§ 2.59 p.m.
§ Report received.
§ Clause 2 [Provisions relating to search under s.1 and other powers]:
Lord Elton moved Amendment No. 1:
Page 4, line 23, leave out ("and").
§ The noble Lord said: My Lords, in Committee I undertook to bring forward amendments which would ensure that the driver of a vehicle which had been searched in his absence from it should be in a position to find out not just that it had been searched but also why and whether anything had been taken from it. These amendments meet that undertaking by ensuring that the notice which the police have to leave on the vehicle draws the driver's attention to his entitlement to a copy of the record of the search under Clause 3(8). That record will have to include a note of the grounds for the search and also whether anything was either seized or damaged. This seems to me to be a sensible new safeguard. I beg to move.
§ Lord Gifford
My Lords, may I rise to welcome this amendment which I believe derives from a suggestion that I and my noble friends made in Committee? We hope that during the passage of the Report stage of this Bill we will contine to do as well as, apparently, we are starting off; although, seeing the later amendments, I have to express some doubts. Still, we welcome the progress we have made on this amendment.
§ Lord Elton
My Lords, I am glad to acknowledge the qualified optimism of the noble Lord opposite. I should have told your Lordships that Amendments Nos. 1 and 2 hang together, so that I have spoken to No. 2 as well.
On Question, amendment agreed to.
Lord Elton moved Amendment No. 2:
Page 4, line 26 at end insert—
(d) stating the effect of section 3(8) below;")
§ On Question, amendment agreed to.
§ Clause 4 [Road checks]:
Lord Gifford moved Amendment No. 3:
Page 6, line 20, at end insert—
("(1A) This section shall also have effect in relation to the conduct of road checks for the purpose of preventing persons from travelling to a place where a breach of the peace is occurring or is likely to occur.").
The noble Lord said: My Lords, in moving Amendment No. 3, which deals with the clause of the Bill concerning road blocks, may I also take Amendments Nos. 8, 9 and 11?
Amendment No. 8: Page 7, line 9, at end insert—
("(4A) An officer may only authorise a road check under section (1A) above if he has reasonable grounds for believing that it is necessary to do so in order to save life or limb or to prevent serious damage to property.").
Amendment No. 9: Page 7, line 13, at end insert ("or in section (1A) above.").
Amendment No. 11: Page 8, line 16, leave out ("subsection (1)") and insert ("subsections (1) and (1A)").
§ These amendments are on exactly the same point. Clause 4 of the Bill brings under certain controls the powers of the police to carry out what are described in the Bill as "road checks" and which the public know of and often refer to as road blocks. Although at Committee stage I expressed a number of reservations as to how this clause would work, on reflection I appreciate the point made by the noble Lord, Lord Elton, in Committee; that is, that the clause had the advantage of bringing under control powers which at present are vague, undefined and expressed only in general terms. Although we shall have to see with experience whether the bringing of such powers under the control of the Bill works benefits, I accept the general objective which the noble Lord initiated in Committee and have not sought to press amendments which I have moved before.
§ But, following the logic of the Government's position, I seek by these amendments to draw your Lordships' attention to a different kind of road block set up for a different kind of purpose, that is to say, the purpose of preventing persons from travelling to a place where a breach of the peace is occurring or is likely to occur. As I understand it, the police either have power, or certainly believe they have power, to set up road checks when people are travelling to a place where the police believe there is going to be some disturbance of the peace. We know from recent experience that that power is being widely used in connection with the present miners' strike.
§ The question that I pose in this amendment is this. If it is right to control the setting up of road checks in the cases set out in Clause 4(1) of the Bill for those purposes, why is it not also right to control such road blocks when they are set up for other purposes, and particularly for the purpose to which I draw attention? Recent events have shown the need for such control. In the course of the past few months, police forces in different parts of Britain have undertaken a series of road-block operations which are unprecedented in peacetime in a effort to stop miners who are on strike from going to pickets and demonstrations around the country. Whole counties have been sealed off, exits from the M.1 motorway have been blocked, and even the Dartford Tunnel was the subject of a road check when it was sought to stop people travelling from Kent on their way north to attend pickets or demonstrations.
§ What is happening is that people are being turned back from travelling upon the highway if the police believe that they are going to attend a picket or a demonstration. I have seen the effect of these road blocks in Nottinghamshire. Quite irrespective of whether there is in fact any disturbance of the peace or any violent demonstration going on, at corner after corner there is a posse of police officers ready to turn back people whom they think are proceeding to a colliery in order to take part in a picket. It reached one stage where clients coming to court were stopped along the roads to the court and then disbelieved when they said that they were on their way to court. I mention this not so much to ask your Lordships to take a view as to whether that kind of control should be lawful or should not be lawful, but to emphasise that it is time that it was brought within some kind of legal certainty and control. At the moment the whole question is at 167 large. We do not know what are the limits of the powers of the police to exercise road blocks for this purpose.
My amendment seeks to try to give some definition so that both police and public know where they stand. I would submit that if what is in question is the interference with the right that we all possess to travel upon the Queen's highway, then that interference should take place only if there is reason to believe that a serious breach of the Queen's peace is taking place somewhere in the vicinity. My amendment, in the words of Amendment No. 8, seeks to limit the powers of the police to authorise road checks for this purpose in cases where the officer has
reasonable grounds for believing that it is necessary to [authorise a road check] in order to save life or limb or to prevent serious damage to property";
in other words, if a serious disturbance of the peace is in progress. So it is not permitted, purely because some demonstration which may or may not be peaceful is taking place, that this power to corral vehicles of suspected miners (miners who are suspected of going to a demonstration) be used in the untrammelled way that is happening at the moment. People in Nottinghamshire and other counties are quite appalled at the extent to which their movements are being curtailed by the use of powers which the police believe they possess.
§ I ask the noble Lord, Lord Elton, in his reply, first of all if he could tell us what the Government believe to be the present limits, if any, upon the powers of the police to set up road blocks for the purpose of stopping people from going to the area of a demonstration or a picket; and, secondly, to tell us why it is that that purpose, that set of circumstances, has not been made the subject of the controls set out in this Bill along with the other purposes which are set out in Clause 4. We now have, for those other purposes, the necessity for a superintendent to give the order except in cases of urgency, the need to keep records, the need for a time limit on the road block, which can be renewed; and various other checks which the Government have thought sensible. Why should not these checks be imposed upon these other powers which are now, in my submission, being far too widely exercised? I beg to move.
My Lords, may I make just one short comment? Here we are at the beginning of the debate seeing one of the major difficulties with which we will have to contend through the next few days in terms of the detail and precision of the Bill, which we must ensure is correct, not least where it defines police powers. The whole essence of policing in western countries, and probably most of all in this country of ours, is that police officers, junior as well as senior, exercise their discretion every single day. A great many of the powers that they exercise or purport to exercise are common-sense ones which we all applaud. Here we are at the moment between the two different positions and I am afraid that what we have to try to do is to come to a common-sense conclusion at the finale.
§ Lord Campbell of Alloway
My Lords, very briefly, this amendment is designed to serve as a charter of free passage for the flying picket. Intimidation can be 168 achieved by sheer weight of numbers without resort to the commission of any serious criminal offence. This fact was recognised by the Transport and General Workers' Union code of practice under the Callaghan Administration. It has been recognised by the Trades Union Congress and it would be quite wrong to support this amendment because it interferes with the exercise of what has been described as a necessary police discretion. I oppose it.
§ Lord Plant
My Lords, I oppose this amendment for similar reasons. I speak on behalf of the police organisations. They certainly would oppose this further manacle on their activities. My noble friend Lord Gifford has said that this would prevent the police from doing much of what they have done in relation to flying pickets. The police job is hard enough without us erecting further barriers. Therefore I shall vote against this amendment.
