HL Deb 09 July 1984 vol 454 cc586-628

4.7 p.m.

House again in Committee on Clause 29.

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 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 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, 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 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 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 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—

  1. (a) the place where detention begins and the police station or other premises to which the person is taken;
  2. (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 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 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


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.

Airedale, L. Aylestone, L.
Amherst, E. Birk, B.
Ardwick, L. Blyton, L.
Attlee, E. Boston of Faversham, L
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.
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.
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 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 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 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.

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 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 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. (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. (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 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 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 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 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 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 moved Amendment No. 99: Page 26, line 41, leave out ("any such") and insert ("an").

On Question, amendment agreed to.

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 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 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 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 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 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 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 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 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. 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


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 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"— 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 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 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 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 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


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 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 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". 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 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. 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.

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 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.

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.
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.
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 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.