HL Deb 26 July 1984 vol 455 cc426-57

4.56 p.m.

Further considered on Report.

Clause 36 [Duties of custody officer before charge]:

Lord Hutchinson of Lullington

moved Amendment No. 78A: Page 31, line 15, at end insert ("in the presence of a solicitor if he so requests"). The noble Lord said: My Lords, this is not an amendment that depends on the intervention of the Almighty for its solution. In moving the amendment, I should like to speak also to Amendments Nos. 81 and 85, which seek to insert similar words in similar circumstances, and also to refer, as I must, to Amendment No. 115.

The Parliamentary Under-Secretary of State, Home Office (Lord Elton)

My Lords, will the noble Lord forgive me? I think that there should be the letter A after each of the numbers he has mentioned.

Lord Hutchinson of Lullington

My Lords, I am much obliged. There is an A after the Nos. 81, 85 and 115.

Amendment No. 81A: Page 38, line 35, at end insert ("in the presence of a solicitor if he so requests").

Amendment No. 85A: Page 41, line 2, at end insert ("in the presence of a solicitor if he so requests").

Amendment No. 115A: Page 55, line 3, at end insert— ("(3A) An officer of at least the rank of inspector may give a notice under subsection (3B) below if he has reasonable grounds for believing that any act likely to be done by a solicitor consulted by a person in the exercise of the right conferred by subsection (1) above—

  1. (a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or
  2. (b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
  3. (c) will hinder the recovery of any property obtained as a result of such an offence.
(3B) A notice under this section is a notice stating the reasons why the officer wishes the solicitor to refrain from doing a specified act for a specified period not exceeding 36 hours from the relevant time. (3C) An officer may give a notice under subsection (3B) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable. (3D) If a notice under subsection (3B) above is given—
  1. (a) the detained person shall be informed of it; and
  2. (b) it shall be noted on his custody record.
(3E) The duties imposed by subsection (3D) above shall be performed as soon as is practicable. (3F) If the reasons for giving a notice under subsection (3B) above shall cease to subsist before the period specified in the notice has expired, the officer giving the notice shall so inform the solicitor as soon as is practicable, and thereupon the notice shall cease to have effect. (3G) So long as a notice under subsection (3B) above remains in effect, the solicitor to whom it has been given shall not be treated as being under any duty to his client to do any act mentioned in the notice."). This is a short but crucial amendment that to a degree foreshadows a later debate that we shall have on Amendment No. 131 of the noble and learned Lord, Lord Scarman, and Amendment No. 139, to be moved by the noble and learned Lord the Lord Chancellor.

Amendment No. 131: After Clause 73, insert the following new clause:

("Improperly obtained evidence.

.—(1) If it appears to the court in any proceedings that any evidence (other than a confession) proposed to be given by the prosecution may have been obtained improperly, the court shall not allow the evidence to be given unless—

  1. (a) the prosecution proves to the court beyond reasonable doubt that it was obtained lawfully and in accordance with a code of practice (where applicable) issued, approved, and in force, under Part VI of this Act; or
  2. (b) the court is satisfied that anything improperly done in obtaining it was of no material significance in all the circumstances of the case and ought, therefore, to be disregarded; or
  3. (c) the court is satisfied that the probative value of the evidence, the gravity of the offence charged, and the circumstances in which the evidence was obtained are such that the public interest in the fair administration of the criminal law requires the evidence to be given, notwithstanding that it was obtained improperly.

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

  1. (a) in breach of any provision of this Act or of any other enactment or rule of law; or
  2. (b) in excess of any power conferred by or obtained under this Act or any other enactment; or
  3. (c) in breach of any provision of a code of practice issued, approved, and in force under Part VI of this Act; or
  4. (d) as a result of any material deception in obtaining or exercising any power under this Act or any other enactment.").

Amendment No. 139: After Clause 75, insert the following new clause:

("Exclusion of unfair evidence.

.—(1) Where in any proceedings the prosecution proposes to rely on evidence which has been obtained from an accused person, the court may refuse to allow the evidence to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would be so prejudicial to the fairness of those proceedings that the court ought not to allow it to be given.

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.").

At the Committee stage—

Lord Elton

My Lords, I hope that I am not being a nuisance but I think that the noble Lord will agree that he will also be speaking to Amendments Nos. 116 and 118, which are part of a group and which should appear on the Order Paper at this point.

Amendment No. 116: Page 55, line 4, leave out subsections (4) to (18).

Amendment No. 118: After Clause 57 insert the following new clause:

("Questioning of arrested juveniles.

.—(1) An arrested juvenile shall only be questioned in the presence of an appropriate adult who is not a police officer subject to subsection (4) below.

(2) Subject to subsection (3) below, an arrested juvenile shall be entitled, if he so requests. to appoint the appropriate adult person of his choice who may be present during questioning in accordance with subsection (1) above.

(3) An 'appropriate adult person' may include any person so informed under section 55 of this Act, or any person so informed under section 54 of this Act, or any solicitor.

(4) Where any such adult persons are unavailable or unavailable within reasonable time, any other adult person who is not a police officer must be present in accordance with subsection (1) above.").

Lord Hutchinson of Lullington

My Lords, that is so. I am much obliged. At the Committee stage the noble and learned Lord, Lord Denning, said that this, in his opinion, was the most important part of the Bill because it introduces a new concept into English law, the statutory power to detain someone simply for the purpose of questioning him, that is, to detain him in custody in order that he may be questioned. Your Lordships know that on Clause 36(2) we were involved mainly at the Committee stage with the words, to obtain such evidence by questioning him". Your Lordships decided on a Division to retain those words, and this amendment adds to them, at the end of subsection (2): in the presence of a solicitor if he so requests". Amendments Nos. 81A and 85A say the same thing in relation to later stages, when permission has been given for later and further and extended custody.

I should like to emphasise, particularly for those noble Lords who are not lawyers and are genuinely concerned to see, in no party way, that the balance between giving the police essential powers and preserving human rights is properly kept, what exactly this clause is providing in the way of powers. It means that a suspect who has the fundamental right that we have already heard so much about—the privilege against self-incrimination; that is, the right of silence—may be detained in a police station in order to be questioned so that evidence can be obtained from him; in other words, using ordinary language, in order to try to get him to confess, to get him to make an admission.

I am sure all your Lordships would agree that, with this Bill giving that power statutorily for the first time, if ever safeguards were paramount they are paramount in such circumstances. The essential safeguard that this amendment seeks to provide is the central one that if he is to be interrogated then it should be done in the presence of a solicitor if he wishes to have one. No doubt other noble Lords, who I hope will support this amendment, will put forward further reasons, but for me the essential reason for having a solicitor is this. Over recent years there has been a steady series of unacceptable miscarriages of justice. These miscarriages of justice have besmirched the fair face of the criminal justice system, and they are of the deepest concern to all those concerned with the criminal law; particularly, if I may say so, to those who have the responsibility of prosecuting in Her Majesty's courts.

These miscarriages of justice have come to light, not through the appeal courts but through outside agencies, and, above all, through the activities of Justice, the British section of the International Commission of Jurists. As your Lordships know, at the moment the chairman is my noble friend Lord Foot. They have come to light through the activities of Justice in particular, but also through the activities of various media organisations and through individuals such as Mr. Ludovic Kennedy; and on a number of occasions purely and simply because someone has come forward and confessed to a crime for which another person has been convicted and is serving a sentence of imprisonment.

What has been the common denominator of these miscarriages of justice? In almost every single one, for some reason or other, there have been false confessions, false admissions. I am not going to enumerate a large number of them, but your Lordships will be familiar with the very latest one, the case of Mycock, which only last week was decided by the Court of Appeal on a reference, the Court of Appeal having dismissed the appeal 16 years ago. That appeal has now been allowed. That defendant has been in prison for 16 years. The appeal was allowed on the basis that the scientific evidence was no longer reliable. But in that case there was a confession. Of course, it is not on the basis that the confession was false that the appeal has been allowed, but the fact of the matter is that the confession must have been false.

Other cases include the Confait case, which has given rise to the whole of this Bill and is the reason that we are here. In that case, Sir Henry Fisher found that the questioning of one of the accused was unfair and oppressive. As your Lordships well know, in the Evans case a man was hung because he made a confession which after his death was discoverd to be a false confession. The case of Patrick Meehan is another instance where there were malpractices in the investigation in the police station; and your Lordships will know about the Luton murders, referred no less than five times to the Court of Appeal. In that case, statements and the contents of the statements were suppressed in the police station.

These miscarriages of justice surely must come to an end. They all have this common denominator, that if those accused persons had had a solicitor present when they were in the police station, in custody, probably none of those miscarriages of justice would have taken place. I know that my noble friend Lord Foot can speak with much more authority than me about the many other miscarriages which Justice have brought up over the last 10 or 12 years, nearly every one of them due to false confessions.

It will be said—it has already been said—that the code and Clause 57 of the Bill give a statutory right to legal advice. It is excellent that this Bill provides statutorily for that. But, of course, that same right can be removed and suspended at the say-so of the police if certain conditions are fulfilled. The right is nothing new. For a long time there has been the right, under the Judges' Rules, to legal representation in these circumstances. But, again, in the Judges' Rules power is given to the police to suspend the right in certain circumstances. It is that suspension that has given rise to many of these false confessions. At the moment, in the Bill, the right can be suspended if a senior police officer—I welcome that, because before it was any police officer—has reason to believe that harm might come to evidence, that other suspects might be alerted or that the recovery of property might be hindered. These are all reasons which can so easily be invoked in almost every serious case where a person is charged.

