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The reason I am not in my bed but am keeping everyone up is because of the important issue raised by the Court of Appeal in the Adorian case. I am sorry that the noble Lord, Lord Hunt of Wirral, and the noble and learned Baroness, Lady Scotland, are not here, as they were the principal players involved in us being where we are now.

The amendment seeks to amend Section 329 of the Criminal Justice Act 2003 to remedy a classic example of unintended consequences, which were brought to my attention as a result of the recent decision of the Court of Appeal in the case of Adorian v The Commissioner of Police of the Metropolis. It was a strong Court of Appeal with Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith.

At this stage, this amendment is probing, but I promise to return to it at the next stage. Section 329 was enacted in response to the case of Tony Martin, the Norfolk farmer who, in 1999, shot two burglars who had entered his house. In 2003, the surviving burglar sued Martin for damages relating to his injuries, although he later dropped the case. During the passage of the Criminal Justice Bill, the noble Lord, Lord Hunt of Wirral, moved an amendment entitled,

"Excluding civil liability of victims of crime".

Following the debate, he withdrew his amendment and the Government agreed to table their own amendment along the same lines. That resulted in Section 329 which provides a defence to a civil suit for trespass to the person brought by a convicted person, where, during the commission of that crime the victim or a third party has taken action which he believed necessary to prevent the crime or to protect themselves, or another person or property. The defendant must have believed that the claimant was about to commit an offence, was in the course of committing an offence, or had committed an offence and the action must not have been grossly disproportionate. Trespass to the person refers to assault, battery or false imprisonment.

Although the provision clearly applies to third parties who may have intervened to protect the victim or deter the criminal, at no stage in the parliamentary debate were actions against the police discussed. Since this provision came into force in January 2003, it has been used only by police defendants seeking to defend themselves against civil actions.

11 pm

In the case of Adorian, he had been convicted of obstructing police officers in the execution of their duty. He sought damages from the police for trespass of the person and negligence in relation to the injuries suffered during the course of his arrest which were,

The police sought to strike out the action using Section 329.

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Lord Justice Sedley gave the judgment for the three judges of the Court of Appeal. One of the things he said was that the court could not fail to notice,

Lord Justice Sedley continued:

"The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force ... it is only police defendants who have invoked it. The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country-that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary-the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing".

The Court of Appeal described the particular facts of the case, explaining that the class of injury was so severe that it was,

Towards the end of the Court of Appeal's judgment, on the invitation of counsel, it then referred in some detail to what happened in this House. It explained in paragraph 36 how the noble Lord, Lord Hunt of Wirral, had sought to insert in the Bill an original provision as I have described because of concerns about the Tony Martin case by protecting private individuals from lawsuits arising out of their endeavours to confront or apprehend criminals. The Court of Appeal referred to the fact that the noble Lord, Lord Hunt of Wirral, withdrew the amendment when the noble Lord, Lord Filkin, undertook that the Government would table their own amendment, directed to the same end, but clearer and more focused and, as Lord Justice Sedley said, perhaps more relevantly one,

Then the court referred to the noble and learned Baroness, Lady Scotland, introducing her own amendment, and it quotes what she said. Then the Court of Appeal observed that:

"Conspicuously, the minister did not take the opportunity, had this been the intent, to say that the clause was meant to create an absolute bar to any action ... Nor did she mention actions against the police. Had she done so, one might have expected considerable constitutional concern about a new defence to assault allegedly committed in the course of an arrest which abandoned the standard of objective reasonableness which the law has historically set for police actions, in favour of a test of subjective belief in a need to commit a trespass to the person, barring only gross overreaction. There might also have been puzzlement why, if such a defence was justified, it was to be confined to the moment of arrest. But an informed observer would have concluded that the

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amendment was concerned with the protection of private individuals who attempt, albeit misguidedly, to intervene when they witness what appears to be a crime".

