§ 7.4 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
849 Moved, That the House do now resolve itself into Committee.—(Baroness Denton of Wakefield.) On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.] Clauses 1 to 46 agreed to.
Clause 47 [Right of access to legal advice]:
Lord Holme of Cheltenham moved Amendment No. 1:
Page 31, line 22, at end insert—
("() In the event that any delay is permitted in complying with a request under subsection (1), no inference of guilt on the part of the accused may be drawn if he chooses to remain silent during the period of the delay.").
§ The noble Lord said: This simple amendment is intended to deal with something which is a problem for the Government, as the noble Baroness acknowledged at Second Reading. More importantly, it represents an attempt to mitigate a dangerous potential anomaly in the examination of suspects. As legislation currently stands, reinforced by this Bill, a suspect might be refused access to a solicitor on the basis set out in Section 47, and then have his silence during interrogation, during the 48-hour period before he is allowed to see a solicitor, taken as an inference of guilt. That is the issue on which the European Court of Human Rights found against the Government in the Murray case.
At Second Reading the noble Baroness said:
On the narrower question of inferences being drawn at a trial from silence at a time when access to a legal adviser was denied, the court found against the United Kingdom".—[Official Report, 21/3/96; col. 1390.]
§ She went on to say on that occasion that the Government are considering how best to respond to the judgment in the Murray case, but said, in fairness, that this Bill was not the place to do it. However, as she knows, I warned her on that occasion that we on these Benches might want to revert to the matter at Committee.
§ What is proposed in this amendment is very simple. It is that no inference of guilt should be drawn from silence during a period in which the suspect is denied access to legal advice. I am sure that the Government acknowledge that the arguments on the conclusions to be drawn from silence are, in all events, finely balanced. But, even if we all wholeheartedly accepted the notion of the imputation of guilt from silence, surely it is belt and braces on the part of the police to expect both to deny legal advice and to be able to argue guilt from the ensuing silence.
§ I well know the pressures of pursuing terrorism wholeheartedly, but I do not believe that we should do so without the restraint of due process. There are some who argue that in pursuing terrorism in Northern Ireland, from the civil liberties point of view, solicitors are deliberately withheld in order to secure confessions and that the weak-minded are threatened by that. If they remain silent they will be convicted, so why not confess straightaway? However, there are others who argue that solicitors may be accomplices to the crime—and there 850 have been instances of solicitor malpractice in Northern Ireland—and therefore, once a solicitor is warned, the whole terrorist circle will close up and there will be no further arrests.
§ I understand both those points of view, but I hope that this is a useful amendment in that it meets both those sets of concerns. The amendment will allow inferences of guilt still to be drawn and legal advice to still be withheld. But it puts a price on the withholding of legal advice so that interviewing officers are invited to use the powers sparingly—for example, only when they genuinely believe that a solicitor may give unhelpful warnings—because there is no question of threatening the weak-minded with inferences of guilt drawn from their silence. Therefore, I believe that this amendment is a sensible lifeline for the Government on a tricky problem. I look forward very much to hearing from the noble Baroness how the Government respond to it. I beg to move.
§ Lord Prys-Davies
I support this carefully drafted amendment and I agree with what the noble Lord, Lord Holme of Cheltenham, has said. I do not want to add to the general argument except to say that fairness is at the heart of justice. The noble Lord, Lord Holme, has referred to the Second Reading debate and in particular to what the Minister said in Hansard at col. 1390. I regret that I was unable to take part in that debate. On reading the paragraph, it seems to me that the Minister accepted that an amendment along these lines is probably needed in order, as I understand it, to comply with the judgment of the European Court of Human Rights in the Murray case. As I said, it is also needed in order to ensure fairness to the person who is detained and who has requested access to a solicitor in the circumstances which are set out in the amendment.
On Second Reading, the Minister said that the Government required more time to conclude their consideration of the best way to proceed. The Minister said:We have not yet concluded what steps, legislative and administrative, should be pursued to ensure that we comply with our obligations under the convention".—[Official Report, 21/3/96; col. 1390.]I appreciate that the judgment was given only on 8th February 1996 and that the wheels of departments grind slowly. However, if the Minister is unable to accept the amendment today, I think that the Committee should be told who is now giving that consideration to the relevant matters. Are they being considered by an interdepartmental committee? If so, what departments are represented on it? I presume that the Northern Ireland Office, the Home Office and the Lord Chancellor's Department will be involved. Can the Minister indicate what difficulties, if any, have already been identified? Again, if we miss this opportunity of amending this particular Bill, when do the Government expect that the law can be amended to ensure that we comply with our obligations under the convention? Finally, while this matter is under consideration, can the department give us any assurance that the message of the amendment will be respected and complied with?