Why should this amendment not be accepted by the Government? At the Committee stage the noble Lord the Minister conceded that there was a strong case for an unqualified right to legal representation. He pointed out that it exists in many other Western countries. The Royal Commission found that the argument was finely balanced between the two views, as to whether or not there should be power to suspend the right. In the end, the Royal Commission came down in favour of that power being granted but said the officer involved should be no lower in rank than a sub-divisional commander.

The noble Lord the Minister said in Committee that the only reason for retaining this power to suspend the right was the risk of inadvertent damage being done, not by a dishonest solicitor but by an ordinary, straightforward, honest solicitor who might inadvertently give information which it was crucial should not go outside the police station. We deal with that matter in Amendment No. 115A. Your Lordships will see when we come to deal with that amendment that we have set out a code whereby the solicitor can be formally asked by the officer in the police station and there will be set down what it is that the officer requests the solicitor not to do or not to divulge, or the person with whom he is not to get in touch.

So the situation will be perfectly clear to the solicitor when he goes into the police station and when he is present during the interrogation. I am thinking particularly of those rare occasions when, for example, there is concern about tipping off another alleged co-defendant or—to take the example which the noble Lord the Minister put forward in Committee —there could be a kidnap case in which the kidnapped person might be murdered if information got out. In those circumstances there is not a solicitor in the country who would not of course observe the officer's request. That is set out in Amendment No. 115A, and I suggest that it is the complete answer to what has been put forward as the only reason for not giving this right to a person who is in custody in the police station.

It would mean of course that the solicitor would bear and carry the responsibility. The solictor is an officer of the court, as are members of my own profession, and day in and day out we have to make decisions as regards which very often we have to put considerations of justice above our duty to our client. It is not a decision which is particularly difficult to reach. We have to make it over and over again. It is very like the type of decisions that doctors have to make in certain circumstances. Indeed, it is like the decisions that all professsional men have to make. Solicitors are covered by disciplinary rules and regulations in the same way as police officers are covered. This Bill is put forward on the basis that police officers act honestly and that if they do not do so they are liable to disciplinary sanctions. They are dealt with in the same way as solicitors.

Finally, the noble Lord, Lord Allen of Abbeydale, the noble Lord, Lord Renton, and the noble Baroness, Lady Ewart-Biggs, have all shown concern about what happens to young people, children and those who are in any way mentally unwell, when they are taken to a police station. They were concerned that all of them ought to have an adult with them when they are questioned. I support that proposition 100 per cent. But I would point out to them and to those who are to support them in their amendments, that the suspect—who in many, many cases is inadequate, fearful and so on—is just as much in need of protection in many cases as are those particular classes of people. Therefore, for those reasons I beg to move this amendment and I ask your Lordships to support it.

Lord Denning

My Lords, I am against the amendment. I can understand the anxiety of my noble friend Lord Huthchinson about cases which have arisen of late in which men have been shown to have been wrongly convicted, and there is also the question of confessions. That, I suggest, has nothing to do with the present clause or amendment. I trust that the confessions will be dealt with when we discuss the amendments of the noble and learned Lord, Lord Scarman, and the other amendments which deal with that matter later.

At the moment we are considering the case of a serious crime when the police do not know who committed it and they want to find out, investigate and to make inquiries all round. How far are they to be trammelled by the thought: is the man who they have before them to be able to notify his solicitor and to have his solicitor present, when there is a danger that, if that solicitor is alerted—it may be quite innocently—that solicitor or his clerk may tell other people where the stolen goods are or where the money has gone or they may alert the witnesses, and so on?

There is a good illustration, as I said previously in Committee, in the case of Houghton. In that case £2.5 million was stolen from Heathrow and there was a reward offered of £125,000. A man named Houghton wished to get that reward and he went to the police and said, "I can tell you something about that. I can tell you that £½million of it went to Ireland". The police were most interested. They asked him to make a statement, and he did so. It turned out that the police were a little suspicious because he knew a little too much about it—was he perhaps one of the accomplices himself? So they cautioned him, they took his statement and they did not tell any of his accomplices about it. They did not tell his solicitor. They kept it all to themselves and they kept him incommunicado while they followed up the leads. Those leads led them to Dublin and I think that eventually they got the £½million back.

Then the question arose before the court as to whether the police had acted properly or improperly and whether indeed Houghton ought to have been questioned in the way in which he was questioned. Lord Justice Lawton in giving the judgment of the court approving, in effect, what had been done by the police—not the law of it—said: there was a danger that if Houghton had been allowed visitors whilst at the police station he could have got them to collect the money for him and put it in a place where the police could not get it. A solicitor could have been an innocent channel of communication for this purpose". It is well known that the criminal fraternity in this country have access to solicitors and it is quite right that they should do so. Many solicitors have clients throughout the criminal fraternity and it is quite right that they should do so. But if a solicitor is told, "Your client Houghton is being detained. He wants to come and see you, but I must give you a notice that I cannot allow it; it is too dangerous", and if it is listened into by his clerk on the telephone or by anyone else, is there not a danger that most important information will be conveyed to accomplices and that other people may be alerted and may make their escape? Is there not a danger of witnesses not appearing? In serious cases of this kind, there is a real danger. I say nothing against the solicitor because he will be honourable and right. He belongs to a profession on which I have placed the greatest value throughout my professional career.

However, there is a danger in these serious cases that, if the police are bound to communicate with the solicitor, somehow or other the information may get round to the accomplices and all the efforts of the police may be thwarted in that way. The safeguard against that is given in the clause itself as it stands. The man is entitled to a solicitor; he is entitled to consult him, save when a superintendent or an officer of higher rank is quite satisfied that that right ought to be held up for a time because of the danger of witnesses diappearing and the money getting away, and all the dangers which such publicity would give to the cause of justice. I suggest that it is one of those cases which illustrates the importance in this day of the investigation of offences and their detection being given priority. For that reason the superintendent or higher rank should be authorised to say, "You will be allowed to see your solicitor, but not for the moment. There are too many dangers involved, and we must continue to make our investigation". On the whole, although it is a most important point, I would be against the amendment.

5.20 p.m.

Lord Mishcon

My Lords, it is indeed an important matter, and all of us will be glad to have had the benefit of the advice of the noble and learned Lord. Possibly it is fitting at this moment that a solicitor stands before your Lordships in order to give another point of view. In the Bill as it stands, this is what we are doing. I ask your Lordships not to think the whole time of a crime similar to that to which the noble and learned Lord referred us, involving millions of pounds worth of gold, or whatever it may be, and obviously being a classic crime of the highest order. Here, under the Bill as it stands, we are considering a serious arrestable offence. We had trouble with the definition of "serious arrestable offence", and the noble Lord the Minister found that he could not give way in regard to the major criticisms that we then made of it. One of the definitions of a "serious arrestable offence" is an offence which, in the view of the police officer concerned, causes a serious financial loss to someone. As we explained, the serious financial loss could be to the widow who has been robbed of her mite; it could be the pettiest theft, but it would still be a serious arrestable offence. It would be something that offended against the conscience of everyone of your Lordships, but obviously when it came before the court it would not be a case of the category to which the noble and learned Lord referred.

Before I dispose of that part of the argument, with the greatest possible respect to the noble and learned Lord, may I raise this point. The noble and learned Lord paid a compliment to my profession, which indeed has always honoured him, and honoured him especially in regard to the care that he took of that profession when he was Master of the Rolls. Referring to the very case which the noble and learned Lord quoted, what does one think a solicitor would have done had he come along at the very moment after this man had been detained at a police station? He was a man who subsequently confessed anyway; and one must not take it for granted that force or some other improper means were used. The noble and learned Lord did not include that dramatic matter in the story; if he had, with his usual wonderful way of telling a story I have no doubt that we would all have appreciated it.

What member of my profession, worthy of his salt, on being told by that man what he in fact told the police, would not have advised that his best course was as soon as possible to say all that he knew about the matter and to ensure (as was the case here without the solicitor) that the gold, or whatever it was, was recovered, so that the solicitor, with counsel helping, might do his best for his client in a plea of mitigation? I know of no member of my profession who would not have given that advice, and the end was the same, except that the confession came after some 90-odd hours, whereas the confession might have come 24 hours afterwards if a solicitor, an honourable member of my profession, had been consulted. Therefore, I beg the noble and learned Lord not to use the great weight of his prestige and experience in putting that as a case which ought to persuade your Lordships that the right to see a solicitor should be postponed.

Having said that, let us take it for granted that we are dealing with someone who is innocent. In the Bill as it stands, that person, by way of detention, can be held for 96 hours. In certain circumstances, for up to 36 hours his relatives and friends cannot be told that he is even in a police station. Again, in certain circumstances that same man can be deprived of seeing a solicitor for 36 hours. What are we doing in this legislation in regard to the freedom of the subject? It may be of assistance to the policec—and we want to assist the police—but is not too much assistance being given to the police in these matters and too little to the individual who is scared inside a police station? I put it perfectly bluntly to your Lordships: he is scared out of his life, with no chance of finding out his legal rights, with no chance of even his family knowing that he is there. These are the rights that we are giving to the police.

