§ 2.52 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be now read a second time.
I hope the House will accept that I do not usually use the time-honoured cliches about law and order. This is partly because the phrase means so many different things to so many different people, but partly also because the implication is that law and order is—or perhaps I should say are—something simply imposed from above rather than something which arises from the grass roots and is fostered and protected by the wise use of authority and the impartial, independent and of course incorrupt administration of justice in the courts. The phrase, whatever it denotes, is nonetheless crucial to the continuance of civilised life in any ordered society. It is thus the first of the social services and the conditio sine qua non of all the others.
Today a civilian police force, locally administered and based on the ancient office of constable, though more recent, is as much part of our national tradition as trial by jury, habeas corpus or—dare I mention them—the offices of Lord Chancellor and Lord Chief Justice of England. We are apt to forget how unusual that still is compared with systems obtaining in many other countries in the world, and how novel it really was when it first appeared as the product of the genius of Sir Robert Peel, surely one of the most underestimated of British statesmen. So recently as the turn of the 19th century, England—and I dare say Scotland and Ireland as well—were bywords in Europe for lawlessness and crime. The constable, the watch, and the Bow Street runners were undisciplined, inadequate in numbers and training, and ineffective, and in the rest of the country outside the metropolis, the constable was little better than Dogberry at the time of Shakespeare. The real protectors were military, particularly the cavalry, and little they knew about crowd control, as was shown at Peterloo, and, though ultimately successful, even in putting down the 405 Gordon Riots. If I may adapt a phrase from Patrick Henry, if Peel's institution constituted a police state, let us have more of it. But all institutions, including the best, need to be kept up to date. Hence the need for this Bill.
Although it has been twice considered in another place, this is the first time that the Bill has appeared for discussion in your Lordships' House. It is 123 pages long. It has 115 clauses, eleven parts and seven schedules. Its importance is not less than its length. A Second Reading speech therefore must be somewhat less of a catalogue of the Bill's individual virtues than a bird's-eye-view of the landscape and the principles involved.
I fear we live in an age of increasing violence: by individuals, by criminals, by supporters and opponents of particular causes at home and abroad—sometimes oblivious of the inconvenience and danger their activities involve for others—by strikers and flying pickets, by almost every cause in an agitated world. Therefore it becomes inevitable that law and order should be on the menu of every responsible political party. But here we face a problem. At this stage the one purpose pressure group raises its head, or rather each of its multiple heads. What one lobbies for, another lobbies against, almost every pressure group possessing its local anti-group. In my opinion, both tend to err, and each for the same reason. In the nature of things, their aims tend to be inconsistent; yet each resolutely averts its face from the valid points made by the other. Each has its valid points. But neither makes the smallest attempt to strike a balance between its own legitimate aims, and the aims—often equally legitimate—of its opponent. Yet the aim of almost all policy in a free country must be to strike a balance between legitimate but divergent requirements. What is true of policy is true also of policing. In our present field, there are the law and order boys (and girls) at one end of the pitch, and the human and civil rights lobby on the other. Our policy must be to strike a proper balance on the one hand between the interests of society in the maintenance of law and order and respect for lawful authority, the interests of potential victims, and the just protection and independence of the police both corporately and of its individual constables; and, on the other hand, the rights to liberty, inviolability of person, free speech, association and access to the courts and legal advice of those who may be affected in one way or another by police activity.
The Bill is thus based on two principles: the principle of necessity, and the principle of safeguard. The necessity principle is that the police must be given in full amplitude those powers—but only those powers—which are strictly necessary to enable them to discharge their functions properly. The principle of safeguard is that, where the powers are given, the public and individuals within it must be safeguarded against abuse. Thus the overriding philosophy of the Bill is balance between the needs of law enforcement, and the necessary safeguards of freedom.
This is the territory in which we are. It was, I assume, the need to strike a just balance and the difficulty of doing so which in 1977 led the Labour Government to set up the Philips Commission on 406 whose work this Bill is very largely based. As is customary and proper I would like to thank them for their labours and for the care with which they prepared their report. It would thus be a mistake to regard the Bill either as a conspiracy of the extreme right to install a police state or increase police powers, or a conspiracy of wets to loosen the reins of authority. The object is balance, and among the first requirements of balance are clarity, certainty, consistency of structure, enforceability, and practicability in all of which elements the Philips Commission demonstrated that the status quo is to a greater or less degree lacking. The police, the judiciary and the advocates on each side who work in the courts need clear rules, workable rules, open rules, compatible with the general ehtical standards we wish to enforce.
The police and to an extent the courts have to work in difficult circumstances, often requiring instantaneous decisions. Neither can carry a whole law library of conflicting authorities about with them. Still less can the individual member of the public, though he would be wise, as a general rule, to err on the side of caution and respect the voice and face of authority when he sees it. Therefore, the Bill will include both powers and safeguards where clear boundaries did not exist before. There will be both extensions and restrictions. The objects are clarity, workability and, above all, balance, all in the interest of freedom under law.
This is the philosophy behind the Bill. The first six parts of the Bill lay down the powers of the police needed in the investigation of crime, and the rights needed to protect the individual against misuse of each of them. This is very largely though not entirely based on the Philips Report. Parts VII and VIII contain amendments to the law of criminal evidence largely based on recommendations of the Criminal Law Revision Committee. Part IX deals with complaints against the police and discipline. The main feature of this part of the Bill is the institution of the new Police Complaints Authority to replace the Police Complaints Board. This part also reforms the handling of police disciplinary cases.
Part X of the Bill, following the recommendations of the noble and learned Lord, Lord Scarman, includes provision for obtaining by means of a structured system of consultation the views of the local community on policing. From this brief summary it is at least evident that this is an important Bill containing a wide range of material.
In another place, my right honourable friend gave a number of reasons why the present powers of the police are inconsistent and full of anomalies. They can stop and search a person for wildlife but not for offensive weapons. They can obtain a warrant to search when they suspect an offence under the Theatres Act, but not to search for a murder weapon. They may arrest for gaming in the street, but not for indecent assault on a woman.
I would say to those who are critical of the police that there is nothing more likely to seduce officers into cutting corners and committing indefensible acts than powers which have manifestly been introduced piecemeal, are themselves inconsistent or inadequate, or are based on no intelligible principle, and prevent 407 the police from carrying out their essential function which is to control crime.
Side by side with extended powers are restrictions upon them. Thus, for example, the right to set up a road check is limited and defined, I think, in Clause 4; the individual suspect is given a right of access to legal advice by Clause 56; while the rights to stop and search are safeguarded by Clauses 2 and 3 against abuse. In each case the Bill has sought to take account of the criticisms of, and comments on, the Philips Report, and of the criticisms of the Bill voiced in another place and elsewhere when it was passing through Parliament before the last general election. Thus, the right to stop and search is coupled with a right of the suspect to receive an explanation of the reason why a search is necessary—that is in Clause 2—and, where practicable, a copy of the written record after the search has been conducted. That is in Clause 3. For the first time, the power of detention without charge has attached to it an absolute limit.
The safeguards to the public are not simply a question of powers and restrictions upon them. A major change is the creation of the new complaints authority with powers and duties extending into wholly new areas. It will be a primary task to ensure the independence of this authority, with the result that not merely will complaints be properly investigated, but, to adapt the familiar saw, this will be seen to be done. At the same time, the police officer who himself faces punishment will be entitled to legal representation.
Another contribution to public confidence is contained in the provisions for access to legal advice to which I have already referred, contained in Clause 56, and for the tape recording of interviews. I am sure the House will also welcome the provisions of Clause 100 dealing with consultation between the police and the local community to accord with the Scarman recommendations following the disturbances in Brixton.
As I have already insisted, the Bill must be seen in its wider context. It forms only part of the general strategy on law and order initiated in the Home Office by my noble friend the Lord President of the Council when he was there and now being continued by my right honourable friend the Home Secretary. We have already a larger, better paid and better equipped police force than ever before. We intend to introduce an independent prosecution service, outlined in the recent White Paper. The House will also remember the recommendations of the noble and learned Lord, Lord Scarman, about police training; first for new recruits already forging ahead under the Police Training Council, and also for the supervisory and management ranks of the force for which my right honourable friend has recently formed a steering group.
In the form in which the Bill now stands before your Lordships, it has undergone considerable alterations since before the election when it appeared in its first form as sponsored by my noble friend the then Home Secretary. Before its reintroduction into this Parliament it was considerably altered. In its passage through Standing Committee in another place, it occupied 59 sittings. I trust, and I am sure that my noble friend the Chief Whip echoes my trust, it will not 408 take quite so many here. On Report, it received 245 amendments. It may be that these extensive improvements may limit the scope for further amendment in your Lordships' House. But at least they give the lie to any possible suggestion that the Government have not been prepared to listen to criticism or have attempted to use their massive majority in another place as a sort of steamroller.
I will therefore conclude with a canter, if that is the right word, through the principal provisions with which we shall have to deal in greater detail in Committee. Part I deals with powers to stop and search. This is an important weapon in the prevention of crime. The recent research by the Policy Studies Institute revealed that about one-third of all arrests in the Metropolitan Police area resulted from existing powers to stop and search. The Bill will extend these powers to all England and Wales while increasing the safeguards involved in the exercise of the power. In future, constables will be under a statutory duty to explain why a search is necessary and the person concerned will be entitled to a copy of the written record that will be made following a search unless this is impracticable.
Part II of the Bill bestows a general power to obtain a search warrant for evidence of a serious arrestable offence. The phrase "serious arrestable offence", to which I shall return, is defined in Clause 109. As the Royal Commission pointed out in its report, there are surprising omissions from the existing powers of the police to obtain a search warrant. I have already given examples of omissions, inconsistencies and anomalies. The Bill will fill gaps while ensuring that adequate protection is given to confidential material. It will standardise the procedure for obtaining warrants and increase the safeguards surrounding their execution.
Part III codifies the powers of arrest. Our aim has been to ensure that the police have the powers they need to enforce the law but that arrest should take place only if this is necessary. Thus the powers to arrest for major offences given by Section 2 of the Criminal Law Act 1967 are broadly restated. The vast majority of other arrest powers are repealed and replaced by a general conditional power which may be exercised only if service of a summons is impracticable or inappropriate. The Bill also puts on a statutory basis, and extends, the existing common law regarding the information to be given on arrest.
Part IV deals with detention. I think it is acknowledged on all sides that the existing law governing the detention of persons by the police is vague and needs clarification. Part IV will introduce precision into this important area, and for the first time sets an absolute limit on detention before charge. In most cases this will be 24 hours. Only if the offence is a serious arrestable offence—I use the phrase now for the second time—and if the circumstances set out in Clause 40 apply, may an officer of at least the rank of superintendent authorise detention without charge for up to 36 hours.
Beyond this period the matter will have to be reviewed by a magistrates' court at a hearing at which the detained person is present and may be legally represented. If the court is satisfied that the conditions set out in Clause 40 apply, it may authorise detention, but for no more than 36 hours at a time, up to a 409 maximum of 96 hours. Once the Bill is law, no person may be detained without charge for more than 96 hours, whatever the circumstances. Of course this is a very long period and the strictest controls and safeguards are needed. It is only in the most exceptional and compelling circumstances, involving serious crime, that anything approaching this time will be needed by the police to complete their investigations. We are, however, convinced, after careful study of the facts, that the imposition of a shorter limit would hamper the police and promote injustice, rather than relieve it.
Clause 38 will ensure that while a person is in detention the need to detain him is reviewed at regular intervals. If it becomes clear that detention is no longer justified, his release must be ordered.
We believe that this scheme provides a fair and workable balance between the need to detain persons in order to investigate serious crime and the need to ensure that no one is deprived of his liberty longer than is necessary.
Part V of the Bill makes provision for the treatment and questioning of persons in custody and will be supplemented by the code of practice which my right honourable friend the Home Secretary is required to issue under Part VI. The fourth draft of these codes has now been published and copies are in the Library of the House. Among other important matters, Clauses 54 and 56 will ensure that a person is not held incommunicado or deprived of legal advice, except for the most pressing reasons and on the authority of a senior officer.
Clause 53 severely limits existing police powers to conduct an intimate search—another term of art. For the first time such searches will be prohibited absolutely where the objective is to secure evidence of an offence, however serious.
Clause 57 places a clear duty on the Home Secretary to introduce tape-recording and to issue a code of practice to govern its use. This provision shows clearly our commitment to the principle of tape-recording. The necessary field trials of equipment and recording procedures which began in the new year will carry the matter forward in a practical way. We are not committed to waiting the full two years of the trials before taking the next step, but there is a need to ensure that we get the best scheme possible. The availability of resources will have to be considered before bringing the scheme itself into force; it would be irresponsible of my right honourable friend to do otherwise. But I can assure the House that the progress of the trials will be followed closely, and that we shall move to bring the Bill's provisions into effect as soon as it is possible to do so.
Parts VII and VIII of this Bill seek to clarify and simplify the law on evidence by enacting recommendations made by the Criminal Law Revision Committee in its Eleventh Report on Evidence. In particular, we have adopted the concept of reliability as the paramount test for the admissibility of confession evidence, and we have provided for the more general admissibility in evidence of documentary records. In addition, we have sought, and followed, expert advice as to the proper way in which 410 reliable computer evidence should be put before the court.
The general effect of all this is to bring us more closely into line with the general principle that reliable evidence should be available to the courts in the interests of justice.
Part IX contains substantial reforms of police complaints and disciplinary procedures, to which I have already referred.
Part X deals with a wide range of matters, including community consultation. Other changes proposed concern police service rank structure, the position of the Police Federation in disciplinary proceedings, the regulation-making powers of the Secretary of State for Scotland, and the powers of certain Metropolitan Police officers in their work outside England and Wales.
Finally, I should like to draw noble Lords' attention to the definition of the phrase that I have now used twice; namely, "serious arrestable offence", contained in Clause 109. This is important because a number of powers are reserved by the Bill to serious arrestable offences, despite the fact, in some circumstances, that they are currently available to the police across the board. We believe that the definition in the Bill is now as objective and certain as is possible, given the widely varying circumstances of individual offences and crimes. It is based on the approach suggested by the Law Society, under which certain offences such as murder and rape are always serious arrestable offences. Any other arrestable offences may count as serious if, in the individual circumstances of the case, they meet certain specific tests. Offences which are not arrestable will never qualify for the enhanced powers. We believe that this new formula will make it easy for both the police and the public to know where they stand.
I now come to the end of what I fear has been a marathon performance. We are here dealing with highly sensitive and emotive issues, which potentially affect every subject in the country. But I hope that those commenting on the Bill will pay due attention to what I have said today about its contribution to the Government's broader strategy on crime. Those who engender groundless fears in respect of this Bill are in danger of taking upon themselves a very heavy responsibility and of running counter to a very deep-seated anxiety, which is undoubtedly widespread, on the part of the public that Parliament is not doing enough to counter crime. It would be a sad day if a measure designed to inspire confidence in the police were to be put in jeopardy by the dissemination of unfounded anxieties.
Where there have been legitimate apprehensions about the substance and likely consequences of the Bill's provisions, we have gone to substantial lengths to respond to them. Obviously we shall continue to consider with care arguments about individual parts of the Bill. But we are confident that its aim and purpose are sound. It is a thoroughly worthwhile measure, contributing to both the protection of the public from crime and the enhancement of individual liberties for which our country is rightly, and so justly, famous.
My Lords, with those words, I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.20 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for his canter, as he has described it, through this highly important but (I am bound to say) highly contentious Bill, despite the assurances that the noble and learned Lord has given us about it. I am afraid that it is bound to take time, and I have naught by way of comfort for the Government Chief Whip. But at least I hope we shall be able to avoid the reproach which counsel once received from Chief Justice Cockburn when he apologised for taking so much time and the Chief Justice said, "Time? You have exhausted time and encroached upon Eternity!".
The Bill comes before the House at a time of increase in serious crimes and, indeed, in general crimes in our society. This increase has, regrettably, gone on for many years. Since 1979, during the period of the Tory Administration, the number of burglaries has risen by nearly a quarter of a million, and crimes of violence have risen by over 110,000. Yet, on the other side of the coin, the clear-up rate has fallen to 37 per cent. and nearly three-quarters of London's crimes are unsolved. It is a serious situation.
Clearly the police, who are in the front line of our defence against the criminal, must be equipped with what is necessary by way of powers and, of course, material equipment as well. We will no doubt examine that duty as the Bill goes through the House. But to achieve an increase in police powers at the cost of excessive intrusion into the liberty of the subject would not only be too high a price to pay in terms of civil liberty but would indeed be seriously detrimental to the fight against crime. It is not the responsibility of the police alone to detect offences and to maintain order. A vital part is played by members of the public themselves in reporting offences and in identifying the offenders. It is therefore of crucial importance that the public should have confidence in the procedure for investigating and prosecuting offences. One of the criticisms of this Bill—indeed, the most serious one—is that several of its important provisions diminish and are not likely to increase that public confidence.
It is the view of those of us on these Benches that the balance between police needs and the citizen's rights—which the noble and learned Lord has rightly stressed—between police powers and civil liberties, has not been properly struck in this Bill despite the changes made to it in another place. Indeed, in our view the balance is gravely wrong.
The Daily Telegraph—a paper not famous for criticising a Tory government—was moved on 21st May to describe the Bill as:an unlovely measure, raising in almost every clause prickly questions about the balance between authority and liberty. Beyond…dispute, it tilts that balance towards the police".It then adds:This must, with regret, be accepted, because the rising and changing nature of crime makes expanded powers inevitable".412 But it goes on to say:In many instances, however, the Bill goes too far. It gives the police powers, without final safeguard, to be used on trust",and with that basic criticism I agree. As the Bill goes through its stages in this House we shall endeavour to put the balance right.
At this Second Reading stage I shall not seek to attempt to cover the whole range of objections to many parts of the Bill, but I shall seek to identify what seem to me to be some of the most important. No doubt my noble friend Lord Mishcon will stress others when he comes to speak, as, no doubt, will other noble Lords who will be speaking.
I begin with Part I of the Bill. This proposes a major extension to the powers of the police to stop and search persons or vehicles in the street. The National Association of Probation Officers, which are a highly responsible body, point out that where these wider powers already exist in urban areas they are a major source of tension between the police and groups within the community, particularly young people and racial minorities. Organisations concerned with both these groups have expressed fears that the new powers in the Bill will, in effect, lead to the reintroduction of the discarded "sus" laws, repealed in 1981. The powers create a risk of random and discriminatory searches taking place. Their value in the fight against crime is in any event very doubtful, with only 3.5 per cent. of checks leading to arrests.
In their paper upon this matter the National Association of Probation Officers make the point that:Stop and search powers are open to serious abuse and misuse, as the report of the Policy Studies Institute, following a 4-year study of the Metropolitan Police, shows. This report indicates that of the 1.5 million stops made annually in the Metropolitan Police district, 33 per cent. were illegal, as there were no 'reasonable grounds' for stopping the suspects, and that as many as 45 per cent. of all stops could actually be illegal. These findings support the Home Office Research and Planning Unit's report which says that many police officers are unable to define precisely why they chose to stop a person. The proposal that police officers will have to record their reasons for stopping someone will do little to allay the fears of many members of the community, because where written records already exist they are very vague".The association believe—and this is a serious cause for anxiety—that the ultimate cost of extending police powers in this way will severely undermine any intended benefits".In our view there should be strict limits to police inquisitions on the streets. Increasing numbers of innocent people will resent the indignity of a street search, and, indeed, may unhappily be even inclined to resist it, and then run into the risk of breaches of the peace and charges of obstructing the police or using insulting words or behaviour.
Part I of the Bill also proposes an extension of the powers to mount road blocks, to apprehend any person reasonably suspected of committing "a serious arrestable offence" or where the "pattern of crime" makes it likely that such an offence will be committed. The Bill also proposes that road blocks can be mounted to search for witnesses to a serious arrestable offence. The Daily Telegraph comment is that these,Road-check powers, though narrowed, would still appeal to many police States".In our view, the powers in respect of road blocks are far too wide and far too unrestricted. 413 Again, I should like to quote the views of the National Association of Probation Officers. That association says:There is not as yet an adequate definition of the term 'a serious arrestable offence' and the 'pattern of crime' [as it is referred to in the Bill] could be used to justify regular road blocks in many areas of our inner cities.".In the view of the probation officers:To use such a severe procedure to search for witnesses to a 'serious arrestable offence', when appeals to the public",achieve results in that field, would be extending the powers of the police:in a manner that will inevitably antagonise the community",and that above all things is what we must prevent. The association says:Used indiscriminately this power could be provocative and oppressive, and eventually be counter-productive".The association is concerned that these powers could be used at times, such as mass demonstration—and the public are entitled to engage peaceably in mass demonstrations—to delay and hinder participants arriving at their destinations. The association says:The recent examples of members of the National Union of Mineworkers being stopped and turned back some 200 miles from their destination has shown how easily the police can use existing powers".They advocate that:the power to mount road blocks should be effectively limited to aid the detection of the most serious crimes only".Perhaps the gravest feature of the Bill is the extent of the power it gives to the police to detain suspects for questioning only. According to Clause 39 of the Bill:a person shall not be kept in police detention for more than 24 hours without being charged".One may think that that is reasonable enough. However, Clause 40 empowers a police super-intendant to authorise the keeping of a suspect in police detention for a further 36 hours if a serious arrestable offence is involved. For what purpose is that to be justified?—"to obtain … evidence by questioning him".
Under Clause 41, on an application by a constable, a magistrates' court may "issue a warrant of further detention" authorising the keeping of the suspect in a police station for a further period to end not later than 96 hous if "his detention without charge"—and we are speaking of detention without charge—is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him"—interrogation; to put it at its most generous, some would describe it as "grilling".
The dangers of lengthy detention for questioning are notorious. The National Council for Civil Liberties, Justice and the Law Society have all strongly protested about this part of the Bill. It erodes and even destroys the right to silence. As the National Council for Civil Liberties has written:It is worth remembering the report of Sir Henry Fisher on the trial of three youths accused of murder and arson in the Confait case in 1977 when the Government was given a case study in the dangers of lengthy detention".Yet the Bill extends detention, allows interrogation, and fails even to give a safeguard for an enforceable right to take legal advice, thereby increasing the risk of false confessions, such as were made by the youth, 414 Colin Lattimore, in the Confait case. Experience has shown, sadly, that the longer a suspect is detained in the oppressive environment of any police station, the greater the danger that he will make a false or unreliable confession if he undergoes enough pressure for long enough. There have already been several cases where suspects have admitted offences which it was later found they could not possibly have committed.
