Serious Organised Crime and Police Bill – in a Public Bill Committee at 9:10 am on 18th January 2005.
'In section 18(12) of the Regulation of Investigatory Powers Act 2000 (c. 23) (certain offences excepted from exclusion of matters from legal proceedings) after paragraph (j) insert—
''(k) any offence contained in an indictment in criminal proceedings instituted by the Serious Organised Crime Agency pursuant to section 5(2)(a) of the Serious Organised Crime and Police Act 2005.''.'.—[Mr. Mitchell]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
I hope that we can make as much progress in our four sittings this week as we did last week. On reflection, the new clause is slightly more tightly drafted than I might have wished. However, I hope that it will allow us to have a general debate on the admissibility in courts of intercept evidence.
On Thursday, I was able to ask the Leader of the House a question about the Government's attitude towards the use of intercept evidence, and I asked him to recall the review of both Houses, published on 18 December 2003, that was carried out by a very senior committee of Privy Councillors into the Anti-Terrorism, Crime and Security Act 2001. That committee argued unanimously that intercept evidence should be permissible in British courts. In their response, the Government promised that they would comment early in 2004. There was then a White Paper, ''One Step Ahead'', on the Bill in which, as both the Ministers who are here will recall, the Government made it clear that they hoped to comment by June 2004. Last autumn, the then Home Secretary made it clear that he hoped to give a view on intercepts before the end of the year.
Now, here we are in 2005, and we still have no response from the Government on this important concept. I live in hope that the Minister will give us the definitive Government view today. I hope that she will tell us whether she accepts my amendment or whether the Government will provide their own new clauses on Report, allowing intercept evidence to be admissible in the British court system.
Even more compelling, further in to the guts of the report, based on serious evidence taken by our distinguished colleagues in Britain and elsewhere, the committee says in paragraphs 208 and 209 on page 57:
''In our view, one way of making it possible to prosecute in more cases would be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court. This was also the view reached by Lord Lloyd in his 1996 Report, to which we have seen no convincing response, and by Lord Carlile—'' a distinguished and senior colleague once in this House—
''when giving evidence to the Home Affairs Select Committee on his review of the operation of part 4'' of the Act that I have mentioned
''the Government did not accept the case for removing the ban on the use of intercepted communications as evidence when the Regulation of Investigatory Powers Act 2000 replaced the Interception of Communications Act 1985. The reasons given were, essentially, that allowing the use of intercepted communications as evidence would reveal the authorities' capabilities, prompting criminals to take more effective evasive action.''
I shall return to that point later.
''More recently, the Home Secretary has said that the issue is under review, and we understand that the review is likely to continue into the New Year.''
For the sake of clarification, I should assure the Minister that ''new year'' meant more than a year ago.
It is worth looking a little further into what the report said, because it is extremely relevant to our discussions this morning. It stated:
''The Regulation of Investigatory Powers Act 2000 forbids the use of domestic intercepts in UK court proceedings. There is, however, no such bar on the use of foreign intercepts obtained in accordance with foreign laws. Nor is there a bar on the admission of bugged (as opposed to intercepted) communications or the products of surveillance or eavesdropping, even if they were not authorised and were an interference with privacy. There is no bar on foreign courts using British intercept evidence if the intelligence and security services are prepared to provide it . . . Other than the Republic of Ireland, we have not been able to identify any comparable country with such an extensive ban. In international operations (such as against al Qaeda) the USA has published details of its intercept capacity of landlines, mobile phones, satellite phones, diplomatic correspondence and satellite intercept of foreign communications . . . We understand the concerns of the intelligence and security services, which include not only the protection of sources and methods but also the need to ensure that interception for intelligence purposes is not impeded by the imposition of complex procedures to meet evidential requirements. We recognise that a balance has to be struck''.
Further on, the Committee states:
''Relaxing the ban would not place an obligation on the prosecution to use intercepted evidence. We can also see the case for modifying the normal rules governing the disclosure of evidence so that, for example, the prosecution would not be obliged to disclose intercept evidence, or even its existence, unless they chose to rely on it.''
Finally, in paragraph 214, the Committee states:
''Consideration could also be given to having different classes of warrants authorising the interception of communications, some allowing evidential use of the product and others not. This is the approach taken by some other countries (where interception by the police and investigating judges in particular can be used evidentially).''
My contention this morning is that that authoritative report, at the very least, deserves a proper, formal and timely response from Home Office Ministers, which it has yet to receive.
We move on to the White Paper on the Bill. I wish to draw the attention of the Committee to paragraph 6.2.2, which reads as follows:
''The Home Office led review is expected to conclude by June 2004.''
The review referred to is the review into the use of intercept material. It goes on:
''If Government were satisfied that adequate safeguards can be designed to prevent the disclosure of sensitive capabilities, and that the review had concluded that the benefits of this move would clearly outweigh the costs, then it would bring forward legislation to allow the evidential use of intercept material.''
Our purpose this morning is to try to facilitate the Government in doing just that.
I turn directly to the new clause. Its purpose is to enable intercept evidence to be used in criminal proceedings brought by SOCA. The simplest way to achieve that objective is to amend the definition of the relevant offence under section 18(12) of the Regulation of Investigatory Powers Act. The Act establishes a structure for authorisation by warrant of obtaining intercept evidence. A general exclusion on the use of such evidence in criminal proceedings is set out in section 17, although that is subject to a number of limited exceptions in section 18 to do with the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission among others.
Although this is not the time to seek to establish a new system for the handling of intercept evidence in criminal proceedings generally, which I do not think can be entirely ignored, there is much to commend a system where the intercept material is scrutinised by an independent High Court judge who is not the trial judge. For the purposes of laying a foundation for the use of intercept evidence by SOCA, it is plainly more sensible to propose an amendment that is consistent with the exceptions for using intercept evidence that presently exist.
Simplicity is a great virtue, and the proposed amendment will provide a remedy to what many of us would argue was a glaring omission from the Bill. That the Government are not proposing that intercept evidence can be used in SOCA cases is severely limiting. Either serious organised crime is being taken seriously, on a par with official secrets, special immigration and terrorism cases, or it is not. For our fellow citizens, it is every bit as devastating as those cases. Since the Government persistently tell us that there is a clear link between serious organised crime and terrorism, it seems extraordinary that the use of intercept evidence in SOCA cases has not yet been proposed. The Opposition do not believe that this is the opportunity to propose a wholesale repeal of the Regulation of Investigatory Powers Act 2000, and in this instance we want to ensure that SOCA has the powers that it needs. As I said earlier, we urge the Government to produce the Home Office-led review which, as I have explained at some length, is still lacking.
There are a number of central issues under this new clause. First, the Government cannot constantly make the link between terrorism and organised crime and not give the agency that will deal with serious organised crime the powers currently given to those dealing with terrorism cases. Secondly, numerous reports over an extensive time scale have lead to the Government's being under pressure to allow telephone intercept evidence to be used in criminal proceedings. Thirdly, Britain is one of the only countries not to allow the use of telephone intercept evidence. Although I am not a lawyer, I am advised that we are the laughing stock of the international legal community in this respect.
The Government consistently point to a link between terrorism and serious organised crime. The Prime Minister did so when speaking about identity cards. The Home Secretary, on Second Reading of this very Bill, said:
''All nations are considering the interrelationship between organised crime and terrorism''—[Official Report, 7 December 2004; Vol. 428 , c.1044.]
We submit, therefore, that the concessions on the blanket ban on the use of telephone intercept evidence extended to a number of situations in the context of terrorism should be extended to the world of serious organised crime. If the Government propose to set up an organisation to deal effectively with organised crime, it must have the same jurisdiction and armoury as other bodies dealing with similar levels of crime.
Secondly, I turn to reports stating that the ban on the use of telephone intercept evidence should be lifted. In my opening remarks, I mentioned the 1996 report by Lord Lloyd, which recommended lifting the ban on the use of intercept evidence in his review of terrorist legislation. On 28 September 1999, a consultation paper entitled ''Interception of Communications in the UK'' was published. That recommended a lift of the ban on the use of telephone intercepts. I have already mentioned the recommendations made in the debate on the Regulation of Investigatory Powers Act 2000 and, more recently, in the Newton Committee report from which I have quoted extensively. The Government must respond to these calls.
In an international context, one of the great difficulties Britain faces in combating serious organised crime is obtaining the necessary evidence for convictions. It is that particular issue in the Lloyd report which I wish to draw to the attention of the Committee. In considering the arguments for and against the admissibility of telephone intercept evidence, he made several points, and I can do not better than to quote from one paragraph of his report. Lord Lloyd said:
''The first and most obvious argument is that evidence of intercepted material is admissible to prove guilt in each of the countries which I have visited, and in every other country of which I have knowledge. The United Kingdom stands alone in excluding such material. Thus in the United States the use of intercept material in evidence is regarded as essential. In many instances, including high-profile cases involving the New York Mafia, convictions otherwise unobtainable have been secured by the use of intercept material. I put to officers of the FBI the suggestion that they were having second thoughts about the use of intercept material. I could find no support for this suggestion. In France I was told that intercept material has proved very valuable in terrorist cases. Thus, some 80 per cent. of the evidence against those suspected of involvement in the 1995 bombings is derived from intercept. Similarly, in Australia interception is regarded as an 'extremely valuable aid to criminal prosecution' . . . 664 for offences ranging from murder to serious fraud were based on intercepted material, nearly 500 of those prosecutions being for drug offences. Convictions were obtained in 87 per cent. of the cases. Often, when presented with the evidence of an intercept, the defendant pleads guilty.''
