My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
moved Amendment No. 1:
Page 1, line 10, after "property)" insert "insofar as they are offences under that section of a type that is specified for the purposes of this section by the Secretary of State in an order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament"
Amendment No. 1 is a probing amendment. It is one of that merry band of amendments that has been hidden away in Grand Committee for half a dozen days on the Extradition Bill. I must say that it is marvellous to say that this is a "probing amendment" and really mean it.
Clause 1 of this not inconsiderable Bill of 307 clauses extends the powers available to police officers by allowing them to conduct stop-and-search operations on persons who are carrying articles which are either made, adapted or intended for use in committing offences of criminal damage.
The relevant offences are set out in Section 1(8) of PACE. At present they are burglary, theft, taking a motor vehicle without consent and obtaining property by deception. Clause 1 would add "criminal damage" to that list. The Government's stated purpose in adding that offence is to allow officers to search people for, and to seize, cans of spray paint used by so-called graffiti artists.
I shall not rehearse the points made in another place about whether a can of spray paint is said to be "made or adapted for" the purpose of painting graffiti; I suspect, as did some of my honourable friends in another place, that it is not. However, whatever one thinks about that issue, it is clear that a can of spray paint would come under the second limb of Section 1(7)(b) of PACE; namely, that it could be intended for use in committing an act of criminal damage.
The question for officers implementing these new powers would be not whether the person was carrying a can of spray paint, but what was his intention when carrying it. That is not an easy matter for them to decide. My amendment is simply to ask the Minister what guidance will be given to officers about intention in these circumstances. How are they to decide whether a person carrying a can of spray paint intends to use it to commit an act of criminal damage? Will the existing standards in relation to prohibited articles simply be applied to spray cans? Or will there be more specific guidance given on the new kinds of situation in which officers will be able to stop and search?
These matters were debated at some length in another place on 17th December last year. It is a matter of reflection as to how long the Bill has taken to reach this Chamber. A huge number of extra clauses have been inserted by the Government along the way. There were debates then as to whether a person could be stopped and searched if he was carrying a copy of Archbold, which it was accepted could not be used to commit an act of criminal damage in certain circumstances. The Minister smiles. She will have used copies of Archbold in very legal circumstances throughout her distinguished career. Mine stays static on my desk: it is too heavy to lift.
I shall not repeat those arguments, but they serve to illustrate the next issue that I raise on the amendment. In paragraph 94 of the Explanatory Notes the Government state that Clause 1 is needed because it gives officers the power to stop and search,
"where they have reasonable suspicion that a person is carrying, for example, a paint spray can which they intend to use in producing graffiti".
The words "for example" are the important ones. They signify that the amendment made by the clause to the Police and Criminal Evidence Act 1984 is not drawn narrowly so as to relate only to the issue of graffiti and spray painting. The clause is not limited but refers to all offences of criminal damage.
The Government have, perhaps deliberately, drafted Clause 1 very widely. We say that they are right to want to give the police the powers they need to tackle the scourge of graffiti. However, because Clause 1 goes so much wider, further explanation by the Government is needed.
My amendment seeks to elicit further information from the Government by restricting the scope of the new power only to articles which relate to those kinds of criminal damage which are specified by order by the Secretary of State. I appreciate that the drafting of my amendment is not perfect. It is not intended to be; it is merely a probing amendment to seek the Government's wisdom on the clause, particularly reflecting their further thoughts in the seven months since the issue was debated in another place. I beg to move.
I declare my interest. I shall play a part in the Bill as a former chair of a police authority and also as a deputy chair of the Association of Police Authorities.
The clause is supported strongly by the police. They feel that the lack of such a power in the past has prevented their stopping such anti-social behaviour. Neighbourhoods can be blighted by such a visible and often highly offensive mess. So long as the police use those powers appropriately and proportionately—where they reasonably suspect someone of carrying an article to commit criminal damage—we on these Benches can support the amendment.
In the past 50 years, crime seems to have become even more sophisticated than it used to be. Besides using fast motor cars, criminals now use various other modern inventions to assist them in the pursuit of crime. It is essential that the power of the police to arrest be restricted as little as possible. If the amendment had gone even further, I would have supported it gladly. My noble friend Lady Anelay has made a case that the Government should take very seriously.
I wish to speak on the amendment, as I am the independent chairman of the chief officer group concerned with race issues in the criminal and civil justice system in West Mercia. Without precise directions, the opportunities for perceptions and realities of discrimination to occur become much greater. Much effort has had to be expended in the post-Stephen Lawrence inquiry environment to check that such abuses do not occur. Therefore, this probing amendment asking the precise directions gives us the possibility of taking precautionary action against very damaging allegations that stop and search, in particular, are prone to bring about.
I am delighted by the comments made by the right reverend Prelate on stop and search. We support the amendment. The clause extends stop-and-search powers and amends the PACE Act 1984 to include the offences under Section 1 of the Criminal Damage Act 1971.
We agree that the powers are reasonable in that there should be reasonable suspicion—there is no difficulty with that—but we are concerned about how they are used. Stop and search, and how those powers are used, is an area that creates very adversarial relationships between people from ethnic minorities and the police. Only a few years ago, 40 per cent of people stopped and searched in London were from an ethnic minority, predominantly black. At one time, 25 per cent of those stopped and searched nationally were from minorities. That is a very high proportion.
Since then we have seen changes in policing methods, but we have still not seen intelligence-based stop and search. One must sometimes wake up to some areas of black settlement in this country to see how young people feel harassed in how they are stopped and searched.
Putting those arguments to one side, the point remains that if powers of this nature are extended, we wish to ensure that such a statutory instrument order is subject to the resolution of both Houses of Parliament. For that reason, we would certainly support the amendment.
I am very grateful to the noble Baroness, Lady Anelay, for tabling the amendment. I am struck, in particular, by the fact that all noble Lords who supported the amendment—which, as the noble Baroness said, is restrictive—also support the clause, which generally widens stop-and-search powers. But I can understand the nervousness. I listened carefully to the noble Lord, Lord Dholakia, and the right reverend Prelate, who referred to "suspicions" that exist about stop and search. We know that there is a long history, particularly as regards the ethnic dimension, and that for a long time there has been a view that there is over-representation of black and ethnic minorities among those who have become subject to stop-and-search powers. I understand the nervousness, so I can see the value of using the opportunity in Committee to probe the intent behind the clause.
We seek to ensure that we have flexibility in how this important legislation and set of powers operate. It is universally agreed that property damage, graffiti on premises and walls, damage to motor cars and all such incidents are extraordinarily irritating, costly, and debasing and degrading to an environment. For that reason, there has been widespread support for the extension of stop-and-search powers to this area of criminal damage. We see no good reason to create or support a route to limit or restrict that extended power. The noble Baroness said that that was not the real intent behind her amendment but that it was to seek further reflection from the Government on how we see the power working.
If a police officer has a reasonable ground to suspect that he will find an article made, adapted or intended for use in causing any form of criminal damage, it seems entirely reasonable to allow him the power to stop and search the relevant person. As I said, a key focus of our proposal is to attack the growing and very serious problem of graffiti. However, we must bear in mind that there are many other kinds of wilful damage to property where police would benefit from stronger powers to deal with the perpetrators.
Careful safeguards have been put in place for the use of stop-and-search powers—the noble Lord, Lord Dholakia, referred to them. They are contained in PACE and the relevant code of practice, Code A, which is issued under the legislation. We are trying to ensure that it is not just spray paint cans about which the police can be concerned. Property can be defaced and damaged by marker pens, etching implements and other items that scratch and deface. Like many other Members of the Committee, when I travel to work by train I find it difficult to see through carriage windows because they have been scratched and damaged so that only a blurred image is visible. Sometimes, early in the morning or late at night, I look through the window rather bleary-eyed, but a lot of damage is done to trains and other public property in the way that I have described. There are other forms of criminal damage: spraying or scratching windows, damaging cars, etching on bus timetables and such activities. We want to be able to capture such activity with this offence.
The noble Baroness asked whether guidance would be issued. Guidance will be issued to the police. As the noble Baroness, Lady Harris, probably knows, the issue is already being discussed with the police authorities, police representatives and the Association of Police Authorities. There is recognition of the value of introducing the new and wider power, but guidance will be very carefully framed so the police use it appropriately. I hope that that has given sufficient comfort to those who supported the amendment.
I can well understand noble Lords' nervousness about any widening of stop-and-search powers. I have campaigned against such changes in the past. But, with this particular offence and the need to do more about graffiti in its many manifestations, the extension of stop-and-search powers is more than justified. I hope that, with those comments, the noble Baroness will feel able to withdraw her amendment.
Although I agree in principle with the proposal, which is necessary, I wish to utter a word of caution. Stop and search is an area of extraordinary sensitivity, particularly in areas of mixed ethnic population. Extending the quarry of the search virtually to cover such items as felt-tip pens means that an officer can justify almost any stop and search by having found an article that in the possession of most people would be perfectly innocent. I hope, therefore, that the guidelines will be updated to take account of that, and that chief constables will be particularly aware of the sensitivities and be closely attentive to the conduct of their constables in such areas. This is exactly the sort of thing that could spark considerable civil unrest. One reason why PACE was introduced was in response to that danger, and, as I was the Minister who took the legislation through, I say that with feeling.
I thank all noble Lords who have contributed to this short debate and I mark well the words of my noble friend Lord Elton, who, as he said, took through the PACE provisions in the first instance. This is, indeed, a sensitive matter. The right reverend Prelate the Bishop of Worcester was right to direct attention to the importance of having precise directions in areas of particular sensitivity.
I am encouraged by the Minister's response saying that there will be guidance and that it will be carefully framed. It will have to be to make the provision work flexibly and to gain the respect of people who will be stopped and searched ever more increasingly under these provisions.
With the leave of the Committee, I shall speak also to Amendments Nos. 3, 4 and 5, all of which are probing amendments.
Clause 2 of the Bill increases the powers of persons who accompany constables executing search warrants. The clause gives such people the same powers as the constable executing the warrant provided that the person is,
"in the company, and under the supervision, of a constable".
Paragraph 98 of the Explanatory Notes tells us:
"For example, it will often be necessary for someone who is expert in computing or financial matters to assist a constable in searching premises. . . . This provision enables such experts to take an active role in carrying out searches and in seizing material, rather than being present in a merely advisory or clerical capacity ".
That is a helpful explanation, and I am sure that the Government are right to seek to expand the role of such experts. In recent months, we will all have seen on the television pictures of police raiding premises where they anticipate finding computers upon which a vast number of pornographic images of children are held. Naturally, the police must have computer experts with them to recover material that the person owning the computer may have thought had been deleted. I am sure that the Government are right to try to deal with that matter.
The difficulty is that a number of questions flow from such a new active role for experts, and I want to try and clear those up. Proposed new subsection 2(B) specifies that the person must be,
"in the company, and under the supervision, of a constable".
Amendments Nos. 2 and 3 would alter those phrases to:
"in the presence and under the direct supervision of".
It looks as if I am pulling at straws, but I am not. The amendments probe the circumstances in which experts and other persons would be able to conduct searches on their own. I am picturing circumstances in which a constable goes into a house to search for a computer accompanied by one or two experts and they look around the house. If the constable is in the living room and the experts are in the study, does that still mean that the person who is with the constable is in their company and under their supervision? I am trying to flesh out that question. Do constables actually have to be in direct sight of and contact with the person for them to be considered to be in their company and under their supervision?
If that is not the case, the person who is accompanying the constable could be given the same sort of leeway as that given to the constable. The purpose of the amendment is to flesh out what happens if the provision is accepted and the search is going ahead. I beg to move.
In sympathy with the noble Baroness, Lady Anelay of St Johns, I would like the same issue clarified. Will the Minister clarify beyond doubt that a constable would have to be on the premises with the authorised person when the search was being conducted? If that is the case, we on these Benches are content to support the clause. It seems sensible to allow the authorised person, who is probably a specialist or expert, to search for suspected records or whatever it is they are looking for. They will know best. With that proviso, I support the amendments.
I support the amendment. Speaking as a completely lay person, the arrival of a police officer in one's house accompanied by someone else is more unnerving than the arrival of a police officer on his own. The behaviour of the person who accompanies the police officer must be impeccable. Such people have the same powers as a police officer and must therefore know precisely what can and cannot be done when a house is being searched. How will such people be briefed? Will they know exactly what their powers are on paper? Will they have a description of what they can do?
When people become absorbed in searching a computer, it is important to know how far they can go. It would be very frightening if one's computer was suspected of holding pornographic pictures, especially if it did not. I am imagining such a scene. Will the Minister tell us how such a person will know exactly what he or she can do?
The noble Lord, Lord Elton, was absolutely right to pinpoint the need to be sensitive about the powers that we invest, not only in the police, but in the people who accompany them. One simply has to look back in history to see what happened in Brixton and at Broadwater in relation to stop and search. Situations such as those must never be repeated.
I seek clarification about matters relating to the individuals accompanying the police when entering and searching. If such powers are given to the police, will they be subject to the Police and Criminal Evidence Act and the discipline identified in that Act? Will the person accompanying the police be subject to the same disciplinary code under PACE as the police officer? Would such a person be subject to the same independent police complaints authority machinery as the police officer involved? If not, we must be very careful not to grant these powers because there must be some accountability whether or not such people are with a police officer.
My noble friend Lady Carnegy of Lour and the noble Lord, Lord Dholakia, have each made an important point. My noble friend Lady Carnegy of Lour said that the arrival of one or more such persons would have an unnerving effect. It is proper that we look at the matter through the eyes of someone who is the unsuspecting and unwilling recipient of a visit. Of course, it is proper for the Government to develop a law to take account of technological advances. We all understand that, and the objectives are shared throughout this House. Equally, however, we must take care not to create what one might call 1984 powers. Under the clause as drafted, such people could enter a house with the powers of a constable, which, after all, are enormous, without even having to say who they are or to carry evidence of identity.
I wish to support, in particular, Amendment No. 5, which requires that such a person,
"shall be required to carry evidence of identity and to produce it to the occupier".
It is noteworthy that the clause does not confer the office of constable on such people, only the powers. Somebody who holds the office of a constable—the root and foundation of all a policeman's powers—must say who he is and show his identity, if required. I hope, therefore, that the Government will, at the least, accept Amendment No. 5. Without it, we would not keep a proper balance.
I support the amendments. It is worrying to have people entering houses, albeit with the authority of the police. I remember the number of complaints we had at the Broadcasting Standards Commission when people arrived with cameras, no doubt with the co-operation or permission of the police. It is a serious matter. We need to be reassured as to whether the powers in the Bill will extend to that category of person.
First, I thank the noble Baroness, Lady Anelay of St Johns, for the way she moved the amendment. Helpfully, she focused on practical examples. It is by considering practical examples that we will perhaps understand better how we intend the new power in the clause to operate. Some helpful and constructive comments were also made during our discussion. I shall go through each amendment in turn. I shall also make some additional points at the close. I think that I can satisfy Members of the Committee on the points they raised in this important short debate.
Amendment No. 2 would achieve an interesting change by using the term "presence" rather than "company". That gets us off to a good start in considering the collective impact of the amendments. The amendment would make little difference. Essentially, the two words amount to the same thing. I think that the noble Baroness understands that. It was a peg on which to hang the debate. That is understandable.
The words simply imply that the constable is on the relevant premises with the authorised civilian. The noble Baroness gave a useful example and asked whether it would be right for the constable to be in the hallway while the civilian was in the study. The answer is "Yes". It is OK under the clause. The constable does not have to be looking over the civilian's shoulder but must be on the premises.
In a sense, that brings us to Amendment No. 3. We take the view that it is right that civilians accompanying a constable to assist in exercising search and seizure powers under a warrant should be supervised by that constable in doing so. There will be supervision. The Bill also makes it clear that a civilian can exercise the relevant powers only in the company—the "presence", if you like—of the constable. Beyond that, there is no need of a further requirement for direct supervision. To be effective, the civilian will need some freedom of action, but he will always act under the general direction of the constable.
I accept that there is a balance to be struck. The example of the computer and the technical expertise that the civilian might have is useful. I am sure that we could extend the range of examples. The civilian will have that technical expertise. The constable may not, but he will appreciate and understand the importance of gaining access to data that the computer might hold, including, in particular, pornographic images and so on. That was a helpful way of looking at the situation.
I repeat that the civilian will always be under the general direction of the constable. The constable retains ultimate responsibility for ensuring that the warrant is properly executed. In part, that addresses the issue raised by the noble Lord, Lord Dholakia. The constable is subject to the PACE codes and to police disciplinary requirements and will have to ensure that the civilian conducts himself properly at all times. In general, the power would not work effectively if the constable had constantly to be looking over the shoulder of the civilian when, actually, he wanted the civilian to use his initiative and exercise his imagination in conducting what might be a very forensic search, particularly if computer records were being examined.
Amendment No. 4 would create a requirement for further written authority from a senior officer before somebody accompanying a constable in executing a warrant could exercise relevant search and seizure powers. That is not necessary. Such a person's participation would, in any event, have already been authorised by a judge or magistrate. That authority would have been given in the knowledge that it implied access to specific powers. Obtaining additional written authority from a chief inspector or other senior officer would add a further level of bureaucracy and might even contribute to delay. In many instances, speed will be of the essence. I am sure that Members of the Committee who have knowledge of the importance of speed in some police operations will understand why we make that observation.
The suggestion in Amendment No. 5 has already been accommodated in amendments to PACE code of practice B, made in response to a similar amendment tabled in Committee in another place. They cover the searching of premises and the seizure of property. The noble and learned Lord, Lord Mayhew of Twysden, was right to remind us of the importance of getting it right and not appearing draconian or 1984-ish.
