Clause 5 amends the Police and Criminal Evidence Act 1984 in an important way by increasing from 24 to 36 hours the period for which a person may be detained without charge at a police station while a case against him is investigated in the case of any arrestable offence. That is a very substantial change to current practice proposed by the Government.
In proposing an Opposition amendment to delete the provision, I hope that the House will bear with me while I examine the history of this matter and current practice, before assessing the impact of the change. As matters stand now, the 24-hour rule exists for the protection of the individual who has been arrested. It is undesirable per se for any person to be detained without charge at a police station for any excessive length of time, except for the time reasonably required to investigate the offence for which the person has been brought in. Twenty-four hours has long been considered an appropriate period for such detention.
That said, there have already been, and remain, exceptions to that existing rule. In the case of a serious arrestable offence, the period may be increased by the police superintendent to 36 hours. That covers a substantial number of offences that most people would accept warranted a long period of investigation: including treason, murder, manslaughter, rape, kidnapping, incest with a girl under the age of 13, indecent assault, offences under the Customs and Excise Management Acts, causing explosions, intercourse with a girl under the age of 13, possession of firearms with intent to injure, use of firearms and imitation firearms to resist arrest, carrying firearms with criminal intent, hostage taking, hijacking, torture, causing death by dangerous or careless driving, endangering the safety of aerodromes, hijacking of ships, seizing or exercising control of fixed platforms, hijacking of channel tunnel trains, seizing or exercising control of the tunnel system, taking indecent photographs or pseudo-photographs of children and the publication of obscene material.
That is a long list, tailored to make specific exceptions to the 24-hour rule in circumstances that Parliament has considered in the past justify making such exceptions. The question arises as to the basis for changing to a far more general rule, which would allow detention of up to 36 hours for all arrestable offences. In the run-up to the Bill's introduction, the background intention for the change was discussed. The Home Affairs Committee considered the matter in its pre-scrutiny report, albeit a report that it acknowledged was rather hurried in respect of the time allowed for consideration. The Association of Chief Police Officers told the Committee that the initial detention period of 24 hours could provide insufficient time in which to conclude the investigative process and charge a detained person because of delays elsewhere in the custody process—for example, in obtaining the services of an appropriate adult, police surgeon or interpreter, or when a suspect is initially unfit for interview because of alcohol or drugs. It felt that delays linked to the provision of legal advice could also put pressure on the custody clock.
Another argument was that some offences did not fall into the category of serious arrestable offences, but many people nevertheless regarded them as being serious—burglary and robbery, for example. However, there is already a saving clause in that such offences may become serious if their intrinsic nature—the amounts of money obtained or the specific circumstances—justifies it, in which case a police superintendent can deem that they fall into that category, though it can be challenged in court. However, I am not aware of any successful challenges to such procedures.
That provides the background, and I assume from what was said in Committee that it was the reasoning behind the Government's view that the Bill should amend certain provisions in the Police and Criminal Evidence Act 1984. The problem is that a moment's scrutiny of the consequences conclusively reveals that some of the offences to be included in the highly serious category will surprise many people. Trespassing on an aerodrome, for example, would fall within the category that allows detention for 36 hours. The House therefore needs to ask whether the blanket change is justified in preference to inserting further exceptions in PACE.
The Minister will recollect that we abstained on this matter in Committee in order better to reflect on what he had to say. Our approach is pragmatic. However, the more we reflect on it, the more unconvinced we become of the merit of the proposal. The case was powerfully made in Committee that the extended powers to detain up to 36 hours are rarely used. Indeed, a Home Office report surveying how many times individual police forces detained up to 36 hours in a 12-month period revealed that the Avon and Somerset constabulary, Cumbria, Dorset, Durham, Humberside, Norfolk, Nottinghamshire, Staffordshire, Dyfed Powys—I remind the Minister that that force has the highest clear-up rate of any force in England and Wales—and the North Wales police had never used it. The Metropolitan police, who one might think likely to use the power frequently because of the level of serious crime in the capital, had used it only seven times.
As Simon Hughes pointed out in Committee, one police force, Gwent, seemed to have a particular predilection for using this method of detention up to 36 hours, having used it 192 times in a 12-month period.
I did point that out in Committee, as the hon. Gentleman has generously acknowledged. Subsequently, however, I received a letter of correction, showing that the Gwent figures had been inaccurately reported. The one example demonstrating that one particular force had often used the excessive power has proved to be aberrant, so no force appears to have used it frequently.
I am extremely grateful to the hon. Gentleman for clearing that up. While studying Hansard, I noticed that the Minister had certainly not corrected that matter. I did find it extraordinary that one police force should use the power so often. The hon. Gentleman's clarification reinforces the point that the vast majority of police forces have no need to use the extended power, and those that have used it have done so only rarely.
As the Minister knows, 36 hours is not always the cut-off point for serious offences under current arrangements. It is already possible to continue well beyond 36 hours—in fact, for up to 92 hours—if application is made to the court. Generally speaking, that is considered quite long enough to carry out full investigations.
Another issue raised in Committee was the question of how things were done elsewhere. Clearly, comparisons with other countries may be helpful in ascertaining whether the police need the 36-hour power. The Minister wrote to the Committee helpfully setting out the initial detention periods in different countries—and the correspondence makes illuminating reading. In respect of Australian states, the figures show that in New South Wales, the period of detention is four hours. In Queensland, it is eight hours, which can be extended for a further eight hours with a magistrate's approval. In South Australia, the period is four hours, with a four-hour extension granted by a magistrate. In Canada, the period is 24 hours, with a possible extension from a justice of the peace. In Denmark, it is 24 hours, with a 48-hour maximum, to be extended by the court. In Finland, the period is 24 hours. In France, it is 24 hours, with an extra 24 hours possible on the stamp of the public prosecutor. In the Netherlands, the period is six hours, excluding the hours between midnight and 9 am, and there can be an extension of another six hours thereafter. In South Africa, the period is 48 hours, and in Spain it is 72 hours. In Sweden, it is six hours, with a six-hour extension.
