Police and Criminal Evidence Bill

HL Deb 18 October 1984 vol 455 cc1093-186

4.11 p.m.

Read a third time.

Clause 4 [Road checks]:

The Minister of State, Home Office (Lord Elton) moved Amendment No. 1: Page 6, line 14, after ("checks") insert ("by police officers").

The noble Lord said: My Lords, there are eleven amendments to Part I of this Bill that are drafting amendments. They are Amendments Nos. 1 and 2, No. 3A, which is in substitution for No. 3 which was scrambled by the printers, Nos. 4 to 10 inclusive, and No. 12.

Amendment No. 2: Page 6, line 22, after ("exercise") insert ("in a locality").

Amendment No. 3A: Page 6, line 23, after ("stop") insert ("during the period for which its exercise in that way in that locality continues").

Amendment No. 4: Page 6, line 35, leave out ("area") and insert ("locality").

Amendment No. 5: Page 6, line 41, after ("grounds") insert—("(i)").

Amendment No. 6: Page 6, line 42, leave out ("(i)").

Amendment No. 7: Page 7, line 1, leave out ("that the offence is likely to be committed") and insert ("for suspecting that the person is, or is about to be").

Amendment No. 8: Page 7, line 2, leave out ("area") and insert ("locality").

Amendment No. 9: Page 7, line 3, leave out ("during the period of the road check").

Amendment No. 10: Page 7, line 7, leave out ("area") and insert ("locality").

All of these amendments are designed to clarify the drafting of Clause 4 and secure consistency of terminology. If noble Lords want to query any drafting points I shall be happy to try to explain them. Otherwise I shall merely move them without comment. In moving Amendment No. 1 I give notice that I intend to move Amendments Nos. 2 to 10, including No. 3A in substitution for No. 3, en bloc. I beg to move.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I think the Question that I have to put, with the leave of the House, is that Nos. 1 to 10 be agreed to.

Lord Elwyn-Jones

My Lords, as to the substance of the matter, I do not think there will be any difficulty. We have examined the amendments and we respectfully agree that they are drafting amendments. Before I sit down may I, I think on behalf of the House, congratulate the noble Lord on his promotion and his elevation. He is always enormously helpful to the House; he is conscientious, courteous, and kind to us at all times. We wish him good fortune—but of course not for long on the Opposition Front Bench.

Lord Renton

My Lords, as one who has given the noble Lord, Lord Elton, more than the usual amount of trouble, both while he has been in the Home Office and while he was in the Department of Education, may I endorse what the noble and learned Lord has said and also congratulate my noble friend. While I am on my feet may I say that I know what a vast amount of trouble he has taken over the amendments for this Third Reading. He has not been able to meet every point, but I know that he and the Home Secretary have given deep consideration to all the matters raised at Third Reading, and speaking for myself I feel that honour is satisfied.

Lord Elwyn-Jones

My Lords, may I correct the record in one small matter? When I wished the noble Lord good fortune and a long tenure I really did wish him that on the Opposition Front Bench, but I think I got it a bit wrong.

Lord Donaldson of Kingsbridge

My Lords, may I associate these Benches with everything that the noble and learned Lord has said.

Lord Elton

My Lords, I am deeply gratified and somewhat embarrassed by what your Lordships have said, and I do not doubt that you will wish to remind me of it when I am less than agreeable to some of the things which your Lordships want to propose later. While I shall be inflexible in resisting that which I think ought to be resisted, I do it with a glad heart, in the knowledge that I have such good friends in this House.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 11: Page 7, line 10, leave out ("paragraphs (a), (b) and (d) or).

The noble Lord said: My Lords, Clause 4 deals with road checks set up by the police under the powers given to them by Section 159 of the Road Traffic Act 1972 for the four purposes set out in subsection (1). Subsection (3) limits the power to authorise a road check under normal circumstances to officers of the rank of superintendent or above. Subsection (5) permits an officer of lower rank to authorise a road check for three of the four permitted purposes in case of urgency.

Your Lordships have already agreed that although it is appropriate to limit the power to authorise a road check to officers of senior rank as a matter of course, there may be times when very quick action is needed by someone closer to events. That principle has been granted and is not in doubt. In the Bill as now drafted, however, it is only applied in cases where the police are looking for a suspected offender, a witness, or a person unlawfully at large— the three categories, that is, listed in paragraphs (a), (b) and (d) of subsection (1), all of which are individually specialised in subsection (5).

The suspected intending offender listed in paragraph (c) of subsection (1) is not specified and the man on the spot will not therefore be able to anticipate the authorisation of a senior rank for setting up a road check. The effect, in other words, is that if a person is known to have committed a murder the search for him can begin at once, but if he is known to be intending a murder it must be delayed. That is an obvious anomaly and it results from our earlier proceedings.

Your Lordships will remember that in the Bill as we brought it to your Lordships' House the only ground for anticipating the commission of a crime and so identifying the person sought under subsection (1) (c) was that an analysis of the pattern of crime in an area led to the conclusion that such a crime was likely to be committed. That could scarcely give rise to an emergency, and we did not therefore ask your Lordships to put an urgent procedure in the Bill to deal with it.

At Committee stage, however, the noble Lord, Lord Mishcon, persuasively argued, with others, that the limitation on the availability of the road check in search of an intending offender should be removed and should no longer depend upon the expectations arising from an analysis of the statistics of crime. At Report, in accordance with your Lordships' wishes, we removed it.

Road checks are, therefore, in consequence of your Lordships' wishes, available when, for instance, a person with a history of violence and an announced homicidal intention is known to have set off in search of his intended victim. On occasions like that, which are properly covered by subsection (2)(c), an immediate response under the provision of subsection (5) is not only proper but essential. I think your Lordships will agree that it is consonant with the intentions of the Bill as drafted before the Report stage amendment. I trust therefore that your Lordships will enable us to extend the urgent procedure to the paragraph by agreeing to this amendment. I beg to move.

Lord Mishcon

My Lords, the House will appreciate the clarity with which that explanation was given of this amendment, and I think will also appreciate the consideration which the Minister has throughout given to those of us who objected, among other things, to that phrase, "the area where patterns of crime are existent." The Minister was, as usual, redoubtable in his arguments in favour of that definition at one stage, but I am so glad that he has seen the light.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 12: Page 7, line 16, leave out from first ("to") to end of line 17 and insert ("cause an officer of the rank of superintendent or above to be informed that it has been given.").

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

On Question, amendment agreed to.

Clause 8 [Power of justice of the peace to authorise entry and search of premises]:

4.19 p. m.

Lord Elwyn-Jones moved Amendment No. 13: Page 10, line 4, after ("constable") insert ("a circuit judge, or if he is not readily available,").

The noble and learned Lord said: My Lords, this is an important amendment to the Bill's provisions in Clause 8 regarding the powers of entry and search of premises given to the police in the quest for evidence. These provisions are obviously a serious invasion of the privacy of home and business and other premises, and they give the police a new power to enter the premises of a person who is not himself suspected of a crime, or may well not be involved in one in any way, in order to search for evidence of an offence.

The amendment which I move would make it necessary, before even a power of entry to the premises was granted, for an application to be made either to a circuit judge or to a justice of the peace if a judge is not readily available. It is desirable, and we think the effort should be made, to find a circuit judge to perform this important duty. There are now, I gather, over 400 circuit judges and a large number of recorders exercising the powers of circuit judges, so there ought not to be too great difficulty in finding an available judicial figure to perform this important task. But lest there might be an occasion, which we venture to think would be rare, that that was not possible and such a person was not readily available, a justice of the peace should have the power to issue the warrant.

The Royal Commission readily accepted that the exercise of the powers that are now proposed in Clause 8 was a very serious matter. It attached considerable importance to it. Indeed, the commission recommended that a compulsory power of search for evidence should be available only as a last resort and should be granted only in exceptional circumstances and in respect only of grave offences. The commission marked the seriousness of the intrusion by saying that the issuing authority should be a circuit judge. That is precisely what we have proposed in the amendment, though in the extreme possibility of that not being possible we agree that it should be a justice of the peace.

The task that the judicial figure concerned would have to face would not be easy. Indeed, it would involve consideration of technical and difficult problems, weighty matters, only slightly alleviated by Amendment No. 14 which the noble Lord, Lord Elton, will be moving to limit the potential mischief a little.

I do not want to take too much time over ground we have already covered on a previous occasion, but if your Lordships look at the matters that have to be considered they include reasonable grounds for believing: that a serious arrestable offence has been committed."— that the material is likely to be relevant evidence"— and, in subsection (4): 'relevant evidence', in relation to an offence, means anything that would be admissible in evidence at a trial for the offence". So one goes into the whole difficult field of admissibility of evidence.

In the conditions in subsection (3) one sees that this is a difficult and extremely important matter to be adjudicated. While I am second to none in my admiration of the work of the lay magistracy and the services they render in disposing of about 96 per cent. of all criminal cases, nevertheless we do not think that, save in the exceptional circumstances of necessity, it is reasonable that a justice of the peace should be asked to form a view on these complicated matters. It is worth noting that there is no power of appeal from the decision of the circuit judge or the justice of the peace, as the case may be, and no provision for challenging his decision under Clause 8. So there again the value of a decision by the judge is of the greatest importance. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, the noble and learned Lord has put the case so clearly that I have nothing further to say, save that from these Benches we agree.

Lord Plant

My Lords, I oppose this amendment. At Committee stage we had a long discussion on this amendment, if not to Clause 8 to another clause, where noble Lords wished to have a circuit judge, rather than a justice of the peace, giving a clearance. It was decided in this Chamber to leave it to the justice of the peace. Now, at this late stage, the matter has been brought back again. I believe it would be quite wrong for us to agree to this amendment. The police organisations feel that it would be difficult because it means that the police Bill would say "either/or". It is always bad law if it is not made absolutely clear. What does a constable do if he is told that he must go either to a circuit judge, or, if one is not readily available, as he might not be, on Saturdays and Sundays, to a justice of the peace?

I think it is bad law where one leaves the man with responsibility for interpreting his actions to a large extent when the position is not clearly laid down. It will cause some difficulties in the future if, at this late stage, we give way on an amendment which this House has successfully resisted up to now.

Lord Denning

My Lords, at an earlier stage I was much in favour of the applications being made to a circuit judge. That was the recommendation of the Royal Commission. I felt that the matters to be gone through were so complicated that it needed a trained lawyer and a circuit judge to deal with them. However, this House decided to the contrary. It decided that the applications could, and should, be made to magistrates. I appreciate the force of the arguments to that purpose, because magistrates have with them their trained clerks; they are themselves experienced and would look into the matter most carefully.

For myself, I would not upset indirectly the view taken by this House on an earlier occasion, but I appreciate what has just been mentioned. Are the police to telephone all circuit judges in the list to see whether or not one is available? Surely it would be much better, in a matter that is often urgent, for them to be able to go straight away to a magistrate and let him be advised by his clerk, who will have had to study all these provisions. We should let it remain as this House left it on the last occasion.

Lord Renton

My Lords, I, too, briefly wish to oppose this amendment. I do so mainly on two points. The first is that all that has to be decided is whether there are reasonable grounds for believing that the five points mentioned here are met. I do not think that that would be beyond the competence of any person who is worthy to be a justice of the peace. My other point is that these are nearly always likely to be matters of urgency. That being so, we must offer to the police the procedure that will enable them to treat the matter as one of urgency. That means always giving them the chance to go to a justice of the peace, rather than having to find a circuit judge.

Lord Mishcon

My Lords, I rise briefly to deal with the contributions made by the three noble Lords who have just spoken, one of whom deserves the title of noble and learned Lord. With the greatest respect, it is not accurate to say that the principle of this matter was decided at a previous stage. If it had been, this amendment would not be before your Lordships. On the last occasion your Lordships were reminded, with the help of the noble and learned Lord, Lord Denning, of the very complex matters which have to be decided under this clause, as it stands at the moment, on the application of a constable. I make no disrespectful reference to the rank, but it is a constable who has to go before a justice of the peace. There is no reference in the Bill to the fact that a justice of the peace is to be accompanied by his clerk. One can imagine that an urgent application would be made to a justice of the peace without his clerk being present.

As my noble and learned friend has said—and I do not intend to repeat the arguments that he advanced —the matters to be decided are of the most complex nature. What I believe persuaded your Lordships, by a small majority, on the last occasion to deal with the point by allowing a justice of the peace alone to decide these matters was the plea made by the noble Lord the Minister, in perfect good faith, that these matters were urgent, that a justice of the peace could usually be found, and that there would be occasions when it would be difficult to find a circuit judge. I venture to believe that many who voted in the Division Lobby against the amendment that we then put, which was supported by the noble and learned Lord, Lord Denning, if I remember correctly, did so upon that ground because it seemed to be a very substantial ground.

Now we have covered that point in the amendment; because all that we are saying is that if a circuit judge is readily available to meet the urgency of the situation, then by all means let it be a circuit judge, and only if a circuit judge is not available and the matter is urgent, and you have covered the point of the noble Lord the Minister, can you go to a justice of the peace. So, in coming forward so reasonably with an amendment which meets the very objection taken last time—an objection which, I know, also weighed upon the mind of the noble and learned Lord, Lord Denning, because he made it clear—that objection no longer obtains. I hope, therefore, that the House will support this amendment.

Lord Elton

My Lords, I am obliged to noble Lords for their comments on this amendment and particularly, if I may say so, to the noble Lord, Lord Plant, to the noble and learned Lord, Lord Denning, and to my noble friend Lord Renton because, among other things, they have put their fingers on the first point that I wanted to make. The noble Lord, Lord Mishcon, has submitted that this issue has not been decided as a matter of principle, but I would remind him of the passages in the Official Report of 24th July last (from column 177 through to column 186) dealing with the discussion of this provision.

I recall—and I am reminded by the record—that the noble Lord, Lord Elwyn-Jones, said as the principal part of his argument, at column 177, that he was, second to none in his acknowledgement of the great debt we owe to the magistracy. They cope with about 96 per cent. of the criminal cases that come before the country. But we are dealing here with an important power, an important intrusion on private liberty, and in our view for that to be dealt with in the privacy of an interview between a police officer and a justice of the peace—however able and experienced the justice of the peace may be—is not an appropriate tribunal". The noble and learned Lord went on to say (at column 178) that, it is appropriate that difficult problems of law of the kind that are liable to arise should be decided by a circuit judge and that that should be a condition for the granting of these powers". The noble and learned Lord, Lord Denning, has already recalled that that was the basis of his argument, and I see it was the basis of the argument of my noble friend Lord Campbell of Alloway as well as the argument of my noble friend Lady Macleod of Borve (to whom we all wish a speedy recovery).

I go through the debate and I find that this is what it is about. The only difference is a difference of whether it should always be a circuit judge because he is more appropriate, or whether it should be a circuit judge only if he is readily accessible, as well as more appropriate. The reading of the debate that I have is that your Lordships quite clearly decided that the magistrates were the most appropriate. That was the basis on which the decision was taken. I do not wish therefore to recapitulate the arguments which I advanced, I may say with success, at the last stage in order once again to persuade your Lordships that it would not be appropriate to go through the Lobby in order to put this matter into the Bill.

But there is one narrow area, as the noble and learned Lord, Lord Elwyn-Jones, has acknowledged, in which we have seen that there has been an omission. In so far as it is agreed that it is necessary to involve a circuit judge, there is one circumstance in which plainly we should have made provision for this and have failed to do so. That is the purpose of our amendments to Clause 8 and Schedule 1. They are No. 14 and Nos. 160 to 164. With your Lordships' permission I shall now speak briefly to those amendments. Amendment No. 14: Clause 8, page 10, line 14, after ("of") insert ("or include") Amendment No. 160: Schedule 1, page 105, line 11, leave out ("special procedure") and insert ("material which consists of special procedure material or includes special procedure material and does not also include excluded") Amendment No. 161: Page 105, line 13, leave out ("special procedure") Amendment No. 162: line 17, leave out ("special procedure") Amendment No. 163: line 19, leave out ("special procedure") Amendment No. 164: Page 105, line 31, at end insert ("material which consists of or includes") These amendments at once simplify the operation of Part II of the Bill and incorporate into the Bill the missing safeguard to which I referred. Under the Bill as drafted, where the police believe there is evidence of serious crime on certain premises which contains a mixture of special procedure material and material which is not confidential in any way, they are obliged to make one application to a magistrate in respect of the latter and a separate application to a circuit judge in respect of the former. This is undesirable on grounds of duplication, and it is also unsatisfactory in that there is no obligation on the police to apply to the judge even though special procedure material might be known to be on the premises. In other words, the Bill as drafted carries a risk that the police will enter solely on the authority of a magistrate's warrant, even though confidential material is involved in the case taken as a whole.

The amendments guard against this by saying in effect that in such a situation the police must apply to a circuit judge under Schedule 1, and he will then be empowered to deal with the application as a whole; and this meets the concern of noble Lords opposite under those circumstances. In other words, the circuit judge will be able to exercise the powers of a magistrate under Clause 8, as well as his own powers under Schedule 1.

It seems to us that the Government amendments therefore go some way towards meeting the point raised in the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones, without trespassing on what I still regard as being a previous decision of your Lordships as to the suitability of the level of decision.

Lord Gifford

My Lords, before the noble Lord sits down, may I say that I have listened with great care to what he has said about this matter having been discussed before. Can he tell the House what is wrong with the amendment proposed by my noble and learned friend? What is objectionable about it, and why could it not be perfectly operative and provide the safeguards which my noble and learned friend has indicated in his speech?

Lord Elton

My Lords, I am trying very hard to observe the tradition of your Lordships' House, which is that one does not return again to the same issue. As to the narrower question of the undesirability of treating a circuit judge as the suitable level of sanction on occasions when he is readily available, my noble friend has made it quite clear. The noble and learned Lord, Lord Denning, pointed out that we are dealing with cases of urgency. It is important that we should have procedures which policemen can operate urgently, and they would have to try to discover whether or not a circuit judge was readily available. That would be another thing to do in an emergency. So, I hope that I have said enough to persuade your Lordships to accept what we offer and not what the other noble Lords ask for.

Lord Elwyn-Jones

My Lords, with respect, this is not the same issue as we considered before. The gravamen of the earlier amendment was that in a situation of emergency it might, indeed, be difficult to find a circuit judge. It is for that reason that in this amendment we have covered the alternative of going to the justice of the peace.

If I may make one comment on the speech of the noble and learned Lord, Lord Denning, I would say that, of course, this will be a matter between a constable and the justice of the peace. It is not an inter parte proceeding. The clerk will not be there. There will be just the two of them, the constable and the justice of the peace. I submit that this is a matter of great importance. I remember having been greatly moved by the words of the noble and learned Lord, Lord Denning, about an Englishman's home being his castle. He has lost his enthusiasm. What has been happening in the meantime? I hope that in the circumstances the House will approve the amendment.

4.39 p.m.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 97; Not-Contents, 138.

DIVISION NO. 1
CONTENTS
Airedale, L.	Kaldor, L.
Allen of Fallowfield, L.	Kennet, L.
Amherst, E.	Kilmarnock, L.
Ardwick, L.	Kissin, L.
Attlee, E.	Lawrence, L.
Aylestone, L.	Leatherland, L.
Banks, L.	Listowel, E.
Beswick, L.	Llewelyn-Davies of Hastoe, B.
Birk, B.	McIntosh of Haringey, L.
Blyton, L.	McNair, L.
Boston of Faversham, L.	Mar, C.
Bottomley, L.	Masham of Ilton, B.
Brooks of Tremorfa, L.	Merrivale, L.
Bruce of Donington, L.	Meston, L.
Carmichael of Kelvingrove, L.	Milford, L.
Cledwyn of Penrhos, L.	Mishcon, L.
Collison, L.	Monson, L.
David, B. [Teller.]	Nicol, B.
Davies of Leek, L.	Oram, L.
Davies of Penrhys, L.	Perry of Walton, L.
Donaldson of Kingsbridge, L.	Phillips, B.
Donnet of Balgay, L.	Pitt of Hampstead, L.
Elwyn-Jones, L.	Ponsonby of Shulbrede, L.
Elystan-Morgan, L.	[Teller.]
Ewart-Biggs, B.	Prys-Davies, L.
Ezra, L.	Rea, L.
Fitt, L.	Rhodes, L.
Foot, L.	Roberthall, L.
Gallacher, L.	Rochester, L.
Galpern, L.	Seear, B.
George-Brown, L.	Sefton of Garston, L.
Gifford, L.	Serota, B.
Gladwyn, L.	Shaughnessy, L.
Gosford, E.	Shinwell, L.
Graham of Edmonton, L.	Simon, V.
Grey, E.	Stallard, L.
Grimond, L.	Stamp, L.
Hatch of Lusby, L.	Stedman, B.
Hooson, L.	Stoddart of Swindon, L.
Houghton of Sowerby, L.	Strabolgi, L.
Hughes, L.	Taylor of Blackburn, L.
Hutchinson of Lullington, L.	Taylor of Mansfield, L.
Hylton, L.	Tordoff, L.
Irving of Dartford, L.	Underhill, L.
Jacques, L.	Wallace of Coslany, L.
Jeger, B.	Wells-Pestell, L.
Jenkins of Putney, L.	Whaddon, L.
John-Mackie, L.	Wilson of Langside, L.
Kagan, L.	Wilson of Rievaulx, L.

NOT-CONTENTS
Alexander of Tunis, E.	Auckland, L.
Alport, L.	Avon, E.
Ampthill, L.	Bauer, L.

Belstead, L.	Long, V.
Berkeley, B.	Luke, L.
Bessborough, E.	Lyell, L.
Bethell, L.	McAlpine of Moffat, L.
Boardman, L.	McAlpine of West Green, L.
Boothby, L.	McFadzean, L.
Boyd-Carpenter, L.	MacLehose of Beoch, L.
Brabazon of Tara, L.	Mancroft, L.
Broxbourne, L.	Margadale, L.
Caithness, E.	Marley, L.
Cameron of Lochbroom, L.	Mersey, V.
Campbell of Alloway, L.	Milverton, L.
Campbell of Croy, L.	Molson, L.
Carnegy of Lour, B.	Morris, L.
Cathcart, E.	Mottistone, L.
Coleraine, L.	Mountgarret, V.
Constantine of Stanmore, L.	Mowbray and Stourton, L.
Cork and Orrery, E.	Moyne, L.
Cottesloe, L.	Munster, E.
Cox, B.	Murton of Lindisfarne, L.
Cullen of Ashbourne, L.	Newall, L.
Daventry, V.	Norwich, Bp.
Davidson, V.	Nugent of Guildford, L.
De Freyne, L.	O'Brien of Lothbury, L.
Denham, L. [Teller.]	Onslow, E.
Denning, L.	Pender, L.
Dormer, L.	Penrhyn, L.
Dundee, E.	Plant, L.
Ebbisham, L.	Plummer of St. Marylebone,
Eccles, V.	L.
Eden of Winton, L.	Porritt, L.
Elliot of Harwood, B.	Portland, D.
Elton, L.	Quinton, L.
Faithfull, B.	Renton, L.
Ferrers, E.	Rochdale, V.
Ferrier, L.	Rodney, L.
Foley, L.	Romney, L.
Fraser of Kilmorack, L.	Rugby, L.
Gardner of Parkes, B.	Saltoun, Ly.
Gibson-Watt, L.	Sandford, L.
Gisborough, L.	Sandys, L.
Glanusk, L.	Selborne, L.
Glenarthur, L.	Sempill, Ly.
Gowrie, E.	Skelmersdale, L.
Gray of Contin, L.	Somers, L.
Gridley, L.	Southborough, L.
Haig, E.	Spens, L.
Hailsham of Saint	Stanley of Alderley, L.
Marylebone, L.	Stodart of Leaston, L.
Halsbury, E.	Strathcona and Mount Royal,
Harmar-Nicholls, L.	L.
Hayter, L.	Strathspey, L.
Headfort, M.	Swansea, L.
Hives, L.	Swinton, E. [Teller.]
Holderness, L.	Terrington, L.
Home of the Hirsel, L.	Teviot, L.
Hood, V.	Thomas of Swynnerton, L.
Hornsby-Smith, B.	Thorneycroft, L.
Hylton-Foster, B.	Trefgarne, L.
Inglewood, L.	Trenchard, V.
Ingrow, L.	Trumpington, B.
Killearn, L.	Vaux of Harrowden, L.
Kinnaird, L.	Vickers, B.
Kintore, E.	Vivian, L.
Kitchener, E.	Ward of Witley, V.
Lane-Fox, B.	Whitelaw, V.
Lauderdale, E.	Young, B.
Lindsey and Abingdon, E.	Young of Graffham, L.
Lloyd of Hampstead, L.

On Question, amendment agreed to.

4.48 p.m.

Lord Elton moved Amendment No. 14: [Printed earlier: col. 1099.]

The noble Lord said: My Lords, I spoke to this amendment in the last debate. I beg to move.

Clause 10 [Meaning of "items subject to legal privilege"]:

Baroness Trumpington moved Amendment No. 15: Page 11, line 10, leave out ("the following provisions of this section") and insert ("subsection (2) below").

The noble Baroness said: My Lords, Amendments Nos. 15 to 19 inclusive are drafting amendments, of which I need only mention No. 19, since it meets the wish of the noble Lord, Lord Wigoder, that we substitute the word "believing" for the word "suspecting" in Clause 19: Page 18, line 38, leave out ("suspecting") and insert ("believing").

I beg to move Amendment No. 15.

Clause 16 [Execution of warrants]:

Baroness Trumpington moved Amendments Nos. 16 to 19:

Page 14, line 41, leave out ("a") and insert ("the").

Clause 18, page 17, line 35, leave out subsections (8) and (9) and insert—

("(8) If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the officer shall make the record as part of his custody record.").

Clause 19, page 18, line 18, leave out third ("it") and insert ("the evidence").

Page 18, line 38, leave out ("suspecting") and insert ("believing").

The noble Baroness said: My Lords, I beg to move Amendments Nos. 16 to 19 en bloc.

Clause 22 [Retention]:

Baroness Trumpington moved Amendment No. 20:

Page 20, line 27, at end insert ("19 or").

The noble Baroness said: My Lords, this amendment corrects an unintentional omission in the scheme of safeguards provided by Part II of the Bill. Clause 22 replaces the present rather vague common law governing the retention of property taken away by the police in the course of a criminal investigation by a clear statement of what may be retained and for how long. Clause 22 applies, by virtue of subsection (1), to computer material taken away by the police under Clause 20, but not—though it clearly should—to such material taken away under Clause 19(4). I say "clearly should" because your Lordships will recall from our earlier debates that Clause 19(4) is simply a special case of the general provisions of Clause 20. It would be confusing and unsatisfactory if Clause 22 applied to the latter but the former was still governed by a residue of common law, and I therefore ask your Lordships to agree to this clarifying amendment. I beg to move.

Clause 24 [Arrest without warrant for arrestable offences]:

Baroness Trumpington moved Amendment No. 21: Page 22, line 25, after ("procuring") insert ("the commission of")

The noble Baroness said: My Lord, I shall with permission also speak to Amendments Nos. 23 and 26 to 34 and clarify the drafting of Clauses 24 and 25 respectively.

