs could do the job, but they might not know their way around the vagina as well as the midwives, and that is why I include midwives.
For the sake of good relations with the police and the public, I strongly believe that it is desirable to have medically trained people rather than the police doing this intimate job, especially as senior police officers do not even have to keep up to date with first aid. I am told by constables that this is a sore point within the force. The police should only do the job in a life-or-death situation, and they carry out this sort of procedure when they deliver babies when there is no medically trained person within reach.
I welcome the fact that the Bill states that these searches can be carried out in hospitals, and I hope that they will he carried out in hospitals. It would be quite easy for the police escort to take the detained person to a casualty department or even a ward of a hospital to have the examination. Police officers are regular attenders at casualty departments on various duties. This job, which at times may have to be done for the safety and wellbeing of people, should be done with as little anguish as possible to all concerned.
I should like to add that the drug problem in Canada is in a terrible way and I am told that this is because the police have so many restrictions imposed on them. I am also told that in America the police and the public do not have good relations because the searches are not carried out by medically-trained people. How on earth does the Minister know if someone is travelling round whether he is carrying cannabis or heroin? That has just come to my mind. Until you have looked I cannot see how you can find out what that person is carrying. However, I should like to support the amendment of the noble Lord, Lord Winstanley, and add mine to it. I beg to move.
Baroness Trumpington: Before we continue, I should point out that I intend to speak also to Amendments Nos. 135 and 136A.
Amendment No. 135: Page 49, line 17, leave out first ("An") and insert ("Every other").
Amendment No. 136A:
[Printed earlier: col. 704.]
Lady Saltoun: May I draw the attention of the noble Baroness and the Committee to the fact that she said that it could be very upsetting for a woman to be searched by somebody who was not of the same sex. But subsection (6) of Clause 53 says:
"The constable carrying out an intimate search shall be of the same sex as the person searched.".
Baroness Masham of Ilton: That is when a constable does it. Some people from ethnic groups—and I think I am right in saying that it is the Moslems—want a woman to carry out the search, even if it is a doctor. That is why I added the reference to midwives—just to make more medically-trained people available for the women who desire women to carry out the search. I am forgetting about the constables because we do not really want them to carry out the search.
Lord Monson: Although emotionally I had more sympathy with the previous amendment, No. 1 32A, moved by the noble Lord, Lord Elystan-Morgan, I reluctantly appreciate the practical objections to it. As a compromise, therefore, I am happy to support the amendment so admirably and thoroughly moved by the noble Lord, Lord Winstanley, and as equally admirably modified by Amendment No. 134 moved by my noble friend Lady Masham.
1.10 a.m.
Baroness Ewart-Biggs: I can add little to what the noble Baroness, Lady Masham, has already said. I should like to support her in her amendment. Her addition of a registered midwife is important in this case from the point of view of the woman from a particular ethnic origin and because this seems to be the kind of task for which a midwife should be responsible perhaps more than anybody else, or any other member of the medical profession.
Lord Rea: I should like to support the noble Lord, Lord Winstanley, in this amendment, and the noble Baroness, Lady Masham. I would go further and say that a nurse should be allowed to do this. I do not think that it is the anatomical knowledge that is so important, but rather the ethical responsibility that is placed by the public at large in people in the medical and nursing professions. If you allow someone to invade the privacy of your body, it should be done by a professional group which has been given sanction to do it. This is the main reason why it should be restricted to the healing professions.
In the case of refusal of examination, if one of these professions was entrusted with the task of dealing with the situation they would be more likely to hold back and not immediately rush in. It would be the same as dealing with a hijacking situation, which the police in this country now manage so well; for instance,

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hijacking in relation to embassies. They would stay back for a while until the object required was given up or passed naturally. As the examination could be carried out in a hospital, as the noble Earl said, it should be possible to take the patient to a hospital and have further less intrusive methods applied in order to detect the object concerned.
The Earl of Halsbury: I should like to support the amendment of the noble Baroness, Lady Masham, as an amendment to Amendment No. 133. I regard the invasion of the body of an innocent person as a psychological outrage akin to rape. It can be mitigated only if it is done by a member of the caring professions, as opposed to a law enforcement officer. I would support the amendment of the noble Baroness by all means in my power. I fully take her point that a registered midwife, or possibly a state registered nurse, could be added to the provision made in Amendment No. 133. But all three of them, if one added the state registered nurse, are members of caring professions and the sense of psychological outrage being mitigated for an innocent person by being examined by a member of the caring professions is what matters and what we should all try to see ensues.
Lord Pitt of Hampstead: I am not so sure about all this. We are saying that we are agreeing that people should have their bodies invaded, and we are also saying that provided it is done by the caring professions, it is all right. Frankly, I do not think that it is right. It is wrong to humiliate people in the way suggested in the Bill. People should not be intimately invaded in the way it suggests.
I was hoping that your Lordships' Committee would say that they would not accept it. I am somewhat amazed that your Lordships are quite happy to accept it, provided that a doctor or a nurse is prepared and available to do it. It is wrong, quite wrong, to humiliate people in that way. I do not understand why we all sit in this Committee and agree that people should be dealt with in this way. It is quite wrong. I am surprised. I have sat and listened and am surprised that nobody has challenged the premise on which this is being done. It is the premise which should be attacked, not whether a doctor or a nurse should do this. The question is whether it is right that people should be humiliated in this way.
I am sorry, but we need to rethink our attitude to people. Do we really feel that it is right to humiliate people in this way? I find it difficult to accept that that is the way we are prepared to approach this matter. What do we care? Many talk about drugs, of course. Do we really gain very much by agreeing that people should be dealt with in this way? I find the whole approach difficult to understand because what we are doing is to humiliate a large number of citizens in order to find the one or two who are carrying things of which we disapprove.
Is it really in keeping with the basic principles on which this society exists? I cannot really believe it. I have listened to what has been said in defence because I find this difficult to accept. The argument is not whether it should be a doctor to do it. I understand that the profession takes the view—and I hope it sticks
724
to it—that people should not be intimately examined except with their permission. I was brought up to accept that. I accept it and I hope that that is still the position in the profession.
Under this Bill people are to be subjected to intimate examinations against their will, but all we hear tonight is discussion about whether or not the examinations are to be carried out by doctors or nurses. That is irrelevant. It is the insult to the individual that matters. Whether the examination is carried out by a doctor or a nurse is irrelevant. It is disgraceful, and people should not be expected to accept such treatment. I am very saddened to think that in your Lordships' Committee we are to agree that people should be treated in this way. I am shocked that there has been no challenge to the basic approach to the problem; to the fact that we are saying that people can be intimately searched against their will because we think that they may be concealing drugs or some other articles which are illegal. My God, where are we heading?
1.23 a.m.
Baroness Trumpington: Amendments Nos. 133 to 135 draw a distinction between a search of a person's genital or anal orifices and a search of any other body orifice. They would allow only a doctor to search genital or anal orifices. Amendment No. 136A would go further, and allow only a doctor to search any orifice. The noble Lord, Lord Winstanley, is mistaken; we have repeatedly made it clear that we hope that all intimate searches will take place by way of an examination by a doctor. But, as my right honourable friend the Minister of State said in another place at column 3040 of the Committee proceedings:
"On occasions it is a task that has to be undertaken, and by police officers if no one else can or will undertake it … with the best will in the world there can be no guarantee … that a doctor can be found within a reasonable time who will be prepared to carry out the search".
Clause 53 will permit an intimate search only if it is reasonably believed that it is necessary to recover a dangerous article and thereby prevent an immediate risk of physical harm to the detained person himself or those guarding him. In our view the Bill has to cater for the eventuality, however rare, that arrangements cannot be made for a doctor to attend, whether because the doctor is unwilling to do so or for some other practical reason which it is not within the ability of the police to change. One example is that of two men remanded to prison who were returned to police custody. They had smashed a mirror in prison and one was found to have shards of glass hidden in his sock, while his companion had a three inch shard hidden in his rectum. In another case, a woman charged with prostitution and wounding was found to have glass and razor blades in her mouth.
In these circumstances, we consider that as a matter of practical commonsense such dangerous articles must he removed as quickly as possible by a police officer if it is not practicable for a doctor to do so. By imposing a rigid rule that all searches of genital or anal orifices must be performed by a doctor, the amendment would place a small minority of detained persons who have concealed weapons on themselves at risk of serious injury, not forgetting the police officers