I do not find the Spanish model an especially happy one, as I suspect that it may be a carryover from a period in Spain's history when it enjoyed a rather authoritarian form of Government.
I wait to hear from the hon. Gentleman, who intervenes from a sedentary position. I do not know the answer to his contention, but the period strikes me as being very long. I note that, apart from Austria and South Africa, the proposed period of 36 hours, with the extension provided for by the superintendent, will put us in an usual category. Britain will allow detention for longer than most other countries.
I therefore return to the original question, which I wanted to ponder after the Committee debate: is the proposed period really necessary? The Minister's international comparisons, and the precise nature of the proposed change, leave me with an increasing feeling that the change is unjustified.
I hope that the House will forgive me for reading from the Minister's letter of
"As you know, the police can currently only extend detention without charge beyond 24 hours (and up to 36 hours) in relation to serious arrestable offences. Some offences are always serious arrestable offences and these are specified in section 116 of Schedule 5 to PACE. However, section 116 also makes it clear that any arrestable offence can qualify as a serious arrestable offence if it has led to or is intended or likely to lead to certain specific consequences. For example, serious injury to any person or serious financial loss to any person.
It follows from this that there is a sense in which the proposals in clause 5 of the Bill do not add any new offences to the group where detention up to 36 hours is available. This already applies in respect of any arrestable offence if the 'consequences' test is met. What the clause does is to allow scope for extended detention in relation to any arrestable offence, whether the consequences test is satisfied or not."
That letter seems to demolish completely the Government's argument that this amendment is really necessary. The only possible use that I can see being made of the provisions allowing detention to continue beyond 24 hours is in those cases where it strikes me as likely to be totally unjustified. I am sure that the Minister does not consider that to be a desirable outcome.
The House should consider the matter carefully. Later in our proceedings, although not today, we will consider Government amendments concerning taking DNA and fingerprints from people who have been arrested and taken into police stations. As I understand it, the purpose is to take advantage of the golden opportunity presented when someone is arrested. The police can check whether that person is wanted for, or connected with, some offence other than the one for which he has been brought in.
When I read those amendments, and then look at the proposed increase in police detention powers, I feel slightly worried that we are signing a blank cheque to the police, encouraging them to use the occasion of arrest as an opportunity to carry out trawl searches in connection with a person arrested for an offence which, although trivial—such as the theft of a packet worth 6p from the supermarket—is still arrestable. The police could then take the opportunity to find out more about that person, and detain him while those investigations are carried out.
My hon. Friend is mounting a forensic dissection of the Government's rather draconian and clumsy case. He has just hit the nail on the head. Should not the essence of the power to detain be that it is based on reasonable grounds for suspicion, and not on an incentive to the law—and its officers, in the form of the police—to mount unwarranted fishing expeditions on other grounds?
My hon. Friend is right. Of course, the reasonable grounds of suspicion should relate to the offence for which the person is arrested.
I want to be realistic: I am the first to accept that there will be occasions when the police pick up a person for some minor matter and then suddenly realise that they have hit the bull's eye and that they have laid hands on someone who has committed serious offences. However, there needs to be a balance in all this, and no one has persuaded me that the Government have got it right. The Minister did not persuade me of that in Committee, although he did enough to make me willing to think further. However, he has not persuaded me that the existing powers do not adequately allow for the possibility that I have described.
The anxiety must be that, once the House gives an extra power to the police in this blanket form, the inevitable consequence will be to encourage those who are given the power to use it routinely. That is what always happens, although not as the result of some sinister intention. In contrast, at present the police must be constantly mindful of the fact that in the ordinary course of events a person has to be released within the 24-hour period.
I repeat: if the Minister can come up with compelling arguments in this afternoon's debate to justify his position and explain why the proposed power is so vital, then I am, on a pragmatic basis, open to persuasion. However, he did not succeed in doing that in Standing Committee, and his subsequent honest and forthright letter seems to damage the case yet further. The letter highlights the fact that the power is not needed.
In addition to the dangers that my hon. Friend has just highlighted, is there not a real prospect that a change to 36 hours rather than 24 will become the norm rather than the exception? Moreover, in respect of offences for which a 36-hour period is allowed, will not the clamour come from the voices of authority for a limit of 48 hours, or some other period that would be excessive?
My hon. Friend is absolutely right. One anxiety expressed in some circles, and particularly in legal circles, is that as soon as the extension of the period by administrative action by the superintendent is raised routinely to 36 hours, one of the first possible consequences is that the Government start encouraging the idea that they might approve an extension of the court's discretionary powers.
Obviously, criminal cases need to be investigated fully. However, two things need to be borne in mind. The first is an issue of straight civil liberties: it is undesirable that people should be detained for excessive periods of time without charge. A look at the provisions in comparable countries in the civilised world leaves us with the impression that Britain is moving very substantially towards putting itself on the upper level of countries that allow for long periods of detention. That bothers me.
Before my hon. Friend finishes, will he deal with the Government's response to the Home Affairs Committee? They said, as an excuse for bringing in this proposal, that in many cases those detained needed medical treatment or a translator, or that there needed to be a pause while waiting for a solicitor to arrive. Does my hon. Friend agree that it should be incumbent on the police to get their ducks in a row, as it were? Would that not be preferable to changing fundamentally the civil rights of the person who has been arrested and detained?
I agree entirely with my hon. Friend that that is the case. Moreover, in fairness to the police, from the evidence available it seems that that is what is happening. Some figures were given in Committee. We were told, and I think I have seen these figures subsequently, that 1.3 million people were arrested in a 12-month period and that there were 697 occasions on which people were detained for longer than 24 hours and not charged. We also know from Home Office research that the average period of detention is six hours and 40 minutes. Even in murder or rape cases, it is 22 hours. That does not suggest that there is some compelling problem.