The Bill's provisions regarding the duration of detention for questioning are far more severe than, for instance, the law in Scotland. There, since the present Government introduced the Criminal Justice (Scotland) Act 1980, the police have been obliged to release a suspect after six hours of questioning, unless he or she is charged. Six hours for Scotland, 96 hours for the rest of Great Britain. Why did the police Bill not follow the Scottish example and why is it that the Bill proposes far longer powers of detention for questioning only than exist in the United States, Canada, Australia or New Zealand? Perhaps it is not surprising that in a MORI poll published in The Sunday Times in January this year, 65 per cent. of those questioned opposed the detention of suspects for more than 24 hours. But there we come to the nub of some of the most serious criticisms of this Bill.
It is also disturbing that Part III of the Bill, conferring a wide, vague power of arrest, goes well beyond the recommendations of the Royal Commission. As the paper which many of us will have received from the Children's Legal Centre points out, the Bill makes young people who are homeless or those with fewer community ties far more vulnerable to arrest.
Another defect in the Bill, which we regard as serious, is in the provisions to enable someone to be informed of a suspect's arrest. The Bill proposes that arrested persons shall be entitled to contact a friend or relative without delay, but it then authorises a delay of up to 36 hours if the police consider that a "serious arrestable offence" is involved. In our view, the right to have someone informed when a person is arrested is of great importance, and a limitation of a few hours would seem to be about the right figure.
Of course, it is contended that if delay is allowed, some professional criminals would use the opportunity to warn accomplices. That is a point at which we must look. However, the code of practice makes it clear that the police may read any letter or interrupt any telephone call made for the purposes of informing a relative or friend, and we believe that this enables them to prevent any interference with the police investigation.
Several of the police powers are triggered by the requirement of indications of a "serious arrestable offence", which we believe to be an unsatisfactory concept, relying on subjective judgment and one which is capable of providing a catch-all for offences which are now treated as petty. Many questions arise, and will no doubt be examined in the Committee, about the Bill's provisions for the treatment of suspects while they are held in custody. Essential protection for children and young people and for people suffering from mental disorder, ensuring that they are not questioned on their own, is not contained in the Bill: 415 those requirements are relegated to the non-statutory code of practice. The draft code, which we shall have to study, provides for many detailed procedures that the police are required, and expected, to follow. But there is one crucial omission from the draft code of practice. There is no provision whatsoever in the code for what is to happen in the event of any breach of its provisions.
Had time permitted I would have wished also to raise the question of the provisions in the Bill regarding the proposed establishment of a Police Complaints Authority. In this context we welcome the recommendation of the Police Federation that an independent complaints procedure should be established. The willingness of the police in this way to support that proposal will, I believe, increase the confidence of the community in the police. In the way of commendation I welcome also the Government announcement that legislation to bring in an independent prosecution service will be introduced in the next session. I hope that it will be in an early part of the session. I greatly regret, however, that this has not been done now to coincide with implementation of the provisions of the Bill, because it deals with an area of great dissatisfaction with the present procedures for arresting a person and bringing him to trial.
When the Royal Commission on Criminal Procedure presented their report in 1981 they concluded as follows:If the fundamental balance in pre-trial procedure is to be held firmly and steadily within the limits of public understanding and tolerance and the best use made of resources, a critical responsibility falls on Parliament.".My Lords, I entirely agree; it is a heavy responsibility. On these Benches we believe that many important changes are needed in the Bill if we are to fulfil that responsibility. We shall do our utmost to ensure that the House fulfils that responsibility.
§ 3.43 p.m.
§ Lord Hooson
My Lords, what I hope to do this afternoon is to set out the basic approach that we shall take from these Benches with regard to this Bill. We recognise that from the community's point of view this is an important Bill in both the giving of powers to the police to protect the community and safeguarding individuals within the community from the misuse of those powers. There are many good and necessary proposals within this Bill which we welcome. At the present time there is uncertainty among all as to what exactly are police powers, and there are widely differing police practices over the whole range of activities in different parts of the country.
We accept that in dealing with persistent, professional criminals, and in particular the sophisticated and ruthless ones who are often organised on an international basis and backed up by large financial resources, as in cases of drug importation and so on, the police need, and must have, wide and real power. We should be foolish not to accept that proposition. But we equally recognise that the exercise of such powers in relation to the ordinary citizen, or the normally well-behaved person who offends occasionally, can be entirely offensive. It is our great concern—and it will be one of our concerns 416 during the passage of this legislation—that through this Bill we should do nothing to clothe unacceptable practices with a cloak of legislative approval.
It must have struck many of your Lordships who have received extensive comment and propaganda from various interested organisations how different the emphasis has been on this Bill. The noble and learned Lord the Lord Chancellor has already referred to this fact. On the one hand, the supporters of wide police powers, who often wish to strengthen the Bill and weaken the safeguards, emphasise the need for the powers in relation to the professional criminal. The terrorist, the drug peddler, the kidnapper, and so on, are given as examples of those in regard to whom these powers are intended. But supporters of wide police powers hardly ever seem to consider the effect of the exercise of such powers on the innocent, and they very largely ignore the considerable evidence of the misuse of powers in some parts of the country, in particular in London. On the other hand, those who emphasise the dangers of such powers being given to the police seem to me not to face squarely the fact that the problem of the police in dealing with big crime and the manipulation by big-time crooks of the safeguards provided for the innocent is very real.
This difference in emphasis has always been with us. If one looks at the history of this matter, one always finds two schools of thought: the authoritarian school of thought, and the libertarian school. But it has lead to the idea that what we need to do is to strike the right balance. Superficially this is an attractive proposition, but this concept of balance can be dangerous when we are dealing with powers of this kind. It can lead to the search for a compromise which will satisfy nobody, and it can fudge basic principles all round.
For example, in dealing with Parts IV and V of the Bill your Lordships will be considering the powers of detention as well as questioning and treatment of persons by the police. My noble friend Lord Hutchinson will deal with this matter in the final speech from these Benches this evening. But we shall then have to consider the question of the right to silence and the effect on that right of the power of detention for up to 96 hours. Strong, cogent and practical reasons can be advanced as to why one should not have the right to silence. Take the example of police officers who are questioning terrorists when there has recently been, say, a terrorist outrage in which innocent people, perhaps police officers, have been killed. The awful impediment to the police in not being able to question, not being able to insist on replies, and the man's right to silence are a tremendous handicap. One can well understand the frustration of police officers in that kind of situation.
On the other hand, there are those, including myself, who regard the right to silence as a fundamental constitutional right, and society must be prepared to pay the price for it in frustrated criminal inquiry. It would be a sad day for this country if the boy in the famous painting was under a legal obligation to reply to the infamous question, "When did you last see your father?" and could be made, by one means or the other, to answer. On that kind of issue there can be no compromise. It is not a question of balance then; it is a question of fundamental principle.
417 My approach to this Bill—and it is largely shared by those on these Benches—is that when the police clearly need wide powers to combat modern crime normally they must have them, and there should be no compromise in the powers when they are really necessary. On the other hand, there must be the strongest possible safeguards, with adequate sanctions behind those safeguards. One of the great weaknesses of this Bill is that it provides safeguards with no sanctions behind them; and we know very well that in practice the safeguards will often be disregarded.
For example, the noble and learned Lord, Lord Scarman, in his report two or three years ago, suggested that racially discriminatory behaviour by any police officer should be made a specific disciplinary offence. We think that is absolutely right and that a police officer found guilty of such a disciplinary offence should normally have to face dismissal from the force. Then we would have an absolute sanction behind the safeguard, and this is what we are really looking for in this Bill.
The powers of detention in Part IV of the Bill are unacceptable to me. I cannot understand why the Home Secretary has not accepted the view of the organisation of chief officers of police (and here I quote) that,the best alternative would have been the intervention of a magistrate at 24 hours".The noble and learned Lord, Lord Elwyn-Jones, has already adverted to the fact that in Scotland, under an Act passed by this Parliament in 1980, a person detained there has to be charged, not after questioning for six hours but after he has been detained for six hours. He may not have been questioned the whole of that time, but he has to be charged. It seems to me that the detection of crime is no less in Scotland than in the rest of the United Kingdom, and they seem to survive with this so-called handicap very adequately.
I have adverted to the views of the chief officers of police. I have been bombarded, as a number of your Lordships have been, with the views of many organisations, and I have greatly welcomed them; but to my mind, and to my surprise, the most cogently argued comment on the Bill—though I do not agree with all the conclusions—is that which has been sent to me by the Association of Chief Police Officers. I suggest to your Lordships, and particularly to those of your Lordships who are Government supporters in this matter, that you should read some of their comments on this Bill. The noble and learned Lord the Lord Chancellor referred to the need for clarity in this Bill. I absolutely agree with him, but one wants to read the comments of the chief constables of this country on the lack of clarity within this Bill. Their comments have in my view a detachment about them; an appreciation of the need to maintain public confidence in police practice.
One of the weaknesses of the Bill to which the noble and learned Lord has already referred is that it encourages the police to rely far too much on obtaining confessions by means of interrogation in custody. May I pause for a moment to relate a little anecdote. Over two years ago a very good friend of mine, whom I greatly respect, was kept in police 418 custody for the whole night and questioned as a murder suspect. He was a man in his late sixties who had followed an honourable profession throughout his life. He had served as an officer throughout the last war, and had served in many theatres of war. There had been a fire at his house. I shall not go into the detail of the matter save to say that at 4 o'clock in the morning I learned about this. I immediately got in touch with his solicitor, who was unable to contact him and unable to speak to him. It so happened that the following morning, when the forensic scientists arrived, it was quite obvious in no time at all that the fire had been a ghastly accident. There was an Aga cooker and chip pan, and noble Baronesses will probably know how the fire occurred.
In fact, what happened was that the police released my friend, and he happened to come to our house for lunch. What he related to me left an indelible impression on my mind. The police had behaved perfectly properly. There had been a note taken of the interview, and so on, but he said that by the time they had finished, just before they released him and said, "It is all a mistake, an accident; we have now had the report", they had questioned him and put all kinds of suggestions to him; and he said, "At the end I was agreeing with all the suggestions put to me, and some of them were ghastly when I look back at them—and yet I actually agreed to them".
It has often crossed my mind as to what would have happened to that man if the forensic science evidence had not been so clear, if it had been difficult to tell. That happened to a man of perfectly good character. We should not under-estimate the power of skilled interrogators to get the kind of replies they eventually want. I remember that in the post-war period in this country it used to be a matter of constant comment in our newspapers as to how, in Eastern European countries, the most respectable of men were confessing to all kinds of crimes. We should not forget that.
There are two evident weaknesses in this Bill on which, again, the chief officers of police comment. Firstly, in parts its provisions are far too complicated and obscure, and are greatly in need of simplification. Secondly, it fails to distinguish between what is evidence and what is information. These two weaknesses are manifest in the completely muddled provisions in Clauses 8 to 14 of Part II of this Bill, which deals with "Powers of Entry, Search and Seizure." I entirely agree with their document, to which I have referred. Let me quote, not my own view of this but the view of the chief constables on this part of the Bill. I am quoting from their Appendix "B", paragraph 10:It is suggested that the provisions of clauses 8–14 should be deleted and that a further attempt should be made to produce a power to search for evidence as originally envisaged by the evidence given to the Royal Commission and subsequently recommended by their report".I quote from their reasoning in this matter in paragraphs 3, 4, 5, 7 and 8. They say:The original proposals were designed to provide a power for police to search for and obtain evidence"—and they emphasise "evidence"—such as a murder weapon, blood-stained clothing, or even a dead body which is concealed in premises or held by some third party, whether innocent or not, and included such matters held on an undertaking of confidence.4194. There has never been a suggestion that police should have a power to examine confidential records such as those held by doctors or priests, nor has it been proposed that police should have a power to seize such items.5. The proposals were not intended to replace the existing methods of voluntarily obtaining evidence from doctors, etc., by way of written statement or, where necessary, by subpoena or witness summons, nor were they intended for the gathering of information or intelligence".They go on:6. The previous criticism levelled by the BMA and other groups was directed to Parliament on the basis that the power to search for evidence extended to such items as records kept by doctors, priests, journalists, etc.7. During the last Parliament—I ask your Lordships to pay heed to these words—it was clear that no one understood the meaning of the word 'evidence', nor did they appreciate the distinctions between evidence and information or evidence adducible by a police officer and that which requires the attendance of a private witness.8. The power to search for evidence should be so designed as to attract solely those items which can be adduced by a police officer who has seized them".In the light of those comments by the chiefs of police themselves on a section of this Bill, I would suggest that the hope of the noble and learned Lord the Lord Chancellor that there will not be many amendments to this Bill, certainly to parts of it, seems to be optimistically founded.
I should like to refer very briefly to the powers to stop and search. Again, your Lordships appreciate that the powers in Part I of this Bill, where they deal with this matter, are powers to stop and search. One can well understand that if police officers see something which excites their attention and they think a crime has been committed, or is about to be committed, one of the powers they would like to have is to be able to stop and inquire. They do not have that power under this Bill: they have a power to stop and search. So if they are going to stop, the first thing they have to do is to justify their stop by having a search. If that is not calculated to cause friction unnecessarily, I do not know what is.
The noble and learned Lord, Lord Elwyn-Jones, has already adverted to this. The power under these provisions can be so easily misused. It can be a source of harassment, and it clearly has been a source of harassment in our time. We would be flying in the face of all the evidence, certainly in my profession, whether appearing for the prosecution or for the defence, certainly in London and perhaps in the other large cities, that these powers have from time to time been misused.
Yet I think that this power, or something akin to it, is a reasonable power for the police to have. It seems to me that we need a code of practice for the powers to stop and search, we need to look closely at the powers provided for the police and to consider the concept which is included of "reasonable suspicion". "Reasonable suspicion" is such a subjective test and it is so easy for a police officer to say later that he had a reasonable suspicion and he does not have to justify that very hard. The powers should perhaps be more limited, just as the power under Clause 4 of setting up road checks ought to be more limited than it is.
I shall refer briefly to the intimate searches that are provided for under Clause 53. This is clearly a disquieting power, and I put it no higher than that, but 420 in the light of modern drug trafficking in particular it is a power that has to be provided. I entirely agree with the views of the Justice organisation, first, that the intimate search should be defined to cover only the genital/anal areas; and, secondly, that they should be conducted only by a medical practitioner.
I should like to turn now to Part VIII, which deals with evidence, and in particular to Clause 73, which deals with confessions. There is much that I like and appreciate in the clause; but I should like to raise two vital matters: one is vital from the point of view of the community and the suspect and the other is vital from the point of view of the police if we are to achieve justice. First, is there not a change in subsection (2)(b) from the test of voluntariness to the test of unreliability with regard to the admission of a statement? We have to consider carefully the implications of that. Prima facie I am prepared to listen to the arguments, but I am against this change of emphasis.
Secondly—this is the point that we should be concerned with from the point of view of achieving justice—in subsection (4) a provision is made which admits the self-serving part of a statement; that is, when a suspect makes a statement normally the parts that are read out to the court are those that implicate him or are against him. If he writes a long statement he often writes the most self-serving part of the statement where he puts the blame on somebody else. Is that to be read out? On the face of it this provision goes too far the other way. Let us consider the situation where one is defending somebody in court where, say, three men are charged and one of them has made a self-serving statement which blames the other two, or puts the blame on somebody else. That can, as it were, tilt the balance of fairness in a trial. We should look carefully at the matter. For the second time I should like to make the comment that I think that the police and the courts are far too prone to rely too much on interrogation and confession to the exclusion of searching for other evidence to connect people with the offence.
I turn briefly to the disciplinary procedure. I welcome—as did the noble and learned Lord, Lord Elwyn-Jones—the suggestion that there should be a specialist corps of investigators. I particularly welcome the fact that the Police Federation supports this proposal. But I want to express a word of caution about the general provisions in this part. I believe—I am expressing a personal view; I am not sure that I could take all these Benches with me in this matter—the chief constable should be involved in all disciplinary matters and should be in the chair for the reason that the greatest safeguard in our time and what preserves true public confidence in the police in most areas is the insistence by senior police officers that proper standards are maintained in their forces. That means that there must be a high standard of recruitment, a high standard of training, the inculcation of a high sense of civic responsibility by example and by experience.
I have had some experience from time to time of presenting a lecture to inspectors on a course. I know that Mr. Enoch Powell from the other place is invited down to address the same course. Representatives of the Council of Civil Liberties and bodies concerned 421 with racial discrimination address the course. This is a very broad course, and the police in many parts of the country are taking constructive steps to ensure that the training of officers, even at inspector rank, is broad. But most of the problems which have bedevilled police/community relations in my experience in our day stem largely from London and possibly from the other larger metropolises.
My noble friend Lord Hutchinson of Lullington and I have been exchanging notes. My experience has largely been a circuit experience and has a largely London one. It is true to say that by and large the reactions of juries on circuits are so different from the reactions of juries in London. This is partially because there is still a strong feeling outside London and outside our larger cities of confidence in the police which I believe is largely justified. We have to recognise that the chief constables have a particularly difficult task when they are faced with the problem of getting rid of the malpractices which have been tolerated over the years. Perhaps the experience of the metropolitan police could be observed in this regard. Therefore I do not think that anything we do on this Bill should undermine the authority of a chief constable over his force. On the other hand, I believe very firmly that chief constables should be much more accountable to public authorities than they are at present. This is the other side of the coin.
I should like to conclude by saying that in the Bill there are some provisions which, in their present state, are totally unacceptable to us on these Benches, but they are, nevertheless, capable of amendment and reform. We shall approach this Bill in an entirely constructive spirit. We are conscious of the very great importance at present of building bridges of trust between the police and the community. I have already referred to the fact that certain police forces are playing their part in building these bridges. We must respond. The libertarians must apppreciate that the police deal not only with the community in its everyday life but also with some of the most vicious, ruthless and destructive persons within the community, and that it is police activity protecting us from their pursuits which helps us to preserve a civilisation in this country.
We will go far in this debate to achieving an acceptable Bill if we appreciate the legitimacy of the honest view on either side of the equation. We are talking of two different peoples: we are talking first of those in respect of whom the powers are needed, and those against whom the powers must not be misused. Therefore I believe that this Bill is capable of a great deal of amendment on certain basic principles and I look forward to an interesting time in Committee in this House.
§ 4.9 p.m.
§ The Lord Bishop of Gloucester
My Lords, it may appear that this is a strange and inappropriate subject for a maiden speech from a Lord Spiritual. I hope to persuade your Lordships in a very few minutes that a suitably modest contribution from these Benches is not out of place.
422 I begin with the obvious statement that the Christian tradition has always held that the authority of the civil government is in some way derived from God. More pragmatically perhaps—and this I believe lines up with what the noble and learned Lord the Lord Chancellor was saying in his introduction—Christianity has always accepted that civil order is essential to any society, and that crime, which damages and threatens that order, must be curbed by force if necessary. I think, too, that there has been more contact and communication than is often supposed between the Church and the police, not least within the last two decades or so. This is often true locally. Indeed, in some places the local policemen and the parish priest are just about the only community workers still resident in the locality and have the closest of working relationships. I speak of Gloucestershire, which I know, and I am sure that the same applies in some other counties and dioceses. In our own diocese, the Church has been invited to set up an informal chaplaincy to the county constabulary with the total goodwill of successive chief constables. It is largely on the strength of this arrangement that I myself have been privileged to have frank and unhurried discussions of this Bill with both senior police officers and young constables of both sexes; and I am bound to say that one could not fail to be impressed with the grasp that every one of them had not only of the professional and technical aspects of the matter before us but of the social and the moral issues as well.
I recount these things, which I believe and hope to be not untypical of much of our country, in order perhaps to bring into a truer perspective some of the sharper things which are being said about the police and about this Bill by a good number of people, including colleagues of my own among the clergy and bishops, particularly those working in the great metropolitan cities.
One of the fruits of the Church/police co-operation of the 1960s was a report commissioned by the Church's Board for Social Responsibility of the Church Assembly and published in 1967. Reading it again, a good deal looks prophetic in the light of the Bill before us. One paragraph of that report stands out particularly. It reads:Where criticism is valued more than obedience, and personal rights are valued above the old order, the nature of authority in society changes and with it the character both of the structure of the police and of their relationships with the community. The 'arm of the law' must be more within society than over against it".Surely, my Lords, that brings us near to the heart of the widespread unease that has been expressed by many about this Bill. It is an unease by no means confined to the tense and volatile areas of our large cities.
Gloucester, for example, is a city of nearly 100,000 people. It contains a well defined area in which several thousand black citizens live, too many of them, alas! young and unemployed. Of course, it is nothing like West Bromwich or Brixton or Toxteth. Strenuous efforts are being made by concerned people, among them conspicuously the police, to preserve good community relations; yet the balance in such communities is a delicate one. Occasionally a flurry of unrest indicates how near to something much more unpleasant we might be. Yet great opportunities exist 423 in cities such as ours to build something good and creative in terms of community relationships and there must be many similar places up and down the country.
Those who live in them are bound to have some fear that this legislation might be seen, if we are not careful, as placing the police more over against society than within it. For that reason, I would certainly welcome most warmly that part of the Bill which, it seems to me, lurks rather modestly in Part X and which calls upon the police authorities to make arrangements for effective liaison with the public in the fight against crime. For a similar reason, if I felt that I had any influence over your Lordships' future deliberations upon this Bill, when much wiser and more experienced heads than my own will consider it, it would be to urge this: that, while accepting that some such legislation is necessary probably in order to clarify grey areas of the law and to enable the police to operate more effectively against the terrorist and against the professional criminal, everything possible should be done to eradicate anything which will drive further wedges of misunderstanding and hostility between policeman and the more ordinary citizens, even the less well behaved ones, and especially the vulnerable, the fearful and the inarticulate.
If, for example, the proposed stop and search provisions are required—and they may well be—is it worth considering the suggestion that anyone so stopped should be given a document by the policeman concerned which would state his name and number and police station for future reference if required? Or, when a person is detained in a police station, although he has his right to see a solicitor and inform a friend, might he not be proved with a document describing that right? Such provisions might seem trivial to us who legislate but could help substantially in the general field of police relationships within society.
In the end I would ask your Lordships to consider as particularly worrying about the Bill, among its many advantages, a potential indifference to the claims, not so much of human rights (of which, perhaps, we hear too much) but the claims of human dignity. Extended powers to stop and search, to search premises and to seize documents, to conduct intimate body searches, to keep people isolated under questioning—such powers, surely, unless most rigidly monitored and constrained, might increase the temptation present no doubt in all of us at times to treat other people, whether criminal or not, without according to them that basic dignity which is their birthright as fellow human beings. Surely what we abhor about the police state is that it tolerates people who are more or less defenceless being within the naked power of others in such forms and ways as to deprive them of their dignity. It seems to me that that strikes at the root of what we understand a healthy and democratic society to be, as well as damaging the religious convictions which many of us hold about the nature of man in God's image. May I hope that your Lordships may perhaps by judicious amendment prevent this Bill from taking us along that particular path.
