Lords Sitting of 11 July 1984

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

Air Fare Guides
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have studied details contained in the two new air fare guides concerning availability of cheap tickets from "bucket shops" and whether they will bring these to the attention of the Civil Aviation Authority.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, Her Majesty's Government are aware of two publications entitled Discount Traveller and A-Z Discount Air Fares, to which I believe the noble Baroness is referring. We have brought them to the attention of the Civil Aviation Authority.
Baroness Burton of Coventry: My Lords, is the Minister aware that I was most disturbed to find out that the department knew nothing at all about either of these guides until I put down my Question? Would he not agree that surely it is the responsibility of the department concerned with civil aviation for such publications to be received automatically by that department? They are, incidentally, quite excellent. May I ask the Minister a separate question. As it is illegal to sell these cut-price tickets but not to buy them, and as the Government obviously do not have the slightest intention of doing anything about it, would it not be useful for the industry, for the traveller and for all agents if these tickets were made available freely to the general public at all outlets?
Lord Trefgarne: My Lords, the noble Baroness and I have discussed this issue on a great number of occasions. The answer to the noble Baroness's question is that we are seeking a more flexible and in many cases a lower priced regime with regard to air fares. We have to do this in consultation with the other governments concerned and we are making a little progress—witness our quite recent agreement with the Dutch.
Baroness Burton of Coventry: My Lords, is the Minister aware that the agreement with the Dutch has got nothing whatever to do with this matter? Is the Minister further aware that the regulations or the laws established by the Government are not adhered to by the Government themselves, that they do not have the slightest intention of seeing that they are adhered to, and that many of us feel that it would be better if these laws were swept away altogether? Finally, may I ask
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the Minister a question concerning the Civil Aviation Authority. Am I not correct in imagining that on several occasions the authority has said that it has neither the time nor the staff to deal with these matters? Could the Minister press the CAA a little harder on that issue?
Lord Trefgarne: My Lords, I am afraid that it is not possible for the Government unilaterally, as I believe the noble Baroness is asking, to sweep away all the regulations to which she has taken exception. The Government are at one with the noble Baroness, in that we agree that in many cases the fare regimes are over-restrictive and unnecessarily complex. We welcome moves to correct that position, but we are not in a position to do so unilaterally. We have to do it bilaterally with the other governments concerned. That we are seeking to do.
Lord Bruce of Donington: My Lords, in order to make this entire matter more cost-effective from the Government's point of view and on the assumption that the noble Baroness. Lady Burton of Coventry, were agreeable, would it not be wise to second the noble Baroness to the noble Lord's department?
Lord Trefgarne: My Lords, I believe that the Government can obtain the benefit of the views of the noble Baroness without having to employ her.
Lord Mottistone: My Lords, is my noble friend aware that the arrangements with the Dutch which he mentioned do not allow one to book in advance? One can take only a stand-by ticket which does not guarantee passage.
Lord Trefgarne: My Lords, I believe that that is the case with the very cheapest fare which is now being offered on the routes between the United Kingdom and the Netherlands. I do not believe that this is the case with all the fares. If the noble Lord cares to inquire a little more carefully of the airlines concerned, he may find there are some fares which are to his liking which do not carry the conditions to which he takes exception.
Lord Monson: My Lords, would not the Minister agree that bucket shops are an excellent example of the Conservative free-market philosophy in practice, in that they bring supply and demand into balance, that they eliminate waste by filling aircraft seats which would otherwise remain empty, and that they benefit the consumer by enabling ordinary people to travel long distances at prices which they can afford?
Lord Trefgarne: My Lords, I should certainly like a greater range of lower air fares such as those which, I am told, one can obtain through a bucket shop, to be made available, particularly on some of the longer routes. That is why we are seeking to persuade the other governments concerned that this would be a good idea. We are having just a little success.
Baroness Burton of Coventry: My Lords, before the Minister contemplates the dreadful possibility put to him by the noble Lord, Lord Bruce of Donington, may I try to pin him down on one particular point, which

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I appreciate is always very difficult to do. Does the Minister recall that I asked him in my Question whether or not it would be better for these tickets to be made available at all outlets for all travellers—a point of view which has been substantiated today from all quarters of the House? Could the Minister pursue that matter?
Lord Trefgarne: My Lords, I am sorry if the noble Baroness is having difficulty in pinning me down, as she says, but the difficulty of the proposal which she puts to me is that she is asking for these unauthorised air fares, as some of them but not all of them are, to be made available with Government blessing and that, I am afraid, I cannot agree to.
The Earl of Kinnoull: My Lords, could my noble friend anticipate whether Her Majesty's Government will make more progress in the next 12 months bilaterally than they have made during the past 12 months?
Lord Trefgarne: My Lords, if we achieve as much in the next 12 months as we have achieved in the last 12 months, we shall not be doing that badly because the last 12-month period has included the Dutch agreement to which I have referred.

Religious Cults
2.42 p.m.
Baroness Elliot of Harwood: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action has been taken to monitor the activities of so-called religious cults.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, we scrutinise the activities of those cults which come to our attention closely, and if there are allegations of illegality these are fully investigated.
Baroness Elliot of Harwood: My Lords, I thank my noble friend for that reply. Since I have had this Question down I have received an enormous amount of information. Do the Government realise the pernicious and wicked influence which these cults have on children and young adults in the breaking up of family life, and the sexual abuse that follows in some cults? May I suggest to the Government that, if they have not already done so, they should get in touch with the organisation called Family Action, Information and Rescue—known as FAIR—which is doing so much to counter these cults? There is no doubt that these cults are growing and that the evils are growing; and the public's unhappiness and the evils which come from that really are something which the Government should take very seriously indeed.
Lord Elton: My Lords, we are aware of the very unfortunate effects which in some instances these cults have. We are also aware of the admirable work of the organisation Family Action, Information and Rescue,
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which the noble Baroness drew to your Lordships' attention. That organisation has been in consultation with officials not only of the Home Office, but also of the Department of Education and Science and the Department of Health and Social Security. We are keeping in touch with that organisation and with its work. As to whether such influences are growing, there are signs that some of them, at least, are on the wane.
Lord Taylor of Blackburn: My Lords, can the noble Lord the Minister tell the House how many of these cults are registered under the Charities Act?
Lord Elton: My Lords, I cannot give the noble Lord an exclusive list, but it includes the International Society for Krishna Consciousness, The Divine Light Mission, the Moonies, and the Bhagwan Sri Sathya Sai Trust.
Lord Mishcon: My Lords, I am obliged to my noble friend for having anticipated part of my question, which therefore need not be repeated. But is the noble Lord the Minister aware of the anxiety that has been expressed in this House about the fact that some of these cults can register as charities under the existing law, and are therefore being subsidised out of taxpayers' money? Is the Minister considering this question in consultation with his right honourable and learned friend? Is it the Government's intention to bring forward amending legislation so far as the Charities Act is concerned to cover matters of this kind?
Lord Elton: My Lords, I can only tell your Lordships that my right honourable and learned friend the Attorney-General is considering proceedings in the High Court for removal of charity status from two of the charities which are connected with the Unification Church.
Lord Denning: My Lords—
Lord Elwyn-Jones: My Lords—
Noble Lords: Lord Denning!
Lord Elwyn-Jones: My Lords, I will always give way to the noble and learned Lord, Lord Denning.
Lord Denning: My Lords, is the noble Lord the Minister aware that the pernicious activities of these cults have been exposed in the courts of law from time to time and have been proved to the satisfaction of juries, especially in the Moonies case? Is he also aware that the promoters of these cults have amassed huge fortunes? They are often outside this country and cannot be got at, and such funds as are here have been registered as charities and therefore not followed. So these cults are making enormous profits and causing enormous damage. Is it not time that there was a comprehensive inquiry into all their activities?
Lord Elton: My Lords, the noble and learned Lord is right when he says that it is very healthy when the activities of these organisations are made known by the media, as was done successfully by the Daily Mail not so long ago. I agree that the effects of these

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organisations' activities are often extremely harmful and deplorable, but the noble and learned Lord will be the first to agree that a government cannot pursue outside the law activities of bodies which, however much one might disapprove of them, are themselves within the law.
As to the question of an inquiry, I have to say that the experience of both the Netherlands and France has been that such inquiries have not revealed profitable ways to go forward by legislation.
Baroness Macleod of Borve: My Lords, is my noble friend aware that the leaders nearly always claim divinity, and that they treat the people who come within their ambit to psychologically-based techniques which soften the mind and very often the brain? The description of such treatment is "mental mugging" and "assassination of the free Will". That is over and above the absolute disaster that is caused to many families in this country and throughout the world.
Lord Elton: My Lords, my noble friend has described some of the attributes of the leaders of these sects and will doubtless have observed from her knowledge of true religion that salvation and divinity do not usually combine with huge riches. As to the methods these people pursue, I can only say that where they are applied to people who willingly accept them or invite them then that is a matter between the individuals and the organisation in which the state cannot intervene.
Lord Elwyn-Jones: My Lords, if in respect of some of these organisations there is clear evidence of their undesirable nature, cannot steps be taken, as has been done in the case of one or two such organisations, to control the matter to some extent by immigration control of the so-called missionaries who propose to come to propagate their manifestly undesirable practices, as is the case with some of them?
Lord Elton: My Lords, people who seek to enter this country without an absolute right to do so do have to prove that they have legal and reasonable rights to do so. People have been turned away as students, as well as professors, in these religions.
"The Earl of Lauderdale: My Lords, would my noble friend say whether or not any one of the four cults to which he referred as having charitable status has been involved in drug trafficking? It may not have come to his attention yet, but I have heard stories through somebody in the business that that is the case with one of them. Therefore, will the Government look into that aspect when they inquire into these bodies and possibly consider revision of their charitable status? I should like to put a second question to the noble Lord the Minister. He refers to the impossibility of interfering with the activities of people who voluntarily accede to these cults. Is it not right that in the case of the Church of Scientology the Government of the day took very stringent and strong measures to protect people from being bamboozled by them? Is he aware that very often there arise psychological and mental disturbances which in at least one case known to myself led to suicide?
Lord Elton: My Lords, if my noble friend is saying that any of these organisations exist in order to promote drug traffic or that they subsist upon drug traffic, then they are ipso facto illegal organisations and it would be quite proper to pursue them as such. I should be grateful if my noble friend can give me any information to that effect. If he is saying that some of their members indulge in the trafficking of controlled drugs, I am afraid that is probably true of every church, whether legitimate or not.
As to the question of the Scientologists, it was indeed students of the Scientology Church who were denied entrance to the United Kingdom when they sought to attend the headquarters of that organisation for educational purposes, and since then those activities have moved to other parts of the world.
Lord Mishcon: My Lords, I hope I shall be forgiven if I return for one moment to the worrying aspect of charitable status. The noble Lord the Minister will recollect that he was kind enough to indicate that his right honourable and learned friend the Attorney-General was looking into certain cases. Would he consider consulting, as I suggested before, his right honourable friend the Home Secretary as well as the Attorney-General, with a view to securing some clarification, or alteration, of the law which entitles these people to charitable status under the heading of the advancement of religion? Ought we not to have a look at the law in order to see whether it is not just a question of the admissibility of certain charities, but whether the whole category should be looked at?
Lord Elton: My Lords, I shall certainly bring the noble Lord's concern to the attention of both my right honourable and learned friend the Attorney-General and my right honourable friend the Home Secretary. The noble Lord will readily recognise that there is an extreme definitional difficulty in distinguishing between what is and what is not an acceptable religious cult, and I believe that to argue theology in the courts with success has not been done probably since the Reformation.
Lord McNair: My Lords, would the noble Lord the Minister not agree that there is in the House at the moment an unpleasant smell of a witch-hunt? Would he not agree that one man's cult may be another man's therapy, and that it is grossly unfair to condemn as a cult everything other than the established Church?
Lord Elton: My Lords, the noble Lord, Lord McNair, has put his finger very precisely and ably on the exact definitional problem to which I referred.

Crime: Associated Factors
2.53 p.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their response to Sir Kenneth Newman's statement "that undoubtedly unemployment and other forms of deprivation will affect crime".
Lord Elton: My Lords, the Government have acknowledged that unemployment and other associated aspects of social disadvantage may be among the factors associated with crime. But, as we have made clear before, the evidence of research is that there is no established link between rates of unemployment and increases in crime.
Lord Hatch of Lusby: My Lords, would the noble Lord not agree that in his annual report to the Home Secretary Sir Kenneth Newman expressed concern for the morale of people living in inner city areas particularly, and picked out unemployment and other forms of deprivation as having a direct bearing on the crime rate? What is the Government's point of view on that? Do they accept that their economic policies are increasing the crime rate?
Lord Elton: No, my Lords; they do not accept that their economic policies are increasing the crime rate. They accept that all social factors in the life of an individual may contribute to his behaviour, whether or not it is criminal. To link deprivation directly to crime is a dangerous thing to do. The noble Lord will probably think that Brixton is a relatively deprived area, but I would point out that as a result of policies pursued by this Government and the commissioner, there was a reduction of 30 per cent. in the incidence of robbery in that area alone last year.
Lord Hatch of Lusby: My Lords, are the Government therefore denying the assertion in Sir Kenneth Newman's report to the Home Secretary?
Lord Elton: My Lords, I thought I had made quite clear what is the Government's position, and the noble Lord has made quite clear what is the commissioner's position. There seems to me to be very little between them.
Lord Dean of Beswick: My Lords, is not the noble Lord the Minister aware that not only has Sir Kenneth Newman drawn that conclusion, but that numerous other chief constables in the United Kingdom have also made the observation that where unemployment has risen, the crime rate has risen accordingly? Would the noble Lord the Minister not agree that if the Government were to institute policies which included launching a sustained attack on the ever-growing numbers of long-term unemployed, that would have a beneficial effect and would reduce the crime rate?
Lord Edmund-Davies: My Lords—
Lord Elton: My Lords, I think I should answer that question first. The noble Lord's view is—and I say this in no patronising way—somewhat simplistic. It is true that,
"The devil finds some mischief still for hands that have not learned how to be idle",
but it is not true that there is a direct linkage, and if the noble Lord, Lord Dean, will look at the statistics for the period from the beginning of the century until now, he will notice peaks and troughs of employment which are in no way reflected in a steadily rising crime rate. Therefore, if by some magic means we were to end unemployment tomorrow, we would not instantly and dramatically reduce the level of crime.
Lord Dean of Beswick: My Lords, may I then take it that the noble Lord the Minister is saying that the numerous chief constables who hold that belief are wrong?
Lord Elton: No, my Lords. At the risk of boring your Lordships, I shall say yet again that we regard this and other social factors as all being relevant to crime. What noble Lords opposite are seeking to put into your Lordships' minds is the belief that crime is the result of unemployment; my Lords, it is not.
Lord Edmund-Davies: My Lords, may the House accordingly take it that the noble Lord the Minister would agree that, while in no way reflecting upon the cogency of the statement made by the Commissioner of Police for the Metropolis, the causes of crime are contributory and multiple; that even in the "you never had it so good" days of Mr. Macmillan there was a marked increase in the crime rate; that the decrease in religious belief and observance is at least a matter that must never be forgotten; and that accordingly it would be possibly misleading to regard the rate of unemployment as anything like the sole cause of crime, although undoubtedly it is a factor which demands important consideration?
Lord Elton: My Lords, I agree with everything which the noble and learned Lord has said.
Lord Underhill: My Lords, will not the noble Lord the Minister look carefully at the Question put by my noble friend Lord Hatch, which refers to unemployment and other forms of deprivation? If I may follow up the points made by some other noble Lords, may I ask the noble Lord the Minister also to look at the personal comments of the chief constable of Northern Ireland on the same matter?
Lord Elton: My Lords, I sought to deal with the point about deprivation when I answered the first supplementary question of, I think, the noble Lord, Lord Hatch. I should not wish your Lordships to think that I am saying unemployment does not matter. What we are looking at is the question of why we have crime and its linkage with unemployment. I sought to show your Lordships that it is not a direct linkage, that merely to eradicate unemployment would not solve the problem of crime, and that therefore we must look at other means as well.
Lord Hunt: My Lords, would the noble Lord the Minister accept that I really am very surprised by the answers he has just given from the position where he stands? Is he aware that Home Office research unit studies during the last several years, and comparable studies in the United States and Canada, which I have read, show a very clear correlation between unemployment and crime, with, in particular, clear statistics on the 16- to 21-year-olds? Is he also aware—I am sure he is—of the very marked increase in the last 12 months in the use by the courts of custodial sentences on young people in that age group? Is it not obvious that in large part that situation stems from enforced idleness, frustration and despair? Finally, in this situation would the Government not consider some modification of their economic policy in view of the heavy social and financial costs involved?
Lord Elton: My Lords, the noble Lord rests his case on Home Office research. May I, therefore, refer him to Research Bulletin No. 14, which is the most directly relevant and recent of these pieces of research, published by the Home Office and now available in your Lordships' Library. This supports entirely the thesis I have been putting before your Lordships. If that does not satisfy the noble Lord, will he look at a paper by Professor Stern of Warwick University and Doctor Carr-Hill which was recently published by the SSRC and which also bears out that conclusion?
Lord Mishcon: My Lords, does one have to be—and I say this with deep respect—a statistician or a superintendent of police, let alone a chief constable, to know in human terms that if society does not want you and you have no useful task to perform in it you are turned into an enemy of society? Is the noble Lord the Minister saying, in the light of these ordinary human facts that do not need research, that the Government have nothing to offer in regard to a lost generation that all of us, every one of us, is responsible for in 1984?
Lord Elton: My Lords, the value of statistics is that occasionally they dispel popular and understandable misconceptions. The noble Lord is right to say that it must seem obvious to the plain man, and indeed to the experienced policeman, that there is a direct linkage between crime and unemployment. But if one looks at the figures the case appears to be otherwise.
As to the generation, I return to what I said earlier. I am not seeking to belittle the harm done by unemployment, nor to belittle the position of that generation in the heart of this nation. The Question on the Order Paper relates to a very specific and simple solution to crime, and that is to get rid of unemployment. My answer to that Question is equally simple: it will not.
Lord Belhaven and Stenton: My Lords, does my noble friend not think that the trade unions might help the situation which is so deplored by noble Lords on the other side?
Lord Elton: My Lords, I am anxious not to broaden the debate on the Question on the Order Paper, otherwise I would be tempted to agree.
Lord Hatch of Lusby: My Lords, is the noble Lord not aware that he is misrepresenting both the wording on the Order Paper and the questions I have asked in supplement? I have never suggested that removing unemployment necessarily removes crime. I have never suggested that there is a direct link between unemployment and crime figures. Is the noble Lord prepared to state whether the Government recognise, as Sir Kenneth Newman does, that the increase in unemployment and deprivation which results from the present Government's economic policies has created a climate in which rising crime can be expected and has been seen?
Lord Elton: My Lords, I had no intention of misleading your Lordships on what was on the Order Paper, which is before all your Lordships anyway, but the theme to which the noble Lord addressed himself was that this Government were responsible for the
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increase in crime because their policy resulted in a decrease in employment. My answer to the noble Lord's substantive Question is that there is no such direct link and that it is only a contributory factor. If the noble Lord will look back only as far as 1950, when there was very high employment and very low unemployment indeed, he will find that it was then that the present crime wave began to accelerate and that is exactly the opposite of what his thesis would suggest.
Baroness Nicol: My Lords, is the Minister aware that there is a direct link between the prison population and unemployment in the sense that the defendant in court is very often given a financial penalty rather than a custodial one if he has a job? This is a qualification which is harder and harder to come by. Therefore, the effect of unemployment on the prison population is very marked.
Lord Elton: My Lords, the noble Baroness points out the particular vulnerability of those in employment—I think I have her right—to custodial sentences.
Noble Lords: Unemployment.
Lord Elton: Well, my Lords, having raised myself the question of custodial sentences I will merely say that my right honourable friend is looking at the possibility of weekend and intermittent custody as a means of preventing those who are punished for crime by a custodial sentence also being punished by the loss of their job. As to the financial implications of unemployed people being sentenced to financial penalties, the courts are in fact required to consider the financial position of a person when fixing the level of a fine.
Baroness Nicol: My Lords, I do not wish to delay the House but the Minister has misunderstood my supplementary question. Is he aware that a custodial sentence is used for an unemployed defendant which would not necessarily be used for an employed defendant?
Lord Elton: My Lords, I cannot comment on the decisions of courts in individual cases.

Windhoek: Arrests
3.6 p.m.
Lord Oram: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they have taken or propose to take in protest against the arrest and imprisonment on 9th June of 37 people at a barbecue near Windhoek in Nambia by South African Special Task Force Police.
Lord Trefgarne: My Lords, we made our concern known to the South African authorities shortly after we heard about these arrests. They have since been released. I understand the authorities in Windhoek have now confirmed that no charges will be laid.
Lord Oram: My Lords, is it not clear from the events subsequent to 9th June, which the noble Lord has now reported upon, that the people were arrested quite arbitrarily and without sufficient evidence against them? Therefore, will he accept my appreciation that the Government took action, as I understand it, during the period of five days, I think, when they were imprisoned?
Lord Trefgarne: My Lords, I am very happy to receive the accolade of the noble Lord.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lady Trumpington will, with the leave of the House, repeat a Statement to be made in another place on the Review Group on the Youth Services.
It may also be for the convenience of your Lordships if I announce that the Committee stage of the Police and Criminal Evidence Bill will be adjourned for dinner at approximately 7 p.m. for a short period and during this adjournment the Army, Air Force and Naval Discipline Acts (Continuation) Order 1984 will be taken.

Ordnance Factories and Military Services Bill
Lord Trefgarne: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Ordnance Factories and Military Services Bill has been committed that they consider the Bill in the following order—

Clauses 1 to 3

Schedule 1

Clause 4

Schedule 2

Clauses 5 to 11

Schedule 3

Clauses 12 to 17.

—(Lord Trefgarne.)

On Question, Motion agreed to.

Police and Criminal Evidence Bill
3.9 p.m.
Baroness Trumpington: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 65 [Evidence from documentary records]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 156ZD:
Page 62, line 6, at end insert—
("and
(c) the court is of the opinion that the statement ought to be admitted in the interests of justice, having regard—
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(i) to the circumstances in which leave is sought and in particular to the contents of the statement; and

(ii) to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based.").

The noble and learned Lord said: This amendment is related to Clause 65, which deals with evidence from documentary records. Your Lordships will see that by the provisions of Clause 65(1):
"a statement contained in a document shall be admissible in any proceedings as evidence of any fact stated therein of which direct oral evidence would be admissible if—

(a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and

(b) any condition relating to the person who supplied the information which is specified in subsection (2) below".

It is therefore an important provision in enabling documents of that kind to be produced in evidence in a criminal trial.
Amendment No. 156ZD proposes to insert at the end of the provisions that I read out:
"and
(c) the court is of the opinion that the statement"—
in other words, the document—
"ought to be admitted in the interests of justice, having regard—

(i) to the circumstances in which leave is sought and in particular to the contents of the statement; and

(ii) to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based".

It may be convenient in conjunction with that amendment to consider also Amendment No. 156ZE.
Amendment No. 156ZE: Page 62, line 23, at end insert—
("() In the case of a person such as is described in subsection (2)(a)(iii) above, he shall be called as a witness if any party to the proceedings so requires.").
It proposes that,
"In the case of a person such as is described in subsection (2)(a)(iii)",
of the provisions, who
"cannot reasonably be expected, (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information, he shall be called as a witness if any party to the proceedings so requires".
Otherwise, the effect may well be that a documentary record which may be seriously prejudicial to the accused could be admitted in circumstances where it is practically unchallengeable. I beg to move.
Lord Denning: I think that this amendment is unnecessary. It relates to the rule against hearsay, which applied in civil and criminal cases in the common law. As was said in Bardell v. Pickwick, what the soldier said is not evidence. That situation was altered in the Evidence Act 1938 in regard to civil cases in matters such as this, but it remains in criminal cases.
A leading case is where the House of Lords affirmed the hearsay rule in these circumstances. Some crooks had purchased motor cars which were damaged beyond repair. They purchased them for a song. They stole other cars of the same make, took the number plates from the damaged cars (which were worth nothing), put them on to the stolen cars and made a good profit. They made out that they were good ones.

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In order to prove the crime it was necessary to get to the records of the manufacturers to see the numbers which had been put on the various parts of the cars, such as the cylinder heads and everything like that, which had been made in the course of duty by the people who stamped the numbers and made the records in the books, and everything like that. The House of Lords, to many people's regret, held that those books and statements were not admissible because of the rule against hearsay.
Clause 65 is a most valuable clause. It puts the criminal law on the same basis as the civil law in regard to evidence from documentary records, such as the things that I have mentioned—the manufacturers' records, the numbers on the parts, and the like. It is a most valuable provision. There have been the necessary exceptions. I should have thought that it was quite unnecessary to add these amendments. The clause is perfectly clear and applicable in itself. As I say, it seems to me that the amendments are not necessary and may even complicate the matter beyond what is necessary. I oppose the amendments.
Lord Mishcon: It is with fear and trembling that I follow the noble and learned Lord not for the first time in regard to this Bill. On many occasions I have had the opportunity, as have my noble friends, of saying how much we agree with him, but there comes a time when, if we think that he errs, in spite of his great wisdom, it is our duty to say so.
The noble and learned Lord talks in terms of equating the civil law with criminal law. We start off with one very vital difference, as he will be the first to agree: civil law is built up on the basis of proof, and the test in regard to that proof is the balance of probabilities. The question of proof in criminal law is, "beyond all reasonable doubt". So we start off with a very essential difference. That difference is to be carried through when one is thinking in terms of evidence, because it is the evidence that is going to prove whether something is beyond all reasonable doubt.
I say this with deep respect. Although the noble and learned Lord used—I am sure for the purpose of shorthand English—the definition of hearsay, what he was really referring to, I am quite sure, if he wanted to particularise, was the difference between primary and secondary evidence; and that is a very vital distinction in his definition of hearsay.
I hope that the noble and learned Lord appreciated that my noble and learned friend did not quarrel with the clause in the Bill. The noble and learned Lord said that it was about time we had something which enabled secondary evidence to get in in certain circumstances. My noble and learned friend agrees with that proposition. The only point that he was making was—and that would have been covered in the previous case to which the noble and learned Lord so tellingly referred—if there had been a provision in an Act of Parliament, as there now is, under which this sort of secondary evidence were admissible, and the court had had the benefit of this amendment—and this amendment purely reciting that:
"the court is of the opinion that the statement ought to be admitted in the interests of justice"—
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those records would have got in, as the noble and learned Lord will agree. Then if we go on,
"having regard … to the circumstances in which leave is sought and in particular to the contents of the statement",
the court in the case to which he referred would have said, "Well, that one is all right, quite obviously". Then we go on to the last safeguard:
"and … to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based".
That would have got through as well in the circumstances.
Having regard, therefore, to the facts that: (a) the noble and learned Lord was talking about hearsay and not secondary evidence; (b) there is this vital difference between civil and criminal law on the basis of balance of probabilities and the onus of proof on a prosecution to prove something beyond all reasonable doubt; and (c) this clause will admit the secondary evidence, these are purely safeguards that would have made the task of the court in the case which he cited absolutely easy.
The noble and learned Lord has a breadth of mind which will always enable him to reconsider anything after a submission is made to him. I hope that in the light of that submission he will tell the Committee that he now agrees with the amendment.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): Far be it from me to enter into the dispute between such notable experts as my noble and learned friend on the Cross-Benches and the noble Lord. Lord Mishcon. But of course in declaring the Government's approach to these two amendments —since the noble and learned Lord, Lord Elwyn-Jones spoke to both ZD and ZE—I am bound to disclose my hand. I am bound to say that, without showing partiality to either, I come down heavily on the side of the noble and learned Lord on the Cross-Benches. I do not know why the noble Lord should express surprise. I have often differed from him and he from me. But I am bound to say that on both the points the noble Lord, Lord Mishcon, was, indeed, demonstrably wrong.
In the first place, the difference between criminal and civil law and the difference in the standard of proof required to secure a conviction before a jury is not relevant to either of these amendments. The noble and learned Lord on the Cross-Benches was quite right in disregarding it. In either case, whether or not the amendment be passed, a jury will have to be satisfied beyond reasonable doubt that the guilt of the accused has been established. So that point was a bad one.
The second point he made was that the noble and learned Lord on the Cross-Benches was confusing the difference between primary and secondary evidence with the hearsay rule. Quite manifestly he was not confusing those two separate things. He was perfectly right to refer to the hearsay rule and to refer to the history of this matter which has been going on in both civil and criminal law throughout my professional experience at the Bar. The hearsay rule for a long time prevented in either civil or criminal proceedings the admissibility of what I may call duty records. The duty record was excluded, unless you called the person who made the record. The most ludicrous case of all, which has already been dealt with by statute law, was when

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the number of the engine of a motorcar could not be proved unless you called the workman who had stamped it on. That was of course contrary to the hearsay rule. It was not a difference between primary and secondary evidence.
If I may, with great respect, establish the point, the difference between primary and secondary evidence is the difference between originals and copies. The noble and learned Lord, Lord Denning, was perfectly justified in saying what he said and the point made against him is a bad one.
This leads me on to say why I do not think it would be wise for the Committee to accept these amendments. The speech which I would have made had I spoken earlier has very largely been made for me by the noble and learned Lord. The hearsay rule is a rule of artificiality and formalism, which is almost peculiar to our own system of jurisprudence. Of course it has immense value in a limited field of cases because it compels the party who wants to give evidence of what the soldier said to call the soldier, and that is the best evidence that can be obtained of the truth or otherwise of what the soldier said because he is then exposed to cross-examination.
But it has been developed into a state of artificiality and formalism which, quite frankly, makes the law ridiculous. It is only a trap for law students when they pass their Bar examinations. It has nothing whatever to do with the interests of justice. With great respect to the noble and learned Lord, a number of these amendments show the extraordinary conservatism, and the quite misguided conservatism, of some members of the legal profession who are very often members of Left-wing parties and not of the Conservative Party. They want to retain this form of artificiality and formalism when it serves no useful purpose whatever.
The object is to exclude from evidence duty records which would otherwise be admitted under Clause 65 in the form in which it exists in the Bill, unless certain additional facts are proved. I think that would be a thoroughly reactionary thing to try to do and it would deprive Clause 65 of a good deal of the value which it would otherwise have.
The first amendment, Amendment No. 156ZD, has drawn its language from part of paragraph 2 of Schedule 3 to the Bill. We put it in paragraph 2 of Schedule 3 because that paragraph refers to duty records made by the police. We thought it was important, in relation to duty records made by the police, that there should be a requirement—though a modified one—that the policeman who made the record should be available to give evidence. However, in the case of the kind of situation which I have been trying to indicate, it serves no useful purpose at all and to a great extent it would deprive the clause in the Bill as it stands of its intended value in the administration of justice.
There has been no call for the introduction of any such provision in general in the 20 years since the introduction of the 1965 Act. I think, with the noble and learned Lord on the Cross-Benches, that on the whole this amendment is an unnecessary complication. I hope it will not be pursued.
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Within reason I would say the same of Amendment No. 156ZE; in fact perhaps I would say it with increased emphasis, because the only effect of that amendment, if read with the schedule, would be to insist in certain circumstances upon the calling of the maker of a duty record who could not reasonably be expected to recollect the matters dealing with the information. Therefore no purpose whatever would be served by calling him.
Perhaps I may trouble the Committee with a quotation from, or, at any rate, a reference to, Schedule 3, which is headed:
"Provisions supplementary to sections 65 and 66".
The Committee will see that in paragraph 7 there appear the words:
"In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of section 65 above"—
to which this is an amendment—
"regard shall be had to all the circumstances from which any inference can reasonably be drawn as to accuracy or otherwise of the statement and, in particular—
(a)" —
I shall for the moment ignore the words which immediately follow—
"and
(b) to the question whether or not that person, or any other person concerned with compiling or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts".
I now go back to sub-paragraph (a), which deals with the question of whether the statement was compiled contemporaneously with the occurrence or existence of the facts.
This provides the kind of factor which ought to be dealt with in front of the jury. I say, with the greatest respect to both noble and learned Lords opposite, that there is a theme song underlying a great number of the amendments which we shall be discussing this afternoon. That is, that they are saying, "Do not trust the jury. Do not let the jury have the relevant facts and decide their weight or reliability because it is not to be trusted. Instead, insert or re-insert into the law a degree of unnecessary formalism or formality which will prevent the jury from considering the question at all." It is precisely because I regard that as being in the worst possible sense reactionary that I ask that the amendments should not be pressed.
Lord Elwyn-Jones: I am fascinated by the noble and learned Lord's caricature of what he calls my theme song. If I may say so, I sing much better than that! I am impenitently conservative in asserting the difference between a criminal trial and a civil trial, criminal proceedings and civil proceedings. In the former the liberty of the subject is at stake. Therefore relaxations of the rules—such as the rule of best evidence, and other rules, which are very familiar to the noble and learned Lord—in criminal proceedings should be permitted only with the greatest possible care, especially in this Chamber, which has the custody of these matters.
In regard in particular to the second amendment, Amendment No. 156ZE, we are there dealing with the case of the proposed production of a document—from who? From a person who
"cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information".

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It may well mean that there is a document highly prejudicial to the accused from a person who can no longer remember anything about it. Surely it is right that the accused in that case should, with the leave of the judge, of course, have permission to ask for the production of such a person to question him about the statement, to refresh perhaps his memory and to ask him pertinent questions with regard to it. I would have thought, with great respect to the two noble and learned Lords, that this was elementary as a piece of fair play between the Crown and the accused. I am quite impenitent about this. However, it touches upon matters of technicality. I respect naturally the views of two noble and learned Lords, with whom I have had the benefit of agreeing and unhappily disagreeing on many occasions. In the circumstances, I am willing to ask leave to withdraw the amendment without singing any song of any kind.
Amendment, by leave, withdrawn.
[Amendment No. 156ZE not moved.]
Clause 65 agreed to.
Clauses 66 and 67 agreed to.
Schedule 3 [Provisions supplementary to sections 65 and 66]:
3.32 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 156A:
Page 104, line 15, leave out ("in proceedings in the Crown Court or a Magistrates' Court") and insert ("tendered under paragraph 8 above in a magistrates' court, the Crown Court or the Court of Appeal")
The noble and learned Lord said: I am sorry that I have such a large brief that I lose my place in it almost every time. This is a Government amendment and purely technical. It is designed to ensure that the offence of making false statements in certificate evidence applies not only to evidence produced in the Crown court or in a magistrates' court but also to any fresh evidence that may be put to the Court of Appeal. The amendment therefore corrects an omission. I hope that on this occasion we may be singing the same tune on both sides.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clauses 68, 69 and 70 agreed to.
Clause 71 [Conviction as evidence of commission of offence):
[Amendment No. 156B, not moved.]
Clause 71 agreed to.
Clause 72 [Provisions supplementary to s. 71]:
Lord Mishcon Lord Mishcon moved Amendment No. 156C:
Page 65, line 12, at end insert ("transcript of the defence plea in mitigation and the sentencing remarks of the judge or magistrate").
The noble Lord said: I can deal with this briefly. I hope that I shall not be the object of the noble and learned Lord's castigation for doing so, nor that I shall
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be accused of being too conservative in my approach. This is an amendment to a clause that deals with the admissibility of a conviction of an offence. Clause 72 to which I am referring says that,
"without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based"—
and we are dealing here with a very important matter—
"the contents of any document which is admissible as evidence of the conviction; and
"the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted,
"shall be admissible in evidence for that purpose".
May I make clear that I do not quarrel with that at all. I merely say that in order that the correct picture can be before any authority or court, one obviously ought to have, apart from the indictment and the bare conviction sheet, a transcript of the defence plea in mitigation so that it will be known why there was a conviction and what it was that led to the conviction in question and to the sentence in question, and the sentencing remarks of the judge or magistrate. Those are short requirements. At least it will mean that the whole picture in defence of the accused and in his protection will be there when matters under this section are being dealt with by record form.
I should like to quote one example that I am sure will appeal to your Lordships immediately. The indictment can read that there is an accusation of having defrauded someone out of a very substantial sum of money. The defence may show that, in fact, the sum of money was very much less than that in the indictment. But the charge is still proved and the conviction will still be registered. What will be before the next court or next tribunal would not be the fact that, in the course of the trial, it was found that very much less than the amount in the indictment was lost by the person who suffered from the fraud of the accused. All that I am asking for is complete record and not partial record.
Lord Denning: This deals with quite an interesting point about getting convictions in evidence. I illustrate it by the number of libel actions that have taken place. I give one illustration. There was the case of Mr. Goody, one of the great train robbers. He was duly convicted and sentenced. Then, Odhams Press or one of the newspapers published an article describing the exploits of the great train robbers. In support of their defence of justification they wanted to prove that he was convicted in fact. At the time it was said, "Oh, you cannot prove that conviction. You cannot put it in evidence" because it was what was called res inter alias acta—something that lies between other people concerned but which the newspaper could not prove in evidence. I am glad to say that in the Court of Appeal we got round that a good deal. We said that although you could not prove that he was guilty, you could prove it in mitigation of damage and, in effect, Mr. Goody dropped his action.
It is most important that the old rule by which convictions were not admissible in evidence should be supplanted by the rule that they are admissible in evidence. I should like to go further. If they are to be submitted in evidence, the explanatory documents, besides the mere formal documents, to explain the

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import of the conviction, the seriousness of it and the like, should be available to the court. I think that that may be so without the amendment, but at all events I would suggest that it is quite a good amendment to make the situation clear.
Lord Edmund-Davies: One matter puzzles me a little. I can put it shortly. I am for the spirit underlying the amendment. But having heard defence pleas in mitigation going on, sometimes for an interminable length of time, I wonder whether it will usefully advantage the convicted accused by having a transcript of the defence plea in mitigation. After all, what will count with those who hereafter have to evaluate the fact of conviction is not what the defence said in mitigation but how much of it the judge received, how much he accepted and how much of it affected the conclusion he came to regarding the appropriate sentence. I wonder whether any advantage enures from having a transcript of the defence plea. But, most certainly, I support having the sentencing remarks of the judge or magistrate. I am puzzled by the usefulness of having a transcript of the plea in mitigation.
Lord Mishcon: It appears that the matter of principle is agreed to by the two noble and very distinguished learned Lords who have spoken. I add the word "distinguished" because I find that they agree with my amendment. I did not use that adjective on the last occasion. The noble and learned Lord, Lord Denning, knows that I regard him, as does everybody else, as being entitled on all occasions to that description.
The answer, if I may make it; to the noble and learned Lord, Lord Edmund-Davies, is this. I think that if one had merely the remarks of the sentencing judge, who may say, for example, "While I support in part the opening plea in mitigation that has been made so eloquently on your behalf, nevertheless, I find myself constrained to say that there must be a prison sentence here", nobody is going to know what, in fact, the judge took into account; and, if I may say so with respect, one cannot expect the judge to be repeating all that is said that he agrees with in the plea in mitigation. He may even talk just in general terms.
I felt, and those noble friends who agree with this amendment felt, that it was rather better, as the noble and learned Lord, Lord Denning, said, to have all the relevant documents there in such circumstances. I appreciate that, in some cases, learned counsel are somewhat more lengthy in their submissions than some of us would think advantageous. But those are exceptional cases, and really the justice of the matter is such that I think we can bear with the rather prolix advocate from time to time and agree with this amendment.
Baroness Phillips: I was waiting for one of your Lordships who is a magistrate to draw attention to the fact that we are talking about the sentencing remarks of the judge or magistrate. So far, we have heard reference only to the judge. As I understood it when I was trained as a magistrate, one was told quite clearly and definitely not to make sentencing remarks; that one would be criticised if one made remarks from the Bench. As I recall them, the headlines in newspapers
898
have always emanated from the remarks made by judges. One was told to say, "We find the case proved, or the case not proved", and so on. I am intrigued to find that now the magistrates, as well as the judges, are going to be given the opportunity of making sentencing remarks.
The Lord Chancellor: I wonder whether it would be possible for me to intervene at this stage. I hope to persuade noble Lords opposite, and, indeed, the noble and learned Lord, Lord Edmund-Davies, that this amendment is based on a confusion of thought. It is an amendment to Clause 72 of the Bill. If one looks at Clause 72, one will see that it refers back only to those documents relating to conviction which are admitted by virtue of Clause 71. So one is limited to Clause 71.
The first thing that needs to be said—I apologise if I am saying something which the Committee may think obvious—is that, so far as the defendant or accused is concerned, Clause 71 is not in point at all, because Clause 71 does not permit evidence of convictions relevant to character and specifically excludes such evidence where this only goes to show a tendency in the accused to commit the kind of offence with which he is charged. What we are concerned with in Clause 72, for the purposes of this amendment, is the fact of the conviction, and not the seriousness of the offence; the factum probatum—the fact of it proved. It has nothing to do with the seriousness of the offence; it is the fact of the conviction, and only the fact of the conviction, which is in issue.
That once clearly in mind, it leads me on to say this: if this related at all to the seriousness of the offence the conviction in respect of which was going to be proved, the case for the amendment, or rather for some other amendment in rather better draftsmanship, might well be made out. If it were for the purpose of allowing, whether it is the plea in mitigation—if I may say so, I agree without any reservation at all with what the noble and learned Lord, Lord Edmund-Davies, said about that—or the sentencing observations of the judge, which would be extremely relevant if one had to consider the seriousness of the offence, I should yield to the case. But if it is only the fact of the conviction which is in issue, neither the plea in mitigation, nor, with respect, the sentencing observations of the judge are really relevant at all to the point we are discussing.
The purpose of Clause 71 is to allow convictions of a person other than the accused to be admitted in evidence for the purpose of proving that that person committed a particular offence where the commission of that offence is relevant to the issue of the case which is being tried; that is to say, the case against the accused. So far as the accused is concerned, evidence of a previous conviction will be admitted where the commission by him of the offence is already admissible, except where this is to show a tendency to the kind of offence charged or is relevant only to his credibility. The kind of case which we are concerned with here is where the accused is charged, for example, with acting with intent to impede the arrest of a third party who is an offender—for example, hiding the knife which the third party used in a stabbing. For that purpose it is necessary to prove the conviction, or it may be necessary to prove the conviction, of the third party, to show that he was an offender. The exact

899
seriousness of what he did will not then be in issue at all.
Having said that, I want to say that really I have done my best to dispose of the amendment, which I think is based upon the confusion of thought which I have tried to expose. If the seriousness of the offence were in issue, then clearly, either by the means suggested in the amendment or some other means—and probably by some other means—it would be necessary to show how serious the offence was. I hope that, in saying that, I have persuaded enough of your Lordships to show that this amendment, although it is intended for a perfectly respectable purpose, is in fact misconceived and ought not to be pressed.
Lord Harmar-Nicholls: Following the courageous example of the noble Baroness speaking as a magistrate, I wonder if I, again as a magistrate, may add a reaction to this amendment. I have always looked upon the processes for getting justice, and the machinery for getting it, as a series of sieves. One has the magistrates, who provide the first stage. The case goes through that stage, then it gets to a higher court, and eventually it gets to what will be the final one, where the final decision is taken as to what, in the ultimate, the punishment will be. I should have thought that one must take the judgment of the lower "sieve" as accurate, having taken into account all the evidence, rather than having to have all the evidence repeated again.
The amendment moved by the noble Lord, Lord Mishcon, asks for the transcript of the defence plea. The transcript of the defence plea must be partial. If I am ever in trouble, I want to be defended by somebody who is partial in my direction. So the transcript must be partial. I should have thought that if, when the final decision is going to be given, one has the transcript of the defence, then, in fairness, it is absolutely right that one should have the transcript of the prosecution.
The defence is there, defending whoever it is who is in trouble; but the prosecution is there, looking after the interests of the public at large. Often the public at large are disconcerted when the eventual outcome from certain courts of appeal does not seem to reflect what the public at large feel is adequate in the circumstances. So, if we are to have confidence in the various "sieves", as I describe them, I do not think that at the last stage we ought to give this preferential treatment of admitting the full transcript for the defence where the full transcript, if ever there is one, of the prosecution is not there to balance it out.
Lord Mishcon: I am sure that the noble Lord will forgive me if I adopt the phrase of the noble and learned Lord the Lord Chancellor and say that I think there is some confusion of thought here. We are not, of course, dealing in any way with the case of the prosecution. We are dealing here with the summary of what is said in mitigation after conviction, and in that regard, according to our procedures, it is not our practice for prosecuting counsel to plead for a certain sentence or to answer any plea in mitigation that may have been made unless there is an error of fact which he corrects in order to enable the judge to know precisely what are the true facts.
900
Let me return to the theme of the noble and learned Lord the Lord Chancellor. He referred us, quite rightly, to Clause 71 and said that the provisions of Clause 72 were supplementary to those of Clause 71. Perhaps he would be kind enough—and I shall sit down immediately after I have asked this question—to refer the Committee to that part of Clause 71 which says that the evidence of the conviction in a certain case of a person other than the accused, is going to be limited in any proceedings whatever—and Clause 71 begins, "In any proceedings"—to the mere fact of his convicton, and that there is no relevance whatever, as is shown by this clause, to any question of how he committed it or what was said in mitigation. I can see no limitation at all in Clause 71 in respect of the matters to which the noble and learned Lord said the clause was limited. I may be wrong, and, if so, I shall be grateful if the noble and leaned Lord will put me right.
The Lord Chancellor: I hesitate to do so because I hope that I am right. We are dealing with matters of very considerable complexity and technicality. The best advice that I could get from those advising me was that the only conceivable case where the seriousness of the third party's previous offence could come into question by reason of Clause 71 was where he was called as a witness and the issue arose as to his credibility, and he was cross-examined to the effect, "Were you not, on 14th January 1987, convicted of stealing from a Woolworth's shop?" Then he would be entitled to give evidence himself as to the seriousness or otherwise of the offence, and he would be able, of course, if it became sufficiently important for both the defendant in the case under trial and for the witness, either to call for or refer to the circumstances of the offence.
However, that is an extremely unlikely situation to arise for the purposes of these amendments, because it is really simply to get round the decision of Hollington v. Hewthorn as to the hearsay rule, which would otherwise have involved some wretched policeman, who probably cannot be found, giving evidence of the conviction and saying that he was present when that man was convicted. It is really to get round the hearsay rule and to prove the fact of the conviction and not the seriousness of the offence which was committed. But there is that conceivable possibility which I am advised could conceivably arise. I have some new instructions; I am very much obliged. Clause 71 states that:
"the fact that a person other than the accused has been convicted …shall be admissible".
This does not relate to the seriousness or otherwise of the circumstances of the offence. I think that is really only a repetition of what I have already said.
Before the noble Lord, Lord Mishcon, rises, may I say, for the convenience of the Committee, that when we have concluded this little amendment—and I am not trying to hurry it in any way—I shall move that the House be resumed in order to take the Statement which is due to be delivered. I hope that is convenient.
Lord Mishcon: I am most grateful to the noble and learned Lord for answering my question, because he has answered it in the way in which I anticipated. There can be a very distinct relevance as regards the

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evidence of this conviction. Prosecuting counsel will, in many cases, want to use this in order to attack the credibility of a witness. The noble and learned Lord said, with an imagination which I admired so much because it was so extensive, that when such a witness has put to him in the witness box the question: "Were you not convicted of burglary on 4th June 1980?", the whole of the criminal proceedings will then be adjourned in order that he can travel to the court that originally convicted him and get all the necessary documentation to show that in fact the plea in mitigation was that he was in very necessitous circumstances at the time and was suffering from a terrific illness, and that the judge had the greatest sympathy with him. All those matters will presumably, according to the noble and learned Lord, be very easy for him to bring before the court within half an hour in order to upset the questions asked in cross-examination.
What the judge will do on that occasion is this. He will say, "You have brought the evidence of the conviction, but before you go on I think that in justice you ought to have a look at the documents which I have, because these documents have enabled me to admit the evidence of the conviction. I have here a summary or a transcript of the plea in mitigation and the remarks of the sentencing judge. I would not want you to be unfair to this witness". That is what we are protecting. If I may say so, that is not what one would have inferred from the remarks originally made by the noble and learned Lord, but I am sure that he made them with his usual good faith. I regard this, as I believe noble and learned Lords do, as a matter of some importance, and purely upon the principle of the matter I think that the Committee ought to express its view.
The Lord Chancellor: I think we are becoming rather unreal. Let us assume that Clause 71 is not passed and that Clause 72 is not passed, and that, therefore, the need for the amendment—if there be a need for it—does not arise. Let us conceive of a trial exactly in the terms just postulated by the noble Lord, Lord Mishcon. What would happen in fact is that the prosecution would have the record of the conviction in the form of a certified copy and would put to the witness, even now and under the existing law, "Were you not convicted of such-and-such an offence on such-and-such a day?" As it goes to credibility, if the witness said, "No", then the prosecuting counsel would in fact be bound, because it would be cross-examination as to credit only; and if the witness said, "Yes"—which is probably what he would do—he would probably not wish to put a lot of detail before the prosecuting counsel went on with his cross-examination because in fact the issue, even there, would basically be the fact of conviction. The last thing that the trial judge would wish or desire, or allow, would be a re-trail of the old case. In my view this is so imaginary.
Of course I do not resist any attempt to call a Division in the circumstances and I certainly did not intend to mislead the Committee in any way. But I regarded it as such an unreal situation that it was hardly worth discussing when the point at issue is how
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you get round the decision of Hollington v. Hewthorn for the purpose of proving a conviction as part of the prosecution's case.
Lord Mishcon: The noble and learned Lord was known at the Bar—and always will be—as the advocate who would never give up and who always had an argument to address to the court which was worth listening to. His last argument was worth listening to, but I am sure he will forgive me if I say that it in no way affects the principle of what I was saying. I am sure that the noble and learned Lord would agree with any practising lawyer who has any experience of these matters that the example which I gave is a common one and not an unusual one.
3.59 p.m.
On Question, Whether the said amendment (No. 156C) shall be agreed to?
Their Lordships divided: Contents, 97; Not-Contents, 118.

