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The Duke of Montrose: I thank the noble Baroness for responding so fully on the issues and, in the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Clause 79 agreed to.
 
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Clause 80 [Transfer of responsibility to other protection provider]:

[Amendment No. 81 not moved.]

Clause 81 [Duty to assist protection providers]:

[Amendment No. 82 not moved.]

Clause 81 agreed to.

Clause 82 agreed to.

Clause 83 [Defences to liability under section 82]:

[Amendments Nos. 83 to 86 not moved.]

Clause 83 agreed to.

Clause 84 agreed to.

Clause 85 [Defences to liability under section 84]:

[Amendments Nos. 87 to 90 not moved.]

Clause 85 agreed to.

Clauses 86 to 105 agreed to.

[Amendment No. 91 not moved.]

Schedule 6 [Minor and consequential amendments relating to section 105]:

Baroness Scotland of Asthal moved Amendment No. 92:

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.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 106 [Powers of arrest]:

Lord Dholakia moved Amendment No. 93:

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.

6.45 p.m.

Lord Dholakia: I am grateful for the concession that the Minister has offered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 94 and 95 not moved.]

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.

[Amendment No. 97 not moved.]

[Amendment No. 96 not moved.]

[Amendments Nos. 98 to 100 not moved.]

Clause 106 agreed to.

Clause 107 agreed to.

Schedule 7 [Powers of Arrest: Supplementary]:

Baroness Scotland of Asthal moved Amendment No. 101:

"Unlawful Drilling Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 1)


In section 2 of the Unlawful Drilling Act 1819 (power to disperse unlawful meeting), omit ", or for any other person acting in their aid or assistance,".
Vagrancy Act 1824 (c. 83)

Section 6 of the Vagrancy Act 1824 (power to apprehend) shall cease to have effect.
Railway Regulation Act 1842 (c. 55)

Section 17 of the Railway Regulation Act 1842 (punishment of persons guilty of misconduct) shall cease to have effect.
Companies Clauses Consolidation Act 1845 (c. 16)

In section 156 of the Companies Clauses Consolidation Act 1845 (transient offenders), omit ", and all persons called by him to his assistance,".
Railways Clauses Consolidation Act 1845 (c. 20)

(1) The Railways Clauses Consolidation Act 1845 is amended as follows.
(2) Section 104 (detention of offenders) shall cease to have effect.
(3) Section 154 (transient offenders) shall cease to have effect.
 
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Licensing Act 1872 (c. 94)

In section 12 of the Licensing Act 1872 (penalty on persons found drunk), omit "may be apprehended, and"."

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.

On Question, amendment agreed to.

[Amendment No. 102 not moved.]


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