Criminal Justice Bill

Public Bill Committee, 19 December 2002.

Standing Committee B

Clause 5 - Limits on period of detention without charge

Graham Allen (Labour, Nottingham North)

I do not intend to move amendments Nos. 73 or 72, in order to assist the Committee in making progress, Mr. Illsley. However, I might try to catch your eye on clause stand part.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No.31, in

clause 5, page 4, line 31, after second 'offence', insert

'punishable by more than ten years imprisonment.'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No.15, in

clause 5, page 4, line 31, leave out 'an arrestable offence' and insert

'an offence which is triable only on indictment'.

No.14, in

clause 5, page 4, line 31, after second 'offence', insert

'excepting offences under the Road Traffic Acts'.

Humfrey Malins (Conservative, Woking)

I rise to my feet unexpectedly early, Mr. Illsley, which could cause me some distress. The hon. Member for Nottingham, North (Mr. Allen) will, I am sure, speak on clause stand part with his usual great authority. I remark in passing what a dreadfully early start this is.

The clause is important, and in a little while I shall come to the issues raised by the Home Affairs Committee. Suffice it to say that, dominated though it is by the Government and the Labour party, that Committee had some fairly strong views on the clause, which we may refer to again on clause stand part. I see that the hon. Member for Bradford, West (Mr. Singh) is here; he is a distinguished and experienced member of the Home Affairs Committee, and I am sure that he, too, will seek to catch your eye, Mr. Illsley, to raise his particular concerns.

It is important to assess what the Government seek to achieve with the clause. It extends the scope for an officer of the rank of superintendent to authorise detention without charge for a maximum of 36 hours. It allows detention to be extended for up to 36 hours when the relevant offence is an arrestable offence provided that the other conditions are satisfied. It is important to consider what is an arrestable offence, and for that we need to refer to section 24 of the Police and Criminal Evidence Act 1984.

In summary, clause 5 seeks to widen powers of detention. For my part—I think that I speak for my party and for many Committee members—I believe that detaining someone for an indefinite time is a power to be used extremely sparingly. Over the years, those cases when the police have properly and

diligently sought to use the power to detain someone for longer than 24 hours have normally been reserved for the more serious and complicated cases. I see no argument at present for widening it to include less serious offences—so-called arrestable offences.

Is there any evidence to suggest how often, or in what proportion of cases, the power to detain for up to 36 hours, or after that time, has been needed? In the vast majority of cases the power is not necessary. It is sometimes said that when a defendant is in a drunken state, or otherwise in a poor state, the 24 hours begin to elapse at a time when it is not possible to talk to him. Sometimes there is a problem because of the defendant's mental capacity. The high-profile cases in which the power is thought to be relevant are usually those entailing a very serious allegation. In what proportion of cases will the new power be likely to be used? Will they be the most serious? If so, amendment No. 31 will naturally be accepted.

That approach would fit, for example, the situation following a robbery. The explanatory notes set out a typical instance in which it should be possible to extend the power of detention. They state:

''This broadened capacity for extended detention without charge will assist the police in dealing effectively with a range of offences, for example robbery, where it will sometimes be extremely difficult or impossible to complete the necessary investigatory processes within 24 hours.''

That is a fair point, but since the notes refer specifically to robbery, I point out to the Minister that the amendment would limit the clause but would undoubtedly leave robbery covered, as would amendment No. 15. Amendments Nos. 31 and 15 are intended to place restrictions on a very powerful provision, which will enable someone to be detained for longer than would otherwise be possible.

I want to discuss arrestable offences. Clause 5 will substitute for section 42(1)(b) of the 1984 Act, the words

''an offence for which he is under arrest is an arrestable offence''.

The term ''arrestable offence'' is a difficult and complex one, and many of us over the years have thought that any offence for which one can be arrested is an arrestable offence. Oddly enough, that is not the case. If any member of the Committee is out on the street and commits a minor offence under, say, public order provisions—an offence involving threatening or abusive behaviour—he or she can be arrested for the offence. However, it is not an arrestable offence under the Act.

That is an odd situation. A careful look at PACE and previous measures confirms that. We shall not, by agreeing to the clause, extend the power to detain in every case in which a person can be arrested, but only in cases involving an arrestable offence. Under PACE, an arrestable offence carries a sentence of five years or more in prison. Does that not mean that the clause would bite for an offence of petty theft? The shoplifter who steals an item worth £1 or £2 will be charged with an offence that is triable either way—not only in a magistrates court but in a Crown court, which has the power to sentence him to well in excess of five years. That makes petty theft an arrestable offence under the clause.

James Clappison (Conservative, Hertsmere)

My hon. Friend is drawing on his legal experience, which I am afraid is much more contemporary than mine. Let me, however, put to him another example of what he has described. I have in mind what some people would see as a relatively less serious arrestable offence, although it is still serious in its own way. Under clause 9, to which we shall come shortly, cannabis will be reclassified as a class C drug, and possession will punishable by two years' imprisonment. It will therefore no longer be an arrestable offence unless it is specifically made one, as clause 9 proposes. Will he confirm that the possession of cannabis is one of the offences to which clause 5 will extend the power of detention?

Humfrey Malins (Conservative, Woking)

My hon. Friend makes a telling point and anticipates a debate that we shall undoubtedly have on the possession of cannabis. At present, certain penalties are available for that offence. If clause 9 passes into law, however, it will be an arrestable offence. That will mean that a person arrested for possessing cannabis—subject to the five-year sentence, if the new provisions are passed—will find himself at the whim of the police as regards long-term detention. It is therefore fair to ask the Government what their true position on cannabis is, and we shall put that question to them in much more straightforward terms later. Are they complicit in the practice of many police forces in the London area, which merely warn, caution or, as my hon. Friend the Member for Hertsmere (Mr. Clappison) will no doubt remind us, give a conditional caution to people who possess a little cannabis? Do the Government support that approach? How is that consistent with placing the possession of cannabis in a category that will allow them to authorise chief superintendents and superintendents to detain people for up to 36 hours? According to the explanatory notes, that power is to be used in exceptional, rather than everyday cases. I would be rather worried if it were available for everyday cases.

Graham Allen (Labour, Nottingham North)

There seems to be a rather bizarre contradiction in what the hon. Gentleman is saying. Amendment No. 14 would exclude the most serious road traffic offences, which are arrestable, such as causing death by dangerous driving, failing to stop at a personal injury accident or causing death while driving without due care and attention. We would have the stupid situation whereby someone who had stolen a Mars bar could be detained for 36 hours, whereas someone who had killed an entire family in a car accident, yet failed to stop, could not.

Humfrey Malins (Conservative, Woking)

Amendment No. 14, in relation to road traffic, is about a different point altogether. It seeks to probe the issue of an offence for which the sentence is fixed by law.

Paul Stinchcombe (Labour, Wellingborough)

Will the hon. Gentleman clarify the true intent of the amendments? Are they cumulative or are they any alternative? How would the clause read if they were agreed to?

Humfrey Malins (Conservative, Woking)

I recognise the hon. Gentleman's expertise in these matters. Amendments Nos. 31 and 15 are, in a sense, alternatives. They would not both be passed, even if I carried the Committee with my arguments, which I hope to do.

Graham Allen (Labour, Nottingham North)

I would vote for both.

Humfrey Malins (Conservative, Woking)

That is most encouraging.

I tell the hon. Member for Wellingborough (Mr. Stinchcombe) that Amendments Nos. 31 and 15 are tailored to produce a restriction on the power to extend, but to do so in two different ways.

Paul Stinchcombe (Labour, Wellingborough)

I am pleased that the hon. Gentleman confirmed that amendments No. 31 and 15 are alternatives. Can he say which he prefers, and why?

Humfrey Malins (Conservative, Woking)

Yes, I can. I instinctively prefer amendment No. 15, not least because I think that I drafted it. I prefer it, though, because I have never been happy with random figures such as 10 years, five years or seven years. I am seeking to deal with the most serious offences. I think that both amendments are terrific, but that the cleaner approach behind ''triable only on indictment'' is much better, because that does not go wider than robbery. We are talking about the power to detain and take people's liberty away for a long time. They do not go before a court in that time: they are detained. It covers matters that the explanatory notes helpfully mention, such as robbery, for which it is difficult to produce the necessary investigations in time. Robbery is triable only on indictment.

Ian Lucas (Labour, Wrexham)

Is not the difficulty with the amendments that, if the provisions are restricted to indictable matters, burglary and complex theft, for example, would be excluded? Would not that profoundly restrict the ability of the police to deal with such difficult and serious offences?

Humfrey Malins (Conservative, Woking)

I take the hon. Gentleman's point. However, it brings me back to the question that I posed to the Minister: what sort of cases are we talking about? Can he tell us what they are, how often they occur, and what percentage they are of the overall custody situation in police stations? I appreciate that there is a difficultly with amendment No. 15 on that very point. As was rightly pointed out, burglary is either way. Although in some cases the magistrates will send the case to the Crown court for trial because of its seriousness, that does not mean it is indictable only. I accept that point and that difficultly. The hon. Member for Nottingham, North nods, and will no doubt add to my difficulties.

