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Lord Bach moved Amendments Nos. 75 and 76.



    Page 113, line 27, at end insert--


("(4A) An officer may also give an authorisation under sub-paragraph (1) if he has reasonable grounds for believing that--
(a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995, or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,
(b) the detained person has benefited from the offence within the meaning of that Part or Order, and
(c) by informing the named person of the detained person's detention (in the case of an authorisation under sub-paragraph (1)(a)), or by the exercise of the right under paragraph 7 (in the case of an authorisation under sub-paragraph (1)(b)), the recovery of the value of that benefit will be hindered.").

On Question, amendments agreed to.

The Deputy Chairman of Committees (Baroness Turner of Camden): In calling Amendment No. 76A, I should point that, if this amendment is agreed to, I cannot call Amendment No. 77.

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Lord Goodhart moved Amendment No. 76A:


    Page 113, line 45, leave out paragraph 9.

The noble Lord said: This is another amendment which has come on the proposal of the Law Society. It removes the requirement that a detainee can consult with his solicitor only in the sight and earshot of a police officer.

Requiring a consultation to take place in the sight and hearing of a police officer breaches the principle that a consultation between a suspect and his solicitor is confidential and protected by legal professional privilege. A suspect has a right to establish what his position is in law and what his legal rights are. He will not be able to give a full account of his situation if his explanation could then be used as evidence against him on the grounds that it had been overheard by the police officer.

Communications made between a lawyer and his client for the purposes of seeking or giving legal advice are privileged and thereby protected from disclosure. The crucial importance of the rule was reinforced by the House of Lords in a decision reported in 1995. The House of Lords said:


    "The principle which runs through all the cases ... is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence can never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence limited in application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests".

I recognise that it is not a general rule under Schedule 8 that a detainee can consult with his solicitor only within sight and hearing of a police officer. Nevertheless, the fact that in any circumstances an order can be made to that effect is one which I believe is extremely difficult to justify. I look forward with interest to hearing how the Minister does in fact defend that proposition. I beg to move.

Lord Cope of Berkeley: I do not want to anticipate too much of what the Minister will say in responding to the amendment. I think that this provision has validity and, in some cases, will be important. It is not available very easily. It has to be authorised by an assistant chief constable or a commander and can take place only in the circumstances set out in paragraph 8(4) of Schedule 8, which are serious circumstances and will not normally apply. Therefore, I am not at the moment persuaded that it would be right to accept this amendment.

Lord Bassam of Brighton: I welcome the opportunity for a short debate on access to legal advisers. We believe that we have done a very significant amount to put the position on a much clearer and consistent footing through this piece of legislation and the codes which flow from it.

First, we have put it beyond doubt in respect of all three jurisdictions that access to a solicitor may be denied essentially only where it is believed that access might compromise the ongoing investigation, and then for a maximum 48 hours. That is consistent with a

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longer period of detention under the police authority that we have discussed already. We would not expect access to be denied very often; indeed, we have no records of access being denied in terrorist cases in England and Wales in recent years. But we believe it is right, as in ordinary criminal cases under PACE, to provide for that very, very occasional possibility.

Secondly, we propose to ensure that once a person has been granted access to a solicitor, that solicitor may, save in the most exceptional of circumstances, be able to be present at all interviews. That is already the position in England and Wales under paragraph 6.8 and following of PACE code C. It is our intention, also by code, to make that the position too in Northern Ireland. For Scotland, where no equivalent of the PACE code exists, that position is achieved already by paragraph 21 of Schedule 8. Currently, this provision is in force only in England and Wales, and again our records suggest that it has not been used in terrorist cases in recent times.

Thirdly, I turn to the focus of this debate: the provision that once access to a solicitor has been granted, a police officer of the rank of assistant chief constable may authorise that interviews between the detainee and his solicitor must be in the sight and hearing of a police officer unconnected with the case and of inspector or above rank. The authorisation may be given only if the assistant chief constable believes that not to do so would compromise the ongoing terrorist investigation in one of the ways set out in paragraph 8(4) of Schedule 8.

