Police and Criminal Evidence Bill

HL Deb 26 July 1984 vol 455 cc462-516

[Consideration of Amendments on Report resumed.]

Clause 41 [Authorisation of continued detention]:

[Amendments Nos. 81A and 82 not moved.]

Clause 42 [Warrants of further detention]:

Baroness Trumpington moved Amendment No. 83:

Page 40, line 23, after ("application") insert ("on oath").

The noble Baroness said: In moving this amendment, I should like to speak also to Amendments Nos. 84 and 92. Amendment No. 84: Page 40, line 32, leave out ("it") and insert ("the information"). Amendment No. 92: Page 42, line 15, leave out ("be on oath and shall").

We realised in Committee, as a result of shrewd amendments proposed by the noble Lords, Lord Mishcon and Lord Hutchinson, that in Clause 42 we had got our informations mixed up with our applications. I promised then to unmix them. At least, I think that it was actually my noble friend who promised to do so. The information supporting an application for a warrant of further detention will be in writing. There is therefore no need for it to be on oath, as the Law Society has pointed out. This was the point made in Committee by the noble Lord, Lord Mishcon. Amendment No. 92 accordingly removes this requirement from subsection (14). It is the application that should be on oath and Amendment No. 83 ensures this. Finally, what the detained person should have is not a copy of the application but the information. Hence Amendment No. 84. I beg to move.

Lord Mishcon

My Lords, I am endeavouring with due modesty to take the very courteous speech of the noble Baroness on board. I am most grateful to her for what she says and I am most grateful for the amendments.

On Question, amendment agreed to.

Baroness Trumpington

moved Amendment No. 84: [Printed above.]

The noble Baroness said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments No. 85A and Nos. 86 to 91 not moved.]

Baroness Trumpington

moved Amendment No. 92: [Printed above.]

The noble Baroness said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 93A not moved.]

Clause 43 [Extension of warrants of further detention):

The Deputy Speaker (Lord Hayter)

My Lords, Amendments Nos. 94 and 95 are alternatives.

Lord Elystan-Morgan moved Amendment No. 94: Leave out Clause 43 and insert the following new clause:

("Limit on detention.

43. No person shall be kept in police detention under this Part of this Act for more than 72 hours without being charged.").

The noble Lord said: My Lords, this is undoubtedly one of the most controversial but nevertheless one of the most important amendments so far as this Report stage is concerned. It is, in my submission, something that goes to the very root of the whole principle of the concept of detention.

My noble friends and I, over the earlier courses of the Bill in this House, had taken the view, greatly though we respect the noble Lord the Minister, that it might well be that in this House and in another place the Government had taken too lightly the concept of detention. We take the view that detention is something far more fundamental and epoch-making in relation to the administration of our criminal law than the Government would have the community believe. Up to the passage of this Bill, which we apprehend will in due course take place, the whole basis of detention is non-statutory. Indeed, one could put it another way and say that detention previous to charge is in many cases unlawful in the procedures of England and Wales.

Therefore, on any view, the legitimation of the process of detention is a very serious inroad into private liberty. Indeed, in my submission, it is one of the most massive inroads into private liberty made in this century. It is an inroad which will have many direct and many indirect effects. One of the direct effects of this concept will be that the time limits which appear in the Act, whatever they be, will inevitably have their effect upon the way in which learned judges exercise discretion in relation to applications for writs of habeas corpus.

Secondly, inevitably a new psychology will prevail among police offices as to the length of the period for which it will be appropriate to detain persons before charge. And inevitably, in my submission, the idea will gain currency that the maxima laid down in the Act can properly be regarded as the norm. In my respectful submission, police officers would be less than human if they were not to act in that way.

There are, we maintain, two very considerable safeguards which should be considered. One is the presence of a solicitor at the point in time when a person is actually questioned. The House has heard numerous debates in relation to that matter. The other is to fix an absolute limit as to the total period during which a person can be kept in custody without charge—to set, as it were, a "ne plus extra" limit and to say, "That is an absolute barrier, and beyond that limit one shall not go".

That of course is what the provisions of Clause 43 bring about, and the whole purpose of this amendment which I am now moving is to say that that limit shall not be 96 hours but shall be 72 hours. If I may digress for a moment before coming to the question of whether it should be 72 hours rather than 96 hours, I would say that we do not regard the setting of a lower limit at 72 hours as being in any way alternative to the right of a person to have his solicitor present from an early stage in these proceedings. They are parallel rights. Each of them is an important basic human right, but they are utterly different rights.

The right to have a solicitor present is an important right at that point in time when the subject is actually being questioned. One can say, without being over-emotive, that of all the experiences that a person has in life, probably there will be no moment when it is more important for him to have legal advice and the support of a professional legal adviser than that exact moment in time. But the House has already dealt with that matter. I do not want to go back on that, though I thought it right to comment on it because it sets the framework, as it were, for this amendment.

During the course of a period in custody that might last many scores of hours, it may well be that the period of actual questioning will not take more than perhaps an hour-and-a-half in total, in two or three sessions. In between those periods of questioning there will be long, lonely periods of custody and of uncertainty. A person may be questioned three times inside the space of an hour. Then perhaps he will be left alone for 30 hours, visited only by the gaoler bringing his food and hearing only the occasional noise in the corridor outside of somebody checking to see if he is all right. He will be waiting all the time for the key to turn in the door and for someone to come to question him a fourth time.

I cannot remember the exact quotation; I think it is in Oscar Wilde's Ballad of Reading Gaol that he describes custody as being a situation where every minute is an hour, and every hour a day, and every day a week. All effluxion of time is relative. We talk, perhaps fairly lightly, of 72 hours or 96 hours as being a fairly limited period of time. To a person in custody —I hope the House will not misunderstand me—it can be a form of torture. It is not of course designed as torture by the police officers concerned, but it can be the most effective form of torture imaginable when a person is left there, lonely and uncertain, with only the agony of his own thoughts and doubts.

One could go on for a very long time in sketching, as it were, the background to this issue. Bearing in mind that the House has set its face against giving a person an absolute right to have his solicitor present when questioned, we say that the absolute limit or the total period of custody should be 72 hours; and in saying that we are convinced that that is a very long and substantial period, and correspondingly a very serious and massive inroad into private liberty.

On earlier occasions the House has heard quoted a considerable amount of data, and I am not going to repeat it. I make these points very generally. In every other common law country, detention for a period of 72 hours, quite apart from 96 hours, is very excessive. Taking a whole range of countries in the world, I think one would have to go to Ethiopia before one found a country that had a comparable period of time allowable for detention without charge. From the data published by the Home Office and other reputable bodies, it appears that about 98 per cent. or so of persons who are kept in detention without charge are released by the end of a period of 24 hours. It is only in the most exceptional cases that a person would be detained as long as 72 hours.

It seems that what the Government have done here, in my submission rather cynically and capriciously, is to say, "Well, although in 1983, in the metropolitan police district, there weren't any persons kept for as long as 96 hours, we will say 96 because it is 24 hours beyond the limit that we were ever pushed to in relation to any specific case". That is not the way to deal with human liberty. I beg to move.

Lord Denning

My Lords, I am sure that your Lordships will all be impressed with the eloquent words of the noble Lord, Lord Elystan-Morgan. It is a new feature in our English law that there should be police detention and time limits set. Therefore, it is most important to get it right if we can.

I can well understand that there is the protection of the application to the magistrates' court after 36 hours and then for the magistrates' court, comprising two magistrates, to consider whether further detention is justified in all the circumstances of the case. That is a judicial body which should be well trained and experienced in matters of individual liberty.

I can well understand that the circumstances of detention may be oppressive—indeed, they may be so oppressive almost as to negative any confession that is made. Indeed, under the later provisions of the Bill they would negative any confession. But this is a matter of judgment. I happened to speak to one of the Lord Justices who is most experienced in our criminal law, namely, Lord Justice Lawton. It was his view that 96 hours was just about right. I would not set my own experience against his, but in view of the inquiries which I have made I would, on the whole, support the Bill and not the amendment.

Lord Donaldson of Kingsbridge

My Lords, I do not really think that this is a legal question. It is a moral question, and therefore I do not pay the same respect to the views of eminent lawyers as I do on legal questions. In my view, 72 hours is already an excessive period to keep anybody in detention for questioning and I am very happy to support the amendment.

Lord Elton

My Lords, this Bill imposes a general and absolute limit on detention without charge of 96 hours. In certain circumstances, where a person is arrested in one part of the country and has to be transferred to another, the total time in police custody may exceed this figure, but the introduction into the law of an overall limit is a safeguard against unnecessarily prolonged detention, which is entirely new to the statute book. I would reflect that so often noble Lords make speeches as though what we were introducing was some new threat to the liberty of the individual, when in fact what we are doing is introducing a new safeguard to the liberty of the individual, because hitherto there has been no limit and we are proposing one.

The Bill introduces certainty into a part of the law which the courts themselves have held to stand badly in need of clarification, and it also places an absolute limit on a power which the Royal Commission proposed should be renewable without such limit. We considered the Royal Commission scheme, but we felt that a scheme of detention which was open-ended in the way in which they proposed could not command public confidence. We thought that there must be an absolute limit to it and we then decided that the correct limit was 96 hours—and in view of what the noble and learned Lord, Lord Denning, has said, we are not alone in thinking that that is the right time to choose.

The noble Lord, Lord Elystan-Morgan, gave a sketch of how he thought we had arrived at the figure. He thought that we had looked at various areas and decided that nothing took 96 hours and therefore it was safe to put the limit there. He was not, in fact, exactly right. We arrived at the figure only after a careful consideration of the experience of the police and the Customs and Excise in dealing with complicated and difficult cases involving major crime. We looked at cases in which prolonged detention had occurred and asked whether the investigation could have been concluded more quickly, and if so how. It became clear that in some cases 96 hours had been necessary, and we provided in the Bill accordingly. Other cases have, indeed, taken longer—and I repeat that for the benefit of the noble Lord: other cases have, indeed, taken longer—but most, even of sophisticated and conspiratorial crimes, can be brought to charge within this time and so we thought it right to place the stop at that point.

It can be argued that as it is very rare for detention to exceed 96 hours, the introduction of the limit is not much of a safeguard and therefore it should be less. That, in effect, is what noble Lords opposite are doing. But the shorter the allowable time the more cases there will be in which criminals will have to be released, some of them to vanish for good, simply because the police will not have had time to complete their cases. We have chosen a level which gives enough time for very nearly all the cases. To argue for less is to argue, therefore, not for the protection of those who are unjustly accused, but for the escape of those who are genuinely guilty. There is no merit in imposing a limit which is less than the time now spent only because it is less. When the noble Lord, Lord Donaldson, argues for that, he is arguing with his heart rather than with his head. I think that the reduction in time might satisfy the emotions of some, but it can scarcely convince the intellects of any. We have to legislate with our heads as well as with our hearts.

Some limit there ought to be—we are all agreed about that. We do not want the police to have a power which experience shows they do not need or which they scarcely ever need. That is what we are proposing. By imposing it at 96 hours we ensure that they do have the power which experience shows they have needed in the past for really difficult cases, but we require them to ensure that such cases are completed within that time. That may prove very difficult and if apology is needed it is not to the movers of this amendment—it is to the police who will have to work under the brand new limit that we are already imposing upon them.

Let us consider what may arise. When a number of suspects are detained in connection with a single offence or set of offences, then their stories have to be checked one against the other. The interviewing officers have to meet frequently to compare notes and pool information. Identification parades may have to be held. There may be language difficulties, requiring interpreters to be found. Inquiries may have to be made to check alibis or to obtain other forms of corroboration. In one recent case a person who was in the end convicted of murder gave six different and conflicting explanations of his movements at the relevant time, all of which had to be followed up. The noble Lord, Lord Hutchinson of Lullington, in an earlier debate pointed out how extremely important it was to validate confessions as well as alibis; and that takes time. Inquiries may have to be made abroad. The suspect may require medical treatment. He will have to be allowed rest and refreshment. Your Lordships will remember that this is now mandatory and it is also a new provision under our proposals. Forensic tests may have to be completed. Extensive searches of premises may be required.

The fact that the police are generally able to bring their inquiries to a conclusion—even in the case of the most complicated major crime—within a period well short of 96 hours is a clear proof of their expertise and professionalism. Indeed, a number of the few cases in which investigations have gone wrong might have avoided injustice if more rather than less time and trouble had been taken because it is a question of time and trouble and the painstaking and methodical accumulation and analysis of evidence.

I was interested in the comparison which the noble Lord, Lord Elystan-Morgan, made. I think that on this occasion he did not fall into the temptation of looking at Scotland, but if I am wrong about that I am happy to respond. But I thought I heard him say that we would have to go to Ethiopia to find a country which had power to detain without charge for as long as we can. It may be that he is tempted by that particular bucket shop air price, but he only has to go to the Netherlands to find a period of 102 hours, and he only has to go to Sweden to find a period of 120 hours.

Lord Elystan-Morgan

My Lords, I am happy to be corrected; it was a very serious lapse on my part. I did intend to refer to the Netherlands, but in the context of having been condemned by the European Court of Justice for that very reason.

Lord Elton

My Lords, I am not familiar with the case and, therefore, I cannot say what was the basis of the dissatisfaction of the European court; whether it was limited to a pure regard for the clock or whether, as I suspect, it was also tinged by what happened during the period in question. It seems to me that the case of the Netherlands with 102 hours as opposed to our 96, and the case of Sweden with 120 hours as opposed to our 96, is, if we are to pray foreign countries in aid, perfectly valid.

What do we expect in our country?—because this is, in fact, an English and a Welsh question that we are asking; not an Ethiopian question, nor a Dutch question or a Swedish question. We expect our police to question a suspect in order to establish his account of the facts, to check that account by outside inquiries, to interview witnesses, and put the facts to the suspect for him to explain, and to make certain that they have the right suspect. The great majority of all investigations are not complex and are concluded in a very few hours. In any complex investigation, however, there is therefore a continuous interplay of interview and legwork, and it does not consist simply of leaving someone locked in his cell waiting for the key to turn.

I have already explained that we did not pluck 96 hours out of the air. We looked at actual recent cases of serious crime which required extensive investigation, and found that only on rare occasions was 96 hours necessary. The investigations could not have been conducted more quickly or efficiently; if there had been a shorter limit on detention, the suspects concerned would have been released, gone to ground, destroyed evidence, covered their tracks or committed further crime. We have provided details of these cases to critics of the Bill and asked how they could or should have been handled better. This challenge has not been taken up.

It cannot be taken up because the figures that have been suggested as alternatives to 96 hours—and in this case it is 72 hours—have, it seems, been plucked out of the air. They are not based on any study of actual cases. They rest on pure theory. We are legislating, and it is not enough to juggle with theoretical figures; we have to fit the law to the actual needs of our people and the police who protect them.

But our scheme has not neglected the interests of the suspect and we have not assumed his guilt. A very crucial point in the scheme is reached at 36 hours. This is the point by which anyone detained without charge must be brought before a court, must have legal advice and must be represented. If the court authorises a further period of detention—and it can only do so in the case of the most serious crime and if the investigation is being conducted expeditiously—then it is clear that any questioning that then takes place does so with the suspect's co-operation, because it has to be expected by the court that it will produce results and if the response of the suspect (with the advice of his solicitor, which will be to hand) to the magistrate is that he will not answer further questions, then there is no purpose in the further detention. He will have absolute right of access to a solicitor and to have a solicitor present while he is being questioned.

So the prospect conjured up of someone being interrogated at length until his will crumbles and he is prepared to admit anything, true or false, is wholly misdirected and wholly fanciful. I concede that it was not advanced this evening, but it was advanced at an earlier stage. The suspect will be entitled to legal advice; there will be strict limits on the length of questioning permitted; there will be new safeguards for the young and the mentally handicapped, who are particularly at risk; and there will be at least a second inter partes hearing if the full 96 hours has to be used. All these go to show that the purpose of a 96-hour limit is not to give the police time to wear down a suspect, but rather to give them enough time to secure and verify enough evidence to establish the innocence of a suspect or to allow a fair trial to take place.

