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Baroness Walmsley: I wish to speak to Amendment No. 24, which is tabled in my name and that of the noble Baroness, Lady Anelay of St Johns. It is another probing amendment from the children's charities whose purpose is to ensure that children and other vulnerable groups are not subjected to the increased police powers to detain people for longer periods.

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As we heard, Clause 5 provides police powers for detaining suspects before any charge is made beyond 24 hours and up to 36 hours for any arrestable offence, and allows detention for a whole range of non-serious and in many cases very minor offences. The children's charities are concerned that the provision will lead to increased detention periods for children and believe that that should be weighed against what we know about how harmful periods of detention can be. The measures seem disproportionate, given the range of offences involved.

Amendments were tabled on Report in another place to delete the provision on the grounds that the range of offences being brought into it was not warranted. The Home Affairs Select Committee also expressed considerable concerns at the provision and is opposed to its introduction.

It is widely accepted that the numbers involved will be extremely small. However, the provision represents a dramatic lowering of the threshold for the significant deprivation of liberty at the behest of an individual—albeit senior—police officer without the need for magisterial involvement. Reduction of the threshold for the exercise of the power to "arrestable offences" means that offences such as football ticket touting are in effect viewed as equivalent to murder and firearms offences when consideration of extended detention is made.

The Government have said that the change is necessary in order to bring into the existing provision offences such as robbery, but that is not one of the current specified offences nor does it fall within the offences covered by the definitions in Section 116 of, and Schedule 5 to, the PACE Act. If there is real concern about particular offences, the simple course of action would either be to include robbery in the specified offences, amend the definition or accept Amendment No. 23, tabled by the noble Baroness, Lady Anelay. The recent revision of the PACE codes of practice, operational as of 1st April, saw a significant revision of the level of seniority of officers who could authorise suspension of the codes and their provisions. My noble friend Lady Harris expressed concern on that matter earlier. The result is that the majority of decisions are now exercised by officers at the level of inspector, or even a suitably qualified sergeant. The children's charities are concerned that a future revision of the code would move the decision making for the increased powers to detain to those levels.

The organisations believe that it is essential to prevent any unnecessary extension of the detention period before charge for children. Cases involving children should be treated as a matter of priority to ensure that, as required by the UN Convention on the Rights of the Child, detention is used only for the minimum appropriate time. Detaining children for up to 36 hours for a range of arrestable offences does not seem a proportional response. Therefore, I look

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forward to hearing the Minister's comments on the amendment and whether she can give the children's charities and myself any reassurance on the matter.

Lord Mayhew of Twysden: Detention without charge is a familiar feature of all totalitarian states. In the case of democratic states, it is recognised as a regrettably necessary power in jealously scrutinised circumstances. I believe that to be quite right, as I am sure the Minister does.

I endorse the remarks of my noble friend Lord Alexander of Weedon, who very helpfully reviewed Commonwealth jurisdictions and other jurisdictions elsewhere in the world to make the point that the averages are way below the law in this country now, let alone what is proposed by the clause.

I should like to ask the Minister one question and make one point. Am I right in recalling that the present 24 hours derives from the recommendation of the Philips Royal Commission in 1978, on whose work the PACE Act is founded? I believe that I am, but I cannot be absolutely certain. If that is the case, the provision has survived for very little under 20 yeas. One wonders what recent development has created the necessity in the minds of the police or the Government to enlarge it, as the clause does.

The point that I wish to make is this. Does the Minister not accept that if this is to become available to the police, there is foreseeably going to be a lesser degree of urgency in the examination of a case and the investigation of the defendant than would otherwise be the case? Those cases ought to be examined urgently when the liberty of the citizen is involved. I hope that the noble Baroness will be good enough to deal with that in due course.

Baroness Howe of Idlicote: I rise very briefly to support Amendment No. 24. In doing so I pray in aid Amendment No. 21 as it was spelled out by the noble Baroness, Lady Walmsley. The noble Lord, Lord Alexander of Weedon, outlined the consequences of the time allowed for adults. His description brought home even more firmly how much more dangerous it is in every sense of the word to detain children longer than necessary and against all our international obligations. The comments of the noble and learned Lord, Lord Mayhew of Twysden, also carry weight. Why must it take longer in this country than in other countries? Are we that inefficient in doing what we must to proceed with charges? The point requires further explanation and I hope that the Minister will be able to satisfy us all.

7.15 p.m.

