'Where any person has been arrested, other than under the Prevention of Terrorism Act 1976, and is being held in custody in a police station or other premises, he shall be entitled to have intimation of his arrest and of the place where he is being held sent to a person of his choosing'.—[Mr. George Cunningham.]
§ Brought up, and read the First time.497
§ 6.45 p.m.
§ Mr. George Cunningham
I beg to move, That the clause be read a Second time.
Before Englishmen in the House wonder how revolutionary this proposal is, perhaps I can be allowed, as a lawyer manaué and a lapsed Scotsman, to point out the situation north of the border. In Scotland the relevant provisions are enshrined in statute—in Sections 19 and 305 of the consolidation measure, the Criminal Procedure (Scotland) Act 1975. One of the sections refers to non-summary offences and the other to summary offences. I shall quote only one, Section 19, which reads:Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person, and informing him of the place to which such person is to be taken for examination.In drafting the new clause I have tried, so far as possible and so far as I consider it appropriate, to follow the language of that Scottish provision to minimise the chance that anyone would say that it was defective in draftsmanship.
§ Mr. Cunningham
Because it was a mistake. That has been pointed out to me by my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley). I do not know why the words came to be omitted. At a previous stage of my personal consideration and urging of this cause the words were included. If the proposition commends itself to the House, I should certainly accept that a correction along those lines should be inserted in order to introduce the sense of immediacy
§ Mr. Rees-Davies
The hon. Member also used the word "sent". That implies that the intimation shall be sent by post. In practice it would be conveyed by telephone. One cannot have the intimation of an arrest sent. It is communicated to another person
§ Mr. Cunningham
That is highly disputable. First of all, the Scottish provision—which I know is 100 years old—uses the term "sent". Secondly, I use the word "sent" in reference to telephone 498 messages. Intimation can be sent by means of a telephone call. The object is to ensure that, when a person is arrested he shall be able to inform somebody that he has been arrested and where he is.
Although north of the border that right is enshrined in statute in the strong terms that I have read out, south of the border the situation is not covered by statute but by the notorious Judges' Rules. As we all know, the Judges' Rules are freely ignored by the police.
Let me give two illustrations of that, because not only is the extent to which the Judges' Rules are ignored by the police serious but it is important that we recognise it. The Judges' Rules are categorical in saying that they shall be displayed in police stations. I dare say that some hon. Members have seen Judges' Rules on the walls of police stations, but I have not. They are not displayed in many police stations. There are many police stations where the contents of the Judges' Rules are not supplied to those who are required to know them.
The second example is that the Judges' Rules are also categorical that when a written statement is being taken the police must first try to get the person concerned to write it down himself. They are to ask him if he wants to write it down. The police do not do that. Normally the police officer takes out the forms and proceeds to write the statement down and not give an option to the person who will be asked to sign the statement. That is a categorical denial of the Judges' Rules. There are other ways in which they are freely breached.
As regards the right of a person to have access to a solicitor, the relevant provision in the Judges' Rules starts with the so-called principles. At the beginning they state:Every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so.We then have to turn to the administrative direction appended to the rules. The last administrative direction, No. 7. states:A person in custody should be allowed to speak on the telephone to a solicitor or to his friend, provided that no hindrance is 499 reasonably likely to be caused to the processes of investigation or the Administration of justice by his doing so…He should be supplied on request with writing materials and his letters should be sent by post or otherwise with the least possible delay. Additionzl telegrams should be sent at once at his own expense.It will be noted that the provision about not impeding investigations that is put there in relation to seeing a solicitor or talking to his friends is not put there in respect of the provision of writing materials or the sending out of letters and telegrams—always provided that he has the money to pay for a telegram.
I pointed that out to the former Home Secretary in a debate on the Prevention of Terrorism Act early in 1976 as a ground for saying that it was contrary to the Judges' Rules to hold a person incommunicado in a police station because the right to send out a message does not have a qualification attached to it. The Home Secretary had a quick look at it and said that, on the face of it, it looked as though there was some ground for believing that there was something wrong. In the spring of 1976 he consulted the Lord Chief Justice, and the two of them agreed that there was a need for what the Home Secretary called "clarification".
The result was a circular issued by the Home Office on 14th May 1976 which recited the provisions that I have read out. The circular said that the matter had been raised in the course of parliamentary proceedings, and stated:The Home Secretary has consulted the Lord Chief Justice for the avoidance of doubt"—there was no doubt—and now wishes chief officers of police to be aware that the sending of letters and telegrams from persons in police custody should be subject to the same proviso as telephone communications…Accordingly, a person in police custody should be supplied on request with writing materials, but the sending of any letters or telegrams he may prepare should be subject to the proviso that no hindrance is likely to be caused to the processes of investigation or the administration of justice by doing soand so on.
The circular noted:The guidance contained in this circular has been drawn up with the approval of the Lord Chief Justice.I always thought that the Judges' Rules were Judges' Rules with an apostrophe 500 after the "s". It now seems that they are Judge's Rules with an apostrophe before the "s" in the sense that they are the Lord Chief Justice's rules. The Lord Chief Justice can apparently authorise the Home Secretary to alter these rules or to "clarify" them in a sense that I would argue is altering them.
The circular was probably sent out by an Assistant Secretary or Under-Secretary in the Home Office. Whether hon. Members believe that it is a fundamental right that should exist or a fundamental right that should not exist it cannot be denied that it is fundamental. One cannot get much more fundamental than being held incommunicado in a police station. This letter was sent out after secret consultation with the Lord Chief Justice and I, as the Member who had raised the issue, was not told that this fundamental right had been erased from those rights that we had enjoyed before May 1976.
§ Mr. F. P. Crowder
While I agree in many respect with what the hon. Gentleman has said, does he not think that there is a certain danger in allowing a person in police custody to contact someone of his own choosing? Let us take the instance of a big fraud or a conspiracy and let us suppose that the person of his own choosing is on the fringe of the conspiracy. If the person in custody is given the right to communicate with him, within hours the person with whom he communicates will be on an aeroplane bound for a country with which we do not have an extradition treaty.
§ Mr. Cunningham
I shall come to that point a little later. The question here is where we should draw the line between restrictions and activities which we may think are supportable in the interests of catching and convicting criminals and those things that we are not prepared to do. For example, in this country we are not prepared to torture people, although one can catch more criminals that way.
I also draw the line at not being prepared to see a person who is taken into a police station told that he cannot communicate with anyone outside. I recognise that, if the provision contained in my new clause reaches the statute book, there must be cases sometimes in history where, as a result, we shall not catch someone. I have not proposed that a 501 person in custody should be able to send a secret message. If he is telephoning someone, the police will know that telephone number. I would draw the line there, but it is a matter of judgment and everyone must reach his own judgment.
I think that the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) will also notice that I am proposing that this right should exist for people arrestedother than under the Prevention of Terrorism Act 1976".I believe that it is slightly potty to say that a person in custody can send a message to someone as long as that someone is a solicitor. What if the person does not have a solicitor or wants to telephone his wife to ask her to get him a solicitor? I do not think that the Scottish provision is sensible in that regard. If one allows the person to contact a solicitor, clearly a message is got out. The idea that a criminal cannot find a solicitor who will pass on a message to other crooks does not bear examination. If he can tell anyone, that danger exists. If he can tell a solicitor, he should be able to tell someone of his own choosing.
§ Mr. Christopher Price
May I refer briefly to what my hon. Friend said about the Home Office issuing a circular changing the Judges' Rules in camera without telling hon. Members. After the Confait case, which is now notorious, the Home Office changed the rules in exactly the same way as my hon. Friend has described, but in this case it changed the rules concerning the interrogation of the mentally retarded. However, it did not tell me or any other hon. Member. Is not it important when these circuiars are issued by the Home Office that we should have proper publicity so that people other than the police officers to whom the circulars are sent should know what the rules are?
