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The Second Deputy Chairman: Is amendment No. 12 to be moved formally?

Ms Janet Anderson: Dame Janet, may I reply to the speech of my hon. Friend the Member for Denton and Reddish (Mr. Bennett)?

The Second Deputy Chairman: Unfortunately, it is not possible to have further debate on that group of amendments as amendment No. 1 has been withdrawn. If the hon. Lady wishes to move amendment No. 12 formally, she may do so.

Ms Anderson: No.

Mrs. Maddock: I beg to move amendment No. 30, in page 1, line 15, leave out from 'shows' to 'under' in line 17 and insert,

'that in the particular circumstances the pursuit of the course of conduct was reasonable--
(a) for the purpose of preventing and detecting crime, or'.

The Second Deputy Chairman: With this, it will be convenient to discuss the following amendments: No. 31, in page 1, line 19, leave out from 'enactment' to end of line 21.

No. 28, in page 1, line 21, at end insert 'or

(d) that it was pursued for the purpose of investigating a tort, suspected civil wrong or other matter, where a bona fide investigation is required in the interests of justice.'.

No. 6, in clause 4, clause 4, page 2, line 41, leave out from 'reasonable' to end of line 43.

Mrs. Maddock: Before the Minister replies to my speech and points out the flaws in my amendments, I should like to mention again the speed with which we had to draft them. I regret that, because of my speed in doing so, the amendments do not achieve what they were intended to do. They were intended to deal with the issue of "reasonableness", which has already been mentioned in the debate.

In clauses 1 and 4, immunity from prosecution is provided to people if they can demonstrate that they were acting for purposes of preventing or detecting crime--as all hon. Members would think sensible. Obviously, in many circumstances, tailing a suspected criminal is justified, and my intention was not to interfere with that provision. However, the Bill's wording caused me to be concerned about whether it would allow people acting to prevent or detect crime to harass other people to an unacceptable or unreasonable degree. The Bill seems to contain no such qualification.

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That issue has already been mentioned by the hon. Member for Walsall, South (Mr. George), who spoke about private detectives engaging in such behaviour. Another example which has already been mentioned in the debate is bailiffs, who may find that they are able to harass people on the basis of subsections (a) and (b). I hope that the Minister will reassure us on that matter. He has already briefly spoken about the issue of "reasonableness". The amendments' purpose was to probe that issue and to seek reassurances from the Government that people are not able to claim that they are carrying out some other, legitimate purpose when they are, in fact, harassing other people.

Mr. George: I shall speak to amendment No. 28, which is another probing amendment. I should like assurances from the Minister about the position of various people who conduct a range of legitimate investigations--they may be called private investigators, but other, more disparaging expressions, have also been used regularly. Their names do not always appear in the Yellow Pages as private investigators, but they frequently pursue investigations on behalf of the Crown--directly or indirectly--or on behalf of other organisations or individuals. I am not yet convinced--I hope to be convinced by the Minister--that sufficient thought has been given to provide the necessary defences for anyone pursuing a legitimate investigation.

8.30 pm

I tabled the amendment to allow the Minister to discuss with his civil servants the point that many private eyes undertake investigations with no criminal connotations. I mentioned earlier a list--I know that putting down a list is not conducive to gaining the Minister's support--of activities that are not directed to criminal investigations. The list includes investigating industrial accidents, matrimonial inquiries, the taking of statements, interviewing for witness statements, tracing missing persons and process serving.

I have looked at a text book on private investigation written by a gentleman named Ackroyd. On page 104 of his book, "The Investigator", he says, on the subject of process serving:

"To make what is termed a 'good service' it is only necessary to touch some part of the individual's body with the actual document."

I wonder whether touching an individual with a document, even though it may be a copy of a document provided by a court, might be considered harassment, resulting in the bailiff, the process server or the investigator being called to the attention of the police.

The list of activities that may not have criminal connotations also includes providing evidence for a local authority on anti-social neighbours, the vetting of potential and existing staff, and debt recovery. I hope to convince the Minister of the necessity of a stronger defence than that provided by the clause. The defence of an action in subsection (3)(a)--

"that it was pursued for the purpose of preventing or detecting crime"--

might appear fine, but the argument of what is reasonable is problematic.

