HL Deb 24 July 1984 vol 455 cc255-75

8.36 p.m.

Further considered on Report.

[Amendments Nos. 57 and 58 not moved.]

Clause 24 [General arrest conditions]:

Lord Elwyn-Jones moved Amendment No. 59: Page 22, line 9, after ("offence") insert ("punishable by imprisonment").

The noble and learned Lord said: My Lords, in the temporary absence, I trust, of the noble Lord, Lord Hutchinson, whose recovery into rude health we hope to hear news of at any moment now, I beg to move this amendment. I wish that it had been a minute ago, which would have saved me the onerous responsibility of moving an amendment which is in his name but which I support enthusiastically.

Clause 24 deals with the important matter of arrest with general arrest conditions. Clause 24(1) reads: Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because general arrest conditions are satisfied.".

So it is a very serious and important provision creating grounds for the arrest of a person.

Of course, arrest is a very serious matter and one which is embarked upon only within the strict limits of the provisions of the law. But the effect of the language of Clause 24, as we see it, is that the most trivial offence could well be grounds for the power of arrest which is given to a constable. The relevant words are, for suspecting that any offence … has been committed or attempted, or is being committed or attempted".

Already in the Bill substantial powers of arrest have been provided and it is right that they should exist in regard to the offences that really matter, such as wounding, assault, public order offences, thefts, receiving, taking and driving away cars, housebreaking implements, drugs, firearms, the Official Secrets Act, immigration and breaches of the peace. As the noble Lord, Lord Hutchinson, pointed out earlier, those matters are already provided for in the provisions of the Bill.

Then we suddenly find this clause providing, as the language I have read out indicates, a very substantial extension of the powers of arrest, because it is giving powers to arrest for any offence—that is to say, any offence known to the law—in certain circumstances. As I have indicated, they may be offences so trivial as to carry no penalty of imprisonment.

One of the justifications and explanations of the amendment which I have moved—namely, that offences should at least be punishable by imprisonment before these sanctions and powers can apply to them—is in order to avoid the merely trivial, like dropping litter in the street, or picking wild flowers, or the other minor offences known to the criminal law, which, unless this clause is amended, would remain as a ground for arrest and then, as a further step, for being taken into custody.

Therefore it is an important and essential amendment which should be made in order to limit the power of arrest which at present is provided by the language of the Bill. As I have said, arrest is a very serious deprivation of liberty and it must be founded only in justifiable and necessary circumstances. This amendment will come nearer to achieving that intention. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, in the absence of my noble friend I should like to thank the noble and learned Lord for so ably moving this amendment. The position at the moment is that if somebody drops litter and a policeman tells him he must not and asks him for his name and address and that person says, "Lord Carrington, House of Lords", or whatever it may be, the policeman has no power to go further. This subsection gives the policeman the power to go further. We maintain that for trivial offences it is not necessary to give this extra power. It is an extension of the power of the police in relation to trivial offences which we believe to be absolutely unjustifiable. We wish to limit it to those offences which are punishable by imprisonment. It is as simple as that. This is a very undesirable extension of police powers. I am very happy to support my noble and learned friend on the Front Bench.

Lord Gifford

My Lords, I, too, support the amendment. I fear that the new power which, as the noble Lord, Lord Donaldson of Kingsbridge, has said, is being given by the clause will be a fearsome weapon for any police officer with which to harass people he does not want to permit to do things which are quite trivial but technically unlawful, such as parking or camping in the wrong place, or matters of that kind. At least let us take away that weapon of harassment by limiting this clause to offences which are of sufficient seriousness to warrant a sentence of imprisonment.

Lord Elton

My Lords, the amendment would limit the power to arrest under the clause to offences which are punishable by imprisonment. It is sad that the noble Lord, Lord Hutchinson of Lullington, was not here to move the amendment in person. I mean no reflection on the ability of the noble and learned Lord when I say that it would have been preferable to hear it from the lips of the noble Lord, Lord Hutchinson of Lullington. I understand that his absence is due to the fact that he is not well and may be in some discomfort. I hope that his return to health, which I would not normally describe as rude, will be accomplished as speedily as possible.

I appreciate the concern which the noble and learned Lord and other noble Lords have expressed that the powers of this clause should not be used in the case of trivial offences, but I believe that what is proposed is wrong, both on the question of principle and on the way in which the noble Lord has attempted to define which offences are serious. Two balancing principles underlie this clause: first, that the police should be equipped with the powers necessary to enforce the law and, second, that the citizen should not be deprived of his liberty except when it is absolutely necessary.

For the relatively minor sort of offence with which the amendment is mainly concerned, the usual way for the police to proceed should be just as it is at present—by way of summons. To ensure that arrests do not take place where the summons procedure can be used, we have adopted the "necessity principle" proposed by the Royal Commission. An arrest may take place only if one or more of the conditions set out in subsection (3) applies. Arrest is a coercive power which we hope will not be needed, but the power should be available if the cirumstances justify its exercise. The circumstances which justify its exercise are set out in subsection (3) of Clause 24.

The circumstance which has most often been referred to is that the person who has committed an offence is unknown to the constable and his name cannot be readily ascertained by the constable, or he gives an obviously fictitious address. I am sure that the noble Lord, Lord Donaldson of Kingsbridge, did not mean to imply that if my noble friend Lord Carrington were to drop litter in Piccadilly and be stopped by a policeman and give his address as "Lord Carrington, House of Lords", anything untoward would have happened. The noble Lord omitted to say, of course, that the identity of the culprit should in this case be other than that given. But the fact remains that in some cases and in some circumstances, the use of a summons will not be practicable or appropriate.