§ Mr. Cunningham
I entirely agree. I was informed of the circular to which my hon. Friend referred when I asked a Question about consultation with the judges on the Judges' Rules. Copies of this circular were lodged in the Library of the House in the normal way, but that is not an adequate way of bringing such matters to the attention of hon Members.
502 One perfectly acceptable way of bringing subjects to the attention of hon. Members is by inspiring a Question and then answering it. Until we get the sensible device of written statements in Hansard, that is the means by which, on an issue that is known to be sensitive and to have caught the attention of hon. Members, the Home Office should ensure that hon. Members know what is going on.
I stress that the right involved here is a fundamental one. As in the case of Nacht and Nebel, the taking away of people at night and holding them incommunicado in police custody, Gestapo custody, was one of the things about the 1930s that we all condemned. If, at the time when habeas corpus was introduced, anyone had considered the possibility that police might be able to pick up people and not give them the right to tell anyone, there is no doubt about what would have happened. In those days, when red blood flowed through the veins of hon. Members, this right would have been put on the statute book.
How can someone exercise habeas corpus if nobody knows he is there, if he is being held incommunicado? I understand that habeas corpus operates only after 24 hours, so it might be suggested that this right should exist only after 24 hours. I do not think so. One should have the right to do it immediately, so that if necessary habeas corpus can be brought into operation after 24 hours.
§ 7.0 p.m.
§ Mr. Fairbairn
The fundamental right of which the hon. Gentleman speaks is very important and it has long been a statutory right in Scotland. It would seem to be a very civilised and proper right.
The hon. Gentleman says that the person concerned should be able to communicate with somebody of his choosing rather than a solicitor. The system operates perfectly effectively in Scotland because the police ask "Have you got a solicitor? Do you want us to call one?" If the man says that he does not have a solicitor and does not know one, they will call a solicitor. They know all the local solicitors.
I give the hon. Gentleman, a lapsed Scotsman, as he described himself, this warning: many a person whom one asks "Why did you not ask for a solicitor?" replies "I did, but they never brought one." The hon. Gentleman's proposed 503 provision, although would be enshrined in statute, would always be subject to the fallibility of those concerned.
§ Mr. Cunningham
I do not agree that it would be better to have a provision exactly on the lines of the Scottish provision, because there might be many cases in which the person held does not want a solicitor but wants his wife to know where he is.
§ Mr. Cunningham
Why should not that be possible? Youths have been picked up who want their parents to know. There is no reason why one should have to have a solicitor informed and then ask him "Please tell Dad." That is non- sense. The person who is held should be able to tell someone.
That does not mean that there would be any obligation on the police to make thousands of calls or put themselves to enormous trouble. There would be a right, exercisable within the reasonable bounds of practicality, to have that message sent out. If the right exists in Scotland and the police do not mind one bit that it exists in Scotland—as has been confirmed not only by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) but by the Lord Advocate, speaking during the passage of the Prevention of Terrorism Act last year—it cannot be catastrophic to have it in England.
This is a precise and extremely narrow reform that does not need to wait—I anticipate one of the defences that my right hon. Friend the Home Secretary will put up—for the recently announced Royal Commission on pre-prosecution procedure to come down out of orbit. The appointment of a Royal Commission is normally a way of ensuring that nothing happens in that field whilst it is in orbit, but the Press release on that Royal Commission made clear that the Government were not committed to doing nothing in that field until the Royal Commission reported.
§ Mr. Robin Corbett (Hemel Hempstead)
I am sure that every sensible hon. Member is 100 per cent. with my hon. Friend on this. But will he explain why, having made his case so well on the general principle, he excludes people picked up under the Prevention of Terrorism Act? The position is even 504 worse under that Act. Such people can be held incommunicado for seven days.
§ Mr. Cunningham
I exclude them only because I want to get something through, and there is not a cat in hell's chance of getting it through without this rather more restricted provision. I support both propositions, but I want to get something in the Judges' Rules on the statute book.
I now ask other hon. Members to close their ears whilst I have a domestic chat with my right hon. Friend the Home Secretary. He knows that the Government are obliged to support the clause on the ground that a party caucus has passed a motion that supports it. I hope that he will not wriggle out of that. If he and the Cabinet do. all the members of the Cabinet who vote against it will be in breach of the code of conduct they signed to adhere to when they were adopted as candidates. There are much better reasons in support of the clause, but I hope that that will be taken into account on the Front Bench.
§ Mr. Hooson
I very much support the spirit of the clause. It deals with what seems to me to be a fundamental right, but as drafted it is likely to be ineffective. First, it does not include the word "immediately". Moreover, it puts no onus on the police to inform the accused man of this right.
In parenthesis. I entirely agree with the exclusion of those arrested under the Prevention of Terrorism Act, because in the public mind there is a distinction between dealing with a terrorist and dealing with an ordinary man proceeded against under the ordinary provisions of the criminal law. I entirely agree with the hon. Member for Islington, South and Finsbury (Mr. Cunningham) that he was wise to make that exclusion, whatever the merits or demerits of the argument about terrorism.
The clause says:he shall be entitled to have intimation of is arrest and of the place where he is being held sent to a person of his choosing".Who is to inform the man of that right? There is no requirement that he be informed. Therefore, an elementary necessity is to include "immediately" and to make the clause read: "he shall be told immediately of his entitlement to have intimation" and so on.
505 Even then the clause is likely to be ineffective. One can imagine the station sergeant mumbling "I must inform you of your right to have intimation of your arrest and the place where you are being held sent to a person of your choosing" after the caution, and then being able to say later "He never asked".
The clause must also deal with how the intimation is to be sent. There was a proper intervention by the hon. and learned Member for Thanet, West (Mr. Rees-Davies), who suggested that "sent" could be interpreted as "sent by post". We must have a better means of communication.
§ Mr. Hooson
I believe that the Home Secretary could accept the spirit of the clause and tidy up the wording to make sure that it is an effective provision. I see no reason why a person who is arrested should not have this right. After all, it is his right if he insists upon it, and he should be allowed to do so.
The clause does not deal with the person who, in the euphemism, is helping the police with their inquiries. It deals with the man who has actually been arrested. Therefore, there must be evidence enabling the police to proceed against him. I agree that it will undoubtedly be suggested from the Government Front Bench that this matter and many others must be looked at by the Royal Commission considering post-arrest procedures. A great deal needs to be done to improve those procedures. For many years I have been in favour of interrogating magistrates. The whole question of "verbals", which so clouds the issue in many cases today, could be cleared up if we had proper methods of interrogation before magistrates.
§ Sir M. Havers
In what circumstances does the hon. and learned Gentleman expect magistrates to be interrogated?
§ Mr. Hooson
I was referring to magistrates who interrogate, on the lines of the French system.
506 The Home Secretary should not wait for the Royal Commission. It may be years before it reports, Every hon. Member should be in favour of this basic provision. Otherwise, we are entirely hypocritical; we subscribe to Judges' Rules in the belief that they are ineffective and we like to see them ineffective. The hon. Member for Islington, South and Finsbury is trying to introduce an effective provision so that people are informed that they have the right to have relatives told that they are under arrest.
§ Mr. Mikardo
I wish to quote two cases within my constituency experience. One is that of a boy of 16 who was picked up by the police on his way home from work, which would have been at about 5 p.m. or 6 p.m. His parents did not know where he was until 2 o'clock in the morning. As he was riding a motor cycle or a moped, which he had ridden for only a very short time, his mum was very worried about him and rang all the local hospitals. Can that be right?
The second case is an even more glaring one. It is that of a woman who was taken to a police station and asked if she could telephone her husband at his place of work, so that he might leave work, go home and let the kids into the flat when they came from school, and give them something to eat. She was told "No. You cannot." Can that be right?