If your Lordships agreed to this amendment, you would be doing a great disservice to both the police and the people whom you wish the police to protect, and you will be doing so to no libertarian purpose at all. The Bill provides very ample protection for the innocent suspect. I hope that your Lordships will see that it also provides sufficient powers for the police because we have two jobs to do. One is to protect the innocent suspect—and noble Lords are very active indeed in that—and the other is to help the police to protect every other innocent citizen, of whatever rank, race or religion he may be, from the criminals who threaten him—and that is something on which we would also welcome support.

I hope that noble Lords opposite and your Lordships generally will see that what we propose is both necessary and just and that you will allow the police a proper power to operate under the scrutiny of the courts to do a job that is in all conscience difficult enough already.

Lord Donaldson of Kingsbridge

My Lords, before the noble Lord sits down, I should like to ask him a question for clarification. We are speaking about 96 hours. How many hours of those 96 are without the presence of a solicitor? I think that it is 36, but I am not quite sure.

Lord Elton

My Lords, it depends upon the case. It can be as much as 36 hours, but I was at great pains earlier this evening to explain to your Lordships how experience had proved in recent years that even without the safeguards limiting this use of time placed upon the police, the number of occasions when a solicitor is kept from his client for as much as 36 hours—indeed, for as much as 24 hours—is very few indeed. The number for the longer period amounts to 0.007 per cent. of all cases.

Lord Monson

My Lords, I should like to ask the noble Lord, Lord Elton, why the Government propose a maximum period of detention for England and Wales no less than 16 times longer than the maximum period of detention allowed in Scotland.

Lord Elton

My Lords, on the understanding that nobody else will intervene, I shall use the second shaft allowed me by tradition and by your Lordships' leave to reply to the noble Lord. He will be well aware that the structure of the law in Scotland, were a person has to be charged almost as soon as he is arrested, is totally different from that which applies here. We are looking at an amendment to reduce the time from 96 hours to 72 hours, and the question, therefore, is why noble Lords opposite want to have 12 times as much as the Scots. So I do not think that the noble Lord's question bears exactly on this case.

Lord Elystan-Morgan

My Lords, I am sorry to say that we are extremely disappointed with the noble Lord's reply. We are dealing with a matter of the utmost importance—of that there can be no doubt whatever. The Minister sought to justify 96 hours rather than 72 hours on the basis that there were a few cases—or that there could be a few cases over the years. I should like to make two points in relation to that. It is not for those of us who support the amendment to justify the reduction of that level from 96 hours to 72 hours; it is for the Government to justify that further inroad into private liberty.

Secondly, if the argument that the Minister proposes is to be accepted in logic, it is an argument which, if one accepts the basic postulate, is impossible to counter. In fact, if he says, "Indeed, there is only one case likely to occur over the next five years, so only one person will be affected", if there is general merit in that line of approach, it cannot be countered. The fewer the people, the stonger his position. In fact, if he were to say, "We do not think that there will be any case over the next five years, but there may be beyond that time", then he is in a completely fireproof situation. But is that a proper yardstick? Unless the Government are able to show that there is a reasonable number of cases that justifies this serious inroad, then, in my submission probably they are not entitled to say that they should set the limit at 96 hours. Indeed, if that is a good argument, why set it at 96? Why not make it 150 hours? Why stop there?

Lord Elton

My Lords, with your Lordships' permission, I think it would not be right for me to intervene before the noble Lord sits down because it would spoil his climax, and that is an unkind and discourteous thing to do. But he asked me some questions. I have some cases here. I do not think your Lordships will wish to hear them read out, but these cases are all from 1983. The three on the top of my file all fell between 72 and 96 hours. Having said that—and there are many other cases—I will merely leave the noble Lord with a question. Would he, if he were designing the runway at Heathrow, think that it was sufficient to have it only three-quarters of a mile long because very few aeroplanes took a full mile to pull up?

Lord Elystan-Morgan

My Lords, with the greatest respect to the noble Lord the Minister, for whose powers of reasoning, for whose wisdom and for whose personality in general I have very great admiration, I do not think that that is one of the best arguments that he has articulated in the context of this Bill in general. The main argument put forward by the Government is that this is a protection, and not an inroad. That argument simply cannot be sustained unless one ignores the fact that since the early seventeenth century we have had habeas corpus Acts to preserve a person's liberties from arbitrary arrest. The very fact of habeas corpus was the safeguard, and it is only if one turns a blind eye to that massive safeguard in our laws that one can say that there was no safeguard previously. The late Professor A. V. Dicey reckoned that the writ of habeas corpus was more valuable than a hundred declarations of human liberty. The question we ask is: after this 96-hour rule, what value will there be to the writ of habeas corpus within that period?

But the basic fallacy of the Minister's argument goes even deeper than that. It is that effective police questioning, effective police investigation and the efficient analysis of forensic evidence can only take place while a person is held in custody. That is nonsense, with great respect. Even in relation to the gravest crimes it happens often that a person will be brought in for questioning, he will be questioned for hour upon hour and nothing will emerge. He will then be sent home and sometimes will be bailed to appear on a future occasion—what lawyers know as Section 38 bail. Upon other occasions he will be allowed home without any commitment whatsoever and will be brought hack again and again. That, as so many of your Lordships will know, happens very often in murder cases.

However, the Minister seems to argue on the basis that unless a person is kept in detention the system simply cannot work. There are many more arguments, but those are the main ones, and they will not be improved by repetition. Therefore, on that basis we say that we are very proud to divide the House on this matter as we regard it as an issue of fundamental principle.

Baroness Macleod of Borve

My Lords, before the noble Lord sits down, I am sure he would want to be fair and acquaint the House with the fact that this is the first time as far as I am aware—I think it came out during Second Reading—that there has been a limit. There has never been a limit before, and it has now been settled at 96 hours. The noble Lord has been a lawyer, a barrister and a judge for many years, and he will be aware that an upper limit has to be set under which one can operate, from tines right through to terms of imprisonment. Someone may be able to he imprisoned by law for 20 years and they might be able to be fined £20,000, but that is the top limit. The Government think that 96 hours is the top limit, but it is by no means likely that a man will be kept in custody for the whole of that time. It is only fair to make it clear to the House that that is the operation of this amendment.

Lord Elystan-Morgan

My Lords, I have no doubt that the noble Baroness makes a fair point in relation to that matter. It is an absolute limit, as I understand it, so far as that particular session of detention is concerned. I believe I am right in saying that if that person is released he could be re-detained again and again ad infinitum. Perhaps the Minister will deal with that point.

Be that as it may, I accept that Section 43, in so far as that session of detention is concerned, sets an absolute limit. On the other hand, I think that the noble Baroness is mistaken when she considers that there were no limits before. The limits that existed before were such limits as, in the discretion of a learned judge upon an application fora writ of habeas corpus, he considered it proper to set. In a particular case he may determine that 20 hours' detention is too much and that the man must be immediately released. In another case he might think that 60 hours is the proper time. So there are such limits as are considered appropriate, within the bounds of judicial discretion, to each individual case.

Lord Elton

My Lords, we must not turn this into a Committee stage debate. I have been asked to give a statement of fact, and with your Lordships' leave I refer the noble Lord, Lord Elystan-Morgan, to Clause 46(6), which makes the hours in detention on separate occasions aggregate, and to Clause 42(19), where: A person released under subsection (18) above shall not be rearrested without a warrant for the offence for which he was previously arrested unless new evidence justifying a further arrest has come to light since his release". So unless there is a new case to answer, at the 96-hour curtain it is finished, it is off. That is new, my noble friend is absolutely right, and I think your Lordships probably want to decide the matter.

8.27 p.m.

On Question, Whether the said amendment (No. 94) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 60.

DIVISION NO. 3
CONTENTS
Airedale, L.	John-Mackie, L. [Teller.]
Attlee, E.	Kilmarnock, L.
Beaumont of Whitley, L.	Lawrence, L.
Blease, L.	Lockwood, B.
Collison, L.	Meston, L.
Craigavon, V.	Mishcon, L.
Dean of Beswick, L.	Molloy, L.
Diamond, L.	Molson, L.
Donaldson of Kingsbridge, L.	Phillips, B.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Ross of Marnock, L.
Ennals, L.	Stewart of Alvechurch, B.
Ewart-Biggs, B.	Stewart of Fulham, L.
Foot, L.	Stoddart of Swindon, L.
Gifford, L.	[Teller.]
Hooson, L.	Strabolgi, L.
Houghton of Sowerby, L.	Underhill, L.
Hutchinson of Lullington, L.	White, B.
Irving of Dartford, L.	Wigoder, L.

NOT-CONTENTS
Ailesbury, M.	Hornsby-Smith, B.
Airey of Abingdon, B.	Hunter of Newington, L.
Auckland, L.	Inglewood, L.
Avon, E.	Kinnaird, L.
Bauer, L.	Lane-Fox, B.
Beloff, L.	Long, V.
Belstead, L.	Lucas of Chilworth, L.
Brougham and Vaux, L.	Macleod of Borve, B.
Bruce-Gardyne, L.	Masham of Ilton, B.
Caithness, E.	Massereene and Ferrard, V.
Cameron of Lochbroom, L.	Milverton, L.
Campbell of Croy, L.	Morris, L.
Carnock, L.	Munster, E.
Carthcart, E.	Norwich, Bp.
Coleraine, L.	Peyton of Yeovil, L.
Colwyn, L.	Plant, L.
Cork and Orrery, E.	Rankeillour, L.
Cox, B.	Rochdale, V.
Denham, L. [Teller.]	Savile, L.
Denning, L.	Skelmersdale, L.
Dilhorne, V.	Swinton, E. [Teller.]
Drumalbyn, L.	Teviot, L.
Elliot of Harwood, B.	Torphichen, L.
Elton, L.	Trefgarne, L.
Ferrier, L.	Trumpington, B.
Gardner of Parkes, B.	Vaux of Harrowden, L.
Glenarthur, L.	Vickers, B.
Gray, L.	Whitelaw, V.
Greenway, L.	Young, B.
Gridley, L.
Hailsham of Saint
Marylebone, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 95 not moved.]

8.35 p.m.

Lord Monson moved Amendment No. 96: After Clause 43, insert the following new clause:

("Compensation for detention without charge.

. A person kept in police detention under this Part of this Act and subsequently released without being charged with an offence shall be entitled to compenation from Public Funds at the rate of £1 for every complete hour spent in detention in excess of six hours.").

The noble Lord said: My Lords, it would he nice to think that this amendment would find as much favour with the noble Lord, Lord Elton, as did my previous amendment. Somehow I have a premonition that this may not be the case. The purpose of this amendment is to provide a modest cash sum by way of compensation for those innocent—and I stress "innocent"—individuals who are detained in police custody under Part IV of this Bill and then subsequently released without being charged with an offence. The rate proposed in the amendment is deliberately modest in that it represents minimal compensation and not damages, punitive or otherwise; although it might be opportune to point out to your Lordships that paragraph 5 of Article 5 of the European Convention on Human Rights states that everyone who has been a victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Of course, it may well be that in future some detainees may claim that their detentions contravene paragraphs 3 and 4 of Article 5. On that we shall have to wait and see.

Nobody would pretend that a sum of £18 for 24 hours' detention, £42 for 48 hours' detention, £66 for 72 hours' detention or £90 (which would be the maximum) for 96 hours' detention would fully compensate any but a very small minority of innocent detainees in terms of worry, anxiety, loss of earnings and so on. None the less, it would partially compensate them for material losses suffered and, more important, the gesture would I think minimise the psychological stress of detention. Most important of all, the idea of partial compensation would, I believe, reconcile public opinion to this controversial part of the Bill. It is a great mistake to assume that it is only those on the centre or on the Left who are unhappy about it. A great many true blue Tories also have misgivings about this part, to my certain knowledge.

These are novel proposals but, apart from two exceptions that I shall come to in a moment, the same can be said for the detention provisions themselves. Novel problems deserve novel remedies. The exceptions that I mentioned are the detention provisions in the Prevention of Terrorism (Temporary Provisions) Act and the Northern Ireland (Emergency Provisions) Order. Both my noble friend Lord Hylton on February 6th and the noble Lord, Lord Fitt, on July 17th called for compensation for innocent individuals detained under those measures. So did the noble Lord, Lord Shackelton, on February 6th, certainly so far as some specific circumstances are concerned. Despite, or possibly because of, my strong support for the anti-terrorism legislation in question, I would certainly endorse those pleas. In other words, I believe that if we agree to compensation it should be consistent and apply across the board.

Now to the details of the amendment. I have not provided for any compensation for detention of less than six hours' duration. Although it is not very pleasant for an innocent person to be locked up for even six hours, one has to draw a line somewhere. The other reason is that the Scottish Act with a maximum period of detention of six hours, as we have already established, does not provide compensation for any innocent person detained for that period of time.

Your Lordships may have differing ideas about the adequacy or otherwise of the suggested £1 hourly rate; but the important thing is to get the principle accepted. The details can be adjusted at Third Reading. For the same reason, I have not at the present stage allowed for any indexation of the hourly rate against inflation. Again, this could he inserted at the next stage.

The noble Lord, Lord Elton, will doubtless point out that the people arrested, as opposed to merely detained and then later released, are not at present entitled to compensation. True, but in the very nature of things a greater proportion of those merely detained, as opposed to being arrested, where greater proof is required, are likely to be innocent. Nor has this proposal anything to do with Section 48 of the 1964 Police Act which empowers chief constables to pay damages and/or costs out of police funds in respect of wrongful acts committed by constables under their direction.

Absolutely no wrongdoing or even carelessness on the part of the police is implied by my amendment. It merely recognises that in an imperfect world honest mistakes—for example, mistaken identity—can and will happen. The right analogy, I suggest, is with expenses paid to those on jury service. Jurors, like innocent detainees, have to suffer inconvenience, possible discomfort, and certainly loss of earnings in order that the guilty may be convicted and punished. I am not one of those who are in favour of soft treatment for the guilty: quite the opposite, especially where crimes of violence are concerned. However, I am in favour of soft treatment—extremely soft treatment—for the innocent, both on the grounds of natural justice and because it will make the task of the police that much easier by getting public opinion more wholeheartedly on to the side of the law. I beg to move.

Lord Elystan-Morgan

My Lords, we on these Benches have considerable respect for the principles which underlie the amendment moved by the noble Lord. However, having said that, at the same time we do not agree with the detail of the amendment, nor indeed the tactical approach that the noble Lord has adopted. For one reason, we think that although the modest sum that he stipulates for every hour of detention would not break police funds, nevertheless it might have a somewhat stultifying effect upon the attitude which the police should properly have in relation to the conduct of their investigations. Further-more—and perhaps even more important—there is the danger that if Parliament were to legislate that £1 an hour should properly represent compensation here, it might have some effect upon the levels of compensation which at the moment I apprehend are very much higher in those cases involving unlawful arrest. The sums of money that are regularly adjudicated by judges in our courts are at a very different level. Nevertheless, we think that the noble Lord has done this House a service in raising this all-important question. Really, there are two questions. One is the general point of whether the Government intend to take seriously the obligations of the United Kingdom under Article 14, paragraph 6 of the United Nations Convention on Human Rights which has already been referred to by the noble Lord. We have been a signatory to that Convention for something like 18 years. and yet although we are tied by our obligations under that Convention to making some scheme of compensation payable for people who have been wrongfully deprived of their liberty, there does not seem to be the slightest intention on the part of Her Majesty's Government to take that obligation seriously.

The noble Lord the Minister, when dealing with this matter in October 1982, said in reply to a question from my noble and learned friend Lord Gardiner, that the Select Committee on Home Affairs was gestating in its views and deliberations upon this matter, and that eventually there would be some report which would deal with it. Article 14 paragraph 6, as I understand it, deals with those persons who have been convicted and who have later successfully had such convictions laid aside.

