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2 Apr 2003 : Column 947—continued

2.15 pm

The other issue that has particularly troubled me is that in a number of Customs and Excise cases in which I have acted as prosecutor, a subsequent reference to the property listed as having been on a defendant at the time of arrest has proved extremely useful in bringing the prosecution, when the officers themselves did not have the slightest idea when they made the list that the items on it would turn out to be relevant subsequently. Examples include bits of paper with numbers written on them, one of which turned out to be a key telephone number relating to a person with whom the defendant was alleged by the Crown subsequently to have made contact and who was part of a conspiracy to import substantial quantities of cocaine into this country.

I remember calling cards and visiting cards cropping up in another case. The cards had all been usefully listed; Customs and Excise has always tended to be extremely diligent in listing items taken away from defendants in airports and ports of entry, and in including any details. Frequently, the defendant will not be released from custody prior to trial, so that material will remain in a locker. In this particular case, the material was noticed because, as prosecutor, I had looked at the custody record sheet with the investigating officer in preparing for the trial and said "What is that? I think we ought to have a look at it."

I suppose that the police can be assumed to know their own business, but I cannot help thinking that the issue will give rise to problems and that, in some cases,

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things may slip through the net that could otherwise be very usefully recorded. This is a practical issue. It is practical for the defendant, who may say to his counsel when it comes to his trial, "Well, you know that I had on me the card that proved that I saw Bloggs that afternoon and it is part of my alibi defence; he gave me his card." If the card details were recorded at the police station at the time of his arrest, they would be powerful evidence ensuring that the prosecution and the police could act in tandem with the defence in providing evidence that could help establish the truth in the case.

I think that we are missing something in allowing the police to get out of the routine—I am sure that it is burdensome—of noting down fully what is in people's possession when they are arrested. My hon. Friend the Member for Woking pointed out that the police have a short-circuiting method, as they will record only what they think is strictly necessary. Otherwise, they will simply include information under generic terms such as "other cards", if they think it is irrelevant, so the burden does not seem especially onerous.

Another thing puzzles me very much. I have been a lay visitor at police stations, so I have experience of sitting and watching the room into which arrested persons are brought when they are processed before being put into the police cells. I have seen that happen on numerous occasions. Indeed, I had six years of visiting police stations in Hammersmith and Fulham in that role, which was very educational for me, because that is not an environment into which a barrister normally has cause to go. I did not notice that the duty was a particularly onerous chore. It is true that the custody sergeants get rather bored carrying it out, but they seem to be capable of doing so fairly quickly. Unless somebody is arrested while in possession of hand baggage containing massive amounts of property, it is not my experience that that responsibility is among those that are so burdensome that it would be of great use to the police to be freed of it.

One point that needs to be considered is that the police must establish a custody record when somebody comes into custody. It is not as if they cannot do so or can avoid doing it completely; so one way or another, the custody record sheet must be opened and property listing must take place. At least, a decision must be taken about what should or should not be listed.

I really am puzzled that, in those circumstances, the police feel that the difference between a list of three items and a list of 15 will make such a massive difference to their time. Of course I accept that there may be circumstances in which 16 football hooligans have to be processed after a match and it might be convenient to be able to short cut, but the House needs to balance the short cutting against the possible down side. I repeat that what strikes me most forcefully is that, from my experience in criminal practice, the list of a person's property proves useful, one way or another, even though it is not expected to be, when the trial takes place and people say, "Let's see what's on the custody record sheet."

The Minister will recollect that the official Opposition did not press the matter to a vote in Committee—we withdrew a probing amendment—but the more I reflect on this issue, the more I think the police are doing themselves a disservice in trying to get such a short cut. Unless the Minister can persuade me that the police

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have got it right and that those of us who have other experience of the process, as legal practitioners, lay visitors or anything else, have got it wrong, I shall support the amendment in the Division Lobby this afternoon.

I am sure that there are all sorts of other areas where bureaucracy ought to be cut, and I welcome the fact that cutting that type of bureaucracy has been considered, but on careful reflection—I hope that the Minister will take these comments in the spirit in which they are made—I think that the police may regret such a mistake if Parliament enacts it on their behalf.

