Police (Detention and Bail) Bill

Lord Clinton-Davis Excerpts

Tuesday 12th July 2011 Lords Chamber

[The Minister of State, Home Office (Baroness Browning)]

My Lords, I am sure noble Lords are aware of the circumstances in which this Bill comes to us from the other place. However, I will summarise the position in an effort to assist the House in its unavoidably brief examination of the Bill.

Since the Police and Criminal Evidence Act 1984, known almost universally as PACE, came into force in January 1986, it has placed an upper limit of 96 hours on the period of pre-charge detention for a person arrested on suspicion of having committed a non-terrorist offence, provided that detention past 36 hours is authorised by a magistrates’ court. That period of detention could be interrupted by one or more periods of bail, and detention time would run up to the time limit only when the person was in police detention; the clock would be paused during any period or periods of bail.

That understanding of the limits on detention was shattered last month when the High Court, sitting in Manchester, issued its written judgment in the Hookway case. The court held that, as a matter of statutory construction, the maximum period of 96 hours runs from the time that a person’s detention is first authorised and is not paused by a person’s release on bail. Once the police service had the opportunity to consider that judgment, alongside advice from some of the most eminent members of the Bar, it advised my right honourable friend the Home Secretary that the judgment posed major operational difficulties for it and that the judgment needed to be reversed at the first available opportunity.

Let me make it clear to the House that we had to wait until we had the written judgment, so that we could understand its scope, and had also tested with ACPO whether it could continue to protect the public, including victims and witnesses, within the detention and bail framework as redefined by the ruling. ACPO’s very clear advice on 30 June was that any mitigating action it might take could endure only in the short term. That is why my right honourable friend the Minister for Policing and Criminal Justice made an Oral Statement in the other place that very same day, setting out the issue and promising urgent legislation to give certainty to all those involved in the process of pre-charge detention and bail.

That urgent legislation is of course the Bill before us today.

[Lord Clinton-Davis]

My Lords, have there been any discussions with the Bar Council and the Law Society concerning this matter?

[Baroness Browning]

My Lords, there have certainly been exchanges of correspondence with the Law Society. I am not sure whether that included the Bar Council, but the Law Society is certainly aware and has exchanged correspondence.

The Bill has only two clauses and a single effect: to return the law to where it was commonly understood to have been for the previous 25 years. I cannot emphasise strongly enough that all we are doing here is restoring the status quo ante. The Government are quite clear that the Bill in no way widens police powers. So that there is no doubt, it may assist the House if I say a little more about Clause 1, which contains the substantive provisions.

Subsection (1) of Clause 1 has the effect of making clear that all time limits and time periods in Part 4 of PACE are to be read as including time actually spent in detention and excluding time spent on bail. Those limits and periods include initial time limits under Section 41 of PACE, superintendents’ extensions under Section 42 and warrants of further detention under Sections 43 and 44.

Subsection (2) of Clause 1 amends Section 34(7) of PACE. That section provides that when a person returns to detention from bail, whether that return is previously arranged or is as a result of being arrested for breaching bail, the person is to be treated as having been arrested for the original offence and the remaining detention period will have deducted from it the time previously spent in detention. The amendment in subsection (2) makes clear that those calculations also exclude the time spent on bail.

Subsection (3) of Clause 1, as part of the Government’s wish to return the law to its previous position, gives the Bill retrospective effect. I realise that that may be a matter of concern to some of your Lordships as a matter of principle—I will come on to that. As your Lordships will have seen from the Explanatory Notes that accompany the Bill, the Government have considered very carefully the issue of retrospective effect. We have come to the firm conclusion that, if the Bill is to fulfil its objective of returning the law to the position that was commonly understood before the judgment of the High Court in Hookway, it must be expressed as always having had effect. That is because, as the many lawyers in your Lordships’ House will be aware, the Hookway judgment also had retrospective effect. If the Bill were not to apply to the past as well as the future, there would be very real questions as to the legality of many past detentions, both before and since the Hookway judgment.

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[Lord Hunt of Kings Heath]

My Lords, we on this side of the House support the legislation, which is needed to overturn the High Court ruling in the circumstances described by the noble Baroness. It is clear that the judgment causes serious problems for policing operations, for ongoing investigations, potentially for the delivery of justice and, most seriously of all, for the protection of victims and witnesses.

