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Lord Davies of Oldham: The problem thrown up by the Rottman case was that the investigating officers on extradition matters would not be investigating the offence in question—they would be bent on another objective. As a consequence, the Police and Criminal Evidence Act does not look as if it provides for that. That is why we have sought to be specific with regard to this Bill. However, I understand the noble Lord's anxieties.
Baroness Anelay of St Johns: I am grateful to the Minister for saying that the Government will look again at the issue raised by Amendment No. 239. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin moved Amendment No. 239A:
- Page 82, line 13, leave out "judge" and insert "justice of the peace"
The noble Lord said: In moving the amendment, I shall also speak briefly to Amendment No. 239B. They clear up minor drafting errors. By virtue of Clause 155(1), any justice of the peace may issue a search and seizure warrant. The reference to "judge" in Clause 155(7) is therefore wrong and needs to be corrected, which is what these amendments do. I beg to move.
On Question, amendment agreed to.
Lord Filkin moved Amendment No. 239B:
- Page 82, line 40, leave out "subsection (1)" and insert "subsections (1) and (7)"
On Question, amendment agreed to.
Lord Davies of Oldham moved Amendment No. 239C:
- Page 82, line 44, at end insert—
The noble Lord said: This is a purely technical amendment to take account of established Scottish practice. Clause 155 deals with search and seizure warrants and under subsection 8(e), one of the conditions in subsection (9) must be fulfilled before a search and seizure warrant can be obtained in England and Wales. Thus the provisions of subsection (9) reflect procedure for obtaining warrants under English law, as provided by the Police and Criminal Evidence Act 1984. That procedure does not normally apply in Scotland, and this amendment would disapply the relevant subsections in Clause 155 to bring search and seizure warrant procedure into line with established practice in Scotland. I beg to move.
On Question, amendment agreed to.
Clauses 156 and 157 agreed to.
Clause 158 [Computer information]:
On Question, Whether Clause 158 shall stand part of the Bill?
Baroness Anelay of St Johns: I have put down my objection to Clause 158 standing part to tease out one or two details which might be minor but are important to those whom they might affect.
The clause deals with computer information. Subsection (2)(b) provides that if the order requires a person to produce the material to a constable for him to take away, the material has to be produced in a form,
What kind of format are we talking about? Are we talking about floppy disks, for example, or a print-out? A CD-ROM or floppy disks are more easily portable and the information might run to many volumes if one was talking about international fraud or swindling, or whatever one might call it in other European countries.
I appreciate that there is a problem about volume and accessibility. However, the words "visible and legible" always throw up a query in my mind. If the information is on a CD-ROM or a floppy, will it be in such a format that, when it is printed out to be visible and legible, it is accessible to those who use Braille? Otherwise, it could be meaningless. What language is this information to be in? Or is it intended for a legal adviser rather than the individual concerned?
I know that these are rather narrow questions but this issue was not covered in another place. As the Minister will know from the Crime (International Co-operation) Bill, I always think about accessibility to information by individuals.
Lord Filkin: That certainly wins the prize today for the question that we were least expecting. I will do my best.
Clause 158 applies if material specified in an application for a production order is held in electronic form, and says how it is to be presented. In such circumstances, the material must be produced or a constable given access to it, depending on the nature of the order, in a visible or legible form or a form in which it can be readily produced as such. This could mean that information is printed out in comprehensible form for the constable to take away or it could be provided on a CD-ROM disk which could be taken away for analysis, and so forth.
Clauses 156 and 157 concern the application for and making of production orders concerning special procedures and excluded material. Production orders follow on from the search and seizure warrants we touched on when debating Amendment No. 239. Such an order would be made by a judge, assuming that the relevant criteria had been met and where it would be in the public interest that this kind of material should be produced.
Clause 158 echoes paragraphs 4 and 5 of Schedule 1 to the Police and Criminal Evidence Act 1984. It applies if material specified in an application for a production order is held in electronic form. As I indicated, in such circumstances, it must be produced in a form which can be taken away—if appropriate, depending on the order—and seen and read. It could be printed or produced from a CD-ROM. In that sense, it is exactly the same as current PACE processes.
With regard to Braille, we have referred on a number of occasions to documents being produced before the court. These will normally be in printed English which is legible or readable by a person with sight. I am ignorant of exactly what the convention is in our courts for the translation of documentation in English into Braille, if a defendant or perhaps a defence counsel wishes to have access to that material. It is a good question and, rather than attempt to speculate on what should happen, I will take it away. In the interests of justice, both a defendant and a defence lawyer need to be able to know what is written if they are to be in a position to respond.
Let me come back on this point when I have reflected further. I hope that what I have said more generally on the clause is of help.
Baroness Anelay of St Johns: I am grateful to the Minister. It is a question which pops into my mind whenever I see terminology such as "visible and legible". I am interested in the Minister's comment that it has to be comprehensible—that is not what I understood by the clause. I am reassured by him that the material is also intended to be comprehensible. The clause does not provide that reassurance.
Lord Filkin: I hesitate to risk deflating the noble Baroness's optimism, but I was thinking on my feet. We will have to test whether what I said has the full impact that was inferred.
Baroness Anelay of St Johns: I of course accept that this was an unexpected series of questions.
