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Lord Bassam of Brighton: My Lords, I am most grateful to the noble Baroness, Lady Anelay, for explaining her amendment again. I shall have to thank my noble friend Lord Filkin for inspiring her to table it.
As the noble Baroness said, the amendment provides us with the opportunity further to spell out what we mean. I hope that I can be brief but also demonstrate that there is not a great division of principle between us.
Let me start at the beginning. Part 4 of the Bill is concerned with the powers available to the police in extradition cases. For the first time this is being set out unequivocally in statute and I trust that all of your Lordships will welcome that.
In certain circumstances a circuit judge may make a production order requiring a person to hand over certain specified material which is either special procedure materialthat is to say, journalistic material or held in an official or professional capacityor excluded material, which covers items such as personal records held in confidence. Clause 161 of the Bill concerns such material that may be held on a computer, as the noble Baroness said, or otherwise stored in electronic form. It
I am sure that your Lordships will appreciate why this is necessary. It would clearly be pointless for the judge to order a person to hand over computer information if it was encrypted and could not be read by anyone other than its originator. This amendment seeks to insert an additional conditionthat the information in question must be "comprehensible". Clearly, there can be no great objection to that suggestion, which I am sure, knowing the noble Baroness, has been designed to be helpful. At the same time I query whether it is necessary. The phrase "visible and legible" is an exact replica of what is found in Section 20 of the Police and Criminal Evidence Act 1984. By the same token, exactly the same words are found in paragraph 7.6 of Code B made under PACE.
The Government, like the Opposition, want our legislation to be effective and clearly if there are problems with the wording of PACE, we should not be afraid to depart from it. However, in regard to this matter, I can advise your Lordships' House that there have been no problems. The words "visible and legible" have been clearly understood by all concerned. As the noble Lord, Lord Clinton-Davis, said, they are well understood. We are not aware of any cases where information has been provided in an incomprehensible form. That being so, while I am grateful for the sentiments which lay behind the tabling of the amendments, I do not believe that there is any need to depart from a well established, tried, trusted and successful formula.
I fancy that what provoked the amendment was my noble friend Lord Filkin trying to elaborate on the explanation that was provided when the debate was originally stimulated by the noble Baroness. I would guess that he was trying to elucidate further. I hope that the noble Baroness will now feel comforted and able to withdraw the amendment.
Baroness Anelay of St Johns: My Lords, the noble Lord is right to say that there is no division between us on these matters. I agree with the noble Lord, Lord Clinton-Davis, about the difficulties regarding the word "comprehensible". It is not one that I would have considered putting on the face of the Bill. As I mentioned in my opening remarks, it was tabled only because I thought that the noble Lord, Lord Filkin, had added an important new aspect to the debate regarding the format in which the information would be provided.
The noble Lord, Lord Bassam, is right to say that the words "visible and legible" have been carried on from previous legislation. I was trying to point out that sometimes one has to consider social changes in attitudes towards people who practise particular professions. Some while ago people with sight limitations may not have acted as solicitors, barristers, court clerks or magistrates. Nowadays, as discrimination is declining, although, sadly, it still exists, professions are more open to such people.
I still have a slight reservation that the material should be both "visible and legible". I was trying to broadcast more widely the fact that "visible" does not necessarily refer to the printed word. There are ways in which computer information can be presented so that it is accessible to those with sight limitations. One is not just asking for material to be produced in Braille as that is not read by all with sight difficulties.
I am grateful for the noble Lord's response but I thought that it was important to revisit the matter today so that it is more widely known that this information will be clearly available. I agree with the noble Lord, Lord Clinton-Davis, that the word "comprehensible" would cause more problems than it is worth. I beg leave to withdraw the amendment.
The noble Earl said: My Lords, Amendments Nos. 285A and 285B deal with the Scottish context for search. The police must operate under the direction of the Crown Office and Procurator Fiscal Service but the Bill is silent about this supervision in Clause 166(11). By contrast, in England and Wales the Bill gives a degree of supervision in Clause 166. Written authorisation for search must be given by an inspector or more senior rank.
In Grand Committee the Minister said, first, that the Crown Office and Procurator Fiscal Service would have a supervisory role in all aspects of extradition law in Scotland and, secondly, that a warrant for arrest would be executed only on an instruction from the Crown Office. As drafted, the Bill provides for the entry and search of premises as part of the arrest warrant. No reference is made to the police acting under further instruction from the Crown Office. It is not clear whether the arrest power will include the power of search. In order to control searches, I believe that the arrest warrant should contain specific provision for powers of search. The Crown Office would, therefore, be considering both arrest and search and instructing both. As a result, similar provision would be made for Scotland as is made for England and Wales. Extradition procedure in Scotland would be clearer. Do the Government not want that? I beg to move.
Baroness Carnegy of Lour: My Lords, this is an interesting point. I understand that when a policeman enters and searches premises in Scotland it will probably be a local policeman accompanied by a Lothian and Borders policeman. It would cause a bit of a stir if this happened, particularly in some of the remoter parts of Scotland. It will be very important indeed that it is absolutely clear that those policemen are entitled in law to do so. The idea that the warrant might contain the permission to enter and searchif
Baroness Scotland of Asthal: My Lords, of course I understand the concern raised by the noble Earl, Lord Mar and Kellie. I hope that I shall be able to explain why these provisions fit ill within the Scottish context. Both the noble Earl and the noble Baroness know well that Scots criminal law differs significantly from our own.
Baroness Scotland of Asthal: My Lords, I am grateful for that indication and apologise. The amendments merge together, as do ones that we dealt with earlier. The first two points are still correct, because Scottish criminal law makes these amendments unnecessary. I shall explain why.
As noble Lords are aware, Clause 166I think that that is the clause about which we are speakinggives police officers in England and Wales the power to enter and search premises after a person has been arrested. However, subsection (9) provides that those powers may be exercised only if a police officer of the rank of inspector or above has given authorisation in writing. As the Bill is drafted, that requirement does not apply to Scotland. The amendments seek to alter that position. However, they would introduce an unnecessary layer of supervision into the operation of entry and search-and-seizure in Scotland.
In Scotland, all cases where the powers to search are exercised are exercised by Scottish police officers under the guidance of the procurator fiscal and/or the Crown Office. No search can take place without their instruction. That is the procedure that now prevails in Scotland, and it will apply in extradition cases, too.
Let us imagine, for example, that a person is arrested under Part 1 as the result of a PNC check, and that a search of premises needs to be conducted without delay after arrest. In such cases, the first step which an officer in Scotland must take is to contact the Crown Office to obtain instructions about further action. Those instructions will relate not only to arrangements for bringing the person before the court, but to the search of any premises. The Crown Office also has responsibility for supervising all aspects of extradition law and will necessarily be involved in all extradition cases.
The amendment would require the procurator fiscal, on learning of the arrest and proposed search from the Crown Office, to apply to a sheriff for written authorisation for a constable to enter and search the premises after arrest. That adds an additional procedure which is unnecessary and not in keeping with normal procedure in Scottish criminal law.
I hope that, by that example, I have demonstrated that in Scotland the operation of police powers of entry and search-and-seizure are governed by judicial safeguards. The practice in England and Wales of obtaining authorisation from a more senior officer in such circumstances is essentially a PACE convention. We do not believe that it would be appropriate to import it into Scottish practice, where the current safeguards are robust and the practices well established. On that basis, I respectfully invite the noble Earl to withdraw the amendment.
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