The question that is raised in the noble Lord's amendment is slightly different, but in a reply to a Written Question by my noble and learned friend Lord Gardiner on the 2nd December 1982. the noble Lord the Minister, was asked whether there had ever been made, and if so how often, any ex gratia payments to an innocent person who had suffered a period of imprisonment when on remand, pending his trial. The reply of the noble Lord was that when an ex gratia payment is to be made by way of compensation for wrongful imprisonment, the time spent on remand in custody is normally taken into account in the assessment of the sum to be offered. In a few cases, for example one in 1979, two in 1980 and one in 1981, ex gratia payments have been made to persons who have been remanded in custody but not convicted. This is very germane to the issue raised by the noble Lord's amendment, and I am sure that the House would wish to know what scheme, if any, and what policy the Government have in relation to such ex gratia payments. Is it intended that there should be a more formal scheme? Did the Select Committee on Home Affairs report upon such a matter? Generally, does the Government intend to place the matter upon a formal basis?

Lord Hooson

My Lords, I have a considerable respect for the views of the noble Lord, Lord Monson, and I entirely share the sentiments that he expressed in moving this amendment. I am very sorry that I did not see him beforehand to tell him what my rooted objection is to this particular amendment; it has only crystallised in my mind as I have listened to the debate.

It seems to me that there is a basic objection to going down this route. which is that if compensation is paid it will be regarded by the police as a criticism of them. Therefore, in any given situation they will be tempted to lay the charge and allow the magristrate to dismiss it rather than risk the suggestion that they are being criticised. If the penalty were higher, there would be an even greater temptation to do that.

Nevertheless, dealing with the matter entirely as a matter of principle. I wholly agree with the general views that the noble Lord, Lord Monson, has expressed, but I think that following this line of approach would be counterproductive to what we seek to achieve.

Lord Gridley

My Lords, is saying that I could not support the amendment of the noble Lord, Lord Monson, may I refer to something nearer home which has occurred this week? I asked a Question of Her Majesty's Government on whether they know that a Russian ship, destined for this country but diverted to a dock in Hamburg, had been found there with two millions pounds worth of heroin destined for Britain. It was in Hamburg because of the dock strike and certain people had been detained by the Hamburg authorities. If we were to go ahead with an amendment of this kind, it is not inconceivable that to come to a satisfactory solution with regard to the investigations which were carried out in Hamburg, our authorities in this country might well be detaining people in connection with that offence which was discovered overseas—in other words, an international ring of smugglers.

In the circumstances, I think it is unreasonable to fetter the police with an amendment of this kind when investigations might turn out to last very much longer than six hours and the people they pulled in in this country might well be innocent of any offence, but nevertheless they have to be called in in order to investigate.

Lord Trefgarne

My Lords, I hope your Lordships will accept my presence at this Dispatch Box as a pale imitation, if not a pale shadow, of my noble friend. I sympathise with the desire of the noble Lord, Lord Monson, to compensate those detained and then released without charge. I do not pretend that being detained by the police for a lengthy period is likely to be other than an unpleasant experience for the person concerned; but the noble Lord's scheme would compensate him financially whatever the circumstances, and that is indeed a radical departure.

There are many ways in which the work of the police may result in a member of the public suffering some detriment. If a person believes that he has suffered because of police action he may sue the chief officer, and the police authority must pay any award the court may make. But in deciding whether the police are liable for the loss the court will consider the individual circumstances and, in particular, whether the police acted reasonably in pursuance of their duties. If the court concludes that the police have used their powers reasonably, it is not likely to find them liable for the loss. It is still open to the police authority, however, to make an ex gratia payment if it considers it appropriate to do so. But, again, a court in considering the level of compensation, or the police authority in determining the ex gratia payment, will take into account the individual circumstances involved, such as the extent of any loss, the distress suffered and whether the person concerned contributed in any way to his misfortune. What the noble Lord, Lord Monson, proposes in this new clause is an automatic right to a set level of compensation. There is a presumption that the released person has suffered a detriment for which the taxpayer or the ratepayer—the clause does not say which—should compensate him. Furthermore, the presumption is that the detriment is the same in every case. for the compensation is at the same rate. So there is no decision as to liability, no decision as to whether a detriment has been suffered, and no decision as to the extent of that detriment.

I am sure that we can readily think of circumstances in which compensation is not appropriate at all; for example, when a person released on one occasion is subsequently charged with the suspected offence after further enquiries, or where a person has deliberately cast suspicion upon himself. Yet in this area of police activity it is proposed to substitute the general judgment of Parliament for the judgment of the court in individual cases.

I think it is clear what would happen. Anyone with time on his hands and a shortage of money would walk into a police station, confess to murder, spin matters out for more than six hours and then retract. I believe that, serious as this area of activity is, and involving as it does a temporary loss of liberty, we should nonetheless be wary of trespassing upon issues which are properly for the civil courts.

The noble Lord, Lord Elystan-Morgan, referred to our international obligations; but they, of course, relate to unlawful or wrongful detention. If there is such detention, then the person may seek redress by suing. The amendment provides for compensation irrespective of the fault, which is of course another matter altogether. I am told that the review of the criminal injuries compensation arrangements is still continuing. I am not sure whether there is anything to add to that, but if there is my noble friend or I will write to the noble Lord. However, I believe that it is a slightly different matter from the one contained in the amendment before us.

I hope, therefore, that on reflection the noble Lord, Lord Monson, will see the problems that his amendment poses, and will not wish to press it.

Lord Monson

My Lords, I am grateful to the noble Lords, Lord Elystan-Morgan and Lord Hooson, for their qualified support. To the noble Lord, Lord Elystan-Morgan, may I say this. I did attempt, obviously without total success, to make it clear that the sum I proposed represented only partial compensation—token compensation, one might say. I deliberately did not want to confuse it with compensation payable where wrongful behaviour on the part of the police was concerned, and where the compensation payable would be, rightly, of a quite different order.

To the noble Lord, Lord Gridley, may I say that I do not believe my amendment would in any way fetter the police. Certainly it is not intended to do so. We are, after all, talking about pretty trivial sums of money.

This leads me to what the noble Lord, Lord Trefgarne, has said. I contend that the low level of compensation I have proposed justifies the simplicity of my formula, which was meant to save a lot of money which would otherwise be involved in administration. I cannot believe there would be many people who would deliberately purport to be guilty and get locked up in a police station merely in order to gain a few pounds. But, having said that, I did not entertain serious hopes that this amendment would be accepted. I think it has been a most useful discussion; and with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 [Searches of detained persons]:

Lord Elton moved Amendment No. 97:

Page 49, line 30, leave out subsection (1) and insert— ("(1) The custody officer at a police station shall ascertain and record or cause to be recorded everything which a person has with him when he is—

1. (a) brought to the station after being arrested elsewhere or after being committed to custody by an order or sentence of a court; or
2. (b) arrested at the station after having attended voluntarily there or having accompanied a constable there without having been arrested.

(1A) In the case of an arrested person the record shall be made as part of his custody record. (1B) Subject to subsection (1C) below, a custody officer may seize and retain any such thing or cause any such thing to be seized and retained. (1C) Clothes and personal effects may only be seized if the custody officer—

1. (a) believes that the person from whom they are seized may use them—
1. (i) to cause physical injury to himself or any other person;
2. (ii) to damage property:
3. (iii) to interfere with evidence; or
4. (iv) to assist him to escape; or
2. (b) has reasonable grounds for believing that they may be evidence relating to an offence.

(1D) Where anything is seized, the person from whom it is seized shall be told the reason for the seizure unless he is—

1. (a) violent or likely to become violent; or
2. (b) incapable of understanding what is said to him.").

The noble Lord said: My Lords, with your Lordships' permission, I will speak also to Amendment No. 98. Amendment No. 98: Page 50, line 9. leave out subsections (6) to (8).

These are essentially drafting amendments which simplify the clause by bringing forward the substance of subsections (6) to (8). There is only one point to which I should draw your Lordships' attention. The scope of the clause is extended to cover not only persons brought to a police station under arrest but also those brought to a police station under an order of the court committing them to custody. The need to ascertain what property such persons have on them is clearly just as great as in the case of arrested persons. That is why we have extended it. I beg to move.

On Question, amendment agreed to.

Lord Elton

moved Amendment No. 98:

[Printed above.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 97. I beg to move.

On Question, amendment agreed to.

Lord Elton

moved Amendment No. 99:

[Printed earlier: col. 224.]

The noble Lord said: My Lords, I spoke to this little regarded amendment with Amendment No. 54, of which your Lordships took due notice. I beg to move.

On Question, amendment agreed to.

Clause 54 [Intimate searches]:

8.59 p.m.

Baroness Masham of Ilton moved Amendment No. 100: Page 51, line 6, after ("him") insert ("either

1. (i) a Class A drug (as defined in section 2(1)(b) of the Misuse of Drugs Act 1971); or
2. (ii)").

The noble Baroness said: My Lords, it has been suggested that we should take Amendments Nos. 100 to 106 together. Amendment No. 101:[Printed earlier.] Amendment No. 102: Page 51, line 16, at end insert— (" ( ) An intimate search of the genital or anal orifices shall be by way of an examination by a registered medical practitioner."). Amendment No. 103: [As an amendment to Amendment No. 102]

At end insert ("or a registered midwife or a registered general nurse."). Amendment No. 104: Page 51, line 18, after ("practitioner") insert ("or a registered midwife or a registered general nurse"). Amendment No. 105: Page 51, line 21, leave out ("constable") and insert ("trained nurse or midwife"). Amendment No. 106: Page 51, line 22, leave out subsection (6).

I come back to your Lordships, as the noble Lord, Lord Elton, advised at Committe stage, with an amendment which is narrower. This amendment now limits the power of search of carriers of controlled drugs to Class A drugs. These are the most dangerous drugs, such as heroin and cocaine. There is no doubt that they do terrible harm to the victims who take them.

If your Lordships agree to this amendment, it will still mean that the police will have fewer powers to search for drugs than they now have under the 1971 Misuse of Drugs Act. That Act leaves the sort of drugs open. The power for the police to search exists now. This Bill will remove it unless amended. The threat that someone can undergo an intimate search is a very important deterrent. Also, if someone is arrested and has concealed drugs, in most cases he takes them out himself when he knows that if he does not he will be searched.

The police are very worried that if this power to search goes, prostitutes will be used to carry drugs around the country. This, to them, could be easy money and less hard work than their usual job. A very tragic aspect of drug addiction is that many girls who cannot live without heroin turn to prostitution. as it is the only way that they can get the money to buy the drugs which they must have. Turning to crime is also a method of getting the necessary cash.

The flood of heroin is alarming. Your Lordships may be surprised when I say that a support group run by a Baptist minister exists in Harrogate, the mayor of Scarborough has told me that they have a problem there and in the village of Masham, in rural north Yorkshire, there is thought to be a pusher. The college staff at nearby Swinton, who run courses for young people from industry and for the unemployed, do not let their young people go down to the village. Is this freedom?

Dangerous addictive drugs have become a plague in our modern society. I know that the Government are making concerted efforts in other ways to try to catch the big pushers, but the small fish down the line can do just as much harm to the individual. Many people have seen those who become addicted destroy them-selves. Among other people, I asked two 17-year-old boys at random what they thought about intimate search for pushers. They both said simultaneously that search was necessary, though neither of the boys was a model of good behaviour. I also asked an Indian community worker from Bradford and he said the same. When talking to an Italian last Thursday, he was aghast when I told him that we would be the only country in Europe not to have this power.

My feelings are the same as those of the noble Earl, Lord Attlee, who said at the Committee stage: I personally am against intimate body searches, for various reasons: but I am far, far more against anyone and anything to do with drugs."—[0fficial Report, 9/7/84: col. 709.]

One of your Lordships gave me a leter from the laboratory of the Government Chemist, which reads: This laboratory has been collaborating with a UK industrial company in the development of a device which would detect the concealment of drugs such as heroin and cocaine.

As the noble Earl, Lord Halsbury, said at Committee stage, there are technical devices such as ultrasound which can be used instead of manual search. Progress in this field is advancing.

The Royal College of Nursing have given their unequivocal support. The recommendation of the Royal Commission on Criminal Procedure was that intimate body searches should be given legal authority. I personally feel, in the interests of health and safety for all, that there should be a clear code of practice and specially trained medical people to do it, if it is thought to be really necessary. This amendment has the full support of the all-party Parliamentary Drug Misuse Committee. I hope that if it is accepted it will help to close a loophole to pushers of dangerous drugs.

I end by saying, with every respect to the Minister, that your Lordships might be confused by Amendment No. 101 in the name of the noble Lord, Lord Elton. Clause 54 is not very clear, but I am told that "anything" in this case does not apply to drugs. As regards Clause 113(8) on page 101, I am told by an eminent lawyer in your Lordships' House that the definition does not apply to Clause 54 as the law would interpret it. It is not dealing with or describing serious arrestable offences—

Lord Elton

My Lords, will the noble Baroness and your Lordships permit me to intervene, because I think it will make things easier? I did not interrupt when the noble Baroness called the group as Amendments Nos. 100 to 106. She is quite right that Amendment No. 101 has nothing to do with this group and it has already been discussed with No. 36. So your Lordships need not be confused on that issue. I am sorry and I should have made it clear sooner.

Baroness Masham of Ilton

My Lords, I thank the Minister for making that clear. I do not think we should be vague about heroin. I now turn to the other amendments. Amendment No. 103 just adds the words, or a registered midwife or a registered general nurse", to, a registered medical practitioner". It should be in the code of practice that all people allowed to do intimate search must be adequately trained to do it, whoever they are. I think that if nurses were attached to police stations, not only for searching but also for helping with many different problems such as the mentally handicapped, it would be better for the image of the police. A nurse, like a doctor, is professionally trained in a caring profession. A nurse would be neutral and would keep a balance. I also think that the services of a nurse would be advisable when using such equipment as ultrasound. A nurse could be easily trained to do it.

If Amendment No. 103 is added to No. 102, there will be three other amendments in the group. Perhaps the Committee will decide which are the most satisfactory. It will he much easier to make a decision about what to do when we have heard the Minister and other noble Lords. We must not forget that concern is mounting outside this House over the disastrous consequences of escalating drug misuse. If we do not do the correct thing, Parliament will no doubt be blamed for it. I beg to move.

Lord Mishcon

My Lords, I believe that the House—indeed, the country at large—will be very grateful to the noble Baroness for her pertinacity in moving this amendment on this occasion, altered as it is from the amendment that she moved at Committee stage, because of what the noble Lord the Minister very correctly said on that occasion about the inclusion of soft drugs. She can certainly count upon the support of my noble friends—if I may speak for them, as I am authorised to do on this occasion—in her desire to see that every conceivable step is taken to stop the filthiest trade that is ever practised in any country in the world, which this is. If we succeed in doing that, or at least in stemming it, we are not only catching people who deserve to be caught and brought under the criminal law, but we are most likely saving the lives of many young people.

It ought to be borne in mind, so we realise what we are doing if we pass these amendments, as I hope we shall, that we are merely giving to the police the same right that officers of Customs and Excise, as I understand it, have at the moment. We are protecting the position by ensuring that proper officers, such as doctors, midwives and qualified nurses, carry out these searches when they are required. I believe that the House will want not only to express gratitude to the noble Baroness but to do something practical by supporting her completely on this occasion.

Lord Hooson

My Lords, I am very glad that this bunch of amendments has been taken together. They cover a very sensitive but very important matter. I am entirely with the noble Baroness in what she seeks to achieve by Amendment No. 100. It appears to me that the pushing of Class A drugs is much more widespread throughout the country than is generally appreciated by the public. We hear a great deal about the black spots, but drug pushing on a considerable scale takes place throughout the country. However, one must look at the practical effect of the proposed amendment.

