New Clause No. 1. — (Exercise of Powers of Arrest and Entry.)

Criminal Law Bill [Lords] – in the House of Commons at 12:00 am on 13th July 1967.

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The powers conferred on a constable by subsections (5) and (6) of section 2 of this Act shall be exercisable by him in any circumstances and at any time when he has reasonable cause to believe that in those circumstances and at that time there is imminent danger of loss of or injury to life, limb, health or property which can only be prevented by the exercise of the said powers but not in any other circumstances or at any other time.—[Mr. Percival.]

Brought up, and read the First time.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I beg to move, That the Clause be read a Second time.

After the rigours of last night, for which the Under-Secretary and I, along with other hon. Members, were present, neither the fluency of thought nor of word which is so desirable for the proper consideration of a technical matter like this will be so readily available. Nevertheless, I hope that we may be able to make progress with reasonable despatch and efficiency. My object will be to balance the two. Neither one on its own is sufficient. We must try to balance both.

My hon. Friends and I have given careful thought to what was said in Committee and, in addition, the Under-Secretary and I have had some correspondence and discussion which has been conducted in a mutually helpful frame of mind. I do not wish to infer from that that the hon. and learned Gentleman has indicated that he intends to make any concessions. But I hope that the correspondence, and the terms in which I have made these general obser- vations, may set the tone for conducting the business which is before us. The fact that there was acrimony in Committee is no reason why there should be any here today.

My hon. Friends and I have tabled this and other new Clauses, and a number of Amendments, in a desire to be helpful, and we hope that there may be some compromise. We have always said that we welcome the Bill, which sets out to achieve the very desirable objective of getting rid of an archaic distinction.

Equally, we have said that it does not follow that the first suggested way of getting rid of that distinction and dealing with the consequential difficulties is necessarily the right one. The new Clauses and Amendments that you have kindly selected, Mr. Speaker, incorporate three of the points that worried us most in the Bill.

The Clause relates to the exercise of the powers conferred on constables under subsections (5) and (6) of Clause 2. Subsection (5), in the briefest and most general terms, deals with the power to arrest someone about to commit an offence but who, ex hypothesi, has not yet committed it. Subsection (6) deals with the power of entry into a person's home to effect an arrest. We are not happy about the precise provision in relation to either of those powers. I am not now arguing whether there should be those powers—that matter we debated in Committee, and we lost. What we are concerned with today is to refine the provisions, if we can, to ensure that they do nothing more than was intended.

I think that I can safely say that everyone, whatever their views on the Clause, has expressed agreement on two things. The first is that it is a very serious matter to arrest a person who is not guilty of any offence. To some extent, it is contrary to some of our general beliefs—but let us not go into that. Let us, instead, agree that it is a serious matter. We must also agree that it is a very serious matter to give someone the right to enter someone else's house, by force if necessary.

It is said that both of these serious powers are necessary because there may otherwise be emergencies in which the situation cannot be dealt with unless these powers are available. This, I follow. The purpose of the Clause is to ensure that we are giving powers only for the purpose for which they are intended, and are not unintentionally going wider than anybody intended.

Mr. Speaker, I have here the OFFICIAL REPORT of the Standing Committee. I have left it in the envelope and I hope that I shall not have to take it out, but it is fair to say that as far as is material to the point I wish to put to the House the Under-Secretary's argument might be summarised under two general headings. The first was that there might be these cases of urgency where these powers would be necessary and very useful, and the other was that these provisions were not widening the law, but rather narrowing it by limiting the class of person who could use the powers.

As to the first of those points, what the new Clause seeks to do—and, I respectfully suggest, does—is to ensure that the powers are only used, are only usable, in cases of emergency. I suggest that it does no more at all than that. I would, therefore, consider it in line with the Under-Secretary's thinking on the matter as expressed by him in Committee.

As to the second point—and these two points are inter-mingled to a certain extent, but I take them separately for convenience and speed—the Under-Secretary's argument in general terms was that we should not be worried about subsection (5) because it merely put into statutory form an existing power, and furthermore, he said, limited it to police constables, whereas under the common law it was available to private citizens, too. I ask him to consider the view that there is serious ground for thinking that there is an error in both propositions.