Amendments to that code came into effect on 1st April. They require that any person accompanying a constable on a search of premises should carry proper identification for production on request. In addition, there is a requirement that the officer in charge of the operation or, specifically, in charge of the search will be required by the code to identify and introduce any such persons and briefly describe their role in the process. That goes a long way towards what I might want if I were feeling vulnerable and threatened by the presence of officers and civilian support staff in my home or my property. The fact that there is a requirement to explain why the person is there and is assisting in the search operation is reassuring. It means that people will get a clear explanation and will be able to understand why the search is being conducted in a particular way.
I think that I have covered all the points raised in the debate save one: would the support staff—the civilians—be fully briefed? They would have to be fully briefed on the nature of the operation. A warrant sets clear limits on what can be searched for and seized, and police officers will always provide thorough briefing. One further thought occurs to me. There will have to be a degree of training for support staff who are to exercise powers under the Bill. They will need to understand fully the import of what they are doing.
The noble Baroness, Lady Howe of Idlicote, raised the issue of complaints, as, I think, did the noble Lord, Lord Dholakia. The officer whom the civilian is accompanying is ultimately responsible and would, initially, face any disciplinary or complaints action as a consequence. Ultimately, the line of responsibility runs to the chief constable, and there is no change from the current position with regard to liability for civilians attending at the execution of a warrant. That liability is there, as it is. The Bill gives further powers to allow civilians to take action in assisting the search. There is that ultimate line of responsibility, and we believe that the current arrangements work satisfactorily. There will be that liability for civilians attending at the execution of a warrant.
Will the individual assisting the police be subject to any discipline, and will the matter of discipline be the responsibility of the police accompanying the individual? If that is the case—the Minister said that from time to time the police are unable to keep an eye on what is going on—what will happen to the individual if he crosses the boundary of his particular responsibility, because there could be heated circumstances? Who will be responsible for the individual and what will be his or her accountability?
When the noble Lord first spoke, he raised an important issue. As I said, we shall require civilians to have the flexibility to work without a constable constantly looking over their shoulder. They will need to use their initiative in helping and supporting the activity of searching premises for particular things. I understand the concerns of the noble Lord, but it must be remembered that the conditions of employment of civilians are very important in this regard. They must conform to proper procedures. They must conform to what is set out in their contract about what they can and cannot do. Subsequently, if they are found to be in breach of it, that is a serious disciplinary offence in itself. As I carefully explained, the line of accountability and responsibility is such that there remains that civil liability right up to the level of chief constable.
If the noble Lord is still unclear about how that will work, we shall ensure that by the time we reach Report it will be set out more clearly in writing how we see those disciplinary responsibilities working. It is an area of concern which we want to ensure we get right. Obviously, I shall share the correspondence with all Members of the Committee.
I am glad that I shall be copied in, because I, too, have the same anxiety that the noble Lord, Lord Dholakia, expressed. In his reply, when the Minister brought before us the possibility of a civilian assistant crossing the grounds of propriety, he said that that would be a very serious disciplinary offence, but as the civilian is not within the disciplinary system, that does not seem to be more than a matter of interest. What we want to know is what would be the effect.
That was not actually the point which I wished to raise, but it is tangential to it. The picture in our minds is the searching of a small premises where the constable may be in the hall and the assistant may be in the study. But what if it is a factory on several floors? Surely, in that situation, the matter of carrying personal identification is important. Equally important for the assistant is the willingness and readiness to exhibit it, rather than throwing one's weight around and generally causing anxiety. It really is necessary for these people to be caught within a proper code of conduct which bites on them, as opposed to merely meeting with reproval if it does not succeed.
My final question is rather bigger. I understand new subsection (2A)(a), which reads,
"the execution of the warrant".
But why is it necessary for these people to have the power of seizure? Surely the constable can do the seizure. That would considerably limit the extension of power asked for under the Bill. Of course, the limitation of the extension of power is something on which we should be keen.
Before the Minister replies, I noticed that he said that the present arrangements worked satisfactorily. Will the Government consider what has happened and is liable to happen in deportation cases—whether involving convicted criminals, overstayers or illegal immigrants? There seems to be plenty of scope for official parties to go to the wrong address or person, perhaps mistaking or confusing their name. Out of this, not only can aggravation occur to individuals, but there can also be considerable repercussions for race relations in the area in question.
I listened carefully to the noble Lord, Lord Elton. I understand his nervousness—in particular, given his comments when we discussed the earlier amendment. The noble Lord has practical experience of introducing legislation which for many people was very controversial. Back in 1984, when the Police and Criminal Evidence Act of which the codes were part, was introduced, there was great concern. There had been an earlier reliance on judges' orders and so forth, but the PACE code was considered to be a very big leap of faith. Those of us—including myself—who argued against PACE and the way in which it was going to work were wrong. It has done a great deal to protect the liberties of the individual. It set clear lines for the police for the operation of legislation. It has worked in the interests of the police and the policed.
We want to ensure that that important tradition continues. For that reason, any changes must be very carefully thought through—a view obviously supported and well appreciated. So, yes, this is an important extension. The noble Lord said that he could see an important way in which it could be constrained by taking away from civilians the power of seizure. However, we take the view that seizure powers exercised by civilians will be important because they give necessary operational flexibility. It may—it probably will—be exercised only in the following way. From time to time, a civilian individual will see something which he or she knows to be of relevance and significance to the investigation which is in hand, acquires—seizes—it and passes it to the constable saying, "Look, this is germane to our inquiry. It clearly is part of what we are after. Here it is. This is the documentation or disk that you will require for the furtherance of this investigation". Seizure will probably be in those terms in most instances. I hope that that gives a reasonable example of how we see this working.
I have nothing further I can usefully add to the debate, which has been helpful. The reflections of the noble Lord, Lord Hylton, were helpful in that regard too.
I am grateful for the contributions of all Members of the Committee, which have drawn out some of the remaining concerns which we will need to resolve between now and Report. I am also grateful to the Minister for saying that he will write in detail to Members of the Committee with regard to the important matter raised by the noble Lord, Lord Dholakia; that is, the disciplinary system to which civilians should be subject. It is important that that is considered before the next stage.
I was also struck that after the Minister spoke about civilians needing some freedom of action, he said that they would be under general direction; that they would want to use their initiative; and that it would be important for them to exercise their imagination. All of that made me think more carefully about the points made by my noble friend Lady Carnegy about the importance of guidance and training. I am grateful to the Minister for saying that he will give further thought to the issue of training. I hope that he will consider that between now and Report. He might include something on the matter in his letter and consult the police as to how that might be approached.
I am grateful to the noble Baroness for giving way. Yes, that is something which should be spelt out more clearly. We want to get this right. We are grateful for the support for how the clause will be exercised. I am particularly appreciative of the understanding of the noble Baroness of what we are trying to achieve and what it will add to the way in which police investigations are carried out. I am more than happy to give a commitment to cover issues relating not just to civilian discipline but to training.
moved Amendment No. 6:
After Clause 2, insert the following new clause—
(1) Schedule 1A to the 1984 Act (specific offences which are arrestable offences) is amended as follows.
(2) After paragraph 2 there is inserted—
2A An offence under section 36 of the Criminal Justice Act 1925 (untrue statement for procuring a passport)."
(3) After paragraph 6 there is inserted—
6A An offence under section 5(2) of the Misuse of Drugs Act 1971 (having possession of a controlled drug) in respect of a class C drug (within the meaning of that Act)."
(4) After paragraph 17 there is inserted—
"17A An offence under section 174 of the Road Traffic Act 1988 (false statements and withholding material information).""
The proposed new clause would amend Schedule 1A to the Police and Criminal Evidence Act 1984 so that fraudulently obtaining a passport or a driving licence and possession of a class C drug were arrestable offences.
Turning first to the provisions on identity fraud, which are contained in subsections (2) and (4) of the new clause, we know that organised criminals and terrorists rely on documents such as passports and driving licences in order to operate and access financial services and that obtaining these documents is a gateway to numerous other offences. At present, anyone suspected of such offences would be summonsed to attend court at a later date. Regrettably, it is our experience that terrorists and organised criminals are unlikely to respond to a summons. If we are to target these dangerous groups we need to give the police the power to do so by making these offences arrestable.
In addition to terrorism, ID fraud—which is often manifested in the use of false passports and driving licences—is an enabler for many offences and has a significant role in illegal immigration and organised crime. Under the current law the police are unable to take immediate action against those suspected of fraudulently obtaining passports or driving licences. The provision contained in the new clause strengthens the law so that the police will be able to arrest such people, who are then less likely to disappear before they are due to appear in court or to destroy the evidence on which the police may later seek to rely. By making the offence arrestable, the police will also be able to search for evidence related to that or another arrestable offence which is connected with or similar to that offence.
Subsection (3) of the proposed new clause replicates exactly the position currently contained in Clause 11. The two provisions have been put together for drafting reasons. It makes sense that provisions relating to the conferring of a new power of arrest should be in a single place in the Bill.
The subsection extends the application of Section 24 of PACE to provide the police with the power of summary arrest in respect of offences of possession of those drugs which are classified as class C drugs under the Misuse of Drugs Act 1971. It achieves this by adding such offences to the specific offences listed as arrestable in Schedule 1A to PACE.
In July last year my right honourable friend the Home Secretary announced his intention to bring forward proposals to Parliament to reclassify cannabis from a Class B to a class C drug under the Misuse of Drugs Act. In conjunction with this he also announced that the police would continue to be able to arrest persons for offences of possession of cannabis where public order is threatened. Currently, the possession of cannabis is an arrestable offence under Section 24(1) of PACE by virtue of the fact that it carries a sentence of up to five years' imprisonment. Reclassification, however, would mean that possession of cannabis would carry a maximum penalty of two years' imprisonment and therefore it would no longer be an arrestable offence under Section 24(1). In order to preserve the power of arrest it is necessary to make specific legislative provision to add possession of a class C drug to the list of specific arrestable offences contained in Schedule 1A to PACE. The list was formerly contained in Section 24(2) of PACE.
By retaining the power of arrest we are not only maintaining the status quo, there will be a presumption against arrest except where specific factors exist—for example, where public order is at risk; where a person deliberately blows smoke into the face of a police officer; where a person repeatedly flouts the law; or where children are put at risk—for instance, where a person is in possession of cannabis near a school.
Under guidance to police forces which the Association of Chief Police Officers is developing, the power of arrest should be used only in such exceptional circumstances. This will greatly assist the police to keep effective control of our streets. It is proposed that ACPO will publish those guidelines on its website. In the vast majority of cases the police will issue a warning on the street and confiscate the drug. Significant resources should therefore be saved which can be redeployed towards fighting more serious drug crime.
Subsection (3) of the new clause should apply also to offences of possession of class C drugs—that is, anabolic steroids and the benzodiazepines. It would be inconsistent with the principles underlying the three-tier classification structure in the Misuse of Drugs Act to have specific laws which relate only to cannabis. In practice, however, we envisage very few cases where the power of arrest will be used in relation to other class C drugs, but it will be available in individual cases where there are specific factors of the kind I have referred to in respect of cannabis.
I know that amendments have been tabled in relation to the proposed new clause. My explanation will probably suffice at this stage, but I shall be happy to respond to any points that may be made in support of other amendments. I beg to move.
Amendment No. 7 would amend the proposed new clause, which the Minister has clearly and helpfully explained. As she pointed out, as a result of Amendment No. 6, the Bill will be restructured—again—by the addition of a new clause extending the list of arrestable offences in PACE. As the Minister hinted in her opening remarks, we have some concerns about this, particularly in regard to subsection (3) and the relatively casual way in which the possession of any and all class C drugs is now to become an arrestable offence. We are not convinced that the Government have fully thought through the effects of this policy change.
Our amendment would limit the arrestable offences to possession of cannabis or cannabis resin and leave the legal position of all other class C drugs unchanged. For the sake of good order, in moving it I shall speak also to Amendments Nos. 40, 41 and 42, which would be relevant only if the Bill were to proceed in its unamended form. They are amendments to Clause 11—
"Power of arrest for possession of Class C drugs"— and have exactly the same objectives as Amendment No. 7; that is, to restrict the power of arrest for possession of class C drugs to cannabis or cannabis resin.
As the Minister pointed out, in July 2002 the Government announced their intention to implement a long-stated policy objective of downgrading cannabis to a class C drug. This will bring cannabis into a category containing 117 other drugs. For the most part they are fairly obscure pharmaceuticals but, nevertheless, have vital medical properties for sufferers of certain diseases such as epilepsy, as the Minister explained.
The Government's thinking on the issue of cannabis appears, outwardly at least, to be rather muddled. No doubt the Minister will enlighten the Committee when she responds. The proposal to downgrade cannabis to a class C drug has, rightly or wrongly, been widely interpreted as an acceptance by the Government of the use of cannabis for social and recreational purposes. It is fair to say that that interpretation has been underlined by various government statements suggesting that the police should not waste their time targeting cannabis and their endorsement of cannabis acceptance policies by the police.
However, under the Bill, the Government appear to be turning 180 degrees. Having at first proposed an apparent relaxation by moving cannabis to class C, they are now using the Bill not only to retain possession of cannabis as an arrestable offence but, for good measure, to add 117 other drugs to the arrestable list at the same time.
Further, when read in conjunction with Schedule 24(2), which increases the maximum sentence for dealing in cannabis from five years to 14 years, the policy appears still further confused. The drug's seriousness is apparently to be downgraded, but punishments for dealers are becoming harsher—a mixed and confused message if ever there was one. Demand is more than likely to increase as users become aware of cannabis having been reclassified as a less pernicious drug. Accordingly, supply will increase, and if the Government think that their provisions in Schedule 24(2) will hold back this tide, I can only refer them to the well known example of King Canute.
If the Bill proceeds unamended, it will not be only on the general issue that people are confused. Many of us have had a very helpful letter from the noble Lord, Lord Adebowale, in his capacity as chief executive of Turning Point. He says:
"The most disheartening aspect of these contradictory proposals in the law is that changes in patterns of supply and use of cannabis cannot now be easily analysed. No one will be able to say whether changes have come about because of the reclassification or because of the increase in penalties for possession".
One aspect of the drugs issue on which we can all surely agree is that it is bedevilled on every side by often unfounded assertions. We need hard information on this difficult topic, and these proposed changes by the Government will not help us achieve that. A further problem relates to the fact that in retaining the power of arrest for possession of cannabis, the Government have swept up possession of all class C drugs into an arrestable offence. In consequence, 117 other drugs are to be treated on an equal par with cannabis.
"there were no complaints in the 1970s, 1980s or 1990s about law enforcement as a result of the fact that possession of class C drugs was not an arrestable offence".—[Official Report, Commons Standing Committee B, 7/1/03; col. 128.]
So if there has been no cause for concern over it not being an arrestable offence for the past 30 years, why should there be such a concern now? Why, potentially, take up police time by extending their powers in an area where there appears to have been no problem over the past 30 years?
These 100 or so other drugs include many medicinal drugs. The Minister referred to benzodiazepines, taken by epileptics. While it is understood that possession of drugs with a prescription is not an arrestable offence, is this legally true, as opposed to being practically true? If it is true, does that mean that epileptics will in future have to carry their prescriptions around with them and, if they do not, might they be arrested? That seems strange. A distinction should be made and if cannabis is soon to be included in the class C category, the importance of our amendments is underlined.
In the Committee stage in the other place, the Minister, Hilary Benn, stated that if a class C drug was in someone's possession because it had been obtained on a doctor's prescription, that would not be contrary to the Misuse of Drugs Act 1971. The police would not be able to arrest for possession unless the drug had not been prescribed. The Minister said in Committee on 7th January that the drugs which are legal with prescription are,
"put in a separate category from cannabis in what will now be the class C category of drugs".—[Official Report, Commons Standing Committee B, 7/1/03; col. 139.]
The problem is that at the moment, I can see no provision in the Bill that separates existing class C drugs from cannabis—hence, the further need for our amendments.
I fear that the Government are in a muddle over their attitudes and policy towards cannabis. Unamended, the Bill will make the muddle worse because it will sweep 117 other class C drugs into the muddle. It is no good the Minister saying that the police will not arrest for possession non-cannabis class C drugs. If they do not need to arrest, why change the law to give them these new powers?
If the Government are determined to pursue their mixed cannabis message, while it is regrettable, then so be it, but let their message be mixed over cannabis alone and not over all class C drugs. I beg to move.
Since we have this amendment before us, part of which is the replacement for Clause 11, I hope I will be permitted to put the point of view of these Benches on the way in which the Bill addresses possession of class C drugs, particularly cannabis. In the light of this, I have, along with the Minister, given notice of my intention to oppose the Question that Clause 11 stand part of the Bill.
The main reason for our objection to Clause 11 and Amendment No. 6 is not the measures about passports and road traffic offences, which we of course support. No, it is subsection (3) relating to cannabis and other class C drugs. The Government's approach in the Bill to cannabis departs substantially from that recommended by the Home Affairs Select Committee in another place and the Advisory Council for the Misuse of Drugs.
In his helpful letter, to which the noble Lord, Lord Hodgson, referred, the noble Lord, Lord Adebowale, who regrets he cannot be in his place this afternoon, gives Turning Point's point of view. He reminds us that the rationale behind the Home Affairs Select Committee's recommendation for reclassification of cannabis was that cannabis needed to be separated from the markets of drugs that cause the most harm. He goes on to say:
"But I fear that the separation of markets will be undermined by the mixed approach the Government has decided on. The separation needs to be at the point of supply, not at the point of consumption".
The Government pride themselves on taking the advice of scientists and experts. Indeed, their whole approach to controversial issues such as how to tackle foot and mouth disease, CJD and SARS, and how to deal with the stem cell and GM crop issues, is based on their claim that they devise policy in the light of the facts as interpreted by experts. In this case, they are ignoring the experts.
Following the reclassification of cannabis from class B to class C, the Government are now in danger of diluting the benefits of that through this legislation. Neither of the two eminent committees that recommended reclassification seriously considered that the Government might retain the power of arrest and greatly increase the penalties for possession of cannabis. While I am aware that the Government have claimed that these powers will be used only when there is a so-called aggravating factor, the powers themselves are wide open to abuse.