As the noble Baroness so lucidly explained, it had previously been assumed that releasing a suspect on bail effectively paused the detention clock. It was thought that the clock could then be restarted when the suspect answered police bail and was redetained, even if that point was later than 96 hours after the relevant time. The recent High Court ruling is that that is not the case under the precise wording of the Police and Criminal Evidence Act 1984. Instead, the maximum 96-hour period specified in that Act runs immediately from the relevant time and cannot, as has been common police practice, be suspended by releasing a suspect on bail and be restarted later beyond the 96 hours by redetaining the suspect. The detention clock continues to run even while the suspect is on bail.

Understandably, Parliament has always been concerned to ensure that emergency legislation should be brought only on the basis of very serious considerations, and is never to be done lightly but with a clear understanding of the risks involved. However, Parliament needs to balance that with the risk to the public and to justice if we do not legislate immediately. The situation apparently means that the police are unable to recall people from police bail if they have been bailed for more than four days unless the police have new evidence that allows them to rearrest. The situation also raises serious issues about the application of bail conditions, particularly in domestic violence cases, as those conditions can include important protection for the victim. Such conditions could include someone being prohibited from going to his ex-wife's workplace, the family home or the children's school. Some bail conditions are an extremely important part of protecting the safety of victims and witnesses; and if they cannot be enforced, protection is clearly at risk.

We therefore support rapid action but, unfortunately, rapid action has not entirely characterised the response of the Home Secretary. I noticed that, in her introductory remarks, the noble Baroness emphasised the written judgment. She will know that the oral judgment was given on 19 May and her officials were informed soon after that—certainly before the end of May. The Home Secretary has said that she had to wait for the written judgment, but that has not meant that the Home Office had to suspend any action and judgment of what advice should be given to Ministers until the written judgment was received.

It is now seven weeks from the original judgment, three weeks since the written judgment was put in place, and two weeks, apparently, since Ministers were informed. The gap alone between Home Office officials being informed of the written judgment, the written judgment being published and Ministers being told has put Ministers in a difficult position. Our first concern is about the initial delay before the Home Office received the written judgment. More work should have been done between the oral judgment and the written judgment, and once the written judgment arrived, advice should have been given very quickly to the Home Secretary and the Minister for Policing and Criminal Justice about the risks in this case.

[Lord Clinton-Davis]

It is common practice for solicitors to note the judgment beforehand, so it is not necessary to await the written judgment as it unfolds.

[Lord Hunt of Kings Heath]

My Lords, that is a very telling intervention from my noble friend. Surely that is the case. All I would say to the Minister is that I hope lessons will be learned from this matter.

Changing the law retrospectively is in general undesirable and creates great uncertainty. It threatens natural justice if people end up breaking up a law they did not know existed. In this case, my understanding is that the Government are seeking simply to restore the law to what we in Parliament thought it was, to what it had been intended by Parliament at the time to be and to what the police, the CPS and others have followed in good faith for many years.

I noted the intervention of the noble Lord, Lord Thomas of Gresford. Like the Minister, I also noted the comments of Liberty, which are worth emphasising. Liberty does not believe that the Government are seeking retrospectively to create a criminal offence, sanction or other burden, so it would not fall foul of Article 7 of the European Convention on Human Rights.

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[Lord Clinton-Davis]

My Lords, I apologise to the House for intervening at this stage, but I went to the Government Whips Office yesterday, and I thought that I had put my name down. It has disputed that, but the Government are very wisely allowing me to speak.

The noble Lord, Lord Pannick, has eloquently raised some pertinent issues underlying the matters that we have to consider today, and I hope the Minister will be able to reply to those points. The noble Lord argued effectively that the Supreme Court should have had an opportunity to consider these matters, and I was very surprised to hear that no one asked the Supreme Court to meet more speedily. I note that the noble Lord spoke without any intervention from the Minister. I presume, therefore, that what he said is borne out. I will listen with great patience to what the Minister has to say.

Despite the questions that have been raised, and despite my own criticisms of the Bill, I remain in support of the Bill’s intentions and urgency. As we have heard, the Bill aims to re-enact the law as we have almost unanimously thought it was; and I, as a lawyer, join that number. I am always somewhat suspicious of emergency legislation because I believe that it puts a particular duty on Parliament to scrutinise it and its future in practice with extreme care. Whether or not there is a sunset clause, which I would support, it is incumbent on us to examine the Bill, or the Act as it unfolds in future. I hope the Government will respond positively to the suggested early consideration of these legislative provisions. If, in the future, there is a clear need for emergency legislation, does the Minister agree that the relevant departments—in this case, the Home Office, Ministers and civil servants—need to anticipate the problems and how they are going to react to them somewhat more effectively and speedily than has been illustrated here?