However, let us concentrate on the solicitor. I agreed with every word that the noble Lord, Lord Hutchinson, said. He was right to bring before your Lordships the need to have a solicitor available to an accused as soon as is practicable. In sheer honesty I must say to him that when he talks about the notice contained in Amendment No. 115A, my own profession has the gravest misgivings about the duty that would be cast upon its members if such a notice was served, and where their duty was split they would find it an undesirable precedent. According to my memory, the last line of that amendment says that during the currency of the notice the solicitor's duty to his client is suspended. That is an innovation in our law which my profession would regard as an inroad into their duties and privileges and which they would find it very difficult, if not impossible, to accept. But that does not mean that the spirit of this amendment is not right.

In conclusion, I would make an appeal to the noble Lord the Minister. I speak on behalf of the Law Society, and I have authority to do so. The Law Society is very worried about the hold-up of 36 hours. It feels that the police—with some justification from the police point of view—may really hold matters up because they believe that once a solicitor comes along it will not be so easy to obtain the confession that they would rather like to obtain. From their point of view that will be a sufficient justification. The Law Society is worried about this in the interests of justice; it is worried about it in the interests of the fairness of the administration of justice. There should be a formula which covers the anxiety of the noble Lord the Minister, speaking on behalf of the Government, and which also protects the concern of the Law Society. I beg the noble Lord the Minister to allow an opportunity to occur between now and Third Reading for such a formula to be worked out with the Law Society. I ask him to make those facilities available. If such a formula can be discussed I hope it will be considered at the highest level—and that may enable a compromise solution to be before your Lordships at Third Reading.

The worst that could happen would be that if those discussions failed and a formula was not found acceptable to the noble Lord the Minister or his right honourable friend then your Lordships might consider such amendment as the Law Society might authorise me to put down before your Lordships.

5.31 p.m.

Lord Foot

My Lords, I intervene in this debate with some hesitation because I had come here intending to make a speech along certain lines. It has become unnecessary for me to do that in view of the admirable way in which this amendment and the other amendments which are connected with it were put to your Lordships by the noble Lord, Lord Hutchinson of Lullington. I wanted to take the opportunity to try, if I can (I do this with the greatest possible temerity) to deal with two points made by the noble and learned Lord, Lord Denning.

I have no qualifications that one could compare with his in any way, but I have a qualification which, in connection with this amendment, is perhaps of some virtue and consequence; that is that I am a solicitor by occupation. I have spent the greater part of my professional life in the courts and in criminal matters. Therefore I have the benefit of some experience.

The other qualification I have which is purely adventitious is the one that the noble Lord, Lord Hutchinson, was good enough to refer to. That is that I am currently chairman of the council of Justice.

Although I have played no part in it myself, I am proud of the record of Justice over the years in turning up the cases of miscarriages of justice which have occurred. That task was undertaken for many years by the secretary of Justice, Tom Sargant. Many people owe their liberty today to the investigations that he made on their behalf.

It is perfectly correct that over the years Justice has been able to bring cases back to the Court of Appeal or to the Home Secretary and has had miscarriages of justice put right. But one wonders how many other cases are there where people are incarcerated, and may have been incarcerated for many years, on the basis of a confession, and sometimes only on the basis of confessions. It is an appalling thought that that state of affairs may exist to this day. That is why it is of prime importance that we should consider every possible way in which we can avoid these false confessions being made. The most certain way of avoiding that is to make sure that when a person is interrogated by the police, and when they are seeking to get a confession, that person has a solicitor by his side.

The importance of that is declared perfectly clearly in the first subsection of Clause 57 where it says in ringing terms: A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time". I am bound to say that I was saddened and astonished to hear the noble and learned Lord say at the beginning of his speech that he thought that there was no connection between this amendment to provide the services of a solicitor to a person in police custody and false confessions. I should have thought that the whole history of all the cases of false confessions is a history of something being extracted from some person when he is in the custody of the police and when he is not defended or helped in any way. That is how it comes about-It astonishes me to hear the noble and learned Lord asserting that there is no connection between the two.

The noble and learned Lord's second point was that unless we allow the Bill to stand as drafted if one brought a solicitor in, and allowed a man to see a solicitor and get advice before he had been interrogated by the police, there was a risk: not that the solicitor would take part in a conspiracy to pervert the course of justice or pass on information to one of his confederates, but the risk was, according to the noble and learned Lord, that the solicitor might inadvertently convey to some outside party something that the police thought it necessary for them not to know. I cannot think that the noble and learned Lord has read Amendment No. 115A, the proposed amendment to Clause 57 which is the clause dealing with access to legal advice.

I shall briefly explain to the House what that amendment provides. We readily accept what was said by the noble Lord, Lord Elton, at Committee stage upon this matter. The noble Lord, Lord Hutchinson, has already referred to this; but I should like to quote in fairly full detail what Lord Elton said at that time. The noble Lord was talking about this subject, the risk of a solicitor interviewing a man in custody and then conveying some information to his confederates outside. What he said was this: I should like to ensure at once that there is no misunderstanding on one important point. The only reason for delaying access to a legal adviser concerns the risk that he would, either intentionally or, as in the example I have already given, and much more frequently, inadvertently convey information to confederates still at large which would undercut the investigation in progress and possibly imperil life. It is these considerations alone which lie behind subsections (5) to (9) of Clause 54. It is not now Clause 54, but I believe it is Clause 57. The quotation continues: What a suspect's legal adviser says to him can never be a ground for delaying a consultation between them. That is accepted. Delay can be authorised only on the basis of what the legal adviser might then do, once the consultation has been completed. I will not weary the House with too much of this, but the noble Lord went on to say this: There may or may not be dishonest solicitors. I would be surprised if there were not, but I would not wish to repose much on it. It is certainly true that if the police suspect a solicitor of obstructing the course of justice they should acquire the evidence on which to act, whether by way of a prosecution or complaint to the Law Society."—[Official Report, 9/7/1984; cols. 641–642.] What the amendment proposes is that when a man in custody—in detention, not yet charged; a suspect—requests to see a solicitor, he should be afforded the opportunity of speaking to a solicitor before anything else happens. Clause 57 goes on to say that there are, nevertheless, two circumstances in which he shall not be allowed to see a solicitor at all. One is where it is not practicable to get a solicitor there in time and the other is where the course of justice might be perverted by some communication—inadvertent as the noble Lord conceded—being made to outside people. I say in passing that the professional criminal who is well aware of his rights is not going to be embarrassed in any way by being told that he cannot have the help of a solicitor. It is the chap who is not a professional criminal, it is the chap who, possibly for the first time, is being subjected to arrest and detention and who is in a state (as one can well imagine) of considerable alarm who is the person most in need of the assistance of a solicitor.

What does the Bill propose? It proposes that where the police think that there is a danger that if a man sees a solicitor the solicitor may, intentionally or inadvertently, disclose something to the outside world, then, subject to certain safeguards, they can delay the calling of a solicitor. That is what the Bill proposes. What Amendment No. 115A proposes is that if a police officer in charge of a case is of the opinion that it is risky to call in a solicitor, nevertheless, he should call in the solicitor and before the solicitor sees the client he should say to him, "The thing that we are worried about is this. We think that if this chap is allowed to communicate anything to the outside world that may pervert the course of justice, it may upset our inquiries, it may interfere with our inquiries, it may enable people to escape or enable people to hide the loot. All sorts of things can happen".

What the amendment provides is that if the police officer is of that opinion he should then serve a notice upon the solicitor saying, "The reason why we do not want you to disclose anything that you may be told by this man or even the fact that he is in custody is so-and-so. We are serving you now with a notice telling you that and telling you what we do not want to have disclosed". What then is the position on which the solicitor stands on the assumption that he is a honourable man and on the assumption that he is not intending to pervert the course of justice?

A solicitor—and one always says this with a little pride—is an officer of the Supreme Court. His first obligation is to the court, his first obligation is to justice. His obligations to his client are subsidiary to that in so far as they cannot be reconciled. I suggest that the solicitor, faced with such a notice, is in no difficulty whatever. He can make up his own mind as to whether he thinks the notice is justified. If he concludes that it is justified, then I should have thought he will invariably observe it, and he will not allow himself to be used to pervert the course of justice. lf, on the other hand, he thinks that the notice is wholly unreasonable, if he thinks that the delay which is imposed is wholly unreasonable, if he thinks it is unjustified and that the notice is a piece of bureaucratic interference, then what he can do—and he takes the risk of doing this—is to say, "No! I am going to exercise my independent judgment". If as a result of that something goes wrong, then he will be answerable not only to his own profession—not only to his own professional body—but he may be answerable to the courts. That is what Amendment No. 115A seeks to do.

I fail to comprehend how it comes about that the noble and learned Lord can still think that there is any serious danger of there being an inadvertent disclosure by a solicitor in those circumstances—because he will have the fullest possible notice of the things that he must not do. I have spoken for much longer than I intended. I agree with my noble friend Lord Hutchinson that this is the most crucial part of this Bill. We are dealing here with a matter of the rights of the individual when he is at his most desperate and in terror. If it be right that, by the instrument of Amendment No. 115A, we can resolve that difficulty, can protect the rights of the individual and at the same time protect the powers of the police that their cases shall not he upset by wrong disclosure—if we can achieve those two things, as I think we can by Amendment No. 115A—then surely we ought to jump at the opportunity to do so.

