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Baroness Anelay of St Johns: That has been helpful. In introducing this and the previous amendment, I should have placed on record the fact that we recognise that the Government have fulfilled their commitment given in another place to my honourable friend Nick Hawkins that the codes of practice would be produced so that they could be considered in Committee in this place. The Minister is right: the codes arrived just before Committee, and I have not read each and every word in detail, but I am getting there, slowly.

I will consider the issue of whether the code of practice should be more clearly on the face of the Bill. The Minister's response has satisfied me with regard to the amendment, and I shall not be returning to the matter in this particular form on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 160 agreed to.

Clause 161 [Entry and search of premises on arrest]:

Lord Davies of Oldham moved Amendment No. 240A:



(a) if the person has not been convicted of the relevant offence,"

The noble Lord said: In moving this amendment, I shall speak to the other amendments in the group. I shall be brief. The amendments set out to ensure that the Bill does exactly what we want it to do, and no more.

As the Bill currently stands, the police are empowered to search for evidence in both accusation cases—that is, cases where the person has not yet been put on trial—and also in conviction cases, where the person has been convicted but has escaped from custody.

I am sure that the Committee will recognise why that might be necessary in cases where the person has yet to be put on trial. There should be no need for this power in cases where the person has already been put on trial and convicted. These amendments simply remove the power to search for evidence in conviction cases and tidy up the Bill. I hope that the Committee will agree that this is a sensible group of amendments. I beg to move.

On Question, amendment agreed to.

Lord Davies of Oldham moved Amendment No. 240B:


    Page 86, line 31, leave out "or" and insert ";

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(b) in any case, that there is on the premises evidence (other than items subject to legal privilege) relating"

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 241:


    Page 86, line 35, leave out paragraph (b).

The noble Baroness said: This amendment focuses again on situations where there is no warrant for search and seizure but the police still have the power to enter and search premises on arrest. Our concerns here are with paragraph (b) of subsection (3). It states that a relevant offence for which a constable may legitimately search for evidence could be an offence,


    "in respect of which the constable has reason to believe that a Part 1 warrant has been or will be issued, if the arrest was under section 5".

We return here to the issue raised by my noble friend Lord Hodgson on one of the earlier days in Committee when speaking to an amendment about provisional warrants. He commented that,


    "it seems reckless to say that someone may take a subjective decision about a future warrant, possibly hypothetical, and on that basis arrest a British citizen".—[Official Report, 18/6/03; col. GC 344.]

The same principle underlies our concern with paragraph (b) of subsection (3). A policeman can enter premises on arrest and search if he believes that a warrant "will be" issued. That is very close, I am sure, to infringing someone's right to privacy, especially if the police constable in question were wrong in his belief that a Part 1 warrant would be issued at some stage in the future.

The noble Lord, Lord Bassam, said in reference to Clause 5 that the provision will "hardly ever be used". We do not know that as yet. It still may be used and therefore one still has to be concerned about its use. I believe that it is important to flag up the issue when it recurs in Part 4 of the Bill. I beg to move.

Lord Filkin: I shall be relatively brief. The police powers have been added into the Bill following the case of Rottman, as my noble friend Lord Davies indicated earlier, which cast doubt on whether the provisions of PACE and police common powers extended to cases where the offence was committed abroad. The ruling in that case initially held that the police had no powers to search premises for evidence. Although that was partly overturned on appeal, it was decided that the Bill should set down in law the police powers which are available in extradition cases.

Entry and search powers were pivotal in that case. The Bill therefore ensures that in the interests of law and justice the police have the power to enter and search in extradition cases. Clause 161 allows for entry and search of premises in which the person is at the time of, or immediately before, his arrest. The constable may search such premises if he has reasonable grounds for believing that he will find evidence relating to the offence or the identity of the person. That power is available in both full order cases and provisional cases—that is, cases where arrest takes place prior to receipt of the full paperwork.

10 Jul 2003 : Column GC158

The Bill, like the legislation it replaces, allows for arrest in both full order and provisional cases. But, clearly, if the police are allowed to arrest, they must be able to carry out searches for evidence at the same time. If they were able to arrest a person in a provisional arrest case but then not search the premises where the arrest took place, even though they had reason to believe that there was relevant evidence on the premises, there would clearly be consequent dangers.

With the power of entry and search in provisional cases, vital and valuable evidence could be hidden, tampered with or lost. The amendment would remove the ability of the police to carry out a search of premises on arrest in a Part 1 provisional arrest case. For that reason, we do not believe it would be sensible.

We are dealing with a rather more narrow point here. It is the removal of the words,


    "warrant has been or will be issued",

that causes concern. Indeed, as the noble Baroness indicated, it is the same wording as features in Clause 5(1)(a), which we discussed at considerable length earlier. Clause 161 has been drafted to match Clause 5.

In earlier discussions, concerns were expressed on the power to arrest on an expected future warrant. My noble friend Lord Bassam said that we would look again at the point, and I am happy to repeat that commitment. Clearly, if we do conclude that it is necessary in some way to change Clause 5, the clause that we are now discussing will need consequential amendment, since the power of search on arrest needs to reflect closely the power of arrest.

