Further written evidence to be reported to the House

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Clause 4

Record of removal
Mr. Grieve: I beg to move amendment No. 81, in clause 4, page 3, line 23, leave out from ‘removal’ to end and insert ‘within 24 hours’.
The Chairman: With this it will be convenient to discuss amendment No. 58, in clause 4, page 4, line 11, at end add
‘and in any event within six hours’.
Mr. Grieve: I apologise on behalf of my hon. Friend the Member for Newark, who has had to leave to attend a funeral. Although the amendment also stands in my name, it was tabled by him.
We come to the issue of the records of removal that we touched on when discussing clause 1. The Minister pointed out that the provisions were relevant to the remarks made about that clause, for which I apologised to him.
My hon. Friend raises the concern about whether a time limit within which the written record should be produced should be inserted into the Bill. The current wording is “reasonably practicable”, which I simply say would often be within a much shorter period than 24 hours. If a police officer is doing his job properly, a written record should be made contemporaneously with the work. I would regard that as good police practice. Equally, it is not necessarily a bad practice to provide a finite limit. I acknowledge that the way in which the amendment has been drafted removes the reasonable practicability test and replaces it with “24 hours”. A possible approach would be to add “and in any event within 24 hours.” I therefore simply throw this in as a probing amendment to ask the Minister whether, despite the reasonable practicability test, there should be a finite time limit within which a record should be produced.
Amendment No. 58 concerns the copy that must be provided within a reasonable time. That brings me back to my concern in relation to clause 1 that a reasonable time should be a very short time indeed, because of my anxiety about the consequences for an individual who loses control of a document that might be of great utility to him. Unlike the seizure of material when the police are satisfied of a suspicion that there is a terrorist purpose and that there is good reason for not allowing the person to keep a copy, we are dealing with situations in which no such imputation of wrongdoing might arise. I wonder what is considered to be a reasonable time. My anxiety is that we could end up with court challenges if the police hold on to material and give assurances that they will produce copies, but try to wriggle out of doing so because they are concerned that the document might turn out to be capable of being used for a criminal purpose.
I tabled amendment No. 58 because the clause raises a difficult issue and I want to tease it out. If there is nothing criminal on the face of a document, but the police want to take it away and look at it, the basic rule ought to be that there are no grounds for not supplying a copy immediately so that the person is not placed at a disadvantage by not having it. It is only at the point of seizure that the issue of depriving somebody of the possession of such a document arises. To what extent will the reasonableness test be used as an excuse to ensure that a person does not have a document until the reverse burden of proof has operated to show that it is completely innocent?
Mr. Heath: I entirely support the intention of the two amendments in the names of the hon. and learned Member for Beaconsfield and the hon. Member for Newark. I agree, however, that amendment No. 81 would increase the time available to a constable, in normal practice, to make his record, which cannot be the proper intention. I am grateful to the hon. and learned Gentleman for accepting that. As the Bill says, it should be done,
“as soon as is reasonably practicable”,
but it might be sensible to have an outer limit as to what is reasonably practicable, for the avoidance of doubt. Having said that, I am worried that any time limit will be interpreted as a prescription for how long it should be, rather than as an outer limit. Therefore, it would be more helpful for the Minister to indicate his expectation in terms of police practice, and his interpretation of “reasonably practicable” in such circumstances.
12 noon
Mr. McNulty: I would interpret “reasonably practicable” as meaning as practicable a time as is reasonable.
I knew that, if I remained emollient all day, hon. Members would soften me up in the end. I agree broadly with what the hon. and learned Member for Beaconsfield says. If I thought that the amendment was seeking to restrict, in any fashion, the time that the police had, rather than at least give us a benchmark to the effect that any reasonable person would determine “reasonably practicable” to mean “within 24 hours”—that is a fair point—I would be a feeble Minister captured by the lawyers and officials, obliged to ask that we stay within the notion of
“as soon as is reasonably practicable”.
I would do so if it made sense, but it does not. So we will have that one—we will accept amendment No. 81 because it is perfectly reasonable: one-nil to the hon. and learned Gentleman.
I must resist the second amendment, however, because I think there is confusion. It is not about a copy of the document, but about a copy of the record of the seizure of the document. The hon. and learned Gentleman’s points on the import of the document to the individual and on the notion that, in the first instance at least, there is no criminal dimension afforded to it at all—we are talking about 48 or 96 hours, during which it can be established whether it is reasonable to take things on the ground of reasonable suspicion, and so on—are covered by clause 6. That clause allows access to the taken documents—I use “taken” specifically to avoid confusion with seized documents—if they are as important as he suggests.