Moreover, the Bill makes new provisions for bail conditions, which will make it easier for the police to interview and release someone and then get them back to the police station successfully if they have insufficient time in which to carry out investigations for relatively minor offences.
Again, I must update the hon. Gentleman to ensure that the record is correct. As a result of the correction by Gwent police, the total figure that he just cited—693, I think—is reduced by about a half. The total is much less significant and normal practice is well under the 24 hours, as he rightly suggests.
I am grateful to the hon. Gentleman and can see how the one follows logically upon the other. I thank him for pointing that out.
I ask the Minister, therefore, where the problem is. Where is the justification for doing this? I know that the hon. Gentleman is a liberal-minded man and would consider it desirable that all police investigations should be carried out expeditiously and that people should be detained for a minimum period. My professional experience suggests that the longer a person is detained in custody, the more likely it is that something will go wrong unwittingly. Being detained in a police cell is not a pleasant experience for those who have to go through it. Even though PACE sets out to protect people who are being interviewed and investigated by the police, there can be no doubt that the longer such a period of detention is, the more likely or possible it is that a person—without coercion by the police, as I am not suggesting any impropriety—may be disturbed and distressed by the experience. The quality of the investigation and its truthfulness are likely to suffer as a result. It is enormously desirable that people should not be under stress while an investigation is taking place.
For all those reasons and having reflected carefully on what was said by all parties in Committee—although at that stage we abstained in the vote—it is the official Opposition's view that the clause is unjustified. We will seek the support of hon. Members on both sides of the House to delete it, although I would be even happier to have some words of comfort from the Minister and to hear him say that the matter will be properly reconsidered, which might enable me not to press the amendment to the vote.
I shall be brief and will not repeat all the arguments of Mr. Grieve on the amendment to which my hon. Friend Simon Hughes and I have added our names. As has been said, this matter received our attention in Committee and we have not changed our view that the Government have failed to provide a justification for their proposed change.
We must consider the purpose of the Police and Criminal Evidence Act 1984, which is protection for the citizen. We must also consider that holding someone in custody prior to charge places a limitation on their liberty for the specific purpose of questioning and investigation of an offence. First, it is incumbent on the police and the judicial authorities—the state—to ensure that that period of detention without charge is as limited as is consistent with the interests of justice.
Secondly, as the hon. Member for Beaconsfield said, the 36-hour period can already be used in serious cases as specified in legislation. The fact is that that power is rarely used. It is not considered necessary in the overwhelming majority of cases. Indeed, we have heard that the average detention time before charge is around the six-hour mark, which is not an unreasonable average. Home Office figures show that there were 1.272 million arrests with only 697 persons held for the 36-hour period. We now know that half of the latter figure came from Gwent and that Gwent police provided incorrect figures, which means that the figure was only 300 to 400, so the power is used sparingly by the police.
I would be more concerned if the police did not already have the ability to seek an extension from a magistrate. That power exists and under extreme circumstances, where new evidence is emerging or the suspect cannot be questioned owing to intoxication or whatever, the police can seek leave of a magistrates court to extend the detention period.
I am in any case wholly unconvinced by the Government's approach. If there is a concern about specific offences, it seems odd to include in clause 5 the catch-all provision of the arrestable offence under section 24 of PACE. For a start, the offences are not identical to those that most normal people would consider serious. As the hon. Gentleman said, offences that fall into that category include some that most people would not consider should require such a provision, while offences that fall outside the category would require it. For example, the charge of affray falls outside it, but that could be an offence for which the additional provision would be of value. Burglary is also a serious point of contention.
Our preferred route is that if the Minister has evidence that the police face problems with the investigation—if he has such evidence, he was careful not to provide it in Committee, or in correspondence since then—of certain offences because of the present restrictions, he should say so and we should change the list of offences for which the 36-hour period is appropriate. He has not done so. He has simply introduced this catch-all clause for "an arrestable offence".
Does the hon. Gentleman agree that "an arrestable offence" includes the sale of tickets by unauthorised persons for a designated football match, touting for car hire services and the placing of advertisements relating to prostitution in the immediate vicinity of a public telephone?
The hon. Gentleman is right. Putting a postcard in a telephone box does not seem to me to justify 36 hours' detention without charge. The Minister will have some difficulty persuading me of the rightness of that view.
For all those reasons, we were not persuaded in Committee and voted against the provision. I was saddened that our Conservative colleagues were not able to join us in that vote but I understand that they had a reasoned approach—they wanted to wait to hear what the Minister might propose and take a view later.
In Northern Ireland, we are very conscious of the fact that, whenever there is an extension of a period of detention without charge, the police officers who carried out the arrest receive an awful lot of criticism. However, clause 5 refers to "conditions"—and hon. Members should note the plural—
"to be satisfied before detention without charge may be extended from 24 to 36 hours".
The clause then changes section 42(1)(b) of the Police and Criminal Evidence Act 1984. Can the hon. Gentleman help hon. Members such as myself to make up their minds on whether we should seek to delete clause 5? Will he outline the other conditions that have to be satisfied before the extension from 24 to 36 hours can be made?
Oh dear. The hon. Lady has asked me a question and I do not have the information to answer her. She is an expert in this area and added a great deal to our consideration in Committee. I cannot answer her question but the Minister may be able to help when he replies.
Notwithstanding the points that were made by Mr. Grieve about arrestable offences that would be covered by the extension, does the hon. Gentleman accept that most people would think that any offence that could be subject to a five-year term in prison could count as a serious offence that should be covered? That is what the proposed extension would mean.
First, that is not what the Government are saying. Secondly, I am not convinced that every person in this country would agree with the hon. Gentleman's contention. He is talking about holding someone for 36 hours without charge for the sort of offences that have been mentioned by the hon. Member for Beaconsfield. Does the hon. Gentleman honestly believe that people in the Rhondda are calling for a 36-hour period of detention without charge for people who may have left a postcard in a telephone box or touted for private car hire? I do not believe that that is what the general public believe. In fact, I think that they would be very concerned were Gwent police to be given that power, irrespective of whether they get their figures right in reporting to the Home Office.