Viscount Colville of Culross
I hope that the noble Baroness will be very careful before she accepts the 851 amendment. I do not now speak as somebody who used to be concerned with the Emergency Provisions Act; I speak much more as somebody who is concerned with the day-to-day application of inferences to be drawn from silence in all the ordinary courts in this country. The 1988 order under which inferences were first introduced in Northern Ireland is not confined to scheduled offences; nor is it confined to detentions under terrorism. In England and Wales the similar provision which was introduced in the Criminal Justice and Public Order Act 1994 now applies to all offences in magistrates' and Crown courts in those parts of the United Kingdom. The important point is this: those provisions do not apply regardless of the facts under which a silence arose. They are applicable only after discussion by the judge with counsel, and after some sort of agreement about what might be the proper inferences that are to be drawn by the jury if, indeed, any are to be drawn.
I suggest to the noble Baroness that picking out that particular circumstance and making such a provision in this Bill will invite others to start drawing distinctions between different sets of circumstances which are not provided for either in the 1988 order or in the 1994 Act in England and Wales. It ought to be the subject of a proper discussion between counsel and a judge on a case-by-case basis. I can see no difficulty in the circumstances which the noble Lord, Lord Holme of Cheltenham, set out, whereby counsel could argue that an inference should not be drawn, but I do not believe that there should be a specific legislative provision to that effect. Therefore, I hope that the generality of discretion that is now available to the courts both in Northern Ireland and here will not be diminished by a provision of this sort.
§ 7.15 p.m.
§ Baroness Denton of Wakefield
As the noble Lord, Lord Holme of Cheltenham, said, the amendment has been triggered by the judgment of the European Court of Human Rights in the case of John Murray. The noble Lord indicated at Second Reading that he would probably table such an amendment. In the judgment, which concerned inferences drawn from silence, the court acknowledged the possibility within the convention of restrictions for good cause on access to a lawyer at the initial stages of police interrogation, but in all the circumstances of the Murray case, taking into account the possibility of inferences from silence, it concluded that to deny access for the first 48 hours of questioning was incompatible with the convention.
The judgment has implications beyond the emergency legislation, as access to a solicitor may be denied in ordinary criminal cases under PACE. It has implications in England and Wales. I am grateful to the noble Viscount, Lord Colville, for putting so clearly the dangers involved in including such an amendment in the Bill. As I explained on Second Reading, we do not believe that the most appropriate response to the judgment would be to amend this Bill in the way proposed. It is a complex matter, requiring liaison with the Home Office, the police and the judiciary in both Northern Ireland and in England and Wales.
852 I can assure the Committee of two things. First, the options for legislative change are being explored. The noble Viscount drew attention to the problems at issue. Secondly, we very much hope that the need to avoid further breaches of the convention will substantially he met by changes to police and prosecution practices. I can understand that noble Lords may be impatient to see a legislative response to the Murray case, but I emphasise that much can, and is, being done in the meantime to ensure that defendants do not have inferences drawn against them from their silence during an interview conducted before they have seen a solicitor. The most obvious step is for the police to be sparing in their use of the power to defer access to a solicitor. Deferrals are now much rarer than they were a few years ago. Even in terrorist cases in Northern Ireland, access to a solicitor nowadays is delayed comparatively rarely in contrast to the position a few years ago. In 1994, of the 1,379 requests for access only 187 were delayed; in 1995, up to the end of September only one request out of 322 was delayed.
The noble Lord, Lord Prys-Davies, asked who was involved in the consultations about the implications for other parts of the jurisdiction in the United Kingdom. The Home Office, the Law Officers and, of course, the Northern Ireland Office are involved.
I hope that I have been able to give the Committee sufficient assurances that this is not something that we treat lightly. However, we do not believe that such provisions should be included in this Bill. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Holme of Cheltenham
I thank the noble Baroness. It is difficult for lay Members of your Lordships' House, when faced with the legal expertise of the Government's advisers and particularly the expertise of the noble Viscount, Lord Colville, who is not only a distinguished lawyer but has a unique knowledge and experience of matters in Northern Ireland, to shout into the gale of that expertise as it comes wafting towards one.