The Minister said that arrest is likely to be the exception rather than the rule. This seems a very strange way in which to legislate. If the reason why the Government are proposing changes to arrestability and sentencing for cannabis possession is because they believe cannabis to be more harmful than other class C drugs, I wonder why they are reclassifying at all. If not, why the sudden need to toughen the law? There was never any suggestion before the reclassification that existing penalties for possession of class C drugs were too lenient.
On these Benches, we believe that although the use of cannabis is not without harm, the Government were right to reclassify it, to emphasise the difference between cannabis and other more harmful class B drugs. In addition, there is no evidence that such a move will lead to significant increased use. Given those facts, it is logical for us to oppose the introduction of new powers of arrest and increased maximum sentences.
A major incidental advantage of reclassification is that it frees up police time to deal with the hard-drug dealers, who should be the target of our efforts. A major study on the policing of cannabis by the Joseph Rowntree Foundation in 2002 estimated the cost of enforcing the law on cannabis at £500 per case, or £38 million per year—half a per cent of the total police budget. Introducing the measures in this Bill with regard to arrest and sentencing could remove the advantage of all those savings which could be deployed to consolidate or regain public confidence in the police.
I should like to say a word about aggravating factors. Neither the Bill nor the accompanying notes spell out what the aggravating factors are. As the noble Baroness said, that will come in guidance for the police later in the year. In the light of that, I believe the Bill to be very short-sighted in the way in which it deals with cannabis. Arrest is probably never an appropriate response to the personal use of cannabis, regardless of the circumstances. DrugScope, which has looked at what is probably meant by aggravating factors, is concerned that the discretionary use of the power of arrest will create problems which will serve further to undermine the confidence of some sectors of the community in the police force and the criminal justice system.
Again, the noble Lord, Lord Adebowale, says in his letter:
"There is no compelling evidence that the arrest of people in possession of cannabis leads at all frequently to arrests for more serious offences. Indeed, an analysis of 30,000 custody records found that only 1 per cent of those charged with cannabis possession was later charged with more serious offences".
Therefore, possession of cannabis is not going to lead to other more serious offences.
I hope that the three-strike approach to cannabis possession will not be included in the guidelines. As for the possibility of a public-order aggravating factor, it is highly unlikely that it will be a major problem. Cannabis users rarely offend public order as alcohol abusers do—quite the opposite. In my small experience of cannabis users, they are normally so laid back that they are almost horizontal. Anyway, the police already have extensive powers to deal with breaches of public order, so I am puzzled as to why the provision is needed. There are very real dangers of alienating young people by arresting them for something that they know to be less harmful than tobacco and alcohol.
I am also concerned about the effects of the powers on those who obtain great relief from cannabis, many of whom are MS sufferers, who grow their own and may supply other sufferers. They have waited a long time for a licensed cannabis medicine, and may have to wait several months more. Their relief at the reclassification will have faded when they read the Bill. The possession of a large number of cannabis plants may be regarded as an aggravating factor by some police officers. Police discretion in the matter is dangerous. Many recreational cannabis users are young people who do not engage in any other criminal behaviour and who do not go on to use any other drugs. In the light of that fact, I am sure that we do not want to see them given a criminal record with which to start out in life.
A survey of police officers conducted by Tiggey, May et al found that three quarters of police officers felt that the present cannabis laws criminalised individuals who would not otherwise come to the attention of the police. Nearly half believe that the current arrangements damaged their relations with local communities. It seems absurd to destroy completely the potential benefits of reclassification by including the power of arrest and increased penalties in the Bill. The Runcimann report of 2000 concluded that,
"the present law on cannabis produces more harm than it prevents. It is very expensive of the time and resources of the criminal justice system and especially of the police. It inevitably bears more heavily on young people on the streets of inner cities, who are also more likely to be from minority ethnic communities, and as such is inimical to good police-community relations. It criminalises large numbers of otherwise law-abiding, mainly young people to the detriment of their futures".
Three years on from the Runcimann report, I see no reason to revise that verdict. If powers of arrest are introduced for possession of class C drugs, many of those harms will persist.
I support the amendment, but for my own part I would go further. The reclassification of cannabis as a class C drug was regarded by many as a move in the right direction. Why, therefore, are the Government changing tack so soon? The Minister says, by way of explanation, that the exercise of the new power will be subject to guidelines and, in any event, will be exercised only very occasionally. I do not, for my part, like that. If the power of arrest is to be there at all—although I am against that power for class C drugs—it ought to be spelt out in the Bill in which circumstances it can be used, and not left to guidance.
I hope that this is an appropriate moment at which to say that the whole new clause, and in particular the issues around class C drugs, is for me the focus of a major concern that will appear at a number of points throughout the Bill. I support many of the points made by previous speakers.
The clause, and its earlier subsections, activates a kind of post-September 11th anxiety level in the whole of society and builds upon it. It takes us into an arena where the most creative ways of dealing with criminal offences and offending behaviour generally are submerged under a rhetoric of toughness. The Chamber needs to consider carefully whether that rhetoric of toughness actually contributes to a rise in the level of crime.
If we add to the number of arrestable offences, we add to the number of the people arrested. It may be possible to justify this arrest, that arrest or the next arrest. It may be possible to justify, as the Minister did, particular additions to the list of arrestable offences on the grounds of experience. But at what point will we consider the incremental effect on the culture of arrestability in our society?
If we increase the number of offences, we increase the number of people arrested—otherwise, there is no point in doing it. If we increase the number of people arrested, we statistically increase the number of people wrongly arrested. If we increase the number of people wrongly arrested, we increase the number of people who are inducted into a criminal culture. I do not know at which specific point and in response to which specific clause the Chamber will rebel against that incremental culture. However, I hope that at some point it does. If it does not, under the guise of a rhetoric driven by articles in the popular press and so forth, we shall believe that we are reducing criminal activity and actually be sowing the seeds by which it is increased.
It is no coincidence that the nub of the debate on the clause relates to cannabis. As other Members of the Committee have said, that is an area in which we can be sure that we shall increase the number of people whom we bring into touch with a criminal culture, and whom we label, arresting them sometimes correctly under the law and sometimes wrongfully. In that process, we shall not be reducing criminal activity—we shall be laying the grounds for its future increase. I beg noble Lords to consider very carefully in relation to each and every clause whether we should not have a presumption of not adding to the number of arrestable people and incarcerated people, all of which inhibits the possibility of rehabilitation and reducing criminal activity.
The new policy on cannabis was unveiled some months ago. My noble friend Lord Carlisle made a most spirited speech, pointing out the contradictions in the new policy and the absurdity of saying that possession of cannabis was really pretty unimportant and that the police should not waste their time on it, yet increasing the penalties for dealing in cannabis. Now we have confusion worse confounded. The Bill adds to the confusion by saying that cannabis is not all that dangerous, but that in spite of that fact, and despite the fact that we are downgrading it to class C, its possession should be an offence warranting arrest. That is pretty absurd.
I should have liked things to be left well alone. I do not subscribe to the view that cannabis is unimportant and not really all that dangerous. I have plenty of evidence of the fact that it is extremely dangerous. It is well acknowledged, for instance, that it could precipitate very serious mental illness. I do not subscribe to the nonsense of it being unimportant—but that is a different matter. The fact remains that there is no consistency whatever left in the Government's policy.
The absurdity of the position is best illustrated by the amendment tabled by my noble friend Lord Hodgson. There are a number of substances in class C, and the Government themselves acknowledge that cannabis is really rather different from the rest of them. Yet in the interests of consistency they are saying, "Because we, for our very strange reasons, think that cannabis possession should be an arrestable offence, we feel that it is now necessary to make anabolic steroid possession an arrestable offence". There is no sense whatever in that.
If the Government really think that there is a case for cannabis possession being an arrestable offence even though it has been downgraded to class C, then it should be dealt with on its own. On that I agree with what has been said. We certainly should not go along with the view that it really does not matter if a whole lot of other offences are created or a whole lot of other circumstances are recognised where arrest would be proper.
I confess that I am not as knowledgeable of drugs of an illegal kind as those who have already spoken; so I shall not burden the Committee by commenting on them. On arrestable offences, however, I think that the right reverend Prelate the Bishop of Worcester puts forward a view that should not be ignored. We do not want too many people arrested on a purely prima facie piece of evidence when they may not be deliberately guilty.
Subsection (2) deals with an,
"untrue statement for procuring a passport".
We do not want people to obtain passports by deliberate deceit. However, I should think that many people have been inaccurate, although not deliberately untruthful, in making their passport application. I therefore believe that the provision should refer to "a deliberately untrue statement" rather than simply "an untrue statement". That might enable justice to be done in those circumstances.
I do not think that the Minister mentioned the next issue when she put forward subsection (4). If she did I did not take it in. It is to be an offence under Section 174 of the Road Traffic Act 1988 to make false statements and to withhold material information. Broadly speaking, it is upon the prosecution to establish a case against anyone. Although there are circumstances in which the burden of proof changes, my recollection is that it does not do so here under Section 174. It can be a matter of opinion whether particular information which could even be described as material should give rise to an offence that is punishable and arrestable. I ask the Government to reconsider the exact wording of the subsection. I think that we could be abandoning what has been the usual practice of not arresting people unless they have been deliberately misleading.
I wish to add to the argument advanced by the noble and learned Lord, Lord Lloyd of Berwick, and the right reverend Prelate the Bishop of Worcester. We have heard several times in this House in the past few months the argument that even if something may be an offence on which it would be undesirable to charge many people, it should remain an offence and we should rely on the discretion of the prosecution not to bring such a charge. That was argued a number of times in relation to the Sexual Offences Act. I heard it put forward in the moving debate on the Patient (Assisted Dying) Bill, introduced by the noble Lord, Lord Joffe. The argument was that a humane discretion would be exercised on when to prosecute.
I feel increasingly uneasy when I hear that argument. I believe that the law should be clear. I believe that that is immensely important when the underlying philosophy of our law is that there is a liberty to do that which is not prohibited. We should regard the law and that underlying principle as a rock on which people can set their feet. It is not good enough for the Government to seek to justify the creation of a criminal offence by saying, "This will be used only in certain limited circumstances. For the most part those who live in anxiety may take consolation in the fact that the discretion will not be used to prosecute". I suspect that that is not much consolation to those who live in anxiety.
Even more importantly, I think that underlying this debate is a very important principle of the philosophy of the criminal law. We should not lightly expose people to prosecution by the seductive argument that the prosecuting authorities are humane, sensitive people who will always exercise their judgment wherever possible in favour of mercy.
If the debate is reverting to the more general topic of the government new clause, I should like to add one point on false documentation. The Minister is dealing with passports and driving licences, which are of course the key that opens the door to many things in this country. However, has she thought of national insurance numbers? I remember a remarkable burglary in which the target turned out to be blank birth certificates. We had little doubt that the improper use for which those were taken was to get national insurance numbers and thereby to be able falsely to claim benefits.
I do not think that that matter falls into any category of which the noble Lord, Lord Alexander of Weedon, disapproves; nor, I think, does it fall into anything of which the right reverend Prelate would disapprove. It is not at the moment covered. As far as I can see, it is a pretty serious matter. It is causing an enormous drain on national resources. Will the noble Baroness look into it? I have given her no notice of it, but I should be very grateful sometime for an answer.
I thank the noble Viscount for that intervention. I think that he makes a very good point on national insurance numbers. We know that a huge amount of fraud results from the use of passports and other identification which could include national insurance numbers, resulting in more than £1 billion of waste.
I think that the noble Lord, Lord Renton, was the only Member of the Committee to refer specifically to other issues of fraud. I understand his hesitation about the way in which those offences have historically been viewed. He is right that offences of fraudulently obtaining a passport or driving licence were previously, rather innocently, seen as the result of someone making a mistake or deliberately doing something for their own use. Consequently, those matters were previously not regarded as arrestable. Very unfortunately, times have changed significantly. We now know that passports and other forms of identification can be used for a very serious purpose as the major instrument of those who want to spread terror and anxiety among our community. We have to deal with those matters much more seriously.
Within the meaning of the section if a person made an innocent misstatement, he or she would not be caught. We seek to catch those who seek to use the documents fraudulently. There are many examples of documents that have been obtained improperly. Others have obtained documents to demonstrate the ease with which they can be obtained. One remembers well the journalist who made a fraudulent application for a driving licence on behalf of Mr Blunkett. We know that such documents can be obtained. We need to ensure that people understand that they should not be obtained fraudulently and that we bring an end to that practice. Of course, I shall consider the drafting as the noble Lord suggests to see whether it needs to be perfected in any way. We believe that it suffices at the moment but I undertake to reconsider it.
I turn to the main import of all that has been said in relation to the amendments we are discussing. The theme that ran through the address of the noble Lord, Lord Hodgson, was very much that the measure constituted muddled thinking on the part of the Government. That point was taken up by the noble Baroness, Lady Walmsley, who said that it was short-sighted arresting someone or increasing the penalty for possession. I believe that the noble Baroness made that point on a number of occasions. However, as regards possession, the Government have not increased but reduced the punishment. The noble Baroness will know that previously the sentence was up to five years' imprisonment. We have now reduced it to a maximum sentence of two years. Were the Government's amendment not to be accepted, it would no longer be an arrestable offence. I believe that the noble Baroness said on three occasions that the Government were increasing the penalty. I say very clearly that we are not; we are reducing it.
I believe that the noble and learned Lord, Lord Lloyd, in raising the issue of class C drugs and of moving in the right direction, tried to suggest that we were withdrawing from that very positive stance. I hope that shortly I shall be able to persuade the noble and learned Lord that that is not what we seek to do.
The right reverend Prelate the Bishop of Worcester made a valid point as regards the major concern about rhetoric on toughness. I make it absolutely clear that the Government have no truck with rhetoric. We wish to change things on the ground. I speak for the Government today and I say that, I hope, with clarity. I believe that noble Lords are exercised about the way in which we deal with very difficult social issues on the ground. We wish to deal with them productively and carefully so that we maximise the opportunities to make sure that the rehabilitation of those who offend is, if not assured, at least provided with the best opportunity for advancement so that we do not have the current level of recidivism. I say to the right reverend Prelate that we do not seek to increase the number of arrestable offences. At the moment possession of cannabis is an arrestable offence.
It is right when looking at the level of offences to bear in mind that possession of class C drugs is at the moment capable of being an offence for which people are dealt with. The number of persons found guilty or cautioned for offences involving unlawful possession of class C drugs in England and Wales in 2000 was only 331, but I am sure that those were the more serious cases which had to be dealt with and were dealt with, whereas 70,306 people were dealt with for possession of cannabis. In terms of reducing the number of arrestable offences, I suggest, I hope, mildly and with the greatest respect, that the moves that we are taking will reduce that number and not increase it, although I entirely take on board what Members of the Committee said in relation to the way in which the measures will bite.
As regards possession, I believe that the noble Lord, Lord Hodgson, asked whether people in receipt of prescriptions would be at risk. The Committee will know that Regulation 10 of the Misuse of Drugs Regulations 2001 governs that matter. A person may have in his possession controlled drugs under the terms of Schedule 2, 3 and Part 1 of Schedule 4 to the regulations. That allows a person to have those controlled drugs in their possession for administration for medical, dental or veterinary purposes in accordance with the directions of a practitioner. That is the position. We are not changing it. It will remain the same. It has not caused anxiety in the past and it is highly unlikely to cause real difficulty in the future. However, we have to deal with class C drugs generically. They all come within the same classification.
The noble Lord, Lord Waddington, was right to say that cannabis is not viewed as benign by everyone. The Government are not being inconsistent in their view. The noble Lord, Lord Waddington, mentioned the psychotic effect that cannabis can have on those who suffer from mental illness. Cannabis has been identified as an accelerant in terms of the disintegration of the mental health of some vulnerable adults who have a propensity to that particular vulnerability. We say that cannabis can be a very serious drug. We are not suggesting that its use should be considered lawful. We seek to discourage the use to which it is currently put, particularly by young people. However, we take into account that circumstances need to be addressed in terms of how they are treated.
We need to view the way in which we approach cannabis, and the arrestability of cannabis, within the context of the new structure we seek to put in place in relation to how offenders will be dealt with. As regards the framework—we think that this has coherence—it is important that the guidance that will be produced by ACPO will set a standard which will be applied by all police officers across the country. Of course I hear and understand what the noble Lord, Lord Alexander, said in relation to the need for clarity and consistency of the law. Like him I believe that it is important that that clarity exists if we are to retain our common law, as that which is not denied is inherently permitted within the way in which our law has always been structured. We do not propose to change that.
In the situation in which we now find ourselves there are two pull factors. First, the use of cannabis is deemed to be unlawful because of its aberrant effect on a large number of the population. Secondly, if we wish to reduce its use, we have to be much more sensible and flexible in the way in which we respond to those who may be capable of being persuaded to give up its use entirely. That is where one has to look at the structure which we shall put in place. We are sending out a very clear message to young people that cannabis misuse, or, indeed, any other drug misuse, constitutes criminal activity which will not be tolerated. Police enforcement will, therefore, be consistent with the more structured framework for early juvenile offending established under the Crime and Disorder Act 1998 where a young offender can receive a reprimand, a final warning or charge depending on the seriousness of the offence. Following one reprimand any further offence will lead to a final warning or charge. Any further offence following a warning will normally result in a charge being brought. After a final warning, the young offender must be referred to the youth offending team, to arrange a rehabilitation programme to prevent re-offending.
Let us put that in the context of the way in which we hope that all those dealing with young offenders will approach their treatment and rehabilitation. The officer will have an opportunity to caution the young offender and to remove the cannabis. There will also be an opportunity to track the behaviour of that offender and, hopefully, to make a helpful intervention to stop repeat behaviour before it becomes deleterious to that young offender's health and leads to further activity.