Vera Baird: I felt that the hon. Member for Beaconsfield (Mr. Grieve) made a very powerful point. I fear that I have not really thought this through before, but I, too, have in course of practice come across many cases in which something being or not being on the list was highly relevant to the Crown or to the defence and sometimes to both.

The difficulty with the solution that I proposed, which I thought met all the problems mentioned by the hon. Member for Somerton and Frome (Mr. Heath), is that the record of what was in the defendant's possession when he came into the police station only survives by my mechanism so long as the bag of property survives. Once the bag of property is broken open—either because it is returned to him, or because some of the items are to be exhibited—there is no continuing record and no opportunity for a record to be made when the bag is broken open. So my suggestion would not provide a solution to safeguard evidence or materials for both sides.

I should very much like to invite the Minister to apply his mind to that difficulty. I have no doubt that lists of the property on people's bodies at the time of arrest can be highly relevant. The other point that perhaps my hon. Friend needs to consider very carefully is that the custody record is made out by a custody sergeant who is not an officer involved in the case in any event and that it would be a very rare case indeed where he had the slightest understanding of relevance of the material on the defendant's body.

Mr. Heath: It just occurs to me that one advantage of the sealed bag scheme that the hon. and learned Lady proposes might be that it would eliminate the queues, which are the problem that the Minister is trying to address, by allowing the recording to take place at a later stage. That would release the operational officer back to his beat, or whatever else he is required to do, and leave the custody suite officers to record the articles and retain their evidential value at their leisure.

Vera Baird: I am very grateful to the hon. Gentleman for that intervention; it is perhaps an example of how the process of debate and allowing interventions while a thought is fresh in the mind can refine the issues. It is an extremely good idea. If the real problem is a queue in the police station at the time, the job of listing the property could simply be put off by the mechanism of bagging up the items, signing across the seal and, when more time is available—probably to a civilian—getting the defendant out of his cell and making the list at that time,

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when there is no pressure at all. I commend that to the Minister as an idea that should be considered very seriously.

Hilary Benn: This short debate links very neatly with the previous one because it, too, is about time—in particular, police time—and hon. Members will be aware that the purpose of clause 6 is to allow the police more discretion in recording and handling property, whereas the Police and Criminal Evidence Act 1984 currently requires them to "ascertain and record everything". The intention is not to do away with the records, but to give the police greater flexibility in deciding how detailed a record they keep and, in effect, to reach a judgment in each case.

As with the previous issue that we debated, this proposal arises from the PACE review, and it comes from the police. It is interesting that we have heard the argument advanced that the police who proposed it may not have fully appreciated what they were suggesting. Indeed, that is a debatable point. The PACE review said that the police identify the requirement to list a detained person's property in full as time consuming and not always necessary. For that reason, they have suggested that PACE should be changed.

Perhaps I can reassure the House on this issue, which is relevant to time. We were talking about the clock in the previous debate and, in fact, the clock starts the moment that the person arrives in the police station, so the length of time taken to record everything in a bag, for the sake of argument, is taken away from the overall detention period and, indeed, adds to the time that the person is detained.

Keeping records will still be the normal practice in any case, but there is no reason why, as the law is currently framed, the way in which the information is kept should be precisely prescribed. For example, the police may prefer to maintain a freestanding property register. In those circumstances, why should not the custody record refer to the existence of any separate property record?

The strongest argument for the proposal is profoundly pragmatic—the hon. Member for Somerton and Frome rightly attributes that motivation to the Government in introducing it—as it would make possible the proposal to which my hon. and learned Friend the Member for Redcar (Vera Baird) drew attention in her intervention: all the property could be put in a sealable bag and the person detained and the custody sergeant could sign the seal, and that sequence of events could occur if the seal were broken subsequently. That would avoid having to write down a great list. I do not know about other hon. Members' bags, but there would be quite a long list of things if I were arrested with my bag in my possession.

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