Clause 2 - Warrants to enter and search
Criminal Justice Bill
12:00 pm
Mr Humfrey Malins (Woking, Conservative)
There we are: support officers. Are they to be given the same powers? Are they, in short, to be authorised persons? Will the court have any say now in who the authorised person is to be? When the judge gives the police officer the ability to execute a warrant, he gives it to that officer based on the officer's deposition to the court and on his unique status as one of Her Majesty's constables. Would not a court ask, or want to know, if a warrant is to be executed in future, who the officer will take with him or her as an authorised person? Do the Government have any plans to ensure that an application for a warrant to a district judge or magistrate includes the information that the applicant seeks to take so-and-so as an authorised person? Will there be judicial permission or not, or will the matter bypass the courts?
What limit will there be on the category of people being dealt with? At the officer's discretion, can it be a solicitor, an accountant, a friend or a passer-by because the officer is frightened, or anybody or no one? That is the point of these probing amendments, especially the important amendment No. 2, which would add the words ''and duties''. When that is linked with amendment No. 3, there is a compelling case for the Government to accept the amendment.
The Police and Criminal Evidence Act 1984, on which I made my maiden speech in 1983, states:
''Where the occupier of premises which are to be entered and searched is present when a constable seeks to execute a warrant''—
and then—this is critical—it lists the duties on the officer. There must be duties—it would be nonsense if
there were not. There are such duties under the Police and Criminal Evidence Act 1984. The officer must identify himself to the occupier, and, if not in uniform, must produce to him documentary evidence that he is a constable. Furthermore, he shall produce the warrant to him and give him a copy. That is an obvious thing for an officer to do—hence our amendment, which would oblige the person authorised to accompany the officer to carry evidence of identity and produce it to the occupier. It is similar to the current requirement applying to the officer himself.
Amendment No. 4 would provide that in addition to exercising the relevant powers only in the company and under the supervision of a constable, the person concerned would also need to do so
''with the written authority of a chief inspector or more senior officer''.
That is a way of suggesting to the Minister that a slightly higher level of police involvement and authority should be used.
The Minister should take on board the need for the same duties for the authorised person, and the same requirement to identify himself or herself, as apply to the officer. Perhaps he could go further and say whether, if the officer has powers to seize documents and, as an officer must from time to time, act with force, the authorised person has those powers? That is an interesting and troubling situation. The authorised person is not a constable of Her Majesty. The point needs to be examined.
I assume, but am ready to be corrected if I am wrong, that if a police officer, in executing a warrant, goes over the top and does something wrong, there is insurance cover applying to Her Majesty's force. What would be the position of an authorised person—a solicitor or accountant who just happened to be authorised by someone to go in and do exactly what the policeman was doing? If I were an accountant, asked by the police to go and carry out those duties, I should want to check my insurance policy before I stepped outside my house.
I have another point to raise, although I do not expect the Minister to answer it today. If he can respond to this one, he is very fast on his feet. He is, of course. However, I want to mention in passing the case of Funke v. France. He thinks that I am pulling his leg. It is that time of year. I cannot tell the Committee how the case came to my attention, because I have forgotten. It was more than two days ago, and by mistake it came to my attention. I am quite sure that those advising him will look it up straight away. I am sure, indeed, that they will know all about it.
The case was brought to the European Court of Human Rights. I do not think that it is exactly on all fours with what we are considering, and it will probably be distinguished from it, but a serious point arises from it. The case relates to the remedy that individuals have in relation to their own premises when those are invaded—or entered—by various officers of the law or Customs, and what they do, what they take, and how they behave.
You will be pleased to hear, Mr. Illsley, that I do not intend to read out all 34 extraordinarily boring pages. This is a 1993 case, and to cut a long story short, Mr. and Mrs. Funke lived in France—which explains, I think, why the case is called Funke v. France. Various Customs officers stormed in and took a lot of documents. Mr. Funke died in due course, but his widow was permitted to carry on with an action that was so grievously complex that I have not the slightest idea what she was getting at.
In short, the action related to article 8 of the convention, which states that although everyone has the right to respect for his private life and correspondence, there may be interference by a public authority with the exercise of that right, so long as it is in accordance with the law and amounts to a measure that is necessary in a democratic society, inter alia in the interests of the economic well-being of the country or for the prevention of disorder or crime. That is fine. We can all understand that, so I shall get straight to the point.
At the end of the case, I believe that there was a finding that article 8 had been breached in relation to the private life and correspondence. That is relevant to the extent that we in this country have a system whereby the police and Customs seek a warrant and behave in a certain way. That is fine, because we entrust them with that, but could have the Minister and his officials taken on board the position whereby we give hugely extended powers to those who are not constables or Customs officers. Is that entirely safe from a possible attack under the convention? I simply do not know, so I have posed the question. I am terribly pleased that the Minister is nodding as though he thinks that I have made a sage point.