Graham Allen (Labour, Nottingham North)

Why does not the hon. Gentleman withdraw the amendment? Then we can forget all about it.

Humfrey Malins (Conservative, Woking)

The amendment is worth putting before the Committee in order to probe the Government to find out what they are trying to do and to get a debate under way. My essential point is that one has to have powerful reasons to justify holding somebody for an extended period.

Amendment No. 14 purports to exclude road traffic offences. It is a probing amendment for reasons unconnected with amendments Nos. 31 and 15.

The clause specifies that an arrest must be made for an arrestable offence. Such offences include those for

which the sentence is fixed by law. I believe that one of those offences is that commonly known as drink driving. It attracts a fixed sentence of a 12-month ban, and there is no discretion. Would the Minister expand on what he means by sentences fixed by law and comment specifically on the fixed penalty for offences under road traffic legislation in relation to drink driving?

Ian Lucas (Labour, Wrexham)

Is it not the case that a drink driving offence can attract a disqualification of, say, 18 months or two years at the discretion of the magistrates court and that therefore the sentence is not fixed?

Humfrey Malins (Conservative, Woking)

Yes, that is true. However, the minimum sentence is fixed by law. It cannot be lower, whatever the court wishes to do. I believe that there are other such cases and I shall be grateful if the Minister will list them—I am sure that his advisers can tell him of half a dozen offences for which the sentence is fixed by law. If I am right about the breathalyser, the power would extend to that. I seek your guidance, Mr. Illsley. I have tried to speak specifically to the amendments and I wish to make more general points on clause stand part. You have not yet commented that the debate is so wide that you will not allow a stand part debate, so I am crossing my fingers for one. I see that the hon. Member for Nottingham, North is nodding.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I will be brief because I wish to speak against the clause as a whole. The amendments are designed to minimise the effect of the clause while allowing a change. If the choice was between the clause and the clause as amended, we would prefer the latter, but we would rather not have it at all—a case has not been made for it.

If there has to be a change in the gradation of the offences for which the power can be sought, there is an alternative to the three amendments: to alter the list of offences in PACE. Our debate suggests that three categories of offence are affected directly by this group of amendments. Legislation provides for extended detention in the case of serious offences. Within that category, there are three specific groups for which, under section 24(1) of PACE, extended detention is currently possible. One is the group just discussed, carrying sentences that are fixed by law. Few sentences are like that, with life imprisonment obviously the most serious. The second group covers offences for which there is a five-year minimum imprisonment period for over–18s, and the last is a list of specific offences. That list is variable. It has been altered on at least two occasions since 1984, and perhaps more. Offences that have come into that list include, understandably, carrying an offensive weapon, kerb crawling and touting for car hire services.

When the Committee considers the clause as a whole, it will have to reflect on whether it would be better to have a general rule for 24-hour detention, rather than getting on to the slightly difficult and esoteric subject of what is an arrestable offence. The general public do not really understand that definition, or the definition of an offence triable on indictment. People do not walk around thinking about such

concepts in terms of how they categorise offences. It would be better to have something much more clearly understood by the public.

I am in favour of provisions for a power in relation to offences generally, and then a power for what the public might call serious offences. Such offences will clearly include those for which there is a fixed sentence. Everyone understands the idea of life imprisonment, for example, and that a longer detention power would be required for offences carrying that sentence.

The Liberal Democrats do not support the amendment other than as a probing exercise, because we would prefer the law to remain as it is. There is strong evidence for the Committee to take the view that the case has not been made to change the law, so we should keep the 24-hour norm with the current exceptions, which seem entirely valid and justified and quite a good way to do things.

James Clappison (Conservative, Hertsmere)

It is a pleasure to serve under your chairmanship this morning, Mr. Illsley, as I break my duck in the Committee after its first sitting day.

I strongly support the approach taken by my hon. Friend the Member for Woking (Mr. Malins), as we have an important opportunity to probe the Government's intentions on the subject. I want to follow in his spirit, and think that it would be a mistake to get hung up too much on the details of the amendment, as they give the Minister the chance to make his case.

From the explanations that we have heard, we have been given to understand that the purpose of the clause—the amendments probe that purpose—is to extend the categories of offences for which detention can be authorised up to 36 hours, from serious arrestable offences to arrestable offences.

My hon. Friend was right to approach the matter as he did. My general view on such matters is to be sympathetic to requests for additional powers when a good case is made for them. However, it is entirely right to examine carefully the case for making such an extension before the Committee agrees to it. The amendments enable us to do that.

I was slightly surprised by the approach taken by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), because he seems to have closed his mind to the extension before he has heard the Minister's explanation and given the Government an opportunity to make their case. I look forward to hearing the Minister make the case for why the powers should be extended and why more offences should be subject to detention for up to 36 hours. My support for my hon. Friend is designed to put pressure on the Minister to make a good case for that.

On the basis of the explanatory notes, I am sympathetic to the idea. They tell us, for example, that the new power would give the police the opportunity to extend detention for offences of robbery. According to the notes, robbery is not currently among the offences for which detention up to 36 hours can be authorised. I am sympathetic to that change. I am surprised by what the hon. Member

for Southwark, North and Bermondsey said on that, because my constituents and I regard robbery as a serious offence, and people want the police to have the appropriate powers to deal with that offence. I am slightly surprised by his approach because he has not given the Minister the opportunity to put the Government's case, which I would like to hear. I was a member of the Home Affairs Committee that prepared a short report on the subject. That Committee was right to ask questions, but we want to hear the Government make their case, and I shall listen carefully to what the Minister has to say. Where a good case can be made for giving powers to the police, it is important that they should be given the powers that they need.

Hilary Benn (Labour, Leeds Central)

I recognise that these are probing amendments, and I shall try to deal with the specific points that arise from them, on the assumption that we shall have the opportunity to discuss the fundamental reasons behind the clause in more detail on clause stand part.

We anticipate that the power of extended detention will be used in only a small number of cases, and I shall cite some statistics that might help the Committee. In 2001–02, 697 people were detained for longer than 24 hours and released without charge. Unfortunately, I am advised that no figures were kept on the number of people detained for longer than 24 hours and then charged, but the figure is unlikely to be large. To put that in context, in the same year, the total number of people arrested was 1.3 million. The clause will have an impact in a very small number of cases.

I take the point about robbery made by the hon. Member for Woking (Mr. Malins), but other offences would not be caught by the criteria of 10 years' imprisonment. It is seven years for theft, and five years for actual bodily harm or unlawful wounding. None of those offences is punishable by more than 10 years' imprisonment. That also includes burglary from commercial premises. I take the point made by the hon. Member for Southwark, North and Bermondsey about the public's understanding of the distinction between an arrestable offence and a serious arrestable offence, but in truth, how many members of the public understand what constitutes either? That difficulty exists regardless of the length of detention for which the clause provides.

Amendment No. 31 would limit detention without charge beyond 24 hours to offences punishable by more than 10 years' imprisonment. In essence, that would substantially defeat the clause's purpose, which is to allow for such detention in a significantly broader range of cases. ''Serious'' as defined by the law is also serious as perceived by victims, and we should not lose sight of the impact that such offences have on victims.

We should remember that detention will always depend on the circumstances of the case. Extended detention would require full justification, as currently provided for by PACE, and will continue to require the authority of an officer of at least superintendent rank. Those safeguards are necessary and important,

and we may be able to discuss them in more detail on clause stand part.

Amendment No. 15 would change the test for enabling detention without charge for up to 36 hours. The current test is whether an offence is a serious arrestable offence, but the amendment would specify offences triable only on indictment. That would have the undesirable consequence of reducing the existing scope for extended detention in relation to a number of arrestable offences that can be tried either way, which may or may not be classed as serious arrestable offences. For example, theft of £100 would be an arrestable offence whereas theft of £1 million would be a serious arrestable offence. At present, a person suspected of theft of £1 million may be kept in detention for up to 36 hours, but the amendment would prevent that.

Those would be the effects of the amendments, although they may not be what the hon. Member for Woking intended.

Humfrey Malins (Conservative, Woking)

I take the Minister's point, but under existing law, the person charged with theft of £1 million could be held in custody for an extended period of up to 36 hours. Is it not right that, under the clause, the person charged with theft of £50 could also be detained for that length of time?

Hilary Benn (Labour, Leeds Central)

Yes, but it would depend on the circumstances. The vast majority of cases will be dealt with in the 24-hour period, for which the law currently provides. Perhaps, during the stand part debate, we will have an opportunity to discuss the sort of issues that can arise, creating difficulties with the 24-hour time limit.

Less serious road traffic offences, which is the majority of them, will not be arrestable offences, and will not, therefore, qualify for extended detention. However, as my hon. Friend the Member for Nottingham, North rightly pointed out, some road traffic offences, such as causing death by dangerous driving, are extremely serious. In such cases, police investigations can be complicated and time-consuming, and there may be circumstances in which detention beyond 24 hours could be justified. That is why I would resist exempting road traffic offences from the clause.