I will take the second proposition first. I. was said by the hon. and learned Gentleman that there is authority for saying that there is at present a common law power exercisable both by constables and private citizens to arrest someone about to commit an offence. If that be so, I think it clear under subsection (7) that the common law will continue to be exercisable by private citizens. Therefore, if it is believed that subsection (5) limits the power to constables, I respectfully draw attention to subsection (7), which appears to me to save a power, if power there be, in respect of private citizens.

But the more important point relates to the exercise of the power by constables. The Under-Secretary was good enough to refer me to the cases that were said to be the authority for the proposition that constables already had this power. I appreciated his doing so and I followed up the cases, and, in more detail in Committee than I shall do now, I expressed the view that they were authority for the proposition that a constable could exercise a power to arrest where someone was about to commit an offence, but that it was clear from those authorities that he could do so only in cases of urgency.

The difficult case in the authorities was where a constable heard screaming in a house, had reason to believe that a man was about to do serious injury to the woman, burst in, and arrested him. But the ratio decidendi with all those cases was that the common law recognised that in a case of urgency, where there was no time to go along and get a warrant either of arrest or of entry, it was plain common sense that, for the benefit of the public, there should be power of arrest and power of entry.

I believe that subsection (5) widens the power very considerably unless we add this Clause to the Bill, because it gives the constable unqualified power to arrest without warrant anybody about to commit an arrestable offence. Many of the offences of fraud are arrestable offences. There are "umpteen" arrestable offences that a person might be about to commit, but about which there would be no real urgency. I therefore respectfully suggest to the Under-Secretary and to the House that it is tolerably plain that unless we add this new Clause we shall be widening the powers of arrest of someone about to commit an arrestable offence but who, ex hypothesi, has not yet committed one.

Strong as the powers and serious as their consequences may be, there is strong argument for giving them where there is a degree of urgency in a situation which demands immediate action. I have therefore set out in the Clause to try to summarise the general conditions postulated in past authorities as being the ratio decidendi for saying that there is such a power. That is what the Clause does. It does not restrict what is required in so far as what is required is wanted to deal with cases of urgency, but it makes it quite clear that these powers are not to be exercised unless there is some imminent danger of loss.

I have tried to advance these arguments in as reasonable, brief and co-operative a manner as possible. If, by being brief, I have left out any essential step and have not made my argument coherent, I should be glad to deal with any point which the Under-Secretary may think I have omitted. That is the burden of our case.

Photo of Mr David Weitzman Mr David Weitzman , Stoke Newington and Hackney North

The hon. and learned Member for Southport (Mr. Percival) has argued the case for the Clause cogently and persuasively. It is a great pity that a matter of such importance should have to be dealt with after an all-night sitting. This is a very serious matter. It is not a party matter. It would be wrong that no hon. Member on this side should rise to support what the hon. and learned Gentleman has said. I fully agree with his argument. It ought not to be rejected lightly. It should be carefully examined.

I did not have the advantage of serving on the Standing Committee and hearing the arguments put forward there, but I have read the report of the proceedings in HANSARD. Under Clause 2(5) and (6), the power given to a constable, both in regard to arrest and in regard to entry into premises, is very wide. It is qualified only by the words "with reasonable cause". Those words would be very difficult to translate if a constable were to put forward facts which in his view constituted cause. I have read the remarks made in Committee by the Under-Secretary with regard to the right to make a claim for damages for false imprisonment, but the power granted in Clause 2(5) and (6) is very wide.

It is said in defence of this power that this does not enlarge the powers that existed hitherto. There is considerable force in the hon. and learned Gentleman's point that this may be a very doubtful argument and that on the authorities it may not be quite true to say that that is the position and that the powers are not being widened.