In America, Congress passed the Omnibus Crime Control and Safe Streets Act in 1968. Title 3 of that Act contained the first comprehensive federal legislative framework governing electronic surveillance for use in criminal investigations. Between 1987 and 1997 electronic surveillance conducted pursuant to title 3 assisted in the conviction of well over 21,000 criminals. Louis J. Freeh, director of the Federal Bureau of Investigation from 1993 to 2001, said:
''As demonstrated by the lives saved and the important investigations and prosecutions successfully completed, the use of electronic surveillance has served the public extremely well . . . Indeed, law enforcement agencies at all levels of government have uniformly found electronic surveillance to be one the most important—if not the most important—sophisticated investigative tools available to them in the prevention, investigation and prosecution of many types of serious crimes. This tool has been critical in fighting terrorism, organised crime, kidnapping, drug trafficking, public corruption, fraud, and violent crime, and in saving numerous innocent lives. In many of those cases, the criminal activity under investigation could never have been detected, prevented, investigated, or successfully prosecuted without the use of evidence derived from court-authorised electronic surveillance.''
Louis Freeh said that under oath when giving the evidence to the Federal Communications Committee in Washington in 1999.
If telephone intercepts can be used so successfully in America, we need to hear why the Government feel that conditions in Britain are so different that they would be of no help to us. Indeed, not allowing intercepted telephone communications to be admitted in evidence is completely illogical, particularly as other intercepted conversations are admissible. For example, if a listening device is placed in a person's house and a conversation is taped recorded or transmitted by a wireless device and recorded somewhere else, that intercepted conversation is admissible in evidence. Individuals can be wired up with recording devices attached to their bodies, and their conversations with others are admissible.
As I explained earlier, in operations such as that against al Qaeda, the USA has published details of its intercept capacity, by category and in considerable detail. We should of course bend over backwards to meet the concerns of the intelligence and security services. The Opposition understand that a balance needs to be struck between the public interest in prosecuting cases and the public interest in maintaining the effectiveness of our intelligence-gathering procedures and capabilities. However, we believe that if telephone intercepts cannot be used evidentially, that balance has not been struck.
Of great importance to our case is the fact that relaxing the ban would not place an obligation on the prosecution to use intercepted evidence. The amendment would simply allow SOCA to submit intercept evidence in court; SOCA would stand on a par with the other agencies that deal with serious crime and terrorism. In other words, it would be SOCA's and the prosecuting authorities' call. They would not have to use it.
I admit that there are questions of court procedure. If Parliament were to agree in principle that intercept evidence could be used, I fully understand that secondary legislation might be needed and that the Government would have to make decisions about how that should be handled and about court procedure, and so forth. Above all, however, the new clause is declaratory and would give the Government a chance to respond, at long last, to my points and to the reports.
In summary, first, we live in a new era after 9/11—that is common to us all. That has imposed great pressures on our judicial system. No doubt, the Government are considering the Law Lords' decision on those who are detained at Belmarsh. I fully understand the Government's argument that, given the new circumstances, some people in our society are so dangerous that they must be locked up. However, if we can bring such people within the judicial system, we certainly should. It may be that allowing the use of intercept evidence will indeed bring some of those people inside the judicial system, which is very much to be desired. Clearly it is undesirable to lock them up and throw away the key. We fear that as yet the Government have failed to strike the right balance.
Secondly, I am concerned that the British obsession with secrecy is getting in the way of making the right decisions on intercept evidence. As I said earlier, the argument that British criminals are so insular that they do not know the capabilities of virtually every other country in the world that uses intercept evidence does not stand up to serious scrutiny. Will the Minister confirm what is widely believed, namely, that the opposition of the three principal intelligence-gathering agencies and the police to the use of intercepts no longer holds and that at least one of those bodies, if not two, no longer objects to the use of intercept evidence in the British courts?
Thirdly, the inconsistencies in our present approach are legion. I understand that both legally and illegally obtained overseas intercept can be used in UK courts and that overseas courts can use legally obtained British intercept material—and, presumably, illegal material as well.
Finally, the proposed new clause would not introduce compulsion. It is an enabling measure that would enable SOCA or the prosecuting authority—perhaps following the Australian model of involving a judge, perhaps even a separate judge to the one trying the case—to use such intercept evidence where appropriate. No one would have to use such evidence, but it would be available to the prosecuting authorities.
I hope that the Government will consider my arguments seriously. If they do not like the new clause but decide that it offers the right way to proceed in principle, we shall table amendments on Report to make such powers available to the British court system.
Good morning, Mr. O'Brien. The hon. Member for Sutton Coldfield (Mr. Mitchell) originally tabled four separate new clauses dealing with intercept communications, three of which attracted the signatures of my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) and myself. The version that did not do so is the one that the hon. Gentleman has not withdrawn. Whether or not that shows an aversion to our support, I do not know, but I regret it, because we share a view about the admission of intercept evidence. New clause 2 is our least favoured option because it does not deal with offences under the Terrorism Act 2000, which seems a perverse exclusion, given the circumstances in which we live.
The hon. Gentleman has explained that he does not believe that the new clause is drafted sufficiently widely. I shall not dwell on that other than to say that the principal reason for extending the admissibility of evidence is, in my view, the danger of terrorist activity. I take seriously the Privy Council report to which he referred—the Anti-terrorism, Crime and Security Act 2001 review. Lord Newton's committee proposed a package to strengthen our legal system and our powers of interdiction against the threat of terrorism and it makes sense to consider all aspects of that package rather than one or two in isolation.
As the hon. Gentleman said towards the end of his remarks, the Government face a huge dilemma in dealing with the Law Lords' decision in the Belmarsh case. I do not need to reiterate our position on that question: we believe that people should not be incarcerated indefinitely without being brought before a court, and that it is right to expedite in any way possible the bringing of people before a court to face charges. A clear difficulty at present is the inadmissibility of the evidence in the possession of the security services that is derived from intercept communication. Always when dealing with such issues we are creating a balance between the security of state and citizens and the interests of the individual. I have given the matter careful thought and the balance is clear to me: we should allow the material in question, provided that it has been properly gained, to be admitted in court.
Having come to that view—that in terrorism offences it is in the interests of justice and of the security of the nation to allow material derived from intercept to be admissible in court. Once one has crossed that rubicon, there is no logical reason why the admissibility should not be extended to other offences. The lock is not on the admissibility in court; it should surely be on the way in which the evidence is derived, with reference to restrictions on the derivation of intercept material in the Regulation of Investigatory Powers Act 2000. Material derived properly under RIPA should be admissible in court in respect of offences on which it provides evidence that would be of value to the court.
We must ask why the Government are being so tardy about dealing with the issue. I appreciate that these are difficult matters, but I suspect that the tardiness is not a result of an attempt to derive a careful balance between the interests of the state and the individual. We have already seen the Government's response to that question in the case of incarceration without trial in Belmarsh. There must therefore be reservations on the part of the security services about the use of material that they have obtained from GCHQ or elsewhere. That is an argument that Ministers need to have with the security services and they need to win it. It seems remarkable that the British system is so out of kilter with that of other countries.
The Liberal Democrats support the admissibility of intercept evidence. The Government have taken long enough to come to a decision and the Bill is an entirely appropriate vehicle for making the changes that most of us anticipate and many of us want. It is an essential part of deriving the balance, so that we can revisit some of the other provisions of the Anti-Terrorism, Crime and Security Act and come to sensible conclusions about how to protect our citizens and at the same time provide for a proper court procedure and for justice to be done.
I congratulate my hon. Friend the Member for Sutton Coldfield on his lucid and persuasive speech. It seems as though our policy on allowing evidential use of intercept material is inconsistent, irrational and impractical. Why has the Home Office still not completed its review of the topic, which would have allowed suitable measures similar to the Conservative amendment to be included in the Bill? The ''One Step Ahead'' White Paper of March 2004 expected the review to be complete by June 2004, and it was referred to by the then Home Secretary as part of his series of anti-terrorism legislation in November 2004. The Home Office itself said, in its summary of responses to the same White Paper, that most respondents were supportive of the measure.
Even Liberty does not support the present total ban on use of intercept material. It said in August 2004 that
''there are no fundamental civil liberties or human rights objections to the use of intercept material, properly authorised by judicial warrant, in criminal proceedings.''
The organisation cannot see the reason for the present distinction between intercept material that is banned and evidence from bugging, surveillance and eavesdropping that can be admitted, even if not authorised. Foreign intercepts can be used if obtained, Liberty says. Only the UK and Ireland maintain a total ban on intercept materials.