§ Mr. Rees-Davies
I deplore these cases. I agree with the spirit behind the new clause. I think that it is essential nowadays that we should give rather greater protection to a person who has been arrested. The police frequently arrest people at the weekend and keep them in custody, incommunicado, throughout the weekend.
The most recent case of which I have knowledge is before the Home Office at the moment. It is an exchange control case. The person arrested, who is of perfectly good character, was not allowed to communicate with anyone for quite a long period of time. He was, therefore, unable to get in touch with lawyers and advisers.
Where the police are arresting people of known bad character, it is becoming a practice rather than a rule not only to take them into custody but not to allow them to communicate at all for a very substantial period of time, even 507 as long as 48 hours. The time has come to put a stop to this practice, but the new clause will not do this.
I am not at all sure that I necessarily want a person to be told by the police that he has the right to get in touch with someone. The arrested person—as in the cases mentioned by the hon. Member for Bethnal Green and Bow (Mr. Mikardo)—may ask if he can get in touch with his wife, or with his lawyer, or with a doctor or social worker, or some such person of his choice. I do not accept that in these days the choice should necessarily be a lawyer. On the other hand, I am not arguing for a moment that the police should allow an accused person to see his lawyer immediately after being arrested. The police may have a very good reason for not wanting an accused person to see a lawyer, or any other person, at that particular time. I am not arguing in favour of that, and we shall have confusion on this issue if we are not careful. I am saying that immediately following his arrest the arrested person should be entitled to make known, if he wishes to do so, the fact of the arrest.
This would involve a couple of amendments to the new clause. The new clause ought to say: "Where any person has been arrested, other than under the Prevention of Terrorism Act 1976, and is being held in custody"—I do not think we need bother about the "police station or other premises"—that person, on so requesting that a person of his choice shall be informed, shall be entitled,and so on. Alterations need to be made in order to give effect to what I have argued.
I have intimated to one or two of my Conservative colleagues that the new clause seemed to have a good deal of reasonable substance in it, and I hope that in general it will commend itself to the House.
§ Mr. Christopher Price
I hope that all parties in the House will join together in supporting the new clause as a matter of sheer common sense, realising that at the root of it is the sort of substance for which this whole House of Commons exists. If we cannot come together across these Benches to support an absolutely basic clause such as this—a clause providing that someone who has been arrested should be allowed to inform 508 those who know him that he has been arrested—I do not think we have the right to get up in those other fora of the world and say that we are not as other men are and that we are better than they are.
I welcome the support of the Liberal Party, if the hon. and learned Member for Montgomery (Mr. Hooson) will get back to his Bench for the moment. I have mixed feelings about the Lib-Lab pact, but if the Lib-Lab pact means anything to me—
§ Mr. Deputy Speaker(Sir Myer Galpern)
The hon. Member for Islington, South and Finsbury (Mr. Cunningham) asked us all at one stage to close our ears to what he was about to say in addressing the Home Secretary. We have not had such a request from the hon. Member for Hemel Hempstead (Mr. Corbett). I have just heard what the hon. Member has said, and it has nothing whatever to do with the new clause.
§ Mr. Price
If the Liberals believe in civil liberties of the sort that are deep in the heart of the Labour movement, it is on this issue more than anything else that they should be able to come together with us and tell a slightly reluctant Cabinet, who are over-worried about other things and need not be, that the very least—
§ The Secretary of State for the Home Department (Mr. Merlyn Rees) rose—
§ Mr. Price
The Home Secretary can wait. The very least we can do in this unusual sort of period in British politics is to find issues such as this clause, on which we can come together in a truly democratic parliamentary way, and tell the Government "Sorry, mate, but we are going to pass this". I very much hope that that will be the spirit in which the Liberals will approach this issue.
§ Mr. Hooson
If the hon. Gentleman is intending to divide on the new clause, we shall be supporting him.
§ Mr. Rees-Davies
If the hon. Gentleman is not too slow in the matter, I, for one, will certainly be there.
§ Mr. Deputy Speaker
I hope that the hon. Member for Lewisham, West (Mr. Price) will not advise everyone in the Chamber to give his testimony on the new clause.
§ Mr. Price
You are aware, Mr. Deputy Speaker, of the rigour with which I stick to the subject. If the hon. and learned Gentleman and I happen to be in the same Lobby, it will not be for the first time. I will leave it at that.
My interest in this issue stems from the fact that by the accident of constituency representation I happen to have been involved in what was probably one of the worst miscarriages of justice in the present decade. If the proposed new clause had been passed into law it would not have happened. I refer to the Confait case, and I will briefly remind the House of the circumstances.
Three young men in my constituency, of whom one was mentally retarded and another fairly mentally retarded, signed confessions in a Lewisham police station to murdering a man. They were convicted and lost their appeal. Over two years later they were released by the Court of Appeal, after a long, difficult, and at times nasty campaign that I had to wage with the Home Office to send the matter back to the Court of Appeal.
As a result of their release, the Home Office set up an inquiry under Sir Henry Fisher, a very distinguished ex-judgethe—the only one who has ever packed it in at mid-term because he could not stand his colleagues. The report of that inquiry is not quite ready. It is very nearly ready, I understand. When it is, I think it will have a great deal to say on the subject of the new clause that is before us.
Substantially as a result of that case, as well as the efforts of my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), the Home Secretary—all credit to him—has been 510 constrained to announce a Royal Commission on pre-trial procedures to investigate all these matters.
This point of informing one's relatives and lawyers that one has been arrested does not relate solely to the fact that one has been arrested. It relates to many other procedures. If one is held in a police station after arrest, many other things are going on. One of the scandals of our legal system is the system called "verballing". The worst thing is to get people to sign confessions to things they did not do—as the three young men in the Confait case did. This goes on every day. It is going on tonight in London police stations and it will go on every night from now on.
If this information could be given to relatives, fewer of these confessions, which should be inadmissible, would take place. Such confessions are now inadmissible in the United States since a case in the 1960s, very like the Confait case, called the Miranda case. That became the same sort of public scandal, and as a result confessions in police stations in America are inadmissible without corroboration. If that were the case here, the police would not face the same temptation to arrest people, hold them incommunicado and extract confessions from them. That is the route that we must follow one day.
I am frightened that, in the area of London which I represent, the events of the Confait case are being replicated five years later. Hon. Members may have heard of the "Lewisham 21". This case has been made notorious through the accident of Prince Charles a few weeks ago visiting a club in Lewisham where concern was being expressed about these arrests. They are now called the "Lewisham 24" because, after subsequent demonstrations, three more people have been arrested. The National Front has since announced that it will hold its biggest rally ever in Lewisham, so it could be the Lewisham 121 within the next few weeks. I am writing to my right hon. Friend about the matter and I hope that he will take this problem seriously.
§ Sir M. Havers
On a point of order. We have a huge number of amendments to deal with. I hope that hon. Members on both sides will keep their comments to 511 the matters under debate. Many extraneous matters have been brought in. We have heard about the Confait case many times tonight, but the list is enormous. I ask you, Mr. Deputy Speaker, to persuade hon. Members to keep to the amendments under discussion.
§ Mr. Deputy Speaker
I am obliged to the right hon. and learned Gentleman. I was beginning to as:k myself how far the signing of inadmissable confessions and so on had anything to do with the new clause, which is pretty narrow. One can makes passing references, but I would support the plea of the right hon. and learned Gentleman. With so much on our plate tonight, if speeches are too long, we might not be finished before midnight, which would be very difficult.
§ Mr. Price
Thank you, Mr. Deputy Speaker. I take the point of the right hon. and learned Member for Wimbledon (Sir M. Havers), but it is a traditional right that hon. Members should be able to raise scandals which have occurred in their constituencies if they are relevant to the debate. That is all that I seek to do.
