House of Commons Hansard Debates for 13 Apr 1994

Clause 3 --

Supervision under secure training order

Amendments made : No. 53, in page 4, line 27, at end insert

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(5A) The probation committee or local authority shall be entitled to recover from the Secretary of State the expenses reasonably incurred by them in discharging their duty under this section.'. No. 54, in page 4, line 44, at end insert

( ) The sums required by the Secretary of State for making payments under subsection (5A) shall be defrayed out of money provided by Parliament.'.-- [ Mr. Howard. ]

Clause 7 --

Raves : Power to stop persons from proceeding

Amendments made : No. 55, in page 6, line 26, after running' insert

(or the provision and running)'.

No. 364, in page 6, line 26, after him' insert

, or (if the contract so provides) for the running by sub-contractors of his,'.--[ Mr. Howard. ]

Clause 8 --

Officers of contracted out secure training centres

Amendment made : No. 365, in page 7, line 20, leave out shall' and insert

and any sub-contractor of his shall each'.--[ Mr. Howard. ]

Clause 9 --

Powers and duties of custody officers employed at contracted out training centres.

Amendment made : No. 188, in page 7, line 33, leave out hat' and insert headgear'.--[ Mr.Howard. ]

Clause 10 --

Intervention by Secretary of State in management of contracted out training centres.

Amendments made : No. 366, in page 8, line 16, leave out shall' and insert

and any sub-contractor of his shall each'.

No. 367, in page 8, line 30, after contractor,' insert any sub-contractor of his,'.--[ Mr. Howard. ]

Clause 15 --

Interpretation of sections 7 to 14

Amendments made : No. 368, in page 10, line 22, leave out from contracted' to it' in line 23 and insert

with the Secretary of State for the provision or running (or the provision and running) of'.

No. 369, in page 10, line 32, leave out and'.

No. 370, in page 10, line 34, at end insert

; and

"sub-contractor", in relation to a contracted out secure training centre, means a person who has contracted with the contractor for the running of it or any part of it.'.--[ Mr. Howard. ]

Clause 20 --

Secure remands for young offenders

Amendment made : No. 56, in page 13, line 17, leave out young'.--[ Mr. Howard. ]

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Clause 22 --

No bail for defendants charged with or convicted of homicide or rape

Amendment made : No. 296, in page 14, line 4, at end insert ( ) a finding under section 4A(3) of the Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him ;'.--[ Mr. Howard. ]

Clause 29 --

Effect of accused's failure to mention facts when questioned or charged

6.30 pm

Mr. Tony Blair (Sedgefield) : I beg to move amendment No. 4, in page 19, line 9, after (1)', insert

The provisions of this section shall not apply to an accused (a) in respect of the time prior to his being interviewed in the police station ; and

(b) unless he has been informed of his right to legal advice from a qualified solicitor, together with an opportunity to consult that solicitor in private.

(1A)'.

Mr. Deputy Speaker : With this it will convenient to discuss also the following amendments : No. 250, in page 19, line 9, after proceedings', insert triable only on indictment'.

No. 251, in page 19, line 9 after person', insert (other than a child)'.

No. 248, in page 19, line 9, after offence', insert

or in any proceedings to commit an accused for trial'. No. 253, in page 19, leave out lines 11 to 14 and insert (a) at any time when being interviewed at a police station or other premises in accordance with the provisions of the Police and Criminal Evidence Act 1984, and on being questioned by a constable in relation to an offence, failed to mention any fact relied on in his defence in those proceedings ; or'.

No. 316, in page 19, line 19, after be' insert

and provided that such questioning or charging shall have been tape- recorded in accordance with the provisions of the Police and Criminal Evidence Act 1984.'.

No. 247, in page 19, line 20, after applies', insert

unless the court is of the opinion that it is not in the interests of justice in all the circumstances for that subsection to apply'. No. 319, in page 19, leave out lines 21 to 34.

No. 31, in page 19, leave out lines 33 to 35.

No. 313, in page 19, line 34, leave out (c)'.

No. 249, in page 19, line 34, leave out court or'.

No. 320, in page 19, line 36, at end insert

provided that the evidence given in accordance with subsection (1) above is not by itself to be considered sufficient evidence that there is a case to answer.'.

