Clause 291 - Code of Practice

Proceeds of Crime Bill – in a Public Bill Committee am 6:30 pm ar 8 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 6:30, 8 Ionawr 2002

I beg to move amendment No. 453, in page 169, line 26, leave out subsection (6).

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

With this it will be convenient to take amendment No. 454, in clause 292, page 170, line 4, leave out subsection (6).

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

In subsection (6) of clause 291, which deals with the code of practice, there is a rather curious reference that also features in the Scottish clause. It says:

''A failure by a customs officer or constable to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.''

That is followed by subsection (7), which states:

''The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.''

I find the inclusion of subsection (6) mystifying. Clearly, we do not intend to create a specific offence of failure to comply with the code. If we were to do that, we would have to pass specific legislation. I ask myself why subsection (6) is included. As subsection (7) is also present, it is apparent that a person could bring a civil action for accepted and existing torts, and include within that a claim, based on evidence, of failure to comply with the code. Similarly, it might be possible to bring a criminal charge against a customs officer or constable that would include, as part of the evidence, a failure to comply with the code.

What is subsection (6) trying to achieve? I need to be persuaded that its inclusion will not provide some form of statutory protection. If that is not the reason

for it, I do not know why it is included. If it were removed, no damage would be done, and I find its presence odd.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am not minded to support the amendment, but I share many of the concerns of the hon. Member for Beaconsfield.

I wonder whether the Government have got the drafting of the clause the wrong way round. It should, perhaps, have stated something along the following lines:

''Where a failure by a constable to comply with a provision of the code is wilful or malicious, he will be subject to criminal or civil proceedings.''

I am making a point about tone; as the clause is currently drafted, the liability to criminal or civil proceedings is implied, and I would prefer stronger terms to be employed.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The provision in subsection (6) of both clause 291 and clause 292 is a standard provision in legislation of this type. It mirrors section 67(10) of the Police and Criminal Evidence Act 1984—which is also mirrored in relevant provisions of the Terrorism Act 2000.

The Government believe that establishing codes of practice for the law enforcement agencies provides an important safeguard for people who come into contact with those agencies. The assumption is that those covered by a code of practice will be trained in its provisions, and will abide by its terms. That is the clear expectation.

It is, therefore, common provision that codes of practice are admissible in evidence in criminal and civil proceedings, and can be taken into account. Failure to abide by a provision in the code can therefore prejudice a case brought by the prosecuting authorities. Failure to comply with a provision of the code might also,.depending on the circumstances, render an officer liable to internal disciplinary proceedings.

We do not, however, believe that customs officers or constables should be liable to criminal or civil proceedings solely because they have not complied with a provision of a code of practice. In some cases, such a failure may constitute part of a wider pattern of behaviour that involves criminal or civil liability, but that need not be the case.

As I mentioned at the outset, removing subsection (6) would not, of itself, render any officer liable to criminal or civil proceedings, in the absence of specific provision to that effect. However, given the obstacles and difficulties that face our law enforcement officers, we believe that it is important to signal to them that there is no question of such a liability. Given that provision to that effect is made in other, similar, circumstances, if we were to remove it, that could be taken to suggest that the position is different in this instance.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

As it currently stands, the clause reads that the failure

''does not of itself make him liable to criminal or civil proceedings.''

I infer from that that there are circumstances when a customs officer or constable can be liable, particularly to criminal proceedings. What would be the crime?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 6:45, 8 Ionawr 2002

As I said to the hon. Gentleman, the fact that the officer failed to comply with the code could be taken into account in criminal proceedings and disciplinary matters as well as in civil proceedings. What we do not want to do— and what the removal of subsection (6) clearly would do—is give an impression that the liability existed in one case that did not exist in other cases. That would not be helpful.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Perhaps I did not make myself clear. I cannot get away from the fact that the inclusion of the words ''of itself'' means that in some circumstances an offence can be committed that amounts to a failure to comply with the code of practice. Given that no such offence is created under the Bill, the clause does not make sense.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Of course the clause makes sense. The code of practice is concerned with how someone should behave when conducting a search under the Bill. Someone could suggest that action had been taken against him inappropriately. Such a person would be able to say, as part of his case, that the constable or the customs officer did not comply with the code of conduct. A case may be brought against a particular officer that is based on far wider issues of misconduct, and a failure to comply with the code of conduct could be part of that case. The position is clear. I do not accept that there is a problem. All that subsection (6) says is that, of itself, non-compliance does not render the officer liable to prosecution.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I accept that the Minister may have a problem. He is labouring under a previous practice that has been imported into the Bill. I do not understand subsection (6) because there is no existing specific tort of not following the code of practice under the Proceeds of Crime Bill. There is no criminal offence of not following that code of practice. In such circumstances, I do not understand why subsection (6) has to be in the Bill. It makes me suspicious that it is there to provide a check or fetter on the ability of people in the ordinary course of events to bring civil or criminal proceedings that may arise in connection with actions of the officer under the proceeds of crime search powers. That brings me to subsection (7). I do not understand it. It reinforces my view that there is no need for subsection (6).

