Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

I beg to move amendment No. 147, in clause 13, page 9, line 28, leave out subsection (6).

I tabled the amendment in response to a point made by the Magistrates Association about the operation of conditional cautions relating to the ability of the police to arrest someone without warrant and then to detain them while they are investigating a breach of the conditional caution, which is a power given in subsection (6). The Magistrates Association says that it gives the police greater power in dealing with a breach of the caution than the courts have in dealing with the breach of an order that they impose. It is questionable whether the police should be given such powers of detention and I wonder what safeguards there are in relation to the exercise of the power. For how long will the police be permitted to detain someone for a possible breach while they investigate the possibility—only the possibility—that a breach has occurred? That is an important question.

We must remember that the police will be able to exercise those powers of detention without any supervision by the courts. The courts will not have been involved at all. A conditional caution with a punitive element to it will have been imposed with the agreement of the offender. Once it is in operation, if the police believe that it has been breached, they can detain the offender for a period—I am waiting for the Minister to tell us how long that period might be—while they investigate it.

I should be grateful if the Minister told us what safeguards will operate in the exercise of the power in question. Is the Magistrates Association’s concern a proper one? Is it right that the police should have greater powers in relation to breaches in such cases than magistrates do in relation to breaches of court orders?

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

I listened to the Minister speak on clause 12 and I understand and sympathise with her argument, because a considerable amount of poor behaviour, which needs to be controlled, goes on. I can imagine that clause 13(6) might apply in a case of someone with a can of paint for writing graffiti: the policeman holding that person might want to find out whether he was in breach of a conditional caution. However, I repeat the point made by my hon. Friend the Member for Arundel and South Downs: surely there must be a time limit.

I am sure that in practice it will be very quick. I imagine that the police officer will find out the name of the chap, or sometimes the lady, concerned, he will use his mobile phone and get a response within two or three minutes, and go on from there. However, things can go wrong. Let us suppose that for some reason the records are not accessible—say, the computer is down.   I am surprised that a time limit is not specified in the Bill. An hour or an hour and a half is quite a long time to detain someone in that way.

I seek reassurance from the Minister about how long detention would be in practice and what she would regard as an unreasonable time for which to detain a person in that way. If she makes that clear in Committee, we shall be reassured; we can be pretty clear in our minds that if the provisions are abused, lawyers will be able to quote from the Minister’s remarks in Committee Hansard and show that the spirit of the Act—if the Bill is enacted—has been broken.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I hope that I can give hon. Members some reassurance. It is a matter of practicality, as the hon. Member for Lichfield (Michael Fabricant) has outlined. The provision will often be used for a quick inquiry to ascertain whether conditions have been breached, so that the process can go ahead. It would be illogical if someone who had been arrested had to be released and rearrested so that the breach of the original condition could be dealt with. We are trying to get the balance right between a proper system with safeguards, checks and balances, and getting matters dealt with as quickly as possible. That is the imperative throughout the system.

Subsection (6) specifies

“the power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether he has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution.”

When the detention becomes unnecessary for the purpose of those investigations it becomes unlawful. It is lawful only for as long as it is necessary for the carrying out of the inquiries. It would be unreasonable of me arbitrarily to suggest what I would regard as reasonable or necessary in any one of 100 different circumstances that could arise when the police had to carry out inquiries to establish whether a condition had been breached. The essence of the matter is that it relates to the specific case that a police officer is dealing with.

As long as the detention is necessary to allow the inquiries to be carried out, the officer will be within the legal framework set out in the clause. Once the matter strays into an area where detention is no longer necessary, the detention will be unlawful, and open to challenge in a range of ways.

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

What the Minister says is reassuring, up to a point, but what about the scenario that I mentioned earlier, where a computer goes wrong, or the battery goes flat on the police officer’s wireless or radio control system? I can think of a series of scenarios in which things go wrong. It is right and proper that someone with a paint aerosol—the example that I gave earlier—should be held, but only up to a limit. How long will it be for—half a day, a day, two days? Surely some safeguard has to be built in.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

It would be difficult to put an arbitrary limit in the Bill because, as the hon. Gentleman knows, circumstances could vary enormously. We envisage a person being held for a relatively short period, to allow the police to carry out quick inquiries into whether the conditions had been breached. It would be a ridiculous state of affairs if the police had to release someone automatically and then rearrest them, when a quick phone call or a quick inquiry could ascertain whether the conditions had been breached in order for the original prosecution to be brought.

It is a matter of practicality. I would not want the police to detain people for inordinately long periods in order to carry out inquiries. The safeguard is that the police must always be aware of this question: “Am I detaining this person for as long as necessary in order to carry out my inquiries?” That should act as a proper check and balance in the circumstances. I genuinely do not feel that putting one hour or two hours in the Bill would make it a good provision.