§ Lord Donaldson of Kingsbridge
My Lords, I just wonder whether we could accept this amendment but not Amendment No. 8. Might we not be better off with this amendment in the Bill but Amendment No. 8 not in?
§ Lord Elwyn-Jones
My Lords, I should like to support what the noble Lord, Lord Donaldson, has said and speak in support of Amendment No. 3. In regard to road checks provided for in Clause 4 there is a requirement that certain formalities have to be complied with. A road check, an interference with the right of passage, is after all a serious matter. It can be an immensely inconvenient matter for those immediately affected and those indirectly affected. That is why the Government believe it fit and proper that where road checks are set up there should be authorisation; an authorisation at a responsible level.
Clause 4(3) states:subject to subsection (5) below, there may only be such a road check if a police officer of the rank of superintendent or above authorises it"—save in circumstances of urgency which are separately provided for. In the context of the road checks that are and have been taking place, it may be that there was authorisation. I do not know. Perhaps when the noble Lord the Minister comes to reply he will tell us whether there was authorisation by superintendents in the respective areas when men were moving, but what we submit is that there should be. This is an issue of considerable importance at the present time. The use of this power has undoubtedly caused a good deal of trouble—if I may use a modest word. Therefore it would seem to be reasonable and in accordance with maintaining the right of passage of the individual that where there is a road block other than in circumstances of urgency there should be authorisation by a senior and responsible officer. So I would be disposed to support Amendment No. 3.
§ Lord Elton
My Lords, the convention of the House is that the mover of the amendment has the right of reply. I must of course address myself to what the noble Lord, Lord Gifford, has moved, which is the group of amendments which includes Amendments Nos. 3 and 8. But before I conclude I will refer also to the separate proposal put forward by the noble Lord, 169 Lord Donaldson, and the noble and learned Lord, Lord Elwyn-Jones.
The amendments in the group would extend the scope of Clause 4 to include the power of the police to obstruct a road to all or certain vehicles in pursuance of their general duty under common law to maintain the Queen's peace and prevent public disorder. The power to turn back vehicles in the way that we have seen in the past few months is a question that is at present sub judice since it is due to come before the Divisional Court by way of a case stated against the conviction of a number of persons arrested as the result of the obstruction of a road. I therefore cannot comment on the interesting question of whether or not the noble Lord, Lord Gifford, is actually seeking in these amendments to entrench in law a power whose existence at present he might dispute. But having put that thought in his mind, I set it aside.
Under these amendments, a road check set up for the purposes of preventing persons travelling to the location of a breach or anticipated breach of the peace could be authorised only if there were reasonable grounds for believing that damage to life or limb, or serious damage to property, might otherwise occur. That is proposed in the new subsection (4A). But a breach of the peace may occur without involving either serious injury or serious damage to property. The question of the definition of a breach of the peace was considered by the Court of Appeal in Regina v. Howell. The Court held that,there is a breach of the peace wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance".So the trouble with these amendments is that they make a nod in the direction of primary duty of a constable—to preserve the peace—and then disable him from performing it by requiring him to consider not whether a breach of the peace is in question, but whether life or limb or property are seriously endangered. It is possible—with difficulty—for a court or jury after the event to judge with some accuracy the degree of harm likely to attend a course of conduct. But the police can only honestly judge that there is likely to be trouble. If missiles are used, then more serious injuries are likely than if they are not. If arson is involved then the harm is likely to be correspondingly greater. But what the police can know, without being as specific as the amendment would demand, is that there will likely be a breach of the peace. It is then their task to deal with it. They should not be obliged to predict how serious the trouble may be—how those threatened may react, what incitement there may be. These are powers to preserve the peace, and should not be subjected to the kinds of tests more appropriate for the definition of criminal offences.
I am not sure that it is profitable to extend my discursus to include the references of the noble Lord to Nottinghamshire, where he said he had seen the effects of road checks and that they caused inconvenience. Most of your Lordships will have seen on television the massive violence and dangerous assemblies of people acting as pickets and I think will agree that the people of Nottingham find those much more appalling than any impediment to local travel, and would further 170 agree with me that the power to check vehicles under this Bill for that purpose is needed. But that is not the nub of what the noble Lord is addressing himself to.
In the Government's view the amendments proposed by the noble Lord, Lord Gifford, would therefore artificially constrain the ability of the police to take such reasonable steps as are necessary to prevent breaches of the peace. I say this without in any way prejudging the question whether some sort of statutory codification of these powers might be desirable, or whether some such device as proposed by the noble Lord, Lord Donaldson, and the noble and learned Lord, Lord Elwyn-Jones, ought not to be considered, because your Lordships will know that we have for some time been engaged on a thorough review of the law in this area. We shall be publishing our conclusions in due course, in the light both of responses to our Green Paper on public order issues and of more recent events; and I believe that it would be premature for your Lordships to seek to legislate piecemeal in this area in advance of an opportunity to consider the public order picture as a whole. So I regret that I cannot welcome these amendments to the present Bill. The time for legislation on these issues, if it arrives, will come in the wake of the public order review, and I must ask your Lordships to await that occasion and not now put into this Bill something which may be quite at odds with any later legislation that may be required.
§ Lord Mishcon
My Lords, I am hoping that your Lordships will not be confused by the reply of the noble Lord the Minister to this amendment. I hope, too, that your Lordships will have in mind that we are considering merely Amendment No. 3. I have the authority of the noble Lord, Lord Gifford, to say that on this occasion certainly he will not be moving Amendment No. 8. That means there is no need for any of us to consider whether there is any limitation to be placed upon a superior officer when authorising a road check in these circumstances. That superior officer has to consider merely whether there is likely to be a breach of the peace. He has not to consider whether or not there is danger to life or limb or serious risk of damage to property.
The noble Lord the Minister spoke in two terms, if I may say so; one on the last occasion and one on this. On the last occasion, as I understood it, he was saying that the police, quite obviously, have to move very quickly on occasions and it may not therefore be easy to obtain the sanction of an officer, be he superintendent or be he inspector.
Let us consider what we are in fact enacting. If we look at Clause 4 of the Bill, we see that we are stipulating that the authority of a superior officer has to be obtained when somebody who is thought to have been a witness to an offence may get through the traffic unless there is a road check of this kind. That applies even to a person intending to commit such an offence, or a person who is unlawfully at large. One should have thought that a mass activity leading towards a breach of the peace would be likely to attract much more police consideration than would any of the examples I have just given.
I hope that, if I speak of confusion, nobody will think in terms of authorising an amendment of this 171 kind and thereby sanctioning some of the lamentable scenes which all of us have seen depicted on television screens and which each and every one of us in this House regrets and hopes do not occur again. That is a view which all of us share. None of us countenances violence of any kind, from whatever source it may come; and when we talk of picketing, all of us on these Benches think in terms of peaceful picketing. That is the only kind of picketing that any one of us would sanction if we were asked to do so.
The next thing the noble Lord now says is: "You know we are considering the whole question of public order. Don't put this provision in now. Don't put in a provision about a road check having to be sanctioned by a police officer". My Lords, if ever there was the need for such a provision, it is now—and not just because of a coal strike, but also because this is the one situation, above all others, that is likely to create misunderstanding and dissension.
You will not get dissension if you tell a group of motorists that you are trying to find a witness because somebody has just been killed or severely injured, or that somebody is at large who should not be. But anger will arise if people are told in one area of our country that there is a road check because it may be that there will be a breach of the peace in another part of the country. That is what is now going to cause misunderstanding.