Amendment No. 23: Page 24, line 5, leave out from ("person") to ("where") in line 7 and insert ("under sub-paragraph (iv) of that paragraph,except")

Amendent No. 26: Clause 30, page 26, line 6, leave out ("attached to") and insert ("working in the area covered by")

Amendment No. 27: Clause 32, page 27, line 29, leave out ("and") and insert ("to")

Amendment No. 28: Clause 33, page 29, line 5, leave out ("charged") and insert ("in connection")

Amendment No. 29: Page 29, line 6, leave out ("and").

Amendment No. 30: Page 29, line 7, leave out from beginning to ("section") in line 8 and insert—

("(b) without prejudice to paragraph (a) above, a warrant under")

Amendment No. 31: Page 29, line 13, leave out ("(ii)") and insert—

("(c) a warrant under—

((i)")

Amendment No. 32: Page 29, leave out lines 15 to 28.

Amendment No. 33: Page 29, line 33, leave out ("13")

Amendment No. 34: Page 29, line 33, leave out ("83")

Amendment No. 27 is consequential on the amendment proposed at Report by my noble friend Lord Trefgarne on 24th July at col. 274 of the Official Report. This limited search upon arrest in public to outer clothing is as originally suggested by the noble Lord, Lord Gifford. My Lords, I beg to move.

Clause 25 [General arrest conditions]:

[Amendment No. 22 not moved.]

Baroness Trumpington moved Amendment No. 23: [Printed above.]

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

Clause 27 [Fingerprinting of certain offenders]:

Baroness Trumpington moved Amendment No. 24: Page 25, line 4, leave out subsection (6).

Clause 29 [Voluntary attendance at police station etc.]:

Lord Mishcon moved Amendment No. 25:

Page 25, line 32, at end insert— (aa) he shall be cautioned as soon as a constable has grounds to believe he has committed an offence, and informed that he may leave at will and that he may consult a solicitor if he wishes;").

The noble Lord said: My Lords, I think that I can take this amendment very briefly, though it deals with a very important point. It may or may not be completely covered by the code, but I am asking your Lordships to agree that this should definitely be a provision in the Bill. I am taking with this amendment—conveniently, I believe—Amendment No. 43.

Amendment No. 43: Clause 37, page 32, line 13, at end insert— ("( ) Where a custody officer authorises a person who has not been charged to be kept in police detention he shall, as soon as is practicable, inform him of his rights under sections 56 to 58 of this Act.").

Your Lordships will see that under Amendment No. 25 we are dealing with a situation where there is a voluntary attendance at a police station and in those circumstances, and in the course of the voluntary attendance, some police officer at some stage is going to decide whether or not an offence has been committed, or whether he thinks there are grounds to believe that an offence has been committed. At that stage, there should be no doubt at all that the Bill provides that the person concerned should be informed that he may leave at will and that he may consult a solicitor if he wishes. That ought to be in the Bill so that there is no doubt at all as to the man's legal rights. The same argument applies, when one looks at Amendment No. 43, to the rights that are given under this Bill, but in regard to which there is no provision that the person should be so informed.

The individual at a police station will obviously be in a very nervous condition, unless he is of the criminal type who knows all his rights, anyway, because he has been through it before. I am not so concerned with him at all. I am concerned with the person who is not well versed in the law as to what his legal rights may be; who is not indeed a barrack room lawyer—if I may use a phrase which will commend itself to many of your Lordships with recollections of a previous era—and who has to be told in the midst of his nervousness, "Now, look. I have reached the stage where I think there are grounds for believing that you have committed this offence. I am going to tell you here and now that you have the right to leave this police station now that I have reached that position and I have cautioned you and you have the right to see a solicitor". Fairness will then be seen to be done. My Lords, I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I think that the noble Lord has made a case for this amendment going in the Bill. It is admittedly under paragraph 11.1 of the code fairly clearly put, but it is one of the most important items in the whole Bill. Noble Lords will remember that we started by having a more general rule put in, and the noble Lord shot us down from the Front Bench by asking. "Are we going to make a rule that we have got to advise every lady who comes in and says that she has lost a dog?" We have now changed it rather ingeniously, so that nobody has to be told his rights when he goes into a police station, until a policeman suspects him of something. But I think that the minute he does suspect it must be an absolute rule for the police to do that. It would be a much more satisfactory way, from the point of view of the customer—if I may so call him—than the provision now made in the Bill and it would be quite unavoidable that he is told of his rights. So I have to support the amendment.

Lord Campbell of Alloway

My Lords, I fully understand and sympathise with everything that the noble Lord, Lord Mishcon, has said. It is a question of approach. To what degree is the code to be put into statutory form? That is the decision. In so many ways—we have now reached a late stage of the Bill—I would have preferred to see many of the provisions of the code put into statutory form. But I suggest that it is a bit late to pick and choose in this regard now and it is only for that reason that I would not support the amendment.

Lord Hutchinson of Lullington

My Lords, may I say to the noble Lord, Lord Campbell, that already in the Bill, so far as Clause 29 (a) and (b) are concerned, parts of the code are being put into the Bill, since paragraphs 11.4 and 3.8 are specifically included. So I would submit with the greatest respect: why not put this amendment also into the Bill, which appears in the code at 11.1 and 11.4, and then the whole lot are in the Bill? Why put half into the Bill and not the other half?

Lord Denning

My Lords, it is a matter for consideration whether it is better in the Bill or in the code. For myself, I consider that this sort of instruction would be better in the code rather than put specifically into a statute.

Lord Elton

My Lords, I am most obliged to the noble and learned Lord and to others who have taken part in this debate. I am also glad that we are considering Amendments Nos. 25 and 43 together. They are linked by a common factor, which is that they both seek to incorporate into the text of the Bill requirements which already appear in the draft code of practice. We have discussed the advisability of doing this in principle on a number of occasions and your Lordships will recall that in Committee we decided not to do it in a Division on an amendment moved by the noble Lord, Lord Hutchinson of Lullington. The proposal in that amendment was that a custody officer at a police station should be required to give various pieces of information to anyone attending it voluntarily. The information was more detailed but the broad principle is the same, and I hope that your Lordships will be content if I only remind you briefly of why we decided not to allow it.

The first consideration was that if you start selecting bits of the codes to distinguish, by copying them into the Bill and leaving others out, there is only one conclusion to draw, which is that the bits you incorporate into the Bill are more important than the ones you leave out; and the codes which we now have are important throughout. All their provisions have to be obeyed. Failure to obey them is a disciplinary offence. Policemen are not asked to consider which parts of the codes are more important and which are less. They are expected to obey them all.

The noble Lord's amendments would suggest that the parts that they really must obey are those which in Amendment No. 25 he seeks to incorporate in Clause 29, and which Amendment No. 43 seeks to add to Clause 37. We resist those amendments, because they make it in some way less important to obey the other provisions in that part of the code. But even if noble Lords opposite actually believe that these provisions ought to be treated as more important and more readily obeyed, or if they reject—as the noble Lord, Lord Hutchinson of Lullington, I suspect would do—that argument altogether, I wonder whether I can nevertheless still persuade noble Lords not to press this amendment.

Codes of practice and Acts of Parliament are, I accept, very different, and noble Lords opposite will certainly accept that as well. But the difference does not lie in their force, in the extent to which they will be obeyed by policemen thanks to the operation of Clause 37. The difference lies in our ability to change them. The codes of practice on detention and identification which we now have are in their fourth draft, and every draft is an improvement on the one before. That on the searching of premises is in its second draft, and it is an improvement on the first. That on stop and search is a new arrival on the scene and still has to be improved; it is in its first draft.

We have found ways of improving each of the drafts so far printed, and we have found defects in present drafts as well. There is room for improvement even in that part of the code on detention which these amendments seek to set into the immutable form of a statute. For example, take the case of a person who is required under the Road Traffic Act to provide his driving licence at a police station. He goes to the station and puts the licence on the counter, whereupon the officer there sees that it is invalid and that the address is different from the one the person actually gave. The officer really ought not at that point to tell the person without more ado that he need say nothing unless he wishes to do so and may leave at will, because he would be liable to immediate arrest under Clause 25 if he acted on this information by refusing to give his address and walking out.

I do not want to give other examples. The point I am making is that the codes of practice are put before your Lordships in good faith. It is our intention to keep improving them. We do not think that we necessarily have the right answer to current circumstances in the present drafts; and circumstances will change. Given that the codes will have all the force which your Lordships could require in any case, I hope your Lordships will not now accept these amendments.

Lord Mishcon

My Lords, I hope to be equally brief, as I trust I was when I moved this amendment, important though I think it is. We are dealing very much with matters that affect the liberty of the subject and his rights before the law. Your Lordships have to decide, being eclectic in these matters—one has to be; one cannot put the whole of the code into this Bill—what are the important provisions.

We on these Benches submit that this is a very important provision, and we say that there is a difference which the noble Lord the Minister I am sure did not intentionally omit from his description of the differences between the code of practice and an enactment. One is a guide to behaviour; one is something which sets the code which, if a police officer disobeys it, may in fact exact some kind of disciplinary punishment. But it is no comfort to the subject who has not had the code applied to him. When it is in an Act of Parliament, then Parliament has spoken and Parliament has said, "This should be done, this must be done", and there are legal consequences that follow. It is in that spirit that I have moved this amendment.

5.4 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

There Lordships divided: Contents, 97; Not-Contents, 137.

DIVISION NO. 2
CONTENTS
Airedale, L.	Kagan, L.
Allen of Fallowfield, L.	Kaldor, L.
Amherst, E.	Kennet, L.
Ardwick, L.	Kilmarnock, L.
Attlee, E.	Kissin, L.
Aylestone, L.	Lane-Fox, B.
Beswick, L.	Lawrence, L.
Birk, B.	Leatherland, L.
Blyton, L.	Listowel, E.
Boston of Faversham, L.	Llewelyn-Davies of Hastoe, B.
Bottomley, L.	McIntosh of Haringey, L.
Brooks of Tremorfa, L.	McNair, L.
Bruce of Donington, L.	Mar, C.
Carmichael of Kelvingrove, L.	Merrivale, L.
Cledwyn of Penrhos, L.	Meston, L.
Collison, L.	Milford, L.
Darcy (de Knayth), B.	Mishcon, L.
David, B.	Monson, L.
Davies of Leek, L.	Mulley, L.
Davies of Penrhys, L.	Nicol, B.
Donaldson of Kingsbridge, L.	Oram, L.
Donnet of Balgay, L.	Perry of Walton, L.
Edmund-Davies, L.	Phillips, B.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Ponsonby of Shulbrede, L.
Ewart-Biggs, B.	[Teller.]
Ezra, L.	Prys-Davies, L.
Fitt, L.	Rea, L.
Foot, L.	Rhodes, L.
Gallacher, L.	Roberthall, L.
Galpern, L.	Rochester, L.
George-Brown, L.	Seear, B.
Gifford, L.	Serota, B.
Gladwyn, L.	Shinwell, L.
Gosford, E.	Somers, L.
Graham of Edmonton, L.	Stallard, L.
Grey, E.	Stedman, B.
Grimond, L.	Stoddart of Swindon, L.
Hatch of Lusby, L.	[Teller.]
Henderson of Brompton, L.	Strabolgi, L.
Hooson, L.	Taylor of Blackburn, L.
Houghton of Sowerby, L.	Taylor of Mansfield, L.
Hughes, L.	Tordoff, L.
Hunt, L.	Underhill, L.
Hutchinson of Lullington, L.	Wallace of Coslany, L.
Hylton, L.	Whaddon, L.
Jacques, L.	Wilson of Langside, L.
Jeger, B.	Wilson of Rievaulx, L.
Jenkins of Putney, L.	Winchilsea and Nottingham,
John-Mackie, L.	E.

NOT-CONTENTS
Alexander of Tunis, E.	Constantine of Stanmore, L.
Alport, L.	Cork and Orrery, E.
Auckland, L.	Cottesloe, L.
Avon, E.	Cox, B.
Bauer, L.	Cullen of Ashbourne, L.
Belhaven and Stenton, L.	Daventry, V.
Beloff, L.	Davidson, V.
Belstead, L.	De Freyne, L.
Berkeley, B.	Denham, L. [Teller]
Bessborough, E.	Denning, L.
Boardman, L.	Dundee, E.
Boothby, L.	Ebbisham, L.
Boyd-Carpenter, L.	Eccles, V.
Brabazon of Tara, L.	Eden of Winton, L.
Broxbourne, L.	Ellenborough, L.
Bruce-Gardyne, L.	Elliot of Harwood, B.
Buckinghamshire, E.	Elton, L.
Caithness, E.	Faithfull, B.
Cameron of Lochbroom, L.	Ferrers, E.
Campbell of Alloway, L.	Ferrier, L.
Campbell of Croy, L.	Foley, L.
Carnegy of Lour, B.	Fortescue, E.
Cathcart, E.	Fraser of Kilmorack, L.
Coleraine, L.	Gardner of Parkes, B.

Gibson-Watt, L.	Munster, E.
Gisborough, L.	Murton of Lindisfarne, L.
Glanusk, L.	Newall, L.
Glenarthur, L.	Nugent of Guildford, L.
Gowrie, E.	Onslow, E.
Gray of Contin, L.	Pender, L.
Gridley, L.	Penrhyn, L.
Haig, E.	Plant, L.
Hailsham of Saint	Plummer of St. Marylebone,
Marylebone, L.	L.
Halsbury, E.	Porritt, L.
Harmar-Nicholls, L.	Portland, D.
Hayter, L.	Quinton, L.
Headfort, M.	Renton, L.
Hives, L.	Richardson, L.
Holderness, L.	Rochdale, V.
Hood, V.	Rodney, L.
Hornsby-Smith, B.	Saltoun, Ly.
Hylton-Foster, B.	Sandford, L.
Ilchester, E.	Selborne, E.
Inglewood, L.	Sempill, Ly.
Ingrow, L.	Shaughnessy, L.
Killearn, L.	Skelmersdale, L.
Kinnaird, L.	Southborough, L.
Kintore, E.	Spens, L.
Lane-Fox, B.	Stamp, L.
Lauderdale, E.	Stanley of Alderley, L.
Lindsey and Abingdon, E.	Stodart of Leaston, L.
Long, V.	Strathcona and Mount Royal,
Luke, L.	L.
Lyell, L.	Strathspey, L.
McAlpine of Moffat, L.	Swansea, L.
McAlpine of West Green, L.	Swinton, E. [Teller.]
McFadzean, L.	Terrington, L.
MacLehose of Beoch, L.	Teviot, L.
Mancroft, L.	Thomas of Swynnerton, L.
Margadale, L.	Thorneycroft, L.
Marley, L.	Trefgarne, L.
Mersey, V.	Trenchard, V.
Milverton, L.	Trumpington, B.
Molson, L.	Vaux of Harrowden, L.
Morris, L.	Vickers, B.
Mottistone, L.	Vivian, L.
Mountgarret, V.	Ward of Witley, V.
Mowbray and Stourton, L.	Whitelaw, V.
Moyne, L.	Young of Graffham, L.

On Question, amendments agreed to.

Clause 30 [Arrest elsewhere than at police station]:

5.13 p.m.

Baroness Trumpington moved Amendment No. 26: [Printed earlier: col. 1104.]

The noble Baroness said: My Lords, I have already spoken to Amendments Nos. 26 and 27 to 34. I beg to move Amendment No. 26. At the same time I give notice that I shall move Amendments Nos. 27 to 34 en bloc.

Clause 32 [Search upon arrest]:

Clause 33 [Execution of warrant not in possession of constable]:

Baroness Trumpington moved Amendments Nos. 27 to 34 en bloc.

[Printed earlier: col. 1104.]

Clause 34 [Limitations on police detention]:

Lord Elton moved Amendment No. 35:

Page 30, line 27, at end insert— ("(6) For the purposes of this Part of this Act a person arrested under section 7(5) of the Road Traffic Act 1972 is arrested for an offence.").

The noble Lord said: My Lords, subsection (2) of Clause 38 provides that, for the purposes of subsection (1), a person arrested under Section 7(5) of the Road Traffic Act 1972–that is, on suspicion of driving with excess alcohol—is arrested for an offence. This is a declaratory provision intended to put it beyond doubt that such a person may be charged and detained or bailed in the normal way.

It has belatedly become clear to us that, in so far as the declaratory provision is needed at all, it ought to apply not only in the context of Clause 38 but also in that of Part IV as a whole. For example, it is clear that the custody officer should be responsible for the welfare and treatment of such a person under Clause 39; but that clause is tied to police detention, which in turn presupposes an arrest for an offence.

This amendment therefore generalises the provisions of Clause 38(2) in a way which I hope your Lordships will agree is sensible. I beg to move.

Clause 35 [Designated police stations]:

Lord Elton moved Amendment No. 36:

Page 30, line 34, at end insert— ("( ) Without prejudice to section 12 of the Interpretation Act 1978 (continuity of duties) a chief officer—

1. (a) may designate a station which was not previously designated; and
2. (b) may direct that a designation of a station previously made shall cease to operate.").

Lord Elton moved Amendment No. 37: Page 30, line 36, after ("station") insert ("for the time being").

Clause 36 [Custody officers at police stations]:

Lord Inglewood moved Amendment No. 38: Page 31, line 4, leave out ("sergeant") and insert ("a police constable with four years of service after the completion of his probation").

The noble Lord said: My Lords, I beg to move Amendment No. 38. I do not believe that sufficient time has been spent upon considering the status of the custody officer. In the large majority of cases, sergeants will be appointed as custody officers, and this will be a heavy burden on a number of police forces, which will frequently have to fall back on new promotions. It is a great pity that in our police force there is no rank comparable with that of corporal in some of the police services abroad or with the rank of corporal in the army. I have tried to define a similar rank and status which would be more suited to the wording of the Bill. I have suggested that senior police constables with the length of service I have described would be appropriate persons to take on these duties. However, my amendment would not prevent sergeants and others from being appointed as custody officers if this suited a particular police force.

There are certain disadvantages to such appointments. If one looked at the telephone book, counted up the number of police stations in London and assumed that three custody officers per station would be needed each day to cover the period of 24 hours, one would realise that many hundreds of new sergeants would have to be found from somewhere. If men are to be promoted to the rank of sergeant to take over this new job, it means that they will have to be taken off the streets. This will affect the establishment of some forces. Extra expense is likely to be incurred under Clause 36. I do not need to expand my point. I believe it is understood that in many cases it would be more appropriate to appoint senior constables to serve as custody officers since they could perform these duties just as efficiently as sergeants. I beg to move.

Lord Elwyn-Jones

My Lords, it seems to us on this side of the House that the duties of a custody officer are very important. We take the view that the proposal contained in the Bill—that the custody officer should be of at least the rank of sergeant—is about right.

Lord Plant

My Lords, I support the observations of my noble friend Lord Elwyn-Jones. We agreed at the Committee stage that the custody officer will be a very important person. The noble Lord, Lord Mishcon, asked the noble Lord, Lord Elton, if the Home Office would issue instructions that the custody officer should be of the rank of sergeant, and that he should be independent. The noble Lord, Lord Elton, agreed. Independence is extremely important. If we were to suggest that a police constable should have that kind of independence it would place a very considerable strain upon him.

The Bill states that it will be very difficult for the decision of a custody officer to be overturned. If the custody officer does not agree with any action taken by a senior officer he must, according to the Bill, express his concern to a person who is senior in rank to that of his senior officer. It would be very unfair indeed if a constable were to be placed in the position of having to remonstrate with a sergeant or inspector who criticised the way in which he was carrying out his duties.

We had a complete assurance from the Government that the custody officer would be a sergeant. There were many other things I should have liked to see, but I had to give way. However, what offends me as an old trade union leader is that this amendment wants to downgrade the work and make it cheaper. The Bill itself imposes on the custody officer work of some complexity and responsibility, and I strenuously oppose, as does my noble and learned friend Lord Elwyn-Jones, that this work should be downgraded to a task for a constable.

Lord Edmund-Davies

My Lords, the whole layout of the clause rightly stresses the importance of having an officer of responsibility and experience. As far as invoking the aid of a police constable of any seniority is concerned, there is the provision under Clause 36(4), which refers to an officer of any rank having the power in a real emergency. Therefore, in my respectful submission this clause should pass as it stands.

Lord Elton

My Lords, I fully accept that throughout the country there are men and women who remain constables throughout their police career, in many cases from their own choice, who would be able to carry out a custody officer's responsibilities by reason of their experience and personal qualities. Nevertheless, the requirement in the Bill that the custody officer be of sergeant rank is an important safeguard, and I do not think that we should do anything to weaken it.

The custody officer plays a key role under Part IV of the Bill. He is responsible for decisions relating to the detention and release of detained persons, for their welfare and treatment, and for the recording of all matters affecting their detention. He must be independent of the investigation in progress; and under Clause 39(5) he has a direct line to senior officers in the event of any improper attempt to influence the way he carries out his duties. I believe that the Bill as drafted sets a standard for the performance of these duties in which the public can have confidence, while Clause 36(4) provides a degree of flexibility, as the noble Lord said, in case the appointed officer is for some reason unavailable at the relevant time.

I am much obliged to my noble friend for the careful thought that he has given to this matter, but I think that the general perceptions of the public, voiced by your Lordships in other parts of the House, must be reassured. As the noble and learned Lord, Lord Edmund-Davies, said, the occasions when this must for a moment be set aside are already provided for in the Bill. Therefore, I regret I cannot support my noble friend's amendment.

Lord Inglewood

My Lord, I would not wish to pursue the discussion at this time of the evening, but I hope the Minister can give some indication of the cost of this operation, which could be considerable over the whole country. Also, what will be the effect on establishments?

Lord Elton

My Lords, with the leave of the House, I do not have the figure of the difference in cost. I regard the greatest cost of my noble friend's suggestion as the cost in public confidence. That, I think, we cannot afford. As to the actual cost of the difference in rank, I will write to my noble friend.

Lord Inglewood

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.22 p, m.

Lord Inglewood moved Amendment No. 39: Page 31, line 5, after ("rank") insert ("after the completion of his probation").

The noble Lord said: My Lords, this is exactly the reverse of the previous amendment, when my suggestion was that we would often find it appropriate for a senior police officer to carry these duties. At the same time Clause 36(4) states: An officer of any rank may perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them.

My words simply suggest that there should be a bottom limit; otherwise, under the Bill as drawn, a very junior officer could, in fact, hold this responsibility. It could happen under pressure and be an easy way out for certain police stations. I beg to move.

Lord Elton

My Lords, I must say that I do not think it likely that circumstances will in fact arise in which a probationary constable would be called upon to put on the custody officer's hat, if I may so put it, even for a short time. But it is possible that such a thing might happen exceptionally. If it did, the amendment proposed by my noble friend might have unfortunate consequences.

The kind of thing for which Clause 36(4) provides is the occasion when the appointed custody officer suddenly falls ill or is called out of the police station to deal with an incident requiring his immediate presence—perhaps a sizeable disturbance in the area covered by his station. The subsection provides for a constable to take over, as it were, as acting custody officer in such a temporary absence. As I have said, it is unlikely that the only officer available to take over in such circumstances would be a probationer. But it is not absolutely inconceivable, and if such a situation did ever arise then it would be better for the senior officer on the spot to decide, in the light of all the circumstances at the time, which officer or officers should stay at the station and which should go out to deal with the incident. The need to cover for the custody officer will be only very short term and I therefore see the noble Lord's amendment as an unnecessary fetter on the police.

I can also tell your Lordships that the Association of Chief Police Officers agrees that, apart from in exceptional circumstances, a probationary constable should not be called upon to act as custody officer but, like us, they feel it prudent to allow for exceptional circumstances. The assurance the association gives as to practice will make my noble friend realise that the danger which he rightly perceives will not, in fact, arise.

Lord Inglewood

My Lords, what has been said today by the Minister and myself indicates that this point has not been given enough time and thought. I think I am right in saying something which the Minister might have told us. There are four schemes, with four different forces in this country, now being worked through so that the right sort of conclusions may be discovered. It is a pity that we should be so definite at this stage when the Home Office has schemes in four different forces at the moment. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne) moved Amendment No. 40: Page 31, line 13, at end insert— ("( ) Nothing in subsection (5) above is to be taken to prevent a custody officer—

1. (a) performing any function assigned to custody officers—
1. (i) by this Act; or
2. (ii) by a code of practice issued under this Act;
2. (b) carrying out the duty imposed on custody officers by section 39 below;
3. (c) doing anything in connection with the identification of a suspect; or
4. (d) doing anything under section 8 of the Road Traffic Act 1972.").

The noble Lord said: My Lords, on behalf of my noble friend, I beg to move Amendment No. 40. Clause 36(5), interpreted strictly, would preclude the custody officer from participating in a wide range of more or less routine administrative or procedural duties, such as the taking of fingerprints or the operation of the intoximeter machine, which could technically form part of an investigation or at least have evidential consequences. It was, of course, never the intention to go as far as this; but rather to separate out custodial from investigative responsibilities in a way which prevented an appointed custody officer from prejudicing his position as guardian of a suspect's rights by participating in CID work such as interrogation. The purpose of this amendment is, therefore, simply to clarify what subsection (5) is intended to rule out.

Most obviously, the custody officer must clearly be able to perform duties assigned to him by the Bill or codes of practice without coming into conflict with subsection (5). For example, it is a part—and properly a part—of the custody officer's duties to be responsible for the searching of suspects in his custody. But such a search as authorised by Clause 54 might well have an investigative as well as a protective purpose.

It should also, I think, be common ground that there is nothing incompatible with the role of the custody officer in his taking various steps to identify a suspect, whether by taking his photograph or fingerprints or, in an extreme case, assisting in the taking of a body sample. Such procedures should indeed be under the custody officer's direct supervision and control to enable him to ensure, for example, that unnecessary force is not used.

Finally, it should be possible for the custody officer to operate the evidential breath-testing procedures. The custody officer of tomorrow is an evolutionary development of the station sergeant of today, and it is the station sergeant who actually operates the intoximeter. Indeed, only such officers are trained and authorised to do so, so that an expensive new training programme would be required if other officers had to be brought into the station specially to operate the machine. This would also, of course, be very wasteful of scarce manpower. The present arrangements give rise to no conflicts of responsibility or difficulties, and the amendment will enable them to continue.

The amendment will enable police stations to function effectively without compromising the important principle that the appointed custody officer is not himself concerned in what would generally be regarded as the central core of an investigation. I beg to move.

Lord Mishcon

My Lords, if I may say so without trying to dramatise my observations on this amendment, this is a typical case where your Lordships' attention ought to be drawn specifically to the wording of an amendment and what may go into an Act of Parliament as against what the Minister in perfect good faith has defined as the purpose of the clause. Subsection (5), as it exists in the Bill at the present moment, provides for the complete independence of the custody officer. Indeed, the noble Lord, Lord Elton, only a moment ago said that that was a very precious principle. In other words, the custody officer ought to be taking no part in the investigation of the offence itself, or anything which is a corollary of that, but should be seen by the person who is in his care to be somebody who is quite outside the investigation of whether he has committed an offence.