§ 4.19 p.m.
§ Lord Campbell of Alloway
My Lords, it is a singular privilege to follow the right reverend Prelate the 424 Bishop of Gloucester, and to congratulate him not only upon his choice of subject for a truly noteworthy maiden speech, but also upon his contribution to the order of this debate in which the interests of Church and state are held on common trust, a trust of which the right reverend Prelate has spoken from the depths of his own personal experience. I am sure that I speak for all your Lordships when I say that we look forward to hearing from him again on some of his reservations related to human dignity.
This Bill seeks to restore a new order of trust in the police and a new order of confidence in the administration of our criminal law and, as such, it is surely much to be welcomed. Perhaps among its most important provisions are the setting up of the independent police authority for complaints and the setting up, on a statutory basis, of consultation at community level (a tribute to the noble and learned Lord, Lord Scarman, who I see in his place) all in context with proposed legislation to establish an independent prosecution service and some further reforms to which my noble and learned friend the Lord Chancellor referred.
In this new order full recognition is accorded to the relationship—the close-knit relationship—between civil liberty, the rule of law, the role of the police, and then that of the courts. There is no civil liberty save as is recognised by law and enforced by the police as the prime and vital enforcement agency. If our indigenous concept of civil liberty—this erosion of civil liberty was a point taken by the noble and learned Lord, Lord Elwyn-Jones—shifts from time to time to accommodate the dictates of reason and circumstance according to the will of Parliament, so be it.
The fact of our way of life in which civil liberty exists only under the rule of law requires but scant affirmation or emphasis today, in the age of the many-headed hydra of oppression. Although this Bill proposes in principle, as I suggest it does, a reasonable and acceptable balance—"balance" was the term used, and stressed, by my noble and learned friend the Lord Chancellor; and it is a question of balance—perhaps it is nonetheless arguable that some provisions, such as the privilege accorded to journalistic material under Part II, go too far, and that other provisions, such as those concerned with confessions under Part VIII, do not go far enough. The question is whether some corrective adjustments should be made to the balance.
As to journalistic material, it is simply not understood why such material should be excluded from the powers of entry, search and seizure under Part II of the Bill. Many journalists, according to my information, do not seek any such privilege. If Her Majesty's Government were to support this concept, which has its origins in an amendment introduced during the Committee stage of the pre-election Bill, it would be of interest at some time to learn the grounds of justification, since by simple and painless surgery, by three deft strokes of the scalpel to Clause 10, this excrescence could be excised.
As to confessions, the noble Lord, Lord Hooson, took two points, but with great respect to him the writing down of the voluntary element under Clause 73(2)(b) does not really run. If one looks at Clause 425 73(2)(a) and Clause 73(8), one asks: does not the structure wholly retain the existing concept that there should be no oppression and then superimpose certain facets? As to the self-serving statement, surely the judges will still be able to deal with the possible prejudice or injustice which arises, as they do now.
My respectful criticism of Clause 73, so far as it concerns these confessions, is that it simply does not go far enough because it simply does not grasp the nettle. There is a cross-pollination between this and detention and the way in which detention can result in a confession. The problem surely is the challenged, uncorroborated, oral confession to the police, which is not recorded at the time and is not read over to the accused for approval or correction. The challenge to such confessions has now assumed the proportions of a ritual in which an advocate, on instructions, is all but compelled to indulge. It is a waste of time because one must take note of the marked reluctance of juries these days to convict on such confessions. The expense is wholly unacceptable, the status of the police is slighted, contrary to the general intention of the Bill, and much resentment—justified resentment—is caused.
An appropriate procedure has been implemented for very many years by the Customs and Excise and has now been adopted by the Metropolitan Police, but there is today a very wide disparity in practice up and down the country, and it is respectfully suggested that consideration should be given to this Customs and Excise procedure being made mandatory by amendments to Clause 73 so as to exclude such confessions unless duly recorded.
In conclusion, I would say that the ambit of delegated power under these provisions is wide, and rightly so. Under Clause 26 there are regulations as to, "Arrest without warrant for fingerprinting." Under Clause 57 there is to be a code of practice, to be issued by statutory instrument, for the tape-recording of interviews. Under Clause 63 there are to be codes of practice on,detention, treatment, questioning and identification",and on searches and seizure. In Clauses 93 to 95 there are regulations as to complaints and discipline. But on the issue of questioning, can it really be appropriate that the procedures for the recording of confessions, whether they be in writing, on tape, or by video, should be regulated by, or relegated to, a code of practice? It is suggested, with respect, that the question of procedure as regards these confessions, which are the root cause of much of the problem in terms of the sanction of admissibility, warrants the further consideration of your Lordships' House.
§ 4.30 p.m.
§ Lord Denning
My Lords, I should like to join in congratulating the right reverend Prelate for his most valuable contribution, emphasising for our consideration the dignity of man. But we have to face the situation today. Not only is crime increasing but our civilisation, our civilised society, is under attack. It is under attack by the criminals—those who break into houses and steal and are never caught; those who mug old ladies at night and steal from them; those who 426 trespass on all the liberties of our individual citizens. It is for those that I would ask your Lordships' consideration, because our first line of defence is our police force.
In 1829 Sir Robert Peel first established the police force, and I like to think it has upheld its standards ever since. When considering this Bill you must place confidence in the police. The police force must be well disciplined, well led, well trained, well educated and well paid; and they should be—as they have been in the past—regarded as the friends of the law-abiding citizen.
It has become rather different now. When I was a young man and I cross-examined a policeman and suggested that he was wrong, I would lose my case. The jury had confidence in the police, as we all had, and trusted them. How different it is now! Counsel taunt the police all the time; they suggest they are framing up the case against them. They appeal to the jury, making allegations, particularly against the police, all the time, destroying the confidence of our people in the police.
That is entirely wrong. It is essential to the fabric of our society that we should have confidence in our police force and it should be, as it has been in the past, the best police force in the world. It was in 1949 that I gave some lectures on freedom under the law and I said this:By 'personal freedom' I mean the freedom of every law-abiding citizen to think what he will, to say what he will and to go where he will on his lawful occasions, without let or hindrance from any other persons.How is that applied today when men wish to go to work, as they have a perfect right to do, on their lawful occasions; and yet they are set upon by mobs? When the police exercise their duty of defending the ordinary citizen, they are set upon by mobs. It makes me recall Kipling's words:Whenever mob or monarch lays too rude a hand on English ways, a whisper wakes, the shudder plays across the reeds at Runnymede.Law and order is the basis of this Bill. It is the first duty of Government to see that law and order is maintained in the land. When I sat in the Court of Appeal we had many cases when police were being sued for false imprisonment or trespass—that is the way these cases are challenged—and we had to consider what the law was concerning the powers of the police in search, in arrest, in detention, and the like. And let me tell you, my Lords, that the law is in a hopeless muddle and a confused state. It is not at all clear. We argued that out only in 1949. In this House there was a great case on a section in a Liverpool Corporation Act about searching for unlawful possession of goods. It was only then Lord Simmonds was able to declare that any man who was arrested had a right to be told at once for what cause he was being arrested so that he could at once take steps to secure his liberty. That was 1949.
In 1970 in our court in a case called Ghani v. Jones we had a most difficult question as to when a police officer could seize or search. You cannot have a search warrant for a murder, so the police went into the house and searched for other things, including a passport. Had the police any right to seize it or not? The law was utterly confused and I had to suggest that a previous decision in one of the courts was erroneous. The law 427 was in an entirely unacceptable form and not clear, as it should be. Many of these powers of arrest which are contained in the law are not contained in the common law or in the statutes at large but in some local Act such as the Liverpool Act which I have mentioned, and many minor Acts of the same kind, which nobody looks into unless they have to do so. It is essential that the law should be clarified on these most important matters so that the police should know what their powers are, and so that the ordinary people should know what their powers are.
That I think is the great merit of this Bill. It does lay down the law, I would suggest, in clear terms. Whether they are altogether satisfactory can be discussed in Committee. But take the right to stop and search: it might be in the old days only for stolen goods. Surely you can extend it for offensive weapons? Surely you can extend it for drugs? In the old days with a search warrant you could search with a warrant for stolen goods but not for murder, and not for false pretences or fraud or any of these other things—maybe grievous bodily harm and the like, or weapons. You could not search for those: you could not get a warrant for those. So the law as to search warrants must be regularised, and also the law as to arrest. You have to know what are arrestable, offences, and this Bill seeks to put the law in a clear position.
As to police detention, that is a very nice question. As I understand the Bill, there is going to be an officer who arrests and who rings the police station. There will be an officer there, a responsible higher officer, who will be a custody officer and who will look into the case and see whether there is enough in it to merit a charge or not, or to see whether it merits further investigation or not. The matter will be reviewed every six or nine hours; it will be reviewed continuously by a proper senior officer to see whether it is justified or not. It is very important that these powers of investigation for the police should be allowed because the law has already thrown too many nets round the accused person so that far too many get away when they ought not to do so. I have just mentioned those as instances of the powers which are given to the police in this Bill. I do not say the Bill is right in detail but I do say that it is most important that the law should be clarified on this matter. The powers of the police should be clarified and the safeguards—there are many here—for the accused should be stated as to consulting a solicitor, and the like. All these safeguards must be examined and, on the whole, I hope that as a result of the Bill in this House and in Committee stage it will prove a most valuable addition in the war of the community against crime. I would support this Bill.
§ 4.40 p.m.
§ Lord Ardwick
My Lords, first, I must commend with pleasure and sincerity the maiden speech of the right reverend Prelate the Bishop of Gloucester, who I think instinctively got the wavelength of this Chamber. I must confess that I am concerned with a very narrow section of the Bill. I am concerned with those parts of the Bill which provide exemption for journalism and journalists from the new powers for search and seizure that it confers on the police. I am speaking as chairman of the Press Freedom Committee of the Commonwealth Press Union, as a life member of the 428 NUJ, and as an associate member of the International Press Institute.
The Government may think we journalists a churlish lot. They come forward with a decent, generous, liberal gesture and provide us with a genuine privilege and we, or most of us, reject it—why? To begin with, we instinctively fear the Greeks when they bring gifts, because at some time when we displease them by our conduct—and our conduct is often displeasing to the Greeks—we fear they may threaten to take back the gifts. The loss itself would not be important: the threat would. Or they may at some time in the future ask us to pay a price for the gift in the shape of a reciprocal gift.
These are perhaps unworthy suspicions, and if they were the only reasons for rejection, they might have been suppressed. But there is a real difficulty and it is one that cannot lightly be set aside. The gift we are now offered changes our relationship with Government and our status in society. We become, if only to a minor extent, a privileged class and we should rather pursue our perilous calling as ordinary citizens, subjected to the ordinary law.
Those of us who are veterans of Fleet Street recall a situation in the 1930s. At that time, there used to appear in the dock at least once a week some thief or confidence trickster, and very often he would describe himself as an old Etonian—an Etonian of no fixed abode. He never described himself as an old Wykehamist or Harrovian, perhaps because the words were more difficult to pronounce, or because he thought that they would not fit into the headlines. But he also described himself as a journalist, and this worried a number of journalists who were longing for respectability and for a professional place in society, just like doctors and lawyers.
So these journalists got one of their institutions to propose that there should be a legal register of journalists. The proposal had to be vigorously fought by editors and by the NUJ, because we could see that the registration of all journalists could lead at some time in the future to deregistration of particular journalists who were politically embarrassing to a Government. This could have been almost immediately tempting, because at that moment Herr Hitler, as the polite newspapers used to call him, was asking Neville Chamberlain why he tolerated all the criticism and abuse that was being aimed at the Fuhrer and at the Nazis. The response to the proposal for registration was so lively that it was immediately shot down, but the danger has not been forgotten.
The current anxieties about this benevolent provision in this Bill were well expressed in a letter which the director of the Newspaper Society sent to the Minister of State for Home Affairs just over a fortnight ago. This recalled that the Minister had suggested to the society at a meeting in March,that the general protections contained in Clause 14 of the Police Bill might make the special provision for journalistic material unnecessary".Nevertheless, the specific protection for journalistic material remains. The director, Mr. D. Nisbet-Smith, wrote:we would like to ask you to reconsider your decision to single out journalistic material for separate and distinct treatment. We believe 429 that it creates an unfortunate precedent. This is underlined by the precise drafting of the "journalistic material' provision.The letter goes on:We do not believe that it is in the public interest for 'journalism' to be legally defined or for the courts to have to decide whether or not a person has acquired or created material for the purposes of journalism.".Then comes the nub of the argument:We fear that the current provisions may lead to the emergence of a legal definition of a journalist.".What, your Lordships may ask, is wrong with such a definition? It would have, "…the undesirable effect of simplifying the task of any administration that wished to regulate or license journalists".
It would simplify the task of any Government of the future who might wish to curb the freedom of the press by taking a grip on journalists. There was a useful letter in The Times, too, on 30th May, from Mr. Frank Rogers, chairman of the British Executive of the International Press Institute. He explained whythe great weight of journalistic opinion, after initial ambivalence, has swung strongly against the exemption which the Bill provides…The protection is offered to material acquired or created for the purpose of journalism. This material is limited to journalistic material… in the possession of a person who acquired or created it for the purposes of journalism".As Mr. Rogers sees it, the courts would be obliged,to define what journalism is—and, perhaps more importantly, what journalism is not. They will be tempted to make a distinction between those who are 'journalists' and those who are not. Yet 'journalism' and 'journalist' are terms incapable of precise definition which satisfactorily distinguishes between them and numerous other forms and agents of publication".Broadcasting is one example of those others. Mr. Rogers outlines the danger of the Bill leading to a statutory codification of what is journalism; a codification that would be shot through with complexity and contradiction.
Mr. Rogers cites the weight of opposition to the Bill. It includes theNational Union of Journalists, the editors or editorial directors of seven of the nine national dailies, six of the seven national Sundays, the editors-in-chief of Reuters and the Press Association, the director-general of the BBC, the editor of Independent Television News and senior executives of London Weekend Television, Granada Television, and Channel 4; also the editors of 198 regional newspapers".I question this, because one knows that the Guild of Editors, which has in it many regional editors, is split upon the issue, as I hope my noble colleague in journalism, Lord Hemingford, who knows much more about that side of it than I do, will tell your Lordships when he makes his speech. The opponents also include the Newspaper Society and the Periodical Publishers' Association.
As I came into the Chamber, I was handed a letter from Mr. Ecclestone, the deputy general secretary of the National Union of Journalists, and I think that he puts it rather more sharply than I have done so far. He states:It seems to us…that one of the distinguishing virtues of British journalism—whatever its other defects—has been that those who practise the craft have never sought special protection under the law, whatever the difficulties that created in such areas as contempt, libel, etc.430Politically this has given to journalism a degree of integrity and independence from agencies of the state which, we feel, has led to a workable if uneasy balance between the interests of a free press (and broadcasting) and those of the state.It is our view that, if journalists have 'privileges' thrust upon them, as the present Bill would do, it would be merely a matter of time before our members—either as individuals or as servants of publishing and broadcasting organisations—found themselves before courts trying to determine whether they were journalists.Then there are the usual fears that this would create problems of definition. I think that Mr. Ecclestone puts it rather strongly:it would only be a matter of time before there were further demands for a system of registering or licensing journalists, such as is now being introduced in South Africa.I do not think we are near that stage, but it is one of the fears which has haunted the minds of journalists for many years.
I hope, as do all these people, that the Government will think again about this provision. There are critics of the press who believe that we confuse necessary eternal vigilance in the defence of liberty with chronic paranoia. If such confusion exists, it does not enter into this case.
We have always been able to plead that freedom of the press is not simply a privilege for journalists and printers, but is a freedom for all citizens to exercise and enjoy. That is how we journalists wish to remain—unprivileged and answerable to the ordinary law, like all other citizens. Nevertheless, it would be ungracious of me not to thank the Government for their sincere, but embarrassing, gift, while pleading with them to take it back.
§ 4.51 p.m.
§ Lord Molson
My Lords, at the outset I should like to join those who have already spoken in welcoming the speech of the right reverend Prelate the Bishop of Gloucester. The whole tone of his speech demonstrates how valuable it is that the Lords Spiritual should sit in this House. If there had been any danger that this debate would be confined to the aridities of legal discussion, the fact that the right reverend Prelate has referred to the human side of things and to the importance of preserving the dignity of man serves to show how important it is for us to have the help and guidance of the Lords Spiritual.
I shall not attempt to deal with any of the detailed provisions of the Bill. I intend to deal only with the responsibilities of my noble and learned friend the Lord Chancellor. When the Conservative Party suffered defeat in 1974, my noble and learned friend naturally ceased to be Lord Chancellor, and he set about writing a book, in which he says at the beginning:I have always wished to write a book of this kind".So when I quote, as I propose to do, it will not be from any of the interviews which my noble and learned friend gives to enterprising journalists, with all the quips and quiddities with which he regales them and which they pass on for the enjoyment of a large public. Instead I shall quote from a considered work of his, written after he had completed his first period of office as Lord Chancellor and when he did not expect, as he indicates in his book, to return at any time to the Woolsack. His opinions, after his long experience in 431 politics and law, are set out in this book. I propose to quote at length, because these are obviously my noble and learned friend's considered opinions after that extremely long experience. At page 252, he says:I would assess the Lord Chancellor's real responsibilities as follows. First and foremost to see that everyone gets a fair trial in court … This is his main function, but for this purpose it is necessary that he should be responsible for the administration of all courts … He should also be responsible, not indeed for the substantive law, but the procedural law and the law of evidence and legal aid as much in criminal as in civil cases. His present responsibilities stop short of this and the result is that in a number of matters there is no adequate movement towards efficiency and reform … So far as criminal law is concerned, I would leave the responsibility for substantive law where it is, with the Home Office … But from the moment the accused man enters the court and is asked to plead…responsibility should not rest, as it does, with the Home Office, but with the Lord Chancellor's Office…The Home Office's responsibility for criminal procedure is usually incompatible with their police and law enforcement functions and theoretically, though not in practice, with the independence of the judiciary".Later my noble and learned friend reverts to this, which shows that it is a considered opinion of his:I have always believed that Criminal Law and Procedure should be the primary responsibility of the Lord Chancellor and not of the Home Secretary".The fact that my noble and learned friend opened this debate and moved the Second Reading of the Bill makes me think that perhaps a change has taken place in the responsibility inside the Government for this branch of the law. As we have no written constitution, the transfer of responsibility for the law of criminal procedure from an executive member of the Cabinet to another member of the Cabinet who is also the head of the judiciary does not need legislation. I do not believe in the theory that it is a matter for decision by the Prime Minister, who, whatever the present position may be, is, in constitutional theory, only prima inter pares—I hope I have my Latin gender correctly. I assume that this is the kind of matter which would be settled in Cabinet by discussion between the two Cabinet Ministers who up to the present time have been responsible for different branches of the law.
I thought that the introduction of this extremely important Bill, dealing with criminal procedure and the general enforcement of law and order, offered to me an opportunity to remind my noble and learned friend of what he wrote in 1975. He is now in an extremely influential position, as one of the few lawyers of recent times who has twice occupied the Woolsack; and he now is, by a long way, the most long-serving and experienced member of the present Administration.
§ 4.59 p.m.
§ Lord Scarman
My Lords, this is not the first time that I have had to follow my noble and learned friend Lord Denning, but I am glad, at least on this occasion, to be in a position to say that I agree with much that he said. My noble and learned friend emphasised that the criminal law cannot be enforced effectively unless the police, whose task it is to enforce it, enjoy the confidence of the public. My noble and learned friend then went on to say, "It is up to all of you to trust the police". I look at it the other way round. Are the police exercising their powers so that they are in a position to command the confidence of our society? By that, I do not mean only the Members of the two Houses of 432 Parliament but those who live in Brixton, Toxteth, Birmingham and elsewhere.
It was in that respect that I welcomed, as other noble Lords have already welcomed, the maiden speech of the right reverend Prelate the Bishop of Gloucester. He made it clear that there are honourable, decent people—particularly in our inner city areas and particularly members of the ethnic minority groups—who do not trust the police. This Bill has got to be judged at the end of the day against this criterion: does it substantially advance the cause of encouraging all our people to trust the police? Legislation will never do the job entirely by itself. This Bill, however much it should be amended for the better in your Lordships' House, could never become a cure in itself for lack of confidence in the police.
The other essential step is that the police should not only act in accordance with the necessary ethical and professional standards but should be seen by the public to be so acting. Therefore, we must look at this Bill to see whether it is advancing the cause, not only in the strictly legislative sense of defining powers with suitable safeguards and so forth, but whether it is advancing the cause of enabling the police to go forward—and they have already made big strides since 1981—to win the confidence of the public. A recent visit I made to Brixton has led me to admire the steps that the Brixton police have been taking for some time, and are still taking, to win and retain the confidence of the public. There is no need to be depressed or melancholy in this debate, but there is every need to look with very great care at the provisions of this Bill.
I will indicate at once my final conclusion, although I shall have something to say after I have done so. I welcome the Bill. It is surely correct to seek to put into one comprehensive statute those powers and duties which society considers to be necessary for the enforcement of the criminal law. The Bill, whether successful or not, seeks to do that and for that reason I support the Bill in principle. The Bill goes further. It also seeks to include the specific safeguards—particularly safeguards directly applicable to the police—which it believes are necessary in order that those powers which it confers upon the police are not abused. So the Bill operates in two ways. It is a comprehensive and much-needed statement of the powers and duties of the police in that field of social activity where the enforcement of the law is confronted with the protection of human liberty, and it seeks to detail safeguards.
In so far as it defines the powers and duties which are considered necessary the Bill tempts one, even on a Second Reading debate, to go into Committee straight away and consider the various powers there defined and the various safeguards which are built in. I propose at this stage to resist that temptation. It is more important to look at the Bill as a whole before we raise the curtain on what is far the more important stage of the Bill—the Committee stage. The noble and learned Lord, Lord Elwyn-Jones, my noble friend Lord Hooson, and others, have made some important criticisms of certain of the powers defined in the Bill. Those criticisms cannot be properly understood save in Committee when we can look at the small print of the clauses. It is, of course, possible to ask rhetorically 433 on Second Reading: is it ever necessary that a man should be held in a police station without charge for 96 hours? The answer may be, as the noble and learned Lord, Lord Elwyn-Jones, suggested, that it is neither necessary nor desirable, and it does not matter how it is phrased. There is perhaps a Second Reading point there: but I suggest to your Lordships that even that very obvious question of importance should be left to the Committee stage. I leave this part of my speech by simply saying that the Committee stage of this Bill will be a historic challenge to the revising skills of this House.