If the law is to be enforced and society to be protected, the police must have the power to arrest where the alternative is to let a blatant offender go scot-free, whether it is a question of dropping litter, offending against the wildlife legislation, committing minor motoring offences, or cases of drunkenness. It is no good putting legislation on to the statute book and then saying that people ought to obey these laws only if they feel like it. They must be required by some machinery to obey the law. If people give an obviously fictitious name or an obviously fictitious address so that a summons cannot be served against them, which is the alternative to arrest, the constable must either let them go or arrest them. If the provision is on the statute book and makes what the person is doing an offence, your Lordships are surely not going to say that it is up to the constable to decide whether Parliament was right or wrong in making it an offence.

The noble Lord, Lord Donaldson of Kingsbridge, adopts a posture which sometimes means acute attention and sometimes an intention to interrupt. I am quite happy to give way if the noble Lord wishes me to do so.

Lord Donaldson of Kingsbridge

My Lords, the noble Lord is quite right in diagnosing my position. The noble Lord has described exactly the present position. We are opposed to it being altered.

Lord Elton

Very well, my Lords. Let us, however, look at the amendment. As I was saying, if a person can flout the law with impunity under the eyes of a police officer, it brings the law, the police and, I believe, Parliament into disrepute. What is a police officer supposed to do if somebody commits a non-imprisonable offence under his nose and then declines to identify himself so that he may be prosecuted? Unenforceable laws are bad laws. If we knowingly render good laws unenforceable, we knowingly turn them into bad laws. It seems to me that that is what the noble Lord's amendment seeks to do.

By inserting the words "punishable by imprisonment" into the second line of Clause 24(1) one limits those offences for which a constable may arrest an offender if that offender puts himself into the categories set out in subsection (3) by not giving his address, or by giving an address which is manifestly false, or the other reasons there set out. The amendment would not leave the law as it is. It would actually deny the constables the power to enforce laws which are not punishable by imprisonment if the people who broke them did not want the officers to enforce them.

Lord Elwyn-Jones

My Lords, if the alleged offender gave his true name, which the police realised was his true name, is he still liable to the sanctions of the section?

Lord Elton

Of course not, my Lords, because he does not then satisfy subsection (3) and therefore he is not arrestable and is proceeded against by summons. It is just possible that the noble Lords opposite and on this side actually want the same thing.

Lord Elwyn-Jones

My Lords, I still submit that the substitution of the power of arrest for the power of summons is a very powerful threat to the liberty of the subject. While I know that some of the ancient towns police consolidation Acts of the early part of the century made provision for arrest without warrant, we are dealing with arrest without warrant in this provision in the clause. While the whole tendency of the criminal law is moved towards arrest by summons and not by way of what is proposed in the Bill, this touches upon what I submit is a serious new encroachment of the power of arrest into a field where hitherto it has not existed. Accordingly, I have been a little pained by the way in which the perils involved have been so readily dismissed by the Minister in this matter.

Lord Elton

Would the noble and learned Lord forgive me, and would the House permit me, to intervene in case I have not made myself clear? I am trying not to dismiss anything lightly and if I have done so it may be because I have not seen it. Clause 24(1) provides at present that, Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence"— these are the minor offences the noble Lord refers to— has been committed or attempted, [and] … if it appears to him that service of a summons is impracticable or inappropriate becaue any of the general arrest conditions are satisfied then he has a power to arrest.

What are the circumstances under which he has a power to arrest? They are circumstances set out under subsection (3); otherwise he does not have it. The circumstances set out in subsection (3) are that the name of the relevant person is unknown to him and cannot be readily ascertained—in other words he claims to be Lord Carrington and manifestly is not—that the constable has reasonable grounds for doubting whether the name furnished is real or not; that he has not given an address at which the summons can be served; or doubts whether the address given is an address at which service would work.

There are dozens and dozens of existing powers of arrest without warrant. Clause 25 repeals them in favour of Clause 24. Therefore if we look at the clauses together we are actually reducing what the noble and learned Lord sees as a peril and saying that his power which is at present at large may in future only be used if it is essential to use it because the procedure by way of summons is either not possible or not appropriate. I hope that I have reassured the noble Lord. Perhaps he would consider between now and Third Reading whether I have reassured him. I am not trying to argue for advantage or political advancement or anything else. It seems to me that what I have said is actually a true statement of what we are doing. What we are doing is very close to what the noble and learned Lord would have us do.

Lord Donaldson of Kingsbridge

My Lords, before the noble Lord sits down, may I ask this question? Would he not agree that the necessity principle that we hear so much about—I am not lawyer enough to know when you can or cannot use it—cannot apply to a trivial offence?

Lord Elton

No, my Lords. I do not think the noble Lord is right at all. It is here applied to a trivial offence. This is what Clause 24 is about. Let me sum this up and sit down because your Lordships will want to move on soon. The noble Lord is saying that you should not apply the necessity principle to trivial offences. He is saying that you should not apply it because trivial offences should not be subject to arrest. If trivial offences are not subject to arrest, they are not enforceable; if they are not enforceable there is no earthly point in having them on the statute book because as soon as people find they can commit offences under the noses of the police and waltz away saying that they are Charlie Chaplin, they will do so, and your Lordships will have brought the law into disrepute. What do you do? You either allow the constable to take the person to the police station and ascertain who he is; or you take the statute book alternative. There are dozens and dozens of such offences. People who are keen on fritillaries will not want you to sweep away the wildlife laws protecting them. If people who have broken that law should do so in front of a policeman and refuse to say who they are, or how a summons can be served, then it seems to me that they have brought arrest upon themselves.

