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drives a horse and cart through the whole idea of having protection for a defendant in a post-questioning period.[ Official Report, House of Lords, 4 November 2008; Vol. 705, c. 175.]
The amendment tabled in another place was a cross-Bench amendment. I think that it would be extremely useful if the Government accepted our amendment now, because they will know how close the vote was there. I cannot accept an argument that they may advance, namely that the world would be a safer place if this protection were taken away. Clearly any judges involved would be alive to the sort of questions that the police might ask, and I suspect that they would be sympathetic to any legitimate requests from the police.
This is a small but significant amendment. If we are to adopt post-charge questioning it must be seen as an acceptable form of law enforcement and police investigation, and I appeal to the Minister to accept our proposal.
Chris Huhne: I shall be brief, as we are pleased that progress has been made on this matter, and that the Government accept the case for post-charge questioning. Like the hon. Gentleman, we want this to be accepted as a part of English law that people can feel is making a genuine contribution and has the necessary checks and balances. That is why we would like this Cross-Bench amendment from the Lords to be incorporated into the Bill; it will allow the judge to identify the scope, and it will provide certain essential safeguards that will build this more fundamentally into English law in the long run. We will support the amendment, and I hope that, in light of what he has heard, the Minister will be able to do so as well.
Mr. Coaker: First, let me thank the hon. Members for Ashford (Damian Green) and for Eastleigh (Chris Huhne) for their appreciation of the changes we have made and the amendments we have accepted, and I would like to go through the group as a whole. I should inform the House that we agree with the Lords in respect of amendments Nos. 16 to 24, but we disagree with the amendments offered in lieu. I am sorry to disappoint the hon. Gentlemen on that, but I will explain our reasons.
Amendments Nos. 16 to 20 remove the ability of a police superintendent to authorise post-charge questioning about the offence charged. Rather than authorisation by the police, all questioning will need to be authorised by a Crown court judge in England and Wales, a sheriff in Scotland and a district judge in Northern Ireland.
The amendments limit the period for which post-charge questioning can be allowed to a maximum of 48 hours before further authorisation must be sought. This 48-hour period would run continuously from the commencement of questioning and would include time for meal breaks, sleep, and consultation with legal advisers. Questioning would be authorised only if the judge deemed that it would not interfere unduly with the preparation of the defendants defence to the charge or any other criminal charge that he may be facing; in effect, this would prevent questioning close to, or during, a defendants trial.
The amendments allow the judge to authorise questioning for an offence not specified in terrorism legislation if it appears that the offence the person has been charged with has a connection to terrorism. For example, a judge could authorise post-charge questioning for the offence of murder if it appeared that it was connected to terrorism. The amendments also allow the judge authorising questioning to impose such conditions on the questioningthe location or length of the questioning, for exampleas he or she deems necessary in the interests of justice. They do not, however, specify that the judge could determine the scope of questioning, unlike the Oppositions amendments.
We had considered including in the Bill a provision that allowed the judge to impose conditions on the matters in respect of which questioning was authorised. However, we received representations and, following further consultation with the Crown Prosecution Service, the police and the Crown Office and Procurator Fiscal Service in Scotland, we do not believe that it would be appropriate to specify that a judge could determine the scope of police questions. We believe that to do so would, in effect, lead to the judge drawing up acceptable questions that could be put to the suspect from which the police would not be able to deviate. This has obvious practical problems. For example, what happens if the suspect mentions an alibi during questioning on which the police do not have authorisation to question? Do we really want the police to have to stop the interview and apply for further authorisation from a judge simply to ask further questions about that alibi?
We must remember that the judge may exclude any evidence unfairly obtained by means of making a ruling under section 78 of the Police and Criminal Evidence Act 1984. In addition, there are safeguards that apply to the suspect during questioning; for example, they have the right to legal representation.
The roles of the police and the judiciary are clear and well understood in our criminal law. Allowing interference in the scope of an investigation by limiting the questions that can be asked would be a blurring and complication of those well defined roles.
Amendment Nos. 22 to 24 remove the order-making power that allowed the Secretary of State to disapply the compulsory requirement for all post-charge questioning
to be video recorded with sound. Under these provisions, all post-charge questioning will be video recorded with sound in all parts of the UK. With those brief remarks, I ask the House not to accept amendment (a).
Damian Green: I rise briefly to say that the Minister set up an Aunt Sally in his opposition to the amendment. I was not convinced by the idea that questioning would be materially disadvantaged if the judge had to define
the matters in respect of which the questioning is authorised,
which is the wording of amendment (b). I therefore commend amendment (a) to the House.
Question put, That the amendment be made:
Question accordingly disagreed to.
Lords amendment No. 16 agreed to.
Lords amendments Nos. 17 to 33 agreed to.
Mr. Coaker: I beg to move, That this House agrees with the Lords in the said amendment.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss Lords amendments Nos. 37 to 81 and 117 to 126.
Mr. Coaker: The group covers amendments to the notification, notification order and foreign travel restriction order provisions. Four substantive issues are addressed in the amendments with a further number of comparatively minor and technical amendments. First, Lords amendment No. 46 has the effect of ensuring [Interruption.]
Madam Deputy Speaker: Order. Will Members who are not staying for the debate please refrain from private conversation or leave the Chamber quickly and quietly?
Mr. Coaker: Lords amendment No. 46 has the effect of ensuring that the notification requirements will not apply to anyone under the age of 16 on the date that they are dealt with for a terrorism or terrorism-related offence. Lords amendment No. 71 will mean that notification requirements apply only for a period of up to 10 years when someone is aged 16 or 17 on the date of their conviction for a relevant offence, regardless of the length of the sentence imposedprovided of course that the sentence is for 12 months or more.
Lords amendment No. 71 also changes the notification period for persons aged 18 or over on the date of conviction. Those sentenced to 10 years or more or to an indeterminate sentence for a relevant offence will have to notify for 30 years under the proposed amendment rather than for the indefinite notification period. Adults sentenced to between five and 10 years will be required to notify for 15 years, once again instead of the indefinite notification period. The period for persons sentenced to between 12 months and five years or given a hospital order will remain as 10 years.
I know that the rest of the amendments have cross-party support and we agree with them.
Damian Green: I rise to say simply that I started this afternoons proceedings by saying that the Bill had returned from the Lords in a significantly better shape than that in which it had left this House. This group of amendments is another example of that, and we are especially pleased by the change in the notification requirements for young people under 16. We think that that is a significant improvement, for which we should be grateful to the other place.
In the other place, Lord West said that he was very hurt that the change had been described as a cave-in, so I shall merely congratulate Ministers on their appropriate flexibility in agreeing to the Bill being changed in this way.
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