I suggest that in this Second Reading debate we should direct our attention to the safeguards which are to be found in the Bill separate from the definition of the powers and duties. Those safeguards are extremely interesting and have not yet been mentioned in this debate. They trouble me a little, yet they may be necessary. The first safeguard, running like a silver thread through all the clauses conferring powers upon the police, is that the policeman or constable, in the exercise of the power being conferred, must act reasonably. He must have reasonable grounds for suspecting that the man he stops and searches has on him stolen or prohibited articles. The superintendent who authorises a road check must have reasonable grounds for believing certain matters specified; and so it goes on throughout the whole Bill. The inspector who wishes to search, without warrant, premises recently occupied by an arrested man has to act on reasonable grounds before he authorises such a search. But who is the judge of what is reasonable?
I know of course that ultimately the question can be taken to the courts either by an action claiming damages for false imprisonment or by way of judicial review; but one cannot really rely on court action long after the event to make sure that those powers which have to be exercised upon reasonable grounds really will be exercised on reasonable grounds. The tendency undoubtedly will be that the police view—because they are the men operating these powers—as to what is reasonable or not will, like the incoming tide, slowly take over. The first safeguard is necessary. I am glad that it is in the Bill but I am troubed by it in the respect that I have mentioned.
The second safeguard is again valuable. It is again recurring frequently in the Bill. Certain of the more drastic powers can be exercised only by a senior officer of police and some powers only by an officer of at least the rank of superintendent—for instance, the power to order a road check and the power to refuse a detained man the right at once to notify somebody of his detention and where he is. Again there are other powers exercised by a sergeant—the custody officer, the review officer—the inspector, the superintendent, and so forth. Again these are valuable, but again they are in the hands of the police. One has to have reliable, fair-minded senior officers or officers of a certain rank charged with that specific decision for this managerial type of safeguard to work at all.
The third safeguard, which runs right through this Bill, and which has not yet been mentioned in the course of the debate but which is important to hear in mind, is the duty upon police officers of whatever rank 434 who are exercising, I think I can say, any of the powers contained in the Bill to record what they have done and, if the man is in custody, to see that it is recorded in his custody record. Again that is admirable as far as it goes, but the same question mark hangs over it. Can one trust the police in the keeping of these records; and will these records do anything other than add to the complexity which must already beset and trouble policemen in the administration of police stations and in the operation of police powers against crime? All the safeguards to which I have referred are administrative in character and impose a burden not only upon senior officers but upon officers all the way down.
Those three safeguards—the reasonable grounds, the rank of the officer making the decision and the recording by the officers of what they have done—all occur within the administration of the police service. Their success, notwithstanding the existence of judicial review, will depend upon the quality of the police force. Has it the professional standards? Has it the sense of ethic that ultimately will persuade the public—perhaps not at once—that these powers are being exercised as the statute plainly intends that they should be exercised? That means that what are really important in this Bill are the provisions that are taken to deal with certain aspects of police organisation and conduct. I have listed what appear to me to be the really important matters if the police are to secure the confidence not only of you and me and other well-heeled and well-established people but of the perfectly honourable, decent young black in Brixton, Bristol or elsewhere.
First and foremost is training. There is not a word, really, about that in this Bill. Perhaps it is unnecessary, but just imagine the skills—the administrative skills—that a police constable and his seniors have to have just to deal with the three managerial safeguards that I have dealt with. Secondly, there is discipline. Discipline is vital. It has to be fearlessly operated and operated against a background of statutory law and police regulation which really makes it appear to the public to be effective and to have teeth. Thirdly, there is the complaints procedure; and, fourthly, local consultation. I agree most profoundly with what the right reverend Prelate the Bishop of Gloucester said about the importance of Part X of the Bill. Finally, there is accountability, which is not dealt with in the Bill.
If your Lordships will allow me, I shall spend just a moment or two on each of those matters. Training: effective training, both initially as at present done at Hendon and later in the service as provided at Bramshill, is vital and has been so regarded ever since the McNee reforms, and the police are to be congratulated on the advances they have made in training in such important fields as human awareness and dealing with ethnic minorities. But on-going development in the training of policemen, not only for the complex administrative tasks that I have mentioned but for their dealings with the public, is indispensable. Without it, this Bill could be torn up as a piece of unnecessary paper—which unfortunately cannot be used again because something has been written on it.
Discipline: I welcome the codes of practice and I welcome the fact that they (I think I am right in saying) will be subject to positive resolution by the two Houses 435 before they come into operation and have disciplinary effect. Those codes of practice, I would suggest to your Lordships, should be most carefully scrutinised in this House. It is the nearest thing that we shall be getting to some sort of review of the disciplinary code of the police. One of your Lordships—I forget who—mentioned the sad fate of a certain recommendation about the offence of racial prejudice in the police code in the Brixton report. That is the sort of problem that can perhaps be put right by the House in its study of the codes of practice when they come forward.
Complaints procedure: I think that, by and large, the Bill has done a good job with the introduction of the Police Complaints Authority. It is not what I myself would wish. I am with the noble and learned Lord, Lord Elwyn-Jones, in believing, as I said in the Brixton report, that there should be an entirely independent system of investigation of complaints. It may be that that is impossible. I understand the practical difficulties. But, nevertheless, there are two good things about the police complaints parts of this Bill. First, the authority is given teeth, and I say—and I hope I shall be heard saying—I hope that the authority will use its teeth and chew up pretty well.
Secondly, I welcome the provision for dealing with minor complaints. This is extremely important, as I learnt in Brixton. A lot of trouble is caused by a failure to deal with minor complaints in an informal way. I should like to see lay people associated with the police officer in dealing with them. That may come.
Local consultation is of course a most welcome part of the Bill. I should say that those who have drafted the Bill have shown great wisdom in resisting the temptation to lay down any modes or forms in which local consultation could be set up; leave that to the local people including the local police. That is what the Metropolitan Police Commissioner has done in Brixton, with astounding success. I was told in Brixton last week that the local consultative body conducts all is business in public, sits in a room made available to it by the Lambeth Borough Council, and is now so successful that, like the judges of Henry II, it is going on assize: it is going around Brixton to various places in order to hear what the people have to say, rather than require the public to have to make the journey to them. However, people may make the journey to them if they wish; many of them have made the journey to Lambeth with a great deal of delight and a challenging determination to question.
Other places may have other systems, but local consultation is perhaps the most important single measure which will cross not only the ethnic gap but also the generation gap between the police and those who doubt their honesty of purpose—and there are still some who do.
Finally, I come to accountability, which is not dealt with in this Bill, and so I shall not deal with it except to say that it is a very important constitutional matter. When I wrote my report on Brixton I contented myself with saying that the accountability of the Metropolitan Police to the Home Secretary was necessary and that one need not take it further. I still agree with that view—that the Metropolitan Police should be accountable to the Home Secretary. However, I would suggest to the Home Secretary that if he could exercise 436 that constitutional responsibility of accountability for the Metropolitan Police with the help of some kind of a committee drawn from the people of Greater London, and if he could be seen to act through and with that committee, even though the responsibility must remain his, I think that would be worth considering. The one really powerful point which appeals to so many people in Brixton, as I know, is the feeling that the police are not accountable to them.
For those reasons I welcome the Bill. I am aware that the Bill is dealing with a problem, the solution to which is vital to the survival of the free society in our country. The difference between a police state and a state where the police are efficient. but democratically controlled, is a mighty thin one. It is alarming that perhaps that difference can be maintained only by the standards that the police themselves choose to observe. It is for that reason that these safeguards on discipline, consultation and training are so vital. If the police are corrupt, ignorant, or inefficient, no amount of legislation will put it right. But if they are sound, as I believe at the moment the police in this country are, then if your Lordships botch up this Bill, it will not matter too much.
§ 5.25 p.m.
§ Baroness Ewart-Biggs
My Lords, I feel extremely privileged to follow the noble and learned Lord, Lord Scarman, in this debate. I have the very great advantage of having listened to his very comprehensive speech on the whole Bill. I am going to confine my comments entirely to the way in which the provisions of this Bill might affect young people, and I hope that what I say will be a valid follow-up to the very remarkable speech of the noble and learned Lord.
First, as the noble and learned Lord the Lord Chancellor has said, it is important to remember what is the fundamental function of our law and to base our arguments on whether the police are being given the powers to pursue and combat criminals without tampering with the civil liberties of those who become involved in that pursuit to such a degree that they become alienated and hostile to that authority. This is the essential but, alas, fragile balance that we seek.
So it seems right to examine this Bill in terms of three questions. First, does it tip the balance, a balance which some say has swung towards the police? Does it swing it back in favour of the individual citizen? Secondly, does it help sustain, restore and maintain the credibility of the police force and the public's confidence in it? Thirdly, will it result in a decrease in the number of offenders detected, caught, and convicted?
Taking the case of young people in particular, I believe this Bill may fail on the first two counts and might fail even on the third as well. However, in order to assess its true potential effect on young people, I think it is important to consider how they are at present affected by the law and what their current relationship with the police forces appears to be. There has been not only the report of the noble and learned Lord, Lord Scarman, after Brixton. concerning this subject, but also various studies and reports which have established how the present—I would say, tense—relationship between the police and some of our young people evolved.
437 First, there is the report which has already been mentioned by my noble and learned friend Lord Elwyn-Jones, which was carried out by the Policy Studies Institute and which gave cause for alarm over how the existing stop and search powers have been, and are being, used. In addition, the statistics quoted have proved how virtually ineffective have been these powers. For example, out of one million stops and searches in London, only 8 per cent., or one in 12, led to an arrest or a report. Of course by no means all of the 8 per cent. were eventually charged. This means that the vast majority of those stopped turned out to be entirely innocent, and many of them must have been young persons.
But, in addition, the PSI researchers revealed how open to serious abuse were such powers when they revealed that out of 100 arrests as many as four were illegal and many were carried out with excessive force being used. From the point of view of discrimination, the report again showed that West Indians and young people have a 50 per cent. chance of being stopped, compared with a 16 per cent. chance for Londoners as a whole.
I should like to quote from another study, which was carried out in the London Borough of Hillingdon. These findings illustrate young people's own response to the stop and search procedures. First, the study found that 52 per cent. of their sample of 295 14–16-year-olds had been stopped and questioned or searched by the police at some stage or other. But, whereas a notable characteristic of the sample—which, after all, was taken in a reasonably well-to-do area, where there was a below average unemployment figure—was that the original attitude was a pro-police, pro-law and order outlook, the experience of being stopped seemed to have had a strong negative influence and to have made them hostile towards the police and alienated from the law. Moreover, it was shown that it also tended to outweigh the all-important and highly beneficial public relations work of the police in schools.
The young people's own answers to questions on the stop and search procedure were very revealing. Only 16 per cent. of the sample were in favour of the power, with 34 per cent. opposed and the remaining 50 per cent. having mixed views and many reservations. The answers included such comments as, "The police think of all young people as criminals. I bet they do not search old age pensioners. Why always pick on the young? The police only go by the way young people dress and look".
I have no need of corroborating evidence. As the mother of a student son who elects—indeed, why should be not?—to wear his hair a few inches longer than the conventional length and whose normal clothes are ragged old favourites, I can vouch for the fact that he and his friends are fairly frequently candidates for the stop and search procedure. Coming from secure homes, they appear to take this in good part and to regard it as part of their lives. But what about those who are less privileged—the young unemployed, those who feel that they are being discriminated against because of their colour, and those who come from broken homes? Who can blame 438 them for reacting with bitterness and a sense of alienation to this perpetual stop and search?
To return to the survey, the comments of young respondents as to the manner of the police were in many cases critical. I give some quotations. "They are impolite. They should be less aggressive. They take advantage of the young." Finally, a remark which appeared to me to sum up the whole attitude went as follows, "I had heard about the police before but not seen it. They were rude. I felt like being rude back. I now know why young people are sometimes aggressive and sometimes cause more trouble than they might otherwise". I feel that these statistics are sufficient evidence that under the present law the fragile balance to which I referred of protecting the peace without inciting the hostility of young people generally is possibly at risk.
The areas of the Bill that give most concern, apart from the extended powers of stop and search, are the extended powers of arrest, detention at police stations and access to legal aid. Those concerned with the welfare of young people are anxious about the extended stop and search powers primarily because they feel that the powers are unnecessary for the detection of crime and that they are open to abuse. They are further worried that there is no precise definition of offensive weapons or items used to obtain property by deception. Once again, it is mainly young people who will be affected by the extended powers. Indeed, when you think of the strange possessions that young people carry around in their pockets or, when travelling by car. the strange collection of tools, torches, bits of old musical instruments, and so on, that they have with them, the police, if they stop and search with a wish to elicit guilt, will in many cases find ample excuse to do so. It is known that these searches cause offence. When extended, they will increase the risk of young people responding aggressively and ending up facing criminal charges even though entirely innocent of the crime for which they were originally being searched.
The proposals for an improved complaints system are welcome. Research carried out last year in Notting Hill Gate showed that although three-quarters of those questioned who had been searched were dissatisfied, only a very small percentage had made any complaint, because they lacked confidence in the complaints system. Similarly, it is to be welcomed that each stop and search is to be recorded. There is nevertheless no sanction against the police officer who fails to do so. Clearly, there is little redress to be found by a young person with a sense of grievance. The youth service is so convinced of evidence of the abuse of the power and its detrimental effect on police community relations that it would go so far as to wish to see the power abolished altogether instead of being strengthened.
What will the extended powers of arrest proposed in the Bill mean to young people? First, surely, it will lead to more young people being arrested. Moreover, many of the young, especially those who are homeless, those who have broken with their families or who are living in squats, will be extremely vulnerable to the new category liable for arrest described as someone reasonably suspected of committing or attempting to commit any offence, including the most minor non-imprisonable offences, if the police believe that the 439 name given is false or that the address supplied is not satisfactory for service of a summons.
In this regard, it should be remembered that the police, once they are allowed to arrest on the basis of thinking that someone might commit an offence, immediately acquire considerable powers of discretion. For a young person, arrest means not only temporary loss of liberty but also other consequences that come in its wake, such as taking of fingerprints, search of their persons and their homes, and so on. The extended power will increase the fear among some young people of seemingly arbitrary arrest and with it their fear and distrust of the police themselves.
Finally, what will the extended period of detention at a police station mean to a young person? First, there can be no doubt that it will bring fear, alarm and a sense of disorientation and isolation. This, for all those—the great majority—who no doubt in the end will be proved entirely innocent, is had enough. But there is an even more disquieting possible consequence—namely, that, under these circumstances, young people are likely to make statements or even confess to actions that they have not committed simply to get out of police custody. It is obvious that the longer the period of detention, the more likely the person is to make a false confession or incriminating statement in order simply to be able to go home. Young people who do not receive legal support or services at the time of detention will be the most vulnerable. Surely, in the interests of justice and of the young people themselves, of their parents and of that all-important relationship between the young and the police, it is vital that the period of permissible detention be minimised.
The last provision of the Bill which is causing concern to the youth service—I do not think of the youth service as a pressure group but as a group of people who are doing their best to try to keep difficult children and difficult young people out of trouble—relates to access to confidential records. It is evident that youth workers dealing with difficult and alienated young people exercise most of their influence through the understanding, trust and confidentiality existing between them and their young clients. If, under the Bill, the police gain access to confidential records, even of those young people not suspected of an offence, then this guarantee of confidentiality no longer stands. Without this essential condition, the youth worker will find his task of rendering personal support, advice and counselling more difficult, at the cost again not only of the young people themselves but also of their parents and of that all-important relationship.
There is no doubt that some of the proposals contained in the Bill will, in the eyes of the young, make the police appear more coercive and create situations which will be more likely to nurture feelings of fear, alienation and, in many cases, anger among them. Already, I am not sure that we can be proud in this country of our record towards young people. There is no doubt that we lag behind some of our European neighbours in many fields such as providing greater opportunities for further education, training projects, apprenticeships, and so on. I fear that some parts of the Bill to which young people are particularly 440 vulnerable will make them feel more than ever alienated from a society in which in many ways, they feel they can expect less and less.
§ 5.40 p.m.
My Lords, the justification for the untrained—that is, untrained in the law—and indeed the inarticulate to speak to this Bill, particularly in the presence of so many eminent lawyers who have spoken before, is that it is not just a lawyers' Bill; it is everyman's Bill. This Bill will affect the lives of every man, woman and child in this country. In referring to the Bill generally I want to say that I support it. My noble and learned friend the Lord Chancellor said quite rightly that this part of the law is in urgent need of clarification, and in so far as the Bill does clarify this particular arm of the law, then it does this country a very great service.
On more than one occasion my noble and learned friend the Lord Chancellor used the phrase. "strike a balance". He went even further by saying that the object of the Bill is to strike a balance. This is the fundamental theme that was followed right the way through from the Royal Commission on Criminal Procedure. The phrase they used was, "the concept of a fundamental balance", as though it were an immutable scientific law. It was used again on the first occasion when this Bill, or rather a close relation of this Bill, was introduced in another place. I have had a problem in handling this particular philosophy, because the word "balance" itself is tendentious, in that it suggests that things should be in balance. And yet, as your Lordships are well aware, we have fought for generations to ensure that the balance of the power of the state over the lives of individuals shall be most conspicuously out of balance. In so far as this Bill threatens to erode those freedoms. I am convinced that it is of the utmost importance to consider in Committee any threat to those liberties.
My noble and learned friend stated quite correctly that this Bill contains both powers and safeguards. Whenever a Bill grants a power to any individual or group of people and it also contains safeguards against the abuse of that power, then the fundamental question we must eternally be asking ourselves in Committee is, "Is that power, as it is designed in the Bill absolutely necessary?" If there have to be safeguards against that power one must ask oneself. "Why have the power in the first place?" We are the only country in the world that I know of where there is a quite astonishing confidence in the police. We are the only country whose police force generally is held in high respect, and indeed affection. What worries me about the stop and search provisions in particular is that they have within them the capability of building up a resentment between the governed and the governing, so to speak. Stop is, in fact, a form of arrest; that is what the word "arrest" means. I am not being technical here; I am being general. I well recall that when a relation of this Bill was introduced in another place by my noble and learned friend the Leader of the House—
In another place my noble friend the Leader of the House prayed in aid of this particular part of the Bill the fact that these powers were not new, 441 that they were held in some part of Scotland—I think it was the Strathclyde area—and had been operated for some two years. He prayed in aid the fact that, of those stopped on suspicion of being in possession of offensive weapons, one-third were found in possession of offensive weapons. This begs the question, "What of the two-thirds? How are they going to feel? How have they reacted?" Is that very thin line which the noble and learned Lord, Lord Scarman, mentioned threatened in any way by an attitude that undoubtedly will be built up if this power is abused? Some will say that those who have done no wrong will have nothing to fear; but, as the right reverend Prelate the Bishop of Gloucester asked, what about the meek, the stupid, the show-offs, the impatient, the afraid, those who wear their hair in a funny style, the blacks? The incidence of crime may or may not decrease as a result of these measures, but what is very clear in my mind is that the presence of the police in the lives of the common man will undoubtedly increase. Resentment will increase. The present respect and confidence in the police force is threatened by this Bill. I agree entirely with the noble and learned Lord, Lord Scarman, that the line to be drawn between the police in a democratic society and in a totalitarian society is a very thin one indeed and it is very much a question of style. I use the phrase, "the thin blue line", to suggest that it should remain so. I took those words from a very senior police constable who retired some years ago and who was very concerned about this aspect of the Bill as it was then.
I rejoice at the inclusion of what is now Clause 57 of the Bill. As your Lordships will recall, it is intended to place a duty on the Secretary of State to introduce the tape-recording of interviews. This is a vitally important safeguard. However. I ask your Lordships to ask yourselves this question: "Does it?" If noble Lords read it carefully, together with the commencement provisions of Clause 114 which impinge on this clause, they will realise immediately that the introduction generally of tape-recordings of interviews of suspects is about as certain as the English weather.
It will be clear to your Lordships that my major concern lies in the fear that there are some people, not least the noble and learned Lord, Lord Denning, who believe most sincerely that the rising rate of serious crime can somehow be curbed by increasing in the lives of English citizens the power and presence of the enforcement arm of the state, and that relaxation of safeguards which have been built up over generations to ensure that the innocent party does go free will reduce the incidence of crime. When I speak about the innocent party going free I do not mean after stop and search; I do not mean after arrest and detention; I do not mean after trial. I mean after they have gone about their lawful occasions or are allowed to go about their lawful occasions without being hindered—the old phrase is, "being let or hindered". Expediency has always been one of the primary enemies of justice. However, I draw immense comfort from the certain knowledge that there are in your Lordships' House many of immense ability who care enough to resist with vigour any erosion of the fundamental liberties of England that they see threatened by the provisions of this Bill.
§ 5.49 p.m.
My Lords, I should like first to say one word of respect and admiration to the police for the way they carried out their duties in the Midlands over the past few weeks. Public order must be very exacting duties, rather like exasperation and boredom and a little fear thrown in, such as is part of the soldier's life. But then in addition one has facing one an unattractive sample of one's own countrymen, which must make the situation even more difficult. Another tribute I think we should pay is to the police for the great improvements that they have shown in staff duties, training and equipment over the past few years. We must bear in mind that the cost of policing today is immense. In passing, let me tell your Lordships that I was told the other day that there are probably now a larger number of Members of this House who are serving or who have recently served in the police force than ever before.
I should like to speak about this voluminous Bill. What is all-important in my view is that whatever we are doing under this Bill, we must try all we can to narrow the vital gap between the police and the people. The relations between the people and the police will never be pure affection: it will be a kind of bitter sweet relationship. Whatever we do, we must do what we can to improve that situation and to narrow the gap.
We must remember, too, that policing today is more difficult. On the practical side, there is greater speed of movement—that is, criminals as well as others, and work starts on the street without any warning. It is the juniors who have to take those first decisions. The decisions will not be remote decisions taken after some conference. I think I am right in saying that the trouble that started in Bristol not so long ago, and in Brixton too, started as a result of small incidents which happened on the pavement edge and blew up.
Like the right reverend Prelate, I should like to go straight to Clause 100. There must be a firm responsibility on the police authorities for finding their views and for co-operation with the police to be carried through. Of course chief officers are wholly responsible for the operational side, but they need not be so secretive as some senior police officers are from time to time. I believe that now much progress has taken place in Brixton and this is a matter to which the noble and learned Lord, Lord Scarman, referred. I have been a number of times to see the committee sitting. It is open to the public and it is a great credit to the commander.
But what about progress in far away parts of the country? Sooner or later I hope that we will hear from the Home Office what has been happening in other parts of the country. We want to see useful progress. We do not want to fall back into an atmosphere where clichés are bandied about. Help must be real, practical help and active help as regards preventing crime, not just lip-service.
