Standing Committee B
Thursday 19 December 2002
[Mr. Eric Illsley in the Chair]
Limits on period of detention without charge
Mr. Graham Allen (Nottingham, North): I do not intend to move amendments Nos. 73 or 72, in order to assist the Committee in making progress, Mr. Illsley. However, I might try to catch your eye on clause stand part.
Mr. Humfrey Malins (Woking): I beg to move amendment No.31, in
The Chairman: With this it will be convenient to discuss the following amendments:
Mr. Malins: I rise to my feet unexpectedly early, Mr. Illsley, which could cause me some distress. The hon. Member for Nottingham, North (Mr. Allen) will, I am sure, speak on clause stand part with his usual great authority. I remark in passing what a dreadfully early start this is.
The clause is important, and in a little while I shall come to the issues raised by the Home Affairs Committee. Suffice it to say that, dominated though it is by the Government and the Labour party, that Committee had some fairly strong views on the clause, which we may refer to again on clause stand part. I see that the hon. Member for Bradford, West (Mr. Singh) is here; he is a distinguished and experienced member of the Home Affairs Committee, and I am sure that he, too, will seek to catch your eye, Mr. Illsley, to raise his particular concerns.
It is important to assess what the Government seek to achieve with the clause. It extends the scope for an officer of the rank of superintendent to authorise detention without charge for a maximum of 36 hours. It allows detention to be extended for up to 36 hours when the relevant offence is an arrestable offence provided that the other conditions are satisfied. It is important to consider what is an arrestable offence, and for that we need to refer to section 24 of the Police and Criminal Evidence Act 1984.
In summary, clause 5 seeks to widen powers of detention. For my part—I think that I speak for my party and for many Committee members—I believe that detaining someone for an indefinite time is a power to be used extremely sparingly. Over the years, those cases when the police have properly and
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diligently sought to use the power to detain someone for longer than 24 hours have normally been reserved for the more serious and complicated cases. I see no argument at present for widening it to include less serious offences—so-called arrestable offences.
Is there any evidence to suggest how often, or in what proportion of cases, the power to detain for up to 36 hours, or after that time, has been needed? In the vast majority of cases the power is not necessary. It is sometimes said that when a defendant is in a drunken state, or otherwise in a poor state, the 24 hours begin to elapse at a time when it is not possible to talk to him. Sometimes there is a problem because of the defendant's mental capacity. The high-profile cases in which the power is thought to be relevant are usually those entailing a very serious allegation. In what proportion of cases will the new power be likely to be used? Will they be the most serious? If so, amendment No. 31 will naturally be accepted.
That approach would fit, for example, the situation following a robbery. The explanatory notes set out a typical instance in which it should be possible to extend the power of detention. They state:
''This broadened capacity for extended detention without charge will assist the police in dealing effectively with a range of offences, for example robbery, where it will sometimes be extremely difficult or impossible to complete the necessary investigatory processes within 24 hours.''
That is a fair point, but since the notes refer specifically to robbery, I point out to the Minister that the amendment would limit the clause but would undoubtedly leave robbery covered, as would amendment No. 15. Amendments Nos. 31 and 15 are intended to place restrictions on a very powerful provision, which will enable someone to be detained for longer than would otherwise be possible.
I want to discuss arrestable offences. Clause 5 will substitute for section 42(1)(b) of the 1984 Act, the words
''an offence for which he is under arrest is an arrestable offence''.
The term ''arrestable offence'' is a difficult and complex one, and many of us over the years have thought that any offence for which one can be arrested is an arrestable offence. Oddly enough, that is not the case. If any member of the Committee is out on the street and commits a minor offence under, say, public order provisions—an offence involving threatening or abusive behaviour—he or she can be arrested for the offence. However, it is not an arrestable offence under the Act.