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and others with whom they are in contact at the police station. The fact that the genital and anal orifices are more intimate than the mouth does not affect the situation.
The noble Lord, Lord Winstanley, asked: why have the power? One must have the power because the need is an urgent one. Intimate searches are likely to be carried out in a very small number of cases each year, and it should be possible as a rule for arrangements to be made for a doctor's participation. But there must be a reserve power available to guard against the possibility, however rare, that it may not be possible to find a doctor within a reasonable time who will be prepared to carry out the search. We know of at least one police surgeon who has expressed reservations about performing such searches, and there may be others. They are entitled to their own ethical views, and there is no question of obliging a doctor to undertake any procedure of this kind. But it cannot be right to require the police to go from doctor to doctor while they are holding a person thought to be concealing a weapon. Swift action may be necessary; and while it is easy to say that all that has to be done is for the person concerned to be kept under constant observation, life is not always so simple and straight-forward.
Now we come to the noble Baroness, Lady Masham, who has proposed that because of their expert knowledge of female anatomy midwives, too, should be permitted to conduct a genital or anal examination of a female. We naturally take seriously her concern that police officers should not be obliged to embark on such a delicate procedure when someone better qualified might be available; and we are very grateful to her for bringing forward this suggestion. I concede that it is certainly an oddity of the clause as drafted that it rules out the intervention of a midwife even though a midwife would he better qualified to undertake an intimate search than a female police officer. However, I would point out that female police officers do have a short period of training in this kind of thing. I met two sensible and sensitive police officers entirely to go through this question with them. They do not like doing this job, but they will do it in order to protect their lives and the lives of people who, in very rare cases, refuse to undergo an intimate body search.
I also appreciate Lady Masham's remark concerning women objecting to male doctors. Subject to your Lordships' views, I should like broadly to welcome her suggestion, though we would want to consult the professional bodies concerned before proceeding to amend the Bill. Among the questions we would seek to raise with them are the extent to which registered nurses as well as midwives should be covered, in which case the limitation of the proposed extension to certain searches of females may itself be too narrow. If the point is that it is better, if an intimate search has to take place, for it to be conducted by someone with a relevant qualification rather than the police officer, then on the face of it this applies to any intimate search, whether of a male or female, and whatever the orifice concerned.
However, if the group of those permitted under the Bill to carry out intimate searches is extended in
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this way—and it may be that we shall be unable to conclude the necessary consultations before the Report stage—I have to tell your Lordships that we still believe there is need to retain subsection (5). I believe that the safeguards written into the clause are sufficient to ensure that intimate searches will only take place when necessary and will be undertaken by a qualified person, unless this is simply not practicable.
If your Lordships agree at a later stage to permit midwives or nurses to conduct an intimate search, the likelihood that a police officer will ever be called upon to do so will be even slighter than it would be under the Bill as drafted. But if, on some very rare occasion, tragedy is to be averted, the Bill must contain a reserve power for the police to act in these circumstances. For this reason, I must advise your Lordships to reject these amendments but to note the Government's intention with regard to midwives and nurses.
Lord Monson: Before the noble Baroness sits down, would she not agree that the attempted removal by an untrained constable of a 3-inch shard of glass from a person's rectum would almost certainly cause greater injury, both to that person and to the constable himself, than if the shard was left in place pending the removal of the person to hospital for a surgeon to do the job?
Baroness Trumpington: If the noble Lord had been listening to me, he would have heard me saying that police officers have a period of training; and I should have thought that it would be rather a relief, whatever the circumstances were, to get rid of that particular object. Furthermore, the police officers would be wearing gloves which were sterilized, which is more than the piece of glass would be.
Lord Winstanley: I was gratified to note that the noble Baroness agreed with some of the things that I said in moving my amendment, and perhaps she in her turn will be glad to learn that I agreed with some of the things that she said in reply. But it necessarily follows that we are not entirely at one on the matter, particularly in relation to the reserve power, as well as in relation to one or two other things.
It is utterly clear from this fairly lengthy discussion on this amendment and on earlier ones that we cannot really resolve this whole matter here and now in this Committee at half-past one in the morning. The whole issue is far too important to be settled on this kind of basis. There are many noble Lords who have points that they would like to contribute, and for us to take firm decisions on any of these matters here and now would be very unwise indeed.
Before I take a certain step with regard to my amendment—and once I have taken that step then the noble Baronesses who have their amendment to my amendment will be left in limbo—I seek advice. Do I beg leave to withdraw my amendment, or shall I let them withdraw their amendment to my amendment, before I withdraw my amendment?
The Deputy Chairman of Committees (Lord Airedale): The Question before the Committee is that Amendment No. 134 in the name of the noble