I should like to refer to a matter which is left out of the Bill. There is no reference to leadership. I have found in my experience that the weakness of our police service is to be found from time to time in the higher echelons. The leading strata are short of intellectual resources, if I can put it that way, or perhaps a kinder description would be "lack of imagination". There has 443 been scope for easy "power seeking" since the 1964 Act, and there have been too many scraps between chief officers and police authorities. What we want within a service such as our police are those matters to which the noble and learned Lord, Lord Scarman, referred—for example, discipline.
There has hardly been any reference to the Metropolitan Police in the Bill. I am not the only person who has made reference to this matter. I do not know what changes I want to see except that I feel there must be some changes. I should like to see some change and, if nothing else, we should have inspections carried through by the Home Office with the same inspectorate as are responsible for the other forces in the country.
Briefly, I should like to make two short points. The first refers to those at the top of the service and the second refers to some at the bottom. In my view the 65 age limit for chief officers is out of step with service under the Crown. The age of 60 is the normal retiring limit for ambassadors and civil servants, but generals would be earlier still. I should like to suggest that the age of 60 is better than 65. If appointed too young they would be thinking of their next job and then, if disappointed, they would stay too long, go stale and lose their originality. They find themselves in an extremely difficult situation as to what their next position may be.
At the junior end of the police service, it is all wrong to give the newly recruited men full police powers from their first day before they have even received one half hour of training. However well looked after in theory in their early days, they could be sworn in later. The training which our police receive is much shorter than that required for most police services on the continent.
Part I of the Bill, which deals with stop, search and detain, will be looked at in Committee in some detail. It may not make a great deal of difference to a police constable in, say, Leeds if his colleagues in Toxteth over the Pennines have the power and he has not. From my contacts with both I have not, in practice, seen much difference; but on the other hand, I am sure that it must be right that we should have a power of this nature uniform throughout the country.
Parts II, III, IV and V strike me as being particularly sensitive, and again they will have to be looked at with very great care. We must remember that the police grew up and have lived like the rest of us. We have all grown up together in this country of ours. They must resist a tendency to become withdrawn and, at worse, they should not look upon themselves as a form of priesthood. That would be a very bad step because it would be widening the gap between the police and the public which I want to see narrowed.
We must be realistic about this Bill. The police have a special role and they cannot work alone. In practice they need help from the rest of us and they must not turn down help when it is offered. All of us should seek for ways in which to narrow the gap. The police and the public must work together because that will lead to a happier country.
§ 5.58 p.m.
§ Lord Hemingford
My Lords, I should like to mention one small part of the Bill, and I will do it quickly because the noble Lord, Lord Ardwick, has already cantered entertainingly over the course. I am concerned with the clauses which deal with material acquired or created for the purposes of journalism. I should say that I speak as editorial director of Westminster Press and as a member of the British Executive of the International Press Institute.
A large majority of journalists and well-informed editors are now convinced that these references should be deleted from the Bill. Indeed, I am certain that there has never before been such a consensus of agreement among editors on any subject. Editors are not inclined to agree with each other, and it is a good thing that they are not. But on this particular issue there is near unanimity among the most senior editorial voices in the country.
At first sight this may seem odd. What the Bill says in essence is that journalistic material should be given the same kind of protection from police search as that which is held by doctors, lawyers and priests. At first sight that may seem a reasonable proposition. Why, then, has it come to be so strongly opposed by those who would actually have to defend their material if it were not given special exemption? I believe that there are two primary reasons, which I should like to explain. But first I must acknowledge that it took us some time to reach these conclusions. When the Bill was first published in the last Parliament it was subjected to considerable criticism on the ground that it gave the police excessive power. A number of newspapers and journalists' organisations joined the clamour, some of them arguing that journalistic information ought to be protected.
I am not aware that any particular formula for achieving this was suggested by anyone at the time. In the event, the Government introduced amendments along the lines incorporated in the Bill as we now have it. While these were still in draft, I myself and other journalists expressed to the Home Office our reservations about the remedy being proposed, but our arguments did not prevail at that time because the Home Office took the not unreasonable view that they were responding to pressure from journalists and had done their best to be accommodating.
I mention all this because it has often been suggested in the subsequent debate that the precise language which we now have was actually proposed or asked for by the press. In fact, no specific remedy was requested and therefore the language that we have came from within the Home Office. I think that the point needs labouring because when the amendments were published they raised immediate doubts in many journalists' minds. A new debate then began in press circles which centred on whether the remedy proposed by the Government was worse than the disease it was designed to cure. I must accept that there was some inconsistency in the press reaction over a period of time. It is a complex issue. But to my knowledge it is not correct to say that any specific proposal came from the press. Protection was sought by some. but not in these precise terms.
445 I now turn to the reasons why the majority of senior editors in the country have concluded that they would prefer no special protection. There are two of principle and at least one of practicality. To take the last point first, it is clear that the concept of,material acquired or created for the purposes of journalismcauses major difficulties of definition, particularly for broadcasters. To take an example with which your Lordships may be familiar, in Miss Esther Rantzen's Sunday evening television show, "That's Life", which material would be covered? Where does the journalism end and the entertainment begin? And in the realm of written material, where does material gathered for the purposes of book publication begin and where does journalism end? It was these and other difficulties which led to the proposal being made in another place to substitute the word "publication" for the word "journalism", which some journalists would still prefer but which was held at the time to be too broad.
I now come to the objections of principle. First, as the noble Lord, Lord Ardwick, said, there is a fear that the elevation of,material acquired or created for the purposes of journalisminto a special position will make it more likely that the courts are forced into defining a journalist. The point was particularly well put by the Guardian in a leading article last summer, which I quote:Anyone who for a moment considers any likely court argument over that definition must realise what the court will inevitably have to decide is not 'Was this journalism?' but 'Was it information gathered by a journalist?The belief is widely held among editors that the attempt to make a distinction between journalism and a journalist will not work in practice. The Guardian also pointed out in the same article that, in the context of discussions within UNESCO on the new world information order, the British position was:rigorously opposed to any proposal to give journalists a status which discriminates in their favour by comparison with other individuals or which could, through a form of licensing, subject them to a degree of government control".The danger that the present language will turn out to have done just that is not worth risking, especially given the strength of press feeling on the issue.
Secondly, the press in Britain, unshielded as in the United States by a constitutional amendment, sets great store by the fact that its position under law is exactly the same as that of any other citizens and of its readers. We have no press law in this country, and the press do not want any statutory privileges not accorded to the ordinary citizen. That is why the Media Law Group and others have proposed that the higher degree of protection proffered to the so-called "caring professions" should in fact be accorded to everybody. This issue has nothing whatever to do with ad hoc arrangements made for journalists, such as seats in a court or a press box at a football match, which some people have suggested puts the press in a special position. The point is that under law no distinction is made between journalists and ordinary citizens.
As your Lordships have heard, a letter embodying these sentiments has been signed by a wholly unprecedented number of editors. I need not mention many of them because the noble Lord, Lord Ardwick, has 446 already done so. However, the noble Lord referred to the number of provincial newspaper editors who were on that list, and I can say that it included the editors of 45 regional evening papers, 13 regional morning papers, 4 regional Sunday papers and over 120 weekly newspapers. It also included people like the editors of the Economist, the New Statesman, New Society, the Illustrated London News, The Times Educational Supplement and the editorial director of Business Press International, which publishes the largest number of magazines in the country. Therefore, I think it is clear that support is very widespread. As the noble Lord, Lord Ardwick, has already said, the National Union of Journalists is also of the same view, and so is the Newspaper Society, representing newspaper employers in the provinces.
The Government have offered to delete references to journalism if there is a clear consensus among the press in favour of doing so. I applaud them for that, and I believe that the details that we have heard today constitute precisely that consensus. Of course, there will be some dissent on a matter of this kind, and in this case it is represented by the Press Council, the Institute of Journalists and the Guild of British Newspaper Editors, which is very much split on the issue but which has formally opted for the status quo.
But faced with the strength of support for removing references to journalism which I have mentioned, I believe that the Government would have to have exceptionally strong reasons for leaving in such references. By their own admission they do not have such reasons, and therefore I believe that we could make a contribution—albeit a small one—to reducing the enormous length of this Bill by striking out all references to journalistic material.
§ 6.9 p.m.
§ Lord Plant
My Lords, it has been said that the police have no voice in this House. I have been closely connected with the Police Federation since the Edmund-Davies police pay inquiry and I shall endeavour to put the views of the police generally. The Royal Commission on Criminal Procedures was charged by the last Labour Government with the task of seeking a balance between the interests of justice and the community and those of the suspect. The Police Federation gave evidence to the Royal Commission and said that much of the discussion of this subject is pitched at an academic level. Police officers deal with the realities of crime. Maybe the police view is closer to the general wishes of the community. The Police Federation proposals were aimed at clarifying some of the obscurities which at present surround the powers of the police in the investigation of crime. They were not seeking draconian powers for the police to exercise on their fellow citizens. They wanted a clear definition of powers and the removal of ambiguities.
The first Police and Criminal Evidence Bill was closely related to the findings of the Royal Commission, although it fell short of a number of key proposals in the Philips report. Nonetheless, the Police Federation, the Superintendents' Association, and ACPO welcomed it. Understandably it attracted a good deal of criticism, indeed hostility, which was mainly directed to the Bill as an infringement of 447 personal liability. The Government made many concessions to special groups during the Committee stages of the first Bill, and weakened important parts of it. A situation was created that the opponents of the first Bill saw nothing good in it at all, or indeed the current Bill, while the police, who were at the sharp end, doubt whether the present Bill will give them the tools to do the job.
Maybe it will become a lawyer's paradise. In any case it will create a bureaucratic nightmare of recording and time schedules. The main complaint of the man whom we charge to fight crime and endeavour to maintain law and order is that the Government, in placating objectors, have moved further from the main recommendations of the Royal Commission. The real fear now is that in providing this general protection the unscrupulous will be advantaged to the discomfort not only of the police but the citizens whom the police serve. The noble and learned Lord the Lord Chancellor carefully avoided dealing with this worry of the police.
The Bill has not given sufficient consideration to the new training that will be needed for its successful implementation. The Association of Chief Police Officers has said that there is no nationally agreed system or syllabus for refresher training, and that there should be centrally-prepared training packages for any complex new legislation rather than each force prepare its own. The Scarman Report has compelled more training, but it is threatened by inadequate resources. One week's final course training for probationers is not enough. This Bill cannot be immediately implemented as Parliament wishes unless there are greater resources in money and manpower. Will this Government provide the extra finance and resources?
This Bill in the longer term might assist the police, but changes are needed if we are to achieve the objectives laid down by the noble Leader of this House when in another place. The noble Viscount, Lord Whitelaw, said:the present state of the law was unclear and contained many indefensible anomalies; the police needed adequate and clear powers to conduct the fight against crime, and the public needed to have proper safeguards against any abuse of such powers; the measures played an essential part in an overall strategy designed to create more effective policing.".I was present at the Police Federation Conference in 1982 when the noble Viscount underlined without reservation his views.
The Bill has been the subject of intense public debate, much of it ill-informed and sometimes deliberately misleading. The Government's anxiety to preserve fairness to the suspect has upset the delicate balance of their obligations to the community to protect its members from wrongdoers. I believe that the Government have lost an opportunity given by the Royal Corn mission. This Bill does not achieve what it set out to do. I note however that no member of the Royal Commission has so far opposed the Bill.
The orchestrated opposition to the Bill said that it is a police Bill, and one which extends powers. On the contrary, there is a reduction of police powers. The National Campaign against the Police Bill issued pamphlets. One leaflet said. "No Police Bill". Another said that the Government were out to destroy rights and freedoms that working people have fought for for 448 centuries. That is rubbish. Police effectiveness may well be curtailed by this Bill. Far from new "draconian new powers" the Bill merely codifies, and unfortunately curtails, actions which have been carried out and never challenged.
Let me illustrate. One, power to stop and search. This power already exists in some areas and police officers have always carried out the action without a defined power throughout the country. They will now have to record the searches and supply a copy of the record if required. Two, power to hold road checks. Police have held road checks for many years under the Road Traffic Act 1931. Where this has been done burglaries and crimes have been reduced in the area. They will now need the authority of a superintendent, and this can only be granted in certain circumstances.
Three, power to search for evidence. This is a new power, but by its nature its application is restricted mainly to the investigation of major commercial fraud. Four, power to search premises after arrest. This power has been recognised at common law for many years. Five, power to arrest for any offence. This is simply a rationalisation of powers of arrest and provides police with the ability to effectively enforce the law by arresting, where to proceed by summons is inappropriate. It must be noted that this power will be available only where the actions of a suspect render it necessary and that co-operation will negate the power of arrest. The provisions repeal over 70 existing powers of arrest without warrant.
Six, power to detain. The Bill imposes strict conditions upon detention either before or after charge and provides for specific reviews by an inspector after six hours and thereafter at 9-hourly intervals. There are also strict limitations upon the length of detention without charge. Present powers since 1902 to consult solicitors remain unchanged. Seven, power to search detained persons. It is inherent in the duties of a police officer to search prisoners to protect life and property. The Bill retains this principle but places limitations upon the extent of the search, in particular intimate body searches. Eight, power to take samples. Again this "power" is a curtailment of current police practice. Nine, the power to take fingerprints. This new power merely removes the authority from magistrates to a senior police officer after charge. This is not an exhaustive list but it illustrates the fact that the Bill, while generally presented as a "police powers" measure, is in fact strongly inclined towards the protection of the suspect. The delicate balance has been tipped in a manner that will enable the professional criminal to exploit the law to his advantage and to the disadvantage of the community at large.
The police are disappointed with this Bill. They have always wanted a Bill which would simplify, codify and clarify police powers. The Police Federation does not think that this present Bill does that. It does not go sufficiently far on disciplinary provisions. It erects barriers against reasonable police search activities to prevent crime. For instance, they cannot ask Sikhs and Jews to remove their hats, or initiate intimate body searches for drugs and small, expensive stolen articles.
449 Many will say that this is a drug-pushers' charter. The hardened professional criminal, when detained for a serious arrestable offence, will be aware of the four provisions: one, the reviews which must take place; two, his entitlement to eight hours' rest free from interview; three, his entitlement to a break from interviews every two hours and for meals at reasonable times; and four, the requirement after 36 hours, if he has not been charged, for an inter-partes hearing when the police will have to disclose the evidence against him to justify further detention. The criminal will discover the strength of the police case at a very early stage.
The Police Federation are concerned that the grade of custody officer is not designated as sergeant without other duties. He will be left an Aunt Sally subject to great pressures of recording and discipline. Maybe a travelling lawyer will be needed. The police are anxious to make community policing work, and work satisfactorily.
This Bill has defects. Even though most noble Lords have given it a favourable Second Reading, I hope to table certain amendments which may enable me to support the Bill and to underwrite what the noble Lord, Lord Scarman, said: that the Bill will test the revising skills of this House.
§ 6.22 p.m.
§ Baroness Carnegy of Lour
My Lords, there is clearly agreement among your Lordships, and I believe it reflects agreement across the country as a whole, that this Bill will be judged according to three overriding criteria. It must be realistic, up-to-date and workable in the circumstances of today. It must aim at the clearest possible understanding and acceptance by all the public, and by the police themselves, of the framework within which the police operate. It must ensure that that framework is properly balanced on the one hand, as many noble Lords have said, by safeguards for individual citizens as they go about their normal business; and, on the other, by affording sufficient scope for the police to do their job—sufficient scope, but no more than that. That implies adequate professionalism to make use of that scope.
There is of course nothing new in this. There have always been criteria such as these by which British police legislation has been judged. What is new, and what nobody has mentioned so far, is that a number of very important changes have been taking place in our society, and some of these changes have enormous implications for the way we do our policing and for other matters contained in this Bill. These changes make the overriding criteria I have just mentioned that much more difficult to meet.
I want to mention only two of these changes. First, there is the fact that we have become a plural multicultural society—and by that I do not just mean that we now contain people of many different ethnic origins. We are a far less homogeneous society than we were, and in many ways we are richer because of it; but we also hold many extremely varied values. Our points of view vary widely, our habits, our beliefs. We have varied expectations of ourselves, of our children, of 450 schools, of the welfare state and of one another. It is therefore not surprising that we also tend to have varied, sometimes dangerously varied, expectations of the police. That is a fact that has considerable implications for this Bill and puts a heavy responsibility on this House.
Secondly, and very importantly, there is the effect on our perceptions of the police of what comes to us via the media. Granted, most of us are probably better informed now about how the police work than when our contact was simply the odd friend who was a policeman or the Bobby we got to know on the beat. The television series about the Thames Valley Police and other such programmes have done much to enhance our understanding.
But there is the other side, too. We have to accept that many television and radio discussions are structured to entertain by conflict as well as to inform by fact. Ideas become categorised into black and white; consensus is boring, so tends to be taboo. The viewers expect political people to hold strong, opposing views on almost everything, including police matters. Political people cannot be blamed for responding to that expectation. Intentionally or not, what comes to us through media discussion is that there is far less agreement among the people taking part than in fact probably exists. It does not very often sound as if what they are talking about could be policing by consent.
Likewise, there is what we see and hear of the police in action in the television news. I do not have to remind your Lordships that to watch hundreds of police, night after night, before your eyes, struggling to keep two groups of colleagues apart—visual images such as those we have seen these past weeks—arouses far stronger emotions than the written word would ever do about what is in any case a very difficult piece of policing. There is also, alas, the even more familiar scene of the lady protestors being removed from the site of the sit-in; the football hooligans being bundled into a van; the police dogs hunting the woods for a murderer; or the blow by blow accounts of times when the activities of the police occasionally go awry or individual policemen get it wrong.
All these things are happening, and they have to be reported; but it is easy, because of the very nature of the media, gradually to lose sight of the regular day-to-day successful policing by consent, the good relationships with the public, the widespread public support for the police when their job is particularly difficult—and one could go on. So many of the social changes that are taking place at this time make the problems to be solved more difficult.
To read the press during the passage of this legislation through another place one might have concluded that the Bill had been plucked from the air with little thought of the new conditions pertaining in our society, with little thought of why much of the present legislation is inadequate, with little attempt at redressing serious imbalances which now exist, and with little attempt to consult anybody or draw on anybody's experience. In fact, as has already been pointed out by a number of your Lordships, the Bill is a result of long and careful consultation and thought: the whole process which resulted in the Royal 451 Commission report, the report by Lord Scarman on the Brixton troubles, the public discussion of the last Government's Bill before the general election. There has been very wide discussion indeed; and although all the details of the Bill will never satisfy everybody, I believe it is now very much nearer what the public is looking for than at the outset most of us thought possible.
I have not had the opportunity to read the comments of the Association of Chief Police Officers, but it seems to me there are enormous improvements in clarity in the Bill as to what the police can and cannot do which will make the law much easier for ordinary people to accept. I confess to a regret shared with the noble and learned Lord, Lord Elwyn-Jones, that the legislation proposing the introduction of an independent prosecution service has not come before Parliament ahead of this Bill rather than after it. The Scottish experience—which is my very limited experience—suggests that the separation of the police from the role of prosecution does make quite a big difference to the relationship between the police and the public. To that extent, discussion of that legislation would have helped forward discussion of this present Bill.
To my mind, in the Bill great attention is paid to balance. There are many new and stringent safeguards to help the police know just exactly where they are so that they keep strictly within the legal framework, even in the heat of the moment.
It is evident that as we go through the Bill in detail your Lordships will, from your wide experience, have a penetrating look at many clauses. I would only ask that in the process we do not lose sight of the wood because we are so interested in the trees. The work your Lordships will do on this Bill is of crucial importance to the way we in Britain see ourselves as a society; the way we relate to one another, care for one another; the way we recognise our interdependence upon one another; the way we respond to the weakest among us and encourage gentleness and understanding by the strong. That is closely linked to the way we all, including the members of the police, see the role of the police.
The noble and learned Lords, Lord Denning and Lord Scarman, have welcomed the Bill in principle. Lord Denning has told us that the present law is a muddle. Let us hope that we in this House will feel able to work and co-operate constructively together to sort out that muddle and to get the Bill absolutely right.
§ 6.31 p.m.
§ Lord Monson
My Lords. I should like to join other noble Lords in congratulating the right reverend Prelate on his maiden speech. I particularly liked the most constructive suggestions he made, tentatively, as befits a maiden speaker, that the police should identify themselves in writing when conducting a stop and search operation, and that those detained at a police station under the provisions of Part IV should be given a card spelling out their right to contact their family and their solicitor. Both these suggestions are well worth further consideration in Committee.
452 I intend to confine my remarks essentially to no more than half a dozen clauses. But, first, may I comment on the Bill as a whole? My impression is that, allowing for the inevitable complexity of the subject matter, it is drafted in unusually straightforward and easily comprehensible English. The first part of Clause 54, for example, is a model of clarity, certainly compared with much recent statute law. There are indeed a few ambiguities and grey areas in the Bill, but they are not stylistic ambiguities or grey areas. Whoever may be responsible for such relatively clear-cut English deserves to be congratulated.
My first reservation on the Bill concerns the stop and search provisions contained in Part I. Of course it is true that similar provisions have applied for a long time in the Metropolitan Police area and elsewhere. Be that as it may, my instinctive philosophical distaste for the practice was reinforced by a practical experience as a schoolboy in the late 1940s. (I explained this incident in detail while we were debating the Criminal Justice (Scotland) Bill a few years ago; so I do not want to bore your Lordships with it a second time round). That said, if it is considered that inclusion of these powers is the lesser of two evils—I think that narrowly I have to come down on the side of the Government in this one—I fervently hope that the police will use these powers sparingly, not least for their own benefit in the longer term. What use is it to increase the conviction rate by 2 per cent. or 3 per cent. in the short term if the result is to alienate a substantial section of the population? This point has been well made from many quarters of the House, notably by the noble Lord, Lord Hooson, the noble Baroness, Lady Ewart-Biggs, and the noble Lord, Lord Morris. Is it not better to let a handful of guilty people slip through the net than to turn hundreds, and possibly' thousands, of mainly young people against the police and against authority in general as a result of undergoing the inevitable humiliation of a search carried out in public at a time when the individuals concerned were, in fact, wholly innocent?
Like many other noble Lords, I am unhappy about the provisions contained in Clauses 39 to 42 inclusive for detaining suspects without charging them. The critics are surely right in arguing that the 24-hour maximum period of detention in respect of the less serious suspected offences and the 92-hour maximum in respect of the more serious ones ought, in each case, to be shortened. However, I think these maxima would be slightly less objectionable if it were not for the provisions of Clauses 54 and 56 which permit the police, in certain circumstances, to prevent the detained person's family and solicitor from finding out what on earth has happened to him or her for as long as 36 hours. It is not hard to imagine the terrible worry and distress of a wife who, for two nights and a day, must inevitably imagine that her husband has been killed in a road accident when all along he has been safely incarcerated in a police station.
