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Mr. Kirkhope: On 16 May in Committee, as the hon. Member for Cardiff, South and Penarth knows, mark 1 of his proposals was put before the Committee. Sadly, I had to say that we were unable to accede to his wishes. In the following sitting on 21 May, as I said and as was reported in Hansard, he miraculously produced a derivative which I regard as mark 2. Again, I was not able really to help him. Today we have mark 3, so one cannot say that the hon. Gentleman has not been trying hard in his wish to see his proposals accepted. I am sorry to say that I cannot accept those proposals, and I shall explain why.
New clause 15 would enable the Secretary of State to prepare codes for the conduct of criminal investigations by persons other than police officers. Amendments Nos. 73 to 76 make related changes to part II of the Bill. As the hon. Gentleman has more or less confirmed, the new clause is presumably meant to ensure that if the Secretary of State prepares a code for non-police investigations, it is binding to the persons to whom it applies. However, I am not certain that the new clause would achieve that. Unlike clause 22, it does not require the code to contain provisions designed to secure that anything is done by such persons. It provides simply that the Secretary of State should have regard to the nature of a criminal investigation and ensure that it is conducted as far as possible in the same manner as if it were conducted by police officers. It is not clear what practical effect the new clause would have. Despite the hon. Gentleman's remarks, I am sure that that is the position.
Mr. Michael:
Perhaps I may help by explaining what is meant by that. The new clause states that the Home Secretary, in preparing the code, should have regard to those elements. Once it had been prepared by the Home Secretary, the code would be binding on the individuals required to observe it.
Subsection (2) of the new clause would merely ensure that the Home Secretary had regard to two elements that I understand the Minister wanted to include in the requirements placed on non-police investigating bodies.
Mr. Kirkhope:
We had a long debate in Committee on the whole question of codes as they apply to non-police investigators. We exhausted the discussion and my conclusions at the time were that codes of practice were so different and disparate, and in many ways they should be, because of the different nature of activities of certain bodies and the fact that some, such as the Health and Safety Executive, have a dual role of investigation and prosecution. I explained all that and we went through it with great care.
I know that the hon. Gentleman is trying to be helpful, but whatever he has said, I do not consider it necessary to amend the Bill as he proposes. As he knows, it already requires the Secretary of State to prepare a code of practice for criminal investigations by police officers and it requires investigators other than the police to have regard to the relevant provisions.
As I explained in Committee, that formulation was based on the precedent in the Police and Criminal Evidence Act 1984. I also explained that a number of cases since then have established that the relevant provisions of the PACE codes of practice are binding on persons other than police officers who are charged with the duty of investigating offences.
Although I fully understand why the hon. Gentleman wants to give the Secretary of State the power contained in new clause 15, we continue to believe that it is one power that he does not need to take.
Despite the hon. Gentleman's eloquence, the arguments that he made and the stamina that he displayed, we are not persuaded that the new clause is necessary or desirable. We believe that we can achieve the necessary elements without it. So, on behalf of the Government, I am afraid that I am not able to accept the new clause.
Mr. Michael:
I am grateful to the Minister for at least trying to be positive in the way that he responded, even if the answer is still a clear no. We all agree about the importance of giving the police specific and clear responsibilities. The trouble is that the Bill requires non-police investigators only to "have regard" to its provisions and to the code of conduct. To a great extent, they will decide for themselves what it means to have regard to those provisions. Therefore, the requirements on non-police investigators are far less onerous than they are on the police.
Mr. Kirkhope:
I shall not detain the House, but I should make it clear that although those investigators have only to "have regard to", as I explained, the courts will take careful note of whether they have done so, and there is plenty of evidence that that is an onerous requirement.
Mr. Michael:
I accept that it would be an onerous requirement if it were enforced by the courts, but that will not apply where it does not come to the attention of the courts. We are concerned not only with what comes to the attention of the courts, but with the ethos and method of investigating and passing on information in the process of prosecution, which investigators are required to observe.
The fact that the requirements are less onerous than those on the police is perhaps a tribute to the importance that we place on the police. However, there is a growth in investigative and intelligence activities by non-police organisations, particularly Customs and Excise, as I highlighted earlier.
Many investigating organisations also act as the prosecutor, so there is no clear separation between investigator and prosecutor, which is a strength of the structure reflected in the Bill in respect of the police.
For those reasons, we felt that the new clause was desirable and should be added to the Bill. However, it is clear that the Minister will not accept it. He has responded in a courteous way. I believe that at some point in future we shall have to return to this in amending legislation, but for today I am content for the points to have been made. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Mr. Mullin:
I beg to move amendment No. 30, in page 2, line 34, leave out from 'accused' to 'or' in line 36 and insert
Madam Speaker:
With this, it will be convenient to discuss the following amendments: No. 32, in page 2, line 34, leave out
and insert
No. 71, in page 2, line 34, leave out 'in the prosecutor's opinion'.
No. 72, in page 2, line 35, leave out 'undermine' and insert 'cast serious doubt on'.
No. 31, in page 2, line 39, after second 'material', insert
No. 33, in page 3, line 3, at end insert--', or
No. 34, in clause 7, page 5, line 25, at end insert--', or
Mr. Mullin:
The amendments address what in my view is the main defect of the Bill--that, as drafted, it allows the police and prosecution to determine what material will be made available to the defence and prevents the defence from deciding for itself what is relevant to its case. That flies in the face of the lessons that we should have learnt from the disastrous series of miscarriages of justice in the 1970s and 1980s, which inflicted so much damage on the credibility of our legal system. I am sorry if it upsets the Solicitor-General, but I repeat that deliberate or negligent
My amendments and those in the names of my hon. Friends provide the Government with a number of alternatives. In amendments Nos. 71 and 72, my hon. Friends seek to soften the effect of clause 3. That is certainly a step in the right direction, but I seek to go further. My amendment No. 30, drafted with the help of Mr. Roy Amlot QC, deletes the prosecutor's opinion from the clause and the suggestion that only evidence that undermines the defence case should be disclosed, and seeks considerably to widen the definition of what should be disclosed by obliging disclosure of any material that might be relevant to the case.
Amendment No. 31 offers an alternative. It proposes that the prosecutor must make available to the defence all material
'and which may be relevant to an issue in the case'.
'in the prosecutor's opinion might'
'might be reasonably expected to'.
'relevant to the offence or to the offender or to the surrounding circumstances of the case.'.
(c) which falls within subsection (2A).
(2A) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.'.
(c) which falls within subsection (2A).
(2A) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.'.
"relevant to the offence or to the offender or to the surrounding circumstances of the case".
Those words have been chosen with care. They are taken from recommendation 124 of the royal commission on criminal justice, which was set up by the Government precisely with a view to recommending measures that would restore confidence in the criminal justice system. Ministers are not slow to quote the royal commission when it suits them, but they rejected that recommendation, and I am seeking to implement it.
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