The hon. Gentleman's constituency is, of course, in the area covered by South Wales police, but he may have some knowledge of Gwent police, who are not very far away. I do not accept his or the Minister's contention that clause 5 is necessary.
Apart from my views and the views that we heard from the hon. Member for Beaconsfield, the Home Affairs Committee has considered this matter and rejected the Government's view. The Committee prayed in aid the Runciman royal commission on criminal justice, which considered this issue a decade ago and said that no change was necessary. Largely because the present provision of 24 hours was rarely used, people came to the view that an extension was not necessary.
I do not disagree with anything that the hon. Gentleman has said, but let us be clear that the offences cited by my hon. Friend the Member for Beaconsfield were, in every case, trivial. Does the hon. Gentleman agree that, however one divides the cake of police time, one does not change its size and that it would be almost criminally irresponsible for this House to vote to enable or oblige the police so to spend their time as to prevent them spending it much more effectively in more deserving cases?
The hon. Gentleman is right in principle but in practice I do not think that that would be the consequence of this clause being enacted. I trust the good sense of the police not to use their time in that way.
Mr. Grieve fully and helpfully set out the circumstances and the nature of the argument. To the best of my ability, I will try to persuade him—while acknowledging that the Conservatives did not vote against this clause in Committee, although the Liberal Democrats did—of the argument for the change suggested by the clause. Listening to both the speeches that we have heard, I detected that a case for the principle of some extension might be accepted but that there was concern about the scope. That happened in Committee and it has been reflected today.
If Parliament hears evidence of a particular problem with the investigation within the 24-hour period of individual offences which cannot be put in the category of serious offences, I am prepared to be pragmatic and make an exception for them. However, the clause contains a blanket extension that will have powerful symbolic and practical consequences. I am not prepared to accept those consequences unless I can be persuaded that the blanket approach is correct.
Perhaps the hon. Gentleman will bear with me while I try to assuage his concerns. As he rightly told the House, PACE allows detention without charge for longer than 24 hours only if a serious arrestable offence is involved. As he helpfully told us, serious arrestable offences are either inherently very serious—murder, rape or kidnapping—or specific offences that produce serious consequences such as serious injury or serious financial loss.
I want to address the hon. Gentleman's argument in response to the letter that I sent him after the Committee stage. It was suggested that the way round this problem was to rely on the interpretation of the word "serious" to bring into the purview of a 36-hour detention period offences that might not otherwise be included. The difficulty with that suggestion is that it raises questions such as, "How serious is serious?" and in whose perception the offence is serious. Is it to a hardened police officer who has unfortunately had to deal with many cases, or to someone who has worked hard to save what may appear to be a small amount of money but which to them is a very large amount? To that person, theft of that money would be very serious. Rather than trying to twist the definition of "serious" in a way that would not be terribly helpful, it would be better simply to lay the thing open and—for reasons that I shall come to—say that, where the investigation requires a longer period of detention, we should permit it.
I agree with the hon. Gentleman that to pervert the sense of "serious" would not be the right way of dealing with this. That is why I hope that he will accept our argument that, if there is evidence that specific offences lead to a problem, they should be specified in a schedule to the Bill rather than being covered by the amorphous provision that he advocates.
I accept the argument that the hon. Gentleman makes; I was simply trying to protect myself against the charge that I had undermined my case in what I thought was the extremely helpful letter that I sent to him. I do not believe that I have undermined it.
It may be of assistance to the House if I read the list of offences that are not automatically serious arrestable offences but for which a person may be imprisoned for five years. My hon. Friend Mr. Bryant made a helpful point about such offences. The list consists of theft, robbery, burglary, handling stolen goods, threats to kill, actual bodily harm, indecent assault, blackmail, conspiracy to defraud, counterfeiting, criminal damage and riot.
Schedule 1A to PACE contains a specific list of arrestable offences—some of which the hon. Member for Beaconsfield read out in support of his argument that the police would not, in relation to such offences, want to spend an enormous amount of time detaining people for up to 36 hours. On that list are other offences, including the carrying of offensive weapons without lawful authority or reasonable excuse; the publishing or distributing of written material that is threatening or abusive, or that could stir up racial or religious hatred; and racially or religiously aggravated harassment. I simply want to put that on record because it puts in perspective the argument that has been advanced in some quarters during this short debate that this measure is a sledgehammer to crack a nut. The offences that I described, which will now be brought within the purview of the extension that the Government propose, are quite serious nuts.
I am glad that that meets with approval. We are asked why the provision is in the Bill and whether it is just because the Government fancy extending the detention period. I am surprised that no hon. Members have drawn attention to the PACE review that was undertaken. The answer to the question, "Where does this come from?" is that it comes from the PACE review. I shall read what that had to say, because it makes the case very strongly. It states:
"The initial detention period of twenty four hours can provide insufficient time in which to conclude the investigative process and charge a detained person because of delays elsewhere in the custody process, for example: obtaining the services of an appropriate adult; police surgeon; or interpreter; or when a suspect might initially be unfit for interview for reasons of alcohol or drugs intoxication. The Review has looked at several options regarding amending the detention clock, weighing up the practicalities and attendant bureaucracies of each proposal. In addition to the measures to enhance the provision of Appropriate Adults, healthcare professionals and interpreters, the Review recommends that the initial period of detention for which someone may potentially be detained for an arrestable offence be extended from twenty four to thirty six hours, under the authority of a superintendent."
I accept that that is what the PACE review said, but there seems to be a lack of evidence to back up the existence of the problem in practical terms. Indeed, the only statistics that Simon Hughes was able to lay his hands on, which he quoted to the Committee, and which I have seen, rather suggest otherwise—that the police have no great difficulty in handling the 24-hour rule. That is why I asked the Minister to explain in detail something beyond simply the wishes of the Association of Chief Police Officers.