Humfrey Malins (Conservative, Woking)

Will the Minister deal specifically with the issue of whether a breathalyser offence is an offence for which the sentence is fixed by law? There seems to be no doubt about that, but I would welcome complete clarification. I asked him to give the Committee a list of the offences for which sentences are fixed by law, because we know that those offences are covered by the clause. I also asked about cannabis.

Hilary Benn (Labour, Leeds Central)

I acknowledge the hon. Gentleman's point, but rather than mislead him in Committee, I would prefer to write to him with a definitive list. I undertake to do that, if it would be helpful.

Humfrey Malins (Conservative, Woking)

I still find myself disappointed with the Minister's response, because he has not made the case for widening the power. He has not given us specific examples of the sort of case in which it has been

necessary, but impossible, to detain someone for longer to achieve an effective result under the law. He has not persuaded us of the need to change the law to permit detention for up to 36 hours in a whole raft of cases. He is stuck with the position whereby, under the proposal, the draconian power of detention will apply to petty theft. It is all very well for him to say that it is ridiculous of me to think that such a power would be used in a case of petty theft; the point is that the power exists and he wants the police to be able to use it. I see Labour Members nodding, but they are wrong to do so, because the power should not be used in such cases.

Ian Lucas (Labour, Wrexham)

Is it not the case that the majority of offences of petty theft are committed by individuals with drug problems under the influence of drugs? The amendment would prevent the discretionary extension of the time for which such a person could be detained from 24 to 36 hours. Such a person could well be under the influence of drugs, and it would be entirely appropriate for the discretion to be exercised in such a case to make a suitable investigation possible.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes an interesting point, but he opens the debate even wider by suggesting that those under the influence of drugs when taken into the police station should routinely, if the officer in question thinks it appropriate, be detained for the extended period of up to 36 hours. When one considers that, anecdotally, it is thought that between 60 and 70 per cent. of acquisitive crime in urban areas takes place to fund a drug habit, huge numbers of people must have some drugs in their bodies when arrested. The number of those so spaced out—I am not entirely sure whether that is the right phrase—that they are good to neither man nor beast for the first 24 hours is very small, so I do not think that he need be too concerned.

The Minister has not dealt with another matter. I asked him to confirm specifically that, if clause 9 stands part of the Bill, possession of cannabis will become an arrestable offence under clause 5. My hon. Friend the Member for Hertsmere rightly drew attention to that important matter. That would make it plain to us all that the power to detain for up to 36 hours will exist for an offence for which, I understand, the police do not normally even bother to arrest.

Paul Stinchcombe (Labour, Wellingborough)

Does the hon. Gentleman believe that the possession of cannabis should be an arrestable offence?

Humfrey Malins (Conservative, Woking)

That is what is called a straight and fast ball. Yes, I think that it should be.

James Clappison (Conservative, Hertsmere)

In reflecting on the fair question that was bluntly put to my hon. Friend, would he care to reflect on the fact that possession of cannabis as the law stands is an arrestable offence? The clause will extend the period of detention for questioning someone in possession of cannabis from 24 to 36 hours, but under a later clause, cannabis will be reclassified down from a class B drug to a class C drug. Does he think that those messages are entirely consistent?

Humfrey Malins (Conservative, Woking)

My hon. Friend is right. The messages are mixed and inconsistent, and send out vastly

different signals. That is a problem that we face, but we shall come on to that under clause 9 in due course.

Hilary Benn (Labour, Leeds Central)

I apologise for not having responded to the specific point that the hon. Gentleman is dealing with. In confirming that possession of cannabis falls within the criteria for extended detention under clause 5, I want to say that the police must justify an extension of detention beyond 24 hours in all circumstances. A sense of perspective is required when thinking about the example that he has given.

Humfrey Malins (Conservative, Woking)

I understand that point only too well. Equally, the Minister will understand the Opposition's concern that we must respect the concept of someone's individual liberty, and not extend the power to detain unless it is regarded as absolutely essential. By highlighting the fact that the power has been widened to include a variety of offences not hitherto included, we have drawn the attention of the Committee, and of those outside it who read the reports of our proceedings, to our concerns about the power to detain being widened. That is a road that we should not tread other than with very persuasive arguments in its favour.

This has been a useful if brief debate, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I seek to persuade the Committee to delete the clause. When PACE was introduced, one of its purposes was to bring detention within the control of legislation. It was to enable people to know that there was a rule about the likely duration of any detention. The motivating force of the Philips Commission, which examined police powers, was to ensure that detention was for as short a period as possible. I hope that the Committee agrees with the principle that people should not be deprived of their liberty for long periods without charge. I start from the presumption that, until and unless a person has been charged with an offence, once he is within the second phase of the system—when the courts have taken control, bail may have been applied for and he may have been remanded in custody—initial periods of detention should be as short as possible.

Since PACE was introduced nearly 20 years ago, there have been reviews of what has happened in relation to the power. From the beginning, there was an assumption that longer detention would be allowed for some offences, even though that was not a recommendation of the Philips Commission. Parliament's view was that for serious offences the power should be for 36 hours, on the authority of a senior police officer—superintendent or above. That was controversial at the time. As we know, both from the explanatory notes and from debates over the years, the trigger was the phrase, ''serious arrestable offence''. I was not suggesting that all people necessarily know the definition of that phrase. However, it clearly refers to something in the top league of offences, not a minor one. People understood

that they might be held for longer for serious offences—that is a straightforward principle.

There can already be 36-hour detention for a list of offences including murder, rape, hijacking and torture, and also for second-tier offences that have led to or are likely to lead to serious harm to the security of the state or to public order; to serious interference with the investigation of an offence or with the course of justice; to death or serious injury; or to substantial gain or loss to any person. In debating the clause we must be aware of that: we do not need to change the law to allow for it.

There were no problems during the 1980s and early 1990s in relation to the powers; there was no revolt. In 1998, the Home Office undertook a survey of the outcome of arrests and detentions—I have figures from its most recent report, completed last month. Four years ago, research showed that the average time for which people were held without charge was six hours and 40 minutes. The average time in custody before charge or release was much longer in the case of serious offences, but still less than 24 hours. The average time for murder, rape and other such offences was 22 hours, but of course there was already a power allowing for 36-hour detention in such cases. For moderately serious offences the figure was just over seven hours; for less serious offences the average was just under four hours.

A breakdown of the figures was provided in relation, for example, to mentally disordered suspects—for which the average time was five and a half hours, because of the need for a doctor. The average for young people, who need someone to be called to be with them, was seven hours. Obviously, if people sought legal advice they would be in the police station for longer than if they did not. Figures are available for those cases too. The average time for people who sought legal advice was nine hours; for those who did not it was five and a half hours.

The average length of detention, taking all those categories together, was five and a quarter hours. That was when there was sufficient evidence to charge a person. The police said that, when they did not have sufficient evidence to bring a charge in the first place, but had to go looking for it—the knife, the clothes, or whatever—the average was eight and a half hours. However, in each case, except for the most serious offences, for which an extended power already existed, the average time was under 10 hours.

James Clappison (Conservative, Hertsmere)

The hon. Gentleman may be aware that robbery is a problem in my constituency, and a serious problem in many parts of London. We are told in the notes on clauses that the power will be extended with respect to robbery and that in some cases it will help the police in their investigations. Does the hon. Gentleman, on behalf of the Liberal Democrats, support the extension of the power of the police to detain people for up to 36 hours in cases of robbery?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a perfectly proper question, which I shall not forget, but I want to link it to what I

think is the reason why we are debating the proposed extension. The idea of further powers initially related not to robbery but to burglary. Two developments in the past decade were relevant. First, a study was carried out at the beginning of the 1990s on burglaries. It was argued that burglaries sometimes required people to be held for longer than the norm. The reasons listed for that included waiting for solicitors; recovery of stolen property; the requirement to allow suspects eight hours' rest overnight if they were held for a long time; difficulty in interviewing all the suspects if several were nicked at the same time; police going off shift and not returning until 24 hours later; and, quite importantly, the reasonable reluctance of the police to trigger the 36-hour option by stating that an offence was a serious offence, for fear that the court might say that it was not, and that they had abused their powers.

Secondly, in the late 1990s, the Association of Chief Police Officers came to the view that it would be helpful, for a variety of reasons, for the power to be extended so that it did not apply to ''serious'' arrestable offences, but to arrestable offences. In that case, robbery, like burglary, would be included. Thus the answer to the hon. Gentleman's question is yes; that is a reason for arguing for an extension to the 36-hour option. My answer is that I might be persuaded that robbery and burglary should be included in the list of 36-hour detention offences.