DIVISION NO. 1

CONTENTS

Airedale, L.

Kilmarnock, L.

Amherst, E.

Kinloss, Ly.

Ardwick, L.

Lawrence, L.

Attlee, E.

Leatherland, L.

Aylestone, L.

Listowel, E.

Banks, L.

Llewelyn-Davies of Hastoe, B.

Barnett, L.

Lloyd of Kilgerran, L.

Bernstein, L.

Longford, E.

Beswick, L.

Lovell-Davis, L.

Birk, B.

Mackie of Benshie, L.

Boston of Faversham, L.

McNair, L.

Bottomley, L.

Mar, C.

Briginshaw, L.

Mayhew, L.

Brockway, L.

Milford, L.

Brooks of Tremorfa, L.

Mishcon, L.

Bruce of Donington, L.

Molloy, L.

Buckmaster, V.

Nicol, B.

Burton of Coventry, B.

Northfield, L.

Caradon, L.

Oram, L.

Carmichael of Kelvingrove, L.

Plant, L.

Chitnis, L.

Ponsonby of Shulbrede, L. [Teller.]

Collison, L.

Cooper of Stockton Heath, L.

Porritt, L.

Craigavon, V.

Roberthall, L.

David, B.

Rochester, L.

Dean of Beswick, L.

Ross of Marnock, L.

Denning, L.

Seear, B.

Diamond, L.

Serota, B.

Donaldson of Kingsbridge, L.

Simon, V.

Edmund-Davies, L.

Somers, L.

Elwyn-Jones, L.

Spens, L.

Ennals, L.

Stallard, L.

Ewart-Biggs, B.

Stamp, L.

Ezra, L.

Stedman, B.

Foot, L.

Stoddart of Swindon, L. [Teller.]

Gaitskell, B.

Gladwyn, L.

Stone, L.

Glenamara, L.

Strabolgi, L.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Grey, E.

Taylor of Gryfe, L.

Hampton, L.

Tordoff, L.

Hooson, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Hughes, L.

Walston, L.

Hunt, L.

Wells-Pestell, L.

Ilchester, E.

Whaddon, L.

Irving of Dartford, L.

White, B.

John-Mackie, L.

Wigoder, L.

Kagan, L.

Young of Dartington, L.

Kennet, L.

903

NOT-CONTENTS

Ailesbury, M.

Hylton-Foster, B.

Airey of Abingdon, B.

Inglewood, L.

Alexander of Tunis, E.

Ingrow, L.

Allen of Abbeydale, L.

Jessel, L.

Ampthill, L.

Kaberry of Adel, L.

Auckland, L.

Kilmany, L.

Bauer, L.

Kimberley, E.

Belhaven and Stenton, L.

Lauderdale, E.

Beloff, L.

Long, V. [Teller.]

Bessborough, E.

Lucas of Chilworth, L.

Boardman, L.

Lyell, L.

Boyd-Carpenter, L.

Macleod of Borve, B.

Broxbourne, L.

Mancroft, L.

Caccia, L.

Margadale, L.

Caithness, E.

Marley, L.

Campbell of Alloway, L.

Melville, V.

Campbell of Croy, L.

Merrivale, L.

Carnegy of Lour, B.

Mersey, V.

Cathcart, E.

Milverton, L.

Cayzer, L.

Molson, L.

Chelmer, L.

Montgomery of Alamein, V.

Clitheroe, L.

Mottistone, L.

Cockfield, L.

Mowbray and Stourton, L.

Coleraine, L.

Murton of Lindisfarne, L.

Constantine of Stanmore, L.

Northchurch, B.

Cork and Orrery, E.

Nugent of Guildford, L.

Craigton, L.

O'Brien of Lothbury, L.

Cullen of Ashboume, L.

Onslow, E.

Daventry, V.

Orkney, E.

Davidson, V.

Orr-Ewing, L.

De Freyne, L.

Plummer of St. Marylebone, L.

De La Warr, E.

Denham, L. [Teller.]

Portland, D.

Dilhorne, V.

Renton, L.

Donegall, M.

Rochdale, V.

Dormer, L.

St. Aldwyn, E.

Drumalbyn, L.

St. Davids, V.

Duncan-Sandys, L.

Saint Oswald, L.

Dundee, E.

Selkirk, E.

Ebbisham, L.

Sempill, Ly.

Eccles, V.

Sharples, B.

Ellenborough, L.

Skelmersdale, L.

Elliot of Harwood, B.

Stanley of Alderley, L.

Elton, L.

Strathcarron, L.

Exeter, Bp.

Strathcona and Mount Royal, L.

Faithfull, B.

Fanshawe of Richmond, L.

Sudeley, L.

Ferrier, L.

Swansea, L.

Gisborough, L.

Terrington, L.

Glanusk, L.

Teviot, L.

Glenarthur, L.

Thorneycroft, L.

Granville of Eye, L.

Tranmire, L.

Greenway, L.

Trumpington, B.

Gridley, L.

Vaizey, L.

Hailsham of Saint

Vaux of Harrowden, L.

Marylebone, L.

Vickers, B.

Harmar-Nicholls, L.

Vivian, L.

Home of the Hirsel, L.

Westbury, L.

Hood, V.

Whitelaw, V.

Hornsby-Smith, B.

Wise, L.

Hunter of Newington, L.

Resolved in the negative, and amendment disagreed to accordingly.
The Lord Chancellor: As I indicated in my last remarks, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Youth Service: Review Group Recommendations
4.9 p.m.
Baroness Trumpington: My Lords, with the leave of the House, I shall repeat a Statement about the report of the Review Group on the Youth Service which is now being made in another place by my right honourable friend the Secretary of State for Education and Science. The Statement is as follows:
"When this report—appropriately entitled Experience and Participation—was published, I described it as a timely and far-reaching study of the ways in which the youth service was helping young people and I said that it offered some important recommendations for the development of the service. Decisions on certain of those recommendations have already been announced to the House. I turn now to decisions on the outstanding recommendations directed to central Government, to which I have given careful consideration in the light of the many comments received during consultation.
"I accept the review group's recommendation that it would be helpful to the field for there to be a publicly known unit in the department dealing with youth service matters, and I propose to identify such a unit.
"In line with the review group's recommendations, grant-aid is being made available to voluntary organisations for experimental projects in managerial innovation in the youth service and for the training of part-time and volunteer staff in particular: the National Council for Voluntary Youth Services will be consulted about the allocation of these resources. As far as the review group's recommendation for grant-aid for regional and county voluntary organisations is concerned, the department already grant-aids national voluntary youth organisations and I consider that it is primarily for these national organisations to support their regional and county bodies, as a number do now. On financial grounds, it has not been possible at the present time to accept the review group's recommendation for mandatory grants for students on youth work courses. I shall, however, continue to keep the important area of youth work training under careful review.
"The Government have considered with great care the review group's recommendations on legislation, but do not consider that it would be appropriate to introduce new legislation relating to the youth service unless legislation dealing with the whole statutory framework of post-school education were being proposed. This is not the case: as I told the House on 10th April I take the view that existing legislation for post-school education remains broadly adequate for its purpose. I further consider that existing legislation provides a similarly adequate basis for youth service provision. I do, however, recognise the need for additional guidance to the youth service particularly as regards the important areas of co-operation between the voluntary and local authority sectors and the need for effective management of available resources. I

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am consequently issuing for consultation, today, the draft of a circular setting out the Government's views.
"Finally, I have also given careful consideration to the recommendation for a national body to offer advice on questions arising in the field of youth affairs. I have noted, particularly, the considerable support expressed in the report of the review of the National Youth Bureau. In view of the range of activities currently undertaken by the youth service, I am persuaded that a role exists for a small advisory body capable of offering informed advice to me, to my right honourable friend the Secretary of State for Wales, and to others with youth service responsibilities on the appropriate scale and direction of youth service activity—having regard to the available resources.
"I accordingly propose to establish such a body within the next few months for an experimental period of three years in the first instance, subject to review at the end of that period. I shall appoint, in conjunction with my right honourable friend the Secretary of State for Wales, individual members to this body in a personal capacity: in making choices for membership, I shall have regard to the broad range of interests in the youth service field and to advice I may receive on membership from those active within it.
"By these arrangements the Government intend to develop further the youth service partnership, both at national and local levels, for the benefit of all young people."
My Lords, that concludes my right honourable friend's Statement.
4.14 p.m.
Baroness David: My Lords, I should like to thank the noble Baroness for repeating that Statement. Indeed, it is noble of her to do it as she does not normally deal with education matters. We are glad to have this Statement after such a long delay; we have been waiting for it for a long time. The review group was set up in January 1981 and was asked to report quickly. This it did in 18 months, since when 23 months have elapsed before we have had the review of the review by the Secretary of State.
Although there are certain things in the Statement that we can welcome—that an advisory body is to be set up to give advice to Ministers and that there will be a publicly-known unit in the Department of Education and Science dealing with youth service matters—I have to say that we are disappointed that the Statement is not more positive and rather more detailed. Is there, for instance, to be a young person on the advisory body, as was recommended in the report? Is there to be a Minister at the department who will be responsible, where activities involving young people are concerned, for the co-ordination of the work of all departments? That is a recommendation that I should have thought ought to have been followed up as there are so many departments—the Department of Education and Science; the Department of Employment; the Department of Health and Social Security—which have responsibilities for young people.
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We greatly regret that there is to be no legislation to give to local education authorities a statutory duty to provide a youth service and to ensure communication between local authorities and voluntary bodies. The existing legislation is very unsatisfactory, as has been pointed out over and over again in a number of reports. It is, after all, an opportunity the Secretary of State could have taken to legislate for all post-school education. That is something that needs to be done, and that opportunity has not been snatched at.
We regret, too, that the recommendation that mandatory grants should be given for students on youth work courses is to be turned down. There is no comment in the Statement about the age and range that the youth service is to cover. Eleven to 20 was recommended in the report. Is that accepted? There is no comment on the need to bring in the ethnic minorities and girls, and to get them more involved in the service, and particularly to have more coloured people trained as youth workers.
There is no comment on the need for political education to be a normal part of the youth service curriculum pursued in such ways (I quote from the report) "as to involve active participation". Most important of all, there is no reference to the recommendation that the youth service should be funded at a high level. What in fact is happening, according to the expenditure White Paper (Cmnd. 9143), is that the youth service will be cut back by 17 per cent. in real terms over the next three years, and this is at a time when there are one million under 25 unemployed. It makes one wonder very much about the commitment of the Government and the Ministers at the DES to the needs of young people and to the youth service. Those who served on the review group, I suspect, will be disappointed when they read this Statement.
Lord Kilmarnock: My Lords, we on these Benches should also like to thank the noble Baroness for having repeated this Statement. It really is a minimal response to the long and gruelling work of the review body. It is a pity that the opportunity was not taken to give some statutory backing to the youth service. That is the first failure of the Statement. As regards the detail of the Statement, and the experimental projects in managerial innovation, can the noble Baroness say whether additional resources will be provided for them? The Statement is not clear on that point.
As regards the grant aid for regional and county voluntary organisations, which the Statement wishes to continue to be funded by the national bodies out of existing grants, is it not the case that these grants have not been increased to take account of the additional demands made on the youth service by high youth unemployment? Although we were earlier this afternoon discussing the relationship of unemployment to crime, I am sure that no one would disagree that we must wish to encourage an increase in youth club activities, especially in inner city areas.
As regards the review group's recommendation for mandatory grants for students on youth work courses, was this not one of the most important recommendations of the report? Is it not essential for any real improvement in the efficacy of the service? Does the noble Baroness consider that the training of part-time

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and volunteer staff is an adequate substitute for the proper training of full-time staff? Finally, as regards the small advisory body, to this we can give a cautious welcome. But in view of the involvement of the Department of Education with the recreational side of the youth service, and of the DHSS with the youth counselling side, will these departments be represented or will there be a separate interdepartmental co-ordinating body?
Baroness Trumpington: My Lords, I thank both the noble Baroness, Lady David, and Lord Kilmarnock, for the noble Baroness's personal welcome and the cautious welcome of both to the report. I should have thought it would be greatly welcomed by the House because it is a cohesive policy statement arising from the review group that has been announced by my right honourable friend. Your Lordships will appreciate that it is early days to go into great detail, but I will do my best to answer the questions that have arisen.
The noble Baroness asked me about timing. Decisions on two of the report's recommendations were announced in December 1982. The consultation period on the other matters in the report was extended to 31st March 1983. The Government wish to take account of the autumn 1983 report on the review of the National Youth Bureau because that had a bearing on the National Advisory Council and these have been the necessary components in the timing.
With regard to the adequacy of the Government's response, I think that this is a very positive reply. The essential feature of the review group's report was how to secure the most effective use of the considerable resources already devoted to the youth service by voluntary organisation and LEAs so as to obtain the best possible services for young people. The Government's response tackles this squarely at all levels. The National Advisory Council's emphasis in the draft circular on reinforcing the voluntary statutory partnership and the additional grants to voluntary organisations will all contribute.
With regard to a Minister being appointed, which the noble Baroness also asked me about, the Prime Minister announced in July 1983 that she did not intend to accept the review group's recommendation that a Minister should be designated, based in the DES, to co-ordinate the work of all departments which have an interest in youth affairs, and she said in a Written Answer that:
"Such an appointment would tend to complicate existing lines of responsibility, which I believe to be satisfactory".—[Official Report, Commons, 29/7/83; col. 645.]
I was quoting directly from the written reply.
With regard to legislation to which both the noble Lord, Lord Kilmarnock, and the noble Baroness referred, as I said earlier, my right honourable friend the Secretary of State for Education and Science considers that existing legislation provides a broadly adequate base for youth service provision. The real need is to secure a more effective use of existing resources. The circular which is being issued for consultation will make an important contribution. While much magnificent work is being undertaken, there is evidence that resources could be used to better effect. In Chapter 5 of the report the review group
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referred to a number of aspects of management and training which could be improved. Recent HMI reports have confirmed the need for more efficient management structures.
The position is that after careful consideration of the recommendation in the review, The Legal Basis of Further Education, and taking account of other measures now in hand to promote efficiency and effectiveness in further education, the Government have decided not to introduce new legislation on further education at present.
Lord Kilmarnock asked me about expenditure on the youth service. Expressed in constant cost terms total capital and current expenditure on the youth service has been at about the level of £100 million since 1978–79 with an increase to £107 million in the last two years. Right honourable and honourable Members in another place were aware that comparisons with the present and future years are made impossible because the margin of expenditure is not allocated to specific services, but the current RSG settlement should allow the great majority of authorities in the aggregate to maintain their 1981–82 levels of provision if costs can be contained.
Lord Kilmarnock also asked me about youth organisations, with particular regard to the young unemployed. The draft circular refers to the important needs of groups such as those young people who suffer from mental and physical handicap and those of the ethnic minorities, but particularly the needs of the young unemployed. My right honourable friend hopes that the circular will assist in achieving a more effective use of resources from which all these groups would stand to benefit. My right honourable friend would expect the new advisory body to wish to consider the role of the youth service in relation to a number of these areas. I have answered as many of the questions as I think time and your Lordships will permit. I hope that if your Lordships feel that I have left out any valuable and important answer they will allow me to write to them.
Lord Taylor of Blackburn: My Lords, to some extent I welcome the Statement that has been made, but I feel that this is one of the most wishy-washy Statements that have come out of the DES for many years. It does nothing to help the youth service. I do not want to fall into the trap that I fell into some time ago while commenting on Statements, but I should like to ask a question. The Statement said that the Secretary of State intended to create a unit within the department. A unit is no good. Why do we not have a branch of the department to deal with this important part of the service of young people within our country?
Baroness Trumpington: My Lords, I am sorry that the noble Lord. Lord Taylor, feels the way he does. He is entitled to his feelings, but I feel that they will not be shared by the majority in this House who will have welcomed this Statement. The terms of reference of the National Advisory Body will be finalised and announced shortly, but they will be generally as indicated by my right honourable friend in his Statement. They will enable the advisory body to consider the contribution of the youth service in important areas such as youth employment while still

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retaining a manageable remit for the body. The chairman, members and the title of the advisory body will be announced later. The Government are keeping this body to a three-year period because the youth service is a rapidly changing scene and it is difficult to foresee what will be needed in three years' time, which perhaps in itself answers the noble Lord's question.
Baroness Carnegy of Lour: My Lords, is the noble Baroness aware that many voluntary organisations within the youth service will regard this Statement as far from the minimal and wishy-washy affair which noble Lords opposite have indicated? The voluntary organisations are deeply divided about whether it would be the best way to make it a mandatory requirement on local authorities to provide for the youth service. They will regard grants for training and for innovation for voluntary organisations as immensely helpful at a point where they most need help and I should have thought they would welcome this warmly.
Is the Minister also aware that the Scottish Council for Community Education, which is an advisory body to the Secretary of State covering the same area for youth work which the proposed advisory body will cover, is serviced by its own officials rather than by civil servants from the Department of Education? Can she tell the House whether that is the intention or whether it will be serviced from within the Department of Education and Science?
Baroness Trumpington: My Lords, I greatly welcome the words of my noble friend and I should like to draw to her attention the fact that a total of £75,000 is being made available to voluntary organisations. Subject to future decisions by Parliament, resources at this level are expected to be available in years to come. This £75,000 is in addition to the grant allocation of £440,000 which the Department of Education and Science already makes available for experimental development project grants.
With regard to my noble friend's other point, I am not particularly aware of the Scottish situation, but my right honourable friend is aware that youth service provision in some local authorities does not come within the remit of the education committee but is dealt with by another committee. However, this applies only to a fairly small minority of authorities. I cannot give my noble friend any information on the matter other than that.
Lord Kilmarnock: My Lords, will the noble Baroness be kind enough to write me about my question on the composition of the advisory bodies?
Baroness Trumpington: Yes, my Lords.
Lord Grimond: My Lords, I am profoundly doubtful whether our problem can be solved by the appointment of new Ministers or, indeed, new advisory bodies. However, if we are to have a new advisory body on youth problems, can the noble Baroness the Minister give us an assurance that some members of the body will be youthful; that is to say, they will be under 25?
Baroness Trumpington: My Lords, if the noble Lord, Lord Grimond, looks at the original Statement, he will see that my right honourable friend said that,
"in making choices for membership, I shall have regard to the broad range of interests in the youth service field and to advice I may receive on membership from those active within it".
Lord Grimond: My Lords, the noble Baroness is well aware, of course, that most of those engaged in the youth service field are well over 50.
Baroness Trumpington: My Lords, I do not altogether agree that it would follow that they might not advise that younger people might be appointed.
Baroness Ewart-Biggs: My Lords, may I put to the Minister two brief questions about this body? I feel that many hopes will be placed on how it is formed and on what it will do. I should like to reiterate the priority that there should he on it a young person. I think that the Minister would agree that there is a very fragile link between young people and authority and that this might be strengthened through young people participating in the advisory body. Furthermore, one important role for it would be to make quite sure that its work is co-ordinated with the youth service, so as to inform young people about new developments in the law, such as the new powers in the Police and Criminal Evidence Bill and to ensure that young people know about their own rights under it. I could give other examples; but that is one of them.
Baroness Trumpington: My Lords, I would refer the noble Baroness, Lady Ewart-Biggs, to my earlier answer on composition to the noble Lord, Lord Grimond. I think that my right honourable friend will be well aware of the second point which the noble Baroness has made. For instance, there is an important inter-relationship between the decisions just announced on the youth service report and the review of the National Youth Bureau. The Government will now be able to make rapid progress in reaching decisions stemming from the review of the bureau.

Police and Criminal Evidence Bill
4.35 p.m.
House again in Committee.
Clause 72 agreed to.
Clause 73 [Confessions]:
Lord Airedale Lord Airedale moved Amendment No. 157:
Page 66, line 11, leave out paragraph (b) and insert—
("(b) in circumstances existing at the time (including anything said or done) which were likely to render unreliable any confession which might be made by him,").
The noble Lord said: If I may, I shall move this amendment on behalf of the noble Lord, Lord Donaldson, because I have one rather small point to make in relation to it. Both the Bill and the amendment make use of the expression,
"circumstances …which were likely to render [the confession] unreliable".

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The word is "likely", not "liable". I should be much happier if the words were:
"circumstances …which were liable to render the confession unreliable".
There is quite a difference between "liable" and "likely". If I leave my car unattended in the village street, I am liable to be run in for obstruction, but it is not very likely. I should be much happier if it were accepted that, even if a confession was liable to have been obtained unfairly, even if that was not likely, then the confession should not be admitted in evidence if it was liable to be unsafe. I beg to move.
Lord Donaldson of Kingsbridge: I am grateful to my noble friend for proposing this amendment on my behalf. I apologise for not having been present. We had discussed it just as I was going away to meet a guest and my arrangements went slightly wrong. He has made an interesting point which was not the main point. This was thought up by my noble friend Lord Hutchinson, who unfortunately is now in hospital, and who thought that the existing subsection was inelegantly phrased and could be put very much better rather more briefly. That is really the object of the amendment. It has no ulterior significance and the noble and learned Lord can deal with it by saying either that, though shorter, it does not mean the same thing, or—as I think—though shorter, it does mean the same thing, and is therefore acceptable.
Lord Hooson: Perhaps I may add a word on this amendment. The present wording of the Bill is objectionable also in the sense that it refers not only to the circumstances, but states,
"which might be made by him in consequence thereof".
That implies that there is a subjective test brought in and that one looks far beyond the circumstances. In our submission that is too wide a definition, and the amendment, as my noble friend has proposed it, is not only shorter and more elegant, but also more acceptable.
The Lord Chancellor: I am very concerned to hear that the noble Lord, Lord Hutchinson, is in hospital. I hope that the noble Lord, Lord Donaldson, will convey to him my wishes that he may soon recover completely. I can see from the Benches opposite that they, too, should like to be associated with that expression.
I have been a little puzzled by this amendment, which to me seems to be—and I think that my belief is now confirmed, following the speeches which have been made in support of it—an alternative draft of paragraph (b) as it appears in the Bill. I am bound to tell the noble Lord, Lord Donaldson, and, I think, the noble Lord, Lord Hooson, that I do not think that the amendment, though shorter (and that is always a merit) is in this case an improvement. Something significant has been lost in-the recension, and that is the explicit requirement that a causal link should exist between the circumstances existing at the time and the confession which might be made by the accused person in consequence. It is, I think, an already established part of the law of confessions—and, goodness knows! I think that it is far too elaborate already—that there should have to be (in order to
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exclude recension) a causal link between what was said or done as an inducement or a threat and the making of the confession, and that that causal link should be the kind of causal link described in the draft as,
"likely to render the confession unreliable".
The Committee might be interested to know that the subsection now in the Bill follows exactly, or almost exactly, Clause 22(b) of the draft Bill proffered by the Criminal Law Revision Committee in their report on evidence. The only change, I am told, is that the words,
"any threats or inducement of a sort",
are replaced by the words "anything said or done", which is plainer and more far-reaching.
If I may deal with the point made by the noble Lord, Lord Airedale, in introducing the amendment, I do not think the word "liable" would be acceptable in the clause. "Likely" is a reasonable word and means what it says; "liable" has a dual possible meaning. In popular speech it might mean "conceivably possible", which I do not think is good enough. In actual strict legal parlance and, curiously enough, in the example that he gave, it has a legal connotation which means that you are subject to a possible prosecution. I do not think in either event that it would do.
There is nothing of principle in this amendment, except this—and I shall return to this from time to time. The essence of the sequence of amendments—we shall come shortly to some more important ones which we shall discuss at greater length—is to define, when you have a confession or an alleged confession, how far you are going to allow the tribunal of law—that is, the judge—or compel the tribunal of law—that is, the judge—to withdraw the evidence, however compelling, or if thought otherwise compelling, from the tribunal of fact—namely, the jury.
It is my strong conviction that, except in two classes of case on which we shall no doubt be elaborating a little later when we come to discuss the more substantial amendments, the jury is a good judge of what is reliable and what is unreliable and what weight to give to it on the assumption that it is not rejected as unreliable.
I am a jury man and not a judge man for this purpose. I think that one of the advantages of our system of justice, quite apart from the libertarian elements of it, with which we are not concerned at the present stage, is that by trial by jury we do distinguish between the tribunal of law and the tribunal of fact, which enables us to leave the relevant evidence, if it is obtained in a way of which Parliament approves, to the jury to decide whether they believe it or not and how much weight to attach to it. I would stick to that through thick and thin. I do not know that there is any great question of principle between us but I would rather stick to the present draft.
4.43 p.m.
Lord Donaldson of Kingsbridge: I am grateful to the noble and learned Lord. I am unable to understand the difference between the two, to which he objects. I do not think that this is frightfully important but we have a long day of legal argument and it will not hurt to

913
have a few, as it were, literary arguments thrown in here and there.
The noble and learned Lord asked for a link. The link is the same in each paragraph—"likely to render". Why is "likely to render" in the Bill version a more effective link than it is in the amendment? I should like to ask for information.
The Lord Chancellor: Clause 73(2)(b) says:
"in consequence of anything said or done which was likely".
It was to the words "in consequence or that I was referring.
Lord Donaldson of Kingsbridge: Without understanding the point of the noble and learned Lord, beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wigoder Lord Wigoder moved Amendment No. 158:
Page 66, line 24, leave out subsection (4).
The noble Lord said: I have been asked by my noble friends to move Amendment No. 158, behind the extremely uninteresting wording of which it may be that there does in fact lurk a point of principle of some importance. As I have understood the law, when last I have had anything to do with it, if a witness called "A" says that "B" has told him that "C" has committed an offence, there are no circumstances in which that can be admissible as evidence against "C". That is only right and proper and sensible and fair unless and until the moment comes when "B" gives evidence and can be cross-examined about his allegation that "C" has taken a part in the commission of the offence.
Subsection (4) seems at any rate at first sight to reverse that desirable and appropriate state of affairs. I say that for this reason. Under subsection (8) of the clause, "confession" perfectly properly is defined as including,
"any statement wholly or partly adverse to the person who made it".
Then under subsection (4), about which this amendment is concerned, it is said that where,
"a confession is received in evidence.… it shall be admissible as evidence of any matter with which it deals".
As I understand that, the position is therefore that if "B" makes a statement to police officer "A" that he, "B", was to some extent involved in an offence, then of course that is a confession and is admissible. If "B" goes on in his statement to say, "Although I was to some extent concerned in the commission of the offence, "C" was the ringleader; "C" was the person who put me up to it; "C" was the person who persuaded me in one way or another to commit the offence", the whole of the confession is admissible by virtue of subsection (4) and is admissible as to any matter with which it deals—namely, admissible as to the statement by "B" that "C" was primarily responsible for the offence. This means, as I understand it, that "A", a police officer, can give evidence that "B" has told him that "C" committed the offence, and that that is now to be admissible as evidence against "C", and furthermore is to be admissible as evidence against "C" in the very circumstances in which the statement by "B" is likely to be wholly unreliable as being the statement of a person who has much to gain from putting the prime responsiblity upon someone else.
That is the situation as one sees it from looking at subsection (4). I would be grateful if the noble and learned Lord would confirm whether that is the result and, if so, whether it is the intended result of this subsection. I beg to move.
Lord Campbell of Alloway: May I very briefly associate myself with everything that the noble Lord, Lord Wigoder, has said, because he said everything that I had wished to say. I wish to add only this. If one is going to codify, this subsection (4), with respect to whoever drafted it, does not stand up to much scrutiny as a form of codification and leaves the considerable area of doubt in all the practical senses to which the noble Lord has referred. I would suggest that this is a matter which ought to receive further consideration between this and the next stage of the Bill.
The Lord Chancellor: I confess that when I read this amendment I was rather puzzled about its purpose. I was advised, and I am still advised so far as I know, that the only effect of the amendment would be as follows. The amendment proposes to leave out subsection (4) of Clause 73. Subsection (4) of Clause 73 reads—it is only four lines of the Bill—as follows:
"Where in any proceedings a confession is received in evidence by virtue of this section, it shall he admissible as evidence of any matter with which it deals, including any matter favourable to the person who made it".
The only effect of leaving that out, I should have thought—and, I was advised, the only purpose of the amendment—was to ensure that self-serving statements in a confession are not taken as evidence of the truth of the words used. I should have thought that once you admit a statement, the whole of the statement has to be given in evidence, subject to comment by the judge and subject to the view taken on those comments by the jury.
When the noble Lord, Lord Wigoder, spoke, I began to see a little daylight but I am not sure that I understood correctly what he was trying to say. What I thought he was trying to say—and he will correct me if I am wrong—is that there are, of course, confessions made by an accused person in the absence of a codefendant which ought not to be used in evidence against the co-defendant. Of course, a judge in such circumstances would have to warn the jury that the confession was evidence against the particular accused who made it and not evidence against the codefendant, who was not there and could not be expected to answer it. If the noble Lord, Lord Wigoder, was meaning to say that, I do not understand the clause as drafted as altering the existing law at all. The judge would still be under an obligation, having admitted the statement, to warn the accused that the evidence was evidence against one accused and not against his co-defendant. I think that is right.
The actual form in which Clause 73(4) arrives, despite the animadversions on it by my noble friend Lord Campbell of Alloway, is in fact declaratory of the present law and it derives from a recommendation of the Criminal Law Revision Committee. In providing that the confession shall be admissible in evidence on any matter with which it deals, the subsection of course is not saying that all parts of the confession are to have equal weight. Furthermore, nothing in the clause inhibits the judge from pointing out to the jury,

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where appropriate—and I should have thought it usually would be appropriate—that the self-incriminating parts of a mixed statement are likely to be true whereas the excuses do not perhaps have the same weight. It is also open to a judge, where appropriate, to comment in relation to the excuses offered that the accused has decided not to give evidence. Of course, if he does give evidence he can be cross-examined on his statement as can any other witness.
The idea behind the amendment, if I have the right idea, that a self-serving statement in a confession should not be admissible at all, seems to me to raise practical problems as well as objections of principle. If, for example, in the same sentence the accused admits the offence but says he did not mean to do it, is one to say that only the first part of the sentence is admissible and the second part is not?—because that would be the effect of what seems to lie behind the amendment. I believe that the powers of the judge continue to provide sufficient safeguards against the abuses feared. Subject to the fact that I will ask those advising me to look again at the point that Lord Wigoder raises, I would ask him to withdraw the amendment. I assure him that the point, in the form in which he put it, had not occurred to me before he spoke, and therefore I shall make sure that those advising me take very careful notice of my reply to see whether or not I have made a mistake.
Lord Wigoder: I am grateful to the noble and learned Lord. I was not seeking to contend that self-serving statements should not be admissible. What I was seeking to contend was that self-serving statements should only be admissible as evidence in relation to the maker of the statement, and I am perturbed that the subsection as it stands should contain the words
"it shall be admissible as evidence of any matter with which it deals".
I am perturbed that those words may be taken by the judge to mean, on the face of it, that if "B" says that "C" played a part in committing an offence, that is a matter with which the statement deals and is admissible as evidence to the jury.
I accept entirely the noble and learned Lord's indication that he would be willing to look again at this matter. I believe there may be a real point of some concern which might perhaps be tidied up before the next stage. In those circumstances, I would beg leave to withdraw the amendment at this stage.
The Lord Chancellor: I will repeat that undertaking, because it is possible that I may have misled the Committee myself. If I have, I will write to the noble Lord between now and Report.
Amendment, by leave, withdrawn.
4.55 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 159:
Page 67, line 6, at end insert—
("() A confession in the course of interrogation made by any person in detention shall be excluded unless—

(a) immediately before such interrogation such person was informed of his right to remain silent,

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(b) each question and each answer were recorded as and when asked and given,

(c) the opportunity was afforded to correct the form of each question and answer as recorded at the time when such record was made.

(d) a certificate of due compliance with such procedural requirements was made at the conclusion of such interrogation; and

(e) where it appears possible that such person may be mentally ill or mentally handicapped or there is no clear evidence to the contrary, the nearest available relative of such person or some other person who is responsible for his care or custody or another responsible person who is not a police officer was present throughout such interrogation.

