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Wigley, Dafydd

Williams, Alan W (Carmarthen)

Williams, Rt Hon Alan (Sw'n W)

Winnick, David

Wise, Audrey

Worthington, Tony

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Wray, Jimmy

Wright, Dr Tony

Tellers for the Noes: Mr. Eric Illsley and Mr. John Spellar

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Question accordingly agreed to.

Government motions to disagree agreed to .

Subsequent Lords amendments agreed to .

Clause 32

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

Lords amendment: No. 30, in page 21, line 12, after ("questioned") insert ("under caution")

Mr. Michael: I beg to move amendment (a) to the Lords amendment, in line 1, after caution', insert--

, and after being given the opportunity to be legally represented,'.

Mr. Deputy Speaker (Mr. Geoffrey Lofthouse): With this, it will be convenient to take the following:

Amendment (b) to the Lords amendment, in line 1, after caution', insert--

and after being informed that he has a right to legal advice'. Lords amendment No. 299.

Mr. Michael: The Lords amendment would add the words "under caution" and would provide the protection that, before comment can be made on silence, the suspect should have been cautioned.

Our amendments would ensure that the suspect was given the opportunity to be legally represented or, at the minimum, informed that he has the right to legal advice.

The reason for our amendments is very simple. The sophisticated crook will be aware of his rights, will insist on being legally advised and represented, and will not be caught out by these provisions. Without the protection of legal advice, as proposed in our amendment, the vulnerable and the innocent will be put at risk. We can quote excellent authority for our proposal, because we share the view expressed by the Royal Commission on criminal justice, which said:

"The majority of us believe that the possibility of an increase in convictions of the guilty is outweighed by the risk that the extra pressure on suspects to talk in the police station, and the adverse inferences invited if they do not may result in more convictions of the innocent."

We have already gone far further than the royal commission envisaged, because the Bill would allow comment on things that were said long before a suspect reached the police station. Given the strong views of the royal commission, our amendment is the minimum acceptable to protect the innocent.

The royal commission went on to say that it believed that it would be not the professional criminal who would be most likely to be affected by the change proposed in the Bill but

"the less experienced and more vulnerable suspects against whom the threat of adverse comment would be likely to be more damaging." In discussions on the general issue of the right to silence, we proposed an alternative that would have more accurately hit the target that the Government said they

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were after-- the possibility of ambush defences-- at an early stage. I shall not reopen that question, because we are dealing with a very narrow point, which is to ensure that people receive the necessary protection under the Government's proposals.

Having failed to persuade the Government to change their mind, we have consistently sought to add safeguards to the Bill to ensure that the protection provided by the Police and Criminal Evidence Act 1984 applies. It is odd that the House should swing from trying to build in protection for the innocent to the very opposite--providing no protection at all.

In view of the Government's chosen direction, we seek to ensure that the protection offered by the previous legislation applies, especially in respect of vulnerable and innocent people. We believe that the provisions should operate only when the accused is in the police station, and that he should have access to properly qualified legal advice.

When we discussed the issue on Report, the Home Secretary felt that no additional safeguards were needed. Indeed, he said:

"I disagree with the proposition that inferences should be restricted to the period after cautioning."--[ Official Report , 13 April 1994; Vol. 241, c. 281.]

However, that is the point that the Government were forced to concede in another place, and it is the import of the amendment that we are discussing.

The Minister must consider carefully the vulnerable nature of many people accused of offences. It is right that someone who is guilty should be convicted even if he is of lower than average intelligence or ability, but it is also right that we should take account of his circumstances and ensure that there are appropriate protections. The problem was highlighted in a recent study of 160 suspects held at two police stations. Work prepared for the Royal Commission on criminal justice revealed that their mean IQ was 82--well below the average of 100--and that one in three scored 75 or below, equivalent to that of the bottom 5 per cent. of the population. My point is that such issues have been carefully considered by a royal commission; a large sum of public money was spent on ensuring that research informed the considerations of the royal commission.

