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( ) In relation to any time before the commencement of section 36 of this Act, this section shall have effect as if the reference in subsection (2)(a) to the grant of an application for dismissal was a reference to the committal of the accused for trial.'.-- [ Mr. Maclean. ]

Clause 30 --

Effect of accused's silence at trial

Amendments made : No. 333, in page 20, line 13, leave out to (7)' and insert and (4)'.

No. 334, in page 20, line 16, leave out be called upon to'. No. 335, in page 20, line 18, leave out from if' to end of line 20 and insert

, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence'.

No. 336, in page 20, leave out lines 21 to 37 and insert (2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.'.

No. 337, in page 20, line 38, at beginning insert Where this subsection applies,'.

No. 338, in page 20, line 39, leave out from inferences' to end of line 40 and insert

as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.'. No. 339, in page 20, line 43, leave out refusal to be sworn' and insert failure to do so'.

No. 340, in page 21, leave out lines 16 to 18.--[ Mr. Maclean. ]

Clause 31 --

Effect of accused's failure or refusal to account for objects, substances or marks

Amendments made : No. 211, in page 21, leave out lines 38 and 39 and insert

(a) a magistrates' court, in deciding whether to grant an application for dismissal made by the accused under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial) ; ( ) the court, in determining whether there is a case to answer ; and.'

No. 212, in page 22, line 10, at end insert

( ) In relation to any time before the commencement of section 36 of this Act, this section shall have effect as if the reference in subsection (2)(a) to the grant of an application for dismissal was a reference to the committal of the accused for trial.'.--[ Mr. Maclean. ]

Clause 32 --

Effect of accused's failure or refusal to account for presence at a particular place

Amendments made : No. 213, in page 22, leave out lines 25 and 26 and insert

(a) a magistrates' court, in deciding whether to grant an application for dismissal made by the accused under


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section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial) ;

( ) the court, in determining whether there is a case to answer, and'.

No. 214, in page 22, line 38, at end insert

( ) In relation to any time before the commencement of section 36 of this Act, this section shall have effect as if the reference in subsection (2)(a) to the grant of an application for dismissal was a reference to the committal of the accused for trial.'.--[ Mr. Maclean. ]

Clause 33 --

Interpretation and savings for sections 29, 30, 31 and 32

Amendment made : No. 215, in page 23, line 4, leave out be committed' and insert

have the proceedings against him transferred to the Crown Court'.--[ Mr. Maclean. ]

Clause 43 --

Circuit judges to act as judges of criminal division of Court of Appeal

Amendment made : No. 341, in page 31, leave out lines 23 and 24.--[ Mr. Maclean. ]

Clause 44 --

Expenses in criminal appeals in Northern Ireland Court of Appeal

8.30 pm

Mr. Trimble : I beg to move amendment No. 63, in page 32, leave out lines 17 and 18 and insert

(3) This section shall apply to any decision or review of the Master (Taxing Office) made after 25th July 1991.'

I apologise to the hon. Member for Berwick and East Lothian (Mr. Home Robertson), whom I had to jump over to reach my seat in time. The amendment is a small point, concerning costs in criminal appeals in Northern Ireland. I am delighted that the Government introduced what is now clause 44, because it emerged some six years ago in Northern Ireland that there was a serious gap in our legislation. There had been a provision for the assessment of costs in criminal appeals and a provision for appeals from that assessment. However, as a result of what was a legislative slip up in 1978, the right of appeal disappeared. That was not realised until 1988, in the Weir and Higgins' application. It became clear in 1988 that the right of appeal had been lost.

The obvious thing to do was remedy the omission. I am glad that the Government have done so by introducing clause 44. When they introduced that clause in Committee, I thought that the matter was uncontroversial. At that time, I was not aware that a judicial review was proceeding through the courts in Northern Ireland to test the right to appeal. That judicial review, which was heard by Mr. Justice Kerr and is currently on appeal, was funded by the Law Society of Northern Ireland because of its desire to test the issue and to try to establish a right of appeal.

In those circumstances, and because the mistake was not discovered until 1988, it is not unreasonable to ask for the legislation conferring the right to appeal to be made


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retrospective. That is all my amendment does. I have been told that only four or five cases would be affected. I appreciate that there may be expense involved.

In a sense, it would be better to date the retrospection back to 1988. I took advice from the solicitors involved in the case that is currently proceeding through the Northern Ireland courts and the date that is provided in the amendment relates to that. It is not a major issue ; it affects only a handful of cases. However, it is a matter of providing a remedy that was lost as a result of what appears to have been a slip-up in the legislation. Now that we are remedying that slip-up, I see no reason why the amendment should not be made retrospective, so that people should not suffer a loss as a result of what was basically a mistake made in this House.