As the hon. Member for Hertsmere knows, and as I mentioned earlier, under the present provision, offences can be included in the 36-hour category if the sentence is fixed by law, if there is a minimum sentence of five years' imprisonment, or if they are in the list. I should be happier if Ministers wanted to include robbery and burglary in the list of offences for which there is a power of longer detention. That would be preferable to a sweeping general change that would encompass many other offences. Arguments in a previous parliamentary Session about jury trial raised similar issues. I think that the Conservative party, like us, strongly opposed the proposal to withdraw from the list of either-way offences the defendant's right to choose whether to go to the magistrates court, or to the Crown court for jury trial.

I never argued that the list was a piece of theology written on tablets of stone, or that it could not be reviewed. I argued that if one thought that for some cases there should be the option of a jury trial, yet for others there should not be, one should look at the list and change offences, if one thought that that was the right way to dispose of them. That is my answer to the hon. Gentleman. I am not against the idea of considering an offence for which there was evidence that there would be difficulties in dealing with it in 24 hours. If the case is made, it should be added to the list in the relevant schedule to the Police and Criminal Evidence Act 1984, which permits that offence to come into the longer detention category.

There are reasons why we should be sceptical. The Minister alluded to one reason, which is the small number of cases in which the power has been needed. The Minister gave the figure. At the last calculation—I hope that the Committee will weigh the figure

heavily—697 people were detained in the last year for more than 24 hours, out of a total of 1.25 million detentions.

The table that shows which police forces have used those powers is revealing and interesting. Avon and Somerset, Cumbria, Dorset, Durham, Humberside, Norfolk, Nottinghamshire—interestingly—Staffordshire, Dyfed-Powys and North Wales never use those powers. Before the hon. Member for Nottingham, North intervenes to suggest otherwise, the issue does not affect Nottinghamshire.

There is a group of forces that use the powers occasionally, that is, in a band of under 10 times a year. Cheshire used them three times, Derbyshire twice, Devon and Cornwall once, Gloucestershire seven times, Greater Manchester once, Kent nine times, Leicestershire three times, Lincolnshire four times, the City of London once, the Metropolitan police—the biggest force in the country, with a quarter of all police officers—seven times only, North Yorkshire eight times, Sussex once, Warwickshire seven times, the West Midlands twice, and Wiltshire three times.

There is an intermediate band of forces that used the powers between 10 and 100 times. Bedfordshire used them 24 times, Cambridgeshire 13 times, Cleveland 10 times, Essex 59 times—at the top end—and Hampshire 17 times. Hertfordshire, the county of the hon. Member for Hertsmere, used them 71 times, Lancashire 41 times, Merseyside 14 times, Northamptonshire 68 times, Northumbria 24 times, South Yorkshire 19 times, Suffolk 11 times, Surrey 13 times, Thames Valley 18 times, West Mercia 15 times and West Yorkshire 14. It would be interesting to ask Hertfordshire—the force with the highest number in that category—why it needed the power so often, when the Met police, which dealt with many more cases, did not.

Most extraordinary is that from the total figure of 697 times, one force detained people over the 24-hour limit 192 times: Gwent. The Met police only needed to do that seven times in a year, yet Gwent did it 192 times. There may be an absolutely logical explanation, but I know the county of Gwent pretty well. The new Archbishop of Canterbury was, until recently, in charge of the diocese that included the county of Gwent. It was extremely law-abiding then; it is no less law-abiding now. The rugby players are no more or less prone to disorderly behaviour on a Saturday night in Newport than they are in Cardiff, Bridgend or Swansea. Nearly a third of all those occasions arose in one police force out of the 43 in England and Wales.

Something is going wrong somewhere. The Government seek an extension of powers, but many forces have never used them. Indeed, the biggest force has used them seven times, most other forces have used them only a handful of times and, even if we exclude Gwent, only three other forces—Essex, Hertfordshire and Northamptonshire—have used the powers more than 50 times. It seems to me that a very good case needs to be made for change.

Graham Allen (Labour, Nottingham North)

The hon. Gentleman seems almost disappointed that the power has not been used more

often. I believe that it is something that we should welcome. It is an extreme power, which may be needed in certain circumstances, but the hon. Gentleman is trying to convince us that it has not been used very often. I think that we would all agree that it has not been used often. I hope that the hon. Gentleman is not suggesting that it has been used spuriously, although it may have been used differently in certain cases.

I would not want my hon. Friend the Minister to go into detail, but I am sure that there are lots of cases of great seriousness, and on rare occasions it will have been necessary, in order to secure a conviction, for someone to be detained that little bit longer. I hope that the hon. Member for Southwark, North and Bermondsey will concede that if the power is needed only rarely, and if it results in someone finally being convicted, it should be available—but used only on those rare occasions.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am surprised at the hon. Gentleman's failure to understand the issue. At the moment, the presumption is that people are entitled to their liberty. The police have the power to arrest people and deprive them of their liberty for what the Philips Commission said should be the minimum period necessary, and people accept that.

In a large number of cases, police carrying out investigations for serious offences have the power to extend that period for up to 36 hours. There are then powers to continue that detention in serious cases; the Soham case was the most recent well known example of its use. Those powers are well used, but they require someone who is not a police officer to authorise them. It requires a magistrate to allow further detention. The Home Office produces a table every month showing, in relation to those 600-odd cases, what happened and for how long people were held. The police can ask a magistrate for an additional warrant for up to 12 hours, which extends detention to 48 hours, or for 24 hours and all the way to 96 hours; it is the difference between being held for a day, or a day and a half—24 and 36 hours—and being held for two, three or four days.

From my general life experience, I would say that that is the right sort of balance. A day spent in a police cell for a serious offence is reasonable; it allows the police to do their job. For more serious offences, another half day may be necessary; but after that, there is no excuse for the police not going to the magistrate and saying that they want to carry out further investigations. My experience in the magistrates courts is that magistrates are entirely sympathetic if a good case can be made. I have never known a magistrate say no to the police; and the police have never complained to me as a Member of Parliament or as the person responsible for the Liberal Democrat home affairs brief that they have not found the magistrates co-operative when they ask for that continuing power.

As it happens, I had a pre-arranged meeting yesterday with the chief constable of Surrey. He is a senior member of ACPO and was a senior Met police officer. The meeting was about other matters, but I

asked him to look into why there was a huge difference in the number of cases. I have not had a chance since then to speak with the chief constable of Gwent police to find out exactly what is happening there. There is no obvious explanation, but it strikes me that they are way off any conventional procedure and that they cannot be doing the job properly.

David Heath (Liberal Democrat, Somerton and Frome)

I agree that the figures from Gwent need investigating, and there is a most extraordinary contrast with those at the other end of the Severn bridge. By any objective reckoning, Bristol is a major city for organised crime and other forms of crime, but Avon and Somerset police do not feel the need to use the available powers of detention. Gwent has a much lower level of crime and a much smaller force area, but it does use those powers. That anomaly needs investigating.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

My hon. Friend knows that I recently met the chief constable of Somerset and Avon, and I met the chief constable of South Wales last year. They confirmed exactly what my hon. Friend said—that the major drugs problems in south Wales cross the Bristol channel and the Severn bridge from Bristol. It is accepted that the drugs arrive in Bristol, from where they are distributed to south-west England and south Wales. The chief constable of Somerset and Avon said not a word to me about his powers being inadequate, and nor did the chief constable of South Wales, even though we talked about dealing with serious crime.

I want to make one more substantive point. Will the Minister tell us what assessment the Home Office has made of similar powers elsewhere in the world? I do not pretend that I have done research on every country, but I have studied the relevant powers in many jurisdictions in the European Union and in the old Commonwealth countries, which have similar legal systems to ours. The norm is nothing like 36 hours. In South Australia, there is a four-hour period, which a magistrate can extend to eight hours. That is not a particularly disreputable state or a disreputable country. In New South Wales, the period is four hours at the beginning, and it can be extended to a maximum of eight hours. In Queensland, it is eight hours, of which four may be used for questioning. In British Columbia, people can be held for a maximum of 24 hours before they must be brought before a judge. South Africa is the only Commonwealth country that I have been able to discover that has a 48-hour period. In the European Union, the norm is 24 hours or less. In Austria, it is 24 hours. In Sweden, it is six hours, plus another six in the case of extraordinary need.

If the general understanding in police communities in the European Union and the Commonwealth was that they could not deal with international crime using the powers that we have, I would be much more open to the Government's argument. However, that is not the view in those countries. European Union countries and countries such as Australia and Canada deal with the same sorts of issues as we do, and, on the

comparative evidence, the Government's case is not made.

We are at the beginning of our proceedings on the Bill, and this issue has not been flagged up as one of the major constitutional importance. The Committee must therefore be really, really careful that it does not simply go along with the proposal to extend the provisions on detention across the board to anything that is defined as an arrestable offence. In that case, an offence would no longer need to be serious to be caught; it would simply have to be an arrestable offence.

The police may sometimes need more time, but a superintendent can already authorise that in the case of a serious offence. The police are not without options. If one or two offences must be included in the proposed category—I am absolutely prepared to accept that that might include burglary and robbery—let us include them and let us amend the Police and Criminal Evidence Act 1984 accordingly. However, I ask colleagues on both sides of the House, and the Minister, not to sign up to a measure that would confer a general power to extend by 50 per cent. the length of time that someone—perhaps a young person with learning difficulties, or a confused, ill or elderly person—can be detained.