The Minister speaks with some knowledge on the private security industry, although his views may not always correspond to mine. He knows that some people

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might say that certain activities of the private security industry were reasonable and others might consider the same activities definitely unreasonable. Whether many of the manifold duties of a private investigator were reasonable may have to be tested in court. A judge's definition of what was reasonable might be a matter of considerable controversy. It would be easier--I shall not go into detail on this--for professional private investigators to argue their case if their profession was regulated and they conformed to standards laid down by law. Being a licensed investigator would provide a greater defence for certain activities.

Many, if not the majority, of the activities of private investigators are not related to criminal proceedings. The Bill is imprecise--indeed, confusing. Subsection (3)(c) might exempt investigators whose investigations were proved reasonable, but that is too vague and could lead to some legitimate investigators being subject to civil and perhaps even criminal action.

I do not believe that that was the objective of the Home Office in drawing up the legislation. The consultation paper issued in July said:

"There is a risk that if the scope of any new legislation to deal with stalking is not carefully defined"--

I do not think that it has been--

"it will criminalise the everyday behaviour of innocent people".

I do not want to argue about whether the definition is too wide or too narrow. I shall say only that when I was in the academic profession I often set the same examination question, asking students to consider a statement such as, "Legislation is more the function of the Executive than of the legislature." If I were pitched once again--against my will--into the profession that I willingly left, I might have to revise that statement to, "Legislation is as much the function of the judiciary as of the legislature." The broad definition bestows an enormous responsibility on the courts to do what we are unwilling or unable to do.

I have said that we need clarification on what is reasonable for private investigators. Obviously, investigators want to know whether it would be reasonable to pursue a party suspected of making a fraudulent personal injury insurance claim. They would want to know at the outset whether the suspicion was justified. The only way to establish the truth would be to keep the individual under surveillance.

In a second example, investigators might also justifiably want to know whether it would be considered reasonable to keep surveillance on an individual suspected by his employer of working for a third party or on a freelance basis. The investigator would not know the truth until the observations had been completed.

In a third example, investigators might also want to know whether it would be reasonable to keep observations on an estranged spouse who was claiming maintenance on the premise that she was not cohabiting with a third party or was not in gainful employment. The investigator would not know whether the maintenance claim was justified without establishing whether the estranged spouse was cohabiting or was employed.

A fourth problem is whether it would be considered reasonable to keep observations on a person to be able to serve that individual with some form of legal process such

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as a High Court writ or an injunction. Occasionally, it would be necessary to stake out a person's residence to effect service of legal documents when the subject was evasive.

Many other examples that occur daily in the lives of investigators have arisen from my consultations. Without the ability to keep people and their homes under surveillance, it will not be possible to establish the truth in a case.

Investigators frequently act in legal aid cases when the Legal Aid Board is seeking the recovery of money from litigants. Unless investigators have exemptions from the Bill, they will be unable to fulfil effectively the assignments given to them by the courts, inevitably inhibiting the ability of the Legal Aid Board to recover outstanding costs.

Virtually all surveillance activities by private investigators are of a covert nature. As long as the surveillance is legitimate, one hopes that the target does not know that it has taken place until it has been concluded and a report appears before them or the person who hired the investigator.

However, that cannot always happen. Sometimes the subject becomes aware of the surveillance. In such cases, the surveillance is discontinued or postponed until the target's fears have been allayed. It is important to clarify how the Bill will affect private investigators conducting legitimate investigations on behalf of their clients.

It is principally the legitimate investigator who has a problem with the measure, not the criminal element in the profession, which will not be deterred by new laws. I am assured that legitimate investigators are anxious to work within the law. However, if the Bill is passed without clarification of clause 1(3)(c) or adequate assurances from the Minister, it will be regarded as confusing and damaging by legitimate investigators who do a good job within the law.

Good, legal investigators, hon. Members and the overwhelming majority of public opinion support the principle of the Bill and applaud any measure that deters stalkers and protects the innocent from harassment. However, in the interests of justice, there must be some provision to protect legitimate investigators conducting bona fide inquiries from prosecution and civil action. I am not trying to destroy the Bill's intention and I hope that I can get assurances. In those circumstances, I would freely withdraw my amendment.

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