|Power of justice of the peace to authorise entry to search for evidence of serious arrestable offence|
|`(1) Where, on an application made by a constable, a justice of the peace is satisfied that there are reasonable grounds for believing—|
|(a) that a serious arrestable offence has been committed; and|
|(b) that relevant evidence is in certain premises; and|
|(c) that it would be of substantial value (whether by itself or together with other evidence) to the investigation in connection with which the application is made; and|
|(d) that it is not excluded material or special procedure material; and|
|(e) that any of the conditions specified in subsection (2) below applies, he may issue a warrant authorising a constable to enter and search the premises, using reasonable force if necessary.|
|(2) The conditions mentioned in subsection (1)(e) above are—|
|(a) that it is not reasonably practicable to communicate with any person entitled to grant entry to the premises;|
|(b) that it is reasonably practicable to communicate with a person entitled to grant entry to the premises but it is not reasonably practicable to communicate with any person entitled to grant access to the evidence;|
|(c) a person entitled to grant entry to the premises or access to the evidence has unreasonably refused a constable such entry or access;|
|(d) that the evidence is likely to be concealed, disposed of, altered or destroyed if such entry or access is sought without a warrant.|
|(3) A warrant under this section may authorise persons to accompany any constable who is excecuting it.|
|(4) In this Act "relevant evidence", in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.|
|(5) The powers conferred by this section are in addition to any powers otherwise conferred.'.|
Amendment (e), to leave out line 25 and insert—
Amendment (h), in line 27, at end add—
`(6) If any person in respect of whom a warrant under this section has been made applies to a circuit judge in accordance with Crown Court rules and satisfies him—
the judge may direct that the warrant or order shall be of no effect.'.
Amendment (i), in line 27, at end add—
`(6) Before issuing a warrant under this section the justice of the peace must be satisfied that the public interest in obtaining the evidence outweighs the public interest in protecting the privacy of the individual.'.
and new clause 16—Power to enter premises etc. to search for evidence of serious offences
`9.—(1) Where, on an application made by a constable, a justice of the peace is satisfied that there is reasonable ground for believing—
he may issue a warrant authorising a constable to enter and search premises using such reasonable force as is necessary.
(2) The conditions mentioned in subsection (1)(c) above are—
(3) In this Part of this Act "evidence" means anything
(4) Before issuing a warrant under this section, the justice of the peace must be satisfied that the public interest in obtaining the evidence outweighs the public interest in protecting the privacy of the individual.
(5) A warrant under this section may authorise any persons to accompany any constable who is executing it.
(6) An application under this section shall indicate how the evidence in question is considered to relate to the purposes of the inquiry for which it is sought.
(7) Where an application is made under this section on the ground set out in subsection (2)(b) above, the person or persons named in the application shall be given notice of the application and shall be entitled to be heard by the justice of the peace hearing the application and to appear by solicitor or counsel.
(8) If any person in respect of whom a warrant under subsection (1) of this section has been issued applies to a circuit judge in accordance with Crown Court rules and satisfies him—
the judge shall direct that the warrant shall be of no effect.
(9) The costs of any application under this section shall be in the discretion of the judge.'.
It is worth reminding ourselves of the origin of clauses 9 and 10, which the new clauses with which we are about to deal are intended to replace. It was that the Philips Royal Commission recommended that there should be additional capacity for the police to investigate serious crime. It believed—and set out copious reasons for that —that the existing law on the powers of the police to investigate serious crime was haphazard, piecemeal and in need of reform. The greater part of the section of the report dealing with those matters was concerned with material held on a confidential basis. In the Bill as printed, clause 10 sets out the procedures that the Government believed to be right not only to give additional powers to the police at the investigation stage but to respect the important matter of confidentiality and the rights of individual.
The Royal Commission also believed that additional and more consistent powers were needed to enable the police to investigate serious offences where the material that was sought was not held on a confidential basis. The Government's proposals in the Bill for that category of material are to be found in clause 9.
In Committee we paid much attention to what the Committee said. I am grateful for the kind things that were said about the way in which we were prepared to respond. The only sensible way of dealing with a Committee has always seemed to me to be to pay careful attention to the arguments that are put forward.
After the Bill went into Committee a great deal of anxiety was expressed by the professions and other people about the provisions on confidentiality. I say "at that stage" because had the representations and anxieties been expressed before that when we were consulting or a little thereafter, it might have been possible to make changes earlier along the lines that we are making them now.
The grouping of the new clauses requires us to deal in this debate with new clause 2, which is intended to supplant clause 9. I felt that I would be in order, and might help the Committee, if I explained at the outset the broad framework into which new clause 2 falls. It will be seen from the wording of new clause 2 that it relates to two separate categories of material — special procedure material and excluded material which came into being as part of the scheme that the Government in subsequent new clauses have constructed to deal with confidentially held material. Without departing from the rules of order, it would be helpful if I point out that excluded material constitutes confidentially held material that is outside the ambit of the powers that it is proposed to confer on the police. In other words, excluded material will not be open to access by the police.
The special procedure material, however, constitutes the remainder of the material held on a confidential basis as defined in the clauses, and that is subject to special safeguards that include application having to be made to a second judge and the second judge having to apply, among other things, the criterion of the public interest.
I am grateful to my hon. and learned Friend, and am impressed that he has managed to tuck in a couple of definitions about a matter that will not arise, as a result of the selection, until we come to later clauses. However, I should like his undertaking that he will at some stage define rather more closely what exactly excluded and special procedure materials are, as that will make this clause intelligible.
My hon. Friend knows that new clauses 3, 4 and 5 deal with definitions of excluded material and of special procedure material, and with the definition of legally privileged material and of personal records. I am happy to justify those definitions in due course.
Is my assumption correct about what the hon. and learned Gentleman said about excluded material being completely outside the capacity of the judge to rule? Does that mean that if a journalist obtained information that a bomb was to be exploded by the IRA in particular circumstances, the result of the clause would be that no order could be made to obtain that information from the journalist?
Excluded material is material that may not be sought and in respect of which a judge may not make an order under the terms of new clauses 3, 4 and 5. In the circumstances that the hon. Gentleman envisages, it is difficult to see how evidence that relates to such an event would not be covered by the Prevention of Terrorism Act. That Act is not touched upon by the provisions of the Bill in that respect. In other respects in which evidence would be held—of a kind relating to criminal purposes, for example—it is difficult to see how that could be held by somebody other than a person who was taking part, in one way or another, in the relevant criminal offences, and therefore that person could be arrested and a search could take place with a warrant of arrest.
New clause 2 replaces clause 9. I am explaining it to assist the Committee and make progress without reading from a detailed brief, because I think that it will help the Committee if I do so. New clause 2 restricts its application to circumstances in which a police officer has reasonable cause to believe that evidence of a serious arrestable offence is to be found in certain premises. An important feature of the new clause is that it defines "relevant evidence", and the definition is in subsection (4), which says that it
means anything that would be admissible in evidence at a trial for the offence.
I hope that the hon. Gentleman will agree that that is a clearer definition than that which was in clause 9, which relates to anything that might be given in evidence. It makes explicit what was all along implicit and is intended to relate only to matters that would be admissible in evidence at a trial for the offence.
The police officer must show that there were reasonable grounds for supposing that there was evidence of that nature of a serious arrestable offence as defined objectively in the Bill and that it would be evidence of substantial value to the investigation of that offence. That part relates to an undertaking that I gave in Committee to write in in express terms a requirement that the evidence should be of substantial value to the investigation and not of some passing interest or minor value.
The new clause then sets out a number of conditions in subsection (2), one of which has to apply and has to be found to apply by the justice of the peace who deals with the application before he may grant an authority to enter to search for evidence. Those are eminently sensible conditions that may be found in the existing Bill and can be summarised. Before issuing a warrant, a magistrate would have additionally to be satisfied that it was not practicable for the police to seek access to the evidence from the occupier of the premises concerned, that the occupier of the premises had unreasonably refused such access or that the evidence would disappear if the police tried to obtain it without a warrant. Therefore, there is no question of the warrants being lightly issued to enable police to search the homes of innocent people who were unwittingly in possession of evidence of a serious crime.
If one is not a lawyer, one always asks questions on these esoteric matters with trepidation. However, could my hon. and learned Friend explain what "reasonable grounds for believing" would be, what
not reasonably practicable to communicate with any person entitled to grant entry
might be, and what "reasonably practicable to communicate" or "unreasonably refused" mean? As far as I can see from my reading of the law, lawyers make their biggest living from deciding how many angels can dance on the head of a pin, which is determining what is meant by "reasonable"? Many of us are worried because when the police use the laws that they now have they can break into someone's house, say, "Whoops! I'm sorry" — this happened in my area—but then it can be said that the police had reasonable grounds. We should like to know what "reasonable" means to the Home Secretary.
I understand my hon. Friend's point and it was raised from time to time in Committee, and has been raised in every other Standing Committee dealing with any matters of the law on which I have ever had the privilege of serving. Lawyers make much more money out of law that is over-precisely tailored to every conceivable circumstance that Parliament can envisage than they do our of well-known words that are hallowed by long tradition, such as "reasonable".
That may be so in the case of the hon. Member for Ormskirk (Mr. Kilroy-Silk), but the important thing is that the concept of what is reasonable is at the root of so much of our common law. It is not right to try to identify every conceivable circumstance in which the law might apply and lay it down in the rules. We set out various criteria and then leave it to the common sense of judges and magistrates. We have done this in our criminal and civil law for many years, as the hon. and learned Member for Accrington (Mr. Davidson) will confirm. It is important that the power should not be confirmed at whim or capriciously, but that there should be power for a court, for example, to review whether there could be grounds for suspicion that there is something wrong. This is not a matter for anxiety. Those are the conditions that must be fulfilled.
Much of the criticism that has been levelled at various parts of the Bill has proceeded on the implied basis that the powers conferred by the Bill are new, that they have never been heard of before in English law, and that this is a great new code that has been invented for the first time. Over the years quite a large number of statutes passed by Parliament have conferred on police officers and others the right to enter on a search warrant premises occupied by people not suspected of complicity in an offence in order to search for evidence of that offence at the investigation stage. What is new about the clause is not the principle but the safeguards. When applying for a warrant, the police will have to satisfy the magistrate that a serious arrestable offence has been committed—and it is the magistrate, not the police, who will judge whether the offence is serious—and that substantial evidence of that offence is to be found on the premises. So the Bill already contains safeguards which go far beyond those which Parliament has thought necessary when granting similar powers in piecemeal instances in the past.
Taking up what the hon. Member for Birmingham, Selly Oak (Mr. Beaumont-Dark) said, will the Minister help me with a difficulty on subsection (2), which says that a person
entitled to grant entry to the premises or access to the evidence … has unreasonably refused such entry or access to a constable".
Can the Minister give some examples of what might constitute unreasonable refusal, or reasonable refusal? Here we are talking about a person who is innocent and who is not suspected of any crime, still less of a serious arrestable offence. In what circumstances can a person who is innocent and who refuses access to anyone to his premises ever be regarded as behaving unreasonably? Presumably the right of every law-abiding citizen in this country is to say, "No, you cannot have access to my premises. You cannot search my premises. I have not even been suspected of any offence." I would regard that as reasonable. When is it unreasonable?
All these cases turn on that fact. One could well envisage a case where someone said, "In no circumstances will I talk to any police officer. I do not mind what you say or what you do, I shall not even talk to you or listen to you when you say that you are asking me voluntarily to help the police in particular circumstances." In those circumstances it would be proper for a police officer to apply to a magistrate and say, "This is the reason I want it. This is the serious offence that has happened. This is the material. I identify it. I believe it to be there on reasonable grounds. It will be of substantial value to the investigation. I tried to persuade the holder to let me see it, but he said that he never talks to police officers and will not do so in this instance." In those circumstances, I should be very surprised and disappointed if a magistrate did not say, "Very well, I think that that is unreasonable."
It is important that the police, subject to these very strict safeguards, should have this extension to the principle that Parliament has already established in the past. This is an important element. I shall no anticipate the speech of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) in support of new clause 16, save to say that the definition of evidence that it contains is in our view inadequate, in that, for example, it would exclude evidence of fingerprints that might be of substantial value to the investigation of a serious arrestable offence. He will make his own speech, and there will be an opportunity to reply to it later. Accordingly, I ask the Committee to agree that clause 9 should not stand part of the Bill.
It was through no discourtesy on my part that I omitted to refer to the hon. Gentleman. He has tabled four or five amendments to the Government's new clause. I am afraid that I cannot accept his amendments. Indeed, I hesitate to accept amendments now, after the weight of criticism that has fallen upon my head. Suffice to say that amendment (c), which relates to "probative" value, is superfluous in our view, and adds nothing. Amendment (d), which places the focus on the "trial of the offence", rather than the investigations stage, overlooks the purpose of this part of the Bill, which is to enhance the powers of the police to investigate. That is why I am unable to accept the hon. Gentleman's amendments.
Might I say a word about amendment (f). When the hon. and learned Gentleman was replying to my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) and defining what would be an unreasonable refusal, and so on, he postulated the case of a constable going to the court and saying, "This is what I wanted to do, and this is what the chap said, and this is the reason why I want to go in and search." There is nothing in new clause 2 which obliges him to say, "This is the reason why I want to go in and search." Amendment (f) does. So if the Minister thinks that the constable should say, "This is the reason why," he should accept amendment (f).
With respect, I think not. Amendment (f) says:
An application under this section shall indicate how the evidence in question is considered to relate to the purposes of the inquiry for which it is sought.
The hon. Gentleman will remember that the new clause says that the police officer has to satisfy the magistrate that the evidence is of substantial value to the investigation of the offence, and he cannot explain how it is of substantial value to the investigation of the offence unless he explains why he wants it. That is in subsection (1)(c), where it says "of substantial value".
I respectfully suggest, therefore, that the Committee should agree that clause 9 should not stand part of the Bill, but should be replaced by new clause 2.
The great advantage of being in Committee now is that the Minister can—as he has just done — give what I am sure he regards as an interim reply to some of the points that have been made and that those of us who are critical of his proposals and have proposals of our own can advance them in perhaps a tentative way and then, having heard the Government's reactions to them, withdraw, qualify or seek to substantiate them, according to the conviction and persuasiveness with which the Government have made their case. That is what I, and I am sure some of my right hon. and hon. Friends, propose to do.
As I understand it, technically the principal motion that we are debating is whether clause 9 should stand part of the Bill. We want clarity and accuracy in this respect, and it is important to say a word about the clause before we consign it to the dustbin of the legislative process.
As this debate is about a clause which no one in the House wants to see incorporated in the Bill, it is another sign of the absurdity of what the Government have created. No one wants clause 9. Everyone believes that it should be abandoned. Nevertheless, the last word on it came in Committee upstairs as late as 22 January, from the Minister of State. I quote what he said about the clause with some trepidation, because I, like others, pay tribute not only to the courtesy with which he dealt with the Committee but to the competence with which he discharged his task. He performed his difficult duties over a long period with what I can only desbribe as remarkable distinction, and he often had the unhappy task of justifying what the Government had done, without ever saying that he was not completely convinced of the argument.
I suspect that it was in that mood that the hon. and learned Gentleman told the Committee on 27 January that he had not given an
undertaking to carry out a fundamental redrafting … of these clauses.
He meant clauses 9 and 10. He continued:
As I hoped and intended to make clear, the Government believe that the structure of this part of the Bill is correctly fashioned as it is."—[Official Report, Standing Committee J, 27 January 1983; c. 370.]
The Government no longer believe that. If we are to vote for their new clause with anything like confidence, we must be told what has happened since the Minister gave that uncharacteristically rash assurance that everything was right in the two clauses. To use a cliche, what went right? What convinced the Government that the error to which we had drawn their attention for months should be corrected?
To accept with anything like confidence the Government's proposals to replace the inadequate clauses we must be told how these extraordinary provisions were included in the Bill in the first place. Why did the Government hang on to them for so long against the mounting tide of criticism which everyone knew would eventually engulf them?
I am speaking of the proposal that the police should be able to raid the premises of doctors, social workers, priests and journalists and seize confidential and professional records. How did the Government make such a proposal? I hope that we shall not be told, weak-mindedly, that the innocent Government were misled in that particular by the Royal Commission on criminal procedure. Perhaps we shall not be told that, as the hon. Member for Orpington (Mr. Stanbrook) is not with us. The Royal Commission proposed something like that, but in other details the Government have not thought it necessary to follow the Royal Commission's recommendations.
The Government's error is that they always seize on draconian proposals by Royal Commissions without thinking about their propriety, and invariably water down or abandon the civil liberties safeguards which Royal Commissions propose to balance their more draconian suggestions. The Government chose to implement almost exactly the most draconian and least libertarian of all the Royal Commission's proposals. The attack on confidential records is not the responsibility of the Royal Commissions alone. It is also the responsibility of the Government, who chose to incorporate the proposal in the Bill.
I hope that the Minister will help us. We were never given a satisfactory answer in Committee. I hope that he will say how it was that in the face of the evidence, in the face of the traditions and history of Britain, the Government thought it right to make such a proposal to Parliament.
For all his abilities, the Minister cannot gloss over the old clauses as if they never existed. The old clauses are the Government's children. The Minister must say why they are to be abandoned. That is the Minister's first task when he makes his second speech. His second task is to put into perspective the two alternatives—that proposed by the Government and that offered by myself and my hon. Friend the Member for Stockport, North (Mr. Bennett) on behalf of the Opposition.
I echo the view expressed by my hon. Friend the Member for York (Mr. Lyon) that the powers in the clauses in this group and in the next have attracted far more publicity than any other part of the Bill. They have attracted more criticism and denunciation. They are the fashionably controversial clauses. I share the view that old clauses 9 and 10 are wholly unacceptable, but I do not believe that they are the uniquely bad part of the Bill. I do not even believe that they are the worst part of the Bill.
The clauses affect the most vocal and influential professions—the doctors, priests, journalists and social workers. I am not sure whether I am conceding the Minister's case, or making my own case, but the part of the Bill that worries me most is not that which affects the vocal and influential professions. I am more worried about the part that affects the uninfluential and non-vocal citizens. By that I mean the people most affected by stop and search, arrest without warrant, detention without charge, interrogation without adequate safeguard and intimate body search. We are dealing first with the part of the Bill that has attracted the most publicity, which the Government have discarded and on which they have capitulated. The fact that this part has attracted most attention does not mean that it is the only part about which there should be public concern; nor does it mean that this part will cause most disquiet if it is agreed.
Three schemes are on offer — the old discredited proposals, which will soon be abandoned, the Government's new proposals and the suggestion in the Opposition's new clause. Nobody in the Committee doubts the need for the police, on special occasions, to obtain evidence. The argument is about when that power is right and necessary and how permission to use it should be obtained. In Committee upstairs we were told time after time by lawyers of every sort, on both sides, that English law already provided the power to obtain evidence that was really necessary for prosecution when those in possession of that evidence wilfully withheld it from the police.
We were constantly told that there was power to raid and search the premises of—if I dare use the expression —crooked doctors, although there was some ambiguity about whether the same power existed in relation to crooked lawyers, if there are any. Nobody doubted that in general the power existed to obtain information which was wilfully and unreasonably withheld either in a way intended to frustrate the prosecution or which would result in the frustration of the prosecution.
The Minister must explain why we need a change in the law. What has happened in the last 50 years, 100 years or 500 years which makes the law so inadequate that it needs to be revised?
If that is so, I hope that the Minister will explain the areas of doubt. The Minister will forgive me for expressing mild surprise, in view of the courtesy and ability that he has shown in previous debates, that he has not already told us why the law does not meet our needs in this particular. Why and in what way is the Minister's proposed new clause significantly different from the law that operates today?
Some say that, by being dressed up with two or three terms from the Royal Commission, the new clause is no more than a restatement of the law as it operates today. They say that clauses 9 and 10 have been abandoned because for reasons connected with humiliation, the Government prefer not to admit that the old clauses have been abandoned, but to construct complicated clauses which amount to abandonment. How do the new clauses differ not only from the original proposal but from the present law, and why is the present law inadequate?
Our new clause is intended to meet the uncertainty. It is intended to fulfil the requirements of reasonable law in terms of obtaining evidence which results in legitimate prosecutions, but it supports and protects individual liberty. We have always accepted that there will be circumstances in which evidence must be, as it were, forcibly obtained. Our new clause, however, seeks to define far more precisely, and therefore far more safely, the circumstances in which such action may be taken and the procedures required to make such action justifiable in law. I know that my hon. Friend the Member for Stockport, North will wish to speak to his own amendments. The amendments are intended to represent some of the safeguards in our new clause as they might be interpreted and incorporated in the Government's new clause, which, the House being what it is and whipping being what it is, will no doubt eventually be carried into the Bill.
In the first of my speeches on this group—I hope that I shall be fortunate enough to catch your eye again, Mr. Weatherill — I wish to deal with three major safeguards which appear in our new clause 16 and could be incorporated in the Government's new clause if the Government advised against accepting our new clause but supported some of our specific points.