It was the fertile mind of my noble friend Lord Hutchinson of Lullington which implanted this idea in my mind: let us take the noble Baroness's example that a prostitute is being used by drug pushers to carry drugs in an intimate part, that she is arrested and accused of carrying such a drug and that she immediately responds with words to the effect, "Push off, I've only got Class B". How is that situation to be dealt with under this amendment?

It seems to me that in theory the noble Baroness is right. My noble friends and I propose to support her amendment on the understanding that it might have to be tightened up later. The amendment appears to deal with the much greater potential evil than does Clause 54. If we look at subsection (1) of Clause 54: If an officer of at least the rank of superintendent has reasonable grounds for believing— (a) that a person who has been arrested and is in police detention may have concealed on him an article which could be used to cause physical injury to himself or others and which might be so used while he is in police detention or in the custody of a court we see that it governs the rest of the clause.

I would make the point that we are dealing with a fairly rare circumstance. I was not present at the Committee stage but I have read very carefully what the noble Lord, Lord Elton, said about the subject. It seemed to me, as a result of reading his speech, that he had considered it very carefully. He gave as an example somebody who had a known suicidal tendency who had concealed razor blades and intended to use them. However, the danger of an unqualified person searching for the concealed razor blades might in that event be very much worse than just allowing the situation to continue. I have much more sympathy for what the noble Baroness proposes as the major reason for a search—that is, searching for, say, a Class A drug. The whole situation would, however, be changed if we removed the right of a police constable, however careful he or she may be, to perform the search. If we limit the right to search the anal and vaginal orifice simply to a qualified doctor, midwife or nurse, we remove the main objection that people would have.

I do not believe that an intimate search should in any event be embarked upon except in quite exceptional circumstances. That is generally agreed on both sides of the House. Nevertheless, when we agree about these exceptional circumstances we must go further. We accept the amendment moved by the noble Baroness to Amendment No. 102, which stands in my name and that of my noble friends, to add to the registered medical practitioner the registered midwife or the registered general nurse. If the amendment were accepted, the whole clause could, I believe, be accepted.

The Lord Bishop of Norwich

My Lords, I am glad to be associated with the amendment moved by the noble Baroness. I hope that Her Majesty's Government will give very serious and sympathetic consideration to it. It strengthens the Government's hand in showing the need for this at first very distasteful concept of intimate search. All of us recognise that it is distasteful and that there is the danger of deprivation of liberty. However, I remember that about half an hour ago the noble Lord used the phrase, "We have to legislate with our heads as well as with our hearts". I believe that the amendment tries to deal with the unpleasantness of the intimate search concept and strengthens the Bill by saying that there are real reasons today why such searches should take place under very stringent conditions. I am very glad that the noble Baroness has linked her speech with Amendments Nos. 103 and 104 which follow. I believe that nurses often have to do unpleasant things but they are, as it were, above the battle concerning the justice issue, and they are there to help with the mercy issue. I believe that if there were nurses linked with police stations in the same way as are police surgeons—even in the way in which this House depends on its own nursing sister, who is part of the community here—that would be good.

The second reason why I hope that Her Majesty's Government may well take this amendment on board is because it does seek to meet this new and alarming drug danger, which I believe is really reaching epidemic proportions. It is true that any Bill has a time-lag factor in it, and the painstaking drafting of this Bill must have taken place quite a long time ago as we know. I have done research on this drug epidemic, especially with young people. and drugs are being sold very cheaply to young people, who get hooked very early. We are not being alarmist but realistic when we talk about a drug epidemic. For those two reasons, I hope that the Government will believe that this amendment should he taken on board at this stage.

Lord Denning

My Lords, drug addiction is the greatest social evil of our time; drug trafficking is the greatest crime of our time. As the Lord Chief Justice said recently. all the first-class criminals are turning from bank robbery to trafficking heroin because it is less dangerous and more profitable. The cases in the courts illustrate how widespread the transportation of drugs is today.

There was a case in this House where a customs officer checked a car which was going through the Green Lane. He found in the deflated spare tyre in the back of the car packets of heroin. He turned to the man himself, undid his clothing and found more packets of heroin strapped to his body. The man said. "I did not know it was heroin; I thought it was just currency notes." And he got away with it.

The other case I wish to illustrate to you is where in Cambridge the police obtained a warrant to search a house for drugs. They found nothing in the house, but the owner happened to return while they were there and they searched him. He had a little tin on him containing a little plastic bag with a few grains of drug. He was in unlawful possession and was duly convicted. Those are instances of trafficking.

Surely, if this amendment is not passed it will be the easiest thing in the world to escape conviction. A prostitute, or any other woman employed by these people, can conceal drugs on her or inside her and then say, if the medical people or the superintendent authorises a search, "Oh, you can't search me, I can go straight through." It gives a licence to drug traffickers to go unscathed with these drugs concealed inside them.

For the prevention and destruction of this great evil and this great crime, surely there should be the power of intimate search. The search can only be authorised by a person of the rank of superintendent. He has got to have reasonable grounds for believing that there is a drug, so you do not search anyone who comes along; the superintendent has to have reasonable grounds for believing there is something there and that a search ought to be made for the purpose. If protection is given by saying that it should not be a police officer but a medical person or midwife, surely this amendment ought to be accepted by your Lordships.

Baroness Cox

My Lords, I wish to speak very briefly to these amendments, and with special reference to Amendments Nos. 103 to 106. in order to put the views of two of the Royal colleges most directly concerned. I have consulted both the Royal College of Nursing and the Royal College of Midwives and understand they support the view that, if intimate body searches are to be undertaken, it is clearly preferable that they should be conducted by members of the health care professions rather than by the police, for the very obvious reason that appropriately qualified, professional staff will be better equipped in terms of knowledge and experience and because it will be less humiliating—especially for innocent persons—to be searched by a member of the caring professions than by a police officer.

The Royal College of Nursing hopes also that the Government will take into account two other suggestions which I believe were made on previous occasions. First, it is suggested that such searches should be conducted in a clinical setting and not in a police station. Secondly, such searches should be carried out by a person of the same sex as the person being searched. I hope the Government will agree that all these suggestions are eminently reasonable and that they can help the professions concerned by assisting in making them legally acceptable.

Earl Attlee

My Lords, in Committee I supported the noble Baroness and said at that time that I was very much against intimate body searches—even more against hard drugs. I will now embarrass myself, but I hope not your Lordships. by speaking only to Amendments Nos. 102 and 103. Ferdinand de Lesseps built the Suez Canal but I had my canal rebuilt by Mr. Elton, a surgeon. I am sorry to say that there is no way I would allow a non-medical person to search me, because my rebuilt "Suez canal" is of such a size that unless someone was medically qualified they could do me an injury. I cannot be unique in this respect.

Quite honestly, I would rather not have to stand up and explain intimate medical details concerning myself to your Lordships, but it is a fact in my case, and it might be a fact in the case of other people. I would have no worry at all about any search, however intimate, made by a medical practitioner, midwife or nurse. Indeed, any Member of your Lordships' House who has had a haemorroidectomy will know that you were looked after by nurses who were very gentle and kind, and that there was no embarrassment at all. If these amendments are passed, there is no way that I would ever allow a policeman—whether he be a superintendent or anything else—to search me.

Baroness Elliot of Harwood

My Lords, as a vice-president of the Royal College of Nursing and a member of the drug committee which the noble Baroness, Lady Masham, has recently started, I become more and more horrified by the information that I receive through those organisations and by the appalling things that do go on and can go on if they are not stopped. I agree with everything that has been said, particularly by my noble friend Lady Cox, and I should like to support her in every way.

I am more particularly anxious that these searches should be carried out by nurses or doctors if the subject is a woman—or even if the subject is a man, that they should not he made by a constable but by a trained doctor. This is vital. We are legislating for something about which we have never had to legislate before and it gives rise to some terrifying and horrible thoughts. The only way that one can make such searches possible and tolerable is that suggested by my noble friend Lady Cox—by trained and expert medical people. nurses, general practitioners, or what-have-you. They should not be undertaken by people who have no experience. I hope the Government realise that we all feel frightfully strongly about this and that they will accept these amendments.

9.25 p.m.

Lord Donaldson of Kingsbridge

My Lords, I hope that the noble Lord will come back with an amendment on Third Reading incorporating Amendment No. 100 of the noble Baroness, with which I think we all agree, and a mixture of Amendments Nos. 102 and 103. This would then read: An intimate search of the genital or anal orifices shall be by way of an examination by a registered practitioner or a registered midwife or a registered general nurse of the same sex as the person being examined.". That would cover the whole aspect and should be the end of the argument. I very much hope that that is what the noble Lord will say.

Lord Plant

My Lords. I have discussed this with various police organisations and they would very much welcome not having to do the search and that it should be done by a medical practitioner, midwife or nurse. What would horrify them would be if there were no powers for intimate body searches because then body orifices would become much more common hiding places. The police are certain that this amendment is essential in combating ingenious and inventive criminals.

The Lord Chief Justice said yesterday, or the day before, that there had to be a vigorous attack on the trade of heroin. I believe that the Government have taken note of that. We have to stop these evil people from plying their trade. If we do not pass this amendment, so ably moved by the noble Baroness, Lady Masham, I believe that we shall live to regret it. I had a similar amendment in Committee, but it was wider. I have not proceeded with that amendment because I thought there would be a greater chance of the amendment of the noble Baroness, Lady Masham, being supported. There has been a torrent of support and sympathy for this amendment; not only in this Chamber but certainly among the police, and I believe among the public.

We must not protect the trade of illicit drugs. The police are united in support of this amendment. One reason why the Government have cold feet is because the BMA said that it did not want to undertake this unpleasant task. I have spoken to many doctors; they were never consulted by the BMA. Certainly police surgeons would undertake the task. We should carry this amendment because we have to decide what should be the laws of the country and we have to protect the citizens against the abuse and the use of hard drugs. If we do not carry this amendment, we shall be doing much to see that these evil people get their way.

Lord Gridley

My Lords, I should like to say a few words in support of the noble Baroness, Lady Masham, and the amendment which she has brought before us. I also say at the outset that I was involved for a number of years, not in this country but overseas, with international drug smugglers and people who smuggled heroin, opium and that kind of contraband.

I see tonight a greater urgency that the Government should take very quick action on the suppression of this evil. I support wholeheartedly what was said of these evil men by the noble Lord, Lord Mishcon. He said that it was an evil we had to eradicate as soon as possible.

I want to refer to an incident which happened in 1930, many years ago when I was the age of 24. The Colonial Office sent out instructions to Malaya, where I was serving, that the League of Nations, as it was then constituted, had given an edict to Her Majesty's Government that in the territories for which they were responsible they should carry out the suppression of opium smoking. We on the spot were put in a great difficulty. We had been getting a considerable amount of Government revenue from the sale of opium. run from Government shops. We had in that country Chinese, who were indigenous and who had been working there for many years, and it was a situation that we had to accept.

Nevertheless, we accepted the orders of Her Majesty's Government and immediately started to register smokers and ration them according to a medical report which came from the doctors. I consider that we succeeded in reducing the consumption of that narcotic, which to a large extent has the same effect as heroin. We succeeded in that, but we did not eradicate the smoking or otherwise taking of opium.

It has been reported in the press, and on wide and responsible authority, that heroin is in circulation not only in our cities but countrywide among many of our young people. I press my noble friend the Minister, who will be speaking to that amendment shortly, to listen sympathetically to everthing that has been said in this connection in your Lordships' House.

Finally, I say this. We have a moral obligation to protect the youth in this country. It is exceedingly difficult to eradicate something once addiction has been established. It looks like becoming established here if something is not done urgently to deal with the situation. I hope that Her Majesty's Government feel that they have a moral obligation not to he complacent but to act with the utmost urgency to deal with the situation.

Baroness Macleod of Borve

My Lords, I should like briefly to associate myself with everything that has been said tonight. I think that we have approached this grave subject practically, and that is the way that it must be approached today in this country. As we all know, there is a tremendous escalation of the problem. Ten days ago I was speaking at a local hospital in a certain part of the country. A magistrate came up to me and asked me about drugs. I said, "What about them?" She said that she would like me to know that on their bench they had had a survey done of only robberies in the past year. It was a large and busy PSD, and 80 per cent. of the robberries in that one area were connected with drugs.

I am sure that I need not draw your Lordships' attention to the fact that Clause 54(2) states: An intimate search under this section may only be conducted at a police station or at a hospital". In view of what has been said today, I feel that we should perhaps consider taking out the words, "at a police station". There are certainly as many hopsitals as police stations. If we go along with what the noble Baroness, Lady Cox, and others said, and decide that those who are qualified in medicine should be the only people to conduct intimate searches, we should go one step further and say that they should be conducted in hospital.

Lord Donaldson of Kingsbridge

My Lords, before the noble Baroness sits down, may I ask whether she considers that under the amendment they could raise a qualified person in the police station; that is to say, a registered nurse? Would there be any objection then? It seems to me that if they can produce a medical practitioner or a registered nurse to carry out the search. it is unnecessary to move the person to a hospital.

Baroness Macleod of Borve

My Lords, as the noble Baroness said, it is very important that the search should be under clinical conditions; those do not often exist in a police station.

Lord Campbell of Alloway

My Lords, may I briefly say that it is not only a privilege but I consider it a plain personal duty to support these amendments.

Baroness Gardner of Parkes

My Lords, as I have added my name to that of the noble Baroness, Lady Masham, on the amendment, I too should like formally to support it. I think that everything has been said. I emphasise the deterrent effect that I think this power would exercise. In particular, the noble Earl, Lord Attlee, was very brave to make the statements that he did, which bring home to us how people would feel. I support the point that the searches must be conducted by suitably qualified people. On the point about the necessary clinical conditions, some police stations are large enough to have quite good clinical conditions. If that is so, there is no reason why the search could not be at a police station. It would depend purely on the standard of the facility available.

Lord Gray

My Lords, I should like to support this series of amendments. Faced with the obscentity of the increasing traffic in drugs, I think that we have a clear duty to give this power to the police in the manner proposed in this series of amendments.

Lord Elton

My Lords, with the greatest respect to my noble friend, almost everything has been said on this matter. However, I hope your Lordships will permit me to contribute my mite. I have a number of paragraphs describing how the Bill came to be as it is. I do not think your Lordships will wish to listen to the history. I will merely remind your Lorships that his power was in the Bill when we first introduced it in another place, but we took it out last summer owing to the repeated anxious reminders that we had from the medical profession that they were not happy with it. We had good reason for that. However, I would rather turn now to the amendments that are before us in this group and, as a preliminary, to refer, as did the noble Baroness in moving her Amendment No. 100, to something which I think is not entirely relevant but which was raised at the Committee stage and which ought to be laid to rest.

There was a reference to the ultrasonic—I think they were otherwise described in Hansard but the noble Earl, Lord Halsbury, assures me that "ultrasonic" was the word he meant to say—and X-ray devices which might be able to be used instead of the powers conferred in the Bill. There are two facts. one technical and one legal. which means that this is not the case. The technical fact is that there may be objects of a moderate or small size and of moderate density or reflectivity which might simply not be detected by the devices. The other is that even if you see that there is an object there you still need the power to remove it. So the power, the need to legislate, remains.

Let us therefore look at the various proposals now on the Order Paper and first consider those that concern the question of who may undertake an intimate search, regardless of what the search is for. As the Bill stands, it is only doctors or, if the participation of a doctor is impracticable, a police officer who may do it. In Committee there was a good deal of support on all sides for the proposals that nurses and midwives too should be eligible, as it were, on the basis that both their expert knowledge of the body and their ethical responsibilities made them better equipped to carry out a search than a police officer. My noble friend Lady Trumpington accepted that there was a strong case for this, subject to consultations with the professional bodies concerned. She also noted that this applied to any intimate search irrespective of the orifice concerned.

