Bridget
Prentice: I understand how the hon. and learned Gentleman
is a little confused. There is not an implied interrogatory. Paragraphs
(a), (b) and (c) say that all those groups of people have to be able to
see and hear what is going on, if the live link direction at the
beginning of subsection (7) is given. There is not a follow-on. Rather
than
saying “but
in circumstances in
which”, perhaps
the subsection should say something simpler, such as “and that
the judge, the jury and any other person are able to see and hear what
is going on”—that would be
good.
Mr.
Garnier: That is helpful. “And” and
“but” are different sorts of word. They are both
conjunctions, I accept that—lots of words are nouns, but they
mean different things. However, we are getting into angels on the head
of a pin. The Minister has got my point and, if she has finished, I beg
to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
87 ordered to stand part of the
Bill. Clause
88 ordered to stand part of the
Bill.
Clause
89Directions
to attend through live
link
Mr.
Garnier: I beg to move amendment 86, in clause 89,
page 52, line 22, at end
insert— ‘(1A) In section 57A
(live links: introductory) after subsection (2)
insert—
“(2A) A live link direction shall not be
given in the absence of the accused’s consent unless the court
is satisfied that he or his legal representative has been informed by
the court or the prosecution of the nature and purpose of the live link
hearing.”’. The
clause amends the Crime and Disorder Act 1998. The amendment
would create proposed new subsections (1A) and (2A). The
changes are partly a matter of common sense, and will be clear to those
present at the discussion in the court about the use of the live link.
We hope that no order will be given for a live link hearing unless the
accused knows what is going on. However, in the case of an absent
accused person, it is all the more important that the procedure, the
purpose and the consequences of the order are made superabundantly
clear to them, so that there is no confusion and, thus, no unnecessary
cause for subsequent appeals or disturbance of the
process.
David
Howarth: It does not seem entirely sensible for all the
arrangements that have been piloted on such matters to be changed under
clause 86 before they have been finished and evaluated. Will the
Minister explain at some stage why the changes are being made now or,
if indeed, whether they will be made now or after the pilots have been
completed?
Bridget
Prentice: I do not disagree with the objective of the
amendment tabled by the hon. and learned Member for Harborough, but I
hope that I can convince him that it is unnecessary. When defendants
are represented, we legitimately expect that their representatives will
explain to them the nature of the hearings. Indeed, if there are doubts
during the hearing about the defendant’s understanding of the
process, we expect the court rightly to intervene. In cases when the
defendant is unrepresented, the court will always endeavour—as
it does at the moment—to give whatever assistance is necessary,
so that the defendant can understand the proceedings. In fact, it would
be highly unlikely in practice for a court to begin a live link hearing
without an explanation being given to the defendant about its nature
and purpose. That explanation can be given either at the start of the
hearing when the direction is given or, for example, at a pre-arranged
sentence
hearing. The
court has to be satisfied that it would not be contrary to the
interests of justice to give the live link direction. It could not
satisfy itself in that way without first ensuring that the defendant
understood what was going on. I hope that I have given the hon. and
learned Gentleman sufficient confidence to enable him to withdraw the
amendment.
Mr.
Garnier: I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
89 ordered to stand part of the
Bill. Clause
90 ordered to stand part of the
Bill.
Clause
91Searches
of persons answering to live link
bail
Mr.
Garnier: I beg to move amendment 91, in clause 91,
page 54, line 12, leave out from
‘constable’ to ‘of’ and insert
‘must record or cause to be
recorded all’.
Mr.
Bellingham: It sounds like a Liberal Democrat
amendment.
Mr.
Garnier: I accept what my hon. Friend the Member for
North-West Norfolk has said from a sedentary position. That we
associate the Liberal Democrats with recording information in police
stations shows how politics is
changing. Amendment
91 gives rise to a discussion similar to the one that we had earlier.
It would make it clear that proper procedures and processes must be
followed. It sounds tedious, but it essentially changes
“may” to “must”, which is an old argument
that often takes place in Public Bill Committees.
I seek to
ensure that those who are in police stations answering to bail via a
live link between the police station and the court have their
possessions adequately recorded. It should not be a matter only of
constables’ discretion; we need something a little more formal.
I appreciate that police officers have plenty to do without writing
down huge amounts of information, but this measure comes from an
abundance of caution. It seeks to ensure that there are no problems
after a live link hearing, when the person answering to bail says,
“Well, I came in with such and such, and now I don’t have
it. The policeman must have stolen it, or the police have lost
it.” It is a sensible precaution to have things recorded as a
matter of course, rather than as a matter of discretion.
Amendment 87
is perhaps of more importance. It is designed to help the police and
those who administer the criminal justice system. At the moment,
subsection (6)
says: “The
constable carrying out a search under subsection (1) must be of the
same sex as the person being
searched.” As
a matter of general policy, that is sensible and civilised. However,
one can imagine circumstances in which it would not strictly be
necessary for a same-sex search to take place, particularly those
circumstances outlined in amendment 87. There might be people who are
happy to be searched by someone of the opposite sex, and as long as
that does not cause embarrassment or other problems for the searcher,
the police should be prepared to accept that
consent. If
there is a wholly unreasonable refusal to be searched by someone of the
opposite sex, why should a relatively senior police officer not be able
to exercise common sense and discretion to conclude that a same-sex
search would be impractical, and that an opposite-sex search could be
carried out without causing the concerns outlined in our amendment?
