Justice and Security (Northern Ireland) Bill

moved Amendment No. 36: 36: Clause 21, page 16, line 27, leave out from first ““he”” to end of line 28 and insert ““informs the detainee of the facts which are the foundation of the decision”” The noble Lord said: This amendment concerns information to be provided on arrest. The Bill provides a member of the Armed Forces with the power to arrest and detain a person for up to four hours if he or she suspects that the person is committing, has committed or is about to commit an offence. A member of the Armed Forces making such an arrest is deemed by the Bill to comply with any rule of law requiring him to state the grounds of arrest if he states that he is making the arrest as a member of Her Majesty’s Armed Forces unless the rule of law requiring him to state the ground of arrest has effect only by virtue of the Human Rights Act 1998. Section 28(3) of the Police and Criminal Evidence Act 1984 provides that no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of or as soon as is practicable after the arrest. Article 52 of the European Convention on Human Rights provides that everyone who is arrested shall be informed promptly, in a language that he understands, of the reason for his arrest and of any charge against him. Therefore, the effect of the Bill appears to be to disapply Section 28(3) of PACE for the purpose of this power of arrest, but to leave the requirements of Article 5(2) of the convention in place. The Explanatory Notes tell us that the purpose of the power is to allow sufficient time for a police officer to attend, to re-arrest the person and charge them with an offence if appropriate. The reason for not requiring them to provide detailed legal grounds for arrest is said to be that they are not expected to know the law as intimately as a police constable. In his response to a letter from the Joint Committee on Human Rights, the Minister made clear that the rationale for the provision is to not impose excessive requirements on the Armed Forces. The Minister said that, "““a simple to use power of arrest that is effective in the range of circumstances in which it might arise, and is suitable for members of the forces (who will not have the extensive experience of the police in exercising such powers) is essential””." The Government’s concern is that the operational effectiveness of the Armed Forces would be impaired if the requirement were too onerous. If the grounds of arrest were wrongly stated by a member of the Armed Forces, it could mean that the arrest would be held to be unlawful and any actions to restrain the individual may also be illegal. If members of the Armed Forces became reluctant or uncertain about the use of these powers, it would hamper their ability to react appropriately in complex and fast-moving situations. The Minister is satisfied that the clause satisfies the procedural requirement in Article 5(2) of the convention. The Joint Committee accepts that, according to European Court of Human Rights case law interpreting Article 5(2), it is not always necessary for the relevant information to be given at the very moment of arrest, provided it is given within a sufficient period following the arrest, and the extent of the information required depends on the circumstances. For example, the committee observes, an arrested person can be taken to a police station before being given the information. However, precisely what Article 5(2) requires is likely to depend on the circumstances of the particular case. In the committee’s view, if there are no good operational reasons for delaying the provision of the requisite information, and it is clear that the information was available to—and understood by—the arresting officer, there would seem to be a risk of a breach of Article 5(2) if that information were not provided to the detaineeuntil four hours later. Since the requirements of Article 5(2) have been elaborated in judgments of the European court interpreting the standard contained in Article 5 in the circumstances of particular cases, the committee’s view is that it is questionable whether the provisions of the Bill as drafted provide enough guidance to members of the Armed Forces about what type of information they must provide on arresting somebody and precisely when they must provide it. The committee then comes to the point in its report. Bearing in mind that the member of the Armed Forces making the arrest must suspect that the person arrested has committed, was committing or was about to commit, an offence, in the committee’s view there does not appear to be a good reason, in principle, why the arresting officer should not be required at the very least to inform the detainee of the facts which are the foundation of the decision to detain, and asked whether he admits or denies the allegations. This would reduce the risk of findings of incompatibility with Article 5(2) in particular cases. The committee notes from the Minister’s response that, where a person is detained by a member of the Armed Forces, they will be informed in general terms of the reason for their arrest. This will normally be a reference to the facts giving rise to the arrest, such as the individual being seen throwing a petrol bomb. Soldiers are already given guidance in training to explain the factual grounds giving rise to the arrest. The committee welcomes this, which it thinks is likely to satisfy the requirements of Article 5(2) in most cases. We recommend that, to reduce the risk of incompatibility with Article 5, that good practice be turned into a requirement of the Bill. That is what the amendment does, hopefully modestly, by requiring the arresting officer to inform the detainee of the facts which are the foundation of the decision. That is not complicated and technical, but quite straightforward. I beg to move.