Mr. Grieve: The Minister makes a valid point, but I am not sure that we are talking about the same thing: one is the document and the other is a copy of the document. I realise that, in many cases, having a copy of a document is as good as having the document itself, and I can see that it is easy to blur the two concepts. However, the fact that the Government draftsman has treated a copy in record of removal separately from access to documents makes me think that two separate issues can arise here. The purpose of access to a document may entirely different from the purpose of having a copy of a document. I assume that if the Government had not intended that, they would have run the two things together. That is why I treated the copy as a separate, distinct issue from having access to the document itself.
Mr. Heath: I thought that the hon. and learned Gentleman was making an intervention, which is why I did not want to intervene on him. [Interruption.] If he is making a speech, I will intervene. I seek your guidance, Mr. O’Hara.
Mr. Grieve: I apologise, Mr. O’Hara. The hon. Gentleman is quite right that the informality of our Committee procedure is leading me astray. It is time that I sat down.
Mr. McNulty: Therefore, in conclusion, that is why I would urge resistance to amendment No. 58.
Mr. Heath: There seems to be some degree of confusion in this debate, when we start talking about documents and copies of documents. What I had understood us to be talking about here is not the copy of any document, but simply the copy of the record that documents had been taken, which is a quite different matter. It seems to me that the Committee is getting confused if it considers the matter in a different way. Does the Minister agree?
Mr. McNulty: Of course I agree, having just made that point myself when I was intervened upon at length. In that context, it is entirely reasonable, as the element that we seek to amend suggests, that the constable must provide the copy
“within a reasonable time from the making of the request.”
Again, I think that that provision is entirely appropriate. As the hon. and learned Member for Beaconsfield was in part suggesting, I would have thought that good police practice would be that that copy of a record of the seizure would be forthcoming as quickly as possible. Given the nature of the timing, I would absolutely resist a provision that it be provided within six hours because I do not want—this is important for the individual concerned—a situation where six hours becomes the norm, when the copy of the record of seizure might be very important for the individual to carry on his normal, lawful business. I would resist that proposed change, because the notion that provision within six hours may well become the norm rather than contemporaneous or more instant, as the clause suggests, is more than appropriate.
We will accept amendment No. 81, as it is entirely reasonable. However, I ask the Committee to resist amendment No. 58 and all that it suggests about the copy of the record and not the copy of the document.
Tom Brake: Perhaps this is not the right occasion, but I was hoping that the Minister might be able to provide us with a little more detail about what the record must contain. I know that some detail is set out in clause 4, but I would like to know more about subsection (2)(a), which says the record must “describe the document”. At some point in the future, will there perhaps be a little more detailed explanation of the depth that that description of the document will go into? I ask that because, clearly, the document could be a large file with 1,000 pages in, which requires description in full, or there could be descriptions of the sections of documents, or the different types of documents contained within a folder.
Mr. McNulty: As I understand it, “describe the document” is an appropriate way of laying out the record, because that would cover, as we have suggested throughout our debate, a multitude of sins. “Describe the document” would cover a description of the document sufficient so that both the police officer who seized it and the person whose document it was recognise that that is the document that they are talking about, which is entirely reasonable. When seen in the context of all the other elements of the record, it is an appropriate record of the withdrawal of the document.
Remember too that the measure deals with the removal of a document for a short period of time to establish whether there is indeed reasonable suspicion to seize it lawfully. In that context, this is an appropriate record. I would resist any attempt to restrain, codify or prescribe what the description should be, but it should clearly be a description that both the police officer and the person whose document it is understand and recognise as an appropriate description of the document.
Where are we now?
The Chairman: I am trying to distinguish whether the Minister is accepting amendment No. 58 or amendment No. 81. However, I understand that the situation is that I invited questions to be put on amendment No. 81. So, are you going to push it to the vote?
Mr. Grieve: If I understood correctly, the Minister is accepting amendment No. 81.
The Chairman: The question must be put formally.
Mr. Grieve: It may appear remarkably curmudgeonly on my part not to accept the Minister’s largesse. May I explain that the amendment had originally been tabled by my hon. Friend the Member for Newark? I indicated when I opened the debate that I thought it had a potential flaw. On the whole, I would have preferred the wording to be “as soon as reasonably practicable, and in any event within 24 hours”. As I indicated, I would normally have assumed that good police practice would be to write out a list and hand it to the person as they were leaving the premises. Anything that suggested otherwise might send out a rather odd message.
Therefore, although I wanted a finite period for the reasonable practicability, I do not think that simply putting down 24 hours and thus encouraging the police to say, “The rules say that you can have it in 23 hours’ time,” is very good. I apologise to the Minister and the Committee. Perhaps this is illustrative of the fact that I regret that my hon. Friend is not present. However, if the Minister were to say that he would table an amendment on the basis of “reasonable practicability, and in any event within 24 hours”, I would give him a hug at the end of the sitting.