I come to the third, and last, point that I wish to make. The noble Lord the Minister, with that acuteness of mind for which he is very well known, said that maybe the mover of this amendment is putting into the law something which may not be there, because there is a case under consideration. Whatever may be the decision in that case—and I shall not comment upon it—I believe that your Lordships will consider that when we are codifying the law concerning road checks is the time when such a provision ought to be inserted, regardless of whether or not it already exists in our law. We are in favour of road checks in these circumstances, but with the appropriate protection that there should be proper police sanction so that there are not made silly decisions which can cause so much disquiet, so much disturbance, and so much in the way of a "wrong impression", if I may use a moderate term. We are considering merely Amendment No. 3. I repeat that there is nothing else which your Lordships are being asked to decide at this moment.
§ Lord Elton
My Lords, perhaps the noble Lord will forgive me; he has only two shots in his locker and, if your Lordships give me leave, I may speak again. It would be discourteous and wrong of me to speak after the noble Lord has had what should, rightly be the last word. I want to say merely this to your Lordships. A great deal of what the noble Lord, Lord Mishcon, said has considerable force in common sense, and is attractive. Indeed, when I first saw this group of amendments I thought there was something attractive in it. By separating out the first of the amendments 172 your Lordships have removed much of what I found unattractive.
But we are left with what is not a debating point, but a serious legislative point; and it is as follows. We have been engaged in a very careful—that is to say, a very long—review of the public order powers and in particular the powers in the common law. We are about to produce a document on this, and it seems to me that it would be a mistake both to anticipate one small slice of what may. quite properly, be contained in legislation which emerges as a result of discussion following that document, and to begin legislation to codify (which is what it would amount to) common law powers in the statute law in this area. We are not debating the disgraceful scenes in Nottingham. We are debating how we shall best legislate, not for this year, or for this decade, but for a generation, and I hope that your Lordships will think it would be wiser to do that in the fullness of time and to rely on the other benefits of this legislation that are available to us.
§ Lord Elwyn-Jones
My Lords, I am grateful to the noble Lord for giving way. Legislation regarding road blocks is an integral part of this Bill. Surely in the context of legislation to deal with road checks, it is legitimate to include now some important aspect of that problem and that part of the law.
§ Lord Elton
My Lords, although I had sat down, I shall treat that as a question, thus rendering it in order, and arrange myself as though I had not sat down. The difference is that the powers to stop contained in the Bill are for different purposes and the purpose here addressed is a common law purpose, not a statutory purpose. It falls within the ambit of our review of the common law public order powers which I am asking your Lordships to treat as an integral whole and not to eat into at this point. Now, my Lords, I really am sitting down.
§ Lord Gifford
My Lords, perhaps I may confirm what was said by my noble friend Lord Mishcon; namely, that, having listened to the debate, I shall not seek to move Amendment No. 8. If your Lordships accept Amendment No. 3, I shall seek to move only Amendments Nos. 9 and 11, which are purely consequential upon Amendment No. 3. Whether or not any limitation is required of the kind adumbrated in Amendment No. 8, is a question that I shall not raise today, but will consult upon in time for another stage.
I cannot improve on the points made by my noble friend Lord Mishcon. The essence of this amendment, (No. 3) was, I believe, taken up by the noble Lord, Lord Inglewood, when he talked about the difficulties that police officers faced when vague, ill-defined powers had to be exercised by the humblest officer. What this amendment seeks to do is exactly what Clause 4 seeks to do in other contexts; that is, to bring under a system of legal control the power to impose a road block, which is an interference with liberty. Is that not better than to leave it vague for every junior officer to interpret as and when he wants?
§ 3.31 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 90; Not-Contents, 150.
|DIVISION NO. 1|
|Airedale, L.||Llewelyn-Davies of Hastoe, B.|
|Ardwick, L.||Lloyd of Kilgerran, L.|
|Attlee, E.||Lockwood, B.|
|Aylestone, L.||McIntosh of Haringey, L.|
|Banks, L.||McNair, L.|
|Barnett, L.||Mais, L.|
|Beswick, L.||Melchett, L.|
|Birk, B.||Milford, L.|
|Blease, L.||Mishcon, L.|
|Blyton, L.||Mulley, L.|
|Boston of Faversham, L.||Nicol, B.|
|Bottomley, L.||Oram, L.|
|Brooks of Tremorfa, L.||Phillips, B.|
|Bruce of Donington, L.||Ponsonby of Shulbrede, L.|
|Carmichael of Kelvingrove, L.||Prys-Davies, L.|
|Cledwyn of Penrhos, L.||Rathcreedan, L.|
|Collison, L.||Rochester, L.|
|David, B. [Teller.]||Ross of Marnock, L.|
|Dean of Beswick, L.||Sainsbury, L.|
|Donaldson of Kingsbridge, L.||Sefton of Garston, L.|
|Donnet of Balgay, L.||Serota, B.|
|Elwyn-Jones, L.||Simon, V.|
|Ennals, L.||Stallard, L.|
|Ewart-Biggs, B.||Stedman, B.|
|Ezra, L.||Stewart of Alvechurch, B.|
|Falkland, V.||Stewart of Fulham, L.|
|Foot, L.||Stoddart of Swindon, L.|
|Gallacher, L.||Stone, L.|
|Gifford, L.||Strabolgi, L.|
|Glenamara, L.||Strauss, L.|
|Gormley, L.||Taylor of Blackburn, L.|
|Gosford, E.||Taylor of Gryfe, L.|
|Gregson, L.||Taylor of Mansfield, L.|
|Grey, E.||Tordoff, L.|
|Grimond, L.||Underhill, L.|
|Hampton, L.||Wallace of Coslany, L.|
|Hatch of Lusby, L.||Wedderburn of Charlton, L.|
|Hemingford, L.||Wells-Pestell, L.|
|Hunt, L.||Whaddon, L.|
|Jacques, L.||White, B.|
|Jenkins of Putney, L.||Wigoder, L.|
|Kaldor, L.||Winchilsea and Nottingham,|
|Kirkhill, L.||Winterbottom, L.|
|Leatherland, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Carnegy of Lour, B.|
|Alexander of Tunis, E.||Cathcart, E.|
|Allerton, L.||Chelwood, L.|
|Alport, L.||Clancarty, E.|
|Ampthill, L.||Cockfield, L.|
|Annan, L.||Coleraine, L.|
|Avon, E.||Colville of Culross, V.|
|Bellwin, L.||Constantine of Stanmore, L.|
|Beloff, L.||Cork and Orrery, E.|
|Belstead, L.||Cottesloe, L.|
|Berkeley, B.||Cox, B.|
|Bessborough, E.||Craigavon, V.|
|Blake, L.||Daventry, V.|
|Boardman, L.||Davidson, V.|
|Bolton, L.||De Freyne, L.|
|Boyd-Carpenter, L.||De La Warr, E.|
|Broxbourne, L.||Denham, L. [Teller.]|
|Caithness, E.||Denning, L.|
|Cameron of Lochbroom, L.||Drumalbyn, L.|
|Campbell of Alloway, L.||Ebbisham, L.|
|Campbell of Croy, L.||Eccles, V.|
|Effingham, E.||Molson, L.|
|Ellenborough, L.||Monk Bretton, L.|
|Elliot of Harwood, B.||Morris, L.|
|Elton, L.||Mottistone, L.|
|Enniskillen, E.||Munster, E.|
|Faithfull, B.||Northchurch, B.|
|Gardner of Parkes, B.||Nugent of Guildford, L.|
|Gisborough, L.||O'Brien of Lothbury, L.|
|Glanusk, L.||Onslow, E.|
|Glenarthur, L.||Penrhyn, L.|
|Gormanston, V.||Peyton of Yeovil, L.|
|Granville of Eye, L.||Plant, L.|
|Gray of Contin, L.||Portland, D.|
|Greenway, L.||Rankeillour, L.|
|Gridley, L.||Reilly, L.|
|Hailsham of Saint||Renton, L.|
|Marylebone, L.||Renwick, L.|
|Halsbury, E.||Rochdale, V.|
|Harmar-Nicholls, L.||Rugby, L.|
|Hayter, L.||St. Aldwyn, E.|
|Henley, L.||St. Davids, V.|
|Hill of Luton, L.||Saltoun, Ly.|
|Hives, L.||Sandford, L.|
|Home of the Hirsel, L.||Savile, L.|
|Hood, V.||Seebohm, L.|
|Hornsby-Smith, B.||Selkirk, E.|
|Hunter of Newington, L.||Sempill, Ly.|
|Hylton-Foster, B.||Sharples, B.|
|Ilchester, E.||Skelmersdale, L.|
|Inglewood, L.||Somers, L.|
|Ingrow, L.||Spens, L.|
|Killearn, L.||Stamp, L.|
|Kilmany, L.||Stodart of Leaston, L.|
|Kinloss, Ly.||Stokes, L.|
|Kinnaird, L.||Strathcarron, L.|
|Kinnoull, E.||Strathspey, L.|
|Kitchener, E.||Suffield, L.|
|Lane-Fox, B.||Swinton, E. [Teller.]|
|Lauderdale, E.||Taylor of Hadfield, L.|
|Lloyd of Hampstead, L.||Thomas of Swynnerton, L.|
|Long, V.||Tonypandy, V.|
|Lothian, M.||Tranmire, L.|
|Lucas of Chilworth, L.||Trefgarne, L.|
|McAlpine of West Green, L.||Trumpington, B.|
|McFadzean, L.||Tryon, L.|
|Macleod of Borve, B.||Ullswater, V.|
|Mancroft, L.||Vaux of Harrowden, L.|
|Margadale, L.||Vickers, B.|
|Marley, L.||Vivian, L.|
|Marshall of Leeds, L.||Westbury, L.|
|Maude of Stratford-upon-||Whitelaw, V.|
|Avon, L.||Windlesham, L.|
|Middleton, L.||Wynford, L.|
|Milverton, L.||Yarborough, E.|
|Minto, E.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 3.39 p.m.
