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Baroness Scotland of Asthal: My Lords, I am happy to give a fuller explanation and I am sorry that we are doing that so late in the day.

The proposals in Clause 110 focus on simplifying the current complex array of arrest powers which has developed since the introduction of the Police and Criminal Evidence Act over two decades ago. My noble friend was right to raise the issue of the review because we think that the provisions reflect one of the primary recommendations of the review of PACE carried out in November 2002 by the Cabinet Office and the Home Office in consultation with stakeholders.

The review recognised the need for greater clarity and definition of arrest powers. It made a number of suggested changes around definition and lists of offences, but the more substantive recommendation was for more radical ideas about expanding the scope to arrest and to consult on those proposals. That is what we have done. The consultation paper on modernising police powers, published last autumn, set out this new approach which simplifies, both for the police and the public, the powers of arrest but which, importantly, also maintains key safeguards and protections for the public. We understand and are aware of the need for safeguards and protection.

In doing so, we have sought to enable the arresting officer to consider the individual circumstances of each case—to look at the needs of the victim, the nature of the offence, the requirements of the criminal justice system and the circumstances of the offender. This is where the concept comes in.

Section 25 of PACE currently provides a constable with a general power of arrest for any offence. In making use of the power, a constable is required to consider the conditions set out in the Act and is required to make a judgment in each case. The framework powers of arrest for arrestable and serious arrestable offences under Section 24 of PACE remove the arbitrary decision on whether arrest is possible, but it still remains a decision of the officer on the street whether there are legitimate grounds to exercise that power. The necessity test would raise the level of accountability of the arresting officer in each individual arrest situation and minimise the ability for arbitrary interference.
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During the passage of this Bill, both in this House and in the other place, concerns have, as my noble friend rightly said, been raised that extending the power of arrest to all offences might lead to a significant rise in the numbers of arrests being made as people are arrested for minor crimes. We are not suggesting that the seriousness of the offence is not a consideration when a constable decides to make an arrest. But it is not the sole consideration. Rather it is just one of a number of necessary factors which should be taken into account.

However, these powers must be proportionate to the offence. That is why we are producing a new PACE code of practice on arrest which will amplify the reasons justifying an arrest of a person. The code will be drafted in consultation with a range of stakeholders and will be subject to the draft affirmative parliamentary process.

As my noble friend identified, this clause also deals with the powers of arrest for persons who are not constables by inserting a new power into PACE in Section 24A. Similarly, we are looking to provide clarity in this area by indicating that a person other than a constable may arrest in those circumstances where it is necessary to prevent harm or injury, loss or damage to property or the person is making off before a constable can assume responsibility. Additionally, the person must be satisfied that it is not reasonably practicable for a constable to make the arrest instead. All of those are within the ken of the normal, average citizen.

In the other place, we tabled an amendment that the so-called "citizen's power of arrest" was applicable only in relation to indictable offences. The amendment was tabled in response to concerns expressed during the public consultation exercise and in the other place that the citizen's power of arrest should not be extended to minor offences.

The rationalisation of powers in this whole area represents a significant change to PACE and the framework of arrest. That is not done lightly nor without significant consideration that it improves and enhances the existing structure. We believe that it does and that view is supported by a large number of respondents to the public consultation exercise. We also believe that we are proposing a new structure that is proportionate and balances the needs of the police while protecting the rights of the individual.

I hope that, given that full explanation, my noble friend will be content that the course that we have taken is appropriate. We shall have an opportunity to discuss the matter when it comes back by way of affirmative resolution. There will also be discussion with all the stakeholders, who, I am sure, will make their views on the provisions crystal clear.

