Clause
7
Photographing
and copying of
documents
Question
proposed, That the clause stand part of the
Bill.
Mr.
McNulty:
The clause is very straightforward and provides
that documents removed under the clause should not be photographed or
copied unless they are in electronic form and a copy is needed to make
them visible and legible, which I think is an entirely appropriate
further safeguard against the improper use of the power. I do not know
whether the provision will now have to be amended, in the light of my
earlier emollience, to say that we could—notwithstanding the
safeguards for the police under subsection 6(3)—probably afford
a copy of the document to the individual. I am not sure what the
interplay is between the two things, given that the provision prohibits
the photocopying and photographing of the documentation. I shall have
to look at that. However, in my limited knowledge at the moment, I
commend the clause to the
Committee.
12.45
pm
Mr.
Grieve:
I had not intended to intervene, but I want to
clarify something that the Minister said that perhaps I misunderstood.
I assumed that the provision was designed essentially to ensure that,
if documents were returned, the police had no power to retain copies. I
assumed that that was what the Minister intended and what the provision
achieved. The only power to produce copies seemed to me to be in the
investigative process of downloading what appears to be on computers.
As long as that is so, I have nothing more to worry
about.
Mr.
McNulty:
That is so. Perhaps I over-egg the pudding in
saying that I do not know how that relates to what I conceded on. If
the seized document is retained but an individual is afforded a copy of
it, clearly, if it is an electronic document, it will be given in paper
form. The provision also makes it clear that every copy held in that
form, purely for legibility, is to be destroyed subsequent to the
return. I was concerned only with the interplay between that and my
earlier concession. It is as the hon. and learned Gentleman describes
it.
Mr.
Grieve:
I am grateful to the Minister. As far as I was
concerned, the interplay was that a copy of the document would be
produced during the 96-hour period, at the end of which the original
must still be returned to the individual
concerned.
Question
put and agreed
to.
Clause 7
ordered to stand part of the
Bill.
Clause
8
Return
of
documents
Question
proposed, That the clause stand part of the
Bill.
Mr.
Llwyd:
With regard to clause 8(3), which
says,
“Where
different persons claim to be entitled to the return of the document,
it may be retained for as long as is reasonably necessary for the
determination of the person to whom it must be
returned”,
I am curious
about who will make that determination. Will a senior police officer be
acting in a quasi-judicial role? Is not this nit-picking? As the
Minister will know, in respect of counter-claims on property that comes
into the possession of the police, there is already legislation on the
statute book called the Police (Property) Act 1997, which would
normally trigger an application to a magistrates court, where both
parties could argue and the court would make a finding. Is it at all
possible to use that procedure? How exactly would the question be
determined?
Mr.
Grieve:
I endorse everything that the hon. Member for
Meirionnydd Nant Conwy has just said. I wondered, too, on reading the
subsection, what the mechanism was. I assumed that the mechanism that
he mentioned would be used. Otherwise, leaving the matter to the
discretion of the police officer is invidious for him, if there is a
real dispute about whose document it is. As the hon. Gentleman rightly
said, there is an established procedure for dealing with such matters.
It is noteworthy, however, that that procedure is not commented on in
any way in the Bill. It might not be necessary, but it is an existing
statutory
provision.
Tom
Brake:
I hope that the Minister will set my mind at rest.
When there is a dispute about whom the document should be returned to,
will it in practice be clear that that cannot be used as a reason for
further consideration by parties interested in that document?
[Interruption.] I am getting the nod from officials, so I do not
think that the Minister even needs to
respond.
The
Chairman:
Nevertheless, I call the Minister to
respond.
Mr.
McNulty:
How can the hon. Gentleman get the nod from
people who are not in the room? Under our parliamentary terms, there is
nobody here at all, save for the Clerk, the Chair and Hansard
staff.
There is a
similar provision, in terms of a dispute over ownership, in the 2001
Act. In that regard, the police make the determination. I am fairly
comfortable with that, but I take seriously the point made by the hon.
