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Baroness Scotland of Asthal: It does not prohibit the officer recording and it is our intention that the ability to record will continue. I have tried to make that clear. The amendment to PACE would retain the requirement for the custody officer to ascertain what the detained person has in his possession. Perhaps the noble Lord, Lord Elton, has more difficulty than I do, but normally the only way one can ascertain what a person has is by requiring. I respectfully and humbly
Baroness Scotland of Asthal: To use the practical example, if the officer is asked, "Did you ascertain what was in the defendant's possession on the date in question?", and he replies, "Yes", he would then be asked, "What was in his possession?", and the officer would dictate the answer. The officer would then be asked, "How can you assure the court that that is an accurate record?" It would be a very silly officer who did not say, "I recorded it here and the accused signed it" or some such thing. We are looking at how such evidence will be produced. It would be a very foolish prosecutor indeed who replied, "I ascertained it but I made no note of it whatsoever".
Lord Thomas of Gresford: Why change the provision? At the moment the property is listed and the person who has been arrested signs for it. He acknowledges what has been taken away. Why remove that provision?
Baroness Scotland of Asthal: The clause allows for bureaucracy to be made slightly easier. In appropriate cases, instead of listing things item by item, one could collate and describe certain things that may have been in the defendant's possession in a more generic way. It will still be incumbent on the prosecution to establish the chain of events, make sure that no one could have interfered with anything or taken anything away. The noble Lord, Lord Thomas of Gresford, knows those arguments well, and he knows the way in which it may be suggested in a trial that something has been altered, interfered with or left behind or that something could have been done that was not done. All those arguments are grist to the mill, in the ordinary cut-and-thrust of criminal proceedings. We all know the basis on which they will be used.
The amendment would retain the requirement for the custody officer to ascertain what the detained person had in his possession but would remove the necessity always to record everything in detail. As I said, there will be cases in which, because of the nature of the offence with which one is dealing, the only prudent and responsible thing to do is to record in minute detail the precise nature and contents of what is in the accused's possession. On other occasions, that may appear to be less necessary because of the nature of the offence. I see that the noble Lord, Lord Carlisle of Bucklow, is itching to intervene, so I shall give way again.
We are probably now saying that the wording implies that there is no duty to make a record of any kind of what a person may have with him. It may be a matter of semantics, and the answer may be for the Minister to consider the clause again to see whether the wording is right or whether there are other ways of achieving the same end.
All that the proposals do is give those dealing with the matter some flexibility. At the moment, each and every item must be separately noted. The provision enables the person dealing with the matter to describe things generically and, therefore, more quickly, rather than making a more detailed list.
What the noble Lord, Lord Carlisle of Bucklow, says is right. We may have to examine the language again. I am a little surprised and concerned that so many noble Lords thought that we were suggesting that there would be no recording at all. That is absolutely not what we think. As I said, in the cut-and-thrust of ordinary criminal litigation, there will have to be a modicum of recording for any form of property. Even if it is just the minimum that I described and it all goes into a sealed bag, that will still be a record.
I am happy to consider whether we can do anything else to make it clear that we are not seeking to expunge from the procedure the requirement to make a record. We seek simply to amend the requirement that every minute item must be separately recorded in one place.
In trying to make the procedure work better, there is a hope and expectation that the pilotscurrently in five areas where we have encouraged and enabled staff from the Crown Prosecution Service to assist officers to formulate the nature of the chargewill be rolled out across the country by the end of the calendar year. Officers will not have just their own judgment as to the evidence and decisions they need to make in relation to these issues, but they will have the advice and assistance of a properly qualified member of the CPS
The Lord Bishop of Chester: I have listened to the brief debate with interest. The title of the clause is "Property of detained persons". We are dealing with the property of other people. For that reason alone an accurate record ought to be kept. If one is giving something that one owns to someone else, the very least one can expect is that an accurate record is kept. The precision of the record is a matter for debate, but the accuracy of the record is essential.
In the circumstances where people are detained in police stations, there is a lot of emotion in the air. Listening to the debate, I wonder whether the game is quite worth the candle of making the change. Certainly, the case for a change, in my view, has not been made as clearly as it might have been.
Baroness Scotland of Asthal: I absolutely agree with the right reverend Prelate that it is the accuracy that counts. Perhaps I may respectfully say that I think a great deal is being made of this. It may not be worth a candle, but I would put it the other way. All we are trying to do is something very practical and very simple which it is to be hoped will make things a little easier and a little faster both for the accused person and the officer. The right reverend Prelate is right in saying that these can be very distressing circumstances. Any of us who have had our bags totally turned out and have had to go through every item while an officer examines, looks at and notes them, know that that, too, can be very distressing and humiliating. Those of us who have gone through Heathrow and have had people examine the contents of our wash bags or handbags know to our cost that not every item in that bag would one like to be examined with the particularity that others feel they should give it.
What the defendant feels about these issues is going to be important. It would be a very foolish person who would ignore someone who was suggesting reasonably that they wanted a particular detail. By the same token, if they were being wholly unreasonable, it would be something that the officer would take into account. It cuts both ways. We are trying to ensure that we are proportionate in what we do. Many accused would be very happy simply to to be asked, "Is this your bag? Would you like to look at what is in it?" and then close the bag and have it sealed. They would find that far less painful than to have a great big trawl through all the intimate items contained therein.
That is all this clause is trying to do. I am very conscious that this was an anxiety; that it has been explained clearly; and that noble Lords thought that we were not requiring any recording. I shall take it away and determine whether we can tighten the drafting to make that clear. If we cannot, on the Pepper v Hart basis and what is said in the notes
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