Further written evidence to be reported to the House

[back to previous text]

Clause 5

Retention of documents
Tom Brake: I beg to move amendment No. 4, in clause 5, page 4, line 22, at end insert
‘, provided that he has satisfied himself that the provisions of sections 1 to 5 have been properly met.’.
The amendment is probing. We may touch on some of the ground that my hon. Friend the Member for Somerton and Frome, taking the example of a misleading record. We are trying to establish whether there is any bar in place to stop a 48-hour extension being sought if there are any breaches of the recording procedure during the original 48 hours after a document has been taken away to be considered. That could include how the document has been handled, or a privileged document being looked at by somebody who is not party to assessing whether the document is relevant.
The amendment would ensure that everything is done by the book in the first 48 hours, as one would expect. It would give the additional pressure or encouragement of the sanction that if there had been a clear breach, such as many significant mistakes in the record of removal, the extension would not be allowed. I hope that the Minister will consider the amendment and go into greater detail about how this measure will operate, such as whether there are safeguards for the first 48-hour period or sanctions if the rules are clearly breached.
That it should be in the Bill that an officer at the rank of inspector or above should make it clear whether the provisions of clause 1, the implications for legal privilege in clause 3 and the requirements for the record of removal in clause 4 have all been followed in an appropriate fashion as part of his determination of whether there should be an extension is a fair and reasonable point. I will look at that and come back to it on Report.
I am sure that the notion that the inspector should consider in full whether there has been a crime of obstruction in that process was an inadvertent drafting error, but for that reason I cannot accept the text of the amendment. I am happy to take away its spirit and see if we can put the safeguards implied in clauses 1, 3 and 4 in the Bill as part of those criteria. That is entirely reasonable. With that assurance, I ask the hon. Gentleman to withdraw the amendment.
Tom Brake: In spite of his gruff appearance, the Minister has once again demonstrated emollience. I acknowledge the drafting error in the amendment. The Minister has correctly identified that the Committee should be concerned with only clauses 1, 3 and 4, but he has responded very positively. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 ordered to stand part of the Bill.