Lord Elton moved Amendment No. 4:
Page 6, line 36, leave out ("was") and insert ("were").
The noble Lord said: My Lords, in moving Amendment No. 4 I will, with your Lordships' leave, also speak to Amendments Nos. 5, 6, 7 and 10:
Amendment No. 5: Page 7, line 1, leave out from ("that") to ("the") in line 3.
Amendment No. 6: Page 7, line 4, leave out from ("in") to end of line 5 and insert ("the area in which vehicles would be stopped if the road check were authorised during the period of the road check").
Amendment No. 7: Page 7, line 8, leave out from first ("in") to end of line 9 and insert ("that area").
Amendment No. 10:Page 7, line 35, at end insert ("or").
§ The main purpose of this group of amendments is to remove the expression "pattern of crime" from Clause 4(4)(c). We had a full debate on this in Committee. I then sought to explain that this expression had a 175 respectable parentage in the Royal Commission's report, and was intended to do no more than make it clear that when the police set up a road check, in order to prevent the commission of a serious offence, they might necessarily have no more to go on than a pattern of crime in the area from which to extrapolate. But it was pointed out by the noble Lord, Lord Mishcon, and others that the very expression itself was offensive, and capable of misunderstanding.
§ Since then we have reflected carefully on what was said in the debate, and concluded that there is no need to keep this expression in the Bill. Under Clause 4, as altered by these amendments, it will still be possible for a senior officer to authorise a road check in order to arrest someone intending to commit serious crime, and provided that he has the reasonable grounds for his action required by the clause, I do not think that it is necessary to specify the factors to which he should have regard in reaching his decision. This will remove from Brighton and other places a cloud which the noble Lord, Lord Mishcon, saw hovering overhead. My Lords, I beg to move.
§ Lord Mishcon
My Lords, the light in this Bill and in your Lordships' House is certainly less cloudy than it was before the noble Lord moved his amendment, which I happily accept.
On Question, amendment agreed to.
§ Lord Elton moved Amendments Nos. 5 to 7:
§ [Printed above.]
§ The noble Lord said: My Lords, Amendments Nos. 5, 6 and 7 are, as I said, all consequential, and I beg leave to move them en bloc.
§ On Question. amendments agreed to.
§ [Amendments Nos. 8 and 9 not moved.]
§ Lord Elton moved Amendment No. 10:
§ [Printed above.]
§ The noble Lord said: My Lords, this amendment also is consequential upon Amendment No. 4. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 11 not moved.]
§ Clause 6 [Statutory undertakers etc.]:
§ 3.42 p.m.
Baroness Trumpington moved Amendment No. 12:
Page 9, line 1, leave out ("through a designated exit").
§ The noble Baroness said: My Lords, Clause 6(1) as drafted gives constables employed by statutory undertakers—for example, the Port of London police—powers to search vehicles leaving goods areas through a designated exit. In Committee my noble friends Lord Boyd-Carpenter and Lord Renton asked. with their customary astuteness, why it was necessary to limit this power to vehicles leaving through a designated exit: why not just vehicles leaving in any way?
§ My noble friends were of course quite right. There 176 is indeed no need to require port and docks authorities to go through a complicated procedure of designating all or certain exits from their premises. All that matters, as my noble friend said, is that their own "private" police forces are able to check that vehicles leaving goods areas have on them the goods that they are supposed to have and not any other goods. These amendments simplify the Bill, and I beg to move them.
§ Lord Boyd-Carpenter
My Lords, I should like to thank my noble friend very much for the attention she has paid to the representations made at an earlier stage.
§ Lord Mishcon
My Lords, I have only one point to make—possibly because I hope for a different attitude from the noble Lord the Minister, courteous though it always is in relation to the various amendments. When this amendment was moved on the last occasion, when many of us wondered why it was necessary to have a designated exit and the other exit, there was a very lengthy argument from the Front Bench opposite as to why we were completely wrong and confused in our argument and how perfect the situation would be if the Bill remained unamended in this respect. All of us favour the transgressor who is converted to another view, but may we at least hope that when we put sensible arguments they will receive sensible replies?
My Lords, we have before us an amendment which erases the word "designated". This is good. However, if a constable employed by a statutory undertaker sees somebody who has committed a crime leaving, say, a marshalling yard, he can, if necessary, pursue the man if he cannot catch the person who has committed the crime before he leaves the premises. What will happen if a vehicle leaves by any exit, designated or otherwise, and is seen by a constable to be leaving the area? Can the constable pursue that vehicle, or will it be lost?
§ Baroness Trumpington
My Lords, in answer to my noble friend, that is a slightly different question. In answer to the noble Lord, Lord Mishcon, one does one's best with the ammunition with which one is provided. Whether it was short or long—I apologise if it was lengthy—I did my best. As I have already said, we have since recognised the astuteness of those on this side of the House.
§ Lord Renton
My Lords, may I make a humble suggestion: that it would sometimes be better if Ministers would chew the ammunition before firing it?
§ Lord Elwyn-Jones
My Lords, is not the difficulty that we have not got time to make speeches shorter?
On Question, amendment agreed to.
Baroness Trumpington moved Amendment No. 13:
Page 9, leave out lines 4 and 5.
§ The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.177
§ Clause 8 [Power of justice of the peace to authorise entry and search of premises]:
§ The Deputy Speaker (Lord Aberdare)
My Lords, I have to point out that if Amendment No. 14 is agreed to. I cannot call Amendment No. 15.
