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Lord Dholakia: May I ask for further clarification? I have no difficulty in accepting what the Minister said in relation to treating a police officer for this particular purpose under this clause. What would happen if the police's complaint was unjustified, however? Would the individual have recourse to the Police and Criminal Evidence Act 1984 and the Police Complaints Authority to mount a formal complaint against the police officer?

Lord Bassam of Brighton: My advice is that we do not yet know the answer to that question, and we will have to check it. The noble Lord has drawn out a useful and valid point of elucidation. We will check on it and return to the matter perhaps in correspondence, which the noble Lord could share with the other Members of the Committee.

Baroness Anelay of St Johns: I have a couple of questions, one of which the Minister may be able to answer today and one on which he may wish to reflect and write to me later.

The first question has regard to a situation in which a member of the public assaults a foreign officer while not knowing who he is. The Minister said that that member of the public would come under the offence in the legislation and would be accused of having assaulted a police officer in the course of his duty. However, what if the officer who is carrying out the surveillance takes a short time off, goes into a pub and gets involved in a punch up with people who have absolutely no idea that he is a police officer? Are the Government saying that, in those circumstances, the person who committed the assault will be accused and

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charged under this provision of having assaulted a police officer, rather than under common assault? That is my first question.

Lord Bassam of Brighton: The answer is "No".

Baroness Anelay of St Johns: Unfortunately, that is not in the Bill, so I may have to give further thought to the matter. However, I am reassured by that common-sense answer.

The second question is on a matter of sentencing policy for serious assaults, which could be important for a foreign officer if he was assaulted. The Bill gives the basic protection, in the case of ordinary assault on a police officer, of six months. What about other offences against the person—higher levels of GBH, and all that? I ask the lawyers on my left to excuse me for expressing myself in that way. I refer to the more serious offences. Undercover police officers may be subject to dangerous situations such as serious assault. Does the Minister propose that sentencing guidelines in such cases should take account of the fact that the person is a police officer if someone is accused of GBH against them? Do the Government foresee that as a natural consequence of the Bill? Have the Government turned their mind to that scenario?

Lord Bassam of Brighton: The noble Baroness raises an important question on a serious issue. It may be a matter to which we should give some thought, but we have not done so as yet. She invited us to consider it, perhaps not at leisure but over a longer time frame. We shall happily do so and respond accordingly, and share that response with other Members of the Committee.

Lord Carlisle of Bucklow: Are not guidelines a matter for the judiciary rather than the executive?

Lord Bassam of Brighton: The noble Lord, Lord Carlisle, is absolutely right in terms of sentencing, which is a matter for the judiciary. However, the guidance is important, and it is important that we are clear on the matter in the Committee and the House as a whole.

Baroness Anelay of St Johns: I am grateful to my noble friend Lord Carlisle for always saying the correct thing. At present, sentencing guidelines are a matter for the judiciary, although we know that there are proposals from the Home Office to give guidance on sentencing guidelines. We shall see what happens in that regard. Are the Government going to change other offences so that there is a more serious approach if a serious assault is committed on someone carrying out surveillance under the New Section 76A? At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 agreed to.

On Question, Whether Clause 85 shall stand part of the Bill?

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Lord Carlisle of Bucklow: I wish merely to probe whether this clause gives the answers to the problems that we found in Clause 83(5). The subsection states:


    "An officer is not to be subject to any civil liability in respect of any conduct of his which is incidental to any surveillance".

We discussed at the time how wide the provision went and whether it included acts of negligence in driving and matters of that kind.

Clause 85(2) refers to,


    "unlawful conduct by that person in the course of carrying out the surveillance".

Is it intended that conduct that is incidental to the surveillance can nevertheless be misconduct? In other words, can an action be brought for misconduct against a person when the conduct occurs in pursuance of surveillance? If so, does the word "misconduct" go wide enough to envelop the word "negligence"? In other words, if an officer is negligent in implementing the surveillance—that is, by following a man in a car at speed—as a result of which someone is injured, does that negligence make it unlawful conduct of the kind covered by the clause? Will the injured person have a remedy under Clause 85?

The clause is probably intended to do something entirely different, but it occurred to me that this might be an answer to the issue of whether there is a means of redress for a citizen injured as a result of the negligence of a pursuing officer.

