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.
Mr.
McNulty:
I take the amendment in the spirit that it is
offered. It is deficient for a reason that I will come to later. Even
though we are talking about a mere 48
hours, these are important matters. I have some sympathy with the idea
that it should be in the Bill that an officer from inspector upwards
must clear in his or her own mind that the criteria and safeguards
implicit in clauses 1, 3 and 4 have been adhered to. However, I cannot
accept the amendment because I see no reason why the provisions of
clause 2 on obstruction should form part of that assessment. The issue
of obstruction is entirely separate, for reasons that we have
discussed.
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 want to
reconsider the whole architecture of the clause, which is why I intend
to withdraw the amendment. It is important that the police
have
the necessary powers to prevent terrorism through
the seizure of such documents and that people do not have unreasonable
rights to interfere and ask for documents to be returned, or even for
photocopies to be made. However, the logical conclusion of interfering
in such a private right is that provision ought to be made to pay
compensation, in the extraordinary circumstance that the interference
leads to a person suffering loss. 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.
| 
