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The Solicitor-General: This has all been investigated in the greatest detail by Sir John May, whose report is available for anybody who cares to read it. The hon. Gentleman talks about rewriting the script. When rewriting the script is discussed, he should own up to doing just that, because his account of these matters does not bear the most cursory examination.

Mr. Mullin: My track record is better than yours, judged by results.

The Solicitor-General: Let me proceed with something serious and not be distracted by such trivia.

The second possible sanction available if there has been a failure to disclose is disciplinary proceedings against the police. New disciplinary arrangements are currently being developed following the Police and Magistrates' Courts Act 1994.

Thirdly, clause 25(4) requires the court to take into account, when determining any question arising in the proceedings, a failure by a police officer to comply with the code, or a failure of any other person charged with the duty of conducting an investigation to have regard to the code.

Fourthly, if new relevant information becomes available after conviction, it may form grounds for an appeal.

The new clause is defective because, as the hon. Member for Cardiff, South and Penarth observed, it contains no mental ingredient at all, in the sense that it just speaks about a failure to disclose. It does not say whether that failure is deliberate or reckless or whether there is any reasonable excuse. It says that the maximum penalty for that is five years imprisonment on indictment. But its deficiencies do not end there. I imagine that it is an example of the law of unintended effect. It is drafted so widely that it appears to take into account the defence as well as the prosecution. Accordingly, if there is a failure by the accused or his or her legal adviser to disclose, that might also be caught by the new offence. I doubt very much whether that is what the hon. Gentleman intends.

The hon. Member for Cardiff, South and Penarth said that I concentrated in Committee on the professional restraints on the Crown Prosecution Service and on counsel involved in the case. I did not concentrate on it; I referred to it, but on this occasion I do not think that it is necessary to repeat what I said in Committee. I invite the hon. Gentleman to reconsider the matter, and I hope that when he has done so he will agree that the new clause is unnecessary and withdraw it.

Mr. Michael: I have never heard such an inadequate response from a Minister. If the Solicitor-General's patience was taxed in Committee, he must suffer from patience deficiency syndrome. His patience should not

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have been taxed in Committee because we tried to have a reasonable discussion there; he must be an extremely impatient man.

The Solicitor-General's response today has been complacent in the extreme and he does neither himself nor the legal system any benefit by it. It is a great pity that he has been distracted from whatever he would otherwise have been doing by being brought before the House for the trivial matter of trying to ensure that justice is conducted in such a way that the guilty are punished and the innocent walk free. The Solicitor-General has not enhanced his reputation by the way in which he has dealt with this debate.

I explained in my introduction, to which the Solicitor-General does not seem to have listened, that the case of someone who is acting inadvertently is not affected by a requirement of recklessness because there is no need for a prosecution to follow if there is an explanation of an accidental omission. The court would be able to take that fully into account and would not have to use the top end of the penalty scale if it was inappropriate to do so. It shows a lack of confidence in the courts to suggest that they would be constrained to act in a different way.

The Solicitor-General concentrated on the position of the lawyers in his response in Committee; that is not dealt with under the new clause. I am also surprised by his suggestion that the requirement of disclosure includes the defence because it is clear that the requirement is on

"any individual or organisation to disclose material required to be disclosed to the prosecutor under the provisions of the Act."

That requirement is clear.

I am disappointed by the Solicitor-General's response; he has not engaged seriously with the serious issues before us. It is clear that he and the Government would vote against the new clause, so there is no point in taking up further time. I therefore beg to ask leave to withdraw the new clause--not because we have been wrong to raise the issue, but because there is no need to take up the time of the House following such an inadequate response.

Motion and clause, by leave, withdrawn.