I was about to come to that having completed the quote from the PACE review.
I hope that I have dealt with the suggestion that the extension of the detention period has come from nowhere and that it is a whim of the Government.
No, it is not—it comes from the PACE review, which considered a whole range of issues to do with the operation of PACE. In the judgment of those who conducted the review, there was a case for the extension.
I want to draw hon. Members' attention to the view expressed by the Select Committee on Home Affairs in its report. Although in the end the Committee was not persuaded, the report said:
"We accept that the current time limit may cause difficulties in some non-serious cases."
So the Home Affairs Committee also acknowledged that there could be a problem with the current arrangements. The point that my hon. Friend the Member for Rhondda made a moment ago is a forceful one. The hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath) are right in the statistics that they gave us. In practice, even with the current arrangements, the number of people who are detained beyond 24 hours is very small indeed. The average detention period for all cases is between five and six hours, and even for serious cases the average is less than 24 hours. That suggests that in the vast majority of cases the current arrangements work. In essence, the argument is that in some circumstances the current time limits may cause difficulties. That is why the PACE review asked us to make the change, and why the Home Affairs Committee, even though in the end it was not persuaded, accepted that in some non-serious cases such difficulties may arise.
Indeed: may. Equally, they may not, but in circumstances where they do, we have to ask whether it is right and proper to permit, with safeguards—that is my final point—the extension of the detention period.
Before the Minister deals with his final point, does he accept that if the police were at a significant disadvantage, they could give us lots of examples of how they have been, as it were, knocked up against the ceiling and unable to act in the interests of the community? It is not as if the existing limit is a final limit—there is always the power to go to a magistrate to get an extension. The ability of the police to keep people in detention for longer exists; it just requires an extra authority for them to be able to do so.
I am not entirely sure whether the hon. Gentleman is suggesting that we should go further, but in any case we are not suggesting that for one second. All that we are arguing is that in certain circumstances involving the difficulties identified by the PACE review—that is a good base of opinion, evidence and expertise on which to make the case—we should permit an extension.
On safeguards, it is important that we retain the requirement for the police to seek authorisation for continued detention from a senior officer of the rank of superintendent or above. The senior officer—this answers the question put by Lady Hermon—will now have to satisfy himself or herself that the investigation is being conducted diligently and expeditiously before granting an extension. Mr. Bercow conjured up the image of the police being obliged to spend a lot of time on cases that they were not interested in, to which the answer is that of course they will not do that.
The fact is that this is a change that the police, through the PACE review, have suggested to us it would be sensible to make. In the end, we are all happy to rely on the good sense and judgment of the police to use the power within the framework of the law where there are good grounds for doing so. I conclude by saying that I simply do not believe that it will be used in a vast number of cases, but in cases where it is necessary, it is the Government's view that it is sensible to make the change.
The clause is somewhat surprising in that it removes the duty on the custody officer under the Police and Criminal Evidence Act 1984 to make a record of the property of detained persons when taking them into custody. We had an interesting debate in the Standing Committee, and I am especially grateful for the contribution made by Mr. Malins, whom we miss today. He clearly stated the arguments for not removing that duty on custody officers.
The Minister's argument for doing so was highly pragmatic, focusing simply on reducing the bureaucratic requirements on police officers and thereby simplifying their task—[Interruption.] Does the hon. Gentleman wish to intervene?
The Minister agrees, as one would expect, that his approach in Committee was pragmatic. There was no more substance to his argument than that having to record every item taken from a detained person could be a relatively time-consuming practice and that the police officer's lot would be much easier if that duty were removed. He spoiled his argument somewhat by adding that he expected guidance to suggest to custody officers that making a record of property was a very good idea and good practice, although not essential in every case. I found that rather difficult to understand—the Minister looks puzzled, but I assure him that that is what he said.
There is a strong counter-argument to that contention. First, if something is considered good practice but not desirable in all cases, I simply do not understand how one identifies cases in which it is not necessary to record property taken from a detained person, and cases in which it is right to do so. That is not a test that can be left to the good sense of the custody sergeant, because it would depend on the subsequent actions of the person taken into custody—whether they wished to make a formal complaint—which is something that he or she could not normally foresee at that point.
Two arguments must be adduced, the first of which centres on the interests of the detained person. There is a question about that, although that is not to impugn the honesty, integrity or thoroughness of members of the police force who are responsible for custody suites. My experience is that they are normally the most experienced and capable officers and they take their responsibilities extremely seriously. Nevertheless, when a person's property is confiscated, it is right that there should be some form of receipt for the articles taken. I find it difficult to conceive of a circumstance in which that would not be appropriate.
In conjunction with that general point is the finer point made by the Joint Committee on Human Rights, which expressed serious concern. The Joint Committee took cognisance of, but questioned, the Minister's assertion that the Bill does not engage protocol 1, article 1, of the European convention on human rights. The Joint Committee believes that under that protocol the authority for the confiscation of property is questionable, and that to confiscate and make no record makes the practice still more questionable. I agree. There is a potential violation of human rights in this instance and the Government should reflect carefully on whether the certification that they have provided is accurate in the light of the Joint Committee's advice.
My second argument against removing the practice of recording a detained person's property is, I believe, more salient: making a record is for the protection of the police. I know perfectly well that among those who are regularly arrested for one offence or another there is a culture of finding reasons to enter a complaint against the police about the treatment that they have received. That is standard practice—when I was involved with a police authority, it was almost endemic. To provide an entirely new context in which complaints can be made—to enable people to claim, "That sergeant took away £50 that I had in my pocket and he ain't given it back," or that some other item of property that the person had or pretends to have had on his person was not returned—will open up a new industry of complaints against the police.