Mr. McNulty: I do not want the hug, but I accept that there is a midway position between what is already in the Bill and just “24 hours”. In all fairness, it would be a better place in legislative terms than where we are now. Therefore, on the premise that I do not get the hug, I would be happy to come back with something that hits both elements. I ask the hon. Gentleman to withdraw the amendment.
The Chairman: That is very helpful.
Mr. Grieve: I am delighted, and I thank the Minister. In the light of that, he will not be surprised to learn that I shall not press amendment No. 58 to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. McNulty: I beg to move amendment No. 73, in clause 4, page 3, line 41, leave out subsection (3) and insert—
‘( ) If, in a case where the document was found in the course of a search of a person, the constable does not know the person’s name, the record must include a description of the person.
( ) If, in a case where the document was found in the course of a search of any premises, the constable does not know the name of a person mentioned in subsection (2)(e) but is able to provide a description of that person, the record must include such a description.’.
Clause 4 requires a record to be made of the removal of a document, specifies the contents of the record and allows specified persons to request a copy of it. This is one of the safeguards attached to the power conferred by clause 1, which introduces a new power for the police to remove a document for examination during the course of a specified terrorism-related search to ascertain whether it is one that can be seized.
This minor Government amendment—I know that there are shivers and bristles all round when a Minister says, “This is a minor amendment, a technicality. Don’t worry about it.”—has the effect of requiring the officer to describe the owner or occupier of the premises searched, or the person searched, if he is able to do so. As currently drafted, the clause says that a description must be given irrespective of the officer’s ability to do so, and that the record of removal of a document must state the name of the person, if known, who is or appears to be the owner or occupier of the premises searched, and the name of any person who appears to have custody of the document. If the constable does not know the name, subsection (3) requires him to include a description of the person. The amendment means that if the constable cannot give a description of a person, he does not have to give one. It would cover, for example, the search of premises where the owner or occupier is not present.
In this case, at least, the amendment really is a minor matter. It simply tidies up the clause rather than otherwise, and I commend it wholeheartedly to the Committee.
Mr. Grieve: The amendment seems to me to be very sensible.
Tom Brake: I echo that point.
Mr. Llwyd: The Minister is right in saying that the clause needs amending. In fact, it could have been fatal to the prosecution if it were not amended in this way.
Amendment agreed to.
12.15 pm
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Heath: I want to explore a little more the point made by my hon. Friend the Member for Carshalton and Wallington. I entirely accept that the Minister does not want to prescribe in precise detail how the record of the document seized is put together, but what is the consequence if the record is misleading or incorrect? What if it omits documents that have been seized or wrongly describes them for the purpose of the record which, after all, is what the potential defendant—they are not accused at this point—from whom the seizure has been made relies on to ensure both that he knows what documents have been seized and what documents should be returned to him.
I am not sure what the answer might be, but does it invalidate the terms of the original warrant if the description is incomplete or incorrect? What if, for instance, a constable mistakes a document in one language for a document in another and puts the wrong description on it? That is quite possible if he is not familiar with the languages. One of the main reasons for removing the documents may well be that he or she cannot read them. What would be the consequences if a record of seizure is incorrectly made out?
Mr. McNulty: Unless I am corrected, I think that the point is moot. First, once the process has finished, either the document will be an entirely innocent one that was not properly seized in the first place and so it will be returned forthwith to its owner, which is what these two days about; or it will be a document that has been appropriately seized and it will then be logged in far more detail in the appropriate fashion to secure the potential evidentiary trail. If either of those two occurs, the hon. Gentleman’s concern falls or is redundant.
Mr. Llwyd: The Minister is absolutely correct. The point at issue is the continuity of evidence—the trail. That has to be accurate in order to found any prosecution in due course.
Mr. McNulty: Yes, to pursue the hon. Gentleman’s example, if the document is in Farsi but it has been wrongly ascribed as Urdu, and upon further investigation it is seen to be the Peshawar restaurant menu and it is returned to its owner without further concern or disruption, so be it. If it turns out to be a key al-Qaeda document and the Farsi expert brought in had some difficulty but soon established that it was not Farsi but Urdu, and once it was finally translated it was found to be a document that was more than appropriately seized, then it would be logged in the evidentiary chain and the case would be built up or otherwise.
I do not think that this is a concern. There would be more concern if, as the hon. Member for Carshalton and Wallington said, we over-prescribed on the Bill what the description should be. Even in that case, given that this is but part of a process to establish whether it is lawful to take the document, I do not think that the hon. Gentleman’s concerns are justified or should cause him to lose any sleep.
Question put and agreed to.
Clause 4, as amended, ordered to stand part of the Bill.
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