Member for Meirionnydd Nant Conwy. I will have a look at the matter,
not least in the context of getting the police out of what may be an
invidious position. If the Police (Property) Act 1997 were included to
dispel or determine such disputes, that might be better. For now, I am
broadly comfortable with the clause as it is. As the hon. Gentleman
implies, in the overwhelming number of cases, it will be absolutely
clear, a matter of the record, or the dispute may be highlighted at the
record stage. We can deal with it in that way. He made a good point,
and I shall look at the matter further, but I am content with the
clause as it is.
As I
understand it, there is no provision to go beyond 48 or 96 hours for
inspecting the document and dealing with all the detail, as inferred by
the hon. Member for Carshalton and Wallington. It is not that there is
a dispute about who to give the document back to. It is not the case
that officers can say, “Oh, great, we get another period of time
to explore the document further.” The clause is merely about
including a provision that says that there may well be a dispute at
that stage, and that it is for the police to
resolve.
I will
explore further the point made by the hon. Member for Meirionnydd Nant
Conwy and perhaps come back to the Committee on the
matter.
Question
put and agreed to.
Clause 8 ordered to stand
part of the Bill.
Clause 9 ordered to stand
part of the Bill.
Clause
10
Power
to take fingerprints and samples: England and
Wales
Tom
Brake:
I beg to move amendment No. 5, page 6, line 29,
after ‘constable’, insert
‘with the authority of an officer
of a rank no lower than
inspector’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 6,
page 6, line 40, after
‘constable’, insert
‘with the authority of an officer
of a rank no lower than
inspector’.
No.
8, in
clause 12, page 9, line 2, after
‘constable’, insert
‘with the authority of an officer
of a rank no lower than
inspector’.
No.
9, in
clause 12, page 9, line 13, after
‘constable’, insert
‘with the authority of an officer
of a rank no lower than inspector’.
Tom
Brake:
This is a probing amendment. Members familiar with
the Bill will be aware that clause 11, which deals with the power to
take fingerprints and samples in Scotland, is explicit in requiring a
constable to get the authority of an officer of a rank no lower than
inspector, whereas that is not the case for England and Wales. Clause
10 simply requires a constable’s authority to take fingerprints
and samples.
I accept
fully that devolution is a wonderful thing and that discrepancies arise
in legislation, but I would like to understand a little better why the
Government are not seeking the additional safeguards that are provided
in Scotland for England and Wales. In Scotland, the authority of an
officer of the rank of inspector is required to authorise the taking of
fingerprints and
samples.
Mr.
McNulty:
The police powers to collect and use fingerprints
and non-intimate samples following an arrest for a criminal offence are
governed by separate legislation and procedures in England and Wales,
Northern Ireland and Scotland, as the hon. Gentleman implies. In
England and Wales, or Northern Ireland, a constable can authorise the
collection and use of fingerprints and non-intimate samples under PACE
or its Northern Ireland equivalent respectively. The police in Scotland
are subject to separate powers under the Criminal Procedure (Scotland)
Act 1995, which requires authorisation from an inspector or above for
particular but not all types of
samples.
The
provisions in clauses 10, 11 and 12 are intended to regularise police
powers across the UK to take routinely, use, store and retain the
fingerprints and non-intimate samples of individuals subject to
control orders, and, crucially, to ensure that they are in line with
existing procedures for the country
concerned.
To demand
authorisation from an inspector or above in England, Wales and Northern
Ireland would create an unnecessary difference between the current
framework under PACE and that for control orders. The review of PACE
public consultation exercise has clearly shown that the current
framework works effectively. To introduce a further tier to the
framework would cause confusion and place unnecessary demands on
operational resources. Therefore, we do not believe that there should
be an exceptional level of authorisation for the collection or use of
fingerprints and non-intimate samples for individuals subject to
control orders. The power to take fingerprints and samples in clauses
10, 11 and 12 is simply about regularising control orders with existing
powers in the respective jurisdictions. This is not a case of
decreasing or increasing the level, but of making control orders
reflect wider
legislation.
