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Lord Campbell of Alloway: Inevitably I shall oppose Amendment No. 63. I have every sympathy with my noble friend the Minister. I think that she has been let down very badly. I am sure that Members of the Committee have the same sympathy. But is it really right to express displeasure at the way in which she has been let down by supporting the amendment? Is that the right approach to a serious amendment? For that reason I would ask Members of the Committee to think twice before supporting the amendment.

Lord McIntosh of Haringey: I do not know whether the question is addressed to me. My displeasure is much greater than as regards the way in which the Minister has been let down on one specific point. It is the way in which the whole matter has been dealt with before noble Lords. I fully recognise the right of the noble Lord not to vote with us, but I shall still take the opinion of the Committee.

19 Dec 1995 : Column 1525

3.48 p.m.

On Question, Whether the said amendment (No. 63) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 133.

Division No. 1

CONTENTS

Airedale, L.
Ampthill, L.
Ashley of Stoke, L.
Avebury, L.
Barnett, L.
Blease, L.
Broadbridge, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Carmichael of Kelvingrove, L.
Carter, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Ezra, L.
Falkland, V.
Fitt, L.
Gallacher, L.
Geraint, L.
Graham of Edmonton, L. [Teller.]
Grey, E.
Harris of Greenwich, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Hughes, L.
Hutchinson of Lullington, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Kirkhill, L.
McIntosh of Haringey, L.
McNair, L.
Mallalieu, B.
Mar and Kellie, E.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L. [Teller.]
Murray of Epping Forest, L.
Plant of Highfield, L.
Prys-Davies, L.
Rea, L.
Richard, L.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E.
Sainsbury, L.
Sefton of Garston, L.
Stallard, L.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Tordoff, L.
Turner of Camden, B.
Whaddon, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.
Addison, V.
Ailesbury, M.
Ailsa, M.
Alexander of Tunis, E.
Allen of Abbeydale, L.
Allenby of Megiddo, V.
Archer of Weston-Super-Mare, L.
Ashbourne, L.
Astor of Hever, L.
Barber, L.
Barber of Tewkesbury, L.
Belhaven and Stenton, L.
Beloff, L.
Bethell, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boardman, L.
Borthwick, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Brigstocke, B.
Brookeborough, V.
Brougham and Vaux, L.
Burnham, L.
Butterworth, L.
Cadman, L.
Caldecote, V.
Campbell of Alloway, L.
Carnegy of Lour, B.
Carr of Hadley, L.
Cavendish of Furness, L.
Chelmsford, V.
Chesham, L. [Teller.]
Chorley, L.
Clanwilliam, E.
Clark of Kempston, L.
Colnbrook, L.
Courtown, E.
Cranborne, V. [Lord Privy Seal.]
Cross, V.
Cuckney, L.
Cumberlege, B.
Dacre of Glanton, L.
Davidson, V.
De L'Isle, V.
Dean of Harptree, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Ellenborough, L.
Elliott of Morpeth, L.
Elton, L.
Faithfull, B.
Gainford, L.
Geddes, L.
Gilmour of Craigmillar, L.
Goschen, V.
Gray of Contin, L.
Greenhill of Harrow, L.
Greenway, L.
Hailsham of Saint Marylebone, L.
Hardinge of Penshurst, L.
Harlech, L.
Harmar-Nicholls, L.
Henderson of Brompton, L.
Henley, L.
Hertford, M.
Holderness, L.
HolmPatrick, L.
Howe, E.
Inglewood, L.
Johnston of Rockport, L.
Killearn, L.
Kinnoull, E.
Knollys, V.
Lauderdale, E.
Lucas, L. [Teller.]
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Masham of Ilton, B.
Merrivale, L.
Mersey, V.
Middleton, L.
Milverton, L.
Monk Bretton, L.
Mountevans, L.
Moyne, L.
Munster, E.
Murton of Lindisfarne, L.
Nelson, E.
Newall, L.
Norrie, L.
Northesk, E.
Orkney, E.
Orr-Ewing, L.
Palmer, L.
Pearson of Rannoch, L.
Pender, L.
Perry of Southwark, B.
Peyton of Yeovil, L.
Pym, L.
Quinton, L.
Radnor, E.
Rankeillour, L.
Rawlinson of Ewell, L.
Reay, L.
Renwick, L.
Rippon of Hexham, L.
Romney, E.
Rosslyn, E.
Saint Albans, D.
St. Davids, V.
Saltoun of Abernethy, Ly.
Seccombe, B.
Shaw of Northstead, L.
Skelmersdale, L.
Stodart of Leaston, L.
Strathcarron, L.
Sudeley, L.
Suffolk and Berkshire, E.
Terrington, L.
Teviot, L.
Teynham, L.
Tugendhat, L.
Vivian, L.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

19 Dec 1995 : Column 1526

3.57 p.m.