First, a general weakness in the entire Bill is at its most apparent and dangerous when translated into individual powers. I refer to the concept of the "serious arrestable offence". The powers that the Government propose to use under their new clause can be invoked and discharged when, in the opinion of an officer, a serious arrestable offence has been committed. Two criticisms must be levelled at that.
The hon. Member for Orpington made certain assertions. I am sorry that he is not present to hear them repudiated. He said that the Bill merely translated the Royal Commission's recommendations into legislative effect and asked who could criticise that. My criticism, in describing our attempts to achieve the first safeguard, is that the Royal Commission's whole intention has been frustrated by making the powers of the Bill in general, and those of this clause in particular, depend, not on the commission of a "grave offence", as the Royal Commission recommended, but on the supposed commission of a "serious arrestable offence". That change in terminology was decided by the Government.
Our criticism of that is twofold. First, a serious arrestable offence, as distinct from a grave offence as defined and listed by the Royal Commission, may not warrant the intrusions on private liberty implied by provisions of this kind. Secondly, the definition of a serious arrestable offence is, in effect, whatever the officer involved cares to make it. When we last argued this, I suggested to the Home Secretary that it was a circular definition, to which I received the immortal reply that it was, indeed, but was none the worse for that. I think that we should all agree with the first part of his riposte, but the definition in the Bill could be used in such a wide variety of circumstances as to allow the powers to be used in circumstances in which, in common logic, they would be entirely unreasonable.
The safeguards in our new clause and in the amendments to the Government's new clause which we intend to press include the re-establishment of the concept of a grave offence in place of the far weaker and more general, far more subjective and thus in my view far more capricious, definition of a serious arrestable offence.
Secondly, we believe that permission to use the powers involved in this kind of search and seizure should be obtained from an authority far more senior than a justice of the peace. In saying that I in no way denigrate justices of the peace or their work. In my experience, many justices of the peace themselves believe that powers of this kind are not appropriate to them because their task is traditionally and historically very different. The idea that the police should operate such powers on their fiat alone will, in my view, undermine the proper relationship that should exist between justices of the peace and the public. Thus, our new clause and our proposed amendments to the Government's new clause provide that a justice of the peace should not be the approving officer and that his or her authority should be replaced by that of a circuit judge.
Thirdly, and perhaps most important, we are determined that these powers should be used specifically, by which I mean two things. First, the policeman applying for or taking the powers must have real reason to believe that the evidence is necessary for a legitimate prosecution and cannot be obtained in any other way. Secondly, a specific offence must genuinely be suspected and it must be shown that the evidence to prosecute for that offence could not be obtained in any other way. In other words, the powers must not justify fishing expeditions — a subject that will doubtless recur many times in the days and nights of the Committee and Report stages of the Bill. When we referred to the matter in Standing Committee, there was a general assertion from the Government side that although fishing expeditions were certainly as undesirable as we claimed, they were far less common than we suggested.
That assertion was made, of course, before we knew the results of the inquiry into the happenings in Brixton 18 months or so ago. We now have details of the report of the deputy commissioner on what took place, the correspondence between him and the chairman of the Police Complaints Baord — who, not insignificantly, was chairman of the Royal Commission and was critical both of the behaviour of the police and of their response to his inquiries — and the answer that my hon. Friend the Member for Norwood (Mr. Fraser) eventually elicited from the Home Secretary. That reply showed that there was a tendency on the part of some policemen of junior rank — and some policemen of senior rank who authorised the behaviour of their junior colleagues—to enter premises for one purpose and to use their entry for another purpose. [Interruption.] If the hon. Member for Bury St. Edmunds (Mr. Griffiths) wishes to reduce the argument to absurdity, I of course agree that if the police stumble across bombs in the course of a raid for cannabis it would be right for them to remove the bombs and to arrest the persons they thought were responsible for constructing the bombs. However, that says nothing very serious or material about the Bill.
We are far more concerned about cases in which the police have grounds to suspect that on some premises there is evidence to justify a prosecution for a comparatively trivial offence but in searching for and seizing that evidence console themselves with the thought that if they do not secure a conviction on that comparatively trivial offence they may obtain information allowing them to secure conviction for another comparatively trivial offence not specifically on their minds or on their warrants at that time. Our new clause and our amendments to the Government's new clause would prevent that. They would not make such behaviour entirely impossible, but they would certainly make it a great deal more difficult.
The right hon. Gentleman seems to be wandering from his main point about new clause 16, under which only a "grave offence" would provide the reason for granting a search warrant, compared with the reference in the Government's new clause to a "serious arrestable offence". I was not a member of the Standing Committee, but I am here today because every Member of Parliament has been lobbied on this and every Member of Parliament is interested in increases in police powers and the effect on the liberty of the subject. I want the answer to a fundamental point. Why does the right hon. Gentleman wish to change the wording from a "serious arrestable offence" to a "grave offence"? Does he not think that by so doing he is tightening the limitation in a way that might inhibit the opportunity of the police to fight crime?
The hon. Gentleman described what I have done during the past five minutes as wandering from the point about grave offences. I flatter myself that I moved on from that point. I shall move back to it and explain why I made my point. I must warn him—if "warn" is the right word—that I could make this point about clause after clause.
The Royal Commission believed that many of the new powers that it proposed should be applicable only when what it described as a "grave offence" had been committed. It described how the definition of such an offence could be made. Many of us regard that as an imprecise process. Many of us would regard the powers that the Royal Commission proposed as unjustifiable, even against stringent criteria.
The Government have abandoned even the imprecise process and the not very stringent criteria. The Government's definition, moving from "grave offence" to "serious arrestable offence", in everybody's view, gives far more opportunity for all these powers to be used on far more occasions. As they can be used subjectively according to the judgment of the constable or officer using them, as distinct from the criteria laid down by the Royal Commission, and possibly in statute, they are essentially subjective.
In the House we all agree that subjective legislation may turn into capricious legislation. I accept at once that the point can be argued in two directions: first, that by wishing to return to the Royal Commission's proposals I want the police to have their powers more limited than the Government propose. On the other hand, while that is certainly the case, I argue that by abandoning the Royal Commission's definition the Government are providing the police with powers that are wider in their application than is reasonable in a free society.
The hon. Member for Canterbury (Mr. Crouch), like me, must make up his mind whether he wants narrow powers that are carefully controlled or wider powers that could be capriciously used. I come down on the side of the narrow powers, and every hon. Member must make up his mind about the side on which he comes down.
The right hon. Gentleman kindly moved back to deal with the point raised by my hon. Friend the Member for Canterbury (Mr. Crouch). I ask him to move forward again to the point that he was dealing with when he conceded that if a warrant were given for the entry of premises to determine whether a serious arrestable offence had been committed, and a bomb was found, an arrest could be made or the procedure could go forward in a commonsense way.
If access is gained to premises for the purpose of investigating a serious arrestable offence and the police officer sees stolen property, is it the right hon. Gentleman's case that that should be ignored because it was not the basis on which the warrant was awarded? Would that not be an utterly absurd position, encouraging rather than preventing crime?
If that is the right hon. Gentleman's case, the police officer could ask for a warrant on the evidence of what he saw in the house. However, between the granting of the warrant and the seeing of the evidence, that evidence may be removed. Is that an acceptable position?
The hon. and learned Gentleman asks me to base my answer on an assumption that I do not accept—that the entire operation could be set in motion by a serious arrestable offence. Currently, if the police believe that essential evidence can be found in a certain house, and if the owners or occupiers of the house refuse them permission to enter to obtain the evidence, that evidence can be obtained under present powers. If it were found that the material had been stolen, the police could impound it. Were there evidence to justify it, they could prosecute those whom they believed to be associated with the crime. That is reasonable. Therefore, my first answer is that, as the law stands, I support it. It substantiates my question to the Minister of why we need to change from that position.
If the police raid a house for a specific, justifiable purpose and find stolen property, I would expect them, as a matter of common sense, to impound that property and take whatever action was justified against those involved with either its theft or its receipt. What worries my hon. Friend and myself is not that there will be such a concrete example of one offence genuinely suspected and a second genuinely detected, but that—under the new clause—there will be an irresistible temptation for the police to say,
Let us get a warrant for this search and, who knows, we may be lucky enough to find something else.
I am delighted that the hon. Member for Bury St. Edmunds shares that view. I know that I do him no discredit by saying so, because the Committee record shows that he has expressed similar feelings. We want a power to be included in the clause to require the police to behave in a specific way — the intention to obtain evidence about a specific offence. If, as a genuine byproduct of that, something else is revealed, it would be absurd to suggest that that should be ignored. We are concerned about the temptation to operate generally in the guise of a specific obtaining of evidence. Our new clause would avoid that temptation to a large degree.
I remind the Minister of the three essential questions that I have asked him. I am sure that he will answer them — I almost said "dispose of" them — in his usual courteous and lucid manner. First, how did the Government ever conceive that their original intentions could be accepted in a free society? Secondly, how does the law as it stands so differ from the new clause that the new clause is necessary? Why cannot we leave the law as it stands? Thirdly, if the new clause significantly differs from the present law, can we be assured that, at least in the three particulars that I have described—and in other particulars that my hon. Friends will wish to develop in detail—there are the proper safeguards that the House should require? Those safeguards are that the powers should be authorised by the officer of a court of appropriate seniority; that they should apply only to the most serious offences — what the Royal Commission describes as "grave offences"; and that they should not be used in a way that so spreads police power that they make possible what are colloquially known as fishing expeditions.
I look forward to hearing the Minister's answers to my questions, but before he answers them I suspect that many of my right hon. and hon. Friends will impose added burdens upon him.
The context in which the Government introduced their original new clause 9 and the context in which the debate has taken place both in Committee and in the country are important. I am sure that the House will not lose sight of the fact that the reason for both the original and the present clause is not to abuse the public's civil liberties but to make it easier—as all hon. Members, without exception I am sure, want to see—for the police to clear up far more of the serious crimes that are being committed. If there is an attack upon civil liberties it comes, in my judgment, far more from those who rob, assault and burgle than it does from the police.
The first civil liberty should be the householder's right to live undisturbed in his or her own home, the right of old people to walk the streets without being set upon and the right of women to be safe from sexual assault. It is in that context more than any other that we must judge whether these powers enhance or take away from people's essential civil liberties.
I want to comment on some of the valuable points made by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley).
I am sure that the hon. Gentleman agrees that the residents of Railton road, about whom a report from the Police Complaints Board has just come from the Home Secretary, felt that their civil liberties and their privacy were invaded by the treatment they received from the police just as much as if they had been burgled by a common or garden burglar.
No one can be in any doubt about the feelings of the people of Railton road or any other part of the country where the police abuse their powers. I entirely share the hon. Gentleman's feeling about this. I am sure that my right hon. Friend the Home Secretary does also. He has virtually said as much, and so has the Commissioner of Police of the Metropolis. It is intolerable when the police abuse their powers. It is a worse offence because they are given their powers by the House.
However, none of that diminishes my central point. While the police rarely abuse their powers, the abuse of the population's civil liberties by burglars, criminals and rapists is increasing all the time. We must keep our eye on the central problem and that is what I believe this clause is about.
While I do not dispute what the hon. Gentleman is saying, does he accept that the police rely, for whatever success they have in detecting crime and apprehending criminals, on the information that they receive from the public? As the hon. Gentleman knows, the police do not detect crime unaided. They detect it with the help and information that they receive from the public. That help and information is dependent upon the good will and good relations that exist between the public and the police. Anything that may endanger that relationship, such as giving the police excessive powers which are open to abuse and which we are debating now, is in the long run likely to lead to an increase in crime rather than, as we all want and as these powers are intended to achieve, a reduction in the level of crime.
The short answer to the early part of the hon. Gentleman's intervention is, yes, I agree.
I want to comment upon the remarks of the right hon. Member for Sparkbrook about fishing expeditions. I hope that it will not come as a shock to him, but there are occasions when the police go to a magistrate and seek powers to search for some specific matter which they name. However, at the back of their minds they may well have the suspicion that they will find something else. It is a practical matter. For example, it may be possible for the police to go to a magistrate with a claim, a belief or a reasonable suspicion that a person may have stolen goods on his premises. He may be notorious in the neighbourhood and the police may have been watching him for some time. They know that if they go to a magistrate they will succeed in obtaining a warrant to search for stolen goods, because that is within what could broadly be called the general knowledge or at least the apprehension of the population of that area.
The police may have other reasons, which may arise from information given to them by members of the public, to believe that that person might have stepped over the mark of merely being a receiver of stolen goods from time to time and has gone that little bit further and started to traffic in drugs, perhaps to have gone a little further and have bankrolled other persons engaged in professional robberies, and may have gone a further stage and served as a safe house or cache for firearms used in those robberies.
Justices of the peace vary considerably. The police knowledge of what I can only describe as the anthropology of justices of the peace is considerable. They may well know that if they went to the justice of the peace on what might sound to him extremely flimsy suspicion about the house containing drugs or weapons, they might not meet his criteria for a search warrant. However, they would be reasonably certain, from their practical working experience, that if they went for a search warrant in respect of stolen goods they would receive it. That happens. It is difficult, because the police occasionally have to operate on hunch and on their empirical experience built up over a long time as detectives. They will occasionally make a mistake. I freely acknowledge that there are occasions when a police officer will seek a warrant at one level where he thinks that he will obtain it and in the back of his mind he has a suspicion — no more — that he will find something else. I do not say that it happens often, but it happens occasionally. In fairness to the right hon. Member for Sparkbrook, because whatever else the Committee was, it was fairly honest, it is right that I should say that that can happen. Does he say that it is wrong?
I do not know whether my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) says that it is wrong, but the law says that it is wrong. The hon. Gentleman has argued for a power of general search, which has always been wrong. The law says that it is wrong. If he put his case to a High Court judge he would be told that it is wrong. The police know that it is wrong, yet he says that the police do it. That is precisely what we are arguing about in the Bill. The police continue to use powers illegally, and we are giving them more powers to use illegally. We have not yet got that point across to the hon. Gentleman.
The hon. Gentleman asked me a question. I believe that what he has described is wrong. I was rising, before my hon. Friend the Member for York (Mr. Lyon) did, to ask him whether he could conceivably believe that what he described was right. He was describing not merely a breach of the law but a calculated decision by the police to confuse and deceive the justices. Does he think that that is right?
The right hon. Gentleman will see the point that I am coming to. The present circumstances put the police in a position where they judge that they have to do what I have just described. It is important therefore that the Bill defines more precisely what they can or cannot do. That is the gravamen and central point of the Bill which the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and his hon. Friends have missed. The Bill seeks to clarify and define what the police may or may not do.
It is not possible for any statute to calculate the possibilities and permutations of life and crime. Therefore, there is a limit to how far any Bill can go. This Bill, and especially these clauses, have come closer than anything previously to defining and clarifying what can and cannot be done. The right hon. Gentleman asked why there should be any change in the present law. The answer is that the present law leaves vast areas of hiatus. Therefore, it is right to attempt to define the matter more tightly, as these clauses seek to do. The question is whether they are sufficient.
The hon. Member for Ormskirk (Mr. Kilroy-Silk) asked when a refusal by a person to allow a search of his premises to take place would be unreasonable. I wish to answer that question because my hon. Friend the Member for Birmingham, Selly Oak (Mr. Beaumont-Dark) was also worried about this matter. A search for gelignite and arms is taking place or has recently been completed at a home in Highgate. I do not know—possibly we shall learn later today — whether gelignite or arms were found. A refusal to co-operate by the owner of those premises would have been, in every sense of the word, unreasonable. Frequently it is only possible to judge that fact afterwards. The problem is that the home owner may not, in all the circumstances, know whether his premises are being used in a specific way. He may not know or he may prefer not to know. There is bound to be some dubiety in this matter. That is why consideration of the language in previous statutes as to what is reasonable is the proper approach.
In those circumstances, I shall leave the matter there. I was seeking to illustrate what in my judgment is an unreasonable refusal.
I generally welcome the new clause that my right hon. Friend the Home Secretary has introduced, but there are two problems. One arises from a procedural difficulty in which we are placed to some extent by the selection of the amendments. The Government new clause provides a definition of relevant evidence. Unfortunately, there is no definition within the same clause of either "excluded material" or "special procedure material."
I appreciate that the House will deal with those two subjects somewhat later. My difficulty is that hon. Members are now required to give or not to give assent to this new clause. It is difficult to do that without having been able to question the Government further about what is meant by excluded material and how that problem is to be approached, and without understanding a little more clearly how the special procedures will work.
That is a difficulty. No doubt, Mr. Weatherill, when you considered the selection, you formed a judgment that it was better to deal with the matter in one way rather than another. I do not wish to complain. I am in some difficulty in arriving at a conclusion on new clause 1 without more effective debate than is possible if we are to remain in order.
I turn to new clause 17 —
I beg your pardon. No doubt that will not be the only confusion that we shall suffer in the course of the next few hours.
New clause 16 is attractive in many respects. First, it is far more comprehensible. Secondly, it is far simpler and would be much easier to embody into the notebooks of the police who will have to implement these powers. Thirdly, in subsection (4) the right hon. Member for Sparkbrook proposes that an effort shoud be made at a judicial level to weigh the public interest by determining whether the public interest in obtaining evidence outweighs the public interest in protecting the privacy of the individual. I like that concept.
The right hon. Gentleman turns his argument against himself because he is placing such an enormous responsibility on a justice of the peace. I am not sure that a justice of the peace is in a position to judge in such broad terms what the public interest is. In my view, that point can be judged only by a Minister of the Crown responsible to the House. Although I welcome the suggestion that there should be an attempt to weigh the two types of civil liberty or the two types of public interest, I am not sure that a justice of the peace is able to perform that function. Unfortunately, my advice is that the right hon. Gentleman's clause fails on several technical grounds, one of which has been mentioned by my hon. and learned Friend the Minister. I do not think that it is right to weary the House by examining the technical factors. I find several points in the right hon. Gentleman's clause attractive, notably its comprehensibility.
I think that my hon. Friend is giving credit where none is due. For my hon. Friend to read new clause 16 in direct comparison with new clause 2 he must also examine new clause 17, which is neither simple nor comprehensive. It is quite wrong to take new clause 2 as a direct comparison with new clause 16 alone.
If I were able to speak about new clause 17, I might have some harsh things to say. However, I must stay away from new clause 17 and stick to new clause 16. Standing by itself, new clause 16 scores by being comprehensible and relatively simple. Unfortunately, it is technically flawed and it does not go sufficiently far in enabling the investigation of crime to take place.
One of my worries about new clause 2—I trust that my hon. and learned Friend the Minister will say something about my anxiety when he replies—is how this and the other proposed changes which, generally, I support, will be embodied in force orders and in the ordinary police officer's notebook. Most people wish to improve the ability of the police to investigate offences fairly and to achieve more convictions where assaults have been committed. At the end of the day, it is necessary to consider the position of the ordinary police officer trying to carry out his difficult, and indeed impossible, cuties, sometimes making mistakes, but generally attempting to do his duty in difficult circumstances. We are about to embark on the discussion of some immensely complicated clauses and safeguards covering many separate occupations and several groups of people, who have protested. I hope that my right hon. Friend the Home Secretary will have some regard for the police officer on the job, who must be able to tell from his notebook and his force orders how on earth he is supposed to proceed. It will take a brilliant draftsman to turn the language in the Bill into something that most intelligent policemen would be able to operate effectively.
I am a new boy and I found the Committee very stimulating. It was also well conducted. I was unable to attend the Committee's last sitting because of pressing constituency business and so I should like to thank the two hon. Members who chaired the Committee so patiently and who put us in our places when necessary, the hon. Members for Scarborough (Sir M. Shaw) and for Nottingham, West (Mr. English).
On 27 January—which seems almost an age ago—the Minister replied to an amendment that would have been a composite of clause 9 and clause 10. At the beginning of his first intervention, he said:
First, it is most important that the privacy of the ordinary citizen should not be wantonly invaded. Secondly, it is important that any relationship of trust should not be unnecessarily abused."—[Official Report, Standing Committee J, 27 January 1983; c. 348.]
I know that the Minister was talking, in particular, about medical records, but those words are relevant to this debate. The Royal Commission said that the existing law was in a muddle. It also said that
a compulsory power of search should be available only as a last resort. It should be granted only in exceptional circumstances and in respect only of grave offences.
The Royal Commission clearly suggested that in such a case any application should be made inter partes. Hence, my right hon. and hon. Friends and I tabled amendments Nos. 241, 242 and 235, but they have now been superseded.
We are dealing with a very complicated clause, but the hon. Member for Stockport, North (Mr. Bennett) has tabled several amendments which will assist us in clarifying it. They will also help us to accede to the Minister's words, which I have just quoted. The Royal Commission mentioned how orders for searches should be issued and said that an order should be made by a judge only if he was satisfied that other methods of investigation had failed, that the nature of the items was specified with some precision, that there were reasonable grounds for thinking that the items would be found at those premises and that the evidence would be of substantial value in identifying those responsible for the crime or for determining the particulars of offences.