I ask your Lordships, if you will, to look at the wording of this amendment—and that is the only way in which I ask your Lordships to criticise it—and in particular at paragraph (c) and then paragraph (d). Paragraph (c) says: Nothing in subsection (5)"— which provides for the independence of the custody officer— is to be taken to prevent a custody officer … doing anything in connection with the identification of a suspect". In perfectly good faith the noble Lord the Minister gave the example of taking fingerprints. If one were limited to that procedural matter I should not be on my feet now, but the identification of a suspect can indeed be the convening of an identification parade. From the point of view of the suspect there is nothing more sinister than the convening of an identification parade which may lead either to his being identified or not. That is a very practical part in the investigation of an offence.

I now turn to paragraph (d) which deals with: doing anything under section 8 of the Road Traffic Act 1972". I believe that I am right in saying that that section was added—I am not quite sure whether I am right about this—by a subsequent Act by way of amendment. But whether it was or whether it was not, the fact of the matter is that that is a matter which relates to breathtaking procedures in regard to somebody who is suspected quite obviously of having a wrong content of alcohol or of drugs within him when he is in charge of or driving a car. So far as that person is concerned, the person who operates the procedures upon him is obviously taking part—and very much so—in the investigation of the offence. He will know what the result of it is and whether this man is to be charged as a result. That is part and parcel of the investigation of the offence. In my respectful submission, the custody officer loses his independence in regard to the two vital matters covered by paragraphs (c) and (d).

I do not intend to ask the House to divide on this. This amendment has just come before us. But in view of the fact that the Bill will now be going to another place, and, as I understand it, there will be the possibility of further amendments, I ask the Minister to consider what has been said, and I believe that your Lordships will have some sympathy with what has been said.

Lord Trefgarne

My Lords, if I may briefly reply to the noble Lord, first on the question of the identification parade, I understand that the identification code places the responsibility for organising a parade on a uniformed inspector separate from the investigation, and that that restriction also applies in all cases and will not be overridden by the amendment. In any event, I believe that the custody officer has to be able to identify each person at the police station, since he is responsible for safety and security. For example, the custody officer must be able to know whether the person has a record of violence. Clearly he has to identify him to determine that, perhaps under another name, so that he can take the necessary precautions. I think that it is right that the new provision is put into the Bill.

On the question of the Road Traffic Act problems to which the noble Lord also referred—for example, the operation of a breath-testing machine—I think that it is appropriate for these officers, trained as they are in the use of this apparatus, to be allowed to do so in these circumstances. I do not think that one needs to suggest, as I think was implied in the words of the noble Lord, that there was perhaps a risk that the officer might be, to say the least, careless, say, in the taking of such a test—

Lord Mishcon

No, no.

Lord Trefgarne

—because that could only be the implication of my understanding at least of what the noble Lord said.

Lord Mishcon

My Lords, I am sure that the noble Lord the Minister will forgive me. That is a wholly false impression, which I am sure that he did not want to create. My whole point concerned the effect on the accused. It was not a question of doubting the sincerity, honesty or integrity of the officer.

While I am on my feet, may I go back to the identification parade. The only requirement in regard to the inspector rank is for the person holding the parade. This amendment deals with doing anything in connection with the identification of a suspect. Therefore an officer below the rank of inspector can convene the parade, take part in it and be seen by the suspect so to do.

Lord Trefgarne

My Lords, that may be the case, but the fact is that the conduct of the parade (which I think is the important problem to which the noble Lord has referred) is in the hands of the uniformed inspector, to whom I earlier referred. I would not want to put in the mouth of the noble Lord words that he did not intend to be there about the breath testing, or, if I misunderstood him, I apologise. The fact is that the operation of those machines is a task which requires training but it is none the less a routine one. I believe that it is right that the officers should be permitted to carry out those functions under the provisions of the amendment as proposed.

Clause 37 [Duties of custody officer before charge]:

5.38 p.m.

Lord Elton moved Amendment No. 41: Page 31, line 36, after ("Where") insert ("(a)").

The noble Lord said: My Lords, Clause 37(1) sets out the duties of the custody officer when a person arrives at a police station under arrest. The custody officer must determine whether or not there is sufficient evidence to charge him. If so, then subsection (7) applies. If not, then subsection (2) applies. In either case a decision has to be made about the person's detention. We have realised—and I am sorry that we have done so so late in the day—that there is a small gap in this detention scheme. Clause 37(1) covers the case where a person arrives at the station under arrest: it does not cover, as it should, the case where he arrives back at the station to answer to police bail. It should cover this situation because exactly the same considerations apply.

If, for instance, a person who has been arrested is released on bail subject to a duty to return to the police station in a week's time once forensic tests of a suspect substance have been completed, for instance, and if the tests have proved positive that the suspect substance was indeed a controlled drug, it is necessary for the custody officer to have a clear authority to redetain the person for the purpose of charging him. Once he is charged, Clause 38 will then apply in the normal way.

If, however, there is at that stage insufficient evidence to permit the custody officer to charge the person, he will have to decide whether or not his redetention for the purposes of securing that evidence is necessary. If he does so, then Clause 47(7) will restart the detention clock where it left off so that the overall limits on detention apply as if he had not been bailed in the first place. That, I think, is a fair and sensible arrangement.

This amendment therefore clarifies the Part IV scheme without extending police powers, and I ask your Lordships to accept it. I beg to move.

5.40 p.m.

Lord Elton moved Amendment No. 42: Page 31, line 38, at end insert ("or (b) a person returns to a police station to answer to bail,").

The Deputy Speaker (Lord Alport): I think Amendment No. 43 was spoken to under Amendment No. 25.

[Amendment No. 43 not moved.]

[Amendment No. 44 not moved.]

Baroness Ewart-Biggs moved Amendment No. 45: Page 33, line 14, after ("him") insert ("and any person who is required to be informed of his detention under section 57 of this Act, unless after reasonable efforts to do so, this proves impracticable").

The noble Baroness said: My Lords, I thought, wrongly, that perhaps we would be speaking to Amendments Nos. 44, 45 and 45A which arrived on the Marshalled List today.

Amendment No. 45A: Page 33, line 15, at end insert— ("(11A) It shall also be the duty of the custody officer— (a) to take such steps as are practicable to ascertain the identity of a person responsible for the welfare of the arrested juvenile; and (b) if—

1. (i) he ascertains the identity of any such person; and
2. (ii) it is practicable to give that person the information which subsection (11) above requires the custody officer to give to the arrested juvenile,

to give that person the information as soon as it is practicable to do so. (11B) For the purposes of subsection (11A) above the persons who may be responsible for the welfare of an arrested juvenile are—

1. (a) his parent or guardian; and
2. (b) any other person who has for the time being assumed responsibility for his welfare.

(11C) If it appears to the custody officer that a supervision order, as defined in section 11 of the Children and Young Persons Act 1969, is in force in respect of the arrested juvenile, the custody officer shall also give the information to the person responsible for the arrested juvenile's supervision, as soon as it is practicable to do so.").

Lord Elton

My Lords, by your Lordships' leave, it may help your Lordships if I say that I did not move Amendment No. 44 because it is replaced by Amendment No. 45A, and I look forward to speaking to that in the wake of the noble Baroness's speech.

Baroness Ewart-Biggs

My Lords, perhaps I may speak to my amendment and then bring in a reference to the amendment of the noble Lord. The aim of our own amendment was to make sure that the rights of parents were strengthened and to ensure the presence of an independent adult at each stage of a young person's being in police custody. This has been the aim also of the amendment that we have tabled. However, if I may speak to the Minister's amendment, we feel that the onus should remain on the parents' needing to be given the information about the whereabouts of their child and that reasonable efforts, meaning the continuation of efforts, should be made by the police to try to locate the parents and let them know where their child is.

As I have said, we have made various attempts during the passage of this Bill to strengthen the rights of parents. In most cases these have been resisted by the Government. After all, the vast majority of parents do wish to show responsibility towards their children when they are in trouble. I think it is unlikely to bring comfort and reassurance to parents when they cannot feel quite certain that they will not be told until it is practicable for the police to tell them. I beg to move.

Lord Elton

My Lords, with your Lordships' leave, I will speak not only to Amendment No. 45 which is now before your Lordships, but to Amendments Nos. 45A, 95A, 95B and 95C. Amendment No. 95A: Page 54, leave out lines 26 to 30 and insert: ("such steps as are practicable shall be taken to ascertain the identity of a person responsible for his welfare. (2A) If it is practicable to ascertain the identity of a person responsible for the welfare of the child or young person, that person shall be informed, unless it is not practicable to do so—

1. (a) that the child or young person has been arrested;
2. (b) why he has been arrested; and
3. (c) where he is being detained.

(2B) Where information falls to be given under subsection (2A) above, it shall be given as soon as it is practicable to do so. (2C) For the purposes of this section the person who may be responsible for the welfare of a child or young person are—

1. (a) his parent or guardian; or
2. (b) any other person who has for the time being assumed responsibility for his welfare.

(2D) If it is practicable to give a person responsible for the welfare of the child or young person the information required by subsection (2A) above, that person shall be given it as soon as it is practicable to do so."). Amendment No. 95B: Page 54, line 31, after ("If") insert ("it appears that"). Amendment No. 95C: Page 54, line 35, at end insert ("as soon as it is reasonably practicable to do so"). My Lords, at both Committee and Report I promised the noble Baroness to bring forward an amendment to Clause 37(11) which would have the effect of requiring the custody officer, in accordance with the section of the Children and Young Persons Act 1969—which is not yet in force—to inform not only an arrested juvenile himself about the taking of a prosecution decision but also the persons who must be informed of his detention under Clause 57.

As your Lordships will see from the amendment standing in my name to this clause and to Clause 57, it has proved more complicated to honour these amendments than I had ever imagined when I tabled them. I ask your Lordships to prefer Amendment No. 45A and those which follow it to Amendment No. 45 which the noble Baroness has proposed. It is a longer amendment than that of the noble Baroness, which is not a point which I favour, but I believe that it sets out the desired sequence of events clearly and satisfactorily.

The noble Baroness will, of course, understand that the implementation of subsections (11) and (11) (a) to (11)(c) is contingent on the implementation of the 1969 Act itself. That has always been the case. Our consideration of Amendment No. 45 led us to realise that Clause 57 to which it refers was itself not drafted quite correctly. In therefore ask your Lordships also to agree to Amendments Nos. 95A to 95C which bring its drafting into line with what is now proposed for Clause 37.

The short point is that while Section 34 of the Children and Young Persons Act 1933, which Clause 57 replaces, requires the police to take such steps as are practicable to inform a juvenile's parents or guardian of his arrest, Clause 57, as presently drafted, goes too far in placing on the police an absolute requirement to inform them, even though this may on occasion be impracticable or impossible because their whereabouts are simply unknown. That is the only difference between us. I do not think the noble Baroness would wish to put the police in an impossible position. I hope she agrees that we have now honoured our undertaking.

Baroness Ewart-Biggs

My Lords, I am extremely grateful to the noble Minister for coming so far towards what we were asking. The only point about which I was asking him was this. When the police say that it is not practical, is that because it is impractical from their point of view because there is a lot of work on at the station and so on and therefore it is not practicable to go in a car, try to find the parent and bring him back to the police station, or whatever takes place? Or is it not practical in that they literally cannot make contact? In such a case I would say that they should go on trying to make contact with the parent. This was what was laid out more clearly in our amendment: that they would have to go on taking steps to try to make contact with the parents to ensure that the parents were there with their child.

Lord Elton

My Lords, with the leave of your Lordships' House, may I say that I understand the anxiety of the noble Baroness about this. I think if she pauses to reflect for a moment, as to what is and what is not practicable is ground over which we have been a number of times. This is on the face of the Bill. Therefore in the last analysis it would be for the courts to decide. So if it was ever felt that the police had not been taking sufficient trouble in this direction there would eventually be a means of securing that they did.

However, it is the honest intention of the Government that the police should make honest attempts to contact these people. They are actually in the business of not only punishing crime but preventing it. Contacting the parents is often a very important ingredient in that. So their professional consciences as well as their private consciences will be engaged here.

The Deputy Speaker

The Question is that Amendment No. 45 be agreed to.

A Noble Lord

Amendment No. 45A.

The Deputy Speaker

I beg your Lordships' pardon. The Question is that Amendment No. 45A be agreed to.

Lord Elton

My Lords, would the noble Lord the Deputy Speaker permit me to intervene? I think I detected from the noble Baroness's speech that she was not intending to press her amendment because she was accepting the one that followed. I am not sure that she expressed that in the record and that is why the noble Lord the Deputy Speaker is putting the question that he is. If the noble Baroness wanted to withdraw it, I have tried to keep my foot in the door long enough for her to do so.

The Deputy Speaker

My Lords, I had understood that the noble Baroness was intending to withdraw it, but as she did not do so I followed what I hoped was normal practice. But on the understanding that she now wishes to withdraw Amendment No. 45, is it your Lordships' pleasure that the amendment be withdrawn?

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 45A:

[Printed above.]

The noble Lord said: My Lords, I have spoken to this with the previous amendment. I beg to move.

Clause 38 [Duties of custody officer after charge]:

Lord Trefgarne moved Amendment No. 46: Page 33, line 41, leave out from ("with") to end of line 42 and insert ("the administration of justice or with the investigation of offences or of a particular offence;").

The noble Lord said: My Lords, on behalf of my noble friend, I rise to move Amendment No. 46. It may also be convenient to your Lordships if I speak at the same time to Amendments Nos. 54, 56, 57, 58, 67, 68 and 71.

Amendment No. 54: Page 35, line 28, leave out from beginning to ("and") in line 34 and insert—

("(a) an officer of higher rank than the custody officer gives directions relating to a person in police detention;").

Amendment No. 56: Page 36, line 44, at end insert ("and").

Amendment No. 57: Page 37, line 2, leave out from ("officer") to end of line 4.

Amendment No. 58: Page 37, leave out lines 15 to 20 and insert—

("(a) an officer of higher rank than the review officer gives directions relating to a person in police detention;").

Amendment No. 67: Page 39, line 28, leave out ("the") and insert ("an").

Amendment No. 68: Page 39, line 28, leave out ("investigation") and insert ("arrest").

Amendment No. 71: Page 43, line 27, leave out from ("above") to end of line 32 and insert—

1. ("(a) before the expiry of 24 hours after the relevant time; or
2. (b) before the expiry of any longer period for which his continued detention is or has been authorised under section 42 above.").

All these amendments clarify the drafting of various clauses in Part IV of the Bill and I commend them accordingly.

Baroness Ewart-Biggs moved Amendment No. 47: Page 34, line 3, leave out from ("satisfied") to end of line 6.

The noble Baroness said: My Lords, the aim of this amendment is to prohibit the police from merely detaining juveniles after charge on the basis of their own good. This sub-paragraph which allows a police officer to decide that an arrested juvenile ought to be detained in his own interests means that such a power can be exercised solely on the subjective thinking of a single police officer.

I certainly do not wish to take long over this, but I am concerned that the retention of this sub-paragraph might increase the number of instances where a young person is detained beyond the termination of the interview simply because, as is sometimes now the case, the police do not believe that he has told everything he has to tell and it therefore must be in his own interests for him to remain, presumably until they have questioned him a little further.

In my view, the arguments put forward previously by the Minister were not very good. He gave instances of its being in the young person's interest to be detained. I feel that those arguments were rather ambivalent. If a young person is detained for his protection, then the police already have the necessary power under Clause 38(1)(a)(ii). In my view, therefore, this particular sub-paragraph is not necessary.

Lord Elton

My Lords, this amendment would omit paragraph (b)(ii) of subsection (1) of the clause. This is the paragraph that allows the custody officer to authorise the detention of the juvenile who has been arrested and charged with an offence if such detention is in his own interests. Once the custody officer has taken such a decision, he is then required by subsection (7) of the clause to make arrangements for the juvenile's transfer into local authority care pending his production in court no later than the next day, Sundays excepted.

It is therefore important to be clear, first, that we are talking about detention for only a very short period and, secondly, that we are talking about detention in local authority care. Regardless of the unruliness of the juvenile, detention will not be in a police station unless it is impracticable in the circumstances to make the necessary arrangements. The provisions of the subparagraph which this amendment seeks to remove are not new law. All that the sub-paragraph does is to continue in force the existing law as contained in Sections 28 and 29 of the Children and Young Persons Act 1969. The sections permit the detention of an arrested juvenile pending his appearance in court if this is considered to be necessary in his own interests. This is deliberately wide language and the Bill simply repeats it.

There is a real and practical need to provide for the detention in their own interests, probably for no longer than overnight, of juveniles who have been charged with offences. The noble Baroness said that the instances that I gave were not very good. I wonder whether I included the instance with which the British Transport Police are all too familiar. I think that it is perfectly good. The noble Baroness nods her head. She has a better recollection of it than I have. It is the case of the young boy who decides to play truant, gets on to the London train without a ticket and is then arrested. The police charge him with an offence but the parents do not want to come to London to collect him even if the police have been able to discover where they live and who they are.

If the police do discover where they live and who they are but the parents will not come down until the next day, the police, in those circumstances, cannot be required to let him on to the streets with nowhere to go. The noble Baroness herself has taken part in debates about the extreme danger that being turned loose and homeless on to the streets of London represents for provincial children of 14, 15 and 16. It may well be in the juvenile's own interest for him to be detained in local authority care until his production in court later that day or the following day. It would certainly not be in his interests if he were turned loose to find his way no doubt to the gravitational centre of these things at Leicester Square or Piccadilly Circus.

I also referred to other matters at an earlier stage, but I think that what I have stated just now lies at the heart of the issue. It is clear that there must be a reserve power for this purpose. We may not have got it absolutely right in the eyes of the noble Baroness but this is the last opportunity to get at it at all. I am quite certain that she does not want to expose these young people to unacceptable risks. I ask her not to press the amendment.

Lord Elwyn-Jones

My Lord, I wonder whether it would be possible for some indication to be given about how the police propose to use this power—purposes benevolent, as I understand it. To that, of course, there is no conceivable objection. We would, however, be grateful for an indication of a willingness to take away the sense of alarm that exists over an indefinite power to detain, ostensibly in the interests of the juvenile. I do not quite know how that could be done. I do not know whether it is worth inclusion in the codes of practice. Will thought be given to some means of allaying what may be genuine concern, although, in most cases, of course, it would be without foundation?

Lord Elton

My Lords, I shall try to do two things in that respect. The first is simply to remind your Lordships that the child or young person will be held not in a police station but in local authority care, which clearly divorces this from any suspicion of oppressive police use. The second is that it merely repeats provisions that we already have which do not at present give rise to this alarm. I have tried to make clear that we are merely re-incorporating existing statute. However, the noble and learned Lord has wisely referred to the codes of practice. If, on reflection, we find that there is still some alarm on this matter, and if we find that it is appropriate so to do—I can give no commitment—we would make an amendment in the next draft.

On Question, amendment negatived.

Lord Elton moved Amendment No. 48: Page 34, line 7, leave out subsection (2).

The noble Lord said: My Lords, this amendment goes with Amendment No. 35. I beg to move.

Clause 39 [Responsibilities in relation to persons detained]:

5.55 p.m.

Lord Elton moved Amendment No. 49: Page 35, line 7, after ("detention") insert ("(a)").

The noble Lord said: My Lords, subsection (2) provides that where a detained person is transferred from the custody of the custody officer to an investigating officer—whether for questioning or to be taken to the scene of the crime—the custody officer's responsibilities under Clause 39 also pass to the investigating officer. So it is the latter who is made personally responsible for the suspect's treatment.

These amendments make good an unintended omission, in that subsection (2) applies only to investigating officers and not, for example, to an officer who is charged with guarding a suspect during his transfer from one force area to another or while he is ill at hospital. In such circumstances, it is plainly wrong that the custody officer back at the police station should remain personally responsible for the person's treatment, and hence liable to disciplinary proceedings if the escorting officer slips up. The amendments therefore make it clear that subsection (2) applies in any case where a person in police detention is taken away from the police station under police guard, and that it is the police officer who actually has charge of the person who is responsible for his treatment and welfare. I beg to move.

Lord Elton moved Amendments Nos. 50, 51 and 52: Page 35, line 9, at end insert ("or (b) to the custody of an officer who has charge of that person outside the police station,") line 12, leave out ("investigating the offence") and insert ("to whom the transfer is made") line 14, leave out ("that person") and insert ("he").

The noble Lord said: My Lords, I omitted to say when I spoke to Amendment No. 49, although using the plural, that it was to be taken with Amendments No. 50, 51 and 52. If your Lordships permit, I shall now move those three amendments en bloc.

Lord Elton moved Amendment No. 52A:

Page 35, line 26, at end insert— ("(4A) It shall be the duty of a local authority to make available to an arrested juvenile who is in the authority's care in pursuance of such arrangements such advice and assistance as may be appropriate in the circumstances.").

The noble Lord said: My Lords, your Lordships are treating this with even more admirable calm than I am. On Amendment No. 52A, to Clause 39, I should also like to speak, if I may, to Amendment No. 53.

Amendment No. 53: Page 35, line 26, at end insert— ("( ) It shall be the duty of the local authority to ensure that the arrested juvenile is treated in accordance with the duties and responsibilities imposed on the local authority under section 18(1), (2) and (3) of the Child Care Act 1980 in respect of children in their care.").

The noble Baroness, Lady Ewart-Biggs—I take it that the noble Baroness is included in this approach—noble Lords opposite and the Government share common cause in our two amendments. As she will no doubt explain, it is her purpose to ensure that local authorities pay full and proper regard to the wellbeing of arrested juveniles who are transferred to their care under the provisions of Clause 38. That is our intention also. As I explained to the Committee when the noble Baroness moved a similar amendment at an earlier stage, we sympathise with this objective but we have reservations about the means by which the next amendment seeks to attain it. Where an arrested juvenile is exceptionally not transferred to the care of a local authority but is kept at a police station, his detention will be subject to the terms of the code of practice prepared under Clause 66 of the Bill.

However, this code does not apply to those arrested juveniles who are transferred to the care of a local authority; nor do the provisions of the Child Care Act 1980 which relate to the treatment of children in the care of local authorities apply to this particular category of children. The Government agree with noble Lords moving the other amendment that some form of statutory provision relating to their treatment is desirable. However, Section 18 of the Child Care Act 1980, which their amendment would apply, is designed to cater for children who are in the long-term care of local authorities. For example, it refers to, the need to safeguard and promote the welfare of the child throughout his childhood". It is essential, of course, for the local authority to have regard to such considerations in catering for the needs of children who are in their care for a long time, but they are hardly appropriate in the case of arrested juveniles who will be in their care for perhaps only a few hours overnight.

What we are concerned with here is ensuring that the immediate needs of these young people are met. To do that, we must allow flexibility to cater for the range of circumstances in which arrested juveniles might come into a local authority's care. They may turn up, for instance, out of normal hours when all the authority's facilities are not available. What we need, therefore, is a wide general duty upon local authorities, and in this context I should emphasise that the Government will be drawing the attention of local authorities to the code of practice on detention. I hope that the noble Baroness will feel this is a preferable way of proceeding to that which she has proposed. I believe it arrives at exactly the same place.

Baroness Ewart-Biggs

My Lords, again, I am very grateful to the Minister for having gone towards what we wanted, but I am not quite sure that I agree with him that it covers the same purpose as our amendment. I feel that the Government amendment is obviously very much more vague and generalised and lays down a more vague and generalised requirement. In our amendment, we are trying to bring the arrested juvenile into line with other young people in care. I do not see why we should not wish to bring them into line with other young people in care, including those who are remanded to care having been refused bail during an adjournment in criminal proceedings.

Our amendment puts the local authority under a duty to treat them in accordance with the welfare principle of Section 18 of the Child Care Act. Furthermore, the Minister's amendment places no duty on the local authority to apply Section 18(1), which says that the local authority is under a duty, as far as practicable, to, ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding". So I do not see why this particular child who is in the care of the local authority should not have that same consideration afforded him.

Lord Campbell of Alloway

My Lords, may I ask my noble friend the Minister to reply to a point of clarification? Is it right that the noble Baroness's amendment is really concerned with long-term care and that what we are concerned with here is short-term care? Is this the difference with which we are grappling?

Lord Elton

My Lords, my noble friend has put his finger on the centre of what I was trying to say. The provisions which the noble Baroness's amendment calls down in defence of the young people are provisions designed for all local authorities responsible for young people for considerable periods of their life. For instance, if they are remanded in custody, it may be that the case goes on for a year or more. These people are the people we were discussing a moment ago, who are going to be dealt with very soon. There are two considerations here. One is that the authority should not be under a duty which is appropriate to the long care guardianship, as it were, of the child, and the other is that in the brief time available it may be very difficult for them to do precisely the things that are set out in the statute, both because the time is not long enough and because they are not appropriate. So I hope the noble Baroness will feel that we have put sufficient protection here and will not forgo the opportunity to put it into the Bill.

Lord Davies of Leek

My Lords, as somebody who is very interested in juvenile opportunity for education, may I ask the Minister whether he is aware that in a transition period there may be juvenile delinquents whose intelligence is very high and who are going to meet difficulties in respect of examinations? I have known cases where a child who is detained is about to take either his 0 levels or A levels, and although he is a juvenile he may be of high intelligence. Under this provision, is it possible for that child, whether or not he is in care, to take an examination in the period during which he is detained, whether it be short or whether it be long? He may have committed an offence at the age of 15 or 16 and the entire destiny of his future may be altered if he is refused permission to sit important examinations at that age. Has the Minister got an idea of the point I am trying to make?

Baroness Faithfull

My Lords, I wonder whether I may intervene, because I think we are getting slightly confused here. There is a difference in child care parlance. One talks about long-term cases and short-term cases. If one is talking about long-term cases and short-term cases, the noble Lord's comments are absolutely valid, but if one is talking about a crisis situation, with a child just charged at a station, it is quite a different matter. As I understand it, if they are in the care of a local authority, children and young people are safeguarded in a crisis situation, which is quite different from short-term and long-term situations.

Lord Elton

My Lords, if your Lordships will permit the unusual thing of a Minister speaking three times at Third Reading on one amendment (which is not to be encouraged), may I say that my noble friend has in part answered the noble Lord, Lord Davies of Leek, because unless the child happens to have the misfortune to be arrested on a Monday and have an 0 level exam on the Tuesday morning, with the court not sitting until the Tuesday afternoon, we are very unlikely to get into this position.

On Question, amendment agreed to.

[Amendment No. 53 not moved.]

Lord Trefgarne moved Amendment No. 54:

[Printed earlier: col. 1121.]

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

Clause 40 [Review of police detention]:

Lord Elton moved Amendment No. 55: Page 36, line 36, at end insert— ("( ) If a review is carried out after postponement under subsection (4) above, the fact that it was so carried out shall not affect any requirement of this section as to the time at which any subsequent review is to be carried out.").

The noble Lord said: My Lords, at Report the noble Lord, Lord Monson, argued persuasively that the postponement of a review of detention should not put back the subsequent reviews. I undertook to bring forward an amendment to meet this point. This is it, and I beg to move it.