The Government have taken policy decisions--what the House agreed before the Bill went to another place--but, despite those decisions, it remains appropriate for the Government to consider protection for the vulnerable. For that reason, I urge the Minister of State, Home Office, the hon. Member for Penrith and The Border (Mr. Maclean) to accept our amendments.

We are proposing that the suspect should have been given the opportunity to be legally represented before inferences could be used. The suspect may not wish to exercise his right, but he should at least have the opportunity to seek legal help and to know that that opportunity is his as a right. As I said, the sophisticated crook--the person who has been involved in offences before--will have that knowledge in any event. The people at risk will be the unsophisticated and, indeed, the innocent.

The protection we seek is all the more necessary because it is likely that many suspects will not have understood the new caution. Is that surprising, as it is hardly an object lesson in clarity? We must remember that

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we are dealing with not only guilty but innocent people; and who, at a time of stress, will understand the convoluted wording of a caution which will very often be read to them speedily? It reads: "You do not have to say anything, but if you do not mention now something which you may later use in your defence, the court may decide that your failure to mention it now strengthens the case against you. A record will be made of anything you say and may be given in evidence if you are brought to trial."

Let us consider the innocent, vulnerable person, as distinct from the sophisticated crook. The innocent, vulnerable person--indeed, the innocent person of some intelligence--may find it difficult to understand what he is being told. The sophisticated crook will not need to understand the caution, because he will have already worked out what he is going to do. We should be under no illusion that the sophisticated crook is a reason for refusing the amendment. The codes of practice under PACE currently require the police to inform a person of his right to legal advice after he arrives at a police station. People questioned before they arrive are in danger of their silence being used against them without their having been informed of their right to legal advice. In addition, the Bill as drafted would mean that if the police failed to inform a person of his right to legal advice once he or she had arrived at the police station, the court could still take into account the person's silence despite the breach of the codes of practice.

Our amendments, therefore, provide the innocent suspect with the safeguards necessary to ensure that he is not convicted and which the sophisticated suspect will always have. I commend them to the House as a means of providing a protection only where a protection is sorely needed, not as a means of taking us back to earlier arguments. I hope that the Minister will accept them.

Sir Michael Grylls (Surrey, North-West): On a point of order, Mr. Deputy Speaker. I understand that, because of a demonstration in Parliament square, people cannot leave the Norman Shaw building and that, equally important, internal mail cannot be brought here. Surely it cannot be right that such a demonstration should be allowed to interfere with the proper workings of Parliament.

Mr. Deputy Speaker: I shall ask the Serjeant at Arms to make inquiries.

The Minister of State, Home Office (Mr. David Maclean): Before deciding to move amendments Nos. 30 and 299 in another place, the Government reflected carefully on what was said in a full debate in Committee in another place on safeguards and on the provision dealing with inferences drawn from silence. The debate focused especially on clause 32, which allows inferences to be drawn from the failure to mention a fact on which the defendant later relies for his defence and which he could reasonably have been expected to mention when questioned.

A number of opinions were expressed, and the Government agreed that it should be made a condition for the drawing of inferences that a person had been warned about the possible consequences of his silence. Lords

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amendment No. 30 amends the Bill accordingly. Amendment No. 299 would make corresponding changes to Northern Ireland legislation. Regrettably, I must advise the House to reject the two amendments to Lords amendment No. 30. I have already advised the House to agree to the Lords amendment as it stands, and I have explained what the Lords amendment is and is not intended to do. Clause 32 provides that, when a defendant puts an explanation before the court which he has not previously mentioned to the police, the court can draw proper inferences from that fact.

It is based on the proposition that if an innocent person has an explanation to give, he can usually be expected to give it at the first reasonable opportunity, not store it up for use when the proceedings have developed as far as a trial. If an explanation is withheld at the earlier stage but offered at the trial, we believe that the courts should have the opportunity, which is at present denied them, to consider all the circumstances and to draw sensible conclusions.