That is an odd situation. A careful look at PACE and previous measures confirms that. We shall not, by agreeing to the clause, extend the power to detain in every case in which a person can be arrested, but only in cases involving an arrestable offence. Under PACE, an arrestable offence carries a sentence of five years or more in prison. Does that not mean that the clause would bite for an offence of petty theft? The shoplifter who steals an item worth £1 or £2 will be charged with an offence that is triable either way—not only in a magistrates court but in a Crown court, which has the power to sentence him to well in excess of five years. That makes petty theft an arrestable offence under the clause.
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Mr. Clappison: My hon. Friend is drawing on his legal experience, which I am afraid is much more contemporary than mine. Let me, however, put to him another example of what he has described. I have in mind what some people would see as a relatively less serious arrestable offence, although it is still serious in its own way. Under clause 9, to which we shall come shortly, cannabis will be reclassified as a class C drug, and possession will punishable by two years' imprisonment. It will therefore no longer be an arrestable offence unless it is specifically made one, as clause 9 proposes. Will he confirm that the possession of cannabis is one of the offences to which clause 5 will extend the power of detention?
Mr. Malins: My hon. Friend makes a telling point and anticipates a debate that we shall undoubtedly have on the possession of cannabis. At present, certain penalties are available for that offence. If clause 9 passes into law, however, it will be an arrestable offence. That will mean that a person arrested for possessing cannabis—subject to the five-year sentence, if the new provisions are passed—will find himself at the whim of the police as regards long-term detention. It is therefore fair to ask the Government what their true position on cannabis is, and we shall put that question to them in much more straightforward terms later. Are they complicit in the practice of many police forces in the London area, which merely warn, caution or, as my hon. Friend the Member for Hertsmere (Mr. Clappison) will no doubt remind us, give a conditional caution to people who possess a little cannabis? Do the Government support that approach? How is that consistent with placing the possession of cannabis in a category that will allow them to authorise chief superintendents and superintendents to detain people for up to 36 hours? According to the explanatory notes, that power is to be used in exceptional, rather than everyday cases. I would be rather worried if it were available for everyday cases.
Mr. Allen: There seems to be a rather bizarre contradiction in what the hon. Gentleman is saying. Amendment No. 14 would exclude the most serious road traffic offences, which are arrestable, such as causing death by dangerous driving, failing to stop at a personal injury accident or causing death while driving without due care and attention. We would have the stupid situation whereby someone who had stolen a Mars bar could be detained for 36 hours, whereas someone who had killed an entire family in a car accident, yet failed to stop, could not.
Mr. Malins: Amendment No. 14, in relation to road traffic, is about a different point altogether. It seeks to probe the issue of an offence for which the sentence is fixed by law.
Mr. Paul Stinchcombe (Wellingborough): Will the hon. Gentleman clarify the true intent of the amendments? Are they cumulative or are they any alternative? How would the clause read if they were agreed to?
Mr. Malins: I recognise the hon. Gentleman's expertise in these matters. Amendments Nos. 31 and 15 are, in a sense, alternatives. They would not both be passed, even if I carried the Committee with my arguments, which I hope to do.
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Mr. Allen: I would vote for both.
Mr. Malins: That is most encouraging.
I tell the hon. Member for Wellingborough (Mr. Stinchcombe) that Amendments Nos. 31 and 15 are tailored to produce a restriction on the power to extend, but to do so in two different ways.
Mr. Stinchcombe: I am pleased that the hon. Gentleman confirmed that amendments No. 31 and 15 are alternatives. Can he say which he prefers, and why?
Mr. Malins: Yes, I can. I instinctively prefer amendment No. 15, not least because I think that I drafted it. I prefer it, though, because I have never been happy with random figures such as 10 years, five years or seven years. I am seeking to deal with the most serious offences. I think that both amendments are terrific, but that the cleaner approach behind ''triable only on indictment'' is much better, because that does not go wider than robbery. We are talking about the power to detain and take people's liberty away for a long time. They do not go before a court in that time: they are detained. It covers matters that the explanatory notes helpfully mention, such as robbery, for which it is difficult to produce the necessary investigations in time. Robbery is triable only on indictment.