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Baroness, Lady Masham, be agreed to. It is for the noble Baroness, Lady Masham, to decide.
Baroness Masham of Ilton: I should like to thank the noble Baroness, Lady Trumpington, for what she has said, and I shall be very glad to do exactly what the noble Lord, Lord Winstanley, has suggested. But we will come back to this matter with the noble Baroness and the Government. With that, I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
The Deputy Chairman of Committees: Does the noble Lord, Lord Winstanley, beg leave to withdraw Amendment No. 133?
Lord Winstanley: Yes, I beg leave to withdraw the amendment on the same understanding as the noble Baroness: that this is a matter to which I shall want to return later and on which we shall want to take decisions.
Amendment, by leave, withdrawn.
[Amendment No. 135 not moved.]
1.35 a.m.
Lord Elton Lord Elton moved Amendment No. 136:
Page 49, line 17, leave out second ("an").
The noble Lord said: This amendment seeks to remove a superfluous word of two letters. I hope that your Lordships will agree. I beg to move.
On Question, amendment agreed to.
[Amendment No. 136A not moved.]
[Amendment No. 136B not moved.]
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 136C:
Page 50, line 23, at end insert—
("() Nothing in this section shall apply to a child under the age of 14.")
The noble Baroness said: There has been a long discussion about the general principle of the intimate search, but this amendment is confined to protecting children under the age of 14 from an intimate search in any circumstances. I should like to make one point: that we strongly object to the fact—we shall be arguing this point again concerning fingerprinting—that the age of criminality has been reduced to 10 years.
Although I know that in the case of intimate searches it might be argued that the intimate search should be carried out in order to find a concealed weapon, I find it very hard to imagine how children under the age of 14 can be included in this category. It is possible that a child might have a penknife concealed in its clothing but I do not believe it is possible that a penknife could be concealed within its person. I can see no justification for ever subjecting a 10-year-old to such a traumatic experience as an intimate search. I believe I have said sufficient to make a special case. The inclusion of 10-, 11-, 12- and 13year-olds would be very wrong. I beg to move.
Baroness Trumpington: I hope it goes without saying that I find the prospect of the compulsory intimate search of a juvenile as distressing as anybody else, and I am sure it is right for your Lordships to give the most careful thought to whether or not Clause 53 should be subject to additional restrictions and safeguards in such a case. But I must very regretfully say to the noble Baroness, Lady Ewart-Biggs, that exactly the same things as I quoted in the case of the last amendment have been found in the various orifices of children under the age of 14. Life is like that. It is very sad but it is true.
We sincerely hope that it will never be necessary to undertake the intimate search of a child under the age of 14. I hope that Clause 53 is never used in this way. But what would be the effect of the amendment, bearing in mind that an intimate search will be permitted only if it is necessary in the interest of saving life or limb? Children under the age of 14 need greater, not less protection than older people if they have to be detained in police custody. If, Heaven forbid! the police were ever confronted with a case in which a dangerous article was being concealed in a child's body, what would they do? I suggest that the Clause 53 power should be available in such a case as a last resort, in the same way as in any other case.
I do not think it would be safe or prudent to come to the conclusion that this could never happen. Regrettably, it is not unknown for terrorists to use children as the carriers of dangerous articles. Utterly repugnant though such callous exploitation might be, we should be doing neither these unfortunate children nor the police a service by imposing a total prohibition on the search of children. Indeed, one effect of such a prohibition could precisely be to increase the temptation of the wicked to use children in this way. With much regret, I must ask your Lordships to reject the amendment.
Baroness Ewart-Biggs: Could the noble Baroness give me examples of children in England and Wales who are being used in this way by evil men and by terrorists for the purpose of carrying concealed weapons? It is well known that children are used in Northern Ireland, but there is separate legislation for that in Northern Ireland. There is the EPA and the PTA. Could the noble Baroness give me examples of children under the age of 14 in England and Wales who are being used for carrying concealed weapons?—otherwise I should have thought it was an example of legislation for the extreme case rather than for the generality of cases. It would appear that the risk involved in including children under the age of 14 is greater than the risk involved in excluding them.
Baroness Trumpington: When speaking about terrorists, I was speaking about terrorists in an international context. There are bad people all over the world who use children. I have seen bad parents use their children for shoplifting. I know of one case where a child had a razor blade in its mouth and of another who had glass in its rectum—and they were both aged under 14. I cannot give the noble Baroness an exact example, and I agree with her that in Northern Ireland, where such use of children is common, the offence is covered by another Act. The

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whole point of this clause is that it serves as a last resort in an urgent issue.
Baroness Ewart-Biggs: I am grateful to the noble Baroness for giving me two examples, but I still do not think that that is very many. However, I should like to thank her for explaining this provision so fully and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53, as amended, agreed to.
Clause 54 [Right to have someone informed when arrested]:
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 137:
Page 50, line 25, after ("be") insert ("informed at once that he is").
The noble Lord said: Clause 54 states:
"Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests"—
and so on. The point of this amendment is to correct the certain reluctance which the Government appear to have employed all the way through this Bill to tell people of their rights. We want to alter this clause, so that it will read:
"he shall be informed at once that he is entitled",
to a certain privilege. It is a very simple amendment and even at this time of night I believe that noble Lords opposite will understand it, and so I shall say no more. I beg to move.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): A similar amendment to this was rejected in Committee in another place and was tabled, but not moved, on Report there. I must say that I was a little surprised that it was resurrected here, and I was particularly surprised at the form in which my noble twin proposed it, referring to a "reluctance" on the part of the Government to inform people of their rights, because precisely the opposite is true. Of course people ought to be informed of their rights.
If the noble Lord will read the draft code of detention, he will find that in paragraph 3.2 the code requires the custody officer to give the precise information when a person is told of the grounds for his detention and, in any event, before he is questioned. Paragraph 3.3 in addition requires this information to be given both orally and in writing, and the custody record will contain a record that this has been done, signed by the person concerned.
Therefore, to say that the Government wish not to inform people of their rights is the precise contrary of the truth. I suppose someone might ask, "Why is this included in the code, but not in the Bill?". The reason is rather simple, when one comes to think of it. The demand is that the arrested person shall be informed at once, and that that should be a statutory obligation. What does a poor police constable do when he finds a man drunk and incapable in the street and takes him in? Is he going to inform that drunk at once? It will not do the person concerned the slightest bit of good because he is drunk and incapable. Further, let us suppose that a constable takes in someone who has
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committed the offence of reckless driving, or of killing a person by reckless driving, and who is himself badly injured. Is the constable going to inform that person at once, before he recovers from a coma? Of course he is not. Let us leave these matters in the flexible form in which we have proposed them.
Lord Donaldson of Kingsbridge: I find my noble and learned twin's explanation clear, but disagreeable. However, I shall not pursue the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 137A:
Page 50, line 33, after ("offence") insert ("and who is not an arrested juvenile").
The noble Baroness said: This amendment concerns the questioning of detained children and young people. There are a number of other amendments which relate to exactly this same point:
Amendment No. 140A: Clause 55, page 52, leave out line 16 and insert ("without delay")
Amendment No. 140B: Clause 55, page 52, line 24, at end insert ("save where the child or young person at the time of his arrest is living with his parent or guardian in which case this subsection and subsection (2) above shall apply")
Amendment No. 140C: Clause 55, page 52, line 24, at end insert—
("() The time at which an officer informs or attempts to inform those persons referred to in subsections (2), (3) and (4) of this section and where appropriate, the reasons for failure to contact such person or persons, shall be recorded in the arrested juvenile's custody record required under this Act.")
Amendment No. 147C: Clause 56, page 53, line 9, after ("offence") insert ("and who is not an arrested juvenile")
Amendment No. 154YA: After Clause 56, insert the following new clause—
("Questioning of arrested juveniles.
.—(1) An arrested juvenile shall only be questioned in the presence of an appropriate adult who is not a police officer.
(2) Subject to subsection (3) below, an arrested juvenile shall be entitled, if he so requests, to appoint the appropriate adult person of his choice who may be present during questioning in accordance with subsection (1) above.
(3) An 'appropriate adult person' may include any person so informed under section 55 of this Act, or any person so informed under section 54 of this Act, or any solicitor.
(4) Where any such adult persons are unavailable or unavailable within reasonable time, any other adult person who is not a police officer must be present in accordance with subsection (1) above.")
I presented this group of amendments to the Government Whips' Office, but I am not sure whether they were received. However, if I may speak to the group together, it will enable us to deal with them very quickly. Amendment No. 137A is to prevent delay in informing a friend, relative, etc. of the arrest of a young person. Amendment No. 140A is equally to make it the duty of the police to inform a grown-up more quickly. If I may go on with my group of amendments—or would the Committee prefer that I dealt with them separately?
Lord Elton: It is for my noble and learned friend to consider: but I went across to the other side of the House during Division in order to discover whether this was in fact a group of amendments that had been put together or had just arrived, as it were, of its own