It is common ground between the two Houses, and between the Government and the Opposition, that that process must be subject to some safeguards. The only question is how far the safeguards should extend and how far they can reasonably extend without depriving the clause of its effectiveness. The issue has been extensively discussed in both Houses.

In this House, explanations were given by the Government of the safeguards already inherent in clause 32 as drafted, in the procedures for which provision is made in the Police and Criminal Evidence Act 1984 and in the codes of practice issued under it. The House decided that clause 32 should be added to the Bill in its original form and a number of amendments, including some similar in effect to those now proposed by the Opposition, were defeated. The debate on safeguards was naturally renewed in another place and, again, a menu of comments and suggestions was made. Even among those who believe that some amendment was needed, there was no unanimity about what form it should take. The Government and the House of Lords itself had a choice to make--should any amendment be made and, if so, what route should it follow?

Eventually, however, a clear decision was reached, and it is expressed in Lords amendment No. 30. That decision was to include a requirement that a person must have been a suspect under caution but not to include further requirements similar to those now proposed by the Opposition. This House's earlier decision not to include such amendments was a deliberate decision, not a mere oversight.

Mr. Neil Gerrard (Walthamstow): I should be grateful if the Minister would explain how the new provision will apply to questioning by someone who is not a policeman. As the Minister will be aware, the clause covers questioning not only by the police but by other people, such as store detectives and possibly private security staff. Will he explain how a caution will work in such cases? 6.30 pm

Mr. Maclean: The amendment that we are accepting from the House of Lords, which I am recommending, applies to all the categories of people specified in the Bill and in earlier legislation. We do not seek to change the

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categories of people who, whether they be in Customs and Excise or in private security, may at times question suspects.

The hon. Member for Cardiff, South and Penarth (Mr. Michael) explained why, even at this late stage, he favours the Opposition amendments--or at least, he explained why he favours one of them. I shall explain briefly why I advise the House to reject both the Opposition amendments. The essential question at issue is when the possible drawing of inferences should start.

The scheme of clause 32 is to enable the court to inquire into and to draw conclusions from any contrast between what a defendant says to the court and what he said or did not say earlier. The question is: how much earlier? In the form in which clause 32 left the House for another place, the answer was: from the first moment when a person was questioned by the police. If we add Lords amendment No. 30, as I advise the House to do, the answer will be: when a person is clearly being treated as a suspect and has been given due warning. However, if we took one of the Opposition's amendments, in effect the answer would become: when the suspect is formally interviewed at a police station, having had an opportunity to talk things over with a lawyer. I must advise the House that I consider that unnecessarily restrictive. In some situations, it could prevent clause 32 from having the desirable and sensible effect of enabling the courts to look at all the circumstances.

In some situations, what a suspect says or does not say to the police immediately after being cautioned will be a good deal more telling than what he says or does not say after receiving legal advice. It is not only the Government who believe that amendments such as those urged by the Opposition would be too restrictive. The various options were carefully considered in the debate in another place, and Lords amendment No. 30, although moved by the Government, was designed to give effect to points put during that debate by the Lord Chief Justice.

On 23 May, the Lord Chief Justice said in the House of Lords: "As we have already heard, there are some . . . who would limit the comment on silence under that clause"--

that is, clause 32--

"to the police station, where all the safeguards of the defence lawyer being present and tape recording are in place. That is a somewhat too limiting restriction.

As I have suggested, there are cases in which silence at or near the scene of the crime is particularly important."--[ Official Report , House of Lords , 23 May 1994; Vol. 555, c. 523.]

I emphasise the Lord Chief Justice's words:

"at or near the scene of the crime".

That was the issue at stake when the Lords discussed the amendments before them, and that is the issue at stake today.

I advise the House to accept the Government's view, shared by the Lord Chief Justice and others in another place, that there is no injustice in allowing inferences to be drawn from an exchange that took place at or near the scene of the crime, provided that the person is on notice that he is a suspect, and that the circumstances were such that he could reasonably have been expected to offer his explanation at the time.