Lord Elwyn-Jones moved Amendment No. 14:
Page 10, line 4, leave out subsections (1) and (2) and insert—
("(1) A constable may for the purposes of criminal investigation obtain access to material which is likely to be relevant evidence, other than material which consists of items subject to legal privilege, by making an application under Schedule I below and in accordance with that Schedule.").
The noble and learned Lord said: My Lords, Amendment No. 14, which I beg to move, relates to Clause 8 of the Bill which, as your Lordships know, provides for powers of entry. Those powers of entry into the homes and premises of the citizen are a very serious invasion of privacy and need to be most specifically and clearly expressed, stated and justified. if they are to be included in the Bill. On the last occasion we had the benefit of the ringing words of the noble and learned Lord, Lord Denning, in support of these amendments. Amendment No. 14 proposes that the exercise of these powers shall be subject to authority to exercise them from a circuit judge. The matter was considered with care by the Royal Commission, after it had heard no doubt considerable evidence on the matter, The Royal Commission said:
A compulsory power of search for evidence"—
what we are discussing is the search for evidence—
should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences. The seriousness of the intrusion could also be marked by making the issuing authority a circuit judge".
§ That was the significance of requiring the authority of the circuit judge to be given before the power to search for evidence could be put into effect.
Amendments Nos. 14 and 15 seek to achieve the same purpose.
Amendment No. 15: Page 10, line 4, leave out ("justice of the peace") and insert ("circuit judge").
§ Amendment No. 15 is perhaps clearer and simpler. In effect, Amendment No. 15 seeks to give effect to the recommendations of the Royal Commission. The special provisions for searches under Part II of the Bill are carefully drafted to ensure that they apply only within the conditions and circumstances which are defined and set out in Schedule 1 to the Bill. Where the special procedure applies, notice must be given, for instance, to the person who is the owner or occupier of the premises before entry can take place.
§ Under Clause 8 as it now stands, the application to enter premises to search for what may be the most intimate material is to be made not to a circuit judge but to a justice of the peace. That is how the Bill stands at the moment. It is not an application that has to be made in open court; it can be made privately by a police officer to a magistrate. There is no appeal from the decision of the magistrate in those circumstances.
§ I am second to none in acknowledgement of the great debt we owe to the magistracy. They cope with about 96 per cent. of the criminal cases that come before the country. But we are dealing here with an important power, an important intrusion on private 178 liberty, and in our view for that to be dealt with in the privacy of an interview between a police officer and a justice of the peace—however able and experienced the justice of the peace may be—is not an appropriate tribunal for deciding the grave and important matters which are involved in Clause 8 of the Bill; namely, basically whether private premises should be searched under the provisions of the clause.
The matters which arise for consideration, by whoever it may be who has to decide whether to grant the authority—whether, as I propose it should be, a circuit judge, or a magistrate—are difficult. They are set out in the provisions of the clause itself. First, the justice of the peace would have to he satisfied,
that a serious arrestable offence has been committed".
That in itself creates some problems of identification, classification, and involves serious matters of law. Secondly, the authorising person must be satisfied,
that there is material on premises specified in the application which is likely to be of substantial value … to the investigation of the offence.
Again, that is not a simple task. Thirdly, the authorising individual must be satisfied that the matter is likely to be relevant evidence, we get embroiled in problems of admissibility of evidence. Then he must see,
that it does not consist of items subject to legal privilege, excluded material or special procedure material,
all rather technical and not easy matters which the judge or magistrate has to adjudicate. including the meaning of "items subject to legal privilege" and other matters. Quite apart from the desirability of the matter being dealt with in open court in view of its importance and significance, it is appropriate that difficult problems of law of the kind that are liable to arise should be decided by a circuit judge and that that should be a condition for the granting of these powers.
Along with the amendments which I move, there are associated together Amendments Nos. 17, 18, 20, 31, 173 to 177.
Amendment No. 17: Page 10, line 36, after ("section") insert ("and Schedule 1 below").
Amendment No. 18: Clause 9, page 10, line 38, leave out subsection (1).
Amendment No. 20: Page 11, line 7, leave out from ("material") to end of paragraph (c).
Amendment No. 31: Clause 14, leave out Clause 14.
Amendment No. 173: Schedule 1, page 104, line 11, leave out ("special procedure").
Amendment No. 174: Page 104, line 13, leave out ("special procedure").
Amendment No. 175: Page 104, line 17, leave out ("special procedure")
Amendment No. 176: Page 104, line 18, at end insert—
(" (v) that it does not consist of items subject to legal privilege or excluded material").
Amendment No. 177: Page 104, line 32, leave out ("or special procedure material").
§ I venture to think all these—Amendments Nos. 14 and 15 and those which I have just read—are linked together giving rise to the same point. In the circumstances, I beg to move Amendment No. 14.
§ Lord Denning
My Lords, on the Committee stage this House was very narrowly divided. May I say that once again I would support the amendment as proposed. Distinction was drawn on behalf of the Government between a magistrate and a circuit judge, and it was said that a magistrate should be entrusted 179 not only with his present powers of issuing search warrants, but also these new extended powers for searching for evidence. Let me say that the Royal Commission considered the broad range of the present magistrates' powers. They have very wide powers. They have exercised them exceedingly well over the centuries.The existing powers are mainly confined to entry and search for items which it is an offence knowingly to possess for example, stolen goods, drugs, firearms and explosives. We reaffirm the principle of the present law that such powers are justified and should be retained.That is the present position which the magistrates operate exceedingly well. No one has any complaint of them. But then the Royal Commission went on to the next stage—not for those articles like drugs and stolen goods—but for evidence consisting often of papers. Blackmail notes are mentioned. They also go on to say, "personal diaries or papers, business records." or other sorts of innocent information. By these clauses the police are entitled, if they get a search warrant, to go and search for papers.
I need hardly refer you to John Wilkes and the general warrant case. The Secretary of State issued his general warrant to search the house of John Wilkes and to see all his personal papers. They took them off in sacks, and his pocket hooks filled the mouth of the sack. The judges held that that was quite unlawful; the Secretary of State had no power to issue a general warrant or a warrant of that kind.
Then there is the recent Rossminster case where the tax authorities had authority to search for papers indicating a tax fraud. Seventy of them went in in a military style operation at seven in the morning—all in their bowler hats—and seized tonnes of papers; 13 vanloads of papers. They took them off for the Inland Revenue to examine. I am glad to say that the Court of Appeal held that that was unlawful. The House of Lords reversed the decision of the Court of Appeal. But they were wrong, as was proved by the fact that, after all their searchings, they did not prosecute those people concerned for any criminal offence—which shows that the court of Appeal were right after all.
I look upon those cases and cite them to your Lordships for this purpose, that that is the sort of evidence which we are considering in these clauses. That is the sort of evidence for which a search warrant is to be required. By whom should it be done? Not by magistrates, as good and as splendid as they are. Warrants of this kind to search for evidence need the careful consideration by at least a circuit judge. If I may say so, this what is the Royal Commission themselves said. They said,A compulsory power of search for evidence should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences. The seriousness of the intrusion could also be marked by making the issuing authority a circuit judge.That is what this amendment suggests, following the recommendation of the Royal Commission.
Let me go on to say that supposing it went before a magistrate, what problems he would have to face. A circuit judge has enough. If it goes before a circuit judge, he has to see whether it is a serious arrestable offence, that—and this is the important point—it does not consist of items subject to legal privilege, excluded 180 material or special procedure material, and so on. It needs a lawyer—and a good one too if I may say so—to go through all those exceptions to see whether they apply or not or whether the search warrant should be applied. In the Rossminster case the legislature itself said that it had to go to a circuit judge. It went to the Common Serjeant. That is a precedent in the case of tax fraud. That matter had to go to a circuit judge. So it is here. The only proper safeguard to ensure that the search warrant for evidence is not abused is that the application should go, as these amendments suggest, to a circuit judge and not be left to a magistrate.