It must be stressed that we do not envisage that this power will be used other than in the most exceptional of circumstances. The fact that an authorisation has to be granted by an officer of ACC rank or above very neatly and clearly underlines this point. The Government are anxious to provide detainees under the terrorism powers with access to a solicitor. We accept that this is a very important and fundamental right.

Just as with other issues concerning access to solicitors, we do not accept that private access is an absolute right. We accept that it is acutely uncomfortable to envisage that circumstances may arise where it is believed a terrorist investigation might in some way be compromised if private access to a solicitor were permitted, but we do believe that provision should be made. An example might be where there was intelligence that a detainee might place a solicitor under extreme duress if a private interview were held.

Paragraph 9 of Schedule 8 provides for private access to be limited in such exceptional circumstances. The threshold is very high, with authorisation at ACC rank, and any decision could be tested by judicial review which, after 2nd October, could include consideration of whether convention rights had been observed. We believe we have to provide for the case, however rare, where there are reasonable grounds for suspecting and for believing that a private interview might compromise important terrorist investigations.

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In the light of those comments, I hope that the noble Lord will reflect further on our arguments and not press his amendment.

Lord Goodhart: I thank the Minister. I shall consider what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendments Nos. 77 and 78.


    Page 114, line 6, at end insert ("or the consequence specified in paragraph 8(4A)(c)").


    Page 114, line 15, leave out paragraphs 10 to 15 and insert--


("9A.--(1) This paragraph applies where a person is detained in England, Wales or Northern Ireland under Schedule 7 or section 41.
(2) Fingerprints may be taken from the detained person only if they are taken by a constable--
(a) with the appropriate consent given in writing, or
(b) without that consent under sub-paragraph (4).
(3) A non-intimate sample may be taken from the detained person only if it is taken by a constable--
(a) with the appropriate consent given in writing, or
(b) without that consent under sub-paragraph (4).
(4) Fingerprints or a non-intimate sample may be taken from the detained person without the appropriate consent only if--
(a) he is detained at a police station and a police officer of at least the rank of superintendent authorises the fingerprints or sample to be taken, or
(b) he has been convicted of a recordable offence and, where a non-intimate sample is to be taken, he was convicted of the offence on or after 10th April 1995 (or 29th July 1996 where the non-intimate sample is to be taken in Northern Ireland).
(5) An intimate sample may be taken from the detained person only if--
(a) he is detained at a police station,
(b) the appropriate consent is given in writing,
(c) a police officer of at least the rank of superintendent authorises the sample to be taken, and
(d) subject to paragraph 9D(2) and (3), the sample is taken by a constable.
(6) An officer may give an authorisation under sub-paragraph (4)(a) or (5)(c) only if--
(a) in the case of a person detained under section 41, the officer reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a), and the officer reasonably believes that the fingerprints or sample will tend to confirm or disprove his involvement, or
(b) in any case, the officer is satisfied that the taking of the fingerprints or sample from the person is necessary in order to assist in determining whether he falls within section 40(1)(b).
(7) If an authorisation under sub-paragraph (4)(a) or (5)(c) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