Baroness Scotland of Asthal: I hope that I will be able to explain why we think that a certain increased flexibility may be needed and may assist in this matter. Of course the noble Lord, Lord Waddington, uses this as an ideal opportunity to stress the consequences of reclassification as a class C drug. I acknowledge that we are going to deal with that matter. The noble Lords, Lord Carlisle and Lord Alexander, and the noble and learned Lord, Lord Mayhew, each asked the same

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questions—why are we doing this and why is change necessary. I shall turn directly to those questions which have been echoed by the noble Baroness, Lady Howe, and, particularly in relation to children, by the noble Baroness, Lady Walmsley.

The amendments in this group provide a good basis for discussing the whole purpose of Clause 5. I hope that the nature and breadth of the discussion that we are likely to have will mean that we will not require a separate clause stand part debate and that the noble Baroness, Lady Anelay, will resist a temptation to which she succumbed on another matter.

In essence, as Members of the Committee said, Clause 5 extends the time an arrested person may be detained without charge, with the authority of a superintendent—which, I stress, is a position even more senior than inspector; I think that the noble Baroness will accept that such dizzy heights indeed represent the most senior echelons of the police—from 24 to 36 hours for any arrestable offence, rather than just serious arrestable offences. The Committee will know that serious arrestable offences are either inherently very serious, as in murder, rape or kidnapping, or specific offences producing serious consequences, such as serious injury or serious financial loss. However, as I think the noble Baroness said in relation to a number of other offences including robbery, many offences which the police will need to investigate at some length and have significant consequences for victims will not qualify as serious arrestable offences.

There is an issue as to whether in order to bring about a small, significant and important change such as extending the time, we really want to move the large volume of cases out of the arrestable offence category into the serious category. A number of other consequences would flow from that. I should say straightaway that that path was considered. However, for reasons that I shall explain, we thought that it was perhaps not the best course to take.

As the Committee will know, PACE currently allows detention without charge for longer than 24 hours only in relation to a serious arrestable offence, within the category that I have just described. A superintendent can then authorise detention up to 36 hours, and in serious cases a magistrates' court can authorise detention up to an absolute maximum of 96 hours. So the noble Lord, Lord Alexander of Weedon, should bear in mind that in that regard our structure is already significantly different from others.

As I said, serious arrestable offences are inherently very serious because of their nature. However, there are some complex offences with significant consequences for victims which will not qualify as serious arrestable offences. The detention clock, however, starts ticking as soon as the arrested person arrives at the relevant police station. Delays over which officers have no control whatever can occur throughout the process. Such delays can eat into detention time and may even prevent police officers from concluding some investigations. That problem was strongly highlighted in the recent review of PACE

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which was undertaken jointly by the Home Office and the Cabinet Office and which involved discussions with a whole range of police officers at every level. The Home Affairs Select Committee has also accepted that the current position could cause difficulties.

PACE already allows for the detention clock to be stopped in one very specific scenario, which is where the detained person is removed to hospital for medical treatment. One option might be to extend the circumstances in which the clock could be stopped to a much broader range of delays. However, that could create major administrative and bureaucratic burdens through custody officers having to stop and start a large number of clocks for a whole variety of reasons. As I know that this issue troubles the Committee, I shall in due course give examples of what has happened in practice. That may help the Committee to understand some of the difficulties with which we have regrettably had to deal.

Amendment No. 21, in the names of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, suggests limiting extended detention to offences that are triable only on indictment. Unfortunately that would have the undesirable consequence of reducing the existing scope for extended detention in relation to a number of offences which are arrestable but which can be tried either way and which may or may not be classed as serious arrestable offences. For example, theft of 100 would be an arrestable offence triable either way, either by the magistrates or by the Crown Court, whereas theft of 1 million, which is also triable either way, would be a serious arrestable offence. At present, the suspect in relation to the theft of 1 million could be kept in detention for up to 36 hours; but if this amendment were accepted, he could not. So in that regard the distinction between the serious arrestable offence and the arrestable offence would be expunged.

The solution we are proposing is to allow senior police officers a sensible but carefully controlled discretion to authorise extended detention in relation to a broader range of offences. Amendment No. 22, which was also tabled by the noble Baroness, Lady Anelay, would merely retain the current position. We cannot support that, as it has already been proven to have significant problems. Taken with Amendment No. 23—also tabled by the noble Baroness and the noble Viscount, Lord Bridgeman—it would allow for extended detention both for serious arrestable offences and for other offences specifically designated in secondary legislation. That would provide some additional flexibility, but it would not meet the broader objective of the clause, which is to allow senior officers the relevant discretion in relation to a whole set of offences which fall below the highest level of seriousness but which may nevertheless occasionally warrant longer periods of detention.