Mark Pritchard (Wrekin, The, Conservative)

What, in the Minister’s view, is an unnecessary or inordinate period for which a person could be detained?

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

If the inquiries have been carried out and the person is still detained, but not for the purpose of carrying out inquiries, that would not fall within the clause. The police have the authority to detain someone only for the period necessary for them to carry out their inquiries. It is inappropriate for me to speculate about the circumstances in which that might occur. The people making that judgment will be those involved at the time, in the context of the relevant circumstances.

Mark Pritchard (Wrekin, The, Conservative)

Clearly, people who have done wrong need to be detained if one cannot determine who they are, where they live and so on. However, as my hon. Friend the Member for Lichfield rightly asked, should there not be a limit? It is a reasonable question. For example, if a police shift was changing at a particular time of night, or if it was called away to an emergency—perhaps a terrorist incident—would the person have to remain in custody for 24 hours or 48 hours? What is the limit? Those are good examples.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

The hon. Gentleman invites me to speculate but, as I said, it is not appropriate for me to do so. If investigations are likely to be protracted and lengthy, the individual can be bailed. The provision is designed to enable a quick, on-the-spot inquiry to take place. In the vast majority of cases, an hour or a couple of hours will be sufficient, but I cannot say categorically that it will be so; it will depend on the circumstances of the case. However, if protracted inquires are needed, other provisions are available.

The purpose is to ensure that low-level antisocial behaviour is dealt with and that those who breach the conditions of their cautions can be kept in the police station while officers make inquiries. It is a common-sense approach, which will be hugely welcomed by the public.

Martin Horwood (Shadow Minister (Environment), Environment, Food & Rural Affairs; Cheltenham, Liberal Democrat)

The Minister continually uses words such as protracted and lengthy, but if the provision is to be justified by the length of time that it takes to carry out inquiries, we must be told what those words mean. For instance, under other circumstances, the Government argued in the House that inquiries can take as long as 90 days. I presume that the Minister does not envisage such a period, but will she ever define protracted, lengthy or appropriate—in secondary legislation, if not in the Bill?

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I ask the hon. Gentleman to maintain a sense of proportion. We are talking about low-level offences—guidance to prosecutors from the Director of Public Prosecutions makes that clear. Attempts by hon. Members to exaggerate the problems are not to the point. The system will give us efficient, speedy, effective justice when it comes to the things that the public are sick and tired of not being dealt with at all. The safeguards are there, and I ask the hon. Gentleman to withdraw the amendment.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

I have listened carefully to the Minister’s reply, including her ticking us off for not having a sense of proportion. I would remind her that the Magistrates Association described the proposed power as draconian, so I do not think that it is fair to say that we are exaggerating concern about it. I accept that it is practical to adopt a measure to ensure that the police can investigate potential breaches; that is our purpose here, and we all agree that it is desirable. However, the Minister is relying on the concept that all that has to happen to justify a lengthy detention is that it has to be “necessary” for the police to conduct that investigation. The test of necessity is not sufficient to allow detention by the police without any kind of court supervision. Somebody who voluntarily agrees to a conditional caution could suddenly be detained by the police, not for breach of a conditional caution—we accept that the police should have the ability to do that for a breach; it is important that measures such as this, including antisocial behaviour orders, be backed up with robust powers so that they can be properly enforced—but simply to investigate whether a breach has occurred.

It is surprising that no time limit is specified. Such a limit might be arbitrary, but we have arbitrary time limits for detention throughout the criminal justice system. The police cannot indefinitely detain people in the course of the routine investigation of offences. After a period, people must be released, unless the courts grant an extension. Our system accepts that to detain somebody is a sufficiently serious matter that it has to be prescribed; the power to detain cannot be open-ended. I acknowledge that it is the Minister’s intention that the detention should be for a relatively short time; I do not attribute to her any wish to detain offenders for longer. However, Parliament must be careful before granting the police the ability, on their own judgment, to detain people for indefinite periods, and to tell such people who object to seek judicial review—to go to the courts and say that they were detained for an improper length of time—because that   is the only remedy available to them if the police exceed their powers. Of course, there is a danger that the measure will be abused if we grant the police an unsupervised power to detain people while they investigate breaches.

The Minister should accept that our concerns are serious. I invite her to consider whether it is necessary to specify a time limit in the provision. There is time to reflect upon that before Report. I do not want to oppose the measure wholesale, which is what the effect of my amendment would be, because I accept that a provision that allows detention for investigation might be desirable. However, the clause is problematic as currently drafted. The case has been made by a number of hon. Members for some sort of check to be imposed, and I would ask the Minister to reconsider the matter. Meanwhile, I beg to ask leave to withdraw the amendment.