Good as magistrates are in other respects, they should not be used in the search for evidence. If your Lordships will only accept these amendments. you will do a lot of good to this Bill; you will be able to cut out two whole pages. If the special procedure will apply to this search for evidence, your Lordships will be able to miss out two whole pages. So this time, please vote in favour of the circuit judge.
§ Lord Donaldson of Kingsbridge
My Lords, I find the arguments of the noble and learned Lord even more unanswerable when I agree with them than I do when, as sometimes occurs, I do not aggree with them. His arguments this afternoon have been entirely unanswerable and reinforce everything that was said by the noble and learned Lord on the Opposition Front Bench. I hope, as the result of the Division was so very close last time, that the noble Lord who is to reply will also find the arguments unanswerable and will have the grace to accept the amendment.
§ Lord Campbell of Alloway
My Lords, I, too, wish to support this amendment as it is linked with Amendment No. 18, which seeks to leave out Clause 9(1)—because this might induce my noble friend the Minister to take another look at the first schedule, which is brought into play by Clause 9(1). The drafting of Schedule 1, linked as it is with this amendment, is abstruse to the degree of virtual unintelligibility. It is all very well to rise to one's feet in your Lordships' House and say a thing like that, but perhaps I may give one example and seek to make it stick.
Take for example this test; the application for access under the special procedure under Schedule 1 in relation to journalistic material, as defined by Clause 13. If one examines this aspect, one finds that such material falls into two categories. First, if the material is held in confidence within the meaning of Clause 11(1)(c), it is called excluded material. The second category is without the element of confidence, and this is called special procedure material as defined by Clause 14(1)(b). Yet under the second set of access conditions in Schedule 1, imported by Clause 9(1), no distinction whatever is drawn between these two categories, notwithstanding the distinction of confidentiality.
Indeed, by virtue of Clause 8(1)(d)—this is the linkage—a warrant must not be issued if there are reasonable grounds for believing that there is journalistic material on the premises which falls into either category. But paragraph 3(c) of the second set of access conditions predicates that,the issue of such a warrant would have been appropriate".So one reverts to the unintelligible and impracticable situation in which one must ask, if the issue of a 181 warrant to search under Clause 8 would not have been made if there were reasonable grounds for believing the journalistic material was on the premises, how then can the circuit judge order access to such material on the basis that,the issue of such a warrant would have been appropriate"?As to the first set of access conditions, these do not apply to excluded journalistic material held in confidence but only to the special procedure type not held in confidence. It is not understood and it is not explicable why the material held in confidence should no be accorded the same—indeed, greater—protection than that afforded to material not held in confidence. It is not understood why reasonable grounds for believing,that a serious arrestable offence has been committed",under paragraph 2(a)(i) of the first set of access provisions should only obtain as regards that category of journalistic material which is not held in confidence.
As the noble and learned Lord, Lord Denning, has said. it needs a good lawyer—and certainly a better one than I shall ever become—to unravel the mysteries of this position. If I have got it wrong, and I may well have done so, then I invite my noble friend the Minister to put me right with the courtesy and care that he always exhibits. I have not raised this point as a kind of red herring to embarrass the Government. I have raised it only in a constructive spirit, because I personally am unable to understand the meaning of Schedule 1.
The noble and learned Lord, Lord Elwyn-Jones, got onto this in another way with Amendments Nos. 173 to 177, which I believe came in today. Clause 9(l) is the master clause which invokes the first schedule—it is entitled "Special Procedure"—and, unless amended by the noble and learned Lord's series of amendments, Amendments Nos. 173 to 176, that clause will relate not only to special procedure material but also to excluded material.
It is of course appreciated that if Amendment No. 61 had been accepted by my noble friend the Minister in Committee, in accordance with the consensus of opinion of your Lordships, to excise the exclusion of journalistic material, this particular example would not have arisen. But he did not do so and therefore we are stuck with this. Your Lordships will, no doubt, think of other difficulties and other examples besides the one I have taken. My support for the amendment of the noble and learned Lord is most sincere. It is given in the true desire that Her Majesty's Government should face up to the interpretative difficulties and the impracticability of operating the first schedule and perhaps think again.
§ Baroness Macleod of Borve
My Lords, before my noble friend the Minister replies I feel that I must comment, although I am sure that my shoulders should be weighed down with all the learned comments we have heard from those who are learned in the law in this House. As noble Lords will know, I am not learned in the law but I have been a magistrate for a very long time. That is why I feel that we should leave this Bill as it is.
182 Nobody has mentioned the question of time today. It has been my experience that an officer will come into my court quite late in the sitting—perhaps at 5 o'clock or 6 o'clock, when we are nearing the end of a sitting. He will state that he has some evidence and would like the magistrates' authorisation to search a house. It is obvious to me from what the officer then says that time is of the essence. I have yet to know that there are as many circuit judges—or as the noble and learned Lord, Lord Denning, mentioned, circuit recorders (who are not mentioned in the amendment)—as there are magistrates. Perhaps one cannot find a magistrate in every road or every street but there are many magistrates within a borough. They are specially appointed by the Lord Chancellor for that reason, and there are many magistrates who, in and out of court, would be only too willing to hear. I suggest that, if it is out of court, it could be with the aid of their learned clerk if it is a particularly difficult decision that is brought before them. In the course of very many years of decision-making, it has never been beyond the possibilities of even my small brain, compared with other noble Lords who have spoken with their wisdom, to be able to decide whether it is right to search premises. But, purely on the question of time and availability, I think it would be right to stay with the Bill.
§ Baroness Gardner of Parkes
My Lords, I should like to comment briefly. I had not intended to do so but in view of the previous contribution I feel, as a magistrate, that I must speak. The situation as described by my noble friend is perfectly all right if one is asked for an order while sitting in court and expert advice is available. However, frequently this sort of request is made at home, at night, when it can be extremely difficult. Certainly I would not find that I could satisfy myself on all the points that the noble and learned Lord, Lord Denning, put forward. It is after hours when the expert advice is not available that the problem arises. For that reason I must say that I am very much swayed by the comments of the noble and learned Lord, Lord Denning.
§ Lord Taylor of Blackburn
My Lords, as a magistrate I feel exactly the same but for reasons opposite to those the noble Baroness gave. Very often a police officer will approach one in court at the end of the day when one is rushing off to another appointment and not giving the request due consideration. One is willing to sign just to get out of the place. It is wrong to do it in that particular way. In the same way, if one is approached in one's own home to sign something one does not have the benefit of the learned clerk to explain everything. One should not sign in that way. It is wrong and, therefore, I support the amendment on that ground alone.
§ Lord Ingrow
My Lords, I disagree very strongly, if I may, with the last remarks. I have never yet left a court signing quickly, against my duty, to get out of the place. I hope that magistrates never do. Very few magistrates will be found to agree that all circuit judges on every occasion are superior in their judgment and wisdom. High Court judges, yes, but not circuit judges, with whom they deal fairly closely.
183 If in fact magistrates can be trusted with these matters, albeit with legal advice—and we can always contact a clerk if we have any problems out of hours—it may well be that if they take a decision on a sensitive issue of this nature it is better that it is done by an ordinary person rather than a lawyer. It is not automatically in favour of the individual that decisions of this nature should be taken only by lawyers.
§ Lord Elton
My Lords, may I address myself first to what my noble friend Lord Campbell of Alloway assures me is not a red herring but is a blue one? The effect of the amendment is to throw all the cases we are looking at into the Schedule 1 procedure. Therefore, as he finds that procedure incomprehensible I must, with great respect, point out to him the irony of the situation that he wishes to put everything into that schedule.