731
volition. Nobody would own up to it, so we decided that it was not a group and was a mistake. The noble Baroness has now revealed herself as the progenitor of it, but my noble and learned friend's amendment papers may not be arranged in that order. I am merely giving him an opportunity to consider whether he wants to take them together, or separately.
The Lord Chancellor: I do not care one way or the other.
Baroness Ewart-Biggs: Amendment No. 140B concerns a child or young person on a care order but living at home. This amendment is to ensure that both the authority and the parents should be contacted without delay. This is again giving the same urgency. The intention of Amendment No. 140C is once again to bring some speed into informing parents, and so on, about a detained young person. We feel that this amendment and our proposed new clause under Amendment No. 154YA would go a long way to prevent the present abuses in which completely inexplicable delays are made in informing parents of the whereabouts of their children, and would indeed greatly increase parents' and young people's confidence in the police. Apparently complaints of such delays are in fact the most common ones among those received by the children's legal centre. The reason for the delay could in many cases only really be analysed as a deliberate wish of the police authorities to deal with a child or young person without the presence of an independent adult.
Finally, Amendment No. 147C is to prevent delay in access to legal advice for an arrested juvenile. Parents, relatives and social workers are often not able to act as sufficient safeguards for the young people in police stations and they have a limited knowledge of the rights of suspects and police practice. Furthermore, it is felt that the more serious the charge a young person is suspected of, the more essential it is for them not to make a false confession through persuasion: and this would of course prevent such a risk. The underlying aim of all these amendments is to preserve the trust and good relationship between young people and the police. I beg to move.
The Lord Chancellor: This is rather a curious bundle of amendments because the arguments for and against them differ almost entirely from one to the other. But I will try to deal with them seriatim, as well as I can. The one which is formally being proposed by the noble Baroness, Amendment No. 137A, is I think misconceived. It can in the nature of things only apply to the case where the juvenile nominates a person other than his parents as the person whom he wants informed. But Clause 55 of the Bill places an absolute obligation on the police to notify the parents or guardians of an arrested juvenile and his detention as soon as is practicable. This obligation is amplified in the draft detention code, paragraph 3.6. Clause 55(5) of the Bill makes it clear that this obligation is additional to, and not subsumed by, the provision of Clause 54.
To turn to arrested juveniles, Clause 54 allows them to nominate someone other than their parents to be informed. If they do so nominate, I cannot myself see
732
why the same provisions for delay should not apply to them as in the case of adults.
If a juvenile is detained in connection with a serious arrestable offence and it is thought that notification of his arrest to the friend he has nominated would lead to one of the consequences set out in subsection (5), we take the view that it should be possible for delay to be authorised. His parents will have to be notified under Clause 55, and that safeguard will be unaffected. I would think that his parents might strongly disapprove in this particular case—that is, where the third party is nominated by the juvenile—of the person their son has asked to be notified and might feel very aggrieved that the police had no option but to give effect to this request. I think that that deals with Amendment No. 137A.
As regards Amendment No. 140A, the only difference between the text in the Bill and the words proposed is that under the amendment the parents or the guardian would have to be informed "without delay", whereas in the Bill they would have to be informed "as soon as practicable". The only effect of the amendment, therefore, is that the parents would have to be informed when it was not practicable for them to be informed. I cannot quite see the purpose of that.
Dealing with Amendment No. 14013, new subsection (4) inserted into Section 34 of the Children and Young Persons Act 1933 requires the local authority to be informed of the arrest of a child in its care in place of the child's parents or guardians. The amendment of the noble Baroness would provide that, in the case of a child or young person in the care of a local authority who is living with his parents or guardians, both they and the authority would have to be informed of the detention.
That point was raised in the Commons' Committee and the principle would, in principle, be acceptable up to a point, but problems may arise where the parent himself is involved in the crime of the child. To provide flexibility it was decided to deal with the point—and I think it has been dealt with—by way of an amendment to the draft detention code. I think it would, therefore, be right for the police, while having to inform the care authority as soon as practical, to retain discretion as to whether or not to inform the parents as well because they might be involved in the crime. For this reason, we have already met the point raised by the amendment of the noble Baroness, but in the draft detention code rather than in the Bill. This will allow greater flexibility, while the Bill will ensure that in all cases the care authority is involved. Paragraph 3A of the draft detention code is as follows:
"If the arrested juvenile is in the care of a local authority but is living with his parents, then, although there is no legal obligation on police to inform them, they as well as the authority should normally be contacted unless suspected of involvement in the offence concerned."
That follows the exact point to which I have been speaking.
As regards Amendment No. 140C, a similar amendment was withdrawn in the Commons' Committee. It has always been our intention that information should be noted in the custody record and the draft detention code already meets the point, which is in any event already no more than good police