Provided that such exclusion shall not obtain if the substance of the confession is corroborated by extrinsic evidence independent of such interrogation.").
The noble Lord said: Clause 73(2)(b) of this Bill introduces a new test, the reliability test, and this is introduced as a pre-requisite to the admissibility of confessions. But this amendment is concerned with the implementation of that test as regards the uncorroborated confession, made in the course of interrogation by a person in detention, where certain procedural safeguards to ensure a minimum measure of reliability have not been observed and the proposed sanction is exclusion from admissibility.
The provisions of Clause 73, by inspection, are mandatory by reason of the fact that there is no residual exercise of judicial discretion to admit such a confession if the Crown fails to establish reliability in all the circumstances; and already one moves into the grey area where one is neither a jury man nor a judge man; one moves into a new type of middle ground. In that ground the object of this amendment is to affirm that, unless certain safeguards are introduced, these uncorroborated confessions, made in the course of interrogation by a person in detention, are unreliable within the meaning of Clause 73(2)(b) and so fall within the ambit of that mandatory exclusion.
The safeguards proposed are, first of all, that the caution shall have been duly administered in accordance with article 11 of the code of practice and that a certificate of due compliance should be produced to the court; secondly, that a contemporaneous record of question and answer should be made and this must be offered for correction at the time and a certificate to that effect produced; and that special provisions must obtain for those who appear to be mentally ill or mentally handicapped.
Although these are of course, from one point of view, procedural matters, it is not considered appropriate that such rights of the subject (because that is what on any showing they are) which are enforceable by mandatory exclusion should be relegated to any code of practice. If it were a question of compensation for breach, it would not make any difference at all whether it were enshrined in a statute or in a code of practice; but such is not the question.
The purpose of the amendment is not to seek to make good the deficiencies of the fourth draft of the code of practice which it is proposed to issue under Clause 63 of the Bill on the subject of questioning. But if one has regard to the fourth draft of April 1984, which was published before the Bill reached your Lordships' House, it is apparent, on the face of the draft, first, that no consideration whatever is given to the problems of reliability associated with uncorroborated confessions made in the course of

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interrogation by persons in detention. It is also apparent that no consideration whatever is given to the appropriate procedure for questioning and the recording of the questions and answers. It is also apparent that there is no sanction whatever as to exclusion in the event of the caution procedures under article 11 of the code, which are mandatory.
If one turns to article 12.14 of the code, which is concerned with written statements made after caution and which includes the requirements of Annex D, it is also apparent—this is very much in point in the context of the amendment—that those statements do not bear at all on confessions made in the course of interrogation. Again, there is no sanction for exclusion in the event of breach. If one looks at Annex D, which is brought into play by article 12.14, one sees that in paragraph 5 no provision whatever is made for the very type of provision for which I am seeking to contend in relation to the uncorroborated statement. It is an oversight; hence this amendment. As I have sought to point out, it is further apparent from paragraph 5 of Annex D. which provides the opportunity for contemporaneous correction along the lines proposed in the amendment, that those provisions in the code cannot bite upon an uncorroborated confession made in the course of interrogation. There is no provision in the Bill which can bite, either. It is also apparent that nowhere in the code is any consideration whatever given to safeguards in relation to uncorroborated confessions or, indeed, to any other confession made in the course of interrogation by persons in detention who appear to be mentally ill or mentally handicapped—a most important oversight.
The sanction of exclusion from admissibility, for which this amendment contends, is not invoked to exclude relevant evidence, or to discipline the police, or to ensure procedural uniformity, or to establish breach of mandatory procedures. The reason for its proposed introduction is that if the safeguards proposed by the amendment are not observed, the very circumstances to which reference is made in Clause 73(2)(b) show, or tend to show, that such an uncorroborated confession made by such persons in detention is unreliable. As to this matter, page 13 of a document which I do not know whether any of your Lordships have seen but which is called a briefing guide, as revised in April 1984, and which comes from Room 528 of the Home Office appears to manifest a measure of monumental misconception. In the first place—I quote from page 63:
"There is the concept that it would be contrary to the interests of justice to exclude relevant evidence solely because it was obtained in breach of rules".
That will not run, because Clause 73(2)(b) in terms enjoins the judge to exclude evidence which may be true, and hence relevant, unless he is satisfied in all the circumstances that it is reliable. There is the misconception—again I quote from page 63—that,
"it would be a deviation from the main purpose of the original criminal trial to use it as an instrument for disciplining the police".
That is wholly wide of the mark. This amendment does not adopt the approach in Scotland, where an accused may not be convicted on his uncorroborated confession. It seeks merely to introduce minimum mandatory safeguards to ensure that the
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uncorroborated confession in these circumstances is reliable within the meaning of Clause 73.
In conclusion, this amendment serves not only to tighten the measure of safeguard in the interests of the reliability test under Clause 73; it serves also to tighten the measure of safeguard of other important interests. It will contain this ritualistic challenge which has become the commonplace of criminal trials, a matter to which the noble and learned Lord, Lord Denning, referred at Second Reading. It will recognise the reluctance of juries today to convict on an uncorroborated confession which is not recorded at the time and which the accused is not given any opportunity to correct. It will simplify, clarify and codify police procedures in this regard by enjoining a uniform practice where uniformity is desirable but does not exist at present. It will also remove, on a human plane, a source of considerable friction not only in good community police relations but also in court room relations. Last of all, it will avoid a vast waste of time and public expenditure and could result in the better ordering of the due administration of justice in our criminal courts. I beg to move.
5.9 p.m.
Lord Allen of Abbeydale: This noble Lord, Lord Campbell of Alloway, has clearly put the case for the amendment as a whole but, with some considerable trepidation, I should like to say a few words about paragraph (e), relating to the mentally ill and the mentally handicapped. In the course of our deliberations on this Bill we have inevitably heard a good deal about the Confait case. In fact, I suppose that it was originally the reason why we are here at all. Unfortunately, that was not an isolated case. I think, for example, of the Devlin case in Manchester and of the recent case of Foster, about which we had some exchanges at Question Time not very long ago. Foster was a mentally handicapped individual who spent six years in Rampton, having confessed to serious sexual offences of which he has now been totally cleared. Alas, there may be other cases about which we know nothing.
There is a common feature of the cases we do know about, and it is that there has been a confession of the commission of serious crimes which it turned out that the individual did not commit. It is a common characteristic of the mentally handicapped that they tend to try to please the interviewer. It is not altogether surprising that there has sometimes been a readiness to agree with the police officer and tell him what he obviously wants to be told. How skilled the police are in assessing the reaction of the mentally ill and the mentally handicapped, I do not know. In passing, I should like to express the hope that there will he some special training in this regard.
There is a powerful case for putting in the Bill itself some additional safeguard against the acceptance of unreliable confessions in such circumstances. I well know that there has been a good deal of discussion about what should go in the Bill and what should go in the code of practice, and I am certainly not belittling the code of practice. But the fact remains that in the cases to which I have referred the Judges' Rules were not observed and the police officers were not disciplined. For the future, it seems to me that if there

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were the possibility of exclusion of the confession at the trial, that would act as a much stronger deterrent than the threat of possible disciplinary proceedings. If the police officer realised that the prosecution might lose the case, there is more than a good chance that he would then comply with the law.
As it happens, the code of practice does not refer to confessions as such at all. No doubt, this is because of the existence of Clause 73, but it seems to me that the clause as it stands does not go far enough. We are not talking here about hypothetical possibilities; we are talking about the actual experience of cases which have gone badly wrong. What we are seeking to do, I am sure, is to try to minimise the possibility of such cases recurring in the future. To write into the Bill something along the lines of the amendment would be an important step in the right direction. To my mind this point is so crucial that there ought to be statutory provision on the lines of the amendment now before the Committee.
Lord Denning: I would be against this amendment. Clause 73 introduces an entirely new concept and principle into the law about confessions. In 1917, Lord Sumner, in the case Ibrahim v. Rex declared that a confession, to be admissible, had to be voluntary. If it was involuntary, and if it was excited by the fear of prejudice or by the hope of advantage held out by a person in authority, then it was not admissible in point of low, and the judge had so to rule.
That test, although well established, came under considerable criticism and as a result of the recommendations of the Criminal Law Revision Committee, we have this new test, not of voluntariness, but of reliability. One finds in subsections (1) and (2) that the court has to decide whether there existed at the time of the confession anything to render the confession unreliable. I should like to say that once the judge has ruled upon that, the matter should be left with the jury.
The question then is whether the judge should be tied by the further provisions set out in the proposed amendment. One can see the desirability of the rules laid out in the code of practice as to how the interrogation is to be conducted. But let us supppose that there was some slight failure of one kind or another; ought that to render the confession wholly inadmissible, assuming that it was really reliable?
It seems to me that those provisions are well placed in a code of practice and that the real decision in such a case should be left to the jury, as it is in most of these cases. I hope that the Bill will stand as it is, without this amendment.
Lord Airedale: I should like to question the wisdom of the proviso at the end of the amendment, which appears to state the principle that the admissibility of a confession can depend on whether or not the confession is corroborated. Would this be a new principle if introduced into criminal law? If it would, then we shall need to think about it very carefully indeed.
Lord Renton: I should like to express my gratitude to my noble friend Lord Campbell of Alloway and to the
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noble Lord, Lord Allen of Abbeydale. Over the past four years there has been increasing anxiety about the treatment of the mentally handicapped when in the hands of the police, often mistakenly. As president of MENCAP I first drew the attention of the former Home Secretary (now my noble friend Lord Whitelaw) to the way in which a man of 30 with a mental age of eight years had been treated and had been led into signing a confession of murder which, with his mental ability, he was incapable of making. He signed the confession, which was clearly false; and it became apparent that the murder had been committed by another man.
I leave aside the fact that the mentally handicapped person concerned had been beaten up (and there seems no doubt about this) while in custody. That was a deplorable feature of the case, but I am not using it in support of this amendment.
I do not know to what extent my noble and learned friend the Lord Chancellor will reply to this debate. He has been told by the Home Office of the history over the past four years of our dealings with the Home Office in order to try to put into the law something which will prevent these tragic miscarriages of justice from occurring. I have letters and copies of letters from Ministers, expressing great sympathy and saying that of course the Home Office will be at pains to ensure that the matter is properly covered in codes of practice.
I turn to the code of practice. The only reference that I can discover in this regard is on page 22.13, under the heading,
"Persons at risk: arrested juveniles, the mentally ill and the mentally handicapped".
Paragraph 13.1 states:
"An arrested juvenile or someone who is mentally ill or mentally handicapped must not be interviewed in the absence of the appropriate adult unless Annex C applies".
Annex C has nothing whatever to do with the case. Really this is not good enough; the Government have got to do better than this, if I may disrespectfully say so.
I should have thought that as we are legislating afresh in this matter and introducing a test of reliability, as the noble and learned Lord, Lord Denning, has pointed out, we might as well try to do the job properly. When I say "properly" I mean in a way which will put it beyond any risk that those people in our society who are at risk—and the mentally handicapped in these circumstances are those who are most at risk—will not be the victims of miscarriages of justice again. With those thoughts in mind—and I make no apology for putting them to you in a rather stark manner—I wonder if we may just consider this amendment.
To my mind, the crucial part of this amendment is in paragraph (e) of the new subsection to be added to Clause 73, which deals with the mentally ill or the mentally handicapped specifically and as a separate class from those who are dealt with in the earlier paragraphs (a) to (d). There it says, as the code of practice says:
"the nearest available relative … or some other person who is responsible for his care or custody"—
shall be present. I suggest that that does not in any way impair the reliability test to which the Government

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aim in Clause 73; it strengthens it. It does not introduce any new principle which the Home Office find in any way unacceptable; it transfers from the code of practice the one provision which they consider important enough to include in the code of practice to protect the mentally ill and the mentally handicapped. So that provision alone, I would respectfully say, is something which should in any event be added to Clause 3.
Let me just mention the other points and, indeed, the point in the proviso. Although my noble friend Lord Campbell of Alloway has explained those fully—and, indeed, because he has explained them fully—I do not intend to say much about them; they seem to me to be acceptable and not to create anything which would cause confusion in the courts. But if for technical reasons—good legal reasons—my noble and learned friend the Lord Chancellor does not like them or any part of them, then I say the right course would be for the Government to accept in principle that paragraph (e) should become part of Clause 73, and the Government should give an undertaking that it will happen; but I say that very much as what I will call a last-ditch argument. I should hope that the whole spirit, principle and content of the amendment as tabled and moved would appeal to the Government.
Lord Edmund-Davies: I am not myself in favour of supporting paragraphs (a) to (d) of the amendment. I think that the idea that a slight departure from any one of those requirements would be fatal to the admissibility of the confession is opening up a perilous road. But I am enormously attracted by paragraph (e), which has brought to my mind a case in which I was professionally engaged so very many years ago and which I should like, in a few sentences, to adumbrate. It was a murder charge. The accused was a dim-witted person living in a little Welsh village. He was, among other things, the gardener for the man who became renowned later as Dylan Thomas the poet. He was a man with a good reputation for industry who did little jobs. He was dull in comprehension and dim-witted. The charge was that of stabbing in a number of places a perfectly harmless old lady who lived in the village and for whom, again, he did jobs from time to time and with whom, so far as one could tell, he was on the best of terms.
The case came before Mr. Justice Devlin in Carmarthen. He was not happy about the matter and adjourned the case to Cardiff in order to see that the man was defended. In the course of one's duties one had to cross-examine the witness relied upon by the police as establishing what this accused man had said. Against him were alleged remarks which verged at times on the metaphysical, and one had to ask the witness how on earth he had expressed himself: did he do drawings?—he certainly could not have used the words; and, to cut it short, the whole thing evaporated.
How much better off the defence would have been if the recommendation contained in paragraph (e) had been conformed with, and the nearest available relative or another responsible person, not a police officer, was present throughout such interrogation. Somehow, somewhere, such people as that should find a protected place in the Bill; and I hope they will.
Lord Wigoder: If I may adopt the words of the noble and learned Lord, Lord Edmund-Davies, the "perilous road" about which we are troubled is that those who are carrying out an interrogation might be led to believe that a slight departure from these principles will nevertheless not render a confession inadmissible. The "perilous road" is that those carrying out the interrogations will thus be led to further and more frequent departures from these principles. For those reasons we would wish to support this amendment and to support in particular paragraph (e).
5.28 p.m.
The Lord Chancellor: I am at a little difficulty in handling this amendment because I find that on the Order Paper there is quite a sequence of amendments which, although they are not identical in purpose, because some them do not expressly deal with mental handicapped persons, have a broad similarity in object and have various advantages and disadvantages which I think ought to be basically the subject of a single discussion. It may very well be that at the end of them all we shall want to come back on Report to the subject of these confessions rather than decide between a number of rival theories how this matter should be dealt with. They all have some advantages and they all have some disadvantages.
I am bound to say that in its present form Amendment No. 159, now under discussion, is the one which attracts me least, although I take on board, of course, the point which was made by the noble and learned Lord, Lord Edmund-Davies, and by my noble friend Lord Renton, about mental handicap, which is really rather a separate issue, I think, from some of the other points which have been raised.
To begin with, I make one or two general observations which I should like to be borne in mind before we come to a concluded view about any of them. There is a curious ambivalence—almost a love/hate relationship—between the legal profession, and indeed sometimes Parliament, and the jury system. Sometimes we talk about juries as if they were part of the palladium of our liberties and to be trusted at all costs; partly because of the libertarian factor with which we are all familiar and partly because of the splendid impudence of juries in refusing to convict when they think that the accused has been unfairly treated. That view was very well expressed in that lecture on the jury system which Lord Devlin gave some time ago.
In a sense, perverse verdicts are one of the palladiums of our liberties and neither Parliament nor the profession can really prevent juries from acting in that way. So long as they do not act in that way too often I think that, on the whole, it is a very good thing that they sometimes take the bit between their teeth and disregard the voice of authority in favour of a perverse acquittal. But how can one put that in an Act of Parliament?
On the other hand, and viewing the matter from directly the opposite point of view, the legal profession started and constantly reverts—I think in some of these amendments there is a sign of its reversion—to the view that the jury is not to be trusted and that only those facts or that evidence which we think is good for

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them should be fed to them—the sort of nannying approach to juries which I think, in the end, is destructive of the administration of criminal law. The Americans have gone a very long way down that route. They have gone a very long way in favour of total exclusion of all evidence which has been obtained by any methods which are not only a little bit questionable however convincing of guilt the confession or the evidence may be.
I do hope that we never go down that route. It was condemned by the present Chief Justice of the United States in a very telling passage which was quoted, I think, in the Philips Commission report. As I say, I hope we never go down that route. In this particular amendment there is a little more than a tendency to do so, which would be to the great disadvantage of the administration of justice.
Our present law relating to confessions is not at all that bad. In a case on which I had the honour to sit some time ago called Ping Lin, which was a drugs case, we had occasion to refer yet again to the splendid words of Lord Sumner in the famous case of Ibrahim, which says, in effect, that a confession which is obtained as a result of the offer of advantage or a threat of disadvantage if it was not made, is to be altogether excluded. On the whole, as years have gone on, judges, and I think Parliament, have come to see that if one is to keep the jury system the less one tries to exclude from the jury probative evidence and the less one tries to stop people keeping away from the jury things which could logically influence a sensible man's mind, the better it will be for the administration of justice. We have come a very long way in the past 100 years from that route.
If anyone asks why in that extraordinary breach of promise case between Mrs. Bardell and Mr. Pickwick neither Mrs. Bardell nor Mr. Pickwick gave evidence in front of Mr. Justice Stanley, the answer is a very simple one. It was because Parliament and the profession did not think it was good for juries to hear the evidence of the parties themselves, although they were obviously the only people who knew whether there had been a promise of marriage at all. Indeed, one of the purposes of that immortal discussion was to show the ridiculousness of that kind of approach to jury trials.
When I have said, as I have, that my general philosophy about juries is that so long as we keep the jury system—and I hope we do—the more we trust them, the better, to that I make two vital qualifications. I do not know which is the more important, at any rate, of those that I propose to deal with. The first is that quite obviously the bench—that is, the tribunal of law—has to discipline or police the actual behaviour of the authorities to those in their custody or to those subject to their power; at least to some extent. That renders it absolutely necessary that they should police them in order to prevent oppressive or inhumane conduct, whether or not it results in a confession and, if it does result in a confession, that it puts inhumane conduct in such a category outside the pale of what is permissible that the result is that the confession should be vitiated. I fully go along even with the Americans in that oppressive or inhumane conduct ought to be policed by the judiciary—that is,
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by the tribunal of law—but I would not go very far down that route beyond the point that I have stated.
The other important qualification that I would give to the rule that juries are to be trusted is that everybody knows there are facts—I am looking at the entire Cross-Benches now—which if any one of us had them in our minds when we were deciding a question of fact we would be so prejudiced emotionally by that knowledge that we could not give the man a fair trial at all; those things which, although logically probative, are so emotionally fraught that they deprive the tribunal of fact of its impartiality ought to be excluded by the tribunal of law. That brings me back to something which I wanted to say, and was beginning to say, on an earlier amendment. We do gain a certain advantage, quite apart from the libertarian issues, from the jury trial in that the tribunal of law can be allowed to know things which it deliberately keeps away from the tribunal of fact. Similar fact evidence may be such an example, but the easiest one to mention in a mixed assembly like this is the case of previous convictions. If we are trying somebody for a particular kind of crime and know that he had behind him 15 convictions for the very same thing, I doubt whether any one of us is sufficiently saintly to give the man a fair trial.
Our solution to that problem, which I think is a very good one, is that the tribunal of law knows it and the tribunal of fact is not allowed to know it. The tribunal of fact can give the man a fair trial because it does not know the emotionally fraught fact of the previous convictions, and the tribunal of law is able to police the system precisely because it is given those facts and sees to it that they are excluded except in cases which are known under the Criminal Evidence Act 1898 when the accused brings the evidence upon himself.
Assuming that that is our general philosophy, where do we go? There must be additional safeguards over and above the two blocking elements to which I have drawn attention so that the jury' comes to a right conclusion. The first, and to my mind by very much the most valuable, of those safeguards must be the summing-up of the judge. It is really for the judge to warn the jury about some of the dangers and pitfalls with which, in the light of the particular evidence in the case, they may be confronted. There is the fact that in a police station the situation may be strange and emotionally fraught for the accused. He may say things which he will wish he had not said and which may not be altogether relied upon. There is the circumstance (to which I shall return, of course) that the accused may be very young. He may be mentally weak, as in the case cited by the noble and learned Lord, Lord Edmund-Davies.
But very much the strongest safeguard, once you have admitted evidence which is open to question both as to its reliability, which is one issue, and as to its weight in the light of other evidence, which is another, is that the judge ought to draw such factors to the jury's attention, giving them a careful analysis and a careful warning. Then, if he has got it wrong, over and above the judge—behind him—there is the Court of Appeal, where, in the cases where judges overlook important parts—and of course we are all human—the conviction, if there is a conviction, can be set aside.

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The other safeguard is the discipline of the police themselves. The idea which the Americans, I think, tend to have, that one can use the judiciary, and the rules of good practice and procedure, in order to prevent deviations from the code of good practice and procedure, and that the judiciary can do it alone, is simply untrue. It was said to be untrue by the Phillips Royal Commission in its analysis of the problem. The Royal Commission quoted the Chief Justice of the United States in that sense in the most outspoken criticism of his own law. Chief Justice Warren Burger said:
"Some of the most recent cases in the Supreme Court reveal, almost plaintively, an unspoken hope that if judges say often and firmly that deterrence"—
that is, the deterrence of bad conduct by the police—
"is the purpose, police will finally notice and be deterred. I suggest the notion was never more than wishful thinking on the part of the courts … We can well ponder whether any community is entitled to call itself an 'organised society' if it can find no way to solve the problem except by suppression of the truth in search of truth".
The Phillips Royal Commission broadly came to a conclusion which is in line with the intentions behind the Bill. Here I come back to the noble and learned Lord, Lord Denning. The Royal Commission stated:
"since reliability is the primary purpose of the code of practice for interviewing suspects, the reliability of confessions obtained in its breach must be open to question; and it would not therefore be right for statement evidence obtained in breach of the code to be accepted uncritically and without comment by the criminal courts. The advocate for any accused who contests the truth of a confession alleged to be made by him will have considerable scope for discrediting the evidence of that confession if it has been obtained when the provisions of the code have not been observed".
With great respect, some of the speeches in support of this amendment rather underrate the importance of Clause 64(7) of the Bill. The code itself provides the advocate for the defence, and for that matter the presiding judge, with a very powerful weapon. Subsection (7) 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".
With very great respect to those who have spoken in support of the amendment, I do not think that they have realised the importance of and the weight to be attached to that provision. They seem to think that the sole purpose of the code is to act as a code of discipline for the police and that disciplinary action would result if it were not observed. That is not so.
With great respect, my noble friend Lord Renton was not altogether fair to the code when he said that Annex C had nothing whatever to do with the question of this amendment. I do not think that he was fair. Paragraph 13 of the code deals both with the young and the mentally ill or mentally handicapped. It says:
"An arrested juvenile or someone who is mentally ill or mentally handicapped must not be interviewed in the absence of the appropriate adult unless Annex C applies".
That is the principle. It continues:
"If, having been informed of the right to legal advice under paragraph 3.6 above, the appropriate adult considers that legal advice should be taken, then the provisions of section 6"—
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that is, the legal advice section—
"of this code apply.
Juveniles may not be interviewed at school unless this is unavoidable, in which case the head teacher or his nominee must agree and be present.
Where the parents or guardians of a person at risk are themselves suspected of involvement … it may be desirable for the appropriate adult to be some other person.
All these special groups may be particularly open to suggestion, and it is important to obtain corroboration of any facts admitted wherever possible.
Officers are reminded that a juvenile should not be arrested at school unless this is unavoidable. In this case the head teacher or his nominee must be informed".
There we are dealing with the juvenile and the mentally handicapped person. Of course, we would all agree with the authors of this amendment that special protection should be acquired for them.
Now we come back to the provisions of the clause which is under discussion. There we have it clearly laid down. Clause 73 states:
"If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained … by oppression of the person who made it; or … in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above".
There I think one has a fairly substantial general provision giving the tribunal of law ultimate control over conditions of that kind.
We come back to some of the provisions of this amendment. In some ways, it is less favourable to the accused than the text which I have read out. The amendment would allow confessions obtained in circumstances which would otherwise be against its provisions to be admitted if there was corroboration. But the Bill as at present drafted might well exclude such confessions, and probably ought to do so in a number of cases. Thus the Bill provides more protection than the amendment in such a case.
I do not like the requirement, either in this amendment or in some others, as to the necessity for corroboration in the strict sense of that word. Obviously this is a very important factor, as I have already indicated, in leaving the judge to decide whether or not to exclude evidence as not having been proved beyond reasonable doubt to have been free from taint. Obviously, too, the absence or presence of corroboration and the strength or reliability of corroboration would influence the judge very strongly in considering the terms in which he should put the case to the jury. But to make corroboration as such the test or part of the test in deciding whether or not to exclude altogether what was otherwise thought to be totally reliable evidence, I should have thought was to reintroduce an artificiality and formality which the modern tendency of our criminal trials is to try to avoid.

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At present I should prefer the form of protection which the Bill in its present form provides, rather than the present amendment. But I also accept that the question of the mentally ill or of the vulnerable from the point of view of extreme youth, or for some other reason, raises a separate issue which will require separate consideration.
Perhaps I may now talk a little about the way we are going to handle this debate, because it will go on at any rate until the debate on the amendment in the names of the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Edmund-Davies, has been fully dealt with. My own feeling is that we ought to have these debates one after the other, dealing with particular aspects of this matter. Then, if the amendments are withdrawn I will undertake to report back to the Home Secretary. He will then be able to read the views, not only of those who have spoken to this amendment but of those who have spoken to the others. We can then return to this subject on Report. It is quite clear in my mind that we have not heard the last of it this afternoon. Having made my preliminary observations, I hope the Committee will possibly agree to act in that sense.
Lord Campbell of Alloway: May I thank all noble Lords who have spoken to this amendment. May I thank in particular my noble and learned friend the Lord Chancellor for the tremendous care and trouble to which he has gone, with the depth of his experience, to do justice to the subject of the amendment—although, to be fair, he does not find it, in the main, attractive. That is a matter on which I would wish to pay a particular tribute of gratitude, all the more so because, with the generosity of an open mind, he has extended the invitation that this amendment, with other amendments, may receive further consideration. For what more can one ask? I beg leave to withdraw the amendment and not to continue at this hour to seek to reply to any of the points that have been made.
Lord Renton: Before my noble friend withdraws the amendment. I wonder whether he would join with me in acknowledging the generous offer by my noble and learned friend the Lord Chancellor to treat the position of the mentally handicapped and the mentally ill as a separate issue, and refer that matter to the Home Secretary.
Lord Elwyn-Jones: May I also venture to be associated with what the noble Lord, Lord Renton, has said. What has emerged very clearly in this debate is the anxiety about the treatment of the mentally handicapped. The speech we heard from the noble Lord behind was painful to hear. I suspect that is much in the mind of the noble and learned Lord, but we take that now as assumed.
Amendment, by leave, withdrawn.
5.53 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 159A:
Page 67, line 6, at end insert—
("() Nothing in this section shall allow an accused person to be convicted of an offence on the evidence of a confession obtained—
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(a) during a period of detention in which any breach of the provisions of Part 4 or 5 of this Act occurred, whether or not the effect of the breach was to render the confession unreliable, or

(b) from a child or a young person in response to questioning by a police officer without the presence of a parent/guardian or other person not a police officer,

unless that evidence is corroborated by other evidence not so obtained.")
The noble Lord said: I wonder whether, in view of what the noble and learned Lord said, it would not be a courtesy from my point of view—one which I readily afford to the noble and learned Lord, Lord Scarman—to provide the opportunity for him to indicate what his mind is in regard to Amendment No. 160. May I just say that in my humble view the three amendments deal with entirely different matters. The first one deals with admissibility; the second one, which I would be now moving if I were not making these remarks, deals with the question of conviction and not admissibility; and the third, the amendment of the noble and learned Lord, Lord Scarman, if I may say so, deals with statements other than confessions. So I should have thought the three issues were very different. However, I shall be very much guided in what I do in regard to the amendment that I have the privilege of moving when the Committee has heard what is the intention of the noble and learned Lord, Lord Scarman. His amendment is one which we on these Benches regard as being very important.
Lord Scarman: It is always a refreshing and stimulating experience to hear the noble and learned Lord the Lord Chancelllor outline a case against an amendment not yet proposed and the arguments for which have not yet been developed! I really feel myself in the position of David Gower, who has lost the toss and found that somebody else has decided that they would bat before his team.
Nevertheless, I think the course proposed by the noble and learned Lord the Lord Chancellor is an excellent one, and I adopt it willingly, because certainly Amendment No. 160, which is the amendment that I shall be developing, is in my judgment a very important amendment indeed. It is an amendment of principle and an amendment at which one hopes that the noble and learned Lord and his right honourable friend the Home Secretary will look very carefully indeed.
Therefore, in answer to the noble Lord, Lord Mishcon, I welcome the course taken and I am prepared now, if it is a convenient moment, to open and develop the arguments on Amendment No. 160.
Lord Mishcon: I think that in the circumstances it would be a proper course for me to take in regard to Amendment No. 159A to say that I, too, on behalf of my noble friends, think that the suggestion of the noble and learned Lord ought to be taken advantage of. Therefore, the sensible thing to do in addition is merely to deal very briefly with my amendment, Amendment No. 159A, and take a certain course. When I say I shall deal with it briefly I really mean it because I think the Committee is much more anxious to hear the noble and learned Lord, Lord Scarman, than listen to me. Nevertheless, I have something

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separate to say on this amendment, and I am going to do it very briefly.
As I said before, there are these differences between the three amendments. We have been listening to a very interesting debate on the question of the admissibility of a confession. Amendment No. 159A stipulates that in regard to a conviction there should be no such conviction on the evidence of a confession obtained (the amendment says):

(a) during a period of detention in which any breach of the provisions of Part 4 or 5 of this Act occurred, whether or not the effect of the breach was to render the confession unreliable, or

(b) from a child or a young person in response to questioning by a police officer without the presence of a parent/guardian or other person not a police officer,

unless that evidence is corroborated by other evidence not so obtained.")
In regard to corroboration, the Committee will not want to hear me, having already heard the speeches that were made in regard to that matter on the last amendment. The Committee will be well aware of the point behind that. The real argument behind this amendment is to protect the position of an accused where the confession obtained from him has been obtained either irregularly because of a breach of the vital provisions of this Act which are mentioned in the amendment, or, in the case of a young person, without the presence of a parent or guardian. I think that I need say no more about that at this stage.
I am sure that the Committee will understand if I say that my brief outline of this position is in no way an admission that this is not one of the important amendments before the Committee. Essentially, it is, of course, one of the three matters which one hopes the noble and learned Lord the Lord Chancellor will be considering. Before I sit down, perhaps I may say that I think I have heard an intimation that someone who I regard with great respect would like also to address the Committee. I hope therefore that I shall be pardoned if I do not immediately beg leave to withdraw the amendment.
Lord Elwyn-Jones: The concern that I have, which I mention with great respect, is to ask when we can hope to get the fruit of the further thinking of the noble and learned Lord the Lord Chancellor on these important matters. Can we assume that we shall know where we stand—I say this with the utmost respect—by the time we reach the Report stage? At the moment, the intervention of the noble and learned Lord, about which I make no complaint, has left things in an uncertain limbo. I wonder whether the noble and learned Lord can help us.
Lord Hooson: May I join in that request? It appeared to me that we were going to deal with, and no doubt, debate various important matters of principle. If no decision whatever is taken on those principles this evening—I know that the noble and learned Lord has undertaken to look at the matters, in the light of the debate—your Lordships will be left in the position of having no undertaking of any kind that there will be any change in the Bill. No decision will have been taken. There will be no indication whatever of the will of your Lordships. We are therefore left in a kind of limbo, despite what will no doubt be the high quality of debate to come. My noble friends and I have put
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down an amendment to cover the situation were the amendment of the noble and learned Lord, Lord Scarman, not accepted. In that event, we should want it debated. I hope that the noble and learned Lord the Lord Chancellor will perhaps give a better indication of what the Government intend to do.
The Lord Chancellor: I have the greatest possible sympathy with what has been said. I am in this difficulty. I have been acting very much on my own authority in the last 20 minutes. But, if we had passed the amendment of my noble friend Lord Campbell of Alloway, I do not see how we could have gone on to discuss, with any sense of freedom, any of the succeeding amendments. Obviously, one after the other, they would not have made any sense at all in a consequential series of sections.
I have had to suggest a practical way out of this difficulty, which is that we should all reserve our fire. It may be the case at the end of the day, if what I say is considered totally unsatisfactory and totally unpersuasive, that, when we have all made our speeches on our own amendments—I consider the most important to be that argued by the noble and learned Lord, Lord Scarman—the Committee will want to divide against the Government. I would not dissuade the Committee from doing so. What I really wanted was to allow everyone to have his say. The points made by the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hooson, are perfectly valid. However, to some extent, I have been acting on my own authority in the last 20 minutes.
What I think I must promise to do, in so far as I can achieve it, is this. Obviously, the Home Secretary has the labouring oar. No one knows better than the noble and learned Lord that Lord Chancellors are severely censored and kept away from questions of criminal law and procedure, except when their assistance is considered absolutely indispensable. To some extent, the Home Office does it only when scraping the bottom of the barrel. However, what I think I can undertake to do, so far as it lies within me, is to promise that the Home Secretary, or myself, will write to the authors of these amendments to say what is the Government conclusion. The Report stage is, I think, on 24th July. We shall try to write in good time for that.
I hope that we are not then faced with the same plethora of alternatives from which to choose as we have now. Obviously, even if I wanted to accept any of these amendments, I should be happy with either if t'other dear charmer were away. I shall, however, do my best to see that the noble and learned Lord, Lord Elwyn-Jones, the noble Lord, Lord Hooson, my noble friend Lord Campbell of Alloway, noble and learned Lords on the Cross-Benches and of course the noble Lord, Lord Mishcon, who has played such a useful part, are given an indication of the Government's thinking. I was really thinking of the best that we could get out of this afternoons proceedings.
Lord Elwyn-Jones: I should just like to add this point without prolonging matters. We are, I fear, of the view that the matters of principle raised in Amendments Nos. 159 and 160 are quite different. Similarly, there is a difference on Amendment No.

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159A. All that I am saying at the moment is that we cannot undertake to blend and blur them together between now and Report stage.
The Lord Chancellor: I can see that there is an important distinction between what one admits as evidence and whether a conviction results. But it is the same territory and it deals with the same problem, though in a different way. I had thought that this afternoon at any rate we could possibly blur the difference to that extent.
Lord Campbell of Alloway: Before my noble and learned friend sits down, may I respectfully ask whether it is right that Amendments Nos. 159 and 160 are really dealing with different subjects, but that Amendments Nos. 160 and 160B are in a sense alternative solutions? Is that not right? Is there not a disparity of treatment between Amendments Nos. 160 and 160B, so that both could not ride together? They are inconsistent remedies for the same problem. But, with the utmost respect, as the noble and learned Lord, Lord Elwyn-Jones has pointed out, Amendment No. 159 is another issue. Whether it is a good one or a bad one is not the point. But it is another issue.
The Lord Chancellor: Yes, my noble friend is always right. I agree that they are alternative ways of dealing with the same kind of problem, but I do not think that if you wrote a Bill with Amendments Nos. 159 and 160 in it people would say it was a very good Bill.
Lord Campbell of Alloway: I agree.
The Lord Chancellor: That is really what I was saying. It was for that reason that I suggested this method of progress. I think, frankly, that Amendment No. 159 is a little too artificial and formalistic. Equally, Amendment No. 160B, although it raises a quite different issue—it raises the issue of Sang—is an alternative way of dealing with it but perhaps a little too informal. At the same time, the points raised in Amendment No. 160 must be discussed at length this afternoon before we come to a conclusion.
Lord Mishcon: In the light of all that has been said, I beg leave to withdraw Amendment No. 159A.
Amendment by leave, withdrawn.
On Question, Whether Clause 73 shall stand part of the Bill?
Lord Mishcon: Again, in the light of what has been said, it is not appropriate, I believe, to have a debate at this stage.
Clause 73 agreed to.
6.9 p.m.
Lord Scarman Lord Scarman moved Amendment No. 160:
After Clause 73, insert the followiing new clause:
("Unlawfully obtained evidence.
.—(1) If it is represented to the court in any proceedings that any evidence (other than a confession) proposed to be given by the prosecution was or may have been obtained unlawfully, the court shall not allow the evidence to be given unless—

(a) the prosecution proves to the court beyond reasonable doubt that it was obtained lawfully; or

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(b) the court is safisfied that anything unlawfully done in obtaining it was of no material significance in all the circumstances of the case and ought properly to be disregarded; or

(c) the court is satisfied that the overriding interests of justice require it to be given, notwithstanding that it was obtained unlawfully.

(2) For the purposes of this section, evidence shall be treated as having been obtained unlawfully if it was obtained—

(a) in breach of any provision of this Act or of any other enactment or rule of law; or

(b) in excess of any power conferred by or obtained under this Act or any other enactment; or

(c) as a result of any material deception in obtaining any power under this Act or any other enactment.").

The noble and learned Lord said: After all this practice in the nets, I now start to bat on behalf of Amendment No. 160. I appreciate that it covers the same ground as Amendment NO. 160B. I shall, however, devote myself in the next few minutes to Amendment No. 160. Let us be quite frank at the beginning, notwithstanding the interesting preface to this battle that we have had from the Lord Chancellor, telling us about American practise, which actually is not relevant. Let me be absolutely straight about this. Essentially the object of this amendment is to strengthen the deterrent effect of the Bill in dealing with problems of the misuse of police power in the collection of evidence for the purposes of a criminal trial.
The object is particularly important in the field of the power to stop and search, dealt with in Part I of the Bill, and the powers of entry into premises, and search and seizure, dealt with in Part II of the Bill. Your Lordships will remember that it emerged fairly plainly during the Second Reading that much of the enforcement of the various safeguards against a misuse of police power in this Bill is left to the police themselves. One has here, in a very sensitive area—the collection of evidence and the seizure of documents—an opportunity to enable a power other than the police—namely, the courts—to issue a warning against the collection of evidence unlawfully by the police.
I shall come back in a moment or so to whether that object is a suitable matter to leave to the courts; but that is the object of this amendment. How does the amendment set about doing it? The amendment requires the court to exclude evidence obtained unlawfully, unless—and I emphasise that word, "unless"—the court is satisfied either that the unlawful act was of no material significance in the circumstances and can properly be disregarded, or that the interests of justice require the evidence to be given, notwithstanding that it was obtained unlawfully.
The important feature of this amendment is that it imposes no inflexible rule excluding evidence obtained unlawfully. It is in that regard that this amendment is totally different from the American experience, where the rule is inflexible, and has become, as Chief Justice Burger has remarked more than once, an opportunity for the escape of the clever criminal. There will be no such opportunity, no such charter of freedom, given to a criminal by this amendment, because the judge will have a discretion to admit the evidence, notwithstanding that it was obtained unlawfully, if in the interests of justice that is the course that should be taken.
The Philips Commission, to which my noble and learned friend the Lord Chancellor has already

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referred, in dealing by way of preface with the current amendment, considered the point of principle involved in this amendment; and in that very lucid document your Lordships will find their handling of this point of principle one of the few obscure areas of the report. I have read it several times, and the conclusion which I put very tentatively to the Committee is that the Philips Commission, at the end of the day, did favour a discretionary power, in certain circumstances, for the court to exclude evidence obtained unlawfully. They hemmed it about with conditions, and so forth, but I think it is there; certainly it is possible to rely on the Philips Commission for supporting the proposition that the present state of the law is unsatisfactory.
What is the present state of the law? I will take it very shortly. The law was settled, although I think not without some doubts still persisting, by your Lordships' House, sitting judicially, in the case of the Queen against Sang, decided in 1979. Sang decided a number of questions of principle. First, it repeated and emphasised the essential role of a judge in a criminal trial—the duty to see that the defendant gets a fair trial. Of course, that is a very important matter to keep in mind when one is considering the use by the prosecution of evidence obtained unlawfully.
Secondly, your Lordships' House, sitting judicially in Sang, reviewed the history of the case law dealing with the discretion which an English trial judge undoubtedly has to exclude from the trial, in certain circumstances, evidence which otherwise is admissible. The conclusion reached in Sang was that that discretion certainly exists in one situation; that is, a situation where the evidence, admissible and relevant evidence, sought to be adduced by the prosecution has such a prejudicial effect that the prejudice it might create in the mind of the jury is out of all proportion to its evidential value; that is to say, the value which, as evidence, they ought to give it.
That is a situation in which it is recognised that a trial judge in a criminal case has a discretion to exclude evidence. Two Members of the House, in Sang, took the view that the discretion was limited to that. Three Members of the House, in Sang, took the view that it was wrong to think of the discretion as a limited discretion; it was a general discretion which could be developed in the case law—a general discretion to exclude evidence in the interests of justice. But all five Members of the House recognised that, as the cases had gone, English law had not developed beyond the principle, "Well, if the prejudicial effect is out of all proportion to the evidential value, then the evidence can be excluded".
Those being the conclusions as to the existing state of the law in Sang, the House of course unanimously drew the conclusion that as the law now stands there is no discretion vested in the judge to refuse to allow evidence to be given merely because it had been obtained illegally. The point that the House made was put in this way: the trial judge is concerned with the way in which the evidence is used in his court, not with the way in which the evidence was obtained.
It is by no means certain that that view of the law—which is now the law since it is a matter of decision by this House, and a unanimous decision—has always been the view of great criminal
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judges as to what is the law. Indeed, it is quite clear from the statements made in a number of cases—and I shall not trouble your Lordships with them—that Lord Goddard was prepared to express a different view; Lord Parker was prepared to express and did express a different view and Lord Widgery was prepared to express and did express a different view. All those three judges—and it is no coincidence that they were all Lord Chief Justices of England—have indicated their view that evidence improperly obtained could be, within the discretion of the judge, excluded if the judge thought that it was in the interests of justice that it should be excluded. All that this amendment is doing is putting the law into the form in which at any rate a number of highly distinguished judges thought that it was before Sang and in which it is permissible, I submit, to think that it ought to be now.
It is interesting that in almost every other jurisdiction—and I exclude America at the moment—there is a provision for such a discretion vested in a criminal court. I think that it is right to say that Australia has such a discretion. Whether the discretion is there or whether it is an accepted proposal of their law reform commission I am not quite sure. However, certainly it is canvassed—and canvassed favourably—and may already be the law. Perhaps what is much more important is that, as I understand it, the law in Scotland recognises the existence of a discretion such as this amendment proposes.
Two things matter in this Bill. First, we must ensure a fair trial for the defendant. Secondly, we must give the Bill teeth. Is there really anything wrong or inconsistent with the judicial function in saying that when evidence has been obtained in a manner contrary to law—for instance, by an unlawful entry into premises and an unlawful seizure of goods in those premises or if, in the terms of the Bill, a police officer has obtained access to excluded material or special procedure material without a warrant—the judge when asked to allow that evidence into a criminal trial should take the view, "No, the interests of justice do not require it in this case and perhaps the administration of the law requires that it should not go in at all"?
This is done in other jurisdictions. Of course it is carried to an inflexible degree in America which, I agree with the noble and learned Lord the Lord Chancellor, nobody would accept in this country. But let us carry it so far that the judges can see that the purity of prosecution is maintained. Indeed, that is what we are talking about—the purity and integrity of the prosecution process. I beg to move.
6.25 p.m.
Lord Mishcon: I am sure that the Committee will as usual be indebted to the noble and learned Lord, Lord Scarman, not only for the amendment that he has moved, but for the magnificently clear and eloquent way in which he has presented it. Having said that, I wonder whether the noble and learned Lord will allow me to review some of the points which he made and I should like to express some anxiety in regard to at least one aspect of the amendment.
As regards the main principle of the amendment, the colourful words that the noble and learned Lord

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used in his peroration will remain with us for a long time. The main purpose is the purity and integrity of the manner in which evidence is obtained and in which a criminal court will administer justice. The noble and learned Lord has made the point crystal clear: where a statement has been obtained wrongfully—and we are not dealing with a confession—or other evidence is before the court which has been wrongfully obtained, our immediate reaction along with the noble and learned Lord (now that we are dealing with a Bill which is looking at the whole law relating to this, and this is our opportunity to legislate) is that, except in very, very clear cases, that evidence should be excluded.
I then look at the conditions in which that rule, which one would have thought was a very proper rule, is allowed to be breached in our courts. The first is an obvious one and we need not spend any time on it at all: it is where there is a doubt about whether evidence was unlawfully obtained or not and the prosecution proves beyond reasonable doubt that it was lawfully obtained. There is no problem there at all. The second exception is where—if I may use shorthand English—there is, to the satisfaction of the court, not a material breach of the law relating to unlawfully obtaining evidence. On that one again I should have thought we would have no problem at all.
We then get to the third one. If you reach the third one, it means, first, that the prosecution certainly has not been able to show that the evidence was lawfully obtained—quite the contrary; and secondly, you have reached the stage where there has been a material breach or, to use the very words of paragraph (b):
"The court is satisfied that anything unlawfully done in obtaining it was of … material significance in all the circumstances of the case".
So we have reached the stage where it was of "material significance" that there was a breach. Then the learned judge has this discretion. He has to weigh up whether, although there has been a material breach and although the prosecution has not been able to show in any way satisfactory to the court that the evidence was lawfully obtained, the court is allowed the discretion of deciding that the overriding interests of justice require it to be given, notwithstanding that it was unlawfully obtained. I say this with no disrespect, but our history in criminal law has defined various judges. Some of them are known in the profession as prosecutors' judges; others are known in the profession as defence judges. Very often it is a question of the good fortune or otherwise of an accused as to which type of judge he appears before, but I would hope that at the end of the day he would always obtain justice in our courts.
However, if this is the wording of the Bill, one can imagine that many of our judges would take the view in all honesty and integrity that, although there has been a breach of material significance, Parliament has decided that the jury ought to see this evidence because there is not the slightest doubt that, if a jury does see it, it will know that the accused is guilty, and, if a jury does not see it and does not hear about it, it may well decide that the prosecution has not proved its case beyond reasonable doubt. It appears to me that there is this gap in the case which the noble and
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learned Lord so ably brought before us, and I say that most respectfully. It is a gap about which I am worried, and only the noble and learned Lord, with his learning and experience, can satisfy me that the gap about which I am worried is not one that ought to attract all our concern.
Lord Denning: As I am now a rather senior ex-judge, having heard the noble and learned Lord, Lord Scarman's, very able description of the law, I entirely agree and have nothing to add, except this. As I understood it, the law, as laid down by Lord Goddard in 1955, always was that if evidence was unlawfully obtained it should be admitted, but the judge had a discretion to exclude it in the interests of justice. The new provision which the noble and learned Lord, Lord Scarman, advocates is that, if evidence is unlawfully obtained, it is to be excluded but the judge has a discretion to include it in the interests of justice. In other words, the only difference is the way in which the judge should exercise his discretion when he is dealing with evidence which has been unlawfully obtained.
On the whole, surely it is better if evidence has been unlawfully obtained that the judge has a discretion to include it if the interests of justice so require. That is what paragraph (c) of the noble and learned Lord's amendment says. Therefore, I support the amendment.
Lord Renton: I am afraid that I have come to a different conclusion. The noble and learned Lord's amendment, in common with the two previous amendments, attempts to codify (I think that in this case that is the right word) and alter a part of the law which deals with the discretion of the judges in criminal cases. As the noble and learned Lord, Lord Scarman, knows, I am rather predisposed in favour of codification in certain circumstances. There are arguments for and against it. If the case law is in a state of confusion or has reached conclusions which are no longer acceptable to Parliament, there is a clear case for altering and codifying the case law, even though it dealt with discretions.
However, I must confess that on the matter covered by this amendment—the admission of evidence which happens to have been unlawfully obtained—I think that it is better to leave it to the courts to continue to evolve the law, bearing in mind that in every case it must depend upon the judge's discretion. It so happens that the judges will turn to the case of Regina v. Sang, and I must confess that I do not find the difficulties about that case which the noble and learned Lord expressed. But I find some difficulty about the way in which his amendment will work, although I regard it as a valiant attempt to deal with a very difficult matter, and that we should acknowledge.
However, the operation of the amendment will turn upon the meaning of the word "unlawfully", which is defined in subsection (2). In that subsection there is no mention whatever of, and no way in which one can find out how it would apply to, an agent provocateur, which was the background of the Sang case. So that seems to me to be an uncertainty created by the amendment, and an uncertainty which could cause the courts to have a problem of interpretation. Other questions of interpretation would undoubtedly arise