The consultations that we have been able to conduct in the short time available have produced support for this proposition. If a trained nurse or midwife can and is willing to undertake a procedure of this kind, then it is clearly better that they should do it rather than a police officer. Our consultations have thrown out various points of detail which will need to be resolved; for example, whether this extension of the power should extend to all or only to certain nominated nursing staff. But I am able to tell your Lordships that, in view of the general acceptance of the principle involved, the Government accept that amendments to the Bill for this purpose are desirable.

Two further questions arise, however, if nurses and midwives are authorised under the Bill to conduct intimate searches: first, whether there is still any need for the reserve police power in subsections (5) and (6); secondly, whether, as envisaged in Amendments Nos. 105 and 106, nurses and midwives should be so authorised only if it is impracticable for a doctor to be involved. As to the first question, my noble friend made it clear in Committee that we would still take the view that there is a need to retain subsections (5) and (6). She made the point then that the addition of nurses and midwives would reduce still further the already very small likelihood that a police officer would be called upon to perform an intimate search. But we still believe that it is necessary to provide for those very rare occasions on which it is simply not possible or practicable to secure medical or nursing assistance in time to be of use, as may be the case if a violent and disturbed person is brought to a police station under arrest.

We cannot be certain that the rapid removal of a concealed weapon will never take overriding priority. It might be very unlikely, but we have to legislate for all circumstances. It is for this reason that I would not advise your Lordships to accept Amendments Nos. 105 and 106, which would abolish this police reserve power completely. Nor, for the same reason, could I recommend Amendments Nos. 102 and 103, which seek to abolish the reserve power in respect of genital and anal searches only. I can see the obvious appeal of this since the genital and anal orifices are so much the most intimate of all body orifices and subject to the sort of difficulties that the noble Earl, Lord Attlee, has courageously referred to.

The amendments would not have ruled out the possibility of the police themselves searching David Martin, who had, of course, concealed a penknife in his mouth. Nevertheless, there have been cases where weapons have been concealed not in the mouth but in the other orifices. I shall not repeat the examples that I gave at the Committee stage because your Lordships will be familiar with them. What you are interested in is the principle of the availability of the nurses and midwives, and that we concede.

I believe that the evidence that we have shows that the risks of abolishing the reserve police power outweigh the risks of retaining it. What, in effect, I am asking your Lordships to weigh is a small risk of injury—we have no record of any such injury caused—against a very real risk of death. It must be right therefore to take the former risk.

Next, there is the question of whether it should be possible for searches to be undertaken by nurses and midwives only if the services of a doctor could not be secured whether because he was unavailable or whether because, like the noble Lord, Lord Pitt, he has ethical reservations about undertaking intimate searches. I do not think that it is desirable to establish a pecking order of this kind, which will take time in any case. I think that in the urgent circumstances we are talking about the first person qualified under the Bill available should be enabled to make the search.

To sum matters up so far, the Government support the approach suggested by the noble Baroness in Amendment No. 104. Some points of detail remain to be settled in further consultation. I hope that she will be content not to press her amendment now, but I willingly undertake to bring forward a Government amendment on the same lines at Third Reading.

I turn now to the question raised by Amendment No. 100. This seeks to extend the power of intimate search beyond the protective and into the investigative sphere. Of course, the possession of dangerous addictive drugs does raise issues concerning both the health and the welfare of the person concerned, and indeed of society at large. If there are reasonable grounds for believing that the drugs might be taken out and swallowed, then the powers in the Bill as drafted would come into play. One example which I spared your Lordships was of someone who had successfully committed suicide with tablets concealed in the rectum. But, in the context of this amendment, we are not talking about articles which present an immediate risk of injury but of helping the police to eradicate the foul menace of drugs by securing evidence to prosecute those dealing in them. What is proposed by this amendment, as by the Royal Commission, is essentially therefore an investigative power.

I explained in Committee why we were opposed to such an extension of the Bill drawing particular attention to the views clearly put to us by the medical profession. However, I said then that we would obviously need to reconsider the matter if there had been a change of view within the profession. I understand. as noble Lords have indicated, that there is now a better understanding of the terrible threat to the health of society as a whole posed by heroin and a recognition of the need to do everything that we can to counter this threat. I understand also that in certain circumstances and subject to strict safeguards, members of the nursing profession might be willing to remove dangerous drugs without consent.

In the light of these indications, tentative though they may at this stage still be, that the balance of professional opinion may be shifting, though still divided, in the light of the views expressed by noble Lords in debate, we accept that it would be unwise to shut the door for the foreseeable future on searches for drugs. Having said that, I should make clear that we remain firmly of the view that such searches where they involve actual probing of body orifices should never be undertaken by police officers. The situation is quite different from the protective search undertaken to remove a dangerous weapon. There, time may be of the essence.

In the case of drugs, a reserve police power would be inappropriate, both because of the risk to the health of the suspected person which would be posed by a procedure of this kind undertaken by an unqualified person, and for the community relations reasons which I stressed at Committee stage and which, I remind your Lordships, are one of the foundation stones upon which the Bill is erected. But, on reflection, we do accept that there is a case for permitting doctors or members of the nursing profession to remove class A drugs in the absence of consent in the interests of the health of the person concerned and that of potential victims of the drug menace. Of course, the Bill could not and would not require them to undertake any procedure. It would simply provide them with a protection in law against an action for assault if they decided that it would be consistent with conscience and professional ethics to assist the police in this way; so they would not be compelled, as it were—one cannot, I think, compel them—to make the search if they do not wish to do so.

The implications of what I have said require very careful thought. I could not advise your Lordships to accept Amendment No. 100 as it stands. In the first place, it draws in individuals suspected of possessing any amount of a class A drug, however small. But the target we are aiming at is the dealer and smuggler who keeps the engine of destruction fuelled. The Royal Commission recommended that the power should be restricted to evidence of the grave offences of supplying. importing and exporting controlled drugs. The scope of the power should, I am sure, be limited in this way.

Secondly, I believe that there may be a case for providing that it should be possible for such searches to be carried out, as my noble friends Lady Cox and Lady Macleod suggested, only at hospitals or doctors' surgeries by suitably qualified personnel. The need for a rapid search at the police station will not arise, and it is surely much better for all concerned that the procedure should be as far removed as possible from the arena of the police station. Of course, the noble Baroness's amendment as it stands leaves to the police a reserve power which neither she nor, I think, most of your Lordships—nor, as the noble Lord, Lord Plant, most helpfully told your Lordships, the police themselves—feel that they should be asked to use.

But these and other matters, such as those referred to by the noble Lord, Lord Hooson, and the question of sex mentioned by the noble Lord, Lord Donaldson, all require detailed working out with those concerned, and we shall undertake the necessary consultations over the coming weeks, during the Recess.

I hope that I have said enough to show the noble Baroness and your Lordships that she has persuaded us, with your Lordships' eloquent support, on to a new course; and to persuade her, therefore, to agree to withdraw her amendment now so that we can incorporate suitable provisions as a result of consultation during the coming Recess.

Lord Donaldson of Kingsbridge

My Lords, before the noble Lord sits down. I should like to say that so far as I can see there is only one issue remaining. I think the House and the Government agree that in general the noble Baroness's amendment should be worked out and agreed to. It seems to me that the point which still remains between us is whether there should be any power reserved for somebody other than a medical practitioner, or a trained nurse of either sex, or a midwife, to do this examination. On this side of the House we feel passionately strongly that there should not remain a right for the police constable to do this. We have got from the noble Lord no indication of what he thinks about this, and I think we ought to have something.

Lord Elton

My Lords, if the noble Lord will read Hansard, he will find that he and I are entirely agreed on this matter. Lord Hooson: My Lords, before the noble Lord sits down, may I say that I have listened very carefully to what he said. He will forgive me for querying this, but in regard to the concealed weapon he said that there should be a reserve police power. That is what my noble friend was referring to.

Lord Elton

My Lords, I apologise; I thought we were discussing the amendment about searches for drugs, not the searches for weapons. I have addressed myself simply to that matter and I think I have made myself absolutely clear as to what are the Government's intentions. I feel like a partridge that has twice tried to settle and each time been shot at. I hope noble Lords will let me finally get to the ground.

The Lord Chancellor

My Lords, I am just wondering whether the noble Baroness wishes to reply to the debate on the amendment.

Baroness Masham of Ilton

My Lords, I should like to thank all noble Lords and noble Baronesses who have supported this, and to say a very big "Thank you" to the Minister and to the Government. Picking up the point made by the noble Lord. Lord Hooson, I want to say that at Committee stage I asked that very same question about how one defines whether the drug in question is heroin or cannabis. The police have drug squads. They are watching and they know the various dealers; at least. we hope they do.

That leads me on to the last point I want to make. Having read yesterday in the report of speeches at a law dinner that there are not enough police working in the drug squads. I hope very much that the Government will encourage more experts in searching for drugs so that we can catch these devils. With those comments, I beg leave to withdraw Amendment No. 100.

Amendment, by leave, withdrawn.

Lord Elton

moved Amendment No. 101:

[Printed earlier: col. 221.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 36. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor

My Lords, the next amendment is Amendment No. 102.

Lord Monson

My Lords—

The Lord Chancellor

My Lords, the mover must move the amendment first.

9.52 p.m.

Lord Hooson

moved Amendment No. 102:

[Printed earlier: col. 479.]

The noble Lord said: My Lords, I beg to move.

Lord Monson

My Lords. I apologise. I was not sure whether or not the noble Lord. Lord Hooson, was going to move the amendment, as he had spoken to it previously. I was under the impression that we were dealing essentially with Amendment No. 100, which I agree has been dealt with in a satisfactory way. However, I should like to say something about Amendments Nos. 102 and 103, because although I was extremely happy about the noble Lord's reply to Amendment No. 100, which stands in the name of the noble Baroness, I am not happy with his objections to—

Lord Mishcon

My Lords, I wonder whether the noble Lord will permit me to raise a point of order which can be decided by those much more experienced than I? The debate was conducted on a grouping which included all these amendments. The debate has been concluded, and concluded in a most satisfactory way with every point being dealt with. Even if the Minister did not agree with some of the things said, he said so, and they are under consideration. I do feel that we ought to get a move on.

Lord Monson

Of course, my Lords, if that is the wish of the House; but Amendment No. 100—

The Lord Chancellor

My Lords, I think I have called Amendment No. 102, and that it has been moved. Let me be sure where I stand. I understand that Amendment No. 102 was moved?

Lord Hooson

My Lords, I moved the amendment, but I was going to add that, in the light of the noble Lord's undertaking that the whole of the clause would be recast, I wished to withdraw it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 103 and 104 not moved.]

Lord Hunter of Newington

had given notice of his intention to move Amendment No. 105:

[Printed earlier: col. 479.]

The noble Lord said: My Lords, in the light of what the Minister has said. I shall not move Amendment No. 105.

[Amendment No. 105 not moved.]

[Amendment No. 106 not moved.]

Lord Elton

moved Amendments Nos. 107 and 108:

[Printed earlier: cot 221]

The noble Lord said: My Lords, my noble friend Lord Trcfgarne spoke to Amendments Nos. 107 and 108 with Amendment No. 36. I beg to move both amendments en bloc.

On Question, amendments agreed to.

Lord Elton

moved Amendment No. 109:

[Printed earlier: col. 224.]

The noble Lord said: My Lords, I spoke to Amendment No. 109 with Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Clause 55 [Right to have someone informed when arrested]:

The Lord Chancellor

moved Amendment No. 110: Page 52, line 28, leave out ("without delay") and insert ("as soon as is practicable"). The noble and learned Lord said: My Lords, I am told that this is a drafting amendment. I beg to move.

Lord Mishcon

My Lords, the noble and learned Lord is as precipitate as he always is, but on this occasion not absolutely correct. We are dealing here with a very important clause about information being given either to a member of the family or to a friend that a person is in a police station. On the last occasion the noble Lord said that possibly the words "without delay" were difficult words to include in the Bill. although originally they were in the Bill, because it might mean that a civil claim arose against the police if there was one minute of delay.

This is an extremely important clause for people who are detained in police stations and whose families, as I am reminded, are so concerned and worried about them. The amendment now before the House is to substitute the phrase "as soon as is practicable" for the phrase "without delay". That can mean anything, and the police can decide that it really is not practicable because they have a number of other things—they may be quite minor things—to which to attend and they cannot send someone round to the house to say that someone is in the police station.

I am suggesting to the Minister—and indeed to the noble and learned Lord—that if the words were to be "without undue delay" (and he may wish to consider this), so that we are inserting the word "undue", that would meet the point, and we would not have the very wide term "as soon as practicable", which I humbly submit is not suitable in this context to protect the interests of the person who is detained.

The Lord Chancellor

My Lords, I understand that the noble Lord, Lord Mishcon. was good enough to give some preliminary indication of his remarks. and therefore I am in a position to reply to him as a result of his courtesy in so doing. I am advised that the phrase "without undue delay", which is what he has suggested, is actually a laxer test for the police because it suggests that some delay, whether or not necessary, is acceptable, provided that the delay is not great.

The purpose of this amendment is to make the language of the Bill consistent. The expression "as soon as practicable" occurs in other clauses in the Bill, such as Clauses 36(4), 56 and 57(3), and, as was pointed out in Committee on 9th July (at col. 736 of Hansard) in response to an amendment which would have substituted the expression "without delay" for the phrase "as soon as practicable" in Clause 57(3), one cannot sensibly require the police to do something sooner than it was practicable so to do.

I should have thought that it was desirable in itself that the Bill should at least be consistent in its terminology. The expression "as soon as practicable" is thought to be preferable because, with the best will in the world, there must occasionally be some delay. For instance, the telephone lines from one town to another may be engaged; or the custody officer may have to deal urgently with another person at the station who has become violent. There are innumerable reasons why from time to time some delay is inevitable. So long as the police are under a duty to comply with a request as soon as practicable, I am advised and I believe that that is enough. Therefore, I beg to move.

Lord Mishcon

My Lords, I am sure that the House will have been very pleased to hear the speech that the noble and learned Lord made on a drafting amendment. In the circumstances, I shall obviously consider what has been said but for the moment I sit down.

On Question, amendment agreed to.

Lord Gifford

moved Amendment No. 11OA: Page 52, line 37, leave out ("36") and insert ("12"). The noble Lord said: This amendment is in the names of my noble friends on the Front Bench. Clause 55, as my noble friend Lord Mishcon said, deals with the very important matter of the right of somebody to have a friend or relative informed if he is under arrest. This is a different question from the right of access to a solicitor. We are not talking about the right to see someone, but merely the basic right for someone to know where you are.

The Bill proposes that that right can be denied, in certain circumstances, for up to 36 hours. One of the nightmares about a police state is the arrest in the middle of the night, the person being taken off to the police station and nobody knowing where he is. He is not able to get any message out about where he is. We all agree that there must be some limit on the time over which that can extend. The Government have proposed a limit of 36 hours: a limit which can be as much as two nights and a day, which we suggest is extreme to the point of inhumanity. It is not just a question of the person in custody not being able to get any intimation out to his relatives.

The code of practice in paragraph 5.5 states that where an inquiry as to the whereabouts of a detained person is made by a relative, the information will not be given if the provisions of this clause apply. In other words, the police will be entitled to deny to a relative who inquires, "Is my son at the police station?" and that can continue over a period of 36 hours.

Of course, there are conflicting dangers. There is the danger, which I am sure the noble Lord the Minister will tell us about. that if the news of an arrest gets out it can get to accomplices. But the dangers are surely limited. The news gets around particularly in the world of the criminal fraternity. We are talking in our amendment about a time limit of 12 hours which surely is a limit of what is reasonable.