As for "bent" solicitors, no doubt they exist, but are there really in Britain solicitors so unscrupulous that what the police consider premature notification to them of their client's detention could result in "physical injury to other persons", as suggested in Clause 56(7)(a)?
453 In contrast, on the question of finger-printing without consent, covered by Clauses 26 and 58, I must part company in this one instance with my colleagues in the Society for Individual Freedom. Not only is being finger-printed much less humiliating than being breathalysed—or so I would imagine, having only witnessed somebody being breathalysed—but the process, unlike being breathalysed, is neither uncomfortable, nor potentially dangerous, to those suffering from sinus conditions or chronic middle-ear trouble. Furthermore, nobody, surely, other than those intending to commit a crime, can possibly have any worries about their fingerprints being on record, for whatever length of time. Unlike photographs, footprints, voice recordings and so on, there is no way that fingerprints could ever be used to one's detriment, even if by some extraordinary mischance they fell into the wrong hands.
What many people find perhaps the most objectionable feature of the Bill as it comes to us is the provision for intimate searches contained in Clause 53. If this procedure were perpetrated by anybody other than a doctor, policeman or policewoman or, I suppose, a Customs and Excise officer, what is called "an intimate search" would constitute an indecent assault of the most serious nature, meriting a substantial term of imprisonment. The fact that the present powers that the police have are even wider is no excuse. It is a scandal that these powers have lasted as long as they have.
About 15 years ago I was told by the parents of a girl, from an extremely good family, incidentally, that their daughter had recently been forcibly subjected to an intimate search by the police on the grounds that somebody who lived in the same block of bedsitters in Earls Court as herself, but whom she scarcely knew, had been found in possession of cannabis. Whether or not the police acted within their rights, I do not know: the point is that the incident occurred. Perhaps unusually for the late 1960s the girl was a virgin, and she found the incident extremely distressing and traumatic. No doubt even if she had not been a virgin she would have found it almost as distressing. As Mr. Auheron Waugh has pointed out recently, once innocent people start to be searched in this way in any numbers there will be hell to pay.
There is another factor to consider. Anybody forcibly resisting such a search, as I am sure many innocent people would tend to do, would, I believe, need as many as four, five, or six people to hold him down. The noble Lord, Lord Pitt of Hampstead, who is to follow me will, I am sure, correct me if my medical assumptions or terminology are incorrect. I would imagine that in order to avoid injury to the struggling individual, a doctor would have to administer a muscle relaxant and/or a tranquiliser intravenously. Can we really expect the medical profession to co-operate in such activities? I believe that the Government are arming themselves with a grisly sledgehammer to crack a very few nuts.
Finally, my Lords, I come to the definition of "serious arrestable offence" contained in Clause 109 and in Schedule 5. In some respects, the definitions are admirably precise, but in some others they are either 454 too imprecise or too subjective. Here I am afraid that I shall have to agree with the noble and learned Lord, Lord Elwyn-Jones, rather than the noble and learned Lord the Lord Chancellor. I should like to know, for example—and perhaps the noble Lord, Lord Elton, could tell me this when he winds up—whether manslaughter includes causing death by dangerous driving; because if the latter is not already considered a serious arrestable offence, it certainly ought to be. I should also like to know exactly how one defines "substantial financial gain to any person", which is set out in Clause 109(6)(e). Should the word "substantial" not be based upon some positive figure which remains constant in real terms, such as the average annual wage in manufacturing industry, or something of that sort? Against this, subsection (6)(b) would appear to bring too many people potentially into the net of seriously arrestable offences. As drafted, "serious interference … with the investigation" of even an extremely petty offence would itself constitute a serious arrestable offence and, as such, the subsection would seem to go a little too far.
This Bill has been improved considerably since it first received its Second Reading in another place. The Back-Benchers there seem to have done an excellent job in exacting a number of liberalising concessions from Ministers. Let us hope that this House will carry on the good work.
§ 6.42 p.m.
§ Lord Pitt of Hampstead
My Lords, I, too, want to say how much I enjoyed the speech of the right reverend Prelate, to congratulate him on his maiden speech and to say how much I agree with a great deal of what he said. This is probably one of the most important Bills that has come to your Lordships' House and a Bill with which your Lordships are well equipped to deal. I hope that we shall deal with it well. As the noble and learned Lord the Lord Chancellor has said, the Bill endeavours to strike a balance between the powers that we give to the police so that they can do the important and onerous job which we place on them and also the safeguards which the ordinary citizens must have. I, for one, am not so sure that the balance is well struck. There are several items about the Bill which worry me and I should like to relate them in the few minutes during which I am to address your Lordships.
First of all, there is the stop and search procedure. I should have thought, from the evidence of the PSI on the Metropolitan Police, that it does not appear that there is any real gain; in other words, that the gain from stopping and searching so far as London is concerned—and London is the place where it is used most—does not outweigh the damage that is being done by these stops and searches. In this report, in the summary that I have here, they point out that the police concentrate on groups and that the group most likely to be searched are young people, men and people of West Indian origin, and that young men of West Indian origin have the highest chance of being stopped. That coincides with what I am told all the time by my West Indian friends and acquaintances.
Whether it is right to do that for the percentage gain in terms of the number of crimes that are revealed seems to be very doubtful; because even the nice 455 100,000 figure which is given here after 1½ million searches a year is, of course, 1 in 15—which means that 14 people are stopped and searched who are innocent of any offence and nothing is revealed. It seems to me that this is not a very sensible way of keeping the public on the side of the police. Therefore, far from extending stop and search to the rest of the country (where, in fact, it does not exist at the moment), I should have thought that serious consideration should be given to abolishing it altogether. I would invite your Lordships to give serious thought to abolishing it altogether.
Then there is the question of search warrants. Now, we are being invited to allow the police to search premises for evidence, even premises of people who are not suspected of any crime. This seems to me to be dangerous and can only be warranted if one can be satisfied that it is essential; because the evidence at the moment is that these searches are carried out in a way which creates the maximum amount of ill will. I am sure that your Lordships remember the searches which took place in Railton Road after the Brixton riots. Reports of the complaints board indicated their concern about the way the searches were carried out. I am sure that most Members of your Lordships' House saw the pictures in the newspapers and on television of the sort of damage that was done to people's premises. Are we going to have a larger amount of that sort of performance?
Patients of mine came to me with complaints of their doors having been kicked down and of their being assaulted in their houses because the police were searching for something or other. On one occasion, the police said that it was because they saw somebody go through that house who was suspected of a crime. I am not suggesting that search warrants are necessary. What I am suggesting is that if we are going to have these searches there needs to be more safeguards against abuse than there seem to be at the present time. I am not giving this as a proposal but, if the police were expected to make good the state of the place after they had finished searching, that might be a curb, in effect, which would get them at least to respect people's property in a way that they do not at the moment.
There has been a little worry about Clauses 9 and 10. While Clause 9(2) seems to exclude confidential material, Clause 9(1) and Schedule 1, paragraph 3 seem to go in the opposite direction. Therefore, although the material is excluded, it can be got at in another way. Therefore, I am forced to ask the Government two questions of which I have given notice to the noble Lord, Lord Elton. First, will the Government give an assurance that the police will not be permitted to search for and seize medical records and samples under already existing legislation? The point was clear from Clause 9(2) but it is not so clear from Schedule 1(3). Secondly, I should also like to ask the Government whether they can confirm that Schedule 1(3) does not make it possible for a judge to make an order or issue a warrant to search for material that would otherwise be excluded under this Bill using the provisions of existing Acts. I hope that the noble Lord can give answers to those questions, because they are very important indeed.
I do not know how Members of your Lordships' House feel about this but to detain somebody for 92 456 hours is a form of mental torture. Should we not be asking to be more satisfied that this extension of the power to detain without charge is necessary? So far I have heard no argument which convinces me that it is necessary. Therefore I hope that your Lordships will in fact insist on being satisfied that this is an essential requirement, because it is my view that while the police should be given all the powers they need to do their job they should not have excessive powers. We should not—and I underline the word "not"—indulge in any form of torture and I regard this long detention of any individual as a form of mental torture.
There is also the question of intimate searches. I agree with the noble Lord, Lord Monson, who preceded me. I would need to be convinced that it was absolutely essential for people to be subjected to this degrading treatment. The medical profession is quite adament. We are not going to examine people against their will. We will not carry out intimate searches on any individual who has not consented. This is quite definite. If the person resists, as the noble Lord, Lord Monson, pointed out, there would have to be ways of making the person relax. It seems to me that we are on a very, very slippery slope when we agree to these intimate searches.
Finally, I hope we are going to get the complaints machinery right on this occasion. I want to read to your Lordships a letter which illustrates the way in which the behaviour of the police affects people—people like me—and the way the whole elementary disciplinary machinery and complaints board fails to satisfy the unhappy customer. I shall read this letter, which is from my dentist.On Friday 9th April, I went to my Surgery to cut the lawn and do some gardening. I had finished cutting the lawn at the back and front of the Surgery, placed some manure and fertilizer around the rose plants and began picking up some weeds. It was now about 6.30 p.m. In the garden, on the lawn were a black polythene sack (bin liner) almost full of freshly cut grass, garden tools: fork, Dutch hoe, spade etc. grass box from the lawn mower, a bag of Fison's manure. My car was parked at the gate, partly on the pavement.A black police van drove up at speed. This was followed by two cars. One was unmarked and had men in plain clothes. This car parked in front of mine. The other parked behind the van which parked close to the rear of my car. Two policemen jumped out of the van—one jumped over the wall. The two approached me very aggressively. A WPC walked through the gate and entered the forecourt of the premises. One of the two policemen—the one who jumped over the wall, asked me what I was doing there. He said he had a 999 call that there was a suspected burglar on these premises. I said I was the owner of the property, I am the dentist, I was doing my garden. He said, 'Tell me that again'. I said I was sorry, but I was the owner of the property, there was no burglary here. I was glad whoever 'phoned was so watchful, but there was no burglary'".He gave his name. I shall not mention his name. The letter continues:'I am the dentist, I am doing my garden, would you please leave me to get on'. He said, 'You black people are always breaking into houses around this area, what is your name?' I said, 'I am the owner of the place and the dentist'"—He gave his name again—'There it is on the sign before you (we were standing beside the sign). 'I am a Magistrate on the Bromley Bench'. I asked him, 'If I were a criminal would I come to do the garden for the owner of the place—with all these garden tools, bag full of freshly cut grass?' He said, 'You could have a Hi Fi or TV set under the grass for all I know'. I asked him if he wanted to search the bag. He did not reply. He turned to the other officer and said. 'We are arresting you, we are not satisfied that you are the owner of the property'. Both PCs grabbed my arms, one on each side, and started pulling me to the gate. They said they were taking me to the station. They were hostile and patronising in their manner.457The doors of the Surgery both back and front were open. The WPC asked one of the police officers if she should close the front door. He said, 'Yes'; she slammed the door closed and returned to assist her colleagues. The other policemen were now approaching to assist in removing me to the van. At this point my neighbour arrived and asked, 'What the hell is going on here?' I turned to her and said, 'These policemen are arresting me for burglaring my Surgery'. One policeman said, 'We are arresting him for not giving us his name' ".Note, my Lords, how many times he had mentioned his name.The neighbour said, 'You must be mad, he is the owner of the place: don't be ridiculous arresting the dentist, he is the dentist, he is my dentist'. The PC said, 'He did say so'. My neighbour said, 'He is a Magistrate'. Again the PC said, 'He did say so'.They released my arms, I took the keys from my pocket, opened the door and told the PCs, I shall be reporting their behaviour to their superiors. I went into the waiting room to 'phone my home. While I was doing this the two uniformed PCs followed me into the waiting room and began taunting and abusing me. I told them again I shall be reporting them for their behaviour. One PC who did all the questioning and was quite truculent said, 'Here, take my number, report me, by God, you are lucky not to be taken to the station'. He kept pointing his finger in my face, saying I was a disgrace. I moved away from them as they were getting aggressive and abusive in my waiting room. I then asked them to look at the police posters on the wall: they looked at the posters and police brochures in the waiting room and left without saying anything.I went immediately to the Lewisham Police Station where I asked to see the Inspector. A very polite young WPC came to ask if she could help me. I told her I should like to see the Inspector on duty. I told the Inspector that I have always been sympathetic to the police and defended them on many occasions but I was quite disturbed by the behaviour of his men who had been to my Surgery earlier that evening and it was his duty to do something about the attitude and behaviour of his men who were clearly racially bias and abusive.He said he was in the job a long time and knew when they did wrong. They were doing their duty. I said, 'You should not defend your men when they are wrong. I could now understand why the black community were alienated; the police need the confidence of the community'. He said he was not interested in this race talk. He said. 'I do not need the sympathy of black criminals, you should be glad not to be taken to the cell for the night'. I told him that his men were abusive and racially bias and his attitude had reinforced that opinion that he too was bias and was conveying his prejudice by his manner. I told him that I shall be making an official complaint and he asked me if I wanted to make the complaint there. I said, 'No, I shall make it elsewhere.'The fact is that, even if I wanted to make a complaint there the attitude of the Inspector, his lack of sensitivity, dissuaded me from doing so. I left the station at about 7.40 p.m. and arrived home about 8.00 p.m.He duly made his complaint and he was supported by the neighbour. I can read her letter. It says:Easter Monday of 1982 at approximately 1900 hours I happened to look out of my bedroom window and saw Mr."—the name was given—'car, plus a police car, parked in front of his surgery. I did not think too much about it until I returned to the window, saw two police cars plus a maria and two officers pushing and pulling … towards the gate. I then ran along to (his) place and asked in general: 'What are you doing? This is …, my dentist. One of the officers, who was dark-haired and approximately 5 foot 9 inches tall, replied: 'This man won't give us his name'"—Note that, my Lords.I then repeated that he was my dentist and also a magistrate. The officer then replied, 'He told us that'. I then said: 'But you are contradicting yourself. A moment ago you said he refused to tell you anything and what is more, you don't have to pull him about like a criminal'. He then explained that they received a 999 call, stating 'Suspect is entering the building now.' It supposedly came from someone at the back of the building: could have been a West Indian accent. To my knowledge there were no West Indians living on this estate at that time. Besides, no ordinary persons use that phraseology, that is police jargon, which I told the officer. He tried to justify his high-handed and belligerant behaviour by quoting all the 458 robberies committed in the area. I pointed out that had … been a burglar, he would not have parked his car out front, had garden tools and a sack of weeds lying about, which were visible, plus the front door open and lights burning on a very quiet Easter Monday evening. Some of the cars then departed. Two officers and Mr….then entered the surgery and I returned to my house. Some weeks later Inspector Grant came and took my statement. A year has passed since the incident, and to the best of my knowledge and recollection, all I have here stated is true.".In January 1983—it was not a full year which had passed—the dentist received this letter from the Police Complaints Board. It reads:The Police Complaints Board have now received the evidence of the police investigation into your complaints concerning the attitude of officers of the Metropolitan Police who dealt with an incident at your dental surgery on 9th April last. Enclosed is a note explaining the role of the Board in the complaints procedure.The officers who questioned you deny speaking aggressively to you or behaving in a hostile or patronising manner. They maintain they were trying to establish whether you were the occupier of the premises and state that you would not give them your name. It is clear, however, that you were released as soon as your neighbour confirmed your identity. The officers deny being abusive or pointing at you when you were in the surgery waiting room and they strongly deny any racial bias on their part. The Inspector at Lewisham Police Station to whom you reported the officers denies your allegations concerning his attitude towards you. The Deputy Commissioner regrets that you had cause to complain but, in the absence of independent evidence to refute the officers' denials, he does not consider there are grounds for disciplinary action. The Board have studied the papers and accepted this decision….".That was in spite of the corroboration that I read from his neighbour. It is things like these that it is necessary for us to prevent from continuing to happen. If in the course of the Bill we can make it possible for this sort of thing not to recur, then we shall have done a good job. I sincerely hope that your Lordships' House will do the job it is required to do.
§ 7.7 p.m.
§ Baroness Macleod of Borve
My Lords, before my few remarks this evening—and they will be few because I know that time is getting on—I wish to apologise to the whole House for my absence at the beginning of this debate. I should like especially to apologise to my noble and learned friend the Lord Chancellor. I know I missed a big speech of his: one that I have heard he presented absolutely brilliantly. The reason for my absence was sad in that a friend of your Lordships and indeed of all of us—Lord Howe—died very suddenly last week. His funeral took place this afternoon and, as a very near neighbour, I wished to go to the funeral. He was a very great man in many ways; and the Navy, law and order and youth were just some of the many things he was interested in. We had a wonderful and indeed very uplifting service. I, as a longstanding magistrate (as he was) knew that he would have wished to have been in this Chamber this evening; and so I felt that I should go to his funeral. I apologise for my absence and I hope that no discourtesy is taken. Certainly none was meant.
This is a very important Bill, as the noble Lord, Lord Pitt, said. It has been amply discussed for well over two years. It has been twice in various ways through the other place and it has now come to us. In reading the Bill and taking it in so far as I can, it seems to me that it is as self-explanatory a piece of legislation as any that has come before your Lordships' House. It seems that the criminal, the potential law-breaker, the law-abiding citizen and the police will now know 459 exactly where they stand, what the law is and what they do to infringe it.
But what has brought this Bill about? In my judgment, the fact that society has changed so much has made this Bill necessary. Crime has escalated; the attitude to law and order has changed. The abuse of the law is escalating by the day, and the abuse of persons has been escalating in that many people in this country now feel threatened. The Bill takes care of individual liberty and freedom of the subject. Those who have not infringed the law have nothing to fear—they never have had—because under this Bill the police will be made more accountable.
As I said, I shall be brief: but I wish to say a few words about one or two clauses, starting with Clause 1 and the new ability to stop and search for offensive weapons and stolen goods. Anybody like myself, who has many years' experience of sitting on the Bench and has had produced by the police prosecution offensive weapons found on young people, will have been horrified that it was not within the power of the police to stop and search for such weapons. The police will now have power to stop and search people going into football matches. They will have power to stop and search in amusement arcades where a very great deal of damage is done. They will have power to stop people within a shop when they are stealing, instead of the thief having to be followed and apprehended outside and then taken back to the shop. Surely all shopkeepers will he pleased with that.
In my view, this Bill will deter people from going into any public place when they are carrying offensive weapons. If they know that they might be apprehended by the police, the message will get through. So I hope that this Bill will deter people from carrying offensive weapons to stab and kill others. I also hope it will deter people from carrying guns when they go out to rob a bank or to hold up a garage, because they will know that if they are caught and have such a weapon it will be so much the worse for them. In this context, I hope that magistrates will be tough on those who are caught with offensive weapons.
Clause 53, which deals with intimate searches, has been referred to by other noble Lords. Unfortunately, in my experience it is vitally necessary, particularly because of the escalation of the importation of drugs. Capsules are hidden in various parts or taken by mouth. There are stories that I could tell your Lordships, but we have heard enough of those this afternoon.
I have one query for my noble friend on subsection (5) as to whether a constable should be able to carry out an intimate search. It seems to me that if an intimate search is carried out as under the Bill, at either a police station or a hospital, there will be somebody of senior rank at the police station who should be able to carry out the intimate search. I feel that a 19 year-old constable is not quite the person to do that particularly delicate job and I should prefer that it was done by someone of the medical profession.
Clause 57 deals with tape recorders used to take down evidence, instead of the police shorthand writer. Those of us who have followed various Bills through your Lordships' House and have been worried about videos and tapes have perhaps realised that nowadays 460 people can meddle with tapes. They can "scratch" tapes which is a very commonplace method of altering them. Furthermore, it is absolutely necessary that a tape shall be sealed directly it is finished.
Clauses 58 and 61 deal with fingerprinting. Again, these powers are necessary but I am wondering whether juveniles come under these clauses. I presume that they do; but I remember so well, as chairman of a very difficult juvenile court, that the parents of children whose fingerprints were necessary very rarely gave their consent. Under Clause 61, it is mandatory that fingerprints shall be destroyed at once if they are not needed in evidence, and I feel that that will help the parents of juveniles to have more faith and confidence, not only in the courts but in the police.
Part IV deals with the length of detention and I feel that 96 hours is correct. Up to now there has been no maximum; but the police can now detain for 24 hours and then go up to 96 hours. I entirely agree with this Bill because, although 96 hours would normally be much longer than the police would need, there are cases of multiple burglaries and importation of drugs where only one of a big gang may be apprehended. It is then vital that the person apprehended should be kept under police scrutiny, so that he cannot warn his colleagues outside. So I feel that 96 hours is just about right.
Part IX of the Bill, containing 21 clauses, and Schedule 4 deals with the police. I am delighted to read about the Police Complaints Authority, because under Schedule 4 there will be a chairman appointed with not less than eight members—I hope probably more—and not one of those members will have been a member of the police force. That will restore confidence in the public's mind. I am being slightly personal when I say on paragraph 3(4)(d) that I am slightly worried that nobody who is incapacitated by physical or mental illness will be able to be a member of this authority. There are a great number of people who have physical illnesses, and I am one of them. I would not be a member of the authority because I am much too old but many people who suffer from physical disabilities would be excellent members of the Police Complaints Authority. I should like the word "physical" to be struck out.
I am also worried about paragraph 9(2) of Schedule 4, under which the Police Complaints Authority can delegate any of their functions to a regional office. That brings to my mind visions of rubber stamping, of somebody in the office taking control. I wonder whether that is wise. I very much welcome—as, I know, do the police—the fact that the Bill provides that people who get into trouble with the police can at any stage be legally represented before disciplinary hearings. This is very wise.
The Bill which has been introduced by my noble and learned friend the Lord Chancellor is, in my view, long overdue. This country has gone a long way down the slippery slope to near anarchy. My great hope is that as a result of the Bill finally becoming law potential lawbreakers will be deterred, that crime figures will thereby be reduced and that once again our citizens will walk our streets without fear.
§ 7.22 p.m.
§ Baroness Masham of Ilion
My Lords, I should like to add my congratulations to the right reverend Prelate, especially for what he said about the dignity of man. I welcome the fact that in this Bill, constables on reasonable suspicion will be able to search persons and vehicles for stolen or prohibited articles, so long as it is done with politeness and tactfulness.
I have been the victim of having the window of my car broken and some articles taken. I now never leave anything in my car, but on that occasion it was the end of a long day. I was attending a meeting to which I had been invited at the Carlton Club—a place with steps—and I thought, for the convenience of those who had to lift me up the steps, that my parcel and small case might be the last straw.