I believe that the noble and learned Lord, Lord Mayhew, said—he is right—that for the majority of cases 24 hours has sufficed and has been ample. However, it has caused difficulty in relation to some cases. The breadth of the problem is clear when one considers some of the offences which do not

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automatically qualify as serious arrestable offences. For example, as I said, they include theft, robbery, burglary, handling stolen goods, riot, threats to kill, actual bodily harm, indecent assault, blackmail, conspiracy to defraud, counterfeiting and criminal damage.

We do not think that it would be right to categorise all these and other offences as serious arrestable offences as that would open them up to a whole set of additional powers, some of which are unlikely to be appropriate; for example, the capacity for much longer detention up to 96 hours and for the police to delay the fundamental rights to legal advice and not to be held incommunicado. The Committee will appreciate that the offences can be variable in severity from the very heavy end to those which, technically, fall within the category but do not have the weight that would require the use of the additional powers.

Amendment No. 24 in the name of the noble Baroness, Lady Walmsley, concedes the general principle of allowing extended detention in relation to arrestable offences, but would limit that scope to serious arrestable offences where children or mentally vulnerable persons were involved. I say straight away that I appreciate the anxiety that the noble Baroness expressed in relation to the vulnerable, whether due to age, disability, infirmity or mental illness. We understand that. In reality, however, we do not think that what we are proposing in Clause 5 is opening up the prospect of such vulnerable individuals being held in detention for more than 24 hours in anything other than the most exceptional circumstances. We shall stress this aspect in guidance to the police, but any senior officer seeking to extend detention in such circumstances would be acutely conscious of the need for a complete justification of their action and very clear arguments to demonstrate that what they were doing was compliant with basic human rights. Nevertheless there will be rare occasions when the use of this extended power will be appropriate in relation to juveniles or the other vulnerable suspects. As I say, I fully understand the motivation behind the amendment, but I believe that it is not necessary.

It is worth re-emphasising that any authorisation for detention beyond 24 hours will continue to require the authority of a senior officer of at least superintendent rank. The range of offences potentially covered will be broader, but that process of consideration by a highly trained and experienced officer will continue. And, as now, that officer will have to be fully satisfied that the investigation is being conducted diligently and expeditiously before granting any extension whatever.

We have no reason to expect that the change we are proposing will result in large numbers of people being held in custody for extended periods. Under the current arrangements, Home Office statistics state that during 2001–2002 only 697 people were detained for more than 24 hours and subsequently released without charge. That gives us a flavour of the kind of care with which senior officers are currently operating the procedure. That is indicative of the relatively small

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number of cases in which lengthy detention is necessary and we do not think that the changes in Clause 5 will result in any huge increase. However, there will be a small set of cases where the broadened capacity will enable more investigations to be concluded effectively and avoid the consequences of rushing through investigations to beat the clock.

There is a whole set of reasons why the basic 24 hours detention period can be insufficient. I wish to give a number of examples of the species of case where we have discovered problems. For example, there may be issues linked to fitness for interview, multiple defendants to deal with or delays in connection with the provision of legal advice. Large amounts of time can also be lost obtaining translation support or the services of an appropriate adult required to support a juvenile or someone who is mentally ill. The noble Baronesses, Lady Walmsley and Lady Howe, rightly emphasised that it is important for vulnerable young people and people who are vulnerable due to their mental capacity to have people with them during the process to give them support. The problem is a practical one in that sometimes it takes considerable time to get the right people in the right place before matters can progress. As I indicated earlier, the police have provided us with many real life examples where these and other factors can cause significant problems.

One interesting case involved an allegation of making threats to kill. The suspect requested both a solicitor and a doctor, and an interpreter was also required. Several hours were used up awaiting the solicitor and consultations with him had to be interrupted when the doctor arrived. Then the interviewing process had to be suspended because the solicitor claimed that the interpreter's dialect was wrong and the suspect could not understand it. Many hours were absorbed by these interrelated delays and serious pressure was placed on the PACE clock. Therefore, the time spent in interview was short but the time spent making the necessary arrangements was not.

In another case a robbery suspect was eventually identified from fingerprint evidence, but was then arrested for another matter and transferred between police stations. When the PACE time was calculated, there was only one hour left and the superintendent concerned was not satisfied that the financial loss involved in the offence was sufficient to warrant treating it as a serious arrestable offence. Further necessary identification procedures could not be completed in the time available and eventually the suspect had to be released with no further action taken. That was the proper procedure but some would ask whether it was just in terms of the interests of justice and proceeding in relation to a case.

An interesting case involving multiple defendants saw five people, all with the same surname, arrested on suspicion of theft. The single solicitor who dealt with them all had to consult with each one individually and then participate in a complicated series of interlocking interviews. During the process one of the detainees asked for a private consultation with the solicitor and subsequently changed his story. The interviewing

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process had effectively to start all over again. That wasted a huge amount of detention time and illustrates, I hope, the severe problems which can arise in trying to deal with multiple-defendants within a reasonable timescale.