Even if there is a danger, the danger must be tempered by the considerations the other way. Some of your Lordships will have received a letter from a distinguished professor, Professor Leigh of the London School of Economics. He says this: We must balance the interests of efficiency in investigation with that of the dictates of humanity. I cannot think it right that a person should be held incommunicado. It is a form of mental torture to which I would hope we in England would not subject fellow citizens. Let us consider the dangers the other way round. When relatives find that one of their loved ones is missing, the anguish that that can cause is extraordinary. I recently had the privilege of chairing a committee of investigation into certain arrests and detentions in South Wales where young people had been arrested and nobody had been told. I heard from relatives, most law-abiding and respectable people, who had been round from police station to police station and eventually to the morgue to try to find where their loved ones were, because the police refused to say that they were in a particular police station.

That situation—enduring over 36 hours—is, in my submission to your Lordships, intolerable. The faith of those relatives and their friends in the fairness of the system of police investigation was shattered. Let us therefore put a limit of 12 hours at most on the right of the police in any circumstances to deny that very simple and, we would suggest, almost always harmless right: the fact that the arrest should be made known to a relative. Grouped with this amendment is the linked Amendment No. 116A. which would impose the same time limit on the power of the police to withhold access to a solicitor. I am not going to speak to that because we have had a full debate on it. The question of how long someone should be held incommunicado raises different points. I beg to move this amendment.

Lord Monson

My Lords, I should like to support this amendment. The noble Lord, Lord Gifford, mentioned the right of someone to know where you are. Even more important, I would say, is the right of a person's family to know that he or she is not dead or seriously injured as the result of a traffic accident, for example, or of having dropped down in the street with a heart attack. That is what husbands and/or wives fear most if their spouse, for whatever reason, fails to appear.

Lord Hutchinson of Lullington

My Lords, I should like to support this amendment. I think that in our debates on these matters we lose sight very quickly of the balance which we are trying to keep. Over and over again an isolated case is given as an example to justify a power. All of us can always think of an isolated case where you feel that you ought to have overwhelming powers. The fact of the matter is that to keep somebody in custody for 36 hours without letting anybody know gives a tremendous power to those in the police station to obtain a confession or an admission from that person which may turn out, as I have already said earlier in the day, to lead inevitably to an appalling miscarriage of justice.

People make confessions and admissions purely because they are in a police station isolated, totally isolated, locked up in a cell, knowing the situation outside, that their wife is going to do this or the child needs collecting or they promised to do this or that and the wife could be sitting at home expecting a child to come home or whatever it is. In those circumstances, they will say anything to get out of that police station or to get their families informed of where they are. I would support this amendment as a practical lawyer—as is also the noble Lord, Lord Gifford. One repeatedly sees in front of one that people make confessions and admissions in police stations because they are incarcerated incommunicado for a very considerable time. It is a great danger. I believe that 36 hours is too long for someone to disappear. Twelve hours is surely enough.

The Lord Chancellor

My Lords, I really do not think that the noble Lord, Lord Gifford, added much to the wisdom of nations by talking about a police state when we are obviously talking about a question of degree; or by talking about the police telling lies with such gusto when that is not the case in the main. And I rather doubt whether the noble Lord, Lord Hutchinson of Lullington, was really helping us much by referring to this question of confessions, with which we shall be dealing at much greater length in a later clause.

Clauses 55 and 57, with which this amendment is concerned, provide for a delay of 36 hours in exercising the rights to have someone informed of the arrest and to obtain legal advice. These amendments would reduce the time to 12 hours. The figure of 36 hours was adopted in order to link up with the first independent review of detention under Clause 42, and there are good reasons for keeping the three provisions—that is, under Clauses 42, 55, and 57—in line.

Special considerations apply in the case of persons detained under the terrorism provisions, to whom the 36-hour review will not apply, so the figure in their case is different. But in the case of persons detained in right of arrest for a serious arrestable offence under the general criminal law, the latest point at which they must he brought to court if still uncharged is also the natural limit for incommunicado detention. It was for this reason that the previous Bill, as originally introduced, provided for notification of arrest to be delayed up to 48 hours. since that would then have been the point at which the first inter partes review of detention took place.

Indeed, some of the reasons which caused us to consider that the time of the first inter partes review should be no later than 36 hours, rather than 24 hours, are also reasons for maintaining 36 hours as the limit on the delay of a notification of arrest. It was necessary for us, as those responsible for the safety of other human beings as well as those under suspicion, to take account of the exceptional cases involving very serious crime where premature disclosure of the fact that a person had been arrested could have the most harmful consequences.

To some extent, of course, any figure one chooses is an arbitrary figure. but on occasion it is clear that 12 hours is insufficient. It has been accepted by the Criminal Bar Association. which is composed of at least as practical lawyers, if your Lordships will allow me to say so, as Lord Hutchinson of Lullington, that on occasions even 36 hours might be too early. The case they had in mind concerned a kidnapping in which it was essential for the victim's safety that the fact that one member of the kidnapping gang had been arrested was not disclosed. I wonder whose side we are really on in these cases. The risks would obviously be much greater if the period were reduced to 12 hours. It is right to regard this issue in terms of risk. We are already taking a risk by placing a 36-hour limit where none now exists.

Of course, this does not mean that a delay will occur in all or, indeed, a great many cases. The clause, as your Lordships will know, is based on Section 62 of the Criminal Law Act 1977. I must remind the House that that Act was not passed under a Conservative Government. It not only allows an indefinite delay but also allows it on criteria which are considerably vaguer than in Clause 55, referring simply to the interest of the investigation or prevention of crime or the apprehension of offenders". I have quoted those last words from the Act.

Even so, the great majority of requests are dealt with quickly. In 1982 there were approximately 1,600,000 arrests, and only 1,353 requests under Section 62 of the 1977 Act were delayed for over four hours. A minute number, 114, were delayed for over 24 hours. Thus, only in a minute proportion of cases—0.007 per cent., in fact—was there delay for more than 24 hours in complying with a request under Section 62 of that Act passed by a Labour Administration. There is therefore every reason for confidence that, through a higher definition of the cases in which delay is permitted, the clause is likely to reduce the minute proportion still further.

At the same time, as I have said, it is necessary to provide for the exceptional case in which 12 hours is not enough. I have one or two cases to refer to. and I shall revert to them. But what would have happened in those cases if this amendment had been in force? The arguments in the case of Clause 57 are similar because, as has already been explained, the power to restrict a person's access to a solicitor is simply a special case of the need to keep him incommunicado. There may well be cases where the police are happy to grant access to a solicitor but not to someone named by the suspect.

The point in his detention after which it no longer becomes possible to keep him incommunicado is 36 hours or the hearing of an application for a warrant of further detention, if that is earlier. So, logically, it is also the point at which the right should become absolute. Your Lordships have already agreed that the latest time for the first inter partes review of detention should be 36 hours; but I must stress certain points. First, the exercise of the right of access to legal advice cannot be delayed once the reasons which have justified it no longer exist. Secondly, the exercise of the right cannot be interfered with once a person has been charged with an offence or detained on the authority of a warrant for further detention. Thirdly, access to legal advice must be allowed before any court hearing, which obviously includes the hearing of an application for a warrant of further detention. That is made clear in paragraph 3 of Annex C to the draft detention code. I am confident that the power to delay access to a solicitor for more than 12 hours will be exercised only in the most compelling cases of serious crime.

I promised to give your Lordships one or two examples. They all date, I think, from 1983, which is comparatively recent. Let us take one from July of that year, which was a conspiracy to rob. The reason for delay was that another person had to be arrested in connection with the same offence. It was feared that the friend might inform another person. Another example concerned a drugs case—another very serious offence. I am afraid this is from April 1982—I said earlier that they all related to 1983: that is not true. The reason for the delay was that inquiries were continuing into drug offences and it was believed that notification of the named person would prevent the arrest of others involved.

Then there was another case of deception with drug offences. The person arrested was a known dealer in drugs. His premises were searched under authority of a drugs warrant. During the search £39,000 was found in a box in the garden, with jewellery. It was believed that a third person involved with others was jointly responsible for other burglaries of a similar nature. It was desirable to recover as much of the stolen property as possible and to search his address. If he was allowed contact with others it might have hindered the investigation.

Another case concerning drugs was thought likely to interfere with the course of justice, as other people were to be interviewed about the large amount of controlled drugs involved. There was another case which concerned detention under the Prevention of Terrorism Act. It was thought that it might impede inquiries in Northern Ireland and lead to threats to persons supplying information.

It is all very well to talk in emotive terms, as the noble Lord, Lord Hutchinson of Lullington, does almost on every occasion and as the noble Lord, Lord Gifford, does invariably: but really we must decide whose side we are on in these matters. Human lives are involved—human lives of the utmost importance—and innocent lives, and other people are under suspicion. Clearly these are matters of degree and they-are matters of judgment, but the advice we have received is that 36 hours is the right period and 12 hours is the wrong period. I am not going to plead guilty to starting a police state or to encouraging police to tell lies, simply because I am on the side of those who are investigating drugs offences and kidnapping.

Lord Gifford

My Lords, it is not a justified riposte, with the greatest respect to the noble and learned Lord, to suggest that those who put forward some decent basic minimum periods during which people could be held incommunicado are somehow on the side of criminals because that is what they propose. We are on the side of decent standards and this Bill, in many respects, is eroding them.

In answer to the various examples which we were given, the answer is surely that you cannot keep arrests secret. The news gets out. If the police have to arrest a number of people they have to co-ordinate their actions because the word gets around. I would be very surpised indeed if there were any case more often than once or twice a year in which an arrest had been kept secret from accomplices for more than 12 hours and someone's life was in danger.

I shall not press this amendment for one reason only, and that is because in the linked debate which we have had about the right of access to a solicitor a lot of wise things have been said, and the noble Lord, Lord Elton, will be considering what, if anything, can be done to meet some of the objections that were raised on that matter. Quite clearly, if there is some change in the Bill on the question of the right of access to a solicitor, it may affect what should be done about the right of someone to have a friend informed. For that reason only, and not because anything the noble and learned Lord said has convinced me, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.20 p.m.

The Lord Chancellor

moved Amendment No. 111: Page 53, line 34, leave out from beginning to ("and") in line 39 and insert— ("(a) subsection (2)(a) above shall have effect as if for the words "for a serious arrestable offence" there were substituted the words "under the terrorism provisions"; (b) subsection (3) above shall have effect as if for the words from "within" onwards there were substituted the words, "before the end of the period beyond which he may no longer be detained without the authority of the Secretary of State"."). The noble and learned Lord said: My Lords, with this amendment I should like to speak to Amendment No. 117. Amendment No. 117: Page 56, line 3, leave out (""48" were substituted for "36"") and insert ("for the words from "within" onwards there were substituted the words "before the end of the period beyond which he may no longer be detained without the authority of the Secretary of State" "). I believe that these are drafting amendments. These amendments to Clauses 55 and 57 both clarify the application of the provisions of the clauses to a person detained under the terrorism provisions. The former amendment also ensures that the three paragraphs constituting subsection (12) of Clause 55 appear in the correct order. The intended effect of Clause 55(12) and 57(13) is that, whereas the rights conferred by those two clauses become absolute after 36 hours in the case of a person detained under the general criminal law, a further 12 hours' delay is possible in the case of persons detained in connection with terrorism, as recommended by the noble Earl, Lord Jellicoe.

However, as drafted these two subsections do not quite work as they should, because they refer the reader back to subsections (3) and (4) respectively, both of which embody the concept of the relevant time as defined in Clause 40(2). Going back to that subsection we find that the relevant time starts, generally speaking, on arrival at the police station. But persons may be detained under the terrorism provisions at a place other than a police station; for instance, on board a vessel. Indeed, Clause 29(11)(c) expressly disapplies the requirement to take an arrested person to a police station in such a case. The effect of these amendments is therefore to ensure that the maximum period of delay in such cases is indeed 48 hours from the time that detention begins. The amendments—I am instructed and believe—do no more than clarify the position. My Lords, I beg to move.

On Question, amendment agreed to.

Clause 56 [Additional rights of children and young persons who are arrested]:

The Lord Chancellor

moved Amendment No. 112: Page 54. line 23, at end insert— ("and (b) in the case of a child or young person in the care of a voluntary organisation in which parental rights and duties with respect to him are vested by virtue of a resolution under section 64(1) of the Child Care Act 1980, a reference to that organisation."). The noble and learned Lord said: My Lords, this amendment provides for the case where a child is in the care not of a local authority but of a voluntary organisation, and it requires the police to inform the organisation of the arrest instead of the local authority. I think I can call it either drafting or technical, but it could probably be debated. My Lords. I beg to move.

On Question, amendment agreed to. Clause 57 [Access to legal advice]:

Lord Mishcon

moved Amendment No. 112A: Page 54, line 36, leave out from ("person") to ("or") in line 37 and insert ("who is in police detention or who, for the purpose of assisting with an investigation, attends voluntarily at a police station or any other place where a constable is present and is cautioned"). The noble Lord said: My Lords, if I may, I propose to speak to Amendment No. 112B as well as to No. 112A. Amendment No. 112B: Page 54, line 38, at end insert ("and nothing in this Act shall be taken as detracting from the right of any person not held in police detention to consult a solicitor privately at any stage of an investigation"). May I make it clear that these amendments have their origin in the Law Society, which is extremely worried about a problem of which I wish to tell your Lordships. The Bill as at present drawn provides that legal advice is to be restricted to those in police detention at a police station. That poses and creates a very real problem. The Government clearly envisaged that the right to legal advice should be available to others who are at a police station but who are not in police detention, because successive draft codes of practice for the detention, treatment and questioning of suspects have stated that: Any person at a police station may consult and communicate privately with a solicitor of his own choice". I believe that the latest draft I have seen provides for this in paragraph 6(1). The code goes on to make it clear specifically that those who are attending voluntarily under Clause 28 of the Bill but who have been cautioned may obtain legal advice. This is therefore one of those cases in which the code of practice provides a wider entitlement than that contained in the Bill.

What is clear under the Bill is that duty solicitor committees established by the Law Society will have the power to make arrangements for the provision of advice and assistance. They are hoping to have a 24-hour duty solicitor scheme which will operate at police stations continually. All that that will really mean is that they will have the power to make arrangements for the provision of advice and assistance only to those persons who are actually held in police detention.

This is likely to have very serious implications. It means that the duty solicitor scheme will not, as I have said, extend to those who attend at police stations voluntarily to help the police with their inquiries, even when—and the amendments are limited to this situation—they have been cautioned. If, therefore, the suspect wishes to have legal advice at that early stage, it will not be available from the duty solicitor and may not be available from other solicitors.

One doubts whether this is what the Government intended. One further doubts whether, if that is the Government's intention, it will be approved by your Lordships' House. If such advice is to be available to volunteers from duty solicitors, as the code of practice says it is, it is necessary for the duty solicitor committees to have the power to make arrangements in relation to all persons who attend at a police station voluntarily in order to help the police with their inquiries and who are cautioned as well as those who are in police detention.

The consequences of not making this change are, first, that any solicitor attending a person voluntarily at a police station and who has been cautioned will, presumably, not get paid and, secondly, that the volunteer at a police station will not be able to avail himself or herself of the welcome new arrangements to be made by the Government for free legal advice and assistance while at the police station. One recollects that during the Committee stage in another place—I am quoting from the Official Report of the Standing Committee of 28th February 1984 at col. 1434—the Minister of State said: The Committee will agree that there is no doubt about our concern to make the right of access to legal advice effective". I respectfully suggest that that right will not be effective unless, as now, legal advice is as available to those voluntarily at the police station and who are cautioned as to those who are in police detention. It is not right that the code of practice implies that it will be. I beg to move.

The Lord Chancellor

My Lords, I hope I am not going to make a false point to begin with. However, I am about to repeat what I have been told: that the noble Lord. Lord Mishcon, has spoken to Amendment No. 120A. It so happens that Amendment No. 120A is an amendment which I was going to agree to in principle. But if, as he ought to have been, the noble Lord was speaking to Amendment No. 112A, my present inclination is to resist the amendment. I hope I am not at cross-purposes. It is very easy to get at cross-purposes and I apologise if either of us is.

