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Baroness Anelay of St Johns: My Lords, I am grateful to the noble Lord. I do not believe that his response was prolix. All the matters dealt with needed to be clarified, simply because at some stage people will get hurt and will need to know how they may seek redress.

It was particularly important that the noble Lord assisted the House by clarifying the distinction between "incidental" behaviour and "accidental" behaviour, which was unclear in Committee. In particular, I was struck by his further explanation of "incidental", tying it so narrowly to something that is inextricably bound up with the surveillance. He said that the actions would have had to be effectively unavoidable. The noble Lord also commented that he would expect the courts to take a narrow view. All those points focused our minds carefully on actions that he said would otherwise have been unlawful, but which the Bill will render lawful.

I shall need to look carefully at the noble Lord's explanation between now and Third Reading to see whether other issues need to be drawn out. But he has given me the answers that I needed. I may not have asked all the right questions; I do not fault his answers.

I was intrigued by the noble Lord's treatment of the position where someone is carrying out covert surveillance while in territorial waters. I will look carefully at his comments, which were particularly helpful. He commented that it was difficult to know when one was in territorial waters, because there are no visible markers. He is right; there is no marker bobbing up and down to signal entry to the UK. But

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anyone carrying out proper navigation will have charts. As the noble Lord is aware, statutory instruments lay down carefully territorial boundaries—otherwise my noble friends from Scotland might have a few words to say about Scottish oil, and who might take it. The noble Lord probably has gone as far as possible in clarifying these matters, but I need to check that I have not missed anything, and I shall take care of that.

With the assistance of my noble friends we have had some good debates on the amendments to Clause 82. I said that they were all intended to be probing amendments. It may be helpful to the House if I state at this stage that it will not be appropriate for me to move Amendment No. 93, which seeks to insert a requirement for a rather different kind of annual report. I wish to reflect carefully on the Minister's answers in regard to the amendments to Clause 82 before I consider whether it will be necessary to continue with Amendment No. 93, in its current or an amended form. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No. 83:

Page 56, line 1, leave out "An" and insert "The"

On Question, amendment agreed to.

[Amendments Nos. 84 to 86 not moved.]

Lord Filkin moved Amendment No. 87:

Page 56, line 3, at end insert—

"(5A) The condition in this subsection is satisfied if, immediately after the officer enters the United Kingdom—
(a) he notifies a person designated by the Director General of the National Criminal Intelligence Service of that fact; and
(b) (if the officer has not done so before) he requests an application to be made for an authorisation under Part 2, or the Regulation of Investigatory Powers (Scotland) Act 2000, for the carrying out of the surveillance."

On Question, amendment agreed to.

[Amendments Nos. 88 to 90 not moved.]

Lord Filkin moved Amendments Nos. 91 and 92:

Page 56, leave out lines 21 to 25.

Page 56, line 27, at end insert—

""United Kingdom officer" means—
(a) a member of a police force;
(b) a member of the National Criminal Intelligence Service;
(c) a member of the National Crime Squad or of the Scottish Crime Squad (within the meaning of the Regulation of Investigatory Powers (Scotland) Act 2000);
(d) a customs officer"

On Question, amendments agreed to.

[Amendment No. 93 not moved.]

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Clause 83 [Assaults on foreign officers]:

Baroness Anelay of St Johns moved Amendment No. 94:

Page 56, line 38, at end insert—

"(4) When sentencing a person for an offence of violence not listed in subsections (1) to (3) that is committed against a person carrying out surveillance in the United Kingdom under the inserted section 76A of the Regulation of Investigatory Powers Act 2000 (c. 23), the court shall treat the person carrying out the surveillance as if he were acting as a constable in the execution of his duty."

The noble Baroness said: My Lords, the amendment relates to the imposition of penalties on persons who are convicted of assaulting foreign police or Customs officers who are carrying out covert surveillance under the provisions of new Section 76A of the Regulation of Investigatory Powers Act 2000 as inserted by Clause 82 of the Bill.

Clause 83 provides that, for the purposes of the summary offence of assaulting a constable in England and Wales, in Scotland and in Northern Ireland, a foreign police or Customs officer who is carrying out the hot surveillance is to be treated as if he were acting as a constable in the execution of his duty. That means that a person who committed such an assault on a foreign officer could be charged with the offence of assaulting a constable under the law of the relevant part of the United Kingdom. While, certainly in England and Wales, the offence of assaulting a constable carries the same maximum penalty as common assault—namely, six months' imprisonment—it is more likely to attract a custodial sentence than common assault because of the way that it is dealt with in the Magistrates' Association guidelines for sentencing.

In Grand Committee, I asked the Government about the absence of any reference to other, more serious, offences of violence which might be charged where an assault was committed against a foreign officer. For example, if someone were simply to punch a foreign officer, causing no injury, it is likely that he or she will be charged with the offence of assaulting a constable under the Police Act 1996—which, of course, carries a maximum sentence of six months. But, if the person causes serious injury to the foreign officer, or attacks him with a weapon causing such injury, then it is likely that he or she will be charged with a more serious offence under Sections 18, 20 and 47 of the Offences Against the Person Act 1861—that is to say, wounding or causing grievous bodily harm with intent, the basic offence of wounding or inflicting grievous bodily harm or the offence of assault occasioning bodily harm. Do the Government intend that those who assault foreign police officers who are conducting hot surveillance should be dealt with as if they had assaulted a UK police officer when they are charged with those more serious offences as well as when they commit minor assaults?

I recognise that there is no separate offence of assault occasioning actual bodily harm to a police officer or of wounding a police officer under the Offences Against the Person Act 1861, and that the fact that a police officer had been assaulted will instead be taken into account as an aggravating factor by the

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sentencing court. But, as I read the Bill, the Government are saying that those who commit minor assaults on foreign officers acting under the provisions inserted by Clause 82 are to be charged with assault on a constable, which carries a much greater risk of custody than common assault, but they are not making any corresponding provision in relation to the aggravating factors which should be taken into account when sentencing takes place for a more serious offence of violence with which such persons may be charged.

The amendment seeks to provide that, in cases where a foreign police or Customs officer was assaulted and his or her assailant was charged with one of the more serious offences of violence not referred to in Clause 83, the assailant would be treated by the court as if he or she had assaulted a UK police officer.

That is what the Government appear to intend should happen. In his letter to me dated 18th February, the noble Lord, Lord Filkin, stated:

"We would not expect such offences to be regarded as being any different from offences involving UK officers conducting surveillance. Article 42 of Schengen states that officers conducting surveillance under Article 40 on the territory of another Member State shall be treated as officers of that Member State in respect of offences committed by or against them".

That is fine—I agree with those sentiments—but, as far as I can see, there is nothing to that effect on the face of the Bill, other than what is presently in Clause 83, which refers only to the summary offence of assault.

I am seeking to give the Government an opportunity to set out their position in response to the points that I have made, and to ensure that people who carry out serious assaults on foreign police or Customs officers are appropriately dealt with. I beg to move.

7.15 p.m.

Lord Renton: My Lords, it is an interesting amendment. Having had a lot of judicial experience in criminal cases as a relief judge at the Old Bailey, as a recorder and in other ways, I am a little doubtful about requiring a court to consider a particular matter, because it may cause it to disregard other relevant matters. I hope that I am not being obstinate or difficult in saying that.

I am afraid that there needs to be one small drafting amendment. If the court is to treat the person carrying out the surveillance as if he were "acting as a constable", the question arises of whether a constable would have acted differently from a sergeant or an inspector. Therefore, if I may say so with deep respect to my noble friend, the word "constable" should be replaced by the words "police officer".

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