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I honestly do not understand the hon. Gentleman's worries. We are introducing a code of practice, and we want it to apply to those who will operate under the Bill. We expect them to be trained and to conduct themselves within the code of practice. We accept that other codes of practice apply to people in similar circumstances, and the provision is made under that remit. Under subsection (6), a failure to comply with the code of conduct will not in itself render the person liable to criminal or civil proceedings. Subsection (7) makes it clear that, despite

that fact, the code can be taken into account as part of another criminal, civil or internal disciplinary case. I cannot see a problem. The provision is there with regard to other codes of conduct. If we remove it, we shall signal that something different applies in this case. It does not and it should not—and I cannot understand the hon. Gentleman's problem.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

As I said, I have some sympathy with the Minister. What is being reproduced here appears to be similar to provisions in relation to other codes of practice. I was not in Parliament at the time when those codes of practice came up for scrutiny. If I had been, I should have made exactly the same point about them as I raise about this.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I might well have been raising the point from the Government Back Benches, but I would still have raised it. I do not like subsection (6). It is difficult to understand why it is there. The code of practice is important and it is important that it should be followed. The Minister has placed great reliance upon it. I am doing my best to explore what is behind the subsection, the most likely explanation seems to be that it is designed to prevent the emergence of what would be a common-law tort of not following the code of practice. I cannot think of anything else. No specific statute-based breach can be devised to prevent somebody, relying solely on the breach of a code of practice, from bringing a civil claim under some other head. I am not happy with that. Although it might have appeared in previous codes, I cannot see why it should appear in this one.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

Does the hon. Gentleman believe that there should be a tort of failing to comply with the code?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

No, I do not think that there should be such a tort in itself.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Just let me finish. However, it should be open for a person bringing a claim in tort to rely upon the breach of the code in itself as the basis for doing that. I can see circumstances in which that could be done, although I suspect that the case would have to touch on the officer's reasonable grounds for belief. I would simply like to leave the possibility open, as in some cases it might be relevant to rely solely on the breach of the code by the officer.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

As the Bill stands, the clause declares that the breach would be admissible in evidence where another tort could be established.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

However, it declares also, in conformity with existing law, that a failure to comply with the code would not, of itself, amount to that tort.

To withdraw the latter declaration would automatically open up the possibility of the creation of a further tort—the breach of the code of itself. That is exactly what the hon. Gentleman said that he did not want to do.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The hon. Gentleman and I are gradually working along similar lines, although we might come to a different conclusion. I am not in favour of the specific creation of a tort of failing to follow the code of practice. However, we have an evolutionary legal system, and I would like to leave open the possibility that there might be circumstances in which one of the general torts that somebody could impute to an officer was based on a breach of the code of practice because of all the surrounding circumstances. That is what subsection (6) prevents, or is trying to prevent. There is a difference of degree between that and openly spelling out that breach of the code shall be a tort. I can think of examples in the general law of tort where it depends on the facts of an individual case whether something is tortious or not.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

We seem to be witnessing one of the quicker U-turns. In my first intervention, I asked the hon. Gentleman whether he thought that there should be such a tort. He said no. He is now expressly saying that he would like to delete the provision in order to allow for the opportunity to create exactly that tort.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I think that the hon. Gentleman and I are still slightly at cross purposes. If one were to specify the existence of a tort based solely on a breach of observance of the code, it would be necessary to consider specifying statutory exceptions and the precise circumstances in which that tort could be established. That is why I am not in favour of going down that road, and I do not suggest it. However, I do suggest that it ought to be possible, when a breach of the code by an officer has been sufficiently flagrant—and possibly with motives underlying it—for a person to bring civil proceedings based upon a failure to observe the code. That is what subsection (6) is trying to exclude. Because I believe in a flexible legal system, I do not see why we should do that.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

The circumstances that the hon. Gentleman describes would surely amount to misfeasance in public office, in respect of which breach of the code would be admissible in evidence under subsection (7).

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I agree. Suppose that the hon. Gentleman wished to bring a claim, on behalf of a client or for himself, against an officer for misfeasance in public office, it would be possible—if I understand the wording of the clause, although I do find it a rather

odd argument—to say that one of the things that he had done had been to breach the code. However, that on its own would not be sufficient to found a course of action. Other things done by the officer would have to be identified in order to maintain the claim. I do not see why subsection (6) needs to be there at all. That is why I invite the Committee to vote for its deletion, and I do not intend to withdraw the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 13.

Rhif adran 22 Adults Abused in Childhood — Clause 291 - Code of Practice

Ie: 4 MPs

Na: 13 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.  

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 89, That the clause stand part of the Bill.

Question agreed to.

Clause 291 ordered to stand part of the Bill.

Further consideration adjourned.—[Mrs. McGuire.]

Adjourned accordingly at one minute to Seven o'clock, till Thursday 10 January at five minutes to Nine o'clock.