Further written evidence to be reported to the House

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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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