§ Mr. Deputy Speaker
Order. I appreciate that point of view, but the individual who determines relevance is not the hon. Member who has the Floor but the occupant of the Chair.
§ Mr. Price
I will always bow to your ruling, Mr. Deputy Speaker.
The new clause would provide that those arrested should have the right to inform a solicitor, a relative or both. A few weeks ago, 21 young black males were arrested in the early hours in my constituency in circumstances exactly relevant to the new clause. I will talk about the experience of just one of them—a boy called Colin Jackson, who is 16 years old. I happen to know his experiences intimately because I visited him in Wormwood Scrubs at 4 o'clock yesterday afternoon.
Colin Jackson was held for well over 24 hours after his arrest. His repeated requests to tell his mother and father—he is only 16—were refused. He made other allegations about what happened during that time, but I make no reference to them now. Finally, he was brought into court without his mother and father being informed where he was.
512 At that point, we see what happens under the English system. Along with the others, Colin Jackson was asked whether he wanted legal aid. Some of them said that they did not want legal aid. Only one solicitor was in court—no one knows why it was only one—and Colin Jackson accepted his services. When he came up for remand the second time, that solicitor was not present. When he came up for remand today for the third time, he asked to change his representation but he was refused permission on the grounds of undue public expense.
That is just one of 21. The other 20 have had different experiences since being arrested several weeks ago. That is an example of what happens to young black people. Race relations in Lewisham are not easy. The situation worries many people. When that happens and when people know what has happened to these young people who have been accused of conspiracy to rob over 18 months, whether they are guilty or not, in an area where racial tension is at its height, that is not a welcome situation. It is a situation that we should rectify by changing the law and the Judges' Rules.
§ Mr. Deputy Speaker
Order. I have allowed the hon. Gentleman a great deal of latitude, but he knows the course that he should take if he wants to change legislation. The new clause has no relevance to what he has been asking for.
§ 7.30 p.m.
§ Mr. Price
With respect I am speaking to a new clause which, if passed, would allow people who are arrested to inform their solicitor, their parent or a friend. The only point I am trying to make is that the lack of this facility exists on a widespread scale and the dangers involved for the community are very much wider than anybody believes.
The whole House is listening with sympathy and concern to my hon. Friend. But how can this clause deal with the mischief? From what my hon. Friend is saying I would think that what is required is that solicitors should have access without excessive delay to those inside, and that it is not enough that there should be communication from outside. I do not think that the clause is designed to meet the mischief that my hon. Friend has described.
§ Mr. Price
The clause has an effect in this way—if the young man to whom I have referred had had the ability to tell his parents where he was, and he is the sort of young man who had needed solicitors before, he could have contacted a particular solicitor by making one single phone call. That solicitor would have been in the court at the relevant time and would have been representing him today. This is not the case because the clause that we are discussing is not part of the law.
This new clause is an innocent looking clause but it goes very much wider than it appears to go. It is fundamental, particularly in relation to the Judges' Rules. It is an attempt to make the Judges' Rules more clear. My hon. Friend has described the particular way in which the Home Office changed the Judges' Rules without telling Parliament in a clear enough way, and in an earlier intervention I described the way the Home Office changed them in another way.
This new clause is absolutely essential if we are to move towards a situation, which we shall have at the end of the Royal Commission, in which the Judges' Rules become part of the legislation passed by this House, and no longer are something that the police can choose either to conform with or ignore at whim.
I make a final plea to the Home Secretary, whom I much admire. I know that he has set up the Royal Commission, and that he could say that it will deal with these problems. But it could well be five, six or even seven years before anything that the Royal Commission says is passed into law. I appeal to my right hon. Friend to agree to this minor but very fundamental reform as it is essential that it should take place in this Bill. Even if the new clause is slightly defective, there is another place, and there will be opportunities to tighten it up. I plead with him not to rule it out of hand at this stage, and I urge him to meet the points that I have made.
§ Mr. Walter Clegg (North Fylde)
The House owes a debt to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) for raising this subject, which has generated much interest on both sides of the House. There is a great deal in his arguments. I did not quite 514 understand his reference to the caucus and the obligation given to the Home Secretary, and I suppose it will pass over the Home Secretary's head.
As a practising solicitor I have a great deal of sympathy with the objectives of the clause. But, as has been pointed out already, it is defective in that without some sort of time limit it will not achieve its purpose. As long as some communication is given, however late it may be, the police can easily comply with it technically, but not in the way which the House wants—that is, the early notification of someone outside that a person has been arrested.
From my own experience I know that great distress can be caused when people, particularly young people, are held in custody and no notification is given. Their relatives, especially their mothers, can spend a lot of time telephoning hospitals and wondering what has happened. The police are very foolish not to notify the parents of the person involved.
Obviously there is very strong feeling in the House. I hope that the Home Secretary will say that something can be done between now and later stages of the Bill to give effect to the intentions behind the clause, unless he has very good reasons for not doing so. It is difficult to vote for the clause as it stands because it is a legal nonsense.
§ Mr. George Cunningham
On the point about timing, although it is preferable for immediacy to be built into the clause, the combination of the clause as it stands and the Judges' Rules as they stand will ensure that notification would have to be sent immediately. So there is not so much of a defect as the hon. Member suggests.
§ Mr. Clegg
I am not certain that I agree with the hon. Member. As the clause stands it says:he shall be entitled to have intimation of his arrest and of the place where he is being held sent to a person of his choosing".It does not say how notification must be sent—it could be sent by second-class mail or pigeon post. It is defective and it needs to be put right. We shall listen very carefully to the Home Secretary and we shall want very good reasons why something similar cannot be imported into the law.
§ Mr. Frank Hooley (Sheffield, Heeley)
I support the new clause very strongly. The technique of holding a person incommunicado cannot rank, strictly speaking, as torture, but the psychological pressure of it is of an acute and savage form. There is no doubt at all that a person's mental attitude and behaviour on arrest will change quite sharply if he knows he is able to tell somebody even if it is only a relative.
The only particular case that has been brought to my attention concerns a young West Indian boy who took his girl friend home one Saturday night. After leaving her he was standing at the bus stop waiting to go home when he was pounced upon by the police who claimed that he had been involved in a series of burglaries. He was carted off to the police station and interrogated, arid then taken to another police station where he was kept for several hours. The police went to his home and searched it without a warrant. They made no attempt to contact his parents or to allow him to do so. In the event, someone else was arrested for the crimes and that young man was acquitted.
A great many young people in these circumstances could make a statement or remarks that would incriminate them. This is particularly so in circumstances where they had no opportunity to inform anybody of their whereabouts or what was happening to them.
It has been said "If this provision is enacted, how shall we ensure that the police observe it?" They do not normally tell the person in question "You have a right to see somebody" and let it go at that. If this right is not embodied in a statute and is not complied with, any subsequent proceedings or prosecution would presumably become invalid. It is important to have this provision in a statute and not as part of the Judges' Rules or included in informal understandings between the Home Office and the police.
For that reason, if the Home Secretary does not accept the clause, I hope that it will be pressed to a Division. There may be defects in drafting and the clause may need to be tidied up, but it is right that there should be immediate, quick communication with somebody else by the person who has been arrested. That surely should be part of our statute law. 516 If the proposal is resisted by the Government, I shall be prepared to vote in favour of the clause.
§ Mr. F. P. Crowder
I, too, wholeheartedly support the spirit behind the clause. Some hon. Members have given support to this provision and have mentioned isolated cases, but isolated cases do not make good law.
I should like to mention one matter relating to the wording of the clause. I refer to the phrasehe shall be entitled to have intimation of his arrest".I do not think that the word "entitled" is sufficient.