I am convinced that clause 9, as drafted, does not conform in any shape or form to the Royal Commission's suggestion, and I heartily support those who do not want it to stand part of the Bill. However, although the new clause is much better than clause 9, it is not in any way complete. It is complicated, and I agree with the hon. Member for Bury St. Edmunds (Mr. Griffiths) that new clause 16 is much clearer. However, there may be technical problems with new clause 16, so I shall concentrate my remarks on how to amend new clause 2 so that it conforms to the desires of the majority of Opposition Members.
I shall not delay the Committee by going through them, but we have been advised that there are technical problems. However, I shall come to new clause 16 later, and the right hon. Gentleman will learn that I intend to support it. In amendment (a) to new clause 2 the hon. Member for Stockport, North seeks to leave out "justice of the peace" and to insert "circuit judge".
Like other hon. Members, I am still waiting to hear from the putative Home Secretary of the Liberal/Social Democratic alliance the nature of the very serious defects that are apparently contained in new clause 16. It is an important issue and the Committee is waiting with bated breath for the hon. Gentleman's answer.
I am sure that the Committee is waiting with bated breath for my answer, but I also hope that it is waiting with equally bated breath to hear what I have to say about the point at issue, which is new clause 2.
In its triennial review, the Police Complaints Board said that it was concerned at the ease with which, on occasion, courts or individual magistrates may grant search warrants on the basis of rumour and often uncorroborated facts. I share that concern. In many circumstances, a magistrate is not the appropriate person to grant a warrant. If, in accordance with amendment (g), tabled by the hon. Member for Stockport, North, such issues were presented to a circuit judge, inter partes, all parties to the application could be protected properly.
In addition, the safeguards for civil liberties mentioned by the hon. Member for Canterbury (Mr. Crouch) might be better ensured. Indeed, the hon. Member said that the police should have proper powers. I could not agree more with him. He also mentioned the liberty of the individual, and I believe that, although we must ensure that the police have proper powers of arrest and detention and to detect crime, we must also protect the civil liberties of those whom they serve. Amendment (b), also tabled by the hon. Member for Stockport, North, refers to the "serious arrestable offence". I had hoped that there would be a Government amendment or some other amendment— indeed, I tabled one—to define that. I still believe that those words represent a nebulous definition and that they are too subjective. I still believe that a "serious arrestable offence" is defined primarily by the officer concerned. Therefore, the words are dangerous and do not sufficiently safeguard the individual's civil liberties.
I should have preferred a tighter definition, but unfortunately that is not to be. We must therefore content ourselves with what we have. That is why I support the insertion of the word "grave". I do not want to continue the long debate in Committee about the number of definitions that can be attached to the word "grave" or about the different interpretations of the word "serious arrestable offence". The point is that "serious arrestable offence" is a nebulous definition, while the word "grave" means something. If a person is gravely ill, we know exactly how he feels. If someone has committed a grave offence, one knows its magnitude because the word "grave" implies the magnitude.
The hon. Gentleman has kindly explained what he thinks is meant by "grave offence". Will he now explain what he thinks is the difference between a serious offence and a grave offence?
As I was saying, we must define what offence is serious and what offence is grave. Perhaps the hon. and learned Gentleman and I interpret the word differently. That is another source of confusion. That is why I hoped that the Government or someone else would have tabled a proper definition. We are in danger of talking round and round the point again. I should like to know how the Government define "serious arrestable offence". We have no idea of that. Unfortunately, I cannot agree with the definition in clause 74. We are back to the start again.
New clause 16 is far more succinct. I shall put the mind of the hon. Member for Ormskirk at rest. The Minister has told us that there is a technical difficulty in new clause 16. I am prepared to accept his word as he is far more learned in these matters than me. The hon. Member for Bury St. Edmunds also raised the point, but perhaps the hon. Member for Ormskirk was thinking of other things. New clause 16 could well replace clause 9. It would satisfy the requirement to give the police the powers that they should properly have, safeguard civil liberties and ensure that neither civil liberties nor the powers of the police were abused. Unfortunately, I suspect that we shall not be able to examine new clause 2 or new clause 16 on Report late on Monday to develop the type of clause that we need because of the timetable that we are now working to.
If pressed, I would say that I support new clause 16 or the amendments of the hon. Member for Stockport, North as they add to what the Government have proposed and adequately cover the anxiety about police powers and the safeguarding of civil liberties.
The need for a general power to search for evidence was held by the Royal Commission, after careful consideration and debate, to be necessary, subject to proper safeguards. New clause 2 follows in almost every particular the suggestions of the Royal Commission. It therefore deserves general welcome from all hon. Members. It incorporates the safeguards which Lord Denning outlined in Ghani v Jones, a leading case which dealt with the current but much more restrictive powers to search for evidence under the Theft Act. It follows the lead given in about 50 statutory cases which were identified by the Royal Commission. Consequently, and, contrary to what the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) seems to believe, it is clear that no sufficient general power exists. It is also clear that the Royal Commission regarded such a general power as necessary and it is now clear that new clause 2 properly fulfils that overall need.
I shall now deal with the discussions that underline many of the clauses on "serious arrestable offence" and its comparability or otherwise with the expression "grave offence" which some right hon. and hon. Members seem to prefer. Here again, the right hon. Member for Sparkbrook is sadly muddled. He seems to be under the impression that the Royal Commission defined "grave offence" in a way which would prove acceptable as a statutory definition. It did nothing of the sort. If hon. Members refer to paragraph 3.7 of the Royal Commission report, they will find that it simply outlined a substantial number of serious or grave offences—I use those words in layman's terms—which it thought were sufficiently serious to justify the police in exercising or asking permission from the court to exercise a power of search. It did not attempt a definition. Anyone who gives his mind to the subject will find that it is almost impossible and, I believe, undesirable to supply a definition which does not contain any flexibility or a subjective element.
I appreciate that "serious" and "grave" are extremely difficult terms to define with any precision. Why, then, instead of a definition, do we not follow the example of the Royal Commission and have a list of offences? Why, when that suggestion was made in the Standing Committee of which the hon. and learned Member for Hemel Hempstead (Mr. Lyell) was a distinguished member, was it resisted?
I think that the answer to the hon. Gentleman's serious point is that, if one analyses the definition in the Bill, one finds that it is much closer than he realises to the list that he wants. A serious arrestable offence is defined in the Bill. The hon. Member for Croydon, North-West (Mr. Pitt) is wrong to think that it is not. It is defined first as an arrestable offence. An arrestable offence can easily be listed and is definable. It is an offence for which the sentence is a maximum of not less than five years. Such an offence is potentially serious by anyone's standards. [Interruption.] I hear the hon. Member for York (Mr. Lyon) groaning. I shall give way to him soon. However, not every example of an arrestable offence is necessarily serious. I am sure that the hon. Member for York will agree that we must find a sensible definition that will enable the comparatively trivial to be separated from the serious examples of such offences. That is where the subjective element is almost impossible to avoid.
The House and the country should realise that the subjective element is not simply the police officer's private view of the subjective element as the JP who gives the search warrant which is applied for under clause 9 must be satisfied that the case involved a serious example of an arrestable offence. I suggested that we might use the words "serious example" because it clarifies matters but it is not as easy as that, because some offences are so serious that it is misleading to suggest the use of the phrase "serious example". For example, rape or murder would always be regarded as sufficiently serious to justify a search for evidence as contemplated by new clause 2. Therefore it is not easy to provide a satisfactory definition. However, the phrase "serious arrestable offence" has been criticised far more than it deserves to be largely by people who understand it less well than they should
I agree with the hon. and learned Member that the Government's definition of "serious arrestable offence" inserted towards the end of our proceedings in Committee is a massive improvement. However, I hope that his assertion that the definition contains a subjective element is not true. The definition states that the officer must have reason to believe that it is serious by reason of
(a) the nature of the offence; (b) the scale; (c) the degree of organisation;
and so on. If an officer must believe that, surely he makes an objective assessment and not a subjective one, as it was originally. To that extent, we have moved from subjectivity to objectivity, which is crucial.
The hon. Gentleman makes an important point and is right to remind me that the definition has been further tightened by the objective element in so far as that is possible. The fact that we go down the same road so far comforts me that we have got the clause and its important underlying concept about right.
The need for a general power of search has been accepted by the Royal Commission which called for certain safeguards which are now fully incorporated in the clause. Far from being a matter of criticism, the way in which the clause has been improved shows the House in Committee working at its best. The long proceedings in Standing Committee were constructive and the new clause should receive general welcome from all those who wish to see serious crime properly investigated and justice done.
The hon. Member for Bury St. Edmunds (Mr. Griffiths) argued that it was important for the Bill to be easily understood by the police, but they do not need the provisions if they get the consent of the individuals concerned. Our primary objective should be policing by consent. If we achieve that, these provisions will be unnecessary because individuals, if they feel that the requests are reasonable, can co-operate. It should be emphasised to police officers that they need not know the details of the legislation; rather that they must behave in the best way they can to build up public confidence.
There have been too many occasions recently when police officers have not carried out searches in a way that would build up public confidence. The first message to the police is that they must regain public confidence and always behave in a way of which everyone will approve. When the police do that, they will have few problems with the legislation.
I agree with the hon. Member for Bury St. Edmunds that the police are faced with the problem of interpreting the legislation. The hon. and learned Member for Hemel Hempstead (Mr. Lyell) said that the definition of "serious arrestable offence" is in clause 74, but it is harder for a police officer, who must make decisions quickly and act efficiently, to work out whether an incident comes under that definition than for him to look down a list to see whether the crime he is investigating is on it. I suspect that, while a definition will be included in the legislation, for practical purposes the police will be given a list and told that if the incident is listed they should treat it as a serious arrestable offence. If that is done in practice, it would be better to include a list in the legislation rather than have the police interpreting the legislation.
It is also important to look at the relationship between new clause 2 and new clause 3. We have run into a possible danger. We are saying that this new clause deals with ordinary Mrs. Brown and that certain fairly limited safeguards will apply to any information or material in her home. However, if she is a journalist, doctor or member of the other professions mentioned in new clause 3, a series of other safeguards will be applied. To my mind, those safeguards should be applied to any individual. They should not be special privileges reserved for certain groups which, by their nature, could make the most fuss and gain the most attention were their rights to be invaded. The Government should think carefully about extending the safeguards on confidential or other material to all individuals.
It seems odd that a journalist should have far more protection than other individuals. I commend all the pressure groups, such as the journalists and the British Medical Association, on their plea for special provision, but we should consider giving the same rights to all individuals rather than to groups which in some ways are more able to look after themselves.
Amendment (a) to new clause 2 is a plea to the Government to ensure that an application for a search warrant is made to a circuit judge rather than to a justice of the peace. The hon. Member for Croydon, North-West (Mr. Pitt) pointed out that the Police Complaints Board has expressed concern about the suggestion that some justices of the peace at present grant warrants without sufficient regard to whether they are justified. By increasing the level at which an application is made, we would ensure that the police must make out their case instead of taking it for granted that such a warrant will be issued.
Several magistrates have told me that if they press the police for reasons, and if the police officer has difficulty obtaining a warrant, they rarely have applications made to them, whereas a magistrate who makes perfunctory inquiries is frequently applied to. It would be disturbing if the police had an unofficial list of magistrates who were compliant as opposed to those who were not. Such an attitude may be grossly unfair, but it is a common impression about what happens in practice. Although some circuit judges may be more willing to grant warrants than others, amendment (a) would be a better safeguard.
Amendment (b) deals with the serious arrestable offence, to which we should give special attention. The Government must look at this again. As I said earlier, there is a danger that in practice a list will be drawn up. For all practical purposes the police will work from a list rather than from the definition in clause 74. If it is intended to use that definition we should consider it carefully.
The first case where a serious arrestable offence arises is when someone is liable to a prison sentence of more than five years. As my hon. Friend the Member for York (Mr. Lyon) pointed out, this includes larceny. Having taken that into account, we must examine clause 74(h),
the prevalence of similar offences".
That seems to include small criminal actions if they happen frequently. Each one in itself may not be significant but by putting (h) in the definition the Government have widened it. While it would be unlikely that an individual who had committed one offence would get a prison sentence, someone who had committed a series of similar crimes might well do so.
When the crimes are being investigated, it will not be possible to say that they were committed by one individual or that different individuals had committed a similar offence. If we are to accept the definition of "serious arrestable offence" for the whole legislation, we should make a distinction in clause 9 and make it clear that search powers should be permitted only in respect of grave offences.
If the Government insist on keeping the term "serious arrestable offence", they ought to consider the definition set out in amendment No. 252. In Committee we spent a long time discussing the definiton. All sorts of definitions were suggested. My hon. Friends seem in amendment No. 252 to have found a definition which would be a big improvement. If the Government are not prepared to accept my amendment (b), they should put in a definition of "serious arrestable offence" which individuals can understand and which the police will have little difficulty in interpreting.
In his opening remarks the Minister said that amendment (c) was unnecessary and that he was not prepared to accept amendment (d) because it altered the situation. As I understand it, the clause attempts to lay down whether this is evidence which would be material in producing a conviction and not evidence which would necessarily help the police in their inquiries. The Government should make the clause clearer. Will the police be able to search for things which will help them to go on with their inquiries, or will they merely be able to search for things which they will then produce in evidence? The Minister seemed to say that amendment (c) was not necessary and then that it was not acceptable to the Government. Those two things go together.
It is important that the material which is being searched for is material that will be produced at the trial — in other words, material to be argued about or accepted by the courts rather than merely information which may help the police to form an opinion about further investigation. If the Minister insists that amendment (c) is not necessary, I cannot see how he can argue that amendment (d) is not acceptable. If he says that amendment (d) is not acceptable, I should have thought that he could hardly argue that amendment (c) was not necessary.
Amendment (e) sets out a definition of what material can actually he produced. Finding evidence will obviously be difficult. The major case history is Ghani v. Jones, in which Lord Denning laid down a set of conditions. It would be reasonable to put those conditions in the Bill. Amendment (e) sets out the definition that Lord Denning used in that case.
My hon Friend the Member for York has come to my rescue. I think it was in the judgment. Although I concede that there could be arguments about the fruit or the proceeds, if this was good enough for Lord Denning it is certainly good enough for me. [f the Government were willing to accept the amendment, no doubt they would want to redraft it.
Amendment (f) proposes to insert:
An application under this section shall indicate how the evidence in question is considered to relate to the purposes of the inquiry for which it is sought.
It is important that the police should put forward an explanation of why they want to make a search. That is not clear in the Bill. My amendment seeks to put back a subsection which was originally in the Bill. There was no argument about this in Standing Committee. Therefore, the Government should explain why they think it unnecessary to include this subsection. The Government have modified the Bill to meet objections. Why should they remove a subsection about which there does not appear to have been any objection?
In regard to amendment (g), the police first have to find out whether a person is prepared to allow a search to take place. If the individual refuses, surely it is reasonable for the refusal to be tested. What is the point of going to a magistrate or to a circuit judge, as I propose, and saying, "We went to Mr. X and he said we could not search," when the individual is not in a position to show why he did not want the search to go on?
My original premise was that the police should have the co-operation of individuals. If an individual does not want to co-operate, there should be a test of whether it is reasonable or unreasonable to grant a warrant and the individual should be in a position to say why he refused permission. If he has to do that he will consider whether it was an off-the-cuff answer that he had not thought about clearly and, with a little more consideration, might grant permission and save the whole of this procedure. If individuals have a genuine reason, they should he prepared to put it forward and argue the case. If it is reasonable for the professional — journalists, professional advisers and others—to make representations against a search for a document or the entering of premises, why is it not reasonable for the individual?
I am not suggesting that the individual would want to do it on many occasions, but it is a reasonable safeguard and the Government should be prepared to accept amendment (g). The next question is whether the individual should have the right of appeal against a decision that has been made, and there is a strong argument for accepting that.
I apologise for the time that I am taking, but it is one of the problems of taking a long list of amendments that have been selected for discussion together. It would have been better for the Bill to have been referred back to the Standing Committee so that the amendments could be taken individually. No doubt many of my hon. Friends will want to go over the same ground and the Minister will be expected to reply fully. This is not the most helpful way to develop arguments.
There would have been advantages in including a public interest test as set out in amendment (i). If we remove an individual's right to privacy, it is important that there should be such a test. It has been argued that the difficulty of such a test is that it can be exercised only by Ministers accountable to Parliament, but that is not the only group. Clearly there could have been a role for justices of the peace or circuit judges. I hope that the Government will consider this matter further and that the Minister will answer some of the points that I have made on amendments (a) to (i).
I agree with the hon. Member for Stockport, North (Mr. Bennett) that public confidence in the police is vital. I agree also that there have been lapses in police behaviour which have resulted in less confidence in the police. How do we in the House create or restore confidence in the police? The one thing that undermines confidence in the police is a rise in serious crime that is not being properly dealt with, whether because of inadequate sentences, inadequate procedure in the courts, or inadequate policing. In so far as the measures we are discussing are thought to be ways of reducing crime—I think that they are—they will do more than anything to restore public confidence in the police.
New clause 2 helps to restore or create public confidence, but the amendments so laboriously and meticulously prepared by the hon. Gentleman do not. Obviously, one can make a long speech about this difficult and important subject, but I do not propose to do so. I want to confine my remarks to one or two generalities and leave it to the Minister to deal death blows to the hon. Gentleman's amendments if necessary.
To some extent new clause 2 restores confidence in the police because although we all believe that excessive powers should not be given to the police, sufficient powers should be given. It is clear that although the power to issue a search warrant appears in some 50 statutes it is an insufficient power if it does not enable the police to search for evidence of murder, rape, fraud or corruption. Therefore, the extension of the power of a search warrant is important in extending the capability of the police and, therefore, in restoring an element of public confidence in the police's ability to deal with serious offences.
The merit of new clause 2 is that it clarifies and codifies for all to see. Where now the law enables searches to take place, it sometimes happens that they take place outside the law because it is vague and uncertain. Those who wish to resist a search do not know whether they are within their rights to do so and some police officers wanting to search do not know whether they are within their rights to do so. That is unsatisfactory and the sooner that that aspect of the law is clearly set out—I would codify the whole of our criminal law if it were possible but it would take time—the better it will be. If the police are doing wrong it is because the law is uncertain about whether they are getting away with it. The new clause clearly defines the limits of police powers and makes them less likely to offend because it will be more obvious to everyone if they do. Therefore, it is a protection, not a destroyer, of civil liberties and it is a confidence-building measure.
I welcome the changes on confidentiality which previously caused unnecessary alarm and undermined confidence. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) asked why the Minister had been so confident in making those confidentiality proposals when he was now reversing them with equal confidence. The answer is that, in practice, confidential notes and records—those which everyone was worrying about— almost certainly would not and could not be admissible in evidence except to refresh the memory of a witness.
That may be rubbish but it is the law as the hon. Gentleman ought to know, because he sits as a Recorder. Even then, they can be used only if they are contemporaneous.
We have agreed—and I think happily agreed—that those factors should be dropped. There does not seem to be a great deal of point, therefore, in going over the old ground, because I think that what has been done is a substantial contribution to the confidence-building factors in these clauses.
I hope that the hon. Member for Stockport, North will forgive me if I come to grips with one common point in some of his amendments and explain why I think that they would reduce confidence, not increase it. Some of them are really a plea for more substantial legal proceedings than are proposed in new clause 2—for example, before a circuit judge instead of a justice of the peace. What, in reality, does that invoke? It invokes lawyers. Many is the time that I have stood here and been laughed at by Opposition Members because, as a lawyer, what I seem to be trying to do is make more work for lawyers. That is a particularly unfair and cruel attack to make upon me because practically everything that I have ever said in this place has been designed to reduce the work of lawyers. Nevertheless, it is clear that if we deepen, extend and complicate the proceedings, we shall require more solicitors, more barristers and more circuit judges.
There is one element which, perhaps more than any other but certainly substantially, reduces people's confidence in the system of justice. It is the delay in the legal process; the time people have to wait before they go for trial, which means that witnesses may forget their evidence, or may die, and that — as the hon. Member for Ormskirk (Mr. Kilroy-Silk) is quite rightly for ever saying—people languish in prison awaiting trial. Justice denied — that is what delay is. What would be the practical effect of more lawyers, more solicitors, more barristers, more circuit judges? One effect of having more circuit judges would be more courts, more procedures, more processes, and a factor which seriously undermines public confidence in the operation of the law would be aggravated, not diminished.
There are three possibilities, are there not? The first is to give the police a general power of search; the second is to put a brake on that general power by making it subject to an independent authority—the justice of the peace; and the third is to go through the full criminal process of lawyers and judges. Is it not sensible, since the first is unthinkable and the third undesirable, to strike a balance by retaining the justice of the peace system as a practicable, reasonably sensible, reasonably democratic check on the excesses of the police? If so, many of the amendments suggested by the hon. Member for Stockport, North are less desirable.