Mr Gareth Johnson, a Conservative in the other place, made a significant point about bail and the attitude adopted by the police, about which there is still a significant question mark. He argued that the police should not view the Bill as a green light to keep suspects on bail for an inordinate period before any decision on charging is made. I hope that the Minister can assure the House about this point, since the Law Society has also drawn attention to this matter. Whether or not we have a sunset clause, it is incumbent on us to examine this Bill with care. I hope that the Minister—who is in no way to blame for this parlous situation—will be able to reply to these points.

I refer to another important issue. In my view, it is essential with questions of this nature that the Bar Council and the Law Society are consulted forthwith. That has not happened here. Why not? Do the Government intend to consult them now? More importantly, is the Minister able to say that in future, if a situation of this kind arises, there is no doubt that they will be consulted immediately? It is not sufficient for there to be a mere exchange of correspondence; that is no answer to the major point that I raise.

--- Later in debate ---

[Baroness Browning]

I certainly do not disagree with the noble Lord on the general principle, and I will take his point back with me.

[Lord Clinton-Davis]

What I do not understand from what the noble Baroness has said is whether counsel even asked the Supreme Court for an earlier date. All we have heard is that it would have fallen on deaf ears, but we do not know. Why did counsel not ask for that?

[Baroness Browning]

Counsel did ask for that. The original date was in October or November. Counsel went back and asked for an earlier date, and that was why it was brought forward to July.

[Lord Clinton-Davis]

If the Supreme Court had understood that Parliament would not be sitting at that particular time, should they not have been made aware that Parliament was going to rise on 20 July?

[Baroness Browning]

I do know whether or not the Supreme Court, in bringing forward the date to July, was made aware of the date on which Parliament was sitting. The Home Office was clearly actively involved in these things, but of course the GMP was approaching the court, not the Home Office. I cannot specifically answer the particular point raised by the noble Lord, but I will endeavour to find out for him.

I can only reiterate the point that I made in my opening remarks. I know that this is a matter for the Constitution Committee, but we really do not believe that we are undermining the constitutional separation of powers by asking Parliament to legislate to reverse the effect of a High Court decision in advance of the issue having been decided by the Supreme Court. As has already been pointed out, had we waited we would have been in recess when that determination was made. The House will not return until September. We have already heard about the urgency of the need to take action in this matter, particularly from the noble Lords, Lord Condon and Lord Dear; nor has the point been lost on us in our discussions with ACPO that these are really serious matters.

The daily problem of the management of bail and offenders and the impact on victims of crime have rightly been pointed out by the opposition Front Bench, particularly in certain circumstances; the noble Lord, Lord Rosser, raised the question of domestic violence and people going back into the same area where they have previously committed a crime. These are very serious operational matters for the police to have to contend with.

Picking up on points raised around the House, I hope this is something we shall deal with when we have the consultation on bail and bail conditions. The police are between a rock and a hard place at the moment in trying to manage this. They are doing incredibly well, but as has been pointed out they can manage this only in the short term. If we were to ask them to manage it throughout July and August and well into September, before this House could come back to this issue, some of the cases that would come to the attention of your Lordships, and through the legal profession, would give cause for concern, not because of the police deliberately doing things that perhaps are outwith their powers but because of the very difficult position that they are in in having to manage these matters even now.

It remains to be seen whether Greater Manchester Police proceed with their appeal once this Bill is enacted—although I understand that it is their current intention to do so—and if so, what view the Supreme Court will take. The Constitution Committee may well want to consider this legislation in the light of that judgment, whatever it may be, and may well return to this later in the year. We will of course study that and carefully consider any report on the broader issue.

Members have touched on the matter of a sunset clause, although I noted that this has not been pressed particularly hard, and I am grateful for noble Lords’ understanding of it. Given that the Bill does no more than restore the law on the calculation of the detention clock to the position that it was commonly understood to be in 25 years prior to the Hookway judgment, we see no case for a sunset clause in this instance. Indeed, this is one of those instances in which a sunset clause could well have an adverse effect, in that it would perpetuate the very uncertainty about the proper interpretation of part 4 of PACE, which we are seeking to address in passing this Bill.

Finally, let me respond to the point raised by my noble friend Lord Thomas, and touched on by other noble Lords, on the wider issues involving bail and the consultation that we are going to put in place. No hard evidence has been received, but sufficient concern has been expressed from so many quarters that we need to get this right. Examination cannot be rushed; there needs to be an ordinary process, including consultation with the police, the CPS, and legal practitioners. Noble Lords have indicated that there is an understanding in the House that we could not include that in the Bill before the House today. I welcome support from all sides of the House for the Bill.