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Standing Committee B
Tuesday 13 January 2004
[Mrs. Marion Roe in the Chair]
Entering United Kingdom without passport
Amendment proposed [this day]: No. 60, in
clause 2, page 3, line 10, after 'time)', insert—
' ''first interview'' means a substantive interview conducted under caution and in accordance with the Police and Criminal Evidence Act 1984 Codes of Practice, in the presence of an accredited legal representative, and'.—[Mr. Heath.]
Question again proposed, That the amendment be made.
The Minister for Citizenship and Immigration (Beverley Hughes): I was replying to the amendment when we adjourned. I remind hon. Members that, under the amendment, the criminal offence of a person being undocumented can be committed only at an interview conducted under caution and in accordance with the Police and Criminal Evidence Act 1984, or the Scottish equivalent. I told the hon. Member for Somerton and Frome (Mr. Heath) that I could understand the concern of members of the Committee to ensure that no one is prosecuted for that offence without the normal safeguards applicable to the handling of criminal proceedings, but for reasons that I shall outline, I am not happy with the amendment. I think that it would have consequences that he might not intend.
Let me set out the likely sequence of events should a case arise in which a person arrives at, say, Heathrow. They will be seen by an immigration officer at the control desk. Obviously, among other things, they will be asked to produce a passport. If, during that interview, the immigration officer comes to the view that the person cannot produce the document and therefore that an offence under clause 2 may have been committed, the officer, if he is not trained to undertake an arrest, will either call the interview to a halt, or caution the person before calling either the police or an arrest-trained immigration officer. A police officer or arrest-trained immigration officer will make the arrest. Once that has happened, the various procedures for which PACE provides will kick in.
As we noted in the debate on the previous amendment, by virtue of section 145 of the Immigration and Asylum Act 1999, immigration officers exercising their powers to question or arrest, among other activities, must have regard to the relevant specified provisions in PACE codes. I referred to the immigration (PACE codes of practice) direction of 2000, which sets out the relevant powers and the provisions of the codes that must be adhered to—for example, an immigration officer wanting to arrest a person without a warrant must have regard to
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every provision in codes C, D and E. In addition, interviews at that point have to be carried out under caution, and the individual in question must be able to have a legal representative present if they so wish. That is how the system works in respect of existing immigration offences, and obviously it is right to treat the criminal offence in clause 2 the same way.
The safeguards in PACE or its equivalent apply, but that does not mean that the amendment is reasonable and we can accept it. The offence is committed not at the point that has been suggested, but at the point at which the person may be expected to have a passport on them, but does not produce it. That point is when the person is being interviewed by an immigration officer on the control desk—when every other passenger is required to produce their document—not at a subsequent interview under caution. If the person is subsequently cautioned and produces a passport at an interview of that kind, that does not necessarily justify the failure to produce it at immigration control, but of course that would be taken fully into consideration along with any explanation offered for the original failure.
Similarly, we cannot accept a provision whereby a person cannot commit an offence unless a legal representative is present. That would be unprecedented in terms of the way in which we take decisions on whether all sorts of offence have been committed. No one needs a representative to comply with the simple, normal request of all travelling passengers that they produce their passport. I hope that the hon. Gentleman is convinced by the arguments that what he proposes would not be the right point at which to determine that an offence had been committed. The right point is when every other member of the travelling public is asked to produce a document and certain individuals cannot, or refuse to, do so.
Mr. David Heath (Somerton and Frome) (LD): I am grateful to the Minister for her explanation, and to some extent I understand it. However, there is still a problem with the definition of what constitutes a first interview. That problem of definition exists not for the potentially accused person in terms of their offence, but for the prosecution in terms of establishing whether the interview in question was the first interview with an immigration officer. As the Bill is currently drafted, it might be a defence to say, ''No, the occasion on which I was found not to have my documents was not my first interview with an immigration officer. I had already spoken to an immigration officer in another respect.'' That is a potential difficulty, although not a serious one.
The second difficulty is that the offence is different from most criminal offences, because it deals with what transpires in the course of an interview. Normally when a person is held at a police station and is interviewed, the interview takes place under clear rules of conduct, with clear guidance about self-incrimination. In the present circumstances, that would not be the case. I therefore question the evidential value of what may be said or done in the context of that first interview if those precautions are not taken.
