Policing and Crime Bill

Viscount Hailsham Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Lord Marlesford (Con)]

My Lords, Amendment 181 seeks to right, or at least to mitigate, what I see as a wrong. In recent months, we have on many days heard, read or seen reports of individuals being investigated for crimes, particularly sex crimes. There is huge publicity, especially when one of those persons is already a public figure, which must be agony for those concerned.

Sometimes the investigation leads to prosecution and conviction, and then any sympathy one might have had is likely to evaporate or at least diminish. But sometimes it leads to an announcement by the police that there will be no prosecution, and that may be after many months. The phrase used to explain the decision is “insufficient evidence”. That is a most tendentious phrase. It implies “no smoke without fire” and is rather similar to the old Scottish “not proven” verdict.

The decision to investigate allegations must always be made by the police, but sometimes investigations come to nothing. There can then be a long period, perhaps a very long period, of waiting, and then there is the announcement of “insufficient evidence”. The essence of our system of justice is that criminal cases are tried on the facts, with a jury, with a verdict either of guilty or not guilty. That is how it should be. It is not a matter of mere semantics to object to the phrase which I have quoted. That is why I seek to change the wording in circumstances where the decision is made that there is not the evidence to prosecute from “insufficient evidence” to the much more neutral phrase “lack of evidence”. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I support what my noble friend Lord Marlesford has said. He has identified something that has gone seriously wrong in recent years. The phrase “insufficient evidence” suggests the existence of some evidence. In some instances that will, of course, be right, but in other cases it will not be right—for example, in recent cases which will, doubtless, be in your Lordships’ minds. My noble friend has put forward a phrase which ought to be acceptable to the Government, but if it is not—and I am no wordsmith—perhaps I might suggest some alternatives. It would be proper to say, for example, “wrong to commence criminal proceedings” or “criminal proceedings are not justified”. Other phrases may occur to your Lordships.

What we must not do is to allow the police to come forward with a reason which implies the existence of a fire unsupported by sufficient smoke. That is not a fair state of affairs. My noble friend on the Front Bench may say that this is not a matter for statute. If the Committee is of that view, then advice could be given by ACPO to its members, but I think my noble friend has identified a real point which I hope your Lordships will support, by argument and debate.

[Lord Dear (CB)]

My Lords, I support what both noble Lords have said, the noble Lord, Lord Marlesford, in particular. I am sure I am right in saying that there is a growing sense of disquiet throughout society, which has swung away from the rampant interest that one saw in recent years in pursuing sex offenders, in particular—the Jimmy Savile case comes to mind immediately—towards beginning to say, “Wait a minute, it has gone too far”. I believe that it has gone too far. We live in a world where reputations can be traduced almost within seconds, given the spread of social media—I think the phrase now used is “going viral”. That can happen and, worldwide, a reputation is in tatters in a way that was not at risk of happening before.

One has only to look at Members of this House, never mind anyone outside—and outside is in many ways more important than our own membership of your Lordships’ House. Lord Bramall comes to mind. The son of the noble and right reverend Lord, Lord Carey, has recently been in the newspapers for reasons I found totally disquieting. So have Sir Cliff Richard, Lord Brittan, Sir Edward Heath and Bishop Bell, who has been the subject of many of our debates recently. I will not take up your Lordships’ time except to say that I support what is being said. Whether we should do it by advice, as has recently been said, I do not know, but the Government should take note of this growing tide of disquiet at what is going on. I hesitate to say, and I am sad to say, that the police are front runners in causing this situation. Something should be done and this amendment is a step in that direction. I support it.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I support the amendment. From the point of view of the person detained the detention starts at the point described by my noble friend Lady Walmsley. It is not a question of that being some sort of limbo; that must be how it feels. If a person is on the way to a place of safety, they are being detained, held and controlled as much as they would be when they reached their destination.

[Viscount Hailsham]

My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.

[Baroness Chisholm of Owlpen]

My Lords, the amendment would provide for the permitted period of detention of a person detained under Section 135 of the Mental Health Act 1983 to commence at the point at which they were removed to, rather than the point at which they arrived at, a place of safety.

The Government wholeheartedly support the aim of minimising the period during which a person is detained under either Section 135 or Section 136 of the 1983 Act. That is why Clause 80 reduces the maximum detention period from 72 hours to 24 hours.