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leading to argument and appeals. For example, in paragraph (b) of subsection (2) there is the question whether the evidence was obtained:
"in excess of any power conferred by or obtained under",
statute. That will have to be considered. That would not be an easy matter for the courts to interpret.
Therefore, although generally I lean in favour of codification, I just wonder whether in this matter it might not be better to continue to leave this to the courts to decide in the light of the guidance given to the Judicial Committee of your Lordships' House.
Lord Edmund-Davies: As one of those whose name supports this amendment, I rise formally to say that I support every word which the noble and learned Lord, Lord Scarman, has uttered. There are very important grounds for saying that subsection (1)(c) of the clause should remain in the Bill. As usual, the noble and learned Lord, Lord Denning, has put his finger on the proper approach. It is that under the amendment, on the face of it, if the evidence was unlawfully obtained, it is out. But there is a discretion left to the judge that if he is satisfied that the overriding interests of justice require it to be given, then it is in. That is important because what has hitherto not been said about Sang is that Sang said in a wide field of testimony that there was no discretion in the court to exclude it at all.
The desirability of this amendment lies in the fact that the court is vested with a discretion if the circumstances indicate the need. I regard that as important, not only as inculcating proper behaviour on the forces of law and order, but also as restricting the activities of the lay witness, so that if he acts unlawfully and, in the judgment of the court, by improper means in obtaining evidence, it shall not be admitted unless paragraph (c) applies—that is,
"the court is satisfied that the overriding interests of justice require it to be given".
To add any more than that would be a task of supererogation having regard to the enormous debt under which the noble and learned Lord, Lord Scarman, has placed the whole of this Committee by his masterly exposition of this topic. Therefore, I propose to adopt the formula used when the Appellate Committee of this House sits: I concur with the noble and learned Lord and have nothing to add.
6.40 p.m.
Lord Campbell of Alloway: I, too, am concerned—and I say this with all due respect and with a certain sense of trepidation—lest within the folds of its own complexity there is an area of obscurity. However, my concern is not on precisely the same grounds as those advanced by the noble Lord, Lord Mishcon. I agree—it is common ground—that the present state of the law on entrapment by an agent provocateur is far from satisfactory. It is clear that this is because, apart from the general discretion to exclude evidence if the prejudicial effect outweighs the probative value, there is no power to exclude evidence whether or not it has been obtained by unfair and improper means.
I emphasise for a moment the words "unfair and improper" in contradistinction to the use of the term "unlawful". What is unfair and improper is not necessarily unlawful within the meaning of the
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proposed subsection (2). It is not clear—at all events to me—whether what is lawful in paragraph (a) to subsection (1) is anything that is other than unlawful as defined by subsection (2). My noble friend Lord Renton touched upon this aspect.
One has to remember—it has not been mentioned yet, but it is a matter of crucial importance—that the noble and learned Lord, Lord Diplock, in Regina v. Sang, said this:
"What is unfair, what is trickery in the detection and prevention of crime, are questions which are liable to attract highly subjective answers".
This taint of subjectivity which infects paragraph (a) cannot reach paragraph (b) or paragraph (c) because of the definition clause as to "unlawfully obtained". But the question still remains whether a definition clause, which may well exclude "unfair and improper means", to which the noble and learned Lord, Lord Diplock, expressly referred, is not far too restrictive. Hence the problem of obscurity, and hence the problem as to whether the amendment in its present form is truly apposite.
Until the decision in Regina v. Sang—a case where the accused was charged with conspiracy to utter a forged dollar bill and where it was said that but for the inducement of an agent provocateur he would not have done it—it was settled law that evidence obtained from an accused by deception or a trick could be excluded by the trial judge as a matter of judicial discretion as part, as I understand it, of the discretionary principle of fairness to the accused. Such was the view of the three Lord Chief Justices of England to whom the noble and learned Lord, Lord Scarman, referred.
Under Scots law the conventional practice today still is that in criminal cases any evidence illegally or irregularly obtained is inadmissable unless the illegality or irregularity associated with its procurement can be excused by the court. However, if by statute—and this is what it comes to—your Lordships wish to reverse the effect of the decision in Sang, then surely the simpler approach along the lines of Amendment No. 160B, which comes later, is to be commended. Why this should be so—and, of course, I mention this with deference and respect—is because, as I see it, this would restore the law as applied over the years by the three Lord Chief Justices, and would extend this power of exclusion beyond the evidence obtained from the accused (which is limited in that way) to any evidence. The advantage of this approach—and I am not sure at this stage whether I am the juryman or the judge—is that it has to resort to the exercise of judicial discretion in an area where only judicial discretion can achieve a fair and balanced result in the circumstances of the case.
It seems to me that the drafting constraints in this amendment as to what is unlawful and what may be unlawful are too tight. It is far better, surely, to leave it to the judges and to trust the judges. The de minimis provisions in subsection (1)(b) and the interests of justice provision in subsection (1)(c), to which the noble Lord, Lord Mishcon, referred in particular, will be subsumed, taken into account, in the balancing process of the exercise of judicial discretion under the simpler concept along the lines of Amendment No. 160B, which would, in effect, restore the position pre-Sang. For those reasons, I oppose this amendment.
Lord Hooson: There is much to be said for the simple approach advocated by the noble Lord, Lord Campbell of Alloway. As one of the co-authors of Amendment No. 160B, may I say to him that we regard that as a fall-back position and entirely support the amendment proposed by the noble and learned Lord, Lord Scarman. Obviously, Amendment No. 160B restores the position to what we always understood the law to have been and as stated by the late Lord Goddard. Nevertheless, from these Benches we support the amendment moved by the noble and learned Lord, Lord Scarman.
May I come immediately to the fear stated by the noble Lord, Lord Mishcon, about paragraph (c), which gives the court a wide discretion. He was obviously concerned about that. We must take a realistic view. If we are going to have the kind of safeguard at which we are aiming in this Bill, if it is going to have teeth, nevertheless there must be a discretion left in the courts. I do not think it is practicable to think that we would get Amendment No. 160 through without the provision of paragraph (c).
I am more disturbed about the second subsection and its paragraphs, and whether they in fact cover breaches of the codes of practice. It does not appear to me that on their present wording they necessarily do so, and perhaps more thought could be given to that matter.
May I say in relation to the general approach taken by the noble and learned Lord the Lord Chancellor earlier in this debate, when he referred to the love/hate relationship that the legal profession—and, indeed, the Houses of Parliament—have with juries, that I think the love relationship ensues because juries have traditionally looked at evidence which a judge decides is suitable for their attention. That surely is the importance of the matter.
The noble and learned Lord the Lord Chancellor was suggesting virtually that the jury could look at any evidence; the fewer the restrictions the better. I am not convinced that that is right. When one has a group of laymen coming to evidence anew and they are faced, for example, with a confession which appears to set out the detail of an offence; if that confession was improperly obtained, how can they put that in the scales, as it were, when judging whether a man should be acquitted or found guilty? It is necessary to have the judge very carefully sifting the evidence that is suitable to go before the jury.
I entirely agree with the approach suggested by the noble and learned Lord, Lord Scarman. If this Bill is to be effective it must have teeth. As a practising barrister I am bound to say that there could be no greater sanction against a police officer who would misuse the powers. Such police officers may be relatively few and we are only concerned with the safeguards because of the possibility of the misuse of these powers. There could be no greater sanction on that officer than the knowledge that, if he obtained evidence improperly, it was likely to be excluded by the court.
Lord Fraser of Tullybelton: I should like briefly to associate myself with my noble and learned friend Lord Scarman in his amendment. I entirely agree with it. It is only with diffidence that I venture into the
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intricacies of English criminal procedure because I have no practical experience of it. It is a pretty alarming field to the outsider, but I wish seriously to say two things. The first is that I believe the effect of this amendment would be to put the law of England almost on the same basis as the law of Scotland: not quite, but very nearly. I say that not because I think it will appeal to English lawyers that they should, as it were, be forced to adopt Scots law—of course not—but I think I can say with some confidence that the law as applied to Scotland works satisfactorily; it has not thrown up serious troubles and difficulties and I do not think that my English friends need be frightened that the law of England, if amended in this respect, would lead to great difficulties.
My other reason for taking part briefly is that I was one of the parties to the judgment in Sang. I believe that the noble Lord. Lord Campbell of Alloway, referred to Shah—I think he meant Sang.
Lord Campbell of Alloway: I did.
Lord Fraser of Tullybelton: That case went into this matter fairly fully and some of the Scottish authorities were referred to because of earlier cases. The noble and learned Lord, Lord Denning, got it exactly right when he said that the effect of this amendment would be to reverse the onus. At the moment unlawfully or improperly obtained evidence has to be admitted in England unless the judge holds that its evidential value is outweighed by its prejudicial value. The onus is on the accused to show why the improper evidence should not be allowed. The effect of this amendment would be to reverse this and put it the other way round.
That seems to me to be right in principle because, if evidence is improperly obtained or if it is unlawful evidence, it is ridiculous to say "It is unlawful, but we will let it go in. It does not matter: there are no teeth and no sanction behind it". It is suggested, theoretically, that the sanction is that the man convicted on that evidence can raise a civil action of damages against the police afterwards. But one only has to mention that to see how ridiculous it is in real life in most cases.
This seems about right, but as two or three noble Lords have pointed out, some exceptions are necessary. The noble Lord, Lord Mishcon, was anxious about the third exception which appears in paragraph (c)—that,
"the overriding interests of justice require",
the improper evidence to be admitted. Some discretion of that sort must be left to the judges. We must trust to the judges because there are cases, for instance, of urgency when evidence is obtained very improperly. For example, when a murder has been committed, unless the police go quickly to the suspect's house to seize the bloodstained knife or recover bloodstained clothes, the evidence can be lost forever. One cannot stand on ceremony and demand warrants in cases of that sort.
There are other cases, for instance of infiltration by the police into a gang of terrorists or drug smugglers, where the police may have to behave in a way that would ordinarily be thought to be improper but there is probably no other way of getting the evidence. In

941
such a case the judge might be satisfied that the "overriding interests of justice" required the evidence to be admitted.
Lord Mishcon: I wonder whether the noble and learned Lord would help me and I suspect some other members of the Committee. My anxiety was because paragraph (b) is there as well as paragraph (c). It would mean that before one reached paragraph (c) as a judge one would have to be satisfied that (b) did not apply. In the instances that the noble and learned Lord, Lord Fraser of Tullybelton, gave, one imagines that the judge would decide in the circumstances of the cases he mentioned that the breach was of no material significance. But if he has to get to (c) would it not be true that in the case—I ask the noble and learned Lord how he as a judge would decide it—where the sight by a jury of a document unlawfully obtained by means involving a material breach of the provisions of this Bill would mean that it would be most likely that the accused would be convicted, their not seeing it would mean that he might be acquitted? Would the noble and learned Lord in the exercise of his discretion in every such case decide that, however unlawfully obtained it might have been, the document could be admitted?
Lord Fraser of Tullybelton: I do not think that I am competent to answer so general a question as that. But there are cases where a judge would have to decide that it was a very serious offence, the evidence had been unlawfully obtained but it would be a scandal to exclude the evidence and allow a man who, on that evidence, was likely to be convicted to escape.
The terrorist gang infiltration was the example that occurred to me and there was mention of that in Sang. It is possible that my noble and learned friend Lord Scarman may later be able to answer that question better than I can. At the moment I wish merely to give my blessing to the amendment.
Lord Elwyn-Jones: I confess that, although I signed the amendment of the noble and learned Lord, Lord Scarman, some doubts have crept in. I bear in mind the famous warning which I seem to recollect that the father of the noble and learned Lord, gave him: "They do not want to hear your doubts, they want to hear your opinions". But I am troubled by the cumulative effect of paragraphs (a), (b>) and (c). In subsection (2) we see what evidence shall be treated as having been obtained unlawfully. First, there is evidence obtained,
"in breach of any provision of this Act or of any other enactment or rule of law; or
(b) in excess of any power conferred by or obtained under this Act or any other enactment; or
(c) as a result of any material deception".
Any dirty trick is all right if, at the end of the day, it is thought that, in the overriding interests of justice, the evidence that results from it ought nevertheless to be admitted.
I am troubled by the cumulative process that we are involved in here. First, in paragraph (a),
"the prosecution proves to the court beyond reasonable doubt that it was obtained lawfully".
That was cadit quaestio. Secondly,
"(b) the court is satisfied that anything unlawfully done in obtaining it was of no material significance in all the circumstances of the case and ought properly to be disregarded".
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Then we come to a much more serious scene. By implication even if what was done was of material significance in the circumstances of the case, nevertheless the umbrella of the formula of "overriding interests of justice" rescues the situation from the point of view of the prosecution. We are concerned here with, of course, maintaining the powers of the police and of the courts to deal with the challenge of crime. But we are also concerned with deterring misconduct by the police in the course of investigation. Indeed the noble and learned Lord, Lord Scarman, indicated that that is one of the very objects of what we are about.
In all those circumstances, before the noble and learned Lord the Lord Chancellor gives his serious, grave and, of course, wise, consideration to this (lest he be misled by thinking, for what it might have been worth, that I was fully in accord with the amendment which I have signed) I confess that I am now in a state of doubt with regard to its desirability as part of our law.
Baroness Faithfull: As a very ordinary lay person, I wonder whether I may briefly intervene. I presume to speak, having dealt on a practical plane with many of those who have been before the courts as accused persons. I have also had to deal with many of the police, who are my colleagues and have been my colleagues, and have worked in the community. A short time ago, in another debate, the noble Lord, Lord Mishcon, said that I was a very practical person, and I therefore wish to apply practical issues and seek for information from the noble and learned Lord, Lord Scarman, when he comes to reply.
It seems to me that the spirit of this amendment is one with which we would all concur: the spirit that the accused should have every right to justice. My question is this. May I say first of all that there is such a fine line drawn between the rights of the accused, the right of the police to carry out their duties lawfully, and the rights of the community. How are those three rights to be woven in so that justice is done to all three? As I said earlier, I believe that the spirit of this amendment lies in the concept that the accused should receive justice.
I would ask the noble and learned Lord, Lord Scarman, whether he is quite happy that the job of the police is going to be possible and practical to do. I speak because many of my colleagues in the police have been in touch with me and are worried. They are almost ambivalent over this amendment because, on the one hand, they see why it should be so, and, on the other hand, they are not at all sure that they are going to be able to carry out their work as they should. They are worried that it is leading towards an exclusionary rule. The noble and learned Lord, Lord Scarman, said that it would not be in any way in line with the American exclusionary law, but I have to say that many of the police see it in this way. Therefore, when the noble and learned Lord comes to reply, I wonder whether he could explain a little how the police will carry out his very humane amendment.
The Lord Chancellor: Perhaps I should say a few words, although I have already intruded on the Committee for perhaps too long on an earlier

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occasion. I am glad that the noble and learned Lord, Lord Elwyn-Jones, reminded me of the advice that I received from my father because I, like him, am more afflicted by doubt in this case than I ought to be in replying on behalf of the Government. Being slightly indiscreet, my instructions were to oppose the amendment of the noble and learned Lord, Lord Scarman. Because I realised that it would excite a very great deal of sympathy in the Committee, I had a good deal of doubt whether that was a prudent course: and that doubt is reinforced by what I have heard in the course of the debate. But I still have my own doubts about the amendment and my own comments upon the debate that we have had.
In the first place, my first impression on reading the amendment was that it was too elaborately drafted to be workable in court. In the second place I had a doubt about its practical effect in that it would lead, so I feared, to yet another spate of trials within a trial which have done so much to hold up the course of criminal justice ever since the introduction of criminal legal aid, which in almost all other respects is a thoroughly good thing. Those are two factors which I do not think should be wholly ignored.
Thirdly, I ask myself whether the trigger proposed in the amendment is enough to set off such an elaborate series of rules. Apparently, the trigger is, "If it is represented to the courts". That is the only thing which has to be done. The whole series of rules is triggered by:
"If it is represented to the court in any proceedings that any evidence (other than a confession) proposed to be given … was or may have been obtained unlawfully".
Is it enough to trigger this off that some counsel for the defence says that this may have been obtained unlawfully, and then the prosecution have to prove beyond reasonable doubt that it was obtained lawfully—as in (1)(a) of the amendment—when there is not the smallest evidence in support of the allegation of counsel? I cannot help thinking that that is not a very good thing.
I think we must bear in mind, too, that we are, or can be, dealing not with trivial offences or relatively run-of-the-mill offences, but with offences of the most serious kind: murders, rapes and what used to be felonious woundings under Section 18 of the Offences Against the Person Act 1861: trafficking in heroin, and matters of that kind. Much of the evidence of that sort about drugs is obtained by methods which, if not actually amounting to deception, might at least be accused of being a bluff. If anyone is interested in details, let him look at the details in the case of Ping Lin, on which I had the honour to sit some years ago in a judicial capacity. We must remember that we are dealing with very serious crimes as well as rather trivial or run-of-the-mill crimes, and I am not quite sure that we have the balance right.
I am not at all convinced myself, if there is to be a discretion—and I am coming in a moment to a slightly new line, which has not been raised so far, about Sang—that the burden should be so heavily on the prosecution to establish the factors relating to the admission of evidence of this kind. I am not sure that the court should be biased one way or the other in such a matter. We have got to assume in this case, for the
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purpose of criticising the amendment, that the defendant is guilty and can be proved guilty only by the use of the evidence which is impugned under the amendment. I am not at all sure that the court should not approach this matter from a fairly impartial standpoint in such a circumstance.
I also want to say this. What struck me when I read Sang again for the purposes of this debate were two things which were said by the noble and learned Lord, Lord Diplock, in his judgment about it. The first was something which I think sheds a light on the subject which has not hitherto been shed, and I think I ought really to bring it to the attention of the Committee. He said this—and I think it was a critical sentence:
"What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained but with how it is used by the prosecution at the trial".
He went on in a rather different passage to point out that, although a very large number of dicta in the past could be adduced in favour of the existence of the judicial discretion, contrary, I think, to what was decided in Sang,
"It is a striking fact that with the single exception of Payne in no single one of these cases where these dicta have been uttered"—
that is to say, dicta to the effect that a wide judicial discretion existed—
"has the court excluded the evidence objected to, given in circumstances which it is difficult not to regard as unfair and unjust whatever standard one applies and in at least one case of flagrant illegality".
In other words, although there were these weighty dicta coming from judge after judge, but in circumstances other than the case in which he was deciding there ought to be a discretion, in each case in practice the judge thought it right, despite illegality and despite unfairnesss, to admit the evidence. I regard that as a very striking fact.
Coming back to the first of those two passages, it leads me to illustrate the point by the very case of Payne, which was the only exception to the passage which the noble and learned Lord, Lord Diplock, had found. The case to which the noble and learned Lord referred was Payne. That was the one case in which the court had excluded evidence, and it was a case in which the police asked a driver to undergo a medical examination in order to ascertain whether he was ill, and then adduced the results of the examination as evidence that he had been unfit to drive through drink. In other words, it was the unfair use to which the prosecution put the evidence at the trial, and not the original way in which it had been obtained, which gave rise to the adverse decision of the court.
I do not myself think that that was a coincidence because at the back of my mind throughout this debate I have been trying to feel my way towards a formulation which depended upon something in the nature of an abuse of the criminal process by the prosecution, rather than this elaborate formulation in the amendment before the Committee. I remember, in a case in which I sat judicially some time ago, having rather an argument with the late Lord Dilhorne, who said that there was no discretion of this kind. I was saying, "Yes, there must be a discretion when it is unfair in all the circumstances that the evidence should be used." I feel that that may be a way in which one could approach the subject which is slightly different from that formulated in the amendment.

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I should like to make one other point. As the amendment is at present drafted, whether by inadvertence or intention, the illegality or the unfairness in obtaining the evidence need not be on the part of the police. Let us suppose, for instance, that I find a suitcase in the street and I commit what used to be called larceny by finding. I carry it away, intending to keep the contents, whatever they might be. I look inside and find, lo and behold!, that there is the evidence which would secure the conviction in a most important murder case, and so I repent. I take the evidence back to the police. It is my illegality, not that of the police. The police, quite properly, use it as evidence in the trial of the accused and thereby trigger off this process. Ought it to be triggered off in those circumstances? Basically, my answer to that would be, "No", though I quite realise that the noble and learned Lord on the Cross-Benches would be quite entitled to say to me, "Well, the overriding interests of justice would be satisfied in the case such as the present."
I believe that we have got to think about this in the light of the present debate, and as the labouring oar has to be borne by my right honourable friend the Home Secretary, I hope that I may be allowed, without opposing the amendment, to take the whole matter back to him and to ask him to consider it in the light of the very weighty opinions which have been delivered from various quarters of the Committee, not least by the noble and learned Lord, Lord Fraser of Tullybelton, who gives the benefit of his Scottish experience, and to ask him to think again about whether we could not formulate the question of discretion in such a way that it was a more satisfactory instrument of justice—which is what, after all, we all want—than either the uncertainty which existed after Sang, or the actual formulation which has been proposed in this amendment.
I should like to go forward on the lines of the unfairness of the use of the evidence in all the circumstances of the case. I do not want to go into all this detail about illegal methods of obtaining it. I want to go forward more on the use which is made of the evidence in relation to the issues at the trial, rather than the origin of it, when it was first taken. However, I have said what I have to say. I am afraid that I have communicated my doubts rather than my opinion, and I hope that they will be accepted in the spirit in which they are offered.
Lord Wigoder: I did not want to intervene while the noble and learned Lord was speaking, but is it not a really striking fact that all the reported cases are cases in which the unlawful evidence was admitted? Is it not in the nature of the process that the cases where the unlawfully obtained evidence was excluded have, in all probability, resulted in acquittals and have therefore never reached the appeal stage and so have not been reported?
The Lord Chancellor: The noble Lord. Lord Wigoder, is making a perfectly sensible point, if he will allow me to say so; but I think that it is more than that. Among the Law Lords trying Sang were five Law Lords of almost unrivalled experience in criminal trials. I have not been able to find anybody who, in his professional experience, can remember one case in which the exclusion took place on the basis of the
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discretion. In my own professional experience, I can remember one case, before the war, at Ely Quarter Sessions, but that is far too rabelaisian to tell to the Committee assembled a a whole.
Lord Scarman: This has been an extremely good debate and some very weighty and interesting points have been made. I shall deal with a few of them, but of course in view of the indication which the noble and learned Lord the Lord Chancellor gave on an earlier amendment, I have confined my argument before the Committee to the point of principle. I sense that the Committee, notwithstanding some doubts or misgivings, has very great sympathy—I will put it no higher than that—with the point of principle to be found in this amendment.
I shall deal briefly with some of the points. If I do not deal with them all, I make an apology now. First, there is the question of law. Of course, the noble and learned Lord, Lord Diplock, made the point that the noble and learned Lord the Lord Chancellor mentioned when he was addressing the Committee. But I think I have here the words of the noble and learned Lord, Lord Diplock, and those of your Lordships who are perhaps not familiar with this matter will see the strength of the statements that there are in our law, whatever the result of the cases in which these statements were made. The noble and learned Lord said:
"Nevertheless, it has to be recognised that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been obtained unfairly or by trickery or oppressively, although except with Regina v. Payne there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion".
I would remind the Committee of the comment of the noble Lord, Lord Wigoder, on that, which is perhaps not as surprising as at first sight it might seem.
Of course, the difference between the law as it now stands and the law as it would be if this amendment were to be passed is, as the noble and learned Lord, Lord Fraser of Tullybelton, said, a reversal of the onus of proof, and of course a very salutary one. Since I am dealing with points at this moment made by the noble and learned Lord the Lord Chancellor, let me say this as to the "trigger" as he called it. He wondered whether that was a suitable trigger and whether it might not cause some difficulties. The trigger is:
"If it is represented to the court in any proceedings that any evidence proposed to be given … was or may have been obtained unlawfully".
That trigger is taken from the Government draftsmen, who drafted for the Government Clause 73 dealing with confessions. What is sauce for the goose is sauce for the gander. I can see the point that one might put in, "if it appeared to the court".
That is a drafting matter and I hope I have already made it clear to the Committee that on points of drafting I certainly have an open mind, save really on one point only. It was a point first taken by the noble Lord, Lord Campbell of Alloway, and then developed by some others. I put it in this way in the form of a rhetorical question. Why "unlawfully"? Why not use the much more colourful language of the three Lord Chief Justices to whom reference has been made—"improper", "unfair", "by trick"? The reason

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is this, as was pointed out in the judgment in Sang by my noble and learned friend Lord Fraser of Tullybelton: those phrases, admirable though they are in a judgment, are very subjective in character and give very little guidance to the courts or to policemen, for whom the noble Baroness felt some sympathy.
One needs a more precise and more objective criterion. I take the point that one could draft better the definition of "unlawfully" that is to be found in subsection (2), but the concept of "unlawfully" is a good one and it prevents any moral views of the judge obtruding themselves. If it is unlawful then he has the duty to exclude, "unless".
That takes me to some of the points that were made on the exceptions: "unless—(a), (b) and (c)". Exception (a) need not detain us: that is the burden of proof on the prosecution. With regard to (b), I think the noble Lord, Lord Mishcon, and others misunderstood it, because of course (b) is quite different from (c). There is the disjunctive pronoun between them and they deal with entirely different subject matters. Exception (b) deals with the minor irregularity of no material significance: the policemen who has failed to do one of the many things that policemen have to do, for instance, under this Bill. It is of no material importance; it is a mere irregularity. A judge can sweep that aside and say, "If that is the only unlawfulness alleged, I am letting this evidence in".
Exception (c) of course is absolutely vital and, again, as noble Lords have said, we must trust the judges. But there is a guideline for judges here. The judge has got to be satisfied that the interests of justice are sufficiently weighty as to qualify for the description "overriding" and so there is guidance there for the judges.
Noble Lords will understand that I reject entirely the view that English judges in criminal cases—and whether a criminal case is petty or serious, it is always serious for someone—are prosecution minded or defendant minded. They may take a view about evidence in one case that is different in another, but they approach their task as they are trained to do—that is indeed the whole ethos of their profession—with a sense of complete detachment, knowing that their duty as, in the words of the noble and learned Lord the Lord Chancellor, the tribunal of law, their first and last duty, is to ensure that a defendant has a fair trial. So I think there is nothing on that point at all.
May I say a word or two about the very important points—
Lord Mishcon: Before the noble and learned Lord leaves that point, I wonder whether he would mind my intervening for just one moment. These are, of course, alternatives and is it not practical to assume that (b) would have to be disposed of before the learned judge had to deal with the weighty matter of (c)? Therefore if it was a mere immaterial matter of breach, then quite obviously (c) would not be got to at all; the judge would not have to deal with it. Therefore, when he deals with (c) is it not right to assume from a practical point of view that there has been a material breach?
Lord Scarman: I will say no more than that I think, with respect, the noble Lord has completely misunderstood me—or I have him—one or the other. If the noble Lord is right then obviously we would take a look at it. But, as I understand it, there is nothing in (b) which in the slightest degree interferes with (c); and (b) is valuable as a guideline to the judge as to the sort of irregularity he can just brush on one side. But I will say no more about it except that the noble Lord and I obviously differ in the impression that (b) makes on our minds; and so it must remain for the time being.
I would respectfully agree with some of the points made by the noble and learned Lord, Lord Campbell of Alloway, as to the drafting of the definition of "unlawful". I think that will have to he looked at again, but I would not wish to introduce into it any criterion other than illegality. I think this is something which is objective and which would act as an anchor for judges having to administer this particular discretion.
I was coming to points made by the noble Baroness, Lady Faithfull; but before I do there is one point I should pick up from what the noble and learned Lord the Lord Chancellor said. He made the point that this embraces illegality not only of policemen procuring evidence but of others. It certainly does, most certainly. This is not just aimed at policemen. It is aimed at all who seek to procure by illegal means evidence to be given in a criminal trial.
Coming to the noble Baroness's points, she stressed, rightly, that in the exercise of the discretion the court will have to weigh the interests of the prosecution, the community and the accused. Within a forensic context, that is exactly what judges have to do very frequently indeed and it may safely be left to the judges. The noble Baroness clearly had some rather disappointing conversations with policemen. I hesitate to say—but I will now say—that I have had some conversations with policemen, from chief constables down to ordinary police constables. I discovered no fear at all of this. Indeed, one or two chief constables at a senior police officers' conference which I attended indicated that on balance they thought there was value in it. However, they quite properly reserved a detached position, leaving it to Parliament to make up its mind.
I have been through most of the points which have been raised in a very interesting debate. Upon the understanding that the noble and learned Lord the Lord Chancellor and his colleagues will look at this matter, I beg leave to withdraw the amendment. However, I must give a fair warning that unless something happens to make it unnecessary I intend to return to the matter on Report.
Amendment, by leave, withdrawn.
Baroness Trumpington: Before I put the Motion that the House do now resume, it may be for the convenience of your Lordships if I announce that further consideration in Committee of the Police and Criminal Evidence Bill will not be taken until 8.15.
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Army, Air Force and Naval Discipline Acts (Continuation) Order 1984
7.32 p.m.
Lord Trefgarne: My Lords, I beg to move that the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 1984, laid before the House on 19th June, be approved.
As your Lordships will be aware, the continuation order which we are discussing today is part of a continuing process of parliamentary oversight of the service discipline Acts which set the legal framework for the operation of our armed forces. Every five years, a new Armed Forces Act is required, when the opportunity arises for those disciplinary procedures to be reviewed and improved as necessary. In the intervening years, an annual continuation order, such as I am moving today, is introduced. The last such Armed Forces Act was in 1981, when Parliament expressed itself content that the present system of quinquennial Acts, supplemented by annual continuation orders in the intervening years, should continue, as it provides an adequate measure of parliamentary control over the workings of the service discipline Acts.
The next Armed Forces Act will fall due in 1986. My department is already well advanced in reviewing the recommendations of the 1981 Select Committee with a view to determining what proposals should be brought forward in that Bill and is also considering what other amendments will be required at that time. This is necessarily a lengthy task and I am sure that your Lordships will understand that I am not at present in a position to anticipate the results of the current review.
I said on this occasion last year that this Government were committed to the maintenance of effective defence and the provision of resources to achieve that. I also explained that an important aspect of this was the continuing existence of highly professional, well-motivated and disciplined armed forces. This is equally true today and I emphasise the Government's determination to ensure the continuing well-being of those forces. Armed forces' pay and their conditions of service, especially their accommodation, are of the greatest significance in this context and are factors to which we attach a great deal of importance. The success of our defence policy hinges on the men and women in the services. The Government are therefore well aware of the importance of securing the right numbers and the right quality.
Last year we recruited some 37,000 men and women into the forces, bringing the total strength of the services to 325,900. That is some 13,400 more than in May 1979. Recruiting is good, and overall the numbers we want are coming forward. There have been one or two problem areas, namely technicians, engineers and certain officer categories, but we are considering measures to improve the situation here. I am also especially pleased with the high quality of the young men and women entering the forces today. Improved retention has been another important feature of our personnel policy. The lower levels of outflow which we have achieved in recent years reflect the better return of service which we are obtaining for
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the training given to service personnel. This is in sharp contrast to the situation in the late 1970s and must reflect the improvements to the conditions of service made since 1979, such as pay comparability and greater flexibility in terms of engagement.
It would not be appropriate in our short debate this evening for me to rehearse all the efforts that the Government are making to improve the quality of life for our servicemen. I merely repeat that the many aspects of our endeavours are paying off in terms of buoyant recruiting and improved retention. However, in considering the maintenance of highly professional services, we should not forget that a significant element is the continuation of a clear code of discipline, which has its rewards both in peace and in war. It contributes to the very high standards for which our armed services are rightly renowned and enables these standards to be maintained, even in the very trying circumstances in the Lebanon early this year. I beg to move.
Moved, That the draft order laid before the House on 19th June be approved.—(Lord Trefgarne.)
Lord Graham of Edmonton: My Lords, I am glad that the Minister has introduced this continuation order in a serious and sober fashion—not that we should expect this Minister to introduce it in any other way. He has reminded the House that in the context of how Parliament exercises control over the armed forces, this order is of some importance. Downgraded from a Bill laid before Parliament every year until 1949—there is no quibble about the present procedure of a quinquennial review and up-dating—tonight still provides Members of both Houses with the right and the duty to scrutinise the disciplinary codes governing conduct in the armed forces. We do this not only against the background of our own concepts, our own attitudes, our own intelligence and what is brought to our attention but also against the background of the report and recommendations of the Select Committee on Defence, to which the noble Lord referred. In another place, my honourable friend Mr. Denzil Davies asked—I believe with effect—a number of questions, some of which were answered, some of which were not. As the Minister will have read, other honourable friends of mine took part in the very lively debate which was held a week ago in another place.
We need to remind ourselves that we are discussing the legal basis for the serviceman's special position in law and that we have a duty to do so in your Lordships' House. The Minister referred to the consultations which are taking place in order to prepare for the quinquennial review in 1986. I wonder whether the Minister could indicate how far his consultations have taken him in preparation for the 1986 Act. The Minister will appreciate from my remarks that I do not wish to make debating points of matters which could be raised. However, it would be of interest, since only two of the five years are left, to know whether the Minister will be looking at one point or another.
For instance, will the Minister spend some time discussing the very grave problem of drug abuse? On Friday of this week the Government have provided a full day for a debate in another place on the prevention of drug abuse. We cannot pick up the newspapers or listen to the radio without there being some reference

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to a drug-orientated crime or tragedy. This matter was debated in the other place last week, and at col. 283 the Minister gave some statistics.
I accept, of course, the veracity of the Minister's statement in another place. But, quite frankly, I feel the terror that I believe is shared by most clean-living citizens at the enormity of the catastrophe that can flow from drug abuse. I believe we need to spend a little time considering the incidence that there may be of drug abuse in the forces. Can the Minister assure me and the House that he is fully satisfied that all that can be done to detect drug abuse is being done?
In the midst of closed institutions such as the forces there can be found an evil not fully appreciated until it has grown into a monster. Sadly, society outside the forces is in the middle of a drugs crisis. At seven o'clock this evening I listened to the radio, to hear the latest daily incidence—a £6 million drugs haul in Wales; clearly caught, and heavy sentences have been given. One can find in the newspapers every day references to drug abuse. Nearer home, one can read on the tapes tonight of a situation affecting the forces in Germany. I wonder whether the Minister has any comment to make? The report states:
"Deathbed tip led to army drug charges. A tip by a soldier before his mysterious death led to eight of his comrades being arrested for possessing drugs, a British Army court martial was told today. Suspicions that the death of the unnamed 21-year-old soldier was drug-related could not, however, be confirmed by a post mortem, the court heard. The eight soldiers from the 14th-20th Kings Hussars stationed at Hohne in North-Rhine Westphalia come from north-west England. They are charged with possessing cannabis and, in three cases, the hallucinatory drug LSD. The court was told that they bought the drugs in Amsterdam and the North German city of Hanover. Seven of the men pleaded guilty today and the eighth, who is accused of possessing LSD, will be formally charged when the trial resumes tomorrow".
That is a graphic illustration of the size of the problem.
On the same tapes, there is a wholly unrelated report but one to which reference can be made tonight. It states:
"Cocaine a growing threat—report. A concerted effort to eradicate the 'evil' of drug trafficking is called for in a report, published this afternoon, on police forces throughout England and Wales. Drug smuggling provides a lucrative venture for hardened criminals and can seriously undermine society, Sir Lawrence Byford, Chief Inspector of Constabulary, warns".
Can the Minister tell the House a little more, not merely about investigations and prosecutions, but about the nature of education and the ability to detect the presence or the emergence of drug taking?
I look upon young soldiers as being as susceptible as other youngsters who are not in the forces but who are in certain social circumstances. I allude to a situation with which I am familiar in our prisons today. I declare that I have an association with the Prison Officers' Association. Prison officers tell me that they are very uneasy about the unwillingness of the authorities—in their case, the prison service, but in the case we are now considering, it could be the armed services—to recognise that there is a problem and give publicity to it for fear that, by so doing, there may be some cause for embarrassment.
The Minister will be aware that in paragraph 15 of the Select Committee's special report, under the heading "Alcoholism and Drug Abuse" there is the observation, in respect of alcoholism:
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"There was some evidence that a shortage of resources was impeding efforts in this area, and consideration might be given by the Ministry of Defence as to whether a slightly greater expenditure of resources or closer co-operation between the three Services would have beneficial results".
I ask the Minister what has been done in that respect. The paragraph continues, after referring to small naval drug squads:
"We believe that drug abuse in the armed forces might be kept under better control if the other two Services were to use specialist teams in this way and recommend that this possibility be explored before the 1986 Armed Forces Bill is introduced".
Is the Minister able to say anything in respect of that statement?
Although I made reference to the problems facing prison officers in respect of drug abuse, the concern there is in respect of human life—not only the lives of the prisoners but also those of the prison officers themselves. But if there is a more serious problem than even we can believe (and the Select Committee report was written three years ago) then the situation could well be getting worse in the forces—where we are not dealing simply with human life, but with national security as well. The Minister can help the House in respect of that matter, as he is entitled to do.
Also, can the Minister say a little more concerning social inquiries in respect of young service offenders? It may not be possible to be dogmatic, but if youngsters get into trouble in the services, they may have a case file behind them containing helpful and supportive intelligence. The Minister in another place spoke about improving the service to the courts by the time of the quinquennial review. But if it is possible to benefit the service to the courts in the next period, why wait until the quinquennial review before revising the procedures? Cannot such an improved service to the courts, which will be beneficial to the services and to servicemen, be implemented now?
The subject of courts martial was also considered by the Select Committee. We are told that this matter is under consideration. I found it extraordinary that when preparing for this debate I had to read the Select Committee's report with even more care than I might otherwise have done in view of my responsibilities tonight. I should like the Minister to comment on the supplementary memorandum on page 82 submitted on behalf of the Secretary of State for Defence, concerning the composition of courts martial. Paragraph 3 of the memorandum states:
"The members of a court-martial are required to be judges of law as well as of fact and also to determine sentence in the event of a conviction. There is thus a requirement for a knowledge of Service law"—
and will the Minister tell the House what that requirement is? Reference was made to possibly one week's or two weeks' understanding of service law. The paragraph continues:
"which forms part of the training syllubus of officers, for a high educational level and for experience and understanding of the difficulties and exigencies of life in a Service community".
Paragraph 4 goes on to explain why noncommissioned officers are ineligible and are not appropriate to serve on courts martial. It states that such an officer:
"would tend to be relatively young with little experience or else a man below average ability who had been passed over for promotion. Finally there is also the consideration that to grant other ranks

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membership of a court-martial might be held to diminish the ultimate responsibility of officers for the maintenance of Service discipline".
I believe that such remarks are grotesque and offensive in the context that society recognises, not least in respect of our jury service syndrome, that provided one maintains the minimum qualifications—which may be residential or of some other nature—we are seeking to democratise our institutions even more and even faster than they may have been democratised in the past.
I believe that the eligibility of young officers, who themselves might have been only 19 or 20 years of age, with literally no experience of the outside world when they entered the forces, is a subject on which the Minister should comment tonight. In the modern services, the use of NCOs would demonstrate an ability to recognise the changing nature of society. I am not remotely challenging the need for a strict heirarchy of command with responsibility and for all the other aspects of discipline.
I conclude by asking the noble Lord the Minister to be assured from these Benches that I join with him in the tribute which he has paid to the whole of our armed forces. In a troubled world with armed conflict never far from possible, at home with swiftly changing mores which present challenges to our service leaders and those under their command, although tonight we properly debate procedures to deal with those who transgress, we do so in the humble knowledge that we all owe a debt to our servicemen and women we can all remember with pride and humility.
7.51 p.m.
Lord Mayhew: My Lords, I think we were all glad to hear the tribute to the forces paid by the noble Lord, Lord Graham, in which I warmly share. I felt reassured because, for understandable reasons, a great deal of his intervention was of a very proper but negative and discouraging nature. I was glad that at the end he was able to pay tribute to the quite extraordinary record of the armed services recently, not only in the Falklands and Northern Ireland—we are accustomed to paying tribute there—but also in the Lebanon, where the professional conduct of our forces was extremely good.
I also join with the noble Lord, Lord Graham, in asking the Government not to be too rigid and dogmatic about five years as the only period possible for making changes in army discipline, because it is perfectly plain to me—and the noble Lord raised some very important questions indeed—that if the problems which he mentioned, for example, are as bad or as worrying as he was indicating, the Government should certainly not wait for five years before making any necessary changes in the discipline Acts. Of course, I assume that all the problems to which he referred, except perhaps the question of courts martial, can be handled within the existing discipline Acts. Perhaps the noble Lord the Minister will answer that point.
As for the courts martial, the noble Lord ended by saying that he believed in a strict hierarchy of authority in the army. So do I, and so does anyone with any military experience. Whether or not that is compatible with giving to non-commissioned officers the power of conducting the court martial of an officer,
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I do not know, and I should like to think that one over; it is certainly a new point to me.
This is not the occasion for a full length defence debate, but it does enable me to make this point: we do not have enough full-length defence debates in this House, and when we do have a defence debate we cover too wide a field with it. We ought to have more, perhaps shorter, debates covering specific defence issues like out-of-area security or collective European action within NATO. The noble Lord the Minister will, of course, say that this is a matter for the usual channels, and we accept that, but we do not actually believe it because he is such an influential member of the Government team that, if he cared to raise his voice in this cause, I am sure it would have great effect. We appreciate very much the conscientious way in which the noble Lord the Minister replies to our questions and tries to make sense of the Government's defence policy, and we invite him to exercise his influence for more debates where he can demonstrate his talents in this field.
Lord Trefgarne: My Lords, I am obliged to the noble Lord, Lord Mayhew, for the flattering terms in which he closed his remarks just now. I am afraid he overestimates the influence which I have in these matters, but I will certainly see that his views, at least, are represented at an appropriate level.
I am grateful to both noble Lords for their response to the Motion which I have moved in connection with this order. I shall try to deal with as many of the points raised as I can, particularly those raised by the noble Lord, Lord Graham. He referred, first of all, to a number of cases in connection with drug abuse. Most of those, I fear, are in front of courts of one kind or another at the present time and I am, therefore, somewhat constrained as to what I can say. Clearly, I cannot comment on the individual cases, but I can assure the noble Lord that we do take these matters very seriously indeed. I am pleased to say that the level of drug offences does remain low. Much time and effort is directed towards preventing the abuse of drugs through programmes of education and towards the detection of offences where they occur. All three services pursue these courses of action vigorously.
I agree, of course, that when allegations of drug abuse come to light they tend to hit the headlines, particularly when they involve servicemen, and I think sometimes this gives an exaggerated idea of the number of cases with which we have to deal. Having said that, we do regard the matter as a very serious one indeed and are certainly doing everything we can to keep the problem under control.
Lord Graham of Edmonton: My Lords, I am grateful, and I accept what is said by the noble Lord the Minister. I remember that in the Select Committee the level was referred to as less than one in 1,000 and some satisfaction was expressed. Phrases were used to the effect that at least we were better than most other national forces. Whether or not we are better by comparision with publicly declared known drug abuse in other forces, we are primarily concerned with what is happening here. I should like to be reassured by the noble Lord the Minister that within the constraints of finance everything possible is being done. That is why

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I spoke of alcohol when the reference said that perhaps there should be more resources. We do not want to find that we are perhaps saving money which needs to be spent, as the noble Lord the Minister mentioned, on education.
As I understand it from my conversations with prison officers, we need the ability to detect. Very often drugs are being taken and the people who should be able to detect them are not able to do so because they have not been trained in the proper techniques. If the noble Lord the Minister can say that that aspect of the training of those responsible for such matters is very much in his mind, I shall be grateful.
Lord Trefgarne: My Lords, I can confirm that those in responsible positions—particularly in connecton with young entrants to the services—are given special briefing and instruction on these matters, and are given advice on how to detect the signs of drug abuse and to do something about it. I do not want to be complacent about this. I recognise that one case of drug abuse is one too many, and I certainly would not wish to rest on some defence along the lines that our problem is less than it is, maybe, in some other armed forces.
I was going to deal with the related problem—I suppose it is a related problem—of alcoholism. The services, of course, draw their recruits from society as a whole and will reflect the trends of that society. They cannot hope to escape such problems as alcohol abuse but I do have to say that there is no evidence that alcoholism is a significantly greater problem in the services than in society generally. Drunkenness is not tolerated within the services, but their attitude towards it is not confined to the imposition of legal penalties. A great deal of work is done in prevention and treatment of those affected. Officers are trained to recognise the signs of alcohol abuse so that rehabilitation can be begun as soon as possible, and each service runs a comprehensive programme of education on the dangers of alcohol abuse.
I am satisfied that prevention of alcohol abuse and rehabilitation of those with alcohol problems are well provided for, but I do not think that we should exaggerate the problem which the services have in this respect. As a matter of fact, not too long ago I visited one of the Royal Naval establishments where they treat those suffering from this unfortunate affliction, and I was greatly heartened, I must say, to hear from the officer-in-charge about the very few cases which actually come back to the centre for treatment. In other words, they seem to be able to achieve a pretty high level of permanent cure on those who come into that particular facility.
The noble Lord also asked me about the recommendations in respect of courts martial which emerged from the report of the Select Committee. We have taken the recommendations of the Select Committee very seriously. The Royal Navy has made use of its existing welfare organisation and the naval personal and family service to prepare social inquiry reports on all offenders appearing before courts martial where the court so desires.
The Army and the RAF, having a much larger number of courts martial and no similar welfare
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service, have been considering ways of providing a like service, taking into account, inevitably I fear, constraints on manpower. No final decision has yet been reached, but I am hopeful that ways will be found of presenting to the courts concerned additional information on the background and circumstances of offenders which is not necessarily provided under the current system.
The use of civilian lawyers was also a matter addressed by the Select Committee. In response to its recommendations we have been considering the case for the greater use of civilian lawyers as prosecutors. I am afraid that, again, this review is not yet complete, but I intend that its outcome will be conveyed to Parliament at a suitable moment.
A review of the possiblity of adopting the Navy system of training in-service volunteers as lawyers, so that it might also apply to the Army and RAF, is also under way. The major problem continues to be the much greater volume of legal work arising in those services from the higher number of courts martial. Nonetheless, we are considering the question, and the outcome of that review will be reported in due course as well.
Both noble Lords referred to the possibility of noncommissioned officers sitting on courts martial. This question has apparently been under consideration for a very long time and I should not be surprised if it was not being considered when the noble Lord, Lord Mayhew, was a distinguished Minister at the Ministry of Defence. However, we hope to be able to make a statement before too long. One interesting factor to be considered is the apparent lack of any body of opinion, even among the non-commissioned ranks theselves, in favour of a change from the present arrangements.
I think I have covered the principal points raised by the noble Lords, Lord Graham and Lord Mayhew, but if there is anything further I can do for them, I shall be glad to try.
Lord Mayhew: My Lords, will the noble Lord be so kind as to answer the particular question and assure us that there are already, under the discipline Acts, entirely sufficient powers to handle the difficult problems he has been talking about?
Lord Trefgarne: My Lords, I could not give a blanket assurance of that kind because some of the problems will need legislation of one kind or another. However, I certainly confirm that problems such as those of drug abuse, which are very much in the mind of the noble Lord, Lord Graham, are matters which we can often deal with in a much shorter timescale than that. We certainly want to take advantage of making whatever improvements we can, without waiting for legislation, where we have the powers to do so.
On Question, Motion agreed to.
Lord Lucas of Chilworth: My Lords, I beg to move that the House do now adjourn during pleasure. I remind your Lordships that we shall return to other matters at a quarter past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 8.3 until 8.15 p.m.]