New clause 12 might not be the perfect answer, but I certainly support my hon. Friend in saying that we are being left behind other countries on a vital issue of national security. In November 2004 my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) accused the Government of being ''all talk'' on intercepts, and said that, despite the Home Secretary setting out that weekend a series of anti-terrorism measures including juryless trials and the use of wire-tap evidence in criminal trials, there was no legislation in the speech to provide for them. He described them as
''a Government who say that protection from terrorism is a priority, but not yet . . . There can be no better example of the Government's pre-occupation with talk, spin and newspaper headlines.''—[Official Report, 23 November 2004; Vol. 428, c. 19-20.]
I hope that today we will hear some positive news from the Minister. It is time for action.
I apologise for being slightly late in arriving this morning, Mr. O'Brien.
It is believed that about 1,500 phones a year are tapped under Home Secretary's warrants, but, as has been made clear this morning, evidence thus derived can only be used for intelligence, although it is broadly believed that was used in the Belmarsh detention process. Evidence gained in that way is specifically not admissible in court, however—indeed, nobody can even ask in court whether a phone has been tapped. That applies if a phone has been tapped in a public telecommunications system, which means if I am on my landline and my phone is tapped, perhaps in the receiver, the evidence is not admissible; similarly, if the tap is somewhere on the line to the exchange—I understand I am using slightly old-fashioned language—that is not admissible. However, if the tap is between a base station in my house and the cordless phone in my hand, that the evidence is admissible, as that region is not part of a public telecommunications system but part of a private one owned by myself. If my phone is tapped on a private network, the evidence is admissible, as the tap is in a private telecommunications system—as in the case of the Assistant Chief Constable of Liverpool, Alison Halford, whose phone was tapped internally in a network owned by the police. Similarly, if prison phones are tapped, which they are all the time, that the evidence would be admissible because the telecommunications system is private.
The need for operational secrecy therefore seems odd, because it is quite plain that if, for technical reasons, the material becomes admissible, the fact that the tap is being done is often disclosed and the material used. As the hon. Member for Sutton Coldfield said, if one bugs someone's house rather than their phone, what is said on the phone will be admissible because a public telecommunications system is not involved—I am sure that it is technically possible using a sufficiently strong microphone to hear both ends of a conservation Phone taps are widely used in most of Europe, the US, Japan and Australia.
Let me tell the Committee about a case I was involved with just before I became an MP. It concerned an Anglo-Dutch drugs conspiracy, the arrangements for which were made by a Mr. Big in the UK and a Mr. Big in Holland. It seemed quite plain that the phones were being tapped at both ends, but no one could ask whether they were being tapped at the British end and none of the material produced here—if there was any—could be used. However, all the material tapped at the Dutch end was used, even though the calls were often initiated somewhere on the south coast of England. Although we do not use our own phone taps, we can use Dutch phone taps covering phone calls initiated in the UK. I do not understand the technology, but when the Dutch Mr. Big came to the UK, phone conversations held entirely in the UK between both Mr. Bigs were intercepted by the Dutch, and they were used even though the calls were made in the UK. That shows how illogical the position is. I doubt that the UK Mr. Big would have been convicted if not for those phone taps, which seems a shame.
It seems clear that the police have moved from rooted opposition, as has the Crown Prosecution Service. David Calvert-Smith, the former Director of Public Prosecutions, described the ban as
''a damaging restriction . . . weakening Britain's fight against organised crime, drug trafficking and terrorism'', and he said that the admission of phone taps would assist enormously. Major criminals obviously take a great deal of care not to use land lines, or even mobile phones registered to them, regularly, but that does not mean that phone tapping them is impossible. I understand that the National Criminal Intelligence Service and MI6 are against it, but it is said that MI5 has long been reconciled to it, although it notes that
''We do not want to alert serious criminals to the ways that we catch them.''
Customs is said to be guardedly open minded.
Meanwhile, as Opposition Members mentioned, moves are being made from the other vantage point. Liberty, always with one eye on civil liberties, regard it as acceptable for the fruits of phone tapping to be admissible. However, it says that the disclosure of material that would be necessary at trial might be an issue, and one can see the problem. Everything that undermines the prosecution or assists the defence has to be disclosed. If a phone has been bugged for two years and the Crown wants to use only 10 minutes, the prosecution is likely to have to disclose the rest of the recordings—even if they have not listened to the rest of them—because it could undermine the prosecution. That could be expensive and time consuming. It gives scope for cross-examination and risks undermining the Crown's case, but that is what trials are for and I cannot believe that it is impossible to solve that major problem.
The reports that I have read say that the Secret Intelligence Service and the electronic eavesdropping agency GCHQ claim that criminals and terrorists will be tipped off about their techniques if they are made public. However, Sir David Calvert-Smith said that the vehement arguments used by diehards are implausible. Criminals know already that their telephones are likely to be tapped. He said:
''It has been common knowledge for years.''
Experience shows how valuable tapping is as an intelligence tool. The argument is that it disrupts drug traffickers and serious Revenue fraudsters, and the benefits of allowing the fruits of phone tapping to be used in court must outweigh the disadvantages of exposure in court of details of law enforcement intelligence techniques.
A strong advocate of the admissibility of phone tap evidence is the new director of SOCA, Sir Stephen Lander, who, after 25 years in the secret services, says that he is an enthusiast for the move, although there would have to be robust arrangements to protect sources and techniques. He has said,
''Here's something that happens in almost every jurisdiction but not here, but the protection of techniques argument is a valid one''.
He describes the question as ''complicated'' but says that he has a lot of sympathy with the straightforward approach of asking, ''If everyone else can do this, why can't we?''
That is a good question, which is given added urgency now that it is believed that material of the kind in question has been used in the Belmarsh cases. If it were made admissible in criminal courts, it might at least partially solve the dilemma affecting the Belmarsh internees, by enabling them to be prosecuted using the material that has already been gathered. I should be grateful for an update on the position and on the Government's thinking.
I listened with interest to the hon. and learned Member for Redcar (Vera Baird) and to my hon. Friends. I agree with the sentiments that they have expressed. It seems to me that the key issue is not the admission of the evidence of the contents of the intercept on which the prosecution might rely to secure the conviction—indeed, if that were the only issue the continuing reluctance to make use of intercept evidence would seem positively crazy and perverse. The problem, which was touched on lightly by the hon. and learned Lady, is the status of intercepted material as unused material in any prosecution. It would not be good enough for the prosecution to say, ''Here is the evidence of the intercept of a telephone conversation of 24 June between the two Mr. Bigs,'' if they also had records of intercepts of all the other conversations that Mr. Big had had in the previous 12 months, because there would be a duty to disclose that to the defence, too, as unused material. I assume that that is the reason why the Security Service has always shown itself so reluctant in the past to depart from the existing slightly bizarre state of affairs, in which the existence or otherwise of intercept material is simply rubbed out of the picture, so that no one can mention it in court, the prosecution can not rely on it, and, for that matter, the defence can have no access to it, even though a defendant might say, ''I suspect that my telephone was intercepted on a day six months ago and that evidence, if I have it, would show that I am not guilty.'' Admissibility cuts both ways. I suspect that the real problem for the Security Service is the way in which the evidence in question might lead to other intercepted material, besides that on which it wants to rely, being revealed.
I hope that the Minister will feel able not only to deal with the specific point, but to engage in some creative debate about some of the surrounding problems. If the issue that I have identified is the nub of the matter that is preventing the Security Service from allowing intercepted material to be adduced in evidence, we must think creatively about whether we can find ways to get round that problem. As the Minister is aware, there are ways in which unused material may currently be subject to public interest immunity prevention from disclosure. The judge must make the decision whether the material is so sensitive that it should not be disclosed to the defence. It therefore does not seem to me to be beyond the bounds of the possible to devise suitable rules for such an approach. However, the Committee must understand, as we embark on a very important debate, that if one decides to allow the admission of material on which one wishes to rely to secure a conviction, it is inevitable that other material relating to the defendant that might either be prejudicial to the operation of the intelligence services, or help the defendant to secure an acquittal, will have to be scrutinised in some way at a judicial level in the courtroom process. That will cause difficulties.
That is not a reason, however, not to try to find a way through the problem. It is clear—starkly clear, in the Belmarsh context—that if we are at the stage of detaining people without trial even though adducible evidence on which they might be convicted is available, we are doing both ourselves as a state that supports the rule of law, and those whom we detain, a singular disservice. The matter is becoming increasingly urgent. Prior to detention without trial at Belmarsh, it could have been described as of abstract academic interest only, but that is no longer the case. That is why it is so important that the Minister makes a full response today.
There is perhaps a new opportunity to deal with such matters rather differently from how they have been dealt with of late. I am a member of the Select Committee on Science and Technology, which in 2003 issued a report entitled ''The Scientific Response to Terrorism''. The Home Office opposed, root and branch, almost every suggestion that our Committee made. We wanted American-style openness about the way in which such matters are dealt with, but the Home Office wanted clam-like silence.
One result of the criticisms that we made in the report was that the Home Office finally appointed a chief scientific officer, to get credible information about the technical capacity to deal with some of the issues that we raised. We have an opportunity to discard the tradition of regarding silence and the cloak as the most effective way of dealing with such problems, and to accept the fact that criminals who devote their lives to such matters generally know a great deal about de-encryption techniques for messages and the like. Hiding things might have been wonderful in the days of the enigma code, but it is no longer effective. We need to deal with such matters in a new and different way.