There are plenty of good reasons for having same-sex searches, but
there may be occasions where that is not sensible and it would be
unreasonable to insist on it. I put that forward for the consideration
of the Committee, and invite the Government to respond.
David
Howarth: As the hon. and learned Gentleman said, amendment
91 is a Liberal Democrat type of amendment, and I am glad to support
it. I want to add a more general point about amendment 87 and how the
provision seems to work.
The
Chairman: Order. We have not yet got to
amendment 87. We will come on to that when we have finished
with amendment 91.
Mr.
Garnier: I apologise—I jumped ahead. If the
Minister would like to respond to my argument in relation to amendment
91, I will in due course make some arguments about amendment
87.
The
Chairman: Oh dear. Minister, would you care to oblige the
hon. and learned Gentleman?
11.15
am
Bridget
Prentice: I will do what I can. Clause 91(4), which the
amendment relates to,
states: “The
constable may record or cause to be recorded all or any of the things
seized and
retained”. That
is based on section 54(2) of the Police and Criminal Evidence Act 1984,
which applies to searches of detained persons at a police station. The
provision originally required a recording of everything that a detained
person had with them, which is the effect of the hon. and learned
Gentleman’s amendment. But the present wording was substituted
in by the Criminal Justice Act 2003 to reduce the substantial burden on
police officers through having to record large volumes of property. The
change enabled officers to put all the defendant’s belongings
into a sealed bag, and then record the bag rather than each individual
item. The amendment would create a provision that is not unlike one
that was amended by Parliament as recently as 2003. Given that both
sides of the Committee would like to reduce unnecessary police
bureaucracy, I hope that the hon. and learned Gentleman will withdraw
his amendment, and after that, I will discuss amendment
87.
Mr.
Garnier: I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Garnier: I beg to move amendment 87, in clause 91,
page 54, line 16, after
‘searched’, insert ‘unless that
person consents to being searched by a police officer of the opposite
sex or a police officer of the rank of Inspector or above concludes
that a same-sex search would be impractical, that any such search can
be carried out without causing racial, religious or sexual offence and
that unreasonably to insist on a same-sex search would unnecessarily
delay the bail
hearing.’.
The
Chairman: This should be brief, I
think.
David
Howarth: I have a slightly more general worry about how
the clause works. Subsection (2) states
that: “a
person who fails to attend at a police station at the time appointed
for the person to do so includes a reference to a person
who— (a)
attends at a police station to answer to bail granted subject to the
duty mentioned...
but (b)
refuses to be searched under section 54B”.
The provision is
rather strange. If someone turns up at a police station to answer to
bail, so that they can take part in a live link, they count as not
having turned up if they refuse to be searched. However, they are
allowed to refuse to be searched under the clause, for example, in
circumstances where a person of the same sex is not
available.
In any case,
the whole thing seems odd. Proposed new section 54B gives a power to
search, and in circumstances where the clause applies, it appears that
people who turn up at a police station, say that they are answering to
their bail, but do not want to be searched, would go against the law.
If that were the case—if they were then forced to be
searched—they will count, simultaneously, as having refused to
turn up for their bail hearing. That seems to make no sense, so the
whole section seems rather confused. I would like the Minister to
explain why it is that a person in that position is put in jeopardy of
being told that they have failed to turn up, when plainly, they
have.
Bridget
Prentice: I will first respond to the hon. and learned
Member for Harborough, who tabled the amendment. He suggested that
there are situations where the search could be conducted by a constable
of the opposite sex. Proposed new section 54B to the Police and
Criminal Evidence Act 1984 requires that the defendant answering to
live link bail be searched by a constable of the same sex, which is in
line with the position of searches for detained people under section
54(9) of the 1984 Act. I do not see a particularly good reason for
treating defendants answering to live link bail differently from other
detained persons. I am not sure that everyone would accept that it is
better to oblige a defendant to submit to being searched by a member of
the opposite sex rather than, perhaps in a live link case, to delay the
hearing by a little while. Practically, it would be unusual for there
not to be an appropriate officer who could conduct a same-sex search in
a live link bail case. On that basis, I hope that the hon. and learned
Gentleman will withdraw his
amendment. I
turn to the comments made by the hon. Member for Cambridge. In order to
ensure the safety of people and minimise any risk of harm to them or
the defendant at the police station, it is important that the police
have the power to search defendants on their return to the station to
answer to live link. The new power will be available as a matter of
routine, though the police will have some discretion, and in practice
the search will be risk-based. That is appropriate, because it puts the
defendant answering to live link bail at a police station in the same
position as those answering to bail at
court. I
realise that does not fully answer all the points made by the hon.
Gentleman, but I want to reflect on what he said to make sure that
there is no distinction between what happens to the live link bail
defendant and someone bailed at court. It is not the purpose of the
provision to force defendants to be searched; it is just to confer
power on the constable to be able to do so. If the defendant were to
refuse, they would be treated as though they had just been charged.
That is in effect what would happen, and they would be dealt with
accordingly, which would put them on a parallel with someone bailed
from court. On that basis, I ask the hon. Gentleman to withdraw his
amendment.
Mr.
Garnier: I thought we were going to have a David Thomas
moment. It is well worth having them from time to time to expose the
pinchpoints in the drafting of the legislation. I think that the point
made by the hon. Member for Cambridge was rather more interesting
than mine. None the less, I accept the thinking behind the
Minister’s response, even if I am not wholly convinced by it. I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 91
ordered to stand part of the
Bill.
Clause
92Use
of live link in certain enforcement
hearings
| 