Police and Criminal Evidence Bill
House again in Committee.
Clauses 74 and 75 agreed to.
Clause 76 [Advance notice of expert evidence in Crown Court]:
On Question, Whether Clause 76 shall stand part of the Bill?
Lord Mishcon: I wonder whether I may try to deal with this matter very briefly. In summary, Clause 76 provides for the Crown Court Rule Committee to make some rules by which it would be incumbent upon the defence and the prosecution to exchange expert reports in certain cases. In the view of the Law Society that is an objectionable procedure, if I may say so. I can summarise the objections in the following way.
First of all, I think that I ought to point out that of course it is not for the rule committee to decide policy. It carries out its job—and does it remarkably well—in putting the necessary policy into words and into rules. Therefore, it is not a question of this merely being a matter of policy that is left to the rule committee. It would very likely be that it would be mandatory.
There is—and we have discussed it before—a right of silence in a criminal case so far as the defence is concerned, and certainly a right not to divulge its case, because it is the prosecution's duty to prove the case beyond reasonable doubt. Therefore, the first objection is that that valuable right of silence is breached.
The second consideration is very much a practical one. It is common knowledge that expert witnesses are not keen to give evidence which is contrary to that of other expert witnesses in the same profession. It is certainly common knowledge among those who practise in our courts that when one has expert witnesses who are meeting together to try to agree something, as a rule they will do so with both their minds on the advisability, and certainly the comfort, of avoiding cross-examination. All that is perfectly human, but from the point of view of the defence in a criminal case it can be absolutely devastating.
There is no need—and one saw that in the famous Arthur case—for the defence to have to divulge the fact that it has taken rather more trouble in regard to its expert evidence than the prosecution has, and thereby lose a very proper advantage. It is in those circumstances that we oppose Clause 76.
The Lord Chancellor: I very carefully note what the noble Lord, Lord Mishcon, has said. I do not think this has much to do with the right of silence. The right of silence in the accused consists of an accused's right to say nothing when he is cautioned, when he is charged, or when he is tried. He need say nothing at all. He can say to the prosecution, "Prove your case and if you cannot, bad luck on you". This has been a fundamental rule of English law for a very long time.
There are of course things upon which the jury need to be enlightened, not on direct evidence of fact, to which the right of silence mainly applies—although I
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will come back to that in a moment—but on questions of scientific or medical opinion. In such cases the jury are being asked to enter a realm with which they are totally unfamiliar. Psychological, physical or engineering experts are called, and they give evidence of their opinion based on the best scientific view which their experience allows. I cannot see that this has much to do with the right of silence. If one regards a criminal trial as a game played by certain elaborate rules without any genuine purpose except to win so many tricks, I can see the argument that the cards are dealt and you hold them close to your chest and do not play them.
My father used to ridicule those who regarded a criminal trial as a fox hunt. That is to say, you did not chop the fox in cover because it was not sporting: he had to be properly ridden down by properly bred hounds and with a certain number of gentlemen in red coats and suitable notes blown on the horn. If the fox was killed in any other way, it was considered an offence against the traditions of English society. But my father said that that was not a true view of criminal law. He took the view that, with certain safeguards for the accused which mainly consisted in the right of silence of the accused and the right to trial by jury, the object of a criminal trial was that you really tried to arrive at the answer to the question, in the light of ultimate truth, whether the prosecution had proved their case or whether they had not. I share that view, that the ultimate object of a criminal trial is justice.
Ever since the war there have been changes in criminal law and procedure. The most obvious one is the law relating to the sprung alibi defence, which will be very familiar to noble Lords. To provide an alibi saying that on the night in question one was at the Metropole Hotel, Brighton, and then to call a lot of people with whom one was supposed to be, without giving the prosecution the opportunity of testing that, is not really a way of arriving at the truth. Since the war we have at any rate gone into the theory that notice of an alibi must be given and that in the case of a failure to give it the court has at least a discretion to exclude the evidence of an alibi. I think that was a step forward.
Lord Elwyn-Jones: Would the noble and learned Lord agree that that is the only respect in which we have broken into the disclosure of the hand of the defence, so to speak—so far, at any rate?
The Lord Chancellor: I am not absolutely sure that that is quite true, but I will not go into that. That is a clear example of where we have changed the rule by statute. I have known cases where, if you produce a number of facts of which you could have given notice at an earlier stage, it is the subject of very adverse comment from the bench, and sometimes unjustified comment from the bench. At any rate, that has been the development since the war.
Parallel to that, and in the civil jurisdiction, which I think is not irrelevant for this purpose, we have come to a rule which was bitterly contested by the conservatives in the profession—of whom I am not one!—that each side should produce its expert evidence and they should make some sort of attempt to reconcile their views, or at least to identify the points of difference between them. For the life of me I

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cannot see why, if you do not adopt the fox hunt or the card-playing analogy about criminal justice, you should not do that with expert evidence in a criminal trial. This is roughly what this is about.
May I refer to the terms of the clause? It says:
"Crown Court Rules may make provision for—

(a) requiring any party to proceedings before the Court to disclose to the other party or parties any expert evidence which he proposes to adduce in the proceedings; and

(b) prohibiting a party who fails to comply in respect of any evidence with any requirement imposed by virtue of paragraph (a) above from adducing that evidence without the leave of the court".

In other words, the court remains the judge of these things. Certainly my own view, for what it is worth—and I believe it to be the view of my colleagues—is that nothing can be lost and everything can be gained by such a procedure in a criminal trial. The burden of proof remains exactly where it was before. However, when you are dealing with a field with which probably counsel and certainly the jury will be unfamiliar, it is sensible to try to point out in advance the points of scientific interest upon which the parties differ. It is not evidence of fact; it is evidence of opinion. I think for either side to try to spring unexpected evidence upon the other side is really to darken the waters of criminal justice.
If this clause was not part of a Bill which provides for a rational way in which it can be done, subject, of course, to the control of Parliament, what would in fact happen, as I know from experience, is that, faced with a piece of scientific evidence of which they had not had prior notice, the prosecution would ask leave to call rebuttal evidence and probably ask, if they had not been given notice in advance, for an adjournment in order to be able to do so. It is far better to settle these things in advance.
The noble Lord, Lord Mishcon, said that the sprung alibi was the only case where, by statute, we had breached the original practice. I was prepared to accept that this was so. I think that it was a very wise provision. I believe that the noble and learned Lord, when he was Attorney-General, probably had something to do with it. As is the case with many of the things that the noble and learned Lord does, I can only heartily applaud his action.
But there is, of course, quite another field in which this development has been taking place. That is the pre-trail review. I have always tried to encourage the pre-trial review, which is an informal procedure. I do not think that there is any statute which says much about it.
I have always thought that what should take place in complicated criminal cases is that the two parties, through their legal representatives and in front of the judicial officer, should try to find out what are going to be the points of issue between them. That saves a lot of time. It aids the truth. It does not put the defence at any disadvantage against that position to which they would otherwise be entitled. Clause 76 deals only with that in relation to scientific evidence. I would plead once more for rationality in our criminal trials, as I have tried to do previously, against the obscurantism of the more conservative elements in the legal profession.
Lord Hooson: I should like to say a word or two about this clause. I am broadly in favour of the provision as stated. If one was raising the defence of automatism, and if one sprung that on the prosecution, who had no prior notice of it, it would seem to be very wrong. The chief officers of police, in their memorandum, were not really in favour of this provision. They suggested that the right to an adjournment would seem to cover it. A great deal depends upon the rules when they are drafted. Is one to be required to disclose the whole of one's evidence, or simply the outline of it? That would seem to me an important provision. It is important to make sure that the prosecution are not taken completely by surprise with a sprung defence that should be disclosed beforehand.
On the other hand, there are some misgivings. We have had disclosed the unfortunate affair of a forensic scientist employed by the Home Office for many years, whose evidence is now very suspect. What if one had exchanged full details with him? These are matters that are obviously troublesome. I only hope that careful consideration is given to the way in which the rules are drafted.
The Lord Chancellor: In response to the noble Lord, Lord Hooson, I agree absolutely that they have to be drafted with great care and scrutinised after they are published. But, subject to that, I do not think that any injustice would be incurred by this.
Lord Mishcon: I wish that I could agree with the noble and learned Lord, who has put his arguments against this succinctly and with charm, as he always does. But it goes far deeper than that. I turn immediately to what was stated by the noble Lord, Lord Hooson. The clause itself provides perfectly clearly that the Crown Court Rules may make provision for requiring any party to proceedings before the court to disclose to the other party or parties any expert evidence which he proposes to adduce. The wording of the clause is not such as to give notice of the nature of any expert evidence it is likely to call. I would have had much more sympathy with such wording, as would the Law Society. Under this rule the party has to show its expert's report, and that obviously is something that is fundamental to the objection that I put.
I should like the noble and learned Lord to realise at once that the criminal law committee of the Law Society would be the last committee in the world to want to play games in regard to criminal trials or to run them in accordance with any rules of such games. Obviously, they take these matters very much more seriously. I am sure that the noble and learned Lord appreciates that. It is not that. It is that we are possibly now going down an extremely risky path if we start this business of the defence having to disclose certain matters in relation to its defence, whether it is expert or not. This is not a question of being conservative in one's views. One can be a traditionalist in one's views, and I should have thought that a fine thing if the tradition is a very good one. The tradition is that it is for the prosecution to prove its case. There is nothing by way of duty on the defence at this stage of our law to have to give not just notice of what it intends to do, but its actual expert evidence. It seems to me that this

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is a very risky procedure to embark upon. Because the Law Society and its appropriate committee take a very serious view of this matter, I feel that one would want in these circumstances to test the opinion of the Committee.
8.37 p.m.
On Question, Whether Clause 76 shall stand part of the Bill?
Their Lordships divided: Contents, 48; Not-Contents, 30.

DIVISION NO. 2

CONTENTS

Auckland, L.

Kaberry of Adel, L.

Avon, E.

Kilmany, L.

Bathurst, E.

Kinnaird, L.

Bauer, L.

Lindsey and Abingdon, E.

Brougham and Vaux, L.

Long, V. [Teller.]

Caithness, E.

Lucas of Chilworth, L.

Carnegy of Lour, B.

Macleod of Borve, B.

Carnock, L.

Margadale, L.

Cathcart, E.

Molson, L.

Chelmer, L.

Mountevans, L.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Dormer, L.

Peyton of Yeovil, L.

Eccles, V.

Polwarth, L.

Elton, L.

Renwick, L.

Faithfull, B.

Skelmersdale, L.

Ferrers, E.

Stanley of Alderley, L.

Ferrier, L.

Suffield, L.

Gisborough, L.

Tranmire, L.

Glenarthur, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Trumpington, B.

Vaux of Harrowden, L.

Hornsby-Smith, B.

Vickers, B.

Hylton-Foster, B.

Westbury, L.

Inglewood, L.

Wise, L.

Ingrow, L.

NOT-CONTENTS

Birk, B.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

Melville, V.

Carmichael of Kelvingrove, L

Mishcon, L.

Collison, L.

Nicol, B.

David, B. [Teller.]

Plant, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Elystan-Morgan, L.

Rea, L.

Ennals, L.

Ross of Marnock, L.

Glenamara, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Stone, L.

Hall, V.

Strabolgi, L.

Hatch of Lusby, L.

Underhill, L.

Irving of Dartford, L.

Wells-Pestell, L.

Jeger, B.

White, B.

John-Mackie, L.

Resolved in the affirmative, and Clause 76 agreed to accordingly.
8.45 p.m.
Lord Hooson Lord Hooson moved Amendment No. 160A:
After Clause 76, insert the following new clause:
("Evidence of identification
.—(1) Where at a trial on indictment the case against an accused person depends wholly or substantially on evidence of one or more visual identification of him, the judge shall, subject to subsection (2) below, either—

(a) warn the jury that it is not safe to convict on such evidence unless the identification is supported in some material particular by evidence, other than evidence of visual identification, implicating the accused person and indicate to the jury what evidence they may regard as so supporting the identification; or

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(b) direct the jury to return a verdict of not guilty if he is unable to give such an indication.

(2) Where there is, in the opinion of the judge, credible evidence—

(a) that the accused person is familiar to the person identifying him; or

(b) that the person identifying the accused person had observed him for a prolonged period or on more than one occasion;

or where the accused person admits to having been present at the place where the offence was committed but denies that he committed it, the judge shall not give the warning referred to in subsection (1) above, but shall instead warn the jury of the special need for caution before convicting the accused person in reliance only on evidence of identification.
(3) In this section 'visual identification' means identification by observation.").
The noble Lord said: The year 1976 was an important year in reviewing the evidence of identification, because in that year the noble and learned Lord, Lord Devlin, published his report on evidence of identification. He recommended that certain safeguards should be put in statutory form. That was followed immediately by a statement by the then Attorney-General, laying out guidelines that certainly were to apply in cases that were sent to the Director of Public Prosecutions.
In the same year, in the case of Turnbull, five Lords Justices in the Court of Appeal laid down guidelines on offences which depended largely or wholly on identification evidence. What my noble friends and I are seeking to do, through this amendment, is to go back to the Devlin position and to introduce a statutory provision which deals with the question of the dangers of conviction on identification evidence alone, or on mainly identification evidence.
The clause itself is quite simple. It is divided into three subsections. Subsection (1) deals with the evidence of what properly can be described as identification; that is, where one or more persons have sought to identify a person and have no previous knowledge of him or her. In particular, of course, one is concerned about fleeting glances. The subsection provides that the judge would be required to,
"warn the jury that it is not safe to convict on such evidence unless the identification is supported in some material particular".
In other words, it would require some corroboration, and the learned judge would point this out to the jury. If there were no such corroboration, he would,
"direct the jury to return a verdict of not guilty if he is unable to give such an indication",
of corroborative evidence.
Subsection (2) deals with what properly can be described as recognition; that is, where the person is known to the person identifying or to the persons identifying. That is in a different category from what can be called identification. Normally, lawyers use the term, "identification", simply to indicate the person who is seeing the suspect for the first time. Subsection (2) deals with the question of recognition, where there is the basic knowledge of the recognising person, where he is familiar with the accused person, and also provides:
"that the person identifying the accused person had observed him for a prolonged period or on more than one occasion".
In that event, the warning that is required under subsection (1) is not required. But then the judge will,
"warn the jury of the special need for caution before convicting the accused person in reliance only on evidence of identification".

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Subsection (3) says simply:
" 'visual identification' means identification by observation".
Therefore, we have gone back to the initial recommendations of the noble and learned Lord, Lord Devlin, who had inquired in very considerable detail into this matter before publishing his report. It is simpler than the guidelines laid down in Turnbull. It can be said that probably it is rather broader in its concept, but nevertheless much simpler. I agree very much with what Lord Devlin said on the occasion of the publication of his report; that is, that a statutory protection was required to deal with this particular matter. We have taken advantage of this Bill to try to introduce it. I beg to move.
Lord Elystan-Morgan: We on these Benches have very great sympathy for the amendment moved by the noble Lord, Lord Hooson. We accept and are aware that misidentification has led to greater and more numerous miscarriages of justice than possibly any other heading in relation to the administration of our criminal law. As the Committee will be aware, it was a classic case of misidentification in the early years of this century which led to the formation—as it then was called—or the establishment of the Court of Criminal Appeal. From the few years' experience that I had as a junior Minister in the Home Office, I saw numerous cases of this nature where there were people of the most genuine motivation, intelligent people, who were not only trying to be truthful but determined as well to be totally accurate, but who were wrong, wrong, wrong. Very often it was not a case of one person or three or four people, but sometimes eight or 10 people who were all falling into the same trap.
As one who practises in the criminal courts from day to day, I accept that judges go out of their way to be careful in the directions that are given to juries in this matter. But sometimes there is a tendency for the matter to be regarded as a rather formal catechism and, once the words have been spoken, for a learned judge to consider that he has gone far enough. We take the view that the point made by the noble and learned Lord, Lord Devlin, that this is of such importance that it should be enshrined in statute, is a good point. Even if some of the detail of the amendment may be criticised, we take the view that the principle is of such supreme importance that it would be right to concede it.
The Lord Chancellor: Obviously one cannot complain that identification questions have been raised in connection with criminal evidence. I would agree with the noble Lord, Lord Elystan-Morgan, that one of the identifiable areas in which miscarriages of justice have taken place has been cases of misidentification. Perhaps that is not surprising since any system of criminal law depends for its effectiveness, however excellent in other respects, on getting the right man and not the wrong one. We know of a number of cases—and it would be idle for me to pretend that we did not—in which on really overwhelming evidence juries have convicted when it was proved later that the accused was innocent of the offence. I say "was proved later that he was innocent" because, having accepted that there must be some such
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cases, one must assume that there were others where a person could not prove his innocence. I think that it would be fair to assume that. One cannot identify them. Therefore, naturally it is a matter which causes a good deal of anxiety to those in authority which of course, for this purpose, does not include me.
One such case was that of Adolf Beck. I think that the noble Lord, Lord Elystan-Morgan, was probably referring to that case when he spoke about a case in the early years of this century. Another case that I can remember off hand just after I had ceased to be Lord Chancellor in 1974 was the case of Docherty. I raised it with the noble and learned Lord, Lord Elwyn-Jones; indeed, I think that it was almost one of the first things that I did when I was on the Opposition Bench.
Docherty was a man who was convicted of shoplifting in Newcastle and eventually, after much travail and after he had been convicted and gone to the Court of Appeal and his appeal had been turned down, it was established by no less than 53 reputable witnesses that he really was in Whitley Bay at the time when the shoplifting took place.
Lord Elwyn-Jones: He was in a charabanc on the way there.
The Lord Chancellor: Oh, he was in a charabanc on the way to Whitley Bay. As one kind of common law jury advocate once said in my father's hearing, "It matters not, my Lords, the principle is the same". At any rate, he was innocent and proved himself to be innocent. This must obviously give rise to anxiety. If I have it right, the Devlin Report raised a number of other possible or actual cases. I do not think that it matters, because one knows that this is one of the areas of the law which must give rise to anxiety.
However, time has gone on and in 1976 the case of Turnbull was reported. I must say that I am convinced that Turnbull provides a better guide and that the fairly flexible approach of Turnbull is more likely to succeed to prevent injustice than the rather rigid approach—and I am not going to criticise the drafting—which inevitably a statutory approach applies. I do not think that it would be fair of me to attack the formalism of this drafting, although I think that it is inherent in the statutory approach. Whether one would adopt this particular form of words I do not think arises.
I would like to tell the Committee what Turnbull said and for that purpose I rely virtually textually, but not quite, on the headnote of the report which I think gives a fair indication of what happens nowadays. It says:
"Whenever the case of an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification".
I am sure that that is right. The safegurd must lie on the judge's summing up to the jury and not on formalism or pedantry, and the first thing is to demand caution in any case of identification. To proceed with the headnote:
"He should instruct them as to the reason for that warning and should make reference to the possibility that a mistaken witness could be a convincing one"—

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that was the point which the noble Lord, Lord Hooson, made. It goes on—
"and that a number of witnesses could all be mistaken".
That again was the case in the remarkable history of Adolf Beck. It did not rest on the evidence of a single witness of identification; there was a whole number of them and, what is more, there was ample corroborative evidence in that case, supported, among others, by a handwriting expert. It continues:
"Provided that the warning is in clear terms, no particular words need be used. Furthermore, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made".
That is a matter of supreme importance and it varies very considerably from case to case according to the state of the lights, the opportunities for observation and so on. Then:
"If in any case, whether being dealt with summarily or on indictment, the prosecution have reason to believe that there is a material discrepancy between the description of the accused given to the police by the witness when first seen and his actual appearance they should supply the accused or his legal advisers with particulars of the description which the police were first given".
That is very important as a statement of the duty of the prosecution in these cases. It goes on:
"In all these cases, if the accused asks to be given particulars of any description, the prosecution should supply them. Finally, the judge should remind the jury of any specific weaknesses which have appeared in the identification evidence.
"Where the quality of an identification is good, the jury can safely be left to assess the value of the identifying evidence even if there is no other evidence in support, provided always that an adequate warning has been given about the special need for caution. However, where in the opinion of the judge the quality of the identifying evidence is poor, he should withdraw the case from the jury and direct an acquittal unless there is other evidence which supports the correctness of the identification. That other evidence may be either corroboration in the legal sense"—
which, of course, is a highly technical matter—
"or something which convinces the jury that the identification is not mistaken; any odd coincidence, if unexplained, may be supporting evidence. The judge should identify to the jury any evidence which he adjudges capable of supporting the evidence of identification and he should tell the jury if there is any evidence or circumstances which cannot support an identification…
"The judge should tell the jury that the absence of the accused from the witness box cannot provide evidence of anything, although they may take into consideration the fact that identification evidence has not been contradicted by the accused. The judge should take care in directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons and it is only when the jury are satisfied that the sole reason for fabrication of an alibi was to deceive them, that fabrication can support identification evidence. The judge should remind the jury that proof that the accused has lied about his whereabouts at the material time does not prove that he was where the identifying witness says he was.
"A failure to follow these guidelines is likely to result in a conviction being quashed and will so result if, in the judgment of the Court of Appeal, on all the evidence, the verdict is either unsatisfactory or unsafe. However, the Court of Appeal has no jurisdiction to retry a case; it is for the jury in each case to decide which witnesses should be believed".
That is what took place in 1976. My conviction is that the very careful guidelines given by the Court of Appeal in Turnbull are better than the proposed codification in the noble Lord's amendment, not merely because there may be—I daresay there are—defects in draftsmanship, but because this is the right way of approaching a very difficult question of this kind, and not by trying to drive the court onto a bed of Procrustes.
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In 1980 a consultation was undertaken to assess the effectiveness of the guidelines and Ministers—I think of the present administration or its immediate predecessor—concluded that the Turnbull guidelines were working satisfactorily. The problem identified by the Devlin Committee had, therefore, been dealt with by other means and legislation was not required. The Royal Commission on Criminal Procedure—the Philips Commission—which we are largely legislating about now, took note of this statement and itself made no proposals of detail. However, it recommended that when the Government considered legislation in the field of pre-trial criminal procedure they should examine the possibility of making identification procedures subject to statutory control as well, and this is already done in the Bill by Clause 63 and in the proposed code of conduct on identification procedures. I should have thought that it was very much open to question that anything more is required.
The effect is that in 1980 the judiciary, the legal profession, the chief officers of police and others with an interest in the subject were consulted. While it would be wrong to pretend that there was unanimity, there was a general acceptance that the guidelines which I have read out dealt satisfactorily with the problems perceived by the Devlin Committee, and there seemed no need for legislation.
Nearly four years have passed since then. No difficulties have arisen since that conclusion was reached. With respect, I would have said that I have made out a case for the present situation to continue and for the view that the attempt to codify the procedure is probably wrong, in spite of the support given to it by the weighty evidence of the Devlin Committee some years ago. That is really what I have to say to the Committee.
Lord Hooson: I entirely agree with the noble and learned Lord the Lord Chancellor that we are dealing with a very difficult sphere. But with the greatest respect to him, I do not think that the case of Turnbull, which sets out guidelines which have been extremely helpful in practice, deals with the problem that troubled the Devlin Committee: namely (and I think that the noble and learned Lord referred to the case of Beck), that one can have identification evidence of very good quality (which I believe was the case in Beck) which appears to the jury to be of very good quality, and therefore the judge thinks it right, although there is no corroboration, to allow the case to proceed to the jury so that they can assess that evidence.
That was the very matter that troubled the noble and learned Lord, Lord Devlin—that there can still be a mistake where the evidence appears to be of very good quality and, despite the warnings to the jury, they proceed to convict. It was against that situation that Devlin made his recommendations in the belief that, where there was no corroboration, the only safe course was to insist upon an acquittal. Having said that, we may return to this matter on Report; I do not intend to press the amendment to a Division. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.7 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 160AA:
After Clause 76, insert the following new clause:
("Evidence of offences under s. 32 of Sexual Offences Act 1956.
. The evidence of an arresting police officer shall not be admissible at the trial of an offence contrary to section 32 of the Sexual Offences Act 1956 unless corroborated by evidence that some other person other than a police officer—

(a) was offended by the conduct of the accused; and

(b) did not incite, encourage or consent to the commission of the offence.").

The noble Lord said: This amendment aims at the highly unsatisfactory situation which now exists in relation to Section 32 of the Sexual Offences Act 1956. As the Committee no doubt will be aware, this is the offence of persistently importuning in a public place. The effect of the amendment would be to make it impossible for a prosecution to proceed unless there was some evidence, other than the evidence of a police officer who had entrapped the defendant; in other words, there would have to be the evidence of some innocent and detached member of the public who found that conduct to be offensive.
The logic of the situation, I am sure, is clear to everyone. Most criminal offences come to the notice of the police either because they have been committed in a public way (for example, an affray or a riot) or because there has been a complaint to the police (for example, robbery or rape), but almost universally these cases are cases where there is no complainant at all. The officers concerned act as agents provocateurs in the sense that they lie in wait for these unfortunates, knowing that they are in places which are regularly frequented by persons of homosexual proclivities, and knowing that there is the certainty that remaining purely passive, as they do, they will be a temptation to these persons as they come along to such places.
On Report stage in another place Mr. David Mellor, one of the Home Office's junior Ministers in that House, deplored the use of police officers as agents provocateurs in this connection. He gave an undertaking that new guidelines would be drafted and issued to police officers in this connection. As the Committee may be aware, guidelines were drafted in 1978, but it seems that there is every reason to believe that they have been largely ignored in various police authorities.
A study carried out by Walmsley and White on behalf of the Home Office in 1979 came to the conclusion that the vast majority of these acts were wholly consensual and were carried out in places which, although they may be public in the highly technical sense, nevertheless were well outside public notice. Various studies carried out by the NCCL have produced over 200 reported cases where it is clear that there was no complaint whatsoever and that the only witness was the police officer or the police officers concerned.
"Public place" is widely defined in the Act. It is defined as a place
"where the public go to whether by right or not."
In my submission, the way in which this provision, Section 32 of the Sexual Offences Act, is now being handled by police officers is wholly contrary to the
968
spirit of the more liberal legislation of the 1960s in relation to these facts.
There is certainly a great deal of evidence to show that practice varies considerably from one police authority to another. Some chief officers of police pursue this matter with an incandescent fervency, while others tend to ignore the situation altogether unless, of course, there is a public complaint, which is a totally different situation. Without referring to any specific case, it seems clear that in recent months there has been a heavy concentration by police officers on "gay" clubs and other places frequented by persons of homosexual disposition in the Earls Court area.
In our submission it is in the public interest that there should be firmer rules than obtain at the present moment. The provision in the amendment would, on the one hand, make it necessary for there to be a witness from the public, and, on the other hand, safeguard the police from the accusations that are made of what amounts to very suspect policing practice in this particular connection. It is on the basis that we say that if this amendment is accepted it is a humane, practical approach to something that is elevated to far too high a level as a problem in many police authorities. I beg to move.
Lord Molson: I hope that the Government will give sympathetic consideration to this amendment which has been moved by the noble Lord opposite. When I saw that this amendment had been put down, I was reminded of a paragraph which I read in The Times some time ago. It was purported to be a report of legal proceedings. Therefore it was presumably reliable. It resulted in the conviction of a retired diplomat who had risen high in the service of his country and the prosecution told a squalid tale about themselves in the court.
Police constables, suspecting that an offence was going to be committed, went into a women's lavatory and locked the doors behind them. They then went into one of the cubicles and took down a grille. They were thus enabled to look into the corresponding cubicles in the men's lavatory next door. They saw an offence being committed and thereby were enabled to bring a prosecution.
I disapprove of the action of the police constables who carried out that action, but I totally reprobate the attitude of the senior police officers responsible. In the first place I reprobate their action because they must have encouraged the constables to go to extreme lengths to look for offences which cause offence to nobody else and then go on to take further action to obtain the evidence necessary to bring a prosecution. That is the first charge that I bring against the senior officers.
The second charge that I bring against them is that they were not ashamed to produce the evidence in open court and to disclose how it was obtained.
Without interfering unduly at the present time with the necessary discretion of chief constables to decide on prosecutions, I think Parliament and the Government might properly reprobate actions of this kind. Incidentally, this also draws attention to the importance of substituting local public prosecutors, similar to those who operate in Scotland, for the

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discretionary powers of the large number of chief constables in England who act, as has been indicated by the noble Lord opposite, according to entirely different principles and standards.
This story tends to confirm the belief that some senior police officers are prejudiced against homosexuals to an extent that is not justified by the law as enacted after careful consideration by Parliament.
I feel bound to draw attention to this item of news which I read in The Times. As I say, it purported to be the accurate report of legal proceedings in a magistrates' court. I am sorry to do so. I confess that I am prejudiced in relation to the police; a prejudice against which we pray every day at the beginning of our proceedings. But I am prejudiced in their favour; I admire their courtesy and courage, the combination of the two and the patience which they show in extraordinarily difficult circumstances.
But none of us is without sin and that applies to the police force just as it does to the rest of us. For those reasons I think that the Government should give careful consideration to the amendment which has been moved by the noble Lord opposite.
The Lord Chancellor: Again it falls to me to speak at this point of time. If I may I comment first on the speeches which have been delivered. I say respectfully to the noble Lord, Lord Elystan-Morgan, that this has nothing to do with agents provocateurs. One must use that phrase with care. An agent provocateur is a person who encourages an offence and thereafter, if it is committed, prosecutes for the commission of it. The distasteful task which falls to the police in cases of this kind, whether in a public place, in the street or in a public lavatory is to see whether an offence is being committed. If they provoke an offence I am sure that they would provoke not only the reprobation of this House, but also the reprobation of their superiors.
Lord Elystan-Morgan: I should like to intervene to make it absolutely clear that I was in no way suggesting that there was an active intention on the part of the police officer to encourage the commission of the offence. That would be utterly reprehensible and wrong by every canon of discipline as far as his work is concerned. The point that I was making—and clearly I did not make it as succinctly as I might—was that for people who were of homosexual disposition the very presence of the police officer was in itself a provocation. It was only in that very limited sense. I am very grateful to the noble and learned Lord for having given way.
The Lord Chancellor: I am very grateful to the noble Lord, Lord Elystan-Morgan. The reason why I ventured to say this is that the existence of agents provocateurs is admitted in certain fields. In drug offences I think it might easily be said—I do not know; I am speaking without instructions from the Home Office—that there are agents provocateurs; but not in this field as far as I know. One should use the phrase, I think, with caution and in its exact sense, because the general public is apt to think that when a couple of young police constables are ordered by their superiors to invigilate a public lavatory, or whatever, to see whether such offences are being committed, they are
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agents provocateurs. But they are not in any way encouraging the offence. I am grateful to the noble Lord, Lord Elystan-Morgan, for making this absolutely plain.
The second point that I should like to make is that he referred to what he called "gay" clubs. I have a private reservation about the word "gay" in this connection. "Gay" is a lovely word in the English language which I myself love to use, but I cannot use it any more because of the snigger which is always heard audibly or is seen to overspread people's faces. This amendment has nothing whatever to do with clubs: it has to do with Section 32 of the Sexual Offences Act 1956, to which I will come in a moment. This has to do with public places, and a club is not a public place. I dare say that some Members of the Committee (and certainly I) have in mind a case which may or not be coming for trial; but it has nothing to do with that sort of case, which was a case of indecent assault in a private place, where different considerations apply from those which arise in this amendment.
This curious amendment provides that the evidence of an arresting police officer shall not be admissible at the trial of an offence contrary to Section 32 of the Sexual Offences Act 1956 unless corroborated by evidence that some person other than a police officer was offended by the conduct of the accused and did not incite, encourage or consent to the commission of the offence. This, I think, is open to an insuperable objection. It is based, obviously, on a vague recollection of the old offence which used to apply to prostitutes in heterosexual activity who were importuning. There, the section of the statute provided that it had to be to the annoyance (or some such phrase) of the passers-by; and the unfortunate police constable had to give some absurd evidence that people turned away with a disgusted expression. It really did not do.
But that is no longer the law because that heterosexual form of prostitution has been abolished as an offence. The section of the Sexual Offences Act 1956 to which alone this amendment is directed—and I must read it out—reads as follows:
"It is an offence for a man persistently to solicit or importune in a public place for immoral purposes".
Your Lordships will see at once that there is nothing in that section, the whole of which I have read and which occurs in a line and a half of print, about annoying other people, or other people not consenting, or whatever, or showing signs of annoyance. Therefore, the ingredients of that offence have nothing whatever to do with offence or annoyance by the conduct of the accused.
The Committee may think that that is a very bad section. It is perfectly legitimate for people to criticise that section, but this Bill is a Bill about evidence and it is not a Bill which alters the substantive nature of the offence. If you read the proposed amendment—I am sorry to put it rather bluntly—it is an amendment which causes the prosecution to prove something against the accused of which he is not accused and which does not form any part of the offence. That must be a fatal objection to this amendment.
We do not seek in this Bill in any way to alter the substantive criminal law. If we did, no doubt it would

971
be possible to alter Section 32 of the 1956 Act. But we do seek to deal with the law of evidence and, with great respect and, using the utmost humility and, if I may say so, sympathy, you really must not, my Lords, introduce a substantive ingredient to the offence which is not there by way of making an artificial rule of evidence. It is not good enough. It is an offence against good legislation and it is outside the whole of the philosophy of this Bill.
If I may say so, the remedy proposed is not apt to the offence which happens. What is really suggested is that there should be corroboration about a matter which is no part of the offence in order to prove the offence against the defendant. The practice is I believe—I speak as one who over 50 years has had the misfortune either to appear in or listen to a number of these rather distasteful cases; I can assure whichever noble Lord it was that I am not in a mood of incandescent rage against them—for two police constables to have to give the evidence. I have never heard it done by corroboration in my experience. I think the universal practice is for evidence to be given by more than one police constable. I do not think corroboration is a test at all. I daresay—I do not know; one is old and wicked and has seen a lot of evil in one's time—that, after having fished the waters of the public lavatories of the metropolis for cottagers for a long time, it may be that some police constables become bored and feel that they have to make an arrest. I hope not, but it is conceivably possible, true. But the need for corroboration is to defeat the purpose of this section because in practice the persons who might be expected to corroborate are either non-existent or unwilling.
I shall take the obvious case, and even the unpleasant case to which my noble friend Lord Molson referred. What happens in these cases is that, if it does not occur in the stalls of the urinal, it occurs in the cubicles of the other part of the public lavatory where a hole has been drilled in the interstices of the two cubicles and various things take place, which are described in detail in the evidence. You are in fact preventing the offence being prosecuted, if what you are asking for is corroboration, because the chances of the two police constables committing perjury are relatively small, although, the world being a wicked place and I being a disgustingly old man, I recognise that it no doubt occurs sometimes. So the remedy proposed is not a satisfactory one.
The third reason I give against it—I hope that this will persuade even those who are not persuaded by my boring arguments on the merits of the appeal—is that it does pre-empt, and pre-empts piecemeal, the current work in this very area of the Criminal Law Revision Committee, which is due to report in the next few months, when I hope we may have a new light and perhaps greater wisdom on this rather unpleasant area of discussion.
So the long and the short of it is that the Government cannot support the amendment. We do not start from any prejudice which we may or may not have against homosexual offences. I think it is arguable that conduct in public lavatories and, indeed, in public places of a homosexual character is in the nature of a public nuisance. I do not think it rises much above the magistrates' court level; nor do I think
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it is suitable for violent denunciations about Sodom and Gomorrah. At any rate, I hope I have exhausted this painful subject without showing lubricity or undue criticism.
Lord Elystan-Morgan: I am sure we have all listened with very great care to the arguments and explanations that have been very lucidly, as always, deployed by the noble and learned Lord the Lord Chancellor. We accept that the amendment is far from perfect and we certainly would not seek to press it to a Division, for a number of reasons. However, we hope that what has been said on this matter, within this Chamber and in the other place, will have the effect of much stricter guidelines being issued to police forces, or a genuine effort being made by the Home Office to bring about a more reasonable level of uniformity in relation to this matter, so that experienced officers—and they are almost invariably officers of considerable experience—have their time, in the main, better occupied when in many localities it is not necessary in relation to any feeling of public outrage for these exercises to be carried out on such a scale as they are.
We hope, too, that the Criminal Law Revision Committee will give this matter its fullest consideration, and, indeed, we are confident that that will be the case. In those circumstances, I beg the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 77 [Part VIII—Interpretation]:
Lord Hooson Lord Hooson moved Amendment No. 160B:
Page 69, line 18, leave out subsection (3) and insert—
("(3) Every criminal court shall have a power in its discretion to exclude evidence obtained by unfair, oppressive or unlawful means.").
The noble Lord said: In the context of the debate on Amendment No. 160, I am bound to say that I think there is more to commend this amendment than I thought. It has the advantage of brevity, simplicity and familiarity, because all police officers and, I think, all lawyers before the case of Sang thought that this power existed.
In the light of what the noble and learned Lord the Lord Chancellor said to us during the general debate on Amendment No. 160, I wonder whether he could go so far as to say that he is in favour of an exclusion power being in the court; not to say how it is to be exercised, because, as I understand it, that is a matter he agreed to look at, but to say that there is, or should be, a residuary power in the court, wherever the onus lies, to exclude evidence in certain circumstances rather wider than was admitted in Sang. I beg to move.
Lord Airedale: I should like to support my noble friend in this amendment. One advantage of it, it seems to me, is that it gets rid of the expression "overriding interests of justice", which appears in the amendment of the noble and learned Lord, Lord Scarman, which I feel to be open to extremely wide interpretation. I believe that if you were to set down a number of hypothetical cases and circulate them to the judges, and you did not allow the judges to confer, and you said: "Kindly indicate in which cases you think

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that the overriding interests of justice do or do not apply", you would get an extremely wide variation in the replies.
Lord Renton: When we discussed Amendment No. 160, my noble friend Lord Campbell of Alloway pointed out that if something needed to be done Amendment No. 160B would be a preferable way of dealing with it. At that time I expressed doubts as to whether it was desirable that we should legislate in this way in this statute, because we have the law which has been evolved by the courts. I expressed the view that it might be better for it to continue to be evolved instead of being, so to speak, crystallised by statute. This amendment has great superficial attraction because of its simplicity. If, however, it is intended to be a statement of the present law, or a simplification of the present law, I would simply say that it is an oversimplification of the present law, as can be seen if one reads the Sang case.
Lord Elwyn-Jones: Since we approached this matter in a wider context earlier, we await with impatience the lucubrations of the noble and learned Lord the Lord Chancellor on the whole of this field of confessions and judicial control over admissions. Therefore, I shall hold whatever fire remains until we have heard the further remarks of the noble and learned Lord the Lord Chancellor on this matter.
Lord Monson: As a mere layman, I hesitate to venture on these choppy waters, but is there perhaps something to be said for adopting Amendment No. 160B, as well as some variant of Amendment No. 160, on the belt and braces principle, given that my noble and learned friend Lord Scarman made it quite clear earlier that he had no wish whatever to see the words "unfair" or "oppressive" included in whatever revised version of Amendment No. 160 he was going to move at the next stage? Is it not the case that it is desirable for the courts to have the right to exclude evidence obtained by unfair and oppressive means as well as the right to exclude evidence obtained by illegal means?
The Lord Chancellor: I do not believe that Amendment No. 160 excludes unfair and oppressive means. To some extent, as I indicated before, my hands are tied because the only instructions I have are to resist all of these amendments. However, for the reasons I gave during our earlier discussions, I do not feel that it is proper to pursue those instructions in too pedantic a way. However, what I can do is to include this amendment in my report to my right honourable and learned friend in relation to the others.
It attracts me in one way and not in another. I like its simplicity, I like its brevity and I like its absence of formality and artificiality. I ventured to say before, again expressing a purely personal opinion, that there are two elements in this matter, assuming that we have got to do something. I do not believe that the mere reference to the way in which the evidence was obtained is enough, and perhaps it is not even the right criterion. The question, as the noble and learned Lord, Lord Diplock, said in Sang, must be, in whatever form one expresses it, the use to which the prosecution puts the evidence in the context of the particular trial. To take the case of Payne, to which I referred earlier, where a medical report was obtained to see whether the defendant was ill, they then proceeded to put it in to show that he was committing the offence of driving while under the influence of drink. It is the use to which the prosecution puts the evidence, which may be unfair, which is at least of equal importance and possibly of even greater importance than the way in which the evidence was obtained, which may lead to a somewhat infructuous and academic discussion.
Therefore this amendment, with the others, will be left for my right honourable and learned friend the Home Secretary. I shall make my own recommendations to him. I have probably been more candid with the Committee than I ought to have been. I hope the Committee is under no misapprehension as to what I shall really be trying to do.
Lord Hooson: With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 77 agreed to.
Clause 78 [Establishment of the Police Complaints Authority]:
9.41 p.m.
Lord Plant Lord Plant moved Amendment No. 161:
Page 69, line 25, leave out subsection (2) and insert—
("(2) The Police Complaints Authority (in this Part of this Act referred to as "the Authority") shall have the functions conferred under or by virtue of this Act in relation to the investigation and the supervision of investigations of allegations against police officers and related disciplinary charges against such officers.").
The noble Lord said: Amendments Nos. 161 and 163 are all part of the same problem:
Amendment No. 163: leave out clause 79 and insert:
("Complaints to Authority.
.—(1) Where a complaint such as is mentioned in subsection (2) below is submitted to the Authority in respect of a police area it shall be the duty of the Authority—

(a) to take such steps as appear to the Authority to be necessary for the purpose of obtaining or preserving evidence relating to the matter complained of; and

(b) to cause to be recorded the making of the complaint and its nature.