It might be argued that we are in a different ball game because fewer drugs were used in the past and people used to drink less, whereas nowadays virtually everyone arrested is on drugs or drink. The process could be triggered when people tested positive for alcohol or for drugs that remain in the system—cannabis, for example, though some more serious drugs do not—but we should have a specific reason for extending the power, not a general one.

I hope that both sides of the Committee will tell the Government that they have not made out an effective case. Parliament should not grant a power simply because the Association of Chief Police Officers asks for it. The power is not used generally, only exceptionally. The 659 cases are almost invariably those for which, under present law, the police are entitled to an extension in any case because they are serious offences. We should require more evidence before we change the law.

An analysis of the 659 cases, an explanation of why nearly 200 were in Gwent and an assessment of how many are not covered by the serious arrestable offence definition would be helpful. Only if it were demonstrated that these cases ranged widely in their degree of seriousness could the Government's case be justified. Unless the Minister produces the evidence—we should apply to ourselves the same rules that apply in the courts—the provisions would not pass a balance of probability test, let alone a ''beyond reasonable doubt'' test.

I ask the Committee to be strong and reject the clause, however appealing the Minister's style in presenting his case. If Labour Back Benchers are nervous about such an early rebellion on the Bill, they should not be. It is the last sitting day before the Christmas holidays and people want to see the Labour party asserting control of the agenda. Who knows,

when they see that not all Labour Members are members of the control freak tendency, dominated by Ministers and dictated to by the Home Office, but free spirits capable of judging a case on the evidence, it could even be the beginning of the rescue of Labour's downward slide in the polls.

Graham Allen (Labour, Nottingham North)

I have to tell the hon. Gentleman that there will be a very strong rebellion, but it will be against the logic of his arguments and it is likely to occur several times daily in Committee. His own argument contains the seeds of the answer. He contends that unless we are going to use it against millions of people, the power to lock people up for an extra 12 hours is unsustainable. However, he himself argued that the current power is barely used and he singularly failed to respond to my question and provide any evidence that where the power has been used—and it has been used only sparingly—it has been abused. He was unable to cite a single case, so we should assume that the police have indeed used the power sparingly and only in extreme cases.

I hope that the Minister will confirm that the additional power is likely to be used to no greater extent than the current one. Given that the offences are lesser ones, it will probably be used even less frequently. The police will use the power only when it is needed. If colleagues have any evidence of abuse, I hope that they will bring it to the Committee's attention. No one has done so. When the police believe that it is essential, I suspect that the majority of law-abiding people would support them in their minimal use of the powers.

David Kidney (Labour, Stafford)

To assist my hon. Friend further, it is not merely a matter of appealing to us to trust the police. I understand that the police are under a legal duty when they review a detention to confirm that the police investigation has been carried out diligently, and that further detention is necessary to secure evidence by further questioning or to find property.

Graham Allen (Labour, Nottingham North)

My hon. Friend is right, and I am sure that the Minister will confirm that.

I will refer briefly again to the two points that I made earlier, which sought to ensure that the Minister would put on record that this power will not be used extensively, and that we have considered the matter carefully. It is an extension of powers and therefore onerous. I hope that he will be able to reassure us on those points.

I ''flew the kite'' of requiring the authority of a judge for someone to be detained for longer than 24 hours. I hope that the Minister will be able to allay hon. Members' genuine fears. The extension of powers will be welcome if it is required, justified and tested, and if there are sanctions for failing that test. If the extension is applied to only 50 people next year, requiring them to be held for a further 12 hours, and a significant number of them are then convicted of offences, people will say that the additional power is helpful, providing the safeguards are in place.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendment No. 72, which the hon. Gentleman chose not to move, but to which he has just

alluded, would have provided that this power be used subject to the approval of a judge, court or magistrate.

The power already exists to apply to a magistrate. I would be happy to sign up to a provision that said that the extended powers would be given subject to application to a magistrate, because that would give greater protection than at present.

Graham Allen (Labour, Nottingham North)

I raised the issue with the Minister so that he could reassure hon. Members, including the hon. Gentleman, that application to a magistrate will not be necessary. However, if he fails to give that reassurance, we may be in the glorious position that he outlined at the end of his speech.

Humfrey Malins (Conservative, Woking)

This has been an interesting debate. There are different opinions as to the merits of the clause, and I shall mention two that are at opposite ends of the scale.

The Law Society opposes the clause. I will not set out its arguments, because they have been rehearsed to some extent in the debate. The Metropolitan police service, in its submission, is strongly in favour of the clause, because it will broaden the scope for authorising extensions of up to 36 hours. It says that that will facilitate the effective investigation of more complex offences.

One of our difficulties in Committee is that we do not have before us the sort of first-hand evidence that we would like to hear from those who have to apply the provisions about what the clause would mean to them, and whether it is a good idea. That is why I have always been in favour of a system in which a Committee could be part Select Committee and part Standing Committee, or in which a Standing Committee could take evidence.

I referred for guidance to the Select Committee on Home Affairs, which was able, through questions and answers and the evidence that it heard, to examine many aspects of the Bill carefully, albeit somewhat hurriedly. Members of this Committee will know that the Home Affairs Committee had serious reservations about the clause. That Committee was not dominated by any Opposition party—quite the reverse. Of about 11 members, two thirds were from the governing party, yet they produced a unanimous report. There was not a single vote from any Labour Member on that Committee against the proposition being advanced.

The Committee looked carefully at the clause in relation to detention time limits. It called evidence and practitioners appeared before it. I was not present then, although I spent a long time on the Home Affairs Committee, but undoubtedly there were informal internal discussions. The proposal was considered in depth but the Committee was not persuaded. There are many on the Government Benches today who, having heard the arguments, are not yet persuaded of the need to extend the power so widely.

The Select Committee concluded:

''We do not think that the Home Office has made out a convincing case for extending the detention time limit to 36 hours for non-serious arrestable offences. In our view there are alternative—

and more appropriate—measures in the Bill . . . which will help to alleviate any problems with the existing time constraints. For these reasons we recommend that clause 5 be deleted from the Bill.''

A Labour-dominated Home Affairs Committee said that we should delete the clause. Does not that mean that many on the Government Benches have serious reservations about it? The precedent of a free vote, which was so helpfully established—

Hilary Benn (Labour, Leeds Central)

On a matter of grammar.

Humfrey Malins (Conservative, Woking)

Yes, but some say on a matter of principle, too. My party's Whip is often in favour of free votes. I am sure that many Labour Members have their doubts about the proposal.

I understand what the Government are trying to do. I understand that they say the power will be used sparingly and that it is necessary in some cases, perhaps when there is a complexity issue. The hon. Member for Wrexham (Ian Lucas) made an interesting point about someone turning up at a police station under the influence of drugs and not being capable of being interviewed, which could be relevant. I understand the thrust of the argument that in robberies and other cases the police would like the power to extend the time limit, but the Minister has not made the case sufficiently well for us wholeheartedly to support it. We do not do so, because we still have some concerns about petty theft and the possession of cannabis, for example, falling within the category of the arrestable offence as set out in the clause.

We give two extreme examples to illustrate the Government's difficulty. They could consider the matter again later and perhaps introduce a definition.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the hon. Gentleman accept that the fact that the extended power is used exceptionally is not an argument to allow it to be permitted as a matter of course? The majority of people who are held in police stations do not complain about their treatment. It is only ever in the minority of cases where injustice is done and something goes wrong. The argument for a general extension is weak.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is absolutely right. It is no good saying, on the one hand, ''We want a very general power, which covers so many things and so many people,'' and on the other, almost as an excuse, saying, ''Take it from us, we will hardly ever use it.'' If the power is on the statute book, it can be used much more widely and people will say, ''There it is, in law. We are going to use it a lot.''

Paul Stinchcombe (Labour, Wellingborough)

It is right, is it not, that as a matter of principle, we should legislate not on the assumption that the powers that we give will be abused but on the assumption that they will be used properly?

Humfrey Malins (Conservative, Woking)

Yes, but it is equally right that we ask whether there should be extended powers of detention in relation to an offence of petty theft, as that is what the statute permits. I have still not had an answer on that from the Minister or any Labour Member. It is no good to say, ''Of course we'd never use it in such a situation,'' because the Minister wants that provision to be in the Bill.

There is some attraction in extending the classification of offences or the number of offences for which an extended power can be used, and the Minister may return to that in due course on Report. If there is a vote on whether the clause stand part of the Bill, the Conservatives will not vote against it. He has listened to the arguments and realised some of the difficulties. There may well be a chance on Report to use a wording that cures the mischief that troubles him but does not so interfere with the principles of liberty that are important to all of us. That is our position. I look forward to hearing from him.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to pick up the point made by the hon. Member for Wellingborough. Does the hon. Member for Woking accept that to argue about whether people abuse powers is a weak argument for an extension of powers? Ministers do not always abuse powers, but sometimes they do. Surely it always has to be the case that powers to the state have to be justified. We should not work on the basis that powers should be given unless there is a really good case for doing so.