Amendments Nos. 112A and 112B deal with the situation of those who are not under arrest but have been cautioned, as I understand it. They assert that such persons are entitled to consult a solicitor privately at any time. Of course, they are perfectly entitled to consult a solicitor at any time under the existing law. On the face of them, these two amendments might cast doubt on the right to legal advice of those who have neither been arrested nor cautioned; hence the second part of Amendment No. 112B, which declares that nothing in the Bill detracts from this right.

My Lords, similar amendments were rejected during Committee stage. My noble friend pointed out at that stage that ample provision was made in the code of practice for this situation. I need only refer to paragraph 11.4, which requires that a person who has been cautioned but is not under arrest must be informed that he is free to leave and must be reminded that he may obtain legal advice if he wishes. The provision is also found in paragraph 3.8.

My noble friends and I have made the point on several occasions that the code will be an enforceable document, as strictly adhered to by the police as the Bill from which it springs. It is, of course, built into the Bill by Clause 66, particularly by subsection (7) of that clause. I do not want to weary your Lordships by repeating the arguments made on that point. Suffice it to say that if the noble Lord is concerned that this provision may be overlooked or ignored because it is in the code, I can reassure him that it will not be so overlooked.

I do not think that these two amendments to which we are speaking, Nos. 112A and 112B, raise any issue of principle or substance. The Bill confers an express right of access to legal advice on persons in police custody only because police interference with that right would otherwise be possible. Where the person is not under arrest there is no need to confer a statutory right of access to legal advice on him, any more than there is to confer a statutory right of access to a plumber or electrician. If the person is under caution the police must, in accordance with the code of practice, in addition tell him that he can obtain legal advice if he wishes, and that is sufficient. The Bill does not permit any interference with his freedom to consult a solicitor if he wishes, and he can leave at any time if he wishes to go and see a solicitor away from the police station. I believe that is plain enough, and I see no reason to add to the Bill unnecessarily by purporting to confer rights on citizens who are free to go about their business as they wish.

I will tell the noble Lord in advance that when he comes to Amendment No. 120A, which is not altogether dissimilar and which may have deceived those who were advising him in the matter, he will have a very sympathetic response along the lines which I have indicated.

Lord Mishcon

My Lords, I am so gratified by the promise of what is going to happen to Amendment No. 120A that I feel the less I say the better. I therefore propose to read with great pleasure, as always, what has been said by the noble and learned Lord, and wait with eager anticipation to move Amendment No. 120A. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112B not moved.]

The Lord Chancellor

moved Amendment Nos. 113 and 114: Page 55, line 2, leave out ("subject to the following provisions of this section") line 3, at end insert ("except to the extent that delay is permitted by this section") The noble and learned Lord said: My Lords, with you Lordships' permission, perhaps I may deal with Amendments Nos. 113 and 114 at the same time. I am instructed and advised that these are drafting amendments, and no more. I beg to move them en bloc.

On Question, amendments agreed to.

[Amendment No. 115 has been withdrawn from the Marshalled List.]

Lord Hutchinson of Lullington

had given notice of his intention to move Amendment No. 115A:

[Printed earlier: col. 427.]

The noble Lord said: My Lords, I do not propose to move this amendment, but I shall return to this matter at a later stage unless I have good reason for not doing so—and that will depend, of course, on whether something satisfactory emerges in relation to Amendment No. 78A.

[Amendment No. 115A not moved.]

[Amendments Nos. 116 and 116A not moved.]

Lord Elton

moved Amendment No. 117:

[Printed earlier: col. 500.]

The noble Lord said: My Lords, my noble and learned friend has already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

10.36 p.m.

Baroness Ewart-Biggs

moved Amendment No. 118:

[Printed earlier: col. 428.]

The noble Baroness said: My Lords. I should like to move amendment No. 118 with the utmost speed. The purpose of this proposed new clause is to ensure the presence of an adult during the questioning of a juvenile—either an adult as designated under Clauses 54 and 55 of this Bill or an adult chosen by the young person himself. In either case, it will be an independent adult who is not a police officer.

It has been generally accepted that children and young people have a special status with regard to questioning. Indeed, the code of practice states: All these special groups may be particularly open to suggestion, and it is important to obtain corroboration of any facts admitted wherever possible". The reason we want the extra protection that would be provided by the amendment is that there is considerable proof emerging from discussions with young people, parents, social workers and solicitors, and from cases referred to the Children's Legal Centre, that pressure is put on young people if they are detained in police custody for long periods in the absence of an independent adult.

I think it should not be underestimated how even those young people who may appear very aggressive when questioned by police on the streets can feel totally intimidated once inside a police station. They may then be inclined to say anything to the police in the belief—utterly mistaken, of course—that this will get them out of the police station quicker and home sooner.

It has been said, and it must be true, that juveniles are more susceptible to persuasion through fear or favour, and consequently are more likely than adults to make a false admission of guilt. Indeed, it is a sobering thought that this actually happened in the celebrated Confait case, where three young people were led into admitting, in confession statements, a murder that they could not have committed. It seems to us essential to prevent any risk of such a thing ever happening again.

There can be no doubt that the presence of an independent adult during the whole period of questioning of a juvenile would prevent that juvenile blurting out just anything in order to get away. At the same time, it would prevent an over-zealous policeman from pressurising him in order to gain information. Moreover, such a procedure would go some way towards helping to conserve that all-important relationship between young people and the police forces. It is for these reasons that we consider it right to bring within this Bill the all-important safeguard provided by the presence of an independent adult during the questioning of a juvenile. That is what our amendment is designed to do. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I hope that the noble and learned Lord will not dismiss this as an emotional amendment. He described a number of the statements which my noble friend Lord Hutchinson made as being emotional, but when one is dealing with certain aspects of this Bill, if one is without emotion it tends to be without merit.

I do not accuse the noble and learned Lord of being without emotion. We all remember with the greatest pleasure how, as a loyal Churchman, he turned on the Bishops and rent them in the most gloriously emotional way. I approve of that and I should like to feel that the noble and learned Lord approves of my noble friend Lord Hutchinson when he expresses some emotion.

The Lord Chancellor

My Lords, the last thing I do is describe amendments as emotional. Sometimes one discusses seriously the question whether or not speeches are emotional and whether the emotion is in place or out of place. But I shall not pursue that matter.

I do not think that there is any real difference of principle between the noble Baroness and her noble friend Lord Donaldson in this matter. The effect of the new clause would be to place an absolute prohibition on the questioning of a juvenile in police custody in the absence of a responsible adult. It also makes a supplementary provision concerning who that adult should be. A new clause to the same effect, identical in terms, was rejected in the Commons Committee and it was not moved in the Lords Committee on 9th July. Obviously the purpose is to prevent delay in notifying the parents of his arrest and the noble Baroness and the noble Lord have added other reasons.

We follow the Royal Commission's view and it is probably right to remind the House of what that view is. I quote paragraph 4.103 of its report that it is, essential that a juvenile should have an adult person present other than the police when he is interviewed and it is highly desirable that the adult should be someone in whom the juvenile has confidence, his parent or guardian, or someone else he knows as a social worker or school teacher.". However, the corn mission acknowledged—and we agree with it—that there must be exceptional circumstances in which any delay in interviewing a juvenile while his parents or other adult are awaited could have very serious consequences. I quote again from the report, paragraph 4.104: Juveniles, unfortunately, can be involved in serious offences … and we think it would be contrary to the public interest to prevent the police questioning a juvenile where, for example, life is at risk.". We also accepted the commission's recommendation in the next paragraph of its report that the rules governing questioning should make clearer the circumstances in which the police may properly question a juvenile in the absence of an adult. Paragraphs 13.1 to 13.3 in Annex C of the draft detention code give effect to this recommendation and indeed go beyond it. Whereas the present position under the administrative directions is simply that juveniles should so far as practicable be interviewed only in the presence of an adult, those paragraphs very considerably tighten up this requirement. Under Annex C a juvenile may be questioned in the absence of a responsible adult if a superintendent judges that delay in beginning the interview will involve an immediate risk of harm to persons or serious damage to property; and questioning must cease once that immediate risk has been averted.

That seems to me to be a substantial new safeguard. It would however be quite wrong to place an absolute prohibition on questioning in the absence of an adult, for example, even where life was at risk. It is, unfortunately, the experience of the police that sometimes the parents of a juvenile in trouble are unwilling to come to the police station or simply cannot be found; and while there are obviously well-established channels of communication between the police and social services departments, difficulties can and do arise when an arrest takes place at night. It may be that they should not arise; but the fact is that sometimes the police have to wait a long time before they can get anyone to come to the police station to be present at an interview. The police cannot, for instance, be expected to stop casual passers-by in the street and ask them to come into the police station so that they can begin an urgent interview: that would be unrealistic.

I should like to emphasise however that the draft detention code will ensure that questioning in the absence of an adult will occur only when authorised by a senior officer in strictly defined circumstances; and to remind your Lordships that Clause 56 places a clear duty on the police to inform parents of the arrest of their children as soon as practicable. If there are cases where the police fail in this duty, the appropriate disciplinary procedures are available. It is not satisfactory to impede the investigation of serious crime, as this new clause would do, where the police are not at fault.

I suggest that the right view is that, with this explanation, the noble Baroness will realise that there is no serious question of principle between us, and that the Bill, as drafted, goes as far as it really ought to do.

Baroness Ewart-Biggs

My Lords, I should like to thank the noble and learned Lord for his answer. Even if we shared the same principle, we had quite a different idea about the necessity, for the reasons which I gave, to have an independent adult present when young people are being questioned. The argument that parents would not want to attend is a bad one, which I have heard before. If we create a law which allows parents not to wish to come to support their children, they will be more likely not to come forward to support their children.

I am disappointed that the noble and learned Lord has not been a little bit more positive and enthusiastic about this very important and useful amendment. However, perhaps I will withdraw it at this point and think again before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 119 not moved.]

Clause 58 [Legal aid for persons in detention]:

The Lord Chancellor

moved Amendment No. 120: Page 57, line 6, leave out ("by solicitors"). The noble and learned Lord said: My Lords, this removes a reference to solicitors from the new provisions inserted in the Legal Aid Act 1982. The reason is that Clause 58 provides for the establishment of duty solicitor schemes for police stations. New paragraph (aa) to be inserted into Section 1(1) of the Legal Aid Act 1982 makes it clear that legal advice and assistance may be provided not only by solicitors but also by representatives of solicitors. The two cases are dealt with in new sub-paragraphs (i) and (ii) respectively. This being so, it is not appropriate for the paragraph to imply that advice can come only from solicitors. The amendment removes this incorrect implication. I beg to move.

Lord Mishcon

My Lords, on behalf of a most generous profession. I am happy to agree with the amendment.

On Question, amendment agreed to.

10.49 p.m.

Lord Mishcon

moved Amendment No. 120A: Page 57. line 7, after ("detention") insert ("or who, for the purpose of assisting with an investigation attends voluntarily at a police station or any other place where a constable is present and is cautioned"). The noble Lord said: My Lords, I beg to move.

The Lord Chancellor

My Lords, the words written in capital letters in my brief say, "Agree in principle". I shall explain that. I would ask the noble Lord, on my undertaking to bring forward an amendment on Third Reading, to withdraw his amendment. I am told that it does not go wide enough. I am quite prepared to explain why. but if I undertake to bring forward an amendment in slightly wider form on Third Reading, I hope that he will withdraw this one.

Lord Mishcon

My Lords, with alacrity!

Amendment, by leave, withdrawn.

Clause 59 [Tape-recording of interviews]:

Lord Mishcon moved Amendment No. 121: Page 57, line 40, after ("State") insert ("on or before the coming into operation of Part IV and V of this Act").

The noble Lord said: My Lords, in moving Amendment No. 121, I propose at the same time to speak, but in terms of which your Lordships will hear in one moment, to Amendments Nos. 122, 123, 126 and 128. Amendment No. 122: Page 58, line 44, leave out ("at police stations"). Amendment No. 123: Page 58, line 7, leave out subsection (2). Amendment No. 126: Clause 64, page 63, line 9, after ("questioning") insert ("tape-recording of interviews"). Amendment No. 128: Clause 66, page 63, line 14, leave Out ("Act") and insert ("Part").

This is a most important series of amendments, in which it is advocated—

Lord Morris

My Lords, I am sorry to disturb the noble Lord, Lord Mishcon, but I should like to make it absolutely clear at this stage that I have no intention of moving Amendments Nos. 123, 126, 128 or 129, but certainly Amendment No. 122; I think it might be of help to know that at this stage.

Lord Mishcon

My Lords, I am most grateful to the noble Lord. What I was going to say was that the series of amendments from our point of view deals with a most important point. It is that Parts 4 and 5 of the Bill, which, as your Lordships know, deal with detention and the questioning and treatment of persons by the police, should not be effective until after the tape-recording system is in vogue throughout the United Kingdom.

I am not going to move a series of amendments as important as that at ten to eleven with an attenuated House, because I believe that that is not worthy of your Lordships' House or of the importance of the subject. Therefore, if we cannot have anything more satisfactory than that at this stage, I suppose the best thing that I can do is to withdraw at this stage, having said that these are important amendments, having indicated the nature of them, and obviously these will be brought forward at Third Reading.

Amendment, by leave, withdrawn.

Lord Morris

had given notice of his intention to move Amendment No. 122:

[Printed above.]

The noble Lord said: My Lords, I listened with very great care to what the noble Lord, Lord Mishcon, has said. I would remind your Lordships that it is just the luck of the draw and the greatest misfortune that this vitally important issue came up at the Committee stage—would you believe?—at a quarter to three in the morning. It is most unfortunate that it comes up yet again at this very late hour. For the reasons which the noble Lord, Lord Mishcon, has stated, I think it would be most unfortunate if we were to handle it at this particular stage and at this particular time. I find this situation most unhappy but I would beseech my noble friend on the Front Bench that. when these points are considered at Third Reading, the Government should consider with very great care undertakings with regard to these points, which are of critical importance to the liberties of the common man.

[Amendment No. 122 not moved.]

[Amendment No. 123 not moved.]

Clause 61 [Intimate samples]:

10.55 p.m.

Lord Hutchinson of Lullington

moved Amendment No. 124: Page 60, line 7. leave out subsection (10). The noble Lord said: I regret to raise this matter at this late hour but it is a matter of importance. The amendment refers to Clause 61 and it refers to the subject of Clause 10 which was inserted into the Bill at the Committee stage by the noble Lord the Minister. It was reached at the equivalent time of 2 a.m. on 11th July. It was really agreed to without discussion, save for one comment by my noble friend Lord Donaldson, who said that he was sure that if either of his lawyer friends had been present they would have said it was the thin end of the wedge for the removal of the right of silence—to which the noble Minister replied "There is no question here of speech". But I shall submit to your Lordships that he was entirely wrong about that. Clause 61 gives power to take from a person in police detention intimate samples. Intimate samples are defined in Clause 64 as being, a sample of blood, semen or any other tissue fluid, urine, saliva or pubic hair, or a swab taken from a person's body orifice". Power is given to take those intimate samples from someone in a police station. In subsection (10) appear these words: Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause …

1. (a) the court, in determining—
1. (i) whether to commit that person for trial; or
2. (ii) whether there is a case to answer; and
2. (b) the court or jury, in determining whether that person is guilty of the offence charged,

may draw such inferences from the refusal as appear proper; and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence against the person". So the result is that if an informant has said, "If you got to X's house, he is the man who is committing these rapes in the locality" and that is good information, the police would be entitled to take the man into detention in a police station and interrogate him in relation to the rapes. On entering the police station, he is cautioned that he need not say anything if he does not wish to. If he says, "I do not wish to say anything at all" the police will say to him, "We wish to take an intimate sample from you, an intimate sample of semen". Or they may say, in some alleged homosexual offence, "We want to take a swab from you". The man says nothing because he is entitled to say nothing. The police will then say, "Right, that we take as a refusal to give that sample. That is sufficient evidence for us to go to the magistrates' court. You will be in the dock and we shall say that you have refused to give a sample. And the magistrates may commit you for trial on that refusal". At the Crown court, it will be possible to say, "This man has refused to give a sample, and there is evidence there on which you can convict him".