Mr. Maclean : Amendment No. 63 is intended to give retrospective effect to the provisions in clause 44, which confer new rights of appeal against assessments of criminal legal aid costs by the taxing master in the Northern Ireland Court of Appeal. However, it does so in a highly selective manner, which I understand is designed to meet the concerns of a firm of solicitors aggrieved by the master's assessment of the costs in a particular case.

The Government do not accept that it is either necessary or practical to give retrospective effect to the new appeal rights conferred by clause 44. The present arrangements have been in operation for at least 15 years. It is worth remembering that, under the current system, both branches of the legal profession have the benefit of a full, expert and independent consideration of their entitlement to remuneration out of public funds.

The House will realise that it is both unrealistic and unnecessary to suggest that the masters or the High Court should now be required to reinvestigate and review assessments carried out over many years, and we cannot see any justification for affording special and preferential treatment to the costs assessed in any particular case. The hon. Gentleman will know that on many occasions in Committee I welcomed his wise words, and was able to say that the Government agreed with him and would put into law his desires and his amendment. Unfortunately, this is one of the rare occasions when I must disappoint the hon. Gentleman, and I hope that he understands.

Mr. Trimble : I do not wish to detain the House. I have made my point, and I do not wish to divide the House on the amendment. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn .

Amendment made : No. 342, in page 32, leave out lines 17 and 18.--[ Mr. Maclean. ]

Clause 46 --

Powers of police to take non-intimate body samples

Amendment made : No. 37, in page 33, line 30, at end insert (6) After subsection (9) there shall be inserted the following subsection

"(10) Subsection (3B) above shall not apply to persons convicted before the date on which that subsection comes into force.."'.--[ Mr. Maclean. ]


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Clause 48 --

Retention of samples in certain cases

Amendments made : No. 38, in page 35, line 21, leave out from beginning to but' in line 22 and insert

taken for the purpose of the same investigation of an offence of which a person from whom one was taken has been convicted'. No. 39, in page 35, line 26, at end add

(3B) Where samples are required to be destroyed under subsections (1), (2) or (3) above, and subsection (3A) above does not apply, information derived from the sample of any person entitled to its destruction under subsections (1), (2) or (3) above shall not be used

(a) in evidence against the person so entitled ; or

(b) for the purposes of any investigation of an offence.'.--[ Mr. Maclean .]

Clause 49 --

Samples :intimate and non-intimate etc.

Amendment made : No. 40, in page 36, leave out lines 3 and 4.--[ Mr. Maclean. ]

Clause 51 --

Power to remove trespassers on land.

Mr. John Fraser (Norwood) : I beg to move amendment No. 255, in page 36, line 29, leave out are trespassing on land' and insert have entered land as trespassers'.

Mr. Deputy Speaker (Mr. Michael Morris) : With this, it will be convenient to discuss the following amendments : No. 64, in page 36, line 30, after period', insert exceeding 48 hours'.

No. 65, in page 36, line 34, leave out

or used threatening, abusive or insulting behaviour towards the occupier, a member of his family or an employee or agent of his.'. No. 256, in page 36, leave out lines 41 to 46.

Government amendments Nos. 150, 151, 156, 157 and 152 to 155.

Mr. Fraser : I should like to speak about amendment No. 255 to clause 51 ; I will leave my Scottish friends to deal with amendments Nos. 64 and 65, and the Government to deal with their own amendments, because they do not entirely hang together.

Clause 51 is said to be directed at mass trespass, although, when the Government have cut the number down to six vehicles, I think that it should only count as a macro trespass. Clause 51 makes it a criminal offence not to leave land, having been requested to do so by a police officer, in certain circumstances, including where six or more vehicles, not people, are involved in the trespass. I suppose that that could be described as a macro trespass.

The clause also applies to more limited circumstances. For instance, it would apply to two people alone who trespass and cause damage. For instance, they may have crushed grass or hay while camping, or they may have caused nominal damage by cutting a square of turf in order to light a fire. They would be committing a criminal offence under this clause if they were requested, and then, having entered the premises as trespassers and been asked to leave, they did not do so in a reasonable time.

Amendment No. 255 restricts the offence to those who originally entered the land as trespassers, and does not


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apply it to those who subsequently became trespassers because the original permission that they were given to enter the land had been ended or withdrawn.

We do not want to take up too much time on this, but let me give one example of how it might work in a quite unexpected way. Let us take the example of two people who live in a caravan, with permission, on a caravan site, intending to be there for roughly the summer season. The owner of the site then imposes a condition--for example, something which is not uncommon on caravan sites, that they must buy a new caravan through the agency of the owner of the site. Alternatively, the owner might raise an unreasonable service charge for the site. He might then say to the two people living in the caravan that their permission to occupy the site has been terminated, notwithstanding their anticipation of being there for the entire season.