I hear the noble Baroness, Lady Walmsley, when she says that only 1 per cent of the people who use cannabis go on to use more serious drugs. However, I must say to her that that 1 per cent is still very important. We know that those who go on to use them can be destroyed by that experience. I speak for not only myself, but our Government: we do not wish one such person to be lost. We wish to put in place a system that can do justice to the vulnerable and to those who need assistance and support.
The framework is consistent. One difficulty that we have found in dealing with the approach that many have had is that it has not been holistic and has not looked to see how the various parts of the Bill fit together. If one puts the Bill together, the Government's case in relation to the matter is consistent and clear. It is not muddled. However, it tries to be sensitive in its response to the general concerns throughout, because on both sides of the Committee there are those who hold the views of the noble Lord, Lord Waddington, those who might hold views more akin to those of the noble Baroness, Lady Walmsley, and all those who fit between the two.
The way in which we have structured the Bill—using the guidelines, setting it out as we have—gives us the flexibility to respond in a way that might be capable of meeting the needs of those who will be subject to it. That is not only young people, but the community subjected to the bad behaviour that comes with the problem, and the families who are destroyed by the abuse that comes with it. We will have a system that we hope to be prouder of than we have been of the system in the past. There is a lot of work for us to do, but the Government think that we have got matters about right.
Will the Minister assure the Committee that she could justify, were she asked to, the bringing into arrestability of each of the 117 offences besides cannabis? I am not asking her to do it now—it would take too long—but is she sure that she could justify that, in the same way in which she did the bringing in of cannabis? It strikes one as quite a large class of drugs suddenly to be brought into arrestability simply because cannabis has just been downgraded.
I have already said that, generically, the class C drugs will be treated together. I pray in aid the relatively small number of users—abusers, rather—of class C drugs who have found themselves before the courts. Certainly, we would not anticipate that that number should be greatly increased by anything in the Bill. Consider the sensitivity and appropriateness with which the matter has already been approached by those law enforcement agencies that have had the duty imposed on them to deal with it. They have already demonstrated over many years that they are able to deal appropriately with such matters, and we do not expect them to change tack now.
In relation to the discomfort on certainty spoken about by the noble Lord, Lord Alexander, I can say that we have the historical basis to know how the police have dealt with the matter until now. We are not changing the nature of the offence in relation to class C drugs, merely making it arrestable. We can be assured on this occasion that the police and prosecuting authorities will respond appropriately, because they always have. There is nothing to indicate that there has been a material change.
We believe that there will be a material reduction in the number of people who will be arrested and dealt with in the way we have described in relation to cannabis. That is because we are seeking to address—I gave the criteria earlier—the specific aggravated cases of use or abuse of cannabis. I have also tried to make it clear that we are trying to address on the ground an opportunity for police officers to interact more creatively with the young people with whom they have to deal, by giving them the flexibility to caution or remove and dispose of the drugs. They will still be able to say that the offence is wrong and to dissuade, but hopefully their being able to warn and caution will have a beneficial effect.
With great respect to the noble Baroness, she said something in reply to the intervention of the noble Baroness, Lady Carnegy, that I found immensely revealing. She said that we knew how the police had historically acted. The people about whom we are talking do not know that. They know the opposite. We need to take that terribly seriously.
We take that seriously. I was talking about those who currently use class C drugs. We are really talking about those who have been in receipt of prescriptions and other prescribed drugs. When I say that we know, we know from the empirical data that improper cases have not been brought against such people. That is what I mean by "we know". The empirical data suggest that that is the position, not that we are somehow, by osmosis, assuming some special knowledge. The data demonstrate that there is no need for anxiety on those grounds. If there were, I can promise that we would be appropriately anxious.
I am very grateful to all Members of the Committee who have spoken in support of Amendment No. 7, in whole or in part. The noble Baroness, Lady Walmsley, brought her great experience to the debate. The noble and learned Lord, Lord Lloyd of Berwick, wanted to go further than the amendment, but underlined the concerns about guidelines and there being nothing in statute. My noble friends Lord Waddington and Lord Alexander of Weedon spoke on the dangers of ever-wider discretionary powers and the impact that they will have on public confidence in the judicial system and on police-public relationships, a point picked up by the right reverend Prelate the Bishop of Worcester. As ever, my noble friend Lady Carnegy put her finger on the reality of what will happen to the 117 drugs.
The Minister—I mean this most sincerely—gave her usual polished and informative reply. I look forward to reading much of what she said. We will want to come back to the matter on Report, when I would like her to answer three points. First, she did not give any examples—perhaps her officials could help—of problems with class C drugs that have occurred in the past 30 years when they have not been arrestable offences. Secondly, she made a handsome effort to clarify the Government's attitude towards cannabis. The reality is that, although it may be clear in the Home Office, outside the Home Office it is not as clear as it thinks, if indeed it thinks that it is.
Finally, the Minister said that it was not right to have special laws for cannabis, but we are doing so. We are downgrading it to class C, and upgrading penalties for class C because cannabis is in it. We are changing the treatment of class C drugs for cannabis. A special law is exactly what we now have. For the time being, I beg leave to withdraw the amendment.
moved Amendment No. 8:
Page 2, line 26, after "delaying" insert "(for such time, which shall not exceed such maximum as may be prescribed by the Secretary of State in an order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament)"
In moving this amendment, I shall speak also to Amendment No. 9. These are probing amendments.
Clause 3 of the Bill contains provisions that are colloquially known as "street bail", which will allow police officers to grant bail at places other than police stations. Amendment No. 8 reflects a point that was raised in another place; namely, whether there should be any time limit to the period during which a constable can delay taking an arrested person to a police station or releasing him on bail, if the person's presence at a place other than a police station is necessary to carry out reasonable investigations.
"no time limits currently operate under PACE. Most delays in the circumstances that we are discussing will be relatively brief, but there will be circumstances in which a delay could exceed two hours: for example, when the arrested person needs to accompany the police officer during the search of the premises".
There being no time limit at present in PACE, is it possible that an arrested person could be granted "street bail" many hours after his or her arrest? In another place, the Under-Secretary of State added:
"The police, in grabbing street bail as a new power, will not have much incentive to waste a lot of time by keeping people for longer than two hours before granting them street bail".—[Official Report, Commons Standing Committee B, 17/12/02; col. 13.]
In that case, can the Minister expand a little on the sorts of times that we are talking about here? How long might it be before a person was given "street bail" in such circumstances?
Amendment No. 9 would insert a requirement that a detained person should receive a copy of the reasons for such a delay immediately after they are recorded when the person arrives at the police station or is released on bail. Will the detained person receive such a notice? If not, why not, and when will they become aware of the reasons for the delay? I beg to move.
Some of us were present at the meeting held by the Children's Society. Various concerns were expressed about the matter, particularly about the potential erosion of current safeguards in the PACE code of practice, which would be involved. Currently, when a child is arrested, the police have a duty to ensure that the parent, carer or appropriate adult is informed and present during any interview or charging procedures. We are aware that the Metropolitan Police and the Association of Chief Police Officers welcome the provision that bail be granted elsewhere than in a police station. That would save them from inconvenience and reduce the burden on police time. It would also keep operational officers on the street and people who do not need to be detained out of police stations.
The issue identified by the noble Baroness, Lady Anelay, requires some answers. It is important to bear in mind the comments of a number of legal bodies in this country. I draw particular attention to the comments of Justice in this regard. First, it said that while it supports the approach, it is particularly keen to ensure that there should be a time limit of four weeks from arrest to attendance at a police station to avoid people being subject to bail; such cases should be followed up efficiently. Secondly, it raised the important point that the police station to which the person is bailed must be reasonably proximate to his or her place of residence. Thirdly, it said that the arrested person must be entitled to free legal advice, in the nature of police station representation, on answering their bail to ensure that they are in no worse a position than someone who is subject to normal arrest. The most important point raised by the noble Baroness, Lady Anelay, is about the need to give reasons why that is happening. Much of the conflict between young people and the police would be alleviated if they knew clearly the grounds on which the matter was taken up by the police.
I support the comments of the noble Lord, Lord Dholakia. As I understood it—perhaps I have misunderstood; if so, I apologise—the amendment of my noble friend Lady Anelay related to the delay between the person originally being bailed and eventually being taken to the police station. If so, my understanding is that the present position is that we have a welcome power—I certainly welcome it—for a constable, on arresting someone, to bail him at somewhere other than in a police station. That provides flexibility and saves much potential wasted police time and it means that people do not have to be unnecessarily taken to a police station, which may be a considerable distance away, and that they do not have to be detained while the various documents are gone through. That is all sensible, desirable and welcome.
On the other hand, as the noble Lord, Lord Dholakia, mentioned, there should be some time limit on the time in which a person is required to attend at a police station. New Section 30A(3) states:
"A person released on bail under subsection (1)"— which I understand to be a person released on bail other than at a police station—
"must be required to attend a police station".
However, no time limit is put on the time during which that should take place. I believe that Justice and the Law Society are right to say that there should be some limitation on the period during which that bail should last. Presumably by its very nature, bail for someone on the point of arrest in relation to street bail is likely to involve an offence of a lesser degree of seriousness than that involved if he had been formally taken to a police station. If the person is merely told that he can go home on bail but not told anything about when he must appear at a police station, he may well go home to another part of the country, stay there for some weeks and suddenly find, out of the blue—when he has pretty well forgotten about the whole issue—that he has been summoned to go to a police station.
I say that because new Section 30B makes it clear that the notice that the person is given at the time must,
"inform him that he is required to attend a police station".
However, it is purely discretionary in that he merely "may" specify the police station and the time when he is required to attend. He may well be told to go home on bail without any indication at that stage—other than being told that he must attend a police station—of when that will be. I should have thought that it was sensible that there should be a final time limit of four weeks, as the Law Society and Justice suggest, before the end of which he should be required to attend at a police station.
I say to my noble friend Lady Anelay that the only matter that makes me hesitate is that if I am right that her amendment could have that effect, it is rather a long-winded way of saying what I should have thought could have been met if one merely added the words "within four weeks" at the bottom of the second line on page 3 of the Bill.
We have had a valuable discussion on this matter. The amendments relate to the new capacity that we want to introduce to enable the police to bail arrested persons from the point of arrest, which has become known as street bail. We recognise that we are breaking significant new ground here and I appreciate the fact that considerable support has been expressed for it. In particular the noble Lord, Lord Carlisle of Bucklow, recognised the value of the flexibility that this will introduce into the system. However, the new flexibility must be balanced against the need to ensure that, first, it works well and, secondly, it is not abused. We accept that striking that balance is creating some difficulty for us all.
The question of time limits concerning the period of time between arrest, street bail and appearing at a police station is dealt with in the next grouping, which contains Amendment No. 12. It would probably be better if I deal with that issue when we reach the grouping. Amendment No. 8 is directed towards imposing limits on the delay allowed in taking an arrested person to a police station or street bailing them when their presence elsewhere is required to carry out urgent investigations. The capacity for such a delay in relation to removal to a police station is long established, and the clause extends similar provisions to street bail. I think that I can say with some confidence that any delay in such circumstances will not generally be very long, although in certain situations it may be for longer than two hours.
Such a delay might be absolutely essential; indeed, it could be completely counter-productive for it to be anything other than that. I cite, for example, the circumstance where an arrested person is needed to attend a complicated search of premises. However, the police must be able to justify the delay and they will be required specifically to record the reasons for that delay. Imposing what might be described as a somewhat arbitrary time limit does not seem justified in those circumstances. In effect it would restrict a measure of flexibility that has been in place and available to the police for many years. Further, it should be placed on the record that the procedure has apparently operated without any great difficulties and has not noticeably infringed the rights of arrested persons.
So, although it is possible that the delay between the time of arrest and street bail being granted could be significant, searches of premises can take some time. While it is obvious that such investigations must be undertaken quickly, I am sure that we can all think of cases or examples in which they may need to take longer and in which having the apprehended person present at the time would be of immense value to the quality and conduct of the investigation.
Amendment No. 9 refers to the written record of any delays occurring when the arrested person first arrives at the police station or is released on street bail. It would require the arrested person to be given a copy of that record forthwith. In practice, the reasons for any delay will normally be apparent to the person arrested and often will be explained to them by the officer concerned. A record of those reasons will always be available in the detained person's custody record, the police officer's pocket book or the documentation that the arrested person receives when they are street bailed. With that in mind, the absolute requirement that the amendment would impose to provide an immediate copy of the written record in every case seems an unnecessary burden.
The noble Lord, Lord Dholakia, discussed the requirement for the arrested person to attend the police station. That is a very right and proper matter to raise. The noble Lord suggested that the police station ought to be reasonably proximate to the arrested person's home. That is not unreasonable on the face of it, but let us consider the different circumstances under which someone might be arrested. For example, if a suspect is arrested in Newcastle, but lives in Truro, why make the police travel to Truro? What would be the justification for doing that? I do not think that we could reasonably—either operationally or in terms of the effective use of police time—impose a strict stipulation that the police station that an arrested person should attend must be reasonably proximate to their home. That could create great difficulties for the police themselves. However, it may be that sensible arrangements could be made for the arrested person to attend a police station.
The noble Lord also raised the issue of free legal advice. The current situation will pertain. Suspects will be given free legal advice, as they are under the arrangements as they currently operate. We see no difficulty in that. Indeed, I believe that there is wide agreement that the present arrangements work very well. If the noble Lord has a further point which he thinks we should consider, then of course we shall listen to what he has to say.
I hope that, with those comments, the noble Baroness will feel able to withdraw the amendment.
The Minister said that it would be better to deal with the question of whether there should be a final date in a later grouping; that is, when we come to the amendment which, at page 3, line 18, specifies after the word "subsequently" a period of two weeks. Surely the present position is that there is no time limit from the date of the granting of bail until the person is required to turn up at the police station either in Clause 3 or in the later clause. Thus the effect of the amendment on the later clause would be merely to state that if an arrested person is not given notice of the time when he has to attend the police station, then within two months he should be given notice of that time. I sought to make that point that a limit should be put on the time from the date of bail until the requirement to appear at a police station. With respect, the noble Lord has not dealt with that point.
I have not dealt with it because I thought that we might address those issues when we look at Amendment No. 12. If I am reading my notes correctly, the aim of that amendment—which would insert,
"within the period of two weeks from the date on which bail was granted" after "subsequently"—would be more usefully included in the discussion we shall have when we reach the next grouping, of which Amendment No. 12 forms a part.
I am grateful to my noble friend Lord Carlisle of Bucklow for pointing out that there are two types of time limit involved here. That is why I asked for Amendments Nos. 8 and 9 to be degrouped from the following set. I anticipated that there could be just this kind of difficulty in dealing with these matters.
In practice, the noble Lord, Lord Dholakia, has outlined so sufficiently the arguments that I would have put in support of Amendment No. 12 that it would not be right for me to seek to repeat them. When we reach the next grouping, I shall simply drop those remarks from my speech and rely on the arguments already put forward by the noble Lord.
I am grateful to the Minister for advancing the argument further than was possible in another place and I shall read carefully what he has said about the time limits addressed in this group of amendments. I beg leave to withdraw the amendment.
With the leave of the Committee, I shall speak also to Amendments Nos. 11, 12, 13, 15, 16 and 17. These amendments continue on the theme of the previous grouping, probing the Government's new provisions on street bail.
Amendment No. 10 would delete the proposed new Section 30A(4), which states that no condition other than that of reporting to a police station may be imposed as a condition of street bail. As Members of the Committee will be aware, conditions are frequently imposed when bail is granted, such as the requirement not to go to a particular place or to speak to a particular person, such as a witness. However, new Section 30A(4) imposes no conditions as requirements of street bail other than the requirement to report to a police station at a specified time. Therefore, a question arises as to the types of case where street bail would be used if it could not be used in cases where the other requirements might be appropriate.
Is the prohibition on conditions imposed in order to avoid some perceived bureaucratic obstacle, or is that perhaps for another reason, such as human rights considerations? I should be grateful if the noble Baroness or the noble Lord—whoever is to respond—could address those points.
Amendment No. 11, to which the noble Lord, Lord Dholakia, has added his name, would require the notice of street bail to set out the consequences of failure to surrender to bail. In that situation, it will be important to ensure that the arrested person knows what is going on. The amendment would not require much in the way of bureaucracy; it could be achieved simply by adding a paragraph to what I assume will be a pre-printed street bail form saying, "If you fail to attend the police station at a specified time, then you may be arrested". What is the harm in that? It would allow everyone to know where they stand, and I hope that the Minister is able to accept that.
I shall skate over Amendment No. 12. As I mentioned, it was covered in the debate on the previous group. Amendment No. 13 relates to the possibility under new Section 30B(6) of varying the police station or the reporting time. Again, that must be done in writing. Subsection (7) specifies that,
"more than one such notice may be given", of any changes. It is another open-ended provision in this clause and one on which I hope the Minister will comment. In what circumstances do the Government envisage that an arrested person would receive more than one amendment—are we talking about three, four or even more?—to the arrangements relating to the police station and the time of his street bail?
Amendment No. 15 concerns what happens when a person who has been required to attend a police station as part of street bail is then told that his attendance is no longer required. Is such a person deemed to have been released on any form of bail? Therefore, is he still technically on street bail, or, once he is told that he is no longer required to report to a police station, is he released without bail? I should welcome clarification on that point.
New Section 30D allows a constable to arrest without a warrant a person who fails to answer his street bail, although failure to answer to street bail is not in itself a criminal offence—at least, in so far as I read the Bill. Amendment No. 16 would insert a new "reasonable excuse" provision into this power so that a constable could only arrest a person who "fails without reasonable excuse" to attend the police station at the time specified. The questions are obvious: what happens if a family member falls seriously ill or if the arrested person himself is in hospital? As I read the Bill, the constable would still be able to arrest him. Is that what the Government intend should happen?