Lord Trefgarne

Hear, hear!

Lord Elton

That was a rather chauvinistic piece of support but I am trying to present this as gently as I can. I hope I have persuaded your Lordships. If I have failed, now, I shall never succeed, so I shall sit down.

Lord Elwyn-Jones

My Lords, we still feel that the powers of arrest in this clause are far too wide; but in view of the undertaking of the noble Lord the Minister to look at it again—or words to that effect—or to think about it, or ponder about it—

Lord Elton

My Lords, what may have come across through the ether, though not through my speech, is that I hope the noble and learned Lord will do some thinking about it between now and Third Reading.

Lord Elwyn-Jones

My Lords, I still submit with confidence that this is far too wide a provision. There is the machinery of summons. I know that it adds difficulties to the police that there should be limitation on the power of arrest without warrant. But I think it might be useful to test the opinion of the House on this matter just to see how we are getting on.

8.58 p.m.

On Question, Whether the said amendment (No. 59) shall be agreed to?

Their Lordships divided: Contents, 45; Not-Contents, 62.

DIVISION NO. 3
CONTENTS
Attlee, E. Grey, E.
Aylestone, L. Hanworth, V.
Beaumont of Whitley, L. Houghton of Sowerby, L.
Carmichael of Kelvingrove, L. Jeger, B.
Cledwyn of Penrhos, L. John-Mackie, L.
David, B. Kagan, L.
Diamond, L. Kilmarnock, L.
Donaldson of Kingsbridge, L. Kirkhill, L.
[Teller.] Lockwood, B.
Elwyn-Jones, L. Mackie of Benshie, L.
Ewart-Biggs, L. McNair, L.
Ezra, L. Morris, L.
Foot, L. Mountevans, L.
Gifford, L. Nicol, B.
Gladwyn, L. Phillips, B.
Graham of Edmonton, L. Pitt of Hampstead, L.
[Teller.] Raglan, L.
Stedman, B. Walston, L.
Stewart of Alvechurch, B. White, B.
Stewart of Fulham, L. Wilson of Rievaulx, L.
Stoddart of Swindon, L. Winchilsea and Nottingham,
Stone, L. E.
Taylor of Blackburn, L. Winstanley, L.
Underhill, L. Wootton of Abinger, B.
NOT-CONTENTS
Allerton, L. Coleraine, L.
Ampthill, L. Colville of Culross, V.
Auckland, L. Cork and Orrery, E.
Avon, E. Cox, B.
Belstead, L. Craigmyle, L.
Blake, L. Davidson, V.
Boardman, L. Denham, L. [Teller.]
Brabazon of Tara, L. Drumalbyn, L.
Brougham and Vaux, L. Elton, L.
Broxbourne, L. Enniskillen, E.
Caithness, E. Faithfull, B.
Carnegy of Lour, B. Ferrier, L.
Gainford, L. Marshall of Leeds, L.
Gardner of Parkes, B. Norfolk, D.
Glanusk, L. Pender, L.
Glenarthur, L. Rankeillour, L.
Gowrie, E. Renton, L.
Gray of Contin, L. Rochdale, V.
Gridley, L. Saltoun, Ly.
Hives, L. Stodart of Leaston, L.
Hood, V. Suffield, L.
Hornsby-Smith, B. Swinton, E. [Teller.]
Inglewood, L. Trefgarne, L.
Ingrow, L. Trumpington, B.
Killearn, L. Ullswater, V.
Kilmany, L. Vickers, B.
Lawrence, L. Westbury, L.
Long, V. Whitelaw, V.
Lucas of Chilworth, L. Wise, L.
Macleod of Borve, B. Wynford, L.
Margadale, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.6 p.m.

The Deputy Speaker (Lord Aylestone)

My Lords, Amendment No. 59A on the supplement to the Marshalled List: the noble and learned Lord, Lord Denning? Not moved. Amendment No. 60—

Lord Renton

My Lords, Amendment No. 59A is to be moved. On behalf of the noble and learned Lord, Lord Denning, and at his request, I beg to move Amendment No. 59A: Page 23, line 15, leave out subsection (6). If your Lordships will turn to Clause 25, which is the next clause, you will see that all powers of arrest in any Act are to cease to have any effect. That seems to be so whether or not they are repealed by Schedule 7, which is uncertain. But some few powers are preserved by subsection (2) of Clause 25 and they are set out in the second schedule.

One wonders to what Clause 24(6) refers. What purpose is there in it? There is nothing relevant left and so according to the noble and learned Lord, Lord Denning—and I must confess that I think he is right—we should leave out subsection (6) or else specify the detail to which it refers.

The matter seems to be clinched by the Notes on Clauses. I must let your Lordships into a secret. The Notes on Clauses say that subsection (6) of Clause 24 has the same effect as subsection (8) of Clause 23. Indeed, the wording of them was exactly the same. But, at the behest of the Government, in Committee we deleted subsection (8) of Clause 23 from the Bill. So, why should we not delete subsection (6) of Clause 24 at this Report stage? I beg to move.