There is one matter—this may be just my stupidity—that undermines my confidence, at any rate at present, in new clause 2. I am not quite sure that I understand what subsection 1(d) means with relation to new clauses 3 and 4. They have been ruled outside the ambit of our discussion and I only mention this because, until I am completely confident that I understand the meaning of new clause 2, obviously I have less confidence than I would wish to have.
There has been a great deal of hoo-ha — perhaps rightly: I was never in favour of those confidentiality clauses — about the interference with confidentiality. Now, however, that the principle of confidentiality has been conceded, now that what we are talking about is the protection of the rights of the individual consistent with the detection of crime and the maintenance of public confidence in the system, now that we are talking about new clause 2, which is precisely what is recommended by the Royal Commission, surely we should accept it and welcome it, not least because it does the very thing that the hon. Member for Stockport, North really wants—that is, increase public confidence in the behaviour and the work of the police.
As we all know, the hon. and learned Member for Burton (Mr. Lawrence) moves in exalted and refined circles. If he really believes, as he says, that when the police abuse their powers it is only because they are not clear about what their powers are, I invite him to descend from Olympus into the foothills, do a few walkabouts somewhere between Aldgate Pump and Stratford market and talk to a few of the citizens. He will be rapidly disabused of the hallucination from which he suffers.
I desire to refer to only two passages in new clause 2. The first is:
Where, on an application made by a constable, a justice of the peace is satisfied that there are reasonable grounds",
and so on. How does the justice of the peace satisfy himself? He is hearing one voice. He is hearing a constable who comes along and applies for a warrant. He has no other source of information. He has only two options open to him: either to believe the chap who is talking to him, or not to believe him. He has no way of checking what is said to him. He has no way of adducing any other evidence. He has no way of getting either corroboration of or challenge to what is being said to him by the chap on the other side of the table. He has either to believe him or not to believe him and of course he has no special grounds for not believing him.
I can just imagine the sort of conversation that goes on, and I use the text of new clause 2 to help me to envisage it. Justice of the peace to constable applying for warrant, "Are you satisfied that a serious arrestable offence has been committed?" "Yes, Sir."
"Constable, are you satisfied that relevant evidence is in the premises you want to search?" "Yes, Sir."
"Are you satisfied that it will be of substantial value, whether by itself or together with other evidence, to the investigation in connection with which you are making this application?"
What is he expected to say? No? He says "Yes, Sir."
"Are you satisfied that it is not excluded material or special procedure material?"
As the constable does not know what that means, he says, "Yes, Sir."
Finally, "Constable, are you satisfied that any of the conditions specified in subsection (2) of new clause 2 of the Police and Criminal Evidence Bill apply?"
As the constable does not know what that means, he again says, "Yes, Sir", and before he has got it out the justice of the peace has reached for the rubber stamp and used it.
Will the Minister be good enough to tell us whether he has any information on that, and whether his Department bothers to collect information? What percentage of applications made for search warrants are refused? Is it about 1 per cent.? Is it about 2 per cent.? Is it about 3 per cent.? I shall not go beyond that, because I very much doubt whether the figure is anywhere near 3 per cent. If the Minister tells us that his Department does not collect such information, I suspect that it is because it knows that it is not worth collecting, as the incidence of refusals is so low as to produce a figure that is not statistically significant.
My hon. Friend the Member for Stockport, North (Mr. Bennett) made a great contribution to our proceedings in Committee and he has added to it today. He always translates what is in the Bill into reality and what really happens on the ground. He did it over and over again in Committee, as he has done today. That was a valuable contribution to our proceedings. That is why, of all the valuable members of the Committee, he was the most valuable. Much of the Bill is far removed from reality. It bears all the hallmarks of having been drafted by a double first in Greek prosody and the history of the Aztecs. It is far away from what happens in our cities, especially in our inner cities.
I shall tell the House what happens in east London a lot. My example will show where the hon. and learned Member for Burton was wrong in at least one of his assumptions. Officers knock on people's doors and say, "Please let us in. We want to search your place." Many of the people on whose doors they knock do not even know that there is such a thing as a search warrant and that an officer should have one. They let the officer in. However, some people know that and ask, "Do you have a warrant?" The chap will say, "No, but if you insist on it I shall leave two uniformed men outside your front door for all your neighbours to talk about while I go off and get a warrant." He does not say, "while I go off and apply for a warrant"; he says, "while I go off and get a warrant." It never occurs to him that his application form has the least chance of being refused. He knows that it does not have the least chance of being refused.
I shall tell the Committee another reality of life. From where do the police get the hunch that they should go and search a particular place because there might be stolen goods in it? Nine times out of 10 it is from a criminal who grasses or from a police informer. Why does the criminal give the police that information? Sometimes it is for money, but more often it is to do down somebody else. The most inaccurate proverb in the whole of the English language is that there is honour among thieves. There is no honour among thieves. There are all sorts of little gang feuds, with people taking it out on each other in many different ways. If I had a dislike for the hon. and learned Member for Burton, which is exactly the opposite of my feelings, I could say, "That fellow has some cannabis at his place." Along would come some bods who would kick in his front door looking for cannabis. That is a nice way of scoring off someone whom one does not like, and it happens not infrequently.
Why should we have this purely one-sided presentation? Why do we not ask the chap whose house it is proposed to search, sometimes with the use of force, as the new clause provides, what he thinks about it? It might save a lot of trouble. He might say, while he was sitting with the police officer applying to the justice of the peace for the warrant, "I know what you are after. You are after some stuff that my lodger, Joe Snooks, had, but he skipped last night. It is no good getting a warrant and coming today. He is not there. You will not find what you are looking for."
Alternatively, he might establish that the application is based on mistaken identity. There might be a chap with the same name or of the same appearance. After a heist from a shop, the witness might say, "He was a tall fellow, about 6ft, with red hair. I think he lives somewhere up Cephas avenue." Someone else may say, "There is a tall fellow with red hair who lives at the far end of Cephas avenue. Perhaps it is him." The police will say, "Let's go round and search his place." Perhaps the tall chap with red hair can establish that he could not possibly have done the heist from the shop and so could not have stolen goods on his premises because at the time he was serving with the police in Surrey.
Why are the Government resisting the right of a person whose premises are to be searched to challenge the application? People who are guilty will not do so because they know that they will get themselves further into trouble if they try. Only people who are innocent or who genuinely believe themselves to be innocent will do so. I appreciate that those two things are not precisely the same. Would it not be of benefit to the justice of the peace who is hearing the application if he were able to hear two opinions instead of one?
I have asked my questions and I look forward to the Minister's reply.
The other phrase to which I propose to refer is in line 10, which states that
he may issue a warrant authorising a constable to enter and search the premises, using reasonable force if necessary.
That contains the word "reasonable", which is one of those dreadful, indefinable terms similar to "serious", "grave", and "unreasonable". Those highly subjective terms mean what any individual wants them to mean. What is reasonable to me may not be reasonable to any other hon. Member, and vice versa. Who is the judge of what is "reasonable force"? It could be nobody other than the bod who is using the force. Is he the best judge? There is no one else to make the judgment.
The test is not in the mind of the person who does the thing. It arises afterwards in considering whether, in all the circumstances, what is done is sensible. The hon. Gentleman may think that he disagrees with others over the definition of the word "reasonable", but common sense is common to the hon. Gentleman and everybody else in the House.
That is absolutely great. It is not a matter of what is reasonable. The policeman can do anything that he likes, and only afterwards will it be judged whether it was reasonable. That is a great consolation to those in Railton road who have their doors kicked in, their china cabinets smashed and their television sets booted. It is a great consolation to them to know that—
I shall give way in a minute. I am very old-fashioned and I do not like to finish on a preposition. It is a great consolation to the people in Railton road who have had all that done to them to know that afterwards, when it has all happened, someone may say to the officer concerned, "Naughty, naughty, you were unreasonable."
Does the hon. Gentleman agree that no one, not even the officers kicking in the door and smashing the cabinets in the illustrations that he chose, would consider that to be reasonable? The remedy afterwards is when the unreasonableness of it is confirmed and damages should be awarded.
The proof of the pudding is in the eating. The law as it stands requires that officers shall use only such force as is reasonable, so the officers who did that must have thought that what they were doing was reasonable. I am sure that the hon. Gentleman is not suggesting that they knew that they were wrong. They were misjudging, were they not, what they thought was reasonable?
It might be said that they were given guidance from superior officers. I do not want to anticipate a later debate, but there will be another new clause on Report that will remove any such safeguard, because any superior officer can delegate to any inferior officer his functions in respect of the Bill, so guidance may come from a low level officer.
On the interpretation of the word "force", surely it is not a matter of semantics to say that there is no such thing as reasonable force, because force itself is not divisible, and cannot be subject to any dilution. Force in these circumstances was force, because the people entering must either have removed the obstacle—that is the door—or shifted the people who were resisting the entry. Therefore, force is force and cannot be divisible.
I do not often disagree with my hon. Friend, but I disagree with him about this, because he is not being reasonably practical. I can quote an example of what I mean by the difference between reasonable and unreasonable force; an example that I gave the Committee. A flat in my constituency was searched on the suspicion that there were some explosives there. One of these grasses had given a tip-off that hidden in a cupboard were explosives that were to be used for a highly illegal purpose, and the police officers went along. I should have thought that it was reasonable to go along, and if the cupboard was locked to kick it in. This is where I disagree with my hon. Friend the Member for Tottenham (Mr. Atkinson). However, it was unreasonable of the officers to go in and without even trying the handle of the cupboard to see whether it was locked to kick it in anyway. That was unreasonable force, because there was no reason for doing it.
I bet that the Minister of State felt very sick about the report on the Railton road incident. With all respect and in all friendship, I must point out to the hon. and learned Gentleman that the report of the Police Complaints Board, and all that has come out of it, made a complete nonsense of much of what he was saying during many of our debates in Committee — I am sure in good faith, I am not accusing him of deception—about police behaviour. It was a pity that the report was suppressed for a few months. Had we had it at the beginning of our Committee proceedings, much of what was said would not have been said, much time and effort would have been saved and the Minister would have not been put in the embarrassing position, in which I believe he is, of knowing that many of his fine words in Committee were reduced to ashes by the publication of this report.
I do not like to entertain unfair suspicions. I hope that it is not the case that the report was kept under wraps for six months or so—no reason has yet been given—to get the Bill through the Committee stage before it was published.
I listened the other day to an interview given on the radio by Assistant Commissioner Geoffrey Dear. I thought that it was one of the best, most frank, open, straightforward and decent interviews that I had heard given by any police officer or any other official of his rank of seniority in any other service. However, there was one bit that left me breathless. Apparently, a number of police officers were involved in this thuggery. It was uniformed thuggery, and mindless violence, carried out by police officers. That was unquestionable, and Assistant Commissioner Dear admitted that. However, only two officers had been identified, perhaps because they confessed and the others had lied when they were asked about it and did not confess.
Mr. Dear was asked what had happened to these two chaps and he said that they had been spoken to. When he was asked whether that was all, and why, as he admitted that what they had done was indefensible, they had not suffered a worse penalty than being spoken to, his almost incredible answer was "Well, those were the only two who were discovered. As there were others who had got away with not being discovered, we think that it is not right to punish those two."
I agree with the hon. and learned Member for Burton, who said that abuses by the police destroy public confidence in them. What is even worse is abuses by the police condoned by the police, and that destroys confidence even more. Here was a flagrant abuse by the police, who were supposed to have exercised a reasonable amount of force in searching. However, they get away with it.
I shall try to experiment with the law. I do not know anything about the law and I have to learn about it the hard way. Late tonight, at say about 3 o'clock in the morning when the Home Secretary is, against his will, imprisoned here listening to tirades from the Labour Benches, I shall nip along to his residence and do a small burglary. Tomorrow morning I shall go into court and plead guilty but say that nothing more should be done than giving me a caution or a wigging because there are many burglars in London who are never discovered. As they are not punished, I cannot be punished. Nearly all the burglars in London are never discovered, although in the provinces a reasonable proportion are discovered.
That example makes nonsense of the whole idea that the police are just people. We want to foster the idea that the people and the police are one. We want that to become more and more true. However, it makes nonsense of such a concept when policemen get away with what is agreed to be a quite horrible offence, thuggery as I called it, mindless vandalism, on the sole ground that others who had committed the same offence were not proceeded against. How can there be confidence in the police in such circumstances?
Before we accept new clause 2, I want to know from the inhabitants of the Government Front Bench what they understand by the phrase
using reasonable force if necessary".
What definition can they give? What sort of practices will there be within the police forces to establish standards and to prevent more Railton roads? Unless we get something along those lines, this new clause is buying a pig in a poke.
I shall say a few words arising out of what has already been said, mostly by the Opposition. First, I question their assumption that anything in this Bill will make the fishing expeditions that have been carried out by the police in the past more likely or more condoned by the authorities than they have been. I share the horror that has been expressed by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and the hon. Member for York (Mr. Lyon) at the way my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) chose to put his case and the examples he gave of police abuse in the past in connection with the right of search. It is not right for the police to misguide the justices to whom they make an application for a warrant about the true purpose of their entry to a house, and I am quite certain that my right hon. Friend the Home Secretary would not condone it.
The Committee has to decide whether Government new clause 2 or Opposition new clause 16 will make that more or less likely. I submit that the Government new clause will neither permit it nor condone it, and that therefore the question whether fishing expeditions will arise in the future, as in the past, is not relevant to this debate. A time may come when such expeditions should be debated, when we are considering disciplinary procedures against police officers who abuse the powers that they are given, but new clause 2 will not make it any more likely or easier for the police to abuse their powers should they choose to do so.
I much enjoyed the examples that were given by the hon. Member for Bethnal Green and Bow (Mr. Mikardo) about how the police might set about abusing their power and how they might put their case to the magistrates. All of us who have practised in criminal law know that the exchanges that the hon. Gentleman outlined can occur. Perhaps I might tell the Committee about one of my experiences some years ago, when I was defending a gentleman in the east end of London, with which the hon. Gentleman is well acquainted.
I was charged with the rather difficult task of asking the bench to acquit my client who was accused of carrying a cosh, because the hammer without an end, wrapped in material to make it easier to hold, was quite blatantly a cosh. Inadvertently, in the course of my rather stumbling defence, I referred to it as such on several occasions, so when I sat down at the end of the case I was quite convinced that the members of the bench would convict my client. When they came back after a short retirement and acquitted him I was astonished, until I turned round and saw in the public gallery 36 large gentlemen who were his friends and who were well known to the justices of the peace who were trying the case. I then understood, as the right hon. Gentleman rightly says, how one cannot always legislate to obtain perfect justice—and that can work both ways.
We have to try to give the police the powers that they need, so that they can catch the criminals. In new clause 2, the Government have set out — admirably, in my view—to achieve a balance between what it is right to allow the police to do, provided they abide by the letter of the law, and what it is necessary to do to preserve the liberty of the individual against undue police harassment.
I ask the Committee to look at the two new clauses — Nos. 2 and 16—and see whether anything that the right hon. Member for Sparkbrook has claimed for the latter clause is there. I have scanned it with care, and I find no safeguards in new clause 16 that are not already in new clause 2 to prevent the fishing expeditions that we all hold in abhorrence. The only two ways in which there conceivably might be a claim for new clause 16 arise, first, in subsection (7) which sets out, in certain very limited applications, the right of the person against whom the warrant is sought to apply to a court and challenge that application. However, that arises only when a person has already unreasonably refused entry to the officer. The second is in subsection (8), where a right of appeal is given against a warrant that is issued by the magistrate. I cannot see that that will have any practical effect whatever, because when the police arrive on the doorstep of the house that they wish to search there is nothing in the clause to prevent them from entering immediately and searching it — unless Labour Members can see something there that I cannot see. Indeed, if they could so prevent the search, the statement in the original clause that the warrant can be sought ex parte when
the evidence is likely to be concealed, disposed of, altered or destroyed",
if notice is given of the search, would of course become entirely irrelevant. It is vital that the police should have the right of entry without giving the person who is to be searched the opportunity of disposing of the stolen goods. Otherwise, the whole purpose of the clause is lost.
It is clear that new clause 16 falls between two stools: either it gives no additional safeguard to a person whose premises might have mistakenly or wrongly been searched; or it gives a safeguard that would be used by criminals to escape from the natural consequences of their crime by disposing of the evidence. None of us wants that.
New clause 2 takes the place of clauses 9 and 10. Much of the discussion so far has related to clause 10, although that does not come under the heading of the clauses that we are now considering, and will arise under later new clauses. Therefore, I shall not make the comments that I shall hope to make later, except to say that it seems to me extraordinary that the right hon. Member for Sparkbrook pressed so hard in Committee on clause 9 for precisely the kind of amendments that are now being put in new clause 2, yet attacks the Government for putting them in at this stage. He said in one breath that he could not see the need for new legislation because the present law was perfectly adequate, in the next breath he wondered why the Government were putting forward the new clause, and in the third breath, despite the fact that he said that the present law was perfectly adequate, he moved a new clause, which is at least as deficient—if deficient it be — as the Government's clause. So, in my view, the Opposition have put forward no case for refusing to vote with the Government on new clause 2.
My final point arises from the request of the hon. Member for Bethnal Green and Bow and other Opposition Members for a list of offences to be included in the definition of serious arrestable offences. In my view, any such list must be a serious handicap to the proper course of justice when we are trying to pursue those who have committed, to use their own words, grave offences. Perhaps I might illustrate this by taking the case of theft. The general definition of theft under the 1968 Act is extremely wide, as all right hon. and hon. Gentlemen know. It does not define the value or extent of the theft. One might be guilty of theft, an arrestable offence, if one had stolen tuppence.
I am sure that Opposition Members will agree that it would be undesirable to use new clause 2 and its powers of search for someone who was guilty of theft. At what point does theft become serious? The hon. Member for York suggested that there should be an objective test to decide what is serious. I suggest that that would be wrong and, in many cases, unjust. The subjective facts of each case must be examined before we can decide whether a case is serious.
We must ask whether theft is serious if it involves £5, £100 or £5,000. Do we really wish to legislate like that? Someone might have stolen a lot of money in circumstances which made the offence less serious. The operation of the clause would not then be appropriate. Alternatively, someone may have stolen in such a manner or in such a series of ways a small amount of money which would justify using the clause's provisions.
We are talking about the right of search, not a penalty. We are talking not about sending people to prison, fining them or punishing them, but about the police exercising their power of search to look for evidence on which a case can be brought. That is not a penalty.
Does the hon. Member really think that there is no penalty for someone who lives in a block of flats with an open balcony when a police car draws up and five coppers enter his flat, perhaps kicking in the door? Does not the reputation of the person suffer sufficiently to constitute a penalty?
Such an event would not involve a legal penalty, but in lay terms I concede that it would constitute a penalty. When I say that no penalty is involved, I mean that in legal terms we are not questioning the level of penalty or how someone should be punished. We are examining how action can be taken which is necessary to bring lawbreakers to justice.
So long as the police follow the letter of the law, no penalty would be inflicted. I agree that if excess force is used, if a search is carried out when it should not be or in a way that it should not be, that would involve a penalty. If that happens, a civil law remedy exists for assault, trespass or damage to goods.
I admire the wisdom of the hon. Member for Bethnal Green and Bow, but we must not confuse the letter of the law with what we do about the police if they break that law and exceed their powers. That is the subject of separate but immensely important discussion. We must not fail to pass necessary laws on the ground that some policemen will break them. That would be failing in our duty to protect the majority of people who need the vast majority of honest policemen to exercise proper powers in their defence. I hope that the Committee will back the Government on new clause 2 and its attached provisions so that we can provide the public with that safeguard.
The current issue of Police Review, issued on 29 April, in an editorial entitled "Poor Old Bill" states:
If the Police and Criminal Evidence Bill were a ship, most of the crew would have already taken their places in the lifeboats. As it was launched with light showing through every second plank, its builders at the Home Office may never have intended it to float.
There is, perhaps, substance in the suspicion that some hon. Members on the Government Benches who apparently supported the Bill, having been shown some of its disadvantages, are not now supporting it.
The Police Review is a cautious and respectable journal. It reminds its readers that last November it commented:
Any Act based on this Bill will be the source of greater dispute than the faults it seeks to remedy".
That is our major argument. Whatever merits the Bill may have in many respects, the consequences of its enactment will be far more serious in terms of the relationship between the police and the public and the increase in the incidence of crime than the problems that the Government intend to eliminate.
The controversy in which the Government have been involved and the way that they constantly have had to backtrack on parts of the Bill does not give us confidence that the Government are clear about their objectives or that they have considered them clearly. We are not confident that the Government are certain about the means by which they can achieve their objectives or that they have any certainty about the likely consequences of the Bill for the police and the public. It is extraordinary that the Government ever seriously considered giving the police the power to search for confidential documents in the premises, homes or work places of doctors, lawyers, social workers, priests, journalists or probation officers.