The two people involved might, quite understandably, give the site owner a bit of "verbal", which is described as threatening, abusive or insulting language. In the circumstances, I might be tempted to do the same. Yet in those circumstances, although the people did not enter the site as trespassers, and although they had permission to be there originally, they would be caught and become criminals if they did not immediately leave the site with their caravan when requested by a police officer to do so. It could involve considerable stress, loss and inconvenience to the people involved.

If we are to have the clause at all--I am unhappy about it anyway--it ought to be restricted to an invasive trespass and not be applied to what may subsequently become a trespass. If the House does not accept the amendment, the police will be placed in the invidious position of trying to decide when certain events creating a trespass took place. One can envisage an example such as I have given where relations had gone sour, anticipated arrangements had collapsed and the police were drawn into one side or other of the dispute.

We know what mischief the clause is intended to attack. I do not agree with every proposal in the clause, but we know what it is aimed at : a macro trespass or a mass trespass by vehicles. It should not be directed to the ending of a previous contractual arrangement. I hope that the Minister can sensibly accept the amendment.

Mr. Warren Hawksley (Halesowen and Stourbridge) : I congratulate the Government on tabling amendments Nos. 150 and 151, which deal with trespass on common land, about which I had previously been in touch with the Home Secretary, and amendments Nos. 156 and 157, which deal with trespass on rights of way. Both are necessary and desirable.

The point that I should like to make, as one who in a previous incarnation in the House was involved with seeing section 39 of the Public Order Act 1986 on to the statute book, is my concern about whether this power will be used. The previous power under section 39, which allowed officers to respond when 12 vehicles were present, has not been used by them to any great extent. I gather that the Association of Chief Police Officers has discouraged chief constables from using this power.

8.45 pm

I wonder whether the Minister can reassure the House that the new power, in its better and more easily used form, will be available. I have come across police officers who


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have been involved in the problem in mid- Wales and in the west midlands, who have been told not to use section 39 of the 1986 Act. What are we doing to make sure that the new clause will be used by officers ? I hope that the Minister can reassure us that he has an assurance from ACPO that it will do nothing to discourage the use of this section. Provided that he can do so, I whole-heartedly welcome the amendments.

Mr. Maclean : The Opposition amendments in this grouping constitute attempts to restrict the application of clause 51, and hence its effectiveness. Amendments Nos. 255 and 256 would do so by disapplying the clause to persons who did not enter land as trespassers but who became such subsequently. Clause 51 is a restatement and a strengthening of section 39 of the Public Order Act 1986. The Government have become concerned that section 39 does not provide adequate protection for a landowner who may have invited people on to his land, but who has had his hospitality abused as the welcome is outstayed or the activities of those on his land become unbearable. The massive invasion at Newtown, Powys in the summer of 1992 is a case in point. There, I understand, the farmer was willing to allow the odd traveller on to his land, but, when the masses arrived, he did not have available the protection of section 39. Clause 51 represents a useful addition to the powers against those who cause blight in the countryside, and I cannot accept the Opposition's amendments.

The hon. Member for Norwood (Mr. Fraser) gave an interesting example. I merely remind him that the powers of the police under this clause are discretionary. If the constable forms a reasonable belief, he may exercise his powers. I suspect that, in other hypothetical cases such as the one that the hon. Gentleman suggested--where there might be a dispute about whether they had a lease or a right to stay in a caravan on an official site--the police might be reluctant to use their powers.

In each case, there must be an interpretation of the facts at the scene as the police see them. Amendment No. 64 would prevent the police from directing travellers to leave land under the terms of clause 51 unless the police believed that the travellers were going to stay for at least 48 hours. The Government cannot accept that amendment, either.

Amendment No. 65 seeks to remove one of the triggers for the police powers to direct trespassers to leave land which are contained in clause 51. If it were carried, the fact that trespassers use threatening, abusive or insulting behaviour towards the occupier, a member of his family or an employee or agent of his would no longer be grounds for the police to take action. I find it difficult to see why the amendment should have been tabled.

New age travellers and others who trespass on land without any regard for the rights and feelings of those communities they invade are, as all sectors of the House agree, a menace.

Mr. Brian Wilson (Cunninghame, North) : If the measure is directed against new age travellers--I by no means accept the rationale for that-- why are not they mentioned in the Bill ? Why are no categories mentioned ? Does the Minister agree with the Scottish Landowners Federation, which has taken the view that "specific mischiefs" should be defined in the Bill ?

Mr. Maclean : I do not agree. The measure is not directed particularly, solely or only at new age travellers. In many parts of England--I accept that it is not a great


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problem in Scotland yet--it is a problem, and new age travellers are the main offenders, although there may be others invading land. I do not particularly like the laundry list approach to legislation--in other words, trying to define lists or categories of people. If we try to do that, the categories will inevitably change next day, next week or next year, and the law is constantly trying to chase them up. I would not care to try to define a new age traveller.