Finally, Amendment No. 17 is a small drafting amendment. Members of the Committee will have noticed—the noble Lord, Lord Dholakia, has referred to it already—that at present new Section 30D(2) at the top of page 4 of the Bill states that a person arrested after having failed to attend a police station in accordance with the terms of his street bail must be taken to a police station, which may be,
"the specified police station or any other police station".
My amendment would simplify that wording to "any police station". I do not believe that that causes any change of meaning. It reduces the number of words by two-thirds and, as I am trying to increase the number of words in my Amendment No. 11, which I should love the Government to accept, this is the quid pro quo in that it knocks out some words. I beg to move.
I rise briefly to speak to Amendment No. 11. It is absolutely essential that the person who is arrested in the street understands the process, and particularly the consequences, of failure to surrender to bail. That would have been explained to him fully if he had been taken to a police station, and he should have no lesser explanation in the street.
The briefing that we were given from the Law Society states that it is important that persons fully understand the significance of arrest and bail, particularly if English is not their first language. I want to stress the point: particularly if English is not their first language. In the Commons, the Minister said that it was intended to print that information on the back of the notice. However, that will be inconsequential if the information is printed only in English and the person bailed cannot read English. I respectfully suggest that potentially that could cause great problems in large cities such as London, Birmingham, Liverpool and so on.
I want to speak briefly to Amendment No. 12 in order to remind the Minister that he will, I hope, deal not only with the question of whether there should be a time limit between a person being arrested and his being given notice of the requirement to attend, as the amendment suggests, but also with the question of whether there should be a time limit between the time of his arrest and the time at which he must attend a police station.
Again, I am grateful for the way that noble Lords have spoken to these amendments. It has been very helpful because it has focused on the practical aspect of the issue, and I believe that that is the right approach in dealing with this piece of legislation and the innovations contained within it. I shall work through each in turn and try to answer all the points raised.
As explained, Amendment No. 10 would remove the proposed restriction on imposing conditions on street bail, other than a requirement to attend a specified police station at a specified time. I believe it is fair to say that arresting officers who consider street bail will often have limited information about both the arrested person and the circumstances of the offence. With that in mind, we take the view that it would be very difficult to impose realistic and helpful conditions, and the clause, as drafted, would not allow them to do so. Indeed, the clause is designed to offer officers greater flexibility—we make no apology for that—in dealing with what will often be more mundane offences and offenders where bail conditions are unlikely to be required. In some senses, it is for that reason, which is more helpful to the person arrested, that we have had the clause drafted as it is.
Amendment No. 11 attracted support not only from the noble Baroness, Lady Anelay, and the Official Opposition but also from the noble Baroness, Lady Harris, on the Liberal Democrat Benches. That amendment seeks to require that street bail notices refer to the consequences of failing to answer to bail. Again, I can understand why there is a desire to spell out in more detail the notification given.
There is no need to include that point in legislation, and I can give a firm commitment that the standard form that we are devising will set out the consequences clearly. In particular, it will set out the effect of the police power to arrest someone who fails to surrender to street bail. The guidance that we shall issue to the police will stress that, in addition to providing the notice, the arresting officer should explain fully to the persons concerned the consequences of breaking bail.
I also picked up the point concerning the importance of language. Again, that is something on which we need to be clear in addressing this issue. As the noble Baroness, Lady Harris, said, understanding is critical here. Although it is a useful innovation and has flexibility, which is desirable, there is not much point in having that if someone fails to understand exactly what is happening to him. We recognise and sympathise with that point.
Amendment No. 12 deals with the issue of time limits. It seeks to specify the time and location for answering to street bail, and the proposal is that it should be within two weeks of such bail being granted. That would apply where the information could not be given at the time of arrest and where the police sought to use the flexibility within the clause to give the details at a later date.
It would clearly be good practice for the police to clarify as soon as possible the position for persons released on street bail. However, it will often be important to ensure that all the necessary facilities and personnel are available to deal with such a person when he answers his bail. With that in mind, fixing the precise location and date at the earlier time may, in itself, be a very time- consuming process. I believe it is accepted, as it was in earlier debates, that the flexibility provided by this new approach to working is important. We are seeking to retain that. So imposing a strict time limit would reduce that flexibility and might force the police to hurry into arrangements that were unsatisfactory and unworkable from the arrested person's point of view and could be counterproductive to their aim. Taking a little more time might be to the benefit of everyone involved.
Having said that, it is important to put on the record our expectation that, in practice, the vast majority of people will be dealt with within four weeks of arrest. That is our expectation and it is right that we clarify the issue at this stage. However, for the reasons I have explained, we believe it important to retain that flexibility in the interests of both the police and the arrested person, who must be properly respected and responded to.
Amendment No. 13 would limit the police to issuing no more than one written notice of amendment to the arrangements for answering to street bail. The noble Baroness, Lady Anelay, made a reasonable point, asking why there should be a repeated succession of changes. I understand the point she is making and our expectation is that that would not be the case. However, people go on holiday; their arrangements continually change; the unexpected arises, as we expect in our lives. Therefore, there may be a need to change arrangements. A rigid limit to just one set of changes could cause unnecessary problems and undermine the effectiveness of street bail in individual cases. Again, for the record, it is our intention that any changes will be kept to a minimum, but there may be odd occasions when it would be better for a further notice, and then an additional one, to be sent.
Amendment No. 15 seeks to make explicit that a person who has notified that he no longer needs to answer to street bail previously granted should be regarded as having been released without bail from the point when he received the notice. It is self-explanatory that he will not be required to attend the police station and that the matter will not be pursued. For that reason, I cannot see that the amendment takes us further. We believe that what appears in the clause is explicit in the drafting.
Amendment No. 16 would restrict the police's power to arrest a person who fails to answer the street bail to circumstances where he had no reasonable excuse for failing to do so. We believe that this is an unnecessary restriction on the police in relation to what is clearly a discretionary power. If they were satisfied in a particular case that circumstances did not justify them arresting someone who had missed his bail appointment, they would be perfectly able to decide not to do so. The police have plenty of experience in dealing with people who fail to answer for bail for a whole range of reasons. We take the view there is no real reason to expect that they will fail to use this power flexibly where people have good excuse and reason to offer when confronted with what has taken place.
Finally, Amendment No. 17 is intended to simplify the wording relating to the police's station to which a person arrested for failing to answer to police bail can be taken. I congratulate the noble Baroness on the concision of her wording. There is no question that it seeks to achieve what we do with fewer words. I suppose I should be grateful and that I ought to accept the wording. But we feel that the existing wording spells out the position more fully—so it is a fulsome explanation in the wordage count. For that reason, we cannot accept the amendment to the clause.
However, a number of points have been valuably made in the discussion and Members of the Committee have raised issues of which we need to take account between now and Report. While I am not giving a cast-iron commitment to consider them all, they will focus our minds on practicalities. They have been valuably raised in the debate and therefore I am most grateful not only to the noble Baroness for tabling her amendments but to all Members who have contributed. We need to be certain that we have the provisions right and I give a commitment that we will further interrogate the wording.
I hear the Minister's commitment and I welcome the provision that the police should be able to grant bail otherwise than at a police station. I want to raise an issue and hope that I have the peg on which to raise it; that is, the difficulties of the time provision, the four weeks and the flexibility. That indicates that there will be difficulties for defendants and I want to raise a point for which the noble Baroness, Lady Scotland, was a protagonist in her previous incarnation; that is, ensuring that people have proper representation. It would be helpful if the noble Lord could tell us his views on whether those who are released on bail in this way will be entitled to free legal advice in the nature of police station representation in regard to answering their bail. It would be a great pity if this beneficent provision in the Bill created an unintended disadvantage for defendants.
I understand that free legal advice will continue to be available in a similar way to the present provision. In such circumstances, it will be helpful if it is because it will enable the person who has been arrested and is perhaps the subject of allegations to be represented. It means that he will be able to present himself better in dealing with the police and it is in everyone's interest that that continues to be the case. I hope that that satisfies the noble Lord's point.
I wanted to make a further point in response to an issue raised by the noble Baroness, Lady Harris. I wanted further to clarify what might happen when a police officer is considering giving street bail to someone and it becomes apparent that the person's understanding is not as full as perhaps would be desirable in that circumstance. If the officer cannot speak the language, and it is clear that he is not achieving a level of understanding, it is unlikely that he will go the extra step further and use street bail. It would, or could, be misunderstood by the person he was arresting or seeking to arrest. In that circumstance, it would probably make good operational sense to take him to a police station where interpretation can be properly arranged and where he can be fully appraised of his rights and responsibilities. Police training will need to tease out those issues so that they are properly clarified for all concerned.
I thank the Minister for his full and careful response, in particular for his statement that the Government will consider some of these issues during the Summer Recess. The amendments examine the practical end of how to achieve street bail in the best way because, as my noble friend Lord Alexander of Weedon said, we support it.
I welcome the Minister's comment that in regard to Amendment No. 11 there will be a standard form clearly setting out the consequences of failure to surrender. I was grateful for his further words addressing the point raised by the noble Baroness, Lady Harris of Richmond.
The disappointment is that he could not see fit to accept my Amendment No. 17. My noble friend Lord Renton is in his place and he is always assiduous in trying to reduce the number of words in a Bill. I was trying to do my little bit but I was delighted to hear the reason prayed in aid by the Minister for saying, "No, you can't chop those words out". He said that there should be a fulsome explanation and he welcomed it. Those words will come to haunt him in the future when I press other amendments. I beg leave to withdraw the amendment.
moved Amendment No. 14:
Page 3, line 24, at end insert—
"(8) In cases where the person arrested is a child, bail will only be granted in the presence of an appropriate adult to whom copies of any notifications must be given.
(9) "Appropriate adult" has the same meaning as in the Codes of Practice under the Police and Criminal Evidence Act 1984 (c. 60)."
Amendment No. 14 is a probing amendment, the purpose of which is to ensure that in cases involving children the granting of bail will take place only in the presence of an appropriate adult. As we have heard, Clause 3 removes current requirements of the Police and Criminal Evidence Act 1984 for a police officer to proceed to a police station as soon as practicable after arresting a person. It also allows police officers, on arrest, to give bail to the person rather than take the person to a police station at that point. The Children's Society and other children's charities are concerned about how that might affect children.
The clause has the legitimate aim of making the best use of police time and of reducing the time that police officers spend on administrative tasks. It also means that the total time that people are deprived of their liberty will be reduced, as the "custody clock" starts not from the time of arrest but from the time detention is authorised by the custody officer at the police station.
The children's organisations are concerned about the impact of the changes on children and the removal of current safeguards under the PACE codes of practice. The organisations are seeking assurances about how the new provisions will comply with the UK's obligations under the United Nations minimum rules for the administration of juvenile justice to ensure that parents or guardians are immediately informed of any arrest. It is difficult to see how that can be done on the street.
As currently drafted, we believe that the clause will result in the wholesale sacrifice of the additional safeguards provided under the PACE codes of practice for children, with four possible consequences. First, there is the risk of a lack of understanding on the part of the child of the significance of the duty to answer to bail at the specified police station at the specified time and the implications and consequences of non-compliance, bearing in mind that failure to answer to bail is an offence.
Secondly, those responsible for the care of the child are not directly informed of the fact of an arrest, nor the requirement to answer bail. A child may have what they feel is a valid reason for not informing their parents or carers. That may result in censure of parents or carers who are totally unaware of their responsibilities because they have not been passed on to them by the child.
Thirdly, the presence of "Failure to answer to bail" on an individual's record, no matter when it dates from, means automatic exclusion from any compassionate release provision if a person is serving a custodial sentence. That could be very serious for the young person some way down the road. Fourthly, there is the possible re-emergence of "guided tours" of scenes of offences with the arrested individual asked to identify which was "their" offence.
Part of the reasoning for the introduction of the codes of practice was that particularly vulnerable suspects should not incriminate themselves without the advice and safeguards they introduced. That is even more significant given the proposed provisions in the Criminal Justice Bill for indeterminate and extended custodial sentences.
To conclude, we believe that in cases involving children it is imperative that safeguards are put in place to ensure that parents or guardians are informed of an arrest and that children are supported throughout the process of arrest and bail. I beg to move.
I support the amendment, which is tabled in my name also. I shall not speak at length because the noble Baroness, Lady Walmsley, put the argument in a convincing, unassailable form.
As currently drafted, the Bill means that we would throw overboard a whole series of safeguards for children. I believe that that would be done at our peril and should occur only after careful thought. I look forward to the Minister's response as to why the Government feel that these safeguards properly can be jettisoned. At the moment I am not persuaded.
I do not want to speak on the question of bail for children. Nevertheless, it would be helpful if the Minister replying to the amendment would confirm that information about the arrest of a child at any age up to 18 is always given to the parent or guardian or, failing that, to the next of kin. I raise the point because it is one which for many years caused great worry and anxiety in Northern Ireland. I hope that the position is satisfactory in England and Wales.
I, too, shall be brief. The case has been effectively put by the noble Baroness, Lady Walmsley. Clearly, arrest on bail is a good, additional power and should save time. However, I believe that in that respect the Bill has not been child-proofed as there is no indication in the Bill of any different treatment of children.
As a past juvenile court magistrate, one aspect which would worry me is the reaction of the child. I am afraid that in many cases the child would not just not tell but would be frightened of telling the parent or guardian. That again, as we have heard, could result in an offence for the individual of not reporting but also could be problematical for the parent. No fewer than eight children's societies are concerned about this matter. I very much hope that the Minister will bear in mind what has been said and accept the amendment.
I support the noble Baroness, Lady Walmsley, and the eight children's groups which have raised concerns. I also speak from my own experience.
I am sure that the Minister will see how inappropriate it would be to issue bail to young people on the streets without the presence of a responsible adult. As has been said, it would leave young people with the responsibility of telling their parents and of accepting guilt in circumstances where we know that many young people do not have the level of understanding to recognise exactly what they are accepting and agreeing to. They desperately need their own rights considered in those circumstances.
They will also find themselves carrying an undue burden of personal anxiety. Some might say that such young people probably deserve that if they have got themselves into trouble. My experience is that these are some of the most vulnerable young people in our society, who are experiencing considerable difficulties. Their families are not supportive. I have spoken to many children who, had they gone home and told of what had happened, would have put themselves in danger of a very severe beating. That would not have been reported because they would have been fearful of further beatings. There is something to be said for the right time and place and having the right authorities and a police officer with you rather than going home and telling about this yourself.
It is crucial that the PACE regulations are kept in place. I shall not go through them again because the noble Baroness, Lady Walmsley, did so. Such regulations are in place to protect children in these kind of circumstances. It would be a very retrograde step in our child care were we to lose such regulations.
I also believe that there is great anxiety about granting bail to people with learning difficulties, particularly young people but also vulnerable adults on the street. They will have the same problem about not necessarily understanding what they are agreeing to in terms of an offence that might or might not have been committed. If I was on the street and someone was to say I had done something, it would be easier to accept it and pay the fine than to battle. I have only three points for speeding and that is because I was in a 50 miles per hour limit when I thought I was in a 70 miles per hour limit. It is very easy just to say, "I accept" because the reality is before you. With people who are more vulnerable it is significantly more difficult.
I believe that that would be a real step backwards. I hope very much that Ministers will see fit to protect children and vulnerable adults in these circumstances.
I rise briefly to support one of the most effective three minute speeches I have heard from any Front Bench delivered by the noble Baroness, Lady Walmsley. I should like to leave two thoughts in your Lordships' minds. The first is that we must not assume that the police always arrest the right person. The protection we provide is not merely for the guilty who should be anxious but also for the innocent who should be relieved. This is one of those embarrassing moments when I have to say that I shall speak later on the second point when it comes back to me.
I support the noble Baroness's amendment. I would welcome some advice from the Minister on a point of concern. I am concerned about children in care but particularly about care leavers. They often lose touch with those people from their local authority with whom they should be keeping in touch. I am concerned that they might be particularly vulnerable to, perhaps, a misapplication of this measure. I would appreciate it if the Minister could write to me or offer some assurance in her reply.
The noble Baroness, Lady Howe, raised an important point. She thought the Bill had not been child-proofed. We now have a Minister for Children. Has she had a chance to look over the Bill and will she in future look through all legislation that affects children? This is a serious question and one that needs to be pressed.
This has been a very useful 10 minutes. We had a three-minute introduction that was stunning in getting to the point. I think the discussion has been very helpful. This Chamber is at its best when it focuses on the practical and this has been a very practical discussion.
The amendment would prevent street bail being granted to a child except where an appropriate adult was present. Broadly speaking, appropriate adults are responsible persons whose normal role is to attend police stations to support detainees who are either juveniles or mentally vulnerable in some way.
We recognise that this is a difficult area. We are dealing with a group with an age range of 11 to 18. I recognise—as a parent more than anything else—that what one sees with those aged 11 and those aged 18 is very different. Obviously, there will have to be a very age-responsive response by the officers on the street conducting particular operations and exercise.
So we expect that the police will have to exercise great care when deciding whether to street bail a juvenile. The noble Lord, Lord Elton, made the point that the police do not always get it right. Anyone in public life who has ever had to deal with any kind of casework involving the police knows that. It is obvious that the police do not always get the issue right.
However, the very nature of street bail means that an appropriate adult will probably not normally in any event be available on the spot to participate in the process. Therefore, in the guidance that we are developing for the police we intend to emphasise that an officer considering such action in relation to a juvenile must be satisfied that the juvenile fully understands the implications of street bail and the obligations which flow from it. In a way, that takes us back to an earlier debate and the point made about language by the noble Baroness, Lady Harris. This concerns more than language; it concerns an understanding of what is happening to them—the processes involved, the consequences of their actions and, perhaps, their failure to act and think responsibly, which will confront juveniles in this situation.