Lord Monson: My Lords, will it be a defence for an individual who carries out a citizen's arrest, believing mistakenly that the offence that he is preventing is an indictable one, to argue that the law is hazy or unclear on the precise dividing line between indictable and non-indictable offences?
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Baroness Scotland of Asthal: My Lords, the noble Lord will know that defences are set out in the jurisprudence that we have and in the statutes and that anyone can take advantage of those defences and no other. As I made plain, the measure was not originally in the Bill; it was brought in because there was a strong feeling among noble Lords opposite, Members in the other place and people elsewhere that there had to be some sort of benchmark to differentiate between minor offences and more serious ones. But it is also plain, if one looks at the type of situations when an individual may feel it appropriate to arrest—I have already identified those—that they fall into the more serious category as opposed to the minor. I invite my noble friend therefore not to press his amendment.

Lord Wedderburn of Charlton: My Lords, in doing what I have to do, I commend my noble friend on the Front Bench on giving us a new, or rather enlarged, agenda for the debate, which alas we cannot have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 120 [Staff custody officers: designation]:

Baroness Harris of Richmond moved Amendment No. 15:

The noble Baroness said: My Lords, yesterday, I spoke at length about custody sergeants and the need for them to retain that substantive rank in custody suites. I return to this because the answers given by the Government were wholly unsatisfactory.

None of the real concerns expressed in stringent terms by the police was addressed. I was deeply disappointed to hear that the Conservatives in another place have decided to accept the Government's position on nothing more than a promise that whoever is chosen to go into the custody suite will be well trained and held in sufficiently high esteem by their colleagues to perform their duties. What on earth does that mean? What does a person have to exhibit before he or she is deemed to be held in such high esteem? Who will watch over those new appointees and judge whether they will be suitable to hold people in custody—and, more, that they will be under the full power of PACE? Can the IPCC—the Independent Police Complaints Commission—investigate complaints against civilian custody officers? If so, how will that be publicised, so that a person held in custody will know that they have the protection of that law?

I contacted the Police Superintendents' Association this morning and got its views. Thinking back to the time before the Police and Criminal Evidence Act 1984—the time of Judges' Rules and so on—they remembered a time, as do I, when many abuses were carried out regarding the detention of suspects. PACE was necessary to codify what the police should and should not do with suspects. The linchpin of all that was that custody officers, who have protection in law for their decisions
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taken in support of the Act, were able to have the strength of the law behind them, even if it meant speaking out against senior investigating officers, who might want to interview a suspect against the requirements of PACE.

The service respects that independence, and I was told that senior detectives had accepted custody officers' decisions when clearly they had been unpopular. The new provisions do not provide anything like the proper independent statutory role for this post. A member of police staff—a civilian custody officer—may not have the same authority with senior investigating officers as a police colleague would do. I am fearful that it will not be long before we reap the whirlwind that that might unleash.

Custody, surely, is part of the investigative process. Many crimes have been detected in custody suites, and what I fear is behind the Bill is the aim that a custody suite will be enabled to be operated by a private company. I am sure that I do not need to elaborate on the problems that that might cause.

Yesterday, I listed a range of important players in the police field who have expressed deep concern about this part of the Bill—bodies such as the Police Federation, the Police Superintendents' Association, Liberty, the Law Society, Centrex, and so on. Even at this late hour, I ask the Government to reconsider their position.

Yesterday, the Minister told us that Customs officers and others had similar expertise. I should like to know how many people Customs officers "and others" have held in their custody and under what regulations. Were they subjected to PACE regulations, as well? When will all the training for those "other" people take place, and what happens in the lacuna before that training is completed? In my experience, different applications of training standards apply across the individual police forces, with the result that national standards are not always adhered to. Those standards ought to be crystal clear and certainly understood before the Bill is enacted. Who will be the independent evaluator of the pilot studies? Will we have the opportunity of seeing that evaluation and assessing for ourselves whether the pilots have been successful?

It is simply not right to keep telling us that it is to be a new and different agency from traditional policing. It is still going to deal with crime. The whole area has been so badly thought out and flies in the face of such strong policing opposition that I hope that the Minister will reconsider her position on the use of civilians as custody officers. I beg to move.

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