Given that commitment, I hope that my remarks have been helpful and that the noble Baroness, Lady Anelay, will be minded to withdraw the amendment.

Baroness Anelay of St Johns: I am grateful for that response. I undertake to ensure that, on Report, this proposal will be grouped with earlier amendments which, if the Government have not tabled their own amendments, may prompt an explanation of why they do not think it necessary to come back on this point. That will cover the matter and, next time round, we may be able to have just one debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Davies of Oldham moved Amendments Nos. 241A and 241B:


    Page 86, line 39, leave out "or has been convicted"


    Page 86, line 42, leave out paragraphs (a) and (b) and insert "—


(a) if the person has not been convicted of the relevant offence, is a power to search for evidence (other than items subject to legal privilege) relating to the relevant offence;
(b) in any case, is a power to search for evidence (other than items subject to legal privilege) relating to the identity of the person.
(4A) The power to search conferred by subsection (2) is exercisable only to the extent that it is reasonably required for the purpose of discovering evidence in respect of which the power is available by virtue of subsection (4)."

10 Jul 2003 : Column GC159

On Question, amendments agreed to.

Baroness Anelay of St Johns moved Amendment No. 242:


    Page 87, line 2, at end insert—


"( ) is exercisable only if there are reasonable grounds for believing that it is necessary to seize the item in order to prevent it being concealed, lost, damaged, altered or destroyed."

The noble Baroness said: This is another of the amendments suggested to us by the Law Society of Scotland. It seeks to insert a further criterion which must be in place before the power to search under Clause 161(2) can be exercised.

Under the Bill it is possible for an application to be made for a warrant to search premises. The Law Society of Scotland believes that these additional powers under Clause 161 should be exercised only in specified circumstances and where urgency demands swift action. The amendment seeks to reflect the circumstances in which the society believes the power should be used.

I have to say, in advance of any adverse criticism by the Minister of the drafting, that we are not trying in any way to jeopardise the full recovery of any relevant evidence which could be useful for the prosecution of someone legitimately arrested for an offence abroad. That is certainly not what the Law Society of Scotland is encouraging us to do. It is in the nature of a probing amendment. I beg to move.

7.15 p.m.

Lord Filkin: I could be wrong but I do not recollect ever having criticised the drafting of any amendments proposed by the noble Baroness, Lady Anelay. That is both because they usually are well drafted and because one is mindful of the resources that the Opposition Front Bench has in this respect. But be that as it may. However, that does not mean that we shall concur with the amendment.

On the face of it, it looks sensible and attractive. Clause 161 confers the power on arrest to enter premises in order to search for evidence relating to the extradition offence or the identity of the person. The clause sets out the power to enter and search premises—subsection (2)— separately from the power to seize and retain evidence—subsection (5)—and different conditions are attached to each power.

Perhaps I can explain briefly the conditions as it will help to demonstrate that there is not a danger that the amendment seeks to remedy. The power to enter and search premises on arrest of a person is constrained by two conditions. First, the arresting officer must have reasonable grounds for believing that there is evidence on the premises relating to the extradition offence for which the person has been arrested or the identity of the person. Secondly, the officer may only search to the extent that is reasonably required to discover that evidence.

Clause 161(5) confers the power to seize and retain evidence found by the officer if the following further two conditions are met. First, the officer must have

10 Jul 2003 : Column GC160

reasonable grounds for believing that the evidence has been obtained in commission of an offence. Secondly, the officer must have reasonable grounds for believing that it is necessary to seize and retain the evidence to prevent it being concealed, lost, damaged, altered or destroyed. In drafting the clause in this way, again, we have followed the logic deployed in the formulation of Sections 18 and 19 of the Police and Criminal Evidence Act 1984.

The effect of the amendment is to transfer a condition on the seizure of evidence to the power to enter and search premises. While I can see what the noble Baroness seeks to do, and while I have some sympathy with the intent, the amendment confuses the logic of the clause somewhat. If I understand it correctly, the concern is to ensure that a search only goes ahead if the officer thinks that the evidence would be concealed or destroyed if it was not seized. In practice, however, the amendment would require an officer to judge, prior to entering the premises, whether, in the event that evidence was found, it would be necessary to seize it in order to prevent it from being concealed or destroyed. I think you will agree that this is a difficult, if not impossible, judgment to make if one does not know in advance the exact nature of the evidence one may or may not find until one has entered the premises.

In practice, it is likely that if there is even a small chance that evidence may be concealed or destroyed an officer would, in the interests of justice, take the decision to search the premises, provided the other conditions are met. In effect, it is possible that this provision will provide no additional protection.

What is important is that evidence which is not in danger of being concealed or destroyed is not seized and the Bill already provides for that. My apologies for labouring the point. I hope that I have demonstrated we do not want to confer powers on the police lightly and that we recognise that powers of entry, search and seizure must be exercised with due consideration to people's property and possessions.

In following the formulation of these powers based on domestic legislation, the conditions in Clause 161 provide that protection. We hope so. I hope that the noble Baroness, Lady Anelay, has found what I said helpful.


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