Clause 6

Access to documents
Mr. Grieve: I beg to move amendment No. 82, in clause 6, page 5, line 2, leave out paragraph (b).
The Chairman: With this it will be convenient to discuss amendment No. 83, in clause 6, page 5, line 5, leave out paragraph (d).
Mr. Grieve: These are probing amendments so that we can tease through what the clause provides for. Perhaps I can come back to what I said a moment ago when I was getting befuddled about the question of the copying of documents. The matter concerns me and I have been raising it as a recurrent theme throughout the morning. I think that this is now the right time to discuss it.
In clause 6, provision is made for a person to have access to the seized documents. It is obviously an important principle because those documents belong to the individual concerned. I can envisage that there may be circumstances in which, although the seizure of the documents may not yet have taken place, the police’s suspicion that the documents are terrorist related is such that they may be reluctant even to allow the person to have access to them. As I understand it, the architecture of clause 6 and its subsections is to provide circumstances in which access can be denied.
I want to highlight a few points. If the person involved is not under investigation for any offence, what is subsection (3)(b) aimed at? One would expect the measure to be covered by subsection (3)(d), which is deals with facilitating the commission of an offence. That is really the nub of the two amendments.
Perhaps I could flag up something else for the Minister to explain. Access to a document may be required for different purposes. What is envisaged by the word “access” in that context? Does it mean that one may go and look at the document; that one may, if it is possible, photocopy the document so that one can use the copy even though the original might be retained; or simply, that one may go and look at it behind a glass screen so that one can see that it is still there?
There is a lack of clarity in clause 6, which is not tackled by my amendments. Perhaps we could deal with that in clause stand part, or, if we want to avoid a stand part debate, we could deal with it here. Talking about the rights of access brings me back to one of my earlier points. In many cases, a person may be completely comfortable—or may not make a big fuss—when a document is taken away as long as they have a copy from which they can work. As far as I can see, I do not think that there is a provision that allows the person to have a copy even if the original has to be retained, but I may be wrong about that. Will the Minister take the opportunity to deal with those points?
Mr. McNulty: As the hon. and learned Member for Beaconsfield suggests, it might be worth exploring the broader issues here rather than at stand part.
The Chairman: Order. Once again, I rule that the clause stand part debate is grouped with the debate on this clause.
Mr. McNulty: Thank you, Mr. O’Hara.
Clause 6 makes provision for certain persons to have access to documents removed for examination under clause 1. Although removal of a document for a period of up to 96 hours may have little or no impact on some, I recognise the point that, for others, the document concerned may relate to important business, family or other matters. I think that that is perfectly reasonable, which is why clause 6 provides for the right to supervise the access. It is made clearer in the explanatory note, which says:
“Clause 6 allows a person referred to in subsection (2) to have access, on request, to a document retained under the provisions of clause 1, under the supervision of a constable.”
The hon. and learned Gentleman is entirely right that the measure is not about affording a photocopy or other copy of the document, but about access other than in relatively, but reasonably, limited circumstances. I understand the spirit of the amendments, which are rightly intended to seek clarification on the functionality and purpose of an important safeguard.
12.30 pm
It is important that access is not granted if the officer in charge of an investigation has reasonable grounds for believing that it would prejudice criminal investigations or proceedings, or that it is sought for a nefarious purpose such as to interfere with a prompt and effective investigation into terrorism-related offences or to facilitate further offending. As the hon. and learned Gentleman implied, the amendments are intended to limit the circumstances in which access can be refused. Their result would be to enable access that might hinder investigations into criminal offences already committed or facilitate the commission of new offences.
I consider that each of the reasons for limiting access set out in clause 6(3) is required. Subsection (3)(a)(i) is required to cover the original investigation, for example a search under proposed new section 7A of the Prevention of Terrorism Act 2005, conducted to see whether a person subject to a control order has absconded. Subsection (3)(a)(ii) covers the investigation of the document in question, so that access may be refused if, for example, it would prejudice the process of examination by slowing it down and taking it outside the time scales for retention—48 hours in the first instance, or 96 hours ultimately.
Subsection (3)(b) covers matters relating to the investigation of an offence, such as if it were thought that access would tip someone off about the documentation seized, meaning that other evidence of the offence could be covered up. Subsection (3)(c) covers the prejudice of criminal proceedings, the justification for which speaks for itself. Subsection (3)(d) covers matters related to the facilitation of an offence, for example access to a document that might contain information about potential terrorist targets.
As the Committee will know, similar restrictions on access to documents seized are provided in section 21(8) of the Police and Criminal Evidence Act 1984, on the prejudice of investigations or criminal proceedings. I accept the notion that, even with clause 1 agreed to, we are still in a twilight zone of establishing whether it is appropriate to seize the documents in question in the first place. We need to be mindful of that, even in the context of restrictions of the right to access, albeit supervised. I take the thrust of what is suggested in the amendments, but to lose subsections (3)(b) and (3)(d) would be disadvantageous to the intention of the Bill. I therefore ask that the amendments be withdrawn.
Mr. Grieve: I am grateful to the Minister for his explanations and accept them entirely. I can see that the amendments could have the consequences that he has described. I am grateful to him also for having outlined a little more clearly how the clause is designed to operate.
I know that we will consider an amendment on appeals in a moment, but perhaps this is an appropriate moment to return to the generality of the clause, which is whether an express provision should be made so that, for example, the police might provide a photocopy of a document that somebody needed. I appreciate that that might be a very rare occurrence, partly because of the very short period of time involved, but it troubles me slightly. There must be a potential risk that the police will inadvertently seize a document that is required the following morning for a pressing legal reason. Such things can happen.