Mr. George Walden (Buckingham): I do not claim to be a great expert on the subject, as many of my colleagues

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are, but like many other people in this country I have a certain instinctive reservation when I hear about the right to silence being abolished--that is how the measure has been described--because we all think that a fundamental liberty is somehow at stake. Then we look into the matter more closely, and discover that it relates to inferences being drawn, and so on. So we are taken even further into the subject.

I have listened carefully to the Opposition spokesman, the hon. Member for Cardiff, South and Penarth (Mr. Michael) and to my hon. Friend the Minister. For non-experts, the matter boils down to the simple fact that we have all had drawn to our attention an increasing wave of petty crime--at least, I assume that most hon. Members have had that experience. My constituency, notably its chief town, Buckingham, is no exception.

Having listened to the Opposition spokesman and to the Minister, I approach the problem from the point of view of my local police station, where I say to the police, "What shall we do about the rising tide?" I do not want to exaggerate, because that does not help anyone, but there is a rising tide of petty crime in my constituency, as in many others. My local police give me frightening examples showing how their hands are tied, or at least one hand is tied behind their backs, when they try to arrest the people responsible and to achieve convictions.

I believe that the Opposition previously attempted to restrict the measure so that it did not affect magistrates courts, but that that amendment has now been dropped. That leads me be a little suspicious of their position on the subject. I start from the premise, not that there is a huge serious crime wave in my constituency--there is not--but that there is a wave of petty delinquency. The local police often know who is responsible, but they can do little about it, often for reasons connected with the right to silence.

Mr. Michael: It is only fair to clarify the situation. We proposed adopting the recommendations of the Royal Commission on criminal justice, as an alternative to the Government's approach. That would have meant a pre -trial review, which would have enabled comment to be made on issues that had not yet been raised.

The Government did not accept that, and since then we have sought to build in protections to ensure that, in attempting to catch the guilty and sophisticated--a target at which we all wish to aim--we do not accidentally catch the innocent and vulnerable. It was in order to manage that balance that we tabled the amendment, and that is the narrow point with which we are concerned.

Mr. Walden: I take note of that. We must all be frank about the fact that there have recently been serious miscarriages of justice in our country. So what the hon. Gentleman says about striking a balance is uppermost in my mind when discussing the narrow measure before us.

What swings me in favour of the Government is the fear that, if we try to refine the matter too much, we shall come down on the side of the possibly- -I stress the word "possibly"--guilty. As I keep saying, I have no expert knowledge of the higher legal arguments, but I know about the local arguments.

Common sense must guide some of us in such discussions. Last week, I was faced with a deputation of 12 local shopkeepers thinking of leaving the town of Buckingham because of a combination of low sales--I

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cannot blame those on anyone now in the Chamber--and the physical insecurity of their premises. When that happens, one begins to think that things are getting a little out of hand.

When one talks to the police, one finds that perhaps they could do something more effective about the problems if their hand were strengthened a little. Without being sentimental, I must say that I do not think that the police I know in Buckingham would take undue advantage of the legislation to browbeat supposed offenders. The hon. Member for Cardiff, South and Penarth read out the caution. Certainly the speed at which he read it could be slightly confusing for someone in the emotion of the moment. On the other hand, the caution is couched in fairly simple English, and one would hope that the legal officers concerned would read it plainly and slowly. I fail to see quite how the sense of that caution could be conveyed in more simple language.

The Government are right to resist the amendment--not because the Opposition are in any way trying to undermine the intention of the Government to ensure that criminals are brought to book and so on, because that is a slightly simplistic debate, but because, as the Minister said, there is a risk that, if we lean a little too far in the wrong direction, we could prevent this important amendment to the law from having its full effect.

Mr. Andrew F. Bennett (Denton and Reddish): I am very disappointed that the Government are insisting on proceeding with changing the right of silence. If the Government had merely insisted that people could not produce ambush defences when a case had gone to court, I would not complain at all. But if the Government are to change the rights of someone before a case reaches trial, they must demonstrate overwhelmingly that there is a need to do so.