733
practice. Paragraph 2.6 of that code requires all entries to the custody record to be timed and signed by the maker. Paragraph 3.6 repeats and expands the provisions of this clause, and paragraph 3.10 makes it clear that a record must be kept of the action taken.
Amendment No. 147C would make absolute a detained juvenile's right of access to a solicitor. A similar amendment was rejected in the Commons Committee. In practice, of course, it would be impossible to deny access to a legal adviser to a juvenile, as to anyone else. A juvenile can be interviewed in the absence of an adult only in the exceptional circumstances set out in annex C to the draft detention code.
Paragraph 13.2 makes it clear that an interview with a juvenile in other circumstances shall not commence until legal advice has been obtained if the adult considers this is needed. Thus, if the police delayed access to a solicitor they could not interview the juvenile at all. There is a remote possibility that the police, having informed the parents under Clause 55 that their child has been arrested for a serious arrestable offence, nevertheless have grounds for delaying access to legal advice and hence any interview with the juvenile until they have pursued their investigation by effecting the arrest of confederates where that arrest could have been prejudiced by the inadvertent leaking of information. But this is an unlikely scenario. If it never arises, the noble Baroness will have the consolation that the absence of her amendment made no difference in practice.
I think that I have now dealt with all the amendments in the bundle. There are different arguments in each, but I think that there is an underlying theme in what I have been saying, which is that it is possible to put too much in the Bill and so tie up with red tape what is already amply safeguarded by the detention code.
Baroness Ewart-Biggs: I should like to thank the noble and learned Lord for replying to all the amendments in such a lucid way. The purpose of several of them was merely to prevent delay. As I say, there is considerable anxiety, and there have been many complaints from parents when delay has occurred. As a parent, one can recognise that great anxiety is caused by not knowing where one's child is. The need to inform a friend or relative is to cater for the fact that some parents do not respond and to ensure that a grown-up is there with the child. However, as I say, I should like to thank the noble and learned Lord for his very full reply, and for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 137B and 137C not moved.]
Clause 54 agreed to.
Clause 55 [Additional rights of children and young persons who are arrested]:
2 a.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 138:
Page 52, line 10, leave out from ("is") to ("his") in line 11 and insert ("in police detention").
The noble and learned Lord said: I have a feeling that both this amendment and Amendment No. 141,
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which should be taken with it, are drafting amendments.
Amendment No. 141: Page 52, line 30, leave out ("has been arrested") and insert ("is in police detention").
I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 139:
Page 52, line 13, leave out ("detained") and insert ("arrested").
The noble and learned Lord said: May I take with this Amendment No. 140?
Amendment No. 140: Page 52, line 14, leave out ("detained") and insert ("arrested").
I do not think that these amendments are absolutely drafting but they are very nearly drafting. Clause 55 will ensure that parents, and so on, are informed of the fact and reasons for detention. The amendment alters that to the fact and reasons for the arrest.
It may be convenient if I take the amendments together. At present the clause requires the parents and similar responsible adults to be informed of the fact and reasons for detention. On reflection, it has appeared to those responsible for the drafting that it would be more useful to give them the fact and reasons for the arrest. This would make it crystal clear that parents should be aware of the nature of the offence which their children are suspected of having committed. I hope your Lordships will agree that this is a far more pertinent fact than that the child is detained for his own safety. Of course, the requirement to inform the parents where their child is detained is unaffected, and will continue. I beg to move.
On Question, amendments agreed to.
[Amendments Nos. 140A, 140B and 140C not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 141:
[Printed above.]
The noble and learned Lord said: I have dealt with this. I beg to move.
On Question, amendment agreed to.
Clause 55, as amended, agreed to.
Clause 56 [Access to legal advice]:
The Lord Chancellor The Lord Chancellor had given notice of his intention to move Amendments Nos. 142, 148, 149 and 150.
Page 52, line 37, leave out from ("person") to ("shall") in line 38 and insert ("who is in police detention at a police station").
Page 53, line 17, leave out ("detained") and insert ("in police detention").
Page 53, line 28, leave out ("detained person") and insert ("person in police detention").
Page 53, line 36, leave out ("arrested") and insert ("who is in police detention").
The noble and learned Lord said: I was going to move these amendments, Nos. 142, 148, 149 and 150. I was going to say that they were simply drafting amendments. Unfortunately, the Law Society have raised a point so I will return to them on Report and not move them at this stage, if that is agreeable.
[Amendments Nos. 142, 148, 149 and 150 not moved.]
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 143:
[Printed earlier: col. 703.]
The noble Lord said: The argument for this is much the same as the argument I put forward, with brevity, for Amendment No. 135. I expect the answer will be much the same, but as a matter of interest I beg to move.
The Lord Chancellor: The amendment adds to subsection (3) of Clause 56 the requirement that consultation with solicitors should take place privately. The amendment is otiose since subsection (1) already makes it clear that the right to consult a solicitor that the clause establishes is a right to do so in private.
Lord Donaldson of Kingsbridge: With the greatest respect, the answer is not related to the question.
The Lord Chancellor: This is what I think, if I am talking about the same amendment, which is always doubtful at this hour in the morning.
Lord Donaldson of Kingsbridge: I accept that the noble and learned Lord wishes to give the same answer as the answer to Amendment No. 135.
The Lord Chancellor: I feel sure that is so, and I am much obliged to my noble twin!
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 143A:
[Printed earlier: col 703.]
The noble Lord said: A quick point, if I may, because of earlier debates. I believe that something similar is in Clause 6(3)(ii) of the code. The real question is that because it is so vital for a suspect to know of his rights, and now indeed for a person arrested to know of his rights, it should be in the Bill and not in the code.
Lord Elwyn-Jones: It is an argument we have had many, many times. It is suggested it is so important it should be in the Bill and not in the code. I am afraid that is really the only issue.
The Lord Chancellor: I will say it should be in the code and not in the Bill, but I have lost the place in my brief, if it is there.
Lord Mishcon: May I make life easier for all of us and repeat that this is a point that has been raised earlier in the debate. The Government have made their position clear. We have made our position clear. I think the sensible thing is to beg leave to withdraw, having recorded my remarks.
Amendment, by leave, withdrawn.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge had given notice of his intention to move Amendment No. 144:
Page 53, line 2, leave out ("subject to the following provisions of this section").
The noble Lord said: This is the amendment to which the noble Lord gave me such a succinct and effective answer that I ask for no more.
The Lord Chancellor: Are we on Amendment No. 144? Did the noble Lord say he had withdrawn it?
The Chairman of Committees (Lord Aberdare): It was not moved.
The Lord Chancellor: It is not moved, then.
Lord Mishcon: That was the answer.
[Amendment No. 144 not moved.]
[Amendment No. 145 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 145A:
Page 53, line 3, leave out ("as soon as is practicable") and insert ("without delay").
The noble Lord said: Surely the point is that, "without delay" is so much clearer than, "as soon as practicable".
The Lord Chancellor: The only effect of this would be to make the thing be done without delay instead of as soon as practicable, which means that it would have to be done even when it was not practicable to do it so soon. I do not think, therefore, that it is clearer.
Lord Mishcon: I am sure that the noble and learned Lord would agree that in those circumstances there would not be delay. But I have an idea—I think that this is illustrative of the whole of our proceedings at the present moment—that minds even as brilliant as that of the noble and learned Lord are not as clear at this time of the morning as at other times. That applies possibly to all of us and is somewhat a criticism of our debating matters of this kind and trying to legislate at this hour of the morning.
The Lord Chancellor: I do not think that I can be accused on this occasion of lack of clarity of mind due to the lateness or earliness of the hour because I was reading what it says in my brief.
Lord Mishcon: The noble and learned Lord at other times of the day does not do that. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge had given notice of his intention to move Amendment No. 146:
Page 53, line 3, at end insert—
("(3A) An officer of at least the rank of inspector may give a notice under subsection (3B) below if he has reasonable grounds for believing that any act likely to be done by a solicitor consulted by a person in the exercise of the right conferred by subsection (1) above—

(a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or

(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or

(c) will hinder the recovery of any property obtained as a result of such an offence.

(3B) A notice under this subsection is a notice requesting the solicitor to refrain from doing a specified act for a specified period not exceeding 36 hours from the relevant time, and stating the reasons therefor.

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(3C) An officer may give a notice under subsection (3B) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.
(3D) If a notice under subsection (3B) above is given—

(a) the detained person shall be informed of it; and

(b) it shall be noted on his custody record.