One possibility is to allow for discretion to provide copies, but obviously only if the police were satisfied that that would not conflict with any provision of subsection (3). The second, which I shall come to in relation to the next amendment, is to have a mechanism to provide for an appeal if there are urgent grounds for challenging the retention of documents for a short period of time, or if there is a pressing need for a document. I simply throw that in as something that the Minister may like to consider before Report.
Mr. McNulty: We will come to amendment No. 59 in due course, but I will give that undertaking in the context of amendments Nos. 82 and 83, which dilute the provisions that the police need as a backstop. I will explore, unhappily not at the moment although I would like to, the notion of some general—albeit discretionary in the context of clause 6(3)—provision for the photocopying of documents where practicable. I say that in the context of our discussion about what a document is: a copy might take more than the 40 or 96 hours prescribed by this part of the Bill. In that spirit, however, I repeat that all elements of clause 6(3) are necessary to do that with confidence.
Mr. Grieve: I entirely accept that. They were probing amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn .
Mr. Grieve: I beg to move amendment No. 59, in clause 6, page 5, line 5, at end insert—
‘( ) An appeal against any refusal of access to a document may be made to a judge of the crown court.’.
Although I have already touched on the lack of a system of appeal, it is right to highlight it. I fully accept that 96 hours is a short time and the Minister is right that, generally, it is difficult to think that anybody will be deeply inconvenienced by losing documents for that time. But is it right as a matter of principle that there should not be liberty to apply to the court? That is a powerful interference with private rights—for a good reason, but an interference nevertheless. If that right were to be abused or used frivolously, having a system by which an appeal could be raised seems sensible.
I specifically chose the Crown court rather than the High Court because the matter could probably be dealt with speedily there. That would not provide for an emergency application at a weekend, but on any weekday there would be Crown court judges around who could take a view as to what the problem was. That would also help to resolve the problem posed by somebody saying, “Actually, you have taken away the contract document that I require to conclude a contract on which I am going to make a profit of £50,000 and which I need for tomorrow morning. What are you going to do about it?” The danger that I perceive is that if such an event were to take place and the documents were retained, there would be fertile area for lawyers bringing claims for damages. It would be wise for the Government to put in a system for protecting themselves against that—I admit, remote—contingency. That is what the amendment is about.
Mr. McNulty: Clause 6, as already suggested, provides that those people set out in subsection (2), or their representative, may, on request to the officer in charge of the investigation, be granted supervised access to a removed document while it is being retained. We cannot allow unfettered access to material that is the subject of a police investigation. Therefore, where granting access would affect police investigations, it is wholly appropriate to deny access to the removed material.
The hon. and learned Gentleman suggests an amendment that would insert a right of appeal to a Crown court judge should the request for access be refused. That is an unnecessary step, in the context of both the power, under which a document can be removed for a maximum of 96 hours, and of the safeguards already proposed. In addition there is the potential safeguard of a copy being provided for that limited time. In recognition that the power is wide-ranging, as we have all concurred, we have added a substantial number of safeguards—found in the clauses—which include protection for items subject to legal privilege, a requirement to make a record of the removal, strict time limits for the retention of documents under the power, access to the documents by specified persons, and prohibition on the photocopying of documents by others. In addition, I might come back with a provision regarding a copy for the individual if required, within the context of the safeguards for the police under clause 6(3). Given the proposed safeguards, we do not feel that the amendment is necessary.
I return to the example suggested by the hon. and learned Gentleman. If the documents removed dealt, in a foreign language, with a contract behind which might be a pending profit, it would be incumbent on the individual to help the police in every regard by explaining precisely what the documents are. If an entirely legitimate potential profit of, say, £50,000 was pending, I would have thought that the individual would move heaven and earth to assist the police. If, given the substance of other documents and evidence seized as part of an investigation, the police have even a remote notion that a document, once translated, and any subsequent profit, could prove to be evidence of acts preparatory or precursor activities to terrorism, it would be right and proper for them to maintain their position. In the context of the 96-hour limit, the caveats and the ability to access documents now provided for in the Bill, an appeal process to the Crown court would be a trifle excessive, so I ask him to withdraw the amendment.
Mr. Grieve: I am mindful of the fact that I do not wish to complicate matters that do not need to be complicated. The Minister makes a perfectly valid point: the period provided for is short, so an appeal process to the Crown court might not be the right approach. However, if the Government are so certain that the substantial power in the clause will not cause loss to individuals, they should put it in the Bill that, if, when the documents are returned, somebody can demonstrate a loss, the Government will pay compensation and damages to those who have suffered it—I notice the permanent officials if not blanching, looking askance. However, we have had this before in criminal justice legislation.
I normally accept that principle over resorting to litigation under the ECHR, which might otherwise be the solution. In a sense, the idea of putting in an appeal procedure was to avoid that. With a quick appeal procedure, someone could go to a judge and say, “Look, you have got this terribly wrong, and my interpreter can show to you immediately that this is what it is and that I need it by 12 o’clock today.” That would ensure that such problems do not occur. I accept that those circumstances are likely to be very unusual, but nevertheless history shows that unusual things happen. Having said that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 6 ordered to stand part of the Bill.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 30 April 2008