Clause 15 [Introduction]:

Lord McIntosh of Haringey moved Amendment No. 64:


Page 10, line 32, after ("officers") insert ("or officers of another investigating agency").

The noble Lord said: With this amendment we start a series of amendments to Clauses 16 and 17. I have not apologised for the amendments and I shall not do so. They seek to bring out into the open the areas of the code of practice which are not satisfactory and which will need amendment in whatever form the proposals are produced, whether they are laid before Parliament or, in the light of the Minister's recent statement, possibly subject to the approval of Parliament. In any case, the wording will have to be changed because the code of practice is simply not good enough.

An immediate example of the way in which the code is not good enough is that it appears to apply only to police investigations. The definition in paragraph 2 of the code is that,


    "the investigator is any police officer involved in the conduct of a criminal investigation".
That does not reflect the real world. The real world is that all kinds of other people are quite properly involved in criminal investigations. The most obvious example is

19 Dec 1995 : Column 1527

Customs & Excise, but there are many others. It is entirely proper that the code of practice should be drafted in such a way as to enable it to recognise the involvement of other agencies than the police in the criminal investigations process.

Amendment No. 64 proposes that Clause 15 should state that:


    "a criminal investigation is an investigation conducted by police officers or officers of another investigating agency".
It is important that we are clear about this. The investigator is a very important person in the process--not because he is himself important in the process, but because of the responsibilities and powers that befall him when he is, in particular, producing a schedule of evidence to go to the prosecution.

In later amendments we shall point out the unsatisfactory fact that an investigator for this purpose can be any police officer. It could be the most junior police officer on the investigation team. It could, of course, be the only police officer on the investigation team in very simple cases. That would be perfectly acceptable. But there is insufficient provision to make sure either that the definition of the investigating team is wide enough, or that the person responsible ultimately to the court and to the criminal justice process for the preparation of material leading up to the criminal justice process is of sufficient seniority and responsibility. Many of our amendments will touch on those points.

I venture to think that this amendment is relatively simple. We are looking for the code to be redrafted to cover investigating agencies other than the police. We are perhaps looking forward to a Bill that will further involve the security services in the investigation of crime although we do not know whether or when such legislation will come. In either event we believe that this is a helpful and constructive amendment in relation to the provisions for the code of practice. I beg to move.

4 p.m.

Baroness Blatch: I hope completely to allay the noble Lord's concerns on this matter. The amendment widens the definition of a criminal investigation in Clause 15 to include investigations conducted by officers of another investigating agency as well as by police officers. Because Clause 16 refers to criminal investigations, the amendment ensures that the code of practice prepared under Clause 16 is a code for all investigators as well as for the police. That means officers of Her Majesty's Customs and Excise, Serious Fraud Office inspectors, local authority trading standards officers and many others.

There are two difficulties with the amendment. First, the Secretary of State who will prepare the code is my right honourable friend the Home Secretary. He will do so because under the Bill at present it is a code for police officers. It will be binding on police officers, and my right honourable friend is accountable to Parliament for their actions. If the code is for all investigators, then it is binding on them as well. It would require them to record information, to retain records of information and other material and to disclose it to the prosecutor. But

19 Dec 1995 : Column 1528

my right honourable friend is not accountable for the actions of other investigators such as those I mentioned. It would not be proper for him to prepare a code of practice which imposed responsibilities on investigators for whom he was not accountable. This amendment would accordingly require all Secretaries of State who were accountable for the actions of the officers of any investigating agency to prepare separate codes of practice, all of which would have to conform to the requirement set out in Clause 16. I am not sure that that is what the noble Lord has in mind.

Secondly, there is an important distinction between the police and other investigating agencies. The police do not prosecute criminal offences; that is the responsibility of the Crown Prosecution Service. But other agencies both investigate and prosecute. In some cases investigative and prosecutorial functions will fall to different persons in the same agency. In others, the same person may both investigate and prosecute. If the code of practice applied generally, an investigating officer would find himself certifying to his colleague next door that he had complied with the requirements of the code. He might even end up giving himself such a certificate.

To avoid those difficulties, we have chosen a different approach. The code is for police officers. But other investigators are to have regard under Clause 19 to any relevant provisions. That will enable them to adapt its requirements to their own particular circumstances.

Also, Clause 19 describes the persons who are to have regard to the code as persons other than police officers who are charged with the duty of conducting an investigation with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. That is the same investigation as the criminal investigation which police officers are charged with the duty of conducting.

The noble Lord will see in Clause 19(1) that,


    "A person other than a police officer who is charged with the duty of conducting an investigation with a view to it being ascertained ... whether a person should be charged with an offence, or ... whether a person charged with an offence is guilty of it, shall in discharging that duty have regard to any relevant provision of a code which would apply if the investigation were conducted by police officers".
The clause goes on to describe failure to comply with the code. Clause 19 therefore meets the particular concerns that the noble Lord has; other investigators will not escape having to have regard to the code.


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