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Lord Dholakia: May I ask for further clarification? I have no difficulty in accepting what the Minister said in relation to treating a police officer for this particular purpose under this clause. What would happen if the police's complaint was unjustified, however? Would the individual have recourse to the Police and Criminal Evidence Act 1984 and the Police Complaints Authority to mount a formal complaint against the police officer?
Lord Bassam of Brighton: My advice is that we do not yet know the answer to that question, and we will have to check it. The noble Lord has drawn out a useful and valid point of elucidation. We will check on it and return to the matter perhaps in correspondence, which the noble Lord could share with the other Members of the Committee.
The first question has regard to a situation in which a member of the public assaults a foreign officer while not knowing who he is. The Minister said that that member of the public would come under the offence in the legislation and would be accused of having assaulted a police officer in the course of his duty. However, what if the officer who is carrying out the surveillance takes a short time off, goes into a pub and gets involved in a punch up with people who have absolutely no idea that he is a police officer? Are the Government saying that, in those circumstances, the person who committed the assault will be accused and
The second question is on a matter of sentencing policy for serious assaults, which could be important for a foreign officer if he was assaulted. The Bill gives the basic protection, in the case of ordinary assault on a police officer, of six months. What about other offences against the personhigher levels of GBH, and all that? I ask the lawyers on my left to excuse me for expressing myself in that way. I refer to the more serious offences. Undercover police officers may be subject to dangerous situations such as serious assault. Does the Minister propose that sentencing guidelines in such cases should take account of the fact that the person is a police officer if someone is accused of GBH against them? Do the Government foresee that as a natural consequence of the Bill? Have the Government turned their mind to that scenario?
Lord Bassam of Brighton: The noble Baroness raises an important question on a serious issue. It may be a matter to which we should give some thought, but we have not done so as yet. She invited us to consider it, perhaps not at leisure but over a longer time frame. We shall happily do so and respond accordingly, and share that response with other Members of the Committee.
Lord Bassam of Brighton: The noble Lord, Lord Carlisle, is absolutely right in terms of sentencing, which is a matter for the judiciary. However, the guidance is important, and it is important that we are clear on the matter in the Committee and the House as a whole.
Baroness Anelay of St Johns: I am grateful to my noble friend Lord Carlisle for always saying the correct thing. At present, sentencing guidelines are a matter for the judiciary, although we know that there are proposals from the Home Office to give guidance on sentencing guidelines. We shall see what happens in that regard. Are the Government going to change other offences so that there is a more serious approach if a serious assault is committed on someone carrying out surveillance under the New Section 76A? At this stage, however, I beg leave to withdraw the amendment.
The clause is probably intended to do something entirely different, but it occurred to me that this might be an answer to the issue of whether there is a means of redress for a citizen injured as a result of the negligence of a pursuing officer.
Baroness Anelay of St Johns: Perhaps I may add a word or two to that. Since the debates last week, I have studied the Bill more closely and I remain unhappy. Like my noble friend Lord Carlisle, I had hoped that Clause 85 might provide an answer.
Last week the Minister was given a helpful briefing to the effect that there would be cover for anyone injured because, under Clause 83, the director of NCIS would pay up. However, when one looks closely at the provisions of previous Bills, it seems that the director of NCIS covers the person involved if he is an employee, but not necessarily in the circumstances envisaged in the Bill.
When we get to Report stage we may be accused again of dancing on the head of a pin, but we want to ensure that no innocent member of the public, who is not a party to any surveillance, incurs injury and then finds that he has no recourse to damages against the officer concerned.
I shall be interested to hear what the Minister has to say. Having had this morning, over breakfast, an hour's seminar with my husband on the issue of civil liability, I am certainly looking forward to the Report stage.
Lord Bassam of Brighton: I am beginning to wish that I had shared that seminar. No doubt the breakfast would have been beneficial as well. I do not want to get out of my depth. My partner is a lawyer but I am not sure that she would be able to advise me with quite the expertise with which the noble Baroness's husband has obviously advised her.
It is worth reminding ourselves that Clause 85 is simply a mechanism to provide that persons can be suedfor example, for negligence on the road. That is its application. New Section 76A(5) in Clause 83 provides that there will be no liability for incidental conduct.
The noble Lord, Lord Carlisle, has raised some valuable points and I should like to study what he said in posing his questions. With the leave of the Committee, we will now move on from Clause 85. We should like to consider the points that have been made. If there are any outstanding issues, I shall give a more precise response to these important questions through correspondence.
Lord Carlisle of Bucklow: I am grateful to the Minister for that answer. The real problem is that if a person is driving a car negligently, he will be, presumably, guilty of careless driving and therefore his conduct will be unlawful. However, a person may commit other acts of negligence which do not amount to unlawful conduct but which may cause injury to a third party for which, under normal law, he would be liable. I am inquiring about the relationship between the words "unlawful" and "negligent".
The noble Baroness said: The clause deals with false monetary instruments in Scotland, and is the twin to Clause 88, which deals with England, Wales and Northern Ireland. The Scottish clause is different, and longer, for a variety of reasons.
This is a probing amendment tabled by my noble friends and myself after discussion with the Law Society of Scotland. The Government's Explanatory Notes explain that, as the law stands in Scotland though not in England,
If the whole of the United Kingdom is to comply with the framework directive, it is necessary to create a new crime in Scotland. That is done in Clause 89, which inserts into the Criminal Law (Consolidation) (Scotland) Act 1995:
If one has forged items and one knows that one has them, that is clearly an offence. However, the Law Society asks me and I am asking the Minister how it can be an offence to believe that one possesses something forged if it turns out that it was not forged. If I have a £10 note and have been told that it is forged but I do not intend to use it in any way and it turns out not to be forged, how can that be an offence?
Surely subsection (2) should add that the intention is to hand over or "utter" the document. If it does not say that, surely "or believes" should be omitted. That is the Law Society's question. I beg to move.
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