Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I beg to move amendment No. 32, in clause 3, page 3, line 31, leave out 'the appropriate'.

Mr Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to discuss amendment No. 33, in clause 3, page 3, line 34, after 'inform', insert 'in writing'.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

The clause significantly enhances the powers of the police with regard to dealers who swallow drugs or conceal them in their body cavities. I understand that is an increasingly common practice among dealers, who wrap substances such as crack cocaine in clingfilm and hide them in their mouths, or indeed in other parts of their body that would probably deter the Minister and me from searching for them, but thankfully do not deter the police and others. Subsection (2) ensures that a drugs-only intimate search may only be undertaken where the person concerned has consented. However, once again there seems to be over-qualification. New subsection (3A) provides that

''the appropriate consent has been given in writing''.

That has been grouped with my amendment No. 33.

Will the Minister clarify when consent would not be appropriate? For clarification and future interpretation, what would constitute appropriate consent? Would it be sufficient to sign a form? Is verbal consent sufficient?

My proposal, to insert ''in writing'', would allow a defendant or offender merely to sign a form indicating their consent. It would be a matter of course in the police station or wherever. Adding the words ''in writing'' is a vehicle to ensure that there are no loopholes that would allow the process to be challenged at a latter stage. In (3A), we say that

''A drug offence search shall not be carried out unless the appropriate consent has been given in writing''.

I have taken that clue of ''writing'' and tacked it on to (3B), because, if the consent were given in writing, it would be there for all to see and be less likely to be disputed in court. So why not deliver a copy in writing to the person who is the subject of the search and have him signify his consent in writing? Would that not be a simple and practical solution? I hope that the Minister finds it helpful.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I can certainly support amendment No. 33. It seems to me sensible to clarify that consent should be put in writing. It would, I presume, be the sort of thing that would be put into a form that would be completed and signed as appropriate. If it were not signed, it would be made clear that the opportunity to sign had been given and that the person had not taken it.

I am not so sure about amendment No. 32. There will be occasions when it is not necessarily the person   to be searched who is in a position to give consent and situations where the capacity of the person to be searched is in doubt. So it is appropriate that we retain the words ''the appropriate'' in the clause.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Amendment No. 32 would remove the words ''the appropriate'' from new section 55(3A) of the Police and Criminal Evidence Act 1984. That would mean that a drug offences search could be undertaken only with the subject's consent, rather than with appropriate consent. The change is important, because appropriate consent is a defined term in PACE. Section 65(1) of PACE defines appropriate consent as meaning:

''in relation to a person who has attained the age of 17 years, the consent of that person; in relation to a person aged 14 to 16, the consent of that person and his parent or guardian; in relation to a person aged 13 or under, the consent of his parent or guardian.''

The definition is just to account for those situations, but it is a widely used term in PACE. For example, it is used regarding the taking of fingerprints, intimate and non-intimate DNA samples and photographs where powers can be exercised with consent, as long as it is appropriate consent. I hope that the hon. Lady will agree to withdraw that amendment, because the effect of it would be to remove the safeguard of parental or guardian involvement in giving consent for those aged 16 or under on drug offence searches.

Amendment No. 33 would require the police to inform the suspect in writing if they intend to carry out a drug offence intimate search. The clause already obliges the police to give that information to the suspect but, as has been pointed out, it does not require it to be given in writing. That does not prevent the police from supplying that information in writing if they choose to do so. We felt that such a requirement would introduce unnecessary bureaucracy into the process. Adequate safeguards are already built in, because the fact that the authorisation was given, the grounds for it and the fact that consent was given prior to the search must be recorded in the suspect's custody record. The suspect can, of course, obtain a copy of his custody record. In light of those comments, I hope that the hon. Lady will not press that amendment either.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I am grateful to the Minister for clarifying that point. It is a perfectly reasonable and adequate explanation. Far be it from me to add a further burden of regulation or form-filling on the police. However, as the original consent has to be given in writing, I thought that it would be easy to photocopy or duplicate it and pass it to the defendant so that, at a future date, there was no doubt whatsoever about the authorisation and the appropriate consent being given, when it may be challenged in court. It is a minor point which I thought we should probe in Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn. 

Mrs. Gillan: I beg to move amendment No. 34, in clause 3, page 4, line 12, leave out from 'draw' to end of line and insert

'any appropriate inferences from the refusal'.

I will not detain the Committee. Perhaps I am again dancing on the head of a pin, but I do not know what inferences could be deemed to be improper if they are being drawn by a court; a judge or a jury. I feel that it fetters the discretion of those bodies, therefore to replace the wording by

''any appropriate inferences from the refusal''

would broaden the scope of the proposal and leave it entirely to the discretion of the court, the judge or the jury. It is a simple amendment, to which I hope the Minister will respond.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I am a little unclear about what the effect of the proposal would be. My difficulty is that I do not know whether I would join the hon. Lady on the head of a pin as I cannot see how the amendment would change things in any material way. At present, it is open to any court to draw such inferences from the refusal as appear proper, to use the same form of words as the hon. Lady. Therefore, why should the amendment be in the Bill?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Amendment No. 34 would change the wording of the clause. It would not affect the working of the measure, or make any difference to the ability of the court to draw inferences from a refusal to consent to an intimate search in connection with a drug offence without good cause. The wording in the clause reflects on the other types of language used in legislation; sometimes we are prisoners of what has gone before.

One reason for our wanting to maintain the existing wording is that it is similar to a provision in section 62 of PACE, which allows adverse inferences to be drawn from a suspect's refusal to provide an intimate sample. It would be unhelpful, therefore, for the two provisions—one on providing an intimate sample and one in relation to an intimate search—to appear in the same part of PACE but for different wording to be used. We would not want people to think that there was a different meaning. The wording is consistent with that and with other adverse inference provisions such as section 34 of the Criminal Justice and Public Order Act 1994, which permits adverse inferences to be drawn from a defendant's silence in a police interview. I therefore ask the hon. Member for Chesham and Amersham to withdraw the amendment.

Mr Crispin Blunt (Assistant Chief Whip, Whips; Reigate, Conservative)

Does the word ''adverse'' appear in the legislation that the Minister referred to?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

No.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

To take up the cudgels on that point, my hon. Friend is right. The clause as drafted states ''may draw such inferences'' from the refusal as appear   proper, not ''such adverse inferences''. We may accept an amendment from the Minister to insert the word ''adverse'', which would be much clearer; it was part of the thinking behind this small amendment. I will be happy to withdraw it if the Minister will undertake to have a quick look at the clause and ensure that the drafting is absolutely tight.

I am delighted that the Minister has accepted some of our amendments, but it proves my point that the Bill is hastily drawn legislation that has not had its t's crossed and its i's dotted. I do not want to appear   ungrateful, but there are more than a few doubts and we are only on clause 3. I am not trying to score political points, I just hope that the Minister will double check that there are no small omissions from the clause and that it will achieve her objectives.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Mr. Hepple.]

Adjourned accordingly at fourteen minutes to Five o'clock till Tuesday 1 February at ten minutes past Nine o'clock.