Railways and Transport Safety Bill

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Mr. Randall: People who cannot be arrested are often dealt with through the various cautions that can be given out, but does my hon. Friend agree that being at hospital is too wide-ranging an exemption?

Miss McIntosh: That is precisely the point of clarification that I seek. My hon. Friend is obviously taking the same line of thinking as I am. We hope that people will not try to evade arrest by making themselves unavailable by virtue of being in hospital. Unfortunately, my hon. Friend the Member for Westbury is not here to assist me in this regard, as he is busy in another part of the House, but I believe that many ships have a hospital unit. If someone is to be arrested, the police constable will do the testing, so the person will have to be available for testing and arrest.

Mr. Randall: My hon. Friend touches on a point that I wanted to raise. I cannot understand why, if someone is incapable of being arrested in a hospital on

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land, a person who has suffered an equally serious accident at sea and is in a ship's hospital as a result of his own actions, is not treated in the same way on board.

10.15 am

Miss McIntosh: That is precisely the point that I hope that the Under-Secretary will clarify.

One scenario is that the person is so drunk or drugged that he falls and hurts himself and is taken off the ship to be placed in hospital. In that case, the person conveniently escapes arrest. Is the Under-Secretary saying that clause 82 means that people may also conveniently escape being tested if an accident has been caused and they are accused of an offence leading to it?

Mr. Randall: I assume that such people will not escape arrest, as the police will wait until a suitable time until they arrest them. However, that needs to be clarified.

Miss McIntosh: We need clarification because we may fall foul of clause 81, which, we were told, must be followed in a reasonable time. We have raised some serious issues, and we need clarification, especially given the fact that the provisions relate to the Police and Criminal Evidence Act 1984 and that the royal commission flagged up problems in principle about arrest without warrant and the statutory powers of arrest in general. I would take a dim view of clause 82 if it meant that a person accused of an offence, perhaps in the same scenario as the Marchioness disaster, would escape testing and arrest. Such a person should do so for only a limited time.

Mr. Jamieson: Clause 82 gives a police officer the right to arrest a person whom he suspects is committing or has committed an offence under part 4. The clause is necessary as it gives the police officer the power to take a suspect to a police station, where authorised equipment will be capable of taking a definitive reading of the amount of alcohol in a suspect's body. The provision reflects the power of arrest set out in section 4(6) of the Road Traffic Act 1988.

A police officer will not have the right to arrest someone who is in hospital as a patient. There was some suggestion that someone could walk through the door of a hospital and avoid arrest, but that would not be the case. Such a patient should be protected from the requirement to provide a specimen if the doctor in charge of his case objected on the basis that it would be prejudicial to the proper care and treatment of the patient. If the doctor in charge does not object, specimens of blood or urine may be taken for analysis in the laboratory. Provisions in the Road Traffic Act 1988, as implemented in the Bill by clause 80, deal with the provision of a specimen by a person in hospital. Those will apply in such a case.

A hospital means an institution that provides medical or surgical treatment for in-patients or out-patients. Some ships are equipped with hospital facilities, but we do not propose to extend the provision because a ship's doctor might not be sufficiently independent or detached from the

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subject. Few ships have a hospital staffed by a qualified doctor—that may happen only on a large cruise ship. A ship may have a sick bay, in which some medical equipment is available, but a doctor would not generally administer treatment on most ships. It is very unlikely that a doctor will be in charge of such a patient on board a ship, and we therefore did not think it appropriate to include it in the provision.

Mr. Randall: I understand what the Under-Secretary is saying about the provisions of the Road Traffic Act 1988, with which we would all agree, and that there may be occasions when someone's life is at risk. He used the word prejudicial, and I understand the points about the expertise or proximity of other crew members. However, is there not a chance that someone would insist on a sample being taken that would be prejudicial to the person's health, because there is no provision to safeguard them when they are at sea?

Mr. Jamieson: The clause provides the same position as exists on the roads. If a person were to have a sample taken, it would be taken at a police station and in the normal way in which it would be taken for a road traffic offence.

Mr. Randall: I am trying to say that if someone were sufficiently injured not to be able to be moved to a police station but was on board a ship, a sample could still be taken or tests conducted that could be deemed to be prejudicial to that person's health.

Mr. Jamieson: Again, the same position applies in this respect as applies on the roads and in relation to a road traffic accident victim. If a person were unconscious, for example, a police officer at the roadside could not ask him to take a breath test, and a blood sample could not be taken at the side of the road. I think that exactly the same conditions would apply to someone who had an injury aboard a ship as apply to someone lying injured at the side of a road as a result of a road traffic accident.

Mr. Randall: We are almost there. The Under-Secretary said that a blood sample could not be taken at the side of a road. However, as far as I can see, under the clause, a blood sample could be taken from anyone who was suspected of committing an offence under the relevant provision, regardless of their state of health, while they were on a ship. I seek clarification. At the moment, it seems that someone could insist on taking a blood sample while the person was unconscious.

Mr. Jamieson: The same would apply as elsewhere. First, the person would have to be arrested by the uniformed constable whom we discussed earlier. Then the same conditions would apply as apply under the road traffic legislation. A decision would have to be made. If a person was clearly in a serious condition because of an accident, exactly the same conditions would apply. The police would not have the means to do the blood test away from the station. They do not have the ability to do the blood test aboard the ship. They would have to be at the station. As I have said,

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the same circumstances that apply to someone injured on the road would apply to someone on a ship.