However, I am reassured by what the Minister said about options being explored. I hope that that is the case and that they are being considered actively. We shall certainly want to pursue the noble Baroness and the Government on this matter to ensure that there is some progress. I am vastly reassured that in practice there are very few such denials, at least currently.
However, despite the weight of authority with which it was given, I do not think that I am persuaded by the argument of the noble Viscount which, if I grasped it correctly—I may not have done so—is that when it comes to making judgments, people say, "This is one of the circumstances that you take into account. This chap was silent because he was denied a solicitor. You should therefore draw a different inference about his potential guilt than you would draw had he not been denied one". One takes account of the circumstances which led to the discussion of the imputation of guilt. I should prefer that to be resolved, not on grounds of common sense in the court room or, in the end, of it being a power which is 853 never used in that way. I should prefer to resolve it properly. But on this occasion I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 agreed to.
Clauses 48 to 51 agreed to.
Clause 52 [Codes of practice: police powers]:
Baroness Denton of Wakefield moved Amendment No. 2:
Page 34, line 17, at end insert—
("() The Secretary of State may make codes of practice in connection with—
() The Secretary of State may make codes of practice in connection with the exercise by members of Her Majesty's forces of any of their powers under Part II of this Act.
() In this section "police officer" means a member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve.").
§ The noble Baroness said: With the leave of the Committee, I shall speak also to Amendment No. 3.
§ Clauses 52 and 54 re-enact, in part, Section 61 of the current Act. They place a duty on the Secretary of State to make codes of practice in connection with the detention, treatment, questioning and identification of persons who are detained under the terrorism provisions. The Bill was drafted against the backdrop of a prevailing ceasefire and it omits that part of the existing provision which confers upon the Secretary of State a discretionary power to make codes of practice in connection with the police and Army's powers of arrest, search and seizure, known as the "Part II powers". No such codes were made during the lifetime of the current Act and the ceasefires had seen a significant downturn in the use of the Part II powers. In these circumstances, it was decided that the provision could lapse.
§ Sadly, however, the Provisional IRA has declared its ceasefire to be over; we have seen a return to violence in the form of recent mainland attacks and we cannot rule out the possibility that the security forces' Part II powers will be needed for some time to come. It is sensible therefore to re-enact the power to create, as necessary, that kind of additional safeguard which codes of practice would provide.
§ I explained on Second Reading that the Government had reconsidered their position on the discretionary power to make codes of practice in connection with the Part II powers. The Government believe that in the light of the changed security situation it is only sensible to re-enact the existing provision. I beg to move.
§ Lord Prys-Davies
Perhaps I may ask the Minister a question. Does the Secretary of State intend to use the powers contained in the amendment to Clause 52? Is there an intention to exercise that power, or is it a power to be held in reserve?
§ Baroness Denton of Wakefield
We had hoped that the security situation was improving in Northern 854 Ireland. We continue to hope that sense and a respect for the ballot box and not for the bullet will be part of the future. The intention is to monitor the situation carefully. I am asking the Committee to approve a provision which will make those powers available for use if necessary.
On Question, amendment agreed to.
Clause 52, as amended, agreed to.
Clause 53 agreed to.
§ Clause 54 [Codes of practice: supplementary]:
Baroness Denton of Wakefield moved Amendment No. 3:
Page 35, line 2, at end insert—
("() A failure on the part of a member of Her Majesty's forces to comply with any provision of a code shall not of itself render him liable to any criminal or civil proceedings other than—
§ On Question, amendment agreed to.
§ Clause 54, as amended, agreed to.
§ Clauses 55 to 61 agreed to.
§ Clause 62 [Commencement, duration, expiry and revival of provisions of this Act]:
Baroness Denton of Wakefield moved Amendment No. 4:
Page 39, line 27, after ("it") insert (", or a corresponding earlier enactment,").
§ The noble Baroness said: The amendment would address a gap in the Bill which exists as drafted. Clause 15 restricts the remission granted under prison rules in respect of those convicted of scheduled offences and sentenced to a term of imprisonment of five years or more; in such cases remission is restricted to one third of the sentence. Clause 16 requires the court to order that a person imprisoned for a scheduled offence during a period of remission must serve the unexpired portion of the sentence for his previous offence in addition to the sentence for the subsequent offence.