Humfrey Malins (Conservative, Woking)

Yes, I take the point. That is an extension of what the hon. Gentleman said earlier. It is not satisfactory to say, ''Give me a huge power, but be assured I'll never use it to anyone's detriment,'' because one can speak only for oneself and not for the future. That would be an unhappy principle.

It is the unhappy wording of the clause rather than the underlying thrust that troubles me a little. For that reason, I hope that the Minister will take on board some of the concerns expressed and come back to me with written confirmation on some of them, such as the sentence fixed by law, so that we can be absolutely clear on them. Also, I hope that on Report he can take on board the criticisms made by the Select Committee. It would be helpful if he could deal bit by bit with the objections of the many Government Members on that Committee who felt such uncertainty about the clause.

Hilary Benn (Labour, Leeds Central)

We have had an extremely interesting debate, including the references to free votes and free spirits made by the hon. Member for Southwark, North and Bermondsey. Perhaps that is an invitation to a Christmas drink when we finish our sitting.

I want to deal with cannabis possession, to which the hon. Member for Woking referred. On reflection, the situation that he envisaged could not arise, as one has only to read section 42(1) of PACE to understand. He argues that someone could be detained for an extended period beyond the 24 hours simply for possessing cannabis, but that subsection states that certain grounds have to be met to justify continued detention. Section 42(1)(a) contains the condition that

''the detention of that person without charge is necessary to secure or preserve evidence''.

In the case of cannabis possession, one either has the evidence, because the person was arrested with the cannabis on them, or one does not. I cannot conceive of how the hypothetical suggestion that the hon. Gentleman and the hon. Member for Hertsmere made could be covered by the new power.

John Mann (Labour, Bassetlaw)

I am here to confuse the issue, but I hope that I do not do so too badly. I would like to hear the Minister's comments on a theoretical

example in which the possession of cannabis could be covered.

By the nature of drug dealing, dealers do not tend to keep drugs in their house. That is one reason why convictions are difficult. My example is about someone arrested for possession but who is known to be a drug dealer. The nature of dealing in my community is that drugs may be about to come from A to B and immediately be distributed to a wide range of people. Is that the sort of situation in which the police force in my area might contemplate using that ancillary power?

Hilary Benn (Labour, Leeds Central)

Indeed, but drug dealing is very different from the possession of cannabis. I was trying to respond to the argument that the new power of extended detention could apply simply and solely to possession of cannabis. I hope that I have shown that that is not the case, but my hon. Friend would be right if the question of dealing were to arise.

James Clappison (Conservative, Hertsmere)

Surely, the hon. Member for Bassetlaw (John Mann) is making a good point. In the case that he cited, the only power that the police will have when they arrest someone for the possession of cannabis will be the power to hold him for 24 hours for the possession of that cannabis, even though they suspect him to be a drug dealer. If the power is extended, they will have an additional 12 hours during which to carry out further investigations in which they may find much more substantial quantities secreted away, which will enable them to charge the person with possession with intention to supply.

Hilary Benn (Labour, Leeds Central)

I thought that I had made it clear that I accepted that argument. The only point that I am making is that if the only offence that is being investigated is possession, the new provision could not be used to justify extended detention. I hope that I have reassured the Committee on that point. The matter arises from the PACE review, to which hon. Members did not refer. Members of the review panel considered it in some detail, and made that recommendation. Hon. Members who examined the detail of the review considered other possibilities for trying to deal with any problems that may arise, but concluded that the clause would be the best way.

I am sure that we can provide the hon. Member for Southwark, North and Bermondsey with the information on international comparisons to which he referred. However, I must pick him up on a phrase that he used. He said that in other countries the norm is nothing like 36 hours. The norm is nothing like 36 hours in the United Kingdom, either. The statistical evidence, which he himself drew to the Committee's attention, shows that the average length of detention was about five and a quarter hours—I believe that that is what he said. Even for serious cases, the average is less than 24 hours. There is no evidence that the current powers are leading to many people being detained beyond the current 24-hour period.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

To avoid a misunderstanding, I was arguing that there was no international case for the maximum power to be 36 hours. That is not the norm. All the examples that I have been able to find, apart from that of South Africa, are 24 hours or less. Some

countries have a detention period of as little as six hours.

Hilary Benn (Labour, Leeds Central)

I accept the hon. Gentleman's point. However, the evidence from the UK shows that the power is used sparingly. He made a good case for the clause, and I need add little to the points that he made, as we are talking about difficulties that can arise.

I draw hon. Members' attention to the Home Affairs Committee report. It concluded that the clause was unnecessary, but stated:

''We accept that the current time limit may cause difficulties in some non-serious cases.''

I agree with every word of that sentence. The Government drafted the clause because they believe that the current time limit may cause difficulties in some non-serious cases. As the hon. Gentleman said, there are issues such as fitness for interview in cases with multiple defendants, delays in connection with the provision of legal advice, and the time taken to obtain translation support or the services of an appropriate adult. We are talking about a very small number of cases in which the difficulties that the practitioners—the people whose job it is to investigate possible crimes—drew to our attention create further difficulty in securing the evidence, which is the whole purpose of the process.

The hon. Members for Southwark, North and Bermondsey and for Woking accept the principle of an extension, but are concerned about the scope. They talked about a general power. This is not a general power. It is constrained by section 42(1) of PACE, which sets out clearly the test that must be applied by the superintendent in authorising continued detention, currently for serious arrestable offences and under this clause for arrestable offences. That is the safeguard and protection. This is not a general power. It is a power that can be used only in certain circumstances when those tests are met. As the evidence from the existing use of that power in relation to serious arrestable offences demonstrates only too clearly, we are talking about a small proportion of cases.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Can the Minister give the Committee the list of offences that will be included that are not now included?

Hilary Benn (Labour, Leeds Central)

I would be happy to write to the hon. Gentleman to give him that complete list and I will send a copy to the hon. Member for Woking.

Graham Allen (Labour, Nottingham North)

Would my hon. Friend add as a postscript to his letter to the hon. Member for Southwark, North and Bermondsey the tests that the police would have to go through to use that power? It is not a general power. It is not to be used at random. There are many safeguards for the individual.

Hilary Benn (Labour, Leeds Central)

I will gladly do so, although it is readily available in section 42(1) of PACE.

May I say to my hon. Friend the Member for Nottingham, North that we have thought very carefully about the proposals? In relation to the judge, we felt that the amendment would not be necessary simply because police officers are perfectly capable of determining what is or is not an arrestable

offence. We should remember, as we move on from the necessary close and careful examination of the text and the detail, why we are having this discussion. In the end it is about enabling the police on our behalf to gather evidence in order to bring someone whom they suspect of committing a crime to account for that crime and at least to put the evidence before a court.

Humfrey Malins (Conservative, Woking)

Does the Minister think it surprising that seven of his hon. Friends, given a free vote on the Select Committee, took a view quite contrary to his own? Does he think that that view is widespread among his colleagues on this Committee? If not, is it not rather a coincidence that uniquely the seven on the Select Committee, who had the freedom to express their own view, expressed it one way?

Hilary Benn (Labour, Leeds Central)

I am never surprised by my colleagues or by any hon. Members. We have had a good argument about the clause. We cannot test whether all the members of the Select Committee would be persuaded by my argument because it is a hypothesis. In the end, this is about trying to bring people to account for crimes that have been committed and in almost every case the impact of those crimes on individuals is serious. That is why we want to make the change.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister is respected for his ministerial career so far. In this case he has not made the case at all. First, he has simply repeated the argument that was put to and rejected by the Selected Committee. He has repeated it without any back-up evidence. He has not addressed the fact that the proposal fundamentally changes the current limit, which is 24 hours except in serious cases, to 36 hours for all arrestable offences. Once the law is changed to refer to arrestable offence, rather than serious arrestable offence, all offences will trigger the longer period.

Secondly, the Minister has not dealt with the argument about the specific type of offence that has caused a difficulty that could be added to the list of offences that justify the 36-hour limit. He has not presented evidence from the police to show the types of case where they have had difficulties. Had the police given him evidence showing the breakdown of offences and the difficulties, and had he given it to the Committee, that would have been more persuasive.

We have heard for how few offences the current power relating to the extended period has been used. However, we have had no evidence as to what those offences were, so we do not even know where, currently, the police have felt it necessary to lock into the 36-hour option. One cannot argue for a 50 per cent. increase in the powers of the police to take away the liberty of the citizen without pretty strong evidence in support. Having rejected the unanimous view of the Select Committee despite the arguments and the evidence, one cannot come to the Committee and present no new argument or evidence for the reduction in the liberty of the citizen.