We do not
think it appropriate to debate the larger issue of levels of
authorisation contained in PACE and its Northern Ireland equivalent in
this narrow context. The hon. Gentleman’s wider point about
moving the level from inspector to constable may be an appropriate
concern, but it is not appropriate here. All we are seeking to do is
plug a little gap in control order legislation within the existing
jurisdictional parameters. I might have had some sympathy with
him—I do not, as it happens—on the wider issue of whether
it is time that PACE and its Northern Ireland equivalent should
go up to the Scottish level and insist that an officer of inspector
level or above is involved in fingerprints and
samples. The clauses
under discussion are very narrowly defined and relate to an oversight
in the control order legislation. We are seeking the power to take
fingerprints and samples from those on control orders. In seeking to do
that and no more, it is entirely reasonable to do so within the
prevailing jurisdictions of England and Wales, Northern Ireland and
Scotland. The broader debate that the hon. Gentleman wants to have is a
perfectly reasonable one, although I do not agree with it, but it is
not for this
discussion.
As
I have said, under the 1995 Act, in Scotland the taking of some, but
not all, samples requires the authorisation of an officer of the level
of inspector or above. To avoid confusion, clause 11 mirrors that
standard requirement rather than any differing standard. On a narrower
point of detail, it is worth noting that the amendments would go beyond
the position in Scotland in two respects. If the intention was to
mirror Scotland, the amendments are flawed. First, in Scotland,
authorisation from an inspector is required in relation to only some,
not all samples. The amendments propose that the level should be that
of inspector for all such samples. Secondly, in Scotland, authorisation
from an inspector is not needed for a constable to require an
individual to attend a police station to have a sample taken. The
amendments propose that there should be such authorisation in England,
Wales and Northern Ireland. For practical as well as more general
purposes, I do not like the amendments. I consider them flawed and
inappropriate in this narrow context, although I accept the wider
debate.
In the PACE
review and consultation that has been ongoing for the best part of a
year and which is about to come to fruition, we invited interested
parties, practitioners and the public to set out the agenda for
changing PACE significantly, should they so choose. The level of
authorisation for the taking and retention of fingerprints and samples
was not raised in response to that, nor in subsequent detailed
discussions with stakeholders from across the criminal justice system.
Given the narrow thrust of these measures, I ask that the amendment be
withdrawn. I say cheerfully that there is a wider argument to be had
about PACE, which, remarkably, as the review has shown, has stood the
test of time very well since 1984, despite successive amendments to it
over the years. On reflection, before the dash to lunch, let us throw
the amendment out with alacrity and move
on.
Tom
Brake:
I thank the Minister for his response. Clearly, his
level of emollience is linked to the proximity of lunch. I do not wish
to detain the Committee any longer.
I acknowledge the
Minister’s comments about the need for a broader debate. I think
that he referred to the need to raise the standards in England, Wales
and Northern Ireland to those in Scotland, so perhaps we can return to
that at another point. He said that there were concerns that that would
raise undue burdens. Before I withdraw the amendment, will the Minister
clarify whether any concerns have been raised with him from Scotland on
the undue burden that is caused by the need for an inspector to
authorise the taking of fingerprints and
samples?
Mr.
McNulty:
The Scottish system has been the Scottish system
for so long that no concerns have come from it about undue burdens due
to authorisation from inspectors. That is what prevails and always had
prevailed, prior to and including its codification in PACE. My point
clearly was not that there was an undue burden in going to the level of
inspector for authorisation. It was that, given that we are filling a
little gap relevant to control orders, it is appropriate that the
measure reflects the existing jurisdiction.
Tom
Brake:
I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
It
being One o’clock,
The Chairman
adjourned the Committee without Question put, pursuant to the
Standing
Order.
Adjourned
till this day at Four
o’clock.
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