Lord Campbell of Alloway

My Lords, may I apologise to your Lordships for not being in my place at the very moment when the noble Lord, Lord Hutchinson, opened the amendment? However, this is an amendment on which I wish to intervene very briefly. First of all, to be fair about this, as I understood him, surely the noble and learned Lord, Lord Denning, was really only seeking to point out that there were other amendments which were designed to avoid false and unreliable confessions. In no way did the noble and learned Lord suggest that we were not concerned with an important safeguard. Where I respectfully differ from the noble and learned Lord, Lord Denning, is that this is one of those safeguards which it seems to me impinges upon the rights of the subject. It is "access to legal advice".

If we are going to have any form of codification—and as I understand that is what this Bill is about—surely in some form we must grasp this nettle. The question to your Lordships is surely not, "Shall we forget about it?" and not, "Shall we pretend that there is no nettle?" but, "What shall we do about it?" This is where I find—as so often I find—the reasoning of the noble Lord, Lord Mishcon, all but compelling. One appreciates some of the points made by the noble and learned Lord, Lord Denning, but one has to set against them the very telling points raised by the noble Lord, Lord Mishcon. His suggestion that an attempt should be made to find some acceptable formula is surely irresistible. We are apparently unlikely to find it tonight because, with respect, it is wholly unrealistic as I see it to seek to discuss this run of amendments without taking into full account all the implications of Amendment No. 115A. My information this morning at 8.30 was that the Law Society supported Amendment No. 115A, and that was confirmed, as I understood it, by the noble Lord, Lord Foot. I heard, and I always accept what the noble Lord, Lord Mishcon, says—and he shakes his head—

Lord Foot

My Lords, may I intervene, because the noble Lord may be pursuing a misconception? What view the Law Society took of the matter at 8.30 this morning is something of which I am ignorant. I did not express any opinion, I think, as to what the view of the Law Society was then or is now.

Lord Campbell of Alloway

My Lords, with respect to the noble Lord, I hear what he says; but Hansard I think will reveal—and if it is a misunderstanding, so be it—that the noble Lord, Lord Foot, said that he had the support of the Law Society. Whether it does or does not, I accept wholly the noble Lord's—

Lord Mishcon

My Lords, would the noble Lord allow me, as he always does with such courtesy, to make the position abundantly clear? I speak with the full authority of the Law Society, which I consulted very fully yesterday. They cannot be in favour of Amendment No. 115A. I am authorised to say that and I have said it very clearly and deliberately, but that does not mean that they are not in complete sympathy with the spirit of this amendment—namely, that there should be the right to consult a solicitor as soon as practicable.

Lord Campbell of Alloway

My Lords, I am very grateful for the noble Lord's intervention because this illuminates the attitude of the Law Society which is now totally clear, totally on the record, and not in doubt in any way. It is one which I support myself. What it comes to is that we cannot accept Amendment No. 115A as it stands and there is a problem of genuine concern which we need time to work out.

In a constructive vein, I would merely suggest that my noble friend the Minister, having listened to a very short but to the point discussion on this subject, might afford us the opportunity needed to allow this important aspect of the codification of the rights of the subject to be considered and formulated in an appropriate way.

In saying that, one surely has to accept that one cannot have one form of procedure in this regard for one type of criminal offence and another for another type of criminal offence. We cannot have one form of procedure for one type of suspect—the old lag—and another type of procedure for the other type of suspect. We certainly cannot have a varying procedure as between one type of solicitors and another. It must be generic, one must strike a mean and one cannot erect partitions such as this without reflecting discretionary decisions which have to be taken by the police in circumstances which might well endanger police-community relations and might well mitigate against the liberty of the subject.

In all those circumstances, it is right—is it not?—that one should see to it that whatever else one does, one does not impose an intolerable and unacceptable burden upon the police. But on the other hand, in the codification, as the noble Lord, Lord Mishcon, said, some formula must be found to recognise this right and to codify it.

Baroness Macleod of Borve

My Lords, we are, as I understand it, discussing Amendment No. 78A, which is to Clause 36, where a person is arrested for an offence without a warrant or under a warrant not endorsed for bail. I feel very stongly that the rights of the individual come in here. I think it is very, very important that an individual who is apprehended and is at a police station should have equal rights with somebody who is before the magistrates or in a higher court—that is, in a court of law. For some time we have had court solicitors, and if any body who was not represented wanted to have some legal advice, we would put that case back so that he could have perhaps 10 minutes or a quarter of an hour to get the help of a legal adviser. If that can be done in court, I personally think it is absolutely right that if an individual is taken to a police station in the circumstances which have already been described, at a certain point—whatever that point is, whether it should be laid down by legislation or whether it should be at the instance of the superintendent or head of that police station—he should be entitled to have legal representation. I would go along with that.

Lord Monson

My Lords, I am sorry to have to disagree with my noble and learned friend Lord Denning but I am very glad to join others in supporting this series of amendments, which I think are very important. I hope the Government will accept them, above all in view of the most comprehensive safeguards now contained in Amendment No. 115A, which the noble Lord, Lord Foot, has explained to us so helpfully. In view of what the noble Lord, Lord Mishcon, has just told us, may I say that when I telephoned a representative of the organisation Justice at about quarter past six yesterday evening, I was given to understand that the Law Society had come round to accepting this series of amendments. It would appear that perhaps they have gone back on that. Nevertheless, I am not certain that the Law Society's present views are necessarily their last word on the subject.

I would agree that, in the absence of the safeguards contained in Amendment No. 115A, there would certainly be room for argument over the merits of the first of these amendments. However, with the safeguards contained in Amendment No. 115A, I would submit that our case is a cast iron one, at least if one considers that protecting the rights of the innocent should be our prime consideration.

Lord Hooson

My Lords, may I just make one point on this subject? We in this House are in great danger with the Bill of getting to a position where we say that in theory a subject has the right to silence, in theory he has the right to consult a solicitor, but in practice we make sure he does not.

5.53 p.m.

Lord Elton

My Lords, perhaps I may start by saying how glad I am to see the noble Lord, Lord Hutchinson of Lullington, fit and well and with us again. I must say that I was tempted to hope that his convalescence would last another 24 hours, but I put that unworthy thought behind me.

Secondly, may I correct an error? I inadvertently put on the record that the group of amendments which your Lordships agreed we are speaking to finishes not with Amendment No. 119 but Amendment No. 118. I had it wrongly marked in manuscript, but your Lordships will see that Amendment No. 119 belongs there and the noble Lord, Lord Mishcon, helpfully semaphored that information to me earlier.

Amendment No. 119: After Clause 57, insert the following new clause:

("Amendment of Prevention of Terrorism (Temporary Provisions) Act 1984

.—(1) The following section shall be inserted after section 13 of the Prevention of Terrorism (Temporary Provisions) Act 1984:— 13A.—(l) A person arrested under section 12(1) above, or arrested or detained under a power contained in an order made under section 13 above shall be informed at once that, subject to the following provisions of this section, he is entitled, if he so requests, to consult a solicitor privately at any time.

(2) A request under subsection (1) above and the time at which it was made shall be recorded in the custody record.

(3) If a person makes such a request, he must be permitted, subject to the following provisions of this section, to consult a solicitor as soon as practicable.

(4) In any case he must be permitted to consult a solicitor within 48 hours from the relevant time as defined in section 39(2) of the Police and Criminal Evidence Act 1984 or, if he has been detained at a place other than a police station, from the time at which he arrived at that place.

(5) Delay in compliance with a request is only permitted if an officer of at least the rank of superintendent authorises it.

(6) An officer may given an authorisation under subsection (5) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

(7) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subsection (1) above at the time when the person detained desires to exercise it—

  1. (a) will lead to interference with or harm to evidence connected with an act of terrorism or interference with or physical injury to other persons; or
  2. (b) will lead to the alerting of other persons suspected of having committed an act of terrorism but not yet arrested for it; or
  3. (c) will hinder the recovery of any property obtained as a result of such an act; or
  4. (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
  5. (e) by alerting any person, will make it more difficult—
  1. (i) to prevent an act of terrorism; or
  2. (ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.

(8) If delay is authorised—

  1. (a) the detained person shall be told the reason for it; and
  2. (b) the reason shall be noted on his custody record.

(9) The duties imposed by subsection (8) above shall be performed as soon as is practicable.

(10) There may be no further delay in permitting the exercise of the right conferred by subsection (1) above once the reason for authorising delay ceases to subsist.

(11) If an officer of appropriate rank has reasonable grounds for believing that, unless he gives a direction under subsection (12) below, the exercise by a person of the right conferred by subsection (1) above will have any of the consequences specified in subsection (7) above, he may give a direction under that subsection.

(12) A direction under this subsection is a direction that the person desiring to exercise the right conferred by subsection (1) above may only consult a solicitor in the sight and hearing of a qualified officer of the uniformed branch of the force of which the officer giving the direction is a member.

(13) An officer is qualified for the purpose of subsection (12) above if—

  1. (a) he is of at least the rank of inspector; and
  2. (b) in the opinion of the officer giving the direction he has no connection with the case.