Lord Monson

My Lords, I am most grateful to the Government for having accepted the spirit of my Report stage amendment and for acting accordingly. At that stage the noble Lord, Lord Elton, indicated that that would be the case. I have just one reservation. For doubtless unavoidable technical reasons, the amendment before us lacks the straightforward clarity that is such an admirable feature of the greater part of this Bill. Can the noble Lord say whether the police will be issued with explanatory notes covering those sections and subsections which, for drafting reasons, have to be couched in somewhat obscure legalistic phraseology?

Lord Elton

My Lords, I am so glad to find one Member of your Lordships' House who finds the rest of this Bill simple and straightforward. The object of the code of practice is always to make clear to the police any matters which may be in doubt. If this is obscure, then not only will it be in the code of practice. but it will be taken into account in the training of the policemen who have to work it.

Lord Trefgarne moved Amendment No. 56:

[Printed earlier: col. 1121.]

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

Lord Trefgarne moved Amendments Nos. 57 and 58:

[Printed earlier: col. 1121.]

The noble Lord said: My Lords, I beg to move Amendment No. 57 together with Amendment No. 58.

Clause 41 [Limits on period of detention without charge]:

Lord Mishcon moved Amendment No. 59: Page 38, line 10, at end insert ("in the case of a person arrested in England or Wales shall be the time of his arrest").

The noble Lord said: My Lords, all of us have been very careful to make our speeches short at Third Reading and I know that short speeches will not be interpreted as meaning that we do not attach importance to the amendments. Moreover, there is no point in repeating speeches made at previous stages of the Bill. Therefore, if I may respectfully say so, I want the House to regard the amendments to which I am now going to speak—namely, Amendments Nos. 59, 62, 64 and 65—as being of material importance because they go right to the root of the liberty of the subject.

We are dealing with the question of detention without charge and your Lordships will remember that there are provisions under the Bill for extending the time of detention without charge in appropriate cases. What we are dealing with in this amendment is the question of the time from which the detention starts—from when does the clock begin to tick?

Lord Elton

My Lords, I do not want to interrupt the noble Lord when he is getting into the flow of his remarks, but I wonder whether he has intentionally left out Amendments Nos. 60 and 61 which I think belong to this group of amendments? If he is going to take them separately it will take a little thought.

Lord Mishcon

My Lords, I am sorry if I was not clear. I meant to say that I was moving Amendments No. 59 to 62 and also Amendments No. 64 and 65. If I did not make that clear I apologise to the House.

The Deputy Speaker (Baroness Wootton of Abinger)

My Lords, the noble Lord will recall that if he wishes to move a series of amendments it is customary that the first one should be moved separately and then the others follow. Amendment No. 59 should be moved separately.

Lord Donaldson of Kingsbridge

My Lords. may I point out that Amendments Nos. 64 and 65 are not in the noble Lord's name.

Lord Mishcon

My Lords, let me make myself abundantly clear. I wish to move Amendment No. 59; nothing in the world will prevent me from doing so except your Lordships' anger. When moving Amendment No. 59, I intend to speak to Amendments Nos. 60, 61 and 62. I believe that I am right—but again I apologise to the House if I am wrong—in saying that in the grouping Amendments Nos. 64 and 65 are grouped with these amendments and so I said. for the purpose of brevity, that I would also be speaking to Amendments Nos. 64 and 65, although I accept immediately that I will not be moving those amendments. However, the House will have the great opportunity of hearing somebody far more capable than I move those amendments.

Noble Lords

Hear, hear!

Lord Mishcon

My Lords, I did not expect that there would be such complete agreement with that last remark.

Amendment No. 60: Page 38, line 11, leave out paragraph (a).

Amendment No. 61: Page 38, line 20, leave out from beginning to second ("the") in line 24.

Amendment No. 62: Page 38, leave out lines 26 to 39.

Amendment No. 64: Page 38, line 27, after ("case") insert (", except where sub-section (4A) below applies,").

Amendment No. 65: Page 38, line 44, at end insert—("(4A) If—

1. (a) a person is in police detention in a police area in England and Wales ("the first area"); and
2. (b) his arrest for an offence is sought in some other police area in England and Wales ("the second area"); and
3. (c) he is taken to the second area for the purposes of investigating that offence, without being questioned in the first area in order to obtain evidence in relation to it,

the relevant time shall be—

1. (i) the time 24 hours after he leaves the place where he is detained in the first area; or
2. (ii) the time at which he arrives at the first police station to which he is taken in the second area,

whichever is the earlier.").

Let me return to the principle upon which I wish to address your Lordships very briefly; namely, the important question of the moment from which the clock begins to tick so far as the detention period is concerned of somebody who has not yet been charged, bearing in mind all the powers under the Bill to extend that period. I can put the situation very simply. We say in these amendments that in regard to someone arrested in England or Wales the clock will begin to tick from the time of the arrest. The Bill, wrongly in our view, says that the clock only begins to tick 24 hours after the arrest. Why is the clock not moving during that period?

In regard to arrests outside England and Wales, we say in this amendment that the time will begin to run when the boundaries of England and Wales are reached. The Bill says—and we say quite wrongly—that the clock only begins to tick 24 hours after arriving within the borders of England and Wales. I do not think that any long speech of mine will do anything other than to underline what I am sure your Lordships already appreciate is a matter of vital importance. I am sure that your Lordships will appreciate that this is a question of detention without charge. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I only want to say that we on these Benches think that this matter is just as important as the noble Lord does. I do not have anything to add except that to say that detention begins after arrest seems to be half baked. What does it mean? Detention must always begin on arrest. There cannot be any other argument about it at all, and therefore we fully support the amendment.

Lord Inglewood

My Lords, I do not want to make a complicated issue even more complicated, but I live very near to the border between England and Scotland and I hope that this matter will be made so clear in the Bill that all those concerned will understand. Furthermore, I have had certain police connections concerned with arrests abroad and persons being brought back to this country under arrest. What happens if they are on cross-Channel boats and they are brought across the Channel? When does the clock start to tick?

Lord Elton

My Lords, neither your Lordships nor this amendment are concerned with when detention begins, but with when the detention clock begins. I hope that the noble Lord, Lord Donaldson, will accept that distinction. The Bill does not in fact say that the clock begins to run 24 hours after arrest; it does say that the clock does not begin to run until the person has arrived at the right police station, up to a maximum of 24 hours in the case of a person arrested outside the area where he is wanted or indeed abroad. These amendments are similar to amendments that were negatived in the Commons and others which were withdrawn in your Lordships' own Committee on 9th July. I say "similar" and not "the same" because the Third Reading version goes further than that which we saw in Committee.

The noble Lord, Lord Elystan-Morgan, took the field on this matter in Committee and said that the Opposition acknowledged that where a person was arrested outside the area of the police force investigating the offence of which he was suspected, to start the detention clock running before he reached that area could lead to serious difficulty in some cases and accordingly he did not then seek to impose that difficulty on the police. However, now his noble friend does so seek.

If a person is arrested in Newcastle for an offence committed even as far away as St. Ives in Cornwall, the noble Lord would have the detention clock start at the moment of arrest. Meaningful questioning of course could not start until either a police officer had come from St. Ives in order to question the suspect, or the suspect had been escorted from Newcastle to St. Ives. The whole of that journey-time, if the noble Lord is concerned with it, would count against the time allowed to the police for inquiries before charge.

If our provisions were constructed so as to let the police grill the suspect both in Newcastle and on the long journey to the south and west without using up their ration of time I could understand the noble Lord's desire to amend the Bill. But that is not the case. Section 15 of the draft detention code makes it perfectly clear that questioning of a prisoner in transit is forbidden unless the detention clock has already started to run. This also applies to prisoners arrested outside England and Wales.

However, the main and very striking anomaly in what is proposed is this. The provision which the noble Lord wants to include in the Bill would mean that any criminal who wanted to diminish the time available to the police for questioning him would merely have to run away as fast and as far as he could before he was caught. Time spent in travel, either to the home police to collect him or by himself under escort, would all be deducted from the time in which the force concerned could question him. Every mile he went would increase the chances that they would be forced to release him without charge simply because they had run out of time. I believe that that is contrary to the public interest and entirely unacceptable.

If that was the only effect of the noble Lord's amendments I should in any case be urging your Lordships to resist them. But it is not; there is more. They affect not only those cases in which a suspect is arrested outside the police area in which the offence was committed: they affect the arrest of the home-based criminal as well. In part, the effect is merely a reflection on a much smaller scale of the odd "away match" phenomenon, which I have just described; but there are other effects, and I drew your Lordships' attention to them at the Committee stage.

For a start, it would remove from the police, now for the first time, subject to a new and rigorous timing regulation, an easily identifiable point at which the detention clock begins to run. It would start, not upon entry into the ordered conditions of the police station, but in the disorderly scenes, for instance, of a picket line or a demonstration. Several individuals similarly arrested for similar offences in the same demonstration could have start times separated by minutes or quarters of an hour; and often, no doubt, it would be very difficult indeed to fix precisely in time. That can only lead to confusion, which can lead to difficulty in the courts.

In Committee the noble Lord, Lord Airedale, said that a person arrested at a disturbance did not care tuppence whether he was in a black maria or at a police station. I replied that I thought that he would care fourpence about whether of not the system worked.

These amendments would undoubtedly lead to disputes about detention times which were not readily capable of settlement. Disputes would arise where persons were interviewed under caution but without being arrested. The amendment would also tend to undermine the very important principle that the custody officer is personally responsible for the treatment of all persons detained at his police station, including the provision of reviews of detention at the appropriate time and the release of persons at the appropriate time.

We have touched on this. Your Lordships have today already accepted that it would be wrong to give the custody officer responsibility for the efflux of time when he had no control over what was going on, and we agreed an earlier amendment to that effect. We really cannot expect him to undertake this responsibility, which can of course have the severest disciplinary consequences, if some part of the period of his detention is entirely outside his control, supervision and, indeed, knowledge. However, that is what noble Lords opposite ask of us and ask of him.

The role of the custody officer is central to the safeguards underlying the detention scheme in the Bill, and anything which undermines the effectiveness of his control would be against the best interests of the detained person himself, who noble Lords opposite wish to protect as much as we do. Moreover, in general, offences are committed locally and investigated locally. In the great majority of cases an arrested person is taken speedily to the nearest police station, and Clause 30 allows for delay only to carry out such investigation as can reasonably be done immediately.

Perhaps I may now turn to Amendments No. 64 and 65. They are Government amendments touching on the same clause, and were grouped with these amendments for convenience. They are designed to deal with the infrequent cases in which a criminal is arrested in a police area on suspicion in the normal way and where the police then holding him later learn that he is also wanted by another police force for another offence committed outside the area of their own force.

Our amendments are designed to get round a difficulty in such cases, but I do not wish to dilate upon them now as it is an adjacent area rather than a similar one. For the several, very strong reasons that I have given, I ask your Lordships not to put Amendment No. 59 into this Bill.

Lord Airedale

My Lords, as I have been mentioned perhaps I could ask this question. If the Bill remains as it is and a person is detained by police in an area other than the police area where the matter is being investigated, can the police who detain him be as leisurely as they like in delivering him to the police area where he is wanted in the knowledge that the clock will not begin to run until they do deliver him to the police area where the matter is being investigated? What is the sanction requiring the arresting police not to behave in a leisurely manner?

Lord Elton

My Lords, with your Lordships' leave, may I say that the Bill allows an absolute maximum of 24 hours.

Lord Mishcon

My Lords, the noble Lord the Minister is a powerful debater, and I would be the first to pay that tribute. However, the fact remains—and this is why we are so concerned with this amendment—that although we are dealing with detention without charge, even if an accused person or a detained person has no questions directed to him on a journey he is still being detained and his liberty is still being taken from him. His liberty and his rights are in your Lordships' hands, and it is for that reason that I ask your Lordships to support these amendments.

6.26 p.m.

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

Their Lordships divided: Contents, 79; Not-Contents, 108.

DIVISION NO. 3
CONTENTS
Airedale, L.	Jeger, B.
Amherst, E.	Jenkins of Putney, L.
Attlee, E.	John-Mackie, L.
Aylestone, L.	Kaldor, L.
Beswick, L.	Kilbracken, L.
Birk, B.	Kilmarnock, L.
Blyton, L.	Lawerence, L.
Boston of Faversham, L.	Listowel, E.
Bottomley, L.	Llewelyn-Davies of Hastoe, B.
Brockway, L.	McGregor of Durris, L.
Brooks of Tremorfa, L.	McIntosh of Haringey, L.
Carmichael of Kelvingrove, L.	McNair, L.
Cledwyn of Penrhos, L.	Merrivale, L.
Collison, L.	Meston, L.
Darcy (de Knayth), B.	Milford, L.
David, B.	Mishcon, L.
Davies of Leek, L.	Monson, L.
Davies of Penrhos, L.	Mulley, L.
Donaldson of Kingsbridge, L.	Nicol, B.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Ponsoby of Shulbrede, L.
Ewart-Biggs, B.	[Teller.]
Foot, L.	Prys-Davies, L.
Gallacher, L.	Rea, L.
Galpern, L.	Rochester, L.
George-Brown, L.	Seear, B.
Gifford, L.	Serota, B.
Gosford, E.	Stallard, L.
Graham of Edmonton, L.	Stedman, B.
[Teller.]	Stoddart of Swindon, L.
Grey, E.	Strabolgi, L.
Grimond, L.	Taylor of Mansfield, L.
Hanworth, V.	Tordoff, L.
Hatch of Lusby, L.	Underhill, L.
Houghton of Sowerby, L.	Wallace of Coslany, L.
Hughes, L.	Whaddon, L.
Hunt, L.	White, B.
Hutchinson of Lullington, L.	Wilson of Rievaulx, L.
Hylton, L.	Winchilsea and Nottingham,
Irving of Dartford, L.	E.
Jacques, L.	Wootton of Abinger, B.

NOT-CONTENTS
Allen of Abbeydale, L.	Bessborough, E.
Auckland, L.	Boyd-Carpenter, L.
Avon, E.	Brabazon of Tara, L.
Bauer, L.	Broadbridge, L.
Belhaven and Stenton, L.	Broxbourne, L.
Belstead, L.	Buckinghamshire, E.

Caithness, E.	Lyell, L.
Cameron of Lochbroom, L.	McAlpine of Moffat, L.
Campbell of Alloway, L.	McAlpine of West Green, L.
Carnegy of Lour, B.	McFadzean, L.
Carnock, L.	Mancroft, L.
Cathcart, E.	Margadale, L.
Coleraine, L.	Marley, L.
Constantine of Stanmore, L.	Marshall of Leeds, L.
Cork and Orrery, E.	Masham of Ilton, B.
Cottesloe, L.	Mersey, V.
Craigavon, V.	Milverston, L.
Daventry, V.	Molson, L.
Davidson, V.	Morris, L.
Denham, L. [Teller.]	Mottistone, L.
Denning, L.	Mowbray and Stourton, L.
Digby, L.	Munster, E.
Dundee, E.	Murton of Lindisfarne, L.
Eccles, V.	Napier and Etterick, L.
Eden of Winton, L.	Nugent of Guildford, L.
Elliot of Harwood, B.	Orr-Ewing, L.
Elton, L.	Penrhyn, L.
Faithfull, B.	Plummer of St. Marylebone,
Ferrers, E.	L.
Ferrier, L.	Portland, D.
Fortescue, E.	Renton, L.
Fraser of Kilmorack, L.	Rochadale, V.
Gardner of Parkes, B.	Rodney, L.
Gibson-Watt, L.	Romney, E.
Glanusk, L.	Sandford, L.
Glenarthur, L.	Skelmersdale, L.
Gowrie, L.	Somers, L.
Gray of Contin, L.	Spens, L.
Gridley, L.	Stamp, L.
Haig, E.	Stanley of Alderley, L.
Hailsham of Saint	Stodart of Leaston, L.
Marylebone, L.	Strathcona and Mount Royal,
Halsbury, E.	L.
Harmar-Nicholls, L.	Strathspey, L.
Hives, L.	Swinton, E. [Teller.]
Holderness, L.	Teviot, L.
Hood, V.	Thomas of Swynnerton, L.
Hylton-Foster, B.	Trefgarne, L.
Inglewood, L.	Trumpington, B.
Ingrow, L.	Tryon, L.
Killearn, L.	Vaux of Harrowden, L.
Kinnaird, L.	Vickers, B.
Kintore, E.	Vivian, L.
Lane-Fox, B.	Ward of Witley, V.
Lauderdale, E.	Whitelaw, V.
Long, V.

On Question, amendment agreed to.

[Amendments Nos. 60 to 62 not moved.]

6.35 p.m.

Lord Elton moved Amendment No. 63: Page 38, line 26, at end insert— ("(bb) in the case of a person who—

1. (i) attends voluntarily at a police station; or
2. (ii) accompanies a constable to a police station without having been arrested,

and is arrested at the police station, the time of his arrest").

The noble Lord said: My Lords, this is essentially a drafting or clarificatory amendment, though I appreciate that it touches on an issue of some controversy. Clause 41(2) defines the point at which the detention clock starts to run. It does not, unfortunately, deal in terms with the case where a person is at a police station voluntarily and is arrested there. The Government have of course always made it clear that in such a case the detention clock should begin to run at the point of arrest and not at an earlier point. The amendment simply makes it clear that the Bill does what we have always argued it does and should do. Other noble Lords appear to have read the Bill in exactly the same way as we have. The speech of the noble Lord, Lord Hooson, on 5th July bears that out.

I do not want to go over the argument of substance again at length because it was already well ventilated and, indeed, decided at previous stages. We debated the underlying issue of voluntary attendance both at Committee and on Report. The basic point is that both the Bill and the codes of practice will ensure that a person who is at a police station as a suspect without having been placed under arrest is fully aware that he is free to leave and is there voluntarily and not under any form of disguised compulsion.

Clause 29 requires anyone who would not be allowed to leave at will to be placed under arrest, whether or not an attempt to leave has been made. The codes of practice require anyone who becomes a suspect at a police station, or goes there as a suspect but not under arrest, to be told before being questioned that he may leave if he wishes and may obtain legal advice. I thought I should ventilate that because although this merely makes the Bill do what I think all sides of the House assumed it did, it would not be right for me to slip it under your Lordships' noses without comment. I beg to move.

Lord Elton moved Amendment No. 64:

[Printed earlier: col. 1128.]

The noble Lord said: My Lords, although I mentioned Amendments Nos. 64 and 65 in the debate on Clause 59, I did not explain the unintentional defect that they are intended to put right. It results from the combination of Clause 31 and subsection (4) of Clause 41. Clause 31 requires a person under arrest for one offence to be further arrested for another offence if he would be liable to arrest for that offence were he at liberty. Clause 41(4) provides that the detention clock continues to run in such a case from the time of the first arrest. The purpose of these two provisions is to ensure that the time limits on detention are not exceeded where a person is simultaneously wanted in connection with a number of offences. The police cannot play cat and mouse with him by letting him out on one offence and bringing him back on another.

The provisions work as they should in the standard case where an arrested person is wanted for a number of offences in the same area. The problem arises where a person is arrested for a further offence, as he is required to be by Clause 31, when he is already in police detention in another force area. Such a case might arise where a person is arrested, again in Newcastle, on suspicion of involvement in a burglary there, and it then becomes known to the police that his arrest is sought, perhaps under a different name, for a different offence committed in Poole. If the Newcastle offence is a serious arrestable offence and the Poole offence is not, we have an anomaly because the suspect may already, on the authority of an officer not below the rank of superintendent, have been held beyond the 24 hours which is all the Poole offence would entitle the police to hold him for.

The unintentional effect of the Bill as drafted, therefore, is that the time limit on his detention for the Poole offence may have been passed by the time he is arrested for it under Clause 31 and very likely will have been passed by the time it is possible to transfer him to Poole for it to be investigated. These amendments are designed to correct that anomaly. I beg to move.

Lord Inglewood

My Lords, may I ask the Minister for some help so that I may be clear about what is a "police station" here? If one is to calculate 24 hours from the time when a person is in custody at a police station, is the place where a police constable has his prisoner in his house or the office in the country a police station for this purpose? Is the definition clear regarding whether there is secure accommodation there or not? Is that defined?

Lord Elton

My Lords, they are defined in the Bill. I am afraid I do not have the precise definition but we discussed it at some length at Report stage. They are designated as police stations. There is no doubt about them.

Lord Elton moved Amendment No. 65:

[Printed earlier: col. 1128.]

The noble Lord said: My Lords, this is consequential on Amendment No. 64. I beg to move.

Lord Trefgarne moved Amendment No. 66: Page 39, line 1, leave out ("at a police station").

The noble Lord said: My Lords, when we were in Committee my noble friend undertook to bring forward an amendment to meet the point most helpfully identified by the noble Lord, Lord Plant. He drew attention to the fact that subsection (5) should not be restricted in scope to persons in police detention at a police station, since a person might be in police detention otherwise than at a police station—perhaps en route from one force area to another when he falls ill or is injured and has to be taken straight to hospital. The amendment therefore removes the undesirable restriction that a person should actually be at a police station before subsection (5) applies. I beg to move.

Clause 42 [Authorisation of continued detention]:

Lord Trefgarne moved Amendments Nos. 67 and 68.

[Printed earlier: col. 1121.]

The noble Lord said: My Lords, Amendments Nos. 67 and 68 follow from Amendment No. 66, to which I have already spoken. I therefore beg to move them en bloc

Lord Trefgarne moved Amendment No. 69: Page 40, line 14, after ("(1)") insert ("or (2)").

The noble Lord said: My Lords, on behalf of my noble friend, in moving Amendment No. 69 I should also like to speak to Amendment No. 70: Page 41, line 2, at end insert ("or (2)").

Subsections (6) and (10) of Clause 40 respectively require the superintendent reviewing detention at the 24-hour point to give the detained person or his solicitor an opportunity to make representations to him about the detention and require the person's release after 36 hours unless separate authority for his continued detention then exists. As the clause is drafted these requirements apply to detention authorised under subsection (1). They should clearly also apply to detention authorised under subsection (2); that is, where the superintendent authorises a further period of detention up to the 12 hours permitted after initially authorising a period of less. The amendments ensure that this is so and accordingly make good the two unintentional gaps in the scheme of safeguards offered in the clause. I beg to move.

Lord Trefgarne moved Amendment No. 70: Page 41, line 2, at end insert ("or (2)").

The noble Lord said: My Lords, this is consequential upon Amendment No. 69. I beg to move.

Clause 43 [Warrants of further detention].

Lord Trefgarne moved Amendment No. 71:

[Printed earlier: col. 1121.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No 46. I beg to move.

Clause 44 [Extension of warrants of further detention]: Lord Trefgarne moved Amendment No. 72:

Page 44, line 3, after ("application") insert ("on oath").

The noble Lord said: My Lords, at Report we brought forward an amendment which required an application for a warrant of further detention to be on oath. By an oversight, for which I apologise to your Lordships, we neglected to bring forward a corresponding amendment in respect of an application for an extension of such a warrant. This amendment is the one we should have moved at that time. I beg to move it now.

Lord Trefgarne moved Amendments Nos. 73 to 76: Page 44, line 15, at end insert— ("( ) Where a warrant of further detention has been extended under subsection (1) above, or further extended under this subsection, for a period ending before 96 hours after the relevant time, on an application such as is mentioned in that subsection a magistrates' court may further extend the warrant if it is satisfied as there mentioned: and subsections (2) and (3) above apply to such further extensions as they apply to extensions under subsection (1) above."). Page 44, line 16, after ("extended") insert ("or further extended"). Page 44, line 19, leave out ("(14) and (15)") and insert ("and (14)"). Page 44, line 21, at end insert— ("(6) Where an application under this section is refused, the person to whom the application relates shall forthwith be charged or, subject to subsection (7) below, released, either on bail or without bail. (7) A person need not be released under subsection (6) above before the expiry of any period for which a warrant of further detention issued in relation to him has been extended or further extended on an earlier application made under this section.").

The noble Lord said: My Lords, on behalf of my noble friend, I hope it will be convenient if I deal at the same time with Amendments Nos. 73, 74, 75 and 76. These amendments all clarify the drafting of Clause 44 which provides for the extension of warrants of further detention. Your Lordships will recall that the Bill was amended in the other place to place a limit of 36 hours on the length of any warrant of further detention so that if the maximum possible period of 96 hours were taken up in any case, the police would have to go to the magistrates at least twice during that period for continuing detention to be authorised.

It follows from this that the police may, on rare occasions, need to apply altogether three or more times. particularly if the first application is made earlier than the 36-hour point or if the warrant which is issued authorises less than the 36 hours permitted in Clause 43 on the basis that the court will want to review progress in the case after a shorter period. In such a case, therefore, the police may quite properly need to apply for a warrant to be extended more than once. These amendments make it clear that they may do so without in any way altering the time limits on detention set out in the Bill. I beg to move.

The Lord Chancellor

My Lords, is it your Lordships wish that I should put Amendments Nos. 73 to 76 inclusive together?

Clause 55 [Intimate searches]:

Lord Elton moved Amendment No. 77: Page 51, line 20, at beginning insert ("Subject to the following provisions of this section,").

The noble Lord said: My Lords, with Amendment No. 77 I will, with leave, speak to Amendments Nos. 78, 79 to 83, 85, 87 to 94, and 146 and 147:

Page 51, leave out lines 24 to 27 and insert—

1. ("(i) he could use to cause physical injury to himself or others; and
2. (ii) he might so use while he is in police detention or in the custody of a court; or

(b) that such a person—

1. (i) may have a Class A drug concealed on him; and
2. (ii) was in possession of it with the appropriate criminal intent before his arrest,").

Page 51, line 28, at end insert ("of that person."

( ) An officer may not authorise an intimate search of a person for anything unless he has reasonable grounds for believing that it cannot be found without his being intimately searched.").

Page 51, line 29, leave out subsection (2).

Page 51, line 33, at end insert—

("(3A) An intimate search which is only a drug offence search shall be by way of examination by a suitably qualified person.").

Page 51, line 34, at beginning insert ("Except as provided by subsection (3A) above, ").

Page 51, line 35, leave out ("registered medical practitioner") and insert ("suitably qualified person").

Page 51, line 39, leave out subsection (6) and insert—

("(6) A constable may not carry out an intimate search of a person of the opposite sex.

(6A) No intimate search may be carried out except—

1. (a) at a police station;
2. (b) at a hospital;
3. (c) at a registered medical practitioner's surgery; or
4. (d) at some other place used for medical purposes.

(6B) An intimate search which is only a drug offence search may not be carried out at a police station.").

Page 52, line 10, leave out ("article") and insert ("thing").

Page 52, line 11, leave out ("it may be used by the person searched") and insert ("the person from whom it is seized may use it").

Page 52, line 16, leave out ("from police detention").

Page 52, line 22, after ("is") insert—

("(a) violent or likely to become violent; or

(b)").

Page 52, line 32, leave out ("registered medical practitioner") and insert ("suitably qualified person").

Page 52, line 34, leave out ("practitioner") and insert ("person").

