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Lord Mottistone: Speaking from a naval point of view, I entirely agree with what has just been said.

Lord Mayhew: I am most grateful to those who have contributed to this discussion and I am most grateful to the noble Earl for his explanation. Almost everything that has been said, especially by the noble Earl, about the safeguards against injustice and about the narrowness of the offences for which capital punishment is relevant has proved my point--that, in fact, capital punishment is non-operative in the forces. It goes without saying that it has not been used for 50 years--and everything that the noble Earl said suggested that it was infinitely unlikely ever to be used again, both because of the narrowness of the definition of the offence and because of the many, many safeguards rightly written in to prevent its abuse.

The noble Earl also mentioned the strong feelings on both sides of this debate. I examined my own and I found that my feelings are not as strong as they used to be because the question now seems academic. I do not fear that the death penalty will be imposed in my lifetime on any single serviceman or servicewoman. The tone of the debate is not like it used to be 10, 20 or 30 years ago--I can remember debates about capital punishment in this House or the other place of 40 years past--and that is because the penalty has become a relic. We have to decide whether it is a relic worth preserving. If it is a fact that the armed services wish to retain it, that is an enormously important point. I entirely agree that there are disciplinary problems facing the services, which we do not experience in civilian life. However, whether the death penalty is a deterrent to mutiny or anything else is another matter.

The noble Viscount flattered me by saying I had had great experience of action, but nothing could be further from the truth. I have had extremely limited experience

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of action, but I recall a despatch rider coming to a forward headquarters with a message at some risk and arguing against the order to return with the answer. It is when you get such a situation that you think hard about discipline and deterrents; and if I think hard about that man's mind at that time, I do not believe in his mind he had a picture of a firing squad. If he did, he might well calculate that the chance of being tried, sentenced and shot was a good bet compared with the ride back the way he had come. I do not believe that this deterrent thing is really practical.

I wish to thank the noble Earl and others who have contributed. I sense as the years go by that feelings are less strong and more practical as to what is good for the armed services and what is good for their image. I believe it is time to bring this little matter up to date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Clauses 6 to 10 agreed to.

Clause 11 [Fingerprinting of certain offenders]:

Lord Judd moved Amendment No. 5:

Page 6, line 23, leave out ("may") and insert ("shall").

The noble Lord said: I beg leave to move the amendment standing in my name and, if it is convenient to noble Lords, I would also like to speak to Amendment No. 6. I do not intend to move Amendments Nos. 7 and 8; indeed I am not quite sure why they are on the Marshalled List. Two days ago, when I noticed that they were on the list, I sent a message asking how that had happened, but the message has obviously not reached those with responsibility, and I take full responsibility myself for any confusion on this point.

I make my intervention here with some trepidation after the strictures of the noble Earl about change for change's sake on a previous amendment. I should like to take the opportunity of this rather delightful Committee system that we have in the Moses Room to probe the thinking behind the wording, why a particular form of words has been chosen, and why another form of words might not be better. We obviously want to get the best possible wording and on this matter we are dealing with quite a serious issue: we are dealing with fingerprinting without consent. I am intrigued to know, and hence the tabling of this amendment, why we have these words "may not". I quite understand that "may not" may be used in legal discussion at times in a particular way, but that does not mean that the word "may" has the same force as "shall". Hence, I wonder whether the noble Earl could tell us the rationale for using the word "may" here rather than the word "shall".

Similarly, "reasonable force" is a very subjective consideration. I must say in all honesty to noble Lords that the longer I have looked at the various formulae I have deployed, not least the formulae of my own wording here, I see that there are always problems of subjectivity. But we want to minimise the degree of subjectivity. I believe that it would be helpful if the

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Minister could perhaps justify the use of the wording used here, rather than wording which might have tied it all up a little more tightly.