(14) An officer is of appropriate rank to give a direction under subsection (12) above if he is of at least the rank of Commander or Assistant Chief Constable.

(15) A direction under subsection (12) above shall cease to have effect once the reason for giving it ceases to subsist.".").

All the amendments in the group which comprise Amendments Nos. 78A, 81A, 85A, 115A, 116 and I now, chastened, admit 119, all aim to confer an absolute right to legal advice on all those in police detention. The only exceptions to the rule would be those detained in connection with terrorism. May I first remind your Lordships that the Bill establishes in our law for the very first time a statutory right of access to legal advice which will be an absolute right for all those detained other than in connection with serious arrestable offences.

This is a new and important safeguard to the civil rights of suspects. The right becomes absolute for those suspected of serious arrestable offences at the end of 36 hours. This debate therefore comes down to one question: where should the line be drawn between cases where delay is available and cases where it is not? We all agree that delay should not be available in cases of less serious crime. We are all agreed that it should be available in the case of terrorist crime, and the noble Lords have that recorded in their amendment later on.

What is at issue is the cases in between, cases involving serious arrestable offences. Like the Royal Commission, we believe that delays should in those cases be available. Unlike the Royal Commission, the noble Lords opposite believe that it should not. We cannot discuss the noble Lord's proposal out of context, and the proper context, which has been referred to, is the array of safeguards which the Bill as already drafted activates whenever a decision to delay access to a solicitor is taken.

Let us consider what these safeguards are, and how they will work. As your Lordships will know, under the law at present access to a solicitor may be denied to a person in custody on suspicion of any offence for any length of time on the authority of an officer of any rank on criteria less precise than those in the Bill. The first of the new safeguards applied to that situation is that under Clause 55 delay will be possible only for, at the most, 36 hours in the case of serious crime and on the authorisation of an officer of at least the rank of superintendent, which is higher than that proposed in the amendment.

He cannot make his decision on a hunch or a whim. He will have to have reasonable grounds for believing that access to a solicitor will lead to one of the consequences listed in subsection (7). Moreover, he must inform the detained person of the reason why he has reached this conclusion. Nor will such reasons be left to recollection; they will be a matter of record. They must be noted in the custody record, which will subsequently be available to the person concerned; so there is a clear provision for challenging a decision to delay access to legal advice.

The Bill also makes provision for the establishment of duty solicitor schemes under the Legal Aid Act so that detained persons who want legal advice, at whatever time of day or night, will be able to obtain it. Nor can access to legal advice any more be denied by default. Section 6 of the draft detention code of practice also requires each detained person to be informed at the outset, both orally and in writing, of his right to legal advice. Again, the decision not to allow legal advice will be a matter of specific record. Section 6 requires the police to ask him, if he does not want to take up his right, to waive it in writing. The code goes on to make it clear that a person may have his solicitor present at the interview and that only actual misconduct on the solicitor's part will allow the police to require him to leave.

I have given that discursus having in mind what the noble Lord, Lord Hooson, said a moment ago: that we are concerned with what will happen in practice. This is what will happen in practice where access to a solicitor is granted, as it will be in the overwhelming majority of cases, and what will happen in the few cases where it will not.

I accept, as the noble Lord, Lord Hutchinson, reminded us, that there is a strong case in principle for an unqualified right of access to legal advice. Such rights do exist in many other Western countries and many bodies which gave evidence to the Royal Commission argued for such an unqualified right. Their arguments, like those of the noble Lord, carry great weight. But, of course, the Royal Commission did not feel able to accept those arguments because they feared the practical consequences for the investigation of serious crime that we fear. Clause 57 basically gives effect to the Commission's recommendations; namely, that while there should be a statutory right of access to legal advice, the existing wide discretion to delay access to legal advice should be retained, even if more strictly regulated and narrowed, and should be placed on a statutory basis. That is what is in the Bill.

Let there be no misunderstanding on one important point. The only reason for delaying access to a legal adviser is the risk that he would, either intentionally or inadvertently, convey information to confederates still at large which would undercut the investigation in progress. It is these considerations which lie behind subsections (5) to (9) of Clause 57. What a suspect's legal adviser says to him can never be a ground for delaying a consultation between them. Delay can be authorised only on the basis of what the legal adviser might then do once the consultation has been completed. Indeed, Annex B to the code makes it quite clear that access to a solicitor may not be delayed because he may advise the person not to answer questions. So the provisions in Clause 57 enabling the police to delay such consultations are not concerned with any anxiety arising from the giving of legal advice: they are simply a special case of the provision in Clause 55, enabling the police to hold a suspect temporarily incommunicado.

The arguments are all set out very clearly in paragraphs 86 to 93 of Chapter 4 of the Commission's report, and I do not wish to add much to them. The Commission inferred that solicitors might, on occasion, knowingly alert criminals to the fact that there was a police inquiry and so assist them to escape justice. Whether or not that is the case is for your Lordships and for the Commission, but I must stress that the existence of dishonest solicitors is no part of my case. Even if all solicitors are of unquestionable honesty, there is still the need for a provision under which access to legal advice can be delayed. The reason is that damage can be done by accident and unwittingly as well as by design. If a suspect asks a solicitor to pass on some innocent-sounding message to his wife or a friend, the solicitor may, quite innocently, by so doing cause stolen property to be concealed or accomplices to evade capture. Yes, I will give way. I was about to anticipate the noble Lord: but—

Lord Foot

My Lords, I am grateful to the noble Lord. Would he consider this? If, under our proposals in Amendment No. 115A, the suspect in the police station asks for a solicitor to be sent for, and if the solicitor then turns up and the police officer in charge of the matter—it would be a superintendent under the Bill and an inspector under our amendment—then says to the solicitor, "I don't want you to inform anybody that this man is under arrest, and the reason I don't want you to do that is because", whatever it may be, the solicitor is then apprised of the fact that he must not communicate with the wife and—

Lord Elton

My Lords, will the noble Lord forgive me? I have taken his point. I think the rules of order at Report stage allow him only to ask a question. I think I have got the question he is asking, and the question he is asking (or, at least, the question which I shall convert it into) is: will the police inspector in this case (who is junior to the superintendent) in fact know the way in which the information which he does not want to get out of the police station will inadvertently get out? The first thing is that it may already be too late when the solicitor gets to the police station. The fact that a solicitor has been asked to come and attend to a particular client will be known to his staff, and if it is known to other people as a result of a purely chance conversation that a particular criminal is in the police station and is being helped by the solicitor, then there is nothing in Amendment No. 115A—it does not mention the solicitor's secretary or his clerk—to prevent the information getting out in that way.

The conversations between a solicitor and the suspect are, I take it the noble Lord intends, still to be carried on in private, except for terrorist offences, and so the police inspector will have no idea what has happened between them, and he might be suspicious of a message saying, "Tell my wife to let the pigeons out", or "Feed the budgerigar"; but, of course, he would not know that such a message had been given. So he can only give a blanket prohibition: "Don't talk to anybody about this case or mention the name of this criminal". But it could already be too late, because the purpose for which this meeting is taking place would be known and the cat would be out of the bag.

Perhaps I might also say to the noble Lord, Lord Foot, that we are not dealing here with the single terrified amateur (that was the phrase he used) because the three criteria which justify the delay can only plausibly come into play in the case of the professionally organised criminal. One cannot imagine any of the provisions in subsection (7) leading to interference with or harm to evidence, or physical injury to other persons, or alerting other people who are suspected of having committed such an offence, etc., to the extent that the course of justice would be seriously diverted and the superintendent would have grounds, unless these people were awaiting the signal.

Lord Donaldson of Kingsbridge

My Lords, the noble Lord said, "will lead to interference". The point is that they would lead only if he were guilty. If a man were innocent, they would not lead anywhere.

Lord Elton

My Lords, I readily change that to "would" from "will". I am sorry, but it was a slip. I do not think we ought to assume either the guilt or the innocence of the person in this case, though we were invited at one stage for a moment to take it for granted that he was innocent.

May I offer another reassurance? Whatever may have been the practice some years ago, delay of access is not now a common event. A survey was conducted in all stations in the metropolitan district for the three months' period August to October 1982. That survey found that in the case of persons detained without charge for more than 24 hours but fewer than 48 hours, requests for access to legal advice were refused on only six occasions and that span of time goes beyond what we propose. Nearly half of the 29 persons detained for 48 hours or more asked for legal advice and this was refused on only one occasion.

The fact of the matter is that those who want legal advice are prevented from receiving it only exceptionally at present, and Clause 57 regulates this discretion even more tightly. It contains formidable new safeguards, but the amendments seek to go further and to prevent the police from detaining a person for the purposes of questioning him and at the same time interfering with his right of access to a solicitor.

The trouble is that on rare occasions it may be both right and necessary for the police to do both those things. I am haunted by the vision, which I conjured up at Committee stage, of a person arrested on suspicion of involvement in kidnapping, where there are real grounds for fearing that access to a solicitor or anyone else would result in the murder of the victim. The captors may actually have promised as much. The need to question the subject is evident and the need to keep him temporarily incommunicado stares us in the face, and I am at one with the noble and learned Lord who so ably supported me a moment ago. This amendment could in those cases be no less than a death warrant for the victim.