I have in mind the words of the caution. It is sometimes forgotten that the words of caution are also words of advice. The caution runs as follows "You need not say anything unless you wish to do so, but anything you say will be taken down and may later be given in evidence". The proper advice to give to a client who is likely to be arrested is that in answer to that police officer he should say "I take your advice. I wish to say nothing at this stage. I have a complete defence to this matter and I wish to see a solicitor." Not many people have the common sense to say that, but if they had received that advice in the first instance it would have been of great advantage to them. I should like to see something on the lines of the words of the caution included in the wording of the clause in respect of the word "entitled".
§ 7.45 p.m.
§ Mr. Douglas-Mann
I should like to say a great deal about this clause, but I am content with what was said by my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham). I believe that it would be preferable to include the word "immediate" because the clause makes sense only if it is to be implemented speedily. If somebody is to be notified that must imply speedy notification. Therefore, I hope that the clause will be able to be improved in another place. I hope that it will be accepted by the Home Secretary, but if that is not the case I hope that it will be carried by the House.
I accept that there may be exceptional cases that cause difficulty, hut the vast 517 number of cases involve people who are picked up on petty charges—many of them young people or coloured people. They are often held in a police station and not given the opportunity to notify their families or get in touch with solicitors. Occasionally there are serious cases involving major frauds in which it would seriously interfere with the conduct of an inquiry if person X knew that person Y had been arrested. The Government could introduce an amendment in the other place to enable the police in exceptional circumstances to apply to a magistrate before making an arrest in the same way as happens in regard to search warrants. I see no fundamental objection to that course.
The Judges' Rules suggest that the police cannot compel anybody to go to a police station and they lay down that any person who is taken to a police station should be able to communicate with and consult privately with a solicitor. They also lay down that the police officer who is making inquiries should prefer a charge as soon as he can. However, those principles are consistently ignored by the police and, for the most part, the courts ignore the fact that the police ignore them.
I hope that if this clause is included in the Bill it will enable the court to take a different view in future. A recent case established that the fact that the principles of the Judges' Rules were ignored invalidated a confession that was made. I trust that if these provisions are incorporated in the Bill the courts will take the view that prosecutions in which those principles are ignored will not be supported by the courts.
I hope that my right hon. Friend the Home Secretary will be able to give assurances to meet the wishes which have been expressed in this debate. It would be a great shame if a Labour Government were to reject this serious proposal which has been backed by experienced hon. Members in all parts of the House. I appeal to my right hon. Friend, no matter what his brief says, to reconsider the matter and to accept the clause as it stands—or certainly to consent to the spirit of it for action when the Bill reaches another place.
§ Mr. Graham Page (Crosby)
I wish to support not only the purpose of the clause 518 but its drafting. We have all received complaints from constituents whose relatives have been arrested and who have been unable to communicate with their families. We should put that situation right.
On the subject of the drafting of the clause, I think that it is sufficient merely to say that a person so arrested is entitled to an intimation of his arrest being given to a person of his choosing. The word "entitled" means that he has that right. The clause does not deal with the necessity to have somebody present when a statement is being taken or anything of that nature, because there would be certain objections in that respect. All it does is to ask that the person who is arrested shall have a right to communicate with his family, because those are the cases which arise so frequently.
The clause is narrow, but it is worthy of support. Furthermore, I believe that it is correctly drafted, which will enable it to operate effectively.
§ Mr. Merlyn Rees
This is an important issue and I shall give it my full attention. I must say at the outset that at our present pace we shall still be sitting here at this time tomorrow evening.
My hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) asked me to depart from my brief. I must tell my hon. Friend that that is not the best way to get anywhere with me. There is a slight romanticism and a touch of inexperience about the way in which my right hon. Friend put that point. I fully appreciate the concern in the House on this matter. I intend to deal with this issue—and I am doing so—at the end of a discussion which has taken some time.
I must point out to my hon. Friend the Member for Lewisham, West (Mr. Price) that I certainly cannot reply on the basis of "Come on, mate." A Home Secretary cannot follow that approach. There are wider considerations that we must take into account and this cannot be approached in a frivolous way—if that is the right word. [HON. MEMBERS: "Wrong word."] I cannot follow the "Come on, mate" approach.
The Confait case argument that has been put forward is not relevant to the new clause. Although it is, of course, my job to listen, I must point out that 519 the Sheffield case, which has been drawn to my attention before, was also irrelevant to the new clause in the way that it is drafted. So was the case of the Lewisham 24.
I must consider the merits of the new clause as it is drafted and we must consider the wider implications for the future. Nevertheless, I am sensitive to the mood of the House.
We are here discussing one part of the Judges' Rules. Some hon. Members are asking us to enshrine in statute law not the whole of the Judges' Rules but one part of them. That is a problem that we must consider, because the Judges' Rules are not law. We should be faced with some Judges' Rules having no statutory force and others that, even if they were correctly drafted—
§ Mr. Hooley
If I understand correctly, the Judges' Rules, as at present interpreted, do not include the provisions of the new clause. Is that so?
§ Mr. Graham Page
Surely the judges' Rules deal with the effects upon eventual trial, evidence to be adduced, and so on. That is not what we are talking about. We are talking about the notification of a man's family.
§ Mr. Rees
My hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) was quite properly concerned about trying to bring some aspects of the Judges' Rules into statute law on the basis of what is done in Scotland. Generally speaking, the Judges' Rules are concerned with the admissibility in evidence against a person of written or oral answers given by that person to questions asked by police officers and of statements made by that person. The rules set out the principles that the court will normally apply in deciding whether to admit evidence of what happened during a police interview. They do not bind the judge, who has overriding discretion to reject evidence or to admit it, even though it may have been obtained in breach of the rules. This has a bearing on the matter, because for some years now in this country we have used the 520 Judges' Rules. I must therefore examine the existing system.
Lord Devlin said, in essence, that a judge must be satisfied that no unfair or oppressive use had been made of police power. If so, a judge may reject the evidence, notwithstanding that there is no rule that specifically prohibits it,
§ Mr. Stan Thorne (Preston, South)
The Home Secretary is confusing this to the extent that what he says makes no sense at all. There is no evidence involved in discussion of the new clause. We are talking about a person being arrested and someone being informed. We are not talking about the examination of evidence or anything connected with that.
§ Mr. Rees
With respect, we are talking about that and it is so important that we should consider it. The Judges' Rules were made for the guidance of the police and not for the circumspection of the powers of the judiciary. The aspect that has been raised is part of the Judges' Rules, as I am sure hon. Members will agree.
The matter has been considered before. The eleventh report on evidence produced by the Criminal Law Revision Committee in 1972 review this precise point. That report said that there had been very few suggestions that the rules, or parts of them, should he made statutory. The committee was against making any of the provisions statutory.
That is the background and the point to which I must address my mind. The position with the Judges' Rules now is that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. That is so, even when a person is in custody, provided that in such a place no reasonable delay or hindrance is caused to the process of the investigation or the administration of justice by a person so doing. It is that aspect of the Judges' Rules that my hon. Friends have been concerned to change during the past two years.
The Judges' Rules are relevant. My hon. Friend the Member for Islington, South and Finsbury has addressed his mind to one part of them and he wants —in a way that I shall deal with in a moment—to put them into statute law.
§ Mr. Rees-Davies
The Home Secretary may remember that I pointed out in my speech that he would confuse himself. We are not concerned in the new clause, with the rights of the police to interrogate. If the Home Secretary would be good enough to direct his acute mind and attention to the point he would sec that it does not involve the Judges' Rules. The new clause refers what happens earlier, before the Judges' Rules come into play.
The Home Secretary must take the point that we are purely concerned with the right to notify relatives. A relative or a lawyer should be able to receive word, but we are not saying that they should have the right to go in and interfere with police duties. If the Home Secretary will direct his attention to that point, he will have the House with him.