Baroness Anelay of St Johns: Perhaps I may add a word or two to that. Since the debates last week, I have studied the Bill more closely and I remain unhappy. Like my noble friend Lord Carlisle, I had hoped that Clause 85 might provide an answer.

Last week the Minister was given a helpful briefing to the effect that there would be cover for anyone injured because, under Clause 83, the director of NCIS would pay up. However, when one looks closely at the provisions of previous Bills, it seems that the director of NCIS covers the person involved if he is an employee, but not necessarily in the circumstances envisaged in the Bill.

When we get to Report stage we may be accused again of dancing on the head of a pin, but we want to ensure that no innocent member of the public, who is not a party to any surveillance, incurs injury and then finds that he has no recourse to damages against the officer concerned.

I shall be interested to hear what the Minister has to say. Having had this morning, over breakfast, an hour's seminar with my husband on the issue of civil liability, I am certainly looking forward to the Report stage.

Lord Bassam of Brighton: I am beginning to wish that I had shared that seminar. No doubt the breakfast would have been beneficial as well. I do not want to get out of my depth. My partner is a lawyer but I am not sure that she would be able to advise me with quite the expertise with which the noble Baroness's husband has obviously advised her.

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It is worth reminding ourselves that Clause 85 is simply a mechanism to provide that persons can be sued—for example, for negligence on the road. That is its application. New Section 76A(5) in Clause 83 provides that there will be no liability for incidental conduct.

The noble Lord, Lord Carlisle, has raised some valuable points and I should like to study what he said in posing his questions. With the leave of the Committee, we will now move on from Clause 85. We should like to consider the points that have been made. If there are any outstanding issues, I shall give a more precise response to these important questions through correspondence.

Lord Carlisle of Bucklow: I am grateful to the Minister for that answer. The real problem is that if a person is driving a car negligently, he will be, presumably, guilty of careless driving and therefore his conduct will be unlawful. However, a person may commit other acts of negligence which do not amount to unlawful conduct but which may cause injury to a third party for which, under normal law, he would be liable. I am inquiring about the relationship between the words "unlawful" and "negligent".

Lord Bassam of Brighton: I do not believe that we can take the matter further today. I hope that Members of the Committee will endorse the clause.

Clause 85 agreed to.

Clauses 86 to 88 agreed to.

Clause 89 [False monetary instruments: Scotland]:

4.45 p.m.

Baroness Carnegy of Lour moved Amendment No. 156:


    Page 58, line 22, leave out "or believes to be" and insert "is"

The noble Baroness said: The clause deals with false monetary instruments in Scotland, and is the twin to Clause 88, which deals with England, Wales and Northern Ireland. The Scottish clause is different, and longer, for a variety of reasons.

This is a probing amendment tabled by my noble friends and myself after discussion with the Law Society of Scotland. The Government's Explanatory Notes explain that, as the law stands in Scotland though not in England,


    "forgery itself is not a crime and only becomes so when a false instrument is uttered as genuine".

"Uttered" means that it is handed over.

If the whole of the United Kingdom is to comply with the framework directive, it is necessary to create a new crime in Scotland. That is done in Clause 89, which inserts into the Criminal Law (Consolidation) (Scotland) Act 1995:


    "(1) A person who counterfeits or falsifies a specified monetary instrument with the intention that it be uttered as genuine is guilty of an offence".

That I understand. My problem is with subsection (2), which creates a second offence. I particularly want to query subsection (2)(a).

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The subsection states:


    "A person who has in his custody or under his control, without lawful authority or excuse—


    (a) anything which is, and which he knows or believes to be, a counterfeited or falsified specified monetary instrument . . . is guilty of an offence".

I do not want to query subsection (2)(b), which follows.

If one has forged items and one knows that one has them, that is clearly an offence. However, the Law Society asks me and I am asking the Minister how it can be an offence to believe that one possesses something forged if it turns out that it was not forged. If I have a 10 note and have been told that it is forged but I do not intend to use it in any way and it turns out not to be forged, how can that be an offence?

Surely subsection (2) should add that the intention is to hand over or "utter" the document. If it does not say that, surely "or believes" should be omitted. That is the Law Society's question. I beg to move.


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