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Vera Baird: Does the hon. Gentleman not think that the DPP's decision could be judicially reviewed? One could introduce a judicial sanction in that way. Mr. Grieve: Well, one could, but it is difficult to determine whether the process on which one is embarking is readily susceptible to judicial review. After all, once the DPP makes his decision, the police will presumably start scurrying around—sorry, that might be seen as a pejorative term and I did not mean it that way. The police will, however, be doing their investigations. That might prevent judicial review. It might also provide for a little judicial oversight. Of course, it is a difficult decision. The DPP will be seized with a massive dossier and will be advised about the issue. None the less, the protection of having a Crown court authorise an investigation commends itself to me. I take the hon. and learned Lady's point that judicial review proceedings might be an option, but that raises difficult issues. For example, will everything be frozen during such proceedings? If so, one argument against them is that they might seriously impede the course of investigations, which will be carried out in the interests of justice. That could raise complicated issues. I was rather happier with the idea of subjecting the issue to judicial scrutiny, because one could then say that the investigation was taking place on the order of a Crown court judge. We cannot escape the fact that the clause proposes a massive alteration to the basic principles that govern the grounds on which someone can be arrested and investigated. If other hon. Members think that the judicial review procedure is the better route, and the Minister says that it would be available, I will consider it. However, the amendment seemed to deal with the problem by removing the idea that it was for the DPP—the state—to initiate what could be seen as an oppressive procedure. Simon Hughes: The amendment is important and reflects the constitutional balance to which the hon. Gentleman properly referred. It also has a practical implication. To put it neutrally, the decision to reopen a matter—or to trawl for evidence, to put it pejoratively—is in the hands of the independent judiciary, not the state or those who look after our law and order. It is important that we hold to those constitutional principles. When we debated the Terrorism Bill and the Anti-terrorism, Crime and Security Bill, I regularly argued that crucial decisions on intervention should be authorised by the judiciary. It seems to me to be a safeguard that would be in everyone's interests. I hope that the Government will see that it is in their interest too. Column Number: 500 Mr. Heath: I do not have a great deal to add to what my hon. Friend the Member for Southwark, North and Bermondsey said, other than that I instinctively had sympathy with the amendment. Then, having thought it through, I wondered whether it would simply amount to an extension of process without any real new safeguard, given that both an assistant chief constable—or, in the case of the metropolis, a commander—and the Director of Public Prosecutions would be involved. As the hon. and learned Member for Redcar said, the actions of the DPP are subject to judicial review. However, that is a clumsy way of acquiring the imprimatur of the judiciary. It is important that the prosecuting authorities, either the police or the DPP, should not be the sole arbiter of whether to proceed with what will inevitably be an intrusive process. Therefore, although in practical terms I expect that the amendments would have little effect, in principle and in constitutional terms some judicial scrutiny of the process is important. Therefore, I should be interested to know why the Minister appears to feel that the amendments are unnecessary. Hilary Benn: We have rightly spent some time debating the various safeguards that the Bill contains, but I am not persuaded by the arguments advanced in support of the amendments. The process set out in clause 72 is triggered by subsection (5), which covers the making of an application by an officer. He needs to be able to demonstrate that new evidence relevant to the application is available or known to him, or that he has reasonable grounds for believing that such new evidence is likely to become available or known to him, as a result of the investigation. The Director of Public Prosecutions is the appropriate person to take the decision at that point about whether to allow the police to reopen an investigation into an acquitted person. The DPP is qualified and experienced enough to take a decision at that stage in the process, bearing in mind all the subsequent safeguards that we have already debated. Furthermore, clause 72(6) makes it clear that the DPP is not able to give consent unless he is satisfied, first, that the investigation is likely to produce
and, crucially, that
Thus, the DPP is required by the clause to give very specific consideration to the public interest in deciding whether to allow the relevant powers to be exercised. The Government consider that having the DPP take the decision provides a safeguard against the acquitted person being harassed by the police. I think that the hon. Member for Southwark, North and Bermondsey was the first person to comment in Committee on this issue, on which the hon. Member for Beaconsfield also touched; it is the reason why subsection (3) protects against any of the actions in question being taken either with or without the acquitted person's consent. That is intended to prevent the police from leaning on Column Number: 501 the acquitted person to co-operate. Nothing mentioned in subsection (3) can be done without the consent of the DPP. At this stage of a re-investigation, it is proper for the decision to be taken by the prosecuting authorities rather than the courts. Involving a Crown court judge in the process would make it more cumbersome.Finally, I am happy to confirm what my hon. and learned Friend the Member for Redcar, who is not in her place at present, mentioned in her intervention. The DPP's decision on the obligations under clause 72 would be judicially reviewable. In answer to the hon. Member for Beaconsfield, the investigation would be stayed while that judicial review was carried out. Mr. Grieve: The Minister's response gives rise to two interesting issues. If the investigation is judicially reviewable and stayed for the duration of the judicial review proceeding, that could be a serious handicap to the police in carrying out the re-investigation. It could enable the potential defendant to conceal evidence, for example. However, I understand the issue, and the provision may be a sufficient safeguard. We did not have the chance in Committee to consider the charging provisions earlier in the Bill, because we ran out of time. I regretted that, because some of the changes brought about in the charging provisions removed judicial scrutiny and turned charging into a mere administrative activity, albeit one that must be carried out according to certain rules. I assume—it has only just occurred to me—that that activity is also judicially reviewable. I would prefer a mechanism of judicial control, because I dislike the way in which we are departing from that principle. Under this provision, a state administrator—that is what the DPP is, however fair, good and robust his qualities—who is distinct and different from the judiciary, is able to authorise a procedure that would be a gross interference with a person's freedoms and rights. I wonder whether the inclusion of such a mechanism of judicial control might prevent quite a number of judicial review proceedings. I am therefore not persuaded by the Minister, and to set down a benchmark on the issue I intend to press the amendment to a vote. Question put, That the amendment be made:– The Committee divided: Ayes 8, Noes 14.
Division No. 20]
AYES
NOES
Column Number: 502 Question proposed, That the clause stand part of the Bill.
5 pmMr. Heath: I wonder whether the Minister can help me. All the provisions in the clause apply to an officer, which is defined in clause 80(1) as an officer ''of a police force''. Often, an investigating force other than a police force investigates many of the offences that come under the provisions. Such offences might be investigated by Her Majesty's Customs and Excise or by the security services. I am not clear how the clause will apply to officers of investigating forces other than police forces. The provision would be rather empty if it allowed for intrusive investigation on the part of officers other than police officers, whereas the only people prevented from doing so were police officers. What is the position with respect to other investigating forces subject to Home Office or Treasury control? Simon Hughes: The hon. Member for Beaconsfield, no doubt in the interests of expedition, did not move amendments Nos. 317 or 318. However, they touch on two issues of principle. One is whether the Minister will look at the list in subsection (3). It strikes me that arresting or questioning not only the suspect but those associated with them triggers the same issues. That might be rather narrowly drawn and the point would apply to the rest of the list. There is also a perfectly proper point that the provision is all about ensuring that the beginning of an investigation has an appropriate trigger. It would be ridiculous to create an artificial distinction between the most central parts of the investigation and the wider investigations. I hope that the principle—the objective—is for there to be an investigation authorised appropriately, whether with or without judicial authority. It will be with if we get our way, and we shall, I hope, persuade Ministers of that. Irrespective of that point, however, I should be grateful if Ministers would consider whether the provisions are drawn widely enough, otherwise there might be indirect ways of starting an investigation that are not covered by the trigger mechanism that is intended.
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| ©Parliamentary copyright 2003 | Prepared 21 January 2003 |