Lord Elton

My Lords, in Committee we did indeed accept an amendment moved, not by the Government but by the noble Lord, Lord Elystan-Morgan, to leave out subsection (8) of Clause 23 which said exactly what subsection (6) of Clause 24 now says. The chief effect of these subsections was to preserve intact the power of the police under common law to arrest in order to prevent or deal with a breach of the peace, but we concluded that it was not necessary to have two identical subsections in different clauses to do the same thing. Accordingly subsection (8) of Clause 23 disappeared, as proposed by the noble Lord, Lord Elystan-Morgan, leaving subsection (6) of Clause 24 to do the work on its own. It also makes it clear that Clause 24 does not apply to arrestable offences or Schedule 2 powers. It is now this subsection which the noble and learned Lord, Lord Denning, seeks by proxy to leave out.

Subsection (6) of Clause 24 preserves powers of arrest conferred otherwise than by Clause 24 from the effects of that clause. The powers of arrest preserved are, specifically, the common law power of arrest, which is a power of arrest in order to prevent or deal with a breach of the peace, and the powers of arrest preserved in Schedule 2 from repeal by Clause 25. We have already discussed in connection with the amendment of the noble Lord, Lord Gifford, what forms a breach of the peace may take and it is quite clear that many breaches of the peace which ought to be preventable by the use of the power of arrest simply will not fulfil the general conditions of arrest set out in Clause 24(3)(d), for example. That would mean that the amendment would effectively prevent the use of arrest in many circumstances in which I am sure the noble and learned Lord would agree they should be available.

However, we are talking not only about common law powers; we are also talking about statutory powers and, in particular, the powers preserved in Schedule 2. I take only one example. I refer my noble friend to the second power listed in the schedule. This is the Protection of Animals Act 1911. Section 12(1) provides the power of arrest of a person who mistreats or causes suffering to an animal. Here again, a person who fulfilled none of the other conditions in Clause 24(3) would escape being arrested because he did not fulfil the conditions in (3)(d), which deal exclusively with people and property. It is an animal, and not a person, which is here at risk. In fact, Schedule 2 is in the Bill only because it is necessary to have a category of arrest powers not controlled by the conditions in Clause 24 because they are unsuitable for one reason or another, as I have illustrated with one example.

I hope that the example I have given serves to explain why this should be so and that my noble friend will agree not to press the amendment on behalf of his noble and learned friend but to give my reasons to him.

Lord Renton

My Lords, I should like to thank my noble friend for his very thorough reply. Before I go any further I think I owe an apology to the noble Lord, Lord Elystan-Morgan, as I failed to attribute to him the initiative and wisdom which I attributed to the Government. I hope that my apology will be accepted by him.

My noble friend has, with his usual thoroughness and persuasiveness, given reasons for not accepting the amendment. I feel obliged, however unconvinced, to accept those reasons. I make only one further point just in case, during the long Recess, it may appeal to my noble friend. It is this. We can generally assume that nothing in any statute will prejudice anything said in any other statute. So it would seem that the words, This section shall not prejudice any power of arrest conferred apart from this section are not strictly necessary. We should always avoid writing unnecessary words into any statute. Leaving that thought in the great mind of my noble friend, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Arrest without warrant for fingerprinting]:

Lord Elton

moved Amendment No. 60: Page 23, line 29, at end insert ("and"). The noble Lord said: My Lords, my pleasure at my noble friend's compliment being slightly alloyed by the tones in which it was delivered, I move on to move Amendment No. 60 and to ask leave of your Lordships to address also the matter of Amendment No. 61. Amendment No. 61: Page 23, line 33, leave out from ("conviction") to end of line 38 and insert ("any constable may at any time not later than one month after the date of the conviction require him to attend a police station in order that his fingerprints may be taken. (1A) A requirement under subsection (1) above—

  1. (a) shall give the person a period of at least 7 days within which he must so attend; and
  2. (b) may direct him to so attend at a specified time of day or between specified times of day.
(1 B) Any constable may arrest without warrant a person who has failed to comply with a requirement under subsection (1) above.")

Clause 26 as drafted attracted a fair degree of criticism in Committee. It was pointed out by noble Lords that it was unsatisfactory that a convicted person should be liable to summary arrest for refusing to go immediately to a police station to be fingerprinted, even though he might have a very good reason for refusal, such as a prior dental appointment, and might be perfectly willing to go later that day or on the next.

My noble friend Lord Trefgarne undertook to bring forward an amendment to give the person a reasonable period of grace. These amendments ensure that a person who is convicted of a recordable offence, without having had his fingerprints taken in connection with it, has at least seven days to comply with the requirement to go to a police station for that purpose. I hope that they will commend themselves to your Lordships. They will ensure that the power of arrest conferred by Clause 26 is very much a power of last resort. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 61:

[Printed above.]

On Question, amendment agreed to.

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

Lord Donaldson of Kingsbridge moved Amendment No. 62: Page 24, line 26, after ("Where") insert ("at the request of a constable")

The noble Lord said: My Lords, I move this as a probing amendment. I want to make sure that the rights of the accused, of the detained, or of the person helping the police with their inquiries are clearly explained to them. When we argued this point in Committee the noble Lord, Lord Elton, said that it would look pretty silly if a lady came to a police station saying that she had lost her pearl necklace and she was immediately told that she could leave if she wanted, nothing that she said would be used against her without a solicitor being present, and so on. We thought that if the phrase in the amendment were added, so that Clause 28 read: Where for the purpose of assisting with an investigation at the request of a constable a person attends voluntarily", it would get round the situation of a person who is making a complaint to the police, who clearly does not want to be told his rights because that does not arise.