Equally, if the evidence against the person is that of an accomplice, say, the person who gave the information, you call the accomplice to give evidence against the defendant. That requires, if it is a child, corroboration because the evidence is so suspect. "Oh," say the police, "this man refused to give a sample. That is corroboration of the accomplice's evidence that he was, in fact, the rapist". That is a term of art corroboration. It will be required before the man can be convicted. The trouble about the situation is that it completely reverses the onus of proof and goes against the person's right to silence. It makes a farce of it.

These words have been lifted word for word from the eleventh report of the Criminal Law Revision Committee when they were used in that report to take away the right of silence. These are the precise words that were used. The words have been lifted. That report, as already noted, was given a very rough ride in this House. As a result, it was buried and forgotten so far as that matter was concerned. Here are these words being resuscitated. I hope I am not being emotional in any shape or form; I am merely stating the facts. In my submission, to allow these words to remain in this Bill in this form is indeed the thin end of the wedge, because they will appear again and they will be used again.

In my submission, it is really quite outrageous to enable a court to have positive evidence of guilt because someone takes advantage of his rights and says, "I will say nothing. You prove the case against me". In those great words of the noble and learned Lord, Lord Devlin, in the Bodkin Adams case, this is a right which is the right of every Englishman—and long be the day before that right is taken away.

This provision gives to those in police stations an enormous power for abuse, because it will be only the word of the police officer, who later, when the statements are served, will say, "This defendant refused to give a sample". By that time it will be far too late to take a sample, if the defendant knows that he never refused. There is the situation. By an officer's simple say-so that a man refused to give a sample when he was in the police station there will be evidence to commit him, there will be evidence of corroboration, there will be evidence on which he could be convicted. I beg to move.

Lord Mishcon

My Lords, we on these Benches feel that we must be consistent. We said before, on an amendment that we regarded as very important—Amendment No. 121 and all that followed—that both the hour and the state of the House make it quite wrong to debate important issues. I know that it is nobody's fault, but we did in fact lose a great deal of time that nobody anticipated losing this afternoon when the various amendments, which I am sure the Alliance Party felt were most important, were being discussed. And then, of course, we lost some time on the Statement. I feel that I must be consistent and say that we do not intend to participate in a debate on this important subject at this hour and with this attenuated House.

Lord Wigoder

My Lords, I regret to have to say that I cannot agree with the view that the noble Lord, Lord Mishcon, has taken, because at the moment one has no idea what will happen if the substance of this debate is reserved until the next stage, at Third Reading. Indeed, I think it might be open to objection if on Third Reading there were debates in detail on amendments which had been put down at Report stage—

A Noble Lord

Not if they are withdrawn.

Lord Wigoder

—and then they were simply glossed over on the ground that it happened to be eleven o'clock at night. I find this a difficult proposition. I think the matter should be explored a little further this evening, because it is a matter of very great importance. I want, if I may, to support my noble friend Lord Hutchinson of Lullington in drawing attention to what I would regard as a most sweeping extension of the criminal law, which is tucked away, rather innocuously, in subsection (10) of Clause 61. I say that it is a sweeping extension of the criminal law because I believe I am right in saying—the noble and learned Lord on the Woolsack will correct me at once if I am wrong—that if any judge today directed a jury in those terms as set out in subsection (10) and there were a conviction, it would at once be quashed in the Court of Criminal Appeal, without any argument; because under the law as it stands today there can be no possible suggestion that if somebody is silent or if somebody declines to give a sample, or whatever it may be, that evidence can be treated in any way at all as corroboration. This is a very remarkable extension of the criminal law.

I support everything that my noble friend has said about the matter. I add only this, if I may. The effect of subsection (10) is to say that the refusal—in other words, if a person says, "No, you may not have a sample"—is capable of amounting to corroboration. Corroboration ought to mean some independent evidence which tends to implicate the accused in the commission of the offence. That is the classical definition—if I recall it correctly—of what is meant by corroboration.

It follows from that that what the subsection is saying in terms is that a refusal by a man, for whatever reason—good, bad or indifferent—to give a sample, is in itself evidence of guilt. That must be so if the subsection means what it says. It follows that it may be that the only evidence in front of the magistrate is, "I arrested this defendant. I have no evidence against him, your Honour"—which is the way in which the police normally refer to the magistrate—"except that I asked him for a sample and he said, 'No' and told me to take a running jump. On that evidence your Honour, I ask for a committal for trial". If this subsection were in force the magistrate would be entitled to commit for trial on no other evidence at all except the fact that the man had said to the police officer. "No. I will not give you a sample".

This is a very, very dangerous extension. I am sure it was not realised just how far it went. As my noble friend has said. it was something which was included in the eleventh report of the Committee, many years ago. My noble friend and I, before we ever came to your Lordships' House, sat together and listened to the debate on that occasion on that report. There was almost unanimous condemnation of this proposal and of many of the other proposals in that Committee's report. I regard this as a very serious matter and I hope that the Government will think again about the proposal contained in this subsection.

11.7 p.m.

Lord Elton

My Lords, first I should like to say that I agree with the noble Lord, Lord Wigoder, that the custom of this House is to agree its business, and if the early business takes long, then the later business falls late. That certainly imposes a strain upon your Lordships but it is a strain to which we have been accustomed—

Lord Mishcon

My Lords, I must ask the noble Lord the Minister to give way. If I had merely said—and my noble friends had agreed with me—that we should not pursue the matter in view of the lateness of the hour, I should not have been content with my submission at all. It is not a question of the lateness of the hour—we are prepared to stay until goodness knows what time! It is a question of the state of the House on an important matter of this kind and on an important Bill. It is absolutely wrong for an attenuated House like this to be deciding matters of such great import on a Bill which is so important.

Lord Elton

My Lords, with respect, it seems to me that the one follows from the other. I therefore think that it is right that I should deploy the arguments of Her Majesty's Government in answer to what the Liberal and the Social Democratic parties have put forward as an amendment which they both support.

Let me start by perhaps superflously reminding your Lordships that in all trials for sexual offences the judge is obliged to warn the jury that it is unsafe to convict solely on the evidence of the complainant. We are—are we not?—dealing with sexual offences and with the taking of intimate body samples which are most often linked to sexual offences. Therefore we are looking at cases where corroborative material is of critical importance. If the complainant's evidence is not corroborated, a charge of rape, for example, will probably fail. In these circumstances, it seems to us—as it seemed to the Committee in another place—important that it should be open to the jury, if they think fit, to attach virtually the same weight to the refusal as they would to evidence of an intimate sample which directly implicated the defendant.

I remind the noble Lord, Lord Hutchinson of Lullington, that the clause only refers to: a person in police detention, which Clause 115(2) specifies, as having followed arrest. Thus the suspect must have been arrested. When the case comes to trial, there must therefore be some evidence not just a generalised denunciation, which the refusal of a sample can be taken or not taken to corroborate. It is entirely open to the jury and the court as much as the police to decide whether it shall corroborate or not. There must be something for them to corroborate. When I thought I heard the noble Lord, Lord Wigoder, say that it would be possible for a court to convict on the sole evidence of a refusal to provide an intimate sample, then in that matter he must, because of the structure of the Bill, be a little mistaken.

Lord Wigoder

My Lords, if the noble Lord the Minister will forgive me, surely he is wrong in saying that there must be some evidence. What he means is that there should be some evidence. There is a world of difference between the two words.

Lord Elton

My Lords, I think I am right, and I think it would be for the court to decide whether or not the evidence was valid. But a person cannot be brought to court for trial on mere suspicion. There must be evidence to support that suspicion. Corroboration cannot exist in vacuo; it must corroborate something. Therefore, there must be evidence besides this corroborative evidence, if that is how it is to be treated before the court.

I understand the concern which noble Lords moving the amendment have shown for the "right to silence," but I do not accept that this provision in any way impinges upon that right. I do not wish to go at length over ground that we covered earlier, but I think that I ought to outline the present position and the considerations which led us to propose that refusal to provide an intimate sample should be capable of amounting to corroboration of the evidence against the defendant. At present there is no way of compelling a suspect to provide an intimate sample. He must consent before it can be taken. Consent can be given informally. Refusal to provide an intimate sample may prevent the bringing of any proceedings, for lack of corroborative evidence. But if the case can be brought, refusal may be referred to as part of the prosecution evidence. If the defendant exercises his right not to give evidence at the trial, that is all that can be said. Even if he does give evidence and is cross-examined on why he refused, the prosecution have to recognise that he is entitled to refuse. The Bill continues to require consent, but alters the present position by providing that such consent must be in writing. This we believe to be right in principle and in accordance with one of the main objectives of the Bill, which is to move towards carefully recorded investigations, and more formal opportunity for the accused person to exercise his rights. But the requirement for written consent could well serve to encourage the guilty to refuse it, secure in the knowledge that, even if they are eventually brought to trial, they will be at no disadvantage for having refused to co-operate. This means that there is a greater need to address the question whether it is right that it should always be in the interests of a guilty suspect to frustrate an investigation by refusing a sample, and if it is not, how this problem is to be solved.

When this was discussed in Committe in another place, there was general and wide support for the suggestion by the honourable Member for Montgomery that refusal to give a sample (without good cause for the refusal) should be capable of corroborating the prosection case, and that is what subsection (10) provides. This means that it would be for the jury to determine the weight to attach to a refusal, which is surely the best way of providing for the wide variety of motives which might be behind a refusal to provide a intimate sample. The person asked for an intimate sample might simply be drunk and belligerent, or he might simply be afraid of the process. If this were explained at any subsequent trial, the jury might attach little significance to the refusal. On the other hand, where it was thought that the suspect refused because he had something to hide, the jury would be allowed to take the refusal into account as evidence of the offence charged. It is important to bear in mind that, as I have said it is often in relation to offences of the greatest gravity—of which rape or a sexual assault on a child are obvious examples—that the evidence obtained from an intimate sample is most likely to be relevant.

However, it has been argued that the provision of an intimate sample is too closely akin to the making of a statement for it to be proper for any pressure to be applied to the suspect to achieve his co-operation with the police. But there are significant differences between the provision of an intimate sample and of making a statement, even a self-incriminatory statement. Provision of an intimate sample is, I suggest, much more akin to the searching of premises or provision of a non-intimate sample, both of which are seen as such vital tools for the police that, subject to certain safeguards and procedures, they can take place without the consent of the suspect. The common thread linking that provision of intimate and non- intimate samples, with the searching of pemises is that, if successful, they all lead directly to real evidence being obtained and further the investigation by narrowing the range of suspects. We should not forget that the provisions of a sample of blood or saliva produces forensic facts which may be vital to exclude innocent suspects, as well as strengthening evidence of guilt. These facts will often be important in relation to the most serious offences of violence or sexual assaults so we must keep clearly in our minds the interest of the murderer or rapist in refusing a sample, and decide if this is what we want from this Bill.

I recognise that the need to protect the privacy and dignity of the individual, given the nature of the process, puts the taking of intimate samples in a slightly different category from other procedures, and the provisions of this subsection recognise that also. A suspect still has the right to refuse the taking of an intimate sample. If he so decides no sample will be taken: there is no question at all of a sample being taken by force. That is clearly right and any other course would be unacceptable, but the right to refuse is the right not to be, as it were, physically forced to provide a sample. It should not in our view be an unlimited right to withhold material facts from an investigation without any consequences whatsoever. If subsection (10) were deleted, that is what the clause would provide. It would always then be in the guilty party's interest to refuse to provide a sample. I do not think anyone in this House or elsewhere would regard that as satisfactory: in many cases it could amount to enabling the guilty party to frustrate the investigation of a serious offence because there was no further evidence available to the police to test, compare or evaluate.

I think I have put enough of the Government's case to show your Lordships why we do not think that this is an amendment that we ought to put into the Bill.

Lord Donaldson of Kingsbridge

My Lords, before my noble friend replies, I should like to say this—

Lord Denham

My Lords, "Before the noble Lord sits down".

Lord Donaldson of Kingsbridge

No, my Lords, not, "Before the noble Lord sits down", before my noble friend replies—

Lord Denham

My Lords, "Before the noble Lord sits down".

Lord Donaldson of Kingsbridge

All right, my Lords, before the noble Lord sits down, we are in a difficulty here. We think this is very important. We did not ask to have it discussed at this hour. The Government have arranged it and I do not blame them. It is very difficult. Are we able, having had a discussion on this, to put it down on Third Reading to be discussed again? I am not clear what our rights are, and before my noble friend replies I want to be clear about this.

Lord Denham

My Lords, I think the position is that it is improper, or considered inappropriate in this House, to put down a matter at Third Reading on which the House has given its opinion in the Division Lobbies or, indeed, on Question. Whether it is right in fact to have a debate at this stage on Report stage and then repeat that full debate at Third Reading is a matter which I do not think the Companion mentions. That is a matter for the custom of the House.

Lord Morris

My Lords, if I remember rightly, the words that are used in the rulings in the Companion to Standing Orders—I am speaking from memory—is that any issue that has been fully debated critically and decided upon cannot be properly moved at Third Reading. Bearing in mind that this has not been fully debated, in my view, and certainly not decided upon, I would suggest that it should most properly be moved again at Third Reading.

Lord Denham

I think the "decided upon" is the relevant factor. If the House is not asked to give an expression of its opinion tonight, either on Question or in the Division Lobby, I think that the Companion would be comparatively silent on this point.

The Lord Chancellor

My Lords, I do not know whether I am allowed to say anything.

Noble Lords

With leave, my Lords.

The Lord Chancellor

My Lords, I do not think I require leave if I am to say anything at all. I do not want to intrude on this private discussion, but if the noble Lord withdraws his amendment he probably is at liberty to raise it on Third Reading. If he divides on it and is beaten, I think he is not. I speak with great humility in front of my own colleagues, but I think that that is probably the position.

Lord Hutchinson of Lullington

My Lords, I am grateful for the advice from the noble and learned Lord, who, as we all know, always speaks with the greatest humility. All I would say in reply are two or three things. First of all, the noble Lord the Minister referred to this subsection on the basis of it affording corroboration, and said that, of course, there must be some evidence before you can have corroboration. But the essence of this subsection is in paragraph (b), where the court or jury, in determining whether the person is guilty of the offence charged, can take into account his refusal. So it goes much further than corroboration. I say that because I am sure the noble Lord the Minister will bear that in mind in due course.

Having regard to the advice that I have received, not only on my right but on my left and behind me, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 [Part V-supplementary]:

Lord Elton

moved Amendment No. 125: Page 62, line 35, at end insert— "parent or guardian" means—

1. (a) in the case of a child or young person in the case of a local authority, that authority; and
2. (b) in the case of a child or young person in the care of a voluntary organisation in which parental rights and duties with respect to him are vested by virtue of a resolution under section 64(1) of the Child Care Act 1980, that organisation;").

The noble Lord said: My Lords, certain provisions of the Bill require the giving of consent before the police may act. Clause 64 defines the expression "appropriate consent" in terms of parents and guardians. The definition fails to make clear that, where a juvenile is in care, parental rights are exercisable by the local care authority or organisation. This amendment remedies this omission. I beg to move.

On Question, amendment agreed to.

Clause 65 [Codes of practice]:

[Amendment No. 126 not moved.]

Lord Elton

moved Amendment No. 127: Page 63, line 12, leave out ("in searches of") and insert ("on"). The noble Lord said: My Lords, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 66 [Codes of practice-supplementary]:

[Amendments Nos. 128 and 129 not moved.] Clause 67 [Evidence from documentary records]:

Lord Elton

moved Amendment No. 130: Page 64, line 12, leave out ("contained"). The noble Lord said: My Lords, I welcome the arrival of the final drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Denham

My Lords, I beg to move that further consideration on Report be now adjourned.

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