In this country, complaints against the police are investigated properly. Any potential saving in bureaucracy made by not recording items taken from individuals will be more than compensated for—indeed, excessively compensated for—by the bureaucracy involved in investigating spurious or other complaints against custody officers about unrecorded materials claimed to have been taken from the arrested person and not returned at the due point. It seems to me that police officers need the protection and the certainty of having provided an itemised list and agreed it with the arrested person at the point of being taken into custody.
Would not all the difficulties that the hon. Gentleman foresees be solved if there were guidance to the effect that, at the custody desk, property should be put into a bag, which is then sealed? The sergeant and the defendant sign the seal, which thereby presents its own record. That would save the time that is currently spent compiling a list.
The hon. and learned Lady remakes a point that was made in Committee. There are alternative approaches that the Government could have used. I agree that having a bag sealed in the presence of the arrested person with his or her agreement, or keeping a record that the individual withheld assent to that process, gives the police officer essential protection. That is a proposal that the Government could have made, but have not.
I shall be perfectly open and say that I have not discussed that specific point. However, I have some experience of policing from my involvement in a police authority and I am aware of the distortions that can arise. Individual officers will have two thoughts in their head. They will rightly be concerned about how to reduce their workload and about how they are protected, which is the other side of the coin. The proposal of Vera Baird would have the benefit of achieving both aims, as it would reduce the workload to a manageable level and prevent spurious complaints against police officers doing their duty.
The only difficulty relates not to articles, but to money. That is a serious issue, and it was raised in Committee by the hon. Member for Woking, who was concerned that, at the very least, a record should be made of any amount of cash taken from a person at the point of their being taken into custody. It is self-evidently right and proper that that should be done. I am sure that the Minister will tell us that the guidance will say that it should be done. If so, why does not the Police and Criminal Evidence Act 1984—the basis for the codes of conduct and conduct in the custody suite—say the same thing? Why does the clause amend that Act by removing any requirement to record such information? Why have the Government not tabled an appropriate amendment that takes into account the concerns that have properly been expressed? The Minister appears to share those concerns, at least in part, as he seemed to indicate assent to the view that guidance would be given about recording amounts of cash.
Even at this stage, there is nothing to prevent the Government from saying that they will amend the Bill to provide protection. If they will not do so, the House should reject the clause and ask them to look again at the subject, and formulate a proposal that achieves the objective of reducing bureaucracy while also reducing the possibility of abuse of the process, whether on the part of the police officer or, as is far more likely, on the part of the arrested person in the form of a spurious complaint. In the event of such a complaint, much less of a defence will be available to the police officer if no record is kept.
I ask hon. Members seriously to consider the matter. Although it is small in the context of the whole Bill, it is nevertheless serious in terms of police procedure. I hope that hon. Members will take seriously the points raised not only by me but by a wide cross-section of the House.
Mr. Heath made a powerful case in favour of the amendment. Unlike the earlier amendment that touched on the civil liberties of the citizen, it does not deal with some great constitutional principle, but relates to an area—I am slightly mystified about this—in which there seems to be a divergence between the views of hon. Members, including myself as a legal practitioner, about what is in the best interests of all parties, including police and defendants, and the view that the police have clearly advanced, which the Minister has accepted in the clause.
It is incumbent on me to explain why I take that view. My hon. Friend Mr. Malins made a powerful case about the matter in Committee. He started by saying that it was extremely useful for a full list to be made of a detained person's property. I concur with that view, because such a list assists both the police and, subsequently, the prosecution—a point to which I shall return in a moment. Of course, it is also a protection for the defendant, as a proper list of property ensures that he will get all his property back, and for the police, as it ensures that they cannot be subject to any allegation that they have held on to somebody's property improperly. While I accept the point made by Vera Baird, who said that it might be possible to put all the items into a sealed bag, I believe that a written record provides better reassurance.
The other issue that has particularly troubled me is that in a number of Customs and Excise cases in which I have acted as prosecutor, a subsequent reference to the property listed as having been on a defendant at the time of arrest has proved extremely useful in bringing the prosecution, when the officers themselves did not have the slightest idea when they made the list that the items on it would turn out to be relevant subsequently. Examples include bits of paper with numbers written on them, one of which turned out to be a key telephone number relating to a person with whom the defendant was alleged by the Crown subsequently to have made contact and who was part of a conspiracy to import substantial quantities of cocaine into this country.
I remember calling cards and visiting cards cropping up in another case. The cards had all been usefully listed; Customs and Excise has always tended to be extremely diligent in listing items taken away from defendants in airports and ports of entry, and in including any details. Frequently, the defendant will not be released from custody prior to trial, so that material will remain in a locker. In this particular case, the material was noticed because, as prosecutor, I had looked at the custody record sheet with the investigating officer in preparing for the trial and said "What is that? I think we ought to have a look at it."
I suppose that the police can be assumed to know their own business, but I cannot help thinking that the issue will give rise to problems and that, in some cases, things may slip through the net that could otherwise be very usefully recorded. This is a practical issue. It is practical for the defendant, who may say to his counsel when it comes to his trial, "Well, you know that I had on me the card that proved that I saw Bloggs that afternoon and it is part of my alibi defence; he gave me his card." If the card details were recorded at the police station at the time of his arrest, they would be powerful evidence ensuring that the prosecution and the police could act in tandem with the defence in providing evidence that could help establish the truth in the case.
I think that we are missing something in allowing the police to get out of the routine—I am sure that it is burdensome—of noting down fully what is in people's possession when they are arrested. My hon. Friend the Member for Woking pointed out that the police have a short-circuiting method, as they will record only what they think is strictly necessary. Otherwise, they will simply include information under generic terms such as "other cards", if they think it is irrelevant, so the burden does not seem especially onerous.