I think that the matter is a little more serious than that. In Committee when I said that the Government seemed to have a certain reluctance about people in a police station being told their rights, I was told that that was contrary to the truth. I want to be sure that it is. This is a probing amendment to see whether what is in the Bill and what is in the code of practice amounts to making absolutely certain that somebody who is asked to go to a police station after a serious accident, in which he may be in the wrong, although at that stage nobody knows who is in the wrong or who is in the right (which is normally the case when it is said that somebody is helping the police with their inquiries), is told his rights. I want to be sure that that is so. If your Lordships accept Amendment No. 63, it will be so. Amendment No. 63: Page 24, line 31, after ("be") insert ("informed as soon as practicable that he is")

The relevant part of the clause would then read: he shall be informed as soon as practicable that he is entitled to leave at will".

I want to look at the code, and I want the noble Lord to tell me that in his belief and that of the Government it is a totally and absolutely clear duty on the police to tell somebody who is at their request helping them with information in relation to an accident, fault, suspected theft, or anything else, what are his rights. There are two relevant provisions in the code. The first is paragraph 3.2, which states: At the same time the custody officer must inform him of the following rights … the right to have someone informed of his detention … the right to legal advice in accordance with section 6 below … the right to consult this and other codes of practice".

That does not say that the person has the right to leave the police station at once if he wants to, and it does not say that he has the right to have a solicitor. Secondly, Paragraph 11.4 states: If a person is not under arrest when a caution is given the officer concerned shall say so. If he is at a police station the officer shall also tell him he is free to leave if he wishes and remind him that he may obtain legal advice if he wishes".

I think that that is probably all right, but I believe that we should go through the provisions. It is extremely important that somebody who is roped in by the police, and who in fact happens to be innocent, should be told: first, that he can leave at will; secondly, that he need say nothing if he does not wish to; and, thirdly, that he is entitled to a solicitor. That is very much more clearly put in my amendment. If the noble Lord the Minister and other noble Lords are satisfied that what I have read out from the code of practice meets the case, I shall take the matter no further. I beg to move.

Baroness Trumpington

My Lords, I well understand the reason for the sense of worry that the noble Lord, Lord Donaldson, feels. By repeating in a way the amendment that he moved at Committee last time, he is saying that any person voluntarily attending a police station at the request of the police to assist in an investigation would have to be told that he was free to leave at will unless placed under arrest. As my noble friend explained when we debated this proposal in Committee, the Government fully agree with the intention underlying the amendments but believe they are far too wide in application.

My noble friend pointed out in Committee that many people attend police stations voluntarily for all kinds of reasons. They include, for example, victims of burglary attending to identify property and victims of assault attending to identify a suspect or provide a statement. It would be unnecessary and indeed counter-productive to insist that all victims and witnesses should be implicitly threatened with arrest in the way proposed. It is easy to see how a statement of the right to leave could produce entirely the wrong impression with people who had come in to help.

I acknowledge that the noble Lord has attempted to deal with this objection and to narrow the scope of the amendment, by providing that the duty on the police should arise only when the person goes to the police station at the request of a constable. That is, excluding those cases where the first that the police know about a person is when he arrives at the inquiry desk at the police station.

However, I have to say that this still does not meet the objection that my noble friend advanced in Committee. Suppose, for instance, that a woman is attacked by a man who then runs off. A suspect is later arrested and the police want to arrange an identification parade. They ask the woman to go to the police station for this. Are they really obliged by law to go through the absurd rigmarole of telling her when she arrives that she is free to leave unless arrested?

Lord Donaldson of Kingsbridge

My Lords, may I intervene at this stage? Surely it is not an absurd rigmarole to tell somebody that they need not do it if they do not want to, which is their right. If they dislike the idea of an identification parade, if they are frightened of one, they need not do it and they should be told that.

Baroness Trumpington

My Lords, I think that the noble Lord has misunderstood me. It was the lady who had been robbed and who was to see the people who were going through the identification parade, who would then be told that she was free to leave unless arrested. She is a totally innocent party, there for quite a different reason: to protect herself.

Lord Donaldson of Kingsbridge

My Lords, I am sorry to argue this. It is not a question of being told to leave, unless arrested. Under the Bill, if she wants to leave, she does so. It is not a question of whether or not she is arrested. She cannot go if she is arrested: but arrest does not come into it. She is free to leave if she wants to leave. She is free to refuse to attend an identity parade if for some reason she objects to it, and in my view she should be told so.

Baroness Trumpington

My Lords, perhaps I may leave this particular lady for a moment and continue. I can assure your Lordships that in those circumstances the police, who are perfectly sensible, will of course not say anything to her. I cannot believe that your Lordships, knowing this, would amend the Bill in such a way as to require the police to be in breach of its provisions for acting in a common-sense way.

If I may get on to the particular point that the noble Lord raised, as my noble friend explained in Committee, the difficulty with the approach of the noble Lord, Lord Hutchinson, to this problem is a failure to distinguish properly between suspects and others. The addition of the words "at the request of a constable" does not affect this distinction. It is of course very important indeed—and my noble friend made it perfectly clear in the Committee stage of the Bill—that any person who was at a police station voluntarily as a suspect should be fully aware of his position and his right to leave. That is to ensure that he is there voluntarily and not under a disguised compulsion.