The legitimate outcry from such individuals and their professional organisations has led the Government to attempt to delete clause 9 and to replace it with new clause 2. Even though the Government have clearly given way to the weight of authoritative representation on behalf of various professional organisations, the new clause is highly objectionable. The power to search the homes and work places of innocent persons for evidence that may be of use in a criminal case is unnecessary and wrong. It is certainly wrong to give a constable the power to search on a warrant from a single magistrate when he suspects that there may be evidence of a "serious arrestable offence" in the home of an innocent person.
The whole burden and efficacy of the new clause rests upon the definition of "serious arrestable offence." Earlier in our consideration of the Bill that definition was derided by the Criminal Bar Association. The definition in clause 74, tightened up though it is, is still a circular definition. A "serious arrestable offence" is that which the officer making an application for a warrant determines it to be. I concede that an objective qualification becomes necessary if the officer is subjected to a judicial review of his decision and his actions but police officers in relation to applications and magistrates in relation to the granting of those applications are rarely, if ever, properly subjected to judicial review. Although clause 74 states that the officer must have "reason to consider", which suggests that there must be objective factors that he can call in evidence, that reason and the evidence for it will seldom, if ever, be tested in the courts.
The hon. and learned Gentleman has not been here for the debate so I shall not give way to him.
If we are to have a clause like this and the powers that go with it, hinging upon the concept of "serious arrestable offence" it would be practical to issue a list of offences, as outlined in our amendment No. 252. It would be even better to accept amendment (b) to new clause 2 tabled by my hon. Friend the Member for Stockport, North (Mr. Bennett) and hinge the clause on the word "grave' instead of "serious".
Again, I take exception to the application being heard and endorsed by a single magistrate. The Minister of State himself acknowledged in the Standing Committee that a single magistrate is not sufficiently trustworthy to give power to extend detention for 24 hours. In refusing such power, he said that everyone knew that the police had favourite magistrates who would quickly endorse whatever the police requested. He acknowledged that in the real world, about which we are supposed to be talking, there are magistrates who for one reason or another were susceptible to requests and to pressure from individual policemen and who in many cases merely rubber stamped the applications that came before them.
If the Minister found it inappropriate for a single magistrate to give power to extend detention in a police station for more than 24 hours, how much more highly inappropriate it would be for such a magistrate to be able to grant powers to search the premises, homes or workplaces of people who are not alleged, charged or suspected of having committed an offence — serious, grave or otherwise—but who may have in their home or workplace material relating to the commission of a serious arrestable offence by a third party.
Where important matters of individual privacy and civil liberties are at stake, it is important not to allow a single magistrate to make the decision. That view was expressed not only by the Minister of State but by the Police Complaints Board, which pointed out in its recent report that warrants were too easily obtained when the decision was made by a single magistrate. Again, therefore, it seems preferable to accept amendment (a) in the name of my hon. Friend the Member for Stockport, North which would replace the single magistrate by a circuit judge.
I also dislike intensely those parts of new clause 2, and the contingent new clauses that we are not permitted to discuss at this point, which in effect implement the Government's concessions to the various professional associations. I do not like the idea of setting up special categories of individuals who will be exempt from the provisions of the legislation. The Government's new clauses contain no safeguards for the ordinary citizen who is not a doctor, a lawyer, a journalist, a priest, a social worker, a probation officer or whatever. Ordinary people can have their houses ransacked and their doors kicked in, as happened in Railton road and elsewhere. As my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) said, these things not only can but do happen. Mistakes are made, not only in Railton road and, more recently, in the west midlands, but in every other force area, not to mention greater and graver occurrences such as the shooting of Stephen Waldorf rather than David Martin or, indeed, of either. Such mistakes are not rare. They are everyday occurrences.
It is simply rare that they receive the prominence in the media that some of them have received recently. They happen every day in every police area. None of the protection for the professional associations under new clause 3 is given to the ordinary citizen.
Unlike the hon. Member for Nantwich (Sir N. Bonsor), we believe that it is unnecessary to give the police additional powers and that if such powers are given they will be abused. The history of the police and their relations with the public in this and in every other sector shows that every time they are given increased powers in relation to individual citizens the powers are not just used but frequently abused.
Had the hon. Gentleman been present earlier in the Committee stage, he would have noted that every Opposition speech and indeed every Conservative speech in favour of the exemptions now being made stressed that the protection is aimed not at the doctor, the priest or the lawyer but at those who need to confide in such people with security.
I trust that the hon. Gentleman was referring to the proceedings in Standing Committee and not to the earlier debates today when he referred to my not being present. I accept the point that he makes, but he will acknowledge that, as my hon. Friend the Member for Bethnal Green and Bow said, whether we are protecting doctors, lawyers or journalists or those who confide in them the person who pays the penalty is the person whose home or workplace is searched. That is where the real degradation, humiliation and destruction of property occurs, and the protection afforded to the professionals does not apply to the ordinary citizen. We should not be introducing special categories and special privileges of that kind.
In taking that view, I am in remarkable company. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said earlier that every national daily newspaper bar the Daily Telegraph was against the Bill. My right hon. Friend was uncharacteristically mistaken, as the Daily Telegraph is against it as well, and especially against the setting up of special categories. Its editorial of 22 April states:
There is something, in principle, unsatisfactory about general laws which except special groups of people from their provisions.
It continues later in the article:
One's instinct is that a Bill which has to give special treatment to so many people is not rightly conceived in the first place, or else that the safeguards given to some should be extended to all.
That is precisely my point about new clause 2 and the clauses that depend upon it.
The major question here is what evidence, if any, can be found for the need for more draconian powers. No one of any substance outside the House has been prepared to speak in favour of increased powers for the police to search the premises of innocent citizens. There has certainly been no vociferous police demand. Whether it be Association of Chief Police Officers, the Police Federation or the Police Superintendents' Association, they seem to have been remarkably unwilling publicly to support and to justify the proposal, and remarkably inhibited in defending the powers that the Government seek.
What serious problems have arisen to give rise to a demand from the police or whomever for such powers? In what specific cases have the police experienced obstacles? What crimes have gone undetected or criminals unconvicted due the absence of these powers? The Minister may have provided such evidence in Standing Committee but he has not publicly given it to those debating the matter in other forums and he certainly did not provide it in the very limited defence that he gave in moving his proposals today. The Home Secretary himself, in a recent incursion into print with an article in the Daily Express, gave a point by point defence of the controversial elements of the Bill—the powers to stop and search, to set up road blocks, and so on—but he made no mention of the powers to search premises for confidential documents or information. It is remarkable that, on his own initiative, he wrote an article for a newspaper defending the controversial aspects of the Bill, yet without making any reference to these clauses. No doubt he finds them, as they clearly are, indefensible.
Whether or not we can find anyone who can speak clearly and cogently in favour of the clauses, there is no doubt that numerous organisations and inviduals are bitterly opposed to them. No fewer than 170 organisations have made representations to the Home Secretary. In the light of that, and in the light of our debates, if the Government are sincere in wanting to get the matter right —rather than simply defending a dogma—they should accept the new clauses tabled by my right hon. and hon. Friends and many of the amendments put forward by my hon. Friend the Member for Stockport, North. That certainly applies to amendments (a), (b), (f) and (i). In particular, amendment (i) imposes the test of whether the public good is served by either the issuing of a warrant or the protection of an individual. Such a test, injected into the legislation, would be a highly desirable innovation. It would require a justice or circuit judge to think about, and openly debate, whether the public good is served by giving the police powers, or whether it is served by protecting individual liberty. Of course, the public good involves the relationship that exists and must be sustained and encouraged between the police and the public.
As many hon. Members on both sides of the House have said, we all want an effective police force. We all want the police to have the powers necessary for it properly and successfully to carry out its duties. We want it to be able to detect crime, catch criminals and produce the evidence necessary to secure convictions in court. But the Opposition also want a police force that has the respect, confidence, good will and co-operation of the public. Apparently, we have always had such a police force. But if that confidence ever existed, it is now seriously in jeopardy. Such instances as those in Toxteth, Brixton, Moss Side and in parts of my constituency prove that. There was thuggery and vandalism by some members of the Metropolitan force in Railton road last year. Thugs were present at the annual conference of the Police Federation—the Prime Minister used the word "thugs" —when they heckled the Home Secretary and made it impossible for him to speak at the conference. Yet we are actually asking such thugs to be the custodians of our cherished civil liberties.
If we are to protect the confidence that the public are supposed to have in our police force, and if we are to sustain that, we must be careful to ensure that police officers only have the powers necessary for the proper performance of their duties, and that those powers are not abused.
I find it extraordinary that the hon. Member for Bury St. Edmunds (Mr. Griffiths) can say that the need for these powers arises because the police do not have them but, in practice, use and abuse them—and, therefore, that we need to bring the law into line with practice. Such a statement is extraordinary and indefensible—albeit that similar remarks were implicit in the Home Secretary's article in the Daily Express.
Whatever we decide, it is clearly important that we have an effective and successful police force—and that depends on the consent, co-operation and confidence of the public. We must do nothing that will in any way erode or destroy that confidence. It is my fear that by these proposals, and by many other measures in the Bill, we shall embark not upon measures to reduce the level of criminality and sustain law and order, but upon measures that will create a greater distance between the public and the police, to the detriment of both and to the benefit of none.
When the Bill first appeared on the scene and some voices around the country were raised in protest against it—the concern was nationwide—I was asked by a journalist in my constituency what I thought about the Bill and whether I was concerned about some of the protests from the Church, the medical profession and journalists. I told him that the Bill was necessary to give greater hope to the police in their fight against crime. However, I said to him, "You can rest assured that, where the liberty of the subject is concerned, it will be defended to the last in the House of Commons." I am convinced that that will always be so, and we have seen evidence of it in the debate today.
It is not a waste of time to spend a long time discussing this issue. It is not a waste of time to listen to the views of individual hon. Members, however emotively, passionately, subjectively and strongly expressed—about the giving of additional powers that might be harmful to the relationship between the police and the public and might put in jeopardy, by however small a part, the liberty of the individual, in the hope that we might gain some advantage in the fight against crime.
I did not serve on the Standing Committee, but I have been impressed by the serious voices raised this afternoon, on both sides of the House, expressing either concern about or welcome for the Bill. As we have proceeded today, some matters have been clarified that needed a great deal of clarification for those of us who are not lawyers —for example, the interpretation of words. One of the best aspects of the House is that we are not all lawyers. I do not say that in any derogatory sense about hon. and learned Members.
By not all being lawyers, we can get down to the street level referred to by the hon. Member for Bethnal Green and Bow (Mr. Mikardo). It is important that we pause and ask just what, for example, "reasonable" means. We all know that lawyers have debated in courts over the years the interpretation of that word and have no doubt earned great fees for doing so. Be that as it may, it is important that we try to understand the meaning of words in a clause to which we give our assent.
The new clause being offered by the Government is very much better than the original clause 9. As a non-lawyer, I felt that the original clause could have been misinterpreted, perhaps to the detriment of the freedom of the individual. The police would not want such an advantage. Above all, they want to succeed without infringing or allowing Parliament to infringe the liberty of the individual. However, there must be some give and take —even some give of liberty. That is what is making it so difficult for the House to interpret both sides of the coin in such a difficult matter.
I have looked carefully at new clause 16 tabled by the Opposition as an alternative to new clause 2. Like my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths), I thought that it had a great deal to offer. During an intervention I queried with the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) whether his word "grave" was better than "a serious arrestable offence." I have listened to the debate and I am prepared to accept that "a serious arrestable offence" is sufficiently strong for the magistrate to consider when he receives an application for a warrant to search for evidence. We should not make the definition of the condition too difficult and put "grave" in place of "a serious arrestable offence."
I have already commented on the word "reasonable". I understand what the hon. Member for Bethnal Green and Bow is saying. I am a little worried that "reasonable force" can be used. It is a latitude that can be given. When the warrant is issued, the police officer will know that he can use reasonable force to gain entry into the house where, as we are reminded, an innocent person may be sitting on some essential evidence. I paused a little when I saw the words "reasonable force". The Bill enables society, rather than the police, to make a decision. The only decision that the police have to make, as I understand it, is that they want to gain access to some premises because they believe that there is some pertinent evidence on those premises.
If it is practicable, the police have to ask the owner of the premises whether they may have access. It might not be practicable. The request for entry might mean a refusal and the destruction of the evidence. The police must be given the opportunity to make such decisions, because that is how we must fight the crime war. The police must be given that latitude.
I am worried that the police might use reasonable force where it is not necessary. We cannot define "reasonable force". We have to trust the police, the senior officers, and the chief constables. We must trust the Commissioner of the Metropolitan police to ensure that senior officers and the force under his command appreciate that how they act under the law — the Bill will give them new strength under the law — will determine how they are seen in relation to society. Their behaviour must be reasonable. I believe that we can trust the police in this regard. I trust them, and have the highest regard for them. The more strength that we can give them, not just in the law that we allow to proceed but by what we say in the House, the better it will be for them.
The Bill needs a great deal of explanation to satisfy those of us who feel some anxiety about it. I have been here throughout the debate because I have received a great deal of correspondence, as my hon. and learned Friend the Minister knows. I was not in Committee with him, but I compliment him on the way in which he has treated hon. Members who were not on the Committee. He has kept them informed about the intentions of the Government and the Home Office. I have received a letter of explanation from him today. It includes notes on the Bill, which he has let me have because of the correspondence that I have received from my constituents.
I am sure that my hon. and learned Friend will not mind if I quote from the letter. It is quotable, because it is to be sent to my constituents. The letter runs to seven pages, which illustrates that the Bill is complex and needs a great deal of explanation. What is contained in the clauses is one thing, but the explanation behind them is another. I shall quote from paragraph 7:
When applying for a warrant the police will have to satisfy the magistrate that a serious arrestable offence has been committed"—
the next part is emphasized—
(and it is the magistrate who will judge whether the offence is serious, not the police) and that material evidence of that offence is to be found on the premises concerned. Before issuing a warrant the magistrate would have in addition to be satisfied that it was not practicable for the police to seek access to the evidence from the occupier of the premises concerned, that the occupier of the premises had unreasonably refused such access or that the evidence would disappear if the police tried to obtain it without a warrant.
Those words are not legal; they are words of explanation. In some ways it is better to have that than the legal way in which the Bill is written. I understand that explanation. From that explanation, I do not believe that the liberty of the subject is being infringed. The Government have recognised the complaints that have been made and have done much to protect the liberty of the subject.
My hon. and learned Friend's explanation continued:
There is therefore no question of warrants being lightly issued to enable the police to search the homes of innocent persons who were quite unwittingly in possession of evidence of a serious crime.
I hope that such explanations will be available to magistrates, circuit judges and the legal profession when the Bill becomes law. Such explanations are vital for the interpretation of words in the Bill.
Towards the end of new clause 2, "relevant evidence" is another phrase that has disturbed me. The clause contains an explanation of "relevant evidence". It states:
In this Act 'relevant evidence,' in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.
One cannot complain about that. I feel that a simple explanation of that type would be valuable in an earlier part of the clause.
I have some sympathy for amendment (e) tabled by the hon. Member for Stockport, North (Mr. Bennett), which seeks to add an explanation of "relevant evidence". His explanation seems to come from none other than that learned and distinguished judge Lord Denning. I notice that the explanation is also included in new clause 16 tabled by the Opposition.
I believe that new clause 2 safeguards the liberty of the subject and provides additional help to the police to seek evidence that is vital to obtain convictions, but I believe that the Bill requires extra explanation. I believe that the explanation of "relevant evidence" would have been a valuable addition to new clause 2. Perhaps it is now too late to ask my hon. and learned Friend to do more than comment on my observation and to tell me that the words
anything that would be admissible in evidence at a trial for the offence
are sufficient and that the Bill will be accompanied in due course by an explanation of what that means. I should have thought that an explanation of "relevant evidence" could be provided in the clause.
I agree with my hon. Friend the Member for Stockport, North (Mr. Bennett). Warrants are issued far too easily. It seems that warrants for forced entry are given under all circumstances whether or not guns are to be carried or not. I am worried that what has been described as a "trigger and stamp happy" state of affairs applies today. No expert has said what proportion of warrant applications is refused. I was interested to hear my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) define what he thought was the rejected proportion. I have met three deputations in my constituency recently, and each was of the opinion that warrants were issued far too easily.
New clauses 2 and 16 have no accountability written into them. Democracy is non-existent when there is no accountability for such practices. It is possible to argue that some form of accountability exists in the complaints procedure, but that operates on only a few occasions. If an innocent person has his property damaged in the process of a forced entry, he can seek accountability or damages only through the courts, and that is seldom successful. A positive statement about accountability is missing from the clause.
My comments apply equally to "reasonable force". If it is unreasonable for a person to refuse the police entry, the opposite must also apply. Opposition Members have spelt out the meaning of "unreasonably refused". They do not actually say that there is no such thing as "reasonable force", but they argue that whenever there is a refusal to give entry it is "reasonable" to use force whatever the circumstances. However, if, as I claim, there is no such thing as reasonable force—it is either force or nothing—the argument about reasonableness is rejected. The term "reasonable force" has little meaning. I accept that on occasions force is necessary. If the police force is to function at all and to enter premises, force will be used. Therefore, the word "reasonable" is superfluous. At the end of line 10, in new clause 2, the words,
he may issue a warrant authorising a constable to enter and search premises, using force if necessary
should appear. That is all that is needed if we are to afford the individual some protection against force being used to enter premises. That is an important point.
I wish to mention the attitude of some Conservative Members about the use of reasonable force when entering premises. I was the chairman of a sub-group of the national executive of the Labour party and members of the TUC who came together to discuss the necessity of a wealth tax which I opposed. [Interruption.] Hon. Members seem to be worried by the smoke although I do not think that there is a problem. I appreciate that I am not a passionate speaker, but I do not think that I am setting fire to the House. I think that it is steam and not smoke.
The wealth tax was rejected because it was feared that it would bring with it the necessity of the police and the Customs and Excise authorities having the right of entry, using force if necessary. If a wealth tax was introduced, a person who possessed great wealth, whether in the form of pictures, pottery or jewellery, might be subject on occasion to the authorities forcibly entering his premises. That idea was thus rejected by the members of the TUC and by the leading members of the Labour party because it would mean allowing forced entry to premises to search for property.
The interesting point is that Conservative Members object to giving a right of entry because of the necessity of using force to do so. Conservative Members have argued against the wealth tax because they object to Customs and Excise and police officers having the right, of entry, if necessary using reasonable force. Conservative Members say that there is no such thing as reasonable force in those circumstances. Therefore, they reject the argument for a wealth tax. It is interesting how the opposite arguments are now being used by Conservative Members who say that it is perfectly reasonable for police officers to have the right of entry using a reasonable amount of force. I reject that argument.
I am sorry that hon. Members do not seem to support the amendments that have been tabled by my hon. Friend the Member for Stockport, North. Most of those who have lobbied hon. Members have demanded that where permission is granted for the police to enter premises with a warrant stringent conditions must be attached to the methods used. More accountability should be written into the Bill, particularly with regard to the behaviour of police officers who enter property and perhaps cause damage in the process.
I shall be brief, because we are either being gassed or slowly sunk by fumes that are entering the Chamber. Indeed, my speech may be terminated even faster than I had intended.
I welcome the definitions in new clause 2, which reflect the sensible and realistic way in which the Committee's 41 sittings were conducted and the responsible and responsive way in which my hon. and learned Friend the Minister consistently listened to and acted on any representations made to him. The clause takes into account those representations and reflects the way in which the Bill can be operated practically and sensibly.
The five requirements under new clause 2 that have to be fulfilled in order to satisfy a justice of the peace provide a fair and reasonable safety valve, in contrast with the suggestion about going to a circuit judge. All of us have constituency experience of justices of the peace and of the way in which they carry out their functions. I should have thought that it was the general opinion of the House that they are sensible people, who know their areas and who would know, in considering an application, whether the constable's requirement was reasonable.
The hon. Member for Bethnal Green and Bow (Mr. Mikardo) is one of the most honourable and certainly the most colourful characters in the House. Tonight, he pursued a course that was somewhat akin to that which, to my enjoyment, he pursued in Committee. He tended to try to convince me that all cops were robbers and that all robbers were innocent. He took me a long way along that path, but I managed to survive. However, I recognise that by mentioning places such as Railton road, he was proving that there are exceptions to the rule that the police force —as I generally accept—is made up of honourable men and women. No doubt my right hon. Friend the Home Secretary, who has responsibility for the Metropolitan police, will take action, and I am sure that the case will not be left in the way that the hon. Member for Bethnal Green and Bow believes.
At times, the hon. Member for Bethnal Green and Bow casts doubt on the reasonableness and soundness of all those in authority, and that it is unfair. I hope that he will reflect on that. There is major concern about the crime wave. The level of crime has given rise to considerable fear in our society. However, our authority to combat that crime wave will be considerably enhanced both by the clause and by the whole Bill.