Additionally, we are likely to specify that street bail should be given only to a juvenile who is able to provide a satisfactory name and address of a parent, guardian or some other person responsible for his welfare. That will make a qualitative difference. In those circumstances, the police will be able to post a copy of the street bail notice to that parent or guardian, with an indication that it would be helpful if that person could attend the police station with the juvenile when he answers his bail. That is an important point to remember, not least because we want this measure to work. The guidance will have to be carefully constructed to meet the juvenile welfare concerns raised by the noble Baronesses, Lady Howarth, Lady Walmsley and Lady Howe. All their concerns about relationships with young people in the street are important.
In particular, I take the point about a police officer considering street bail for those who might be mentally vulnerable. Guidance must state clearly that street bail should not be given to anyone they suspect of being mentally vulnerable. So street bail will be inappropriate in those circumstances.
We are very grateful to the children's charities which have contributed to the discussion behind the scenes on this particular aspect of the Bill. I am more than happy to make a commitment from the Dispatch Box today that not only have we found their representations to be very useful, but that we would like to continue to consult with them in drafting and framing the guidance because we need to draw on their valuable experience and ensure that we get it right.
Although I appreciate that not everyone will be happy with that commitment or what lies behind it, we think that it is important that this power and facility is there. Obviously, if a young person, perhaps aged 11 or 12, is confronted by a police officer, it is likely that the police officer will be less inclined to use street bail. But I think we also have to recognise that 17 and 18 year-olds are sometimes very streetwise indeed. Having the facility to use street bail will be extremely useful in those circumstances. Not only will it mean that they can be apprehended and begin to understand the full implications of their own actions, but also it will usefully mean that the police can make an intervention that bears on their future conduct.
In those circumstances it would be sensible operationally for the police to have the opportunity to use street bail. Of course, there will be a requirement that ensures that when the juvenile attends a police station he does so in the company of an adult, is properly represented and has the opportunity of full legal advice.
I am grateful to all Members of the Committee who have contributed to the debate. I hope I have picked up the various points that were of particular concern. Obviously, we shall have the opportunity further to reflect on the issue. As I said, I have made what I think is a valuable commitment to further consultation with the children's charities, which I think can help us hone and perfect the operation of street bail with regard to juveniles.
Our expectation is—this is obviously a developing and emerging role so far as Margaret Hodge is concerned—that the process will involve a degree of "child-proofing" of legislation. But she has a very wide-ranging remit. It would be wrong for me today to try to itemise from the Dispatch Box exactly how it will work in all circumstances. Clearly, there needs to be consultation across Whitehall. One reason for having such an important post is so that the consideration given in legislation to the position of the child is foremost in government thinking, not just our government, but those in future.
I go back to the noble Lord's reply to the discussion in general. He said he hoped he had picked up the points; I think he picked up very few of them. The noble Baroness put the case clearly. Other noble Lords made points; the noble Baroness, Lady Howe, made an important point. It is totally unsuitable for only guidance to protect a child of 11, 12, 13, 14 from being put on bail and having to go home to tell his parents about it. That is simply not right. The noble Lord should ensure that this issue is dealt with in the Bill.
The noble Baroness's use of the term "a child" may be wrong. I agree that 17 or 18 year-olds may be in a different position. That was obviously a most unsatisfactory answer and I hope that when the noble Lord reads the record of the discussion, he will see that the amendment is nearer the mark and that this is not a suitable matter for guidance.
I cannot be explicit about whether the Minister has child-proofed the legislation and all its many ramifications. It would be wrong of me to say otherwise. I recognise the importance of the issue, so after the debate I shall certainly draw to the attention of my honourable friend Margaret Hodge the implications of this part of the legislation in particular.
In response to the noble Baroness, Lady Carnegy of Lour, I am sorry if I have missed something. I was very careful in my response. I made the point that the age range was very wide, and that common sense says that the application of street bail may be more appropriate at the upper band of the age group than at the lower band. It is important across the age range. But it is how the power is used and the sensitivity exercised that will be key. I have made the point several times from the Dispatch Box today that training in the application of the new facility will be essential.
I respectfully ask the Minister how much training the ordinary police officer has in child development? Social workers, after many years of training, sometimes find it quite difficult to assess the level of a child's understanding and certainly their capacity to defend themselves in relation to this kind of accusation or occurrence. What concerns me most is that police officers on the street will be making assessments sometimes of quite emotionally young children. I accept that there may be a difference with 17 and 18 year-olds, but I am very concerned about young children. Police officers are there to do a different job.
I respect what the noble Baroness says. She is much more experienced in these matters than I am and obviously understands and appreciates the value of police training. She is absolutely right to say that the role of police officers is very different. But that relationship must exist. The police deal with young people on the streets. It is right that training is put in place, but we will have to ensure that it is appropriate for the powers proposed in the legislation. I am firmly of the view that the training will have to be informed by links with the wider professional group that comes into contact with young people. It is many years since I was a social worker, and I was not a terribly successful one, but the one thing that I drew from the experience was that I was part of an important network with considerable responsibility. That responsibility was not taken lightly by any of the professionals involved.
We understand the importance of child-proofing and ensuring that proper relations are drawn across Whitehall in understanding how the legislation will operate. All Members of the Committee who contributed to the debate made that important point. We will try to take it on board.
The Minister can answer this question after sitting down because we are in Committee. I remain anxious about what I am hearing. The noble Baroness, Lady Howarth, has made a very important point. A policeman will not know a child's exact calendar age, mental age and emotional age. Given that there is bound to be error, it is important that the system for all children should protect those who need protection, even if it means doing so where perhaps it is not thought necessary. Therefore, it seems important that the protection already provided in statutes should not be lost to these people because of the very attractive idea otherwise of letting them go before they get to the police station.
I presume that the job description of the Minister for Children was worked out before the honourable Member was appointed. Where can we see a description of the Minister's duties and functions?
I thank the Minister for offering extensive consultation, as I understand it, with the children's charities as the Bill proceeds; it is very welcome. I wish to draw attention to care-leavers. There has been much concern about care-leavers' involvement with the criminal justice system in the past. Often they can appear older than they are, as they have had to look after themselves from a young age. I am sure that we will discuss care-leavers in some detail in the future, but I wish to mark up my concern.
I appreciate all the concerns raised. This has been a very valuable discussion. The police deal with juveniles on the street every day of their working lives, so they have an immense body of experience to draw on. There has been agreement today that sometimes they make mistakes, but the considerations that they have at present are important.
There will be a cautious approach, certainly at the outset, in how the measure is applied. The police will be very mindful that, if it is clear that someone is vulnerable, it would be much better for them to apprehend the individual—of whatever age—to ensure that they are taken properly to a police station and the usual processes are followed through. My guess is that there will be very cautious use of the measure, particularly with younger people and those who we might consider vulnerable. Nevertheless, the legislation gives effect to a very powerful and, in some ways, liberalising measure.
I am very grateful to all Members of the Committee who have supported the amendment. The Minister will note that support came from all sides of the Committee. He may be interested to know that many on his own Benches, although they have not spoken today, are very supportive of this and similar amendments.
I, too, am as interested as the noble Lords, Lord Elton and Lord Campbell-Savours, in the remit of the Minister for Children, Margaret Hodge. All members of the All-Party Children Group would be very pleased if her remit were based on the United Nations Convention on the Rights of the Child and our obligations under it. We would regard that as a step very much in the right direction.
A one-size-fits-all approach is totally inappropriate for children. Anyone who has ever seen their three-year-old daughter shuffling around the house in one's high-heel shoes, or their four-year-old son tramping around in one's husband's football boots, will realise that. This is adult legislation being made to fit children—it just does not fit.
The Minister said that the police would operate the clauses with great care. Great care will not really do in that respect. He said that a police officer would bring in street bail only if he could be satisfied that the child understands the implications, that he will tell his parents, and that a name and address has been supplied. As the noble Baroness, Lady Howarth, said, how can he know whether the child has understood, that he will tell his parents, and that the name and address supplied is not completely fictitious? He simply cannot.
Although I am very grateful to the Minister for his commitment to consulting the children's charities about the guidance to be written, it seems almost unbelievable that appropriate guidance can possibly be written. However, I am sure that the children's charities will be delighted to consult to see if such guidelines could be produced to protect children in respect of street bail. To be frank, that is highly unlikely. However, given the strength of feeling that has been demonstrated in the Chamber today, it is likely that we will return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
In moving this amendment, I wish to speak also to Amendments Nos. 19 and 20. For the convenience of the Committee, I shall speak also to the Question that Clause 4 stand part of the Bill. I have given prior notice to both Front Benches in order to save a little of the Committee's time.
I turn to the question of the use of telephones for review of police detention. It is a serious matter that was fully debated in another place in Committee. At issue is the restriction of one's liberty and the police's deciding to do that over the telephone. Clause 4 allows reviews of detention under PACE to be conducted by telephone rather than requiring the reviewing officer to be present at the police station.
Amendment No. 18 would require the authority of a superintendent to be given before a telephone review could take place. Will the Minister tell the Committee whether it is intended that there should be any such check on the use of telephone reviews or whether they will become the norm?
Amendment No. 19 would require that the review be carried out by an officer of at least the rank of inspector. That is the case under the existing wording of Section 40A, but it appears to have been omitted here. Is that therefore an intentional change to the existing provision?
Amendment No. 20 would allow the detained person to be legally represented while the telephone review was being carried out. Will the Minister confirm that that is the Government's intention?
With regard to Clause 4 in its totality, the Parliamentary Under-Secretary of State, Mr Benn, admitted in another place that the provisions relating to telephone review and detention, which the Bill replaces, were inserted into PACE by the Criminal Justice and Police Act 2001, but were never brought into force. The 2001 Act allowed telephone reviews where it was "not reasonably practicable" for the reviewing officer to be present at the police station. Clause 4 omits the "not reasonably practicable" test and allows telephone reviews in all circumstances.
It is astonishing that the Government seek to go much further than was envisaged in the 2001 Act in relation to telephone reviews, without even testing out the provisions that were put into that Act in the first place. Perhaps the Minister would comment on the following words:
"A review by telephone with no visual contact between the reviewing officer and the detainee is not satisfactory . . . Such reviews are better than no review, but they should be reserved for circumstances in which there is no reasonable scope for alternatives. That is why we are proposing the term 'not reasonably practicable'".
Those are the words of the predecessor of the noble Baroness as Minister of State at the Home Office, Mr Charles Clarke, in the Standing Committee on the Criminal Justice and Police Bill 2001 in another place on 7th March 2001 at column 560. I beg to move.
The clause amends Section 40A of PACE, but the section is not in force, as was cited at the second sitting of the Commons Standing Committee on 17th December at column 73. We on these Benches are generally in favour of telephone reviews, but we would like to hear a number of issues addressed. The new section, Section 40A, does not specify that an inspector should carry out the discussion on the review of the detention. Will the Minister confirm that it is indeed the intention that an inspector should deal with that? If that is so, will that assurance be given in the Bill? We have considered this point before, during the proceedings of the police Bills with which I have been involved. I have witnessed a steady downgrading of the ranks who are now carrying out increasingly more responsible roles. We will soon be asked to let constables undertake this sensitive task, no doubt, and probably without recourse to parliamentary scrutiny.
Why are we amending legislation that we passed only last year that has not even been used yet? It would have been preferable to experience its workings before attempting to amend it.
How will the consideration be made that will need to be taken into account when deciding whether or not to carry out a review by telephone?
The clause is about extending someone's detention and is a serious and sensitive matter. It touches on questions of civil liberty and the right of the police to detain someone. It should never, ever, be treated lightly or indiscriminately. There should be reviews of its effects and a clear undertaking that a senior officer of a rank not below that of inspector should conduct those reviews. Although we are generally in favour of reviews by telephone, we do not think that it is necessary to tamper with something that is not presently in force.
How do we judge whether it is necessary to have the greater flexibility that the changes will introduce? It could become routine practice for matters to be dealt with over the telephone by an unknown police officer who has little grasp of the issues or the background involved in the case. Also, the proposal could facilitate people being detained for too long and without good reason. The person taking the decision should be able to form an independent judgment, and it is vastly preferable that that person should be the inspector at the police station rather than on the telephone. When an inspector is not available, the facility provided for under Section 40A as it is currently drafted is satisfactory. For all those reasons, we oppose the question that Clause 4 stand part of the Bill.
I do not go as far as my noble friend Lady Anelay, even with her great experience of police matters. The mobile telephone has enabled a great deal to be achieved in the prevention of crime and the arrest of criminals. The clause, especially should the amendments proposed by my noble friend Lady Anelay be accepted, creates a realistic application of what legitimately needs to be done. However, we must specify the authority of the officer involved, as in Amendment No.18, which states, "a superintendent or above", or Amendment No. 19, which states:
"an officer of at least the rank of inspector".
Also, although it has scarcely been mentioned, it is important to bear in mind what is proposed in Amendment No. 20. If there is a legal representative—and there will be very soon—that representative should be brought into the matter, so Amendment No. 20 is also very important. I hope that the Government will accept the amendments, although I fundamentally agree with the clause.
I agree with my noble friend Lord Renton. As I see it, it is something of a reserved power for situations in which video conferencing facilities are not permissible. The three amendments to which my noble friend drew attention are sensible and would limit the potential for dispute about the standards of the process. Also, having the telephone facility may sometimes assist the defendant to reach a decision favourable to him or her that might not otherwise be reached as speedily.
I am grateful for all the contributions to the debate and for the temper in which the discussion took place. It was most helpful. I shall work through the amendments.
Amendment No. 18 would limit telephone reviews of the need for continuing detention without charge to circumstances in which an officer of at least the rank of superintendent had given authority. Our view is that telephone reviews are generally a satisfactory alternative to reviews conducted in person. The noble Lord, Lord Alexander of Weedon, made the point that there was a positive side for many potential defendants. Such reviews may allow them to be released sooner than they had expected. The facility has a positive effect and is not there only for the convenience of the police officers involved in the particular arrest and detention.
The considerations to be taken into account when deciding whether to carry out a review by telephone will need to be covered in further guidance to the police. However, we do not think that such reviews should be considered so exceptional as to require a very senior officer's authority, as the amendment would require. If the amendment were made and such authority were required, the police would lose much of the flexibility that the new arrangements are intended to create. We should consider the responsibilities that a superintendent or chief superintendent might have. Calling on such an officer to conduct a review by telephone would be to draw on an important police operational resource. Generally, it would represent an onerous and unnecessary administrative and bureaucratic burden, and we do not see any need for such a stringent level of control.
PACE provides for the detained person or any solicitor representing him who is available at the time to have an opportunity to make representations to the reviewing officer before any decision about the continued need for detention without charge is taken. That applies to telephone reviews as much as to reviews in person. Creating an absolute right for a solicitor to be present during a telephone review, as the amendment suggests, could create long delays while people wait for the solicitor to attend at the police station. That would tend to defeat the key purpose for which telephone reviews are being introduced.
The criteria for extending detention are clear. The reviewing officer must have reasonable grounds to believe that continued detention without charge is necessary to secure or preserve evidence or obtain evidence by questioning. Coupled with other protections, such as the clear right to make representations, that should be sufficient to protect against unjustified periods in police custody. A requirement to allow a solicitor to be present, such as Amendment No. 20 would create, is impracticable and unnecessary.
Amendment No. 19 is unnecessary in any event. All reviews of detention without charge, including telephone reviews, must be carried out by an officer of at least the rank of inspector. That point is already covered.
It is not our intention that reviews by telephone will become the norm. I welcome the support given to the clause in general by the noble Baroness, Lady Harris of Richmond. I know that she understands, from a practical perspective, the problems that can exist for a police force in a large, sprawling rural area. We see the benefit of telephone reviews in circumstances in which it would be impractical for police officers who might be available to conduct a review in person to travel large distances to do so, with all the difficulties of moving around that that could create. I think, in particular, of North Yorkshire police area and of Devon and Cornwall area, which is long and narrow. In such areas, it would take many hours for an officer to travel from one end of the area to another. To restrict the operation of telephone reviews in the way in which the amendment suggests could have serious consequences.
The noble Baroness, Lady Anelay of St Johns, raised an important point with regard to Section 40A of PACE. It was introduced after Committee in another place and brought into force as of 1st April this year. We see it as having value. I take the point that the noble Baroness made, and I appreciate the fact that she coupled it with the stand part debate.
PACE, as amended by the Criminal Justice and Police Act 2001, makes provision for reviews of detention to be conducted by telephone, if it is not reasonably practicable for the reviewing officer to be present at the police station. I have already said that we do not expect that to be the norm. We expect the major benefit to be to large rural police areas. We want to broaden the capacity for review, so that telephone reviews can also be used where they are considered the most practical and efficient approach. We seek to focus on practicality and efficiency.
All discussions about the review will be held over the telephone, including any representations made by or on behalf of the detained person. A review in person could still be carried out, in any event, if the reviewing officer considered it necessary to the decision-making process. If the reviewing officer comes to the conclusion that it is important to be there in person while the review is carried out, he will decide to do so. Such officers will have to make the decision first-off, before proceeding to determine the next step.
The noble Lord, Lord Alexander of Weedon, raised a point about the value of telephone reviews. He referred to video conferencing. It is important to put it on record that we would not expect a telephone review to take place if there were a facility for video conferencing, which is a superior facility of tremendous value. We would expect that approach to be adopted first-off.
The provision will help the police to overcome the resource and logistical problems of arranging reviews, especially at night. It would also be of tremendous value in saving inspectors' valuable time, particularly time spent covering vast distances in larger rural police areas. It is for those reasons and to improve the efficiency and effectiveness of the police service that we believe that the approach is right and seek to amend, at this early stage, what is, I accept, a relatively new provision that has not yet been widely used.
My final point is that guidance will be important, and we intend to review and monitor carefully the way in which the clause is introduced, not just because of its value but because we see it having long-term importance and significance in improving police effectiveness.