(3E) The duties imposed by subsection (3D) above shall be performed as soon as is practicable.
(3F) If the reasons for giving a notice under subsection (3B) above shall cease to subsist before the period specified in the notice has expired, the officer giving the notice shall so inform the solicitor as soon as is practicable, and thereupon the notice shall cease to have effect.
(3G) So long as a notice under subsection (3B) above remains in effect, the solicitor to whom it has been given shall not be treated as being under any duty to his client to do any act mentioned in the notice.")
The noble Lord said: This is really a very important amendment and rather a difficult one. I do not propose to go into it tonight. It is insufferable that we should be discussing these important matters of people's liberty at this hour. I shall therefore not move the amendment but bring it back on Report.
[Amendment No. 146 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 146A:
Page 53, line 3, at end insert—
(" () A person in police detention who has indicated that he does not wish to be questioned except in the presence of a solicitor shall not be questioned by any police officer except in the presence of a solicitor, provided that questioning may take place in the absence of a solicitor if an officer of at least the rank of superintendent authorises it on the grounds that irretrievable harm to the investigation would be caused or serious harm to persons or serious loss of or damage to property would be caused if such questioning were not to take place immediately.
() If a person in police detention who has indicated that he does not wish to be questioned except in the presence of a solicitor is questioned in the absence of a solicitor, then any statement or admission made by the person during such questioning shall not be admissible in evidence at any subsequent trial.").
The noble Lord said: If I may paraphrase the words of noble Lord, Lord Donaldson, I am in exactly the same position, as are my noble friends, on this amendment. It is a most important amendment, as was that of the noble Lord, Lord Donaldson. The sensible approach in this situation is not to try to debate it now.
[Amendment No. 146A not moved.]
The Chairman of Committees: If Amendment No. 147 is agreed to, I cannot call any of Amendments Nos. 147A to 150 inclusive.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge had given notice of his intention to move Amendment No. 147:
Page 53, line 4, leave out subsections (4) to (18).
The noble Lord said: I shall have to say something about his amendment. It relates to a matter that we may wish to discuss further. The position, roughly speaking, is that we think it is right that the more severe subsections in this clause should be removed and posted to the Prevention of Terrorism (Temporary Provisions) Act. Amendment No. 154 inserts a new clause to go into the prevention of terrorism Act. The amendment now before the Committee is a paving amendment to take out what is in this Bill and to put it into the terrorism Act.
It is a very complicated issue to be discussed at this moment. We give notice that we consider our proposal a desirable step to take. The kind of sanctions necessary against terrorists must not be removed but should not be in this Bill. I do not wish to say more at this stage. We shall come back to it on Report. I hope that I have made clear our general intention.
[Amendment No. 147 not moved.]
Lord Monson Lord Monson moved Amendment No. 147A:
Page 53, line 4, at end insert ("nominated by the custody officer within 6 hours from the relevant time and a solicitor of his own choice").
The noble Lord said: The purpose of this amendment, which I daresay is imperfectly drafted, is to provide that the maximum period for which an arrested person can be prevented from seeing a solicitor of some sort is reduced from 36 hours to six hours. I can appreciate that there may be a very tiny minority of solicitors who have somewhat shady contacts with the criminal profession and that the police may understandably feel that it would almost certainly hinder the course of justice if such solicitors were informed of their client's whereabouts before a full 36 hours had elapsed. The noble Lord, Lord Elton, mentioned earlier that there was an extremely tiny minority of such people. Equally certainly, there are a very much larger number of totally trustworthy solicitors known to the police and called, I believe, duty solicitors. In the case of these totally trustworthy solicitors, surely a much shorter period of delay would be justified.
In this particular case the arrested individual would not be able to use the services of his own solicitor, but at least he would be able to get some impartial advice from a solicitor nominated by the police within the much shorter period of time that I suggest; although in passing I may say that I think that perhaps even six hours is a trifle long, provided the solicitor chosen is one who is known to and trusted by the police. I beg to move.
2.10 a.m.
The Lord Chancellor: I had intended to deal with this in conjunction with Amendment No. 147, with which originally it was agreed to group it. This was an amendment by my noble friend Lord Donaldson. I was going to explain at much greater length why this was not an acceptable view. But the amendment which is proposed by the noble Lord, Lord Monson, apart from the period of time, does shoot at one wrong target—an unacceptable principle. I myself, as a member of the legal profession, could never easily acquiesce in the view, which apparently is contained in Amendment No. 147A, that the unfortunate suspect should be represented by a solicitor nominated by the custody officer within six hours of the relevant time. That seems to me to put the legal representative in a totally impossible position, and one which I could not accept.
In No. 147A there is another period, which relates to a period of six hours, on which a more complicated series of arguments would arise. But, broadly speaking, I think that the noble Lord is shooting at the wrong target. The period of time provided in the text

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of the Bill was not trying at all to deal with dishonest solicitors, even if there are any; it was designed to prevent the inadvertent leaking of information through a perfectly honest solicitor. I shall give one simple example, which I should have given at greater length had my noble friend Lord Donaldson moved his rather more comprehensive amendment.
He might ring up, on the instructions of his client, and say to the wife of the suspect, "Will you please take the dog out for a walk?", or "Will you please note that I've paid the gas bill?". This might be a coded piece of information which was wholly unacceptable to the prosecution because it might pass on some vital information to somebody who was a confederate. The solicitor would be perfectly innocent, and it is precisely to prevent the inadvertent leaking of information while investigations are going on that the Bill contains the provision in the form it does.
So the target aimed at is a wrong one. It is not the dishonest solicitor, if there is one, who is aimed at, but the inadvertent leaking of information by means of a perfectly innocent message. The simplest, of course, might be to tell somebody that his friend, Mr. So-and-So, was at the police station—a perfectly innocent piece of information, but it might alert him to the fact that he was under arrest. So the target is the wrong one, and the principle that a man should be represented by a solicitor of the police's choosing is not an acceptable one.
Lord Monson: I am grateful to the noble and learned Lord for his explanation. I knew that this amendment was drafted imperfectly, but it seems to me that a man who was arrested might prefer to see a solicitor, albeit one not of his own choice, within six hours rather than have to wait 36 hours for a solicitor of his own choice. As far as most people are concerned, certainly it would be the lesser of two evils. Again, I would imagine that a solicitor known to and trusted by the police would be up to the type of tricks suggested by the noble and learned Lord, such as ringing the man's wife. He would be on the lookout for any such messages passed to him. But as I am not experienced in these matters, perhaps I am wrong in that assumption.
This whole worrying business of people being prevented from seeing their solicitors for as long as 36 hours continues to disturb me. Perhaps the noble and learned Lord the Lord Chancellor would say whether the decision by the European Court of Human Rights on 29th June, which ruled that restrictions on two convicted IRA men from having access to legal advice violated Article 6 of the European Convention, has any bearing upon this clause as a whole.
The Lord Chancellor: I think that the answer is, no. There are other European codes which are rather more draconian than ours.
Lord Monson: I am grateful to the noble and learned Lord. If no other noble Lord wishes to speak—
Lord Mishcon: I think that possibly I should say one sentence. The noble and learned Lord will appreciate that we on these Benches are very anxious about this provision. We wonder whether the target is quite what
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the noble and learned Lord says; but this is not the time, in the circumstances, to have a debate on the matter.
Lord Monson: I am grateful to the noble Lord, Lord Mishcon, for his intervention. I am glad to know that I am not alone in being uneasy about this clause. With those remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 147B 147C, 148, 149 and 150 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 151:
Page 55, line 1, leave out subsections (19) to (22).
The noble Lord said: This is a Government amendment. It removes from Clause 56 the provisions relating to legal aid and replaces them with a new clause. Provision is made for solicitors' clerks to act under the scheme. This is basically a drafting amendment. The subsections of Clause 56 which deal with the making of arrangements for duty solicitors to provide advice and assistance to those detained at police stations, making effective the right conferred by Section 56(1) of the Bill, are now arranged in a new clause.
Additionally, it may not be possible to provide at all times and in all places that a solicitor will be available immediately, but that a solicitor's representative might be. Thus the wording of the new paragraph (a) in Section 1 of the 1982 Act has been amended to ensure that a solicitor's representative would be qualified to act under the arrangements where necessary as he would be under the usual legal advice and assistance provisions. In those circumstances, and with that brief explanation, I point out that it is almost a drafting amendment and I beg to move.
On Question, amendment agreed to.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge: had given notice of his intention to move Amendment No.152:
Page 55, line 30, at end insert—
("() This section (except subsections (19) to (22) above) does not apply to a person arrested or detained under the terrorism provisions.")
The noble Lord said: This is another paving amendment for the new clause contained in Amendment No. 154, neither of which I am going to move tonight and which I shall keep for Report.
[Amendment No. 152 not moved.]
Clause 56, as amended, agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 153:
After Clause 56, insert the following new clause:
("Legal aid for persons in detention.
. In section I of the Legal Aid Act 1982 (duty solicitors)—

(a) in subsection (1) the following paragraph shall be inserted after paragraph (a)—

"(aa) for the making, by such committees, of arrangements whereby advice and assistance under section 1 of the principal Act is provided by solicitors for persons in police detention who—

(i) exercise the right to consult a solicitor conferred on them by section 56(1) of the Police and Criminal Evidence Act 1984; or

741

(ii) are permitted to consult a representative of a solicitor, and";

(b) in paragraph (b), after the word "representation" there shall be inserted the words "or advice and assistance";