I am not so much concerned with the question whether these powers are widened. I am concerned with what, from a practical point of view and from the point of view of the safety of the community and of individuals, the powers should be. Should not they be limited in some way? The argument advanced by the Under-Secretary was that under existing law the powers of a constable are restricted to cases where it might be said that there is a sense of urgency, where it is necessary to make an arrest.

The new Clause contains an excellent provision to guard the public in any such circumstances of urgency. After all, why should there be the right on the part of a constable to arrest or to enter into premises, unless there is, as the Clause says imminent danger of loss of or injury to life, limb, health or property which can only be prevented by the exercise of the said powers but not in any other circumstances or at any other time. These words are wide enough to cover all emergencies.

I am much concerned about the danger of giving to a constable powers which are too wide. However much we trust the police force and however much we want to assist the police in their war against crime, we must pay great regard to the rights of individuals and to the protection of citizens. The Clause would achieve both purposes. It would give the constable the right of arrest. It would limit that right in a very reasonable way. I hope that the Under-Secretary will carefully examine the Clause and will not reject it out of hand but will say, either that he will accept it fully, or that he will look at it again carefully so that what is put forward in the Clause can be exercised fully.

12.15 p.m.

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

I must first apologise to the House. I have lost my voice. I do not know whether this is the result of the all-night sitting. I thank the hon. and learned Member for Southport (Mr. Percival) for moving the Clause as clearly and as briefly as he did. I also appreciate the support given to his remarks by my hon. and learned Friend the Member. for Stoke Newington and Hackney, North (Mr. Weitzman).

I turn now to the general points which have been made in criticism of Clause 2 as it stands. I repeat what I said in Committee, that the power to arrest given under Clause 2 where someone is about to commit an arrestable offence must mean that the power can be exercised only if the commission of that offence is imminent. There can be no question of simply foreseeing that at some future time someone may commit an offence and, therefore, exercising a preventive arrest. It must be where someone has the match read to strike to commit the offence of arson, for example. Therefore, the fears expressed in this respect are groundless.

Secondly, I want to deal with the hon. and learned Gentleman's contention that the new powers are wider. The old common law power was not restricted to the circumstances which are now listed in Clause 2. The passage from Hawkins Pleas of the Crown which the hon. and learned Gentleman quoted in Committee, to the effect that the old common law power would seem to exist where someone was seen to be upon the point of permitting"— I think that it should be "committing"— a treason or felony, or doing any act which would manifestly endanger the life of another".—[OFFICIAL REPORT, Standing Committee F; 9th May, 1967, c. 57.] makes it clear that it was any act of felony which was about to be committed which gave rise to the power to arrest. It was not simply the circumstances which are now set out in the Clause.

Nor do I accept the hon. and learned Gentleman's view that the old power is not restricted in the Bill. Clause 2(7) makes it clear that the other powers of arrest which are preserved are powers "apart from this section". This Clause deals specifically with the circumstances in which a power of arrest can be exercised where someone is about to commit an arrestable offence.

When all has been said in general defence of the present Clause 2, we must consider most carefully any suggestion which tries to provide more elaborate safeguards and see whether those safeguards are acceptable. We have considered the new Clause very carefully. It tries to describe in a Statute the circumstances in which the police should exercise the power of arrest. To provide a comprehensive delineation of those circumstances is always a risky business. It is likely to give rise to difficulties. Immediately the question arises: may not there be some circumstances which would justify a power to arrest without warrant and which are not covered by the Clause?

An examination of the Clause shows that these difficulties are so substantial that I must advise the House to reject the Clause. For example, there may be a number of offences which the police might need to forestall by exercising the powers in Clause 2(5) and which do not necessarily involve imminent danger of loss of or injury to life, limb, health or property. Serious sexual offence may be about to be committed. There may be cases of child abduction. It may be an offence of assisting a prisoner to escape. None of these would necessarily come within the provisions of the new Clause, because there might not be any danger … to life, limb, health or property". Another arrestable offence in which, if the Amendment were carried, the power of arrest would cease to be available is that of spying. It is true that under Section 6 of the Official Secrets Act there is power to arrest someone who is about to commit an offence under that Act, but the existence of that power, which the Amendment would not affect, illustrates the unsoundness of the new Clause. If it were carried, a police officer could not arrest someone who was about to assist a prisoner to escape unless there was imminent danger of loss of or injury to, life … but he could arrest someone who was about to commit an espionage offence even though there was no such imminent danger.