I do not want to appear intransigent in all this. I have heard what the noble Lord, Lord Mishcon, has persuasively and eloquently said about the concern of the Law Society, and my noble friend Lord Campbell of Alloway also very helpfully illuminated this. I recognise that the Law Society are still concerned about this matter. They no doubt recognise that we also are concerned—deeply concerned—for the safety of the public and for the proper protection of the public from serious crime. This is a concern which we cannot afford to set aside.

But if the Law Society have devised, or can devise, a formula which meets their concern without any threat to the interests which I have stated and which we have a duty to protect, we should be very glad to hear of it. I cannot of course predict the answer to such an approach; but I can say that the Home Office would be interested to discuss such an approach. But what is now on the Marshalled List in this group of amendments is not acceptable and I therefore hope that your Lordships will not attempt to put it into the Bill.

Lord Hutchinson of Lullington

My Lords, in replying very shortly to what has been said, may I make just two or three very brief points? It seems now from what the noble Lord the Minister has said—and I agree with him—that we are dealing with a very few serious cases which come up. But the Minister has not perhaps treated the matter with quite sufficient seriousness when balancing the right of the individual against the power of the police. If we are dealing with only a small number of vital and crucial cases in every year, surely one can ask why therefore should this right not be given?

The miscarriages of justice—to which the Minister did not refer in his reply and which lie at the basis of this amendment—occur in a small proportion of cases. They occur in many cases of murder, where the person is not a criminal but is a member of the public without convictions. But it should be said, too, that the man with convictions also requires the protection of the law if the law is to be the proper procedural law which we can admire, because the man with convictions is often picked up when an offence has been committed which is similar to the kind of offence that he has committed formerly.

He is taken to the police station and interrogated and the suggestion is made that, as he is a bank robber, he has robbed a certain bank. Very often—and this has been shown in the miscarriages of justice—that man is the victim of a miscarriage of justice because if in the trial he suggests that something improper has happened at the police station, then, as your Lordships know, the whole of his convictions can be brought into the trial. Therefore, he is in that sense extremely vulnerable, just as an inadequate and totally innocent person is also extremely vulnerable.

As I think the noble Lord, Lord Campbell, said, you cannot have and you do not want one system for the convicted, the old lag, and another system for the ordinary inadequate or innocent person. They are both vulnerable in exactly the same way as other people who suffer from various other drawbacks are vulnerable. We are all vulnerable when we get into a police station alone. We have certain rights, and this amendment simply sees to it that, in that vulnerable situation from which these miscarriages of justice always come people will simply be told at long last, "You have this right. You shall have this right."

The last point that I want to make to the noble Lord the Minister is that it is not realistic to say that the simple summoning of a solicitor will alert the kidnapper, who will kill the victim. If that situation arises, all the police have to do is to get hold of the duty solicitor who is provided for in the Bill. He will always be on duty under this scheme and will be told, "There is someone here who requires your assistance." There is no need to give any names. There is no need to give away anything at all. The duty solicitor will come and he will be told of the serious situation, as the noble Lord, Lord Mishcon, said. Having been told that, he will consider the circumstances. We all have to make these decisions, and in those circumstances the administration of justice comes above the interests of the client.

Having said all that, and having expressed my disappointment in the reply of the noble Lord the Minister, I heard in his last words some possible encouragement to us on this matter. If I heard that—and I hope that I heard it rightly—and he undertakes to consider this matter and to receive any suggestions which may come forward from the Law Society to resolve this problem, which is recognised throughout the House as a fundamental one, then I do not wish to divide the House. It is on that basis that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.19 p.m.

Baroness Ewart-Biggs

moved manuscript Amendment No. 78B: Page 32, line 20, after ("him") insert ("and any person who is required to be informed of his detention under section 55 of this Act"). The noble Baroness said: My Lords, this amendment is similar to one which was part of a group moved at Committee stage. The general principle behind all those amendments was to make it the duty of the police to inform a parent or an independent adult of the detention of a juvenile and to keep such an adult informed of all the different stages through which the juvenile will pass during detention. I shall not go through all the arguments which were used in support of the amendments because although the Minister did not smile upon all the amendments in that group, he nevertheless accepted this amendment in principle. However, he said that he needed to give further thought to the drafting. Therefore, we are moving it again today to remind the Minister of his commitment and to make sure that the small crumb of comfort which he gave to us at the Committee stage will not be swept under the carpet. I beg to move.

Lord Elton

My Lords, I am quite happy to repeat the undertaking which I gave at the Committee stage. I assure the noble Baroness that we have not forgotten our undertakings. We intend to bring them forward at Third Reading, if they cannot be brought forward at Report.

Baroness Ewart-Biggs

My Lords, in view of that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 [Responsibilities in relation to persons detained]:

Baroness Trumpington

moved Amendment No. 79: Page 34, line 28, leave out from ("If") to second ("the") in line 30 and insert ("an arrested juvenile is transferred to the care of a local authority in pursuance of arrangements made under section 37(7) above,"). The noble Baroness said: My Lords, this is a drafting amendment which I beg to move.

Baroness Macleod of Borve

My Lords, Section 37(7) is mentioned in this amendment, where the word "impracticable" is used. My noble friend Lady Faithfull has asked me to ask my noble friend whether or not these words are too wide. Will a juvenile be able to be held in custody instead of being put into the care of the social services—which I know everybody wishes to happen, including the Government—if no place can be found for that juvenile? On behalf of my noble friend, may I ask for elucidation of that word?

Lord Elton

My Lords, on my noble friend's behalf, may I assure my noble friend, who is speaking on her noble friend's behalf, that the intention is simply to provide against rare occurrences. It may happen, for instance, that all the social workers in a particular local authority area are on strike and refusing to accept people—or there may be a blizzard, or something of that nature. It is not a device to slide out of the commitment which we have already given.

Lord Donaldson of Kingsbridge

My Lords, the noble Baroness, Lady Faithfull, was worried about resources. She thought that Section 37(7) could easily cover the situation where a local authority's expenditure has been cut, which we know happens all too often, and where the available facilities are overstretched, in which case the police could say, "It is not practicable" and therefore not do it. The noble Baroness was very anxious to be reassured on this point. What the noble Lord has said does not quite give us that reassurance.

Lord Elton

My Lords, I cannot remember verbatim what I said in Committee, but I remember what was in my head. What was in my head was that local authorities have arrangements between each other, which mean that they take in difficult cases from neighbours. I think my noble friend was worried in particular about unruly certificates and really difficult children. The fact is that, regardless of the level of resources, it is not always necessary to have separate provision for this type of case in, for instance, every London borough. Therefore, one borough will have the accommodation and charge the other boroughs for it. So the resources question is already overcome. That is, I believe, more or less how I expressed it in Committee. If there is any shade of meaning which has escaped me or which I have falsely painted into the picture, I shall write to my noble friend, to my noble friend's noble friend and to the noble Lord, Lord Donaldson of Kingsbridge.

Lord Elwyn-Jones

And, my Lords, to the noble Baroness, Lady Faithfull, who is most concerned about this.

On Question, amendment agreed to.

Baroness Ewart-Biggs

moved manuscript Amendment No. 79ZA: Page 34, line 32 at end insert— (" ( ) It shall be the duty of the local authority to ensure that the arrested juvenile is treated in accordance with the duties and responsibilities imposed on the local authority under section 18(1), (2) and (3) of the Child Care Act 1980 in respect of children in their care."). The noble Baroness said: My Lords, this is another amendment which we moved at the Committee stage and towards which the Minister was sympathetic. Although in no way casting doubt on the Minister's words—far be it from me to do so—I should like his commitment that this matter will be dealt with at Third Reading. I beg to move.

Lord Elton

My Lords, on this occasion my answer is the same as my answer to manuscript Amendment No. 78B.

Baroness Ewart-Biggs

My Lords, I thank the noble Lord, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 [Review of police detention]:

Lord Monson

moved Amendment No. 79A: Page 35, line 19, leave out ("subsection (1)") and insert ("subsections (4) and (4A)"). The noble Lord said: My Lords, with the leave of the House, may I speak at the same time to Amendment No. 79B, for which Amendment No. 79A is a paving amendment. Amendment No. 79B: Page 35, line 40, at end insert— ("(4A) When a review is postponed under subsection (4) above, the review officer shall calculate the timing of subsequent reviews as if no postponement had taken place."). The purpose of these amendments, which have not been entirely easy to draft, is to ensure that if a review of detention has to be postponed for one reason or another, the detainee will not he accidentally penalised thereby. In the normal way, under the provisions of Clause 39, reviews of detention will be carried out at or before the sixth hour of detention and subsequently at or before the 15th hour, the 24th hour, the 33rd hour, the 42nd hour, the 51st hour, and so on. However, as I pointed out at the Committee stage, if the first review cannot be carried out until, say, 11 hours of detention have elapsed, as Clause 39 stands the subsequent reviews need not be carried out before the 20th hour, the 29th hour, the 38th hour, the 47th hour, and so on. In other words, there is no provision for compensating for the delay. There is no provision for catching up.

At the last stage, the noble Lord, Lord Elton, acknowledged that there was a problem and promised to look at it. However, it is obvious that time has not permitted him to put down a Government amendment—hence my own. This amendment would ensure that even if the first review—to revert to my example —could not take place for 11 hours, the subsequent reviews would still take place at or before the 15th hour, the 24th hour, the 33rd hour, and so on, which I am sure your Lordships will agree is only fair. I beg to move.