After the meeting, at about 10.30 p.m., I went to my car to find it had been vandalised. I returned to the Carlton Club, and with the help of people there reported the theft to Vine Street police station. After a long wait and several telephone calls to the police, a very vague young policeman, with a "could not care less" attitude, turned up to take a statement. I could not leave until well after 1 a.m., much to the inconvenience of the Carlton Club.
When I reached the hotel where I was staying, there was a message saying the police had been trying to contact me at my home in Yorkshire. When I telephoned the police back—by then about 2 a.m.—I was told some of my things had been found by a member of the CID on a drug addict in a lavatory in Piccadilly. The only reason I got some of my things back was because that member of the CID had questioned the man, on suspicion. When I collected my articles a few days later from Vine Street police station, I asked the officer on duty if there was not a system of connecting the crimes reported by the victims with those being dealt with by the police, and he said, "Very often the left does not know what the right is doing".
With all the modern technology, I hope that in future things will improve. What I did learn from that incident was that victims of crime do not get much sympathy. Even being a full, paid-up member of the AA, they would not touch my car because it had been vandalised. There was broken glass everywhere, and I drove up to Yorkshire with a bit of plastic over my window, in freezing temperatures. What I learned also about the police from the two officers I was involved with was that, as individuals, they were as different as chalk is from cheese. One was unhelpful and unmotivated while the other was charming and keen. I have always been grateful for his vigilance.
Many of your Lordships will know of the growing concern about the increase of heroin and other dangerous drugs on our streets and in our countryside. It is vital, if we are going to rid our communities of this pestilence, that great effort and vigilance is needed, and I expect it will be necessary at times for intimate searches to be carried out. It is on the principle of Clause 53 that I should like to press the Minister for some further information. Perhaps I am wrong, but I get the impression that this Bill concentrates on terrorism and that perhaps not so much thought into the smuggling of drugs has been undertaken in its drafting.
462 I have a feeling of doubt, as do many people outside your Lordships' House, about the ethical wisdom of giving such a sensitive and private job as intimate body searching to a police constable in a police station, even though it has to be authorised by a senior officer. I have no hesitation in agreeing that searching may at times be necessary; but do we not have a code in this country that one is innocent until one is proved guilty? Is this not a job which should be undertaken by a police surgeon or a medically trained person?
It is known that sometimes some members of the police are not very tolerant towards homosexuals. In fact, some despise and loathe them. If they had the power to undertake intimate body searches, is it not possible that someone with a sadistic streak might take advantage of this power by hurting on purpose the person they are searching? Or if they are not medically trained to undertake internal examinations and do not know the pain which they can inflict, might this not be considered by some as an act of torture?
Compare the training of a police constable with that of a doctor. The knowledge of anatomy is important when undertaking internal examinations, and the knowledge of knowing where to search and how far to go is vital when looking for concealed objects. For instance, there are pockets in the vagina, and something might be concealed high up behind the cervix. It needs practice. How much practice will constables have, even though they will be of the same sex as the person they are searching?
If these intimate searches are to be undertaken in a police station, could I ask the Minister what equipment will be provided? Will there be a couch and a suitable light? Will there be a code of practice and procedure for the police to follow in the interest of health for all concerned? When working in intimate regions of the body, with some people there is a high risk of disease, such as herpes, AIDS, hepatitis and septicaemia. I do not want to be an alarmist, but this is an extremely important matter. It would not have been mentioned by several noble Lords and the noble Baroness, Lady Macleod of Borve, if it were not. Should damage be done to a detainee and they are found to be innocent, will compensation be paid, and by whom?
In my view, the hygiene and diplomacy needed will have to equal that of the medical procedures, otherwise there may be a serious setback in relationships between the general public and the police. The public need the police and the police need the help of the public. I hope that when the Bill leaves your Lordships' House the fears spoken of today will be resolved.
§ 7.29 p.m.
§ Lord Hutchinson of Lullington
My Lords, it is clear from this debate that your Lordships take the view that this is a Bill of pre-eminent importance. Certainly those of us who speak from these Benches take that view, as my noble friend Lord Hooson, who apologises for not being able to be here at the end of the debate, has already made very clear.
The noble and learned Lord, Lord Gardiner, when chairman of Justice, said that the test of a civilised and free society may be found in what happens when one 463 of its citizens enters a police station. That is a view I certainly take myself. It is to that aspect of the Bill that I wish mainly to refer. In saying that, I should like to add how much I enjoyed, as others did, the speech of the right reverend Prelate the Bishop of Gloucester and his emphasis on the dignity of the individual; in this case, the dignity of the supect. Much of what I say I hope will touch on that matter.
Those of us other than the police who, as it were, work at the coal face—that is, magistrates, clerks, judges and particularly, if I may say so, advocates—have awaited this Bill with high expectancy ever since the thoroughly deserved demise of the Criminal Law Revision Committee proposals in 1972—a demise brought about, incidentally, largely as a result of a notable debate in this House. I would say to your Lordships that the Bill reflects the imperfections of the Royal Commision. The Royal Commission's recommendations contained many excellent ideas. Its membership included many well-meaning, conscientious individuals, but what it lacked was the ability to draw together into a practical, workable, comprehensible and acceptable code of practice the many conflicting, though often excellent, proposals. If its members had included a practising member of the Criminal Bar or a practising criminal solicitor in London, or if its chairman—with all respect to the distinguished oriental historian who filled that job—had been an experienced criminal judge, such a synthesis might well have been achieved. As it is, the Bill, like the Royal Commission, has some excellent things in it. It also has things which in my opinion are totally unworkable. It also has provisions within it which. I suggest, are unacceptable.
The Bill will govern the relationship of the public and the police for the next decade and we all have a duty to see, do we not, that respect for the police should be maximised and that basic human rights should be preserved. There is no place here for party politics. It has been a disaster to associate the Government with a pro-police stance and the Opposition parties with a pink and wet bias towards the offender. Surely what we all want is quite simple to state: that the guilty are properly detected, properly convicted and properly sentenced and that the innocent are properly protected. It is the quality of justice with which we are concerned in this Bill and not some academic balance between the rights and the powers leading to the kind of auction which will only perpetuate the mess which instant legislation and judicial decision have created in the criminal process over the past 70 years.
I should like to welcome, as others have, some of the many good things in the Bill. It is a good idea to seek to codify in separate parts of one Bill the police powers of entry, search and seizure and of arrest and detention at a police station. It is a good idea to spell out codes, the processes and procedures to be followed in police stations. I welcome the spelling out of the rights and treatment of persons who attend a police station voluntarily, but I feel that provision should be made to inform them of those rights. I very much welcome the creation of a custody officer and a review officer. I welcome the regularisation of applications for warrants, the setting out of a suspect's right to legal 464 advice, the notification of his whereabouts to a friend and references to tape recordings, although one cannot help noticing that it is now at least 10 years since this proposal was first made. I welcome also the attempt to grapple separately with the problem of confessions.
I am glad to see the provisions for legal representation of police officers when charged with more serious offences, and Part X, which deals with community policing. In welcoming, as have most other speakers, the provisions for the complaints procedure, I would strongly have supported an independent element in that. I particularly welcome the contents of the draft codes. as did the noble and learned Lord, Lord Scarman. They badly need rearranging in an orderly form. We must surely be careful when we examine them that they do not afford a paradise for time-wasting lawyers nor a disciplinary minefield for police officers.
There is one great lack in the codes, as has already been pointed out. There is nothing said about what happens if they are breached. But, although the ideas are good, I find some clauses incomprehensible and unworkable. By way of example I should like to refer to Clauses 8 to 15 in Part II. These deal with search and seizure. I ask any noble Lord who is a magistrate to imagine himself—I am sure the noble Baroness, Lady Macleod, will be able to imagine herself—sitting in a room before the court sits with a police officer and, hopefully, the clerk, trying to decide whether or not to issue a search warrant. Such a magistrate will have to decide whether he has reasonable grounds for believing that an offence described by a police officer is, or is not, a serious arrestable offence. He will have to look at Clause 109. Is it likely to lead to one of six possible consequences? Having decided that, he will have to decide whether the items set out are likely to be of substantial value—not just of value—with other items, to the investigation of an offence; not to the proof of an offence but to the investigation of an offence. One only has to say to oneself: letters, diaries, records, address books, photographs. How can any magistrate faced with this question decide whether they would be of substantial value to the investigation of an offence?
Then the magistrate would have to go on to decide whether those items would be relevant as admissible evidence in the trial which might come later—and that would mean an appeal to his clerk. Not content with that, he would then have to decide whether the items would be privileged—Clause 11. Clause 10: would they be excluded material? Clause 9: would they be special procedure material? Would they be personal records? Would they be journalistic material? Would all these things be held in confidence? How is the magistrate to decide whether something is held in confidence? It took members of the Law Commission four or five years and a 240-page report to try to make up their mind—they were unable to do so—as to what was confidential and what was not. Having gone all through that process, the magistrate will then have to decide, if the items are none of those things, whether a warrant can be issued under any existing statute.
I simply say that these 15 clauses and 72 subsections are, in my opinion, almost unworkable. The noble and learned Lord the Lord Chancellor said that we must ask in Committee whether each clause fulfils the 465 criterion of clarity and certainty. I shall be interested to hear the Minister tell us whether he thinks those clauses fulfil that criterion.
I turn to the central point that I would seek to urge upon the House—the unacceptability of much of Part IV of the Bill. Part IV is the very centre and kernel of the Bill. There is the touchstone of this country's approach to human rights—the essential, crucial safeguard, as the noble and learned Lord, Lord Scarman, has said. I would urge upon your Lordships to consider this part of the Bill with the greatest care and concern. What happens when a person enters a police station? Basically, the matter surely is very simple. The right of silence enshrines the principle on which the whole of our adversarial system rests. No one can be forced to be his own betrayer. The prosecution must prove its case. This fundamental principle was examined by the Royal Commission and confirmed once again. It is not in question in the examination of this Bill. The Royal Commission rejected out of hand the attempt which was made in the Criminal Law Revision Committee's eleventh report to qualify and undermine the basis of the criminal procedure in this country.
When the individual enters the police station alone, this right, therefore, is his only constitutional protection. In a country that has no written constitution, this is starkly true. Therefore, the first thing is that he should be told of this right. The astonishing thing in this Bill, I would suggest, is that neither in Part IV nor in Part V is that right ever referred to. The caution enshrines that fundamental right. You need not say anything unless you wish to do so. The caution is not mentioned in this Bill.
There is in this Bill at the moment no statutory duty laid on the police to inform a person of his fundamental right. As your Lordships know, in the Bill provision is made for legal advice, for a friend to be informed, for reasons for the person's detention to be given, for intimate searches, and for fingerprinting, but there is no provision for informing him of his fundamental and only right when he goes into a police station. It was noticeable that when the noble and learned Lord the Lord Chancellor opened this debate and mentioned habeas corpus and jury trial, he did not mention what I would submit is equally vital, crucial and important in the criminal process—the right of silence. It is of course to be found in the code of practice. There the rights are set out.
The Royal Commission advised that rules affecting the liberty of the citizen should be in primary legislation, while the codes governing such things as the conduct and recording of interviews should be in subordinate legislation. In the Confait case Sir Harry Fisher found that the police did not understand Rule 4 of the Judges' Rules. He found that counsel had never heard of the seventh administrative direction. The Judges' Rules and administrative directions are the current codes of practice. Both of those codes are of course set out in subordinate legislation. That ignorance on the part of the police and on the part of counsel led to this appalling miscarriage of justice into which he had been asked to inquire.
466 Sir Harry Fisher said in his report:The right to consult a solicitor is so important and fundamental a right that I should expect the discretionary exclusion of any confession to follow almost automatically in the event of a breach of this rule. I favour making exclusion an automatic consequence"—that is, of someone not being told that he was entitled to have a solicitor if he wanted to have one.
If, therefore, you guarantee to every subject who enters a police station three simple things—one, his right to be silent, if he wishes to; two, his right to have a solicitor, if he wants one; and, three, his right for someone to be told of his whereabouts—you will then find that all the argument and all the hysteria over what does or does not go on in a police station will go. The whole situation which was described by my noble friend Lord Hooson could not possibly come about. If you tell a person those three fundamental rights to which he is entitled, it may then be perfectly acceptable to defer the release of the suspect in special circumstances. It may be perfectly acceptable to question him for much longer than in the normal situation, so long as he has a solicitor with him.
If a system of law confers rights, as ours does, people should know of those rights and be able to assert them, whether they are sophisticated or simple, whether they are old lags or first offenders, or whether they are innocent or guilty. If I may say so, the mischief of this Bill is that, whereas excellent principles are spelt out—for instance, that no one should be held for longer than 24 hours before being charged, and a suspect is entitled to legal advice and to have a friend notified—all these rights can be suspended. A suspect can be held incommunicado. He can be kept for 36 hours on the say-so of the police. Above all, under Clause 35(2) he can be kept in custody, if a police officer believes it necessary to obtain evidence by questioning him. That is the clause to which the noble and learned Lord, Lord Elwyn-Jones, referred earlier in the debate. How can such a provision be reconciled with a fundamental right of silence? I ask the Minister when he winds up this debate to tell your Lordships how in his opinion Clause 35(2) can possibly be reconciled with the right of silence. Once again here, as in the 1972 Criminal Law Revision Committee report, an attempt is being made to undermine the very basis of the criminal law in this country. One asks yet again why this battle has to be fought perennially. Here we are fighting it yet again.
Under Clause 41 the magistrates can extend to 96 hours the incarceration of someone in a police station for exactly the same purpose. What happens when a suspect appearing before magistrates says, "I do not wish to answer any questions"? Do the magistrates sit there with bated breath wondering, "Will this man say that? We have the power to bring the period up to 96 hours for the purpose of questioning him. What happens if he says, 'I will not be questioned'? There would be no order. But if he does not say so, we can make an order and he can be questioned." I find this provision offensive, if not farcical and unacceptable. I hope that your Lordships will look at it in Committee with the greatest possible care.
Under this Bill the suspect can still be held incommunicado for this period of time. I know that the noble Lord, Lord Mishcon, will agree with me that this is the period when all the problems arise. These are the 467 problems of pressures, violence, allegations against the police, "verbals", as they are called in the vernacular, and so on. If you provide that suspect with a solicitor, the whole of that problem disappears and matters proceed in a perfectly straightforward way.
In my submission, all lawyers, I should have thought all magistrates, all judges, and, I would suggest, the majority of the police force would welcome the fact that all that area of allegation and argument that takes up hours and hours of time in trials would go if only we saw to it that suspects were simply given their rights. That is all we have to do: give suspects their rights and the whole Confait case situation would never arise.
So I should hope that in Part IV we can end up with a very simple outcome: right of silence spelt out; right of legal advice at once; period of custody limited to 24 hours; and an extension for questioning only if a solicitor is present.
If solicitors are asked by the police, "Look, your having seen your client, we ask you formally not to communicate with anybody outside because we suspect that stolen property may be removed", (or whatever may be the reason), then as solicitors and barristers—as we all do in the profession, because we are officers of the court—we have to decide whether our client's interests come above our duty to the administration of justice. It is a decision we have to make all the time. If we make the wrong decision, we, just as the police, can be taken before our disciplinary body and be dealt with. Why should not solicitors in police stations be treated precisely as police in police stations? This Bill trusts the police to carry out what they have to do. Solicitors should be trusted to carry out what they have to do. Both police and solicitors are subject to disciplinary procedures if they do not do what they ought to do.
Of course all this is bound up with the question of confessions in Clause 73, at which I know your Lordships will look with the greatest care. I find the wording of it difficult. I approve of the onus being put on the prosecution to prove the negative, which they have to do in the clause. But I find it somewhat difficult to think of myself saying to a judge, "My Lord, you may well find that this confession is true, but nevertheless I would ask your Lordship to find that it is unreliable". It is difficult to see exactly how the point can be put forward in court, and of course oppression now means very much less than the words which are set out in the Bill.
I also think Part I has objectionable provisions within it. They have been much talked about during the debate. There is, for instance, the stop and search provision. I would suggest that the power given is too wide. It enables police officers right across the country, on the basis of a reasonable suspicion, to stop and search persons who have done nothing wrong. Why were the "sus" laws eventually abolished?—because they were so open to abuse, because people who had in fact done nothing wrong could be arrested.
What does "reasonable suspicion" mean? I was so glad to hear the noble and learned Lord, Lord Scarman, raise this question. It is fundamental in this Bill. It goes on right through the Bill. What does having reasonable suspicion mean? I must say I was astonished to read that in another place during the 468 Committee stage the Minister, in answer to that question, said at one moment, that, for instance, if a police officer knew that someone had a criminal record that nobody else knew about that would be a reasonable suspicion; the fact that the police officer had received information about that person would be a reasonable suspicion. Are your Lordships going to say in this House that we are going to give police officers power to go up to persons who have previous convictions for one offence or another and on that basis alone subject them to stops and searches whenever they are out in the street? In my submission that is harassment of a very serious kind and goes against the whole basis of the way we conduct the criminal law in this country: that you do not run people in, you do not in court suggest that people are more likely to commit offences because they happen to have committed an offence previously.
There are many other aspects of that part of the Bill which need looking at. There are the parts which deal with road blocks and with arrests in order to have fingerprints taken, as well as Clause 24, which gives power to the police to arrest for any offence at all if they have any reason to think that a name and address they are given may not be true. Those are all matters which, in my submission, require the most careful attention.
If I may say so, the Government have so far shown a certain willingness to listen and to amend. This Bill is certainly a very different Bill and a much better Bill than it was whenever it started two years ago. I appeal to the Minister to look on Parts II and IV of the Bill with a pragmatic and not—which may be more natural to him—an academic eye. I ask him to ask himself throughout the progress of this Bill whether this provision will actually work. Will it improve and establish better relations between the police and the public? Will it preserve people's human rights? On that basis, we on these Benches will do all that we can to achieve a vastly improved piece of vital legislation.
§ 7.57 p.m.
§ Lord Mishcon
My Lords, I apologise to the House. I believe that while the noble Lord, Lord Hutchinson, was delivering that eloquent speech, somebody was endeavouring to pass me some notes from above, in order that I might make a better speech to your Lordships than I shall be making. I assure your Lordships that it will not be half as amusing as it would have been if only those notes had reached me.
I refuse to be the only person, especially as I am winding up for the Opposition, not to congratulate the right reverend Prelate on his excellent maiden speech. Therefore on behalf of my noble friends I want to congratulate him and say that we shall welcome his spiritual leadership as well as his further speeches in this House.
There is no doubt that this Bill is necessary. As the noble and learned Lord, Lord Denning, in the course of a speech which was delivered with his usual clarity and elegance—it may have contained points with which all of us would not agree—pointed out absolutely correctly (if I may be allowed respectfully to say so), there are about 100-odd Acts of Parliament. most of them local Acts of Parliament relating to Liverpool and elsewhere, which deal with powers of 469 arrest. There is not the slightest doubt that the law is in a confused state, too, regarding the rights of detention. No doubt it is a gift to our Legislature—and a very welcome one—that there should be a Bill of this kind which formulates, in a statutory manner, what should be the rules relating to these vital matters.
There ought to be no difficulty at all in this House, of all Houses, being united in its support of law and order. I should like to make it abundantly clear, so that there is no doubt, that the official Opposition in this House and in another place are firm supporters of law and order. Heaven help any political party in this country that deserves respect from the public which is not a supporter of law and order. The only point of care and difference can be that forces of law and order have to earn public respect and confidence. The rules of law and order have to be just and be seen to be just to protect the civil rights of our citizens because that is what distinguishes us as a democratic country with a wonderful legal tradition from the police state that all of us in this House would decry. That is the only difference that would emerge and should emerge at the various stages of this Bill.
The noble and learned Lord, Lord Scarman, in what I thought was a beautifully delivered speech containing much common sense as well as common law, said that it was very difficult not to embark upon a Committee stage speech at Second Reading. It is difficult not to commit that sin on this Bill. If it does mean taking it in two stages, I am reminded of my noble and learned friend, Lord Elwyn-Jones, in a speech on a very different subject, quoting Mr. Lloyd George, another eminent Welsh statesman, as saying that it is undesirable to traverse a chasm in two leaps. It is undesirable and extremely dangerous. Nevertheless, when you are dealing with a Bill of this kind, I am afraid that it is almost impossible not to try and traverse in two leaps.
There is no doubt at all that there have to be rights of detention, no doubt at all that there have to be rights of arrest, no doubt at all that, at times and in certain conditions, there has to be the right to stop and search and to put up road blocks. The point is—these matters have to be stressed at Second Reading—that you have to exercise the utmost caution when you are giving those powers. I agreed entirely with the noble Lord, Lord Hutchinson, when he asked for a correct perspective to be given when we are considering this Bill. The noble Lord quoted my noble and learned friend Lord Gardiner, who many of us wish could be present in this House more often than, unfortunately, he can be. He said in so many words that you ought not to be looking the whole time at the immaculate policemen of great integrity. Nor ought you to be taking it for granted that you are legislating purely and simply for the hardened criminal.
There have to be in statutory provisions of a Bill of this kind proper powers for the police in order to see that they are not manacled in the very serious duties that they have in regard to the prevention of crime and the conviction of those who are guilty. You also have to see that you do not put shackles on the liberty of the innocent citizen, and the simple citizen—the person to whom a police officer is quite a frightening character 470 and to whom a police station is also a place where the atmosphere is strange and frightening. That is why you have to look so carefully, for example, at what are the hours that are permitted for detention before charge. That has been dealt with so adequately by other speakers that I shall say no more than this. I speak very humbly as a lawyer who in no way has specialised in the criminal law, but I can think of no reason at all why somebody, after a maximum of 24 hours, should not be brought before a magistrate if there is to be any extension of that time, with full and powerful reasons given for an extension of the questioning period.
I say this with some amount of support. The figures show that only a small number of people are involved, at any event in regard to detention for more than 24 hours. For example, in the metropolitan police area in the third quarter of 1982 only 1.6 per cent. of suspects—amounting, in fact, to 1,309 people—were detained for more than 24 hours without charge. That percentage is, incidentally, similar to figures arrived at by researchers for the Royal Commission on Criminal Procedure, in whose sample 1.4 per cent. were held for more than 24 hours without charge. If you translate those metropolitan figures into a daily rate, they imply that in any 24-hour period between 14 and 15 people will be detained for more than 24 hours without charge. That does not seem to be likely to add unreasonably to the burdens already placed on magisrates' courts. The frightening effects of detention for more than that time, with question after question being plied, is something that I believe your Lordships will want to consider carefully when we come to the Committee stage.