§ Lord Campbell of Alloway
My Lords, I accept the irony and I am grateful to my noble friend. I realise that, but it was the linkage between this and Amendment No. 18, to which the noble and learned Lord, Lord Elwyn-Jones spoke, that drove me to support this amendment. The whole thing is in such a muddle that I am asking the Government to look at it again, but I am aware of the contradiction.
§ Lord Elton
My Lords, I am grateful to my noble friend and I am glad that he was able to set the record straight on that score. No doubt when he reflects on this debate, and reads it, he will take into account the fact that the distinction between excluded and special procedure material arises only in the case of powers newly conferred by the Bill. When that information is tagged in to everything else, it becomes somewhat simpler.
I do not want to spend too long on this because we had a very full debate on the matter in Committee on precisely the same group of amendments. I am always at pains to advise my noble friends not to ask your Lordships' opinion twice on the same issue on the ground that it may try the patience of the House and virtually double the length of time of your Lordships' proceedings if it becomes a common practice. I shall try, therefore, not to repeat at length the arguments which your Lordships have already heard and, I may add, accepted.
The amendments that noble Lords are serving up again provide, in one way or another, that applications under Clause 8 are heard by circuit judges rather than by magistrates. Amendment No. 15 would simply substitute a circuit judge for a magistrate in Clause 8, but leave the procedure in other respects unaltered. The other amendments would not only raise the judicial level in this way but also apply the Schedule 1 procedure to all applications under Clause 8.
This was, of course, the recommendation made by the Royal Commission in paragraph 42 of Chapter 3 of its report. That I readily acknowledge. Indeed, we agree that a hearing at judicial level, resulting, if successful, in an order to produce, is necessary in the case of material held on a confidential basis because of the proposed interference with contractual or ethical 184 obligations. But what we do not believe is that this is the case where considerations of confidentiality and, hence, of public policy, do not arise.
Two claims, in sum, have been advanced for raising the level of authority required from magistrate to circuit judge. The first is that the power to search for evidence of serious crime, as opposed to unlawful articles, is novel and marks a radical extension of police powers, and is difficult to understand. The second is that Clause 8 applications will raise matters which are too difficult for magistrates to deal with.
Parliament has entrusted the power to grant search warrants to magistrates for over 100 years. Magistrates can issue warrants to seize not only a wide range of unlawful articles but also evidence of a wide range of offences. I am sorry to differ from the noble and learned Lord, Lord Denning, and I never do so without trepidation. But, if your Lordships will look at Appendix 5 to the Royal Commission's Law and Procedure volume, to which I think the noble and learned Lord referred, you will find a fair number of search warrant provisions that cover evidence of offences. They include the Gaming Act 1968; the Betting, Gaming and Lotteries Act 1963; the Biological Weapons Act 1974: the Companies Act 1967; and the Criminal Damage Act 1971. I could go on, but I think I have said enough to show that this is not a new departure in the statute book.
I took the example of the Committee stage of the Gaming Act and I merely remind your Lordships that, as I said then, the effect of these amendments would be that a magistrate who can now issue a warrant under that Act to search a casino for evidence of gaming irregularities could not issue a warrant to search the same premises for evidence of arson to a rival establishment. How oddly your Lordships judge the capacity of our magistrates if you think that they are capable of the one and incapable of the other.
Nor is there anything in the claim that Clause 8 is different from previous powers in that it allows the police to search the premises of someone innocent of any involvement in crime. In the first place, existing powers are not all restricted to suspected offenders. For example, Section 6 of the Criminal Damage Act 1971 empowers a magistrate to issue a search warrant in respect of anything which has been used to cause criminal damage, whether or not the person who has it in his possession at the time knows that it has been so used. In the second place, Clause 8 is cast in terms which will, in practice, preclude its use against the innocent and law-abiding citizen. For the conditions in subsection (2) to be satisfied, the person thought to be holding the evidence sought must be either more or less directly involved in serious crime or determined to obstruct the course of the investigation. If one contemplates the possibility that a person may be in possession of evidence of rape in the form of bloodstained clothing which he is unwilling to give up to the police, one has to ask how he came to have it and what he is doing with it. In this kind of case, leaving dry-cleaning firms on one side, it is clear that one is talking about either someone himself suspected of serious crime or a relative who is protecting him.
Therefore, Clause 8 is not a radical departure from existing law. It simply fills gaps in what we already 185 have. The reasons that the commission gave for proposing judicial authority related to the existence of confidential relationships which are, of course, outside the scope of this clause.
The second group of reasons suggested for requiring applications to go to judges is the alleged complexity of the legal issues involved. With respect, I suggest that these difficulties have been exaggerated and do not do justice to the ability of magistrates and the justices' clerks who advise them. lithe police want to search for clean clothing stolen from a haberdasher's, those are prohibited articles, and noble Lords opposite are content for the magistrate to issue the warrant; but if the clothes are bloodstained then they constitute evidence and noble Lords expect the magistrate to be baffled, and require the murder squad to apply not to a local magistrate but to some distant and overburdened judge. I find that an odd way of dividing the work between the two levels of the judiciary.
Of course, if what the police want to seize is documentary evidence held in confidence by a third party, it is right and proper that they should go for a production order to a judge, and Schedule 1 already so provides. The Magistrates' Association has not told us that its members are incapable of dealing with the clause, and the Justices' Clerks Society, too, believes that Clause 8 is pitched at the right level, given the accessibility (as my noble friend Lord Ingrow has said) of their members' advice.
Finally, I reminded your Lordships at the Committee stage of this Bill that:The arguments against these amendments"—which your Lordships looked at in precisely the same detail a few weeks ago—were aptly and cogently summarised by the noble Lord, Lord Mishcon",in one of his better speeches—and all his speeches are remarkably good—when we considered a similar amendment during Committee stage on the Video Recordings Bill".The noble Lord then pointed out that the right of search would be useless if it was long postponed. But that is the only reference to timing which my noble friend Lady Macleod of Borve will be able to find on the record. The noble Lord said that normally action is of most value—sometimes it is of value only—if it follows swiftly on the crime.While it may and should be perfectly easy to find a magistrate to hear an application, it may not be very easy to find a circuit judge as a matter of urgency".I agreed with the noble Lord then, as did your Lordships. Nothing has since changed but the context in which his opinion is asked.The noble Lord then pointed out that Parliament was either right or wrong to give a magistrate the right not only to convict of quite serious offences but also to send citizens to prison. As the noble Lord said, if Parliament was right about that, then is not a magistrate able to be trusted to make a decision about the question of search of premises? The noble Lord considered that it was right in the case of video recordings".—[Official Report, 2/7/84; col 74.]I agreed with him and your Lordships agreed with him then. Nothing has altered since then except the context in which his opinion is sought.
These are powerful arguments which apply to this Bill far more strongly than they did to the Video Recordings Bill. Here we are dealing with evidence of 186 serious crime. Your Lordships have now heard my arguments twice, no doubt you will soon again be asked to pass your judgment on them. When you do, I hope that you will not accept these amendments. which are based upon a mistaken belief that the Bill makes new invasions of privacy and upon a misplaced and an ungenerous estimate of the ability of our justices of the peace. I hope that your Lordships will again reject these amendments. and perhaps with a slightly larger margin to add conviction.
§ Lord Elwyn-Jones
My Lords, I hope that nothing of the kind will occur. I am bound to say that I find it disappointing that the Government are adamant on an issue where last time they succeeded by only one vote and where this time it may well be turned the other way. I hope that it will.