(c) the following subsection shall be inserted after that subsection—

"(1A) A scheme under section 15 of the principal Act which relates to advice and representation at magistrates' courts may provide that arrangements made under it may be so framed as to preclude solicitors from providing such advice and representation if they do not also provide advice and assistance in pursuance of arrangements made by virtue of a scheme under that section which relates to the provision of advice and assistance for persons in police detention.";

(d) in subsection (5), for the words "such arrangements as are mentioned in subsection (1) above" there shall be substituted the words "arrangements made under subsection (1) above for the provision of advice and representation at the court; and

(e) the following subsection shall be added after subsection (7)—

"(8) References in this section to persons in police detention shall be construed in accordance with section 111(2) of the Police and Criminal Evidence Act 1984.".").
The noble and learned Lord said: I think I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 154 and 154YA not moved.]
Clause 57 [Tape-recording of interviews]:
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 154YB:
Page 55, line 31, at end insert ("on or before the coming into operation of Parts IV and V of this Act").
The noble Lord said: Again, in the circumstances I shall not move this amendment.
[Amendment No. 154YB not moved.]
Lord Morris Lord Morris had given notice of his intention to move Amendment No. 154ZA:
Page 55, line 35, leave out ("at police stations").
The noble Lord said: I very strongly get the impression that it is certainly the mood of the Committee that this Committee stage should be completed as soon as possible. These matters raise points of the greatest importance. Perhaps I might ask my noble friend whether, in the circumstances, he can assist me by reassuring me that if these amendments are brought back at the Report stage, the utmost assistance will be given to the mover of the amendments to speak more than once at that stage.
Noble Lords: No!
Lord Morris: My noble friend the Chief Whip certainly gave the impression while he was sitting down that that unquestionably cannot be done.
Lord Donaldson of Kingsbridge: What is the question?
Lord Morris: I was saying that it is very much the mood of the Committee at the moment that the Committee stage of the Bill be completed as soon as possible. I was asking whether, in order to expedite proceedings, if someone withdraws his amendment,
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however important it may be, the utmost assistance would be given to the mover of the amendments at the Report stage to come back more than once. However, I understand that that is against the rules normally pertaining at the Report stage.
The Lord Chancellor: Let me make it absolutely clear—and I speak in the presence of my noble friend the Leader of the House—that in Committee we cannot proleptically alter the rules of the House when the House is sitting as the House. Of course my noble friend would have a right of reply if he moves an amendment on Report; but, apart from that, he cannot speak more than once.
Lord Morris: To put it another way, I suspect that if I were to argue this point at this particular time, I would not receive sympathetic ears from any side of the Committee. In those circumstances, I shall not move the amendment.
[Amendment No. 154ZA not moved.]
[Amendments Nos. 154ZB and 154ZC not moved.]
Clause 57 agreed to.
Clause 58 [Fingerprinting]:
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 154ZD:
Page 56, line 40, at end insert ("or
(c) applies to a child or young person").
The noble and learned Lord said: Amendments Nos. 154ZD and 154ZE relate to a very important matter affecting young persons—namely, finger-printing.
Amendment No. 154ZE: Insert the following new Clause—
Fingerprints etc. of young persons
(" .—(1) Except as provided by this section no arrested young person's fingerprints or body impression or non-intimate sample or photograph may be taken without the appropriate consent.
(2) Where the appropriate consent is withheld in the case of any young person not less than 14 years old

(a) who has been taken into custody and is charged with an offence before a magistrates' court; or

(b) appears before a magistrates' court in answer to a summons for any offence punishable with imprisonment,

the court may, if it thinks fit, on the application of a police officer not below the rank of inspector order the fingerprints or body impression or non-intimate sample or photograph of that person to be taken by a constable.
(3) Fingerprints or a body impression or a non-intimate sample or a photograph taken in pursuance of an order under this section shall be taken either at the place where the court is sitting or, if the person to whom the order relates is remanded in custody at any place to which he is committed.
(4) The fingerprints or body impression or non-intimate sample or photograph of an arrested young person may only be taken in the presence of a person required to be informed of his detention under section 55 of this Act, or in their absence, any other adult who is not a police officer, save where the young person specifically requests that this be done in private.
(5) Where the fingerprints or body impression or non-intimate sample or photograph of a young person have been taken in pursuance of an order under this section, then, if he is acquitted, or the examining justices determine not to commit him for trial, or if the information against him is dismissed, the fingerprints or body impression or non-intimate sample or photograph and all copies and records of them shall be destroyed.").
If young people were to know that we were discussing this important matter at this hour in this Committee, so attended, we would run into serious trouble with

743
young persons all over the country. We are making a farce of our proceedings in this way, and in these circumstances I do not propose to move these two amendments.
[Amendment No. 154ZD not moved.]
Clause 58 agreed to.
[Amendment No. 154ZE not moved.]
Clause 59 [Intimate samples]:
Lord Elton Lord Elton moved Amendment No. 154A:
Page 57, line 39, at end insert—
("() Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause, in any proceedings against that person for an offence—

(a) the court, in determining—

(i) whether to commit that person for trial; or

(ii) whether there is a case to answer; and

(b) the court or jury, in determining whether that person is guilty of the offence charged,

may draw such inferences from the refusal as appear proper; and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence against the person in relation to which the refusal is material.").
The noble Lord said: Noble Lords will not forgive me if I explain at some length our reasons for tabling this amendment to a clause which deals with a sensitive and difficult subject—the taking of intimate samples. At present, refusal to provide an intimate sample may, if it has been possible to bring a case before the court, be referred to as part of the prosecution evidence. If the defendant exercises his right not to give evidence at the trial, that is all that can be said. Even if he gives evidence and is cross-examined on why he refused, the prosecution have to recognise that he is entitled to refuse. If the Bill did not make provision for the taking of intimate samples at all, I think we should still have to ask ourselves whether this was satisfactory, and whether it was right that it should always be in the interest of a suspect—who is, in fact, guilty—to frustrate an investigation by refusing a sample. The Bill alters the present position by providing that consent to the taking of an intimate sample must be in writing; this we believe to be right in principle and in accordance with one of the main objectives of the Bill, which is to move towards carefully recorded investigations, and more formal opportunity for the accused person to exercise his rights. But it means that there is an even greater need to address this question since it seems possible that the requirement for written consent will encourage the guilty to refuse it, secure in the knowledge that if they are eventually brought to trial they will be at no disadvantage for having refused to co-operate.
The problem then is how to ensure, so far as can be done by acceptable means, that refusal of consent does not give the guilty a greater chance of acquittal. When this was discussed in Committee in another place, there was wide support from all parties for a provision suggested by the honourable Member for Montgomery that refusal to give a sample, without good cause for the refusal, should be capable of corroborating the prosecution case. That is what this amendment provides. This means that it would be for the jury to determine the weight to attach to a refusal. That seems to be the best way of providing for the wide
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variety of motives which may be behind the refusal to provide an intimate sample. I beg to move.
Lord Donaldson of Kingsbridge: I am sure that if any of my criminal lawyer friends—which I am rather lacking at the moment—were here they would say that this is the thin end of the wedge of removing the right to silence. I am not lawyer enough to deal with this but this is a case which must be looked at very carefully.
Lord Elton: There is no question of speech; it is the giving of an intimate sample. I have adduced the reasons, and I do not accept that your Lordships cannot discuss matters of substance at this late hour because the timing of the debates is necessary if we are to cover all the ground which your Lordships wish to discuss. I do not wish to make an issue of that, I merely say that this has been considered and I have advanced the reasons for it.
On Question, amendment agreed to.
2.27 a.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 154B:
Page 57, line 39, at end insert—
("() In the case of an arrested juvenile, an intimate sample may only be taken in the presence of a person required to be informed of his detention under section 55 of this Act, or in their absence, another adult who is not a police officer, save where the arrested juvenile specifically requests that the sample be taken in private.").
The noble Baroness said: I beg to move 154B and speak to 154C.
Amendment No. 154C: Page 57, line 41, at end insert—
("() Nothing in this section shall apply to a child under the age of 14.").
Amendment No. 154B is to bring the safeguard of the presence of an adult with the young suspect out of the code of practice into the Bill. Amendment 154C is to prohibit the taking of intimate body samples from children aged under 14 years old. I beg to move.
Lord Elton: The Bill allows an intimate sample to be taken from a child under 14 only if the following conditions are satisfied: the child is detained in connection with a serious arrestable offence; the sample would tend to confirm or disprove his involvement in the offence; a superintendent authorises the taking of the sample; and the parents or guardian of the child have given their consent to the taking of the sample.
The code on identification adds to this point that the parent or guardian must he present when a sample is taken. This is covered in paragraph 1.8 on page 36, which provides the safeguard embodied in the first amendment. If all these conditions are satisfied in the case of a child—and this may indeed be very unlikely—then I see no reason why the sample should not be taken; but this would be forbidden if the second amendment were accepted. If a 13-year-old boy were suspected of murdering another child and forensic evidence were crucial, then, subject to the ample safeguards in the clause, I believe that it should be possible for the police to ask the parents for their consent and then to act on it if they gave their consent. I recognise the sincerity of the noble Baroness in