§ Both of those provisions are temporary and Clause 62 now provides that in the event of the expiry or cesser of either provision, its operational effect shall continue in relation to an offence committed while the provision was in force. The intention is that the expiry or cesser should only affect offences committed after that event; the clause does not quite achieve this because we omitted a reference to offences committed before the current provision is enacted but during the lifetime of its predecessor provision.
§ The current wording of Clause 62 omits any reference to predecessor provisions; the amendment corrects this. I beg to move.
§ Lord Prys-Davies
I have merely a request for information. Will the Minister be good enough to refer 855 the Committee to the corresponding earlier enactments which are referred to in the amendment? If it is readily available, that information would be helpful.
§ Baroness Denton of Wakefield
I believe that I covered that point in my remarks when presenting the amendment. We are dealing with Clauses 15 and 16, but if that reply does not answer the noble Lord's question, I shall come back to him.
On Question, amendment agreed to.
Clause 62, as amended, agreed to.
§ Clause 63 [Savings, amendments and repeals]:
Baroness Denton of Wakefield moved Amendment No. 5:
Page 39, line 46, at end insert—
("() Schedule (scheduled offences: transitional provisions) (which makes transitional provisions in relation to scheduled offences) shall have effect.").
§ The noble Baroness said: It may be for the convenience of the Committee if I speak also to Amendment No. 6.
§ Because the Bill has the effect of removing certain offences from the current list of scheduled offences—that is, offences which merit special treatment under the emergency legislation—it is necessary to spell out precisely how cases involving such offences, whether committed or alleged to have been committed at the time of the Bill's enactment, should continue to be dealt with after that date.
§ The amendments would add a new schedule to the Bill which would set out the transitional arrangements for each case, taking into account its individual stage in the criminal justice process at the time of the Bill's enactment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 63, as amended, agreed to.
§ Clause 64 agreed to.
§ Schedules 1 to 4 agreed to.
Baroness Denton of Wakefield moved Amendment No. 6:
After Schedule 4, insert the following new schedule—
§ SECTION 63()
§ ("SCHEDULE SCHEDULED 0FFENCES: TRANSITIONAL PROVISIONS
1. In this Schedule "commencement" means the time when this Act comes into force.
2.—(1) This Schedule applies to offences which—
(2) In relation to offences committed (or alleged to have been committed) before commencement, this Act shall apply as if offences to which this Schedule applies were specified in Part I of Schedule 1.
(3) Sub-paragraph (2) is subject to the following provisions.
3. Paragraph 2(2) shall not apply in relation to section 2 (preliminary inquiry) unless a request that a preliminary inquiry be held has been granted under section 2 of the 1991 Act.
4. Paragraph 2(2) shall not apply in relation to section 3 (limitation of power to grant bail).
5. Paragraph 2(2) shall not apply in relation to section 4 (legal aid to applicants for bail) except for the purposes of assignments made before commencement.
6. Paragraph 2(2) shall not apply in relation to section 5 (maximum period of remand in custody) except for the purposes of orders for remand made before commencement.
7. Paragraph 2(2) shall not apply in relation to section 6 (custody of young persons).
8. Paragraph 2(2) shall not apply in relation to section 8 (time limits for preliminary proceedings).
9. Paragraph 2(2) shall not apply in relation to sections 10 to 13 (court, mode of trial, evidence and onus of proof) except in cases where the case for the prosecution was opened, or a plea of guilty was accepted, before commencement.
10. Paragraph 2(2) shall not apply in relation to sections 14 to 16 (treatment of offenders) except where the conviction of the offence in question occurred before commencement.
11. Paragraph 2(2) shall not apply in relation to section 18 (constable's general power of arrest and seizure) except where the arrest, entry, search or seizure occurred before commencement.
12. Paragraph 2(2) shall not apply in relation to section 46(8)(a) to (c) (right to have someone informed of detention: delay related to scheduled offence) except for the purposes of authorisations given before commencement.
13. Paragraph 2(2) shall not apply in relation to section 47(81(a) to (c) (right of access to legal advice: delay related to scheduled offence) except for the purposes of authorisations given before commencement.
14. Paragraph 2(2) shall not apply in relation to section 53(7) (compensation: restriction) except where the act in question was done before commencement.
15. Note 1 of Part I of Schedule I shall apply to any offence to which the corresponding note in the Northern Ireland (Emergency Provisions) Act 1991 applied.").
§ The noble Baroness said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ Remaining schedules agreed to.
§ House resumed: Bill reported with amendments.
My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended front 7.32 to 8 p.m.]