New clause 15

Codes of conduct (non-police investigations)

'--(1) The Secretary of State may prepare a code or codes relating to the conduct by persons other than police officers of criminal investigations with a view to it being ascertained--
(a) whether a person should be charged with an offence; or
(b) whether a person charged with an offence is guilty of it.
(2) In preparing a code under subsection (1) the Secretary of State shall have regard to--
(a) the nature of the investigations conducted by the persons to whom the code applies; and
(b) the need to ensure that, so far as possible, persons other than police officers conduct investigations in the same manner as police officers.'.--[Mr. Michael.]
Brought up, and read the First time.

Mr. Michael: I beg to move, That the clause be read a Second time.

Madam Speaker: With this, it will be convenient to discuss the following amendments: No. 73, in clause 24, page 17, line 18, after '22', insert

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'or (Codes of Conduct (non-police investigations))'.

No. 74, in clause 25, page 17, line 33, after '(1)', insert

'If no relevant code prepared under section (Codes of Conduct (non-police operations)) has been brought into operation,',

No. 75, in page 17, line 40, leave out 'police officer' and insert 'person'.

No. 76, in clause 26, page 18, line 10, after '22', insert

'or (Codes of conduct (non-police investigations))'.

Mr. Michael: In Committee, we pointed out that it was extremely unsatisfactory for a number of investigators not to be required to operate to the standard that we required of the police. The response was that Ministers did not want to place onerous requirements on a variety of organisations that had a variety of responsibilities involving undertaking investigations. During the debate, we made it clear that we wanted to regulate the activities of and place the same onerous requirements on, for instance, customs officers, who frequently undertake investigations into criminal activities, which are comparable in every way to the work of the police. That point does not cover all their activities, and the same applies to other organisations that are sometimes involved in the investigation of criminal offences.

We took the Minister's response in Committee seriously and that is why we tabled the new clause, which we hope will cover the point rather more constructively. It would give a power to the Secretary of State to prepare a code or codes relating to the conduct of persons other than police officers who undertake criminal investigations. That means that the power lies in the hands of the Home Secretary to introduce a code for investigative organisations where it is appropriate. We also make it clear that he would have regard to the nature of the investigations being conducted by the person to whom the code applied. In responding to the debate in Committee, the Minister made the valid point that some investigations are comparable to the work of police officers, but that other investigations undertaken by a variety of public bodies are not comparable. We allow for that distinction in the new clause.

7.15 pm

We also underline the point that there is a need for persons other than police officers who conduct investigations to do so in the same manner where an equivalent matter is involved. I make the point strongly that it is the work of Customs and Excise in gathering intelligence, through central intelligence operations, and in investigating offences which is strictly comparable to the work of the police. It seems odd to suggest that, in relation to matters such as drug smuggling, different criteria should be applied to a non-police prosecuting or investigating agency from those that are stringently applied to the police, who are already far more accountable than an agency such as Customs and Excise. I again make it clear that I am talking only about the investigative functions of such agencies which are comparable to police functions.

There is a danger of confusion, arising from questions such as who is an investigator, to whom the code applies, which is not mentioned in the Bill, and which parts of the code apply to people other than police officers, if we stick to the present wording in the Bill. It merely requires other

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investigators to have regard to the code of conduct, which has been made available in draft and which specifically applies to the police. We require the highest standards to be observed by police officers. The fact that Ministers made the draft code available at a very early stage has been helpful to us. That allowed for much better and informed debate, and I place on record our thanks for the way in which Ministers made our deliberations in Committee far more fruitful as a result. The need to go down many false trails was avoided because answers had been given to us in the draft code.

At the end of the debate in Committee, I said that I hoped that the Minister would consider the points raised in the light of our constructive exchanges and that we would study the Minister's comments between the Committee stage and Report. We have done so. I believe that the new clause avoids the difficulties that the Minister highlighted in the Committee debate. It is disappointing that the Government have not tabled an amendment rather than, once again, leaving it to the Opposition. However, I stress that we have tabled an enabling new clause. It does not require the Home Secretary to use the power that it contains, but it means that, without primary legislation, it would be possible to extend a specific code to agencies other than the police.

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