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Mr. Grieve: I did not move amendments Nos. 317, 318 or 359, because on reflection I felt that the clause dealt with the matter adequately. Although the hon. Gentleman is right to say that the issues are legitimate matters for consideration, those amendments were not workable, because they touched on the operation of the relationship between the police and other individuals. He is right that the issue is legitimate. There are different ways of harassing somebody—indirectly through his family, for example. However, that would be unreasonable and unlawful in any event, even if such an investigation were not about to be embarked on.
There is an issue, but on balance my decision was not so much to do with shortening the Committee's proceedings but because of the fact that, having tabled the amendments and thought about them quite late at night, I felt in the cool light of day that they were
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probably not necessary. I hope that the Minister can provide some reassurance of that.
Hilary Benn: If, in the course of his late night or early morning considerations, the hon. Gentleman has managed to reassure himself on his amendments, who am I to disagree with him? The argument that he advanced as to why the Bill provides sufficient protection is exactly where the Government are coming from on the matter.
In response to the hon. Member for Southwark, North and Bermondsey, the purpose of subsection (3) is to identify a small category—I accept that it is small—of investigatory activities that are sufficiently intrusive on the privacy of an acquitted individual to require the personal and written consent of the Director of Public Prosecutions before they are undertaken. There are already many safeguards relating to the exercise of those powers. However, the clause takes that extra step in the limited circumstances listed to provide a further layer of personal protection to the acquitted person. The Government think that that is the right list.
In relation to the point that the hon. Member for Somerton and Frome raised on Customs and Excise, we are aware of the issue, and I am grateful to him for highlighting it. We shall need to consider whether it is necessary to include Her Majesty's Customs and Excise investigators who might be responsible for investigating drugs offences in particular.
Question put and agreed to.
Clause 72 ordered to stand part of the Bill.
5.5 pm
Sitting suspended.
5.21 pm
On resuming—
Clause 73
Urgent investigative steps
Mr. Grieve: I beg to move amendment No. 319, in
clause 73, page 45, line 22, leave out 'superintendent or above' and insert 'chief constable'.
The Chairman: With this it will be convenient to discuss amendment No. 323, in
clause 74, page 46, line 15, leave out 'superintendent or above' and insert 'chief constable'.
Mr. Grieve: I am grateful to those members of the Committee who decided that it was worth while to stay the course and enable us to conclude our proceedings. The clause provides a mechanism that enables an officer, without having to go the DPP for his authorisation, to take any action for the purposes of an investigation when each of a series of conditions is met. It states:
''The first condition is that the investigation is authorised by an officer of the rank of superintendent or above . . . Such an authorisation may be given before or after the start of the investigation . . . The second condition is that—(a) new evidence which would be relevant to an application . . . in respect of the qualifying offence to which the investigation relates is available or known to the officer authorising the investigation, or (b) that officer has reasonable grounds for believing that such new evidence is likely as a result of the investigation to become available or known to him
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. . . The third condition is that the action is necessary as a matter of urgency—(a) to prevent the investigation being substantially and irrevocably prejudiced, or (b) to prevent death or serious personal injury.''
I found the clause rather difficult. I tried to think of circumstances in which it would be necessary for such steps to be taken in a reinvestigation in this fashion. After all, the whole nature of the reinvestigation and retrial process is that it is the revisiting of a previous case in which someone has been acquitted. It would hardly have the flavour of the police having to intervene as an emergency, because the crime to which it relates was committed prior to the first trial, yet here we are going one stage further than the DPP's administrative scrutiny.
We are saying that a police officer can take emergency action, which may involve interference with someone's liberty, in respect of an offence of which he has previously been acquitted, when, by its very nature, one would not expect the reinvestigation process to be an emergency process at all. It strongly suggests that there will be a preliminary investigation by the police before the DPP is asked to look into the matter. While I can understand that happening in respect of outsiders or areas that do not concern the defendant, I find it difficult to see why the defendant would have, or need to have, any contact with the police at that preliminary stage.
This is a fairly draconian step, and I cannot but think that a chief constable, not simply someone of the rank of superintendent, is the right person to give such authorisation. Otherwise, there is a serious danger that such interference could become routine. That is the key issue in both amendments, but there is another issue concerning death and serious personal injury, to which I shall return.
Will the Minister clarify in what circumstances the clause would be invoked and consider whether it might not be more sensible for a chief constable to give the authorisation, because the clause provides for the authorisation of actions that would otherwise be unlawful? If it is a matter of intervening to protect a witness who might be engaged at the retrial—not because he is being threatened by the acquitted defendant to prevent him from co-operating with the police—the clause is unnecessary, because the ordinary powers of the police to protect a citizen from the actions of another person would be quite sufficient.
Mr. Heath: The hon. Gentleman has helpfully outlined the difficulties with the clause. Under what circumstances would it be appropriate to use clause 73, rather than clause 72? It is hard to envisage circumstances that would not constitute the commission of a new offence, in which case no authorisation would be needed for the police to take action.
That part of me that relates back to my involvement with the police thinks that, were such a situation to arise, it would be rank inflation to require authorisation by someone of the rank of chief constable. If urgent action was needed, the superintendent would be the appropriate district commander and available officer of sufficient
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seniority to authorise the investigation. My problem is that I cannot envisage circumstances in which it could or should be used, given that this is an exceptional process in every way, which Parliament may or may not be prepared to sanction under limited terms and with sufficient safeguards.
The clause effectively overrides that process and introduces a further exception to the exception. The Minister may have clear examples in mind of the circumstances in which the police would be unable to make appropriate investigations in relation to the current offence, especially to prevent death or serious personal injury. I would have thought that there were clear grounds in such a case for a police officer to take action, irrespective of whether someone had been acquitted in a previous trial. The Minister may have examples in mind of the circumstances in which the police should be able to take action without following the proper procedures in clause 72.
I am not sure whether I entirely support the amendments in their present form, but they provide a helpful vehicle for investigating the Minister's thinking on the subject. My inclination is to reject the entire clause, unless he has a sufficiently compelling and reliable argument in support of it.
Hilary Benn: For the reasons alluded to by the hon. Gentleman, I am not persuaded that the appropriate rank of person to authorise the arrangements under the clause is chief constable. In consultation with the Association of Chief Police Officers, the Government have reached the view that a superintendent would have the appropriate seniority and operational experience to take a decision to authorise an urgent reinvestigation. Chief constables are far less readily available to deal personally with such urgent situations than superintendents. What if the chief constable was away?
5.30 pm
As for the sort of circumstances to which the provision would apply—what about those in which information is received? I accept that, in the main, the clause 72 route should be used. However, it would be unwise, having gone to all the effort to change the law on double jeopardy, not to provide for urgent circumstances. An example might be an instance in which information is received from an informant that a particular piece of evidence is to be found at a particular place, and that if the acquitted person were to become aware that he was being reinvestigated, he might decide to dispose of it. That is why subsection (5)(a) gives as a condition that meets the test of a matter of urgency
''to prevent the investigation being substantially and irrevocably prejudiced.''
Thus, information that the weapon that was used in a particular murder is to be found in a cupboard would be a good reason for taking urgent investigative steps. Provision has to be made for such situations; otherwise the circumstances described in subsection (5)(a) might come to pass.
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