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The Earl of Mar and Kellie: It is popular when discussing such criminal justice matters to object to anything that might authorise a fishing trip. In fact, it is a bit of a ritual to do that, so I shall do so now. I am also interested that subsection (10) states that subsections (8) and (9) do not apply in Scotland. Presumably, that is because the matter is already dealt with in Scotland.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I shall be glad to give the clarification that the noble Baroness, Lady Anelay, seeks through this probing amendment. Let me turn directly to her question of why, having provided the basic power of prior written authorisation, subsection (9) appears to allow for exceptions.
Let me give an instance of why we think that to be necessary. One can envisage the circumstance in which the police find a person who is wanted for, say, a bank robbery in Portugal, at address A and the person indicates that he is willing to co-operate with the police and that there is further evidence or money at another addressjust further down the road, for example. In those circumstances, as a consequence of having to obtain prior authorisation, one would significantly reduce the likelihood of being able to seize the evidence or proceeds of crime.
However, although such a power is necessary, there must clearly be safeguards against it. In drafting the clause, we have again sought to follow provisions in our domestic legislation. Section 18(5) of the Police and Criminal Evidence Act 1984 makes almost identical provision allowing a constable to conduct a search before the person is taken to the police station, without obtaining authorisation. There must be safeguards against the abuse of such a power, and there is therefore a further safeguard in the police code of practice, which has been open for consultation during the summer.
As for the question posed by the noble Earl, Lord Mar and Kellie, there is no legality for the undertaking of fishing trips in such circumstances. He is of course absolutely right to say that the situation is different in
Lord Goodhart: I understand that there may be circumstances in which it is desirable to have a power to search without obtaining previous authorisation, but should it not be on the face of the Bill that that should be done only where it is impracticable to obtain authorisation? Otherwise it would leave too much open if you could simply go ahead and then notify the inspector. Where it is practicable to consult an inspector before a search is carried outthat may even be done orally rather than in writing; an inspector will surely be at least at the end of a radio or mobile telephoneshould it not be a requirement that such consent should be obtained?
Lord Filkin: It would clearly be technically possible to do what the noble Lord, Lord Goodhart, suggests, but one of the themes running throughout the Bill is an attempt to use and to build on police and criminal evidence procedures. This is not only for the purpose of reducing parliamentary draftsmen's timewhich is not an issuebut it is essential that, as far as possible and where it is appropriate, to have similar codes and practices so that the police may deal with a matter using similar procedures. It will increase the likelihood of errors not being made where there is no need to do so if one follows PACE practices and a code which is built on PACE. For that reasonparticularly when it is reinforced by the commitment that the Government have given to clarificationI do not believe there is a danger.
Lord Lamont of Lerwick: Is there not a possibility of obtaining authority retrospectively? If this exception is not to lead to fishing expeditions, why could it not be approved by an authority subsequently that it was necessary in the circumstances to conduct a search expeditiously and without prior permission? That would ensure that it was an exception and that some discipline was placed on an authority; otherwise it could make the excuse that it was in a hurry.
Lord Filkin: In practice, as regards the requirement to notify an inspector or a more senior officer after the event has happened, in a sense it will be difficult to authorise something that has already happened. It is germane that if circumstances arose in which there did not appear to be any good reason for a subsequent search taking place without authorityI am thinking on my feet herethe inspector or other senior officer would have to draw attention to the fact that the evidence was possibly suspect because it had not been carried out necessarily in compliance with PACE.
Lord Clinton-Davis: I was put off by the constant ringing of the Division Bell. My simple question is whether my noble friend agrees that it is quite impossible in a Bill of this kind or any Bill to rehearse all the possibilities that may exist. Here, there is a certain degree of implicit understanding of the procedure. Having said that, does he agree that the Bill establishes a practice and, from that, certain events follow? I believe that what has been expressed here is the possibility that constables will not be able to follow the procedure envisaged earlier in the Bill and that is why this particular provision has been inserted.
Lord Filkin: I am not sure that I can agree with my noble friend Lord Clinton-Davis because good scrutiny sometimes makes one feel that one is not trying to answer every single eventuality, which we sometimes seek to do, as we should.
Speaking more seriously, the inspector will clearly have a duty to write down the grounds for the search on notification of the search and he would also check that against the officer's report of the search. I was saying that officers would be used to following those procedures as they are the same as those in PACE and the PACE codes of practice. We are currently consulting on the code of practice, but as yet we have not sensed that anyone feels that it was inappropriate to mirror PACE in those circumstances. I return to the initial point that, although this is a rarely used power, it is necessary to have such a power for the kind of circumstances that he instanced.
Baroness Anelay of St Johns: I am grateful to the Minister. He is absolutely right to say that there should be some consistency between the practice of PACE and the practice within this Bill in the sense that it is helpful for the police to know the correct form of procedure so that they follow it. It is equally important for there to be consistency in order to assist practitioners and those who may fall foul of the law to know what good or bad practice may be.
It was important that the noble Lord, Lord Goodhart, raised the issue about areas where it may be impractical to achieve consent. Those areas are the only ones governed by this. I want to look further at that, but I assume that it would be the case that if evidence were gathered in a way that contravened the PACE rules, one would not be able to use that evidence anyway in a court of law. We have been trying to obtain the explanation from the Minister and to ensure that we have considered the issues properly, as he said. The Committee stage provides the opportunity to probe and seek clarification. I believe that he has given us that. I shall look more carefully at the issue raised by the noble Lord, Lord Goodhart, but, at this stage, I beg leave to withdraw the amendment.
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