Earl Howe: The noble Lord has helpfully outlined the purpose behind these two amendments; nevertheless, I must say that the first amendment seems a little obscure. The key word in line 23 seems to me to be the word "not", so that the powers provided for in the clause "may not" be exercised in the circumstances described. The Committee may consider that this makes the question of whether we talk about "may not" or "shall not" rather academic. That is certainly the view of our lawyers at any rate, and I do not know that there is any difference in the force of those two, but "may not" certainly is the more normal way of phrasing it.

The other amendment is concerned with the level of force that may be used to take fingerprints if the convicted person refuses to co-operate with the process. The clause provides for the service police to use reasonable force if necessary. The main effect of the amendment is to replace this with "the minimum necessary force". There is not likely to be a difference in the circumstances of fingerprinting for the record between "reasonable force" and "minimum necessary force". Military policemen operate on the following basis:

    "The basic principle is that a person must not use more force to achieve his lawful objective than is or he has reasonable grounds for believing to be absolutely necessary. This applies to fingerprinting as to any other activities where the use of force may be required".

We also need to be consistent here. The clause is, in effect, extending or replicating the relevant provisions of the Police and Criminal Evidence Act 1984 to service law and the service police. The 1984 Act, known as PACE, allows the use of reasonable force if necessary to obtain fingerprints. Parts of PACE procedure are already applied to fingerprinting activity by the service police. They already have powers to take fingerprints without consent during the investigation of an offence by using reasonable force. Clause 11 extends these powers to allow fingerprinting for the record after a conviction. I would suggest to the Committee that the provisions governing the use of these powers need to be as consistent as possible, both with the civilian PACE powers and the powers already exercisable by the service police. Two separate tests might confuse the courts and lead them to look for nuances and to draw distinctions which have not been intended. This points to there being powers to use reasonable force where necessary particularly since, as I have already suggested, the distinction between "reasonable" and "minimum necessary" is likely in these circumstances to be academic.

Therefore, I hope the noble Lord and the Committee will accept my assurances that the proposed amendments, while no doubt put forward with the most generous of libertarian motives, would not really achieve anything of the kind.

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Lord Judd: I am grateful to the noble Earl and I shall accept what he said. But in doing so, perhaps I may draw his attention to the fact that in what he quoted from the manual of the military police the word "must" was used which I find much more acceptable than "may" which always has the element of "perhaps" about it. However, I am not a lawyer. I am just looking at it as a layman.

I understand the spirit of what the Minister is saying. I take what he says very seriously. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Viscount of Oxfuird): If Amendment No. 6 is agreed to, I cannot call Amendments Nos. 7 and 8.

[Amendments Nos. 6 to 8 not moved.]

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Williams of Mostyn: For this afternoon's purposes, I am a conscripted private soldier in the army of my noble friend Lord Judd. There are five amendments down--all in identical terms. Anything I say will be extremely short because the amendments are simply the basis of genuine inquiry. I ought to say, now that my noble friend has departed, that I believe the explanation given by the Minister in respect of my noble friend's last two amendments was entirely correct.

I have two questions. What is the purpose of having this power at all? Can it be sensibly used? Under Clause 11(2)(b) the power may not be used,

    "after the end of the period of three months beginning with the date of the conviction".

Does that mean that if an appeal process has not been concluded within that three-month period the power lapses? Again, I do not want to take a nitpicking question which may more usefully be answered by letter but it is on this sort of occasion that one needs to test the need for the power and to see whether it is workable in practice.

There is one other relatively minor point. In Clause 11(4) "disciplinary proceedings" are subject to a definition. I shall not read it; it starts at line 35 and continues to line 40. If one goes back to page 3 of the Bill, Clause 6(3) defines "service disciplinary proceedings" in different phraseology. As the noble Earl the Minister rightly sees consistency as being important in matters of this sort, I wonder whether there is a reasonable explanation for the difference. I would be grateful if the Minister could assist by indicating what is the need for this power. There may well be good reason why, in his panoramic introduction at Second Reading, the Minister did not have the chance to deal with every such matter. This is simply a short and genuine enquiry.

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