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I understand what the Minister says about the difficulty in the way in which the provision is framed because the point of arrest is the point of non-production, and it is nonsense then to say, ''But actually, it is not; it is at some point in the future when you hold the first interview.'' That is a conundrum that we have yet to solve.
If we are to prosecute the offence successfully, following the first suspicion that a person does not have their documents on them for the reasons outlined in the Bill, it would be appropriate to move rapidly towards holding a formal interview under caution and with legal representation, which would form the evidence on which a future prosecution was based. The Minister came quite a long way towards that position when she described what she expected the process to be, but I shall give way to her so that she can say more about it.
Beverley Hughes: I hoped that my outline of a hypothetical but typical or common sequence of events at Heathrow would reassure the hon. Gentleman. Once an immigration officer at control is satisfied that a person understands the question and is genuinely saying that they cannot produce a document, from that point onwards, the train of events that the hon. Gentleman wants to happen would begin. An immigration officer would then be called, who would be able, under the appropriate safeguards and codes of practice, to take the matter forward with an arrest, a caution and a full interview, which would form the basis of the evidence.
Mr. Heath: As I said, the Minister has reassured me up to a point, but I still envisage difficulties with such an approach. For instance, what inference would be drawn from silence in those circumstances? Could a court draw any inference on that basis? I think not, because the person is not legally represented and cannot be required to say anything that might incriminate them in a court. There are still difficulties in respect of the evidential basis on which a prosecution might be brought.
It seems to me that a clearly delineated two-stage process would be preferable—one in which, first, there is the suspicion that someone is travelling without documents due to the fact that they have destroyed them; and, secondly, a formal interview that establishes the facts behind the case is held with the appropriate precautions, at which point the offence is considered to be committed. There would therefore be an offence committed in a circumstance which is defined and which is capable of being adduced in evidence. That would put the prosecution in a stronger position.
I will consider that and I ask the Minister to consider it too. I am not trying to undermine her position; I am simply trying to get it right. She has gone sufficiently far towards my position for me to be partly reassured, but her response has raised new questions in my mind about exactly what is proposed. Between now and Report, I will consider how a first interview might be construed by a court without further definition and whether that might be an
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obstacle to prosecution rather than a tool. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Heath: I beg to move amendment No. 63, in
clause 2, page 3, line 15, at end add—
'(11) Where a decision is made to prosecute a person for offences contained in this section, no prosecution shall be commenced until after the final determination of all proceedings in relation to—
(a) an asylum claim made under the Refugee Convention, or
(b) a claim made under the European Convention on Human Rights, or
(c) an application for leave to remain under the provisions of the Immigration Acts.'.
The amendment would allow for a period between the time at which the intention to prosecute is determined and the hearing of that prosecution in order to allow for the possible resolution of an asylum claim under the refugee convention or the European convention on human rights, or an application for leave to remain. It ties in with our wish to avoid complications in the operation of the Bill with article 31 of the convention. There is a serious mismatch, even with all the assurances that the right hon. Lady has given, between what is proposed in the Bill as a process and the rights of the individual accepted under article 31. We will come back to this issue under the next amendment.
Once the intention to prosecute has been established and the Crown Prosecution Service has decided that there is sufficient ground to prosecute, there is no problem in terms of process in not entering into a hasty prosecution at that point. Such a prosecution might be construed by a higher court as a curtailment of the rights of the individual under article 31 if it stands in the way of a proper determination of that person's status under that convention and their claims. I envisage huge benefits in doing things that way round. If the status of the individual is determined before the prosecution, we will know whether they will stay in this country or be asked to leave. We will know that at the point of release from detention, if detention is the result of the prosecution, they will either be put straight on to a plane back to their point of departure, or be admitted to this country on the basis of their claim. Not to do that is potentially dangerous in legal terms because it invites a counter-claim and further actions in the courts to establish the right of claim.
I hope that the Minister will regard the amendment in the spirit in which it is intended. It would not deny her the prosecution that she seeks, but would establish an order of process that makes sense in relation both to the apparatus of the state and to the rights of the individual, and therefore allows for matters to be carried forward in equal order.