I ask the Minister and other members of the Committee to reflect on the fact that we should

never legislate on the basis of a general presumption that a power might be more convenient because in some cases it might be available. A good case is needed, backed up by good evidence to show that the measure would make a materially beneficial difference and that all the other options for changing the law are not possible.

The only argument for change would be for changing the position on certain offences such as burglary or robbery if that were a concern of the police. With no such case, the Minister cannot be confident that he can persuade us to support him. Until such an argument is advanced, the Government do not deserve the support of hon. Members this morning. [Interruption.]

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 12, Noes 3.

Eric Illsley (Labour, Barnsley Central)

Just before we leave the subject of arrestable offences, I remind hon. Members to switch off, or turn to silent mode, telephones and pagers.

John Mann (Labour, Bassetlaw)

Thirty-six hours' detention.

Eric Illsley (Labour, Barnsley Central)

Any more and it will be a hanging offence.Clause 6 Property of detained persons

Clause 6 - Property of detained persons

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 32, in

clause 6, page 4, line 36, leave out from 'is' to end and insert 'inserted after ''recorded'', ''if requested by the person''.'.

Eric Illsley (Labour, Barnsley Central)

With this we may discuss the following amendments: No. 17, in

clause 6, page 4, line 36, at end insert 'and inserted instead ''and shall offer the detained person an opportunity to make a written record of''.'.

No. 33, in

clause 6, page 4, line 37, at beginning insert 'In'.

No. 36, in

clause 6, page 4, line 37, at beginning insert 'After'.

No. 34, in

clause 6, page 4, line 38, leave out 'is omitted' and insert 'there is inserted after the first ''record'' the words ''if made''.'.

No. 18, in

clause 6, page 4, line 38, leave out 'is omitted' and insert 'there is inserted—

''(3) A written record shall be kept of any money in the possession of the detained person''.'.

No. 74, in

clause 6, page 4, line 38, at end add—

'(3) It shall be the duty of the police to keep all belongings of a detained person in a clear, transparent container in a secure place and account to him for them on their return.'.

Humfrey Malins (Conservative, Woking)

This important clause is of some concern to practitioners of law in the legal profession and the police. It removes the requirement on the custody officer under PACE to

''record or cause to be recorded''

everything that a detained person has with him or her on entering custody. The custody officer must still find out what the person has with him, but any recording is entirely at the custody officer's discretion. For reasons that I shall develop, I have concerns about removing that duty from the custody officer, because it is in the interest of the police and, arguably, of defendants that the law should remain as it is. My amendments would provide that a defendant could request a record to be kept, and that if he did, it should be kept. Also, he should be offered that option on every relevant occasion. Amendment No. 18 would provide, in terms, that even if the clause was not amended in those ways, and a full written record was not required, an exception should be made in the case of cash in the possession of the defendant.

Currently, the police must make a record of everything that the defendant has with him that is of value or that may be used by him to harm himself. All such items are inevitably removed from a defendant. Interestingly, practice varies from police station to police station and county to county, and it is sometimes left to the custody officer's discretion to decide what items should be removed, and the reasons to be given. For example, a Rolex watch is an item of value and would come off and go into the custody record. A pocket knife would be taken for the reason that it could be used to harm the defendant or another.

I recently asked a very senior police officer about earrings, which a large number of young men wear. Oddly enough, the response was that at the station in question the practice was to leave them with the defendant. The conversation provoked the officer to say that, interestingly, a comb is sometimes left with a defendant and sometimes taken and recorded on a separate sheet. Not every police station takes the same approach, but the principle is that a record is kept of everything that the defendant has with him. My amendments are needed so that the provision removing the requirement to keep a record is watered down sufficiently to preserve the protection of both police and defendant.

There are obvious reasons why belts and shoelaces would be taken from a defendant. What happens to a wallet containing cards and money? You may know, Mr. Illsley, that custody suites are videoed round the clock. The police make a terribly good effort to ensure that all that they do is caught on video as well as recording it on paper. In dealing with a wallet, they would mention that there was a wallet containing £50 cash and a Visa card. Then they would note on the written record ''sundry other cards''. A Boots Advantage card is not an item of value, or one with

which one would damage oneself. They might also make a note of ''sundry other photographs''. Those are the categories: valuable items, possibly damaging items, and items sometimes generically included. A full and proper record is kept.

Is it a burden? The answer is yes and no. Until recently, I did not know that the police do not regard computerised records of items taken from a defendant as a burden. It is relatively straightforward, but not every county is computerised, and some forces still take the record by hand. Has the Minister asked chief constables whether their forces are computerised to the extent that the written records of defendants' items kept at a police station are on a computer, or still done by hand? Surrey police force became computerised for that purpose in 1993.

My experience of record keeping of items removed from a defendant and kept at a police station is gleaned from my contact with Surrey police force. I spoke to several, though not many, officers in the area who believed that the computerised records were not a burden now, but had been in the past when it was all done by hand. That is not surprising, but the police face serious burdens in making other records, to which I shall return in a moment.

Why, then, does my amendment refer to keeping a separate record of the money? The answer is plain: without a written record of the money that a defendant has on his or her person, the way is open for allegations of impropriety against the police later.

It is interesting to note the observations of the Metropolitan police force, which broadly supported the proposal

''in so far as it will reduce unnecessary bureaucracy'',

but its submission also referred to

''concerns that implementing this proposal may, on occasion, leave police more open to allegations of impropriety.''

That is the view of the Metropolitan police and it is clearly in the interests of the police as well as the defendant to keep a detailed record of the money, but the clause removes the requirement to record

''everything which a detained person has with him''.

Hilary Benn (Labour, Leeds Central)

It may help the hon. Gentleman if I explain that if the clause is passed, the guidance will make it clear that the money and articles of significant value should continue to be recorded.

Humfrey Malins (Conservative, Woking)

I am grateful to the Minister, but once again this is a bolt from the blue. I know of no guidance: is it in PACE, or another addition to PACE, another code or what? The Minister referred to items of ''significant value'', but what is that? What is the value of my Omega watch, which my dear father gave me? I took it in for a service the other day, expecting it to be worth about £400 in today's money, but was told that it was worth about £20. My father is still alive and well, and I went and told him. The Minister says that, in accordance with the guidance, items of significant value will have to be recorded, but that is no answer, as my hon. Friends would agree.

I turn to the second reason that it is vital that money is kept. The hon. Member for Wellingborough is a barrister of distinction, who has appeared for defendants in court. Undoubtedly he, like others at the Bar and in the legal profession, has appeared on an overnight case. Let us imagine that a defendant is arrested at 9 o'clock at night for being drunk and disorderly. The hon. Gentleman will probably not have taken a small case like that except in the very early days of his career, which subsequently blossomed, but I have to take such cases from the judicial end, at Bow Street, Camberwell Green or Greenwich.

It is 10 o'clock in the morning and the defendant enters. The documents are with the jailer. The charge is drunk and disorderly. When asked what he pleads, he replies, ''guilty''. He is told to stand up. When the jailer is asked how much money the defendant had on him, he replies, ''He had £17.50 on him, your honour.'' The defendant is fined £15, payable forthwith, and told to go away. End of story.

That is a very helpful tool for the judiciary in overnight cases—which occur all around London. In the need to get a fine paid, being able to know how much money is in the defendant's pocket is very useful. Just imagine the chief district judge at Bow Street asking how much money a defendant has on him and being told, ''I can't tell you, your honour.'' When the judge asks, ''Why not?'', the jailer replies, ''Because under this clause I do not have to keep a record of it, your honour. Guidance was sent in a letter asking me to do that, but I did not choose to observe it.'' The courts would not like that at all. I provide that illustration to make the point that recording money, and having the requirement to do so in the statute, is an important factor for the courts.

The necessity to enshrine the requirement in statute has been questioned. The Minister might say that it is bureaucracy, and that it is causing the police a lot of problems—causing them to waste much time that would be better spend investigating serious crime. We know that serious crime is the great scourge of this country, and we are told that removing this obligation on the police will free them up to do the work that they are meant to be doing. Any party, such as mine, that queries that suggestion might be categorised as being anti-law and order.

Graham Allen (Labour, Nottingham North)

Before the hon. Gentleman continues, he should be aware that we have the negatives of his last election campaign, picturing him in front of Conservative posters that said, ''We must relieve the police of onerous bureaucracy so they can get out there on the streets and do their job''. I just put that on the record before he makes any incriminating statements.

Humfrey Malins (Conservative, Woking)

I do not have to incriminate myself. I am not under caution, so nothing that I say—you will correct me if I am wrong, Mr. Illsley—can subsequently be used against me. [Hon. Members: ''But it will.''] As for the last election, I have no idea where I was photographed, or under what posters.

That has begun to worry me somewhat, but I shall ponder that later.

The hon. Gentleman takes a robust view on law and order and frequently produces very cogent arguments, but the matter under discussion is by no means the worst of the bureaucratic burdens on the police, in terms of list keeping. According to many police to whom I have spoken, the real burden falls when they search a property. That burden is immense and serious. How will the Minister change that?