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9B.--(1) Before fingerprints or a sample are taken from a person under paragraph 9A, he shall be informed--
(a) that the fingerprints or sample may be used for the purposes of paragraph 9E(4), section 63A(1) of the Police and Criminal Evidence Act 1984 and Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and
(b) where the fingerprints or sample are to be taken under paragraph 9A(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or sample.
(2) Before fingerprints or a sample are taken from a person upon an authorisation given under paragraph 9A(4)(a) or (5)(c), he shall be informed--
(a) that the authorisation has been given,
(b) of the grounds upon which it has been given, and
(c) where relevant, of the nature of the offence in which it is suspected that he has been involved.
(3) After fingerprints or a sample are taken under paragraph 9A, there shall be recorded as soon as is reasonably practicable any of the following which apply--
(a) the fact that the person has been informed in accordance with sub-paragraphs (1) and (2),
(b) the reason referred to in sub-paragraph (1)(b),
(c) the authorisation given under paragraph 9A(4)(a) or (5)(c),
(d) the grounds upon which that authorisation has been given, and
(e) the fact that the appropriate consent has been given.
9C.--(1) This paragraph applies where--
(a) two or more non-intimate samples suitable for the same means of analysis have been taken from a person under paragraph 9A,
(b) those samples have proved insufficient, and
(c) the person has been released from detention.
(2) An intimate sample may be taken from the person if--
(a) the appropriate consent is given in writing,
(b) a police officer of at least the rank of superintendent authorises the sample to be taken, and
(c) subject to paragraph 9D(2) and (3), the sample is taken by a constable.
(3) Paragraphs 9A(6) and (7) and 9B shall apply in relation to the taking of an intimate sample under this paragraph; and a reference to a person detained under section 41 shall be taken as a reference to a person who was detained under section 41 when the non-intimate samples mentioned in sub-paragraph (1)(a) were taken.
9D.--(1) Where appropriate written consent to the taking of an intimate sample from a person under paragraph 9A or 9C is refused without good cause, in any proceedings against that person for an offence--
(a) the court, in determining whether to commit him for trial or whether there is a case to answer, may draw such inferences from the refusal as appear proper, and
(b) the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper.
(2) An intimate sample other than a sample of urine or a dental impression may be taken under paragraph 9A or 9C only by a registered medical practitioner acting on the authority of a constable.
(3) An intimate sample which is a dental impression may be taken under paragraph 9A or 9C only by a registered dentist acting on the authority of a constable.

24 May 2000 : Column 704


(4) Where a sample of hair other than pubic hair is to be taken under paragraph 9A the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.
9E.--(1) This paragraph applies to--
(a) fingerprints or samples taken under paragraph 9A or 9C, and
(b) information derived from those samples.
(2) The fingerprints, samples or information may be used only for the purpose of a terrorist investigation.
(3) In particular, a check may not be made against them under--
(a) section 63A(1) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples), or
(b) Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples),
except for the purpose of a terrorist investigation.
(4) The fingerprints, samples or information may be checked, subject to sub-paragraph (2), against--
(a) other fingerprints or samples taken under paragraph 9A or 9C or information derived from those samples,
(b) relevant physical data or samples taken by virtue of paragraph 22,
(c) any of the fingerprints, samples and information mentioned in section 63A(1)(a) and (b) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples),
(d) any of the fingerprints, samples and information mentioned in Article 63A(1)(a) and (b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and
(e) fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989 or information derived from those samples.
(5) This paragraph (other than sub-paragraph (4)) shall apply to fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989 and information derived from those samples as it applies to fingerprints or samples taken under paragraph 9A or 9C and the information derived from those samples.
9F.--(1) In the application of paragraphs 9A to 9E in relation to a person detained in England or Wales the following expressions shall have the meaning given by section 65 of the Police and Criminal Evidence Act 1984 (Part V definitions)--
(a) "appropriate consent",
(b) "fingerprints",
(c) "insufficient",
(d) "intimate sample",
(e) "non-intimate sample",
(f) "registered dentist", and
(g) "sufficient".
(2) In the application of paragraphs 9A to 9E in relation to a person detained in Northern Ireland the expressions listed in sub-paragraph (1) shall have the meaning given by Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).
(3) In paragraph 9A "recordable offence" shall have--
(a) in relation to a person detained in England or Wales, the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984 (general interpretation), and

24 May 2000 : Column 705


(b) in relation to a person detained in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).").

The noble Lord said: These amendments were spoken to with earlier amendments. I beg to move.

On Question, amendments agreed to.


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