(2) The complaints to which subsection (1) above refers are any complaint against a member of the police force for the appropriate police area which is submitted—

(a) by a member of the public; or

(b) on behalf of a member of the public and with his consent.").

These amendments both relate to the question of independent investigation, and later amendments deal with the restoration of the full role of the Director of Public Prosecutions. They aim to remove the discretion of the chief constable to prefer disciplinary charges against a police officer where the facts disclose a criminal offence.
The Police Federation regard this Bill and its clauses on complaints as a lost opportunity. I understand that the Home Office are submitting new procedures on complaints to the Police Federation and other organisations, and there may be in this latest document some slight improvement. It will certainly be the subject of a good deal of hard bargaining in negotiation over the next few weeks.
For 50 years the Police Federation has been trying to obtain a system of discipline which is totally fair to the needs of the service and to the individual. For a number of years it had the active assistance of the right honourable Member for Cardiff South, Mr. James Callaghan. The Leader of this House the noble Viscount, Lord Whitelaw, said at the Police Federation Conference in 1982 that in the new Bill he would not budge on the principle that,
"justice for the policeman was just as important as justice for the complainant".
I support that sentiment completely. However, I am worried by the number of cases in which the careers of young police officers have ended with a kind of informality which really amounts to, "Resign or be sacked". I will refer here to the case in North Wales where the noble and learned Lord the Lord Chancellor had the most scathing remarks to make about the behaviour of the chief constable for that area at the time.
Too often, young officers find themselves being forced to make statements or to submit their resignations when they are confronted by officers of much higher rank and of longer service. Earlier today, the noble and learned Lord, Lord Scarman, spoke
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about fair trials. Fair trials are what I am speaking about at this moment. We must insist that no man goes to judgment with his case already decided. I hold no brief for the corrupt officer, the brutal bully or the bigot; they must go.
These amendments have the full support of the Law Society, the National Council for Civil Liberties, and Justice, among others. The Police Federation feels strongly that complaints against the police should be investigated by a wholly independent body. Prior to 1981, the federation had supported the present system whereby complaints against the police have always been investigated by the police themselves. The main reason for the change of policy on the part of the federation was that the long-standing argument over police complaints will never be resolved so long as the police are seen as judges in their own courts.
That this is not the case with the present system is not the point; the public believe it to be so and no amount of alteration to the system changes that public perception. This is the fourth major change since 1964. It is essential that the policeman under question should at the outset have the active support of his federation. I am glad that the Government did give way in another place on the question of legal representation. This is all to the good. I shall be returning to that when I speak of legal costs in a later amendment, but that is a different story.
Amendments Nos. 161 and 163 make the Police Complaints Authority the body responsible for the investigation of complaints against the police, and they should employ their own investigators, find out the facts for themselves and make the report. On an earlier amendment I asked the noble Lord, Lord Elton, whether the clause then under discussion would apply to Northern Ireland. I think I ought again to ask whether he has any information about the application to Northern Ireland and, indeed, Scotland of some of the clauses that we are discussing and in particular this one. I move the amendment.
Lord Elwyn-Jones: I rise to support this amendment moved by my noble friend Lord Plant. Independent investigation of all complaints is, we believe, the basic principle on which not only the Police Federation—as my noble friend has said—but also the Law Society and the National Council for Civil Liberties are all agreed. They are bodies which are not always notorious for agreeing together on a point of principle. But this is an important matter; it is an important matter from the point of view of the police force itself. It is intended to inspire their confidence when complaints against them are being examined. Secondly, I think it will also increase the confidence of the public in a system of independent investigation, and I hope accordingly that we shall get an approving reception to this amendment from the noble Lord the Minister.
Lord Gifford: There is a crisis of confidence in the police complaints system as it now operates, and the central reason why people feel that there is no point in complaining about the police is because they do not feel there is any independence in the investigation. I welcome the fact that the Police Federation as well feel

977
that their interests would be better protected if there were a fully independent investigative system.
When one looks at the provisions of the Bill on which we are now about to embark—even with the copious amendments which are to be put forward by the Government—I fail to see anything that will really improve the present arrangements so far as complaints are concerned. The new Police Complaints Authority is not to investigate at all; it is merely, in a limited number of cases, to supervise the investigation of the complaint, and this will be done by police officers. What capacity will the Police Complaints Authority have to interfere in any significant way in that investigation? What does "supervising" mean? It means only that some kind of imprimatur is expected to be given to the investigation of complaints by a body which really will have no capacity for judging whether that investigation has got to the truth of the complaint, whether the truth is in favour of the police or whether the truth is in favour of the complainant.
I do not know whether the amendment of the noble Lord, Lord Plant, goes comprehensively enough to the root of the problem, and it may well be that if the principle were accepted a lot of other amendments would be needed to this part of the Bill, but I do hope that the Government will take on board the disquiet which is felt about the police complaints system and the feeling that their present proposals do not go anywhere near to meeting that disquiet.
Lord Elton: Making a somewhat belated debut in the proceedings today, I shall try to be as brief as I can. The police exercise a very sensitive power over the rest of us and it is necessary to the confidence of the public in them that they should see that the use of those powers is properly regulated and overseen. The police are, in a sense, the overseers of society and these amendments bring us straight up against one of the ancient conumdrums of civilised society: quis custodiet ipsos custodes?—who will oversee the overseers?
The noble Lord's amendments do not give a complete answer because they are themselves incomplete, but they would pave the way to an answer, and that answer would be different from the answer in the Bill. It would set up a system of investigation of complaints that was entirely independent of the police, such as the noble Lord, Lord Gifford, and others have espoused. I readily acknowledge the attractions of that solution.
It is essential that we establish a system in which the public and the police have confidence. What better reassurance could there be, one might ask, than taking the investigation of police conduct out of the hands of the police altogether and giving it to someone else? It is also of very great importance that the police themselves should have confidence in the system. What could be more reassuring than taking these procedures out of the hands of those who are already responsible for the very fabric and discipline of their service?
I accept the importance of public confidence and of the confidence of the service. I shall go further. I would say that that public confidence in a system for the investigation of complaints and for the correction of
978
abuses of police powers is indispensable to the main purpose of the Bill—the establishment of a proper confidence between the communities of this country and the police forces which work for, and among, them. We must have an organisation to check whether policemen are keeping the rules.
However, before we set out, let us consider for a moment what those rules actually comprise. They embrace the whole of the criminal law and they include every provision of the police discipline code. There will be four more codes of conduct once this Bill reaches the statute book. It really requires a very rare combination of skills and experience, does it not, to oversee such an enormous range of provisions and to investigate alleged breaches of them. It is more than a rare combination; it is unique; unique, that is to say, to the police service itself.
To oversee is to supervise, and that is exactly what the Police Complaints Authority is designed and equipped to do. So here we are, back at that conundrum. Who are best at this job? The answer is the overseers themselves—the police. Any other body could come only second best to the police, and only the best will do. A decline in the effectiveness of these investigations, as even noble Lords opposite would agree, would he a disaster which we could not afford. However, if we leave investigation of complaints against the police to the police themselves, we already know that it will not suffice to quieten public fears. Therefore, an independent body must be set up with powers to oversee the professional investigation of complaints by the police, and with powers to intervene, to criticise and to report. That is why the Bill sets up the Police Complaints Authority. It will have a crucial role and I am very glad indeed that Sir Cecil Clothier has agreed to become its first chairman. Sir Cecil's record, and the status of his present office, speak for themselves. Indeed, the Home Office itself has on all too many occasions been the target of trenchant criticisms from Sir Cecil in his current post. He is due to retire as Ombudsman at the end of this year and the loss to the Parliamentary Commission's Office will be very much the gain of the authority.
Sir Cecil is being appointed to a body capable of great effect. The powers being proposed for the new authority are considerable. It will be able to approve or disapprove the choice of the investigating officer in each case, and it will stay close to the investigation throughout its course. It will wish to know how it is intended to conduct the investigation and what has been achieved at each stage. It will, where necessary, be able to order a change of direction, or a more thorough examination of points already considered.
At the end of the day it will be required to state to the complainant whether or not the investigation has been carried out to its satisfaction. I hope that the decisions of noble Lords opposite will have some relation to what I am saying to them, but it is not certain to me that they will be aware of what they are until tomorrow morning. That requirement will be a very powerful tool in ensuring that investigations are properly conducted and in reassuring the public to that effect.
The Police Complaints Authority will, I believe, come to be seen both by the public and by the police

979
as an impartial and objective organisation, with no axe to grind; and a certificate issued by the authority at the end of an investigation to the effect that it was carried out fairly and properly will be a document of real value and reassurance to all concerned.
Those who do not want to follow that path have not established what is the organisation which can assemble the wide range of experience and skills that exist in the police for doing the work that they have to do. I cannot advise your Lordships to accept the amendment.
9.55 p.m.
Lord Renton: Although for various reasons I am strongly in favour of the attitudes of the Police Federation and have been glad to support the noble Lord, Lord Plant, in several of the amendments that he has put forward, I find it rather difficult to accept these two amendments, mainly because I do not think that they are really necessary to achieve the laudable objects that he has in mind. I say that mainly for the reason given by my noble friend Lord Elton.
As to Amendment No. 163, I feel bound to point out that it is unthinkable that the authority would not be following the administrative procedure which is envisaged in the amendment. I think that there should be some limit to the extent to which we write into a statute matters which are purely matters of administrative procedure and are unlikely to have penal or judicial effects. On this occasion, at any rate, it is with great regret that I feel bound to say that I do not quite go along with the noble Lord, Lord Plant.
Lord Plant: I greatly regret that the noble Lord, Lord Renton, cannot go along with me because he feels that there may be some lack of skill in the drafting of the amendments. All I can say is that I have been advised by eminent barristers that these two amendments are acceptable.
The noble Lord, Lord Elton, said that some of what was said was attractive to him, but at the end of his speech he was contemplating disaster. The noble and learned Lord, Lord Scarman, said exactly what I am saying in his report on the Brixton riots. I greatly regret that I cannot have his active support at the moment.
I have the greatest possible confidence in Sir Cecil Clothier. He was an eminent member of my commission on human rights in Northern Ireland for a short time. I know what a wonderful job he will do. I am sure that everyone will have complete confidence in him.
Lord Elton: I am so sorry. The noble Lord mentioned Northern Ireland, and I recall that he has twice asked me whether the provision will extend to Northern Ireland. Through forgetfulness rather than discourtesy, I did not reply. The answer is, no; it applies to England and Wales.
Lord Plant: I thank the Minister. That is helpful in one way, but not in another. However, I feel that this is such an important issue for the police that I ought to divide the House on it.
9.59 p.m.
On Question, Whether the said amendment (No. 161) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 41.

DIVISION NO. 3

CONTENTS

Airedale, L.

McIntosh of Haringey, L.

Attlee, E.

Mishcon, L.

Birk, B.

Mountevans, L.

Brockway, L.

Nicol, B.

David, B. [Teller.]

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Plant, L. [Teller.]

Elwyn-Jones, L.

Ponsonby of Shulbrede, L.

Elystan-Morgan, L.

Raglan, L.

Ennals, L.

Rochester, L.

Ewart-Biggs, B.

Stone, L.

Foot, L.

Taylor of Gryfe, L.

Gifford, L.

Tordoff, L.

Graham of Edmonton, L.

Underhill, L.

Hanworth, V.

White, B.

Hatch of Lusby, L.

Wilson of Langside, L.

Hooson, L.

Winchilsea and Nottingham, E.

Kilmarnock, L.

McCarthy, L.

NOT-CONTENTS

Auckland, L.

Ingrow, L.

Avon, E.

Kaberry of Adel, L.

Bathurst, E.

Kinnaird, L.

Broxbourne, L.

Kinnoull, E.

Caithness, E.

Lindsey and Abingdon, E.

Carnock, L.

Long, V. [Teller.]

Cathcart, E.

Lucas of Chilworth, L.

Chelmer, L.

Macleod of Borve, B.

Cockfield, L.

Mottistone, L.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Drumalbyn, L.

Peyton of Yeovil, L.

Eccles, V.

Polwarth, L.

Elton, L.

Renton, L.

Ferrers, E.

Shannon, E.

Ferrier, L.

Skelmersdale, L.

Glenarthur, L.

Stanley of Alderley, L.

Greenway, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Trumpington, B.

Vaux of Harrowden, L.

Hornsby-Smith, B.

Vickers, B.

Inglewood, L.

Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.7 p.m.
Lord Elton Lord Elton moved Amendment No. 161A:
Page 69, line 28, leave out ("of allegations against") and insert ("under this Part of this Act relating to the conduct of").
The noble Lord said: This is a drafting change consequential on a significant shift in the way that Part IX of the Bill is constructed. As it foreshadows many of the later Government amendments to this part, I shall explain briefly the purpose and significance of the changes.
The purpose of Clause 82 of the Bill is to enable the Police Complaints Authority, at the request of the chief constable, to supervise the investigation of cases which are not formally complaints against the police. For this purpose, it refers to "allegation". But the effect of this is that matters may be passed to the authority only if something has actually been alleged against a police officer. Since the purpose of the

981
provision is to reassure the public that a matter of public concern is being investigated under independent supervision, it is clearly important that this supervision can begin at the earliest stage. Accordingly, the amendment which I shall move to Clause 82—that is, Amendment No. 163AM—provides that any matter may be referred to the Police Complaints Authority which appears to indicate that a police officer may have committed a criminal or disciplinary offence. An allegation will no longer be necessary. This change will significantly extend and improve the authority's area of operation. To achieve it, the term "allegations", used in Clause 78 and elsewhere in this Bill, must be changed.
What the Police Complaints Authority is concerned with is investigations into the conduct of police officers, and related disciplinary charges. Amendment No. 161B provides for the first time a proper definition of complaint, and that definition is in terms of conduct. Thus the language of much of this part of the Bill has shifted from "complaint" and "allegation" to "conduct". In addition, since "complaint" is adequately defined at the start, it has proved possible to do away with the term "Section 79 complaint". Your Lordships will see a number of amendments standing in my name which will do just that.
I think that the change will improve the Bill and make it easier to understand. There are a number of minor amendments consequential on this one. I shall refer to them as we reach them as being consequential upon the loss of the concept of "allegations". That will, I think, be more helpful than giving a little lecture each time or reciting a number of which I think your Lordships will have lost the significance by the time we reach it. I beg to move.
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Lord Elton Lord Elton moved Amendment No. 161B:
After Clause 78, insert the following new Clause:
("Preliminary.
(1) Where a complaint is submitted to the chief officer of police for a poice area, it shall be his duty to take any steps that appear to him to be desirable for the purpose of obtaining or preserving evidence relating to the conduct complained of.
(2) After performing the duties imposed on him by subsection
(1) above the chief officer shall determine whether he is the appropriate authority in relation to the officer against whom the complaint was made.
(3) If he determines that he is not the appropriate authority, it shall be his duty—

(a) to send the complaint or, if it was made orally, particulars of it, to the appropriate authority; and

(b) to give notice that he has done so to the person by or on whose behalf the complaint was made.

(4) In this Part of this Act—
"complaint" means any complaint about the conduct of a police officer which is submitted—

(a) by a member of the public; or

(b) on behalf of a member of the public and with his written consent;

"the appropriate authority" means—

(a) in relation to an officer of the metropolitan police, the Commissioner of Police of the Metropolis; and—

(b) in relation to an officer of any other police force—

(i) if he is a senior officer, the police authority for the force's area; and

(ii) if he is not a senior officer, the chief officer of the force;

"senior officer" means an officer holding a rank above the rank of chief superintendent.
(5) Nothing in this Part of this Act has effect in relation to a complaint in so far as it relates to the direction or control of a police force by the chief officer or the person performing the functions of the chief officer.
(6) If any conduct to which a complaint wholly or partly relates is or has been the subject of criminal or disciplinary proceedings, nothing in this Part of this Act has effect in relation to the complaint in so far as it relates to that conduct.").
The noble Lord said: The purpose of this new clause is to replace the present Clause 79. It is intended to improve on it in several significant respects. The effect of subsections (1) and (2) is that the duty on a police officer to record a complaint is distinguished from that of taking necessary preliminary investigative steps. By subsection (1) the chief officer receiving a complaint is required to take such steps, and only then, by subsection (2), to consider whether the complaint actually falls to him to investigate.
Subsection (3) provides that where he determines that the complaint does not fall to him—that is, where it is wrongly directed to him—he has two further duties placed on him: first, to ensure that the complaint gets to the right destination; and, secondly, to inform the complainant that he has sent it there.
Subsection (4), for the first time, brings the concept of conduct into the definition of "complaint". I referred to this on the last amendment. Subsection (4) also introduces the concept of the "appropriate authority"—the chief officer or police authority with responsibility for handling the complaint in question. This is the source of other amendments tabled to later clauses.
Subsection (5) excludes from the system complaints about the way in which the chief officer or acting chief officer exercises his functions of direction and control. Where the complaint is that a chief officer acted from a corrupt or unlawful motive, then this, quite properly, will come within the complaints system, but where it is a pure direction and control matter the proper method of dealing with it is for the police authority to call for a report from the chief officer, under Section 12(2) of the Police Act 1964, rather than to mount a complaint investigation.
Subsection (6) repeats, in a refined form, the existing exclusion from the system of complaints alleging conduct which is already, or has been, the subject of formal criminal or disciplinary proceedings. Clearly, if the matter has already been investigated and has resulted in a criminal or disciplinary charge, there will be no advantage in recording and investigating it as a formal complaint. That completes the changes. I beg to move.
On Question, amendment agreed to.
Schedule 4 [The Police Complaints Authority]:
[Amendment No. 162 not moved.]
Lord Elton Lord Elton moved Amendment No. 162A:
Page 107, line 19, after ("affected") insert ("(a)").
The noble Lord said: These amendments make good a gap in paragraph 11 of Schedule 4. I hesitate, but did not the noble Earl put the Question, That the clause stand part of the Bill?, so quickly that I did not notice?
The Deputy Chairman of Committees (Earl Cathcart): I have not yet got rid of Schedule 4.
Lord Elton: Very good; I stand corrected.
This paragraph protects the validity of the authority's proceedings where there is a defect in the appointment of a member, or a vacancy among the members, or in the office of deputy chairman; but, as drafted, it does not refer to any defect or vacancy in the office of the chairman. This amendment makes good that omission. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 162B:
Page 107, line 19, leave out ("of a") and insert—

(i) of the chairman; or

(ii) of any other").

The noble Lord said: In moving this amendment I give notice that I shall move Amendments Nos. 162C and 162D en bloc, as consequential to No. 162A. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 162C and 162D:
Page 107, line 19, after ("or") insert ("(b)");
Page 107, line 20, leave out ("among the members or") and insert—

"(i) in the office of chairman;

(ii) among the other members; or

(iii) ").

On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 162E:
Page 108, line 14, at end insert—
("Property, rights and liabilities
15.—(1) On the day on which section 78 above comes into operation all property, rights and liabilities which immediately before that day were property, rights and liabilities of the Police Complaints Board shall vest in the Authority by virtue of this paragraph and without further assurance.
(2) Section 12 of the Finance Act 1895 (which requires Acts to be stamped as conveyances on sale in certain cases) shall not apply to any transfer of property effected by this paragraph.
Proceedings
16. Proceedings in any court to which the Police Complaints Board is a party and which are pending immediately before the date on which section 78 above comes into operation may be continued on and after that day by the Authority.
Payments to former members of Police Complaints Board
17. Where a person—

(a) ceases to be a member of the Police Complaints Board by reason of its abolition; and

(b) does not become a member of the Authority.

the Secretary of State may, with the consent of the Treasury, make to the person a payment of such amount as, with the consent of the Treasury, the Secretary of State may determine.
General
18. Paragraphs 14 to 17 above are without prejudice to the generality of section 114(4) above.").
The noble Lord said: This amendment adds to Schedule 4 four paragraphs whose effect is to vest in the Police Complaints Authority all the property, rights, liabilities and obligations, including pending court proceedings, of the Police Complaints Board, on the day when the authority comes into being, and to
984
enable payments to be made to persons who, because of its abolition, are no longer members of the board and who do not become members of the authority. These are transitional matters. I beg to move.
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
Clause 79 [Complaints against police officers]:
The Deputy Chairman of Committees: The next amendment is Amendment No. 163.
Lord Plant: This amendment has already been dealt with.
[Amendment No. 163 not moved.]
The Deputy Chairman of Committees: The Question is, Whether the existing Clause 79 shall stand part of the Bill?
Lord Elton: This clause has been replaced by a previous amendment and therefore I hope that your Lordships will not allow it to stand part of the Bill.
On Question, Clause 79, disagreed to.
Clause 80 (Investigation of complaints]:
Lord Elton Lord Elton moved Amendment No. 163ZA:
Page 70, line 9, leave out from beginning to ("is") in line 11 and insert—
("(1) If a chief officer determines that he is the appropriate authority in relation to an officer, about whose conduct a complaint has been made and who is not a senior officer, he shall record it.
(1A) After doing so he shall consider whether the complaint").
The noble Lord said: I beg to move Amendment No. 163ZA and I should like also to speak to Amendments Nos. 163AC, 163AH, 163AK, 163AS, 163BA, 163BB and 163BC.
Amendment No. 163AC: Clause 81, page 71, line 8, leave out ("A chief officer of police—") and insert ("The appropriate authority—").
Amendment No. 163AH: Page 71, line 19, leave out from beginning to ("to") in line 22 and insert—
("(2) The Authority may require the submission to them for consideration of any complaint not referred to them by the appropriate authority's duty").
Amendment No. 163AK: Page 71, line 24, leave out ("chief officer's") and insert ("appropriate authority's").
Amendment No. 163AS: Clause 83, page 72, line 18, leave out ("chief officer of police") and insert ("appropriate authority").
Amendment No. 163BA: Page 73, line 15, leave out ("chief officer") and insert ("appropriate authority").
Amendment No. 163BB: Page 73, line 16, leave out ("chief officer") and insert ("appropriate authority").
Amendment No. 163BC: Page 73, line 19, leave out ("chief officer") and insert ("appropriate authority").
These amendments are all consequential upon the introduction of the concept of the "appropriate authority". I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163ZB:
Page 70, line 38, leave out from first ("made") to end of line 39.
The noble Lord said: This amendment deletes some words from subsection (7)(ii) of Clause 80 because they

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are superfluous. I do not think that I can condense that reason further. I beg to move.
On Question, amendment agreed to.
10.17 p.m.
Lord Hooson Lord Hooson moved Amendment No. 163A:
Page 70, line 42, at end insert—
("() Where—

(a) a report submitted under subsection (8) above relates to a complaint arising out of an investigation into the commission of an offence with which a person has been charged;

(b) at the time the report is submitted that person has not vet been tried on that charge, or has been convicted on it; and

(c) the report contains any material which may be relevant to the guilt or innocence of that person on that charge;

the chief officer shall supply a copy of such material to that person and to the solicitor acting for him or who acted for him on his defence to the charge.").
The noble Lord said: I have undertaken to move this amendment on behalf of my noble friends, and with it I should like to speak also to Amendment No. 163B:
Amendment No. 163B: Page 73, line 2, at end insert—
("() Where—

(a) a report submitted under subsection (8) above relates to a complaint arising out of an investigation into the commission of an offence with which a person has been charged;

(b) at the time the report is submitted that person has not yet been tried on that charge, or has been convicted on it; and

(c) the report contains any material which may be relevant to the guilt or innocence of that person on that charge;

the Authority shall supply a copy of such material to that person and to the solicitor acting for him or who acted for him on his defence to the charge.").
Both amendments are designed to fill the notorious "hole in the middle", which was described in a letter from the Chairman of the Executive Committee of Justice to the Clerk to the Home Affairs Committee of the House of Commons on 3rd February 1982. Perhaps I can illustrate the point that is at issue here quite simply.
An inspector, whom we call "A", is investigating a criminal offence. He investigates the matter and he arrests "B", who is charged with that offence. During the course of the investigation something happens which results in "B" making a complaint to the police authority about the behaviour of "A". Thereafter there are two inquiries: there is the inquiry in relation to the criminal offence conducted against "B" through the normal procedures of the courts, and there is the inquiry that will be subsequently conducted into the conduct of "A", the officer inquiring. Let us assume that the matter has gone to the courts against "B" and he has been convicted. Thereafter, there is the inquiry into "A's" conduct: it has been suggested that he has done something improper during the course of the investigation.
Let us assume that it is not disclosed that he has committed a criminal offence, and the investigating officer in the first instance or the police complaints authority in the second instance have, as it were, decided not to proceed any further. What has been disclosed is not revealed at all to "B's" solicitor, but it may well be that the investigation into the conduct of the police officer has unearthed evidence which would, had it been disclosed, have shown that "B" was not guilty of the offence. In other words, when this matter
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comes before the Home Office, they rely on the tradition that any matters revealed as a result of investigation into police misconduct are never disclosed. What we suggest is not that the report should be disclosed but that any material evidence which has a relevant bearing on the question of whether "B" ought to have been convicted should be disclosed.
I have taken a little time, even at this late hour, because clearly this is a very important matter of principle and, despite the lateness of the hour, I do not think that we should allow a matter of this importance to be passed over quite simply. This is a matter of great importance. I am sorry that I have had to resort to this means of explaining it, but it seems to me to be quite clear that a matter of principle is involved here. I cannot believe that the Home Office is right in sheltering behind the tradition that has been established over the years, that matters which are revealed by an investigation of this kind are never disclosed. I think that if material evidence is found that affects the man who has been arrested and the question of his guilt or innocence, that evidence should be disclosed.
Let me remind your Lordships that the Home Affairs Committee of the other place, following the receipt of the letter and an investigation of the matter, said in its Fourth Report for the Session 1981–82 that where a complainant is the subject of prosecution or has been convicted:
"all statements taken during the course of the investigation [of his complaint], appropriately edited on grounds of security, should be forwarded to the complainant's legal adviser".
That appeared in House of Commons Paper 98–1 at paragraph 16, Recommendation 3. I do not suggest that in this Bill we should go as far as that. I do not think that every statement should be disclosed. All I suggest is that those matters that are relevant to the question of guilt or innocence should be disclosed. I beg to move.
Lord Elton: If I have managed to follow the noble Lord's argument, I think that I have the answer: if I have not, he will tell me. The effect of these amendments would be to require that where the subject matter of a complaint is also the subject of criminal proceedings, and where the question of guilt in those proceedings has not yet been settled, or where a person has been convicted, then any material in the report of the investigation into the complaint which is relevant to the person's guilt or innocence should be supplied to the defence.
The first point to make about this amendment is that it is most unusual for a complaint to be investigated while related criminal proceedings are in progress. The existing guidance to chief officers suggests that, save in exceptional circumstances, where a complaint and allegations involved in it are directly or closely associated with criminal proceedings which are pending, then the investigation of the complaint should be deferred. This is because the criminal proceedings take priority over the complaint and their outcome may well overtake the complaint. I think that the complications which would arise were the complaint investigation to go ahead in advance of the criminal trial will be clear to your Lordships, and I

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shall not dwell on them. But that is not to say that there might not be exceptional circumstances in which the investigation of the complaint goes ahead in advance of associated criminal proceedings. This could, of course, only be done where the complainant fully appreciates the possible prejudice which could result and might happen, for example, where the complaint appears so cogent that it appears doubtful whether the criminal proceedings should be continued. I shall have to refer to that again.
The context in which these amendments must be seen is the law on public interest privilege. The Court of Appeal, in the case of Neilson v. Laugharne, held that statements taken in the course of an investigation into a complaint against the police under Section 49 of the Police Act 1964 are subject to public interest immunity and could not be disclosed. Such statements are immune from disclosure not merely on the basis of their content, but as a class. The purpose of this immunity is to free those who make statements in the course of a complaints investigation from the fear that at some future time what they have said may be used against them. It might, as a result, be argued that the present amendments are necessary in case significant evidence is uncovered in the course of a complaint investigation and is accordingly not disclosed, with the result that there is a miscarriage of justice. But the Government do not believe that that would happen. In the first place, the majority of cases would not be investigated until the case had been disposed of by the courts. In the exceptional case where the investigation does precede the criminal trial, the normal obligation on the prosecution to disclose information to the defendant should suffice. As we understand the position, where the prosecution has taken a statement from the person who they know can give material evidence but decide not to call that person as a witness, they are under a duty to make that person a witness for the defence. It is our understanding that while disclosure of such material is generally prohibited on public policy grounds, the courts would not take that prohibition as applying where the disclosure would serve to establish innocence in criminal proceedings and, indeed, prosecuting authorities would not allow a person to be prejudiced by the need to protect material from disclosure in such circumstances. As Lord Justice Oliver stated in Neilson:
"Where disclosure is prohibited on public policy grounds, then that prohibition applies in all circumstances except to establish innocence in criminal proceedings."
The term "any material" is very broad. It is right that public interest immunity should not result in the possible conviction of an innocent person, but to express this as a duty to allow disclosure where the material was relevant to a person's guilt represents a somewhat awkwardly expressed version of the principle of pre-trial disclosure of the prosecution case. The debate has shown me that this is a complex matter, but I believe it will also have shown that the amendments are superfluous and might finish up by being confusing.
Lord Hooson: The noble Lord has provided not the answer but an answer to the debate. He has not dealt with the material point. I take the point that most investigations into police conduct occur after the trial
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of the person who is charged with the offence, but it is surely relevant to the question of appeals out of time. If there is evidence that a miscarriage of justice has taken place, surely the matter should be disclosed. I did not follow him on the point as to whether there is machinery by which anything revealed in a police investigation that is relevant, or which could be relevant, to an appeal out of time is given to the defence so that the point can be taken up later. There may be some procedure in the Home Office by which, when this kind of information is disclosed, they take an initiative, as they sometimes do, and bring the case before the appeal courts.
But if there is not, then surely there should be some kind of provision on the matter. I do not intend to press this to a Division, but it is important.
Lord Elton: I do not think that the question of the appeal being out of time affects what I have said. I take the point that we are looking not at the majority of cases but at the hole in the middle. I recall saying that, as Lord Justice Oliver stated in Neilson:
"Where disclosure is prohibited on public policy grounds, then that prohibition applies in all circumstances except to establish innocence in criminal proceedings".
I thought the noble Lord's anxiety was that the disclosure would not be allowed. As we understand it, and as this judgment bears out, it would be, in which case the noble Lord has what he wants to obtain.
Lord Donaldson of Kingsbridge: If I was accused of carrying cannabis and was sentenced, and if I had complained that a policeman had placed it on me and after I had been sentenced it was agreed by the complaints authority that he had, surely there would be an obligation for that information to be sent to my solicitor and for my complaint to be looked at again. It seems to me perfectly clear. I do not understand this.
Lord Elton: We are talking about two different things. I have been seeking to propose that where the evidence is available then it would not be prohibited because of the public interest considerations. What the noble Lord is saying is: how would anybody know?
Lord Donaldson of Kingsbridge: That is the point of the amendment.
Lord Elton: That is a different question.
Lord Donaldson of Kingsbridge: It is not. It is what the amendment is about.
Lord Elton: It would be quicker if I were to take this away and consider it, but perhaps I may leave it on the record that my anxiety is that if the noble Lord is saying that there should be a computer which will throw out at the touch of a button by the clerk of the court any evidence which has been gone through in a complaints system which may be relevant to that case, that is not what I thought the amendment was aimed at. I thought it was aimed at the fact that where the evidence was known to be in existence it should not be kept out of court. I will read the noble Lord, Lord Hooson, with even more interest and rapidity than he will read me tomorrow.
Lord Hooson: I wonder whether the noble Lord would deal with it in this way? Would he be good enough to write to my noble friends Lord Donaldson and Lord Hunt, whose amendment it really was originally, well before the Report stage, so that they can reconsider the position?
Lord Elton: I will even enclose a copy with my "get well" card to Lord Hutchinson of Lullington.
Amendment, by leave, withdrawn.
10.31 p.m.
Lord Elton Lord Elton moved Amendment No. 163AA:
Page 71, line 1, leave out ("section 79").
The noble Lord said: With this amendment, it may be for your Lordships' convenience and delight if I speak also to Amendments Nos. 163AD, 163AF, 163AG, 163AJ, 163AN, 163A0 and 163AP.
Amendment No. 163AD: Clause 81, page 71, line 10, leave out ("section 79").
Amendment No. 163AF: Page 71, line 14, leave out ("section 79").
Amendment No. 163AG: Page 71, line 17, leave out from ("any") to second ("to") in line 18 and insert ("complaint which is not required to be referred").
Amendment No. 163AJ: Page 71, line 23, leave out ("section 79"). Amendment No. 163AN: Clause 83, page 71, line 38, leave out ("section 79").
Amendment No. 163AO: Page 72, line 1, leave out ("section 79").
Amendment No. 163AP: Page 72, line 5, leave out ("section 79").
As I said in connection with the new clause to replace Clause 79, it has been proved possible to alter the language and approach of this part of the Bill to do away with the concept of the Clause 79 complaint. This is what these amendments will do. I beg to move.
On Question, amendment agreed to.
Clause 80, as amended, agreed to.
Lord Elton Lord Elton moved Amendment No. 163AB:
After Clause 80, insert the following new clause:
("Investigation of complaints against senior officers.
.—(1) Where a complaint about the conduct of a senior officer—

(a) is submitted to the appropriate authority; or

(b) is sent to the appropriate authority under section [Preliminary] (3) above,

it shall be the appropriate authority's duty to record it and, subject to subsection (2) below, to investigate it.
(2) The appropriate authority may deal with the complaint according to the appropriate authority's discretion, if satisfied that the conduct complained of, even if proved, would not justify a criminal or disciplinary charge.
(3) In any other case the appropriate authority shall appoint an officer from the appropriate authority's force or from some other force to investigate the complaint.
(4) A chief officer shall provide an officer to be appointed, if a request is made to him for one to be appointed under subsection (3) above.
(5) No officer may be appointed unless he is of at least the rank of the officer against whom the complaint is made.
(6) Unless an investigation under this section is supervised by the Authority under section 83 below, the investigating officer shall submit his report on it to the appropriate authority.").
The noble Lord said: This amendment will take a fraction longer. This new clause deals with complaints against senior officers, those above chief superintendent rank. It is intended to replace the present Clause 84 and I am also, therefore, speaking to the Motion whether that clause shall stand part of the Bill.
That clause operates by substituting "police authority" for "chief officer" in the relevant earlier
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provisions and, accordingly, was placed after them. This clause, on the other hand, makes substantive provision for the recording and investigation of complaints against senior officers. The clause is again based on the concept of the "appropriate authority" which was established in earlier amendments. For complaints against senior officers the appropriate authority in the Metropolitan Police will be the commissioner and in any other force it will be the police authority.
Subsection (1) provides that it is the duty of the appropriate authority to record and investigate a complaint against one of its senior officers. The duty to investigate, however, is subject to a restriction in subsection (2). The effect of this subsection is to modify the system of informal resolution of minor complaints as it affects senior officers.
Under Clause 80 a complaint is not suitable for informal resolution unless the complainant gives his consent and the chief officer is satisfied that the conduct complained of, even if proved, would not justify a criminal or disciplinary charge. The purpose of requiring the complainant's consent is to ensure that he has a veto over the complaint being dealt with informally, since in such cases there will be no independent outside check; and I know how much importance your Lordships attach to that.
For complaints against senior officers there will, except in formal terms in the Metropolitan Police, be such an outside body since the police authority will automatically be involved. In our view it is both unnecessary and undesirable to give the complainant a right of veto on such cases being handled informally, particularly because any formal investigation will have to be conducted by an officer of assistant chief constable rank or above. The effect of subsection (2), therefore, is to give this discretion to the appropriate authority.
The remaining subsections deal with the process of investigation of complaints against senior officers. Under subsection (3) the authority is required to appoint an officer either from within or from outside the force to investigate the complaint. Under subsection (4) the chief officer requested to provide an officer for this purpose is required to do so. Under subsection (5) the investigating officer is required to be of at least the rank of the officer against whom the complaint is made. This is a condition which also applies to complaints against junior officers, and under subsection (6) the investigating officer is required to submit his report to the appropriate authority unless the investigation has been supervised by the Police Complaints Authority. This clause places the arrangements for dealing with complaints against senior officers on a simpler and more logical footing. I beg to move.
On Question, amendment agreed to.
Clause 81 [References of complaints to Authority]:
Lord Elton Lord Elton moved Amendment No. 163AC:
[Printed earlier: col. 984.]
The noble Lord said: I spoke to this with Amendment No. 163ZA. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AD:
[Printed earlier: col. 989.]
The noble Lord said: I spoke to this with Amendment No. 163AA. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AE:
Page 71, line 11, leave out ("of a member of the police force for his area") and insert ("complained or).
The noble Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 163AF and 163AG:
[Printed earlier: col. 989.]
The noble Lord said: I spoke to both Amendment No. 163AF and 163AG with Amendment No. 163AA. I beg leave to move the two amendments en bloc.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 163AH:
[Printed earlier: col. 984.]
The noble Lord said: This amendment was spoken to with Amendment No. 163ZA. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AI:
Page 71, line 22, at end insert ("not later than the end of a period specified in regulations made by the Secretary of State.").
The noble Lord said: I beg leave to speak also to Amendment No. 163AL.
Amendment No. 163AL: Page 71, line 26, leave out ("regulations made by the Secretary of State") and insert ("such regulations").
These amendments are intended to fill a slight gap in the powers of the Police Complaints Authority. Under Clause 81(3), the Secretary of State is by regulations to place a time limit on reference by the "appropriate authority" to the Police Complaints Authority of those complaints which it is required to refer. There is at present no such time limit provision on the reference of cases at the request of the Police Complaints Authority. The first of these amendments makes good the gap and the other is consequential. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AJ:
[Printed earlier: col. 989.]
The noble Lord said: I spoke to this with Amendment No. 163AA. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AK:
[Printed earlier: col. 984.]
The noble Lord said: I spoke to this with Amendment No. 163ZA. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AL.
[Printed earlier: col. 991.]
The noble Lord said: I spoke to this with Amendment No. 163AI. I beg to move.
On Question, amendment agreed to.
Clause 81, as amended, agreed to.
Clause 82 [References of other allegations to Authority]:
Lord Elton Lord Elton moved Amendment No. 163AM:
Page 71, line 30, leave out from beginning to ("by") in line 34 and insert—
("The appropriate authority may refer to the Authority any matter which—

(a) appears to the appropriate authority to indicate that an officer may have committed a criminal offence or an offence against discipline: and

(b) is not the subject of a complaint,

if it appears to the appropriate authority that it ought to be referred").
The noble Lord said: This amendment is consequential upon the loss of the concept of allegations to which I spoke in moving Amendment No. 161A. I beg to move.
On Question, amendment agreed to.
Clause 82, as amended, agreed to.
Clause 83 [Supervision of investigations by Authority]:
Lord Elton Lord Elton moved Amendments Nos. 163AN, 163AO and 163AP:
[Printed earlier: col. 989.]
The noble Lord said: I beg to move Amendments Nos. 163AN to No. 163AP inclusive. All are consequential. I spoke to them on Amendment No. 163AA. I beg to move.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 163AQ:
Page 72, line 8, leave out ("allegation") and insert ("matter").
The noble Lord said: This is consequential upon the loss of the allegation principle. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AR:
Page 72, line 12, leave out subsection (3).
The noble Lord said: As your Lordships will know, Clause 82 enables the Police Complaints Authority to supervise the investigation of matters which are not strictly speaking complaints. The effect of Clause 83(3) was to enable the Authority to exercise it disciplinary powers in any such non-complaint case whose investigation it had supervised. Due to the loss of the concept of an "allegation", and the change in language from "complaint" to "conduct", this provision is no longer necessary: the Police Complaints Authority will automatically exercise its disciplinary oversight whenever it has supervised the investigation in question, whether or not it was a complaint. Accordingly, this subsection is now redundant and this amendment removes it.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AS:
[Printed earlier: col. 984.]
The noble Lord said: I spoke to this amendment with Amendment No. 163ZA. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AT:
Page 72, line 20, leave out subsection (5).
The noble Lord said: Clause 83(5) deals with the delegation of supervision casework by the chairman or deputy chairmen of the Police Complaints Authority to members of it. But the draftsman has advised us that the matter is already adequately covered by paragraph 10 of Schedule 4. This provision is a needless complication, and I beg to move its removal.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AU:
Page 72, line 25, leave out ("investigate a complaint or other allegation the investigation or) and insert ("conduct and investigation")
The noble Lord said: This amendment is consequential on the loss of the allegation principle. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AV:
Page 72, line 27, at end insert—
("(6A) If the authority impose a requirement under sub-section (6) above, it shall be the duty of the appropirate authority—

(a) to submit to the Authority the name of the officer proposed for appointment; and

(b) not to make the appointment unless the Authority give notice that they approve of it.").