The contributions from the hon. Members for Sutton Coldfield, for Somerton and Frome (Mr. Heath) and for Huntingdon (Mr. Djanogly), my hon. and learned Friend the Member for Redcar, the hon. Member for Beaconsfield (Mr. Grieve) and my hon. Friend the Member for Hemel Hempstead (Mr. McWalter), illustrate how complicated the issue is. There is no evidence that other countries are more successful than the UK in their use of intercept to tackle terrorism. As my hon. Friend the Minister for Crime Reduction, Policing and Community Safety knows well, people from around the world come to the UK to talk with us about how we organise our defences against the threat of terrorism.
Although I do not accuse hon. Members of doing this, we should be careful when talking about how to tackle terrorism not to lay a negative challenge at the door of those who, through the gathering of intelligence, defend us from terrorism every day, just because we have particular rules about the use of intercept. It is also important to recognise that the use of intercept in the UK as an intelligence-only tool has led to some impressive results. In 2003, interception led to the seizure of 26 tonnes of illicit drugs and 10 tonnes of tobacco, the detection of £390 million of financial crime and 1,680 arrests. As the interception of communications commissioner, Sir Swinton Thomas, stated in his most recent annual oversight report:
''It is my view that in 2003, as before, interception played a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means.''
We know that, under the current rules, interception helps to prevent terrorist atrocities through effective disruption and that it enables the placing of enforcement teams to catch criminals red-handed in possession of contraband. That is important, because those outside the Committee listening to some of the debate might think that intercept intelligence is not being used to tackle terrorism and serious organised crime in this country.
As hon. Members have outlined, there have been a number of Committees and individuals with sincerely held views, like all of those who have spoken so far in this Committee, about trying to do our utmost to tackle both terrorism and serious crime. They have had debates and produced reports—those mentioned by the hon. Member for Sutton Coldfield—and I am not for one minute undermining their concerns and efforts. It is true that the review that we have been undertaking has not, perhaps, concluded as fast as people might have wanted. It is also important to recognise, however, how complex and serious this area is as regards the Government's coming to a position in which they feel able to report.
I am listening very carefully to what the Minister is saying. The Government have not yet concluded their long-promised report. When will they?
The hon. Gentleman pre-empts my next point. We hope to make an announcement shortly. The new clause would pre-empt the conclusions of the review that we have undertaken into whether a change in the law on evidential use of intercept product would be likely to deliver bigger, better and quicker convictions of organised terrorists. As I said, we hope shortly to announce the outcome of the review, which has carefully examined both the advantages and likely risks involved in any regime change. The new clause crucially does not address the very formidable difficulties in using intercepts as evidence in a way that would protect the capabilities and current value of the technique as an effective intelligence tool.
The review has not provided compelling evidence to suggest that the use of intercepts as evidence would secure more convictions of terrorists or, for that matter, serious organised criminals, who we know often employ sophisticated measures to avoid incriminating themselves. We know, and it has been mentioned by a number of hon. Members this morning, that the top targets are particularly astute in distancing themselves from crime. Even when product is compelling, it may at times be best to avoid disclosing it, as that would reveal how the evidence was obtained. Disclosure without safeguards would have two damaging effects. It would mean that criminals and terrorists would learn how to avoid detection and, we believe, it could impair co-operation between our intelligence and law enforcement agencies. That is important, because we know that this uniquely close intelligence and law enforcement co-operation has been deployed very effectively in the UK. It has meant that we have been able to protect sensitive techniques from the vigorous defence probing that is one of the strengths of our adversarial judicial system. Overseas regimes do not have this necessarily close inter-agency co-operation, and therefore do not run the same risks of sensitive exposure. In the UK, we have a unique combination of an adversarial judicial system, alongside common law precedent and, of course, responsibilities under the European convention on human rights. It is not an easy task, therefore, to assume that we can import the framework in which another country uses this type of material. The review has looked extensively at the use of intercept overseas.
I want to clarify a couple of points about foreign intercepts. They have been used very rarely in UK courts.
I said rarely, which implies that they can be. Of course, the disclosure of foreign intercepts raises none of the difficulties of exposure that the disclosure of domestic intercepts would raise.
Intercept material provided by the UK is not disclosed to foreign jurisdictions for use as evidence. I wanted to clarify that because some hon. Members have suggested that we provide domestic intercepts for use as evidence in foreign courts, and that certainly is not the case.
My hon. and learned Friend the Member for Redcar mentioned Sir Stephen Lander's views on the issue. He has made it clear that intercepts may be used as evidence only if the risk can be mitigated, and that is one of the key issues considered by the review.
As an intelligence tool, interception is already extremely valuable in helping to disrupt terrorism and organised crime. It also helps the agencies concerned to gather evidence to support the arrests and convictions of those involved in serious crime and/or terrorism. However, there are important issues—I am not suggesting that hon. Members are not mindful of them—about the risk of jeopardising the effectiveness of this intelligence tool, which is one of the most effective weapons in the fight against organised crime and terrorism. The consequences of getting our approach wrong would therefore be extremely grave.
One of the key factors that the review has been considering, therefore, is how an evidential regime might provide safeguards to prevent the disclosure of particularly sensitive techniques—an issue touched on by the hon. Member for Beaconsfield (Mr. Grieve). A huge amount of work has been done on developing a legal model that might allow us to use intercept as evidence while protecting those techniques. One of the main difficulties with that work has been the need to future-proof that legal model to take account of major changes in communications technology, now and over the next few years. I am afraid that the new clause provides no such protection for today or the future. It would not only give the prosecution discretion to use intercepts, but inevitably lead to the defence gaining access to any such material through the use of disclosure requests. As I said, the review has been considering that.
The Minister is very generously giving way again, but may I pin her down on the date for publication of the review? I am not asking her to name the day on which it will be published, but she said that it would appear shortly. Will she give us a commitment—I think that we have a right to ask for one—that it will be available before Report?
All I can do at this stage is to repeat my original answer: the review conclusion will be reported shortly.
As I said earlier, it is fairly common knowledge, although we know this only anecdotally, that the Special Immigration Appeals Commission decision on the detention of the Belmarsh detainees appears to have been based on a mixture of things; some may have been overseas intelligence sources, but there is a suggestion that much of the decision was based on intercepted communications. I am sure that the Minister can see that, in those circumstances, there really is a degree of urgency about these issues. If we are, indeed, basing detention on the scrutiny in secret of intercepted evidence—I suspect that we are—and that the evidence could be used in a court of law if we could find a way through the difficulties, it is imperative to come to a speedy conclusion. How are Members of Parliament to be kept informed about the review and the issues that it identifies in a way that provides us with proper information, rather than our being left in the dark?
I agree that following the Law Lords' announcement we must consider the hon. Gentleman's first point as a matter of urgency. The Home Secretary made that clear in his first week in post; it is important. Intercept evidence is not necessarily the key to the successful prosecution of serious or terrorist cases. If there is sufficient admissible evidence to enable any detainee to be prosecuted, it will be acted on. Indeed, two individuals have been convicted of criminal offences following their initial certification and detention.
However, the evidence held in relation to the detainees comes from a variety of sources. While some is technically admissible, it could be problematic: it affects national security; it would damage our intelligence-gathering capability; or it might put the lives of third parties at risk. I know that the hon. Gentleman would agree that to deal with the terrorist threat a balance has to be found. Where we can, we will pursue successful prosecutions, while being mindful of other parties and of threats to our ability to gather intelligence. Like so many of the matters that we have discussed, this is complex. SIAC does not deal with criminal proceedings, so the model of closed proceedings that it uses could not be adopted for criminal trials. I am sure that hon. Members are aware of that.
The Minister has been extremely helpful in setting out the position, and we understand the difficulties involved. Is it the Government's view that the Bill is a suitable legislative vehicle for any change, provided that it is possible to derive a satisfactory formulation? Will SOCA be used to bring forward changes in legislation if it is the Government's intention to do so?
In a roundabout way, the hon. Gentleman is asking me to pre-empt the outcome of the review. I shall not be drawn down that path, no matter how charmingly he does it. There will be an announcement shortly about review, and I do not want to pursue his point.
In addition to some of the general arguments on the use of intercepted evidence that I have outlined, there are particular issues in relation to new clause 12. The new clause would limit the use of intercepted evidence to prosecutions under SOCA. It could be argued that there is no obvious justification for giving such special treatment to SOCA prosecutions and not to all criminal prosecutions. Indeed, it would be strange if terrorist offences could not be prosecuted using intercept evidence, but SOCA offences could be. Furthermore, the relevant offences listed in section 18(12), which are exempt from the section 17 prohibition on evidential intercept use, are all similar in that they are offences in which interception plays a crucial part, such as offences under interception of communications legislation and the Official Secrets Act.
It is likely that if intercept material were not admissible in relation to such offences, then no prosecution could be brought. That would seriously undermine the criminal law in areas of important public policy. The offences that SOCA will investigate will not necessarily be in that category. In fact, as I have already said, the use of intercept material to assist law enforcement has produced some good and positive results in terms not only of seizures and disruption, but of arrests of serious criminals.