I make no apology for quoting all of that because it explains why we are not in our beds. It is important when a court draws attention to an anomaly that we take it seriously.

Another example is the case of Buike v the Chief Constable of West Yorkshire. Again Section 329 was invoked to prevent an action brought by the claimant alleging that the police encouraged or allowed a dog to continue to bite the claimant longer than necessary to effect arrest, and dragged him for a substantial distance along the road, stamping on and kicking him.

The use of Section 329 by the police has led to a mismatch between civil and criminal proceedings. For example, it is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable it was not grossly excessive. But if the same person tried to sue the police for civil trespass to the person, the police could rely on Section 329 unless their actions were grossly disproportionate. There is no equality of arms and the current position fails to recognise that the police are public officers of the state, not private individuals. They are rightly endowed with special powers, but they have special obligations.

There is also a risk that Section 329 as it stands violates the right to physical integrity protected by Article 8 of the European convention and the right in Article 13 to an effective remedy. I will not in detail now explain why that is so. An action taken by an ordinary person to protect or defend themselves or another person from a crime must surely be treated differently from a police officer trained in the use of force. Whereas a police officer must be required objectively to justify her or his actions and use no more force than reasonably necessary, an ordinary person may be given some leeway for an honest and instinctive overreaction, which is what motivated the original amendment of the noble Lord, Lord Hunt of Wirral.

Finally, lowering the level of justification for assault in actions against the police, creating a mismatch between civil and criminal proceedings involving the police and potentially violating the convention is not what Parliament intended when agreeing to the clause. I am sure that it is not what was intended by the noble Lord, Lord Hunt of Wirral, when he originally proposed the provision and I do not believe that it was intended by the noble and learned Baroness, Lady Scotland, and the Government either.

My amendment would disapply the provision from actions against the police and restore the position that a trespass against the person occurring in the course of an arrest by a police officer must be objectively justified, and that no more force must be used than reasonably necessary. Otherwise, as has happened for centuries, the arrested person must be able to bring a claim for damages. I apologise for taking so long. I beg to move.

Lord Skelmersdale: My Lords, I assure your Lordships' Committee that there is absolutely no way, in any

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possible sense, that we could support any weakening of the expected standard of behaviour of the police. We have had several discussions already over time in Committee on this Bill on the appropriate consequences of what appears to be inappropriate behaviour during police action.

I hope that the Minister will be able to take this opportunity to add to his reassurances during those debates and respond fully to the concerns of the noble Lord, Lord Lester. We certainly hope that the 2003 Act has in no way led to any greater leniency for police officers than was previously the case.

I accept that I am on slightly dangerous ground here, but would not the noble Lord's amendment establish an unprecedented distinction in the civil court between classes of defendant; namely, an officer of police and the ordinary citizen? I am sure that the Minister is better qualified to pronounce on that than I am, and I look forward to hearing his response.

Lord Brett: My Lords, it is with great trepidation that I come to the Dispatch Box to cross swords with the noble Lord, Lord Lester, for whose knowledge of the law I have the greatest admiration. He enunciated very clearly the law of unintended consequences. The amendment highlights the issue. I am grateful for that, but the Government consider it appropriate to consult more widely and to involve the police and other interests before making any decisions as to whether a change to the law outside the Bill is appropriate.

In any event, the amendment does not address all the scenarios that need to be considered. For example, it would deny the protection of Section 329 to an off-duty constable who finds an intruder in his home. I am sure that that was not the noble Lord's intention.

Several wider issues are raised, and the Government's intention at this stage is to consult more widely with the police outside of consideration of the Bill. On that basis, we ask the noble Lord, Lord Lester, to withdraw the amendment.

Lord Lester of Herne Hill: I am grateful that the Government want to consult; that is always sensible, but perhaps I may deal with a couple of points.