Page 52, line 35, at end insert—

("(13) The information shall also include, as separate items—

1. (a) the total number of drug offence searches; and
2. (b) the result of those searches.").

Page 52, line 35, at end insert—

("(14) In this section—

"the appropriate criminal intent" means an intent to commit an offence under—

1. (a) section 5(3) of the Misuse of Drugs Act 1971 (possession of controlled drug with intent to supply to another); or
2. (b) section 68(2) of the Customs and Excise Management Act 1979 (exportation etc. with intent to evade a prohibition or restriction);

"Class A drug" has the meaning assigned to it by section 2(1)(b) of the Misuse of Drugs Act 1971;

"drug offence search" means an intimate search for a Class A drug which an officer has authorised by virtue of subsection (1)(b) above; and

"suitably qualified person" means—

1. (a) a registered medical practitioner; or
2. (b) a registered nurse.").

Page 100, line 28, after ("Excise") insert—

("(i)").

Page 100, line 40, at end insert—

("and

(ii) section 55 above shall have effect as if it related only to things such as are mentioned in subsection (1)(a) of that section.

( ) Nothing in any order under subsection (2) above shall be taken to limit any powers exercisable under section 164 of the Customs and Excise Management Act 1979.").

These amendments fulfil the undertakings which I gave at Report in response to amendments then proposed by the noble Baroness, Lady Masham of Ilton. Your Lordships will be aware that the Bill, as passed by another place, made no provision for intimate searches to be undertaken by anyone other than a registered medical practitioner or police constable, nor did it provide for an intimate search to be carried out for any reason other than to remove a concealed weapon or a potential weapon.

At Report stage there was agreement from all parts of the Chamber that Clause 55 should be extended in two ways: first to provide for nurses and midwives as well as doctors to undertake intimate searches on the basis that if such a search had to be undertaken in the first place it was preferable for it to be undertaken by someone who was better qualified than a police officer. The Government are wholly sympathetic to this argument. We have always held that intimate searches should be undertaken by police officers only as a last resort, where the risk of injury to a detained person, him or herself, or to those guarding him or her, outweighed the risk of injury caused by the search. However, I explained that we would need to consult the relevant professional bodies. It is as a result of these consultations that the amendments now before your Lordships provide for searches to be undertaken by registered nurses. They do not refer specifically to midwives. Most midwives are registered nurses and so will be authorised to carry out intimate searches under the amendments. But in view of the reservations about the participation of midwives put to us by the Royal College of Midwives, we do not think it would be right to go further than this.

I shall make brief comments on two matters. First, intimate searches now take place only in exceptional circumstances and the new safeguards contained in Clause 55 will ensure that the need to resort to a compulsory search of this nature arises only where there is no acceptable alternative. Secondly, if the need for such a search arises, the first port of call for the police is and will remain their own police surgeon, if this is practicable and if he is available. It follows that the participation of nurses will be far from a routine occurrence. Thirdly, the Bill does not oblige any doctor or nurse to undertake a search on the authorisation of a senior police officer, and still less does it provide, as I have seen suggested in the columns of a national newspaper, that a police officer may order a doctor to undertake a search. It simply provides the authority in law for a search to be made.

Finally, the amendments do not create a presumption that the doctor or nurse carrying out an intimate search should be of the same sex as the person to be searched. We believe that this should be left as a matter of what is practical and sensible in the circumstances of the time, bearing in mind that the need to remove a hazardous article will be urgent. There will, however, remain an absolute prohibition on the participation of a police officer of the opposite sex. The second matter on which there was general agreement at Report was that in view of the threat to the life and health of many young people posed by the growing trade in dangerous drugs, there should be a clear provision in the Bill for an intimate search to be carried out where a dealer or carrier is suspected on reasonable grounds of internally concealing drugs such as heroin.

The amendments now before your Lordships meet this need. They provide a power of search related to a Class A drug which is being carried with intent to supply or export. So the power is focussed on to those directly concerned who are trading in these evil substances, and it is our earnest hope that such a power (which of course is available already to the police under the law as it stands) will help to deter the practice of internal concealment which can endanger the life of the carriers concerned. If the dealers and suppliers know that the power continues to exist, they will be less tempted to employ dupes, or, still worse, children, to conceal dangerous drugs within their bodies. The power is, as we have promised, carefully circumscribed. It is limited to offences of possession with intent to supply or export. Consideration of great urgency will not arise and search for a Class A drug may therefore be carried out only by a registered medical practitioner or a nurse, never by a police officer. And it can be carried out only at a hospital, surgery or other medical premises, never at a police station. This places a weighty responsibility on the shoulders of doctors and nurses. For my own part, I naturally hope that if they are called upon to help the police to remove drugs from a suspect dealer or carrier, they will co-operate to the maximum degree possible. consistent of course with conscience and their own professional and ethical responsibilities.

I ought, finally, to explain the effect of the two amendments to Clause 113. These permit Customs and Excise to apply to themselves the power of protective intimate search contained in Clause 55. Customs' own legislation does not provide such a protective power and I am sure that your Lordships will agree that this is a necessary safeguard which should be available to Customs officers. The order to be made under Clause 113 must, therefore, apply Clause 55 to the Customs and Excise. However, Customs and Excise have investigative search powers which derive from Section 164 of the Customs and Excise (Management) Act 1979 and this permits both intimate and non-intimate searches. In keeping with the Customs role in controlling the movement of goods in and out of the country, their search provision is not limited to Class A drugs and, unlike the power now proposed for the police in the amendment to Clause 55, the Customs provision permits searches only of persons within ports or airports or entering or leaving the United Kingdom, and is therefore exercisable only at those places.

In short, Section 164 of the Customs and Excise (Management) Act is shaped expressly to enable them to fulfil their own particular functions. Were Customs to adopt Clause 55 in full. the investigative power provided there for the police would call their own power into question. The first amendment to Clause 113, therefore, limits their adoption of the clause to the protective power in search. Their present power of investigative search is maintained intact by the second amendment in accordance with undertakings given both here and in another place. I believe that this is an important matter. I believe it stands between many individuals and a slow and horrible death. I hope that your Lordships will favour these amendments.

The Lord Chancellor

My Lords, with the permission of the House, I shall put No. 77 now, and then, with permission Nos. 78 to 83 en bloc.

Lord Elton

My Lords, there is an intrusive No. 78A on the supplementary list. We cannot then move Nos. 78 to 85 en bloc.

The Lord Chancellor

My Lords, I shall put them separately. The Question is that No. 77 be agreed to.

On Question. amendment agreed to.

The Lord Chancellor

My Lords, the Question then is that Amendment No. 78 be agreed to—

Lord Elton

My Lords, I believe that the noble Baroness, Lady Masharn, is out of sight of my noble and learned friend the Lord Chancellor and wishes to speak.

Baroness Masham of Ilton

My Lords, the House of Lords will, I feel, have closed what is a very worrying loophole in this Bill if these amendments which the Government have put down and which we discussed fully before the Summer Recess are agreed to. Not to have the power to search thoroughly people who are suspected of carrying dangerous Class A drugs would, I feel, have encouraged this practice. Where there is a great deal of money to be made by evil people without consciences who do not mind who they ruin and what devastation they cause, no gap should be left open, as the concern about the escalating dangerous drug problem is growing countrywide. If an intimate search has to be made, it is much more palatable if it is done by a doctor or a trained nurse. If this provision of search is not included in this Bill, we could be the only country in Europe without this power.

The British Medical Association seem to think that this would be a new provision. This is not so. The police have had the power of intimate search of a suspect since 1971 through the provisions of the Misuse of Drugs Act in relation to all drugs. These amendments limit these searches to Class A drugs and are concerned with the searches being carried out only by doctors and nurses. I am rather worried about subsection (6B) in Amendment No. 85, which states that a drug offence search may not be carried out at a police station. It might be a very dangerous, evil drug trafficker who would have to be escorted by several police officers to a hospital or other place used for medical purposes. I should have thought that in this sort of case, when police time is valuable, it would be more practicable if a doctor or nurse go to the police station.

The BMA sent to me a letter, as I expect they did to other Members of your Lordships' House. They seem to want to encourage some of their members not to search. These traffickers in dangerous drugs are cold-blooded murderers and the dregs of our society. Not to want to prevent addiction and misery, to me is immoral. I support the amendments with reservations as to subsection (6B) in Amendment No. 85.

The Lord Chancellor

My Lords, I think that Amendment No. 78A is an amendment to Amendment No. 78. If the noble Lord, Lord Rea, wishes to move it, I call Amendment No. 78A.

6.58 p.m.

Lord Rea moved, as an amendment to Amendment No. 78, Amendment No. 78A: Line 7, leave out ("Class A") and insert ("dangerous").

The noble Lord said: My Lords, I think I need to explain the purpose of this amendment to the amendment because it is not immediately clear. If I may, I will speak also to Amendment No. 94A, which is an amendment to Amendment No. 94, because it is consequential on this one. Amendment No. 94A: Leave out lines 11 and 12 and insert— (" "dangerous drug" means any drug in a list to be included in an order made by statutory instrument; but no such order shall be made unless a draft of the order has been laid before Parliament and approved by resolution of each House of Parliament;").

The term "Class A drug" is defined in Lord Elton's Amendment No. 94 as a drug so described in the Misuse of Drugs Act 1971. Noble Lords may be surprised to learn that there are no fewer than 100 drugs included in this classification. Incidentally, cannabis and cannabis resin are classified as Class B and not Class A drugs.

I think the noble Lord and many of your Lordships are aware that most doctors are very uneasy about any form of intimate body search for obtaining evidence. My noble friend Lord Pitt spoke eloquently and passionately about this at the Report stage. However, I think the majority of the profession would agree that it is appropriate for a doctor to carry out an intimate body search where the doctor is satisfied that there is a real possibility that the detained person may be concealing an object of immediate danger—we accept this—to those who are responsible for the suspect's custody or for his own life.

Intimate searches for drugs raise more difficult issues. The amounts concerned in any case could hardly make the suspect a major drug trafficker and would be more likely to be simply for his own use. However, in view of the recent rise in heroin dependency and trafficking, the British Medical Association agree that these searches may be carried out for heroin, but that permission should not be opened up generally to include all the other 99 substances in the Class A category. The BMA actually state: In no circumstances could we agree to an extension of the powers governing intimate search to cover all searches for these substances.

Heroin should be an exception to the general rule and not form a general part of the Bill. The form of words which I have used in the amendment to Amendment No. 94 is intended to give Parliament greater scrutiny over the powers which would become operative only after positive parliamentary approval. I apologise for any loose wording or improper drafting, but I saw the Government amendments for the first time only on Tuesday.

Your Lordships might feel that perhaps the main drug will switch from heroin to another Class A drug. The amendment I have tabled would allow Parliament to include any named drug but not the entire category of Class A, which is a vast array of drugs. I very much hope that the noble Lord will accept these two amendments to his amendment in view of the British Medical Association's considered opinion, which certainly in this case represents my own view and I think that of most doctors. In fact many, like the noble Lord, Lord Pitt, would even reject the main amendment rather than alter it in the way that I have suggested.

These two amendments are really an attempt to help the Government in their efforts to control heroin trafficking while retaining the trust of the public in the medical profession in its obligation to respect the dignity of every individual person. I beg to move.

The Lord Chancellor

The original Question was that Amendment No. 78 be agreed to?—since when there has been moved an amendment, No. 78A. The Question, therefore, which I now put to the House is that Amendment No. 78A be agreed to?

Lord Elystan-Morgan

My Lords, we on these Benches have nothing but respect and admiration for the campaign waged by the noble Baroness, Lady Masham, and many other Members of this House and those outside the House to try and underscore the grave danger and tragedy that is involved in drug trafficking. I am sure that there is no publicity too great that can be given to that particular feature.

We also well understand the attitude of my noble friend Lord Rea. The British Medical Association has for a long time expressed its disquiet about the position of a doctor having to examine an unwilling patient. However, with the greatest respect, I believe that the real basis of this issue is to be found in what has already been touched upon by the noble Baroness, Lady Masham. In my submission, the power already exists and has existed in our law for a period of 13 years, since the passing of the Misuse of Drugs Act 1971. The relevant provision there is Section 23(2), which reads: If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug …"— that means a Class A, B or C drug— in contravention of this Act or of any regulation made thereunder, the constable may— (a) search that person and detain him for the purpose of searching him:". When this Bill becomes law that provision, if there were no amendments or indeed no particular provisions such as we are dealing with in relation to Clause 55, would have to be read in conjunction with Clause 116 of the Bill, which provides that— Where any provision of this Act—

1. (a) confers a power on a police officer; and
2. (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,

the officer may use reasonable force, if necessary, in the exercise of the power.". I am not aware of any case law which has circumscribed the power and responsibility of the police in relation to that particular function. It means therefore, as I understand it, that for 13 years in our law a police officer has had the right—whether it has been exercised is another matter—at all times to carry out the most intimate search in relation to any drug.

Therefore the question I think we should ask is not whether the matters that are now being considered represent an ideal situation, but, if one starts from the precept of Section 23(2) of the Misuse of Drugs Act, giving that power to the police, whether the situation that we now create is not an infinitely better alternative than that which has existed. I am sure that it is.

Lord Monson

My Lords, I should like to support Amendment No. 78A. Like most laymen, I imagine, I had assumed there were no more than half a dozen Class A drugs at the most. I was therefore astonished to learn from literature put out by the British Medical Association that there are something like 85, not all of which by definition can be equally dangerous or equally profitable to the drug traffickers. Accordingly, I believe that Amendment No. 78A, which I understand has the support of the medical profession, has everything to commend it.

Lord Donaldson of Kingsbridge

My Lords, I think we ought to be clear about what we are really asking the Government to do. I think that everybody in the House has supported the general intention of the noble Baroness, Lady Masham, and her amendments. The British Medical Association have been worried that their doctors are going to be asked to search for all sorts of rare drugs which most of us have never heard of. But this is really rather a far-fetched idea, I think. What in fact happens? Nobody is searched for drugs unless he is almost certainly either caught redhanded or already suspected of being a drug smuggler. Therefore it does not seem to me to matter very much what drug it is, because one will not know in advance. I wonder whether the British Medical Association is not really asking for something which is not relevant to this particular problem. That is my first problem.

My second problem is: is it appropriate, now that we are discussing these amendments, to discuss later amendments by which we wish to abolish the right of the constable to search anybody or to conduct an intimate search on anybody? We want that to be limited to the suitably trained person: that is to say, a nurse or a doctor. I do not want to miss that. I wish to talk about suitable words for that at the appropriate time, and I am not certain that this is the appropriate time. I feel rather confused as to what the right answer should be for the British Medical Association. I suppose that if we accepted these two amendments, which I think we shall support here, it would simply mean that the Government would have to begin by laying down three or four dangerous drugs in Class A and seeing what happened after that. The position is not entirely clear.

Lord Pitt of Hampstead

My Lords, I am sure it is not surprising to your Lordships' House that I oppose both amendments. I have said before that I regard this attempt to humiliate people in detention as something obnoxious. I wish your Lordships to ask yourselves what you hope to achieve by subjecting people to these searches. All right, my Lords, people may have some dangerous drugs on them. What you have to weigh is whether what is to be gained from discovering that they have those drugs on them is sufficiently balanced by the humiliation to which they have been subjected by searching them in the way suggested. Speaking personally, I believe that it is not.

I can well understand—although even that I am opposed to—that you can feel that you ought to subject somebody to an intimate search and to take away some object such as a razor blade which might injure him or somebody else. On balance, I may even say I can see a point about that. But I am not sure that I do, because I do not believe it is all right to subject people to this sort of treatment. What I do not see is the real gain from subjecting people to a search in order to see whether they have a few grains of heroin on them. If somebody—

Lord Elton

; My Lords, will the noble Lord permit me to intervene, because I want to clarify the position? We are talking about searches for dealers and carriers—people trading in the drugs. It is not a question of a few grains. I hope that the noble Lord distinguishes in his mind between the individual victim and the person who has it within him literally to destroy thousands of such individual victims by getting them hooked.

Lord Pitt of Hampstead

My Lords, I accept that, but I do not believe that what we are talking about can catch dealers. What real dealer carries drugs? What amount of drugs can he carry in the way that is being talked about? Therefore, this does not catch the dealers. What is being caught are a few addicts who carry the drugs themselves. Admittedly, they would be classed as dealers, because in order to pay for their addiction they are willing to sell to other people. But it is just a few addicts who will be caught by this sort of treatment. I am grateful to the noble Lord. If I thought that the humiliation—and I regard is as a humiliation—to which people would be subjected would catch dealers, I would be for it. But I do not think that that is what will happen. All that will happen as a consequence of this is that anybody who is regarded as a drug addict will be subjected to this humiliation, in order to see whether he has a couple of ounces of a dangerous drug on him.

I ask your Lordships to think what you are doing. I do not really believe that your Lordships have given the sort of thought that you ought to be giving to the decisions you are making on this matter. You are travelling down a slippery road and you are doing it in a nonchalant way which shocks me. I can understand if you think that there are real benefits to the community from a particular line of action, even if that line of action is obnoxious, but I do not think that any great benefit to the community will result from this action. Somebody asked me about Goering. I said: "So what? You were going to hang him anyway". The fact that he carried the drug around on him and eventually used it on himself seemed to me irrelevant.

So I believe that your Lordships are being carried away by the worry—and I share the worry, because I see a lot of drug addicts in my practice, and more than most Members of your Lordships' House—and you think that you are doing something which will help. But I do not believe that it will help. I do not believe that it will do any more than humiliate certain members of the community and, as a consequence, gain a few convictions for carrying dangerous drugs. I am sorry—

Baroness Trumpington

My Lords, with the greatest respect, I think that the noble Lord is straying a little from the subject of the amendment before us. It is my understanding that we have agreed the principle. We are discussing Amendment No. 78A and I think that the noble Lord is straying a little from the subject.

Lord Pitt of Hampstead

My Lords, I thank the noble Baroness very much for the correction, but I do not accept it. The fact that you are going to restrict this action not to general drugs but to a few drugs is another point to mention, because once it is restricted to a few drugs then, in a general way, you have allowed what I am talking about to happen. It will not happen in a general way, but it will happen when there is a suspicion that certain dangerous drugs are involved. I am aware, as I was aware on a previous occasion, that I am not carrying your Lordships' House with me on this, but I should like it to be recorded that I think that we are travelling down a slippery, a dangerous, road and I should like to warn your Lordships about what you are doing.

Lord Rodney

My Lords, I think that the BMA is rather splitting hairs, because if you put a literal interpretation on this, and if I ask for an intimate search of somebody, do I have to name what sort of drug I am looking for, and, if by any chance the wrong drug turns up when an intimate search is being carried out, what happens? This business of naming a certain number of drugs in regard to which you may ask for an intimate search, but excluding others, seems to me to be absolutely beside the point.

The other point—if I may go a little towards what the noble Lord, Lord Pitt, was saying—is that, as I understand it, this business of just being able to conceal a few grains of heroin and such like is not necessarily the case. Without wishing to go into intimate physical questions, I have been led to understand that, particularly with the fair sex, it is possible for a very considerable amount of drugs to be concealed, so it is quite a possibility that drug pushers can be carrying a sufficient quantity of drugs to add up to quite a lot of money. I absolutely support my noble friend Lady Masham in what she has said.

Baroness Masham of Ilton

My Lords, not having spoken to Amendment No. 78A, I should just like to answer the noble Lord, Lord Pitt, by saying that nobody wants to do an intimate search unnecessarily. It is the deterrent factor which is the important thing, and if the power exists it will stop people from carrying drugs around the country. This would be a very easy way for prostitutes to make money. It would be easy money for them and far easier than having a lot of men. I have been told by two gynaecologists that it is possible to carry about a kilo of heroin in the vagina and that would be worth about £200,000 at street level.

Lord Elton

My Lords, perhaps I may try to pull this together. My noble friend started with a reference to the earlier amendment, to which I do not think I ought to respond since we are now on Amendment No. 78.

The noble Lord, Lord Donaldson, pointed out with very great clarity why we do not need to be too precise in our definitions and why the British Medical Association may perhaps be being too precise in what they seek. I think my noble friend Lady Masham has also made the answer in terms that I would have given to Lord Pitt, but I am not very good at metric conversion and the official advice I have is that a reasonable package that might be concealed within his or her body by a person prepared to carry drugs for use by other people is between 6 and 7 ounces. That would be worth, if it was cocaine, £250,000. That is a large price to pay to avoid humiliating a person who constitutes more of a threat than a torpedo running to a ship full of people: that his humiliation should be spared and that £250,000 worth of a lethal drug should not be removed from him.

I ought now to speak to the amendment of the noble Lord, Lord Rea, which is Amendment No. 78A. He has proposed that the power to search for dangerous drugs should not relate to Class A drugs as a class but to a separate category to be created by statutory instrument. The substances listed as Class A drugs under the Misuse of Drugs Act 1971 are by definition most dangerous substances if misused, and they do not include cannabis. The content of the class is kept under review; substances can be added to the list or removed from it by Order in Council which has to be approved by both Houses. It would be undesirable to have a narrower list confined, as the BMA has proposed, to heroin alone. First, the person in custody would need only to claim that a drug thought to be secreted on him was cocaine or LSD and then, unless there were grounds for suspecting otherwise, an intimate search could not lawfully be carried out—and LSD is more dangerous than some of the other drugs. It could well be the case that in particular circumstances the police could have reasonable grounds to suspect that a Class A drug was being carried without having reasonable grounds for suspecting that it was one specific drug rather than another.

International experience shows that one of the common methods of carrying cocaine is by concealing it internally. If we have a list which is different from Class A we increase the risk of encouraging a trade in, and the concealment of, Class A drugs which are not on the list though just as dangerous as those which are.

I must also point out that under the terms of these amendments it would be open to a future Secretary of State to extend the scope of the intimate search power by adding to the list of drugs which are not in Class A, such as cannabis. We take the view—and I think this was the consensus at Report—that in the case of drugs not as dangerous as those in Class A the balance between the needs of law enforcement and the rights of the individuals did not justify a power of intimate search on all those grounds.

I am most grateful to the noble Lord, Lord Rea, for what he intends as a helpful amendment. I hope he will accept that we have conducted very considerable research, not casually I would say to the noble Lord, Lord Pitt, and not perfunctorily, but consulting all the professional bodies concerned and your Lordships. We think we have got it right. We think this is a very considerable protection for people who need it.

7.25 p.m.

Lord Rea

My Lords, I have listened to a number of arguments which have made an impression on me, and I think that the feeling of the House is that the amendment should not be accepted. I beg to withdraw my amendment.

Amendment to the amendment (No. 78A), by leave, withdrawn.

Lord Elton moved Amendments Nos. 79 to 83:

[Printed earlier: col. 1137.].

The noble Lord said: My Lords, I have spoken to Amendments 79 to 83 inclusive. With your Lordships' leave, I shall move them en bloc.

Lord Elystan-Morgan moved Amendment No. 84: Page 51, line 37, leave out subsection (5).

The noble Lord said: My Lords, the effect of the two amendments Nos. 84 and 86 is that they would remove from Clause 55 the specific right of a constable under subsections (5) and (6) of that clause to carry out a search. Amendment No. 86, as an amendment to Amendment No. 85: Line 2, leave out subsection (6).

I appreciate what has been said on previous occasions, that it is only in the most unusual circumstances that such an intimate body search would be carried out by a person other than a medically qualified doctor or midwife, but, nevertheless, that power is specifically set out in the two subsections I have referred to. In any event, in my submission—and I do not think the Minister disagrees with this—it is a general power which we still have in consequence of Section 23(2) of the Misuse of Drugs Act 1971.

Although it may well be that there could be a case where it would be impossible in practice for a doctor to attend, I apprehend that it would be in such circumstances where it would be far better to wait until a doctor or a midwife were available before any officer sought, in fact, to interfere in such a delicate situation. I do not believe that the police, although fully appreciating the gravity of the situation with which they are dealing, particularly in relation to heroin, would want this power, or that they need it, because it is only in the most exceptional circumstances that it would ever be contemplated that it should be used.

For that reason, I would ask that the House support Amendments Nos. 84 and 86. I beg to move Amendment No. 84.

Lord Donaldson of Kingsbridge

I want to support this very fully, my Lords.

The Lord Chancellor

Not at great length, I hope.

Lord Donaldson of Kingsbridge

Not at great length, as the noble and learned Lord the Lord Chancellor has said, but I should like to say that the more important parts of this Bill have been, by bad management, discussed at the most inconvenient times. This is a very important part of the Bill. I had hoped we would stop for dinner before we started it, but the powers that be did not agree, and so they must put up with what we want to say without even murmuring.

The thing which is important—and I think it is really important—is that one of the matters which people like the noble Lord, Lord Pitt, and his colleagues fear is that the police will humiliate people without good reason in certain circumstances. A very important part of this Bill is to try to remove such circumstances, and one of the ways of doing that, very simply, is by deleting these two subsections. If the police have to get a doctor or a trained nurse to do this job, the question of their deciding whether or not it should be done and doing it themselves is entirely removed.

There is one further point which I should like to put to the noble Lord. Am I right in thinking that terrorist crimes are excluded from this kind of regulation? It would make it very much easier if they were.

Lord Elton

My Lords, if your Lordships agree to the Government's amendments to Clause 55 it will provide that any intimate search may be carried out by a registered medical practitioner or nurse but a search for a Class A drug may be carried out only by a registered practitioner or nurse; and that a search to remove a potential weapon may be carried out only by a constable of the same sex as the person to be searched, and then only if it is not practical for such a search to be carried out by a medical practitioner or nurse. These amendments would preclude the involvement of a police officer, even in this category, which I entirely accept is exceptional.

My noble friend Lady Trumpington explained in Committee why we believe it to be necessary to retain the reserve police power for which subsections (5) and (6) provide. I repeated the arguments at the Report stage. I have to tell your Lordships that in the Government's view they remain as strong as before. It certainly is true that the new provision for nurses as well as doctors will reduce still further the already very small likelihood that a police officer would be called upon to perform an intimate search, but it is still necessary to provide for the very rare occasion upon which it is simply impracticable to secure medical or nursing assistance in time if a violent and disturbed person is brought to a police station under arrest.

I do not think we can wholly rule out the possibility that occasions will arise when the rapid removal of a concealed weapon must take overriding priority. We have to legislate for all circumstances, not just the ordinary ones. These amendments would have ruled out the possibility of the police thémselves searching David Martin who had concealed a penknife in his mouth. Such a case provides a good example of the possible need for very speedy action to remove a weapon from a highly dangerous man.

I do not want to extend this argument—not because the hour is late, though dinner is, but because we have been over the ground fairly substantially before. Terrorism is covered for intimate bodily search. I have given your Lordships a longish answer. May I give a rather more cogent, and shorter, one which has only recently been drawn to my attention and which seems to be conclusive. The actual though unintended effect of leaving out subsection (5) is that any person could carry out a search if it was not practicable for a doctor or nurse to do so. That must be, I am sure, contrary to what was intended. Therefore I feel that we are on very strong ground in asking your Lordships to resist this amendment, not only because what it seeks to do is, in our view, wrong, but also because it would achieve the opposite effect, which would be totally wrong.