Quite frequently I hear evidence from police officers alleging that guilty people get off and that more guilty people get off than innocent people are wrongly convicted. But it is very difficult to demonstrate that. I understand why police officers feel like that. When they are absolutely convinced that they have got the right person and the jury finds against them, they are bitter and frustrated because professionally they have failed. It therefore makes a substantial impact on them. Obviously, they are not conscious of the miscarriages of justice in the other direction, so they have tended, over a period of time, to suggest that there is a major problem. I do not see a major problem and the way in which the Government are attempting to tackle the issue is unfortunate. If we are to change the law, we must provide the protection, as my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) said, for people who may be described as vulnerable. I do not think that the Minister has grasped what often happens to my constituents. They are not well-organised people. They do not have a diary secretary who keeps a list of where they should be and organises their lives. Their lives are fairly disorganised. Their memories of what happened a week or a fortnight ago are not exact and precise, and if they are in a difficult situation, they are not likely to come up with a sensible and rational explanation. They are not

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likely to be able to balance one defence against another and they may end up by weakening their genuine defence because their first reactions are ill-considered.

Mr. David Trimble (Upper Bann): The hon. Gentleman is making his argument in favour of the Opposition amendments in terms relating to the vulnerability of particular suspects. Does he agree that the legislation merely enables a court to draw inferences from silence, but only those inferences which are proper? The circumstances in which the people being questioned--the accused--find themselves and the vulnerability of those persons would be highly relevant to what is considered a proper inference. So the hon. Gentleman is advancing matters that are already adequately provided for in the proposed legislation.

Mr. Bennett: I do not think that they are adequately provided for in the proposed legislation. If one considers certain circumstances--I was about to describe some--such as a person's response with hindsight, in many cases, one wonders why on earth that person did not give the same explanation initially. However, consider, for instance, someone who has just been chased by an alsatian dog. The alsatian grabs the person by the leg. The police officer who is handling the dog comes over and brings the dog off. There is a fair chance that, under the present proposals, the caution will be administered at that point. The first question that the police officer will ask is what the person was doing on that piece of land or what he was doing behind the building which the police officer assumes someone has just burgled and is running away from.

Afterwards, I would have thought that if it was drawn to the attention of a jury that the individual answered "I do not know", or made some other relatively irrational comment, it would be difficult to convince them that the person's genuine reason for being there was correct. If the reason was not put forward at the first possible opportunity, it would become an argument in the court. To get across to a jury that under the stress of just having been chased by an alsatian dog, somebody would not react--

Mr. Trimble: The hon. Gentleman does not trust juries.

Mr. Bennett: It is not that I do not trust juries. I think that it is difficult to put the jury into that frame of mind. Juries are supposed to be comprised of average citizens who have experienced things, but not many jurymen will have been chased by an alsatian dog and at that point had to produce rational explanations.

6.45 pm

There is the same argument when considering the whole matter of putting forward an alibi. Many of my constituents, if asked where they were on a particular occasion, would find it extremely difficult to react at that moment. Again, I suggest that many people on a jury would find it surprising, if a substantial crime was committed at a particular time, that someone could not at that immediate instant put forward their alibi. In fact, it may take quite a time for that individual to work out the circumstances. I do not agree that there is evidence of the change being necessary.

Mr. Andrew Rowe (Mid-Kent): I confess to being rather ignorant about much criminal procedure. However,

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as I understand the right to silence, it is not merely exercised at the point of caution. It is persisted with, right up until the last possible moment and to that degree. It seems that most juries who were confronted with somebody who at the time said, "I would rather not say anything, but when I have had time to collect my wits and stop panting from being pursued by the alsatian, I will tell you as much as I can", would think that that person was in a very different position.

Mr. Bennett: As I said at the beginning of my speech, as far as I understand it, there is no difference between the two parties in saying that before a matter comes to court, it is reasonable that the defence should put forward its case. In other words, we are taking away any ambush that the defence can produce of an alibi, which it is difficult at that stage for the prosecution to check. There did not seem to be any disagreement over that. The problem arose over at what stage the inference may be drawn. The Opposition have been suggesting that as long as someone has put forward his defence at some pre-trial conference, it would be sensible to draw the line there, whereas the Government have been insisting on moving it further and further forward so that the right to silence is removed at a very early stage. That seems to be where the disagreement lies.