The noble Lord, Lord Skelmersdale, raised an important question as to whether treating the police differently from ordinary citizens would create a lack of equality before the law. That was the fallacy, if I may say so, in cases such as Malone, where English courts said that the police can tap our telephones just as an ordinary private person can tap our telephones: they are entitled to full equality of treatment, like any other person and there should be no distinction drawn between them. The fallacy is that, of course, the police are not like an ordinary private person-they are public officers of the state, with special powers and special duties. The European Court of Human Rights held that the tapping of telephones by the police-not by private persons, but by the police-had to be regulated by statute and could not be treated as though it were ordinary conduct by private persons. That is fundamental to any constitutional system of government: the agents of the state have special powers and special duties.

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The second point is that, although the Government may wish to consult, if I am right there is a mismatch between the way that that operates at the moment and the obligations under the human rights convention. Therefore, unfortunately, there will be continuing exposure to the possibility of further humiliation in Strasbourg or by our courts if the point is not addressed. The point about the off-duty constable is very important. Of course, if the constable is not on duty, he is in the same position as a private person. We are discussing the situation where public powers are being used by a public officer on duty. That takes advantage of a loophole sensibly introduced by the noble Lord, Lord Hunt, for a totally different reason. As for the wording, if the Government want to tackle the problem, there is no problem in my agreeing any wording that they would like to produce something more elegant and workmanlike. This problem will not go away. If there is to be consultation, we should get a move on.

Having said that, I beg leave to withdraw the amendment.

Amendment 159G withdrawn.

Schedule 7 : Minor and consequential amendments

Amendment 160

Moved by Baroness Harris of Richmond

160: Schedule 7, page 169, line 32, leave out paragraph five

11.15 pm

Baroness Harris of Richmond: My Lords, I must declare an interest as a former chair of a police authority and the present vice-president of the Association of Police Authorities. I put my name to the amendment tabled by the noble Baroness, Lady Henig, and, with the agreement of your Lordships' House, move it on her behalf. She unfortunately cannot be with us tonight.

This amendment relates to Clause 5 on police collaboration, which we discussed some time ago. At present, police authorities can use local government legislation about the supply of goods and services by local authorities as an alternative means of collaboration. The effect of the Bill's wording is to prevent police authorities entering into these types of agreements with other police authorities and force them to use the collaboration arrangements set out in the Bill in these circumstances. Is that the Government's intention? It seems that the local government legalisation could still be used to collaborate when entering agreements with non-police bodies, but not when entering agreements with policing organisations.

It is a police authority's statutory duty to ensure efficiency and effectiveness, so it follows that it should be left to the police authority to decide what structural arrangements best meet local needs. Preventing or mandating the use of particular types of agreement could impede an authority's statutory duty to put in place the arrangements that are most efficient and effective in the circumstances. The amendment removes this limitation and reinstates the current situation that police authorities should be able to decide locally the most effective way of working together. It would mean that there might not be a standard approach everywhere; however, it is not the structures and mechanisms that

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matter, but better results for our communities tailored to local needs. It has been said time and again in policing that one size does not fit all, and that is particularly true of complex collaboration projects covering large geographical areas. Retaining flexibility is the best way of ensuring that meaningful results can be delivered.

It would be disingenuous of me to ignore the impact this change would have on the Home Secretary's powers to mandate or prevent collaboration because he has no such powers under local government legislation. That begs the question of why police authorities are not treated as mature partners in the same way as other local government organisations and why the greater devolution promised in the policing Green Paper seems not to be happening in practice. I beg to move.

Lord Brett: My Lords, I rise to resist this amendment, although I recognise the concern that police authorities might have over the provision in Schedule 7 that restricts their use of the Local Authorities (Goods and Services) Act 1970. I understand that Section 1 of that Act is used most commonly by police authorities to make agreements on the provision of goods and services with other public bodies, such as local councils or other emergency services, rather than with other police authorities, and I should make it clear from the outset that the provisions in the Bill do not prevent that continuing and are, in fact, not concerned with that situation.