I hope I have been able to outline to hon. Members how seriously we take the issue. I also hope that I have reassured them that the review has been considering the detail in a host of areas about the use of intercept and what happens overseas, and has been tackling the issues that hon. Members have outlined today.
In response to the question asked by the hon. Member for Beaconsfield, I can say that we will give as much information as possible where it is safe to do so. The Home Secretary will want to share the report with the Intelligence and Security Committee, but it will not be published, as it is a classified document. However, we will look at how we can share information in a secure environment while protecting security issues and the safety of those involved.
I hope that the hon. Member for Sutton Coldfield will withdraw the new clause on the basis of what I have said. It has been useful to have this debate, and it is useful to keep in context the fact that intercept, although it is not admissible in court in the way that hon. Members might like it to be, is a valuable tool that is used to its utmost to tackle terrorism and serious crime.
This has been an interesting debate; I will give the Minister that. I am afraid that it leaves me unsatisfied, however, with the position that the Government have outlined. Before I explain why, I should perhaps say that I meant no disrespect to the hon. Member for Somerton and Frome in selecting the new clause that he had not signed rather than all my other amendments, which he had. Throughout the course of the Bill, it has been clear that he and I have often been of one mind in our critique of the Government's legislation. In these days of newsworthy events, I want him to know that I have in my pocket an application for him to join the Conservative party should he be minded to follow the logic of my earlier remarks, but I meant no disrespect to him. The new clause was narrowly drawn in order to deal with aspects of the Bill, and I hope that I have made it clear that the case I sought to put was far wider than the new clause and dealt with the more general issue of intercept evidence.
The hon. Gentleman said that material derived properly in court under the Regulation of Investigatory Powers Act should be used, and I agree. The hon. and learned Member for Redcar made an enormously compelling contribution, saying that the confusion in the matter is of real detriment to good justice, pointing out the illogicality of the Government's position and, from her direct experience in the courts, using evidence of the value of intercept evidence in court. She gave her opinion that in the case she referred to conviction might not have been secured without the Dutch intercept. The Government would do well to listen to her.
My hon. Friend the Member for Beaconsfield zeroed in, as the excellent lawyer that he is, on court procedure, which I brushed lightly over for two reasons. First, the use of intercept is an issue for SOCA and for the prosecuting authority. They will use it under our subvention if they think that it is appropriate and wish to do so. They will not be compelled to do so. That is a fundamental weakness in the Minister's case. As my hon. Friend pointed out, there are ways in which court procedures have been dealt with around the world, such as in America and Australia. There are issues to do with public immunity certificates, or possibly of a non-trial judge being involved. The hon. Member for Hemel Hempstead also made a cautious and telling intervention in support of our argument.
Let me raise an issue about the hon. Gentleman's reference to this power as permissive power and the implication that that shows a weakness in the Minister's argument. I am not sure that it does. In the context of adversarial court proceedings, if it is once disclosed that there might be intercepts, the defence will make inquiries and compel the information's disclosure, if it is there.
The main argument is that our security services have a technical superiority that will be brought into the public domain if intercept evidence is used in court. That is the point I seek to debunk. The idea that serious, organised international criminals in Britain are shielded from knowledge because we do not use intercepts in court, is ludicrous. It is used elsewhere in the world, and the suggestion that somehow the barrier of the Atlantic or the English channel stops them from having knowledge of technological advances made in that area is ludicrous.
I mean no disrespect to the Minister by making the following point but—if I may use a cricketing metaphor—she has been sent to the wicket today and, standing there with her bat, has blocked the very reasonable points made all around the Committee. The Minister's arguments have been all the arguments made before the Newton and Lloyd reports: the ludicrous one about technical superiority, for example. They are the same old points that the Home Office has relied on in not addressing the damning conclusions of very senior committees, and I have given those of Lord Lloyd's committee in full this morning.
A number of colleagues on both sides of the House have mentioned what I call the Belmarsh issue. It is very important to bring the people at Belmarsh back into the judicial system if we can. I say that as one who supports the Government's policy in dealing with such difficult issues, on which we all must search our consciences to work out whether the balance between protecting the rights of the individual and protecting our constituents and society has been met. More often than not, I have concluded that the Government have been right to take draconian powers. We all know, however, that those people should, if possible, be brought back within the judicial system. Allowing the use of intercepts in British courts would be one way to do that.
Does the hon. Gentleman accept that while his general approach is indeed commendable, his technical amendment is perhaps inadequate to that particular cause? I hope that he sees it more as a probing amendment than as something to be pressed. Surely he takes some satisfaction from the Minister's decision to treat his representations as urgent, which is actually beneficial?
On the second point, I would take more comfort from the Minister seeing these representations as urgent if it were not for my early remarks this morning. I took the Committee through the continuous way in which targets of reporting set by the Government have not been met. In the case of the Newton committee, the Government's commitment to come back by the middle of last year may be recalled, and the White Paper on this Bill gave another commitment. What the Minister has said today means that we must be getting nearer the conclusion, but my view is that it would be better to produce it on Report. I would have preferred the Minister to give a commitment to that effect.
I do not intend to press the new clause to a vote. As the hon. Gentleman rightly said, it is intended to probe, as the Opposition often do on issues on which we want to understand the Government's thinking. We are a listening Opposition who listen carefully to what the Minister and her colleagues say. The new clause is a probing one, to which we will return in due course. As with the first substantive issue we discussed on this Bill last week, the Minister should be in no doubt that if she thinks that the current position—her place at the wicket—will withstand the views of hon. Members on both sides of the House on Report, let alone in the other place, she is very much mistaken.
I am disappointed that the Minister stuck to the pre-Newton, pre-Lloyd arguments. Having produced those heavyweight reports, the Government are mistreating members of the Committee and hon. Members on both sides of the House by not responding in a timely way, or at all. I seek a commitment from the Minister that between now and Report, or on Report, she will give a definite date when we will hear the Government's conclusions on these important matters. Nothing has been said in the debate to gainsay the lucid arguments proposed not by my hon. Friends and me but by Lord Newton, Lord Lloyd, the Minister's right hon. Friends the Members for Gateshead, East and Washington, West (Joyce Quin) and for Islington, South and Finsbury, as well as Mr. Terry Davis, formerly the right hon. Member for Birmingham, Hodge Hill, and her noble Friend Baroness Hayman. They are senior figures whose arguments have not been addressed. I hope that the Minister will return on Report, first, with a definitive response to those arguments and, secondly, with a detailed answer from the Government on the use of intercepts in British courts.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
With this it will be convenient to discuss the following:
Amendment No. 303, in clause 101, page 67, leave out lines 18 to 22.
Amendment No. 146, in clause 101, page 67, leave out lines 23 to 26.
Amendment No. 218, in clause 101, page 67, line 24, after 'if', insert—
'(a) the offence is an arrestable offence punishable by more than 5 years imprisonment, or
Amendment No. 296, in clause 101, page 67, line 24, after 'if', insert—
'(a) the offence is an arrestable offence, or
Amendment No. 219, in clause 101, page 67, line 43, leave out from beginning to end of line 2 on page 68.
Amendment No. 166, in clause 101, page 68, leave out lines 6 to 28.
Amendment No. 295, in clause 101, page 68, line 17, at end insert—
'(za) the offence is an arrestable offence,'.
Government amendment No. 255.
Clause stand part.
Clause 102 stand part.
Amendment No. 220, in schedule 7, page 164, leave out lines 3 to 13.
Amendment No. 185, in schedule 7, page 164, leave out lines 8 to 13.
Amendment No. 221, in schedule 7, page 164, line 30, leave out from beginning to end of line 38 on page 168.
Schedule 7 be the Seventh schedule to the Bill.
New clause 13—Powers of arrest (No. 2)—
'In section 24 of PACE (arrest without warrant for arrestable offences), leave out subsection (1)(b) and insert—
''(b) to offences which the Secretary of State may by order prescribe;''.'.
New clause 14— Powers of arrest (No. 3)—
'In section 24 of PACE (arrest without warrant for arrestable offences), leave out subsection (1)(b) and insert—
''(b) to offences other than those which the Secretary of State may by order prescribe;''.'.
We come to an important part of the Bill relating to police powers and the powers of arrest for citizens.
I apologise to the Committee. I concluded from the plethora of amendments tabled to the clause that there had perhaps been a little overegging of the pudding. The proposals are not mutually inconsistent, but many would do roughly the same thing; others are purely probing amendments. There is a cornucopia from which to choose. With your leave, Mr. O'Brien, and with the agreement of the Committee, the sensible thing would be to make the debate effectively be a stand part debate, and as we will go through the clause with a fine-tooth comb, we may avoid the necessity for a clause stand part debate at the end.
The clause falls into three distinct sections. First, what power of arrest should be given to police officers? Secondly—the part of clause 101 that relates to the amendment of section 24A of the Police and Criminal Evidence Act 1984—what powers of arrest should be given to those who are not police officers? I believe that the intention is to facilitate the action of community support officers, a matter to which I shall return in a moment, but it goes much wider than that because it extends to the public in general. Thirdly—last, but by no means least—there is the Government's intention as a result of their general overview to abolish the common law rules conferring powers of arrest.