The draft detention code of practice includes precisely this safeguard. Section 11 of the draft code requires the police to caution a person as soon as there are grounds to believe he has committed an offence. Paragraph 11.4 deals with the case of a person who is not under arrest. He must be informed that he is not under arrest, and if at a police station, the officer concerned shall also tell him he is free to leave if he wishes and remind him that he may obtain legal advice if he wishes". This provision is also found in paragraph 3.8.

I should emphasise that the code requires the caution to be given as soon as there are grounds to believe that a person has committed an offence. There do not have to be reasonable grounds. Thus a person must be cautioned and thus also told that he is free to leave the police station if he wishes as soon as he is a suspect in the eyes of the police.

The draft code thus already meets the point of substance in these amendments and I hope therefore that the noble Lord will not press them. He did say that these were two probing amendments. It would, I think, be difficult to incorporate the relevant provisions of the code into the body of the Bill without also drawing in other related matters such as the timing of the caution which are pre-eminently matters for a subordinate code. Paragraph 3.2 to which the noble Lord refers relates to detained persons. Obviously, they do not have a right to leave. Paragraph 3.8 relates to the volunteers.

As to the general question of the distribution of material as between the Bill and the codes, I repeat what was said in Committee. Throughout our proceedings noble Lords opposite have expressed the view that the codes provide a lesser degree of authority than the Bill and can be treated in a sort of easy-going way or ignored. That is not true. The codes are backed up by discipline. A translation of material from code to Bill would provide nothing additional in the way of safeguards for the suspect, since the disciplinary consequences of a breach of the code are already established by Clause 66.

The question of Bill versus code is not in itself important. If noble Lords opposite make a great issue of it, the message going out to the police service will, if material is moved from code to Bill, be that the codes are indeed less important to observe and less authoritative than the Bill. That, as I am sure all would agree, would be a regrettable result.

Lord Donaldson of Kingsbridge

My Lords, I shall not take this further. It was however, important to discuss it. Paragraph 3.8 says that, Any person attending a police station voluntarily for the purpose of assisting with an investigation may leave at will unless placed under arrest". I cannot see why the code should not say, and should be informed of this right". I shall not, however, press it further. Noble Lords have heard the background. It has been well discussed. I do not think that the code goes quite far enough. However, it would be unreasonable to try to put it into the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Donaldson of Kingsbridge moved Amendment No. 63:

[Printed above.]

The noble Lord said: Exactly the same argument applies to this amendment. Having moved it, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

9.28 p.m.

Lord Elwyn-Jones moved Amendment No. 64: After Clause 28, insert the following new Clause: ("Voluntary attendance. When a person attends voluntarily at a police station or any other place for the purpose of assisting with an investigation of an offence and that person is subsequently arrested for that offence the fact of his voluntary attendance and the period of time during which he so attended shall be entered on the custody record.")

The noble and learned Lord said: My Lords, this is an important amendment. It is by way of a new clause following Clause 28 dealing with voluntary attendance at police stations. The amendment provides that when a person attends voluntarily at a police station or any other place for the purpose of assisting with an investigation of an offence and that person is subsequently arrested for that offence, the fact of his voluntary attendance and the period of time during which he so attended shall be entered on the custody record. Both requirements are intended for the benefit of the person who has attended voluntarily at the police station.

First, for the subsequent treatment of the person concerned, the fact that he attended voluntarily is something that the courts might well take into account in later considering how he should be dealt with. But perhaps more important is the requirement that the period of time during which he has attended should be entered on the custody record. That is, of course, relevant to the elaborate provisions as to the time in which a suspect or an accused person may be held in custody and brought before the courts. The period of time in which the volunteer, so to speak, has remained in custody should clearly, in fairness to him, and so that he may benefit from the time provisions that are set out in the various clauses of the Bill from Clause 40 onwards, be counted to his advantage. That would seem to be fair and just, and, accordingly, I beg to move.

Lord Renton

My Lords, I accept from the noble and learned Lord, Lord Elwyn-Jones, that what he has put forward in this amendment is commendable practice. But the question arises whether it should be the subject of legislation. Earlier on, and not long ago, my noble friend Lord Elton said that we should not make laws that are not enforceable; and one wonders how this law would be enforced if we were to make it. What would be the consequences for the accused person, or for the police officer who failed to make the record, if the law were not obeyed? We should bear in mind factors of that kind before accepting a provision of this kind.

Lord Wigoder

My Lords, if I may, I should like to support the amendment moved by the noble and learned Lord, Lord Elwyn-Jones. It seems to me that the custody record—which I rather assume was known in my younger days as the charge sheet; probably it is the same document—contains a vast amount of information in any event, and to ask that it should contain these two additional items can do no harm and might be of very great advantage in the course of a trial.

It might be desirable that there should be a record made officially of whether a person had attended voluntarily. It is much more important that there should be a record made officially of the period of time during which he attended, so that that should be available during the trial if an issue arose as to whether a defendant had been put under pressure as a result of being at a police station for a very long period of time before or during his questioning. I can see no harm whatever coming from this amendment, and I think that a certain degree of perhaps rather marginal benefit might result.

Baroness Trumpington

My Lords, this new clause arises from the suspicion that a person may be at a police station voluntarily for a considerable period before being arrested, and that this provides an opportunity for abuse. I do not believe however that this new clause is either a necessary or a practicable means of checking such abuse.