Lord Elton

My Lords, I am glad to say that in the short time since the Committee stage we have been able to consider what the noble Lord proposes and we believe it to be an admirable suggestion. Unfortunately, in the short time available we have been unable to convince ourselves as to whether or not the noble Lord's drafting is absolutely watertight. I hope he will forgive me if I ask him to allow us at Third Reading to bring back an amendment of our own, if necessary, to replace his amendment, otherwise we shall be happy to see the noble Lord's amendment on the Marshalled List at that stage.

Lord Monson

My Lords, may I say how delighted I am by what the noble Lord has just said—and rather stunned, if I may say so. I had not thought that the wording of my amendment was even approximately right, so I am glad to know that I got pretty near it. With that assurance from the noble Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79B not moved.]

Clause 40 [Limits on period of detention without charge]:

6.28 p.m.

Lord Mishcon

moved Amendment No. 80: Page 37, line 13, leave out ("sections 41 and") and insert ("section"). The noble Lord said: My Lords, in view of the previous debates which have taken place, I propose to try to summarise the arguments and then to appeal to noble Lords for their support. With Amendment No. 80, I propose, with your Lordships' permission, to take Amendments Nos. 82, 86 to 91 and 93A. Amendment No. 82: Leave out Clause 41. Amendment No. 86: Page 41, line 9, leave out ("36") and insert ("24"). Amendment No. 87: Page 41, line 14, leave out ("36") and insert ("24"). Amendment No. 88: Page 41, line 24, leave out ("36") and insert ("24"). Amendment No. 89: Page 41, line 28, leave out ("36") and insert ("24"). Amendment No. 90: Page 41, line 40, leave out ("36") and insert ("24"). Amendment No. 91: Page 42, line 8, leave out ("36") and insert ("24"). Amendment No. 93A: Page 42, line 32, leave out from beginning to ("before") in line 35. The whole effect of this group of amendments would be as follows: that for the first time there would be incorporated in our law a very clear period of time during which detention could take place before a charge was preferred. If these amendments are agreed to, that period of time will be 24 hours, with the consent and authority of the police alone. Then there will be a further period of 24 hours, if the court so approves. So the total maximum time—and I put it very clearly, I hope—during which somebody can be detained before a charge is preferred is 48 hours.

I am so glad when I can say that the noble and learned Lord, Lord Denning, is with us. He put the position with the clarity for which he is so well-known at column 613 of the Official Report when he was speaking at Committee stage on the 9th July. I am going to read a short excerpt from what he said: It may be that the police should have powers to detain for inquiries in such a case. The case from which he was quoting was the one which he also quoted this afternoon: They have not got them now. Parliament may have to decide whether they should have them. The courts cannot do so. There is the important question for your Lordships today: whether there should be power to detain for questioning in such circumstances. It is a very difficult question, if I may say so, but most important, because the efforts of the police may be hampered. I do not say that the man himself should necessarily be warned, or have a solicitor, and so on, but it is a most important question for the police in the course of their investigations, and I wonder which way we should come down. Then, right at the end of his memorable remarks, he said: On the whole, if I may say so, it is a very near thing against the amendments and to support the Bill as it stands. The noble Lord the Minister answered that, and I quote from column 614: I respond to the noble and learned Lord by saying, first, that we recognise that the idea that it is lawful or proper for the police to detain a person who they have arrested for an offence, in order to question him before he is brought before a court on a charge is a relatively recent development in criminal procedure. In proposing these amendments, we recognise that we are facing a new situation in criminal procedure. We are not saying (as we might say): "Please, the Scots appear to have got away with the law which has as a maximum six hours' detention; their police have not complained; they have not asked for any amendment to that six hours." We have not spoken along those lines although we could have done so. We have not spoken about the Magistrates' Courts' Act of 1980, which deals with 24 hours as the reasonable practicable time. We have said: "We recognise the difficulties of the modern age and of the unfortunate crime wave; and balancing, as we think we ought, this innovation in our statutory law, we say the police shoud have the power to detain for 24 hours before charging, and if they want any further time they must go to the court and the court can give another 24 hours." We ask your Lordships to say that even if you allow for the rest periods, meals, and so on, 48 hours is quite enough to take away from the liberty of the subject before a charge is preferred.

If I went on addressing the House and endeavoured to copy the eloquence of some of your Lordships, which I do not possess, I could not improve what I believe to be a meritorious cause. If we are to codify the right to detain, 48 hours is more than enough, but 48 hours is the maximum proposed in this amendment.

Lord Hutchinson of Lullington

My Lords, I should like to support this amendment. Before I do so, I should like to thank the noble Lord the Minister for the kind words which he addressed towards me. I should also like to inform him that the Get Well card which he promised—to which I saw reference when I read the Official Report—did not in fact arrive.

In supporting this amendment I make the point that if a solicitor was, as a matter of statutory right, going to be allowed access to an accused in a police station, then of course detention for a considerable period would be perfectly acceptable. It might be that a little longer would be perfectly acceptable in a special case; but if that right is not going to be given to the accused, I most strongly support 48 hours as the absolute ceiling. It has already been said that this is a new situation and it is giving a suspect greater rights than he had before. Up to a point that is true, but the common law made it perfectly clear. In the normal way, by statute, a person should be brought before the magistrates' court within 24 hours; he should be brought before the court as soon as practicable. The common law laid it down that 48 hours should be the normal maximum period. For anything over that one would have recourse to habeas corpus proceedings with all the delay which that involves. Nevertheless, that right had been established.

What this amendment achieves, as I see it, is the status quo position at common law. It is admirable that it has been put in the Bill now, and we know exactly where we are on periods of time. I strongly support this period of 48 hours as a maximum.

Lord Denning

My Lords, the noble Lord, Lord Mishcon, was good enough to quote what I said. I adhere to every word I said on that occasion. This power of police detention is a most important and new power. I wavered then and I waver now as to what the right result should be, but I think the review procedure which is prescribed by the Bill (after six hours, after nine hours, and so on) should be carried out and eventually before a magistrate when the person can be represented. On the whole, it seems that my mind comes down just as it did before, in favour of the Bill as it stands.

Lord Elton

My Lords, it is now generally accepted that the law governing detention in police custody is hopeless1y vague and out-of-date. Under Section 43 of the Magistrates' Courts Act 1980, a person who is arrested without a warrant and is detained in custody must be brought before a magistrates' court as soon as practicable. The expression "as soon as practicable" is underlined; and although, as we have seen it was intended originally—back in the last century—to authorise delay only to the extent that there were logistical delays in bringing a person to court, for many years now it has become the accepted practice for production in court to be delayed in order to enable the police to conduct inquiries and interview the arrested person. In two recent cases (Hudson and Sherman and Apps) the courts adopted the view that "as soon as practicable" must mean something like 48 hours at most. But in a more recent and authoritative judgment, Nycander, the courts have now held that there is no rigid rule in the legislation which specifies how long detention may last: each case must be judged according to the circumstances. Nycander himself had been detained without charge for about 90 hours. So the background against which the proposals in Part IV of the Bill have to be set is that there is no fixed or absolute limit on detention without charge, and no provision at all for independent or systematic reviews of detention while it is taking place.

On any fair assessment of the Bill it must be accepted that the provisions of Part IV represent a substantial reform of the present situation. There is, for the first time, an absolute time limit on detention without charge, and that safeguard is additional to what the Royal Commission recommended. We shall be debating later whether that limit is about right or should be advanced in time; but it is an important new development. Those who have sought to play down its significance on the grounds that detention beyond this point rarely if ever occurs nowadays should remember that when we were debating earlier clauses of the Bill, it was they who argued that good police practice was an insufficient safeguard and that it was important to ensure that certain things could not lawfully be done.

The second innovation in Part IV is the introduction of reviews of detention. Noble Lords opposite argued at this stage before that the first independent review of detention should take place by the 24 hour point rather than the 36 hour point. I will explain in a moment why this is not an argument which commends itself to us. But it is very important for us all to be clear that even a 36 hour review is a very substantial improvement on the present situation. and that review is itself the end point of a series of progressively more demanding and more independent reviews of the need for detention by the police themselves, to which the noble and learned Lord, Lord Denning, has aptly drawn our attention. Under the Bill, when an arrested person is first brought to a police station, his case must be considered by the custody officer, who—other than in exceptional circumstances—must be detached from the investigation in progress. If he remains uncharged after six hours, the case must be reviewed by an officer of at least inspector rank, who must similarly be detached from the investigation. Thereafter, detention without charge must be reviewed every nine hours, until the person is released or brought before a court. And by the 24 hour point (the one we are interested in) an officer of superintendent rank must have reviewed the case.

And whereas under the present law detention beyond 24 hours is possible in any case which appears to the police to he serious—a subjective test if ever there was one—under Clause 40 the superintendent must, in order to authorise continuing detention, apply the objective test of whether or not the offence under investigation is a serious arrestable offence. So there is a whole new framework of supervision and review intended to ensure that detention is controlled and that inquiries are being conducted, in the words of Clause 40, diligently and expeditiously.

