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The noble Baroness said: These are minor drafting amendments. New Section 282B of the Proceeds of Crime Act 2002 inserted by Paragraph 20 of Schedule 6 erroneously refers to Section 267(8B) of POCA, rather than Section 266(8B) inserted by Paragraph 15 of Schedule 6. I beg to move.
The noble Lord said: I shall speak to Amendments Nos. 93 to 100, 102 and 107. Although we do not object in principle to the simplification of the criteria for arrest, we are concerned that the clause grants too much discretion to individual officers and will lead to many unnecessary arrests.
We are concerned that the language of being "about to" commit an offence has been obtained in paragraphs (a) and (c) of new Section 24(1). Preventive detention otherwise than for the purpose of initiating a criminal prosecution is not permitted by Article 5 of the European Convention on Human Rights. The police and others have powers under Section 3 of the Criminal Law Act 1967 to use reasonable force in the prevention of crime. In addition, in many cases a person about to commit an offence will be committing the offence of criminal attempt under Section 1 of the Criminal Attempts Act 1981 and therefore can be arrested under paragraphs (b) or (d) of new Section 24(1).
We are concerned about a general power of arrest under paragraphs (e) and (f) of new Section 24(5). Those conditions are drafted very broadly; it will be
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very easy for an officer to justify an arrest under one or both of them. Since officers must often make rapid decisions about whether to arrest, it will be natural, particularly for the relatively inexperienced, to err on the side of caution. That will lead to further overcrowding of custody suites and an increased use of police time and resources in dealing with people arrested for minor offences.
In addition, we are concerned that there is considerable scope for abuse of those subsections, and that they may be applied arbitrarily or in a discriminatory fashion against certain sections of the community. Article 5 of the convention does not permit arbitrary procedures for arrest.
Where none of paragraphs (a) to (d) of new Section 24(5) applies, we believe that arrest and detention is not justified for minor offences, since the incentive for a suspect to abscond is small and the ultimate sanction that a court can impose is not severe. A person should spend time in police custody in relation to an offence for which he would not be imprisoned on conviction only where it was absolutely necessary. Paragraphs (e) and (f) should apply only to offences that are currently arrestable and should certainly not apply to offences that are not punishable by imprisonment.
I shall now speak to Amendments Nos. 93, 94, 96, 98 and 99. Since preventive detention otherwise than for the purpose of initiating a criminal prosecution is not permitted under Article 5 of the European convention, arrest should not be available where someone is "about to" commit an offence but their actions do not constitute a criminal attempt or another offence. Where their actions constitute a criminal attempt or another offence, arrest would be available under paragraphs (b) and (d) of Clause 106(1). In other circumstances, the police and others have power to use reasonable force for the prevention of crime under Section 3 of the Criminal Law Act 1967.
We believe that paragraphs (c) and (f) are very broadly drafted and that arrest could be justified under any one of them in most cases. In the case of relatively minor non-violent offences, arrest without warrant is not appropriate unless one of paragraphs (a) to (d) applies. We therefore propose to exclude non-violent offences carrying a maximum sentence of less than two years' imprisonment from the operation of paragraphs (e) and (f). I beg to move.
Baroness Scotland of Asthal: I understand why the noble Lord makes those suggestions. I also understand the sensitivity that he expresses about how the provisions may affect differing communities in our country.
However, in essence, the amendments that he urges upon the House seek either to retain or introduce a watered-down version of the existing test of seriousness. The latter of the two simply applies a lower threshold of seriousness to the individual elements of the test of necessity. The amendments go against the principles of simplifying arrest powers and ensuring that the police have sufficient preventive and enforcement powers to
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tackle crime and anti-social behaviour. We must maintain the existing ability of police officers to arrest and intervene when an offence is about to be committed and to rationalise the powers of arrest to ensure that the police have access to effective and proportionate powers to tackle crime when it occurs.
Noble Lords will know that we intend to issue a new PACE code of practice on arrest to coincide with the provisions coming into force. It will focus on the reasons that constitute necessity, an issue about which, I know, the noble Lord is anxious. The code will be subject to affirmative resolution in both Houses, so there will be an opportunity for debate and consideration of those issues. I hope that, with that, the noble Lord will feel content to withdraw his amendment.
The Deputy Chairman of Committees (Lord Geddes): I must advise the Committee that Amendments Nos. 96 and 97 have been incorrectly marshalled and I shall therefore call Amendment No. 97 before Amendment No. 96. I must further advise the Committee that, if Amendment No. 97 is agreed to, I cannot call Amendments Nos. 96 or 98 due to pre-emption.
The noble Baroness said: These amendments to Schedules 7 and 18 make further consequential amendments and repeals in respect of existing powers of arrest made redundant by the new framework in Clause 106. I beg to move.
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