Another thing puzzles me very much. I have been a lay visitor at police stations, so I have experience of sitting and watching the room into which arrested persons are brought when they are processed before being put into the police cells. I have seen that happen on numerous occasions. Indeed, I had six years of visiting police stations in Hammersmith and Fulham in that role, which was very educational for me, because that is not an environment into which a barrister normally has cause to go. I did not notice that the duty was a particularly onerous chore. It is true that the custody sergeants get rather bored carrying it out, but they seem to be capable of doing so fairly quickly. Unless somebody is arrested while in possession of hand baggage containing massive amounts of property, it is not my experience that that responsibility is among those that are so burdensome that it would be of great use to the police to be freed of it.
One point that needs to be considered is that the police must establish a custody record when somebody comes into custody. It is not as if they cannot do so or can avoid doing it completely; so one way or another, the custody record sheet must be opened and property listing must take place. At least, a decision must be taken about what should or should not be listed.
I really am puzzled that, in those circumstances, the police feel that the difference between a list of three items and a list of 15 will make such a massive difference to their time. Of course I accept that there may be circumstances in which 16 football hooligans have to be processed after a match and it might be convenient to be able to short cut, but the House needs to balance the short cutting against the possible down side. I repeat that what strikes me most forcefully is that, from my experience in criminal practice, the list of a person's property proves useful, one way or another, even though it is not expected to be, when the trial takes place and people say, "Let's see what's on the custody record sheet."
The Minister will recollect that the official Opposition did not press the matter to a vote in Committee—we withdrew a probing amendment—but the more I reflect on this issue, the more I think the police are doing themselves a disservice in trying to get such a short cut. Unless the Minister can persuade me that the police have got it right and that those of us who have other experience of the process, as legal practitioners, lay visitors or anything else, have got it wrong, I shall support the amendment in the Division Lobby this afternoon.
I am sure that there are all sorts of other areas where bureaucracy ought to be cut, and I welcome the fact that cutting that type of bureaucracy has been considered, but on careful reflection—I hope that the Minister will take these comments in the spirit in which they are made—I think that the police may regret such a mistake if Parliament enacts it on their behalf.
I felt that Mr. Grieve made a very powerful point. I fear that I have not really thought this through before, but I, too, have in course of practice come across many cases in which something being or not being on the list was highly relevant to the Crown or to the defence and sometimes to both.
The difficulty with the solution that I proposed, which I thought met all the problems mentioned by Mr. Heath, is that the record of what was in the defendant's possession when he came into the police station only survives by my mechanism so long as the bag of property survives. Once the bag of property is broken open—either because it is returned to him, or because some of the items are to be exhibited—there is no continuing record and no opportunity for a record to be made when the bag is broken open. So my suggestion would not provide a solution to safeguard evidence or materials for both sides.
I should very much like to invite the Minister to apply his mind to that difficulty. I have no doubt that lists of the property on people's bodies at the time of arrest can be highly relevant. The other point that perhaps my hon. Friend needs to consider very carefully is that the custody record is made out by a custody sergeant who is not an officer involved in the case in any event and that it would be a very rare case indeed where he had the slightest understanding of relevance of the material on the defendant's body.
It just occurs to me that one advantage of the sealed bag scheme that the hon. and learned Lady proposes might be that it would eliminate the queues, which are the problem that the Minister is trying to address, by allowing the recording to take place at a later stage. That would release the operational officer back to his beat, or whatever else he is required to do, and leave the custody suite officers to record the articles and retain their evidential value at their leisure.
I am very grateful to the hon. Gentleman for that intervention; it is perhaps an example of how the process of debate and allowing interventions while a thought is fresh in the mind can refine the issues. It is an extremely good idea. If the real problem is a queue in the police station at the time, the job of listing the property could simply be put off by the mechanism of bagging up the items, signing across the seal and, when more time is available—probably to a civilian—getting the defendant out of his cell and making the list at that time, when there is no pressure at all. I commend that to the Minister as an idea that should be considered very seriously.
This short debate links very neatly with the previous one because it, too, is about time—in particular, police time—and hon. Members will be aware that the purpose of clause 6 is to allow the police more discretion in recording and handling property, whereas the Police and Criminal Evidence Act 1984 currently requires them to "ascertain and record everything". The intention is not to do away with the records, but to give the police greater flexibility in deciding how detailed a record they keep and, in effect, to reach a judgment in each case.
As with the previous issue that we debated, this proposal arises from the PACE review, and it comes from the police. It is interesting that we have heard the argument advanced that the police who proposed it may not have fully appreciated what they were suggesting. Indeed, that is a debatable point. The PACE review said that the police identify the requirement to list a detained person's property in full as time consuming and not always necessary. For that reason, they have suggested that PACE should be changed.
Perhaps I can reassure the House on this issue, which is relevant to time. We were talking about the clock in the previous debate and, in fact, the clock starts the moment that the person arrives in the police station, so the length of time taken to record everything in a bag, for the sake of argument, is taken away from the overall detention period and, indeed, adds to the time that the person is detained.
Keeping records will still be the normal practice in any case, but there is no reason why, as the law is currently framed, the way in which the information is kept should be precisely prescribed. For example, the police may prefer to maintain a freestanding property register. In those circumstances, why should not the custody record refer to the existence of any separate property record?
The strongest argument for the proposal is profoundly pragmatic—the hon. Member for Somerton and Frome rightly attributes that motivation to the Government in introducing it—as it would make possible the proposal to which my hon. and learned Friend Vera Baird drew attention in her intervention: all the property could be put in a sealable bag and the person detained and the custody sergeant could sign the seal, and that sequence of events could occur if the seal were broken subsequently. That would avoid having to write down a great list. I do not know about other hon. Members' bags, but there would be quite a long list of things if I were arrested with my bag in my possession.
Oh, I do not know about that, although needle and blue cotton thread may not be in all hon. Members' bags.
If all the property were put into a big, strong plastic container, which was sealed and signed by the defendant and the custody sergeant, that would be a much more sensible way to hold the property, rather than listing it at great length. The current law would not permit that to happen, which is why we have included clause 6, because that is exactly what it will allow. The hon. Member for Somerton and Frome said what a jolly good idea and asked why the Government did not go down that road, but clause 6 does go down that road by making possible the use of a plastic bag, which is not currently the case.