Lord Elystan-Morgan

My Lords, I accept that there are faults in the two amendments, but I had very much hoped that it might be possible to correct them in another place. It seems that the Government are not to be moved on the matter. We do not regard it as one which would justify us in dividing the House. Therefore I beg leave to withdraw Amendment No. 84.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 85:

[Printed earlier: col. 1137.]

[Amendment No. 86 not moved.]

Lord Elton moved Amendments Nos. 87 to 93 en bloc.

[Printed earlier: col. 1138.]

The noble Lord said: My Lords, since I have already spoken to this group of amendments, which is of considerable size, I beg to move en bloc Amendments Nos. 87 to 93. There is an amendment to Amendment No. 94 in the form of Amendment No. 94A, which I suspect your Lordships will wish to debate after dinner.

The Lord Chancellor

My Lords, there is an amendment to Amendment No. 94. I shall be guided by the House as to what I do next.

Lord Elton

My Lords, if the noble Lord, Lord Rea, is not proposing to move Amendment No. 94A, which I believe is his intention, the way is clear to include Amendment No. 94 with this group of amendments.

Lord Rea

My Lords, I shall not move Amendment No. 94A. It has already been spoken to.

Lord Elton moved Amendment No. 94:

[Printed earlier: col. 1138.]

[Amendment No. 94A not moved.]

Lord Denham

My Lords, it is my duty to inform your Lordships that in Division No. 1 the name of the noble Lord, Lord Boothby, was omitted as having voted Not-Content. The correct figure for the Not-Contents is therefore 139, not 138 as previously stated.

I beg to move that further proceedings after Third Reading be now adjourned until 8.25 p.m.

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

[The Sitting was suspended from 7.35 until 8.25 p.m.]

Clause 56 [Right to have someone informed when arrested]:

The Lord Chancellor moved Amendment No. 95: Page 53, line 40, leave out subsection (11).

The noble and learned Lord said: My Lords, there are a number of amendments subsumed under Amendment No. 95 but they must be moved separately. With Amendment No. 95 are Amendments Nos. 101 and 112 and I shall speak to them together. Amendment No. 101: Page 56, line 18, leave out subsection (12). Amendment No. 112: Page 62, line 8. leave out ("reason") and insert ("matters required to be recorded by subsection (8) above")

These are all drafting amendments to clauses in Part V of the Bill. I beg to move.

Clause 57 [Additional rights of children and young persons]:

Lord Elton moved Amendment No. 95A:

Page 54, leave out lines 26 to 30 and insert—

("such steps as are practicable shall be taken to ascertain the identity of a person responsible for his welfare.

(2A) If it is practicable to ascertain the identity of a person responsible for the welfare of a child or young person, that person shall be informed, unless it is not practicable to do so—

1. (a) that the child or young person has been arrested; and
2. (b) why he has been arrested; and
3. (c) where he is being detained.

(2B) Where information falls to be given under subsection (2A) above, it shall be given as soon as it is practicable to do so.

(2C) For the purposes of this section the persons who may be responsible for the welfare of a child or young person are—

1. (a) his parent or guardian: or
2. (b) any other person who has for the time being assumed responsibility for his welfare.

(2D) If it is practicable to give a person responsible for the welfare of the child or young person the information required by subsection (2A) above, that person shall be given it as soon as it is practicable to do so.")

The noble Lord said: Amendments No. 95A, 95B and 95C are amendments which go with Amendment No. 95.

Amendment No. 95B: Page 54, line 31, after ("If") insert ("it appears that").

Amendment No. 95C: Page 54, line 35, at end insert ("as soon as it is reasonably practicable to do so").

I have already spoken to these amendments. I beg to move.

Clause 58 [Access to legal advice]:

The Lord Chancellor moved Amendment No. 96: Page 55, line 18, at beginning insert ("Subject to subsection (2A) below,").

The noble and learned Lord said: My Lords, I rise to move Amendment No. 96. The amendments excuse the police from having to record a request for legal advice by someone who is already at court. Subsection (2)—

Lord Elwyn-Jones

My Lords, may I make so bold as to say that there are Amendments Nos. 95B and 95C?

The Lord Chancellor

My Lords, I am much obliged to the noble and learned Lord. These things happen when amendments come on a supplementary list. They are Government amendments for the attention of the noble Lord, Lord Elton, I am happy to say.

Lord Elton moved Amendment No. 95B:

[Printed above.]

Lord Elton moved Amendment No. 95C:

[Printed above.]

The Lord Chancellor

My Lords, it may be that we have now reached Amendment No. 96. These amendments excuse the police from having to record a request for legal advice by someone who is already at court. Subsection (2) rightly requires the police to record a request for legal advice made by someone who is arrested and in police custody. Incidentally, I take this opportunity, since this is a point which has caused bodies such as MIND some concern, to note that the right to consult a solicitor under this clause is not restricted to persons who have been arrested for an offence and are in a police station for it but to anyone who has been arrested, whether or not for an offence, including those arrested under Section 136 of the Mental Health Act 1983.

There is no particular point in requiring the police to make a record when the prisoner is already at court. Once he is at court it is then for the court to deal with the request and no useful purpose would be served by a police log. Indeed, I believe it would cause some administrative difficulties since the custody record would then be left behind at the police station. I regard this as a sensible clarification and I ask your Lordships to agree with it. I beg to move.

Lord Mishcon

My Lords—

The Lord Chancellor

The Question is, That Amendment No. 96 be agreed to.

Lord Mishcon

My Lords, I apologise to the noble and learned Lord for my over-anxiety to raise a point with him. This arises on what the noble and learned Lord said about Amendment No. 97. I can quite understand that it should not be necessary to put on record a man's request for legal advice and guidance if he is in fact before the court, because no doubt that would be when the application would be made.

But the wording is not, "before a court"; it is, "at a court". That means that if the custody officer or some other officer is in charge of him, and he says to that officer, "You know, I should love to have some legal advice. Can you help me to get it?", that request should obviously be recorded, even though the person may be in a cell or in the ante-room of a court. Therefore, if I may say so with respect, the words, "at a court", are wrong. The very wording that the noble and learned Lord used so carefully—"before a court"—should be the appropriate wording.

Lord Campbell of Alloway

My Lords, surely there is reason in what the noble Lord, Lord Mishcon, has said. For the avoidance of doubt, perhaps at some time consideration may be given to it.

The Lord Chancellor

My Lords, oddly enough, the point occurred to me when I first read the amendment, which was very recently indeed. I think that probably the answer will be that a person is not at a court unless he is also before it. But I think that the point is worth considering, so, if I may, I shall take note of it. There may be another chance. If the amendment requires reconsideration from the purely drafting point of view, I shall certainly take note of it and another place can deal with our mistake, if it is one.

Lord Mishcon

My Lords, I am most grateful not only to the noble and learned Lord but to the noble Lord, Lord Campbell of Alloway, for his helpful remarks.

Baroness Trumpington moved Amendment No. 97: Page 55, line 19, at end insert— ("(2A) Such a request need not be recorded in the custody record of a person who makes it at a time while he is at a court after being charged with an offence.").

8.34 p.m.

Lord Mishcon moved Amendment No. 98: Page 55, line 21, leave out from ("practicable") to the end of subsection (18).

The noble Lord said: My Lords, one of the most sacred rights hallowed by our law, and indeed imprinted in this Bill, is the right of someone to consult a solicitor and to know what his legal rights are. It is an even more vital right when that man finds himself, with some anxiety, in the arms of the law, and faced with possible dishonour and lack of liberty. As I say, in those circumstances, that right is indeed a precious one.

The Lord Chancellor

My Lords, I am just wondering whether we are in order. I hope that the House will put me in order if I am not in order. I thought we were on Amendment No. 97. It is under the name of Lord Elton and is to insert: Such a request need not be recorded in the custody record of a person".

Baroness Trumpington

My Lords, if I may just explain, what happened was that my noble and learned friend I think actually spoke to Amendments Nos. 96 and 97 together. He then gazed at me and so I said with hope, "I beg to move", when we got to Amendment No. 97, and the Question was put and the amendment passed. We are now on Amendment No. 98.

The Lord Chancellor

My Lords, now I know exactly where I am. I am much obliged to the noble Lord, Lord Mishcon, for beginning his speech.

Lord Mishcon

My Lords, another sacred right of a Member of your Lordships' House is to make a continuous speech in order that he may be understood, but I need not repeat everything that I said. Your Lordships are well aware of that fundamental traditional right to know what one's legal rights are and to receive the benefit of legal advice. I was saying that that is especially true when one is faced with all the rigours of the law and the possible loss of reputation, honour and indeed perhaps liberty.

In addressing your Lordships on Amendment No. 98, may I for the convenience of the House say that I shall also be speaking about Amendments Nos. 99 and 102.

Amendment No. 99: Page 55, line 22, at end insert—

("(3A) An officer of at least the rank of superintendent may give a notice under subsection (3B) below if he has reasonable grounds for believing that any act likely to be done by a solicitor consulted by a person in the exercise of the right conferred by subsection (1) above—

1. (a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or
2. (b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
1154
3. (c) will hinder the recovery of any property obtained as a result of such an offence.

(3B) A notice under this subsection is a notice requiring the solicitor to refrain from doing a specified act for a specified period not exceeding 36 hours from the relevant time, and stating the reasons therefor.

(3C) An officer may give a notice under subsection (3B) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as practicable.

(3D) If a notice under subsection (3B) above is given—

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

(3E) The duties imposed by subsection (3D) above shall be performed as soon as practicable.

(3F) If the reasons for giving a notice under subsection (3B) above shall cease to subsist before the period specified in the notice has expired, the officer giving the notice shall so inform the solicitor as soon as is practicable, and thereupon the notice shall cease to have effect.").

Amendment No. 102: After Clause 58, insert the following new clause:

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

.—(1) The following section shall be inserted after section 13 of the Prevention of Terrorism (Temporary Provisions) Act 1984:—

" 13A.—(1) A person arrested under section 12(1) above, or arrested or detained under a power contained in an order made under section 13 above, shall be informed at once that, subject to the following provisions of this section, he is entitled, if he so requests, to consult a solicitor privately at any time.

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

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

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

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

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

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

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

(8) If delay is authorised—

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

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

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

(11) If an officer of appropriate rank has reasonable grounds for believing that, unless he gives a direction under subsection

(12) below, the exercise by a person of the right conferred by subsection (1) above will have any of the consequences specified in subsection (7) above, he may give a direction under that subsection.

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

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

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

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

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

As I was also saying, that sacred right of the subject, and indeed of someone who is not a subject of this land, to have the benefit of legal advice finds itself enshrined in this Bill. Your Lordships, I know, and all others concerned with the liberty of the subject, will have been pleased to see it here in Clause 58(1), which reads: A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time".

The clause continues with provisions for an exception to that rule. Your Lordships will remember that at various stages of the Bill that clause was discussed with some anxiety. One of the anxieties expressed was that that was within the power of a police authority-the very police authority in charge of the investigations, and indeed it may be of the prosecution of the offence. The power is given to that authority—it may be at a very high rank—to say that that right can be delayed up to 36 hours.

I think that two concerns then emerged in the course of the debates. One was a concern that this provision should indeed cover suspected terrorists and the matter of terrorist offences. Your Lordships will not have to be reminded about the terrible happenings of last week which are still, if I may say so, engraved on our memories and will be so for many years to come. I want to make it absolutely clear that when talking, as I do to your Lordships, about this matter, I am absolutely content to say—indeed, I say that it should be up to 48 hours—that there should be a provision that in such a case the police ought, for the sake of saving life, to have the discretionary rights, to see to it that this normal, traditional right is not granted in those circumstances. I make that abundantly clear.

The second anxiety that one had was that there could be other very serious offences where—again for the sake of human life and in order not improperly to obstruct, in regard to a very serious offence, the efforts of the police—it could possibly be right that there should be some right to stop a man from seeing a solicitor. Some of us—indeed I think there were quite a few of us—expressed some anxiety that this provision of stopping a man, on the authority of the police, from consulting a solicitor, related to a serious arrestable offence. If one did not go into the provisions of the Bill in order to see what was the definition of a serious arrestable offence one might have thought that one was dealing with one of those extremely grave crimes. But a serious arrestable offence is defined as one which can incur a loss—and this is a subjective test—which is of a serious nature to the person who suffers that loss. We quoted the example of the widow's mite: so important to her, but which might be relatively insubstantial in regard to what she has been deprived of, but this is one of those cases which would be within the definition of a serious arrestable offence.

The further point at which we looked—and I think this is the last thing that caused us anxiety in respect of this question of the stopping of the right of a man to see a solicitor—related to the matters which ought to guide the superintendent or someone of even a superior rank to a superintendent, before he issued this, as it were, stop notice up to 36 hours. When we looked at those provisions we saw how general they were and how they could so easily be invoked without very much difficulty, and possibly in what your Lordships would think would be quite the wrong case will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with other persons; or, looking at Clause 58(7)(b): will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or (c) will hinder the recovery of any property obtained as a result of such an offence".

With some amount of reasonableness, supported from all parts of the House, we wanted to find a formula which was not so harsh as was imposed by this Bill on the stopping of this right of the suspected person to see a solicitor. We pleaded with the noble Lord the Minister to allow the Law Society—who, as one can imagine, felt great concern about this clause—to discuss possible alternative formulas with the Home Office. I want at once to make it clear that the noble Lord the Minister, who gave an assurance that that would take place, honoured to the full the obligation which he then entered into. I wish I could go further and say that the Law Society representatives were met with a co-operative spirit at the Home Office when those discussions took place. I am afraid that I cannot in truth say that that was so.

Every single alternative was looked at. It was said that 36 hours was too long, and could it not please be at least 24. Answer: "There can be no reduction from the 36 hours". When the argument was put up, "But it is dreadful that the police should have this power, the very people who are in charge of the investigation into the offence. Cannot you have somebody who is independent in the matter deciding that that traditional right is not to be given? What about the matter being confirmed by a magistrate?" We were told that the Magistrates Association did not look with favour upon taking that responsibility on their shoulders—and one must admit that before a case was presented to a magistrate in proper form it might very well be that the 36 hours would have expired by the time the magistrate considered it. So the Law Society, for whom I am authorised to speak on this matter, was left with these alternatives. The first of those alternatives is enshrined in Amendment No. 98. I say to the House that, once you have excepted the terrorist type of offence, would it not be far better not to impair the right of a man to see a solicitor when he wanted to?

The noble Lord the Minister gave as his reason that people should be prevented from seeing a solicitor not because he might tell them about their right of silence but instead that the solicitor might quite innocently pass on information or messages. When that reason was given, I was waiting, as I think was the House, for examples that could be produced by the police of the harm that had been done by these innocent messages—so it would appear—to the solicitor, being passed on to other parties. Not one example was given. I know of no record, certainly at the Law Society, of any complaint having been made that this practice of solicitors, quite innocently to prattle to others and communicate messages to others, was having a harmful effect upon the work of the police.

It is in those circumstances that the first alternative is presented to the House. It is that if there can be no compromise by the Government on their original clause, please should we not stick to the traditional right incorporated in subsection (1) and say that the only exception is the terrorist exception? Otherwise the solicitor should be called in when the man wanted him. If I may say so in all humility, one ought to trust the honourable profession to which I have the privilege of belonging. That would be a desirable alternative.

But it may very well be that your Lordships will find—and I hope your Lordships will not—that that is not an acceptable alternative because it for some reason lets in situations which your Lordships feel (but, if I may say so, I do not) should be exceptions to the rule. So, if I may be allowed to say this, I look at Amendment No. 99. As your Lordships will hear from the noble Lord who is going to move that amendment, that deals with the mandatory notice to be served by the police in certain circumstances upon a solicitor, the result of which will be that all the matters for which the police want protection within the circumference, as it were, of Amendment No. 99, will be contained in the mandatory notice, which will expire within the time set out there. But during that time the mandatory notice will be effective.

May I make the position of the Law Society quite clear. It is this. For the profession to walk into a situation where not a court but a police authority, itself involved in the investigation and prosecution of a crime, was able to serve a mandatory notice stopping the professional duty and the professional relationship, which is a sacred one, between the solicitor and the client, is very difficult for the Law Society to swallow. Indeed, the Law Society would find it difficult, especially if this were ever used as a precedent in any other case. However so great is the principle of the right of the accused to see his lawyer that if the Law Society was faced with the two evils, one the clause standing as it does and the other the mandatory notice under Clause 99, the Law Society feels that the principle is so strong and so much in need of your Lordships' protection that it would say that Clause 99 is the lesser of the two evils. They would say to your Lordships that if we cannot get Amendment No. 98 then we say—this is the view of the Law Society—we had better put up with the Amendment No. 99.

I therefore move Amendment No. 98, but I have already given your Lordships, I hope clearly, the attitude of the Law Society, which is of course so much involved in this principle on Amendment No. 99. If your Lordships—I repeat it—cannot support Amendment No. 98, then, with reluctance and subject to the non-creation of a precedent, if I may put it that way, in regard to Amendment No. 99, your Lordships are asked by the Law Society to support Amendment No. 99.

Lord Renton

My Lords, before the noble Lord sits down, I think that he would have wished to point out to us that the amendment of the noble Lord, Lord Hutchinson, Amendment No. 100, necessarily goes with Amendment No. 99. Is that not so?

Lord Hutchinson of Lullington

My Lords, yes.

Lord Mishcon

My Lords, the noble Lord is quite right.

The Lord Chancellor

My Lords, the Question is that Amendment No. 98 be agreed to. I should have said, when I called it originally, that if Amendment No. 98 is carried, I am told to say that Amendment No. 99 cannot be moved. I hope that that is generally understood.

8.53 p.m.

Lord Campbell of Alloway

My Lords, may I speak to Amendments Nos. 98 and 99 and leave aside Amendment No. 102, which raises slightly different questions to do with terrorism. The question is whether the right of the individual to consult a solicitor privately at any time under subsection (1) should be subject to delay in rare, exceptional and very strictly defined circumstances in the public interest. It is all a question of balance having due regard to the main intendment of the Bill which is to combat major crime. But is it not all but axiomatic that in the rare case in which one of the three defined sets of circumstance envisaged by subsection (7) applies that individual right must be subservient to the public interest?

How else could one achieve requisite certitude—and it is requisite—against dissemination of vital information? Pre-arranged code words with hidden meaning were the stock-in-trade of all of us as prisoners of war. And, but for the fact that we made good use of them, much mischief would have befallen us. It is wholly unrealistic to suppose that it would be otherwise with persons arrested and held in custody in a police station save that the mischief would work against the public. With the greatest deference and respect to the noble Lord, Lord Mishcon, would one really expect examples? Does one really need examples? It is not a question, as the noble Lord said, of prattling solicitors. I disclaim any criticism of solicitors in this regard. The assumption and the hypothesis is that they are innocent carriers. There is no hint of criticism of their integrity or of their competence.

As to the suggestion which the noble Lord, Lord Mishcon, made, he said, "Is it not a traditional right?". At present, the power of exclusion, albeit the right to see a solicitor, is sparingly used. There are, according to my information, about 25 occasions a year when persons in custody without having been charged have been held in custody for more than 24 hours and have not been allowed to see a solicitor. Surely, one has to have regard to this matter in perspective. The position that arises today is that under existing practice the man in custody can be denied access to a solicitor for any offence. Here, under subsection (5)(a) it must be a serious arrestable offence. At the moment, an officer of any rank may make the decision. Here, under subsection (5)(b), it must be an officer of the rank of at least superintendent. At the moment, there is no safeguard machinery at all. Here, it has to be confirmed under subsection (6) in writing as soon as possible. At the moment, there are no narrowly defined sets of circumstances. It is at large.

Here, under subsection (7) there are three narrowly defined sets of circumstances. And under subsection (8) there are safeguards as to being told the reason, noting the reason in the custody record, and the requirement under subsection (9) that the duty shall be performed as soon as possible. These safeguards do not obtain at present. On analysis, with the greatest respect, I would suggest that it was not a harsh formula but a practical and realistic approach to an important problem which arises in rare cases. For these reasons, I would not accept, or would oppose, the amendment.

Lord Hutchinson of Lullington

My Lords, I should like to support Amendment No. 98 and in doing so, I should like to move Amendment No. 99 and Amendment No. 100—

The Lord Chancellor

My Lords, speak to the amendments.

Lord Hutchinson of Lullington

My Lords, I beg your pardon. I should like to speak to Amendments Nos. 99, 100 and 102 as being a compromise if the House did not feel disposed to the unconditional access to solicitors under Amendment No. 98. Amendment No. 99: [Printed earlier: col. 1153.] Amendment No. 100: Page 55, line 23, leave out subsections (4) to (18). Amendment No. 102: [Printed earlier: col. 1154.] In speaking to the amendments, I should like to reiterate the crucial importance of the principles to which they are directed. Those principles, as has already been stated, enshrined in this Bill and in the code, are the right to legal advice and the right not to be held incommunicado. Those two rights are already to be found in our criminal procedure, one in statutory form in the Criminal Law Act 1977 and the other in the Judges' Rules. So far as this Bill is concerned, enshrining those two rights, it is merely continuing rights now in statutory form which is an advantage. It is nevertheless continuing two rights which have already been established in the criminal proceedings in this country; and as the noble Lord, Lord Campbell, has just enumerated, making them sound as though they are a tremendous advance. The only difference is that now the period is limited to 36 hours. It is now the say-so of a superintendent and not of a more junior officer, and the restrictions are a little more restrictive—but only a little more than they were before.

This Bill perpetuates once again one of the worst blemishes on our criminal process, which has led to a number of miscarriages of justice. It is this power in the hands of a police officer to remove, upon his say-so, these two rights which has led to a number of miscarriages of justice over the last 20 years. As I said when speaking at the Report stage, they have been a blemish on the fair face of criminal justice in this country. I ask your Lordships to remember once again, if you would, the Confait case, because it was the Confait case which led to the Royal Commission and it was the Royal Commission which led to this Bill. Therefore, it is the Confait case which brings us here tonight to discuss this Bill.

Your Lordships will remember that in the Confait case there were three boys aged 14, 15 and 18, the boy of 18 having a mental capacity of a boy of 14, as was proved in the case. In that case, those three boys were denied these two rights. They were held incommunicado and they were not informed that they were entitled to have legal advice. When Sir Harry Fisher inquired into the matter and made his report, he found that, as a result, there were breaches of the Judges' Rules; there was prompting in the confessions which were made, or one of them; there was unjustified questioning and there was oppression.

The purpose of this amendment is to guarantee that that mischief should never happen again. I might say in parenthesis—I do not want to be emotional, with the noble and learned Lord the Lord Chancellor so close to me—that if this amendment had been part of the Judges' Rules at the time of the Christie and Evans case, Timothy Evans would be alive today. In my submission, therefore, it is a most important amendment. As I said, the purpose of it is to avoid the dark period which still exists between a person being taken into the police station and the moment when that person appears in court; the dark period where at the moment there can be no corroboration of what happens; the dark period where confessions are made, which may be true or which may be false but which give rise, hour after hour in court, to dispute between the police and the accused.

One of the main reasons for this amendment, apart from preserving a person's right and seeing that miscarriages of justice do not take place, is to save hours of judicial time when these disputes take place in court, always directed to what has happened in that dark period when the person disappears into the police station and when he or she is seen by a solicitor for the first time or appears in court the next day. This is an opportunity at long last to regularise that period and to see quite simply that somebody who is taken into custody has the right, which is enshrined in the Bill, to legal advice and is not held incommunicado; and to see that what happens there should be regularised, that it should be clear what has happend, that it should be known what has happened. There should be no ability in the accused person to make allegations against the police and there would be no ability in the police to make suggestions against the accused. On either side they could be totally untrue or totally true, but at least they would be allegations which could be established and regularised and brought into the light of day.

At Report and Committee stages the Minister went out of his way to say that there was a very powerful case indeed for this right being given to all persons in police stations. He had only one objection to it. He went out of his way to say that the objection could not have anything to do with the advice that the solicitor gave. That does not arise; there can be no objection on that ground. The objection is a perfectly simple and straightforward one—that if a person, in a few rare cases, is entitled to see a solicitor, that solicitor might inadvertently give information, a message. The example was, "Tell the wife to feed the budgerigar", or something like that, which would actually mean, "Get rid of the stolen property", or would result in other defendants or suspects running away, and so forth. In the extreme case it could even mean a person who had been kidnapped being killed. It was because of that danger that the Minister was unable to go along with the total right of a solicitor to see the defendant when he was in the police station.

We have had long consultations with the Law Society and with the Bar. The amendment arises as a result of discussions with Justice; indeed, particularly with Justice because, as was said during an earlier stage of the Bill, Justice is on record as confirming what I have just said; namely, that over and over again the miscarriages of justice which come to the notice of the organisation Justice are as a result of what is alleged to have happened when the person is alone in the police station. Repeatedly through the efforts of that organisation it has been found that in those circumstances people have made confessions which have later turned out to be false. There is no organisation in this country which knows more about this matter than Justice.

As a result we have drafted this amendment which in my submission absolutely accounts for the objection which has been raised, because it sets out in detail the situation which would obtain. If a police officer of the rank of superintendent takes the view that the solicitor should not communicate with any named person or with the person's family or with the man's wife, if he takes the view that the person should not give certain information, that he should speak to nobody, he may serve a formal notice upon that solicitor to that effect covering under subsections (A), (B) and (C) those three areas which are already covered in the Bill.

The difference between this amendment and the one which was before your Lordships at the Report stage is that now, having consulted the Law Society, the notice in (3B) is a notice "requiring the solicitor" to do these things and not leaving it in any way to the solicitor's discretion. As the House has just heard from the noble Lord, Lord Mishcon, the result is that the Law Society—and your Lordships will give them tremendous credit for this—in spite of feeling almost revulsion that the honoured relationship between solicitor and client should here be breached at the behest of a police officer, are prepared to go along with this amendment because they recognise that ultimately the interests of the person (their client) in the police station are served here over and above their own professional wish to maintain the sanctity of the relationship between solicitor and client. I know that your Lordships will give them credit for that.

This amendment is equally supported by the Bar Council. It is equally supported by the Criminal Bar Association. Your Lordships may have seen a letter in The Times today saying that very thing and that they have communicated their views to the Home Secretary. The whole legal profession supports this amendment. The Criminal Bar Association, which represents the prosecution side, equally with the defence side, wants this amendment on the statute book. Treasury Counsel at the Old Bailey want this amendment on the statute book. Why do they want it? They want it because they want the situation in a police station to be regularised; they want to get rid of the disputes in court; they want everybody to have a solicitor in those circumstances so that the solicitor can give the person proper advice.

It tends to be said, "Oh! The solicitor will tell the man to clam up and say nothing". It is not sufficiently appreciated that very often the advice that a solicitor will give—indeed, always gives in the interests of the person in the police station—is, "Look, after what you have told me, tell them everything. Tell them exactly what happened. Tell them where the property is. Tell them who the other people involved are. That is the only thing to do. It is the sensible thing to do in the circumstances". That may happen. Alternatively, it may happen that he will say, "Look, don't say anything because this case is far too complicated and if you suddenly start speaking you will make an ass of yourself. Don't say anything until we have had a long talk and I can put your statement in a proper form".