The hon. Gentleman listened to me ad nauseam in Committee and therefore he must recall that whenever I criticised the police, I always included the caveat that I was talking about a minority, and probably a small minority at that. Therefore, the hon. Gentleman's remarks about my views are manifestly wrong. I have always worried not about the chaps who abuse their powers, but about those who let them get away with it. That is the real problem.
I am delighted to have my education completed at this stage of the Bill.
New clause 2 establishes the sort of balance of power that we want to maintain between the police and the public. It will be to the benefit of the public and will fulfil their expectations about the protection that they hope to receive from the police. One feature that shines out is the recognition that the police and the public must have confidence in each other.
During our eleventh sitting I asked for a definition of "serious arrestable offence". Clause 74 provides the sort of distinctions that it is only right and proper to include in the Bill. However, there are eight requirements in the definition of a "serious arrestable offence". Perhaps my hon. and learned Friend the Minister will tell us whether all eight requirements have to be satisfied, or only one. That is not clear at present. Perhaps he will also look with some good humour at the statement that the eighth item is
(h) the prevalence of similar offences; and "vessel" includes any ship, boat raft or other apparatus constructed or adapted for floating on water.
No doubt that small misprint can be put right later.
The five requirements that have to be satisfied before a justice of the peace, and the several requirements involved in the definition of a "serious arrestable offence" take us substantially forward. As a result, new clause 2 is realistic and gives the police a workmanlike ability to act on behalf of the public. The Bill should be considered as
a whole. Often small criticisms have been put to the press weeks after the debates have taken place. However the Bill seeks to, and, I am convinced, will, protect the public.
Earlier, the hon. Member for Bury St. Edmunds (Mr. Griffiths) argued that the Bill provided a proper balance between the liberties of the subject and the powers of the police to defend the public from crime. He argued that if we were to support the police offences should be rationalised. However, the basic difficulty with the Bill concerns exactly the dispute about the balance to be held between the two.
Those who oppose the Bill most frequently argue that the balance has not been kept. It was not kept by the Royal Commission, and even some of its major defences for the citizen have been eroded or simply neglected in the Government's preparation of the Bill. The clause is about as sanctimonious as it could be in seeking to appease the Bill's vociferous critics, who have cottoned on to one area in which power is being rationalised or extended. They have completely neglected the other aspects of the Bill that represent serious intrusions into civil liberties.
The press has now deserted us, yet again on the Bill. However, its members will no doubt tomorrow write learned editorials, saying how pleased they are with the concessions made to them about journalistic information. Members of the press will not pay any attention to what is likely to happen to young blacks on the street when the stop-and-search powers are extended all over the country. They will not pay any attention to what is likely to happen to an individual who is stopped by the police and taken into custody because he has refused to give his name and address, or because the police believe that the information is in some way inadequate or inacurate. Such individuals can be arrested in circumstances in which they could not be arrested under the present law. The Government intend to interfere in all sort of ways with the liberty of those who are not journalists, doctors, priests or part of the caring professions. However, the press is happy to say that the Bill was bad but has been made a lot better because the press will be able to keep its journalistic records.
What I find so sanctimonious about the way in which the Government have tabled their amendments is that they are saying that they have been very reasonable, have listened to all the criticisms of the Bill and have conceded two major clauses. However, in some respects I do not approve of the way in which the Government have given way to some pressure groups. For example, a journalist will now be able to acquire information about a serious arrestable offence, and the police will be unable to take any action because of the exemption given under subsection (1)(d) of new clause 2.
If that is the case, information about someone acquiring explosives to carry out a bombing raid could be passed to a journalist. The Explosives Act 1923 provides power for someone to get that information. It will be impossible to do that under this Bill. I cannot pretend that that is the right balance between the liberties of the individual and police powers.
All the interested organisations are making their case for greater protection of their confidential information. That has consistently been denied to them in law until now. The Home Office has conceded such protection because they have managed to arouse a violent campaign in the run-up to the general election. If we were to do justice to the people who will be affected by the powers in the Bill, we should have listened to those who are usually voiceless in the press. We should have listened to the blacks on the street and those who are arrested and searched for drugs which they do not have at London airport. We should have considered people who are shoved into police stations and kept there for a long time—it is now to be four days. We should have considered the people who, it is suggested, might be interested in Irish terrorism. They are arrested under the Prevention of Terrorism Act 1974 but will now be arrested under this Bill for up to four days although they may not be prosecuted.
Those people are voiceless in the mass media, yet the Bill affords them no serious protection. The serious protection is given to journalists, priests and social workers.
I have had this argument with my hon. Friend before and I am happy to have it again. It is an interesting point in relation to the concessions that the Government have made.
The privilege is not that of lawyers but of their clients. The client has the privilege to protect information, even if he has divulged it to a lawyer. The press, social workers or doctors can acquire information, put it into their confidential records and then decide whether to divulge it. A doctor does not tell me, "This is your information. I cannot divulge it unless you say so." He decides whether it is right to divulge it. So do journalists. A journalist can say—and probably would say in reply to the argument that I have just made—that if he acquired information about explosives for terrorism, he would think that it was his duty, despite the journalistic ethic, to give that information to the police. A journalist is entitled to make that decision but a lawyer is not. A lawyer is not entitled to say that a man has given him information about a murder that he plans to commit and give it to the police.
If I were to pursue this argument with my hon. Friend he might win. When many doctors, citizens advice bureau workers and Samaritans receive confidential information, they believe that they are keeping that information confidential in a sense which is solely to do with their responsibility to a client. Although they are not in the same legal position as my hon. Friend, which he understands and explains better than me, they are on all fours with a lawyer. It is good that they have been moved a little nearer to the lawyer in regard to the protection which the Government are willing to concede.
Before my hon. Friend sidetracked me, I was about to say that we should keep a balance in confidential information and consider seriously the lines that should be drawn. The line which ought to be drawn is not that which has been drawn in these amendments —which is that confidential information in files that are held by people in certain privileged occupations is exempt. It does not matter how serious the offence is or what the consequences will be if the police do not get that information: the Government say that that material will be exempt. That is not a fair balance. It is one of the rare issues in this Bill where the balance has been drawn against the police to an unacceptable extent. That has been done because the Government have given in to the campaign that was engineered by the press.
The press should examine the rest of the Bill and find a way of achieving a better balance. I am prepared to agree with editorials which say that the Bill is bad because of the treatment of journalistic records and that we should now get rid of it all. That is an acceptable argument. We could start to think about the issue again. If it is true that the Prime Minister will go for a June election, this Bill will never get through anyway. By the time that we have a new Government we might be able to consider the proper balance, but no one who listens to the debate or who reads our proceedings should think that, merely because the Government have made a concession on two clauses, this is no longer pernicious legislation. It is bad in many ways — not because it tries to rationalise police powers; I favour that. It is bad because there is no adequate check.
There are some aspects of the amendments of my hon. Friend the Member for Stockport, North (Mr. Bennett) which the Government should consider seriously. During our debate on clause 10, the Government were willing to make an amendment with regard to doctors because, apparently, only they were being considered then. The Government were prepared to accept that the application should always be inter partes unless the police said that the doctor was implicated in the offence. If that was good for doctors, it ought to be good for other people. Most of the applications, when the holder of the information is thought to be innocent, ought to be inter partes. However, there seems to be no provision for that. What could be wrong with asking the police to inform someone that they are about to make an application so that he can object if he wishes? My hon. Friend's amendment (g) limits that to subsection (2)(c) but I should have thought that it was possible to make an argument on subsections (2)(a) and (2) (b).
Such an argument would not hold good only in respect of subsection (2)(d). Even if under subsection (2)(a) it is not thought
reasonably practicable to communicate with any person entitled to grant entry to the premises
the person about whom the information is obtained should be warned that a warrant might be issued. I do not understand those words to mean that it is impossible to get hold of the holder of the information. If that were so, surely the person concerned should have the right to make his case. My hon. Friend the Member for Stockport, North made that point in relation to subsection (2)(c), which seems perfectly acceptable.
I am not as worried about the definition of "serious arrestable offence" as some hon. Members, but the amendment made in Committee was a considerable advance. I want an assurance from the Minister that the Government intend that there will be an objective assessment of whether there were reasons for allowing the police to regard it as a "serious arrestable offence". The hon. Member for Nantwich (Sir N. Bonsor) misunderstood my point. I thought that the Government had injected that objectivity, of which I approve. The Minister nods, but I should like a specific assurance on that later.
This is a vital matter. It is one thing to say that a serious arrestable offence is such because of the nature of the offence or circumstances, but it is quite different to say that it is such only when the officer considers the offence or circumstances to be serious or grave. In the light of all the evidence, it should be open to the court to review whether the officer had made an objective assessment of the reasons for believing the offence to be serious and arrestable. That is the only way in which the provision will work.
We cannot define this simply in terms of particular offences. One hon. Member said that rape would always be a serious arrestable offence, but I disagree. I have known of rape cases that were on the border line, in which the girl had ultimately said "No" although in every other way until then she had said "Yes". I do not regard that as quite the same serious criminal offence as that of a woman beaten up in the street, put up against a wall and raped. The difference between the two lies in the seriousness of the offence. The first case is not a serious arrestable offence, and the same is true of many other offences which at first sight might be said to be serious.
It is possible to make that argument even in respect of some murders, and certainly in respect of manslaughter, fraud, forgery, and other offences that some hon. Members have sought to catalogue as serious. Within each category some circumstances make an offence serious and others not. In most circumstances I do not regard larceny as a serious arrestable offence, but some cases are and should be considered as a serious arrestable offence. If someone were to steal heroin from a hospital medicine cabinet with the intention of distributing it on the streets, it would be a serious arrestable offence, whereas in most cases larceny would not. Therefore, we are left to judge serious arrestable offences only in relation to criteria that apply to a large number of offences.
Does my hon. Friend agree that the policeman's remarks will be crucial in the granting of a warrant? If the policeman is describing a rape, he will not include the other circumstances which my hon. Friend believes make it a less serious offence. Such an offence will simply be described under one all-embracing title. Is not that a grave weakness?
It makes a stronger case for the inter partes application. It makes the case for someone being there to argue against the police interpretation, but "serious arrestable offence" is used throughout the Bill in relation to a series of powers. We could not make the case in relation to every clause. The definition of "serious arrestable offence" is difficult to resolve. I am not sure that it is properly resolved by adopting the words "grave offence" proposed by my hon. Friend.
I am much attracted to amendment (i). There should be a provision which says that a balance should be struck between privacy and the need for the police to have evidence. That is what it is all about. The police should have to justify their intrusion into privacy. That factor should be brought to the attention not only of a justice of the peace but of a circuit judge. As I understand it, that is not so under the Bill. It ought to be possible to consider the effect upon the privacy of the individual who is holding the information.
Although I have never thought that clauses 9 and 10 were as serious an intrusion as some people suggested, and although there has been a certain amount of humbug about the concession the Government have made, the Government might consider seriously some of the amendments put forward by my hon. Friend the Member for Stockport, North because they improve the concessions and do not in any way diminish the powers of the police.
It is clear that there has been a large increase in crime. In Kent, we have been anxious during the last year about the crime rise, particularly in serious offences such as robbery and burglary. The new clause gives a power which has never existed—the power for a justice of the peace to authorise entry to search in respect of a serious offence. This has not been stressed in the debate.
There has been a range of search warrants under many Acts; they have been haphazard and have never been brought together properly. For the first time this legislation does that. Hitherto there was no provision for the police to obtain search warrants for evidence of serious offences against the person, as in murder or rape, or of the offences of fraud or corruption. Altogether they have been unable to obtain entry to get the evidence, not the information, behind doors which are usually locked.
New clause 2 achieves the principal purpose of solving the problem of obtaining the evidence of crime to enable a conviction to be made. We must consider whether that is fairly balanced with the libertarian issue. The Government have made a remarkable achievement in putting together the new clause. It is many months since I, among many of his colleagues, had a word with my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew). I said that I did not know how he would be able to achieve a reasonable definition of "serious arrestable offence". The one which was being considered was woefully inadequate. The Government have got down to it. It is worth drawing attention to the fact, because I disagree profoundly with the hon. Member for Ormskirk (Mr. Kilroy-Silk) who attacked the definition in the Bill.
There is an objectivity here. It is clear that under the new definition in clause 74 there is the power to be able to treat a matter as a serious arrestable offence
having regard to the nature of the offence; the scale; the degree of organisation; the degree of violence used or likely to be used; the gain derived or likely to be derived
whether large or small;
the harm caused or likely to be caused to persons; the harm caused or likely to be caused to the security of the state, the administration of justice or public order; the prevalence of similar offences.
Of course they cannot all apply but the person applies the appropriate one in order to see whether it justifies the right to regard it as a serious arrestable offence.
It is no mean achievement on the part of my right hon. Friend and his colleagues in the Home Office to come up with such a definition which, after 30 years of experience of the criminal law, crime and criminals of all kinds, I believe to be the best possible definition that could have been obtained, and I congratulate my right hon. Friend on it.
The matter does not end there. It was essential to ensure that other tests were applied. The first was that the justice of the peace, before giving the warrant, must be satisfied that there are reasonable grounds for believing that a serious arrestable offence has been committed. But it is most important that there should be relevant evidence in the premises — not just information or tittle-tattle but solid evidence. That evidence must be of substantial value to the investigation and it must be in connection with the application itself. That is the only way in which we can fill a gap in the law to ensure that the police are entering for the purpose of obtaining evidence which is necessary to secure a conviction for a serious offence.
The clause goes on to deal with excluded material. Whether or not I agree with the arguments, I can appreciate them. In particular, the clause excludes confessions made to priests. I have never heard of a case in a British court where a priest has been asked to give the outcome of a confession that was made to him in private. Home Office Ministers may know of one, but I do not.
Then there is the difficult position of journalists. The clause excludes not what the journalists know but the material in their possession, and we shall deal with other arguments about that. It is a nice point, but it is impracticable, and I think that it is wrong, to force a journalist to give information that has been given to him in strict confidence in circumstances that are virtually the same as a confession. It is the last thing that a journalist should be forced to do and there are many journalists who would rather go to prison than disclose the source of their information. It is for that reason that the clause is worded as it is. It is purely to exclude a tiny proportion of what might be the relevant evidence that is discovered in the premises searched. It goes somewhat wider to exclude certain other categories that also regard themselves as being entitled to special consideration.
It is not for the lawyers to decide these matters. That is the privilege of the client. The client may well raise the question of privilege if he is seen, in which case the solicitor is perfectly able to give the disclosure, which may be of value. It by no means follows that privilege will be claimed.
New clause 2 provides that the evidence must be relevant—and I stress that—in relation to an offence, anything that would be admissible in evidence at the trial for the offence. That goes a long way towards answering one of the matters I have been concerned with—the libertarian issue. Having spent most of my professional life at the Bar defending people—although I have done a certain amount of prosecuting—I have always been very much concerned with what are called fishing expeditions by the police. I recognise that they exist and I think that this new clause, far from encouraging them, will clarify the position. It will make it plain to the police that they can enter only if they have a warrant from a justice of the peace. I do not believe that they will be able to give the magistrate a false account. They will have to show the nature of the evidence, and it must be evidence which can be heard in court.
There is, therefore, no way in which they can go in, go through papers and private correspondence and then take them. It can still happen, I concede, but there is a balance which we have to maintain with the essential need to get the evidence.
Nowadays there are many important computer frauds. Serious fraud is increasing all the time, both in the City and elsewhere. I know of many cases and could give many examples in which, if the police had been able to obtain a warrant of entry, they could have obtained corroboration from the documents on the premises which would have given all the evidence necessary both of the false accounts and of the frauds which were being perpetrated. I believe that without this power the opportunity to defeat serious crime would be much reduced.
In view of this great increase in crime, which is worrying us, particularly in Thanet very much indeed, I am strongly of the opinion that the Government's new clause, which has been carefully drafted and very much improved and has given reasonable concessions to journalists, members of the citizens advice bureaux and priests, is not wrong. I think that the Government, far from being ashamed, should be very pleased with the efforts that they have made to improve the Bill and to get it right and to say, openly and honestly, "We have had another look at it. We thought we could improve it, and this is the way that we have sought to do so."
I have been listening carefully to the debate because I was not on the Committee and I have been very anxious to hear all the arguments. In spite of my original intention not to speak I should like to make a short contribution.
I begin by referring to something that the hon. Member for Canterbury (Mr. Crouch)—who is not now in the Chamber — said when he talked about trusting the police. It seems to me that the whole thrust of debate in the Committee, as I have read the reports, and in the House tonight indicates that the Government are saying that this Bill will ensure that there is greater trust in the police. In my opinion—and, I think, in the opinion of my hon. Friends and perhaps other hon. Members too, and certainly of the public outside—the reverse is true. In other words, it will enlarge the already disturbing divide between the police and the public.
I agree with my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) that the present powers of the police should be sufficient as they are, without the new powers in the Bill, including those in the clause and one or two others that will be discussed later. Faced with the choice, I would prefer either new clause 2 with the amendments of my hon. Friend the Member for Stockport, North (Mr. Bennett) or, even better, new clause 16. It seems to me, the more I read it, if I understand it correctly, that it lays down much more clearly the guidelines that would assist the magistrate to put properly the questions that were mentioned by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo). He described graphically an exchange between a police constable and a magistrate. If magistrates had the nous as well as the power and the duty to put the questions much more firmly, they would be able to give a much better judgment on whether such a warrant should be issued.
The Bill and this new clause remind me of so much legislation that contains words that are unquantifiable. Many hon. Members have referred to "reasonable" or "reasonable force if necessary". The words "reasonably practicable" as well as "unreasonably refused" also appear in the new clause. Someone's judgment will be required on all those words. Everyone's judgment is not exactly the same. I appreciate that it is difficult for us in the House to lay down a definition of the word "reasonable", but just to leave it at that leaves the whole issue open to doubt. I remember that when we discussed at length the last onslaught on the Abortion Act 1967 we had difficulties in trying to define "grave" and "serious". In a sense, the same thing applies here.
Perhaps the Minister will be good enough to answer a specific question. It is not clear to me from the clause whether the constable is to be uniformed. In clause 8, the constable is to be uniformed. In clause 13(7), there is a reference to the possibility of a constable not being uniformed. New clause 2 says neither one thing nor the other. Clause 8 states:
The power of entry and search conferred by this section is only exercisable for the purposes specified in subsection (1)(c)(ii) above by a constable in uniform.
We need some clarification of that.
A police officer who has a warrant may go to the house where he will interview or get the evidence from the person who is the subject of the warrant, but that person is not in. However, his mother might be in. When she hears the knock at the door, she looks through the spyhole. I do not know how many hon. Members have spyholes in their doors. I do. I live on my own and it is vital that I have one. I would not open the door unless I was absolutely certain that I knew who was on the other side. I would not let in a person who was not in uniform, who flashed a warrant card or identification card in front of the spyhole.
I have been burgled three times. The second time the police suggested that I should have a spyhole put in and a chain put on the door, and they said that I should never let anybody in unless I was absolutely certain that it was the person whom he or she claimed to be. I live in a large block of flats where it is easy to get burgled. It is all very well for us to encourage people, particularly the elderly, to be careful about whom they admit, but in the example that I am using it might be art elderly person who is obliged to open the door.
What happens if the constable is not in uniform? Does he simply break the door down and presumably trample over whoever has refused to open it? Does that action of refusing entry to a non-uniformed policeman constitute an unreasonable refusal to allow the constable to enter? That is not clear, and I should like to hear from the Minister assurances that if the clause goes through the constable will be plainly a uniformed constable.
I must cross swords with my hon. Friend the Member for York (Mr. Lyon) about serious arrestable offences. I shall not go down that road too far but I was a little surprised—somewhat shocked—to hear him say that he could envisage some cases of rape that were not serious arrestable offences, and that there might be circumstances in which one party concerned had led the other to believe that she would be willing. I maintain, as I think that most people would maintain, that rape, in whatever circumstances it begins, whether it is a mugging or whether it is between two people who know each other and have had some conversation beforehand, is a serious offence and would be regarded as such by most women.
I interject because my hon. Friend has raised this issue before and it is pertinent to the wider debate. To say that rape is a serious offence which in about 90 per cent. of the cases receives a prison sentence straight out is to recognise that one cannot say, "You have said yes so far and now I shall forget about the fact that you have said no." The police, the community and everybody else recognise that rape is an offence and a serious offence. I am arguing that if one is talking about the definition of serious arrestable offences, which comes within an extra category of powers in the Bill, it is possible to take a view of that kind of rape and say that it is not a serious arrestable offence in the way that a mugging is a serious arrestable offence. There is a difference. My hon. Friend and I may continue to disagree, but I do not want her to go away with the view that I do not regard the lesser offences as offences. I do, and I accept her case that rape should be considered by the law as a serious offence. However, that is different from the argument that we are having at the moment about the category of powers that attaches to a serious arrestable offence.