Let me deal with the powers of arrest without warrant in the context of the breath test on the roads under section 6(5) of the Road Traffic Act. We simply wish to replicate what happens on the roads. The hon. Member for Vale of York asked about arrest with or without a warrant. I think that it is the case that arrest without a warrant would be the normal means of arrest for the offence that we are discussing, just as it is on the road for a drink-driving offence.

Miss McIntosh: I am grateful for those clarifications, but it strikes me, in relation to some of the concerns that the Opposition have shared with the Committee, that there are clear differences in the application of this clause and clause 80 to a ship—whether at sea in UK waters or on inland waterways—from what pertains in respect of road traffic.

I understand that the Government have adopted some of the provisions from navigation functions as opposed to road functions. Clearly, the Under-Secretary and the rest of the Government will recognise that there will be many more practical difficulties in getting a constable on board a ship. We are not told anywhere what is a reasonable time. Nor have we been told what a reasonable time is for detention. Obviously, the person who is incapacitated and in hospital has the right to be treated and things must not interfere with his treatment, but he may escape prosecution even though his intoxication or the influence of drugs may have led to the accident. I hear what the Under-Secretary says, and his explanation of the provisions, but in those circumstances it would take longer to take a suspect to the police station where there would be equipment to take a specimen. A person could be in hospital for a considerable time, and I would like to place it on the record that, whatever the good reasons given by the Government, it would be regrettable if a person were to escape prosecution in those circumstances.

Question put and agreed to.

Clause 82 ordered to stand part of the Bill.

Clause 83

Right of entry

Question proposed, That the clause stand part of the Bill.

Miss McIntosh: We are told in the explanatory notes that clause 83 differs slightly from the Road Traffic Act 1988 and the Transport and Works Act 1992, in that it refers to ''reasonable force'' rather than ''by force''. Would the Minister care to establish the difference?

The Bill also allows the police officer to be accompanied, whereas the 1998 Act and the 1992 Act do not. We are also told that the Bill does not extend to Scotland, where adequate common law powers of entry exist.

The clause raises an interesting issue. The clause states:

    ''A constable in uniform may board a ship''.

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Does that power give a police officer the right of entry to a privately owned recreational craft or boat? The industry is concerned about that matter, which was raised during consultation but has not been resolved, and so would be helpful if the Under-Secretary could clarify it. If the Under-Secretary confirms that the police will have the power to board a recreational craft, does that mean that a police officer will have the right of entry to a privately owned recreational boat? Most of the Bill's provisions, largely because of the nature of the offences, seem to be aimed at commercial boats that carry substantial numbers of people. Will privately owned boats also be covered?

Paragraphs 94 to 98 of the explanatory notes refer to the human rights dimension—as we saw in part 3 relating to the British Transport police. They refer particularly to the following articles of the European convention on human rights, now enshrined in the Human Rights Act 1998: article 5, guaranteeing the right to liberty and security, article 6, guaranteeing the right to a fair trial, and article 8, guaranteeing the right to respect for private and family life. I believe that those articles could be used as a defence to frustrate the intentions of the Bill. The explanatory notes state:

    ''Article 5 is subject to the qualification of lawful arrest on reasonable suspicion that an offence has been committed or for its prevention. The powers of arrest and detention contained in this Part are considered necessary and proportionate and within the qualification mentioned.''

Playing devil's advocate, I beg to differ. I believe that there will be circumstances in which those articles might be an accused person's first line of defence, either for a commercial or a privately owned ship. The private owner of a recreational craft could use colourful language to tell the police constable or a detaining officer to go about his business because he or she wants to enjoy the private property.

The explanatory notes state:

    ''Article 6 (which is linked to a privilege against self-incrimination) is engaged principally by the provisions requiring specimens of breath, blood or urine to be provided by a suspect. However, the courts have held that the privilege is not absolute in circumstances where a proportionate response is required to combat a serious social problem.''

The Government argue that this is considered to be such a case. A defence lawyer would probably argue that it is not. Again, in addition to article 5, could article 6 be used to frustrate the Government's intentions?

10.30 am

The explanatory notes continue:

    ''Article 8 is subject to the qualification that a public authority may interfere with the right to private and family life provided that it does so in a proportionate manner for the prevention of crime and the protection of the public.''

Again, article 8 could be used by any decent defence lawyer to argue that the clause prevents an individual from having the right to enjoy his or her private and family life and, per se, his or her private yacht or inland waterway craft. The Government consider the clause to be compatible with the European convention on human rights, but the Opposition's concern is that any half decent, self-respecting defence lawyer will use it to frustrate the intentions behind the clause.

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I am sure that the Under-Secretary will tell us that the clause is necessary because clauses 80 to 82 would have no effect without it. It gives the constable in uniform, with or without his hat, the right to board a ship provided that he has reasonable suspicion that he may want to exercise the powers given to him. It says that he ''may use reasonable force''

and

    ''may be accompanied by one or more persons.''

This may be a good opportunity to ask the Under-Secretary to put our minds at rest by assuring us that if a police officer has the right of entry on every craft, whether privately or commercially owned, the European convention on human rights, if it applies, will not be used to frustrate the Bill, especially clauses 80 to 83.

 
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