I hope I may be forgiven for going a little bit back to basics. This country has shown a marked reluctance to allow the police to arrest people for any criminal offence or matter. The distinction between felonies and misdemeanours lies in the distant past. In our law, there has always been the principle that if someone committed a felony—what is now described as an offence punishable by more than five years' imprisonment—it was immediately arrestable, with no further ado. However, if it was punishable by less than five years' imprisonment, the general rule was that it was not an arrestable offence and that the process that had to be brought to bear on an individual whom one wanted to prosecute was to issue them with a summons to bring them to court.
Perhaps inevitably, those distinctions have become blurred over the years. To begin with, there has always been the power to arrest someone to prevent a breach of the peace. As I have always understood it, that means that we all have a power of arrest over an individual who is caught in flagrante delicto—actually carrying out a criminal offence—and whom it is necessary to restrain to prevent a breach of the peace. On April fool's day last year, for example, I found myself confronting an individual just outside Green Park station who was busy smashing a bus shelter with a pole. There are interesting distinctions between different categories of criminal damage offences, but I concluded that he was committing a breach of the peace and that it was arrestable, so I sought to arrest him. We then had an extremely entertaining chase around the nicer parts of Mayfair, before the police turned up about 10 minutes later. That illustrated to me that one has to think before one suddenly decides that one can go and arrest someone. On top of that, of course, many offences on statute are arrestable of themselves; they include a wholes series involving entering certain premises, and there is quite a long list in schedule 7, which deals with some of the matters that the Government seek to repeal.
Superficially, it is attractive to say, ''Why don't we just simplify everything and let the police arrest anybody for any offence?'' That, of course, is what the Government are seeking to do in respect of police officers in the new powers of arrest in clause 101. In fairness to the Government, however, they are sufficiently aware of the civil liberties issues involved to have set out a number of criteria and tests, which ought to govern the exercise by the police of the discretion to arrest or not. On the one hand, therefore, the Government seek to give the police complete powers to arrest anybody for anything that is a criminal offence; on the other, in new section 24(5), they lay down a hierarchy of tests that the police must carry out. The reasons set out there are designed to influence a police officer's actions and, in many cases, one would infer, to lead him to decide that there is no need to arrest the person at all. In fact, in most cases, it looks as if the police officer will simply take the individual's name and address.
''a high level of satisfaction with the framework of arrest powers, but there are concerns that it is too complicated.''
It appeared to ask for simplification, not for existing distinctions to be done away with entirely.
My hon. Friend has clearly studied the matter in detail. Is he saying that, as far as the powers of arrest are concerned, members of the public such as those whom he has described, committing the types of offence that he has mentioned, will stand in the same relationship to police officers exercising the power of arrest as burglars or bank robbers, subject to the provisions of new section 24(5)?
Yes indeed—that is precisely what is going to happen. Going by the sorts of things about which people come to complain to me, it is easy to anticipate the types of situation that might arise. For instance, if a police officer stops a car driver because one of the car's rear lights is not working, that is not an arrestable offence. Because it is during the morning school run, the driver is, perhaps, less co-operative than he should be over such a trivial offence. Instead of the matter being resolved by the issue of a form HORT1 to produce the driving licence and other details at a police station at a later date, the police officer ends up arresting the individual.
If that sort of situation is likely to arise, the damage to police-citizen relations will be phenomenal. Because we are all human and fallible, police officers have off days, as do generally law-abiding citizens. My concern is that the power is constructed in a way that will make it enormously tempting to officers to short-cut; going by the list in sub-section (5), they will have ample grounds on which to do so. The result will be that Members of Parliament will be bombarded with complaints. In the process, policing by consent, which underpins the way in which policing works in this country, will be damaged or endangered. Arrest is a draconian matter. Even a short period under arrest is a major interference with the liberty of the citizen.
The powers will extend to everything—not only road traffic matters but, potentially, the amazing plethora of minor regulatory offences that usually lead to no action at all or to a summons through the post. I am concerned about that and think that the Government should justify the measure in detail. I look to the Minister to do so. Police officers go through rigorous training, and I have never come across one who did not know what was arrestable and what was not. The lists might be long, but they are not so long that a person is incapable of having that knowledge. The fact that some offences are not arrestable is an important fetter. It prevents the state from engaging in trivia. If we all started to engage in trivia, we would seriously jeopardise the respect for the law that exists in this country.
My hon. Friend makes a cogent case. The purport of what he is saying is that there will be more arrests for trivial offences. Will the likely result of that not be a huge increase in police time spent on the extra paperwork involved, which will lead to even fewer police on our streets?
Potentially, yes. It could be argued that that may be the one thing that fetters the police from using this power too often, but it could lead to a great increase in bureaucracy because if the police arrest somebody, they have to process them as an arrested person.
I am following my hon. Friend's argument closely, and it has so far been predicated on the assumption that a trivial offence that is not presently arrestable has been committed. As he said, such offences can be committed by otherwise law-abiding people. Is it not also the case that somebody who has not committed any offence at all could be arrested? For example, if an officer has
''reasonable grounds for suspecting that an offence has been committed'', and he questions the person concerned, that person may be liable to be arrested under new section 25(5)(a) if he refuses to give his name and address.
Absolutely. Taking the analogy of the rear light on one's motor car, it is not only a question of the police constable seeing the rear light and stopping someone; the police constable could approach them and say, ''Somebody has told me that the rear light on your motor car was not functioning. Unless you answer my questions, I am going to arrest you.''
The Minister for Crime Reduction, Policing and Community Safety (Ms Hazel Blears) indicated assent.
I see the Minister nod with a certain degree of delight at that prospect, although I must not pre-empt her views. However, the prospect fills me with considerable gloom. Frankly, the power is onerous, unnecessary and a step too far.
The next area is arrest without warrant for other persons. On this matter, the Government are plain bonkers. I think that the intention behind the powers is to facilitate the activities of CSOs, but they would extend to everybody in the land, because a CSO has no particular status as a constable. New section 24A would give any citizen the power of summary arrest on
''anyone who is in the act of committing an offence'',
''anyone whom he has reasonable grounds for suspecting to be committing an offence''.
If an offence has been committed, it would allow a citizen to arrest
''anyone who is guilty of the offence'',
''anyone whom he has reasonable grounds for suspecting to be guilty of it.''
The key phrase is that someone is entitled to exercise this summary power of arrest if they have
''reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question . . . and it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.''
I do not have too much problem with the first three of those reasons in new subsection (4), which are:
''(a) causing physical injury to himself or any other person;
(b) suffering physical injury;
(c) causing loss of or damage to property'' because they fall within the existing breach of the peace provisions. But the last one is:
''(d) making off before a constable can assume responsibility for him.''
Let us return to the red light on the back of the car. I see an individual whom I do not know parking his car outside my house, whose rear light is not working. I go outside and, under the powers conferred under new section 24A, I arrest him. I say ''I am going to arrest you, until such time as the local police officer—I am just now dialling 999—comes along to take responsibility for you''. Now, I know that MPs have high and mighty views of their own status, but I think that a bigger recipe for getting biffed in the face by an irate driver could not be found. Yet that is what the Bill will bring about.
We had this problem when we were dealing with previous legislation and extended the power of arrest in the Domestic Violence, Crime and Victims Act 2004 to common assault. I said that I hoped that the general public did not discover that we were extending that power to common assault, because everybody would go around arresting everybody else. I seem to remember the then Minister saying to us that it was not really a problem, because the public would not know about it. Well, I think the public is going to get to know about new section 24A and, when they do, every officious little inter-meddler in the land is going to have a blank charter to go around detaining other people, particularly people unknown to them, since if they know them it becomes a bit harder as they could simply make a complaint, then summon a police officer to their assistance.
Now, we all know the reality, certainly in my own constituency, which is that if we summon the police because our house has been burgled, we will be visited by a scene of crime officer, if lucky, between 72 hours and five days later. That is the current position. The idea that police officers, thin on the ground, are suddenly going to materialise as people ring in on their mobile telephones to say that they are currently apprehending somebody who, say, has not got a rear light on his motor-vehicle, is a picture of a fantasy world that I think we can well do without. I am open to persuasion on the first part of clause 101 about constables' powers, but when we come to the power of arrest for other persons—the Minister knows that I made this comment to the then Home Secretary on Second Reading—I just do not see how this section is curable by judicious amendment. The only way in which it could be done is by removing
''(d) making off before a constable can assume responsibility for him''.
Of course, the irony is that that brings us back to the Government's desire to get rid of the power of arrest for breach of the peace, which appears at the end:
''Any rule of common law conferring power to arrest a person without a warrant is abolished.''
I think the old breach of the peace provision worked rather well. Yet, they are what we are going to get rid of. Unless the Government have changed their mind, the wording of the Bill says that is what they are going to do. If they have changed their mind, I await the Minister's explanation with interest and fascination. It was, however, their original thought, and they put it in the statute. It is a big mistake.
Is not the real problem in giving the ordinary citizen a general power of arrest—particularly where someone is only suspected of being about to commit an offence—that under the old rules a constable or more senior police officer had the training and experience to know whether a crime was about to be committed, whereas the ordinary citizen might think, on first sight, that a crime was about to be committed by someone who was going about their business perfectly lawfully, and might try to arrest them?