No. 252, in page 19, line 44, at end insert

(5) Subsection (2) above shall not apply unless the accused was told in ordinary language prior to being questioned by a constable about the offence

(a) what the effect of this section would be if he fails to mention any such fact as described in subsection (1) above ; and

(b) his entitlement to consult a solicitor in private before being interviewed about the offence at the police station ; and (c) the facts available to any constable at the time supporting the accused's involvement in the offence.'.

No. 246, in page 20, line 11, after occurred', insert

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(a) by reason of the accused person suffering from mental disorder or mental handicap or was due to his capacity to understand the significance of or respond to questions being impaired for any other reason ; or

(b)'.

No. 314, in page 20, line 11, at end insert

(7) Subsections (1) and (2) shall not apply unless the accused was told in ordinary language by the constable (when being questioned in the circumstances of subsection (1)(a) above) or by the charging officer (in the circumstances of subsection (1)(b) above) what the effect would be of his failure to mention any fact relied on in his defence in those proceedings.'.

No. 5, in clause 30, page 20, line 12, leave out from beginning to end of line 18 on page 21.

No. 309, in page 20, line 12, after (1)' insert

At the trial of any person for an offence, the court or jury, in determining whether the accused is guilty of that offence, may draw such inferences from the failure of the accused to give evidence as appear proper.

(2) Subsection (1) above shall not apply where

(a) the accused is a child ; or

(b) the accused's guilt is not in issue ; or

(c) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ; or (d) the court, in the exercise of its general discretion considers the application of subsection (1) to be inappropriate.

(3) Where the accused is unrepresented by counsel or solicitor the clerk of the court shall inform him in ordinary language what the effect of his failure to give evidence will be provided that (a) subsection (2) above does not apply, and

(b) where the trial is by jury, the information shall be given in the absence of the jury.'.

No. 307, in page 20, leave out from (1) in line 12 to end of line 46.

Government amendment No. 333.

No. 231, in page 20, line 17, after evidence', insert or (c) it is not in the interests of justice in all the circumstances for the above-mentioned subsections to apply.'.

Government amendments Nos. 335 and 336.

No. 226, in page 20, line 21, after defence,', insert

and in the absence of the jury,'

No. 228, in page 20, line 22, leave out will' and insert may'. No. 227, in page 20, line 23, at end insert

(aa) shall tell him the grounds on which the court is satisfied that he has failed to supply an explanation upon an important issue in the case ; and'.

No. 230, in page 20, line 29, after thereupon', insert

after hearing representations from or on behalf of the accused'. No. 229, in page 20, line 29, leave out shall' and insert may'. Government amendments Nos. 337 to 339.

No. 308, in page 21, leave out lines 1 to 6.

No. 310, in page 21, line 6, leave out (7)' and insert (4)'. No. 311, in page 21, line 9, leave out (8)' and insert (5)'. No. 232, in page 21, line 9, leave out from applies' to the end of line 15 and insert

only to proceedings where the accused person was first questioned about or charged with the offence after the commencement of sections 29, 31 and 32'.

Government amendment No. 340.

No. 312, in page 21, line 16, leave out (9)' and insert (6)'. No. 254, in clause 31, page 21, line 20, after person', insert (other than a child)'.

No. 245, in page 21, line 34, after person', insert

while he is being interviewed at a police station or other premises under the provisions of the Police and Criminal Evidence Act 1984.'.

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No. 244, in page 21, line 37, after applies', insert

unless the court is of the opinion that it is not in the interests of justice in all the circumstances for that subsection to apply.'. No. 233, in page 22, line 3, after above', insert -(a)'. No. 234, in page 22, line 4 after request', insert ; and (b) his entitlement to consult a solicitor in private before being interviewed about the offence at the police station ; and (c) the facts available to any constable at the time supporting the accused's involvement in the offence.'.

No. 235, in page 22, line 10 after occurred', insert

(b) .'.

No. 236, in clause 32, page 22, line 12, after person', insert (other than a child)'.

No. 237, in page 22, line 19 after person', insert

while he is being interviewed at a police station or other premises under the provisions of the Police and Criminal Evidence Act 1968.'.

No. 238, in page 22, line 24 after applies', insert

, unless the court is of the opinion that it is not in the interests of justice in all the circumstances for that subsection to apply.'.