We have traversed this ground pretty thoroughly. What we are concerned with here is the provision of new powers to search premises for evidence. As the noble and learned Lord, Lord Denning, said:It is a search not for offending documents or prohibited goods"—that is to be the object of the use of this power—but for evidence. It will often be, I am afraid, a search of documents and papers to see whether there is any incriminating stuff there; or, on the other hand, whether there is any excluding material".—[Official Report, 2/7/84; col 70.]The Royal Commission examined that aspect with great care and came round quite firmly to the view that this is a serious power which ought to be entrusted to a circuit judge.
It is my recollection when I held a certain office that a large number of circuit judges were being appointed. There is a large number of them in existence. I should have thought that such problems as delay might give rise to would be far less serious than the problems of a magistrate at night being asked to adjudicate on issues worthy indeed by their complexity of treatment by a circuit judge, as one of the noble Baronesses pointed out.
I hope that now the order will be reversed and that my amendment will be carried by more than one vote to put the matter beyond a peradventure.
On Question, Whether the said amendment (No. 14) shall be agreed to?
§ Their Lordships divided: Contents, 120; Not-Contents, 131.187
|DIVISION NO. 2|
|Airedale, L.||Bottomley, L.|
|Amherst, E.||Brooks of Temorfa, L.|
|Ardwick, L.||Bruce of Donington, L.|
|Attlee, E.||Clancarty, E.|
|Auckland, L.||Cledwyn of Penrhos, L.|
|Aylestone, L.||Collison, L.|
|Banks, L.||David, B.|
|Barnett, L.||Dean of Beswick, L.|
|Beaumont of Whitley, L.||Denington, B.|
|Beswick, L.||Denning, L.|
|Birk, B.||Diamond, L.|
|Blease, L.||Donaldson of Kingsbridge, L.|
|Blyton, L.||Donnet of Balgay, L.|
|Boston of Faversham, L.||Elwyn-Jones, L.|
|Energlyn, L.||Monson, L.|
|Ennals, L.||Mulley, L.|
|Ewart-Biggs, B.||Munster, E.|
|Ezra, L.||Nicol, B.|
|Falkland, V.||Northfield, L.|
|Fitt, L.||Oram, L.|
|Foot, L.||Peart, L.|
|Gallacher, L.||Phillips, B.|
|George-Brown, L.||Ponsonby of Shulbrede, L.|
|Glenamara, L.||Prys-Davies, L.|
|Gosford, E.||Raglan, L.|
|Gregson, L.||Rathcreedan, L.|
|Grey, E.||Rochester, L.|
|Grimond, L.||Ross of Marnock, L.|
|Hall, V.||Rugby, L.|
|Hampton, L.||Sainsbury, L.|
|Hanworth, V.||Saltoun, Ly.|
|Hatch of Lusby, L.||Seebohm, L.|
|Hayter, L.||Sefton of Garston, L.|
|Hemingford, L.||Serota, B.|
|Hill of Luton, L.||Shepherd, L.|
|Hooson, L.||Simon, V.|
|Houghton of Sowerby, L.||Spens, L.|
|Hunt, L.||Stallard, L.|
|Irving of Dartford, L.||Stamp, L.|
|Jacques, L.||Stedman, B.|
|Jeger, B.||Stewart of Alvechurch, B.|
|Jenkins of Putney, L.||Stewart of Fulham, L.|
|Kaldor, L.||Stoddart of Swindon, L.|
|Kinloss, Ly.||Stone, L.|
|Kirkhill, L.||Strabolgi, L.|
|Leatherland, L.||Strauss, L.|
|Listowel, E.||Taylor of Blackburn, L.|
|Llewelyn-Davies of Hastoe, B.||Taylor of Gryfe, L.|
|Lloyd of Hampstead, L.||Taylor of Mansfield, L.|
|Lloyd of Kilgerran, L.||Tordoff, L.|
|Lockwood, B.||Underhill, L.|
|Lovell-Davis, L.||Wallace of Coslany, L.|
|Mackie of Benshie, L.||Wells-Pestell, L.|
|McNair, L.||Whaddon, L.|
|Mar, C.||White, B.|
|Merrivale, L.||Wigoder, L.|
|Milford, L.||Winchilsea and Nottingham,|
|Mishcon, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Drumalbyn, L.|
|Alexander of Tunis, E.||Ebbisham, L.|
|Allerton, L.||Eccles, V.|
|Ampthill, L.||Ellenborough, L.|
|Avon, E.||Elliot of Harwood, B.|
|Bellwin, L.||Elton, L.|
|Beloff, L.||Enniskillen, E.|
|Belstead, L.||Faithfull, B.|
|Berkeley, B.||Fortescue, E.|
|Bessborough, E.||Gainford, L.|
|Blake, L.||Glanusk, L.|
|Bledisloe, V.||Glenarthur, L.|
|Boardman, L.||Gormanston, V.|
|Boyd-Carpenter, L.||Gowrie, E.|
|Broxbourne, L.||Gray of Contin, L.|
|Caithness, E.||Greenway, L.|
|Cameron of Lochbroom, L.||Gridley, L.|
|Campbell of Croy, L.||Hailsham of Saint|
|Carnegy of Lour, B.||Marylebone, L.|
|Cathcart, E.||Halsbury, E.|
|Chelwood, L.||Henley, L.|
|Cockfield, L.||Hives, L.|
|Coleraine, L.||Home of the Hirsel, L.|
|Constantine of Stanmore, L.||Hood, V.|
|Cork and Orrery, E.||Hornsby-Smith, B.|
|Cornwallis, L.||Hunter of Newington, L.|
|Cottesloe, L.||Hylton-Foster, B.|
|Cox, B.||Ilchester, E.|
|Daventry, V.||Inglewood, L.|
|Davidson, V.||Ingrow, L.|
|Denham, L. [Teller.]||Killearn, L.|
|Kilmany, L.||Rankeillour, L.|
|Kinnaird, L.||Reay, L.|
|Kinnoull, E.||Reilly, L.|
|Kitchener, E.||Renton, L.|
|Long, V.||Renwick, L.|
|Lucas of Chilworth, L.||Rochdale, V.|
|McAlpine of West Green, L.||Runciman of Doxford, V.|
|McFadzean, L.||St. Aldwyn, E.|
|Macleod of Borve, B.||St. Davids, V.|
|Mancroft, L.||Sandford, L.|
|Margadale, L.||Savile, L.|
|Marley, L.||Selkirk, E.|
|Marshall of Leeds, L.||Sempill, Ly.|
|Maude of Stratford-upon-||Sharples, B.|
|Avon, L.||Skelmersdale, L.|
|Middleton, L.||Soames, L.|
|Milverton, L.||Stodart of Leaston, L.|
|Monk Bretton, L.||Stokes, L.|
|Morris, L.||Strathcarrron, L.|
|Mottistone, L.||Strathspey, L.|
|Mountgarret, V.||Suffield, L.|
|Moyne, L.||Swinton, E. [Teller.]|
|Newall, L.||Terrington, L.|
|Norfolk, D.||Thomas of Swynnerton, L.|
|Northchurch, B.||Trefgarne, L.|
|Nugent of Guildford, L.||Trenchard, V.|
|O'Neill of the Maine, L.||Trumpington, B.|
|Onslow, E.||Tryon, L.|
|Orkney, E.||Ullswater, V.|
|Orr-Ewing, L.||Vaux of Harrowden, L.|
|Penrhyn, L.||Vivian, L.|
|Peyton of Yeovil, L.||Westbury, L.|
|Plant, L.||Whitelaw, V.|
|Plummer of St. Marylebone,||Wynford, L.|
|Portland, D.||Young, B.|
On Question, amendments agreed to.