In the first place, the new clause goes very wide indeed, and taken literally would impose a huge new bureaucratic burden on the police. Every time that any member of the public meets up with a police officer in the context of an investigation—say, a householder called home from work when a break-in is reported, or the proprietor of a shop brought back from lunch when there has been a case of shoplifting—the police officer concerned would have to note the exact time just in case he later had to arrest the person concerned for an attempted insurance fraud. This case would come within the scope of the new clause, because that person would certainly be voluntarily attending his house or shop in order to assist the police investigation. It is easy to see how heavy this new bureaucratic burden would be, which rather bears out the remarks, for which I am grateful, of my noble friend Lord Renton. While police officers keep a note in their pocket books of their daily duties, they do not do so in the detail that the new clause would require.

The situation would be no better even if the new clause extended only to voluntary attendance at a police station. Suppose that the householder goes to the police station to report the theft of his car. It is a busy Friday night and he has to wait until he can see the officer at the inquiry desk. He then has to wait to be interviewed by a CID officer. No record is being made of the time that he is waiting or when the interview starts; nor is there any reason why it should. But, again, it may be that in the course of the interview the police officer is given sufficient grounds to suspect a fraud to justify an immediate arrest.

Lord Wigoder

My Lords, would the noble Baroness forgive me? Is she saying that, if she goes to a police station and reports the loss of her motor car, somebody there does not make a record of the time at which she is seen?

Baroness Trumpington

My Lords, surely the time is the time that this man is waiting before he is dealt with by the police for the loss of his car. Perhaps noble Lords would allow me to finish my few brief remarks. It would be very difficult for the police to know how long he had been at the station prior to arrest, and in any event that information would be entirely void of significance.

However, I hope that I can persuade your Lordships that information which might be of significance will have to be recorded without bringing in the bureaucracy of the new clause. I suggest that what matters is not the time spent at the police station as such—because, as I have demonstrated, this could happen in a wide variety of situations—but the time spent at the police station being interviewed under caution—that is, as a suspect in the eyes of the police.

Paragraph 11.5 of the draft code of practice requires a record to be made of the giving of a caution, which is the point at which a person's status changes from that of victim or witness to suspect. Paragraph 2.5 requires a record to be made of each interview with a suspect, whether or not at a police station. The record must state the time that the interview begins and ends, and the time of the caution must also be recorded in the interview record as a result of the combination of paragraphs 11.6 and 2.6. Therefore, I believe that the draft code of practice already does the job required.

If the interview record is looked at together with the custody record, the time spent under caution but prior to arrest will be apparent. The new clause is, therefore, not necessary and I hope that the noble and learned Lord will withdraw it.

Lord Monson

My Lords, I cannot add very much to the arguments advanced so cogently by the noble and learned Lord, Lord Elwyn-Jones, except to express great surprise that the Government are resisting this worthwhile and extremely modest amendment, which one might imagine would attract support from all quarters of the House. I cannot really believe that the bureaucracy argument holds much water.

Lord Elwyn-Jones

My Lords, to call this modest proposal a huge bureaucratic burden is a huge piece of bureaucratic nonsense. It is only when the person who volunteers his attendance is subsequently arrested that these particulars are required: first, that he did attend voluntarily and, secondly, the period of time during which he so attended.

The noble Lord, Lord Renton, found some ground for thinking that the provision was unenforceable. But if later at the trial an issue arose as to the period of time spent, which ought to have been entered in the custody record, that would emerge at the trial. Indeed, if it were the case that there could be a foundation for an unlawful detention, or whatever it might be, other proceedings could produce evidence upon these matters. So in the fullness to time the record would be a valuable measure of defence for the arrested person and a valuable element in his defence.

I confess that, like the noble Lord on the Cross-Benches, I find the reaction to the modest proposal quite extraordinary. The provisions that were provided for in the code of practice were not, if I may say so, directly relevant to the situation with which the amendment deals. But in any event this is of great significance and importance if we are to make a reality of these elaborate rules that people who are suspect or who are later arrested shall not be kept indefinitely in police custody—a point to which we attach great importance. This is a modest provision to protect the subject against a mischief of the kind with which the amendment is inclined to deal. In the circumstances, I move the amendment and will seek the views of the House upon it.

9.39 p.m.

On Question, Whether the said amendment (No. 64) shall be agreed to?

Their Lordships divided: Contents, 47; Not-Contents, 56.