In a nutshell: under the present law an arrested person can be detained without charge, without limit of time, and without any review of that detention by a court at the time it is taking place. Under the Bill, detention beyond 36 hours must be authorised by a court. We do not believe that a full inter partes review of detention at the 24 hour point would be safe and we believe that it would be an impracticable further step to take, however "natural" 24 hours may appear to be as a cut-off point.

Although the previous Bill as originally introduced into Parliament provided for the first wholly independent review of detention to be at the 24 hour point—and I wonder whether that lurks at the back of the minds of noble Lords opposite—this review would have taken the form only of an ex parte hearing by a single magistrate. The first inter partes hearing at which the suspect would have been present and would have been represented would not have taken place until 48 hours. We have brought that forward by 12 hours. I mention this to show that we have no objection in principle to independent review of detention by the magistrates at the 24 hour point. After all, this was a feature of the original Bill. The objections relate to difficulties of a strictly practical kind which are inherent in the holding of inter partes hearings at such an early stage.

If I may summarise what I said in Committee, there is a marked difference in the degree of the business that would result from the 24 hour and the 36 hour reviews. The available information suggests, as I told your Lordships in Committee, that about 22,000 people a year are detained without charge by the police for 24 hours or more but the number who have not been charged or released by 36 hours is very much smaller—only a few hundred. These are of course precisely the cases which are the most serious, which present the police with the greatest difficulties, and which it is particularly important to ensure that they bring to a successful conclusion.

With these figures in mind it is clear that a requirement to hold an inter partes review by 24 hours would place a substantial new burden on the courts. Only in a minority of cases—perhaps one quarter of them—would the 24 hour point fall when the court is normally sitting. If the police were forced to make applications for warrants for further detention in advance of that point, the total number of applications would be even greater than 22,000. Cases would undoubtedly arise in which the police, for good reason, would apply for a warrant where detention beyond charge for more than 24 hours turned out to be necessary.

I could go on but I am sure your Lordships are seized of the point from Committee stage that the difference in volume is a macro difference which would place substantial difficulties in the way of the courts and would place difficulties also in the way of the police, who would have to stop their inquiries not at 48 hours but in time for them to prepare their application and for the suspect to apply his. It would also be the case that at the 24 hour point the police would have to display their hand in open court—so this would affect both the courts and the police. Those are both points of which I do not wish your Lordships to lose sight.

The advancement of the inter partes review would automatically reduce the period under Clauses 55 and 57 for which, exceptionally, delay of notification of arrest would be authorised. It has been accepted by the Criminal Bar Association that on occasions even 36 hours might be too early. The case they had in mind concerned a kidnapping of the type I described when speaking to the last amendment.

It seems to us that the risks would obviously be that much greater if the period were reduced to 24 hours. I ask your Lordships to bear in mind both the difficulties and burdens and the expense for the courts. I may remind your Lordships that I have responsibility for the prison service, and one of the great difficulties we have there—and the noble Lord, Lord Donaldson, has thought of this before me—is the inexorable growth in the number of people remanded because of the business before the courts. If we are to place another 20,000-plus cases before the courts, we will have more people yet in prison who have been charged but not tried. I hope your Lordships will remember them as well as those people whom the noble Lord, Lord Hutchinson, is remembering and who are in police stations without having been charged.

6.48 p.m.

Lord Hutchinson of Lullington

My Lords, perhaps I may ask the Minister one question in order to put the record straight. He stated that the Criminal Bar Association agreed that people should be held in custody for up to 36 hours. The true position is that they agreed to that only on the basis that such persons had a solicitor with them.

Lord Mishcon

My Lords, while the noble Lord the Minister is considering a possible correction, I will ask him to consider another. He just stated that these applications take place in open court. I believe he will find that the applications, although inter partes, do not take place in open court. The Minister may care to rectify that mistake, if it is a mistake. If I have made the mistake, then I will of course withdraw and apologise to him.

Lord Elton

My Lords, I am in a slight logistic difficulty in this matter. As regards the term "open court", I used it as a layman. I had intended to refer to an inter partes hearing. That is the kind of slip one gets from an amateur trying to do a professional job, and for that I apologise.

Lord Mishcon

My Lords, I have always said that in my judgment the Minister is a great loss to my profession. Indeed, he speaks with all the qualification almost of a trained lawyer. The Minister has explained why he used the words "open court" and may I say that these applications take place very speedily because they are not in open court. Therefore, the papers come before a couple of magistrates who might be sitting, and it is a fairly simple matter for them to deal with the hearing.

I am going to confine my remarks to saying this. The noble and learned Lord, Lord Denning, with all his experience, had heard all the arguments of the Government on the last occasion and all the arguments that we tried to advance for our amendments. He has been fair enough and good enough to say that, at the end of the day, he was left in some doubt, but that in trying to resolve the doubt decided that just possibly he should vote the other way and not in favour of the amendments. He is kind enough to nod his head in agreement. When the noble and learned Lord, Lord Denning, is in doubt after hearing all the arguments, all of us are entitled to have a doubt and are entitled to resolve it in a different way from the way that he did. I trust that that will be the position. I feel that the House should now express its view.

Lord Elton

My Lords, I should like to put the record straight. I think I am right in saying that the Criminal Bar Association did in fact accept that there were cases when it was necessary to keep people incommunicado for 36 hours. If I am wrong about that I will readily correct it, but I believe the Criminal Bar Association did give that opinion—and I understand that I am right.

The Lord Chancellor

My Lords, am I right in thinking that the time has come to put the Question? The Question is, That Amendment No. 80 be agreed to?

6.51 p.m.

On Question, Whether the said amendment (No. 80) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 88.

Airedale, L. Bottomley, L.
Ardwick, L. Bruce of Donington, L.
Attlee, E. Collison, L.
Aylestone, L. Darcy (de Knayth), B.
Beaumont of Whitley, L. David, B. [Teller.]
Bernstein, L. Dean of Beswick, L.
Beswick, L. Diamond, L.
Birk, B. Donaldson of Kingsbridge, L.
Blease, L. Elwyn-Jones, L.
Boston of Faversham, L. Elystan-Morgan, L.
Ennals, L. Molson, L.
Ewart-Biggs, B. Mountevans, L.
Foot, L. Nicol, B.
Gallacher, L. Ogmore, L.
Gifford, L. Phillips, B.
Glenamara, L. Pitt of Hampstead, L.
Graham of Edmonton, L. Rochester, L.
Hampton, L. Ross of Marnock, L.
Hanworth, V. Seear, B.
Hooson, L. Serota, B.
Hunter of Newington, L. Stallard, L.
Hutchinson of Lullington, L. Stedman, B.
Irving of Dartford, L. Stewart of Alvechurch, B.
Jacques, L. Stewart of Fulham, L.
Jeger, B. Stoddart of Swindon, L.
John-Mackie, L. [Teller.]
Kilmarnock, L. Stone, L.
Lloyd of Kilgerran, L. Strabolgi, L.
Lockwood, B. Tordoff, L.
Longford, E. Underhill, L.
McCarthy, L. Wallace of Coslany, L.
Mishcon, L. White, B.
Molloy, L. Winterbottom, L.
Airey of Abingdon, B. Kinnaird, L.
Auckland, L. Kinnoull, E.
Avon, E. Lane-Fox, B.
Bauer, L. Long, V.
Bellwin, L. Lucas of Chilworth, L.
Beloff, L. Macleod of Borve, B.
Belstead, L. Mancroft, L.
Bessborough, E. Marley, L.
Brookes, L. Masham of Ilton, B.
Brougham and Vaux, L. Massereene and Ferrard, V.
Cameron of Lochbroom, L. Maude of Stratford-upon-
Campbell of Alloway, L. Avon, L.
Campbell of Croy, L. Merrivale, L.
Carnock, L. Milverton, L.
Cathcart, E. Mottistone, L.
Colerine, L. Munster, E.
Colville of Culross, V. Napier and Ettrick, L.
Colwyn, L. Newall, L.
Cork and Orrery, E. Orkney, E.
Cox, B. Pender, L.
Craigavon, V. Peyton of Yeovil, L.
Crathorne, L. Plant, L.
Dacre of Glanton, L. Radnor, E.
Daventry, V. Rankeillour, L.
Denham, L. [Teller.] Renwick, L.
Denning, L. Rochdale, V.
Dilhorne, V. Romney, E.
Drumalbyn, L. St. Davids, V.
Eccles, V. Saltoun, Ly.
Ellenborough, L. Savile, L.
Elliot of Harwood, B. Skelmersdale, L.
Elton, L. Spens, L.
Fanshawe of Richmond, L. Stamp, L.
Ferrier, L. Swinfen, L.
Gainford, L. Swinton, E. [Teller.]
Gardner of Parkes, B. Teviot, L.
Glanusk, L. Thomas of Swynnerton, L.
Gray, L. Torphichen, L.
Greenway, L. Tranmire, L.
Gridley, L. Trefgarne, L.
Hailsham of Saint Trumpington, B.
Marylebone, L. Vaux of Harrowden, L.
Henderson of Brompton, L. Vickers, B.
Hornsby-Smith, B. Vivian, L.
Killearn, L. Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.

7 p.m.

Baroness Trumpington

My Lords, in moving that further consideration of this Bill on Report be now adjourned, I should perhaps say for your Lordships' convenience that we shall not return to the Bill until 7.45 p.m. I beg to move.

Moved accordingly, and, on Question, Motion agreed to.

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