The Clause refers not only to subsection (5), but to subsection (6) of Clause 2 of the Bill. That reference is particulrly unfortunate, because subsection (6) gives the general power for a constable to enter and search any place where a person is suspected to be or is for the purpose of arresting that person under any power conferred by Clause 2.

The powers under Clause 2 include power to arrest people who have committed offences. The net result of the new Clause would be that one could not search premises and arrest somebody—who might well be a serious criminal, a murderer or a dangerous offender—who had committed an offence. One could not search premises for this purpose unless one could prove imminent danger of loss of or injury to life, limb, health or property". That danger might not be present.

While I certainly understand the spirit in which the new Clause has been moved and its admirable purpose, this kind of attempt gives rise to difficulties which should lead to the rejection of the Clause. If one looks at the original Clause, one finds that the fears which have been expressed are groundless.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I am obliged to the Under-Secretary for what he said at the outset. I am sorry that he has almost lost his voice. I thought for a moment that he would say that he was losing it but had just enough left to say "Yes", which would have been an agreeable outcome of the debate.

Clearly, we shall not agree about this today. Therefore, I do not wish to present further argument. The hon. and learned Gentleman has, however, raised a point which, if it is valid, is a powerful one. I do not think that it is a valid point. I say this now because I hope that this will not be the end of consideration of the matter. It is sometimes tempting to think that once a Bill has gone through the House, nobody need ever think about it again. But there are other opportunities to put things right, and now is our chance to put on record for future reference the points which we would like to have considered.

The Under-Secretary said that my new Clause would cut out cases in which the subsection (5) power would be useful and he instanced a person who was about to help a prisoner to escape. I ask the hon. and learned Gentleman to look again at this from the practical point of view. One thing which a policeman would not want to do is to arrest someone who was about to help a prisoner to escape, because he would then have on his hands someone who had not committed an offence and someone of whom it might be difficult to dispose. If a police officer were in a position to arrest the person who was about to help a prisoner to escape, he need only wait a minute or two and he would catch him attempting to help the prisoner to escape or helping the prisoner to escape. That would be far more satisfactory from the police point of view, because they would then have arrested a criminal who could be punished instead of arresting somebody who had not committed an offence and whom they would not know what to do with.

The Under-Secretary says that the power could be exercised only where danger was imminent and that it is important that it should be exercised in every case where it is imminent, whereas my new Clause limits it to cases in which there is imminent danger of the kind therein specified. The point which I would like the Under-Secretary to consider is a similar one. Take the case of someone who, it was supposed, was about to steal some stockings in a shop. The one thing that one would not want to do is to arrest that person for being about to steal stockings. One of two courses would be taken. Either the store detective would say, "Move along", thus preventing a crime, or, if there was reason for not doing that, supposing that the person was thought to be a hardened offender, one would wait another minute to see whether one's suspicions were true.

When one arrests a person for being about to do something, there is an element of speculation about it. We do not want an element of speculation. Without this power, the choice would be either to say, "Move along" and prevent an offence, or wait for the offence to be committed and arrest for the offence.

I have taken these few minutes of the time of the House because I ask whoever has responsibility for this matter to look at it again, although not in the context of the Bill. The criminal law and the whole powers of arrest are under review. I ask whoever is responsible to look at the matter again in the light of the observations made in this short debate, all of which have been made in a spirit of endeavouring to improve the Bill.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Does the hon. and learned Member propose to ask leave to withdraw the Amendment?

Photo of Sir Ian Percival Sir Ian Percival , Southport

Mr. Percival indicated dissent.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I am sorry. I misunderstood the tenor of the hon. and learned Gentleman's reply.

Question put and negatived.