No. 240, in page 22, line 32, after above', insert

-(a)'.

No. 239, in page 22, line 33, after request', insert and (b) his entitlement to consult a solicitor in private before being interviewed about the offence at the police station ; and (c) the facts available to any constable at the time supporting the accused's involvement in the offence.'.

No. 242, in page 22, line 38, after occurred', insert

(b).'.

Government amendments Nos. 355, 357, 360, 356, 358 and 359.

Mr. Blair : This is an important debate concerning the issue of the right to silence, as it called, which is part of the more general principle that a person has the right under British law not to incriminate himself. The prosecution must prove guilt, and there is a presumption of innocence-- these are fundamental principles of our law.

It is not, of course, that the jury cannot know of, read about or see the accused's failure to speak or to disclose facts. They can, and juries will do so. The fact that someone has refused to speak is not inadmissible evidence, and juries know that it happens and no doubt bear it in mind.

However, the critical point is that, at present, the judge and the prosecutor cannot comment adversely upon that refusal to speak and invite the jury to draw adverse inferences of guilt. Under the terms of the Bill, they will be able so to comment.

Therefore, even if, technically, the right to silence remains, there will be in effect strong practical pressure on those who are accused to talk. That is a change in those fundamental principles of law. I do not say that fundamental principles of law can never change, but they should yield only if there is a clear benefit, and no detriment which outweighs the value of the principle.

Our conclusion, along with that of the Royal Commission on criminal justice, is that this has not been demonstrated, and that the case for changing the fundamental principles in this way has not been made. We go further, and say that it is more than merely a matter of

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high constitutional principle. There is a serious and substantial risk that, in the manner in which the Government have proceeded, we will not merely fail to convict more of the guilty, but that we are in danger of convicting more of the innocent. Those who are in primary danger from the changes will not be, as has been said, the professional and the hardened criminal, but they could well be the weak, the inadequate and the frightened.

It is self-evident to any sensible person that the circumstances in which people may be questioned and asked to disclose facts relevant to their defence, and indeed the justification for requiring them to do so, can vary enormously. There is the time when someone is first questioned by a police officer on the street, through to the police station, to the pre-trial review and finally to the trial at court. I believe that the single most extraordinary feature of the Government's proposals--what makes them chilling in their degree of political, rather than judicious, motivation-- is that they do not seek simply to abolish the right to silence in a limited or controlled way or under certain conditions. Rather, they abolish it completely, in all circumstances and without any apparent additional safeguards whatever. I would further say that they have been thoroughly disingenuous in their attempt to present their proposals as the development of thinking that has gone before.

Briefly--I know that other hon. Members wish to speak--I wish to recap a little of the history of the matter. The Home Secretary has relied heavily on the Criminal Law Revision Committee report of 1972 to justify his position. It is true that the committee did say more than 20 years ago that the right to silence should be restricted. However, even it referred to the matter primarily in terms of what is called the ambush defence ; in other words, where the accused suddenly at his trial relies on different facts, catches the prosecution by surprise and gains some unfair advantage. I could well understand the frustration of police officers in those circumstances.

In 1981, a royal commission disagreed even with that restriction on the right to silence, and said that it should remain unrestricted. In July 1987, a previous Home Secretary--now the Foreign Secretary--began to inquire again into the nature of the right to silence. Again, I would submit that the limits and the evil at which he wished to strike were clear and limited.

The right hon. Gentleman said :

"the question in my mind is not whether a suspected or accused person should have a right to remain silent through investigation and trial--he has that right and should continue to have it--but whether, when an accused person ambushes the prosecution by producing at his trial a line of defence which he has not previously mentioned to the police, the court should be precluded from drawing reasonable inferences."--[ Official Report , 18 January 1988 ; Vol. 125, c. 687.]

He later set up a working party, which concluded that the problem was the last-minute ambush defence of the prosecution.

The royal commission, which was set up some time ago and reported in July last year, considered the right to silence and commissioned research on the subject. First, it came to the conclusion that there was insufficient evidence to support the claim that that right was relied on in many cases, or that it caused great problems with the administration of criminal justice.

Secondly, it decided by a majority to retain the right to silence, but dealt with the problem of the ambush defence

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