DIVISION NO. 4
CONTENTS
Ampthill, L. McNair, L.
Attlee, E. Mar, C.
Auckland, L. Masham of Ilton, B.
Beaumont of Whitley, L. Monson, L.
Boston of Faversham, L. Mountevans, L.
Carmichael of Kelvingrove, L. Nicol, B.
Cledwyn of Penrhos, L. Phillips, B.
David, B. [Teller.] Pitt of Hampstead, L.
Diamond, L. Raglan, L.
Donaldson of Kingsbridge, L. Saltoun, Ly.
Elwyn-Jones, L. Stedman, B.
Ezra, L. Stewart of Alvechurch, B.
Foot, L. Stewart of Fulham, L.
Gifford, L. Stoddart of Swindon, L.
Graham of Edmonton, L. Taylor of Blackburn, L.
Grey, E. Tordoff, L.
Hanworth, V. Underhill, L.
Houghton of Sowerby, L. Walston, L.
Inglewood, L. White, B.
Kagan, L. wigoder, L. [Teller.]
Kilmarnock, L. Wilson of Rievaulx, L.
Lawrence, L. Winchilsea and Nottingham,
Lockwood, B. E.
Mackie of Benshie, L. Wootton of Abinger, B.
NOT-CONTENTS
Allerton, L. Glenarthur, L.
Avon, E. Gowrie, E.
Belstead, L. Gray of Contin, L.
Blake, L. Hives, L.
Boardman, L. Hood, V.
Brabazon of Tara, L. Hornsby-Smith, B.
Brougham and Vaux, L. Ingrow, L.
Caithness, E. Long, V. [Teller.]
Carnegy of Lour, B. Lucas of Chilworth, L.
Coleraine, L. Macleod of Borve, B.
Colville of Culross, V. Margadale, L.
Cork and Orrery, E. Marshall of Leeds, L.
Cornwallis, L. Monk Bretton, L.
Cox, B. Morris, L.
Davidson, V. Norfolk, D.
Drumalbyn, L. Pender, L.
Elliot of Harwood, B. Rankeillour, L.
Elton, L. Renton, L.
Enniskillen, E. Rochdale, V.
Faithfull, B. Savile, L.
Ferrier, L. Stodart of Leaston, L.
Gainford, L. Suffield, L.
Gardner of Parkes, B. Swinton, E. [Teller.]
Glanusk, L. Trefgarne, L.
Trumpington, B. Whitelaw, V.
Ullswater, V. Wise, L.
Vickers, B. Wynford, L.
Westbury, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.48 p.m.

Clause 29 [Arrest elsewhere than at police station]:

Baroness Trumpington moved Amendment No. 65: Page 24, line 38, after ("constable") insert ("for an offence").

The noble Baroness said: My Lords, Clause 29 as drafted requires that a person who is arrested should be taken to a police station as soon as practicable. While this provision is clearly right in the case where a person is arrested for an offence, we have come to the conclusion that it would lead to undesirable and unintended consequences where the arrest is otherwise than for an offence. The case of Section 136 of the Mental Health Act 1983 provides a good example. This empowers a constable to arrest a person who is apparently suffering from a mental disorder and in immediate need of care or control and to remove him to a place of safety. A place of safety may he a hospital, residential home or other suitable accommodation as well as a police station.

We do not want to require anyone arrested under Section 136 to be taken to a police station when it would otherwise be perfectly feasible to take him direct to a hospital. The amendment ensures that the clause does not interfere with other powers and I feel your Lordships will all welcome it. I beg to move.

Lord Elwyn-Jones

My Lords, this would seem to be a beneficial provision.

On Question, amendment agreed to.

Baroness Trumpington moved Amendment No. 66: Page 24, line 39, at end insert ("for an offence").

On Question, amendment agreed to.

Clause 31 [Search upon arrest]:

Lord Trefgarne moved Amendment No. 67:

[Printed earlier: col. 221.]

The noble Lord said: My Lords, on behalf of my noble friend I beg to move this amendment, which is consequential on Amendment No. 36.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 68: Page 26, line 33, leave out ("police detention") and insert ("lawful custody").

The noble Lord said: My Lords, may I speak at the same time to Amendment No. 72. Page 27, line 30, leave out from ("that") to ("or") in line 31 and insert ("he might use it to assist him to escape from lawful custody").

Clause 31(2)(a)(i) permits a constable to search an arrested person for an article which he might use to help him to escape police detention. Police detention, as defined in Clause 115(2), only begins once an arrested person is taken to a police station. Clearly it is as desirable to prevent an arrested person from escaping en route to the station, as it is after he gets there. The first amendment therefore ensures that escape equipment may be seized on arrest whether it is to be used at the police station or on the way there. The second amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 69:

[Printed earlier: col. 221.]

The noble Lord said: This amendment is consequential on Amendment No. 36. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 70: Page 27, line 2, at end insert— ("(3A) The powers conferred by this section to search a person are not to be construed as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves.").

The noble Lord said: My Lords, in Committee the noble Lord, Lord Gifford, proposed that the same rule governing search in public which is contained in Clause 2(9)(a) should apply to Clause 31. We agree. This amendment is the result. I beg to move.

Lord Elwyn-Jones

My Lords, I am grateful to the noble Lord for attributing the paternity of this amendment to my noble friend Lord Gifford. We of course approve of that of which we claim paternity.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 71:

[Printed earlier: col. 221.]

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 36. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 72:

[Printed above.]

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 68. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 73:

[Printed earlier: col. 224.]

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Clause 33 [Limitations on police detention]:

Lord Trefgarne moved Amendment No. 74: Page 29, line 7, at beginning insert ("Subject to subsection (2A) below,").

The noble Lord said: My Lords, similar amendments were proposed in Committee by the noble Lord, Lord Elystan-Morgan. We accepted their principle. These amendments honour the undertaking then given. They will ensure that the custody officer's duty to direct the release of a person in police detention if there are no longer grounds for detaining him applies even if the person is not at the police station at the time but is, say, under police guard at a hospital. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 75: Page 29, line 7, leave out ("at a police station").

The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendments Nos. 76 and 77: Page 29, line 9 leave out ("at that station") Page 29, line 15, at end insert— (" (2A) No person in police detention shall be released except on the authority of a custody officer at the police station where his detention was authorised or, if it was authorised at more than one station, a custody officer at the station where it was last authorised.")

The noble Lord said: My Lords, I apologise for my earlier slip. May I move this amendment and the next one en bloc. I beg to move Amendments Nos. 76 and 77.

On Question, amendments agreed to.