I would ask your Lordships this question in relation to this discussion about solicitors. If you were involved tonight in a motor car accident outside this building and you were completely convinced that you were not to blame and you were suffering from slight concussion and taken to the police station—in fact, let us leave out the concussion aspect—would you be prepared then and there, alone in the police station, to say: "Give me a pen and I will write down exactly what happened; I know exactly what happened; I know where I was driving; I know where the other car came from; I know the speed at which I was going; I know how far away the pedestrian crossing was"? Alternatively, would you say to yourself: "I shall wait before I make a statement about this. I know that I was not to blame, but, my goodness, I want some legal advice before I do so; I want to see a solicitor before I do this"?

I have taken a certain amount of time on this matter, but I would submit to your Lordships that this is an amendment of the greatest possible importance, that it will assist the administration of justice, and that all those who are involved in carrying out these trials want it. I would appeal to the Minister: what possible objection can there be in the circumstances of these special arrangements that are made for the police to object if they wish to do so?

Lord Renton

My Lords, it is now common ground between us that something must be done to prevent those things happening which would be contrary to the efforts of the police within the first 36 hours after the arrest of someone who has committed what appears to be a serious arrestable offence. The difference between us is in how we shall deal with this problem. Before I go any further, let me say that I am an honorary member of the Criminal Bar Association, I am a subscriber to Justice, I have been a member of the Bar Council, and I have a deep respect for the Law Society and its integrity. I do not in any way doubt the good intentions of any of those bodies or of any noble Lords who support these amendments.

However, I believe that there are dangers in this matter with which the amendments do not deal. I should like to take one point, which may be a rare one, but it is a realistic one. There are criminals who may not know the difference between a solicitor, a solicitor's clerk or a solicitor's office boy or girl. In every police station the police cannot be expected to have a copy of the Law List, or whatever it is now called, in order to verify the credentials of the person who is summoned. That is one point.

Before I briefly consider the amendments proposed and the solution offered by noble Lords opposite, I would remind them that in their solution, as at present embodied in the Bill as very slightly amended, the Government have acknowledged that the present system needs to be narrowed down to reasonable proportions, and that they have done. I do not share the fears which the noble Lord, Lord Hutchinson of Lullington, has expressed about the danger of confessions being wrongly obtained and leading to convictions which should not take place. I say that for two reasons: first, because in Clause 77 of the Bill we now have safeguards against confessions being misused—safeguards in addition to those that already exist and with which we are familiar.

The other point is that all confessions that are challenged when they come to court will be the subject of a trial within a trial, and I would hope that the various miscarriages of justice to which the noble Lord has referred would, to put it mildly, be exceedingly unlikely to recur when we have this Bill on the statute book.

Those are some of the reasons why I support the Government's solution. However, perhaps I may point out that there are defects, other than the one that I mentioned, in the solutions proposed by noble Lords opposite. The most serious defect arises from subsection (3B) of Amendment No. 99, where we find that: A notice … is a notice requiring the solicitor to refrain from doing a specified act"— that means any specified act— for a specified period not exceeding 36 hours from the relevant time, and stating the reasons therefor". That means in effect that a police officer will have to give instructions—which we shall perhaps call statutory instructions, different from the ordinary instructions between solicitor and client—to the solicitor. I find that a strange proposition. I believe it is without precedent.

Indeed, I would say that there could be circumstances in which such instructions could lead to a conflict between the statutory duty thus imposed upon the solicitor and his confidential duties which arise under the solicitor and client relationship. That is a matter to which we must genuinely apply our minds. Speaking for myself, I find it a strange proposition, and it surprises me to hear that many solicitors would welcome that situation. I find that that conflict makes the principle embodied in subsection (3B) of Amendment No. 99 unacceptable.

I do not wish to speak at great length on this point. I would simply say that we should remind ourselves that the Royal Commission went into this matter with great care. They were clear in their minds that a senior police officer should, on his own authority, for which he would be personally accountable—and no doubt it would be subject to the police complaints procedure—be able to exclude the solicitor altogether, subject to the safeguards written into this clause, in exceptional cases of serious crime. I suggest that it might be dangerous to refrain from acknowledging in this context the advice of the Royal Commission.

9.22 p.m.

Lord Gifford

My Lords, I ask your Lordships to support these amendments, in particular Amendment No. 98, and to remember what really goes on inside police stations between police officers and suspects. As the noble Lord, Lord Hutchinson, said, there is at present a principle enshrined in the Judges' Rules which allows a suspect to see a solicitor. It is subject to an exception if the officer believes that there will be unreasonable delay or hindrance to the process of investigation or the administration of justice which, in an admittedly looser form, is designed, and was designed, to prevent the kind of abuses which are envisaged in Clause 58. It was intended for rare cases.

Every legal practitioner knows that that right to see a solicitor is denied in case after case after case. I heard the noble Lord, Lord Campbell of Alloway, mention a figure of 25 cases where solicitors had been refused after 24 hours. I do not know where he got his figures, but in any case there are thousands of people who are refused the right to see a solicitor in the first 24 hours.

The reason why that refusal is issued is not to prevent any of the things contained in Clause 58. It is because police officers—and one fully understands why they think it—believe that it is easier to obtain a confession from someone they think is guilty if they have him, or her, to themselves in that first 24 or 36 hours. They believe—and one sees why they believe it—that confessions will not come so easily if a solicitor is called. I believe that they are wrong, for the reasons that the noble Lord, Lord Hutchinson, gave, but that is the motive why people are kept locked up incommunicado and not allowed to see a solicitor, and often do confess. Sometimes they confess to what they have done and, sometimes tragically and often, to what they have not done.

What we must ask ourselves is whether that in any way will change if the Bill is passed unamended. I do not believe that there will be any significant change in what goes on because the exceptions which are drafted into the Bill first of all apply to a huge spectrum of offences, as my noble friend Lord Mishcon pointed out, and, secondly, are couched in very general terms which will lead to interference with evidence. There are all kinds of ways in which, ex post facto, the police officer will say that he thought that this was a criminal who had an accomplice and if he saw a solicitor there would be interference with evidence. Most of the time that will stand up in court, but sometimes it may not. The result will be that, as happens now in case after case, people, many of whom will be innocent, will be locked up subject to constant interrogation from the investigating team without access to that which we would all want access to—that is to say, the services of a solicitor.

In the real world it will not be this rare, exceptional case. We are taking such trouble to try to guard against every possible piece of villainy that we are forgetting the other side of the coin, that there will be hundreds, if not thousands, of people locked up in conditions of some misery because they cannot get access to legal advice.

The Lord Chancellor

My Lords, we are dealing with the question of access to solicitors. I should like first to return, if I may, to one or two first principles. They are principles which I ventured to enunciate at Second Reading. I do not think they were then particularly controversial.

The object of criminal justice is to convict the guilty and to acquit the innocent. There is a most important coda to that, which is that it is far more important to see that innocent persons are not convicted than it is even to convict the guilty; but both are important. For that reason the tradition of the English criminal law has been to attempt to try to give effect to both those two basic principles: to convict the guilty, to acquit the innocent and to take every reasonable precaution known to human science and intelligence to prevent the innocent from being convicted.

I do not want to go into great detail, but one must put this into its perspective. Of course the first and most important safeguards are the burden and the standard of proof: the burden of proof on the prosecution and the standard of proof beyond reasonable doubt, as I still prefer to put it, although it is not the most fashionable way of putting it this day.

Secondly, there is the law relating to confessions. At the moment we are not dealing with it, although the noble Lord, Lord Hutchinson, touched upon it fairly fully. We shall come to that when we deal with Clause 77 and with the various amendments at various stages which deal with the question of confessions. We have codified and, I think, improved in this Bill the law relating to confessions. There are other safeguards, they are not few and they are added to by this Bill.

One of the safeguards is, of course, the law relating to access to solicitors. The noble Lord, Lord Hutchinson of Lullington, said—and I think that I have his words very clearly in mind—that the law relating to access arose out of the Confait case and the Royal Commission arose out of the result of the Confait case and gave rise to its recommendations. But I wonder whether anybody listening to the speech of the noble Lord, Lord Hutchinson of Lullington, would have realised that the amendment which we now have under discussion is exactly contrary to the recommendations of the Royal Commission which, according to him, arose out of Confait and which the Confait case gave rise to; and that the Government proposals contained in the Bill as drafted in fact correspond exactly to the recommendations of the Royal Commission. I think that that is something that ought to be put to the House in assessing the value of the eloquent speech with which the noble Lord, Lord Hutchinson, supported his amendment.

I heard him say, although perhaps by inadvertance, that Treasury counsel supported this amendment. I wonder what authority he had for saying that. I saw the letter in The Times and when I heard the noble Lord, Lord Hutchinson of Lullington, utter these words I sent across to find out if my department had any indication that Treasury counsel supported this amendment and I am advised to say that we have had no communication at all from Treasury counsel. All that we have had are the views of the Criminal Bar Association and the Bar Council. It is all very well, but he gave the House to understand that Treasury counsel—that is, the prosecution team at the Old Bailey—supported this amendment. I wonder what authority he had for saying so.

Lord Hutchinson of Lullington

My Lords, if I may interrupt the noble and learned Lord, I said it because he may not be aware that, among its members and on its executive, the Criminal Bar Association has Treasury counsel, including senior Treasury counsel. One such senior Treasury counsel happens to be in my own chambers and I can tell the House that I am not misleading the House; I am not saying something which is untrue, and I am not saying something which is inaccurate. I am saying something which is fact, is correct.

The Lord Chancellor

My Lords, I fully accept that the noble Lord has a distinguished member of Treasury counsel in his chambers. I also accept as correct the composition of the Criminal Bar Association. But that does not justify the statement which the noble Lord has made. He has no authority, on what he has just said, or what he said in his principal speech, for saying that what he is now proposing has the support of Treasury counsel.

Having disposed of these points, to which I attach a certain amount of importance, may we now look a little at the merits of this amendment which has been put forward with such obvious sincerity. One wants to ask one or two questions about it. It is, as I have already said, directly contrary to the recommendations, and, I understand, the unanimous recommendations, of the Royal Commission. It may well be supported, and I do not seek to deny it, by very distinguished persons in the solicitors' profession and at the Bar.

Is it logical? Here again I do not want to pre-empt discussion on Amendment No. 99, which may or may not have to be moved in accordance with the result of the decision of the House on this amendment. Is it logical if Amendment No. 99 is the second best?—as I think the noble Lord, Lord Mishcon, has said. It certainly is not very logical that access to a solicitor on practically the same tems as it is limited by the Bill as drafted is to be denied in the case of terrorist offences.

I do not quite know what offences are that are called terrorist offences. If you kill the Leader of the Opposition, is that murder or is it a terrorist offence? I suppose it is a terrorist offence. If you commit the terrible series of crimes which were committed by Mr. Hutchinson and which received such publicity the other day, nobody would suggest that they were terrorist offences. But going back to first principles, it is more important surely to see that a person is not convicted of a terrorist offence which I would have thought, with recent events clearly in our minds, we would say would carry, if anything, a heavier penalty than the penalty inflicted on Mr. Hutchinson, that it is not really more important that he should be denied one of the safeguards, an innocent man should be denied one of the safeguards, when it carries a heavier penalty, just because it is a terrorist offence.

I should have thought this was wholly illogical, and I cannot see the reason behind this particular line. But then one comes a little further and one asks oneself: is it effective? The answer is that the amendment is totally ineffective to deal with the evil with which it is desired to deal. My noble friend Lord Campbell of Alloway, and I think also my noble friend Lord Renton, touched on these points.

We are not attacking the integrity of the solicitors' profession at all. The message can be anything you like. It can simply be: "Tell my wife I'm in here". How can the police superintendent, or whoever is to give the restriction on the solicitor, tell the solicitor not to communicate to the wife that he is inside? What is the specific thing which is presupposed in this amendment which must be restrained in the event of the solicitor being subject to this particular amendment? The answer is that there is nothing that you can ask the superintendent to prohibit at all. The only thing he could rationally do would be to tell the solicitor to go and lock himself up in his bathroom and talk to his own budgerigar. There is in fact a totally ineffective amendment to deal with a very real danger.

Now I come to ask: why even to try to improve in this case upon the remedy which is prescribed by the Government? This Bill, for the first time in our legal history, gives a statutory right of access to legal advice. This right is absolute except for all those detained otherwise than in connection with serious arrestable offences. The combination of the amendments, one of which is now before us, is that the terrorist shall be excluded. I say "the terrorist", knowing that the man may be wholly falsely accused of terrorism. The man who is wholly falsely accused of terrorism shall be excluded from these protections.

But the Royal Commission said something very different, and it said the same thing as is said by the Government in this Bill. The Royal Commission on Criminal Procedure was clear that in the light of the practical consequences for the investigation of serious crime, the present discretion to delay access to legal advice should be retained even if more strictly regulated and also placed on a statutory basis. This was that unanimous view; and it was the noble Lord, Lord Hutchinson of Lullington, who sought to invoke the Royal Commission and the Confait case out of which it arose as support for his amendment, when his amendment is wholly inconsistent with the view which their unanimous report put forward.

Under the present law, access to a solicitor may be denied to a person in custody for any offence for any time on the authority of an officer of police of any rank, on criteria which I venture without contradiction to describe as vague. In contrast, under Clause 58, to which we are now discussing an amendment, delay is only possible for at most 36 hours in the case of serious crime on the authorisation of an officer of at least the rank of superintendent. He must have reasonable grounds for believing that access to a solicitor will lead to one of the consequences listed in subsection (2).

I must, in parenthesis, say that the deliberate use of the expression "reasonable grounds" means that his judgment can subsequently be rendered justiciable in court. He must inform the detained person of the reason why he has reached the conclusion that I have stated; and, of course, in any attempt at judicial review of his decision what he has told the prisoner, the detainee, will be something which is compared carefully with the grounds that are put forward in support of the refusal of access. He must note the reasonable grounds in the custody record and this, of course, will subsequently be available to the person concerned; so the possibility of challenging a decision to delay access to legal advice is clearly provided for.

I know, of course, that the Law Society still feel anxiety about the scope of what is a serious arrestable offence. But I suppose we would all consider that the recent crimes of murder and rape committed by the recently convicted person Hutchinson would be seriously arrestable on any basis of the case. And we must, of course, remember that the Bill itself also makes provision for the establishment of duty solicitor schemes under the Legal Aid Act, so that detained persons who want legal advice at whatever time of the day or night will be able to obtain it at the public expense.

Section 6 of the draft detention code of practice also requires each detained person to be informed at the outset orally and in writing of his right to legal advice, and, if he does not want to take up his right, to waive it in writing. The code goes on to make it clear that a person may have his solicitor present at an interview and that only actual misconduct on the solicitor's part will allow the police to require him to leave.

These are, I should have thought, formidable new safeguards which have never previously been incorporated in our principal law. That is not enough for the movers of this amendment. They want more. They want to make the right to consult a solicitor absolute, except if Amendment No. 99 is reached, in the case of crimes of terrorism of which I must say, at the stage we are discussing, the detainee has never been convicted and is therefore presumably innocent. That is what they want. I suggest that I have shown that this amendment goes too far, and I want to make it clear that so far as the police are concerned—and I do not make any claim to speak on behalf of the police—I am told that the amendment would seriously impair their ability to combat major organised campaigns.

For these reasons—and I do not wish to detain the House unduly—I would point out that I believe beyond peradventure that these amendments are contrary to the unanimous Report of the Royal Commission. If they do incorporate or substitute Section 99 they are illogical, because they deprive the terrorist of the rights which Mr. Hutchinson would have been allowed or the Black Panther would have been allowed. They are ineffective to prevent the mischief from which it is desired to safeguard them and, I must add, it is also contrary to the principle. Nobody was more eloquent in support of this principle than the noble Lord, Lord Mishcon, on Committee and Report.

What are we going to say to solicitors? Remember that they are not entirely representative of the Law Society; they are individuals; they are people who have a professional honour of their own. What are we going to say to solicitors who say, "I am not going to obey what the superintendent tells me"? The remedy proposed in the amendment involves that the police officer should tell a solicitor what he should do and what he should not do; he should refrain from individual action. But how can this be rendered consistent with the ethic of an independent and honourable profession? I frankly do not know; nor, at the Report stage, did the noble Lord, Lord Mishcon.

Finally, we are told we believe—and this is part of my case—that the amendment is unnecessary, for the reasons I have intended to give, because the Bill already provides safeguards in excess of what has ever been provided in our criminal law before and which, I submit, represent as far as we should go at this stage in our history.

9.48 p.m.

Lord Renton

My Lords, may I have the leave of your Lordships to mention that the noble and learned Lord, Lord Denning, who was unable to be here this evening, asked me to say that he would have opposed these amendments had he been here?

Lord Mishcon

My Lords, the noble and learned Lord would presumably have done it without listening to the debate or the arguments that were advanced by both sides, and that is not his usual exercise of the great judicial expression which he has shown to date.

Having said that, may I pay a humble tribute—and I mean it—to the noble and learned Lord, not for the content, if I may say this with respect, of his remarks but for the great debating skill which he employed in passing them to the House. There is no doubt that we have heard a great debating speech. The noble and learned Lord will forgive me if I emphasise the debating quality of the speech because the noble and learned Lord referred to the Royal Commission Report. He was absolutely accurate in regard to the recommendation that was made by the Royal Commission, but he would be the first person to admit, in the same way that he asked the noble Lord, Lord Hutchinson, to admit certain matters, that the Royal Commission were not considering a situation where police were given powers in regard to detention and matters of the kind which are now incorporated in this Bill; they were not asked to advise upon such matters; they did not advise on such matters. It is in this atmosphere that it becomes so radically important, this right of the accused man or the suspect to see his solicitor.

I am not going to take long, but I must answer a couple of points made by the noble and learned Lord. He referred to my speech—it was kind of him—at Report stage. Again, he was accurate in his reference, but he might have told the House, if I may say so with respect. that we were not then dealing with this amendment which was a mandatory amendment, No. 99; we were dealing with a situation where a solicitor was requested by the police officer to do certain things. I made the point, I think fairly as a member of my profession, that to place a solicitor in the dilemma of being faced with a request by the police and his duty to his client put him in an impossible situation. Whatever else he may have done, the noble Lord, Lord Hutchinson of Lullington, was good enough to deal with that point by making this amendment mandatory.

I shall repeat in summary the attitude of the Law Society. The Law Society feel—and I should have thought all members of my profession agree with it—that with the counterbalance now of the rights of detention and the extension of those rights it is very important that there should be no qualification about the right to see a solicitor.

The noble and learned Lord the Lord Chancellor knew that he had me on the horns of a dilemma. If I had left out terrorism he would have made a most eloquent speech in which he would have referred to all the acts of terrorism. He would have referred to the fact that if a solicitor were seen by a prisoner this might lead to a message being given, as a result of which other people might be killed, or the police might be prevented from capturing other people who were terrorists and who might perform further terrorist acts. Knowing that he had got me on the horns of a dilemma. if I had left out terrorism the noble and learned Lord would have attacked me for leaving it out. The noble and learned Lord also knew that if I put in terrorism he would be able to make the extremely clever debating point—

The Lord Chancellor

My Lords, the trouble is that the noble Lord deliberately sat on both horns.

Lord Mishcon

My Lords, if I showed my discomfort in that rather unpleasant situation, I did not mean to do so. The noble and learned Lord interrupted me in the middle of a sentence. I was going to explain that the horn of the dilemma which he has set as my second uncomfortable place upon which to sit is in fact no uncomfortable place at all. I believe that when it comes to acts of terrorism, with which this country is unfortunately faced, we must have, at least temporarily, the exclusion of certain rights, even if unfortunately we hurt the innocent. That is the reason why Parliament passed a temporary terrorism Act as a result of which all kinds of liberties have to be given up if people are charged with acts of terrorism but not yet convicted. The noble and learned Lord knows that perfectly well. He was one of the supporters of that legislation.

The Law Society did not say that they supported Amendment No. 99. To have said that would have meant, as they knew, putting a possibly dangerous precedent before Parliament which might be used in future. They felt that it was wrong for any organisation to be able to tell a solicitor what he must or must not do in carrying out his professional duty. However, the Law Society says that it does not seek to oppose Amendment No. 99 if Amendment No. 98 cannot be carried, because Amendment No. 99 is the lesser of two evils. As the noble Lord, Lord Hutchinson of Lullington, correctly said, there must be two considerations before the Law Society: first. the right of the client to legal advice, and, secondly, the protection of the solicitor in his duty. If it has to choose between the two, the Law Society wishes to protect the client.

In the circumstances of this debate the proper course for me to take—because I do not believe that I ought to do anything else in protection of the attitude of the Law Society—is to withdraw Amendment No. 98 and to leave my noble friend Lord Hutchinson of Lullington to do as he sees fit with Amendment No. 99. I have already indicated that if that situation is reached noble Lords in this House ought to support Amendment No. 99. I beg leave to withdraw Amendment No. 98.

Amendment, by leave, withdrawn.

Lord Hutchinson of Lullington moved Amendment No. 99:

[Printed earlier: col. 1153.]

The noble Lord said: My Lords, I rise to move Amendments Nos. 99, 100 and 102.

[Printed earlier.]

I have already spoken to these amendments. I beg to move.

The Lord Chancellor

The Question is—

Lord Foot

My Lords, I was hoping that I might have the opportunity—

The Lord Chancellor

I have to put the Question. The Question is that Amendment No. 99 be agreed to.

Lord Foot

My Lords, we are getting into a state of some little confusion, but there are a few things I wanted to say about these three proposed amendments, and in particular about Amendment No. 99. Some reference has already been made by the noble Lord. Lord Hutchinson, to the fact that this amendment has been sponsored by Justice and is an amendment to which Justice attaches the very greatest importance. I do not know what is the attitude of the Law Society on his matter, except what has been disclosed to us by the noble Lord, Lord Mishcon. However, let me tell him and the House that if the Law Society takes the view that Amendment No. 99 is going too far, that is not a view which is shared by a great number of solicitors and members of my profession.

I should like to deal with three of the matters which have already been referred to. First, the noble and learned Lord the Lord Chancellor said that the proposal contained in Amendment No. 99 was in complete conflict with the recommendations of the Royal Commission. I think that possibly tomorrow, if the noble and learned Lord looks back at what he said, he may be prepared to concede that that was extravagantly spoken. If we consider the clause which now appears in the Bill, which is Clause 58 on access to legal advice, and compare that with Amendment No. 99, we find that, in fact, on very many matters they are identical.

Amendment No. 99 differs from the present clause in two respects. Under the clause the decision as to whether there is to be any delay in giving a person in custody access to legal advice rests with a superintendent and he has the power to delay access to legal advice for a period of 36 hours at the most. Under Amendment No. 99 the matter is dealt with slightly differently.

First of all, three tests are set out as to when the delaying power can come into effect. The criteria which are set out in the clause are exactly the same as those set out in Amendment No. 99. The first difference is that under the clause a superintendent is empowered to decide whether there shall be a delay, but under Amendment No. 99, if circumstances exist where it is felt by the authorities that there would be a danger by giving immediate access to legal advice, then the senior superior officer gives notice to the solicitor telling him what he does not want him to do and telling him also the reasons for that.

It has been said that that is a grave breach of the confidential relationship between the solicitor and his client. It is nothing of the kind. It is a very simple restriction over a very short period of time as to what the solicitor can say to someone in the outside world. It in no way restricts the opportunity for the person who is in detention to obtain legal advice. It imposes no restriction whatever upon that exchange of advice. That is the first thing.

Secondly, the enormous advantage of the procedure under Amendment No. 99 is, of course, that it allows a solicitor to monitor what goes on in the secrecy of the police station. That is the enormous benefit of dealing with the matter in the way in which we propose. It is ludicrous to pretend that the Royal Commission did not regard this matter of access to legal advice as being of the greatest consequence. It is ludicrous to suggest that the Royal Commission, which was'set up to deal specificially with the problem that had arisen in the Confait case, did not realise the importance of a solicitor being present when someone is being interrogated by the police.

I think it will be a minor tragedy if this amendment falls to the ground. For many years now some of us have been trying to work out a system whereby we can restrict those awful occasions which occur time after time in the criminal courts of this country where there is this prolonged dispute—the trial within a trial-—trying to decide what really happened inside the doors of the police station. The amount of judicial and forensic time which is wasted in that way has become a major abuse.

It is not only unfair to the accused person when there are these exchanges of accusation between the prosecution and the defence. It is not only that the accused is in great difficulty because, of course, inevitably it is his word against that of the police. It is also an imposition upon the police officers. If counsel is instructed on behalf of an accused person and he tells him that some confession was extracted from him by improper means, he has no alternative but to cross-examine the police officer to suggest that he has come to court in order to give corrupt evidence. There is no alternative to that. It is extremely unpleasant when perhaps a young police officer at the beginning of his career has to be subjected to cross-examination to suggest that he is engaged in the corruption of justice.

All these ills could be avoided if only someone was there from the beginning to monitor the situation between the police and the individual. That is the great opportunity which is now presented to us and which we shall throw away if the House allows the amendment to he defeated.

Lord Hutchinson of Lullington

My Lords, I have already spoken to this amendment but I think I have the right to reply to some of the things that were said by the noble and learned Lord who sits on the Woolsack. I shall take up only a few minutes. The attack which was made in relation to the terrorist angle seems to me merely to highlight the paucity of the noble and learned Lord's arguments, if I may say so with the greatest respect. As has already been said, everyone in the Chamber knows perfectly well what a terrorist offence is. It is an offence under the Prevention of Terrorism Act. Everyone here knows that as far as terrorists or alleged terrorists are concerned rights have to be suspended. It is a state of war, and everyone knows that in those circumstances rights that are important in the ordinary criminal law process have to be suspended so long as those offences take place.

The only real argument that was put forward—and, again, I say this with the greatest respect, although I am unable to cite a case of R. v. Hailsham, which I should very much enjoy doing in reply to the case of R. v. Hutchinson—was when the noble and learned Lord said that the terms of this amendment are totally ineffective. I submit to your Lordships that these amendments are absolutely watertight so far as any danger is concerned. The officer has to say to the solicitor, "Do not do this, do not communicate with the wife; do not communicate with certain people; do not telephone the address; do not go anywhere near the so-and-so. Write it down". The sanction of that, quite apart from the ordinary honour of a member of a great profession, is that if the solicitor does what he has been given a notice not to do, it will be a professional offence.

Equivalently, this Bill is full of instructions to the police. There is no sanction against the police except disciplinary sanctions. This is a disciplinary sanction against a solicitor. Equally, it would in all probability be a criminal offence of perverting the course of justice if a solicitor was to breach a request by an officer under the terms of this amendment. So I submit to your Lordships that the sanction is absolutely watertight.