As my hon. Friend has said, a breach of the peace or something worse is more likely, not less likely, in that case. The power is a very general one, which is likely to cause all sorts of problems, particularly where the police are thin on the ground, such as in rural areas, where, in the middle of the night, they take an inordinately long time to get to any suspected crime. Someone holding a person whom they suspected of committing a crime could be holding that person for a long time before a constable could come to supervise.
I agree. In fairness, there is a distinction between the constable's powers and those of the ordinary mortal; I think that the power of arrest granted to the citizen does not extend to arresting someone whom they think is about to commit an offence. It exists only when someone is committing an offence or has committed an offence. That distinction does not, however, detract from what I think are legitimate anxieties. I fear that we are encouraging a free-for-all.
There are of course instances in which it is proper that citizens should intervene to carry out arrests. I hope that what I did outside Green Park station was proper, because I did not consider that what happened was trivial, in view of the individual's behaviour. However, there are many instances in which we should not set one citizen on another to enforce the law in such a fashion. It will lead, I think, to endless problems and headaches for the police. That sort of thing has a tendency to bring the law into disrepute.
The hon. Member for Beaconsfield has already had a good canter around the course and he will know that I also expressed concerns about clause 101 on Second Reading. He is right. What we are discussing is due to the fact that there is no distinction in this country between a felony and a misdemeanour. I understand the difficulties that police officers have in determining whether an offence is arrestable, given the profusion of offences on the statute book. Most offences in recent years have been made arrestable, irrespective of their triviality, but that is a side issue. The question of what comprises an arrestable offence—when the threshold is reached—clearly tests a police officer's powers of recollection, if nothing else.
I have two problems with the clause, and what is proposed for police officers. First, I do not think that the clause greatly improves the lot of the constable. He is asked to substitute one threshold, which he has to determine, for another, which is a determination of necessity, effectively—and one, incidentally, that I am sure astute defence lawyers will use in court to determine whether an arrest has been properly made. The arresting constable will have to satisfy the court that there was necessity in the making of the arrest, and I do not think that that is to the advantage of our legal system.
The second major concern is not the expectation that police officers will use the power conferred on them to harass the citizen or to arrest for trivial offences, but the fact that the power of arrest does not sit alone in the system. From the definition of an arrestable offence come all sorts of other powers, which are more intrusive, and of greater concern, and which are conferred, for instance, by the Criminal Justice Act 2003. Perversely, once the statute is in place in its current form, with those corollaries, it will make the Identity Card Bill even more redundant than it would otherwise be, as a police officer will be able to stop anyone on suspicion of having committed an offence and, on the basis of the legislation, to ask that person to provide fingerprints and DNA evidence, submit to drug-testing, and undergo all the other things that are conferred by the power of an arrestable offence. That is a worrying development.
I understand the wish to revisit the power of arrest for constables. Indeed, there has been a review of PACE, and, as the hon. Member for Beaconsfield said, there has been a clear recommendation as to how to proceed. The Minister has three clear options. One is to confer the power of arrest for all offences. The second is to provide a new and better list of offences that are arrestable. Thirdly, if that proves too difficult, a list could instead be provided of those offences so trivial as not to warrant arrest. That might be easier, both for the Home Office and for the police officer on the street who has to use the powers. I put down New Clauses 13 and 14 simply as a way of getting the Minister to tell us why the Home Office has decided as it has, because the other two options have considerable merit. I also want to consider whether there is a necessary adjunct to the wider power of arrest, which is to restrict some of the knock-on powers that come with the arrestable offence.
When it comes to citizen's arrest—an arrest by another person—I entirely agree with the points made by the hon. Member for Beaconsfield. Citizen's arrest allows anybody to arrest anybody else under the most extraordinary circumstances, and that surely cannot be the Minister's intention. Even if one were to remove subsection 4(d),
''making off before a constable can assume responsibility for him'', there are parts of my constituency where one can wait a mighty long time for a constable to take responsibility for a person who has been arrested for a trivial offence. Detention for a week without trial, waiting for a police officer to arrive and take custody of someone who has contravened a minor traffic regulation, is not an entirely proportionate response to the offence in question.
Even if subsection 4(d) were deleted, even if that were not the motivation, the hon. Gentleman's faulty rear light would fall into paragraph (a). A broken stop light is a good reason to arrest someone, as they are likely to cause physical injury to themselves or some other person, which is presumably why we have the traffic regulation requiring a stop light to be in working order, so the test has been satisfied. The arrest is perfectly in order as far as the law is concerned. It cannot be disputed in a court of law that that person is exercising an entirely proper power of arrest. I do not believe that is a sensible way to make arrangements for arrest in this country.
The powers of CSOs are a separate argument. The Minister knows we have always supported the concept of CSOs, but been careful to differentiate their role from that of a police officer. Further muddying of that distinction is not in anybody's interest. If CSOs are given more and more of the powers of police constables, they will be used as police constables, albeit inadequately trained and resourced ones. That will mean that CSOs will not be available to do the job that we want them to do, which is to provide a visible presence on the streets and to work in conjunction with the police service, providing its eyes and ears. In the interests of CSOs, police constables and the public, who need to be served well by both categories of officer, it does not make sense to extend the powers of CSOs so that there is an elision or confusion of the two roles, except for specific purposes.
My final point is about the rule of common law. The Under-Secretary has helpfully added her name to amendment No. 255, which the hon. Member for Beaconsfield tabled. I hope that that is a happy realisation that the proposed removal of the power to arrest for a breach of the peace was rather foolish, and I am sure that her colleague, the Minister for Crime Reduction, Policing and Community Safety, will be able explain how that realisation came about. It would wrong to dwell on the matter too long, but we should be happy that the Under-Secretary has recognised that it would have been a mistake to lose that power.
I suspect that the reason for doing that was not so much concerns about the role of the individual citizen as the useful power of the police to intervene in situations where no criminal offence has been committed but where public disorder is quite likely unless somebody intervenes.
Indeed, and often in circumstances in which we very much hope that police officers will intervene in order to prevent more serious consequences. I am perfectly content for a police officer to intervene under such circumstances, provided that he or she is satisfied that there is a genuine need to do so.
The power of arrest is a serious power and not to be conferred lightly. It is the power to remove the liberty of another citizen. We must ensure that the power is predicated on the right terms and that the person who is doing the arresting understands those terms, the limits on him or her and what his or her responsibilities are. That is why, in general terms, it is better for a properly trained police officer to do the arresting and why it is better for an offence of sufficient seriousness to trigger that power rather than a triviality. If the offence is a triviality, the capacity for abuse, as well as the knock-on effects on other intrusive powers that obtain as a result of the power of arrest, will increase, very much to the detriment of the liberty of the citizen.
As I was listening to the interesting speech that my hon. Friend the Member for Beaconsfield gave, I wondered what was behind the Government's thinking and was left thinking that there is a lack of Government policy. The proposals to allow a constable to arrest on suspicion of any offence and to allow the arrest without warrant of anyone who is guilty of an offence or suspected or being guilty are radical and are, as my hon. Friend said, a departure from how things have worked in this country.
We said earlier that, except in limited circumstances such as the imminent risk of injury or if addresses are suspected to be false, the present serious requirement for arrest builds a degree of proportionality into the arrest decision. The Law Society considered that with the proposed wider discretion and necessity test there would be more human rights-based court challenges to arrest.
Have the Government consulted with ethnic groups? Minorities may feel even more subject to discriminatory and disproportionate exercise of police powers with the numbers of possible arrests going up. The Minister may wish to comment. People arrested for minor offences that would not be arrestable at present would also become subject to a host of other related police powers, such as samples being taken and DNA being added to the database. The 2002 joint Home Office and Cabinet Office PACE review recommended producing a definitive list of powers to arrest and to enhance training, rather than removing the distinction between arrestable offences and others. Could the Minister give reasons why the change has taken place?
I want to end by going back to the policy issue. The changes could be used to lay a new framework for a zero-tolerance policy of New York-style policing, where we go around arresting everyone for everything. Minor offences become the important offences, because if one cracks down on petty vandalism and yobbish behaviour, the other more serious offences do not happen. There are cogent arguments for that approach, which the Government have not made and will have to make if those are the reasons why they are putting the proposals in place.
Have the Government discussed the proposals with the police? I would be interested to hear the Minister's views. I know that in recent times the police have been not so interested in smaller crimes, but have stayed in their police cars and headed out to deal with the big crimes. However, we have had a move away from that and back towards community policing in recent years. Is that move part of the Government policy behind the proposals? Has the Home Office carried out research into the matter?
The Minister needs to explain why the changes are required.
I support my hon. Friend the Member for Beaconsfield on the amendments. I can be very brief because there are aspects of the Bill on which we know why the Government are doing what they are doing, and we disagree with them. We have had a number of examples of that. We agree with the Government on other aspects, but think that there may be a better way of expressing the aim in legislation or a better way of achieving it. This clause, and the powers that it deals with, come into a third category, which my hon. Friend lucidly branded as those things that we think are bonkers, and he set out the reasons why.