However, without this consequential amendment in Schedule 7, an unacceptable loophole would remain. Police authorities could use the 1970 Act for agreements between police authorities where they could be using the collaboration provisions in the Police Act 1996, as amended by Clause 5. This would allow police authority agreements to circumvent the safeguards provided in the collaboration provisions.

There is no particular advantage for police authorities in using the Local Authorities (Goods and Services) Act with each other instead of the Police Act collaboration agreement provisions-it simply allows agreements about providing goods and services to be made between local authorities and any person-save to avoid having to comply with the provisions in the Police Act. In that way, they do not need to have regard to any guidance that may be issued by the Secretary of State on best practice in drawing up agreements and do not have to consult their chief officer.

It has been suggested that some agreements between police authorities are too small to warrant being categorised as collaborations and therefore do not deserve to be constrained by the provisions in Clause 5. I argue that the constraints placed on police authority collaboration agreements do not impose a significant burden and I trust that authorities use common sense in judging what is required for compliance in each case. They must consult their chief officer on all agreements but, if the subject of the agreement has no impact on operational matters, that consultation would be routine.

In our work with police authorities and the Association of Police Authorities on developing the statutory guidance on collaboration, we will want to ensure that it addresses

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the need to tailor agreements within the legislative framework across the whole spectrum of joint working, from sharing specialist staff between police authorities to multiforce collaboration programmes. The greatest clarity of outcome is achieved in this situation by preventing the availability of any alternative legal mechanism as the basis for collaborative working. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Harris of Richmond: My Lords, I thank the Minister for his comments. The one part of his comments with which I agreed was working with the APA on statutory guidance, which I would certainly encourage. I just feel that the writers of the Bill have not got it; they just have not understood what we are trying to say, quite frankly. The use of common sense is all very well, but I wish that some had been applied when this had been written. At this late stage, I know that we are going to get no further with this. I will read the Minister's response. We may come back to this on Report but, in the mean time, I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

Amendments 161 and 162

Moved by Lord Brett

161: Schedule 7, page 172, line 30, leave out from "of" to end of line 38 and insert "relevant entertainment-

(a) at premises for which a licence for a sex encounter venue is required (or the requirement has been waived) by virtue of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, and

(b) of a kind, and in a way, by virtue of which the premises qualify as such a venue,

is not to be regarded as the provision of regulated entertainment for the purposes of this Act.

(1A) The provision of relevant entertainment-

(a) at premises which are subject to a licence for a sex encounter venue but are not such a venue merely because of the operation of paragraph 2A(3)(b) of Schedule 3 to the Act of 1982, and

(b) of a kind, and in a way, by virtue of which the premises would qualify as such a venue but for the operation of that paragraph,

is not to be regarded as the provision of regulated entertainment for the purposes of this Act.

(1B) The provision of entertainment consisting of the performance of live music or the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is an integral part of such provision of relevant entertainment as falls within sub-paragraph (1) or (1A).

(1C) The provision of entertainment facilities is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is for the purposes of such provision of entertainment as falls within sub-paragraph (1), (1A) or (1B).

(2) In this paragraph-"

162: Schedule 7, page 172, line 40, at end insert-

""relevant entertainment" has the meaning given by paragraph 2A(2) of that Schedule to that Act;"

Amendments 161 and 162 agreed.

Schedule 7, as amended, agreed.

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Schedule 8 : Repeals and revocations

Amendments 162A and 162B had been withdrawn from the Marshalled List.

Amendments 163 and 164 not moved.

Amendment 165

Moved by Lord Brett

165: Schedule 8, page 200, line 26, at end insert-

"Part 11AMisuse of Drugs Act 1971: warrants
ReferenceExtent of repeal

Misuse of Drugs Act 1971 (c. 38)

In section 23- (a) in subsection (3), "acting for the police area in which the premises are situated", and

(b) subsection (5)."

Amendment 165 agreed.

Schedule 8, as amended, agreed.

Clauses 112 to 115 agreed.

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