Lastly, in regard to duty solicitors which are provided for in this Bill, if the matter is so serious that the solicitor must not even be telephoned, all that the officer has to do is to send for the duty solicitor and say, "There is someone here who wishes to have your advice". The duty solicitor will then come in, see the person and be served with a notice. Nothing will come out of that police station at all—but that man will have legal advice.

Therefore, I submit that in spite of a great deal of power and—I say this with the greatest respect—noise, and bluster, the only reply that has been given in relation to this proposed amendment is the one with which I have just dealt. In those circumstances, having heard what has been said and the support that this amendment has received, I should like to test the feeling of the House upon it.

The Lord Chancellor

My Lords, I suppose I ought to say something.

A noble Lord

The noble Lord has a right of reply.

The Lord Chancellor

My Lords, if the noble Lord has a right of reply, it makes me all the more feel I ought to say something. I cannot see why I should be shut out because the noble Lord has a right of reply. This is the worst argument so far advanced.

Let me remind the House of what I said a moment ago and read it against this amendment. I said that it was illogical to put people who were accused of terrorist offences—and ex hypothesi until convicted maybe innocent-—in a different class from the Black Panther or various characters who have committed really serious offences which are not terrorist offences. I still say that. I think it is I, and not the noble Lord, Lord Hutchinson, in this respect, who am liberal: the advocate of civil rights, the advocate of liberty. I do not see the logic. I said that it was illogical. I still think it is illogical. You cannot assume that a man is guilty until he has been convicted by a jury of this kind of offence.

The noble Lord, Lord Hutchinson, who complains about the noise with which I speak, is not exactly a fading violet himself. He is not one of those people who cannot make themselves heard. I have never had to say to him, "Speak up!" As for bluster, never has the House been addressed more as if it was an Old Bailey jury than it is habitually addressed by the noble Lord, Lord Hutchinson of Lullington. So I am basically not one of those characters. But nobody could bluster more than he does.

The only other thing that I would like to say is that he now says that everyone knows what a terrorist offence is. Well, do they? And at what stage? Quite obviously, after conviction, one can form a pretty shrewd idea. Quite obviously, before conviction at various stages, one may form ideas rather more or rather less shrewd. The amendment depends on arrest and detention under the Act. Well, yes, but that might lead to an acquittal. Or it might lead to a conviction for an ordinary offence of inflicting actual bodily harm. So that does not get us very far. I thought that he made no effort whatever to cope with the criticism that I ventured to make of the earlier amendment, namely, that it was ineffective to face the mischief which it is desired to avoid. I still think that the only proper recipient of the solicitor's confidences would be the budgerigar. The coded message had been something with which he has been totally unable to deal.

Nor do I think that he coped with the problem, although the noble Lord, Lord Mishcon, in the last amendment did attempt to cope with it albeit I thought unsuccessfully, of the question of principle. Supposing that a solicitor is told by a superintendent not to do a certain thing which he thinks is in the interests of his client. I do not think it matters whether he is ordered or required or requested. Obviouly he has a protection against the disciplinary committee if he is ordered or required. But how about his poor old conscience as a solicitor? I think that the noble Lord, Lord Mishcon, was better on Report and in Committee than he was today. Equally, I repeat, without repeating in words, exactly what I said about the adequacy of the safeguards already in the Bill.

Lord Hutchinson of Lullington

My Lords, I shall not exercise my right to reply.

Noble Lords

Put the Question.

The Lord Chancellor

My Lords, I cannot put the Question until the noble Lord has replied.

Noble Lords

He has replied.

The Lord Chancellor

My Lords, I see. I am so sorry. I thought that he was speaking again by permission of the House. If I am wrong, I shall put the Question now.

10.13 p.m.

On Question, Whether the said Amendment (No. 99) shall be agreed to?

Their Lordships divided: Contents, 45; Not-Contents, 53.

DIVISION NO. 4
CONTENTS
Airedale, L.	Kilbracken, L.
Ampthill, L.	Kilmarnock, L. [Teller.]
Attlee, E.	Kissin, L.
Birk, B.	Lawrence, L.
Brooks of Tremorfa, L.	Lockwood, B.
Carmichael of Kelvingrove, L.	McNair, L.
Collison, L.	Milford, L.
Denington, B.	Mishcon, L.
Donaldson of Kingsbridge, L.	Monson, L.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Ponsonby of Shulbrede, L.
Ewart-Biggs, B.	[Teller.]
Foot, L.	Prys-Davies, L.
Gallacher, L.	Rea, L.
Galpern, L.	Seear, B.
George-Brown, L.	Stallard, L.
Gifford, L.	Stoddart of Swindon, L.
Grey, E.	Tordoff, L.
Hanworth, V.	Underhill, L.
Houghton of Sowerby, L.	White, B.
Hutchinson of Lullington, L.	Wilson of Rievaulx, L.
Hylton, L.	Winchilsea and Nottingham,
John-Mackie, L.	E.
Kagan, L.

NOT-CONTENTS
Avon, E.	Killearn, L.
Bauer, L.	Kinnaird, L.
Belstead, L.	Long, V.
Bessborough, E.	Lyell, L.
Birdwood, L.	McAlpine of West Green, L.
Brabazon of Tara, L.	McFadzean, L.
Caithness, E.	Margadale, L.
Cameron of Lochbroom, L.	Marley, L.
Campbell of Alloway, L.	Marshall of Leeds, L.
Carnegy of Lour, B.	Masham of Ilton, B.
Carnock, L.	Morris, L.
Cork and Orrery, E.	Mottistone, L.
Caigavon, V.	Orr-Ewing, L.
Denham, L. [Teller.]	Renton, L.
Digby, L.	Romney, E.
Eccles, V.	Skelmersdale, L.
Elton, V.	Stanley of Alderley, L.
Faithfull, B.	Stodart of Leaston, L.
Ferrier, L.	Swinton, E. [Teller.]
Gibson-Watt, L.	Teviot, L.
Glenarthur, L.	Trefgarne, L.
Gray of contin, L.	Trumpington, B.
Hailsham of Saint	Tryon, L.
Marylebone, L.	Vaux of Harrowden, L.
Hives, L.	Vickers, B.
Hood, L.	Whitelaw, V.
Ingrow, L.	Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.22 p.m.

[Amendment No. 100 not moved.]

Lord Elton moved Amendment No. 101:

[Printed earlier.]

The noble Lord said: My Lords, I believe that my noble and learned friend spoke to Amendment No. 101 with Amendment No. 95, and I therefore beg to move.

On Question, amendment agreed to.

[Amendment No. 102 not moved.]

Clause 59 [Legal aid for persons in detention]:

The Lord Chancellor moved Amendment No. 103: Page 57, line 30, at end insert—

1. ("(i) such as are mentioned in section 29 of the Police and Criminal Evidence Act 1984; or
2. (ii)").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 103 and to speak to Amendments Nos. 105 and 106: Amendment No. 105: Page 57, line 33, leave out ("the Police and Criminal Evidence Act 1984") and insert ("that Act"). Amendment No. 106: Page 58, line 11, after ("persons") insert ("such as are mentioned in section 29 of the Police and Criminal Evidence Act 1984 and for persons").

These amendments fulfil the undertaking I gave to the noble Lord, Lord Mishcon, at Report, in response to his proposed amendment of similar intention but narrower effect. In response to the concern from the Law Society, I have come to the conclusion that it would be right to include within the same duty solicitor arrangements all those for whom legal advice is necessary under the Bill and code. The amendments extend the society's powers to make those arrangements, which will already cover those arrested, to cover also those helping the police with an investigation. This will permit a simpler system with some tighter controls, and offer all those given advice a number of advantages appropriate to their special circumstances. I beg to move.

Lord Mishcon

My Lords, I want at once to thank the noble and learned Lord for having given consideration to what was said on behalf of the Law Society and for the amendments. I hope that he will not think me churlish if I remind him of his knowledge that the Law Society is somewhat unhappy about the reactions of his own department in regard to these matters. I do not intend to raise them at this juncture, but I hope that the House will be patient in hearing me on those matters at a later stage of this Bill.

The Lord Chancellor

My Lords, I am grateful to the noble Lord for his intervention and if he is going to raise these matters again I suppose I had better wait until he does so.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 104: Page 57. line 31, leave out ("in police detention") and insert ("arrested and held in custody").

The noble and learned Lord said: My Lords, this amendment relates to Amendments Nos. 107, 108 and 109. Amendment No. 107: Page 58, line I leave out ("in police detention") and insert (arrested and held in custody"). Amendment No. 108: Page 58, line 12, at end insert ("and"). Amendment No. 109: Page 58, line 17, leave out from ("court" ") to end of line 23.

These amendments correct an unintentional difference of approach between Clause 58, dealing with access to legal advice, and Clause 59, dealing with legal aid for persons in detention.

It may be convenient if at the same time I speak to the amendments appearing in my name on the Marshalled List. These amendments correct a difference in approach between Clauses 58 and 59 which would have resulted in advice and assistance under the proposed 24-hour duty solicitor schemes being available to some only of those given the right of access to legal advice under Clause 58. The result was unintended. The amendments make it clear that those arrested and held in custody will be able to take advantage of the new scheme. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 105 and 106:

[Printed above.]

The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendments Nos. 107, 108 and 109:

[Printed above.]

The noble and learned Lord said: My Lords, I spoke to these amendments when I dealt with Amendment No. 104. I beg to move.

On Question, amendments agreed to.

Clause 60 [Tape-recording of interviews]:

Lord Mishcon moved Amendment No. 110: Page 58, line 24. at end insert ("on or before the coming into operation of Parts IV and V of this Act").

The noble Lord said: My Lords, as your Lordships know. Parts IV and V of this Bill deal with the powers of detention and the questioning and treatment of persons by police. Both at Second Reading and at later stages of the Bill the noble Lord the Minister has made it very clear that, although these provisions give the police various powers which in many ways affect the liberty of the subject but which, for reasons which we all know, they must have, he was comforted and the House was comforted by the fact that statements, interviews and confessions would be tape-recorded under the provisions of the Bill.

To put it very briefly, this amendment simply asks that these parts of the Bill dealing with detention, questioning and treatment of persons by police shall be postponed until the code of practice is prepared in regard to tape recording and an order is made carrying that code of practice into effect.

Perhaps I may make one brief reference to a recent article in The Sunday Times headed "Police lose, but taping wins". I shall read only one paragraph from that article: An experiment in tape-recording police interviews with suspects has been so successful that recorders might be installed in police stations throughout the country within two years. Last week, when used in a trial for the first time. at the Old Bailey, tapes shortened the hearing by eliminating arguments over what was said by the defendant, and the evidence, which would normally have taken two or three days to present, took less than a day.

Perhaps I could quote the first sentence of the next paragraph: The police lost the case".

Your Lordships will see what a safeguard that is. It must be right that all these new powers should only take place with all the regulation in this Bill when the tape-recording code has been prepared, has been passed by Parliament and a due order made in regard to it. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, may I ask the noble Lord for reasons why it should take two years? One can buy a tape recorder at a low price wherever one goes, and it should take about six months.

Lord Elton

My Lords, the Government are entirely committed to implementation of tape recording. We need no persuasion of the need to do that. If by this means noble Lords opposite are seeking to persuade us to get on with the job, they are trying to do something that has already been done and the amendment is superfluous. If they are seeking to force us to get on with the job faster, their amendment may not be superfluous, but it is ill judged.

What we are instituting is a procedure that is entirely new in this country, both to the police and to the courts. If the courts have no confidence in the product, the suspect will receive no benefit from the procedures. They involve the use of specialist equipment in specialist circumstances. It is not something that can be lightly undertaken with untried equipment or in a room that is not acoustically suitable.

Nor can we be certain simply by speculation of what technical obstacles have to be overcome, or of what the exact reactions and requirements of the courts will be. That is why we are testing our first assumption in field trials. When we have the system right I believe it will be highly beneficial. Until we have it right I believe it would be not just premature, but also counterproductive to oblige every force, in every part of the country, to embark on a scheme that we had not got right, with equipment which might not be the best.

I can undertake that we shall complete the experimental process and implement Clause 60 as swiftly as experience and resources permit. If that is enough for noble Lords opposite, then their amendment once again is superfluous. If it is not enough, either it must be because they want us to act before we are ready, to serve up the pudding before it is cooked—and that, I am sure, is so wrong headed that they would not do it—or we must assume that the undertaking that I have given them is not enough and that they see this compulsory link between Clause 60 and Parts IV and V of the Bill as some kind of lever for ensuring action from a dilatory Government.

Their purpose is to ensure the early implementation of the clause and the means by which they intend to do it is by denying the powers of Parts IV and V of the Bill—and not only the powers, but also the duties and defences. If they do not want us to implement Clause 60 until it is ready. they cannot responsibly want us to do what is the logical consequence of what they propose; that is that the whole of Parts IV and V of the Bill, with all the benefits contained therein for the suspect on whose behalf they claim to be acting, will be withheld from him while the field trials and research are thoroughly completed. I could list the advantages to the accused person that that would deny to him, but the noble Lord was charitably brief in moving this amendment. I have put the weight of what I had to say in explaining to your Lordships why we think it should be resisted. I hope your Lordships will do so.

Lord Elwyn-Jones

My Lords, this important proposal has been delayed for years and years. I tried to do something about it in about 1978. It is now six years since then. Is real effort being put into this? The object of this amendment is to underline its urgency. It was an essential part of the whole package of the Royal Commission report, and was regarded as the most important protection of the detained person, of the person under interrogation and questioning. The absence of it is becoming a most painful situation in the courts. Almost every so called "verbal" is challenged. Most of those interminable delays would be remedied if there was a tape recording available. I am sorry that we do not detect a sense of urgency in what has been happening. This is why this amendment has been put down.

Lord Elton

My Lords, with your Lordships' leave, I ought to say that we are well into the field trials. They have been running for nearly a year. We have six of them running at present. There is a sense of urgency. We have come on since the noble and learned Lord sat on the Woolsack. We have the hardware at work in police stations. The noble and learned Lord would be the first to castigate us if we went national on a scheme which then proved to lose the confidence of the courts because it was proved that tapes could be interfered with, or that for some other procedural reason the evidence was not validated in the way he would wish. We are expediting this. We are nearly halfway through the field trial period, and we shall deal with this as swiftly as experience and resources permit.

Lord Mishcon

My Lords, the noble Lord the Minister used the analogy of the pudding. As my noble and learned friend said, the pudding is so long in the cooking that I do not know whether it will be edible when it reaches the stage that we are all seeking.

I was going to quote one paragraph which appeared in the Sunday Times. It may help the House to know that this is what was recorded weeks and weeks ago: So far, recording machines have been installed in police stations in London, Leicester, South Tyneside, The Wirral and Winchester. Croydon and Holborn, in London, were the first stations equipped, in February. Eight hundred officers have been trained to operate the machines, and have carried out 1,100 interviews. Only five people have refused to co-operate". The noble Lord the Minister spoke about the anxiety of court procedures not yet being fixed and the machines being tamper proofed. I must educate him in the following history, if the Sunday Times is right: The system is designed to be tamper proof. Each machine records two tapes at once, both of which are unwrapped in front of the suspect. Recording must be continuous, and the machine times the length of the interview. After all questioning is over—the average interview takes only 10 minutes—one tape is sealed and stored for six years as the master copy. The other is used to make copies for use in any proceedings". Again I interpolate that, from the remarks that he made earlier, the Minister must be delighted to hear about this progress from the Sunday Times, of which apparently he was unaware. During last week's trial"— so the matter has already reached the High Court— two tapes were played, one a confession, the other an earlier denial. Legal precedents were set as the High Court judge, Mr. Justice Otton, decided how to deal with the tapes. He ruled that the jury could, if it wished, hear taped evidence again during its deliberations, provided it returned to the courtroom to do so. He also ruled that the tapes themselves, rather than transcripts of them, were the 'best evidence': to give the jury transcripts would remove the emotional quality of the live recordings". I am sure that I have brought joy to the heart of the noble Lord the Minister by telling him of the progress of which presumably he was unaware.

As we have reached this stage, ought we not to see that the matter is expedited by the sanction imposed that these parts of the Act should not come into existence until there is tape recording, after all the years of attempts to get it there, in order to abbreviate criminal proceedings and to see that the confessions, statements or denials or whatever they may be, are accurately recorded when they come before the court?

10.38 p.m.

On Question, Whether the said Amendment (No. 110) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 43.

DIVISION NO. 5
CONTENTS
Airedale, L.	Kilmarnock, L.
Attlee, E.	Kissin, L.
Birk, B.	McNair, L.
Donaldson of Kingsbridge, L.	Mishcon, L.
Elwyn-Jones, L.	Monson, L.
Elystan-Morgan, L.	Ponsonby of Shulbrede, L.
Ewart-Biggs, L.	[Teller.]
Foot, L.	Stoddart of Swindon, L.
George-Brown, L.	[Teller.]
Gifford, L.	Todoff, L.
Hanworth, V.	Winchilsea and Nottingham,
Hutchinson of Lullington, L.	E.
Hylton, L.

NOT-CONTENTS
Ampthill, L.	Long, V.
Avon, E.	McAlpine of West Green, L.
Bauer, L.	Margadale, L.
Belstead, L.	Marley, L.
Brabazon of Tara, L.	Marshall of Leeds, L.
Caithness, E.	Masham of Ilton, B.
Cameron of Lochbroom, L.	Mersey, V.
Campbell of Alloway, L.	Morris, L.
Carnoch, L.	Mottistone, L.
Cork and Orrery, E.	Orr-Ewing, L.
Denham, L. [Teller.]	Renton, L.
Digby, L.	Romney, E.
Eden of Winton, L.	Skelmersdale, L.
Elton, L.	Stanley of Alderley, L.
Faithfull, B.	Swinton, E. [Teller.]
Gibson-Watt, L.	Teviot, L.
Gray of Contin, L.	Trefgarne, L.
Hailsham of Saint	Trumpington, B.
Marylebone, L.	Vaux of Harrowden, [...]
Hives, L.	Vickers, B.
Ingrow, L.	Whitelaw, V.
Killearn, L.	Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.46 p.m.

Clause 63 [Other samples]:

Lord Elton moved Amendment No. 111: Page 61, line 16, after ("detention") insert ("or is being held in custody by the police on the authority of a court").

The noble Lord said: My Lords, this amendment to Clause 63 is consequential upon the amendments proposed to Clause 117. Clause No. 117(2) defines the expression "police detention". The definition is not quite right as it stands. In the first place, it ought to cover the case not only of a person brought to a police station under arrest but of a person arrested there after going there voluntarily; hence Amendments No. 151 and 152. Amendment No. 151: Clause 117, page 102, line 29, after ("if") insert— ("(a)") Amendment No. 152: Page 102. line 30, after ("offence") insert—("or (b) he is arrested at a police station after attending voluntarily at the station or accoompanying a constable to it;")

With those amendment, I would like to speak also to Amendment 153 and to 113 and 114, which are all drafting amendments. Amendment No. 153: Page 102, line 32, at end insert— except that a person who is at a court after being charged is not in police detention for those purposes") Amendment No. 113: Clause 65, page 63, leave out lines 26 to 33. Amendment No. 114: Clause 66, page 64, line 5, after ("exercise") insert ("by police officers")

I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 112:

[Printed earlier.]

The noble Lord said: This amendment is consequential upon Amendment No. 95. I beg to move.

On Question, amendment agreed to.

Clause 65 [Part V—supplementary]:

Lord Elton: My Lords, I beg to move Amendment No. 113:

[Printed earlier.]

On Question, amendment agreed to.

Clause 66 [Codes of practice]:

Lord Elton moved Amendment No. 114:

[Printed earlier.]

The noble Lord said: My Lords, Amendment No. 115 in fact goes with Amendment No. 114 and it is a drafting amendment, as are Nos. 116, 117A, 118, 119, 120, 121 and 122.

Amendment No. 115: Page 64, line 15, leave out ("under this Act") and insert ("to which this section applies")

Amendment No. 116: Page 64, line 17, at end insert—

("( ) This section applies to a code of practice under section 60 or 66 above.")

Amendment No. 117A: Page 64. line 31, leave out ("issued under this Act") and insert ("to which this section applies")

Amendment No.118; Page 64, line 34,at end insert—

"(6A) A police officer shall be liable to disciplinary proceedings for a failure to comply with any provision of such a code, unless such proceedings are precluded by section 103 below.

(6B) Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of such a code.")

Amendment No. 119: Page 64, line 35, leave out from ("part") to ("shall") in line 36 and insert—

("(a) of a police officer to comply with any provision of such a code; or

(b) of any person other than a police officer who is charged with the duty of investigating offences or charging offenders to have regard to any relevant provision of such a code in the discharge of that duty.")

Amendment No. 120: Page 64. line 37, leave out ("but") and insert (" (7A) ")

Amendment No. 121: Page 65. line 2, at end insert—

(" (7B) In this section "criminal proceedings" includes—

1. (a) proceedings in the United Kingdom or elsewhere before a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or a disciplinary court constituted under section 50 of the said Act of 1957;
2. (b) proceedings before the Courts-Martial Appeal Court; and
3. (c) proceedings before a Standing Civilian Court.")

Amendment No. 122: Page 65, line 3, leave out subsections (8) and (9).

I am not certain whether No. 117A is in substitution. I understand that it is. In that case, I beg to move Amendment No. 114 and give notice that I shall ask to move Amendments Nos. 116 to 122en bloc.

On Question, amendment agreed to.

Clause 67 [Codes of practice-supplementary.]

Lord Elton moved Amendment No. 115:

[Printed above.]

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 116 to 122, including No. 1 17A, en bloc.

[Printed above.]

On Question, amendments agreed to.

Clause 72 [Part VII-supplementary]:

The Lord Chancellor moved Amendment No. 123: Page 66, line 36. after second ("1955") insert— (" (aa) proceedings in the United Kingdom or elsewhere before the Courts-Martial Appeal Court—

1. (i) on an appeal from a court-martial so constituted or from a court-martial constituted under the Naval Discipline Act 1957; or
2. (ii) on a reference under section 34 of the Courts-Martial (Appeals) Act 1968;")

The noble and learned Lord said: My Lords, with this amendment go Amendments Nos. 133, 154, 155, 156, 157, 158, 159, 171. 174, 176 and 177.

Amendment No. 133: Clause 81, page 72, line 42, after second ("1955") insert—

(" (aa) proceedings in the United Kingdom or elsewhere before the Courts-Martial Appeal Court—

1. (i) on an appeal from a court-martial so constituted or from a court-martial constituted under the Naval Discipline Act 1957; or
2. (ii) on a reference under section 34 of the Courts-Martial (Appeals) Act 1968;")

Amendment No. 154: Clause 119, page 103, line 28, leave out ("provisions of this Act to which this subsection applies") and insert ("relevant provisions")

Amendment No. 155: Page 103, line 29, leave out ("to which the Army Act 1955 or the Air Force Act 1955 extends") and insert ("at which such proceedings may be held.")

Amendment No. 156: Page 103, line 30, at end insert—

("(6A) So far as they relate to proceedings before the Courts-Martial Appeal Court, the relevant provisions extend to any place at which such proceedings may be held.")

Amendment No. 157: Page 103, line 31, leave out from beginning to ("Parts") in line 32 and insert—

("(7) In this section "the relevant provisions "means—

1. (a) subsection (7A) of section 67 above:
2. (b) subsection (7B) of that section so far as it relates to subsection (7A):
3. (c)")

Amendment No. 158: Page 103, line 33, leave out from ("3") to end of line 34 and insert—

("(d) Subsections (2), (2F) to (2J) and (5) of section 112 above; and

(e) subsection (6) of that section, so far as it relates to an order under subsection (5).")

Amendment No. 159: Page 103, line 35, leave out ("Section 112(1) to (4) and (6) extend") and insert ("Except as provided by the foregoing provisions of this section, section 112 above extends")

Amendment No. 171: Schedule 6, page 117, line 14, at end insert—

("Army Act 1955 (c. 18)

Air Force Act 1955 (c. 19)

. The following subsection shall be substituted for section 195(3) of the Army Act 1955 and section 195(3) of the Air Force Act 1955-—

"(3) A constable may seize any property which he has reasonable grounds for suspecting of having been the subject of' an offence against this section.".")

Amendment No. '174: Page 120, leave out lines 20 to 24.

Amendment No. 176: Page 121, leave out lines 20 to 24.

Amendment No. 177: Page 122, line 9, at end insert—

("Courts-Martial (Appeals) Act 1968 (c. 20)

.—The following section shall be inserted after section 37 of the Courts-Martial (Appeals) Act 1968— False statements in computer record certificates.

37A.—(1) Any person who in a certificate tendered under paragraph 8 of Schedule 3 to the Police and Criminal Evidence Act 1984 (computer records) in evidence before the Appeal Court makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable—

1. (a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;
2. (b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

(2) Proceedings for an offence under this section committed outside the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(3) In this section "statutory maximum" has the meaning given by section 74 of the Criminal Justice Act I 982.".")

The noble and learned Lord said: My Lords, the effect of the first two of these technical amendments is to apply the provisions of Parts VII and VIII of the Bill not only, as currently drafted, to courts-martial themselves but also to proceedings before the Courts-Martial Appeal Court. Clauses 72(1)(a) and 81(1)(a) only refer to Army and Air Force courts-martial because, as a matter of policy, the evidence provisions of the Bill will be applied to naval courts-martial by General Orders issued under Section 58 of the Naval Discipline Act 1957. However, it is necessary to ensure that appeals from naval courts-martial to the Courts-Martial Appeal Court should be caught, as they are in the same net as Army and Air Force courts-martial. These amendments achieve this. The amendments to Clause 119 and Schedule 6 are similarly of a drafting and technical character, including revision of and additions to a number of necessary consequential amendments to the Army and Air Force Acts 1955 and the Courts-Martial Appeals Act 1968. My Lords, I beg to move.

On Question, amendment agreed to.

The Lord Chancellor

My Lords, the next amendment is No. 124. This will be quite a substantial debate and I am just wondering how far we think we are going.

Lord Denham

My Lords, I am, of course, in the hands of the House about this. We have to rise at 11 o'clock. If we could get through this batch of amendments by 11 o'clock, we should do them. If we cannot, we cannot.

Lord Ponsonby of Shulbrede

My Lords, I think we could easily get to No. 124, but beyond that we might be going past 11 o'clock.

Lord Donaldson of Kingsbridge

My Lords, with respect, it is a pity to start Clause 77 at all if we are not going to finish.

Lord Denham

My Lords, if we can carry on and make reasonable progress without going beyond 11 o'clock, I think that we should carry on.

The Lord Chancellor

My Lords, I would call No. 124, but I must give notice that it is an amendment which I shall be instructed to resist and that means that I shall need a certain amount of time in resisting it.

Lord Hutchinson of Lullington

My Lords, it is ridiculous to suggest that in six and a half minutes one could possibly do justice to an amendment of such importance as this one.

Lord Denham

My Lords, through the usual channels, we have an absolutely firm agreement as to the progress of this Bill. At what time we rise tonight is in the hands of the House, and if it is right that we should do so now I am perfectly happy. My Lords, I beg to move that further proceedings on the Bill after Third Reading he now adjourned.

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

House adjourned at five minutes before eleven o'clock.