I also agree that every effort should be made to minimise the time taken to remove and transport a detained person to a place of safety. However, I put it to the noble Baroness that securing that outcome cannot best be achieved through legislation. Indeed, the amendment could well have unintended consequences which were detrimental to the best interest of detained persons.

I fear that the practical effect of the amendment would be to penalise those in need of care and the professionals assessing them in circumstances where the detained person needed to be removed from an isolated location, or if it was difficult to remove that person. For example, if someone needs to be removed from a place that is isolated or difficult to access, it may take some time for professionals to be able to get that person to a place of safety. We do not want the police or mental health practitioners to have one eye on the clock in such circumstances.

There is a balance to be struck between taking positive action to keep periods of detention as short as is reasonably possible and giving mental health professionals sufficient time for the necessary arrangements to be made for mental health assessments to be conducted during the 24-hour window provided for in the Bill. We believe that the combination of reducing, by two-thirds, the period of detention and starting the detention clock only when the detained person arrives at the place of safety—which is, incidentally, how the time limits work now—achieves that balance.

In practice, the vast majority of detained persons will be assessed well within 24 hours of their removal, but the legislation needs to allow not just for the generality of cases, where a person can be taken quickly to a place of safety, but also for that small minority of exceptional cases where this may not be possible. I hope that, on reflection, the noble Baroness is persuaded that the approach taken in the Bill is in the best interests of those suffering a mental health crisis and in need of immediate care. I accordingly invite her to withdraw her amendment.

--- Later in debate ---

In a civilised society, this situation requires not only data collection and decisions at local level but a national statement from the Government about how we should treat mentally sick people. This should not require the use of firearms. I beg to move.

[Viscount Hailsham]

My Lords, I hope the Committee does not accept this amendment. Of course, I have every sympathy with the generality of the points made by the noble Baroness, but I hope she will forgive me if I observe that many of the arguments that she has advanced are advanced in general against the use of Tasers, not with particular regard to the use on psychiatric wards. Your Lordships need to keep in mind that some people held on psychiatric wards can be prone to extreme violence. I am not prepared to say that there are no circumstances in which a Taser might not be appropriate in self-defence of the people with responsibility for the persons on the ward or in defence of third parties. That is an extreme position to take and I ask the Committee not to take it.

Furthermore, if the Committee was to accept this amendment it would create an offence on the part of the officer or nurse who used a Taser, who would be guilty of an assault, whereas the circumstances that arose in any ordinary context would justify the use. That strikes me as a very rum thing to do indeed. I hope that we will rely on the ordinary law, which is that a Taser should be used only in wholly exceptional circumstances in appropriate self-defence or in defence of a third party, and we should not try to prohibit its use in very specific circumstances of the kind identified by the noble Baroness.

[Lord Dear]

My Lords, I echo the words that we have just heard. I have considerable sympathy with the emotions and reasoning behind the amendment of the noble Baroness, Lady Walmsley. I make no comment about staffing in psychiatric wards—I have no knowledge of that—but as I speak against this amendment, we should remember that the Taser was introduced as an intermediate stage. It is intermediate between the use of batons, pepper sprays, CS gas and so on the one hand and firearms on the other. A Taser is not a firearm. It is something akin to it—it looks rather like one—but it is not a firearm within the definition of the Act. It does a different thing altogether. There is a violent interaction; of that, there can be no doubt. It brings immediate incapacity and some discomfort when it is fired but, as is sometimes said, in fact it knocks down the individual completely. That has to be the object of the exercise.

Perhaps I can give the Committee a circumstance which has already been alluded to. On a psychiatric ward a patient, for whatever reason, has become exceedingly violent and probably caused serious injury. They may even have caused death. The police are called; what are they going to do? If this amendment is passed into law, the police cannot use a Taser. They will use either the original, which is the pepper spray and so on, or a firearm. We need to remember that the use of a firearm in those extreme circumstances is justified in law, because there is a threat to life. By taking the Taser out we will in effect open the door, in extremis, to somebody being shot with a real lethal barrelled weapon.

I am all for looking at practice directions and reviewing the use of Tasers. Mission creep has been mentioned and perhaps there is mission creep—I do not know that and have not looked at the figures. However, to have something as extreme and prescriptive as this amendment within statute will certainly expose patients in psychiatric wards to the risk of death rather than anything else. In speaking against this, I am all for looking closely at the use of Tasers and for counselling officers using or thinking of using them to exercise extreme caution, but I would not go so far as the amendment stands.