I am not sure that I accept that. I know that we are straying a little off the subject, but I can envisage circumstances where there has not been a mugging but the woman concerned has simply accused the man of rape. One can envisage many such circumstances where it might be necessary for the constable to get a warrant to go in and arrest the man and take evidence from him. I accept my hon. Friend's view of the seriousness of the effects of rape, and I am glad to know that that is his view.
Like others of my hon. Friends, I would rather not have the Bill, and I do not see that this new clause, improvement though it is on the old clause 9, is necessary in this day and age. In my view, it will not add a dot or comma to the trust that we all hope for between the police and the public.
I do not want to delay the Committee for long, because I know that others want to speak, but I want to make one or two comments following those of the hon. and learned Member for Thanet, West (Mr. Rees-Davies).
New clause 2 needs many more safeguards if we are to prevent its becoming simply a vehicle for the police to continue to behave as they do at present. I know that my hon. Friend the Member for Lambeth, Central (Mr. Tilley) will say a word about the Railton road revelations a few days ago when the Home Secretary answered a question from my hon. Friend the Member for Norwood (Mr. Fraser) and the attitude of the Metropolitan police, particularly that of Deputy Commissioner Patrick Kavenagh, who has now retired, which even the Police Complaints Board realised was offhand and casual in the extreme. The board was rather unhappy that he had not taken the matter seriously.
If new clause 2 is to be worth anything at all, we must ensure that when the police go to a magistrate and ask for the right to enter someone's house they do so on proper evidence, wanting to get something specific, rather than out of a general desire just to go in and comb the house, the area if necessary, for any evidence that they can pick up. From all the evidence of the behaviour of the Metropolitan police —I cannot speak for other police forces, as I said again and again in Committee—it is clear that we need stringent safeguards, much more stringent than those that we have at present, if we are to get it right.
I hope that the Minister will say something helpful about amendment (e), in the name of my hon. Friend the Member for Stockport, North (Mr. Bennett). The amendment may not be absolutely right, but it tries to put Gahni v. Jones, the Lord Denning judgment that we discussed endlessly in Committee, into statutory form. The amendment tries to say, "Look, the police cannot just do what the clause says they should do" which is to look for relevant evidence, meaning just evidence that would be admissible at a trial for that offence, but to say a great deal more about the evidence for which the police are looking.
There is often considerable argument in court about what is admissible evidence. In new clause 2 we are handing over to a magistrate in each area of the country the right almost to decide in advance of the trial what will be admissible evidence and what will not be admissible evidence. We all know that there are magistrates and magistrates. It would be wrong for me to make pejorative remarks about magistrates, since that is probably ruled out in "Erskine May". I shall say nothing against magistrates in London, except that some magistrates have the reputation of doing absolutely anything that the police want them to do. The police do not have to prove anything. The magistrates just sign on the dotted line. Other magistrates take their jobs more seriously. If we accept that the police will not find it difficult to convince magistrates that they want to go in, we must write much more into the Bill.
If that is so, is not amendment (i), tabled by the hon. Member for Stockport, North (Mr. Bennett), meaningless, because it requires magistrates to make a subjective judgment, balancing the evidence and the public interest? Surely the police will quickly discover which magistrates will come down on one side rather than on the other and go to some magistrates and not others?
My erstwhile hon. Friend, the Member for Southampton, Itchen (Mr. Mitchell) is right. The police will shop around. They will know which are Tesco magistrates and which are Sainsbury magistrates. In terms of quality and shoddy goods, they will go to Tesco magistrates every time in search of their warrants.
I agree. They have done that for years. It is a well-known sport in London.
I support amendment (i), not because I think that the magistrates or police will take much notice of it, but because if the provision were tried in the High court, Lord Donaldson—against whom I must say nothing, because in the House I am not allowed to criticise judges—the Master of the Rolls or even Lord Wilberforce might be able to take the provision in amendment (i), pronounce in clear terms exactly what it means and convince the police and magistrates that it is serious.
I urge the Minister to consider amendment (e) seriously. Lord Denning took the Ghani v. Jones case seriously, and I take it seriously, particularly because of my 10-year relationship with Detective Chief Superintendent Alan Jones, whose name was given to that law case. If the provision were written in black and white and each magistrate had to address his mind to amendments (e), (a) and (b) carefully, would the evidence be admissible and would the evidence be produced? The magistrate would have to consider whether the evidence was used in an offence or was an object that might prove the offence. That sums up what the Court of Appeal said in the important case that I have mentioned. If we wrote that into the Bill, I might be given confidence that some of the magistrates, whom I might call third division magistrates, or even Tranmere Rovers magistrates—the kind of magistrates who might some day find themselves up for re-election—
If such magistrates had to apply their minds to the provisions of amendment (e), some progress might be made.
I ask the Minister also seriously to consider amendment (g). What is the point of alerting people, asking permission to enter and search their homes and following all the procedures in new clause 2 if, when they refuse, perhaps for perfectly good reasons, they are denied the right to explain their refusal to the magistrate? I could understand it if the Government had taken a wholly authoritarian attitude and said that the police merely needed to get a warrant from a magistrate and then they could bash the door down. Essentially, that is the present position. The number of door jambs in my constituency that the receiver of the Metropolitan police has repaired at public expense is almost beyond counting. But we are now changing all that. We are bringing in a new law and people will be asked first whether they wish their homes to be entered, but if refusal on their part means that a secret judicial hearing will take place at which they cannot be represented, the whole procedure becomes pure nonsense.
The substitute for clause 10, which will be dealt with in the next debate, involves class discrimination between professionals and the public. The big, tough, rich professionals—the journalists and the doctors—will be told that they have won their little campaign, so their doors will not be bashed down. Indeed, with regard to certain information the authorities will entirely deny themselves the right to obtain that evidence. I agree with all that, but as Members of Parliament we are not elected only by doctors, journalists and priests. Certainly, comparatively few, if any, such people seem to vote for me. As a democratically elected Member of Parliament, I am expected to make all those concessions to rather well-to-do professional people, who I suspect vote Tory in any case, but no concessions at all to the ordinary citizen who bears the brunt of the door smashing in my constituency.
I believe that that is wrong. We should try to behave in a relatively evenhanded way as between professionals and ordinary folk. It seems that the doctors, the lawyers and the priests have led the fight. The Archbishop of Canterbury has, as it were, padded a way towards Downing street, everyone has followed and the Government have been miraculously converted. Even the journalists have received soft soap treatment from the Minister of State. If there is any truth in the stories that one hears about his recent encounter with them—I am sure that there is not — this is certainly the softest Government towards journalists in the history of this country.
I follow the hon. Gentleman's argument, and I have much sympathy with some of his comments, but is not the big difficulty the fact that journalists and other professionals are unlikely to have evidence concealed in their dwellings, whereas the major difficulty facing the police occurs in cases in which they have to act fairly quickly to have any chance at all of obtaining evidence that may be concealed in premises?
I shall resist that temptation, Mr. Dean, but new clause 2(1)(d) states
that it is not excluded material or special procedure material".
There is no way in which I cannot incidentally put the odd toe into the water on the other side of the fence, but I assure you that I shall not dive in.
Frankly, the Government's concession to the professionals surprised me. However, they made their decision and it is their responsibility and privilege so to do. But surely it would be logical for them to make a concession for inter panes hearings before magistrates for other groups. I agree that the police believe that villains are found slightly more readily among the nonprofessional classes. However, some of the accountants that I have come across in my life, and, indeed, one or two lawyers, have not differed massively from some of the villains who come to my surgery and ask for my aid.
I have never believed that crime is the monopoly of one or other of the classes in our society. Every class has its little grouping. It is wrong for Parliament to be seen to enact what appears to others to be class legislation. That is why I plead the case for amendment (g), which, in the majority of cases, would enable an inter partes hearing to be held.
I shall listen carefully to the Minister when he replies to the debate. He was generous in Committee and properly receptive of certain arguments. I hope that he will recognise that we are rot yet on Report, but still in Committee. If he could put on his Committee hat and wear his Committee persona, it might assist our progress.
I wish to speak about one matter that has been raised by some hon. Members, and especially by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo), that being what will happen in reality if certain powers are given to and used by the police. We must address ourselves to the questions whether, first, the powers are likely to be abused, and, secondly, whether they will reduce current abuse.
A major gap in the clause is that while it clearly gives accountability in advance — a magistrate must be satisfied about the nature of the search and the evidence — there is no accountability after the event. A policeman may be over-zealous in urging the magistrate to issue the warrant or, perhaps more important, overzealous in its use. On the matter of excessive zeal in the use of warrants, I, like other hon. Members, wish to refer to the Police Complaints Board report on the events in Railton road in July 1981. I do not represent that part of Brixton — it is represented by my hon. Friend the Member for Norwood (Mr. Fraser)—but several of my constituents were involved on the night in question.
The report of what happened in the large police raid does not show merely undue violence by individual policemen, it contains a much deeper accusation of things going wrong and of abuse of the use of warrants, which is what we are talking about tonight. I shall therefore quote briefly from the August 1982 report from the Police Complaints Board which went to the deputy commissioner at Scotland Yard. It stated:
The Board's primary concern is about the extent to which searches were conducted which were not authorised by the warrant. The Board understand that for a search to be lawful, the warrant should be in the hands of the officer conducting the search, and it is not difficult to come to the conclusion that every senior officer in possession of a warrant regarded it as a licence to enter premises and, once having gained entry, to search for evidence of any crime. The Board find it difficult to believe that this can be attributed entirely to ignorance of the law.
The key words in the report are:
every senior officer involved in the very large raid.
We are not talking about individual policemen overstepping the mark, although there is no doubt that they did with regard to damage. The accusation is broader, deeper and more serious than that. At the end of its report the Board says that in its view
The reports of the investigation revealed at best ignorance or misunderstanding of their powers on the part of a great number of officers, or at worst institutional disregard of the niceties of the law. There is also evidence, which has been acknowledged, of lack of supervision and lack of care in recording to whom sledge hammers and crow bars were given and evasiveness on the part of some of the officers who were interviewed about their parts in the raid.
Those were the serious accusations made by the board. It reported them to the deputy commissioner and, what is important, in the next letter that the board sent to the Home Secretary, it makes it clear that the board was not satisfied with the deputy commissioner's response. The board states:
The board take the view that the letter accepts the validity of their criticism, but they are disappointed that it was not more specific about the remedial steps which have been taken to prevent further abuses of a similar nature.
It was only after the Home Secretary intervened that the Metropolitan police were able to spell out in detail what more they had done.
A suggestion has been made by several hon. Members that further disciplinary charges will follow what has been reported by the Police Complaints Board. The opposite is true. It says that there should be no further disciplinary charges.
We are faced with a concrete example where warrants were abused, not just in the sense of excess force, although there was that, but where every senior officer searched way beyond the scope of the original warrant. We must have an answer from the Minister tonight as to how this new clause will ensure that this does not happen again or that it will be more difficult for it to happen again. It is not an isolated case. Many senior officers overstepped their powers in several different ways in what I am sure the Committee will recognise were the most sensitive circumstances—Brixton a few days after the riots of 1981.
It has taken two years for the report to become public and it became public by accident as a result of a parliamentary question. Earlier reports of the Police Complaints Board dealing with individual complaints seemed to suggest that there was nothing wrong. The Minister should tell us whether the same haphazard accountability as to how the police use their warrants when they have them will apply under new clause 2. If it does, the clause and the Bill will make things worse rather than better with regard to public confidence in the law and the police. Unless overstepping the mark can be publicly and quickly revealed and put right, the people of Brixton and other inner city areas such as those mentioned by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) will feel that police — community relations have been made much worse by the Bill and that new clause 2 provides new powers for the police and no safeguards for the people whose homes will be raided.
No. I have no idea what subsection (3) means. I do not think that it meets the point. Perhaps the hon. Gentleman would make his speech and explain to the Committee what subsection (3) means.
I have listened to a fair amount of the debate and two aspects of it need to be considered. The hon. Member for Lewisham, West (Mr. Price) referred to the professionals — to journalists, lawyers, the clergy and doctors—and said that the Government had taken care of them in new clause 2, but had ignored the ordinary folk at the receiving end. The hon. Gentleman has got it wrong. Praise must go to the Government for conceding the quite genuine apprehensions of the professionals, and for attempting to do something about the ordinary people who are on the receiving end of burglary, violence, mugging and all other crimes that occur in working-class areas, in Thamesmead, and in Erith and Crayford in my constituency.
In considering the amendments and the new clause, it is important that the House should fully consider the apprehensions of ordinary people. There is no point in Members of Parliament and political parties visiting constituencies, making speeches and trying to make political capital out of the current crime wave when they deny the law enforcement authorities the weapons and armoury that they need.
I support new clause 2. A significant step forward is being made, but many of the points raised were no more than nitpicking. They do not contribute one little bit towards the real battle that must be waged if my constituents and other ordinary people are to be protected from the crime wave.
I trust that the Minister will direct his mind to two points when he replies. In Committee he said that he would look upon inter partes hearings more favourably. He would do much to meet the few remaining worries of myself and other hon. Members if he moved a little further in that respect.
It is suggested that the issuing of warrants should be taken away from magistrates courts and justices of the peace and put into the hands of circuit judges. The Minister must make a substantial case if he is to answer my remaining doubts on that point. I trust that he will make some moves in those two directions, but even if he does not I shall support the new clause as it stands.
The hon. Member for Erith and Crayford (Mr. Wellbeloved) has, of course, got things wrong. Our approach to the Bill and to the debate is quite simple. The crime rate can best be tackled by improving co-operation between the public and the police. Anything that makes such co-operation less likely will help the criminal and hinder the police in the long run. Therefore, I have some misgivings. I fear that the effect of many of the provisions will be to lessen the public's willingness to co-operate and will therefore make the task of the police more difficult. In turn, that means that the provisions will not protect the average citizen, although that is the stated intention. That is why the hon. Gentleman was wrong in his intitial point.
We have spent some time on the new clauses and amendments and that is only right, because they go to the heart of the Bill. One of the many concerns expressed about the Bill is that innocent people and their homes may be subject to raids by the police in the search for evidence. Surely we should not deny anyone the right to speak up on behalf of innocent people and to demand the maximum safeguards before their homes are attacked in this way.
I shall comment briefly on two aspects of the new clauses and amendments. Throughout the Bill — and particularly in the new clause — justices of the peace have an important part to play. If any justices of the peace have listened to the last four hours or so of debate, they may have decided that it will be difficult to know how to use the powers in the Bill. Does the Minister intend to give justices of the peace any guidance on how they are to exercise their powers under the new clause? In the absence of an inter partes hearing, justices of the peace will have a great deal of power. I wonder whether the Home Office will issue them with guidance, or whether they have some other basis on which they can decide how to act uniformly. If they do not act uniformly, we shall be in the very position that the Minister described in Committee, when he spoke about the way in which the practice of one magistrate might differ from that of another.
When speaking about how long suspects might be held, the Minister said that the decision of one magistrate would not be sufficient. If that is so for the length of time that people may be held in detention before being charged, it should also apply to searches of innocent people's homes. I listened to the Minister in Committee for about four months and I am rather concerned about the inconsistency between what he said in that context and his apparent view of the new clause.
The recent triennial review of the Police Complaints Board talks about variations in practice from one magistrate to another. I am concerned about that. An inter partes hearing would be a safeguard that would make the provision more workable. If we could have an inter partes hearing, amendment (i), in the name of my hon. Friend the Member for Stockport, North (Mr. Bennett), would go to the heart of striking a balance between the public interest in securing evidence and the protection of individual privacy. The amendment is well expressed and the Minister would do well to consider accepting it, or something like it, as a necessary safeguard.
I regret that we have not found a better way of obtaining the views of the various bodies that will be affected by the Bill. By adopting the Special Standing Committee procedure we could have called justices of the peace and police officers before us in investigative session before proceeding on a line by line, clause by clause, discussion. We would thus have learnt from them directly how they saw their conduct in relation to the powers to be given to them. We are all speculating, and in the absence of direct evidence of that sort we must depend on our judgment of how justices of the peace and police officers will interpret these powers.
While the Committee was sitting, I had a discussion with the team of police officers from Scotland Yard who were dealing with this legislation. I very much regret that the Standing Committee did not have the chance of listening to their views before considering clauses 9 and 10. Had we done so, our discussion would have been shortened and the Bill would have been significantly improved.
I am still unhappy about the definition of a serious arrestable offence. I accept that the amendments made in Committee and now incorporated in clause 74 are a significant and important improvement. Nevertheless, in view of the Royal Commission's report, I still wonder whether we have got it right.
In paragraph 3.7, on page 24, the Royal Commission states that
a particular coercive power should be made available in respect of a particular offence".
I believe that the Royal Commission got it right when it referred to "a particular coercive power" and suggested that there should he important safeguards before such powers could be exercised.
In paragraph 3.9, it stated:
Parliament will wish most carefully to scrutinise the offences that would warrant the application of the enhanced powers to them, since here the balance between the liberty of the citizen and the interests of society is at its most delicate.
It would be difficult to find more apposite words than those. The Royal Commission went on to say that
society's perception of 'seriousness' may well change over the years",
means of prescribing it should be flexible and capable of ready review by Parliament.
In his many references to the Royal Commission, the Minister failed to take note of the warnings that I have quoted. Therefore, I view the definition of a serious arrestable offence with greater misgivings, because, notwithstanding the improvements made in Committee, I feel that we have given the police wide powers that may not be used in the wisest possible way.
I much prefer the approach of the Royal Commission, which used the definition of a grave offence. In reply to my hon. Friend the Member for York (Mr. Lyon), I would merely say that because a series of offences comprised the definition of a grave offence, that does not mean that the police would use their powers in every instance, particularly those in the new clause. Such a definition, would, however, set the limits in the same way as the definition of a "serious arrestable offence", which we now use, sets the widest limits, although we would not in all cases expect the police to use the powers given to them when they believe it is a serious arrestable offence. They would wish to do that only in some cases. The same would apply if, as the Royal Commission suggested, we used the term "grave offence". I regret that we have not done that. New clause 2 would be much better and have more safeguards if we had done that. That is another reason why I prefer new clause 16 to new clause 2.
No Conservative Member has said that it is undesirable to scrutinise and question severely every word in new clause 2 or, for that matter, any new clause. That is always the case in legal drafting, perhaps even more so in matters that carry criminal penalties.
The hon. Member for Bethnal Green and Bow (Mr. Mikardo) made an acceptable, often amusing and effective comment on .some parts of new clause 2. However, he appeared to underestimate the knowledge, experience and skill of most of our magistrates. What he said would have had greater veracity 20 years ago but today, as he knows, great care is taken to ensure that newly appointed magistrates go through fairly intensive study, exchange ideas and attend conferences to ensure that they acquire a knowledge of their duties and of what magistrates in other parts of the country think.
The hon. Gentleman is completely misquoting me. I said nothing about the quality of magistrates or anything adverse about them. I had better not, as I have a daughter who is a magistrate and if I said anything against her I should have a bad time. I said that a magistrate who is faced with a constable who is applying for a warrant has no method, however clever he may be, of checking the accuracy of what the constable says. That is undoubtedly true.
The constable must answer for what he says later on. He is not an irresponsible person who works in a vacuum. Such a constable will not be new to those duties and will perform them again and again. He gives the magistrate information and must convince him. The magistrate is not a tyro and he has spoken to other constables and assessed what they have told him. The magistrate must be sure that there are reasonable grounds.
There is always criticism when the word "reasonable" is used. I understand that, but the hon. Gentleman must know that legal drafting is not facile. No word has been more tested in courts of law. Some of my hon. Friends who have more experience than me in courts of law will agree that few words have been more tested than "reasonable". A word which has a long and respectable heritage is being used.
The hon. Member for Battersea, South (Mr. Dubs) quoted from the Royal Commission report and its use of the word "grave". It is not for me to draw an easy distinction between the words "gravity" and "seriousness". They are given as synonyms in the Oxford English dictionary. They are accurate words which set premises that can be identified.
The problem, which I sought to establish in an intervention, when we are dealing with this kind of thing is that often, unfortunately, speed and quick action are of the essence. The evidence being sought may be moved or hidden. Unless the search is carried out fairly expeditiously it is bound to fail. That is why we can draw a distinction between these offences and cases involving professional people. These offences are in a special category. They are serious offences where the evidence may be of such a nature that it can be concealed or removed quickly from the premises. A legal trial or a long legal inquisition, although desirable, would surely defeat the object of trying to defeat crime.
Conservative Members would object strongly to different laws for people living in the crowded inner cities and for those who are fortunate enough to live in the countryside or in the more spacious suburbs. Nothing would be more repulsive. The same law must apply to all. We are dealing not with a different kind of person but with a different kind of offence. The professional person might have certain evidence, but on examination my right hon. Friend has decided that the arguments against incorporating such cases is greater than the arguments for inclusion. To exclude this provision would destroy the efficacy of the kind of system we want to establish to defeat increasing crime.
A point made several times was that an officer obtaining such a warrant will be accompanied by senior officers who will jointly exercise the warrant. Subsection (3) of the new clause says:
A warrant under this section may authorise persons to accompany any constable who is executing it.