Before the noble Lord sits down, does he realise that unless these amendments are accepted a detained person, who may be innocent, can continue to be detained by an inexperienced young police constable? Is he content with that and is it right? Surely we need some safeguard of the kind these amendments propose.
I should like to add to what the noble Lord said. I understand that when the matter was discussed in the other place, the government body, the Youth Justice Board, expressed serious concerns, particularly in relation to the detention of young people. The Minister is reported to have said that the Government would certainly consider safeguards. I see no mention of that whatever. Can the Minister indicate the concerns expressed by the Youth Justice Board and have those concerns been met in relation to young people?
I am grateful to the noble Lord, Lord Dholakia, for raising that last issue. We are still considering the points made. Therefore, it would be inappropriate for me to comment on that observation. But it is an important contribution. Yes, it is right that safeguards are in place. To pick up the point raised by the noble Lord, Lord Renton, that is why it will take a senior police officer—an inspector, a very senior rank—with considerable experience to make the decision as to whether a review needs to be undertaken in person or via the telephone. I consider an inspector to be of very senior and important rank and an integral part of middle management within the police service. It is a pivotal position. This power needs to be properly exercised by someone with the experience that an inspector carries.
Will the Minister confirm that an arrested person has the right, in relation to these telephone methods of dealing with the case, to be represented at the interview if he so requests? If the Minister can confirm that, I do not follow why there is any resistance to the suggestion that the arrested person should be so informed of that right to ensure that he exercises it if he wants it.
The position is that a person who is so detained is advised on arrest that he or she can have legal representatives there when interviewed. That is standard practice. A person who is providing legal advice will be advised of the review and will be able to make representations on behalf of the person who it is considered should be further detained. The provision, significance and involvement of the person able to give legal advice is there at all stages, as it always has been.
I am generally in favour of any means of saving costs and expediting decisions involving the liberty of the subject that are reasonable. I invite the Minister, in his further considerations, to bear in mind what I am about to relate. When we telephone our bank to complain about its bad service we endure the savage irony of a lady telling us that the conversation will be recorded in order to preserve quality control. The process we are presently discussing, however seriously, involves the liberty of the subject. If it is not to be the norm, if it is not to be used should video conferencing be available, if it is to be the subject of careful guidance, we can assume that the occasions for its use will not be too many. In those circumstances, if the integrity of the process has to be demonstrated, is that not going to be successfully achieved by recording the telephone conversation between the inquiring officer and the advising officer?
Can the Minister confirm my recollection about these reviews? They are of the utmost importance to the person being detained. One of the ways in which they are important is that the reviewing officer should reassure himself that the people carrying out the investigation are getting on with it. It is not something for which the defence solicitor will be much use. He may wish to know it but he will not be able to assist. What the reviewing officer wishes to know is that there are still grounds for detention in that ongoing inquiries are actively taking place. In the type of geographical circumstances mentioned by the noble Lord, Lord Bassam—I remind him of the Dyfed-Powys force and some of the other Welsh forces where the distances are very great indeed—it is extremely important that the reviewing officer should talk to the people on the ground who are at the police station and carrying out the investigations. That is as much of a safeguard for the person who has been detained as having the solicitor present in the course of the review. There is a better balance here perhaps if looked at in that way.
The noble Lord makes a very important point. For operational reasons, which in a sense is the counter-argument raised by my noble friend Lord Brennan, the significance of having the facility to review these very few but appreciable cases and recognising the importance of the individual's liberty, obviously is as important as anything else. Operationally, that facility must exist.
The answer to the question of why we are resistant to Amendment No. 20 is simple. As it is, with the proposition that it contains, Amendment No. 20 could create long delays in many cases while waiting for a solicitor to attend the police station. If it is difficult for the police officer to attend the police station to conduct the review in person, it may equally be the case in large geographically spread out police authority areas for the solicitor or legal representative to attend the police station. That would tend to defeat a key purpose for which telephone reviews are being introduced.
The criteria for extending detention are and will be clear. The reviewing officer must have reasonable grounds to believe that continued detention without charge is necessary to secure or preserve evidence or obtain evidence by questioning. That very important criteria, which in some circumstances will be limited, must be satisfied. The criteria will be very clear and will have a bearing on the judgment made by a senior police officer. Understanding the importance of that should impress upon Members of the Committee who have been raising and pressing these amendments. I understand the concern about the individual's liberty, but the operational advantages and, coincidentally, the point made by the noble Lord, Lord Alexander of Weedon, about the benefits to the arrested person, are also important considerations. Efficiency and effectiveness are key parts of our argument. While we respect the liberty of the individual, we must have regard to the importance of operational matters in these situations.
Before the Minister sits down, I asked about the Youth Justice Board which expressed serious concern about the detention of young people in this provision. The Minister replied that the Government are giving serious consideration to this matter. We should like to know precisely what is the intention of the Government in relation to the representation made by the Youth Justice Board? Would it not be wise for the Government to withdraw this clause until they are in a position to come back and inform the Committee about the action they intend to take?
The answer is plainly "no". Parliament recognised the importance and significance of this power in earlier legislation. We greatly respect the advice that is given to us from all quarters—not least, of course, from the Youth Justice Board, which does brilliant work and has an excellent track record.
Obviously the guidance will have to be clear where juveniles are concerned and we are listening to representations on that issue. It would not be appropriate to withdraw the clause or power while we take on board the comments and observations being made. Ultimately, the guidance will be critical to the way in which the provision is operated. That is common in this kind of legislation and in many other kinds of legislation.
The noble Lord kindly referred to the broad support that I give to the principle of the clause but, having listened to the debate and the question of the noble and learned Lord, Lord Ackner, will the Minister consider whether the effectiveness of the process includes its validity? If it does, would it not be sensible to accept unreservedly that a person has the right to the presence of legal representation, and to be told that he has that right? That would complete the integrity of the process, which is surely one of the points at the heart of its efficiency.
I respect what the noble Lord says about the validity of the process—that is an important consideration—but there is no need for legal advice to be physically present. Representations can be made over the phone and the amendment does not take us any further in that regard. Amendment No. 20 is not needed. Legal representatives do not always attend physical reviews at present. The operation of the review process has worked very well and we are not aware of any wholesale abuse of it. We believe that we have got the balance about right.
I listen to what the noble Lord, Lord Alexander, has to say about this because I know of his great experience in this field. Obviously we will continue to consider the point he has made as we go through the legislation, but we are content with the way it is drafted.
I am grateful to the Minister for his response, particularly because in this complex debate he has been called upon to respond at different times to different points as it has developed. Detention is a serious matter. As the noble Baroness, Lady Harris of Richmond, said at the beginning of the debate, this is a serious, sensitive matter of civil liberty.
We believe that a senior officer should be involved. I was intrigued by the Minister's response that a senior officer, an inspector, was involved. He referred to a senior officer in middle management, so suddenly "senior" is "middle". I am not too sure where the logic is in that, but never mind.
I am concerned with the issues raised by my noble friend Lord Alexander of Weedon about the integrity of the whole process. The Minister has directed us time and time again—both in this debate and before it—to the issue of guidance. I shall dream tonight that guidance will form the third, fourth or fifth volume of the Bill. There is a deep concern that without the safeguards in my amendments the Government have not justified their stance on Clause 4.
The killer blows came from two quarters. First, from the noble Viscount, Lord Bledisloe—I beg the Committee's pardon, from the noble Viscount, Lord Colville of Culross. I am looking at the right person but saying the wrong name. I apologise to the noble Viscounts, who are both in their places. One killer blow was delivered by the noble Viscount, Lord Colville of Culross, when he referred to the fact that the reviewing officer needs to be there to check upon this serious process. The second lethal blow was dealt by the noble Lord, Lord Dholakia. We have not been told the response to the Youth Justice Board.
Although I shall not press my amendments, I believe that the Government need further time to consider the whole issue and to bring forward a good Clause 4. When we get to clause stand part I shall maintain my objection. In the mean time, I beg leave to withdraw the amendment.
With the leave of the Committee, I shall speak also to Amendments Nos. 22, 23 and 24, the last of which is in the name of the noble Baroness, Lady Walmsley.
At present, detention for up to 36 hours is confined only to what are termed "serious arrestable offences", as defined in PACE. The Government propose to enlarge the range of offences for which detention for up to 36 hours is possible by changing this to "all arrestable offences". My amendments present two alternatives of choice to the Government and to the Committee. The first would change "arrestable offences" to offences "triable only on indictment". Although that would of course allow robbery, at which it appears the clause is aimed, to be covered, I recognise that this would create some anomalies in relation to theft of substantial sums, as was pointed out at col. 88 in Committee in another place.
I have therefore drawn up my alternative set of amendments, Nos. 22 and 23, as a pair. They would retain the existing wording of "serious arrestable offence" but would allow detention of up to 36 hours for other offences as specified by the Secretary of State. That approach would allow the Government to specify offences such as robbery, if that is what they wish; it would give them flexibility while also giving us some certainty and parliamentary scrutiny of what offences would be covered.
I ask the Government at what particular mischief the clause is aimed. Surely the police do not, as a rule, want to detain people for 36 hours for every sort of arrestable offence. I find that difficult to believe. So why have the Government rejected the approach of specifying particular offences such as robbery, for which the power is sought?
I have added my name to the amendment in the name of the noble Baroness, Lady Walmsley, but will leave it to her to expound upon it. I simply say here, as I did on a previous occasion, that in this respect, as in others, it is vital that we should consider the interests and welfare of children. I beg to move.
It seems to me that as a result of Amendment No. 6, which was carried a short time ago, we are left in a completely absurd position. Clearly, something has to be done. As a result of the acceptance of Amendment No. 6, possession of a class C drug is an arrestable offence; as a result of Clause 5, anybody who is arrested for an arrestable offence can be detained without charge for up to 36 hours. That means that anybody in possession of some of the fairly innocuous drugs listed as class C drugs, including anabolic steroids, can find himself detained for 36 hours. That is manifestly absurd.
Somehow or other, the Government have to get themselves out of the mess they have got into as a result of Amendment No. 6. I am not quite sure how they will do it, but things certainly cannot be left as they are.
Following on from what my noble friend Lord Waddington has said, if one accepts the premise that the time one should be held in detention prior to charge should be as short as possible, on what basis do the Government justify making this change at all? Am I right in saying that all the research that has been done and figures that have been collated show that the average time for which people are kept in detention, for arrestable but not seriously arrestable offences, is well below the limit of 24 hours? If that is so, what is the justification of putting it up to 36 hours?
I point out to the Minister that, in practice, many arrests for the type of offence that will now be covered will take place in the evening. This will result in people spending the equivalent of two nights in the nick rather than one—for them, a great deal of time. There is no justification for removing or changing the wording at all in view of the way "arrestable offence" is already defined in the PACE legislation.
I support Amendment No. 22 in particular as it seems to give the Government an appropriate degree of flexibility. What concerns me about the proposal is that there seems not to be any very good reason for it. It will apply to minor offences, as my noble friend Lord Waddington said, but it will also cover offences such as touting for car hire services and traffic offences.
"We therefore question the need for an extension in non-serious cases. There are other—more appropriate—provisions in the Bill, which are designed to assist the police in conducting their investigations before charge".
There does not seem to be any special reason why we should need a longer period of detention without charge than most other civilised jurisdictions. In another place, the figures were helpfully supplied for other jurisdictions. We are told that in Australia,
"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 a.m., and there can be an extension of another six hours thereafter".—[Official Report, Commons, 2/4/03; col. 931.]
When other jurisdictions operate with a system in which 24 hours is an absolute maximum, unless extended by judicial authority, it would be deeply disappointing if for some reason we went for a longer period in our own country where we pride ourselves on the need to be alert—to keep people in custody for the minimum period. That is something for which the Minister would have to provide a very good explanation, which so far, reading all the material surrounding the Bill, I have not seen.
I wish to speak to Amendment No. 24, which is tabled in my name and that of the noble Baroness, Lady Anelay of St Johns. It is another probing amendment from the children's charities whose purpose is to ensure that children and other vulnerable groups are not subjected to the increased police powers to detain people for longer periods.
As we heard, Clause 5 provides police powers for detaining suspects before any charge is made beyond 24 hours and up to 36 hours for any arrestable offence, and allows detention for a whole range of non-serious and in many cases very minor offences. The children's charities are concerned that the provision will lead to increased detention periods for children and believe that that should be weighed against what we know about how harmful periods of detention can be. The measures seem disproportionate, given the range of offences involved.
Amendments were tabled on Report in another place to delete the provision on the grounds that the range of offences being brought into it was not warranted. The Home Affairs Select Committee also expressed considerable concerns at the provision and is opposed to its introduction.
It is widely accepted that the numbers involved will be extremely small. However, the provision represents a dramatic lowering of the threshold for the significant deprivation of liberty at the behest of an individual—albeit senior—police officer without the need for magisterial involvement. Reduction of the threshold for the exercise of the power to "arrestable offences" means that offences such as football ticket touting are in effect viewed as equivalent to murder and firearms offences when consideration of extended detention is made.
The Government have said that the change is necessary in order to bring into the existing provision offences such as robbery, but that is not one of the current specified offences nor does it fall within the offences covered by the definitions in Section 116 of, and Schedule 5 to, the PACE Act. If there is real concern about particular offences, the simple course of action would either be to include robbery in the specified offences, amend the definition or accept Amendment No. 23, tabled by the noble Baroness, Lady Anelay. The recent revision of the PACE codes of practice, operational as of 1st April, saw a significant revision of the level of seniority of officers who could authorise suspension of the codes and their provisions. My noble friend Lady Harris expressed concern on that matter earlier. The result is that the majority of decisions are now exercised by officers at the level of inspector, or even a suitably qualified sergeant. The children's charities are concerned that a future revision of the code would move the decision making for the increased powers to detain to those levels.
The organisations believe that it is essential to prevent any unnecessary extension of the detention period before charge for children. Cases involving children should be treated as a matter of priority to ensure that, as required by the UN Convention on the Rights of the Child, detention is used only for the minimum appropriate time. Detaining children for up to 36 hours for a range of arrestable offences does not seem a proportional response. Therefore, I look forward to hearing the Minister's comments on the amendment and whether she can give the children's charities and myself any reassurance on the matter.
Detention without charge is a familiar feature of all totalitarian states. In the case of democratic states, it is recognised as a regrettably necessary power in jealously scrutinised circumstances. I believe that to be quite right, as I am sure the Minister does.
I endorse the remarks of my noble friend Lord Alexander of Weedon, who very helpfully reviewed Commonwealth jurisdictions and other jurisdictions elsewhere in the world to make the point that the averages are way below the law in this country now, let alone what is proposed by the clause.
I should like to ask the Minister one question and make one point. Am I right in recalling that the present 24 hours derives from the recommendation of the Philips Royal Commission in 1978, on whose work the PACE Act is founded? I believe that I am, but I cannot be absolutely certain. If that is the case, the provision has survived for very little under 20 yeas. One wonders what recent development has created the necessity in the minds of the police or the Government to enlarge it, as the clause does.
The point that I wish to make is this. Does the Minister not accept that if this is to become available to the police, there is foreseeably going to be a lesser degree of urgency in the examination of a case and the investigation of the defendant than would otherwise be the case? Those cases ought to be examined urgently when the liberty of the citizen is involved. I hope that the noble Baroness will be good enough to deal with that in due course.
I rise very briefly to support Amendment No. 24. In doing so I pray in aid Amendment No. 21 as it was spelled out by the noble Baroness, Lady Walmsley. The noble Lord, Lord Alexander of Weedon, outlined the consequences of the time allowed for adults. His description brought home even more firmly how much more dangerous it is in every sense of the word to detain children longer than necessary and against all our international obligations. The comments of the noble and learned Lord, Lord Mayhew of Twysden, also carry weight. Why must it take longer in this country than in other countries? Are we that inefficient in doing what we must to proceed with charges? The point requires further explanation and I hope that the Minister will be able to satisfy us all.
I hope that I will be able to explain why we think that a certain increased flexibility may be needed and may assist in this matter. Of course the noble Lord, Lord Waddington, uses this as an ideal opportunity to stress the consequences of reclassification as a class C drug. I acknowledge that we are going to deal with that matter. The noble Lords, Lord Carlisle and Lord Alexander, and the noble and learned Lord, Lord Mayhew, each asked the same questions—why are we doing this and why is change necessary. I shall turn directly to those questions which have been echoed by the noble Baroness, Lady Howe, and, particularly in relation to children, by the noble Baroness, Lady Walmsley.
The amendments in this group provide a good basis for discussing the whole purpose of Clause 5. I hope that the nature and breadth of the discussion that we are likely to have will mean that we will not require a separate clause stand part debate and that the noble Baroness, Lady Anelay, will resist a temptation to which she succumbed on another matter.
In essence, as Members of the Committee said, Clause 5 extends the time an arrested person may be detained without charge, with the authority of a superintendent—which, I stress, is a position even more senior than inspector; I think that the noble Baroness will accept that such dizzy heights indeed represent the most senior echelons of the police—from 24 to 36 hours for any arrestable offence, rather than just serious arrestable offences. The Committee will know that serious arrestable offences are either inherently very serious, as in murder, rape or kidnapping, or specific offences producing serious consequences, such as serious injury or serious financial loss. However, as I think the noble Baroness said in relation to a number of other offences including robbery, many offences which the police will need to investigate at some length and have significant consequences for victims will not qualify as serious arrestable offences.
There is an issue as to whether in order to bring about a small, significant and important change such as extending the time, we really want to move the large volume of cases out of the arrestable offence category into the serious category. A number of other consequences would flow from that. I should say straightaway that that path was considered. However, for reasons that I shall explain, we thought that it was perhaps not the best course to take.
As the Committee will know, PACE currently allows detention without charge for longer than 24 hours only in relation to a serious arrestable offence, within the category that I have just described. A superintendent can then authorise detention up to 36 hours, and in serious cases a magistrates' court can authorise detention up to an absolute maximum of 96 hours. So the noble Lord, Lord Alexander of Weedon, should bear in mind that in that regard our structure is already significantly different from others.