The Minister referred to current PACE practice being reflected in the clause. It is appropriate to look more carefully at the drafting and I am glad that he has said he will do that. He referred to current practice in the courts. My experience has been in the magistrates' court; I was aware that the last Lord Chancellor—the previous Lord Chancellor, I should say—was the first person to appoint lay magistrates who have sight difficulties. Therefore, the process of producing material in Braille may be in its infancy, but we need to consider it carefully. I am grateful for the noble Lord's offer.
Clause 160 [Entry and search of premises for purposes of arrest]:
Baroness Anelay of St Johns moved Amendment No. 240:
The noble Baroness said: For convenience, I have grouped Clause 160 stand part with Amendment No. 240 to save time.
My amendment would ensure that items subject to legal privilege cannot be seized or retained under Clause 160. Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law protects the relationship between a solicitor, or a lawyer, generally, and his or her client and has made provision for the doctrine of legal professional privilege. To preserve that relationship and ensure that information and communications are privileged, provision should be made in the Bill to the effect that powers of search and seizure under Clause 160 should not extend to information subject to legal privilege.
I note that government Amendments Nos. 240B and 241B include the phrase,
I note that paragraph 2.7, on page 20, of the draft code of practice, in relation to legal privilege, states:
For completeness, I had intended to oppose the Question whether Clause 160 shall stand part of the Bill, but I should merely like some extra clarity. The clause provides for entry and search of premises for the purpose of arrest without a warrant for search and seizure.
As I understand it, normal practice would involve the police officer being in possession of a Part 1 or Part 2 arrest warrant and a search and seizure warrant before entering a premises for the purpose of search and arrest. The only instance where the provisions of this clause would be used would be when it was impossible to obtain a warrant before entering premises to arrest someone who was wanted for extradition, if, for example, that person were doing his level best to avoid arrest and simply to scarper—for want of a better expression. I should like some clarification since, on consulting the draft code of practice, I have found no mention on page 45 of the powers under Clause 160 being used only when a normal arrest, as detailed in Parts 1 and 2 of the Bill, followed by a warrant for search and seizure under Clause 155 cannot be carried out. I beg to move.
Lord Filkin: Although the amendment is superficially attractive, we do not believe that it is appropriate. I shall seek to explain why.
The need to preserve the confidentiality of communications between people and their legal advisers is crucial. Accordingly, the Bill, like all the other relevant legislation, makes it clear that no search
The Bill provides that where a police officer is conducting a search for the purposes of arrest, on arrest or following arrest, comes across material that he believes has been obtained as a consequence of an offence or is evidence of an offence and believes that it is necessary to seize it to prevent it from becoming lost or damaged, he may do so. In such cases, Clauses 161 and 163 do not impose any restriction in relation to items subject to legal privilege, and I am not sure why we should do so in Clause 160.
Equally importantly, the Police and Criminal Evidence Act 1984, on which Part 4 of the Bill is closely modelled, does not prevent a police officer who happens across material in the course of a search, where he believes it is connected to an offence and may otherwise be lost or damaged, from seizing such material unless he has reason to believe it is a legal privilege item. There are obvious good reasons why we would not want to prevent that happening. Section 19 of PACE uses wording that is virtually identical to that in the Bill.
There is good reason why that should be so. A police officer conducting a search may not know that the material he finds is subject to legal privilege. It may be clear that it relates to an offence and he may have reason to believe that, unless he takes it there and then, it could be destroyed, but he may not know that—for example, a letter on plain paper that has come from the person's lawyer.
Section 19(6) of PACE provides that if a constable has reasonable grounds for believing that any material he comes across is subject to legal privilege, he must not seize it, and that particular provision will apply to extradition powers as well, and in these circumstances—which I hope provides one of the assurances that the noble Baroness, Lady Anelay, seeks.
So we are talking only about cases where the police officer is genuinely unaware that the material is subject to legal privilege. In such circumstances a blanket ban on seizing such material seems oppressive, particularly when there is nothing equivalent in domestic legislation and it could lead to a situation where, out of caution, a police constable does not seize anything, when it should be seized as part of the sensible pursuit of evidence of criminality.
I repeat: we are talking only about material that is connected with an offence and which is in danger of being lost or damaged. The Bill makes clear that no search can be conducted for the purpose of seeking material protected by legal privilege; nor can a police officer who knows what he has found seize items subject to legal privilege.
We hope that Clause 163 is quite clear. I am happy to add to it the code of practice if that would make it clearer. We shall refer to the code of practice later, but we have sent it to the noble Baroness, Lady Anelay. I suspect that, like me, she has not read every word of it as yet, but it is there before us.
If it later transpires that in the circumstances referred to a police officer had taken an item that was legally privileged, it cannot be used—as it should not be. That position is categoric. I hope that that is helpful.
"(e) subsections (8)(e) and (9) are omitted."
"in which it is visible and legible or from which it can readily be produced in a visible and legible form".
Subsection (2)(a) refers to the material being produced in a form in which it can be taken away by a constable.
Page 86, line 11, after "anything" insert "(other than items subject to legal privilege)"
"other than items subject to legal privilege".
That suggests that the Government are abiding by the principle of legal privilege and might therefore look more kindly on Amendment No. 240.
"Nothing under the Act entitles police officers to seize material that is subject to legal privilege. The principle of legal privilege applies equally to material that has originated or been sent from abroad".
That satisfies me to some extent. However, it would be an additional and welcome safeguard to insert the amendment on the face of the Bill.
7 p.m.
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