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seeking to give the maximum protection to juveniles suspected of serious crime, but these particular amendments do not serve her purpose very well.
Baroness Ewart-Biggs: I thank the Minister for his reply, but it is not just a matter of sincerity. We are trying to stop children from being incorporated in this ciminal procedure. Anybody would agree that a child of 10 would suffer serious psychological effects from having an intimate body sample taken. It is not just a matter of sincerity; it is felt that this would help protect children from entering the criminal environment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 154C not moved.]
Clause 59, as amended, agreed to.
Clause 60 [Other samples]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 155:
Page 58, line 8, leave out ("has been arrested and").
The noble Baroness said: I move this amendment on behalf of my noble friend. This is a drafting amendment. A person cannot be in police detention as defined in Clause 111 unless he has first been arrested. The words which this amendment deletes are therefore superfluous. The definition in Clause 111 itself requires minor adjustment, but that will not affect this matter. I beg to move.
On Question, amendment agreed to.
Clause 60, as amended, agreed to.
Clause 61 [Destruction of fingerprints and samples]:
The Chairman of Committees: I now call Amendment No. 155ZA. If this amendment is agreed to, I cannot call Amendment No. 155A.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 155ZA:
Page 59, line 11, leave out from ("offence") to end of line 12.
The noble Baroness said: I shall briefly put the purpose of this amendment, which seems a practical one. It is to make the destruction of fingerprints and samples applicable to juveniles who have merely been cautioned. There is no doubt that cautioning plays an important role in diverting young offenders from the courts, and this is agreed. But young offenders are never cautioned for serious offences, only minor ones, and I feel that there can be no justification for increasing the criminalisation of those young people who have been cautioned by permitting the retention of their fingerprints and samples. I beg to move.
Baroness Trumpington: The effect of Clause 61(2) is that if a suspected person's fingerprints have been taken in the course of a criminal investigation but it is decided not to prosecute, then the fingerprints must be destroyed, unless he is formally cautioned for that offence. In that case it is a matter for police discretion whether or not his fingerprints are retained on record and, if so, for how long. It was accepted in Committee in another place that it was reasonable for the police to be able to retain the fingerprints of an offender who
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had been formally cautioned as an alternative to prosecution, to be able the more readily to detect any re-offending by him. It was thought, however, that it should be made clear that this ability should depend upon the caution being a formal one, that is, inter alia, one requiring a person's admission of the offence concerned. An undertaking was given to amend the Bill in this sense and this amendment honours that undertaking.
The amendment proposed by the noble Baroness, however, would wholly deny the police the ability to retain fingerprints in the event of a caution. Of course your Lordships will know that the Government have been taking forward the Royal Commission's recommendation that the use of cautioning as an alternative to prosecution should be encouraged and greater consistency achieved between the practices of different police forces. We have only recently published a report which examines practical ways of achieving this. I am sure your Lordships will agree that this is a desirable aim and that nothing should be done to make the caution an unattractive option for the police. However, this might well he the effect of this amendment. I do not believe that it would be right for a by-blow of the development of cautioning to be the impairment of the capacity of the police to detect offences such as burglary. I ask your Lordships to reject the amendment.
At the same time I thank the noble Baroness for her sporting reception of my suggestion in an earlier amendment that she should grow up. Of course it was meant as a backhanded compliment.
Baroness Ewart-Biggs: I am not sure about growing up, but I feel even more than grown up at twenty-five to three. I think perhaps the noble Baroness feels the same. However, I thank her for her full answer. We shall think about this again and possibly bring it back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington Baroness Trumpington moved Amendment No. 155A:
Page 59, line I leave out from ("and") to end of line 12 and insert ("he has not admitted it and been dealt with by way of being cautioned by a constable").
On Question, amendment agreed to.
Clause 61, as amended, agreed to.
Clause 62 [Part V - supplementary]:
[Amendments Nos. 155B, 155C and 155D not moved.]
Clause 62 agreed to.
Clause 63 [Codes of practice]:
The Chairman of Committees: I have to point out that if Amendment No. 156 is agreed to, I cannot call Amendment No. 156ZA.
Lord Elton Lord Elton moved Amendment No. 156:
[Printed earlier: col. 8.]
The noble Lord said: This amendment was spoken to with Amendment No. 28, if your Lordships can remember that. I beg to move.
On Question, amendment agreed to.
[Amendment No. 156ZA not moved.]
Clause 63, as amended, agreed to.
Clause 64 [Codes of practice - supplementary.]
[Amendment No. 156ZB not moved.]
Lord Morris Lord Morris moved Amendment No. 156ZC:
Page 61, line 14, leave out ("a") and insert ("that").
The noble Lord said: I shall deal with this very quickly. This is purely a drafting amendment. I sincerely believe, rightly or wrongly, that it improves the grammar of the particular subsection to which it applies.
Lord Elton: Subsection (6) provides that the parliamentary procedure which Clause 64 lays down for the issue of a code of practice applies (with appropriate modifications) to any revision of a code. This amendment seeks to substitute the word "that" for "a" in line 14, so making it clear that the parliamentary procedure for the revision of a code is the same as that required for the first issue of that code. But since the procedure is the same for all codes, it does not make any difference whether the reference is to a particular code or to any code. I do not think that it makes a tremendous amount of difference which we do. I think the noble Lord may perhaps agree at this late hour to leave the Bill as it is.
Amendment, by leave, withdrawn.
Clause 64 agreed to.
Lord Denham: I think we have now reached the stage at which we are generally agreed that we have gone as far as we can. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Child Abduction Bill
Returned from the Commons with the amendments agreed to.
Cycle Tracks Bill
Returned from the Commons with the amendments agreed to.

Video Recordings Bill
Returned from the Commons with the amendments agreed to.
House adjourned at twenty-three minutes before three o'clock.