§ Mr. Rees
If I put my acute mind to the point I should point out that the Judges' Rules say that every person at every stage of investigation should be able to communicate. I am right and the hon. and learned Gentleman is wrong in that sense. We are talking about any stage of an investigation and the matter is clearly set out in the Judges' Rules.
§ Mr. Merlyn Rees
I shall come to the point that the existing system raises such problems as my hon. Friend has brought to my notice, and it is proper that I should.
I should like to refer first to the wider aspects. Since I have been at the Home Office I have been concerned with the wider problem. I have been concerned with the whole of the prosecution process and just not just one part of it. The Prime Minister has set up a Royal Commission to look into the prosecuting process. There will be wide consideration that will take some time, but it is most important that we should look at the matter in depth and that the wider aspects should be considered. Without departing from what I have been trying to do on this, it is most important that we should not make changes piecemeal.
The matter was looked at in 1972 and has been under consideration by Justice for some time. There is con- 522 cern about it and the Royal Commission was set up, in that spirit, to look at the whole matter in depth. Many of the arguments that have been made in the debate will be taken into account by the Commission.
Of course we need to look at police procedures in the investigation of crime as well as considering the legal aspect. Difficult and complex issues are raised and the Royal Commission, the House and I, irrespective of what happens to the new clause, will have to balance these aspects.
There have been a number of suggestions and the new clause is another. It is my strong view that the Royal Commission is the right approach on these wider aspects and I am supported in this by the recent article by Professor Michael Zander. His view about the prosecuting process was something that I thought I should take into account.
§ 8.0 p.m.
§ Mr. Thorne
What other parts of the Bill does my right hon. Friend feel it would be proper for the Royal Commission to consider—or are there no other such parts? Is he satisfied that everything else in the Bill is of no concern to the Royal Commission?
§ Mr. Rees
My hon. Friend is exactly right. This is the one part of the Bill that the Royal Commission will be considering. We are not dealing with a prosecuting process Bill. My hon. Friend has hit the nail on the head and I am grateful to him.
My hon. Friend the Member for Islington, South and Finsbury has been arguing his case since before the setting up of the Royal Commission, but he seeks, in advance of its report, to give an arrested person the automatic and unqualified right to have intimation sent to a person of his choice. It is important that I should make clear that this is not a minor and uncontroversial matter.
As a general rule, arrested persons should be able to inform their solicitors and relatives of their arrest. Despite what has been said in the debate, I have no reason to believe that there is an overwhelming number of cases in which people are held incommunicado. However, if there are the number of cases that have been put to me during the debate—even though they are not strictly relevant to 523 the new clause—this is obviously a matter to which I should put my mind.
However, intimation in the way suggested in the new clause could allow people to flee and make things very difficult for the police investigating a complicated robbery in which arrangements in the event of one of the gang being caught have been worked out in advance.
§ Mr. George Cunningham
This is a serious question. If such a provision would be disastrous south of the border, why does it work north of the border where they have just as many criminals who are just as clever but just as many of whom get caught?
§ Mr. Corbett
Is my right hon. Friend suggesting that in the sort of robbery to which he referred the police would not arrest people on warrants and therefore avoid what he fears might happen if the new clause were approved?
§ Mr. Rees
It may be that the police have one man but do not know the identity of the others. It is not as simple a matter as my hon. Friend implies.
The new clause says, in effect, that, whatever the consequences, a person in custody should have an unqualified right to inform someone of the police station at which he has been arrested and the place of detention. As drafted, the new clause would allow no discretion to the police.
It is said that the law in Scotland can accommodate such provisions and therefore we should have them here. While making allowance for the claims made about the Scottish system, I have to say that we do not yet have exactly the same background to our law as Scotland has to its law. Section 19(1) of the Criminal Procedure (Scotland) Act 1975 has been read out already. Perhaps I may repeat it. It says:Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person, and informing him of the place to which such person is to be taken for examination.524 In Scotland the sending of intimation to a solicitor is for a specific purpose, namely, to enable him to have an interview with his client before he is examined before a sheriff or, in the case of Section 305 of the Act, before the first court appearance. It does not entitle the solicitor to an interview while the person is being questioned by the police. The interview may not take place until just before the sheriff's examination. The new clause, however, leaves the purpose of the intimation at large.
In Scotland an intimation has to be sent to the solicitor, but the new clause proposes that a person in custody in England and Wales should be entitled to have an intimation sent to any person that he chooses. It is not just a question of informing relatives or friends. It goes much wider than that. It is right to look at the Scottish aspect, but we should also consider what happens in other parts of the world.
§ Mr. Douglas-Mann
I apologise for having presumed that my right hon. Friend had a brief that was written before he had applied his mind to the problem. I am advised that in Birmingham the practice goes much further than what is proposed in the new clause. The Birmingham police allow solicitors to see their clients even in terrorist cases very much earlier than do police in other parts of the country. If this works in Birmingham, why should it not work in the rest of the country?
§ Mr. Rees
If it works in Birmingham without statute law, maybe it can work in the same way in other parts of the country. I am trying to respond to the House in the best way that I can and to take the feeling of hon. Members on all these problems. I referred to the practice in other parts of the world. The Australians, who, unlike the Scots, share our common law tradition are putting through legislation with the caveat that the police should have discretion in certain circumstances.
My reply has to be fairly wide because this is not an issue that can be dealt with in a five-minute answer to a debate.
§ Mr. Kilroy-Silk
My right hon. Friend says constantly that he wants to take the opinion of the House. Surely that has 525 been expressed clearly and forcefully from Left-wing and Right-wing Members on these Benches and from every conceivable political complexion on the Opposition Benches. There is a clear desire to have the new clause, however it may be redrafted in another place so that it may take statute form. Nothing that my right hon. Friend has said so far has obviated any of the arguments that have been put for the clause. Surely the best thing he can do is to accept the principle of the clause and to accept what the House has demonstrated to be its wish.
§ Mr. Rees
If the House is to do it this way, my job is to deploy the full argument so that at the end of the day it can decide whether it is the right thing to do.
As the clause stands it is not clear what would happen if the provisions were not observed. Would that have some bearing on the admissibility of evidence? Some of my hon. Friends may say that it does not bear on admissibility while others may realise that it does.
If it becomes statute law, is it intended that a police officer who does not observe the provisions will be liable to prosecution? Again, that is something that we must take into account. It would not be appropriate to enact a declaratory provision of this sort and then leave the results of breaching it in some sort of limbo.
§ Mr. Hooson
Surely the right hon. Gentleman can tell us of the effect of non-compliance in Scotland.
§ Mr. Rees
In fact the clause has been drawn in wider terms. The expression intimation "may be understood in Scottish law, but I am advised—my hon. Friend the Member for Mitcham and Morden is a lawyer operating south of the border and he will know the answer —that it has no meaning in law south of the border. It would have to be defined in England.
These matters have to be made clear if the clause is to become part of statute law. Does "intimation" mean all the things that have been said? Does it mean a personal visit or a telephone call, for example? If the intimation may be sent to a person of the prisoner's choosing, does that mean only one person?
§ Mr. George Cunningham
It is intended to mean one person. If there is any doubt about that, a drafting alteration could be made.
§ Mr. Rees
There are a number of aspects to the clause that I believe could cause serious trouble. When my hon. Friends say that the spirit is all that matters, they must remember that we are dealing with an important piece of legislation that we hope will work out correctly. I believe that there are problems.
I am very much seized of the view of the House, which I cannot ignore. There are those who are concerned by the way in which one or more parts of the Judges' Rules are carried out by the police. I understand that, even though some of the points that have been mentioned are not strictly relevant to the provision that my hon. Friends want to see on the statute book. My right hon. Friend the Prime Minister has set up a Royal Commission to consider the wider aspects of these issues.