That means that those persons would have to be specified. Surely that is the safeguard which hon. Members desire. In other words, if the magistrate believes it necessary he will authorise certain persons to accompany the officer who will exercise the warrant.
Like the hon. Member for Erith and Crayford (Mr. Wellbeloved) I take the view that the new clause should be included in the Bill. When these things are tested in the courts imperfections may be revealed but generally this is a good clause. It may prove to have some fallacies but it is the best that the draftsmen can achieve at this stage before it is tried in the courts.
Like the hon. Member for Barry (Sir R. Gower), I am a strong supporter of the lay magistrate system. I declare an interest, in that my wife is a magistrate. I should be reluctant to place extra duties upon magistrates which might bring them into political or other controversy.
I do not know what the normal procedure is throughout the country when a policeman applies to a magistrate for a search warrant. In my area the magistrate will probably contact the clerk to the justices before granting the warrant, or may ask the constable to contact the clerk to the justices before approaching him. In many cases the magistrate may ask the police constable to take an oath on the Bible before granting a warrant.
On the whole, the new clause is a good compromise and an improvement on what went before, but I have two brief questions. Has the Magistrates Association been consulted on the drafting of the clause and will the Lord Chancellor be issuing any guidance to magistrates on its operation? It would be a great pity if magistrates were brought into some form of political controversy because of their operation of the clause.
For those hon. Members who served on the Standing Committee for three, or possibly even four, months, this has been a somewhat nostalgic occasion, because a great many old favourites, with which we became particularly familiar as the weeks and months went by, have been revived. I am grateful for the seriousness and the perspicacity of the speeches that have been made. They have put into sharp focus the serious considerations with which clause 9 and the group of new clauses deal.
I agree with what has been said by several hon. Members about the real purpose of this part of the Bill. It reflects—as I said at the outset about four or five hours ago—the intention to give greater powers to the police to investigate crime. My hon. Friend the Member for Barry (Sir R. Gower) has just made that point. The hon. Member for Erith and Crayford (Mr. Wellbeloved) and my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) said that there was grave concern about the increase in crime, not just in our county of Kent where there has been a serious increase but among most of the people on whose behalf many Labour Members have sought to speak during the debate. They are deeply anxious about the increase in crime.
I agree with those who have said that it is the people living in the small houses in the small streets who have most to fear, and who do fear most, from muggings and street violence. That is the origin of all this. We have tended, for reasons that I completely understand—they derive from our traditional and proper concern for individual liberty—to discuss this part of the Bill rather to the exclusion of the anxiety about crime that lies at its root. We have tended to discuss it almost exclusively in terms of its impact upon individual liberty.
The Police Complaints Board has been referred to during the debate, perfectly relevantly, but there is one observation that I should like to make about one of its recent reports. The Police Complaints Board report of its triennial review said, in paragraph 4·6, that it had for a long time recognised that ignorance and uncertainty of the law relating to police powers make for bad relations between the police and the community. It therefore supported the clarification and codification of the law in the Police and Criminal Evidence Bill. That is extremely important. One of the Bill's principal objects—certainly of this part of the Bill—is that the law relating to police powers should be clarified and codified, not least because, as the Police Complaints Board said, where there is uncertainty and ignorance there are bad relations between the police and the community, either because the police do something which is within their powers but which the community do not believe or know to be within their powers, or because the police do something that is outside their powers, believing that it is.
I come to the first of the questions which the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) asked me. He said that it was all very well to come along with our new clauses, but we should say a word about why what we started with was no longer satisfactory. I thought that we had done that, but I am perfectly prepared to put it shortly again.
The bulk of the criticism of this part of the Bill centres on the provisions of the Bill giving the police access to confidentially held information at a time when they are investigating a serious arrestable offence. That was the guts of the opposition.
We sought to allay that anxiety by pointing out that it was, of course, never the intention of the Government that the police, when investigating any offences, let alone serious arrestable offences, should be able to go through personal medical records, which are obviously of a confidential nature, in order to see whether they could narrow down the scope of their inquiry. It was never the Government's intention that police notebooks, for example, should be able to be examined in order to see whether they contained evidence of some crime. We sought to make that clear by the wording of clause 9 as it stands in the Bill—namely, that any material to which these powers extend should be material that might be given in evidence. We said that, because of the laws of evidence, none of this particularly sensitive material would, save in a very rare case, be get-at-able under these provisions, because the rule against hearsay evidence would prevent it.
It was not until the Bill was printed and was, I believe, in Committee that the anxieties of the doctors were first raised with us, and after that those of the journalists. It got to the stage at which we were being told that we [night be right in what we said about the laws of evidence but the doctors' patients were not going to believe it; they believed that their medical records would be able to be examined by the police and this would have a very bad effect upon the openness of the relationship between patient and doctor and would affect the diagnosis and possibly the treatment.
There comes a time when it is what people believe a Bill achieves that becomes more important than what a Bill does achieve. Therefore, since there was no divergence in policy between what the Government intended and what was being said to us, it became clear to all of us that it was more sensible to state expressly and openly what previously we had said in the Bill implicitly and by reference to the laws of evidence.
That was why we thought it was sensible to recast this part of the Bill and to say in terms that this class of material should not be able to be examined in any circumstances, and that other confidentially held material should be able to be examined but only on the application of a particular procedure, which is called in these new clauses the "special procedure". That requires application to be made to a circuit judge, and various other matters with which we shall be dealing in the next group of amendments.
The next question that the right hon. Gentleman asked was why we needed any change in the law at all, and what had been happening to make any revision necessary. We did go into this pretty exhaustively in the course of the Standing Committee, but for members of this enlarged Committee it might be helpful if I refer briefly to one or two passages in the report of the Royal Commission, which considered these matters for something like a year at the invitation of the former Home Secretary, the right hon. Member for Leeds, South (Mr. Rees).
The Royal Commission said:
We are here concerned with other premises. Evidence of crime in such places can cover a very wide field; it extends beyond the mere subject matter of an offence to items which may constitute only a remote link in the chain of proof. As well as more obvious objects such as murder weapons or blackmail notes, it may include personal diaries or papers, business records, or other sorts of stored information. This kind of evidence may be property belonging to quite innocent individuals or organisations, and its removal might cause serious interference in their personal or commercial lives.
The Royal Commission states in paragraph 3.41:
It is only rarely that the police do not receive consent to enter when looking for evidence, since people are often anxious to cooperate and allow the police every facility. However where property or information is held on a confidential basis the holder may be unwilling to disclose it for fear of being sued for breach of duty by the person from whom he received it.
The Royal Commission dealt not only with confidentially held information but with other information that the police need to examine when investigating a serious offence.
It went on to say:
We consider that there will be rare circumstances"—
The Royal Commission went on to say:
We consider that there will be rare circumstances where a compulsory power is needed, and should be available to the police before charge.
That is the reason why there is a need. We agree with the views of the Royal Commission. As my hon. and learned Friend the Member for Hemel Hempstead (Mr. Lyell) said, the provisions of new clause 2 accurately reflect not only the power that the Royal Commission recommended but the safeguards with which it recommended it should be hedged about. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) said that the Royal Commission's entire intention was frustrated by the Government not making the powers dependent upon grave offences. That charge cannot be sustained.
In this lengthy debate we have gone over the question of the Government's preference for the concept of "serious arrestable offence", defined as it is now in clause 74. It was amended in Committee. I very much agree with what was said by the hon. Member for York (Mr. Lyon) about the massive improvement that that definition in clause 74 achieves. I shall not weary the Committee by reading it, because people are familiar with it. If they are not, it can easily be seen in the clause. The important point, which I readily confirm, is that it now provides an objective test for the serious arrestable offence. It does so by saying that the constable must have reasonable grounds for believing that it is a serious example of an arrestable offence, an arrestable offence itself being one that carries maximum imprisonment of not less than five years. Not just the constable but the magistrate or the circuit judge who has to apply those jurisdictions must do that having taken account of a number of sensible criteria, of which there are about eight—the nature of the offence, whether violence was used, the degree of organisation, how much gain has resulted from it, and so on.
The hon. Gentleman was absolutely right when he took issue with his right hon. Friend the Member for Sparkbrook and said that he believed that the serious arrestable offence as now defined was a very great improvement. I agree with my hon. and learned Friend the Member for Thanet, West that it was about as good a definition as one could achieve. I am grateful to him for that comment.
Will the Minister confirm that in clause 74, the amended clause which he described as an improvement, the criteria as he described them —although some of us would not regard them as criteria—are considerations that the person contemplating the exercise of the power must judge to be appropriate in the circumstances? The clause is wholly subjective in that the person exercising the power has the right imposed on him to judge whether (a) to (h) are appropriate. That makes them not criteria but subjective suggestions.
The object of the criteria is that they have to be reasonable, and the person has to have grounds for coming to the conclusion that this a serious example of an arrestable offence—itself an objective definition, defined according to maximum term of imprisonment—and that he has to take into account the matters that are there set out. There were legitimate criticisms of the original definition that the criteria were not identified and the person was not told that he had to take anything into account, and that there was not any provision that there should be grounds for coming to that conclusion.
It is a great mistake to suppose that the Royal Commission came to the conclusion that it was possible simply to provide a list. Paragraph 3·7 of the report says that it should be called a "grave offence" and the commission sets out a number of offences that it says would normally be included. When it comes to dishonesty, the report gives the categories of dishonest offences but says that a "grave offence" occurs only when "major amounts are involved". At the end of the day, the Royal Commission does not say that there can be a cut-and-dried list of offences, and for good reason. If one did, there would then be the application of these coercive powers more widely than under the formula that the Bill adopts. The difficulty about taking a list of offences is, as the hon. Member for York, who is no longer here, said—
I am sorry. The hon. Gentleman is here. He has advanced to the Front Bench, albeit below the Gangway. He made his helpful speech from the farthest Bench back. As the hon. Gentleman said, it is not possible to distinguish between various gradations of severity that any particular offence may present. Therefore, the Government are right, for reasons that we set out at great length in Committee, to go for the serious arrestable offence concept. It is wrong to say that the Royal Commission's entire intention was frustrated.
I take the hon. and learned Gentleman's point, but can he tell the House whether, on the definitions as set out in clause 74, we are to wait for a considerable amount of case law to define the definitions or whether we are to go on stumbling from one to the other until the Bill has to come back to the House to be more tightly defined?
I should be surprised if the Bill will have to come back here to be more tightly defined. It sets out such common sense matters to be taken into account that there will be little case law, but we shall have to see.
The right hon. Member for Sparkbrook then said that there should be a more senior member of the judiciary, a circuit judge not a magistrate. However, there are a considerable number of statutes that have already given the police the power to obtain a search warrant to look for evidence, not from people who are thought to be accomplices or involved in a crime but innocent people, of offences that they are investigating. The powers are set out in appendix 5 to the first volume of the report. In following the recommendations of the Royal Commission, the new clause does not set up a new principle. That has been established over many decades by Parliament in a number of piecemeal statutes. It applies a general criterion or code, and limits it to serious arrestable offences. That is an important point.
Clauses 12, 13 and 15 write into statute law for the first time a comprehensive code of safeguards covering applications for the issue of and execution of search warrants. This code in clauses 12, 13 and 15—it applies to the new power that we are setting up in new clause 2, old clause 9 in the Bill as printed—will apply to all search warrant powers. It is therefore a mistake to look at new clause 2 in isolation from clauses 12, 13 and 15, which in future govern the application of all search warrant powers.
I say to those who have properly pointed to the Railton road affair in July 1981 that the defects in execution that were revealed emphasise the great need for this Bill, for the tighter safeguards that are contained in clauses 12, 13 and 15, and for the very tight safeguards that are included in new clause 2. To the extent that we now know that there have been shortcomings, it is most important that in future the police should have to comply with these extremely tight safeguards.
At present, there are powers to obtain search warrants for certain articles — for example, stolen goods, controlled drugs, and articles used to commit criminal damage—but there are no powers for other kinds of material — for example, weapons used in serious assaults, or evidence of serious fraud in the form, for instance, of trading accounts or bank records. There is no power for the police to obtain a search warrant in the course of investigating rape, for example, in respect of bloodstained clothing worn by victims, or to look for equipment used in an armed robbery, for example pickaxe handles, masks, or for blackmail notes or fingerprints left at the scene of serious assaults, and so on. I do not need to read all the areas in which the police should, in my opinion, have powers to look for these items, to point out the extraordinary hotchpotch of the law at present and to justify the Royal Commission's recommendations in that regard.
Let us take the instance to which the right hon. Member for Sparkbrook referred, section 26 of the Theft Act. All that one has to do at present is to go to a magistrate and say, "I have reason to believe that some stolen property is in so-and-so's house". There is no question of any safeguards. One goes along and one can use reasonable force if it is not possible to enter. So this is not a new principle. It is a much tigher application of a principle that has been properly but not consistently applied hitherto.
The last question that the right hon. Gentleman asked related to the use of the powers specifically, rather than general activity following a specific power. He said that there should not be fishing expeditions. I entirely agree with all those who have spoken on that matter. It is important to remember that the safeguards in clause 12, 13 and 15 are extremely tight. All applications must be on oath. The grounds must be stated to the magistrate to whom the application is made. The nature of the articles sought and the premises have to be specified. Execution has to take place in a month, and has to be undertaken normally at a reasonable hour. A copy of the warrant must be produced and given to the occupier, and if he is not there it has to be left in a prominent place. A search that does not comply with those provisions will be unlawful. All warrants have to be returned to the justices who issued them, and endorsed with the outcome so that magistrates can gauge the effectiveness and the police gauge their performance. These safeguards are highly relevant to the issues that have been raised in this debate.
My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) need not fear that this will be all too much for the police to master. With training and guidance, I believe that it will be perfectly possible for them to grasp it.
The hon. Member for Stockport, North (Mr. Bennett) spoke to his amendments in a most helpful speech. To the extent that I have not done so already, I shall deal with them briefly. Amendment (a) would increase the level of authority required for the issue of search warrants for evidence not held on a confidential basis from a magistrate to a circuit judge. I have already said why I do not believe that it would be right to do that. It would give rise to strange anomalies. On each occasion when Parliament, over many decades, has authorised search warrants it has done so through the medium of a magistrate. That is right. The provision for circuit judges is appropriate for the confidentiality of information, but not subsequently.
Amendment (b) recommends that we use the words "grave offence" with which I have already dealt. In relation to amendments (c) and (d), I do not think that it would be appropriate to provide that a magistrate has to be satisfied that evidence of a "serious arrestable offence" should be of "substantial probative" value because we are dealing with the investigative stage, not a trial. The issues would not have crystallised. We are dealing here with investigation, and a policeman applying to a magistrate must prove that the evidence would be of substantial value to the investigation.
In amendment (e) the hon. Member for Stockport, North suggests a restricted definition of evidence along the lines of Lord Denning's judgment in the case of Ghani v. Jones. In that case, Lord Denning was giving guidance to the police on existing law; he was not drafting a statute.
An example might show why it is undesirable to place artificial limitations on what can constitute evidence. Let us suppose that a person suspected of murder claims that he has an alibi and the police seek evidence to confirm or disprove that alibi. The evidence might consist of a hotel register and there may be reason to believe that it would be tampered with if access to it were sought without a warrant. the register could not be said to prove an offence, although it might be vital evidence in supporting or explaining an alibi. Another example is a fingerprint left at the scene of a murder. That falls into none of the three categories set out in the amendment.
Amendment (f) suggests
An application under this section shall indicate how the evidence in question is considered to relate to the purposes of the inquiry for which it is sought.
That question is answered if one asks "Is it substantial?"
Amendment (g) suggests an inter partes hearing. I understand why attention has been paid to that in the debate. The amendment is unnecessary. It is unprecedented for an inter partes hearing to take place in any jurisdiction for a magistrate to grant a search warrant. A case is not being made out for making a special exception. Umpteen statutes—about 50—give power to the police to obtain a search warrant to examine even innocent people's homes for evidence relating to an offence which they are investigating. We suggest that application for access to evidence held in confidence should normally be made inter partes precisely because confidential relationships involve the public interest upon which both sides should be heard. If the furore in the last few weeks and months proves anything it is that the public put confidentiality in a separate category.
Does the Minister agree that in all cases on which magistrates have had to give decisions so far, asking an individual for permission and reporting to the magistrates when he refuses permission is not involved? The first thing that the police should do is to ask the individual for his permission without going to the magistrate. If the person says "No" it is relevant to the magistrate to know why he said that. Unless there is a hearing, how does the person put his case to the magistrate so that the magistrate can test the police requirement against the individual who says that he has good reason for not wanting to co-operate?
This is a good example of the maxim that the more one does the more one may do. The new clause provides for the first time that the police must comply with this criterion and show, among various alternatives, that the householder had unreasonably refused. Unless they can do that, they cannot satisfy the judge. To do that, they have to ask. That safeguard is being introduced for the first time. If we then say that when the police explain all that to the magistrate the householder must have the right to put his side of the story, what happens next? Presumably if the householder receives an unsatisfactory answer from the magistrate, he will have to have the right to appeal to a circuit judge, and so on. I do not believe that the difficulties and sensitivities with which we are here concerned warrant an inter pastes hearing at this stage of all cases in which there is jurisdiction for a magistrate to grant a search warrant. I do not think that I can add anything to that. I simply do not believe that the case has been made.
Amendment (h) provides for appeal to a circuit judge against the issue of a warrant. That has not been much discussed today, and I do not think that the problem really arises. There is, of course, an application to the Divisional Court for a judicial review, but I do not believe that it would be right to provide for appeal as the amendment suggests.
Amendment (i) provides that the public interest test shall be imposed. In the next group of amendments, relating to confidential information, we require that the judge shall be satisfied that the public interest requires that the application be granted and, as it were, overrides the importance of maintaining confidentiality, but I cannot believe that that would be appropriate in the case of non-confidentially held information. There is really no comparison with applications for the disclosure of evidence held on a confidential basis. It is precisely the existenc of the confidential relationship that raises the question of where the balance of interest lies.
The hon. Member for Bethnal Green and Bow (Mr. Mikardo) entertained us with a dialogue illustrating how the magistrate might go about the business, but I do not believe that many magistrates now model themselves on Justice Shallow, who might well have conducted a dialogue with Dogberry on the lines that the hon. Gentleman suggested. I doubt whether many magistrates would do that. Certainly, they would be quite wrong to do so, because it is not a matter of asking the policeman whether he is satisfied that a serious arrestable offence has been committed. The magistrate himself must be satisfied.
The hon. Member for Southampton, Itchen (Mr. Mitchell) asked whether the Magistrates Association had been consulted. One of the reasons why we went for an inter pastes hearing on the detention procedure was that the Magistrates Association had asked for it. The association, however, distinguishes between that jurisdiction—the far more serious matter of keeping a person in detention—and the power to grant a search warrant. I believe that that is a proper distinction. Certainly, the association has been consulted on these matters. I hope that the hon. Member for Bethnal Green and Bow, too, is reassured about that.
As for reasonable force, I venture simply this. Everyone knows that for donkey's years the police have been able to exercise reasonable force in executing a warrant, which means that they can use such force as is necessary to enable them forthwith to execute the warrant given to them by the magistrate. The question of whether it is reasonable must be considered in the light of the circumstances prevailing at the time, and not, as it were, clinically at some later time when all the pressures and circumstances of the moment no longer apply. But there is nothing new in any of that.
The hon. Member for Ormskirk (Mr. Kilroy-Silk), who is no longer here, asked what problems and cases had arisen. I have already dealt with the circumstances in which there should be power for the police to search but in which, paradoxically and anomalously, there is at present no such power.
I am grateful for the comments of my hon. Friends the Members for Canterbury (Mr. Crouch) and for Hastings (Mr. Warren).
The hon. Member for Barking (Miss Richardson) asked about reasonableness, which I have explained. As for whether the officer must be in uniform, there is no requirement for him to be in uniform, but clause 13(7) requires that if the officer is not in uniform he must produce documentary evidence to show that he is a constable, and under subsection (6) a constable executing a warrant is required to identify himself, so there is nothing new in that. A policeman does not have to be in uniform to execute a warrant. The only new aspects are the two safeguards represented by the two subsections. The hon. Lady made important points, and any sensible police officer will take them seriously.
It is tempting to seek to answer each and every point, but it would be wearying to the Committee. I hope that I have satisfied the Committee that the new clause has been carefully thought out in response to the anxieties that have been expressed. Many hon. Members have acknowledged that. It seeks to meet the recommendation of the Royal Commission that the police should have greater power to investigate serious offences. The safeguards that hedge about the new power are important. The public can be assured that they will be safeguarded by the new clause and that the police, at the same time, will get the powers that they need.
It would not be helpful to the Committee to go around the arguments again. I am aware that, fairly soon, we shall move on to a further debate before we have an opportunity to vote on new clause 2. I wonder whether, when we vote on new clause 2, it will be possible to vote on amendments (a) (e) and (g).