My final administrative point is that one of the problems for the police is that we have continually changed the rules. It is all right for us legislators to imagine what will happen, but the police officer on the beat has to turn it into something practical. As my hon. Friend the Member for Cardiff, South and Penarth suggested, the proposed caution does not seem to be practical. One fears that the entire procedure will not be especially practical. It will give the police officers extra problems in administering the procedure and, therefore, it will not help us to catch more criminals. The fundamental problem is that we do not catch enough people--it is not that those people who are brought before the courts are let off. If the Government had addressed the problem of ensuring that more people were caught rather than worrying too much about the legal processes after they are caught, we would have done a lot better.

Dame Jill Knight: The hon. Member for Denton and Reddish (Mr. Bennett) has not made a good case. Is not he aware that, frequently, the problem is not that of catching the criminal, but of bringing that criminal to retribution when he is in court and is, in fact, guilty?

I want to make two brief points. A very strong case was made for a change in the law a few months ago when a man and a woman who without any question had murdered their child walked free from the court because of the right of silence. That was only the latest of many similar cases and there was much publicity about that case at the time.

We should not concern ourselves so much about the wild alsatian. The points made by the hon. Member for Denton and Reddish were more a red herring or a wild goose chase. It is absurd to suppose that a jury in a British court of law could not differentiate when given the right to

"draw such inferences from the failure"--

to speak up--

"as appear proper."

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We are concerned about an essential change in the law. Justice is about not only catching criminals, but protecting the public from criminals and ensuring that criminals receive their just desserts.

Sir Ivan Lawrence: I do not agree with my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) that the parents went free totally because of the right of silence. It has more to do with the fact that if the evidence is consistent with one as with another, the burden of proof has not been discharged and it is not possible to say which of the two parents is responsible for the killing. That is another problem.

As my hon. Friend the Minister is aware, I support the Government's proposals on the right of silence. I have advocated the removal of the right of silence for the many years that I have been a Member of this place because I wanted tape-recorded interviews. My colleagues will be aware, as I have said so on many occasions, that I am unhappy with allowing evidence to be adduced of any confession on the way to the police station unless it has been tape recorded.

Having said that, I am not completely happy with the Government's refusal to accept the Opposition's proposals. I am unhappy about having to agree, even vaguely, with anything that the Opposition suggest on law and order, for reasons that I have given on many occasions.

By excluding the right to legal advice, we are giving a suspect the opportunity to say, "I didn't explain what I was doing because, quite frankly, I was scared and I wanted a solicitor to be there to ensure that when I explained it to the police, they got it right rather than wrong." The effect of that would be that a point would be made to the jury which might make the jury say, "Well, we are not happy about this."

As the object of the exercise is to ensure that more of the guilty people are convicted, that would be better achieved by removing an excuse that an accused person will, after this, be able to use by saying, "I was scared and I needed someone to be there." That is an impressive jury point.

However, I find myself driven to the conclusion that it is inevitable that we make this kind of exclusion, although I say that reluctantly, because of the nature of the change that we are making to the right of silence and the ability to make a comment. I take on board the point made by the hon. Member for Upper Bann (Mr. Trimble). It is up to the jury. I simply want my hon. Friends to realise that it will not help us to obtain more convictions of the guilty.

Mr. Beith: I have reflected on the situation described by the hon. and learned Member for Burton (Sir I. Lawrence). Might not it be just as likely that an accused person will say, "I didn't reveal my explanation at the time because I didn't know what it would mean if I admitted to another crime, perhaps a lesser crime than the one that I was involved in; I certainly didn't want to say anything about that without legal advice"? The point that would then be made to the jury is that they should not believe anything that man says because he must clearly have other convictions.

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