As I said, serious arrestable offences are inherently very serious because of their nature. However, there are some complex offences with significant consequences for victims which will not qualify as serious arrestable offences. The detention clock, however, starts ticking as soon as the arrested person arrives at the relevant police station. Delays over which officers have no control whatever can occur throughout the process. Such delays can eat into detention time and may even prevent police officers from concluding some investigations. That problem was strongly highlighted in the recent review of PACE which was undertaken jointly by the Home Office and the Cabinet Office and which involved discussions with a whole range of police officers at every level. The Home Affairs Select Committee has also accepted that the current position could cause difficulties.
PACE already allows for the detention clock to be stopped in one very specific scenario, which is where the detained person is removed to hospital for medical treatment. One option might be to extend the circumstances in which the clock could be stopped to a much broader range of delays. However, that could create major administrative and bureaucratic burdens through custody officers having to stop and start a large number of clocks for a whole variety of reasons. As I know that this issue troubles the Committee, I shall in due course give examples of what has happened in practice. That may help the Committee to understand some of the difficulties with which we have regrettably had to deal.
Amendment No. 21, in the names of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, suggests limiting extended detention to offences that are triable only on indictment. Unfortunately that would have the undesirable consequence of reducing the existing scope for extended detention in relation to a number of offences which are arrestable but which can be tried either way and which may or may not be classed as serious arrestable offences. For example, theft of £100 would be an arrestable offence triable either way, either by the magistrates or by the Crown Court, whereas theft of £1 million, which is also triable either way, would be a serious arrestable offence. At present, the suspect in relation to the theft of £1 million could be kept in detention for up to 36 hours; but if this amendment were accepted, he could not. So in that regard the distinction between the serious arrestable offence and the arrestable offence would be expunged.
The solution we are proposing is to allow senior police officers a sensible but carefully controlled discretion to authorise extended detention in relation to a broader range of offences. Amendment No. 22, which was also tabled by the noble Baroness, Lady Anelay, would merely retain the current position. We cannot support that, as it has already been proven to have significant problems. Taken with Amendment No. 23—also tabled by the noble Baroness and the noble Viscount, Lord Bridgeman—it would allow for extended detention both for serious arrestable offences and for other offences specifically designated in secondary legislation. That would provide some additional flexibility, but it would not meet the broader objective of the clause, which is to allow senior officers the relevant discretion in relation to a whole set of offences which fall below the highest level of seriousness but which may nevertheless occasionally warrant longer periods of detention.
I believe that the noble and learned Lord, Lord Mayhew, said—he is right—that for the majority of cases 24 hours has sufficed and has been ample. However, it has caused difficulty in relation to some cases. The breadth of the problem is clear when one considers some of the offences which do not automatically qualify as serious arrestable offences. For example, as I said, they include theft, robbery, burglary, handling stolen goods, riot, threats to kill, actual bodily harm, indecent assault, blackmail, conspiracy to defraud, counterfeiting and criminal damage.
We do not think that it would be right to categorise all these and other offences as serious arrestable offences as that would open them up to a whole set of additional powers, some of which are unlikely to be appropriate; for example, the capacity for much longer detention up to 96 hours and for the police to delay the fundamental rights to legal advice and not to be held incommunicado. The Committee will appreciate that the offences can be variable in severity from the very heavy end to those which, technically, fall within the category but do not have the weight that would require the use of the additional powers.
Amendment No. 24 in the name of the noble Baroness, Lady Walmsley, concedes the general principle of allowing extended detention in relation to arrestable offences, but would limit that scope to serious arrestable offences where children or mentally vulnerable persons were involved. I say straight away that I appreciate the anxiety that the noble Baroness expressed in relation to the vulnerable, whether due to age, disability, infirmity or mental illness. We understand that. In reality, however, we do not think that what we are proposing in Clause 5 is opening up the prospect of such vulnerable individuals being held in detention for more than 24 hours in anything other than the most exceptional circumstances. We shall stress this aspect in guidance to the police, but any senior officer seeking to extend detention in such circumstances would be acutely conscious of the need for a complete justification of their action and very clear arguments to demonstrate that what they were doing was compliant with basic human rights. Nevertheless there will be rare occasions when the use of this extended power will be appropriate in relation to juveniles or the other vulnerable suspects. As I say, I fully understand the motivation behind the amendment, but I believe that it is not necessary.
It is worth re-emphasising that any authorisation for detention beyond 24 hours will continue to require the authority of a senior officer of at least superintendent rank. The range of offences potentially covered will be broader, but that process of consideration by a highly trained and experienced officer will continue. And, as now, that officer will have to be fully satisfied that the investigation is being conducted diligently and expeditiously before granting any extension whatever.
We have no reason to expect that the change we are proposing will result in large numbers of people being held in custody for extended periods. Under the current arrangements, Home Office statistics state that during 2001–2002 only 697 people were detained for more than 24 hours and subsequently released without charge. That gives us a flavour of the kind of care with which senior officers are currently operating the procedure. That is indicative of the relatively small number of cases in which lengthy detention is necessary and we do not think that the changes in Clause 5 will result in any huge increase. However, there will be a small set of cases where the broadened capacity will enable more investigations to be concluded effectively and avoid the consequences of rushing through investigations to beat the clock.
There is a whole set of reasons why the basic 24 hours detention period can be insufficient. I wish to give a number of examples of the species of case where we have discovered problems. For example, there may be issues linked to fitness for interview, multiple defendants to deal with or delays in connection with the provision of legal advice. Large amounts of time can also be lost obtaining translation support or the services of an appropriate adult required to support a juvenile or someone who is mentally ill. The noble Baronesses, Lady Walmsley and Lady Howe, rightly emphasised that it is important for vulnerable young people and people who are vulnerable due to their mental capacity to have people with them during the process to give them support. The problem is a practical one in that sometimes it takes considerable time to get the right people in the right place before matters can progress. As I indicated earlier, the police have provided us with many real life examples where these and other factors can cause significant problems.
One interesting case involved an allegation of making threats to kill. The suspect requested both a solicitor and a doctor, and an interpreter was also required. Several hours were used up awaiting the solicitor and consultations with him had to be interrupted when the doctor arrived. Then the interviewing process had to be suspended because the solicitor claimed that the interpreter's dialect was wrong and the suspect could not understand it. Many hours were absorbed by these interrelated delays and serious pressure was placed on the PACE clock. Therefore, the time spent in interview was short but the time spent making the necessary arrangements was not.
In another case a robbery suspect was eventually identified from fingerprint evidence, but was then arrested for another matter and transferred between police stations. When the PACE time was calculated, there was only one hour left and the superintendent concerned was not satisfied that the financial loss involved in the offence was sufficient to warrant treating it as a serious arrestable offence. Further necessary identification procedures could not be completed in the time available and eventually the suspect had to be released with no further action taken. That was the proper procedure but some would ask whether it was just in terms of the interests of justice and proceeding in relation to a case.
An interesting case involving multiple defendants saw five people, all with the same surname, arrested on suspicion of theft. The single solicitor who dealt with them all had to consult with each one individually and then participate in a complicated series of interlocking interviews. During the process one of the detainees asked for a private consultation with the solicitor and subsequently changed his story. The interviewing process had effectively to start all over again. That wasted a huge amount of detention time and illustrates, I hope, the severe problems which can arise in trying to deal with multiple-defendants within a reasonable timescale.
As regards medical issues, the police advised us of a case of two young men arrested in connection with a domestic burglary. Both were heavily under the influence of heroin and were examined by the police surgeon who certified them fit for detention but not for interview. Much of the initial 24 hour detention period had been absorbed before the interviewing process could even begin. In another case, a 19 year-old arrested for assaulting a police officer was kept under close supervision by the police surgeon due to drug issues. In the event he eventually had to be admitted to hospital, but by then nearly 17 hours of detention time had been used up.
The examples go on and on. For example, two 16 year-olds arrested on suspicion of theft of motor vehicles came into custody at 2 a.m. After a rest period, they were ready to be interviewed at 10 a.m. the following morning. Regrettably, no one from one of the juveniles' families was willing to attend. Difficulties in obtaining an appropriate adult from social services led to a very long delay. In the event, the interview itself took only just over half an hour, but all the delays were caused by matters wholly outside the control of the police.
Many further examples have been given to us. They basically show the logistical difficulty that there is sometimes in managing all the processes to make sure that the defendant's or the arrested person's rights are preserved, and that they get the right amount of assistance. Even when the police are trying extremely hard, they are sometimes fighting against the clock.
Rather than trying to set out a list of all those proper causes that would make the clock stop, we think it right simply to give the superintendent, in the limited number of cases where it may be appropriate, the very skilful job of deciding whether the police are prosecuting with the expedition we would wish, whether they are taking all reasonable steps, and whether their complaints and concerns in relation to what has prevented them from dealing with matters as quickly as they would wish are justified. Then he could decide whether there could be an extension.
If one looks at the breadth of offences and the species of cases where that may be necessary, one sees complexity. We understand why many of the suggestions in the amendments were made; frankly, we went through the same process when considering how to craft provisions that would not be so heavy and ponderous as to expand unnecessarily, but would target the mischief that had to be cured. With the greatest respect, we feel that we have alighted on the lightest touch that will be necessary, by giving someone of real seniority the opportunity to make those judgments on a practical basis.
I should share with the Committee the fact that the police have been very frank and conscious about the effect that some of the pressure of fighting against the clock may have on some of the judgments being made. They are conscious that they may sometimes be tempted to stretch the law so that a specific offence can be treated as a serious arrestable offence when the criteria are not really met. We have been made aware of cases that are clearly borderline, but that superintendents obviously feel under pressure to interpret as serious arrestable offences in order to allow time for necessary and clearly justifiable investigation work to be done.
We would rather that that temptation were taken out of harm's way, so that those superintendents who have legitimately and robustly policed the process properly will feel able to do so, and to make the sort of judgments that we would want them to make, against a clear backdrop. Of course, there will be guidance in relation to such matters.
In summary, we think that the limited and controlled extension to police discretion that the clause allows is fully justified by the practical problems that the current system causes for the police. As is currently the case, they will have to have good and demonstrable reasons to extend detention in every individual case. Such decisions will have to be taken at a senior level. If the police are to deal with crime effectively, they must have the powers and time that they need to do so. This is not a game of "10 seconds—the clock is counting—and you're out". Things must be dealt with expeditiously and well. That is why the clause should remain part of the Bill, and why we oppose the various amendments.
The noble Lord, Lord Alexander of Weedon, gave us the examples of other states. Of course, he will know that each system depends not only on one clause, but on how the whole system operates together. We would point to many parts of our system, including the benefits of the common law and where it interacts with statute, to say that we would prefer our system to any of those to which he alludes. It is probably not possible for us to review each and every system and look at the benefits and disadvantages, because all countries would probably have the conceit in the end to say that they preferred their own. It is a poor thing, but it is mine own.
It is typical of this Government that they should put logistical difficulty and practical problems for the police ahead of liberty and the freedom of the individual. By definition, we are dealing with offences that are not serious. If, in the period of 24 hours, the police are incapable of getting together a solicitor, interpreter or doctor for an offence that is not serious, the prisoner should be released on bail and invited to come back with his solicitor and all the necessary support at a later date.
I would really like the noble Baroness to say on what basis that cannot be done. The idea that people should be held for up to 36 hours without the intervention of the court and without charge is simply unacceptable. She should not assume because my noble friend Lady Walmsley has confined herself to children's issues—she has done so throughout the Bill—that we as a party are not wholly in support of the amendments. That is why we oppose the Question that Clause 5 stand part of the Bill, which we shall debate later.
Will the Government consider requiring the approval of a magistrate for an extension from 24 hours to 36 hours? Surely that would be very easily done in places where there were stipendiary magistrates. As has been mentioned, it happens in a number of other common-law jurisdictions. It would be a useful safeguard to have.
Has the Minister yet been able to discover whether the present arrangement derives from the recommendation of the Philips Royal Commission? I ask that because she will find, in the introduction to its report, one of the finest expositions of the balance that has to be struck between administrative and security convenience on one hand and preserving the liberty of the citizen on the other. I happen to remember many conversations with Sir Cyril Philips in which it was perfectly clear how important he regarded the maintenance, within practical limits, of the liberty of the citizen.
The point has already been made but, in the cases that the Minister mentioned, to what extent would her problem not be solved by the extension of bail?
Let me deal first with the comments made by the noble Lord, Lord Thomas. I tried to give the practical examples not because we suggest for a moment that the rights of the individual should be suborned for simple administrative convenience. There is a balance between the needs of maintaining a person's individual liberty and the societal needs of having offences that have been committed interviewed properly, sought properly and charged properly if appropriate. Those are balancing issues of equal importance. The one does not expunge the other.
On the point raised by the noble Lord, Lord Hylton, to date it has been thought more appropriate for the flexibility of the procedure to be dealt with by a superintendent, particularly bearing in mind the speed with which that must be done. The noble Lord said that it could be done by what used to be a stipendiary magistrate—a district judge—but he will know that the numbers of district judges are far outweighed by the lay magistracy. We have taken the view to date that that is most appropriately done by a very senior officer, who will be able to assess what the operation demands and can judge whether the officers involved in undertaking the investigation really are proceeding with the matter expeditiously and dealing with matters in a way that is in accordance with good practice or, to put it colloquially, whether they are swinging the lead. It is often the practitioner who has had the day-to-day management of such cases who is much more able to question the officer about whether he has done that which he should have done in order to ensure that the person is dealt with properly and fairly. That is why we involve a very senior officer. In operational terms, they will be much better skilled for judging whether what they are being told by the officers on the ground about why they cannot make progress holds water or not.
Speaking for myself, the noble and learned Lord, Lord Mayhew, was right in his comments on the route from which the approach came. I have not been able to get confirmation in this regard. Like the noble and learned Lord, I should be relying on my memory. I hope that it is not faulty but one cannot rely on it in this regard when one speaks for the Government. I undertake to look at the matter.
The noble and learned Lord was absolutely right to say that a balancing exercise was involved. Our argument takes into account what the balance now is and gives voice in relation to the relevant cases. We do not suggest that a plethora of cases will be extended; a number of noble Lords, including the noble Lord, Lord Alexander of Weedon, and the noble and learned Lord, Lord Mayhew, said that for the greater majority of cases, 24 hours more than suffices and does not cause difficulties; the police are well able to manage cases within that time frame.
We seek flexibility for the exercise of discretion in relation to the small number of cases that are outside the norm. If we did otherwise—if we agreed to the suggestions in the amendment—we should have a much blunter instrument. One would catch many more offences unnecessarily. The provision allows the superintendent to have the flexibility to target only those cases, in relation to the different species of robbery and other issues, which are needful of this provision. We should be very reluctant indeed to say that the broad swathe of cases should simply be converted from arrestable offences to serious arrestable offences. That would send the wrong message: one that is directly opposed to what I believe noble Lords opposite say they want; they want the arrangement to be targeted, not extended.
We have given the matter much thought. Obviously, we will consider further everything that has been said in Committee. We still believe that this provision will enable us to have the lightest possible touch in order to deliver on those small number of cases in which the approach is needed but it will not so pollute the rest of the pool and put everyone in a very difficult position.
Of course there is scope in relation to bail because all such matters will be interlocking. If these offences fall within that small category of cases in which the superintendent believes that bail is not appropriate at that moment because of the nature of the investigation, one would need the extension and one would not grant bail. If noble Lords look at the other provisions that we are introducing, they will appreciate that we are very much trying to encourage throughout the whole process the granting of bail wherever possible and allowing the person who is subject to arrest to come back to the police station to be interviewed. One sees that in our approach to street bail and giving prosecutors and those responsible for the investigation the ability to grant bail. We are talking about a species of case in which bail may not be appropriate in those circumstances and more time is needed in order to get the sort of investigation that will bring the matter to a speedy conclusion; the clock is ticking against the individual in that context. We should expect bail to be granted in all those cases in which it was appropriate and the person could come back and continue it. We would not expect that in those cases the superintendent would say that an extension of detention was necessary because they could say that the person could go and return on another day and that the investigation could be continued. That is the flexibility that we seek. However, that does not take away from the general thrust of our approach: wherever possible, bail should obviously be granted if it is appropriate to the circumstances.
We have had a full debate. The Minister will therefore be delighted to hear that I will follow her invitation and resist the temptation to speak separately to the Question whether Clause 5 should stand part.
The Minister began and ended by discussing the need for increased flexibility. The difficulty is that life is not very flexible when one is in a police cell. The clause is about increasing detention by up to 50 per cent.
I shall consider very carefully between now and Report the full information that the Minister gave in her attempt to counter the very powerful arguments that were advanced from all sides of the Committee. I do not believe that she met those arguments. It would be wrong to pick out some from so many because we should move on. However, I must point out that the situation regarding children has not been resolved. I believe that the time between now and Report could usefully be used to carry out further consultation and, if the Minister agrees, to have a meeting with her and her officials on that matter. We might be able to take matters further. She mentioned the question of guidance—that word returns again. Can she tell us whether the House will be able to see guidance on children at least before Third Reading?
I am not able to comment specifically on that. I should be more than happy to discuss these issues between Committee stage and Report, and not simply in relation to the issues involving children; I should be happy to cover significant matters of concern to noble Lords. The noble Baroness knows that it has been my practice in dealing with other Bills that that is a productive way in which to work together—we try to hone the areas in which there are differences and resolve those areas in which it may be possible for us to come to some appropriate accommodation in relation to the Bill.
I shall do whatever is possible in relation to guidance and I certainly undertake to notify the noble Baroness as to the earliest possible point at which we may be able to put drafts before the House or Members of the Committee.
I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage should begin again not before 8.50 p.m.