Mr. Wilson : Is not the opposite of the laundry list approach the catch-all approach ?

Mr. Maclean : It is not exactly the opposite, because it is circumscribed by certain powers, rights and duties. The police have a discretionary power, but it is not a power which they can exercise at will or willy-nilly. I do not agree with the Scottish Landowners Federation view that the laundry list is the best approach. I will not go on at length. I understand that the view of the House is perhaps to have a much more wide- ranging debate, including some Scottish elements, later. I hope that I shall be able to lay to rest some of the misconceptions which are rife in Scotland now about what may happen to the odd rambler who goes astray in the Scottish mountains. We will deal with that in another grouping.

Mr. Hawksley : Will my hon. Friend give way ?

Mr. Maclean : I will certainly take up the point raised by my hon. Friend.

It is the Government's view that, whenever we bring in new legislation, it should be operated and used, and we except the legislation to be used. We have not gone through months in Committee and the past few days in the House to pass the new powers, and then have the police not use them. It is inevitable that there will be some circular or guidance before the legislation or its various parts comes into effect. We would expect it to be used in appropriate circumstances.

We expect the present powers in the Public Order Act 1986 to be used. We will not want any excuses from any quarter about why the existing powers should not be used.

Finally, I will merely mention Government amendments Nos. 150 to 155, which seek to clarify the police powers to remove trespassers from private and common land. I was asked in Committee to do something about common land--we have done so. Government amendments Nos. 156 and 157 are technical, and seek to clarify what types of highway are covered by clauses relating to trespass and aggravated trespass and what are not. I was also pressed on that matter in Committee, and there is a clarifying amendment which I hope the House will find useful.

With those concluding remarks, I commend the Government amendments-- although, unfortunately, I will not commend the Opposition amendments to the House on this occasion.

Amendment negatived.

Amendments made : No. 150, in page 37, leave out lines 22 to 26 and insert

(7) In its application in England and Wales to common land this section has effect as if in the preceding subsections of it (a) references to trespassing or trespassers were references to acts and persons doing acts which constitute either a trespass as against the occupier or an infringement of the commoners' rights ; and


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(b) references to "the occupier" included the commoners or any of them or, in the case of common land to which the public has access, the local authority as well as any commoner.

(7A) Subsection (7) above does not

(a) require action by more than one occupier ; or

(b) constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.'.

No. 151, in page 37, line 27, at end insert

"common land" means common land as defined in section 22 of the Commons Registration Act 1965 ;

"commoner" means a person with rights of common as defined in section 22 of the Commons Registration Act 1965 ;'.

No. 156, in page 37, line 38, after of' where it appears for the first time insert

(i)' .'.

No. 157, in page 37, line 38, leave out from highway' to end of line 41 and insert

unless it falls within the classifications in section 54 of the Wildlife and Countryside Act 1981 (footpath, bridleway or byway open to all traffic or road used as a public path) or is a cycle track under the Highways Act 1980 or the Cycle Tracks Act 1984 ; or (ii) a road within the meaning of the Roads (Scotland) Act 1984 unless it falls within the definitions in section 151(2)(a)(ii) or (b) (footpaths and cycle tracks) of that Act or is a bridleway within the meaning of section 47 of the Countryside Scotland Act 1967 ;'. No. 152, in page 37, leave out lines 42 to 45 and insert "the local authority", in relation to common land, means any local authority which has powers in relation to the land under section 9 of the Commons Registration Act 1965 ;'.

No. 153, in page 37, line 46, after "occupier"', insert (and in subsection (7A) "the other occupier").'

No. 154, in page 38, leave out lines 11 to 13.

No. 155, in page 38, line 14, leave out from beginning to end of line 20 and insert

"trespass" means in the application of this section

(a) in England and Wales, subject to the extensions effected by subsection (6) above, trespass as against the occupier of the land ; (b) in Scotland, entering, or as the case may be remaining on, land without lawful authority and without the occupier's consent ; and

"trespassing" and "trespasser" shall be construed accordingly ;'.--[ Mr. Maclean. ]

Clause 52 --

Supplementary powers of seizure

Amendments made : No. 158, in page 38, line 33, after has', insert , without reasonable excuse'.

No. 159, in page 38, line 34, at beginning insert (a)'. No. 160, in page 38, line 34, leave out without reasonable excuse'.

No. 161, in page 38, line 36, leave out from control' to end of line and insert ; or

(b) entered the land as a trespasser with a vehicle within the period of three months beginning with the day on which the direction was given,

the constable may seize and remove that vehicle.'.

No. 378, in page 38, line 37, leave out "vehicle" has' and insert "trespasser" and "vehicle" have'.--[ Mr. Maclean. ]


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