The Minister for Crime Reduction, Policing and Community Safety, for very good reasons, was not here when we discussed the nature of those who work for SOCA about a week ago. I am sure that she has read Hansard, and she will have seen that the Opposition are very exercised about the powers of arrest and the powers of a constable and whether those should be handed out willy-nilly. We are at something of a loss about what is proposed in this clause, which partly explains the wide number of probing amendments seeking to flesh out what the Government are trying to do.
Policing in this country has always been characterised as policing by consent. There is the traditional nature of the police constable and relations with the public stem from that and are extremely important. It is hard to see how the clause could possibly help to develop any of that. The hon. Member for Somerton and Frome asked whether such a clause would help police constables in their role. Our submission is that it will not. Will the Minister explain why the recommendations in the Home Office and Cabinet review of PACE, which, as I understand it, suggested that the workings on arrest were satisfactory by rather complex, were not accepted?
My hon. Friend the Member for Beaconsfield, with extraordinary percipience, used the example of the school run and the rear light and how a set of circumstances that could be perfectly easily dealt with under a constable's discretion could become something very different, with a mother or father becoming alienated from the police and the justice system. I had an almost identical experience when doing the school run not so long ago. The way that my hon. Friend has zeroed in on that example is extremely helpful. My own experience suggests that he is right, and the experience of my constituents in Sutton Coldfield, who are law abiding and robust, certainly suggests that his point is enormously important. This would be unwarranted interference in the liberty of the citizen and could well lead to extremely unsatisfactory circumstances.
Would not a person who was stopped on the school run give their name and address and thereby prevent the situation from escalating?
I do not know whether the hon. and learned Lady has had the same experience as I have had. I have frequent discussions with the police in Sutton Coldfield. On a number of occasions on which I have probed the police response, a wry smile has come over the face of the police officer, who has said, ''Your constituent failed the attitude test.'' That is what my hon. Friend is describing. It is an unwarranted and unnecessary situation. Of course the hon. and learned Lady would give her name and address and move on. But, what if the police constable had had a bad day and did not handle the situation in precisely the way that, on reflection, he would have wished? It is easy to see the human circumstances that my hon. Friend described causing those problems.
The hon. and learned Member for Redcar is right up to a point in her example, but under new subsection (5), does not any one of the conditions need to be satisfied? So if the officer takes the view that the arrest is needed
''to allow the prompt and effective investigation of the offence'' that will trigger the power of arrest too. Besides, is there not an even greater problem where these powers are purported to be exercised by members of the public?
My hon. Friend is absolutely right. His final words should give the Minister even more pause for rapid writing and reflection.
I am sorry to use the hon. Gentleman as a go-between but the tests that have to be gone through to see whether it is necessary to make an arrest obviously include trying to get the name and address. Unless there is some imminent danger, as under paragraph (c), in every situation, if the name and address is given, none of the tests will be made out except, arguably, the test in paragraph (e) which he perspicaciously homed in on. I should have thought that it was a good idea to be able to detain someone so that if the situation can immediately be investigated and it can be known whether he has committed a crime, it can be dealt with. That is in his interest. If that provision were not available, someone could be arrested and taken away, and they would not have the opportunity to ascertain whether there were any witnesses in the immediate vicinity who could say, ''No, he didn't do that, you have got the wrong chap.'' I therefore think that it is a good idea.
I find myself in the position of standing, as it were, in a game of ping-pong, between two distinguished and eminent lawyers. As a non-lawyer myself—a point that I have been keen to emphasise to the Committee on numerous occasions—I would like to point to the good sense of the proposition that my hon. Friend the Member for Beaconsfield put to the Committee about the way in which human circumstances can operate in the situation that he described.
Moving on to the powers of arrest by non-police constables, my hon. Friend described the matter perfectly. One can imagine the difficulties for those of us who bicycle around London if we were thought likely to commit an offence and became the subject of an altercation with members of the public. It is what I refer to as the ''spitting out of chewing gum clause.'' It is extremely dangerous and removes from our system the good sense and light-handed approach that have traditionally characterised British policing and the nature of the relationship between the British public and the police. The Opposition seek to do the Government a good turn by giving them an opportunity to get off a hook that they have systematically created for themselves but that will cause them immense trouble if they are unwise enough to pursue the provisions in the clause.
I am delighted, Mr. O'Brien, to have the opportunity for the first time to respond to the points that have been made on the Bill and also welcome the opportunity to serve under your chairmanship.
I hope that I shall be able to enlighten hon. Members from both Opposition parties about the reasons behind the Government's approach. I hope that, after some discussion, we will reach some degree of consensus. I note, from being in the Committee last week, that there has been wide consensus on many of provisions. In this area, many of the amendments are probing, and I hope we may be able to satisfy some of the genuine and realistic concerns raised.
Perhaps it would be helpful if I dealt with the position generally, before I come to the specific amendments. I shall then speak to the Government amendment to subsection (4).
The hon. Member for Beaconsfield set out his concerns in three areas. I shall first discuss the general approach—the move from the current framework for arrest powers based on seriousness to the framework that we want, which is based on necessity. That appears to be a big shift, but it may appear smaller to hon. Members when I go through some of the detail. It is, however, a matter of principle, and it is therefore right that we should explore it. Secondly, I shall deal with issues related to citizen's arrest and will take on board some of the interesting points made by hon. Members, and then I will deal with issues related to breach of the peace.
Arrest is a serious matter. I take this area very seriously indeed and have explored it at great length with my officials. Arrest is one of the most intrusive powers that the police have and therefore needs to be exercised within a careful, measured, constructive and rigorous framework.
PACE, which has been in place for some 20 years, established a fairly structured system of arrest powers from what had been a very incoherent system. PACE recognised that constables should have the power to arrest for arrestable offences—offences carrying a term of imprisonment of five years or more and for serious arrestable offences—and for specified offences such as murder, manslaughter and rape. However, even PACE, recognised that a constable should have the power of arrest, if considered necessary, for all offences. No one in the Committee has referred to section 25 of PACE, which states that there are arrestable offences, serious arrestable offences, and general arrest conditions. It states:
''Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted . . . he may arrest the relevant person if . . . any of the general arrest conditions are satisfied.''
Those conditions are set out in section 25(3); they cover situations in which the person's name and address are unknown, the constable has grounds for doubting that he has been given the correct name and address, or an arrest is necessary—we duplicate these provisions in new section 24(5)(c)—to prevent physical injury, or loss or damage to property.
So, to a large extent, we have transposed the general arrest conditions in section 25 to the Bill, although there is one significant addition, with which I shall deal in a moment. Although that is a fundamental change, I am seeking to establish for hon. Members that the concept is not entirely new. This is not a new set of provisions; they already exist as general arrest conditions in section 25 of PACE.
The Minister has invited the Committee to have regard to section 25 of PACE, but I cannot find it in the bundle of provisions that the Government have given us relating to the Bill. Given that we are approaching the luncheon Adjournment, could the Minister obtain copies of section 25 and circulate them to members of the Committee?
I shall be delighted to do that, because I found it extremely useful to go back to the source material that we are talking about; sometimes, the issues are not that apparent from the Bill, and I shall be delighted to obtain that material during the lunch break so that we can discuss them. The point is important, and I am trying to establish that we are dealing not with a new set of criteria, but with criteria that have existed for 20 years, which have been tested through time and found to be extremely worth while.
At the moment, there is a range of arrestable and serious arrestable offences, for which the power of arrest is automatic, so the constable does not necessarily have to think about whether it is right to make an arrest. We want to move to a position in which all offences are arrestable, but the constable must then clearly go through a consideration process to determine whether it is necessary to execute an arrest in the circumstances of the offence.
Rather than lowering the threshold for accountability, we are almost raising it; we are saying that the constable must think carefully, exercising his or her professional discretion, training and skills to reach a decision in the particular circumstances. They will not simply have the automatic power of arrest and be able to arrest someone without thinking about it; they will have to go through the necessity test because it will be looked at in court and perhaps by the Independent Police Complaints Commission, which will have judicial oversight. Having to go through that process places quite a rigorous burden on the constable, given that he or she does not have to go through it at the moment.
To be absolutely clear, is the Minister saying that, under her proposal, if two identical offences are committed on the same day outside my office in the high street in Sutton Coldfield, one prospective offender could be arrested and taken away, while the other might not be? Is that, in effect, what will happen under the proposal?
That is very much the case now. I would expect—in fact, I would require—police officers to exercise their judgment as to whether it was necessary to effect an arrest in those circumstances. One person might give their name and address and could properly be dealt with by a summons, so that the police officer did not need to execute an arrest, which would take him off the streets. Somebody else might refuse to give their name and address, or might give a false name and address, and the constable would have to move to arrest to take the matter further.
To be absolutely clear, is the Minister seeking to extend and increase the level of discretion that would apply in the circumstances that I described?
I am seeking to establish a new framework for the powers of arrest—
The hon. Gentleman knows that these matters rarely have a yes or no answer. I am seeking to establish a new framework; the present framework is entirely dependent on the seriousness of the offence, and once that condition is satisfied, the power of arrest is automatic. I am trying to establish a system under which seriousness is still a factor, but not the only factor in deciding whether to exercise the power of arrest. The situation will be clearer for the police, the public and the criminal justice system, because all offences will be arrestable—
It being twenty-five minutes past Eleven o'clock The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.