I do not intend at this hour to repeat arguments that have already been advanced, and thus weary your Lordships. I merely say that all the matters that have been mentioned—they were summarised so ably by the noble Lord, Lord Hutchinson—have to be looked at. We have to concentrate upon them. The arguments advanced for doing so could not have been better put than they were by my noble and learned friend Lord Elwyn-Jones at the start of the debate. I wish to give just one example of where we really have to exercise some amount of care in this House. It is perfectly true that in the other place there were, I think, 59 sittings of the Committee, and I so sympathised with the noble and learned Lord the Lord Chancellor when he prayed that the same number of sittings would not occur in this House. On behalf of the Opposition I can tell him that it will be our endeavour to make it less than 59. But there are some occasions, and obviously this Bill is one of them, when we have to pick up some of the pieces. That is our duty, thankfully given to us by another place.
I say that in regard, for example, to the definition in this Bill of "serious arrestable offence". It is terribly important, because this governs the power to set up a road check, in Clause 4; the powers to enter and search for evidence of a serious arrestable offence, in Clauses 8 and 9; detention beyond 24 hours for the investigation of a serious arrestable offence, in Clause 40; delay in exercise of right to have someone informed of arrest, in Clause 54; delay in access to legal advice, in Clause 56; and the power to take intimate body samples, in Clause 59.
471 The noble and learned Lord the Lord Chancellor talked in terms (and I am so grateful to him for it) of the help that the Law Society have afforded in suggesting some definitions of "a serious arrestable offence". I know he will forgive me if I say, on the authority of the Law Society, that although they endeavoured to help they were not very pleased with the ultimate result of their assistance. Obviously, that is something which your Lordships will listen to at Committee stage. The one reason why they are not at all satisfied is that there is a most extraordinarily inept (I hope I am not using too exaggerated a word) subjective judgment that is put in this Bill in regard to this definition. "Serious"—that is the important point—is defined as:having regard to all the circumstances,…serious for the person who suffers",the loss I have dealt with all the provisions of this Bill that are governed by that definition.
I ask your Lordships: is there anything more subjective and less likely to be argued with any satisfaction to anybody in a court of law, if the matter has to be raised, than that definition of, "serious for the person who suffers" the loss? I almost said that that amounts to a means test, because I may have to satisfy a police officer, if £1 has been stolen from me, that I regard it as essentially extremely serious, whereas the noble Lord the Minister, Lord Elton, may be able to argue before the police officer, if £10 has been stolen from him, that it means nothing at all to him.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
The other way round, my Lords.
§ Lord Mishcon
My Lords, we cannot leave definitions of that kind in this Bill, so there is a great deal to be done at Committee stage. I am going to end this address to which your Lordships have been courteous enough to listen by quoting the end sentence of the Philips Report. It reads as follows:Our proposal for regulating in a comprehensive statutory framework arrangements for the investigation of offences and the prosecution of offenders affirms that Parliament has the duty of striking the fundamental balance and of keeping it under regular review".That is our duty; I am sure we shall fulfil it.
§ 8.13 p.m.
§ Lord Elton
My Lords, I come tonight to speak at the end of a procession of legally eminent Peers headed by my noble and learned friend the Lord Chancellor of England, and containing Law Lords, coroners, magistrates, solicitors and barristers. I am a mere layman and I speak with a proper and, I should add, a real deference in this debate. But, after all, it is overwhelmingly laymen who are going to be affected by this Bill, and laymen will benefit from it.
The Bill is the subject of great interest and some controversy not only because it is an explicit statement of practical matters that will be of great importance to those whom they will affect but also because it is seen as an implicit statement of the general attitude or philosophy that will inform and guide the enforcement of the law for many years to come. That has been well illustrated during the long and fascinating debate which we must now conclude. At the end of that, it is 472 clear that beneath most of the different approaches and interests that your Lordships have expressed today lies a fundamental agreement, voiced a moment ago by the noble Lord, Lord Mishcon, of what we are about and what we have to achieve. We are seeking to establish in the clear light of legislation rather than in the half light of convention a system of enforcement of the law that will work, that is fair and in which all those concerned can have confidence.
As the noble and learned Lord, Lord Denning, forcefully reminded your Lordships, it is the first duty of government to see that there is law and order in the land. We are all agreed that our society can live only within a framework of law and that it is the duty of the state to maintain it. The law, and particularly the criminal law, therefore establishes the limits of acceptable behaviour of individuals towards one another and towards the state. The major and continuing concern of this Bill is the bringing to justice of those who may be suspected of offending against it.
Justice has a pair of scales in her hand, and it is part of our purpose to see that those scales are evenly balanced when the suspect comes to court. That has been the concern of the Criminal Law Revision Committee and your Lordships can see the fruits of much of its work in Parts VII and VIII of the Bill. But if the process is to be fair it does not mean only that evidence must be fairly defined and presented. It also means that it must be fairly obtained. And that brings us to the whole sequence of events from the first suspicion that an offence may have been committed to the preferment of charges and the appearance of the suspect in court.
Throughout the whole of that process also we have to have a constant eye on the balance. The law is not only the guardian of society; it is also the guardian of the rights and the liberties of its individual members. That is why the law, and in particular the criminal law, establishes not only the acceptable limits of the behaviour of individuals towards the state. It also establishes the acceptable limits of the behaviour of the state, and therefore of its agents, towards individuals. Certainly if the law is not enforced at all, freedom is swallowed up in chaos. That is true. But it is only half the proposition. The other half is this. If the law is enforced without restraint or regard for individual rights, all individual freedom will be consumed in the process. It is between those two extremes that the point of proper balance lies. As my noble friend Lord Morris pointed out, that is the point we have sought to establish in the preparation and drafting of every part of every clause of this Bill.
I can frankly tell the noble Lord, Lord Hooson, that the balance we have struck has not been struck on the assumption that the suspect is either always guilty or always innocent. That is something which cannot be known until the inquiry is complete and the case has been heard and disposed of. As to the noble Lord's anxieties about the substitution of reliability for voluntariness in evaluating statements, I am grateful to my noble friend Lord Campbell of Alloway for reminding your Lordships that the Criminal Law Revision Committee said that both courts and juries would better understand the new test than the old. That remains our view.
473 There are people outside this House who claim that the Bill was designed simply to enlarge the powers of the police at the expense of the supposed offender. The falsity of that must be obvious to anyone who has read the Bill and the motives of those who make this claim at some considerable expense must be open to doubt. The noble Lord, Lord Plant, made trenchantly clear why that must be so.
Some new powers, certainly, there are. For the most part they fill gaps in the law that it would be absurd to leave open. For instance, at present if the police anywhere suspect someone of killing an unborn chick by stealing the egg of a protected bird they can search him for it. But if they suspect him of killing a fellow human being they do not everywhere have the power to search him for the murder weapon. Indeed, the power to stop and search a person suspected of carrying offensive weapons, stolen goods or equipment designed to enable the stealing of goods at present exists only because of local legislation and in many police areas it simply does not exist at all. I really do not think we need apologise for remedying that failing in the law.
We live in violent times, as the noble and learned Lord, Lord Elwyn-Jones, has reminded us; and, as the noble Lord, Lord Hooson, has pointed out, there is a need to equip the police with the powers to deal with them. To have denied the police anywhere the power to search people for instruments of violence and relieve them of them would have been to prevent them going about their essential duty of protecting the peaceful public from robbery, burglary and assault.
The noble Lord, Lord Hooson, suggested that the effects of the power in Clause 1 to stop and search would be to force police to search people once they had stopped them in order to justify their having stopped them. I would refer him to Clause 2(1) which says specifically that if a constable detains a person or a vehicle in the exercise of that power or any other power to search a person without arresting him, he need not conduct a search if it then appears to him that no search is needed or practicable.
I share his sympathy with the police on mastering the complexities of the law. He quoted in connection with this and later parts of the Bill the concern of the Association of Chief Police Officers about the complexity of the provisions for search, and detention for the purposes of search. That anxiety was expressed some time ago. Since then the Bill has been amended and I think that the noble Lord would discover—if he inquired of them—that the association is now content with what is in the Bill in this respect. I believe that all trainee policemen will heave a sigh of relief when they find so much that was scattered and obscure brought into one place in the statute book and expressed—as the noble Lord, Lord Monson, kindly acknowledged —in prose which is unusually clear for the subject.
However, as I have said, there certainly are some new powers. Let me return to stop and search. I assure the noble and learned Lord, Lord Elwyn-Jones, that we have not introduced this necessary power without balancing safeguards. The noble and learned Lord must of course be aware of that. What is more, the power is only new in some parts of the country, but the 474 safeguards are new everywhere. I would like to assure the right reverend Prelate the Bishop of Gloucester —and in assuring him, to congratulate him on an admirable maiden speech and one which leads us to hope to hear him frequently in the future—that, if the constable is not in uniform, he must first under, I think, Clause 2(2)(i) provide documentary proof that he is a constable. He must in any case identify himself by giving—as the right reverend Prelate wished him to do—his name and the name of his station. Under Clause 2(3) he must say what he is looking for and why he is looking for it. He must make a written record of the search with full details of his reasons for it, of its object, of the time and place where it was made and of its results, and he must tell the person searched that he will make this record and that he can have a copy of it if he asks for it at any time in the next 12 months. Furthermore, a summary analysis of all such searches must be included in the annual report of every police force in the country. I hope that both the noble and learned Lord and the right reverend Prelate will be further reassured when they come to read the code on detention itself. I must make one or two points about it to the noble Lord, Lord Hutchinson of Lullington.
Paragraph 1.2 of the detention code requires copies of the code to be readily available to detained persons. Paragraph 3.3 of the same code requires the detained person to be given a written notice setting out his rights as prescribed in paragraph 3.2: the right to have someone informed: the right to legal advice: the right to consult the codes: the right to a copy of the custody record and the caution. I hope that the noble Lord will find that genuinely reassuring.
§ Lord Hutchinson of Lullington
My Lords, the point that I was making was that it was in the code but not in the Bill, and that what is in the code will be disregarded.
§ Lord Elton
My Lords, I perceive that I would take longer than your Lordships would wish if I replied to every point. In fact the code is tied into the Bill, first, by the requirement that it shall be observed and that any breach of the observation shall be a disciplinary offence for which the responsible police officer may be punished. That does not protect him from criminal proceedings if the breach was in fact in itself a criminal offence. Moreover, the code is subject to parliamentary procedure as the noble and learned Lord, Lord Scarman, has said.
Your Lordships are concerned about intimate search. I have referred to the powers of search as necessary. They are necessary even in the case of intimate searches. The recent and sad case of that tragic but dangerous man, David Martin, last year, is only a single example of this, where a knife was produced from within his mouth.
My noble friend Lady Macleod of Borve has pointed out that controlled drugs of the hardest sort are themselves lethal weapons and can also kill people. The description of the person carrying out the search in the Bill as "a constable" describes any policeman of every rank. I assure the noble Baroness that the person who did the search, if a doctor was not available, would be the most suitable person in the station and that the rank of constable does not mean that it would 475 only be a police constable in the sense that she uses the term.
The Bill for the first time ever prevents the use of systematic road checks in connection with anything less than serious crime. That is the first of a number of safeguards of which your Lordships should not lose sight. For the first time ever, it makes general searches, or "fishing expeditions", illegal, contrary to what has been suggested. For the first time ever, it requires the police to proceed by summons rather than arrest wherever that is possible.
The noble Lord, Lord Mishcon, in a very able speech—if he will allow me to say so—has expressed anxiety about the length of detention without charge. But let us remember that the Bill proposes no increase in the power to detain. On the contrary, for the first time ever, it places an absolute limit of 24 hours on the detention without charge of a person suspected of anything other than a serious crime. For the first time ever, it makes it illegal to keep a person suspected even of a serious crime in custody without charge for more than 24 hours without the specific authorisation of a superintendent or above recorded in writing on the custody sheet. Before he does so he must inform the suspect and give either him or his solicitor a chance to make representations. That is something which I think a number of your Lordships have said that you would wish.
For the first time ever, it makes it illegal for the police to hold anyone without charge for over 36 hours without producing him in court and obtaining a warrant to do so from the magistrates. The magistrates will not sit in silent admiration of a police application. I can assure the noble Lord, Lord Hutchinson of Lullington—if he needs any assurance—that they will have the task of satisfying themselves (and they are required to do so under the Bill) that there is a need for this and that it has a purpose. If they establish that nothing is to be achieved, then they will not grant the extension. There is much more of that nature in the Bill but I will spare your Lordships because I know that your Lordships will return to test it in Committee. Not only are there these graduated levels of supervision culminating in the court, which cannot itself extend for more than 96 hours detention without charge—and this is the first time that it has been on the statute book. That is not the only protection proposed for the person detained without charge. He is also to be protected by the requirement laid upon police officers to observe the code of practice, as I have already said.
The noble and learned Lord, Lord Elwyn-Jones, suggested that detention without charge should be limited to six hours as in Scotland. That suggestion was expressly rejected by the Royal Commission, which noted at Paragraph 3.100 of its report that the Scottish legal system was quite different from our own. I should like to embroider on that, but I am sure that the noble and learned Lord will give me a later opportunity in order to get earlier to his and your Lordships' dinner. While we are on this point, let me say that the noble Lord, Lord Mishcon, has convincingly demonstrated that, even where there has been no statutory limit whatever on how long detentions may last without charge, only a minute proportion of cases go beyond 24 hours, or indeed a good deal less. What we propose is a careful screening 476 even of those few cases such as has never been devised before. So this is a move in the direction which I think the noble Lord wants.
The noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hutchinson of Lullington, in particular, were concerned about the right to silence. I had some difficulty in following them when it was suggested that the provisions of Part IV of the Bill erode or even destroy the right to silence. Those provisions restrict existing powers of detention which were open-ended. The right to silence means in English law that an accused person can stay silent from the moment he is accused and require the Crown to prove its case against him without his offering any co-operation by way of answering questions or giving evidence. The Government firmly adhere to this important principle and believe that the Bill reinforces it.
The Bill and its codes of practice ensure that detained persons are aware of the new safeguards in the Bill and their rights under it. In particular, there is the new right of access to legal advice and the strict limitations on the ability of the police to interfere with the exercise of that right. There are also new safeguards to ensure that the young and the vulnerable are protected from questioning without the advice of their parents or an independent adult, and that goes for the mentally handicapped as well. There are many other new safeguards to prevent the application of improper pressure. Moreover, the provisions of Clause 73 on confessions rule out such pressure.
Part IV itself precludes detention for questioning where the sole purpose of the questioning is to break down a person's resistance to answering. Those charged with reviewing the need for continuing detention must be satisfied that it is necessary for the purpose of securing or obtaining evidence. If the purpose of detention is simply to go on and on asking the same questions, the criteria will not be met. In practice of course that is not how the police work, and extended detention is normally needed for comparing the position of suspects with new information on their cases brought from outside.
The Bill contains much else of which we have stood in need for some time. Your Lordships we will recall that the Royal Commission on Criminal Procedure was set up during the last Parliament but one and that it reported in 1981. It revealed needs that were real and pressing, and the legislation to meet them has already been delayed by the last Dissolution. I do not think that we should delay it further to wait for the national prosecution system, which we have already announced in a White Paper.
The Bill will provide a coherent statement in one statute of the principal police powers of arrest, detention, questioning, search and seizure, and it will place side by side with them the principal safeguards against their abuse. It will apply the test of necessity to intrusions upon individual privacy, and it will relate the availability of the more intrusive powers to the gravity of the offence in question. My criterion for the use of the stronger coercive powers is the commission, or the expected commission, of a "serious arrestable offence". I do not doubt that many of your Lordships, including the noble Lord, Lord Hutchinson of Lullington, will wish to probe the terms in which a 477 "serious arrestable offence" is defined, and the noble Lord, Lord Mishcon, will say that it is too subjective. But I think there is little doubt that the concept itself is useful, and its use as a criterion will be an improvement on the imprecision with which these things are regulated at present.
The concept springs from a recommendation that certain offences (now listed in Schedule 5) should always be arrestable. Others will be serious if certain criteria are met on the occasion in question. The application of the concept arises from the view of the Royal Commission that the availability of certain coercive powers should depend on the seriousness of the offence. The test is required in the Bill for the use of coercive powers in nine separate clauses, and I do not doubt that we shall deal with it very frequently and trenchantly.
I have said that the theme running through this Bill is one of balance and that the principal balance to be held is that between the powers of the state to uphold the law and the rights and privacy of the individual. That leads me on to another concept, equally fundamental to a democratic society, and that is the concept of consent. Government in a democracy is by consent of the governed. Similarly, as my noble and learned friend began his speech by saying, policing is not something imposed from outside a community.
The arm of the law, to quote the admirable speech of the right reverend Prelate, must be more within a society than over against it. It is a function of that community to which it should give not only its consent but its support. As the noble and learned Lord, Lord Scarman, reminded us in a speech of intense interest and with immense authority, that cannot be achieved without the confidence of the community in the police. At Clause 100 the Bill provides for a system of consultation whereby that confidence can be built up. The notable and perceptive Report on the Brixton disturbances made the noble and learned Lord, Lord Scarman, my tutor in the matters of police and public confidence. This clause follows on that report and, as experience suggests, different areas will have very different needs, and the Bill provides for the necessary flexibility.
Another matter which affects the way in which people view their police force, if they have reason to complain about them, is the way in which their complaints are dealt with. There has in the past been unhappiness about this both among the public and among the police. The Bill provides a new system for dealing with complaints. It has an independent element that has been strengthened following discussion of the issue on the Bill which fell in the last Parliament, and which will, we believe, give satisfaction to both sides. It allows trivial matters to be disposed of informally. It also ensures that serious matters are very thoroughly investigated and followed up.
The Bill also provides for a formal structure for the administration and maintenance of discipline in police forces. It will provide accused officers with legal representation where they stand at risk of the most serious penalties, and it will be conducted under revised guidance ensuring fair treatment throughout 478 the process. We must never forget that, while public confidence in the police is essential, it is no less essential that the police shall be confident that they will not be unfairly at the mercy of ill-informed or indeed malicious members of the public. We believe that the new complaints and discipline procedures will give confidence to both the police and the public that improper behaviour is appropriately punished and that proper behaviour is appropriately protected.
The noble Lord, Lord Molson, referred to a notable work by my noble and learned friend, and I am sure I can say that the kind reference to his book is welcome and that he still finds some attraction in the views he put forward there. But your Lordships will also understand the view that has been taken that the law of evidence in criminal cases is closely bound up with substantive and procedural criminal law. The fact is that we share responsibility for the administration of the criminal justice system, wherever the boundary is drawn, and therefore work closely together on these matters, as I hope was made clear by the speech which my noble and learned friend delivered at the beginning of this debate commending this Bill to your Lordships.
The noble Lords, Lord Ardwick and Hemingford, fearing the Greeks—and I have never been cast in that role before—asked me whether Her Majesty's Government would withdraw the special privileges which the Bill extends to journalists. The protection for confidential journalistic records takes account of the importance of the ability of a free press to protect sources. The sensitivity of such sources is already recognised elsewhere in the law, notably in the Contempt of Court Act 1980. However, the protection conferred by the Bill is not limited to professional journalists, but extends to any material acquired or created for the purposes of journalism. Some journalists and editors have nevertheless criticised this protection as placing them in an unjustifiably privileged position. Others have welcomed it. Certainly we would not wish to impose a protection that was not wanted. The alternative that has been proposed is, however, likely to lead to a greater risk of journalists having to prove their membership of the journalistic profession.
Moreover, we are faced with a divided profession, and with no guarantee that journalists generally will accept the increased possibility of police access to their material that withdrawal of the provision would entail. In these circumstances we feel bound to honour the undertakings given last year. For those reasons we would not—at least, at this stage—commend any change to the Bill as it stands in this respect, though we are always, of course, ready to hear further views.
My noble friend Lady Macleod was anxious not only about intimate searches but also about fingerprints, which can be taken from 10 year-old children upwards. Clause 61 protects their prints like those of any other person. The noble Baroness, Lady Masham, was concerned about the smuggling of drugs and terrorism. There is a balance in the Bill. The special provision for terrorism relates not to its wickedness but to the kind of reasons for which the police need to detain terrorists, and to the sort of organisation and contacts which terrorists have, which are different from those of drug-runners.
479 The noble Lord, Lord Pitt, asked whether the police would be able to obtain access to medical records under the legislation. There is a long answer, but there is no time for it. The short answer is: Yes, subject to three important provisions. First, the ability of the police to obtain medical records is very limited. The most obvious case is where records have been stolen. The police can now obtain a Theft Act warrent and recover them, and I believe that that is right. Secondly, where such a situation arises and the material concerned is held in confidence, the procedure which the police will have to employ is that set out in Schedule 1 rather than the ordinary search warrant procedure. Thirdly, the police will not be able to compel the production of medical records at all if they cannot already be obtained under existing legislation, even if they constitute substantial evidence of serious crime. In these circumstances we believe that the police should have to proceed only by co-operation on the part of the doctors, which we hope will be forthcoming.
My noble friend Lady Carnegy of Lour spoke with considerable knowledge of the experience of the Scottish courts and made a number of comments on the provisions of the Bill which will assist your Lordships at a later stage. That later stage, the noble and learned Lord, Lord Scarman, tells us, will provide an historic test. He identified a matrix—I say this in conclusion—of provisions which underpin the Bill which are not all included in it, and without which it will not work. We should be greatly obliged to him for reminding your Lordships from a position of unique authority that policing is a matter of attitudes as well as regulations. Training is therefore vital.
As he has, I have seen training in progress at Bramshill, at Hendon, at Cwmbran, and also in a number of individual police forces. That was over a year ago. Even then I was deeply impressed by the thoroughness and realism of what was being done, particularly in the field of community relations. Since then there has been much progress. Both the Home Office and the Association of Chief Police Officers are acutely aware of the importance of bringing training up to date. The association has plans well in hand for all provincial forces, as does the Commissioner for the Metropolitan Police for those in London. They embrace attitudes as well as procedures. The introduction of the Bill will be phased to enable proper training to precede the introduction of each provision. The noble and learned Lord also said that supervision was as important as training. Here I must also endorse that.
From this flow two conclusions. First, there must be the means of supervision; secondly, we are dependent on the qualities of those who do the supervising. As to the first, the system of reporting, recording and supervision set out in the Bill will I believe give a uniquely useful and effective means of supervision to the senior ranks and the inspectorate. In the other regard I believe that the noble and learned Lord is right and that we are blessed in this country with a police service that is fundamentally sound. I believe that this Bill will both enable that soundness to be reinforced and enable it to be seen and appreciated by the public of whom the police are members, and whom they have the honour to protect and serve. Therefore I believe 480 that this Bill deserves the Second Reading, which my noble and learned friend has both more ably and more swiftly commended than I have.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.