§ 8.15 p.m.
§ Mr. Mikardo
My right hon. Friend has been more than generous in giving way and we are grateful to him for it. One part of his argument is that we should wait for the Royal Commission. In reply to an intervention from my hon. Friend the Member for Preston, South (Mr. Thorne), who suggested that there might be other parts of the Bill that should wait, he said that that was not the case. I invite my right hon. Friend to consider Clause 6(6), Clause 7(5). Clause 8(4) and Clause 9(6), all of which concern matters which fall within the purview of the Royal Commission. Why does he not delete those subsections?
§ Mr. George Cunningham
I hesitate to tell my right hon. Friend what the Royal Commission is about, but it is clear from his public statement that it is about the prosecuting procedure—for example. 527 whether we should have public prosecutors—and the pre-prosecution procedure.
§ Mr. Rees
It is concerned with the pretrial procedures.
As I have said, I cannot ignore the view of the House. There is no point in my doing so. It is clear that there is concern about the way in which the present system works, although in Birmingham, apparently, things are different. I believe that the best way to proceed is by means of the Royal Commission so that we may get these matters right.
I promise that I shall find a means of bringing before the House how the rules are laid down within the existing system. I happen to believe that to employ the procedure of another place in the next week or so would not get us anywhere. I simply tell the House that I shall take into account the view that has been made clear.
I cannot ignore the view that people are not treated as they should be during pretrial procedures. I shall find a means of ensuring that all the wider aspects of these matters are taken into account. I can only tell my hon. Friends that if they were to press the clause at this stage and we were to go forward:n that way, I do not believe that the House would be doing its duty.
§ Mr. Christopher Price
When my right hon. Friend says that he is willing to bring proposals before the House after giving consideration to these issues—we have had such promises before—is it possible for him to give us any sort of time scale within which he can commit himself to doing so?
§ Mr. Rees
In view of the comments to which I was listening, I was trying to think of a way in which I could respond quickly. I understand the feeling in the House and I want to respond to it. Obviously, I cannot commit legislative time. My hope is that there is a means of proceeding without legislation. I think that there is a way, but I am not ruling out the need for legislation. I cannot give a commitment, but I shall try to come before the House as soon as possible.
If it is the view of both sides of the House that the existing system, irrespective of major changes and despite Birmingham, is not working properly, that is something that I should act upon as Home Secretary. I can say no more than that. 528 I shall do what I can. I shall bring these matters before the House in a way that will enable the House to consider them. However, to proceed by means of the clause would, I believe, be wrong.
§ Mr. Abse
From the way that my right hon. Friend has developed his argument it would seem that he felt that there was unanimity against him in the House. Many of us understand that there has been confusion in presentation. On the one hand, we are trying to ensure that the man gets to trial and, on the other, that his solicitor is there to look after him. I think that there is confusion here.
We must insist that the Judges' Rules are carried out. That is what is being asked here. It is my right hon. Friend's duty, as the Judges' Rules are supposed to govern police procedure, to make certain that the police act in accordance with the Judges' Rules. It should be within his capacity, if he has sufficient vigour, short of bringing forward legislation, to put an end to the situation about which so many of my hon. Friends are complaining.
§ Mr. Rees
I think that there is confusion in the House about how the Judges' Rules are applied. This matter ought to be looked at in depth. That is why I proceeded in the way that I did.
Problems have arisen in some police stations. It has been argued that the Judges' Rules have not been carried out. I will find a way of bringing this matter before the House in advance of the fundamental overall change that I think the Royal Commission is all about.
If the House is not prepared to accept that undertaking, so be it. I suggest that to make a change of what is part of the wider prosecuting process in this way would be a mistake.
If my hon. Friends wish to press the clause, so be it. However, I think that they would be wrong. I understand the emotions and feelings that are aroused by this matter. I will find a way of coming back to the House of Commons on this issue.
§ Sir M. Havers
This debate has caused many hon Members—certainly me—some anxiety. The Judges' Rules were basically and primarily directed to court procedure and the admissibility of evidence. I suspect that these other rules about the 529 right to communicate have almost been grafted on. They are rights and liberties that had to be preserved and that was a convenient way of preserving them.
Some hon. Members have spoken with conviction about what constituents have told them of how they have been treated and forced into or prevented from doing this, that and the other. I suggest that one must always take with a large pinch of salt what someone may say in those circumstances. It does not necessarily follow that he is telling the truth.
I was not very happy with the Home Secretary's reason—that we must wait for the Royal Commission's report before making up our minds. We have already had an example of the Home Department being prepared to act in advance of the report on the obscenity laws. That had to be piecemeal legislation.
I am not satisfied that there has been enough consulation on this matter. I do not know how much consultation the Home Department has had with senior police officers, judges and others. We must obviously have consultation.
I think that everyone accepts that the wording of the clause is defective. We must have provision to guard against the villain who wants to warn another codefendant, as he might be, who is on the run or has not yet been arrested by the police so that he can get away. Some exception may eventually have to be provided for that occasion.
The Home Secretary took the Opposition to the very brink until his closing words when he said "I will find a means of bringing this before the House as soon as possible". That is a much better way than allowing a defective clause to be put into the Bill. Knowing the right hon. Gentleman to be a man who will honour his pledges, we are prepared to accept that undertaking and not to press the matter to a Division.
§ Mr. George Cunningham
I shall take only a few minutes, because we have spent quite a long time on this subject. I have tried to approach this matter in a non-emotional and technical way. The Judges' Rules do not confer the right that is in the new clause at the moment. We are talking not of a difficulty that arises because of the Judges' Rules not being 530 adhered to, but of a right that is not conferred by the Judges' Rules.
The Home Secretary posed a number of questions that he said the new clause left open. For example, he asked whether, if the clause were passed, it would mean that evidence was non-admissible. There is a simple answer to that. I suggest, as a non-lawyer, that that would be up to the court. If a person is assaulted within a police station, it is for the court to decide whether that assault is sufficiently germane to the evidence to warrant the non-admissibility of anything that he said.
My right hon. Friend asked whether a police officer would be prosecuted for a breach of this provision. My first comment is to refer to what happens in Scotland. There is a statutory obligation, but no statutory offence for breach. It would be a disciplinary offence if a police officer breached the statutory obligation. That deals with that point.
My right hon. Friend said that no one south of the border knew what the word "intimation" meant. I should have thought that even a lawyer understood what the word "intimation" meant. When a word has an obvious, commonsense, natural meaning, there is no need for it to be used as a term of art.
My third point to the Home Secretary —the right hon. and learned Member for Wimbledon (Sir M. Havers) touched germanely upon it—is that there is a great distinction between the very function and role of the Judges' Rules and the function of a provision such as is contained in the new clause. The Judges' Rules say "If you take statements in such and such a manner without feeding people, letting them sit down, and so on, we may not admit the evidence." That is a severe sanction to apply for relatively minor breaches.
That is why we should be prepared to take into statute not the Judges' Rules, but some actions that at the moment are dealt with only in the Judges' Rules and say "Apart from their position within the Judges' Rules, which govern admissibility. this needs to be done as a point of law." We do not say that if a person is assaulted inside a police station that is a matter only for the Judges' Rules. It is a criminal offence to assault someone inside a police station just as it is anywhere else. We say that, albeit it is relevant to the 531 Judges' Rules, it ought also to be relevant to the law of the land.
We have a problem. The support on both sides of the House that has been given to the principle of the clause has been very impressive. We cannot leave it that the House of Lords will take that support into account and produce something better than I have drafted. If the new clause does not go into the Bill, the House of Lords cannot put it or anything else in. If the new clause goes into the Bill, it is open to the Government, in the House of Lords, to endeavour to make whatever corrections are necessary to it.