Under today's rules, when the police seize property from someone's house, there is no computerised way of keeping a record of it. They have to write out, longhand, in an exhibit book, an entire note of everything seized, but that is not the end of matter. The police officer must then transfer everything from the book to a seized property form. He or she writes everything down once in longhand, disappears to get a seized property form and then laboriously transfers every single item on to it in writing. One might think that that would be the end of the matter, but ''Oh, no it isn't!'' There is more to come—there is a third problem, and I ask the Minister to explain how he will solve it. The problem is that the entire lot has to be loaded manually into a computer. That makes three steps.

The Minister has clearly spoken to police officers, and he would not have produced such a clause had he not known of the many problems that they face as regards form filling. If we asked police officers what their worst problem with form filling was, 99 out of 100 would say, ''This frightful problem with how we have to record house searches. If you just got rid of that, life would be much easier.''

The Minister may say that the purpose of the clause is to remove bureaucracy, to make police officers' lives easier and to free them up to fight crime more readily, but I would suggest that he was wrong on two counts. First, the police do not agree, particularly where the service has been computerised. Secondly, a case could be made in relation to property seized from a house. The explanation provided by his advisers as to how the Bill would overcome such problems suggests that more police time could be freed up in that regard than officers could begin to imagine.

I tabled the amendments to make the following points to the Minister. First, recording amounts of money is not a burden. Secondly, it has worked well so far. Thirdly, it is in the interests of the defendant. Fourthly, it is very much in the interests of the police to record sums so that there are no allegations of impropriety. Fifthly, it is in the interests of the courts. Those are compelling arguments for not changing the law or for changing it only minimally. As regards the improprieties involved, my words are backed by the Metropolitan police, and the arguments are compelling.

I conclude with a question. What evidence is there to suggest that we must change existing practice?

Graham Allen (Labour, Nottingham North)

I look forward to the amendments tabled by the hon. Member for Woking attacking the other problems of bureaucracy that he identified, and I am sure that he will get a sympathetic hearing from the

Minister. Again, however, we are talking about a balance between ensuring that the police can do their job and having the necessary safeguards to deal with the one or two police officers, out of a police force of many thousands, who might, for some reason, abuse their position.

I simply ask my hon. Friend the Minister to put on the record the fact that the provisions will help police officers to do their jobs. We want reasonable safeguards, which I am sure he will tell us about. That is the only reason why I tabled amendment No. 74. It would ensure that a transparent container was put in a secure place and sealed so that everyone was content that security had been properly handled. Nothing more needs to be said, and I hope that he can give those assurances.

David Heath (Liberal Democrat, Somerton and Frome)

We had an illuminating passage on the sentencing policy of the of Bow Street magistrates court. The message is clearly that if people intend to be drunk and disorderly in that area, they should not carry ready cash with them, so that they get a lighter sentence.

Humfrey Malins (Conservative, Woking)

No, the fine is £25 or one day's imprisonment in lieu, to be served immediately.

David Heath (Liberal Democrat, Somerton and Frome)

In that case, we must moderate our behaviour accordingly. There is a serious point, however, which has been partly made by the hon. Gentleman. I do not entirely buy the amendments, which are unnecessarily opaque and may not achieve his objective. I see merit in amendment No. 18 and in the point that was made by the hon. Member for Nottingham, North.

I do not have enormous concern about the arrested person and their property in such circumstances. Normal safeguards are sufficient, although it is always as well to ensure that there is no scope for impropriety on the part of the police. My principal concern, which goes back to my experience in a police authority over several years, is the effect on the police officer involved and the risk that he runs of being accused of impropriety. I have seen far too many disciplinary cases brought by accused people against police officers on the basis of complaints that are trivial, unnecessary, inappropriate or malicious. Allegations about police officers' behaviour have to be investigated, even if they are eventually not substantiated. Not to have a proper record of property that is on the arrested person at the time when they are taken into custody is to invite a complaint against the police on those grounds.

I wholeheartedly agree with the wish to avoid unnecessary bureaucracy for the police, but the bureaucracy that is involved in investigating a complaint is massively more than that which is involved in making a record of the property that is in the possession of the custody sergeant. It is a complete reversal of logic to say that the measure is a good way of reducing bureaucracy. It will lead to more litigation and the undertaking of more disciplinary complaints procedures.

On some occasions, property has evidential value. In such cases, it would be too easy for the defendant simply to say, ''No, that article was never in my possession and you cannot prove that it was, even if the police are using it as evidence.'' That is cause for serious concern.

We must consider better and less bureaucratic ways of recording property. Perhaps it would be appropriate to ensure that all property is cached in an appropriate receptacle that is sealed at the time. Perhaps video recording could be used to produce a ''Generation Game''-style computer line-up that itemises at the time each article in the presence of the arrested person. As the hon. Member for Nottingham, North said, there may be other ways of using computers to ensure that records are kept. However it is done, records must be kept, especially of cash, but of any article that is taken by the officer.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is developing his argument most cogently and making some powerful points. On his last point about the essential need for a record, does he agree that one possible way of avoiding paperwork might be the completion of a tape, dictated by the officer in the presence of the defendant, which runs through his property, after which he agrees that it is his property? That would be much quicker than the laborious method of writing for which the Government are arguing.

David Heath (Liberal Democrat, Somerton and Frome)

Precisely so. I agree that there must be better ways of doing it than expecting anyone to write out a list in longhand, which is time-consuming. There are other ways of doing it and the Government have not yet sufficiently applied their mind to that.

I agree with the hon. Gentleman that it is astonishing that the clause will omit the requirement but the guidance notes will say that it must be done. What on earth is the point of that? If the idea is to reduce bureaucracy, the Government will not achieve it if the guidance notes reintroduce the proposal as a non-statutory requirement. That is what the Minister led us to believe a few moments ago. He must now explain exactly what he means, although he has only five minutes to do so.

Hilary Benn (Labour, Leeds Central)

We will resist all the amendments in the group.

I was surprised, given the hon. Member for Woking's extensive call on the views of the Home Affairs Committee earlier, that he omitted, no doubt unintentionally, to refer to its view on this matter. It said:

''We welcome the provisions for . . . repeal of the requirement to record detailed particulars of a detained person's property . . . These appear to us to be sensible measures to reduce unnecessary police bureaucracy, without impinging on the rights of the accused''.

That is a very strong argument for supporting the clause.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am willing to make the hon. Gentleman a pre-Christmas offer. If he will declare that he is willing to delete from the Bill all the bits about which the Home Affairs Committee has expressed concern, we might do a deal not to oppose the rest.

Hilary Benn (Labour, Leeds Central)

The offer is tempting, but I shall resist it. We will all continue with our existing practice of drawing on sources of support that happen to back up our argument at the time. On this issue, if not on all others, the Home Affairs Committee is entirely right.

I do not quite understand where the hon. Member for Woking is coming from because I reflect on the powerful words of the right hon. Member for West Dorset (Mr. Letwin) on Second Reading, who talked about the queue in front of the custody sergeant. The clause is all about trying to reduce that queue. In essence, it will remove from police the current requirement to record everything in every case and give them discretion about what they choose to record in future. It arises out of the PACE review, which states:

''The police identify the requirement to list a detained person's property in full as time-consuming and not always necessary.''

The clause will give them discretion about how detailed a record they keep in particular cases, which will be a matter for individual judgment. It offers scope for alternative approaches to property management, in which regard my hon. Friend the Member for Nottingham, North made the helpful suggestion of sealable property bags.

There might be other ways in which the police choose to record matters. The hon. Member for Woking referred to a tape record. I will need to double check that that would be permissible; it seems to be a sensible suggestion, and the tape could form part of the custody record.

The clause tries to offer the police flexibility in recording, which is in part the answer to the hon. Member for Somerton and Frome. Saying that the guidance would state that the recording of money and other items of significant value should continue to be done is not undoing the purpose of the clause, but saying that the police do not have to list a packet of Polo mints and three paper clips. It depends on the detail that people go into—

Humfrey Malins (Conservative, Woking)

Would you do it now?

Hilary Benn (Labour, Leeds Central)

It depends on how the current arrangements are interpreted. This is a sensible measure, and we can trust the police to use it in a sensible way. They will have more incentive than anyone else to ensure that they record things that may subsequently be an issue if the charge is preferred and the case comes to court. It is a good step to take and I commend it to the Committee.

Humfrey Malins (Conservative, Woking)

I am marginally confused about what time we finish today.

Eric Illsley (Labour, Barnsley Central)

In one minute's time.

Humfrey Malins (Conservative, Woking)

That is very helpful. It means that I must take a decision that I did not think I would have to take about whether to push the amendments to a Division. The Minister has been most helpful—

Hilary Benn (Labour, Leeds Central)

It is Christmas.

Humfrey Malins (Conservative, Woking)

The Minister is right, it is Christmas. On the basis that he will think about the matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 69, That the clause stand part of the Bill.

Question agreed to.

Clause 6 ordered to stand part of the Bill.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till Tuesday 7 January at half-past Four o'clock.