The noble Lord said: I should like also to speak to Amendments Nos. 163AW and 163AY:
Amendment No. 163AW: Page 72, line 31, leave out ("the conduct of").
Amendment No. 163AY: Page 72, line 33, at end insert ("and it shall be the duty of a police officer to comply with any requirement imposed on him by virtue of the regulations.").
These amendments are designed to clarify the powers to be given to the Police Complaints Authority to supervise complaint investigations. Their main effect is to make it clear that where the authority imposes a requirement as to the choice of investigating officer or as to any other matter in relation to the investigation, there is clear duty of compliance on the chief officer or other police officer to whom this requirement applies. This is something on which I rested my case earlier, if your Lordships recall, in the debate on which we had a Division.
In addition, the first of these three amendments provides the authority's powers to approve the appointment of a particular investigating officer. The second of the amendments, by deleting reference to the conduct of the investigation in describing the authority's power to impose requirements, makes it clear that such requirements made by regulations relate also to the resources given to a particular investigation, and not simply to the manner in which it is conducted. The Government's intention is, however, that the power to be given to the authority to impose requirements as to resources shall in the
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regulations be subject to a duty on its part to consult fully with the chief officer. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AW:
[Printed above.]
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AY:
[Printed above.]
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AZ:
Page 72, line 35, after ("officer") insert (" (a)")
The noble Lord said: I wish to speak also to Amendment No. 163AZA:
Amendment No. 163AZA: Page 72, line 36, leave out from ("and") to end of page 73 line 2 and insert—
("(b) shall send a copy to the appropriate authority.
(8A) After considering a report submitted to them under subsection (8) above the Authority shall submit an appropriate statement to the appropriate authority.
(8B) If it is practicable to do so, the Authority, when submitting the appropriate statement under subsection (8A) above, shall send a copy to the officer whose conduct has been investigated.
(8C) If—

(a) the investigation related to a complaint; and

(b) it is practicable to do so.

the Authority shall also send a copy of the the appropriate statement to the person by or on behalf of whom the complaint was made.")
As drafted, the Bill places an absolute duty on the Police Complaints Authority to send a copy of its "appropriate statement" on an investigation which it has supervised to the complainant and to the police officer concerned. To do so, however, will not always be practicable: complainants may move away and not be traceable; the investigation may fail to identify a particular officer; indeed, investigation might reveal that the person concerned was not a police officer at all. In such circumstances, it may be impracticable for the authority to comply with the requirement. In addition, where the authority has supervised the investigation of a non-complaint matter, there will be no complainant at all.
Accordingly, the effect of these amendments is that the obligation on the authority to supply a copy of its statement to both the officer complained of and the complainant apply only where it is practicable to do so. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163AZA:
[Printed above.]
On Question, amendment agreed to.
[Amendment No. 163B not moved.]
Lord Elton Lord Elton moved Amendments Nos. 163BA, 163BB and 163BC:
[Printed earlier: col. 984.]
The noble Lord said: I spoke to Amendments Nos. 163BA, 163BB and 163BC with Amendment No. 163ZA. I beg to move these three amendments.
On Question, amendments agreed to.
Clause 83, as amended, agreed to.
Clause 84 [Senior officers]:
Clause negatived.
Lord Elton Lord Elton moved Amendment No. 163BD:
After Clause 84, insert the following new Clause:
("Steps to he taken after investigation—general.
.—(1) It shall be the duty of the appropriate authority, on receiving—

(a) a report concerning the conduct of a senior officer which is submitted to them under section [Investigation of complaints against senior officers] (6) above; or

(b) a copy of a report concerning the conduct of a senior officer which is sent to them under section 83(8) above,

to send a copy of the report to the Director of Public Prosecutions unless the report satisfies them that no criminal offence has been committed.
(2) Nothing in the following provisions of this section or in sections [Steps to he taken where accused has admitted charges] to 88 below has effect in relation to senior officers.
(3) It shall be the duty of a chief officer of police, on receiving—

(a) a report concerning the conduct of an officer who is not a senior officer which is submitted to him under section 80(8) above; or

(b) a copy of a report concerning the conduct of such an officer which is sent to him under section 83(8) above—

(i) to determine whether the report indicates that a criminal offence may have been committed by a member of the police force for his area: and

(ii) if he determines that it does, to determine whether the offence indicated is such that the officer ought to be charged with it.

(4) If the chief officer determines—

(a) that the report does indicate that a criminal offence may have been committed by a member of the police force for his area; and

(b) that the offence indicated is such that the officer ought to be charged with it,

he shall send a copy of the report to the Director of Public Prosecutions.
(5) Subject to section [Steps to be taken where accused has admitted charges] (1) below, after the Director has dealt with the question of criminal proceedings, the chief officer shall send the Authority a memorandum, signed by him and stating whether he has preferred disciplinary charges in respect of the conduct which was the subject of the investigation and, if not, his reasons for not doing so.
(6) If the chief officer considers—

(a) that the report does indicate that a criminal offence may have been committed by a member of the police force for his area: and

(b) that the offence indicated is not such that the officer ought to be charged with it,

he shall sent the Authority a memorandum to that effect, signed by him and stating whether he proposes to prefer disciplinary charges in respect of the conduct which was the subject of the investigation and, if not, his reasons for not proposing to do so.
(7) Subject to section [Steps to be taken where accused has admitted charges] (1) below, if the chief officer considers that the report does not indicate that a criminal offence may have been committed by a member of the police force for his area, he shall send the Authority a memorandum to that effect, signed by him and stating whether he has preferred disciplinary charges in respect of the conduct which was the subject of the investigation and, if not, his reasons for not doing so.
(8) A memorandum under this section—

(a) shall give particulars—

(i) of any disciplinary charges which a chief officer has preferred or proposes to prefer in respect of the conduct which was the subject of the investigation; and

(ii) of any exceptional circumstances affecting the case by reason of which he considers that section 88 below should apply to the hearing; and

(b) shall state his opinion of the complaint or other matter to which it relates.

(9) Where the investigation—

(a) related to conduct which was the subject of a complaint; and

996

(b) was not supervised by the Authority, the chief officer shall send the Authority—

(i) a copy of the complaint or of the record of the complaint; and

(ii) a copy of the report of the investigation, at the same time as he sends them the memorandum.

(10) Subject to section 87(4A) below—

(a) if a chief officer's memorandum states that he proposes to prefer disciplinary charges, it shall be his duty to prefer and proceed with them; and

(b) if such a memorandum states that he has preferred such charges, it shall be his duty to proceed with them.").

The noble Lord said: In this case I hope to speak also to Amendments Nos. 163BE, I 66B, 166F, 166L, 164, 165 and 166.
Amendment No. 163BE: After Clause 84, insert the following new Clause—
("Steps to be taken where accused has admitted charges.
(1) No memorandum need be sent to the Authority under section [Steps to be taken after investigation—general] if disciplinary charges have been preferred in respect of the conduct which was the subject of the investigation and the accused has admitted the charges and has not withdrawn his admission.
(2) In any such case the chief officer shall send to the Authority, after the conclusion of the disciplinary proceedings (including any appeal to the Secretary of State), particulars of the disciplinary charges preferred and of any punishment imposed.
(3) If—

(a) the charges related to conduct which was the subject of a complaint; and

(b) the investigation of the complaint was not supervised by the Authority,

the chief officer shall also send the Authority—

(i) a copy of the complaint or of the record of the complaint; and

(ii) a copy of the report of the investigation.")

Amendment No. 166B: Clause 87, page 75, line 38, leave out ("85") and insert ("[Steps to be taken after investigation—general]").
Amendment No. 166F: Clause 88, page 76, line 22, leave out ("85") and insert ("[Steps to be taken after investigation—general]").
Amendment No. 166L: Clause 93, page 80, line 40, leave out ("85") and insert ("[Steps to be taken after investigation—general]").
Amendment No. 164: Clause 85, page 74, leave out lines 9 to 12.
Amendment No. 165: Page 74, line 16, leave out from ("area") to end of line 18.
Amendment No. 166: Page 74, line 27, leave out subsections (4) and (5).
This will take a little longer. In moving Amendment No. 163BD, I have given the list of what I shall speak to and that shortens matters a bit. These new clauses replacing the present clause 85 are the result of a number of significant changes in relation to the steps which must be taken following receipt of a complaint investigation report. The intention in recasting Clause 85 and dividing it in two is to present these complicated matters with greater clarity and precision.
Although, as I say, the principal purpose of the clauses is to replace Clause 85, subsections (1) and (2) in fact replace Clause 84(2). This deals with the duty to pass complaints investigation reports concerning senior officers to the Director of Public Prosecutions. Other provisions concerning complaints against senior officers are of course dealt with in the new clause which your Lordships have already approved. Subsection (1) of the present new clause repeats the duty of the appropriate authority to send the complaint investigation report to the director unless the report satisfies them that no criminal offence has been committed. Subsection (2) simply provides that the existing provisions from the rest of this clause to the

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end of Clause 88 have no application to complaints against senior officers. This is because the Police Complaints Authority does not have a disciplinary role in relation to complaints against senior officers. It will, of course, exercise its supervisory role over the investigation of such complaints.
Subsections (3) to (5) replace subsections (1) to (3) of Clause 85—a significant change. It concerns the handling of investigation reports which show that a police officer may have committed a minor criminal offence. The scheme embodied in Clause 85 was criticised in another place on the basis that it implied that criminal matters could be dealt with by means of internal discipline. It was argued that this was unjust and put police officers in a worse position than other members of the public. After a great deal of careful thought and discussion, we decided that the answer is to make a clear separation between the stages of criminal and disciplinary consideration.
The provisions of the new clause do this by producing a new and different test for reference to the DPP. Instead of considering whether a matter is too serious to be dealt with by disciplinary means, chief officers will he required to consider whether an investigation report discloses a criminal offence with which the officer concerned ought to be charged. It will therefore only be where a decision has been taken that the officer ought not to be charged with a criminal offence that the chief officer will be free to consider the disciplinary aspects. This makes it clear that police officers in this situation must be dealt with as any other citizen. If any offence disclosed would, in the chief officer's view, merit prosecution, then he must send it to the DPP: he cannot deal with it by way of discipline.
The great advantage of this solution is that it preserves the purpose of the original Bill's scheme, which was to relieve the DPP of a mass of cases in respect of which, in practice, there was no real prospect of a prosecution being justified at all, while removing from police officers the possibility of their being dealt with by disciplinary means for matters which should be prosecuted in court. I hope the noble Lord, Lord Plant, will agree that this new approach has advantages over that which he is proposing in his amendments, which would in effect retain the present position under the 1964 Police Act.
Subsections (6) and (7) of the clause replace subsections (5) and (6) of Clause 85. They incorporate the new test which I have described for reference of reports to the DPP: they make no other significant change to it. Subsections (8) and (9) of the clause replace subsections (8) and (9) of Clause 85. Subsection (10) is new and is designed to remedy a defect in Clause 87. Clause 87(5) is intended to ensure that disciplinary charges in which the Police Complaints Authority has a legitimate interest may be withdrawn only with its permission. The drafting was defective in not including charges that have only been proposed, as well as charges that have been both proposed and preferred. Two further amendments to Clause 87 will make equivalent changes in respect of disciplinary charges specified in a recommendation or direction from the Police Complaints Authority.
The second of the new clauses replaces subsections (4) and (7) of Clause 85. These subsections provide
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that the chief officer's duty to pass to the Police Complaints Authority a memorandum specifying the disciplinary charges which he has preferred does not apply where the accused officer has admitted the charges and has not withdrawn his admission. This is because the powers of the authority, like those of the present Police Complaints Board, are to recommend or direct that charges be brought where the chief officer does not propose to do so. It has no power to recommend or direct that charges should not be brought where the chief officer is minded to bring them. But the authority also has a role at this stage in requiring investigation reports to be passed to the Director of Public Prosecutions. This is the substance of the present Clause 86 and of the new clause which stands in my name to replace it.
The problem with this part of Clause 85, as drafted, is that, by imposing the duty to send the authority a memorandum, it would also have prevented the authority from being able to consider whether the report should be sent to the Director of Public Prosecutions. Accordingly, subsection (1) of this new clause provides that no such memorandum need be sent under those circumstances. However, subsections (2) and (3) go on to provide that in such a case the chief officer shall send to the Police Complaints Authority at the conclusion of the disciplinary proceedings particulars of the charges and of any punishment and also a copy of the investigation report, if the authority did not have this already. This will enable it fully to exercise its powers of directing a reference to the DPP. The other three amendments are purely consequential.
I took the precaution of sending a note on the effects of this rather large collection of amendments to noble Lords opposite. They would have been just as complicated at half past two or three o'clock this afternoon. I hope they will be a good deal easier to understand when they are printed in the Report stage print of the Bill and that your Lordships will then be able to refer to what I have thought it right to say in extensor on the subject as an explanation of what we have done. I beg to move.
Lord Elwyn-Jones: We have, of course, read them with fascination.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 163BE:
[Printed earlier: col. 996.]
On Question, amendment agreed to.
Clause 85 [Steps to he taken by chief officer after investigation of section 79 complaint]:
Lord Plant Lord Plant had given notice of his intention to move Amendment No. 164:
[Printed earlier: col. 996.]
The noble Lord said: This amendment is designed to bring cases more quickly before the Director of Public Prosecutions. However, in view of what the noble Lord, Lord Elton, has said about the new clause which comes after Clause 84, where there is some

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easement, I do not intend to move either this amendment or Amendments Nos. 165 and 166.
[Amendments Nos. 164, 165 and 166 not moved.]
On Question, Whether Clause 85 shall stand part of the Bill?
Lord Mishcon: For the purpose of the record, I wonder whether the noble Lord the Minister could indicate what Bill of any Government has had the pleasure of hearing the noble Lord the Minister in charge of it state on so many occasions that he has every intention of opposing the Question, whether clauses in the Bill, as originally drawn by the Government, shall in fact stand part?
Lord Elton: I think that this is my personal best.
Clause 85 negatived.
10.55 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 166A:
After Clause 85, insert the following new clause:
("Powers of Authority to direct reference of reports etc. to Director of Public Prosecutions.
.—(1) When a chief officer of police has performed all duties imposed on him by sections [Steps to be taken after investigation—general] and [Steps to be taken where accused has admitted charges] above in relation to the report of an investigation concerning the conduct of an officer who is not a senior officer, it shall be the duty of the Authority to determine whether—

(a) the report indicates that a criminal offence may have been committed by that officer; and

(b) if so, the offence is such that the officer ought to be charged with it.

(2) If the Authority determine that the officer ought to be charged, it shall be their duty to direct the chief officer to send the Director of Public Prosecutions a copy of the report.
(3) When the Authority give a direction under subsection (2) above, they may also direct the chief officer to send the Director the information contained in the memorandum under section 85 above.
(4) If the investigation was an investigation of a complaint, the Authority shall direct the chief officer to send the Director a copy of the complaint or of the record of the complaint.
(5) It shall be the duty of a chief officer to comply with any direction under this section.
(6) Sections [Steps to be taken after investigation—general] and [Steps to be taken where accused has admitted charges] above shall apply where a copy of a report is sent to the Director under this section as they apply where a copy is sent to him under section [Steps to be taken after investigation—general] (4) above.")
The noble Lord said: On behalf of my noble friend I rise to move amendment No. 166A. This new clause replaces Clause 86, which deals with the powers of the Police Complaints Authority to direct a chief constable to pass a complaint investigation report to the DPP if he has not already done so.
It differs from Clause 86 essentially by incorporating a revised test for reference to the DPP of minor criminal allegations and by spelling out in more detail what it is that may or must be passed to him. I beg to move.
On Question, amendment agreed to.
Clause 86 [Powers of Authority to refer to Director of Public Prosecutions]:
Clause negatived.
Clause 87 [Powers of Authority as to disciplinary charges]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 166B:
Page 75, line 38, leave out ("85") and insert ("[Steps taken after investigation—general]")
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment Nos. 166C and 166D:
Page 75, line 42, at end insert—
("(1A) Subject to subsection (4A) below, a chief officer may not withdraw charges which he has preferred in accordance with a recommendation under subsection (1) above.")
Page 76, line 8, leave out subsections (4) and (5) and insert—
("(4) Subject to subsection (4A) below, it shall be the duty of a chief officer to prefer and proceed with charges specified in such a direction.
(4A) The Authority may give a chief officer leave—

(a) not to prefer charges which section [Steps to be taken after investigation—general] (10) above or subsection (4) above would otherwise oblige him to prefer; or

(b) not to proceed with charges with which section [Steps to be taken after investigation—general] (10) above or subsection (1A) or (4) above would otherwise oblige him to proceed.")

The noble Lord said: With your Lordships permission I shall speak to these two amendments together. These amendments replace Clause 87(5), which is intended to ensure that disciplinary charges in which the Police Complaints Authority has a legitimate interest may be withdrawn only with its permission. I beg to move these amendments en bloc.
On Question, amendments agreed to.
[Amendment No. 166E had been withdrawn from the Marshalled List.]
Clause 87, as amended, agreed to.
Clause 88 [Disciplinary tribunals]:
Lord Elton Lord Elton moved Amendment No. 166F:
[Printed earlier: col. 996.]
The noble Lord said: I spoke to this amendment with Amendment No. 163BD. I beg to move.
On Question, amendment agreed to.
Clause 88, as amended, agreed to.
Clause 89 [Information as the manner of dealing with complaints]:
Lord Trefgarne Lord Trefgarne moved Amendment No.166G:
Page 78, line 7, leave out from ("the") to end of line 8 and insert ("working of sections [Preliminary] to 87 above in relation to the force.")
The noble Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 89, as amended, agreed to
Clause 90 agreed to.
Clause 91 [Reports]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 166F:
Page 78, line 36, leave out ("complaints against police officers") and insert ("their functions").
The noble Lord said: This is another drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 1661:
Page 79, line 10, leave out from ("of") to ("and") in line 12 and insert ("sections [Preliminary] to 90 above").
The noble Lord said: This is a consequential amendment. I beg to move.
On Question, amendment agreed to.
Clause 91, as amended, agreed to.
Clause 92 [Restrictions on disclosure of information]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 166J:
Page 79, line 28, after ("complaint") insert ("or any matter referred to them under section 82 above").
The noble Lord said: This amendment reflects the fact that as the Police Complaints Authority is interested in cases arising other than as formal complaints, so the restrictions on the disclosure of information by its members and staff must go wider also. It prevents the improper disclosure of information about "non-complaint" matters referred under Clause 82. I beg to move.
On Question, amendment agreed to.
Clause 92, as amended, agreed to.
Clause 93 [Complaints regulations]:
Lord Elton Lord Elton moved Amendment No. 166K:
Page 80, line 31, leave out ("allegations") and insert ("matters").
The noble Lord said: This is a drafting change consequential on the loss of the concept of "allegation". I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 166L:
[Printed earlier: col. 996.]
The noble Lord said: I spoke to this amendment with Amendment No. 163BD. I beg to move.
On Question, amendment agreed to.
Clause 93, as amended, agreed to.
Clause 94 agreed to.
Clause 95 [Discipline regulations]:
Lord Elton Lord Elton moved Amendment No. 166M:
Page 83, line 6, after ("under") insert ("section 1 of").
The noble Lord said: With your Lordships' permission, may I also speak to Amendments 166N, 166P and 166Q, and move them en bloc.
Amendment No. 166N: Page 83, line 8, leave out from beginning to ("to") in line 9 and insert—
(" (a) subject to paragraph (aa) below, for references to a deputy chief constable or an assistant chief constable of references").
Amendment No. 166P: Page 83, line 13, leave out ("and").
Amendment No. 166Q: Page 83, line 13, at end insert—
("(aa) for the reference in subsection (5) to a deputy chief constable of a reference to an officer of the City of London police force holding a rank such as is mentioned in paragraph (a) above but who is not the officer who has taken the decision mentioned in paragraph (b) of that subsection; and").
The first of these amendments corrects a drafting slip and the others clarify matters relating to the delegation of discipline functions in the City of London Police. I beg to move.
On Question, amendments agreed to.
Clause 95, as amended, agreed to.
Clause 96 [Representation at disciplinary proceedings.]:
Lord Plant Lord Plant moved Amendment No. 167:
Page 83, line 22, at end insert ("such legal costs to be paid from public funds.").
The noble Lord said: I shall be brief. The Police Federation are, very naturally, glad that the Government conceded legal representation but, of course, legal representation in certain circumstances can be a very heavy penalty financially, especially if the officer happens to be completely innocent.
This amendment seeks to ensure that legal costs be paid from public funds. The Association of Chief Police Officers obtains payment from public funds in many cases in which they are involved. Prisoners, incidentally, have assistance before prison boards from public funds. All the police in Europe, the United States, Canada and many parts of the Commonwealth have legal assistance paid for from public funds. I feel that it would be wrong for this country, having conceded the right of legal representation to members of police forces, to deny payment from public funds. If my amendment does not succeed, I should very naturally support the one put down by the noble Lord, Lord Renton. I beg to move Amendment No. 167.
Lord Renton: I should like strongly to support the amendment of the noble Lord, Lord Plant. One must bear in mind that a police officer who finds himself in this position may, long before disciplinary proceedings take place, have found himself suspended, and he may of course be deprived of promotion. Although it may not happen at that stage, his expectation of promotion may have faded somewhat into the background.
Before the stage of disciplinary proceedings is reached, he is almost certain to have incurred personally considerable expense for legal advice and representation. It would seem to be right that he should at least have equal treatment with an accused person in a criminal court; and on many occasions—in fact, for most cases tried on indictment—the court would have ordered legal representation at public expense for the accused person. I think it would be quite wrong, therefore, to deprive a police officer of the same opportunity.
It is tempting to say that Amendment No. 168 should be considered at the same time as this one in order to save your Lordships' time, but quite frankly it deals with a quite different point.
Lord Hooson: I am bound to say that the arguments advanced by the noble Lord, Lord Plant, and the noble Lord, Lord Renton, appear to me to be absolutely right, and we support them.
Lord Elton: When my right honourable friend introduced this clause in another place it was in recognition of the genuine concern felt by many police officers that they should not be at risk of losing either job or rank without having had the opportunity of a lawyer to present their cases for them. It was certainly not because police officers facing disciplinary charges were in any sense disadvantaged compared with the majority of the working population. Legal representation at an internal disciplinary hearing before an employer is still the exception rather than the rule and the effect of these amendments would be to turn a perfectly justifiable position into one of privilege for members of the police service.
Your Lordships will remember that in practice police officers appealing against disciplinary findings or punishments have their legal and other costs paid from public funds. That, in itself, is an unusual advantage. But which group of workers has the cost of a first hearing paid for from public funds, whether or not they are successful? In virtually all fields of employment it is for the employee himself, or for his trade union or staff association, to pay the costs. I am afraid we are not persuaded that police officers should be particularly picked out for advantage in this respect. The Bill provides a right for them to elect for legal representation. They are not required to do so, but if they choose to, it should be for them or their staff association to foot the bill. Therefore, I am not persuaded by the arguments of my noble friend.
Lord Renton: I find this very surprising indeed. In effect, my noble friend is saying that the Police Federation should pay these costs. The police officer concerned may not have any kind of service contract with the Police Federation requiring the federation to pay. Frankly, I am not sure of the position and perhaps the noble Lord, Lord Plant, can help on what is the contractual position between a police officer and the Police Federation.
With respect to the argument put forward by my noble friend, I do not consider that it is relevant. The point is that this is a disciplinary charge brought against a police officer which may or may not succeed. Very much is at stake. The allegations against him might be quite serious, as we have known from our discussions on earlier parts of this Bill. As I said earlier, it seems to be wrong that he should be at a disadvantage compared with other members of the public. My noble friend is saying that we are giving him a privilege compared with other members of the public. That I am unable to understand.
Lord Elton: I cannot understand my noble friend, but perhaps we can between us understand each other's position. A police constable in court on a criminal charge is not what we are discussing. We are talking about disciplinary charges internal to his service. I do not know of any other service which provides the privilege which the noble Lord seeks to give to policemen. Perhaps he can tell me which service he has in mind.
Lord Renton: I can, and very quickly. The noble and learned Lord, Lord Elwyn-Jones, with his long experience, will be able to support me in this. We both were in the Army. I think my noble friend Lord Elton was, too. When there was a court martial the officer or soldier concerned was always represented free of expense to himself by lawyers within the Army's legal service, and very distinguished lawyers they sometimes were. Indeed, the noble and learned Lord, Lord Elwyn-Jones, had great experience and distinction in that field during the war.
With great respect to my noble friend, I do not think that this has been thought through by the Home Office. I feel that the noble Lord, Lord Plant, would be fully entitled to ask my noble friend to take back the amendment and have another look at it. I am not impressed by the arguments used.
Lord Elton: I shall add only one thin, reedy, sentence or two to what I have already said to my noble friend. I am not sure that the Army is a good comparison.
Lord Renton: It is a disciplined service.
Lord Elton: So are the fire brigade and the prison service. There are many others. It seems to us that these amendments would put the police in a position different from members of almost any other service.
As to courts martial, they are a quasi-criminal jurisdiction, with powers to impose criminal penalties. It is therefore quite right that soldiers exposed to criminal prosecution in a quasi-criminal court should have the same privileges as policemen would have if they were in a civil court.
Lord Renton: There are many disciplinary cases in which the line between a disciplinary charge and a criminal charge is very blurred.
Lord Elystan-Morgan: I, too, share the sense of disappointment of the noble Lord, Lord Renton: and may I say what a pleasure it is every now and again to be able to agree with a point made by the noble Lord, although we disagree on certain matters?
As I see it, the argument is this. The position of a police officer vis-à-vis his controlling authority can in no way be equated to the position of an ordinary employee in relation to his employer. It is because of the fact that the police officer is in constant contact with the public that he is in a wholly unique situation. Although what he is charged with may not be a criminal offence, what he has to face is in many respects a public accusation. I venture to suggest, with great respect to the noble Lord the Minister, that that distinguishes the police officer from all the other instances that he has given.
It may be said of the amendment that it is slightly too generous in that it goes beyond the position that is enjoyed by a successful defendant. Under the Crown Court rules, all that the successful defendant has on indictment is the discretion of the court, which would always be exercised in his favour unless he had been the architect of his own misfortune. I am sure that neither the noble Lord, Lord Plant, nor the noble Lord, Lord Renton, would disagree if an additional

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proviso were to be placed side by side with the amendment.
I beg the Minister to reconsider very carefully the arguments that have been put forward and to regard the police officer as occupying a unique position in a situation where he is vulnerable to a public accusation. That is very different from the ordinary situation of employee and employer.
Lord Wilson of Langside: Surely the noble Lord, Lord Elystan-Morgan, has put his finger on the point when he says that the police officer is in a unique position, which is surely Lord Renton's point. I hope, too, that the noble Lord the Minister will have another look at this.
11.13 p.m.
Lord Elton: I cannot say that I see tremendous compulsion or force in the argument that a police constable is special in that way. I thought I heard the noble Lord, Lord Plant, say that prison officers had their legal costs paid, but they do not actually have legal representation in disputes.
Lord Plant: Prisoners.
Lord Elton: I think we would all agree that prisoners are in a special category. Their resources are rather less than those of either policemen or the Police Federation. I do not think that that is a good example. Certainly anybody in any walk of life who is accused of misconduct, if that accusation becomes public, is subject to some embarrassment. But what we are talking about is not paying for embarrassment. We are talking about costs. The expenses of legal representation which have been granted to the police for their own election, at their own request, seem to me to be no different in kind or quantity from the costs of firemen, prisoner officers or members of any other disciplined and uniformed service, or indeed many other services which are not uniformed.
I think that the noble Lord, Lord Plant, may wish to consider between now and Report whether he can discover other ways in which he can distinguish between policemen and the rest of the community, who have to bear these costs and who wish to regard themselves as being the equals of policemen before the law.
Lord Renton: I do apologise for coming in yet again but I think the crux of this matter was hit upon by the noble Lord, Lord Elystan-Morgan, when he referred to the police force as being vulnerable. The police force are unique in that they are the only general law enforcement body in this country. We all rely upon them. We pass laws week after week in Parliament but it is the police who are going to have to enforce them and very frequently that requires great courage, strength of character and ability. Of course they are bound to fall foul of members of the public who are unwilling to co-operate with Parliament in the carrying out of the law or the enforcement of the law by the police.
That being so, the police are for that reason in a special position. It could be said that customs officers—
Lord Elton: As we want to move this on, will the noble Lord be kind enough to tell me why the fact that a member of the public may not co-operate with the police should render a policeman liable to disciplinary proceedings?
Lord Renton: With deep respect, I have not said that at all. What I have said is that the police are responsible for law enforcement. In carrying out their responsibilities they may find that members of the public are unwilling to co-operate and, not only that, are prepared to make complaints against them which may or may not be justified. I can tell my noble friend from experience just as he knows from Home Office experience—my experience is much older than his but just as fresh in my mind—and the noble Lord, Lord Elystan-Morgan can bear me out, that it came to our knowledge that complaints against the police are exceedingly numerous. A very large number of them are frivolous. Others appear on the face of it to have some substance and have to be investigated. Still others will lead to disciplinary proceedings which may or may not result in the police officer having been found guilty of—whatever we care to call it—misconduct.
However, the truth is, as the noble Lord, Lord Elystan-Morgan said, that for this reason the police are vulnerable. Perhaps the better they do their duty the more vulnerable they are. Perhaps my noble friend would bear that in mind. I think this is a matter which we should not decide at this late hour. We, and I hope my noble friend, will want to consider carefully what has been said by other noble Lords on this matter. My advice to the noble Lord, Lord Plant, would be, whether or not be gets an undertaking from my noble friend Lord Elton—and I hope he will give an undertaking—to withdraw his amendment tonight so that we may come back to it in the hope that the Home Office will see the matter in a different light by Report stage.
Lord Hooson: If I can be of assistance, I was just wondering whether the noble Lord, Lord Elton, would regard the amendment in the name of the noble Lord, Lord Renton, as a compromise on this matter and an acceptable one, because on that particular amendment it seems to me that the police officer has not been distinguished from members of other forces. He has the right to be represented in certain circumstances. I notice that that amendment says,
"and has been acquitted of the charge or charges".
It states not that he has not been dismissed or that he has not been reduced in rank, which are the qualifying conditions for legal representation, but that he has actually been acquitted of the charges. If that is so, and therefore the charge is found to be completely unjustified—not as reflected in the punishment but simply in the charges being dismissed—it seems to me as a matter of common justice that he should—
Lord Elton: Is my noble friend prepared to speak to his other amendment or are we covering the ground sufficiently closely to take it?
Lord Renton: I was very much hoping that we might receive a clear indication of the Government's view of this first amendment. I really feel that that does stand

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on its own. As the noble Lord, Lord Hooson, has mentioned, I have regarded my amendment not so much as a compromise amendment as a fall-back amendment, if that is not too subtle a distinction.
Lord Elton: We must obviously draw this discussion to a conclusion. I want to put my cards on the table and start by saying that I should not want it thought that I believed the police any less splendid and admirable people than my noble friend does. We vie with each other in our regard for the police. But, in a case like this, we must view the matter impartially. I look at it impartially, and I see that the police already have the protection of a stringent discipline code that protects them from summary dismissal and unfair dismisssal to an extent far beyond anything in most other forms of employment.
I find that most other employees in similar conditions have no such privilege as access to the public purse to defend them from charges, that may or may not be justified, of improper conduct within the force. I then look at the question of scale. I see that there are about 16,000 complaints a year at present. Of these, about 250 lead to disciplinary proceedings and of all disciplinary hearings, less than one-tenth lead to loss of job or rank. That gives a picture of the scale. I would be absolutely astonished beyond measure if I were to learn that the Police Federation, which is not destitute, refused to do what other trade unions and associations do for their members and pay the legal expenses of its members when they are incurred in this way.
I do not honestly think that my heart is wrung by the appeal that has been made. I do not think that it makes one look very hard hearted to ask your Lordships to look at policemen as you look at other people. Having said all that, I shall, of course, read the debate, as will my right honourable friend, with close interest. I hope, however, that noble Lords opposite and all around me will do the same because I think that the initiative may lie with them if they want to pursue it further.
Lord Plant: I am very disappointed at the attitude taken by the noble Lord, Lord Elton. Of course, the Police Federation will back its members. There is no question about that at all. It has fought for a long time to get legal representation, and the Government conceded this in another place. They would not concede the payment of legal expenses. Now, in the final court, we are making a further appeal to the Government.
The noble Lord asks about the difference between the policeman and anyone else. I thought that the noble Lord. Lord Renton, put this firmly. Of course, it is a disciplined force. They have no right to strike. They are vulnerable. The public do make complaints—frivolous complaints—that have no foundation in fact. Then, when it comes to disciplinary proceedures, the policeman himself has to pay for legal representation. That is wrong. The chief police officers do not pay: the state pays. I do not think that there is any difference, and unless—
Lord Elton: The noble Lord adduces the case of the senior officers. But the regulations in that case provide
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for disciplinary charges to be drawn up by an independent solicitor. So the person facing the charges is already up against legal advice. It is right that the balance should be kept.
Lord Plant: That is splitting hairs. All that I can say is that the policeman who is pounding the pavement will think that you are leaning towards the chief constable and not to the man in the lower ranks. I do not want to divide the House. Yet I can see that if the noble Lord is let off the hook at 11.30 p.m., he will recover his composure tomorrow and be just as difficult at Report stage. I think therefore that I must ask the Committee to vote on this.
Lord Elystan-Morgan: I wonder whether I might ask my noble friend Lord Plant to reconsider the question of having a Division now, and to keep his powder dry for another occasion. I make the same appeal to the noble Lord, Lord Renton.
Lord Renton: If the matter is voted upon now, in effect it will be closed, and very possibly closed against this amendment; whereas, if we take the advice of my noble friend Lord Elton that he and we should study what has been said and come back to it at Report stage, the matter will remain open and there may be some advantage in that. I hope that the noble Lord, Lord Plant, will not press this matter to a Division now, though I am on his side in this.
Lord Plant: I am steadfastly on the side of the police in this matter, but I am persuaded that perhaps the correct thing for me to do is to withdraw the amendment, to enter into these discussions and come back at Report stage, I hope with something very satisfactory. If not, I will have to fall back on the other amendment of the noble Lord, Lord Renton. I would hope it would have a much easier ride than mine has had.
Amendment, by leave, withdrawn.
Lord Renton Lord Renton moved Amendment No. 168:
Page 83, line 22, at end insert—
("Where an officer has so elected and has been acquitted of the charge or charges, he shall be reimbursed the cost of his legal representation from Public Funds.")
The noble Lord said: In view of the discussion we have just had, I can move this amendment very briefly. As I said, this is really a fall-back amendment, but surely it is one which should commend itself to your Lordships, because, in common justice, in circumstances in which an officer has elected to be tried, as he may so elect under this clause, and has then been acquitted, it would seem wrong that he himself, or, indeed, the Police Federation, should have to bear the brunt of paying the costs of a disciplinary charge which was found to be unfounded. It seems to be so plain that I do not think I need say more than that I beg to move.
Lord Elton: I think that perhaps I do not need to say more than that I shall look at this at the same time as I look at the other matter. The noble Lord will recognise that it has certain advantages over the other matter, though they may not altogether commend it to me.
Lord Renton: May I thank my noble friend Lord Elton for his immediate proposition, which I accept gladly, and congratulate him on it? I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
Clause 96 agreed to.
Clause 97 [Disciplinary appeals]:
Lord Elton Lord Elton moved Amendment No. 168A:
Page 86, line 6, leave out ("or") and insert ("on").
The noble Lord said: This amendment is to correct a printer's error. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 168B:
Page 87, line 6, after second ("the") insert ("person or").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 168C.
Amendment No. 168C: Page 87, line 40, after ("the") insert ("person or").
These amendments are made to reflect the fact that under paragraph 3(5) the Secretary of State may appoint a single person to hold an inquiry into a disciplinary appeal by a senior officer. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 168C:
[Printed above.]
On Question, amendment agreed to.
Clause 97, as amended, agreed to.
Clause 98 agreed to.
Clause 99 [Guidelines concerning discipline, complaints etc.]:
11.29 p.m.
Lord Elton Lord Elton moved Amendment No. 168D:
Page 88, line 19, leave out from ("functions") to end of line 22 and insert—

("(a) under this Part of this Act; and

(b) otherwise in connection with discipline.")

The noble Lord said: With your Lordships' permission, I shall speak also to Amendment No. 168E.
Amendment No. 168E: Page 88, line 24, at end insert—
("(1A) Guidance may not be issued under subsection (1) above in relation to the handling of a particular case.")
The first of these amendments is consequential on the change in language which other amendments have made to this part of the Bill. It enables the Secretary of State to issue guidance to the police on any matter arising under Part IX, rather than in relation only to complaints and allegations. The other amendment, however, places a necessary limitation on the power to issue guidance by making it clear that it may not relate to the handling of a particular complaint or discipline case. This is to ensure that this provision cannot be used as a means of ministerial interference in individual cases, and I expect it to be welcomed warmly from the Benches opposite.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 168E:
[Printed above.]
On Question, amendment agreed to.
Clause 99, as amended, agreed to.
Clause 100 [Arrangements for obtaining the views of the community on policing]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 168F:
Page 89, line 10, at end insert—
(" () Such arrangements shall include the establishment and operation of a Consultative Committee for each police area, and Schedule [Police/Community Consultative Committees] shall have effect in relation to such Consultative Committees.")
The noble Lord said: I beg to move Amendment No. 168F and I should like also to speak to Amendment No. 176B.
Amendment No. 176B: Before Schedule 6, insert the following new Schedule—
("SCHEDULE POLICE/COMMUNITY CONSULTATIVE COMMITTEES
1. The Committee may consider any matter directly or indirectly connected with the policing of its area and make recommendations thereon to the chief police officer for that area, to the police authority and any local authority. Any such recommendations shall be given in writing to the chief police officer or local authority and to the police authority for that area.
2. The chief police officer for the area shall consult the committee on the policing policies, priorities and methods of his force.
3. The chief officer of police will, except in exceptional circumstances, inform the Committee in advance of any significant change in the policies, priorities or methods of his force or of any planned major police operation, unless to do so would impair the effectiveness of that operation.
4. The Committee shall meet not less than four times in each year.
5. All meetings of the Committee shall be open to the public. Members of the public may, at the discretion of the chairperson, be allowed to address the meeting.
6. Any ten members of the Committee may call a special meeting of the Committee in response to, or in anticipation of, an exceptional policing matter of concern to the parties.
7. The Committee may ask for reports from any chief officer of police and any local authority represented on it.
8. The Committee may, with the consent of the chief officer of police, request the attendance of, and put questions to, any other police officer in the area.")
The purpose of this amendment is to make it incumbent upon police authorities to establish consultative committees for each police area. Amendment No. 176B sets out in schedule form the parameters within which such bodies will operate and what their main functions will be.
Following the recommendation of the noble and learned Lord, Lord Scarman, in his report on the Brixton disorders, that consultative committees should be established throughout the country, the Home Secretary issued a circular in June 1982 asking all police authorities, and the Metropolitan Commissioner as far as London is concerned, to establish such committees in their area. The circular made certain recommendations—for example, who should be the members of such committees and what they might discuss—but stated that decisions on such matters should reflect local conditions. The circular made clear, as the noble and learned Lord, Lord Scarman, had done, that consultative committees would not have any control over the chief constables

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and nor would they be in any way accountable to the committees.
As far as Clause 100 of the Bill is concerned, it certainly goes some part of the way towards achieving that purpose. Subsection (1) says:
"Arrangements shall he made in each police area for obtaining the views of people in that area about matters concerning the policing of the area and for obtaining their co-operation with the police in preventing crime in the area".
That is extremely wide. It can vary in the same way as the length of the foot of each chief constable varies. It might mean a body exactly the same as is proposed in this amendment; it might mean nothing more than the occasional opinion poll. The purpose of the amendment is to see to it that the Scarman proposals, and indeed the recommendations of the Home Secretary in 1982, are carried out throughout the police authorities of England and Wales. I beg to move.
Lord Inglewood: I should like to ask just one question as regards the size of these committees. There is reference to an "area" in the clauses, but there is no reference to sub-committees or sub-areas. It seems to me that a police area—the area for which an authority is responsible—could be a very large area. If there is only one committee, such as I see in the Bill, the distances will be so great that there will be very little personal contact between the committees and the people who are interested in the policing of their area. Could it be made clear that it is possible to have sub-committees as well as single committees?
Lord Elystan-Morgan: Although the schedule sets out the parameters, there is complete flexibility; there is no reason why such a body should not, amoeba-like, split itself up into various parts to meet the needs of each locality.
Lord Gifford: Clause 100 deals with a very important topic: the need for the police to consult with people in a community. But it deals with it in a way which is so vague, so generalised, that I fear that it will only count as a token gesture towards consultation and will really make very little difference at all.
All that is said in the clause as printed is that there should be "arrangements". I hope that the noble Lord the Minister, in replying to this amendment, will give us some idea how the Government expect these arrangements to work and how they can be sure that they will work effectively. Nothing is said in the clause about the responsibility of the chief constable or his officers towards these arrangements. The chief constable is not even obliged to attend the meetings or to send an officer to them. Indeed, the meetings themselves are not mentioned in the clause.
As for the information which the police are to give to the public when these arrangements are worked out, the clause is absolutely silent as to what information, if any, the public will be vouchsafed. A chief constable who does not believe in consultation will be able to get away with saying nothing and the merest gesture towards arrangements, even though the police authority may set up some system.
As regards London, the position is even more bizarre because the person who is to make the arrange-
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ments is the Commissioner of Police for the Metropolis, after having received guidance from the Secretary of State. No attempt is made to give the metropolis some kind of body—and one is not here necessarily entering into the whole question of the need for a London police authority—which can independently take responsibility for consultation processes in London.
Therefore, unless something is added to this Bill whereby these arrangements can have some teeth and can work, I fear that this clause is only a pious hope, and for that reason I support the amendment which has been moved to put some teeth, some terms of reference and some kind of framework into this new proposal.
Lord Elton: The reply of the noble Lord, Lord Elystan-Morgan, to my noble friend Lord Inglewood gave me a little reassurance, but I still have grave doubts about what the noble Lord proposes, compellingly attractive though it is at first blush. The amendment proposes the establishment of a consultative committee for the whole force area which, under the new schedule, would have extensive powers and responsibilities. The area is the police area, and is defined by Section 62 of and Schedule 8 to the Police Act 1964 to mean the area for which a police force is maintained. It is the whole area. As the essence of consultation consists of local consultation and people getting to know the local police—and, with respect to the noble Lord, Lord Gifford, not necessarily the chief constable or the commissioner, because he cannot spend his time going round to village meetings—it depends on the size of the area.
Our philosophy—and I recall its early stages, and the time we have spent discussing it—is that it is quite wrong to set out a single pattern for every part of the country, because the rural differs from the urban and the depressed and deprived differs from the affluent. There will be a need for different arrangements in different places. That is why the guidelines which were issued by the previous Home Secretary in 1982 suggested that there might be separate arrangements in each police division or subdivision, or that they might be based on a district or even a parish council.
This arrangement seems to be an extension of the principles on which Clause 100 is based. Effective policing depends on the support of the public. Such support can only be sustained by a regular exchange of views and concerns between the police and the local community. It may seem logical to extend local arrangements for ensuring that police priorities and objectives are in line with local needs to the force area as a whole, but in practice there are difficulties in a consultative committee which may have to cover an area as large as the three counties of the Thames Valley Police. The subcommittees would form a very big committee indeed when they came together.
Again, I wonder whether the noble Lord is right to address his plan to the single unit of construction. It cannot properly consider the policing problems of particular localities with the same knowledge, experience and degree of interest as would emerge from a consultative committee which covers a part of a large city, a small town or an even smaller area. I

