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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