If we put the new clause into the Bill, I suggest that that means that the House of Commons thinks not that precisely this wording is right, but that the principle is right. We want the principle to be given effect in the Bill before it receives the Royal Assent. I hope that hon. Members on both sides of the House agree with that proposition. I suggest that the clause should be put into the Bill, because we do not know when there will be another opportunity to achieve this end.
If this clause goes into the Bill and gets to the House of Lords, the Government may manage to persuade the House of Lords, which will not be difficult, that the clause is defective and that it cannot be remedied in time. The Government will have their chance then, and I hope that the Opposition Front Bench will take that into account.
|Division No. 192]||AYES||[8.31 p.m.|
|Atkins, Ronald (Preston N)||Freud, Clement||Maynard, Miss Joan|
|Atkinson, Norman||Gould, Bryan||Mendelson, John|
|Belth, A. J.||Hooson, Emlyn||Meyer, Sir Anthony|
|Bldwell, Sydney||Howells, Geraint (Cardigan)||Mikardo, Ian|
|Bowden, A. (Brighton, Kemptown)||Hoyle, Doug (Nelson)||Miller, Mrs Millie (Ilford N)|
|Brown, Ronald (Hackney S)||Hughes, Robert (Aberdeen N)||Mitchell, Austin Vernon (Grimsby)|
|Callaghan, Jim (Middleton&P)||Hughes, Roy (Newport)||Moats, Roger|
|Carmichael, Nell||Irving, Charles (Cheltenham)||Ovenden, John|
|Carter-Jones, Lewis||Janner, Grevllie||Page, Rt Hon R. Graham (Crosby)|
|Clemitson, Ivor||Jeger, Mrs Lena||Pardoe, John|
|Cook, Robin F. (Edin C)||Jenkins, Hugh (Putney)||Parry, Robert|
|Corbett, Robin||Johnston, Russell (Inverness)||Pavitt, Laurie|
|Crawshaw, Richard||Kellett-Bowman, Mrs Elaine||Penhaligon, David|
|Crowder, F. P.||Kerr, Russell||Phipps, Dr Colin|
|Cunningham, G. (Islington S)||Kilroy-Silk, Robert||Price, C. (Lewisham W)|
|Davies, Bryan (Enfield N)||Kinnock, Nell||Rees-Davies, W. R.|
|Dean, Joseph (Leeds West)||Lamond, James||Rhys Williams, Sir Brandon|
|Dempsey, James||Lee, John||Richardson, Miss Jo|
|Douglas-Mann, Bruce||Lestor, Miss Joan (Eton & Slough)||Robinson, Geoffrey|
|Dunwoody, Mrs Gwyneth||Lewis, Ron (Carlisle)||Rodgers, George (Chorley)|
|Ellis, John (Brigg&Scun)||Loyden, Eddie||Rooker, J. W.|
|Evans, loan (Aberdare)||Lyon, Alexander (York)||Rose, Paul B.|
|Evens, John (Newton)||McCartney, Hugh||Ross, Stephen (isle of Wight)|
|Fairbairn, Nicholas||McDonald, Dr Oonagh||Selby, Harry|
|Flannery, Martin||McGuire, Michael (Ince)||Silverman. Julius|
|Fletcher, Ted (Darlington)||Madden, Max||Skinner, Dennis|
|Fookes, Miss Janet||Marshall, Jim (Leicester S)||Smith, Cyril (Rochdale)|
§ 8.30 p.m.
§ We need at the moment a clear statement of what support there is for the clause in the House of Commons. if the Lords find that whatever tidying-up is needed cannot be done by them in the time available, the Government will have no difficulty in knocking the provision out in the House of Lords. If the clause is carried tonight, that is the only significance that ought to be attached to its being carried.
§ I appeal to the Opposition Front Bench, with whom it lies, to accept that a job has been done here in the House of Commons that it is our essential, key right to do. For God's sake do not undo it. It can be undone in the House of Lords if the difficulties prove excessive, but this is something like habeas corpus.
§ Let us put the provision into the Bill so that the principle is established. If it proves impossible to correct any blemishes it may have, they can be put right not only as a theoretical matter in the House of Lords but as a practical matter, too. I beg the Opposition to support it on that basis. No one will say that we have supported it on any other basis.
§ Question put, That the clause be read a Second time:—
§ The Clouse divided: Ayes 89, Noes 86.
|Steel, Rt Hon David||Wainwright, Richard (Coine V)|
|Thomas, Ron (Bristol NW)||Whitehead, Phillip||TELLERS FOR THE AYES:|
|Thorne, Stan (Preston South)||Willey. Rt Hon Frederick||Mr. Andrew F. Bennett and|
|Thorpe, Rt Hon Jeremy (N Devon)||Wise, Mrs Audrey||Mr. Frank Hooley.|
|Anderson, Donald||Grant, George (Morpeth)||Ross. Rt Hon W. (Kilmarnock)|
|Archer, Rt Hon Peter||Hamilton, James (Bothwell)||Rodgers, Rt Hon William (Stockton)|
|Armstrong, Ernest||Hardy, Peter||Rees, Rt Hon Merlyn (Leeds S)|
|Bates, Alf||Harper, Joseph||Silkin, Rt Hon John (Deptford)|
|Bean, R. E.||Harrison, Rt Hon Walter||Small, William|
|Boardman, H.||Horam, John||Smith, John (N Lanarkshire)|
|Boothroyd, Miss Betty||Howell, Rt Hon Denis (B'ham, Sm H)||Snape, Peter|
|Brown, Hugh D. (Provan)||Hunter, Adam||Spriggs, Leslie|
|Buchanan, Richard||Irving, Rt Hon S. (Dartford)||Stallard, A. W.|
|Callaghan, Rt Hon J. (Cardiff SE)||John, Brynmor||Stanbrook, Ivor|
|Cocks, Rt Hon Michael||Jones, Barry (East Flint)||Stewart, Rt Hon M. (Fulham)|
|Coleman, Donald||Jones, Dan (Burnley)||Stoddart, David|
|Concannon, J. D.||Kaufman, Gerald||Stott, Roger|
|Cowans, Harry||Lipton, Marcus||Summerskill, Hon Dr Shirley|
|Cox, Thomas (Tooting)||McElhone, Frank||Taylor, Mrs Ann (Bolton W)|
|Dalyell, Tam||MacFarquhar, Roderick||Tinn, James|
|Davidson, Arthur||McGuire, Michael (Ince)||Wainwright, Edwin (Dearne V)|
|Davies, Ifor (Gower)||Mallalieu, J. P. W.||Walker, Terry (Kingswood)|
|Deakins, Eric||Marks, Kenneth||Ward, Michael|
|Doig, Peter||Marshall, Dr Edmund (Goole)||Watkinson, John|
|Dormand, J. D.||Mawby, Ray||Wellbeloved, James|
|Duffy, A. E. P.||Millan, Rt Hon Bruce||White, Frank R. (Bury)|
|Dunn, James A.||Morris, Charles R. (Openshaw)||Whitlock, William|
|Dunnett, Jack||Mudd, David||Williams, Sir Thomas (Warrington)|
|Ellis, Tom (Wrexham)||Mulley, Rt Hon Frederick||Wilson, Alexander (Hamilton)|
|Foot, Rt Hon Michael||Noble, Mike||Wilson, William (Coventry SE)|
|Ford, Ben||Oakes, Gordon|
|Freeson, Reginald||Palmer, Arthur||TELLERS FOR THE NOES:|
|Golding, John||Park, George||Mr. Ted Graham and|
|Gourlay, Harry||Radice, Giles||Mr. Joseph Ashton.|
§ Question accordingly agreed to.
§ Clause read a Second lime, and added to the Bill.