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have already said that it is the "localness" of the consultation which gives it its greatest value.
This is where practical steps can be taken to combat vandalism, to reduce street parking or to combat burglary. These are the problems which concern people in their daily lives. That is not to say that there will not be need for larger committees to cover larger areas at a higher rank. We wish to leave that option open. That is why the clause has the flexibility which the noble Lord, Lord Gifford, has labelled as vagueness. That vagueness—if that is what it is—may be a strength. There are safeguards built into it.
I cannot remember which noble Lord suggested that there might be an occasional public opinion poll as a kind of nod towards the consultative process, but let us look at the power that the Secretary of State has under subsection (10).
"If it appears to the Secretary of State that arrangements in a police area are not adequate for the purposes set out in sub-section (1) above, he may require the body or person whose duty it is to make arrangements in that area to submit a report to him concerning the arrangements."
Subsection (11) states:
"After considering the report the Secretary of State may require the body or person who submitted it to review the arrangements and submit a further report to him concerning them."
We are anxious not to have a dirigiste system. I think noble Lords opposite would not want the Home Secretary to write to a police authority and say, "These are the arrangements you shall have", because the Home Secretary cannot have the necessary level of local knowledge always to get it right. But he should be able to say, "These are arrangements which are not satisfactory". Clearly the kind of arrangements which the noble Lord suggested might arise.
Therefore I ask your Lordships to consider whether what is in Clause 100 is not rather better than what is in the amendment, though I recognise the considerable thought that has gone into the amendment itself. I wonder whether what is intended in the clause is not close to what is intended in the amendment? Perhaps the noble Lord would care to reflect further on that. I think I have given him grounds to consider whether he might not at least improve his amendment.
Lord Hooson: We on these Benches are convinced that the Government are right in their approach on this matter. The clause as drafted presents much more scope for flexibility than does the amendment. For London the clause contains what is an indication of the thinking of the Government on the matter which might form a model for other areas, though in a police area such as my own, which is extensive, but has a sparse population, any arrangements should surely be different from those for London. The indications in regard to London are a sign that the Government have in mind what noble Lords on the Opposition Front Bench want to achieve and they present a greater hope of achieving it.
Lord Pitt of Hampstead: The Bill as drafted is a little too lax. What is needed is a coming together between the flexibility that Clause 100 gives and the tighter approach of the amendment. I recognise that the chances are that my noble friend will withdraw the amendment, but I should like the Government to give
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a little thought as to whether Clause 100 could be drawn a little more tightly than it is at the moment. It is a little too flexible.
Lord Elton: The noble Lord, Lord Pitt, is fairly familiar with an area of London I know fairly well, Brixton and Lambeth. Does he not think that the consultative arrangements there, without any rigid direction or statutory base at all, have led to the most remarkable task being performed in terms of improving police and public relations? Is this not a good indication of what may happen?
Lord Pitt of Hampstead: Yes, Lambeth is good. What we want are more Lambeths. Merely leaving things as they are will not give us more Lambeths. It is because of that that I said there is a need for a meeting between the flexibility that the Government are advocating and the tighter approach of the amendment. Rather than merely be so happy that Lambeth has worked, the noble Lord should try to consider whether we can get more Lambeths.
Lord Elystan-Morgan: I have listened with great respect and interest to what the noble Lord the Minister has said. I accept the point made by the noble Lord, Lord Hooson, that Clause 100 is not to be dismissed lightly. It tries to set out a broad pattern for the whole of England and Wales. I suspect also that, as far as the pattern in the London boroughs is concerned, it may be possible, within the provisions of Clause 100 and with the determination of the Home Secretary of the day, to have that interlocking agglomeration of bodies operating in the metropolitan police district. But I suspect, too, that for the rest of England and Wales there may be many bald patches where the provisions of Clause 100(1) will be only very scantily applied. It is in the hope that it might be possible to set up some structure for every police area that would be responsible within that structure for constructing some sort of seamless web of different bodies, differing according to the needs of each locality, that we have put forward this amendment. I hope very much that the Minister will reflect upon that aspect as well.
Lord Elton: We are all trying to be as quick as we can, but I do not want to let a point go by. The noble Lord has suggested, using very relevant terms, that the purposes of subsection (1) might sometimes be very thinly met—in other words, inadequately met. Those are exactly the words that give the Secretary of State power to intervene under subsection (10). So we have not overlooked this. What the noble Lord is saying, and perhaps he should say it more openly, is that he does not trust the Secretary of State in the future.
Lord Elystan-Morgan: No.
Lord Elton: It is a reasonable position: it is not mine. He would not trust some future Secretary of State to carry out his function under the Bill properly to see that there are not bald patches. This is surely the area of Clause 100 at which he should look most closely.
Lord Pitt of Hampstead: What is required is that the final action of the Secretary of State should be firmer

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than is brought out in Clause 100. This is what I was trying to say in the midst of my remarks. There is the power to say, "Give me a report. I am not satisfied with this report, give me another report". We want something else after that—at least, I think I do.
Lord Elystan-Morgan: It is much too late to go into any considerable detail, though it is tempting to turn to. The matter is one that we might return to on another appropriate occasion, but tonight I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 168G not moved.]
Clause 100 agreed to.
11.48 p.m.
Lord Inglewood Lord Inglewood moved Amendment No. 169:
After Clause 100, insert the following new clause:
("Special Constables.
.—(1) In section 16(1) of the Police Act 1964 for the words from "may" to "area" there shall be substituted the words "shall appoint special constables for that area subject to the approval of the police authority for that area".
(2) After section 16(2) of the Police Act 1964 the following subsection shall be inserted—
"(2A) The establishment of special constables for a police area shall not fall below one quarter or exceed one half of the establishment of the police force for that area the number appointed within such limits being subject to the discretion of the chief constable."
(3) In section 46(2) of the Police Act 1964 after the word "members" there shall be inserted the words "including special constables" and after the words "police cadets" there shall be inserted the words "each of the Police Advisory Boards shall have power to co-opt members who have special qualifications".").
The noble Lord said: This is the first time while we have been debating this Bill in great detail over five days that the Special Constabulary has been mentioned. To me it is quite astonishing. The special constabulary needs support and we have overlooked that. It has had hardly a mention. It is a most valuable branch of our police and there is nothing that I know that is comparable, no similar volunteer police service, in any country in Western Europe. Today's need is for more than volunteers who come forward according to our history for special disasters. What we want now is a practical back-up for our regular police.
Over the last few years, taking the country as a whole, the numbers have been dropping by about 1,000 a year, year by year, until two years ago when there was a not very convincing working party report from the Home Office about the recruiting and the strength of the Special Constabulary.
I should like to suggest that we have the word "shall" rather than the word "may" in the 1964 Act, which puts quite unnecessary power into the hands of chief constables, who alone have the power not only to decide on having a greater or a smaller body of Special Constabulary in any area, but can have none if they like to make such a decision. Across the country one will find that the enthusiasm and the standard of the training varies tremendously from one part to another, even though I could say that over the last few years much trouble has been taken in trying to make this branch of our police more efficient.
My second point which comes out in the new clause is that we should have an establishment which is real.
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At the present time, if one looks at the numbers which stand against the establishment in every county area in this country, one finds that in some cases it is 40 per cent. or 20 per cent. of the establishment. It appears to bear no relation whatever to the population of some areas. I have suggested, therefore, for guidance, that we should have a number falling between 25 per cent. and 50 per cent. of the strength of the regular police in their area. That would be support for the police authority and could give the area a sense of whether there was use for a larger number or for a smaller number.
The last point is that we should have representation of the Special Constabulary on the various advisory boards, the police advisory boards, which are familiar to my noble friend. They are a Home Office committee. The Special Constabulary never has any regular representation on these bodies. I should not like to delay the Committee at this time by going over the same ground. I have made it as simple as I possibly can. There may be an occasion when we shall have to come back to this topic again, because it is quite impossible to deny the support which to my mind the Special Constabulary deserve. I should not like to go on any longer this evening. If this very simple point was going to be met by the Government, I would only have to sit down.
Lord Elton: I share the admiration of my noble friend for the Special Constabulary, although I cannot possibly equal his knowledge of it or, indeed, the regard in which he stands, I am sure, with them. I just wonder whether the new clause which he has suggested will have the practical benefits for the Special Constabulary which he would hope. The object of subsections (1) and (2) are to make sure that every chief officer appoints special constables and does so in substantial numbers. All chief constables already make use of special constables. Many have a set force establishment figure which would meet the requirement which the noble Lord wishes to impose on them, but establishments do not necessarily impose recruits.
If I may illustrate this, Lancashire has a force establishment of 3,158, a special constable establishment of 1,020, which is about what my noble friend suggests, and they have only managed to enrol 376. Thames Valley, with an establishment of 3,267 and a specials establishment of 1,008, has 544 enrolled; and Warwickshire, much closer to their target, have 925 established constables and 374 specials, with 341 enrolled at 31st December last year. The first two figures that I have given prove, I think, that merely setting an establishment at an agreeable level does not actually produce the people to fill it, and an empty establishment does not produce any results.
I am glad to recognise (as has my noble friend) that in each of the last two years there has been a small but encouraging increase in the total number of special constables. I am sure that all forces would like to be enabled to appoint many more; but I do not think that this device will secure it. At present, chief officers have a discretion to appoint specials and the Home Office encourages them to enrol as many as they can usefully train and deploy. There are no substantial financial consequences involved. Decisions on whether to appoint special constables and how many to appoint are therefore simply operational matters properly left

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to be determined locally. We do not see a Home Office role in such decisions, which must depend on local needs and local circumstances. Therefore, there is no need for further statutory provision for that.
Subsection (3) of the new clause deals with the police advisory boards for England, Wales and Scotland. The first part of this provision is intended, I think, to ensure that the Special Constabulary is represented on these boards. There are two problems raised by the subsection as drafted: one technical, one practical. First, special constables are not "members of the police force" in the terms of the Police Act 1964. My noble friend may wish to look at Section 19 of that Act, but that is purely a matter of how he drafts his amendment. Secondly, the amendment would require the Secretary of State to consult an organisation representing the Special Constabulary, and, unfortunately, I do not know of any such organisation. Perhaps my noble friend does. At present, it would lay upon the Secretary of State a duty which is incapable of performance.
If I may turn to the substance of what the amendment intends, we doubt whether the Special Constabulary representatives could be expected to contribute to the work of the police advisory boards on any aspect of policing beyond their own interests. At present, when the boards are to discuss issues touching on the Special Constabulary, representatives can be co-opted for the discussion of these issues. This was done, for example, when the Board for England and Wales decided to set up working parties on the Special Constabulary in 1976 and 1979. This seems to us an effective way of ensuring that the interests of the special constables are taken into account and more effective than permanent representation on the boards, particularly given the difficulty—
Lord Inglewood: Could my noble friend say how one chooses these representatives, at least in a reasonable hurry, because they are chosen from between 40 and 50 forces in the country? There is no organisation and there was really great difficulty in getting special constables to work for the working parties a few years ago. There is no national organisation.
Lord Elton: That is precisely what makes the duty my noble friend would lay on my right honourable friend impossible to perform: because there is no national body for him to consult. It may be that the remedy lies in the hands of the Special Constabulary.
As to the second part of subsection (3), I can assure my noble friend that, since the Secretary of State determines the constitutions of the police advisory boards, he already has power without amending legislation to alter the constitution to provide for the co-option of members with special qualifications. Indeed, I understand that the Board for Scotland includes five members who have no other connection with the police service. I might add that an obvious route for consultation when looking for special constables would be with the Association of Chief Police Officers.
I do not want to detain your Lordships. I hope that I have put before my noble friend considerations of value. I should like to leave on record the fact that we believe that the Special Constabulary is a necessary
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and valuable help to police forces throughout the country. I wish we could see the numbers increased. We do not think that this is the way to do it but they are an admirable body of men. I should like that to be on the record.
Baroness Hornsby-Smith: Before my noble friend sits down, may I say that I was blessed with an extremely good unit of special constables in my old constituency in Kent. In view of the enormous demands made upon the London police with the endless demonstrations and with the other problems they face, could my noble friend say to what extent there is a strength of Special Constabulary to help out with the normal duties within the various boroughs of London when our London police are devolved to other duties? What is the strength of the Special Constabulary in London?
Lord Inglewood: Two thousand, roughly.
Lord Elton: My noble friend has answered the question sotto voce but not sotto voce enough for me not to hear it. It is about 2,000. My noble friend has accurately stated the prime role of the Special Constabulary, which is to take on the normal duties of the police when the regular constabulary is fully deployed elsewhere. She is right to point to the very great value of that service.
Lord Inglewood: I was not very impressed by the reply of my noble friend. I did not think that his reply amounted to very much help, given that the Special Constabulary is giving such valuable help in the country. He did not even agree to change the word "may" for "shall" in the first part of my amendment. It is quite clear that it is very difficult for a Back-Bench Member to draft a new clause like this, which has to make reference to an Act of Parliament which is now a few years old. I was hoping—
12 midnight
Lord Elton: Would my noble friend forgive me? I was not criticising his drafting in that respect. I was merely showing that all the chief constables already recruit, and therefore changing "may" to "shall" will not make any difference to that. Then I went on to say that increasing the size of the establishment for the Special Constabulary would not produce the recruits to fill that establishment. I quoted three establishments, of which two were gapingly empty as to about two-thirds of the ranks: so that is no solution.
The fact that we do not look with favour on my noble friend's amendment does not reflect his inability to draft it. In fact, if I may say so, I think it is rather well drafted for a non-parliamentary draftsman. It reflects the fact that we do not honestly think that the way he seeks to do it would have the effect which we, as well as he, wish it to have, and that the way of strengthening the Special Constabulary lies along different routes, which we are exploring.
Lord Inglewood: That is a more enthusiastic reply, and I can only say "thank you" for it. But I do not think my noble friend is really correct in saying that all chief constables are enthusiastic about the Special

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Constabulary, because most people seem to feel that some are enthusiastic and others less so.
He also mentioned duties that regulars think they can take over, and I think it is something we might put on record at the moment, when every week we have reserves moving from forces all over the country, leaving the areas badly denuded of police cover and special constables putting in very long hours, helping policing at times when otherwise there would be extremely short numbers.
I do not know whether I can go any further tonight. I do not want to take up time, but I am certainly not entirely satisfied with the reply and should like to go into all this with my noble friend on another occasion, because I am sure that between us we ought to have greater success than has been achieved this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 169A:
After Clause 100, insert the following new Clause—
("Police authority to monitor powers.
.—(1) It shall be the duty of the police authority to monitor the exercise of powers given to the police under this Act.
(2) In the proper exercise of its duty under section 1 the authority shall call for regular reports from the chief constable about the use of the powers by the members of his force and the number of complaints arising from their actions.
(3) Where the committee consider it appropriate they shall refer any disputed use of the powers to a sub-committee to investigate.
(4) If the sub-committee is of the view that any officer has abused the powers granted under this Act it may refer the case to the chief constable to consider disciplinary action against the officer.").
The noble and learned Lord said: This new clause confers the duty on the police authority of monitoring the exercise of powers given to the police under the Act, and in the exercise of that duty under Section 1 the authority is to call for,
"regular reports from the chief constable about the use of the powers by the members of his force and the number of complaints arising from their actions".
It also says that where the committee think it appropriate,
"they shall refer any disputed use of the powers to a sub-committee",
and if that sub-committee,
"is of the view that any officer has abused the powers granted under this Act it may refer the case to the chief constable to consider disciplinary action against the officer".
I beg to move.
Lord Elton: The new clause seeks to place a specific duty on the police authority to monitor the use of the powers contained in the Bill and tells the authority how to set about doing it, but the authority is already under a general statutory duty to maintain an adequate and efficient police force. It already also has statutory power under Section 12(2) of the Police Act 1964 to call for reports from the chief constable on any matter connected with the policing of its area. It already has a statutory duty under Section 50 of the Police Act, continued under Clause 89 of the Bill, to keep itself informed as to the manner in which complaints against members of the force are dealt
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with, and in the absence of a complaint, the authority can already, at any time, draw evidence of abuse of police powers to the chief constable's attention.
The new clause would thus give the police authority no new powers. What it would do would be to limit the discretion of the authority to carry out its general statutory duty in this one area of police activity in the way in which it considers most appropriate and which, in the light of experience, it found most efficient.
I do not doubt that police authorities will continue to keep themselves informed of the way the police use their powers and of the views of the public about how they do so. They will decide also how to keep themselves informed. In view of the fact that the powers which the noble and learned Lord has here cogently brought together in one place are in fact already available to the authority and that they urge the police to discharge the functions which they are required and empowered to pursue, I wonder whether he would feel that this amendment might perhaps not be so helpful as he had hoped.
Lord Elwyn-Jones: In the light of the assurances which the noble Lord has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 101 agreed to.
Lord Inglewood Lord Inglewood moved Amendment No. 170:
After Clause 101, insert the following new clause:
("Chief Constables.
. Subject to the provisions of subsections (4), (5) and (6) of section 5 and the provisions of section 29 of the Police Act 1964 Chief Constables shall be appointed for a term of seven years, with power to extend such period, provided that all Chief Constables shall retire on reaching the age of 60.")
The noble Lord said: I beg to move the new clause, Amendment No. 170 on the Marshalled List. It is a very simple amendment. I need not take up anything like so much time as I did on the last amendment that I moved. I am, however, hoping for more luck!
The amendment contains one very simple point. This new clause requires all newly appointed chief constables to retire at 60, rather than at 65, which is the present age of retirement. The appointment, too, could be made preferably for terms of, say, seven years, with the power to extend, rather than making the normal system of appointment run from the age when the man is successful in obtaining the job until he reaches the age limit. In other words, the present system has all the disadvantages of the parson's freehold. It happens all too frequently that chief constables hold their last job for too long a period of time. Most of us would, I believe, consider seven years to be a reasonable period of time, not a term nearer to 20 years.
If I may ask noble Lords to look at the age limit for senior civil servants, ambassadors and servants of the Crown of all kinds, they will find that 60 is the normal age limit, not the age of 65 which at the moment is the retirement limit for chief constables. If we look at the nature of their appointment, it will probably be agreed by many that because of the circumstances of their operational responsibilities, which go round the 24 hours of the day, there should be a younger rather than an older retirement age. It is an anomaly that has been

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left behind in the pattern of the salaries of those in the higher ranks.
I do not wish to dwell on this point. I cannot believe that there is any sound reason for maintaining the age of 65 rather than 60. My last point, upon which I am sure every younger police officer will support me, is that if the retirement age were a little earlier, there would be slightly better promotion prospects. Unfortunately, promotion prospects are at present small enough. The new clause could bring about an improvement in that direction, and that should be considered together with the points I made earlier. I beg to move.
Baroness Trumpington: My noble friend Lord Inglewood has enormous experience of the police. I join my noble friend Lord Elton in paying tribute to his great work over a long period of time for the Special Constabulary. I am rather surprised that in this amendment he is adopting such an inflexible attitude. Therefore I am slightly embarrassed at having to set out the present position relating to the appointment and retirement of chief constables.
The police authority appoints the chief constable, subject to the approval of the Secretary of State. He may retire before the age of 60 with the consent of his police authority. He may retire at any time thereafter at his own wish, and, as my noble friend said, he must retire when he reaches the age of 65. If necessary the police authority, with the approval of the Secretary of State, may call upon him to retire in the interests of efficiency, or the Secretary of State may require the authority so to call upon him. Both these powers are retained by the new clause. The police authority may also dismiss the chief constable, or require him to resign, for disciplinary reasons. What the new clause will add is a fixed period of appointment of seven years and a requirement to resign at the age of 60.
To take the term of appointment first, the new clause makes no provision as to the grounds on which the chief constable's period of office may be extended or terminated. While it does not specify who shall have the power to extend the seven-year term, I assume that my noble friend has in mind the police authority which is the appointing body. I remind the Committee that the chief constable is not a local authority employee subject to the direction of the police authority. He cannot be removed by the police authority except in the circumstances I have described; and then there is a role for the Home Secretary in preventing arbitrary dismissal. But the proposed new clause would allow the police authority to retire a chief constable without explanation and for whatever reason, by simply deciding not to reappoint him.
Our system of policing depends on a very delicate balance of duties and powers shared between a police authority, the chief constable and the Secretary of State. The arrangements were established by the Police Act 1964 and were designed to combine safeguards for the operational independence for chief constables, particularly in enforcing the criminal law, with a measure of local accountability and provisions for accountability in Parliament. That is why my right honourable and learned friend the Secretary of State can call for reports from chief constables on policing matters.
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A limited seven-year appointment for chief constables would in our view alter those arrangements significantly. We expect chief constables to take account of the view of their police authorities in operational decisions, but a chief constable who wished to be reappointed at the end of seven years might be over-influenced by his police authority's views. This could undermine the independence of chief constables in enforcing the criminal law and make it easier for policing to be influenced (and this is a very important point) by political considerations.
Besides these wider considerations, I should make it clear that we do not in any case see any justification for setting a limit to the term of office of chief constables which is not related to a chief constable's ability to perform his duties efficiently. This brings me to the question of retirement. We keep this issue under review but we are not at present convinced that there is any reason to reduce the compulsory retirement age for chief constables to 60. In fact, most chief constables do retire when they are 60 or shortly thereafter.
My noble friend may be interested to know that there are at present only three serving chief constables who have passed their sixtieth birthday. We have no evidence that an earlier compulsory retirement age would be in the interest of the service as a whole. To return to a point made by my noble friend, the present arrangements have not resulted in the blockage of promotions of junior officers.
It may be argued that a long period under the same chief constable may lead a force to become stale; indeed it may, but there is no reason why it should. Once again, it is a matter of efficiency and not of age or length of appointment. I hope that my noble friend will not feel that I am being absolutely horrible, and that he will withdraw his amendment.
Lord Inglewood: I will have to return to this matter on another occasion. I do not want to be rude, but I thought that most of us knew that argument, which we have heard in detail from the Home Office and which has been made to me before in correspondence and in conversation.
There were two points which the department ought to have made but which it left out. First, there was no reference to the commissioner of police for the metropolis. I believe that I am right in saying that he is appointed for a term. There can be one or two other forces in the country where that is possible; so the impossible is in fact possible, I think.
Secondly, there was no comparison with any other grade, such as that of ambassadors, who are persons with the same kind of responsibility, are paid, and all of whom retire at 60—on their sixtieth birthday. Yet all the arguments produced this evening are apparently made to apply to the chief officers of police but leave out all the others who one thought were in this together.
It is too late to go over this again. We might have an Unstarred Question on the subject or a more powerful Motion, a little earlier, another evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 102 and 103 agreed to.
12.15 a.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 171:
After Clause 103, insert the following new clause:
("Functions of special constables in Scotland
. Subsection (6) of section 17 of the Police (Scotland) Act 1967 (restriction on functions of special constables) is hereby repealed.").
The noble Earl said: On behalf of my noble friend Lord Gray of Contin, I beg to move this amendment, and with the leave of the Committee I shall speak also to Amendments Nos. 180 and 181.
Amendment No. 180: Schedule 7, page 123, line 24, column 3, at end insert ("and section I 7(6).")
Amendment No. 181: Clause 113, page 97, line 2, at end insert—
("section (Functions of special constables in Scotland);").
This is a simple, but important, group of amendments. The new clause (Amendment No. 171) repeals Section 17(6) of the Police (Scotland) Act 1967, and Amendments Nos. 180 and 181 are purely drafting consequentials. Section 17(6) specifies that, in Scotland, special constables may be used only in emergencies, for the prevention or supression of riots, or for the purpose of gaining "practical experience of police work". There are no comparable restrictions in the Police Act 1964 relating to the Special Constabulary in England and Wales, and we see an urgent need to repeal the restrictions which apply to Scotland. The three police associations in Scotland and the Convention of Scottish Local Authorities have been consulted and are unanimous in their agreement that this small, but useful, change should be effected. I beg to move.
On Question, amendment agreed to.
Clauses 104 to 106 agreed to.
Clause 107 [Application of Act to Customs and Excise]:
Lord Elton Lord Elton moved Amendment No. 172.
[Printed earlier: col. 112.]
The noble Lord said: I spoke to this with Amendment No. 60—if your Lordships can remember it. I beg to move.
On Question, amendment agreed to.
Clause 107, as amended, agreed to.
Clauses 108 to 110 agreed to.
Clause 111 [General interpretation]:
Lord Elton Lord Elton moved Amendment No. 173.
Page 96, line 15, leave out ("(1)").
The noble Lord said: At present "arrestable offence" is defined by reference to Clause 23(1). However, your Lordships will recall that I explained that that clause was amended in another place to ensure that certain inchoate offences are arrestable offences. As a consequence, the definition in this clause needs to be amended to refer to the whole of Clause 23, rather than to just its first subsection. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 174.
[Printed earlier: col. 568.]
The noble Lord said: I spoke to this with Amendment No. 92. I beg to move.
On Question, amendment agreed to.
[Amendment No. 175 not moved.]
[Amendment No. 176 had been withdrawn from the Marshalled List.]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 176ZA.
Page 96, line 28, leave out ("for an offence") and insert ("either for an offence or under section 136 of the Mental Health Act 1983")
The noble and learned Lord said: Clause 111(2) of the Bill defines a person in police custody as being someone who.
"has been taken to a police station after being arrested for an offence".
I assume that it is from the basis of that definition that there flow such rights as those contained in Clause 54 (the right to have someone informed when arrested) and Clause 56 (access to legal advice). It would therefore seem that Clause 111 excludes, among others, those who are detained by the police under Section 136 of the Mental Health Act 1983. That power enables a police officer to detain in a place of safety for up to 72 hours any person who, in a public place, appears to be mentally disordered. The Mental Health Act 1983 gives such people no safeguards, and it would seem that they ought to be entitled to at least the same safeguards as those offered in this Police and Criminal Evidence Bill.
The section has to be used, alas, extensively in different parts of the country. There is some concern among members of black and ethnic minority communities and women's groups that the power is disproportionately used on members of those groups. The hope therefore is that the special position of those who are presently left out of the existing arrangements will be catered for. It is for that reason that I move this amendment—and, if I may, Amendment No. 176ZB—which would bring those concerned within the protection of the clauses I referred to earlier. I beg to move these two amendments.
Amendment No. 176ZB: Page 96, line 28, leave out ("for an offence") and insert ("either for an offence or under the Mental Health Act 1983")
Lord Elton: These amendments are directed at an entirely laudable aim. I cannot advise your Lordships to accept them as they stand simply because the persons to whom they refer are not detained for an offence. Therefore, the grounds for detention set out in Clauses 35 and 36 would not really apply.
However, I fully agree that we should make quite sure that a person detained on the grounds of mental disorder is, for example, entitled to legal advice and to have his family and friends informed of his detention. In the short time available to consider this amendment I am not able to say precisely how this should be achieved. It may mean that parts of the Bill should be amended or that parts of the code should be altered—or it may mean a judicious mixture of both—but I am happy to undertake to give this matter further consideration so as to ensure that the principle of the amendments is met and, if necessary, to bring forward amendments for this purpose at a later stage.
Lord Elwyn-Jones: I am most grateful and comforted, as will be those concerned, by this belated move in the right direction from the Government Benches. In the circumstances, I ask leave to withdraw these two amendments.
Amendments, by leave, withdrawn.
Clause 111, as amended, agreed to.
Clause 112 [Amendments and repeals]:
Lord Elton Lord Elton moved Amendment No. 176A:
Page 96, line 37, leave out ("III") and insert ("IV")
The noble Lord said: This amendment simply corrects an erroneous reference to Schedule 7. This subsection of Clause 112 should provide that the repeals in Parts II and IV of Schedule 7 have effect only in relation to criminal proceedings. The present version wrongly refers to Parts II and III, and the amendment corrects this. I beg to move.
On Question, amendment agreed to.
Clause 112, as amended, agreed to.
[Amendment No. 176B not moved.]
Schedule 6 [Consequential Amendments]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 177:
Page 110, line 17, at end insert—
("Dogs (Protection of Livestock) Act 1953 (c. 28)
. In the Dogs (Protection of Livestock) Act 1953 the following section shall be inserted after section 2—
"2A.—{1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

(a) that a dog has worried livestock within the meaning of section 1 above; and

(b) that that dog is on the premises specified in the application; and

(c) that any of the conditions specified in subsection (2) below applies,

he may issue a warrant authorising a constable to enter and search the premises for the purpose of examining the dog in question.
(2) The conditions mentioned in subsection (1)(c) above are—

(a) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them;

(b) that entry to the premises will not be granted unless a warrant is produced.".")

The noble Lord said: The purpose of this amendment is to close a loophole in the law, this particular loophole being that a police officer cannot gain entry to a house to search for and identify a dog that has molested livestock. I remind your Lordships that every year over 10,000 livestock deaths, most of them sheep, are caused by dogs. That figure does not include abortions and difficult lambings caused by Fido having a little chase after those sheep. This very simple amendment would help to reduce that number. It will not stop it, but it will help.
Your Lordships may say that a farmer already has the right to shoot a dog that has chased sheep, but in practice, and despite rumours to the contrary, farmers do not in fact shepherd their sheep with a six-shooter or even a shotgun in the back of a van. Most are reluctant in the extreme to shoot a dog. Believe it or not, it is still a fact that most farmers love their dogs as much as Frenchmen love their women. Certainly that
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must be the case so far as your Lordships are concerned.
The result is that more often than not the dog is followed to its home. Sometimes, and more often than not, its home is with a tinker in a gypsy encampment. It is therefore, I suggest, essential, should the occupant object—and I am sorry to say they often do; and I can give examples—for the police to be able to come in to identify the dog. Under the present law the police have no right of entry whatsoever. They cannot even ask a magistrate for a warrant—though of course should the police think that there was the egg of a barn owl, a dead badger or even a budgerigar in a small cage, they could go to the magistrate and get a warrant to enter. I have seen some stupidity in the law, but this about takes the cat, the candle, or whatever one likes.
I will reinforce my point by saying that if Fido bites granny the police cannot even go in to search for him, which is crazy. I am sure that my noble friend Lord Elton will have much personal sympathy for the amendment. He was once a shepherd. Dare I say it?—he was a rather more aggressive shepherd than I was and he was prepared to shoot dogs. I am not. I am looking forward to hearing what set of reasons his department has given him for not accepting my amendment. One reason I will not accept is the promise of future legislation delegating responsibility for dogs to local authorities. The idea—if that is in my noble friend's mind—is so stupid and half baked that it does not even warrant my time, his time or the Committee's time in discussing it. Anyway, such legislation would not be the proper place to correct this anomaly in the law. I beg to move.
12.27 a.m.
Lord Elton: I in no way belittle the problem to which my noble friend has referred. I know what a very horrible feeling it is to have one's flock of lambing ewes worried by a stray dog. I have had that happen. My noble friend says that I am more brutal than him. In the end I had to do something to protect the ewes and the lambs, and it seemed to me that the dog should go. The dog went. That of course was something that I was empowered to do under the existing law, and that is something your Lordships will wish to note in considering my noble friend's proposed amendment.
The other matters your Lordships will wish to note are the existing provisions of the Dogs (Protection of Livestock) Act 1953. as amended by the Wildlife and Countryside Act 1981, which make it an offence either to be the owner or to be in charge of a dog which worries sheep. They do more than that. They make it an offence even if the dog is merely at large in a field where there are sheep and taking no notice. The maximum penalty for that offence is now £400; and there are also civil remedies available to the farmer.
It is indeed true that the offence under the 1981 Act is not covered by a power of search, but I take leave to wonder to what extent it would assist in tackling the problem—whether the loss and suffering caused by the negligence of dog owners would be reduced—if the specific entry powers set out in my noble friend's amendment were available to the police. What it does is to have the police apply to a justice for a warrant when they expect the owner of the dog not to cooperate with the search.

1027
What are the grounds for which the warrant could be issued? They are the grounds that it is reasonable to believe that a dog has worried livestock and that it is on the premises to be searched, and the warrant would authorise the police to search the premises,
"for the purpose of examining the dog in question".
Would this enable the police to bring more cases to court or to prosecute cases which did come to court more effectively? Presumably, the purpose is to establish an evidential link between the dog and a specific instance of livestock worrying.
But how would the examination of a dog by a police officer establish such a link or otherwise add to the evidence already available? Because the power is not a power to seize the dog; it is a power to examine the dog—that is what my noble friend has asked for. It is not clear to us that the proposed power would be useful in any large number of cases or very directly.
It is true—and I know my noble friend is expecting me to say this and was perhaps expecting me to advance it as the principal reason for resisting his amendment—that the Government pay the closest attention to any proposal to grant additional powers of entry. I think that is right. We would not shy away from the creation of a power which would make a significant difference to effective enforcement, but we should have to be persuaded that such a power would make a significant difference to police effectiveness. At our present state of knowledge, I am not convinced of that and I do not believe that the National Farmers' Union has produced a body of evidence for the likely beneficial results if this power was granted. If my noble friend was able to convince me or my honourable friend between now and Report stage that there was such compelling evidence, no doubt he would wish very much to consider it before the Report stage, but without it I cannot give a more friendly answer.
Lord Gibson-Watt: I wonder whether my noble friend would go a little further than that. I think the amendment which my noble friend Lord Stanley has tabled is a very worthwhile one and, as I understand it, it has the full support of the National Farmers' Union, who of course have great experience in this matter. With respect, the Minister's answer did not quite cover the point. We all know that you can shoot a dog that is worrying your sheep, but, as my noble friend said, we do not normally stalk about with shotguns when we are looking after our sheep. In any case, we do not very much like shooting dogs.
What happens if the dog heads for home, leaving the lambs dead and bleeding on the field, and gets into Mrs. So-and-so's house? What does the farmer do? The farmer cannot very well do much about it. If the Minister is saying that there must be no-go areas—because that is what it amounts to: the police are not allowed to go in, even with a warrant, as they could under the provisions of this amendment—then over and over again a dog which harasses and worries sheep is going to be undetected and not brought to book.
My noble friend made what I thought were some quite sympathetic noises about Report, but between now and then I would ask him and his noble friends in the Ministry to realise what the situation is in certain parts of the country. I see plenty of Welshmen in the
1028
Chamber tonight. In Wales there are more sheep than people. This is a matter on which I, for one, would support what my noble friend has said. My noble friend the Minister has shown infinite patience through the discussions on this Bill, and I would urge him to take this matter on board.
Lord Elystan-Morgan: The noble Lord, Lord Stanley, raises the fascinating question of whether farmers in England love their dogs more than their wives. I am sure that that is a topic which could well occupy the time of this Chamber, but I trust on another occasion. The noble Lord the Minister asks the question what purpose would be served by having the dog examined by a police officer. I believe that there is every practical purpose. If a dog has been worrying sheep, unless that dog has been very, very carefully washed I would have thought that for a matter of a day or two a swab of blood from the mouth area or a tuft of wool would facilitate a forensic examination that would link a dog with a killing, if the dog was the dog that had killed.
As a countryman with strong farming connections, much as I personally dislike to see any power of entry extended, I take the view that this power is far more necessary and far more meritorious than many powers that have already been granted to police officers by this particular Bill. I know the damage that dogs can do, and I well know the distress that can be caused on that account.
I know, too, of the suspicion that can be like a poisonous cloud over a farming community for a long time after a substantial case of killing has taken place. Few things are more disruptive of that confidence that is so essential to a rural community than a bad case of sheep killing. In these circumstances, so far as the Queen's peace in that community is concerned, the power to enter and search is at least as important as the power to enter and search for a stolen vehicle. On that basis, with great sincerity, I ask the Minister to consider the matter again.
Lord Hooson: I would like to support the noble Lord, Lord Stanley. This seems to me a very practical and sensible amendment. Of course, it will not often be used because its use will not often be necessary. But it is important in certain cases. The fact that the power exists can have an influence on people who otherwise would resort to shutting their dogs away. In the close vicinity of towns, many people keep sheep. There is a great deal of dog-worrying of sheep, not necessarily the killing directly of sheep but the worrying of them.
I know of one or two cases where people have identified dogs, or thought they have done so, and have given a good description to the sergeant of police, who has been unable to do anything about it. He probably knows where the dog is kept but he cannot search for it. The power to examine is most important. If he can examine and has had a detailed description of the dog, the very examination may lead to the solution of the problem. I hope that on Report the Government might find it possible to accept this amendment.
Lord Elton: I had always supposed that my noble friend Lord Gibson-Watt was himself a Welshman because it was in Wales, I believe, that I first encountered him. I understand now that he speaks of

1029
them as though he was not. He asks me what would happen if a dog retired into a private home and the policeman had no power to search. I should have added to the list of the powers available the Dogs Act 1906, which provides that where a dog is proved to have injured cattle or chased sheep, it may be treated as a dangerous dog under Section 1 of the Dogs Act 1871, which means that the court may order it to be kept under proper control or to be destroyed.
So there is a way forward, although I am not saying that it is the way forward that possibly my noble friend Lord Stanley of Alderley is recommending. I have only one other thought because I shall obviously take these concerns to my right honourable friend. I am sure that I shall also hear further from my noble friend in the interim. If the object of the search is to find flecks of blood or tufts of wool, two things occur to me. One is that the search, if a constable has to go to a magistrate to get a warrant before it takes place, may be too late. The other is that, in my experience, much the greatest damage is not done by dogs that eat sheep but by dogs that run yapping after sheep and have a lovely time. The sheep abort the next day or the day after that, and the damage is done. Fido goes home and pants happily at his mistress, who thinks that he has been chasing rabbits.
It is late. We have talked enough. My noble friend is talking to someone who at least understands sheep, dogs and sheep worrying. I undertake to do what I can to consider the matter further but without any commitment.
Lord Stanley of Alderley: I must thank all noble Lords for their great contribution. They did much better than I could have done. I shall not delay the Committee except to say that I shall bring this back at Report stage. I would make one or two comments in so far as my noble friend says that he wonders whether the amendment would help. I shall send him between now and Report examples of difficulties that the police have experienced through not being able to enter. My objective is the same as that of other noble Lords. A point made by the noble Lord, Lord Elystan-Morgan, brought home to me a case that occurred in my own village, where the enmity, not between dogs but between individuals, became very unpleasant indeed. Therefore, I think this would have helped. In regard to the reply which my noble friend gave to my noble friend Lord Gibson-Watt, I would say, "Okay. The Act works, but first find the dog". I am trying to get the police officer to come in and make a positive identification.
I will not delay the Committee, but I want to ask my noble friend to think about one point when he goes away. At the moment police do enter and find these dogs. They think up—and great credit to the police, I say—an excuse to go in, but the whole purpose of this Bill, if I may say so—I am not an expert in the law like noble Lords opposite—is to make sure that the police do not push their luck, as I, as a farmer, would put it. They should act within the law, and here would be a case where they could act within the law. Within the philosophy of the Bill, the police can go so far, but no further.
I will now leave the matter to my noble friend. I beg him to consider it seriously. I know he does regard it
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seriously. In fact, at this time of night I could say that I know he is with me, because he has been a shepherd. It is not a Welsh trick tonight, because every single person who has spoken on this amendment has come from Wales. That includes my noble friend Lord Elton, who, as your Lordships will remember, during the devolution Bill, according to the noble and learned Lord, Lord Elwyn-Jones, became a naturalised Welshman. At this stage, I beg leave to withdraw this amendment.
Lord Elwyn-Jones: Perhaps the Lord who is also our Shepherd will think well of this.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 178:
Page 110, line 17, at end insert—
(" Sexual Offences- Act 1956 (c. 69)
. At the end of section 41 of the Sexual Offences Act 1956 (power to arrest in cases of soliciting by men) there shall be added the words "but a constable may only do so in accordance with section 24 of the Police and Criminal Evidence Act 1984.".").
The noble Lord said: Your Lordships will know that at present the police have power to arrest a man for the offence of soliciting or importuning, under Section 41 of the Sexual Offences Act 1956. It has always been our intention that, in future, the power of arrest for this offence, in common with other offences of a relatively minor character, should arise under Clause 24; that is to say, that the normal means of prosecution should be by way of summons and that the power to arrest should arise only when service of a summons is impracticable or inappropriate.
This amendment ensures that that is so. The terms of Section 41 of the 1956 Act are cast widely, and without the addition of the words proposed in the amendment there would be doubt over whether a constable could or could not arrest under that Act. In our view the powers bestowed on constables by Clause 24 are more than adequate to deal with this offence. The amendment will ensure that arrests by constables are under the Bill and not the 1956 Act. I beg to move.
On Question, amendment agreed to.
[Amendment No. I78ZA had been withdrawn from the Marshalled List.]
Lord Elton Lord Elton moved Amendment No. 178A:
Page 116, line 25, leave out ("and 66") and insert ("to 67").
The noble Lord said: This amendment corrects a consequential amendment to the Value Added Tax Act 1983. The 1983 Act is being amended to take account of the documentary and computer evidence provisions in the Bill, and the amendment ensures simply that the reference in that Act to the provisions of this Bill is an accurate one. I beg to move.
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 [Repeals]:
Lord Elton Lord Elton moved Amendment No. 178B:
Page 122, leave out lines 6 and 7.
The noble Lord said: When this Bill was considered in Committee in the other place the discussion about the competence and compellability of spouses led to

1031
agreement that this Act, which in 1972 the Criminal Law Revision Committee described as obsolete and serving no useful purpose, should not be on the statute book. When I say, "this Act", I am referring to the Evidence Act 1877. This provision met that concern, but the repeal itself is unnecessary as the 1877 Act was repealed by the Statute Law (Repeals) Act 1981. This amendment deletes that repeal. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 179:
Page 123, line 21, at end insert—

("34 & 35 Vict. c. 96.

Pedlars Act 1871.

In section 18, the words from "or" where secondly occurring to "Act," and the words from "and forthwith" to the end of the section.")

The noble Earl said: On behalf of my noble friend Lord Gray of Contin, I beg to move Amendment No. 179. At the same time, and with the leave of the Committee, I should like to speak also to Amendments Nos. 182, 183, 184 and 185.
Amendment No. 182: Page 97, line 3, leave out ("and")
Amendment No. 183: Page 97, line 4, at end insert—
(", and
section 112(2), so far as it relates to the provisions of the Pedlars Act 1871 repealed by Part VI of Schedule 7.")
Amendment No. 184: Page 97, line 14, leave out ("and")
Amendment No. 185: Page 97, line 15, at end insert—
(", and
section 112(2), so far as it relates to section 19 of the Pedlars Act 1871.")
These amendments to the extant clause, that is, Clause 113, make it clear that the repeal of Section 19 of the Pedlars Act 1871, provided for in Clause 7 of, and Schedule 7 to, the Bill, applies to Scotland as well as to England and Wales, and makes minor consequential and other adjustments to Section 18 of the 1871 Act. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 180:
[Printed earlier: col. 1023.]
The noble Earl said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 7, as amended, agreed to.
Clause 113 [Extent.]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 181:
[Printed earlier: col. 1023.]
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendments Nos. 182 to 185:
[Printed above.]
The noble Earl said: It might be helpful if I move Amendments Nos. 182 to 185 en bloc. I beg to move.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 186:
Page 98, line 4, at end insert ("in section 111, the definition of "document";").
The noble Lord said: This amendment is a tidying up measure and as the next amendment will not, I understand, be moved, I think that we shall all shortly be tidied up. I do not think that I need dilate upon it further. I beg to move.
On Question, amendment agreed to.
Clause 113, as amended, agreed to.
Clause 114, [Commencement]:
[Amendment No. 187 not moved.]
Clause 114 agreed to.
Clause 115 agreed to.
House resumed: Bill reported with the amendments.

Valerie Mary Hill and Alan Monk (Marriage Enabling) Bill [H.L.]
Bill, in the form approved by the Personal Bills Committee, presented and read a first time.
House adjourned at twelve minutes before one o'clock.