The hon. Gentleman also made an important point about certain items, such as money and other valuables, and it is certainly our intention that those should continue to be recorded. Indeed, we will refer to that issue in the guidance on dealing with detained persons' property that we will provide to the police, assuming that the clause forms part of the final Act, as I hope that it will.
As I understand it, the Government are replacing a legislative provision with what is called guidance. What is the status, if any, of this guidance? Is it to be a piece of delegated legislation? If it is breached, what is the sanction? If there is no sanction, what is the point of the guidance?
The purpose of the guidance is to assist the police in giving effect to the change that they have asked for for the reasons that I have advanced. As I have said, in their view it is not necessary in all cases to list every item that people have in their possession when they are arrested. The guidance would go to the police. It would be expected that the police would follow that guidance—it would not have the same force as PACE—in operating the policy and in exercising the discretion available to them when deciding in precisely what form the property should be recorded.
My hon. Friend has been helpful. He says that the guidance would indicate what procedures should be followed, but what if the police do not follow the procedures? What then is the sanction?
In the circumstances to which my right hon. Friend alludes, it would depend on precisely which way the police had not followed the procedures. I was about to say that I undertake to reflect upon that. The issue relates to the point that Mr. Grieve raised, where there are circumstances in which an individual is anxious that it should be recorded that he or she had in their possession certain items at the time when they were arrested.
Two arguments have been advanced about why difficulties might be created from an evidential point of view, which is the point on which the hon. Member for Beaconsfield focused when indicating that he was unhappy about the proposed provision. I undertake to reflect on the situation where an individual is especially anxious that it should be recorded that he or she had something on them. It seems that that could appropriately be covered in the guidance.
I shall complete the point about evidential value. PACE already allows for the investigating officers—obviously not the custody sergeant, who is undertaking a clerical recording task—to examine the person's belongings if they think that they are pertinent to the investigation, and it will continue to do so.
My hon. and learned Friend the Member for Redcar suggested that perhaps the bag could be left on one side, for the full list of property to be written out at a later date, but I envisage a practical difficulty with that. Under the current arrangements, the average length of time that people are detained is about five hours. What will happen if the person is to be released and his or her property has not been recorded in detail because the police have had to devote time and effort to other priorities? That would be a difficulty in operating such a policy.
I take the Minister's point that it would always be possible for the investigating officer to go back, as it were, to have a look later. However, there are two points. First, if the person has been released following charge and the property was not retained, it would be impossible to make the record. The property would have disappeared. If it had been fully recorded, it might still be possible to establish what was on the defendant even though the property itself had gone.
Secondly, in reality in many cases, reading the custody record sheet has alerted me to the existence of property that had not been searched for by the investigating officers. If we are to say, whenever there is a prosecution, "Please look in the property bag as a matter of routine," that will add to the bureaucracy.
It is not the intention that the proposed change should add to the current bureaucracy. In the end, we are trying to strike a balance. The view has been put to the Government by the police and the PACE review that to ascertain and record every item in every case, as the law currently provides, is over-prescriptive for the reasons that the police have advanced. They would like to have greater flexibility, and we have discussed a number of ways to achieve that that would seem to be satisfactory. We are balancing that with the arguments that I hear frequently and forcefully put by Opposition Members about bureaucracy bearing upon police officers. Before us is a sensible and pragmatic anti-bureaucracy measure for which the police have asked.
I am not a lawyer, and I say that as a matter of pride. However, I am interested in the rights of the suspect. As the Minister says, the arguments are finely balanced. I ask the hon. Gentleman further to explain what he appeared to be suggesting a few moments ago whereby the detained person might be required to specify something that he or she particularly wanted to be recorded. Given that the Minister said in an earlier debate that someone might be incapable either because of alcohol consumption or drug absorption from conducting himself properly, is that not a potential conflict? If the problem can be easily resolved or if I have misunderstood the Minister, no doubt he will explain.
In circumstances where someone is intoxicated, it will be difficult to get much sense out of them, whether that is in relation to the custody record or their possessions at the time of arrest. That would also apply to anything else that the police might wish to ask them about the circumstances that led to their arrest. In responding to the debate, I was trying to make the point that it should be possible—as I have said, I undertake to consider the matter—within the guidance to respond to the point made by the hon. Member for Beaconsfield, where an individual is anxious that it should be recorded that they had a particular item of property in their possession at that moment. He gave the example of a business card. The hon. Gentleman has made a fair point and I undertake to respond to it so as to make the new system operational.
Mr. Bercow was gracious enough to acknowledge that we are balancing different arguments in trying to reach a sensible way forward. I hope that the House will accept that the reason for the clause is the proposed change, which will reduce bureaucracy, as the police request. That reduction in bureaucracy can be combined with other ways of securing property. A plastic bag with a seal and two signatures is an effective system to ensure that arguments such as "Did you have this in your possession?" or "Did the police add something to what were alleged to be your possessions?" would be overcome. At the same time, through the guidance, we would provide for continued recording of items such as money and other valuable items in the circumstances that I have outlined.
I was hoping that the Minister would address the serious matter raised by Mr. Heath about the compatibility of clause 6 with human rights obligations under the first protocol of article 1. Is the hon. Gentleman convinced that the clause is compatible with our obligations regarding the peaceful enjoyment of people's possessions?
I find it a little difficult to understand how confiscation without record is compatible with the peaceful enjoyment of property. Even setting that aside, the Minister has failed to persuade elements of the House that a sensible way forward is to take away all the protections that are available under PACE, which, as Mr. Davies said, is law, and replace it with something that the Minister has not yet worked out, which will be put forward as guidance and expected to do the same job. I am not persuaded of that. I do not think that many Members will be persuaded of that. Therefore, I intend to press the matter to a Division.