As regards medical issues, the police advised us of a case of two young men arrested in connection with a domestic burglary. Both were heavily under the influence of heroin and were examined by the police surgeon who certified them fit for detention but not for interview. Much of the initial 24 hour detention period had been absorbed before the interviewing process could even begin. In another case, a 19 year-old arrested for assaulting a police officer was kept under close supervision by the police surgeon due to drug issues. In the event he eventually had to be admitted to hospital, but by then nearly 17 hours of detention time had been used up.

The examples go on and on. For example, two 16 year-olds arrested on suspicion of theft of motor vehicles came into custody at 2 a.m. After a rest period, they were ready to be interviewed at 10 a.m. the following morning. Regrettably, no one from one of the juveniles' families was willing to attend. Difficulties in obtaining an appropriate adult from social services led to a very long delay. In the event, the interview itself took only just over half an hour, but all the delays were caused by matters wholly outside the control of the police.

Many further examples have been given to us. They basically show the logistical difficulty that there is sometimes in managing all the processes to make sure that the defendant's or the arrested person's rights are preserved, and that they get the right amount of assistance. Even when the police are trying extremely hard, they are sometimes fighting against the clock.

Rather than trying to set out a list of all those proper causes that would make the clock stop, we think it right simply to give the superintendent, in the limited number of cases where it may be appropriate, the very skilful job of deciding whether the police are prosecuting with the expedition we would wish, whether they are taking all reasonable steps, and whether their complaints and concerns in relation to what has prevented them from dealing with matters as quickly as they would wish are justified. Then he could decide whether there could be an extension.

If one looks at the breadth of offences and the species of cases where that may be necessary, one sees complexity. We understand why many of the suggestions in the amendments were made; frankly, we went through the same process when considering how to craft provisions that would not be so heavy and ponderous as to expand unnecessarily, but would target the mischief that had to be cured. With the greatest respect, we feel that we have alighted on the lightest touch that will be necessary, by giving someone of real seniority the opportunity to make those judgments on a practical basis.

I should share with the Committee the fact that the police have been very frank and conscious about the effect that some of the pressure of fighting against

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the clock may have on some of the judgments being made. They are conscious that they may sometimes be tempted to stretch the law so that a specific offence can be treated as a serious arrestable offence when the criteria are not really met. We have been made aware of cases that are clearly borderline, but that superintendents obviously feel under pressure to interpret as serious arrestable offences in order to allow time for necessary and clearly justifiable investigation work to be done.

We would rather that that temptation were taken out of harm's way, so that those superintendents who have legitimately and robustly policed the process properly will feel able to do so, and to make the sort of judgments that we would want them to make, against a clear backdrop. Of course, there will be guidance in relation to such matters.

In summary, we think that the limited and controlled extension to police discretion that the clause allows is fully justified by the practical problems that the current system causes for the police. As is currently the case, they will have to have good and demonstrable reasons to extend detention in every individual case. Such decisions will have to be taken at a senior level. If the police are to deal with crime effectively, they must have the powers and time that they need to do so. This is not a game of "10 seconds—the clock is counting—and you're out". Things must be dealt with expeditiously and well. That is why the clause should remain part of the Bill, and why we oppose the various amendments.

The noble Lord, Lord Alexander of Weedon, gave us the examples of other states. Of course, he will know that each system depends not only on one clause, but on how the whole system operates together. We would point to many parts of our system, including the benefits of the common law and where it interacts with statute, to say that we would prefer our system to any of those to which he alludes. It is probably not possible for us to review each and every system and look at the benefits and disadvantages, because all countries would probably have the conceit in the end to say that they preferred their own. It is a poor thing, but it is mine own.

7.30 p.m.

Lord Thomas of Gresford: It is typical of this Government that they should put logistical difficulty and practical problems for the police ahead of liberty and the freedom of the individual. By definition, we are dealing with offences that are not serious. If, in the period of 24 hours, the police are incapable of getting together a solicitor, interpreter or doctor for an offence that is not serious, the prisoner should be released on bail and invited to come back with his solicitor and all the necessary support at a later date.

I would really like the noble Baroness to say on what basis that cannot be done. The idea that people should be held for up to 36 hours without the intervention of the court and without charge is simply unacceptable. She should not assume because my noble friend Lady Walmsley has confined herself to

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children's issues—she has done so throughout the Bill—that we as a party are not wholly in support of the amendments. That is why we oppose the Question that Clause 5 stand part of the Bill, which we shall debate later.


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